No. 80-160 INTHE SUPREME COURT OF THE STATE OF MONTANA 1980

STATE OF MONTANA, Plaintiff and Respondent,

VS

# . ANTHONY RODRIGUEZ, Defendant and Appellant.

Appeal from: DistrictCourt of the Thirteenth Judicial District, In and forthe 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 convictionof deliberate homicide following a jury trial in the Yellowstone County District Court. He was sentenced to a term of 40years 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 statutorymental states "purposely"and "knowingly." In addition, he faises several collateral issues relating to pretrialmatters. 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 leftwith Rodriguez. Rodriguez returned a short time later with his uncle, Jimmy JoeNava, 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 companionswould leave, turned his back on themwhile getting beer from the bar cooler. In that instant,

### a fightbroke out between Nava and Lave. How the fight started and who started it isdisputed. 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 (MikeLave'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'suncle)who was fightingwith 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 foughtback with his fists. David Lave testified that he sawblood "gushin" from Bickerstaff's head. After the fightwas 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 cerebraldeath. 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, defendantvoluntarily surrendered to the authorities. He was placed in jail,but was not taken before themagistrate 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 onAugust 13, 1979, the day thc District Court heard the State's transfer motion. Before this hearing, counsel for the defendantwould 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 themotion and ordered defendant to be triedas an adult. The District Court setbail 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 casewas properly transferred from Youth Court to DistrictCourt. 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 courtplaced 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 isnot the case here. The District Court did not, in ordering transfer of the case fromYouth 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 fromYouth 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 reasonablegrounds 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 theyouth beyond that afforded byjuvenile facilities; and (3) that the alleged offensewas committed in an aggressive,violent, or premedicatedmanner. 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 sophisticationand maturity of the youth; (b) the youth's past record and history; and (c)the prospects for adequaterehabilitation of the youth through the facilities at the disposal of the Youth Court and the prospect for adequateprotection of the public. The DistrictCourtmemorandum, 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 DistrictCourt. 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 DistrictCourtbecause the defendant refused to submit to interviews and examinations. To the contrary, the

casewas 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. InRe Stevenson (1975), 167Mont. 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 Courtwas refused access to the requestedinterviews, 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 claimshe only slammed the back of the victim's head against the floor,and thereforehe 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 (theright 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 itwould 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 fatalblow was inflicted by a flying pool stick or barstool. He concludes thatat &he very least was there/a reasonable doubt that he inflicted the fatalblow. Defendant's view isbased 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 thesewitnesses was not qualified by a declaration that they sawdefendant slamming only the back, and not the side,of the victim's head against the concrete floor. Nor canwe take judicialnotice, as defendant asks us to do, that itwas physically impossible forhim to inflict the lethal blow to the side of the victim's head. Thisclaimed 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 factsbased

on the evidencebefore 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, 61L.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 shouldersor was in any way preventing t.he victim's head frombeing twisted, as it was repeatedly slammed onto the concrete floor. The evidence presented a jury question to determine if the defendanthad 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 convictionof 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 jurywas 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 lawfullyrequire that he post a $10,000 cash bond in addition to posting a $15,000bond in another fashion; and he claims that he was denied dueprocess because the trial court denied his request that he attend a preliminary hearing without handcuffs and.prisongarb. 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 initialhearing "without unnecessary delay." Under sections 41-5-301, et seq., MCA, of the Youth CourtAct, a juvenile need notbe 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 attemptby the State to avoid an arraignment "withoutunnecessary delay"by first arresting and holding a juvenile under the Youth CourtAct 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 showprejudice or a deliberate attemptby the prosecution to circumvent a speedy arraignment,

we will not hesitate to fashionan appropriate remedy. See, for example, State v. Benbo (1977),174Mont. 252, 570 P.2d 894. The defendant next argues that in ordering that his $25,000bail bond be comprised of $15,003 by the normal suretymethod, and $10,000 

### -- in cash, the District Court violated 1972Mont. Const,Art. 11, 

### 5 21 and section 46-9-401,MCA. The constitutionalprovision states that "[alll persons shallbe bailable by sufficient sureties,

# ..." The statuteprovides in pertinent part that a defendantmayalso furnish bail by real estate or by written undertaking. In application to defendant, that issue is nowmoot. In the future,wewill closely scrutinize a requirement that

a defendantpost 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 requirementwill effectively prevent a person from being freeon bail pending trial. A cashbail requirementmay also effectively undermine the constitutionalguarantee of bail by "sufficient sureties" and the statutory provision of section 46-9-102,MCA, that "[all1 persons shallbe bailable before conviction

# . . ." Thismay well deprive a person of his liberty before trial and clash with the presumption of innocence,a cornerstone of our judicial system. Although trial courtshave discretion in setting bail,

as an appellate courtwe must have a way of determining why

a certain form and amount of bail was set. That isparticularly true in the case of cash bail. If a trial court believes that itmust set a cash bail, we require that the courtmake 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 defendanthas not shown that his right to a fair trial has been prejudiced. In fact, itwas 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 andthatpictures 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 thatpotential jurors had even been questioned about their knowledgeof 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 thatpretrial publicity, including pictures of a defendant in jail or prison clothes and handcuffed,can affect his right to a fair trial. The defendant ispresumed innocentand it is demeaning to haul him into court in jail clothes and handcuffed. Surely other arrangements canbe made when defendants who are still in custody must appear in court. This Courthas seen pictures of defendants in jail clothesand in handcuffs displayed on the frontpages of major newspapers in this state. We have given the newsmedia 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 thispractice 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. Defendanthas not, however, shown how he was prejudiced at his trial because of the operationof these rules. Wearetoobusy toenter intolengthy legaldiscussions when thedefendant's right toa fairtrial has notbeen infringed inanyway. The judgment of theDistrict Court is affirmed.

WeConcur:

Chief Justice

,' Justices