No. 81-482 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

STATE OF MONTBATA, 

Plaintiff and Respondent, 

JOHN ALDIN HUBBARD, 

Defendant and Appellant. 

Appeal from: District Court of the Eighth Judiciai District, 

In and for the County of Cascade 

Honorable Jack Shanstrom, Judge presiding 

Counsel of Record: 

For Appellant: 

Sandra K. Watts argued, Great Falls, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Dorothy McCarter arqued, Assistant Attorney General, 

Helena, Montana 

J. Fred Bourdeau, County Attorney, Great Falls, Montana 

Submitted: June 23, 1982 

Decided: August 25, 1982 

Piled: 

Clerk 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of 

the Court. 

Pursuant to a plea bargain agreement, defendant plead 

guilty to the crime of negligent homicide. The District 

Court sentenced defendant to consecutive terms of ten years 

imprisonment for negligent homicide and five years for the 

use of a weapon in committing that crime. 

Defendant appeals from the sentence. 

This is the second time defendant's case has come 

before this Court. Following an early morning shootout in a 

Great Falls trailer court in which two men were killed, 

defendant Hubbard and another were tried and convicted of 

mitigated deliberate homicide and burglary, respectively. 

We reversed Hubbard's conviction and remanded for a new 

trial. State v. Fish et al. (1980), - Mon t . - , 621 P.2d 

1072, 37 St-Rep. 2065, 

On remand, the Honorable Jack D. Shanstrom was substituted as the presiding judge. An amended information was 

filed charging Hubbard with negligent homicide. A written 

plea bargain agreement was signed and filed wherein 

defendant agreed to plead guilty to the crime of negligent 

I~omicide and acknowledged the possibility that the statute 

enhancing the penalty for use of a weapon in that crime 

might be applied to him. 

On May 14, 1981, a hearing was held wherein defendant 

testified to his state of mind at the time of the crime; 

expert witnesses testified that defendant was under some 

duress at that time; and friends and a deputy sheriff 

testified concerning events that occurred on the night of 

the crime. Additionally, a psychiatrist at the Montana 

State Prison testified that his 1979 diagnosis of defendant 
as antisocial was inaccurate. 

The following day a sentencing hearing was held which 

included testimony by the district probation and parole 

officer, a clinical psychologist, defendant's mother and the 

defendant himself. Following this hearing Judge Shanstrom 

ruled that the enhancement statute applied to negligent 

homicide and that none of the exceptions to the statute 

applied. He sentenced the defendant to consecutive terms of 

ten years imprisonment for negligent homicide and five years 

for the use of a weapon in that crime. Defendant appeals 

from this sentence raising the following specifications of 

error: 

(1) Does the statute enhancing the penalty for use of 

a weapon in the commission of a crime apply to negligent 

homicide? 

(2) Was defendant denied due process by inclusion of 

negligent homicide in the enhancement statute? 

(3) Does the record show that defendant was acting 

under unusual and substantial duress precluding application 

of the enhancement statute? 

(4) Was error committed by the sentencing judge in 

admitting testimony amounting to retrial of the original 

charge of deliberate homicide and in sentencing defendant on 

an incomplete reading of the trial transcript? 

(5) Was defendant prejudiced by the 1979 diagnosis of 

defendant as antisocial which was later retracted? 

(6) Does justice require the f ive-year enhancement to 

be served consecutively rather than concurrently? 

The statutes at issue in this case are set out below: 

"46-18-221. Additional sentence for offenses 

committed with a dangerous weapon. (1) A per- 
son who has been found guilty of any offense 

and who, while engaged in the commission of 

the offense, knowingly displayed, brandished, 

or otherwise used a firearm, destructive 

device, as defined in 45-8-332(1), or other 

dangerous weapon shall, in addition to the 

punishment provided for the commission of 

such offense, be sentenced to a term of 

imprisonment in the state prison of not less 

than 2 years or more than 10 years, except as 

provided in 46-18-222. 

"(4) An additional sentence prescribed by 

this section shall run consecutively to the 

sentence provided for the offense. 

"46-18-222. ----- Exceptions to mandatory minimum 

sentences and restrictions on deferred impostion and sus~ended execution of sentence. All 

mandatory minimum sentences prescribed by the 

laws of this state and the restrictions on 

deferred imposition and suspended execution 

of sentence . . . do not apply if: 

"(3) the defendant, at the time of the commission of the offense for which he is to be 

sentenced, was acting under unusual and substantial duress, although not such duress as 

would constitute a defense to the prosecution; I' 

We will combine our discussion of the first and 

second issues because of their interrelationship. Appellant 

contends that (1) the legislative history of the above 

statutes demonstrates a legislative intent to include 

violent crimes (not negligent homicide) within the ambit of 

the legislation, (2) there is legislative intent to exclude 

result-oriented crimes not committed intentionally like 

negligent homicide, and (3) that since section 46-18-221 (1) 

requires that defendant knowingly used a firearm, it cannot 

be used to enhance a sentence for negligent homicide where 

no specific intent is required and to do so violates 

defendant's procedural due process rights. 

In construing a statute, the intent of the legisla- 
ture is controlling. Section 1-2-102, MCA; Dunphy v. 

Anaconda Co. (1968), 151 Mont. 76, 438 P.2d 668, and cases 

cited therein. The intention of the legislature must first 

be determined from the plain meaning of the words used, and 

if interpretation of the statute can be so determined, the 

courts may not go further and apply any other means of 

interpretation. Dunphy v. Anaconda Co., supra, and cases 

cited therein. Where, as here, the language of the statute 

is plain, unambiguous, direct and certain, the statute 

speaks for itself and there is nothing left for the court to 

construe. State v. Roberts (1980), - Mont. , 633 P.2d 

1214, 38 St.Rep. 1551. The statute plainly says that "a 

person who has been found guilty of any offense" and while 

engaged in the commission of the offense knowingly uses a 

firearm is subject to an enhanced penalty of two to ten 

years. There is simply no reason for the use of legislative 

history to construe a statute where the language is clear 

and unambiguous on its face. 

Nor do we see any conflict between the "knowingly" 

mental state required by the enhancement statute and the 

"negligently" mental state as it applies to negligent 

homicide. Negligent homicide is defined as follows: 

"Negligent homicide. (1) Criminal homicide 

constitutes negligent homicide when it is 

committed negligently." Section 45-5-104, 

MCA. 

"Negligently" is defined as: 

" (37) 'Negligently1--a person acts negligently with respect to a result or to a circumstance described by a statute defining an 

offense when he consciously disregards a risk 

that the result will occur or that the 

circumstance exists or when he disregards a 

risk of which he should be aware that the 

result will occur or that the circumstance 

exists. The risk must be of such a nature 
and degree that to disregard it involves a 

gross deviation from the standard of conduct 

that a reasonable person would observe in the 

actor's situation. 'Gross deviation' means a 

deviation that is considerably greater than 

lack of ordinary care. Relevant terms such 

as 'negligent' and 'with negligence' have the 

same meaning ." Section 45-2-101 (37) , MCA. 

"Knowingly" is defined as: 

" (33) 'Knowingly'--a person acts knowingly 

with respect to conduct or to a circumstance 

described by a statute defining an offense 

when he is aware of his conduct or that the 

circumstance exists, A person acts knowingly 

with respect to the result of conduct described by a statute defining an offense when 

he is aware that it is highly probable that 

such result will be caused by his conduct. 

When knowledge of the existence of a particular fact is an element of an offense, such 

knowledge is established if a person is aware 

of a high probability of its existence. Equivalent terms such as 'knowing' or 'with 

knowledge' have the same meaning ." Section 

45-2-101 (33) , MCA. 

A person can knowingly use a firearm and still be 

negligent by grossly deviating from the conduct of a reasonable person in a similar situation with regard to the 

results of his actions. See, State v. Pierce (No. 81-343, 

decided July 7, 1982), - Mont, -' - P,2d -1 - 

St .Rep. There is no conflict between these two 

statutes. 

We do not find appellant's due process arguments persuasive and much of what was said above applies to this 

contention also. We have previously held that the statute 

does not offend due process rights. State v, Davison (1980), 

- Mont. - , 614 P.2d 489, 37 St.Rep. 1135. Appellant has 

cited no authority directly in point for his constitutional 

challenge. We decline to hold the enhancement statute 

unconstitutional on this basis. 

With regard to the third issue, appellant contends 
that the facts indicate that defendant was under unusual and 

substantial duress within the meaning of section 46-18- 

222(3), MCA, an exception to the enhancement statute. Appellant argues that the jury verdict of mitigated deliberate 

homicide (which requires "extreme mental or emotional 

stress," section 45-5-103, MCA) bears this out. Appellant 

also argues that the following facts indicate defendant was 

under the requisite amount of duress: defendant had just 

seen his friend shot, had been shot at himself, had had a 

gun pointed in his face, and had wrestled the gun away from 

its owner. 

The District Court found that although there was "a 

certain amount of duress" in this case, it was not "unusual 

or substantial," triggering section 46-18-222, MCA. There 

was sufficient evidence in the record to support the 

District Court's determination, and we uphold it here. The 

District Court made the following statements in this regard, 

addressed to the defendant: 

"By your own admission you only intended to 

'wing' him. You said, 'He shot Dale, so I 

shot him.' And then the statement was made 

that you only shot to wound him. Then you 

made the statement, 'Nobody sticks a gun in 

my face and gets away with it.' And, 'He 

deserves to die--he doesn't deserve to live.' 

'He killed my friend, so I killed him.' I 

think that all of these statements, among 

others, indicate an intent to get even by the 

use of direct, physical force, a weapon." 

The defendant also had the presence of mind to temporarily incapacitate the owner of the gun by kicking him in 

the groin. Finally, defendant shot and killed a man running 

away from him who posed no immediate threat to him. These 

facts do not indicate unusual or substantial duress but 

rather a revengeful attitude on defendant's part, seeking to 
make the killer "pay" for shooting his friend. There was no 

abuse of discretion by the District Court in so ruling, 

State v. Metz (1979), - Mont. - , 604 P.2d 102, 36 

St .Rep. 2261. 

Next, appellant argues that the sentencing judge 

erred by admitting testimony which amounted to a retrial on 

the deliberate homicide charge and by failing to read the 

entire trial transcript. We will address the latter part of 

this contention first. The District Court judges of this 

state are burdened with heavy case loads as it is. We are 

loathe to hold that the failure of a District Court judge to 

read every word of a trial transcript mandates a reversal, 

Nor do we find any error in the admission of testimony by the District Court. Such a hearing as was held here 

is required by section 46-18-223, MCA, which provides in 

part: 

"Hearing to determine --- application of -- exceptions. (1) When the application of an exception provided for in 46-18-222 is an issue, 

the court shall grant the defendant a hearing 

prior to the imposition of sentence to determine the applicability of the exception ." 

To determine whether the defendant was operating under substantial or unusual duress, the District Court must necessarily consider the facts leading up to the fatal shootings. 

This is especially true here since the trial judge was not 

the sentencing judge. 

Appellant's £if th issue involves whether the defendant was prejudiced with respect to a wrongful diagnosis by 

Montana State Prison officials on the presentence report. 

This point is raised because the psychiatrist who prepared 

the presentence report in 1979 (wherein he diagnosed the 

defendant as being antisocial) testified at the May 14, 

1981 hearing that his diagnosis was inaccurate. Appellant 
claims error because the District Court considered this 

report in sentencing the defendant. Appellant refers us to 

the following language in the court's order of May 27, 1981: 

"The Court, having heard and considered oral 

arguments together with all of the testimony 

and evidence presented at the sentencing 

hearing, the various presentence reports, the 

diagnostic evaluation from the Montana state 

Prison an5 the transcripts, and being fully 

advised . . ." (Emphasis added.) 

Appellant has cited no authority for this novel 

assertion, and we reject it. The sentencing judge heard the 

psychiatrist testify regarding his mistaken diagnosis, and 

there is no indication that he did not abide by this 

testimony. T1-ke mere reference to the report in the court's 

order is not a sufficient ground for reversal. 

Appellant's final contention alleges error for the 

District Court's sentence requiring the additional five 

years to run consecutively, rather than concurrently. 

Although the present statute requires that the sentence run 

consecutively (section 46-18-221(4), MCA, supra), at the 

time this defendant was sentenced the court had discretion 

to require the enhanced sentence to run concurrently. 

However, this goes to the equity of the sentence rather than 

its legality and should be directed to the Sentence Review 

Board and not this Court, State v. Metz, supra. Appellant 

should take up these concerns with the appropriate 

authority. 

Affirmed. 

T~u*e.ditwme Chief Justice 
We concur: 
Mr. Justice Gene B. Daly dissenting: 

I am not easily moved to dissent but, "Qui fortiter 

emungit, elicit sanguinem" -- "He who wrings the nose 

strongly brings blood." Proverbs XXX, 33. My nose has been 

strongly wrung. I am not unmindful of the close and constant 

interaction between "facts" and "law." However, any judicial 

deception that exists is more likely to apply to the facts 

rather than the law. 

I have labored with the facts of this case since 1978 

when I received the assignment to examine a District Court 

denial of bail to defendant Hubbard. My examination produced 

a normal young man, employed, etc., no previous record. In 

short, nothing in the personal record would militate against 

a reasonable bail. This Court agreed, and we set bail. 

Thereafter, in 1980, I was assigned State v. Fish and 

Hubbard on appeal a£ ter trial. State v. Fish and Hubbard 

(198o)t - Mont . , 621 P.2d 1072, 37 St.Kep. 2065. 

The authorities at the District Court level took an 

unusually stronq stand against these defendants which was 

not supported by the trial record. I authored an opinion 

with a unanimous Court and, among other things, set the 

facts straight based on the trial transcript. A person gets 

a feeling reading a trial transcript, where there is insufficient evidence to sustain a conviction, that perhaps 

things are done that are not compatible with due process or 

fair play. This moved the Court in its reversal to quietly 

admonish the local officials, "don't do it again." 

The handling of this matter in the District Court 

created a sordid mess with the appearance of an effort to 

restoration of the status quo that existed prior to our 
reversal on appeal. So, the sentence procedure that resulted 

from a broken plea bargain and the unusual sentence has been 

appealed again to this Court. 

The facts in the majority opinion that presume to 

have examined this matter are outrageously inaccurate. They 

are slanted and limited in such a manner as to produce an 

appearance of extreme criminality and purposeful guilt upon 

the defendant. This is all in direct defiance of the facts 

as they were found to be from the transcript record of the 

trial! 

I will quote a small portion of the appeal decision 

found reported 621 P.2d at 1078. This was part of the discussion on the accountability charges which were reversed: 

"In further support of the accountability 

theory, the State draws on the time Fish, 

Hubbard and Lodge were together earlier in 

the evening and on isolated remarks overheard 

from them, allegedly of an exceedingly violent nature and that all three were again 

present at Miller's trailer when Lodge approached the trailer door. Yet, the record 

is bare of any evidence of any preparation by 

any of the three to carry out these alleged 

threats; no one was armed, not even with a 

stick or rock. The record is more compatible 

with an intent by Fish to engage in a fist 

fight--to which he admits. The State admits 

in the record that no weapons were found when 

the vehicles were searched. Miller was the 

only person armed. We acknowledge that there 

was an uncommon amount of activity that 

evening that made its way into the record, 

but we are compelled to reject the conclusion 

reached from this by the State." (Emphasis 

added. ) 

The jury also rejected the theory offered by the State. 

The entire second issue in the appeal case had to do 

with Hubbard's state of mind, yet the trial judge on sentence held a new hearing and received evidence WE HELD ON 

THE APPEAL WAS NOT RELEVANT. 

The problem that Judge Shanstrom has is that he is 
trying to give the defendant the maximum in terms of sentence on a minimum record and refused to consult or be 

guided by our appeal opinion which I insist is the law of 

the case. 

The facts simply stated are that defendant Hubbard's 

judgment may have been faulty initially by permitting his 

sister to persuade him to join the group, "to make sure 

there is a fair fight." This eventually led him to the 

trailer park and the problems found there. Nevertheless, he 

was by the trial record a "bystander." As the trial record 

ind~cates, none of the young people were armed, not even 

with a stick. Miller shot through the door and wounded all 

three persons standing there--one fatally. All retreated 

except the dead person. Miller came out and fired two 

rounds in Hubbard's direction, appeared at the side of his 

car in the dark, put a gun in his face, and profanely 

threatened to kill Hubbard. Hubbard wrested the gun from 

Miller and the rest is history. 

The point of all this is, in the judge's opinion, 

that Hubbard at this point was not under unusual or substantial duress. This is contrary to our findings on the 

original appeal. 

I would like to move away from the facts and into the 

law applied against the defendant by the lower court, that 

resulted in an increase of penalty to fifteen years. 

The District Court's decision to apply the enhancement statute, section 46-18-221, PICA, and add an extra five 

years to defendant's sentence for negligent homicide should 

be reversled on three grounds. First, because the enhancement statute contains a specific intent, "knowingly," it is 
a contradiction in terms to apply it to a situation where 

admittedly defendant acted only "negligently." To say that 

a person may act "knowingly" and "negligently" at the same 

time and during the same act creates a vague, confusing and 

arbitrary standard of conduct. Secondly, and more important 

to due process, the District Court disrupted the plea bargaining process by actively participating in the negotiations. Such actions by a trial court have been condemned in 

numerous cases. See, Annot., 10 ALR4th 689, et seq. Lastly, 

even if the enhancement statute is applied to this case, the 

evidence does not support the District Court's conclusion 

that defendant was not acting under sufficient duress to 

meet the statutory exceptions of the enhancement statute. 

See, section 46-18-222, MCA. 

The controlling language here is contained in the 

enhancement statute which provides in part that a person is 

subject to its application if he ". . . knowingly displayed, 

brandished, or otherwise used a firearm . . ." 

This Court has held that when the legislature enacted 

the new criminal code in 1973, it substituted the words 

"purposely" and "knowingly" for the words "feloniously" and 

"intentionally." State v. Klein (1976), 169 Mont. 350, 547 

P.2d 75. By definition, then, statutes containing the word 

"knowingly" contain a specific intent. Also by definition, 

acting "knowingly" is not acting accidently. State v. 

Seitzinger (1979), 180 Mont. 136, 589 P.2d 655. 

In contrast, "negligently," by definition, refers to 

the commission of an act without regard to the actor's 

intent or knowledge. See definition in section 45-2-101(37), 

MCA. 
Nevertheless, at the sentencing hearing the intent of 

defendant was repeatedly brought into evidence over the 

objection of defense counsel. The State with the encouragement of the District Court in effect retried defendant for 

deliberate homicide. See comment, supra. 

The District Court rationalized the use of such evidence by trying to distinguish the knowing use of the firearm from the crime committed. This cannot be done simply 

because it subjects the defendant to proof of a specific 

intent where admittedly no specific intent is present. In 

essence, negligent homicide has been redefined as an act 

committed " knowingly," depriving defendant of his right to 

equal protection and due process and creating a vague 

statute. 

As the Washington Supreme Court stated: 

". . . Statutes which define crimes must be 

strictly construed according to the plain 

meaning of their words to assure that citizens have adequate notice of the terms of the 

law, as required by due process. 'Men of 

common intelligence cannot be required to 

guess at the meaning of the enactment.' 

Winters v. New York, 333 U.S. 507, 515, 68 

S.Ct. 665, 670, 92 L.Ed.2d 840 (1947); 

Seattle v. Pullman, 82 Wash.2d 794, 797, 514 

P.2d 1059 (1973). The word 'knowledge' has 

an ordinary and accepted meaning. A statutory 

redefinition of knowledge to mean negligent 

ignorance would completely contradict the 

accepted meaning. . ." State v. Shipp (1980), 

93 Wash.2d 510, 610 P.2d 1322, 1326. 

Moreover, the District Court interpreted the enhancement statute in such a way that a penalty is imposed for 

acts and an intent different from those in the underlying 

offense. In effect, the District Court has created a 

separate offense out of the enhancement statute, i.e., 

knowingly using a firearm or other destructive device. The 

defendant was then tried for this offense at the sentencing 
hearing . 

We stated in State v. Davison (1980), - Mont . - I 

614 P.2d 489, 37 St.Rep. 1135, that the enhancement statute 

neither creates nor penalizes a defendant with a separate 

offense. The District Court's interpretation of the enhancement statute, here, is not reconcilable with the holding in 

Davison. If the enhancement statute is to be used, as its 

name suggests, to "enhancen the underlying offense, it 

cannot impose an element of intent separate from the underlying offense. 

As well as misinterpreting the enhancement statute, 

the District Court obstructed the purpose of the defendant's 

plea bargain by imposing a five-year sentence on top of the 

ten-year sentence for which defendant originally bargained. 

Such action by the District Court is in contravention to 

standards set by the American Bar Association Standards for 

Criminal Justice which limits the trial judge to the role of 

an impassive moderator. ABA Standards for Criminal Justice 

14-3.3 (2d ea. 1980). When a plea is influenced by the 

actions of a judge it cannot be said to be voluntary. State 

v. Cross (1977), 270 S.C. 44, 240 S.E.2d 514. Plea negotiations should be between adversaries, and the trial judge 

should not participate for either side since it is his 

responsibility to determine unbiasedly the voluntariness of 

the plea. 

Here, the District Court broke the plea bargain 

agreement in its bastardization of the enhancement statute. 

Defendant originally bargained up to the ten-year maximum 

sentence for negligent homicide. Only through active participation by the District Court was this maximum sentence 
increased by five years. 

Even if the enhancement statute could be said to 

apply to this case and if the District Court's participation 

in the plea negotiations could be considered proper, the 

District Court nevertheless abused its discretion by 

concluding that defendant did not come under the statutory 

exceptions to the enhancement statute. The record simply 

does not support the conclusion that defendant was not ------------------- 

acting under unusual and substantial duress. See, State v. 

Fish and Hubbard, supra. 

As related in the facts acknowledged by this Court on 

appeal, the owner of the rifle, Miller, shot two times at 

defendant moments before defendant himself came into possession of the rifle. Miller had shoved the rifle in defendant's face, threatening to blow his head off. Defendant 

wrested the rifle away from Miller. Defendant then walked 

over to his friend who had just been fatally struck in the 

neck with shrapnel from Miller's prior shots. Miller began 

to run away and defendant shot at him to prevent his escape. 

Clearly, this evidence of the situation preponderates 

against the District Court's conclusion that defendant was 

not under substantial duress at the time of the shooting. 

The District Court, therefore, abused its discretion. The 

statutory exception found in section 46-18-222(3), MCA, 

should apply, and the extra five-year sentence should be set 

aside. 

I have made some broad statements and am mindful of 

my own frailties. However, it has been my purpose to deal 

with the facts in an impersonal and objective manner. I 

have perhaps been too critical of the lower court personnel. 
I would like it understood that I do not speak in terms of 

conscious partiality or prejudgment, as no judge worthy of 

his office would knowingly permit any cloud of prejudice to 

darken his understanding or influence his decision. 

Justice I fl 

Mr. Justice Daniel J. Shea dissents and will file a written 

dissent later. 
Mr. Justice Daniel J. Shea dissenting: 

I join in the dissent of Justice Daly. It is refreshing 

on occasion to see an opinion no longer bathed in judicial 

language, but instead addressing the fundamental issues 

underlying the surface issues. 

We don't know precisely why the trial court gave the 

sentence to defendant. In State v. Stumpf (1980), 

Mont . - , 609 P.2d 298, we held that "a trial court's right 

to exercise its discretion does not mean that a trial court 

should not disclose the reasons underlying a discretionary 

act. Absenti-reasons, the appellate court can only guess as 

to why the trial court made a particular decision." Here, 

the broad statement of the trial court that it relied on the 

sentencing report, without disclaiming that report's inaccuracy, 

places an appellate court in the impossible situation of not 

knowing whether the trial court relied on erroneous parts of 

the report. A sentence in that situation should not be upheld. 

In United States v. Latimer (Ohio 1969), 415 F.2d 1288, 

the Court held that error in a presentence investigation report, 

if relied on, is a ground for remanding for resentencing. The 

case was remanded for resentencing because the record - did 

not disclose whether the trial court had relied on erroneous 

or improper information. An eloquent argument in favor of 

a requirement that judges give reasons for their sentences, 

has been made in United States v. Bazzano (1977), 521 F.2d 

1122, 1132. 

Fundamental fairness requires that the reasons for a 

sentence be set out with precision. The defendant has a 

right to assurance that a judge was not relying on erroneous 

information. The record here is demonstrably lacking in that 

assurance. r-"? " '"t' !$& * T 

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