No. 14970 IN THE SUPREME COURT OF THE STATE OF MONTANA 1980

THE STATE OF MONTANA, Plaintiff and Respondent,

VS. ERNEST BLACKBIRD

### , a/:c,/a ERNEST COURCHANE, Defendant and Appellant.

Appeal from: District Court of the Eighth Judicial District, In and for the County of Cascade, Honorable H. William Coder, Judge presiding. Counsel of Record: For Appellant: Lawrence Anderson argued, Great Falls,Montana For Respondent: Hon. Mike Greely,Attorney General, Helena,Montana Allen Chronister argued,Assistant Attorney General,

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

Submitted: March 25, 1980 Decided: 

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## 1 Filed: p! L,Mr. 

### Justice John Conway Harrison delivered the Opinion of the Court. This is an appeal arising out of defendant's conviction of the crime of bail-jumping pursuant to section 45-7-308, MCA. Trialwas had in the ~istrict Court of the Eighth Judicial District, in and for the County of Cascade. Defendant was originally charged by information with the crimes of burglary, aggravated burglary, attempted burglary, and sexual intercoursewithout consent. After pleading not guilty to the crimes, defendant was released on his own recognizance under the condition that he appear for trial onNovember 13, 1978, at 9:30 a.m. Defendant, however, failed to appear for trial on the date and hour scheduled. Defendantwas then charged onNovember 13, 1978,with the crime of bail-jumping, a felony,pursuant to section 45-7-308, MCA. According to that statute, a person commitsbailjumping if he is set free by court order on the condition that he will subsequently appear at a specified time and place and then purposely fails without lawful excuse to appear at that time and place. Defendant entered a plea 02 

### cot guilty to the charge, and a jury trialwas set for March 12, 1979. At trial, defendant argued as one of his defenses, that it was not his purpose or conscious object to fail to appear for the trial. The State attempted to rebut this defense with a jury instruction and the testimony of Barbara Gregovich and Daniel Donovan. Ms. 

### Gregovich, a deputy clerk 

### for the 

### Cascade County Clerk's office, testified that she had heard defendant state in a court proceeding with respect to the date set for trial that, "I

### have to be there Monday at 9:30.11Donovan, who was defendant's attorney on the original charges, testified thathe had made certain statements to the court

on November 13, 1978, about defendant's lateness inappearing for trial. Those statements related to a conversation Donovan had with defendant thatmorning. Donovan testified: "Itold the judge I had received a phone call at approximately tenminutes tonine thatmorning from Mr. Blackbird, and he had asked me, I believe, when the trialwas. I told him itwas at 9:30 and he'd better be there, and I don't know-- I can't remember the exact response, but I got the impression thathe would trytoshow up for trial. And the reason I told this tothe Judge was I wanted the Judge towaitan additional period of 

### timebefore theJudge was going to issue a warrant forhis

### arrest and put him back injail." Prior to the trial, the prosecution and defense counsel entered into an agreement captioned "Discovery." The agreement provided that theprosecution would produce for defendant, without the necessity of a courtorder, allmaterials thatwere discoverable. The agreement then listedmaterials which had been supplied 

### as of the date of the document. Among the items, ItemNo. 3 indicated that no verbal or written statements of defendant had been furnished. Defendant contends that the agreement was, ineffect, a stipulation entered intobetween him and the prosecution that the Statewould not use any verbal orwritten statements of defendant attrial. In linewith this contention, defendant objected inparticular tothe testimony of Ms. Gregovich and claimed surprise. However, after granting defense counsel a continuance and an opportunity to interview Ms. Gregovich, the trial court admitted the testimony. Finally the State submitted an instruction tothe court which imputed Donovan's knowledge of the trial date to defendant. Over objection of defense counsel, the court gave the instructionwhich stated:

### "Notice to attorney is notice to client employing him, and knowledge of attorney isknowledge of his client." The jury found defendantguilty of the crime of bailjumping and, on May 

### 7, 1979,defendantwas sentenced to ten years in the Montana State Prison at Deer Lodge, Montana. Three issues are raised for our consideration upon appeal: 

### (1)Whether the trial court erred in admitting the testimony of Barbara Gregovich in view of the requirements of section 46-15-303,MCA. (2)

### Whether the trial court erred in allowing defendant's former attorney, Daniel Donovan, to testify regarding a conversation he had with defendant about defendant's intention to appear for trial. (3)Whether the trial court erred in giving an instruction which imputed knowledge of defendant's former attorney to defendant. We find that the third issue is determinativeof the result in this case. Here, the State had the burden of proving that defendantpurposely failed, without lawful excuse, to appear at the time and date scheduled for trial. In this connection, the jury was given an instruction concerning one of the essential elements of the crime--namely, the mental state of the defendant. The instruction imputed any knowledge or notice on the part of defendant's attorney regarding the trial date to the defendant. To prove that defendant had knowledge or notice of the trial date, the Statemerely had to prove that his attorney had similar knowledge. Defendant objected to the giving of this instruction on the basis that itwas, in effect, a conclusivepresumption.He contends upon thisappeal, citing Sandstrom v. Montana (19791, 442 U.S. 510, 99 S.Ct. 2450, 61L.Ed.2d 39, that the instruction had the effectof lowering the State's burden of proof, commenting on the evidence, and denying defendant a presumption of innocence. In considering these contentions, our firsttask is aimed atfocusing upon the nature of the language contained inthe challenged instruction. Sandstrom, 442 U.S. at514; UlsterCounty Court v. Allen (1979), 442 U.S. 140, 157-159, 99 S.Ct. 2213, 61L.Ed.2d 777. Paraphrasing the instruction, the jury was told here, inunequivocal terms, to "presume that a clienthas notice and knowledge if his attorney has notice and knowledge." The jury was not told that they had

a choice or could inferknowledge from a proven fact. The instruction did not state, for example: "You are instructed that, indetermining the guilt or innocence of the defendant, you may consider the facts that his attorney, Daniel Donovan, had notice and knowledge of the trial date and that Mr. Donovan had a conversation with defendant regarding such trialdate. From these facts, you may, but need not, infer that the defendant had knowledge and notice of the trialdate." Rather, the instruction gave no discretion to the jury. Its language was couched inthe form of a command. Once it

was determined thatdefendant's attorney had notice or knowledge of the trial date, the jury was permitted to form but one rational conclusion, As a conclusive ormandatory presumption, the instruction had the effectof relieving the State of itsburden toprove every element of the offense beyond a reasonable doubt. The inclusion of the instruction obviated the necessity for the jury to independently examine themental stateor the intentorpurpose of defendant. The giving of the instructionwas, therefore, error.

### If the instructionwas erroneous, the State argues that the error was harmless, because the jury could have found the requisite intent independentof the directions of the instruction. The State makes reference to other items of evidence, in particular, admissions of the defendant, from which intent or mental state could have been inferred. Admittedly,while itmay have been true that some jurors did not use the instruction to determine defendant's mental state and rather inferred it from other items of evidence introduced at trial,we cannot declare beyond a reasonable doubt that all of the jurors formulated defendant's mental state this way. State v. Hamilton (1980), 

### -Mont

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### 605 P.2d 1121, 1131, 37 St.Rep. 70, 81. Nor can we say that any other of the harmless error tests are particularly applicable to this case. There is, for example, no overwhelming evidence of defendant's intent. State v. Hamilton, supra. Accordingly,we find that the error was harmful and remand this case to the District Court for retrial. In this light,we address the remaining two issues raised by defendant. The first issue, that of whether the trial court erred in allowing Barbara Gregovich to testify regarding an admissionmade by defendant,will, of course, present no serious problem upon retrial. Where the admission of such testimony was objectionable here primarily because it caused surprise,defense counselwill have knowledge of such testimony on remand and the fact that itmay be used against him again. As a consequence, defendant will suffer no prejudice because of surprise. As for the second issue,whether the trial court erred in allowing Daniel Donovan to testify regarding a conversation he had with defendant the morning that defendant failedtoappear for trial, thatproblem isalso easily resolved. The testimony was objected tohere because it was allegedly hearsay. The Stateasked Donovan what he stated to the -- courtregarding the conversation he had with defendant. The State did not ask Donovan what defendant stated tohim regarding the trialdate and defendant's intentions to appear attrial. See, United Statesv. Freeman (9thCir. 1975), 519 F.2d 67; United States v. McLennan (9thCir. 1977), 563 F.2d 943. Properly framed, the question elicitsa response which can only be called an admission, clearly recognized as an exception tothe rules of evidence pertaining tohearsay. Rule 801(d)(2)

### ,Mont.R.Evid. Both counsel agreed during oral argument that the hearsay problems could have been solved by a properly framed question. Accordingly, 

### we remand this case to the DistrictCourt toproceed consistentwith the guidelines set out inthis opinion.

We concur: 

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