NO. 88-442 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1991 

STATE OF MONTANA, 

Plaintiff 

-vsARNOLD BRADY, SR., 

Defendant 

and 

and 

Respondent, 

Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Robert W. Holmstrom, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Arnold Brady, Sr., Deer Lodge, Montana; Pro Se. 

For Respondent: 

Hon. Marc Racicot, Attorney General, Helena, 

Montana; Deanne L. Sandholm, Assistant Attorney 

General, Helena, Montana; Dennis Paxinos, County 

Attorney, Billings, Montana; Russell C. Fagg, Deputy 

County Attorney, Billings, Montana. 

Filed: 

Submitted on Briefs : June 18, 1991 

Decided: July 23, 1991 

I 

' Clerk 
Chief Justice J. A. Turnage delivered the Opinion of the Court. 

Arnold Brady, Sr., was convicted of aggravated kidnapping, 

aggravated assault, felony assault, and resisting arrest in a jury 

trial in the District Court of the Thirteenth Judicial District, 

Yellowstone County. Appearing pro se, he appeals. We affirm. 

The issues are: 

1. Does the dangerous offender designation violate the Eighth 

Amendment because it is disproportionate to the severity of the 

crime? 

2. Was it error to charge Brady with aggravated kidnapping 

instead of domestic abuse? 

3. Was Brady denied due process because the court did not 

hold a pretrial evidentiary hearing on his claim of ineffective 

assistance of counsel? 

4. Did this Court deny Brady his right to counsel on appeal? 

5. Did the District Court err in not allowing a "failure to 

agreew instruction? 

6. Was Brady denied effective assistance of counsel? 

This case arose out of a December 3, 1987, beating of Francine 

~urgess. Brady testified at trial that he and Francine had been 

living together for "quite a while." On that morning, Francine had 

been driving around Billings, Montana, with two other persons. She 

testified that they had been drinking and had used some "speed." 

Brady was driving around in another car with several passengers. 
The car in which Francine was riding stopped near Colonial 

Apartments, where the driver got out to talk with a friend. 

According to Francine's testimony and the testimony of others 

present, Brady pulled up in his car, ran up behind the car in which 

Francine was still seated, jumped into the car, and began yelling 

at Francine, hitting her in the face, and pounding her head against 

the steering wheel. He dragged Francine from the car by her hair 

and threw her into the back seat of the car he had been driving. 

Brady continued to punch Francine as his brother drove to 

Coulson Park near the Yellowstone River. At the park, Brady 

dragged Francine from the car, punched her in the stomach, and 

dragged her down to the river's edge. 

The others in the car eventually joined Brady and Francine on 

the river bank. One of them testified at trial that as they sat 

joking and laughing, Brady occasionally hit Francine. He also 

kicked her in the mouth, dislodging two of her teeth. Finally, 

everyone except Brady and Francine left the park. 

Francine testified that she feared that Brady would kill her 

after the others left. However, a kayaker who had been passing by 

in the river seemed to notice them, and stayed in one spot watching 

Brady and Francine on the shore. 

One of the people who had been with Brady called a police 

detective after she left the park. She took him to find Brady and 
Francine, who were then walking together. The detective described 

Francine's condition at that time as follows: 

Well, the woman was severely beaten when I 

observed her. Her face was swelling to the 

point where it reminded me of a pumpkin with 

two slits in her eyes -- where the eyes should 

be, there were two slits. Her face was perfectly round and she had blood coming from her 

nose and from her mouth. 

Francine was taken by ambulance to a hospital, where she remained 

for several dzys. Although doctors initially believed she might 

have life-threatening intracranial bleeding, a CAT scan later 

revealed no broken bones or brain injury. She did lose two teeth, 

one of which had to be surgically extracted from where it had 

lodged in her gum. 

During his arrest, Brady punched one officer in the face and 

fought with others. He had abrasions on his knuckles, which were 

photographed, and about which he stated, "1 don't know how I did 

it, whether I did it hitting my girlfriend or fighting with the 

police. 

At trial, Brady denied beating Francine. He testified that 

he believed she had been beaten by someone else before he joined 

her that morning, and that she further injured herself in several 

falls due to her intoxicated condition. 

Bradyts family retained Gary Wilcox to represent him. Prior 

to trial, Brady complained to the District Court that he was 
receiving ineffective assistance of counsel from Wilcox. The court 

appointed Allen Beck as co-counsel for the defense. 

After a three-day jury trial, Brady was found guilty of aggravated kidnapping of and aggravated assault upon Francine, felony 

assault on the police officer he punched in the face, and resisting 

arrest. Brady was sentenced to forty years in prison and was 

designated a dangerous offender. 

Arthur Thompson was appointed to represent Brady on appeal. 

Brady filed a pro se motion in District Court asking that Thompson 

be removed as counsel and that Allen Beck be appointed as his 

counsel on appeal. That motion was denied. Subsequently, Brady 

requested that new counsel be appointed and this Court granted 

Thompson leave to withdraw. This Court ordered that new counsel 

be appointed to represent Brady on appeal. 

Vernon Woodward, Brady's new appellate counsel, concluded that 

there were no nonfrivolous issues which could be raised on appeal. 

He was granted leave to withdraw after he filed a brief and this 

Court reviewed the record pursuant to Anders v. California (1967), 

386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493. The Court has allowed 

Brady to proceed with the appeal pro se. 

I 

Does the dangerous offender designation violate the Eighth 

Amendment because it is disproportionate to the severity of the 

crime? 
Brady argues that his designation as a dangerous offender 

violates the prohibition against cruel and unusual punishment 

because it is grossly disproportionate to the severity of his 

crime. He states that 

[tlhe Defendant in this case was convicted of 

Kidnapping his wife after she had deliberately 

caused in the past the Defendant to be locked 

up on charges of domestic abuse and over the 

past two years that she and the Defendant were 

living together it had became a power struggle 

in which she used to control the Defendant and 

because of this principle of proportionate 

should apply because the constitutional language itself suggests no exception for imprisonment. 

A sentence which falls within the maximum authorized by 

statute is not cruel and unusual punishment unless the sentence is 

so greatly disproportionate to the crime that it shocks the conscience and outrages the moral sense of the community or of 

justice. State v. Bruns (1984), 213 Mont. 372, 377, 691 P.2d 817, 

820. The maximum penalty for aggravated kidnapping is 100 years, 

§ 45-5-303(2), MCA; for aggravated assault 20 years, 45-5- 

202(3), MCA; and for felony assault 10 years, 6 45-5-202(3), MCA. 

Bradyls sentence is well within the maximum allowed by law. Brady 

is informed by this Court that the criminality of his senseless and 

brutal beating of Francine is in no way lessened because she may 

have been his common-law wife. The District Court stated 

[tlhis kidnapping and assault was one of the 

most brutal this Court has had related before 

it, involving the merciless beating and kick- 
ing of a defenseless woman over a period of at 

least two hours. . . The Court believes that 

but for the presence of a kayaker, the defendant might very well have been before the 

Court for a homicide. . . The defendant has a 

previous felony conviction for a crime of 

violence against a woman involving throat 

cutting and stabbing. . . There is no place in 

civilized society for such behavior. 

Under 5 46-18-404, MCA, an offender may be designated nondangerous only if the sentencing court determines that the offender 

does not represent a substantial danger to other persons or 

society. We conclude that Bradyfs designation as a dangerous 

offender does not constitute error. 

Was it error to charge Brady with aggravated kidnapping 

instead of domestic abuse? 

Brady argues that he should have been prosecuted under the 

domestic abuse statute, 5 45-5-206, MCA, instead of the aggravated 

kidnapping statute, 5 45-5-303, MCA, because the domestic abuse 

statute is specifically tailored to the offense involved here. He 

cites Preiser v. Rodriguez (1973), 411U.S. 475, 93 S.Ct. 1827, 36 

L.Ed.2d 439, in support of the proposition that a more specific 

statute will be given precedence over a more general one. This 

claim was not raised at the District Court level, but in light of 

Bradyfs claim of ineffective assistance of counsel, we will treat 

it as if it was raised below. 
Preiser concerned application of the more specific rules for 

petitions for habeas corpus under the federal habeas corpus statute 

as opposed to the broad language of rules for petitions filed under 

42 U.S.C. 5 1983. That case is not applicable here. 

Aggravated kidnapping and domestic abuse each contain elements 

not common to the other offense. Aggravated kidnapping requires 

that the defendant restrained another person by secreting that 

person in a place of isolation or by using or threatening to use 

physical force. That element is not required in the offense of 

domestic abuse. Domestic abuse requires that the victim be a 

family member or household member. That element is not required 

for aggravated kidnapping. Where each offense contains an element 

not common to the other, a defendant may be charged with both. 

State v. Thornton (1985), 218 Mont. 317, 708 P.2d 273. Brady does 

not dispute that all of the elements of aggravated kidnapping were 

present in the case presented by the State. We further note that 

the jury was instructed on the lesser included offenses of kidnapping and misdemeanor unlawful restraint. We hold that there was no 

error in the State's choice to prosecute Brady for aggravated 

kidnapping and not to prosecute him for domestic abuse. 

I11 

Was Brady denied due process because the court did not hold 

a pretrial evidentiary hearing on his claim of ineffective assistance of counsel? 
Brady was granted the relief he requested in his pretrial 

claim of ineffective assistance of counsel. New counsel, Allen 

Beck, was appointed to represent him. It was up to Brady, not the 

court, to release the attorney who had been privately retained. 

We hold that there was no denial of due process as to this matter. 

IV 

Did this Court deny Brady his right to counsel on appeal? 

Brady argues that because the Court allows him to continue pro 

se on appeal after allowing his attorney to withdraw on the grounds 

that there are no meritorious appealable issues, the Court implies 

that there are arguable legal points for appeal. He states that 

new counsel should be appointed to help him raise those points. 

In Anders, the United States Supreme Court stated that, after 

granting the request to withdraw of appellate counsel for an 

indigent criminal defendant, the court may "dismiss the appeal 

insofar as federal requirements are concerned, or proceed to a 

decision on the merits, if state law so requires. Anders, 386 

U.S. at 744. It is not required that new counsel be appointed at 

this point. We hold that Brady has not been denied his right to 

counsel on appeal. 

v 

Did the District Court err in not allowing a "failure to 

agreew instruction? 
This issue has no merit because the trial court did give a 

"failure to agreeww instruction, at Instruction No. 28. 

VI 

Was Brady denied effective assistance of counsel? 

Brady argues that he received ineffective assistance of 

counsel because, at trial, his attorney failed to offer a jury 

instruction on the Itlesser included offense" of domestic abuse and 

to present evidence that he and Francine were married at common 

law, in support of such an instruction. But, as discussed above, 

domestic abuse is not a lesser included offense of aggravated 

kidnapping. Any testimony about a marital relationship between 

Brady and Francine was irrelevant to the crimes of which Brady was 

found guilty. 

Brady also claims that he was denied effective assistance of 

counsel because of the cumulative effect of errors including 

failure to file a motion to suppress his statement to a police 

officer about the marks on his hands and failure to object to the 

admission into evidence of a photograph of Francine. As to the 

failure to file a motion to suppress Brady's statement about the 

marks on his hands, there was overwhelming evidence against Brady 

even without this statement. Further, there is nothing to indicate 

that the statement was anything but voluntary or that it was given 

in response to any type of questioning. We conclude that counselws 
failure to object to the admission of the statement does not 

constitute ineffective assistance of counsel. 

The photo of Francine was taken several days after the 

incident, and showed her teeth and gums. Brady argues that the 

photo was taken at a time too remote and when conditions had 

materially changed. However, the treating doctor testified that, 

due to her injuries, Francine was unable to open her mouth for 

several days after the beating. In light of that testimony, we 

conclude that counsel did not render ineffective assistance by 

failing to make the objections for which Brady argues. 

Affirmed . 

We concur: