No. 12420 INTHE SUPREME COURT OF THE STATE OF MONTANA 1973

STATE OF 

### MONTANA, Plaintiff and Appellant,

-VS

# -

., 1 ,c

## t; :,i

[, GLEN-FETTERS and STEVE LEAN, Defendants and Respondents.

Appeal from: District Court of the Second Judicial District, Honorable John B, McClernan, Judge presidi.ng, Counsel of Record: For Appellant: Hon. Robert L. Woodahl, Attorney General, Helena,

Montana. Lawrence Stimatz, County Attorney, Butte, Montana. Brian Tierney argued, Butte, Montana. For Respondents: Connors and Brolin, Anaconda, Nantana

# . Joseph C. Connors argued, Anaconda, Montana. William Brolin argued, Anaconda, Montana.

Submitted: April 25, 1973

:

## MAY151973 

## MAY1 

## 51973 Filed:Mr, JusticeWesley Castles delivered the Opinion of the Court.

This is

### an appealby the Stateof Montana from an order of the district court of SilverBow County granting defendants' motion to suppress evidence ina criminal case. Two defendants, Steve Lean and Allen Fetters, were cha.rged inthat court by Information in four counts: interference with railroad property; interference with railroad property caustng death; murder; and malicious destruction of property. The charges were based upon the affidavit of the county attorney of SilverBOWCounty which stated in part: "On Yarch 28, 1972, atapproximately 8:30 o'clock P,M,, a runaway switch engine from the Butte Concentrator, property of The Anaconda Company, smashed into the rear of a Butte, Anaconda & Pacific Railway ore train in the Rocker Yards, approximately six miles west af the Concentrator which 

### is located in East Butte. Two Eutte, Anaconda & Pacific employees, namely, Jack Weist and Vern Johnson were on the ore train atthat time. Mr, Weist was killed instantly by the crash and Mr. Johnson suffered a broken leg when being thrown from the caboose which was shattered by the collision. "~t approximately 8:00 P,M. on March 28, 1972, one JimHodges, engineer on the switch engine, and the three crewmen set thebrakes, pulled the power and reverse leverwas disengaged and laj-dupon the top of the controlbox in the Concentrator Yard, The group went toeat their lunch and the facts indicate the engine was coupled tothree acid carswith full airconnection to the cars, At approximately 8:05 P.M., the enginewas seen leaving the Concentrator Yard and two men were spotted in the engine by one James Lawrence, an employee of the Concentrator,

IrTwo employees were dispatched from the Concentrator area to look for any signs of the engine that had just left and atapproximately 8:10 P.M. a car drivenby Defendant Alan Fetters and registered to the Defendant Alan Fetterswas seen parked on the south side of the Concentrator on 

### a sideroad. The carwas positively identified as ~etters' from a check with registration through the City of Butte Police Department, The facts further substantiate that Steve Lean, the CoDefendant herein, reported off work and Fetters did not show up forwork on the afternoon shift, Both Defendants were familiarwith and had driven the engine inquestion on numerous occasions as their employment required. Both Defendants were drinking in Butte taverns for approximately ten to twelve hours prior to the engine leaving the yard, The facts further show that atapproximately 8:40 

### or 8~45, or thereabouts, the Cadillac carregistered toFetterswas not at the same place when the employees returned from their search for theengine, Witnesses 

### willfurther substantiate that both Defendants came in totheRace Track Bar and t ordered dri.nk.s and alsorequested salve' forFetters who had apparently burned hisbody. "The following day or so, Defendant Fetters was observed inthe shower atthe Concentrator with multi.ple bruises over hisbody, "The Sheriff's Officewas directed toarrest the Defendants inthe early morning hours of March 29, 1972, by Lawrence G. Stimatz, County Attorney for Silver Bow County, without warrant. Shoes and clothing were taken from the Defendants upon their arrest and statements were taken from the Defendants atthat time, afterbeing advised of their rights. The shoes bore descriptive heel marks and thesewere matched by photograph and personal observation by the sheriff's Deputies and by Security Officers forThe Anaconda Company, The tracks were located across the Continental Drive roadway from where the Fetters carwas located and went up the bank into the Concentrator and were tracked into the Concentrator area. Sawdust samples taken from the Concentrator switch enginewere matched with those found on the clothing of Defendant Fetters. 1r After leave to filethe Information was granted, defendants appeared atarraignment on August 14, 1972, and plead not guilty. The same day they filed a joint motion todismiss and motion to suppress evidence. That motion was asserted on grounds of whether the officershad probable cause to arrest defendants and whether the existingcircumstances required an immediate 

### arrest, Judge James D. Freebourn ordered themotions set forhearing on September 

### 8, 1972. Prior to that date, on August 24, a notice of intention torelyupon the defense of alibiwas filed, 

### On September 

### 8, 1972, the district court Register of Actions shows: "This day, defendants motion to dismiss and suppress evidence came on regularly forhearing. Defendants representedby counsel asbefore, State of Montana also represented by counsel asbefore. Thereupon, arguments on the part of both parties havingbeen heard and concluded the court grants defendants ten days toprepare a brief and Stateof Montana ten days toreply and defendant five days toreply thereafter, Thereupon, upon request of defendants counsel the case by the court temporarily postponed, II On the same day, the Register shows "Exhibits filed," Thereafter, on October 20, 1972, Judge John B. McCleman made

an order granting the motion to suppress allof the physical evidence and statements obtained from and after the arrests.Notice of appeal by the Statewas filed that same day, on October 20, 1972. Almost four months later, on February 13, 1973, defendants, respondents on appeal, filed a motion under section 95-2408(e), R,C,M, 1947, to enlarge the record on appeal. The affidavit of col~nsel supporting the motion recited that since the State

## 's appeal complained of the order suppressing the evidence contending that therewas a lack of a hearing or an improper hearing, the State's contentions were inaccurate and improper as towhat took place at thehearing. The statersattorney was not givennotice of the motion. The following day, on February 14, 1973, Judge McClernan without a hearing made an "ORDER ENLARGING RECORD Ol? APPEAL"; which stated: "STATEI~NTOF FACT Pursuant tothe above-named Defendants' Motion to Suppress Evidence filedherein, this Court fixed the 8th day of September, 1972, as the time forhearing this Motion. As a result, this Court announced atthe time and place set, that itwas ready toproceed tohear the Defendants' Motion, apprising both the Defendants and the Plaintiff that the Court Reporter was unavailable at that time, The necessity of 

### a reporter was disposed of with the common consent of the Parties and both Parties thereupon announced their readiness toproceed. The Defendants being theMovantS, proceeded tooffer 

### inevidence what purported tobe a transcript with attachments of the preliminary hearing in this matter. The Stateof Montana being present in the person and represented by J, Brian Tierney, Deputy County Attorney, Silver ROTJCounty, offered no objection tothe ~efendants' offer of evidence and, in fact, concurred inthe offer. This Court thereupon received the transcripts, with attachments, consisting of F.B.1, reports, a statement by James Hodges, and 

### a map drawn by George Evans. The Defendants thereupon rested intheir presentation sf evidence. This Court then gave the opportunity tothe State of Montana topresent whatever evidence, either oral or documentary, it desired, However, the State signified 

### its intention torely solelyupon the evidence offeredby the Defendants and the matter was deemed submitted, subject only to oral arguments and briefs from the Parties. The Court, afterconsidering the transcript with attachments as submitted by the Defendants, and arguments and briefs of the Parties, did thereupon on the 20th day of October, 1972, enter itsOrder finding for the Defendants and suppressing evj.dence as prayed for. It is from this Order that the State appeals, alleging that an impro er hearing was held upon which tobase an Order to Suppress.

# E We note that no record was made, no reporter was present. We note too, that the districtjudge's "Statement of Fact" 

### from~xeli~ory J£ the four aonth prior event indicates the State declined

tooffer evidence other than the record of the preliminary hearing and certain exhibits. Inbriefs and on oral argument, counsel for the State insists that no hearing was held nor was the State alIt~wedto introduce evidence. Here we have a classic casewhere there isno record of what other transpired /than the previously quoted Register of Acti.onsf minute +?ntry which on its face indicates that only oral arguments were aade and exhibits filed.

lI On appeal the State argues as its sole issue that no hearing" ,2s contemplated by section 95-1806, R.C.M. 1947, was in factheld arid the State isentitled to a proper hearing so that a record

32the proceedings can be made. We agree. While 

### we do not reach the merits of the reasonableness of :he lrrest and search, it isapparent from a reading of the charges ndde, the affidavit in support of those charges, and the record 

### .IF the preliminary hearing injustice court, thatjustice demands

s proper legalhearing be had. Section 95-1806, R.C.M. 1947, provides: "Motion to suppress evidence illegal]-y seized. (a) PI defendant aggrieved by an unlawful search and seizure may nove the court to suppress as evidence anything so obtained,

II(h) The motion shallbe made before trialunless fcr gaud cause sho~m the court shall otherwise direct, "(c) The defendant shall give at least ten (10) days' >aticeof such motion tothe attorney prosecuting or such ~ther time as the court may direct. The defendant shall :erve 

### a copy of the notice and motion upon the attorney ~rosecuting. "(d) The motion shallbe inwriting and state facts showing wherein the search and sef-zurewere unlawful. "(e) If the allegations of the motion state facts 9~hich iftrue show that the search and seizurewere unlawful the court shall conduct a hearing into the merits 

### )f the motion, "(f) The burden of proving that the search and seizure Nere unlawful. shall be on the defcndant.

fl(g) If the motion isgranted the evidence shallnot 5tl. ;iJmissible agatnst the mo~rantat any trial of the case. 1IThat- seciriorz L:orrtenpTatcs a judicial hezring 

### in a court of record where a record ismade. Respondents argue that section 95-1806, R.C,M, 1947, does not require a record be made of the hearing contemplated, While the section does not say in so many ~~ords that a record be made, after 

### all, it isa court of record, The only record made was that of the clerk of court in the heretoCore quoted minute entry, In State ex rel, Harrison v, District Court, 135 Mont. 365, 370, 340 P.2d 

### 544, this Court in discussing a nunc pro tunc order correcting a previ-ousorder said:

11

But, nevertheless, a certain formality of proceedings isrequired by our laws. 11 The Court, inorder that justice be done tocorrect a faultyproceeding, then went on toexpunge from the record what it termed: 1f;k J; the so-called findings of fact and conclusions of law

# * 9: J:." Since Harrison in 1959, the new Criminal Procedure Act has becdme effective. Section 95-2108, R.C.M. 1947, provides:

IIThe record on appeal. (a) Composition of the Record QnAppeal. The original papers and exhibits filed in !:he district court, the transcript of proceedings, if any, and a certified copy of the docket entries prepared iy the clerk of the district court shallconstitute the record on appeal in allcases.

'(c) Statement of the Evidence or Proceedings \&en No Report was Made orlaen the Transcript isUnavailable, ':f no report of the evidence or proceedings ata hearing or trialwas made, or if a transcript isunavailable, the appellant may, within ten (10) days from the heawingortwial or such time extended as the district court may for goon cause shorn permit, prepare a statement of the evidence or proceedings from the best available means, including his recollection. The statement shallbe served on the respondent, who may serve objections or propose amendments thereto withir, ten (1.0) days after service. Thereupon, the statement and any ob jectians or proposed amendments shallbe submitted for settlement and approval to the districtjtidge who handled the proceedings, and as settled and approved shallbe included by the clerk of the district court in the record on appeal, A judge may settle and ap- ?rove such records afterhe ceases tobe a judge. If such judge before the statement is settled and approved dies, is renoved from office, becomes disqualified, isabsent from che state, or refuses to settle and approve the statement, itshallbe settled and approved i.n such manner as the supreme court may direct."(d) Agreed Statement as the Record on Appeal. In lieu of the record on appeal asdefined in subsection (a) of this section, the parties may prepare and sign a statement of the case showing how the issues presented by the appeal arose and were decided in the district court and setting forth only so many of the facts averred and proved or sought tobe proved as are essential toa decision of the issue presented. If the statement conforms to the truth, it, together with such additions as the court may considernecessary fully topresent the issues raised by the appeal, shallbe approved by the district court and shall then be certified to the supreme court as the record on appeal and transmitted thereto by the clerk of the district court within the time provided by section 95-2409. Copies of the agreed statement may be filedas the appendix required by section 95-2418. "(e) Correction or Modification of the Record. If any difference arises as towhether the record truly discloses what occurred inthe district court, the difference shallbe submitted to and settledby that court and the record made toconform to the truth. If anything material toeither party 

### is omitted from therecord by error or accident or 

### is misstated therein, the parties by stipulation, or the district court, eitherbefore or after the record istransmitted to the supreme court, on proper suggestion or of 

### its otm initiative, may direct that the omission or misstatement be corrected, and ifnecessary that 

### a supplemental record be certified and transmitted. Allother questions as to the form and content of the record shallbe presented tothe supreme court." In the instant case, respondents contend that sinceno record

was made of the proceedings atthe hearing, and since appellant intended to make an issue of the factswith regard to that hearing, appellant should have proceeded under subsection (c) or (d) of section 95-2408. Respondents further state they did not know appellant contended that no "hearingt1as such was had until the state's brief was received. Atthat time respondents proceeded under subsection (e)

## , seetion 95-2408, claiming that appellant misstated the record. However, under subsection (a), section 95-2408, appellanthad before it the docket entries of the clerk., heretofore quoted, Appellant had not misstated that record. The motion toenlarge the record on appealwas made on February 13, The judge, without notice or hearing, msde his order the following day, Thus we have a disputewhich could and would have been resolved by a record. The trialcourt did not make any attempt to harmonize hisrecollectionwith the clerk of court's records nor with counsel for the State. That misunderstanding could occur is obvious.One paramount fact stands out, In view of the serious charges and the evidence inthepreliminary hearing, 

### a fu1.l hearing with

a record made is required in the interest of justice, What we said

### inHarrison 

### is stillpertinent: 

# "* +C 

# * nevertheless, a certain formality of proceedings 

### isrequired by our laws,If Accordingly, we set aside the order of February 

### 14, 1973; vacate the order suppressing the evidence entered on October 

### 20, 

### 1972; and, remand the proceedings to the district court for a judicial hearing on the motions heretofore discussed. 

### IT IS SO ORDERED.



### 4, -I<, (74.-ji,*L

,

, , , 

# - , 

## -4 -, , ,



# --" , 

## -

# ---..

# ------

# --- ~ssociake Justice


# / chief Justice