State v. Saale – 2009 MT 95

Saale was involved in a single car accident soon after leaving a Bar.  Passers by helped Salle out of her vehicle and noticed that she was highly intoxicated, but not seriously injured.  Soon after, Saale’s husband (Chris) arrived at the scene, place Saale in his vehicle and took her home.  When officers arrived on the scene, they learned of Saale’s departure and, en route to her home, contacted the on-call county attorney for advice on entering the home without a  warrant.  The officers were told they could enter the home without a warrant due to exigent circumstances.

Upon arriving at the home, officers were met by Chris who refused entry and placed himself in the doorway to block the trooper’s entry.  He was handcuffed and removed from the scene and Saale was removed from the residence and taken to the scene of her accident.  At the scene, she refused medical treatment, refused any field sobriety tests, and failed a portable breath test.  Saale’s Motion to Suppress the evidence obtained from the warrantless search of her home was denied in Justice Court and District Court on the basis of exigent circumstances. Saale appealed.

Exigent Circumstances are “those that would cause a reasonable person to believe that entry (or other prompt action) was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of a suspect, or some other consequence improperly frustrating legitimate law enforcement efforts.”  State v. Wakeford, 1998 MT 16, ¶ 24.  The State argued that the potential destruction of evidence (Saale’s level of intoxication), and the possibility that Saale had sustained serious injuries justified the warrantless entry.

SCOMONT rejected the “destruction of evidence” argument because a person’s blood alcohol content (BAC) “is not evidence until it exists in a state capable of analysis.” State v. Peplow, 2001 MT 253, ¶ 25.  ”[T]aking into account our holding in Peplow, it is illogical to conclude there was an exigent circumstance arising from the potential destruction of evidence, as there was no physical evidence in existence.  Without a sample previously extracted from the body, there was simply no physical evince to destroy.”  Saale, ¶ 11.

The Court likewise rejected the physical safety argument because the officers had already been informed that Saale did not appear to be seriously injured by witnesses at the scene.  Additionally, Justice Cotter noted that “if the ostensible exigency had been a true concern for her physical well-being, the officers presumably would have taken Saale directly to the emergency room rather than have her sit idly and unattended in the backseat of a patrol car for 45 minutes while they investigated the scene.”  Saale, ¶ 14.

The State failed to meet their heavy burden in demonstrating the existence of truly exigent circumstances justifying a warrantless entry into Saale’s home.

Summary:
Because neither Montana case law nor statutory law demonstrate a public policy against allowing physician aid in dying, the consent exception to homicide would apply to a physician who prescribed a lethal dose of medicine and provided it to a terminally ill patient who then took the medicine and ended his own life.

Discussion:
Baxter, four physicians, and Compassion & Choices brought an action in District Court challenging the constitutionality of the application of the Montana homicide statutes to physicians who provide aid in dying to terminally ill patients. Baxter wanted the option of ingesting a lethal dose of medication prescribed by his physician and self-administered at the time of Mr. Baxter’s own choosing. The District Court granted summary judgment in favor of Baxter holding that the Montana constitutional rights of individual privacy and human dignity encompass the right of a competent, terminally ill patient to die with dignity. The State appealed.

The Montana Supreme Court affirmed the grant of summary judgment, but vacated the District Court’s ruling on the constitutional issues – instead finding a statutory basis for the ruling.

Justice Leaphart wrote the opinion for the majority, joined by Justices Cotter, Warner, and Morris. Justice Warner also filed a concurring opinion encouraging the legislature to examine the issue. Justice Nelson wrote a special concurrence in which he joined the majority’s reasoning regarding the statutory basis for the decision, but argued that the Montana constitution also protected physician aid in dying. Justice Rice dissented and was joined by Hon. Joe D. Hegel (the District Court judge sitting for Chief Justice McGrath who had been involved with the case prior to joining the Court).

Despite the District Court’s reliance on the constitution, SCOMONT declined to address the constitutionality of the issue and instead found adequate statutory grounds for its decision.

Because suicide is not a crime under Montana law, the only person who might be prosecuted is the physician who prescribes a lethal dose of medication. MCA § 45-2-211(1) establishes consent as a defense to homicide stating that the “consent of the victim to conduct charged to constitute an offense or to the result thereof is a defense.” There are 4 statutory exceptions to this defense, codified at MCA § 45-2-211(2). Because the first 3 are fact based, the Court focused on the fourth exception: when the conduct or resulting harm is against public policy.

In State v. Makrill, 2008 MT 297, the only Montana case to address the public policy exception to consent, SCOMONT held that the consent of a victim is not a defense to the charge of aggravated assault. Mackrill, ¶ 33. However, in Baxter the Court clarified that the “against public policy” exception to consent applies to conduct that disrupts public peace and physically endangers others. In this case, the majority believes that “the act of a physician handing medicine to a terminally ill patient, and the patient’s subsequent peaceful and private act of taking the medicine, are not comparable to the violent, peace-breaching conduct that this Court and others have found to violate public policy.” Baxter, ¶ 21.

The Court went on to acknowledge that the “against public policy” exception is not limited to violent breaches of the peace, but held that nothing in Montana case law facts or analysis suggests that a patient’s private interaction with his physician, and subsequent decision regarding whether to take medication provided by a physician, violate public policy.

The majority next examined Montana statutes and review of the Montana Rights of the Terminally Ill Act and the homicide statute lead the Court to conclude that physician aid in dying is not against public policy.

A person commits the offense of deliberate homicide, under MCA § 45-5-102, if the person purposely or knowingly causes the death of another human being. Because the physician is only making the medication available, and not administering it, the statute does not apply and, therefore, does not signify public policy against physician aid in dying.

The Court also thoroughly examined the Montana Rights of the Terminally Ill Act and held that it confers on terminally ill patients a right to have their end of life wishes followed, even if it requires direct participation by a physician through withdrawing or withholding treatment. “Nothing in the statute indicates it is against public policy to honor those same wishes when the patient is conscious and able to vocalize and carry out the decision himself with self-administered medicine and no immediate or direct physician assistance.” Baxter, ¶ 30.

In sum, because neither Montana case law nor statutory law demonstrate a public policy against allowing physician aid in dying, the consent exception to homicide would apply to a physician who prescribed a lethal dose of medicine and provided it to a terminally ill patient who then took the medicine and ended his own life.

In a separate issue, SCOMONT also overturned the District Court’s award of attorney’s fees to Baxter because the basis of the decision was no longer constitutional, meaning that the private attorney general doctrine was now inapplicable.

State v. Shepard – 2010 MT 20

In 2003, Shepard was charged with multiple offenses including deliberate homicide, burglary, and aggravated kidnapping. She entered into a plea agreement and pled guilty to deliberate homicide and burglary in exchange for the State’s motion to dismiss the remaining charges. The agreement provided that the State was free to recommend any sentence permitted by law, excluding death and the State agreed to recommend that any sentence imposed for the burglary offense would be served concurrently with the sentence imposed for deliberate homicide. The State honored its commitments.

At sentencing, the District Court made Shepard ineligible for parole, which resulted in Shepard petitioning to the Sentence Review Division. At the sentence review hearing, the State appeared, contradicted the factual background given by Shepard and opposed her request that the parole restriction be removed from her sentence.

Over a year later, Shepard filed a motion to withdraw her guilty pleas, asserting that the State’s statements at the sentence review constituted breach of the plea agreement. The District Court denied the motion and Shepard appealed.

On appeal, the Montana Supreme Court initially addressed the issue of the proper standard of review, deciding that because a plea agreement is a contract and subject to contract law standards, State v. Hill, 2009 MT 137, ¶ 49, it is a question of law and reviewed de novo.

As to the merits of the appeal, SCOMONT ruled that although a plea agreement could be negotiated in such a way to restrict the State’s actions before the Sentence Review Division or otherwise impose continuing obligations on the State, the agreement at issue here did not. The Court ruled that “the plea agreement was drafted to unambiguously apply to the sentencing process before the District Court and that court’s disposition of the case. It did not contemplate later proceedings, and thus, the State did not violate an express provision of the plea agreement.” ¶ 14.

SCOMONT also noted that the State could have undermined, and therefore violated, the plea agreement by arguing for a different or harsher sentence before the Sentence Review Division. However, the Court believed that this was not the case here and affirmed the District Court.

Hamilton v. State – 2010 MT 25

In what I believe is his first written opinion since joining the Court, Justice Wheat, authored the majority opinion in State v. Hamilton. Here, Hamilton claimed ineffective assistance of counsel following his conviction for eight counts of incest. The District Court denied Hamilton’s petition, denied his request for an evidentiary hearing on the issue, and dismissed his claims for failure to make a prima facie showing of entitlement to relief and for failure to state a claim for relief. Hamilton appealed, challenging the District Court’s refusal to hold an evidentiary hearing and its dismissal of his petition.

A petition for post-conviction relief must show, by a preponderance of the evidence, that the facts justify the relief. The petition must identify all facts supporting the grounds for relief set forth in the petition and have attached affidavits, records, or other evidence establishing the existence of those facts. A court may dismiss a petition for post-conviction relief without holding an evidentiary hearing if the petition fails to satisfy this procedural threshold. Also, the District Court may dismiss a petition for post-conviction relief without ordering a response if the petition, files, and records conclusively show that the petitioner is not entitled to relief. Or, the court may order a response and, after reviewing the response, dismiss the petition as a matter of law for failure to state a claim for relief – or it may proceed to determine the issue.

Claims of inadequate assistance of counsel are examined under the two-prong test fromStrickland v. Washington, 466 U.S. 668 (1984). The defendant must show that counsel’s performance was deficient and that the deficient performance prejudiced the defense and deprived the defendant of a fair trial. The first prong is whether counsel’s conduct fell below an objective standard of reasonableness measured under prevailing professional norms and in light of the surrounding circumstances. There is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance and was based on sound trial strategy. The second prong requires the defendant to establish prejudice by demonstrating that, but for counsel’s errors, there is a reasonable probability that the result would have been the different.

Hamilton made five allegations of ineffective assistance of counsel, all five of which were dismissed by the District Court. After applying the above framework to each claim, SCOMONT affirmed the District Court’s decision. The Court concluded that Hamilton’s petition failed to show that the facts justified the relief, and that his ineffective assistance of counsel claims failed to overcome the presumption of competency.

State v. Cooper – 2010 MT 11

Cooper was arrested after a traffic stop in which she failed field sobriety tests and was cited for DUI. A motion to suppress evidence gathered after the traffic stop on the basis that the trooper who stopped her lacked particularized suspicion, was denied. Cooper appealed and SCOMONT sustained.

After pulling her over, the trooper told Cooper that the reason he had initiated the stop was because snow obstructed the view of her license plate. However, he testified to many other factors including that:

• he pickup truck did not come to a stop before entering the highway, but “abruptly” pulled out onto the highway in front of Kloster, forcing him to take evasive action to avoid a possible crash;
• Cooper crossed the fog line and performed a U-turn; and
• Cooper was driving incredibly slowly

SCOMOT ruled that “[the trooper’s] articulable facts included his observation of Cooper’s truck pulling into oncoming traffic, nearly causing a collision; Cooper leaving the parking lot of a bar hosting a special event known to serve alcohol; Cooper driving incredibly slow; and Cooper’s truck traveling over the fog line.” This justified a particularized suspicion and legitimized the stop making the evidence obtained admissible.

Justice Nelson concurred to note that the obscured license plate alone would not have justified sufficient particularized suspicion for detaining Cooper. Nelson argued that snow obscuring a plate is not sufficient to justify a traffic stop in Montana during the winter, arguing that reading MCA § 61-3-301(1)(a) in this fashion would produce an absurd result and, therefore, should be avoided. However, given the additional reasons for the stop, Nelson concurred.

State v. Hamilton – 2009 MT 235

Around 2002, then 28 year old Neufeld began having sexual intercourse with then 13 year old K.B.  Neufeld videotaped himself with K.B. and photographed the girl in sexual poses and performing sexual acts.  K.B.’s father discovered some of the photos, contacted the police, and Neufeld was arrested.  He was charged with sexual intercourse without consent in state District Court, and with sexual exploitation of children, receipt of child pornography, and possession of child pornography in federal court.  He pled guilty to the federal charges of sexual exploitation of children and possession of child pornography, and received a sentencing enhancement because the offense involved the commission of a sexual act on a minor.

After his federal conviction, Neufeld moved to dismiss the state charges based on § 46-11-504(1), MCA, which provides in pertinent part:

When conduct constitutes an offense within the jurisdiction of any state or federal court, a prosecution in any jurisdiction is a bar to a subsequent prosecution if:

(1) the first prosecution resulted in an acquittal or in a conviction and the subsequent prosecution is based on an offense arising out of the same transaction:

The majority ruled that “the prohibited conduct in this case [sexual exploitation of children] necessarily included sexual intercourse with a minor.”  Neufeld, ¶ 17.  And that “under the facts of this case the offenses of sexual exploitation of children and sexual intercourse without consent are equivalent.”  Id. at ¶ 17.

Justice Rice concurred, noting his belief that only the sentencing enhancement triggered the provisions of § 46-11-504, MCA, arguing that the federal offense of sexual exploitation of children did not necessarily include sexual intercourse.

Emanuel v. Great Falls School District – 2009 MT 185

In January 2002, Daniel Robbins (Robbins) turned in a school assignment containing his New Year’s Resolution List.  The list contained several violent items, including “[g]et a drivers license so I can do those horrible things people like to read about in the paper,” and “kill the tooth fairy.”  There were no allegations that the list contained no specific threats against non-fictional persons.  This resulted in a meeting with Robbins’, his mother, and the school counselor.  Because nothing was resolved at this first meeting, a subsequent meeting with held with Robbins’, his mother, the school principal and the associate principal.  The conclusion of this meeting was that although the list was inappropriate and should be taken seriously, this was a teenage attempt at black humor.

Approximately 17 months later, Robbins purposely ran over Patricia Emanuel as she was jogging past Robbins’ high school.  The passenger in Robbins’ vehicle told police that Robbins stated that he planned to run her over and engage in necrophilia with her corpse.

Emanuel filed suit against GFSD (Robbins’ school), alleging that the school was negligent in handling Robbins and the resolution list.  The District Court granted summary judgement for GFSD, finding that there was no special relationship between GFSD and Emanuel, therefore GFSD was under no duty to protect Emanuel from Robbins.

SCOMONT avoided the issue of whether a special relationship is required in order to give rise to the duty of ordinary care to protect others against harm from third persons by finding that Emanuel was not a foreseeable plaintiff.  “If a reasonably prudent defendant can foresee neither any danger of direct injury nor any risk from an intervening cause he is simply not negligent.”  Prindel v. Ravalli County, 2006 MT 62, ¶ 39.  SCOMONT concluded that GFSD need not have “foreseen that Robbins would deliberately run over a pedestrian, after school hours, off school grounds, nearly seventeen months after the disturbing New Year’s Resolution list was brought to its attention.”  Emanuel, ¶ 15.  “Therefore, the District Court did not err in concluding that, as a matter of law, GFSD owed no duty to Emanuel.”  Emanuel, ¶ 16.