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: 1 8 

FF~ 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. Trial was 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 intercourse without consent. After 

pleading not guilty to the crimes, defendant was released on 

his own recognizance under the condition that he appear for 

trial on November 13, 1978, at 9:30 a.m. Defendant, however, 

failed to appear for trial on the date and hour scheduled. 

Defendant was then charged on November 13, 1978, with the 

crime of bail-jumping, a felony, pursuant to section 45-7-308, 

MCA. According to that statute, a person commits bailjumping 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 trial was 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 9:30.11 
Donovan, who was defendant's attorney on the original charges, 

testified that he had made certain statements to the court 

on November 13, 1978, about defendant's lateness in appearing for trial. Those statements related to a conversation 

Donovan had with defendant that morning. Donovan testified: 

"I told the judge I had received a phone call at 

approximately ten minutes to nine that morning 

from Mr. Blackbird, and he had asked me, I believe, when the trial was. I told him it was 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 that he would try to show up for 

trial. And the reason I told this to the Judge 

was I wanted the Judge to wait an additional 

period of time before the Judge was going to 

issue a warrant for his arrest and put him back 

in jail." 

Prior to the trial, the prosecution and defense counsel 

entered into an agreement captioned "Discovery." The agreement provided that the prosecution would produce for defendant, without the necessity of a court order, all materials 

that were discoverable. The agreement then listed materials 

which had been supplied as of the date of the document. 

Among the items, Item No. 3 indicated that no verbal or 

written statements of defendant had been furnished. Defendant contends that the agreement was, in effect, a stipulation entered into between him and the prosecution that the 

State would not use any verbal or written statements of 

defendant at trial. In line with this contention, defendant 

objected in particular to the 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 to the court 

which imputed Donovan's knowledge of the trial date to 

defendant. Over objection of defense counsel, the court 

gave the instruction which stated: 
"Notice to attorney is notice to client employing him, and knowledge of attorney is knowledge 

of his client." 

The jury found defendant guilty of the crime of bailjumping and, on May 7, 1979, defendant was 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 determinative of the 

result in this case. Here, the State had the burden of 

proving that defendant purposely 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 

State merely had to prove that his attorney had similar 

knowledge. 

Defendant objected to the giving of this instruction on 

the basis that it was, in effect, a conclusive presumption. 
He contends upon this appeal, citing Sandstrom v. Montana 

(19791, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39, that the 

instruction had the effect of lowering the State's burden of 

proof, commenting on the evidence, and denying defendant a 

presumption of innocence. 

In considering these contentions, our first task is 

aimed at focusing upon the nature of the language contained 

in the challenged instruction. Sandstrom, 442 U.S. at 514; 

Ulster County Court v. Allen (1979), 442 U.S. 140, 157-159, 99 

S.Ct. 2213, 61 L.Ed.2d 777. Paraphrasing the instruction, 

the jury was told here, in unequivocal terms, to "presume 

that a client has notice and knowledge if his attorney has 

notice and knowledge." The jury was not told that they had 

a choice or could infer knowledge from a proven fact. The 

instruction did not state, for example: 

"You are instructed that, in determining 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 trial date. From these facts, you 

may, but need not, infer that the defendant had 

knowledge and notice of the trial date." 

Rather, the instruction gave no discretion to the jury. 

Its language was couched in the form of a command. Once it 

was determined that defendant's attorney had notice or 

knowledge of the trial date, the jury was permitted to form 

but one rational conclusion, As a conclusive or mandatory 

presumption, the instruction had the effect of relieving the 

State of its burden to prove every element of the offense 

beyond a reasonable doubt. The inclusion of the instruction 

obviated the necessity for the jury to independently examine 

the mental state or the intent or purpose of defendant. The 

giving of the instruction was, therefore, error. 
If the instruction was erroneous, the State argues that 

the error was harmless, because the jury could have found 

the requisite intent independent of 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 it may 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 . I 

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 admission made 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 counsel will have knowledge of such testimony on remand and the fact that it may 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 failed 
to appear for trial, that problem is also easily resolved. 

The testimony was objected to here because it was allegedly 

hearsay. The State asked Donovan what he stated -- to the 

court regarding the conversation he had with defendant. The 

State did not ask Donovan what defendant stated to him 

regarding the trial date and defendant's intentions to 

appear at trial. See, United States v. Freeman (9th Cir. 

1975), 519 F.2d 67; United States v. McLennan (9th Cir. 1977), 

563 F.2d 943. Properly framed, the question elicits a 

response which can only be called an admission, clearly 

recognized as an exception to the rules of evidence pertaining to hearsay. 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 District Court 

to proceed consistent with the guidelines set out in this 

opinion. 

We concur: I