Big Sky Blawg

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.

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 from Strickland 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.

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, theoretically, 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.

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.

The defendant was ordered by the District Court to make restitution payments to the DOC (who would then make disbursements to her victims).  Instead, she made payments to one of her victims, who did not share with the other victims.  SCOMONT held that because Striplin made her payments to a victim instead of the DOC as ordered by the judge, it was not an abuse of discretion for the District Court to revoke her suspended sentence for failure to pay restitution.

The District Court, after revoking Striplin’s suspended sentences, sentenced her to five years with the DOC on each count, with all five years suspended.  The court also reimposed all the terms and conditions of her prior sentence except the obligation to pay restitution.  Instead, the court found Striplin did not have the ability to pay so (as an additional count) sentenced her to thirty days in the county detention center.  SCOMONT ruled that because the District Court revoked Striplin’s suspended sentence under § 46-18-203(7)(a)(iii), MCA, the additional condition requiring thirty days in the detention center was an additional, more burdensome, condition that the court had no authority to impose.

Download State v. Striplin

On appeal, Glick argued that he should have been allowed access to a Presentence Investigation (PSI) report concerning a prosecution witness.  The District Court Judge excluded the report on the basis of an in camera review because she found no references to specific instances of truthfulness or untruthfulness that would be relevant pursuant to Montana Rule of Evidence 608(b).  Glick’s assertion was that this violated his constitutional right to due process, to present a complete defense, and to confront witnesses.

SCOMONT held, under Montana law, PSI reports must be part of the court record but may not be opened for public inspection.  The correct process is to have confidential state agency records reviewed in camera by the trial court to determine whether they contain information that is material to the defense.  The District Court did so in this case, and its denial of Glick’s motion for access to the PSI report was not error.

The Court also denied Glick’s claim that he was denied effective assistance of counsel based on an attorney conflict of ineterest. 

Download State v. Glick

When the annual State certification of a breathalyzer is offered into evidence and the author of the report is not present as a witness, the prosecution must have complied with M. R. Evid. 803(6) as part of the foundation for admitting the alcohol concentration breath test results into evidence.

M. R. Evid. 803(6) provides that written reports of the “state crime laboratory” are an exception to the rule excluding hearsay evidence, but only

when the state has notified the court and opposing parties in writing of its intention to offer such report or reports in evidence at trial in sufficient time for the party not offering the report or reports (1) to obtain the depositions before trial of the person or persons responsible for compiling such reports, or (2) to subpoena the attendance of said persons at trial.

The notice requirement of the Rule is self-executing and does not depend on motion, demand, or objection of the defendant.

Download State v. White

A defendant’s sentence may be enhanced under the Persistent Felony Offender Statute when the second felony was committed before conviction of the first.  Even if the defendant had no convictions at the time she committed her second felony, she may still be sentenced as a PFO.  SCOMONT ruled that this was the clear precedent of State v. Hamm, 250 Mont. 123 (1991), and State v. Williamson, 218 Mont. 242 (1985), and declined to overturn those cases as “manifestly wrong.”

Download State v. Anderson