# CENAL

IN THE SUPREME COURT OF THE STATE OF MONTANA OP 22-0463

GARRYDOUGLAS SEAMAN,

Petitioner,

v. DARREN SHORT, Lincoln County Sheriff,

Respondent. la 

### OCT 0 4 2022

:risiVOrld
s >r Court

NJItrIP , tartM ORDER

Garry Douglas Seaman, via counsel, has petitioned for writ of habeas corpus, alleging that his bail is excessive and violates Article II, Section 22, of the Montana Constitution. Seaman is currently held in the Lincoln County Detention Center and awaits trial on charges ofdeliberate homicide, attempted deliberate homicide and tampering with
or fabricating physical evidence in the Nineteenth Judicial District Court, Lincoln County, in that court's Cause No. DC-22-44. Seaman's bail was initially set at $25 million on May 31, 2022,by Hon. MatthewJ. Cuffe. Seaman was arraigned on June 6, 2022, and pled not guilty to all charges. On June 7, 2022, Seaman requested substitution. Hon. Jason Marks ultimately assumedjurisdiction over the matter and presided over a bail reduction hearing on August 5, 2022. Seaman argued that his bail should be set at $1 million and that the court could impose conditions including a GPS monitor. The State opposed reduction ofbail and it called H.G., the alleged victim ofthe attempted deliberate homicide charge, as a witness. After hearing, Judge Marks ruled that Seaman's bail would remain set at $25 million. Seaman then filed the present petition with this Court. He argues that a habeas writ should issue because the District Court has imposed excessive bail. Judge Marks and the State have responded in opposition to Seaman's petition. 10/04/2022

Case Number: OP 22-0463Habeas corpus is available to review a decision ofa district court on a motion to set

bail. Miller v. Eleventh JudicialDist. Court, 2007MT 56, 336 Mont. 207, 154 P.3d 1186, ¶3. Apetition forwrit ofhabeas corpus is an original, independentproceeding filed inthis Court pursuant to Title 46, Chapter 22, MCA, and we consider it the same as we consider other original proceedings cOmmenced in this Court under M. R. App. P. 14. Miller, ¶5. The burden in a habeas proceeding is upon the petitioner to convince the Court that a writ should be issued. Miller, ¶ 14'(citations omitted). Under §§ 46-9-106, -108, and-111, MCA, a person who is incarcerated pretrial on
a bailable offense shall be released pending trial ifreasonable conditions can be imposed that protect the community or any particular individual, and these conditions may include
a reasonable bail. Miller, 'If 8. "A defendant is presumed innocent prior to a verdict, and he must be released absent a finding by the trial court that he will likely flee ifbail is not imposed." Miller, ¶8. Seaman asserts that he is being held on a bailable offense as the State did not file timelynoticethat itintendsto seekthe deathpenalty. Art.II, §21,Mont. Const. He argues that he is entitled to habeas relief because $25 million is unconstitutionally excessive. Seaman asserts that he is facing two separate civil lawsuits and in,one ofthem, a guardian for H.G. sought and obtained the appointment ofa receiver who controls Seaman's assets. Hetherefore claimsthat, even ifhe finds a surety companytopost hisbail,the receivership "has created an impediment"to his ability to post bail. Under § 46-9-301, MCA: In all cases in which bail is determined to be necessary, bail must,be reasonable in amount and the amount must be: (1) sufficient to ensure the presence ofthe defendant in a pending criminal proceeding; (2) sufficient to ensure compliance with the conditions set forth in the bail; (3) sufficient to protect any person from bodily injury;
2(4) not oppressive;

(5) commensurate with the nature ofthe offense charged; (6) considerate ofthe financial ability ofthe accused; (7) considerate ofthe defendant's prior record; (8) considerate of the length of time the defendant has resided in the community and ofthe defendant's ties to the community; (9) considerate ofthe defendant's family relationships and ties; (10) considerate ofthe defendant'smentalhealth statusand ofthe defendant's participation in a mental health treatment program; (11) considerate ofthe defendant's employment status; and (12) sufficient to include the charge imposed in 46-18-236. Seaman arguesthat theDistrict Court failedto consider all twelve factorsin his case and disproportionately focused on subsection (6), consideration ofhis financial ability. In response, Judge Marks asserts that H.G. offered credible, uncontroverted testimony that we describe below as necessary. Judge Marks further notes that Seaman has a motion to dissolve the receivership pending. Both the State and Judge Marks further assert that the court properly considered all of the factors found in § 46-9-301, MCA, and set bail at $25 million which the court determined was reasonable becuse "a high likelihood exists that Mr. Seaman will flee if bail is not imposed." Judge Marks denies Seaman's assertion that the District Court exclusively relied on § 46-9-301(3), MCA ("sufficient to protect any person from bodily injury"), and § 46-9-301(6), MCA ("considerate ofthe financial ability ofthe accused"), but rather weighed each ofthe twelve factors.

3JudgeMarks sets forth his weighing ofeach factor in his response, whichwe do not

findnecessarytorepeat at length. However,webrieflynotethat ourreviewindicatesJudge Marks relies on sufficient evidence in support ofthe weight he assigned each factor. Ofparticular relevance to his determination that $25 million bail is appropriate in this case, the District Court concluded that without sufficient bail Seaman is likely to flee thejurisdiction. At the bail reduction hearing, H.G. testified, uncontroverted, that Seaman prepared and stashed several "bug out bags"prior to his arrest that were packedwith guns, rnoney, and other essential items so that, ifnecessary, Seaman could "be ready to run." Judge Marks notes that in this case, Seaman is "literally a flight risk: he owns an airplane and is capable of operating it." He further notes that the seriousness ofthe charges and potential length ofincarceration Seaman facesincentivizes any inclinationto flee. Because he deterrnined that Seaman has both the means and motive to flee, he weighed this factor "heavily" in setting a high bail. Similarly, the court heavily weighed § 4 ) 6-9-301(3), MCA, because Seaman stands accused of stalking H.G. to a secluded campsite where he shot and killed her companion and then "shot H.G. with the same shotgun five times and left her for dead." At the bail reduction hearing, H.G.testifiedthat she is "terrified"ofSeaman and,that she is convinced that sheandher familywouldbeingrave dangerifhewasreleasedfromcustody,as Seaman "has nothing to lose." H.G. further testified that she believes Seaman has already formulated aplanto kill her andpossiblyher family ifhe gets the opportunityto do so, and that she believes that she and her family will be forced to flee ifhe is released. Judge Marks further argues that the $25 million amount is not oppressive in this instance, as § 46-9-301(4), MCA, requires, as the evidence indicates that Seaman's assets that the receiver has thus far taken control oftotal at least $12 million. The State points,to H.G.'s unrefuted testimony as to Seaman's extensive assets, including over 30 pieces of real estate, some of which are valued in excess of $1 million, as well as hundreds of thousands ofdollars in cash and gold, "hundreds"offirearms, and a fleet ofvaluable motor
4vehicles. The State points out that Seaman has not asserted that he cannot post bail, but

only that certain barriers, such as the receiver, may impede his ability to post bail. A district court has the discretion to grant or deny release and bail as well to set conditions. Graffiv. Mont. Fourth JudicialDist. Ct., 2021 MT 201, ¶ 11, 405 Mont. 192, 492 P.3d 1213. In setting bail, Montana courts are constrained to the factors enumerated in § 46-9-301, MCA, and within those restrictions the amount is left to the trial court's sound discretion and will be upheld if reasonable. Grafft, 

## ¶ 14 (quotation and citation omitted). In this instance, Seaman has not proven that the District Court erred in concluding that bail was necessary, and that $25 million was reasonable in amount under these facts,
or that the District Court failed to properly consider all factors under § 46-9-301, MCA. Seaman devotes the majority ofhis petition to discussing the amount ofbail set for other defendants facing charges Seaman contends are comparable to his own with no regard for those defendants' individual circumstances, including financial ability. While § 46-9- 301(5), MCA, requires that the bail amount be commensurate with the offense charged,
none ofthe statutory factors provide'for a comparison ofthe challenged amount with the bail set idother cases; sincewe are constrained to the factors enumerated inthe statute, the bail amount set for other defendants in unrelated matters is wholly irrelevant here. Thus Seaman has not demonstrated that he is illegally incarcerated. Section 46-22-101(1),

r MCA. IT IS THEREFORE ORDERED that Seaman's Petition for Writ ofHabeas Corpus is DENIED and DISMISSED. The Clerk ofthe Supreme Court is directed to provide a copy ofthis Order to: the Honorable Jason Marks, Nineteenth Judicial District Court, Lincoln County, under Cause No.DC-22-47;theAttorney,General;to counsel for the Department ofCorrections; and to Petitioner.ChiefJustice



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6 DATED this 2--

) day ofOctober, 2022.


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