No. 80-160 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

STATE OF MONTANA, 

Plaintiff and Respondent, 

VS . 

ANTHONY RODRIGUEZ, 

Defendant and Appellant. 

Appeal from: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone. 

Honorable Diane G. Barz, Judge presiding. 

Counsel of Record: 

For Appellant: 

Moses Law Firm, Billings, Montana 

Michael Moses argued, Billings, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

John Maynard argued, Assistant Attorney General, Helena, 

Montana 

Harold F. Hanser, County Attorney, Billings, Montana 

Robert Waller argued, Deputy County Attorney, Billings, 

Montana 

Submitted: November 17, 1980 

Decided: April 20, 1981 

Filed: 
Mr. Justice Daniel J. Shea delivered the Opinion of the 

Court. 

Anthony Rodriguez appeals his conviction of deliberate 

homicide following a jury trial in the Yellowstone County 

District Court. He was sentenced to a term of 40 years 

imprisonment. 

The defendant challenges the transfer of his case from 

Youth Court to District Court, the sufficiency of the evidence 

to convict him, and the trial court instructions to the jury 

on the statutory mental states "purposely" and "knowingly." 

In addition, he faises several collateral issues relating to 

pretrial matters. We affirm. 

Early on the evening of July 14, 1979, Rodriguez, age 

17, entered Al's Tavern in Billings, Montana, accompanied by 

Tommy Garcia, age 27. Mike Lave, age 43, was seated at the 

bar next to the decedent Clarence Bickerstaff, age 53. 

According to the defendant, Lave pointed at him, told him to 

leave, and shoved him out the door. Garcia left with Rodriguez. 

Rodriguez returned a short time later with his uncle, 

Jimmy Joe Nava, Garcia, and a third man, Dean Hodges. The 

bartender, Joe Chavez, ordered Nava to get out of the bar 

because he was not welcome there. Chavez, assuming that 

Nava, Rodriguez and their companions would leave, turned his 

back on them while getting beer from the bar cooler. In 

that instant, a fight broke out between Nava and Lave. How 

the fight started and who started it is disputed. 

As Clarence Bickerstaff, who had been seated next to 

Mike Lave at the bar, started to get off his stool, the 

defendant grabbed him. The two fell to the floor. Bickerstaff 

wound up lying on his back on the floor. Rodriquez was on 

top of him with his knees straddling Bickerstaff's chest. 
Garcia and David Lave (Mike Lave's brother) testified that 

they saw defendant grab Bickerstaff by the hair and beat his 

head several times against the concrete floor. Defendant 

testified that he grabbed Bickerstaff to prevent him from 

attacking Nava (Rodriquez's uncle) who was fighting with 

Mike Lave, and that he and Bickerstaff "slipped" to the 

floor. He contends that he grabbed Bickerstaff on both 

sides of the collar and hit the back of the victim's head on 

the floor three times while Bickerstaff fought back with his 

fists. 

David Lave testified that he saw blood "gushin" from 

Bickerstaff's head. After the fight was over, Lave testified 

that Bickerstaff lay lifeless in a pool of blood on the 

floor. He was rushed to the hospital where he underwent 

surgery for epidural hematoma. Brain wave studies conducted 

by the hospital indicated cerebral death. The artificial 

respirator was disconnected and Bickerstaff died. At trial, 

Dr. Schwidde, M.D., testified that the victim had died from 

severe wounds to the head and the brain. 

On July 24, 1979, defendant voluntarily surrendered to 

the authorities. He was placed in jail, but was not taken 

before the magistrate until some 20 days later. In the 

meantime, on July 31, 1979, the State filed a motion with 

the District Court to transfer prosecution of the case from 

Youth Court to District Court. He appeared before the 

Justice of the Peace on August 13, 1979, the day thc District 

Court heard the State's transfer motion. Before this hearing, 

counsel for the defendant would not permit the defendant to 

be interviewed by a Youth Court Probation Officer or to be 

examined by a psychologist. On September 5, 1979, the District 

Court granted the motion and ordered defendant to be tried 
as an adult. 

The District Court set bail at $25,000, but specified, 

over defense objections, that at least $10,000 had to be in 

cash, 

We first consider whether the defendant's case was 

properly transferred from Youth Court to District Court. 

Upon advice of his lawyer, defendant refused to consent to 

an interview with either the Youth Court Probation Officer 

or with a psychologist. Therefore, the probation officer 

could not recommend for or against a transfer, and so 

advised the District Court. Defendant contends that in 

ordering the cause to be transferred, the District Court 

relied on the fact that defendant refused to be interviewed, 

and therefore, that the court placed the burden on him to 

justify the continuation of his case in Youth Court. Placing 

this burden on him, he claims, would force him to waive his 

right against self-incrimination. 

That is not the case here. The District Court did not, 

in ordering transfer of the case from Youth Court, rely on 

the fact that defendant refused the interviews. Rather, he 

based his determination on consideration of the statutory 

factors set out in section 41-5-206(1), MCA, which provides 

the framework for consideration of transfers from Youth 

Court to District Court. 

Under this statute, the Youth Court may transfer 

prosecution of a criminal homicide to District Court, if the 

youth is at least 16 years old. The statute also requires 

that the District Court must find reasonable grounds to 

believe: (1) that the youth committed the alleged act; (2) that 

the seriousness of the offense and protection of the community 

require treatment of the youth beyond that afforded by 
juvenile facilities; and (3) that the alleged offense was 

committed in an aggressive, violent, or premedicated manner. 

Section 41-5-206 (1) (d) , MCA. 

In addition to these requirements, section 41-5-206(2), 

MCA, directs the court, in reaching its decision to consider: 

(a) the sophistication and maturity of the youth; (b) the 

youth's past record and history; and (c) the prospects for 

adequate rehabilitation of the youth through the facilities 

at the disposal of the Youth Court and the prospect for 

adequate protection of the public. 

The District Court memorandum, which accompanied the 

transfer order, considered all of the factors in section 41- 

5-206 (1) (d) and (2) , MCA. The court considered each of the 

three factors in section 41-5-206(1)(d) and found that they 

mandated transfer to District Court. The court considered 

each of the factors in section 41-5-206(2). Nothing in the 

record indicates that the Youth Court transferred the defendant's 

case to District Court because the defendant refused to 

submit to interviews and examinations. To the contrary, the 

case was transferred based on evidence and considerations 

independent of defendant's refusal to be interviewed or 

examined. 

It is true that the Youth Court did not make specific 

findings of fact and perhaps that is the preferable practice. 

But it is sufficient if the record shows that each factor 

was seriously considered. In Re Stevenson (1975), 167 Mont. 

220, 538 P.2d 5. We will not assume, based on the bald 

allegation of the defendant, that his cause was transferred 

to District Court in retaliation for his refusal to cooperate 

with the Youth Court judge in consenting to the interviews. 

Once the Youth Court was refused access to the requested 
interviews, the only source of information he could rely on 

was that coming from other than the defendant. The record 

shows that in doing so, the trial court considered each of 

the factors set out in section 41-5-206. 

Defendant next contends that the evidence fails to show 

beyond a reasonable doubt that he caused the victim's death. 

Although he admits slamming the victim's head against the 

floor, he claims he only slammed the back of the victim's 

head against the floor, and therefore he could not have 

caused the victim's death because medical evidence established 

that the cause of death came about from blows to the side of 

the victim's head (the right eye and right ear). Defendant 

claims there is no direct evidence that he struck the victim 

on the side of his head or near his eye. Further, he argues 

that it would have been physically impossible for him to 

turn the victim's head so far to the side that the right eye 

and right ear were slammed against the floor. It follows, 

defendant insists, that he could not have killed the victim. 

He speculates that the fatal blow was inflicted by a flying 

pool stick or barstool. He concludes that at &he very least 

was 

there/a reasonable doubt that he inflicted the fatal blow. 

Defendant's view is based on his claim that the evidence 

shows only that he slammed the back of the victim's head 

against the floor. We need not confine ourselves to defendant's 

view of the evidence, however. Defendant admitted, and 

several witnesses testified, that he slammed the victim's 

head against the floor. The testimony of these witnesses was 

not qualified by a declaration that they saw defendant 

slamming only the back, and not the side, of the victim's 

head against the concrete floor. 

Nor can we take judicial notice, as defendant asks us 

to do, that it was physically impossible for him to inflict 

the lethal blow to the side of the victim's head. This 
claimed physical impossibility is not "within the common 

knowledge of us all" as the defendant insists. To take this 

kind of judicial notice, we would be required not only to 

possess anatomical expertise that we do not have, but also 

to invade the province of the jury to decide the facts based 

on the evidence before them. 

The evidence is sufficient to permit any rational trier 

of fact to find that defendant inflicted the deadly blow or 

blows. See, Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 

2781, 61 L.Ed.2d 560; State v. Duncan (1979), Mont . 

, 593 P.2d 1026, 1030, 36 St.Rep. 748. But the evidence 

was 

does not unequivocally establish that defendant/sitting on the 

victim's shoulders or was in any way preventing t.he 

victim's head from being twisted, as it was repeatedly slammed 

onto the concrete floor. The evidence presented a jury 

question to determine if the defendant had caused the victim's 

death. The jury found that he had. 

Defendant next argues that the statutory definitions of 

"purposely" and "knowingly" contained in the deliberate 

homicide statute are constitutionally deficient because 

they allow conviction of deliberate homicide on less than a 

specific intent to kill. We have previously considered and 

rejected that argument. See, State v. Coleman (19791, 

Mont . , 605 P.2d 1000, 1054-1056, cert.den., - U.S. 

, 100 S.Ct. 2952, 64 L.Ed.2d 831. The jury was given 

the instructions which we upheld in Coleman. We again 

uphold them today. 

Defendant also raises several issues on pretrial matters. 

He claims that he was not brought to a magistrate "without 

unnecessary delay" within the meaning of section 46-7-101, 

MCA; he claims that the District Court could not lawfully 
require that he post a $10,000 cash bond in addition to 

posting a $15,000 bond in another fashion; and he claims 

that he was denied due process because the trial court 

denied his request that he attend a preliminary hearing 

without handcuffs and.prison garb. Defendant has in no way 

shown that he was prejudiced at trial because of any claimed 

error, and for this reason alone, we reject his contentions. 

Section 46-7-101, X:A, expressly requires a defendant 

to be brought to a magistrate for an initial hearing "without 

unnecessary delay." Under sections 41-5-301, et seq., MCA, 

of the Youth Court Act, a juvenile need not be brought immediately 

before a judge for an initial appearance. Although defendant 

has shown us no prejudice because of this lapse of 20 days 

before his arraignment, we nonetheless strongly disapprove 

of any deliberate attempt by the State to avoid an arraignment 

"without unnecessary delay" by first arresting and holding a 

juvenile under the Youth Court Act for a sustained period of 

time, and then later attempting to prosecute the juvenile as 

an adult. We will, in the future, closely scrutinize these 

situations. If the defendant can show prejudice or a deliberate 

attempt by the prosecution to circumvent a speedy arraignment, 

we will not hesitate to fashion an appropriate remedy. See, 

for example, State v. Benbo (1977), 174 Mont. 252, 570 P.2d 

894. 

The defendant next argues that in ordering that his 

$25,000 bail bond be comprised of $15,003 by the 

normal surety method, and $10,000 -- in cash, the District 

Court violated 1972 Mont. Const, Art. 11, 5 21 and section 

46-9-401, MCA. The constitutional provision states that "[alll 

persons shall be bailable by sufficient sureties, . . ." 

The statute provides in pertinent part that a defendant may 
also furnish bail by real estate or by written undertaking. 

In application to defendant, that issue is now moot. In 

the future, we will closely scrutinize a requirement that 

a defendant post all or a substantial part of the bail in 

the form of cash. Rarely can a defendant obtain the cash 

and the danger is that a cash bail requirement will effectively prevent a person from being free on bail pending trial. 

A cash bail requirement may also effectively undermine 

the constitutional guarantee of bail by "sufficient sureties" 

and the statutory provision of section 46-9-102, MCA, that 

"[all1 persons shall be bailable before conviction . . ." 

This may well deprive a person of his liberty before trial 

and clash with the presumption of innocence, a cornerstone 

of our judicial system. 

Although trial courts have discretion in setting bail, 

as an appellate court we must have a way of determining why 

a certain form and amount of bail was set. That is particularly true in the case of cash bail. If a trial court 

believes that it must set a cash bail, we require that the 

court make specific findings to this effect, and that the 

findings be included in the record for purposes of review. 

It is the duty of the trial courts to give us a record to 

review. 

Defendant next claims that he is entitled to a new 

trial because the trial court refused his motion that he be 

permitted to attend his preliminary hearing without handcuffs 

and without prison clothes. But defendant has not shown 

that his right to a fair trial has been prejudiced. In fact, 

it was not until the hearing of this appeal that defendant 

first claimed prejudice--an undocumented claim that television 

cameramen had been present at the preliminary hearing and 
that pictures of the defendant in handcuffs and in jail 

clothing had been televised in the Billings area that 

night. But during questioning from the bench, defense 

counsel could not remember that potential jurors had even 

been questioned about their knowledge of the television 

broadcast. The record, therefore, fails to show any 

prejudice to defendant. 

Although we find no prejudice here, we remind the 

trial courts that they have a duty to avoid potential 

prejudice caused by the appearance of a defendant at trial 

or during preliminary appearances. We have opened up the 

courts to the news media, including picture taking and 

television cameramen. With this goes the chance that pretrial 

publicity, including pictures of a defendant in jail or 

prison clothes and handcuffed, can affect his right to a fair 

trial. The defendant is presumed innocent and it is demeaning 

to haul him into court in jail clothes and handcuffed. Surely 

other arrangements can be made when defendants who are still 

in custody must appear in court. This Court has seen pictures 

of defendants in jail clothes and in handcuffs displayed on 

the front pages of major newspapers in this state. We have 

given the news media the right to take the pictures, but we 

have not given the trial courts the right to require the 

defendant to appear in jail clothes and handcuffed. We urge 

the trial courts to stop this practice and to order 

the custodial officials to bring defendants into court dressed 

in their own clothes and not handcuffed. The inconveniences 

to the custodial officials cannot override the defendant's 

right to fair treatment when appearing in court. 

Defendant has not, however, shown how he was prejudiced 

at his trial because of the operation of these rules. We 
are too busy to enter into lengthy legal discussions 

when the defendant's right to a fair trial has not been 

infringed in any way. 

The judgment of the District Court is affirmed. 

We Concur: 

Chief Justice 

,' Justices