No. 81-268 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

STATE OF MONTANA, 

Plaintiff and Respondent, 

vs. 

GARY JOSEPH SWAN, 

Defendant and Appellant. 

Appeal from: District Court of the Fourth Judicial District, 

In and for the County of Missoula 

Honorable E. Gardner Brownlee, Judge presiding. 

Counsel of Record: 

For Appellant: 

Ralph T. Randono argued, Great Falls, Montana 

For Respondent: 

Hsn. Mike Greely, Attorney General, Helena, Montana 

Mark Murphy, Assistant Attorney General, argued, 

Helena, Montana 

Robert L. Deschamps 111, County Attorney, argued, 

Missoula, Montana 

Submitted: June 22, 1982 

Decided: August 19, 1982 

Filed: ,A$d6 13 1982 

Tk j= 

"Clerk 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

On a writ of habeas corpus from the United States 

District Court, Missoula Division, defendant appeals his 

1972 convictions of second degree assault (section 94-602, 

R.C.M. 1947, now repealed) and rape (section 94-4101, R.C.M. 

1947, now repealed). 

On May 11, 1972, defendant was sentenced to six years 

for the assault and ninety-nine years for the rape conviction by the District Court of the Fourth Judicial District 

of the State of Montana, Missoula County. According to 

defendant, his counsel told him that a notice of appeal had 

been filed. After the time limit for appeal had expired, 

defendant discovered, however, that a notice had never been 

filed. 

Defendant wrote Chief Justice Harrison in November 

1972 seeking a transcript and aid in appealing his conviction. Chief Justice Harrison wrote back to defendant 

stating: 

"You stated that you requested your attorney 

to appeal but he did not do so; I am informed 

that you did discuss an appeal with your 

counsel but you were advised there was no 

issue to appeal on. 

"I am also advised by the district judge that 

he did not feel there were any problems upon 

the trial, nor were any rulings made that 

could be an issue on appeal. Also that the 

evidence was clear and your counsel did a 

good job on your trial. 

"You do not need a transcript for an application for a writ of habeas corpus, just make 

the application and set forth in it wherein 

you feel your rights were prejudiced. If 

this court requires some of the testimony to 

ascertain if what you say is true, we will 

secure it." 

Over the next few years, defendant made several pro 

- se attempts to get a transcript which he believed was neces- 
sary in order to perfect an appeal. In 1973, he filed for a 

writ of mandamus in Federal District Court, which was denied. In September 1978, he filed another writ of mandamus 

with this Court, seeking court records and transcript, which 

was also denied. Also, in 1978, defendant began an action 

in Powell County seeking a declaratory judgment that Montana's former rape statute (section 94-4101, R.C.M. 1947) 

unconstitutionally discriminated against males. Apparently 

no action was taken on this petition. 

On December 20, 1978, defendant filed a pro se 

petition for a writ of habeas corpus in the United States 

District Court, Missoula Division, claiming, among other 

things, that he was denied a right of appeal. The writ was 

denied for want of exhaustion of state remedies. See, 36 

St.Rep. 746, 

In July 1979, the clerk of court's office in Missoula 

County destroyed the physical evidence of this case. 

On May 20, 1980, defendant filed a petition for writ 

of habeas corpus with this Court, which was denied. (Docket 

No, 80-184.) 

Finally, on September 29, 1980, defendant filed 

another pro se petition for a writ of habeas corpus in 

Federal District Court, Missoula Division. The District 

Court, after a telephone conference in which the State 

conceded certain facts, issued an order on May 13, 1981, 

holding that defendant was deprived of his right to appeal 

because he did not have effective assistance of counsel. 

The District Court ordered the State of Montana to furnish 

defendant with a review of his conviction with the assistance of counsel. The District Court further ordered the 
State to proceed with diligence in procuring a transcript 

and appointment of counsel, and to report back to the court 

as to what has been done within 120 days. This appeal 

followed. 

In Missoula, Montana, on the evening of December 13, 

1971, Sharon Briggs, a seventeen-year-old girl, went out 

drinking with defendant, defendant's wife and a friend of 

defendant, Rodger Smalley. Defendant and his wife were 

staying at the "93 Motel." All four people drank beer at 

the motel room from about 6:30 to 9:00 p.m. They then left 

the motel and went to a local bar, drinking and dancing for 

about two more hours. About 11:30 p.m., all four returned 

to the motel and Briggs asked to be taken home. 

The following account was told by Briggs at the 

trial : 

After Briggs asked to be taken home, defendant stayed 

in the car, apparently willing to drive her home. Defendant's wife and Rodger Smalley went back to the motel room. 

Briggs sat in the front seat of the car with defendant. When 

they drove past the street to her house, Briggs again told 

defendant she wanted to go home. Defendant told her that he 

wanted to buy some beer first. 

After buying the beer, defendant continued to drive 

south, out of Missoula. When Briggs asked where they were 

going, defendant said that he was taking her the "long way 

home." Briggs repeatedly asked defendant to take her home. 

Af ter a few miles defendant turned onto the Blue 

Mountain Road, which was snow-packed and slippery. 

Defendant's car became stuck a couple of times, but they 

were able to free it each time until the car slid partially 
off the road. The defendant told Briggs they would have to 

walk home, and he offered her some beer. When she refused, 

the defendant hit her on the side of her face with his fist. 

The defendant ordered the victim out of the car and hit her 

again, breaking her glasses. When she threw her glasses 

down, the defendant hit her again and pushed her over a snow 

bank toward the river. After they had reached the river 

bank, he hit her again and kicked her. 

At this point, according to Briggs, the defendant 

threatened to make her swim the river and also attempted to 

remove her pants. He took her pants and panties down and 

told her he was going to have sexual intercourse with her. 

She did not resist because she was afraid. Apparently 

because of the cold, he chose not to have sex with her. He 

ordered her to get dressed and follow him or he would beat 

and/or kill her. 

After walking some distance, they stopped at a house 

and asked for a ride back to Missoula. The occupant of the 

house agreed to give them a ride and later testified he 

noticed how badly Briggs was beaten but accepted the 

defendant's story about a bar brawl. He offered to take 

Briggs to the hospital, but defendant said she was his wife 

and he would take care of her. 

When Briggs arrived back at the defendant's motel, 

she again requested to be taken home. The defendant's wife 

was awake when they returned and told Briggs that she could 

not go home because she was too cold. The defendant and his 

wife removed the victim's clothing and ordered her into bed 

between them. When the defendant's wife left to go to the 

bathroom, Briggs testified that defendant forced her to have 
sexual intercourse with him. Defendant's wife later 

returned from the bathroom. 

When Briggs was sure they were both asleep, she got 

out of bed and began looking for her clothes. She then, for 

the first time, realized that Rodger Smalley was sleeping on 

the couch in the room. When Smalley awoke, at about 5:00 

a.m., Briggs was looking for her clothes and asked Smalley 

to take her home. He refused because he didn't have a car. 

Briggs then waited for light enough to find her shoes. Once 

she found her shoes, she went to a nearby shopping mall and 

called her mother. Her brother picked her up. Upon seeing 

her condition, he stopped on the way home and called the 

police. The police met Briggs at home and escorted her to 

the hospital where she was examined by her physician. 

At trial her physician testified that Briggs was "in 

a pretty sorry state'' when he saw her. She was battered and 

bruised with hemorrhages on the surface and white of the 

eye. She had dried blood in her nose, a cut lip and 

scratches on her neck. There were bruises located on her 

lower right rib cage and on the inside of her right thigh. 

The X-rays showed that there was a fracture of the jaw on 

the right side and the sinus in her left cheek had been 

obliterated by blood and swelling. 

A pelvic examination was conducted. No sperm was 

found in the vaginal cavity, but there were signs of a 

narrow genital injury. 

Before the trial, the State moved for a protective 

order prohibiting reference to Br iggs' morals or chastity. 

The record shows only that a discussion was held in chambers 

and that the motion was taken under advisement. The record 
does not reflect the District Court's decision on the 

motion. 

Defense counsel gave notice that defendant would use 

the defense of insanity and made a motion for an order 

allowing defendant to be examined by a psychiatrist of his 

own choice, paid by the State. Defendant had already been 

examined by one psychiatrist at Warm Springs State Hospital. 

The motion was denied. 

At trial the main evidence presented by the State was 

the testimony of Briggs, the policeman who accompanied her 

to the hospital and her physician. 

The defense called only two witnesses: defendant's 

previous attorney to rebut hearsay testimony concerning a 

conversation between defendant and the attorney, and the 

psychiatrist who examined defendant at Warm Springs State 

Hospital. The psychiatrist testified that defendant had a 

below normal I .Q. of approximately 78 and that defendant's 

ability to appreciate the criminality of his conduct could 

be impaired because of his low mentality. Neither defendant 

nor his wife testified at trial. 

Defendant's counsel did not present any proposed 

instructions. Instruction No. 8, a Sandstrom-type instruction, was given to the jury: 

"In every crime or public offense there must 

exist a union or joint operation of act and 

intent, or criminal negligence. The intent 

or intention is manifested by the circumstances connected with the offense and the 

sound mind and discretion of the accused. 

"In order to constitute the offense charged 

in this case the intent alleged in the Information is necessary to be proved, but direct 

and positive testimony is not necessary to 

prove the intent. It may be inferred from 

the evidence if there are any facts proved 

which satisfy the jury, beyond a reasonable 
doubt, of its existence. 

"The law also presumes that a person intends 

the ordinary consequences of any voluntary 

act committed by him. The latter presumption, 

however, is termed a disputable presumption 

and may be controverted by other evidence." 

(Emphasis added.) 

Defendant was charged with second degree assault, 

rape and kidnapping. The jury returned guilty verdicts on 

only the assault and rape charges. Defense counsel made a 

motion for a new trial which was denied. 

The controlling issues on appeal are: 

1. Whether defendant's rights to counsel, due 

process and equal protection were violated by the failure to 

appoint counsel and properly hear his appeal? 

2. Whether the defendant was denied a fair trial? 

Because both issues must be answered affirmatively, 

we reverse the judgment of the District Court and remand for 

a new trial, if enough evidence still exists. 

The initial question before this Court is whether or 

not to apply current law. The State argues that if we apply 

current law we must do so retroactively. We do not agree. 

The question of whether or not a rule of law is to be 

applied retroactively arises only when cases have been 

"finalized." Cases are generally considered "finalized" 

only when there has been "a judgment of conviction, sentence 

and exhaustion of rights of appeal." State v. Rogers 

(1979), 93 N.M. 519, 602 P.2d 616, 618. 

The first issue raised by defendant is whether the 

State violated his rights to effective assistance of 

counsel, equal protection, and due process by summarily 

preventing his initial attempt to appeal. Defendant argues 

that the failure of the Montana court system to appoint 
counsel for him, when it was apparent he was indigent and 

his trial court counsel was not pursuing his case, was a 

flagrant violation of his rights. The State contends that 

defendant's "trials and tribulations" in obtaining an appeal 

are irrelevant and that the only issues before this Court 

are issues that would have been presented in an immediate 

appeal of this case. 

If this Court were to follow the State's reasoning, 

we would be blinding ourselves to the fact that during the 

ten years defendant sat in prison his rights were being 

violated. To say that those ten years are irrelevant to the 

case before us is to ignore a long line of United States 

Supreme Court cases and Federal District Court cases 

acknowledging that neither an appellate court nor trial 

counsel may "sabotage" an appeal by inaction, even if the 

appeal is thought to be without merit. See, Miller v. 

McCarthy (9th Cir. 1979), 607 F.2d 854, 857, and cases cited 

therein. 

In the landmark case of Gideon v. Wainwright (1963), 

372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, the Supreme Court 

concluded that appointment of counsel for an indigent 

criminal defendant was a "fundamental right, essential to a 

fair trial," and that the Fourteenth Amendment requires 

appointment of counsel in a state court, just as the Sixth 

Amendment requires it in a federal court. 372 U.S. at 340. 

In a sister case, Douglas v. California (1963), 372 U.S. 

353, 83 S.Ct. 814, 9 L.Ed.2d 811, the Court applied the 

Gideon holding to the appellate process, stating that 

"federal courts must honor his [the indigent defendant's] 

request for counsel regardless of what they think the merits 
of the case may be; and 'representation in the role of an 

advocate is required.' Ellis v. United States, 356 U.S. 674, 

675." 372 U.S. at 357. The Court went on to apply this 

rule to the California Supreme Court, which had denied 

appellants' petitions for appeal without a hearing, stating: 

". . . The present case, where counsel was 

denied petitioners on appeal, shows that the 

discrimination is not between ' possibly good 

and obviously bad cases,' but between cases 

where the rich man can require the court to 

listen to argument of counsel before deciding 

on the merits, but a poor man cannot. There 

is lacking that equality demanded by the 

Fourteenth Amendment where the rich man, who 

appeals as of right, enjoys the benefit of 

counsel's examination into the record, research of the law, and marshalling of arguments on his behalf, while the indigent, 

already burdened by a preliminary determination that his case is without merit, is 

forced to shift for himself. The indigent, 

where the record is unclear or the errors are 

hidden, has only the right to a meaningless 

ritual, while the rich man has a meaningful 

appeal." 372 U.S. at 357. 

Under such case law, defendant, as an indigent, clearly had 

the right to have counsel on appeal. 

Nevertheless, an even more important question before 

this Court is whether the court system undermined his right 

to counsel by informally and summarily denying his appeal. 

Clearly, it has. 

In Anders v. California (1967), 386 U.S. 738, 87 

S.Ct. 1396, 18 L.Ed.2d 493, the United States Supreme Court 

was confronted with a case very similar to the one now 

before us. In Anders the court-appointed counsel for an 

indigent defendant thought there was no merit to the 

indigent's appeal. The appointed counsel wrote a letter to 

California's District Court of Appeals, expressing his 

opinion that the indigent's appeal was without merit. The 

California court affirmed the conviction after examining the 
record. The Supreme Court of the United States stated that 

such a procedure 

'I. . .smacks of the treatment that Eskridge 

received, which this Court condemned, that 

permitted a trial judge to withhold a transcript if he found that a defendant 'has been 

accorded a fair and impartial trial, and in 

the Court's opinion no grave or prejudicial 

errors occurred ,therein. ' Eskridge v. Washington State Board, 357 U.S. 214, 215 (1958). 

Such a procedure, this Court said, 'cannot be 

an adequate substitute for the right to full, 

appellate review available to all defendants 

who may not be able to afford such an expense 

. . ." 386 U.S. at 742-743. 

The Court then went on to outline what procedures 

would be constitutional in such a case: 

"The constitutional requirement of substantial equality and fair process can only be 

attained where counsel acts in the role of an 

active advocate in behalf of his client, as 

opposed to that of amicus curiae. The nomerit letter and the procedure it triggers do 

not reach that dignity. Counsel should, and 

can with honor and without conflict, be of 

more assistance to his client and to the 

court. His role as advocate requires that he 

support his client's appeal to the best of 

his ability. Of course, if counsel finds his 

case to be wholly frivolous, after a conscientious examination of it, he should so 

advise the court and request permission to 

withdraw. That request must, however, be 

accompanied by a brief referring to anything 

in the record that might arguably support the 

appeal. A copy of counsel's brief should be 

furnished the indigent and time allowed him 

to raise any points that he chooses; the 

court--not counsel--then proceeds, after a 

full examination of all the proceedings, to 

decide whether the case is wholly frivolous. 

If it so finds it may grant counsel's request 

to withdraw and dismiss the appeal insofar as 

federal requirements are concerned, or proceed to a decision on the merits, if state 

law so requires. On the other hand, if it 

finds any of the legal points arguable on 

their merits (and therefore not frivolous) it 

must, prior to decision, afford the indigent 

the assistance of counsel to argue the 

appeal." 386 U.S. at 744. 

Here, defendant's counsel not only believed defendant 

had no grounds for appeal, but also told defendant he had 
filed a notice of appeal when, in fact, he had not. Moreover , defendantls appeal was prevented by this Court by an 

informal process condemned by the Anders Court. 

The State claims that all these errors have been 

cured because we now grant defendant his right to appeal. We 

cannot agree in light of the other errors arising out of 

defendant's trial; errors that include, most blatantly, the 

issuance of an improper Sandstrom-type instruction, and that 

cumulatively resulted in an unfair trial of the defendant. 

In Parker v. Crist (1980), - Mont. - , 621 P.2d 

484, 37 St.Rep. 2048, this Court upheld a Sandstrom-type 

instruction identical to the one in this case. Our reasoning was based on three grounds: (1) the instruction itself 

was a permissive inference and not a conclusive presumption; 

(2) the instructions as a whole made it clear that the State 

would bear the burden of proving beyond a reasonable doubt 

every essential element of the crimes charged; and (3) the 

error, if any, was harmless because the evidence of the 

requisite intent was overwhelming. 621 P.2d at 486-487. 

In State v. Lundblade (1981), Mont . , 625 

P.2d 545, 38 St.Rep. 441, we limited our reasoning in 

Parker, stating ". . . we cannot say that the circumstances 

making the instruction permissible in Parker occurred in the 

instant case, nor do we know for certain that the United 

States Supreme Court would find this instruction to be 

constitutional in this case in light of Sandstrom v. Montana 

(1979), 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 239." 625 

P.2d at 549. 

Here, two of the alleviating factors listed in Parker 

do not exist. The instructions, as a whole, fail to place 
the full burden of proof on the State, and the evidence of 

intent is hardly "o~erwhelming.~~ See also, State v. Hamilton 

(1980)f - Mont. , 605 P.2d 1121, 37 St.Rep. 70, and 

State v. Dolan (1980), Mont . , 620 P.2d 355, 37 

St.Hep. 1860. 

Here, as in State v. Kyle (1981), Mont. I 

628 P.2d 263, 38 St.Rep. 578Q, the instruction cannot be 

considered harmless because the jury could have easily 

viewed the instruction as mandatory, and because mental 

state was a crucial factual question, especially in light of 

the fact that defendant was claiming the insanity defense. 

Such an error, in itself, is cause for reversal and 

remand. We also note, however, that the trial itself did 

not meet the fairness and due process standards provided for 

in Art. 11, Sections 17 and 24, 1972 Montana Constitution. 

This case is similar to State v. Mickelson (1977), 172 Mont. 

489, 565 P.2d 308, where we stated: 

". . . The search for truth was less than 

vigorous by counsel in this matter and this 

writer feels that, particularly on a bench 

trial, the judge has the inherent power, 

right and yes, duty, to sua sponte demand 

that a search for the truth be exhausted 

before the matter be accepted for decision. 

Otherwise, the defendant, as here, has been 

denied a fair trial and due process under 

Art. 11, Section 24, 1972 Montana 

Constitution." 565 P.2d at 311. 

We therefore reverse the judgment of the District 

Court. 

Defendant argues that a new trial would be impossible 

because the physical evidence was destroyed in 1979. Nevertheless, not knowing what evidence still exists, we remand 

to give the State the opportunity to retry the rape case if 

sufficient evidence is available. This is not true of the 
assault case, as the six-year sentence in that cause has 

long since been satisfied. 

We concur: 

?&T?ji%&d *a 

Chief Justice 

..