State v. Allies

MR. JUSTICE HARRISON

delivered the opinion of the Court.

Defendant, Guy John Allies, was charged with four counts of deliberate homicide and tried by a jury in the Thirteenth Judicial District Court for Yellowstone County. A verdict of guilty on four counts of the lesser included offenses of mitigated deliberate homicide was returned, and judgment of conviction was entered. Defendant appeals.

The crimes underlying the case came to the attention of the Billings police when, shortly before noon on November 11, 1976, the department received a call on its 911 emergency line. Over the phone, the police dispatcher heard screaming, a gunshot, and the sound of someone moving around. The call was traced and led police officers to a Billings residence where they found the bodies of Tom Tillotson; his wife, Terri; Mrs. Tillotson’s six year old daughter, Sherri; and, the couple’s two year old son, Montana. Each had been shot once in the head with a small caliber weapon. Mrs. Tillotson, who was found clutching the phone, had also been shot in the jaw.

Lt. Charles Hensley of the Billings police force immediately took charge of the investigation and continued to act in that capacity until the defendant was arrested. Assisting him, and figuring prominently in the case, were detectives Gordon Hirischi, George Bell and Jack Trimarco. Initially, the investigative team had little *102factual information. The adult victims were involved in area drug trafficking and large quantities of drugs, primarily marijuana and cocaine, were found at the scene of the crime. In addition, a light blue van had been parked in the neighborhood at the time the crimes were committed, and an unidentified man had been seen walking down the alley in back of the Tillotson house.

There was uncontradicted testimony that Lt. Hensley said there would be no drug-related arrests from any information received in connection with the homicide investigation. County Attorney Harold Hanser stated that no blanket immunity was given, and several officers said the leniency was limited to drug dealings with the victims.

During the investigation it was learned that the Tillotsons dealt in drugs with someone named John who drove a blue van. Defendant’s name was first mentioned to police on November 17. He was identified by Tom Tillotson’s business partner as a person whose connection with the Tillotsons was drug related.

On November 22, defendant voluntarily went to the Billings police station because he heard Lt. Hensley wanted to talk to him about the homicides. He was accompanied by Kathy Terry, a woman with whom he lived. Officer Hirischi met with defendant Allies and testified that, on this date, he did not view defendant as a suspect in the investigation. The conversation concerned defendant’s relationship with the Tillotsons. He was not given his Miranda rights but was told that he would not be arrested on drug charges which could be brought as a result of his cooperation in the homicide investigation. According to Officer Hirischi, the immunity covered only transactions with the Tillotsons.

On November 23, defendant voluntarily returned to the police station, again accompanied by Kathy Terry. They were interviewed by Officers Hirischi and Bell. Defendant was asked about his activities on November 10 and 11 and about a gun he owned. The officers noted that Allies had trouble answering questions, could not keep names or dates straight and was possibly on drugs. *103Arrangements were made for Allies to take a polygraph examination.

The polygraph test took place on November 30 and was conducted by police Lt. Jere Wamsley. The results were not admitted in evidence, but Wamsley’s report was available to the investigators. The test lasted approximately three hours, and defendant’s participation was voluntary. Defendant said he had been drinking prior to the test and was on some type of medication. Nevertheless, his reactions during the first part of the examination were normal. When confronted with a diagram of the Tillotson house, defendant became “squirrly,” and by the end of the interview he was “talking to the walls” and “completely out of it.”

Between 10:00 and 10:30 a.m. on December 9, Officers Bell and Trimarco confronted defendant near his house and asked him to accompany them to the police station. Defendant said he had not eaten breakfast but would be down once he had. He voluntarily presented himself at the station around 11:00 a.m. and was taken to a 12' X 12' room on the fourth floor. Here he was isolated and questioned for approximately four hours by Officers Bell and Trimarco. He had not had anything to eat but was under the influence of a large quantity of drugs — namely, methamphetamine, triavil and morphine. Before the session began, Bell read defendant his Miranda rights off a card and defendant signed a waiver printed on the back of the card. Officer Trimarco testified that defendant understood his rights and did not, at this or any other time during the session, ask for an attorney.

The officers attempted to employ a “Mutt and Jeff,” or a “mean cop — nice cop” method of interrogation during the first part of the session. One of the officers testified that he got a “little emotional” during the interview. Allies described the officers as generally rough, harsh and obnoxious. Both officers eventually told defendant that if he needed psychiatric help, it was available. He was also told something was wrong with the November 30 polygraph test and that the officers knew he was the murderer. He was accused of the crimes on several occasions, and the questioning *104concentrated on how he could live with himself after committing such brutal acts. In employing this “guilt assumption” method of interrogation, both officers freely concede they lied to defendant about what they knew of his connection to the homicides. They told him he had been positively identified and placed at the scene of the crime.

At first defendant’s story was consistent with what he had earlier told Detective Hirischi. He said he was working on his van at a rented garage when the murders occurred and had returned home about 1:00 or 2:00 p.m. on November 11. After about twenty minutes, Trimarco advised defendant that they did not believe his story, that he was a suspect in the homicides, that they knew he was the killer, and that he had positively been placed at the scene of the crime.

Defendant then changed his story. He stated that he had “blacked out” as he was changing oil and “came to” at a grocery store near the Tillotson house. He said he could not remember where he was at the time the crimes were committed. During the questioning, defendant was shown a portrait of the Tillotson children as well as a picture of Mrs. Tillotson as she was found on November 11. Defendant became upset and very depressed at the idea he could have committed such an act. He began to sob and threatened to commit suicide. He told the officers of his heavy drug use; that he believed the “Space Brothers” had landed in Wyoming and were exerting an evil influence over him; that he believed in witchcraft; and, that his ex-wife was a witch who had placed an evil curse on him.

Defendant says he was suffering from drug withdrawal and at about 3:00 p.m. asked for food to relieve his discomfort. The officers do not recall such a request. Allies said he thought he needed psychiatric help, and the officers expressed the opinion that his problem was medical or mental rather than criminal. Hospitalization at Warm Springs was mentioned.

During the interrogation, the officers told defendant they were not “too concerned with” drugs; rather, they were seeking infor*105mation or evidence pertinent to the Tillotson homicides. They said they would like to search his house and van for homicide evidence, and defendant executed the following consent to search:

“I, Guy John Allies,

GIVE Det. Bell and Trimarco WHO HAVE IDENTIFIED THEMSELVES AS POLICE OFFICER(S) FOR THE CITY OF BILLINGS, YELLOWSTONE COUNTY, DO HEREBY CONSENT TO HAVE THEM SEARCH MY HOME OR PROPERTY LOCATED AT 628 No. 14 1965 GMC Van Blue AND I HAVE ALSO BEEN ADVISED THAT I DO NOT HAVE TO GIVE THESE OFFICERS PERMISSION TO SEARCH MY HOME AND PROPERTY. I AM GIVING THIS CONSENT WITHOUT ANY THREATS OR PRESSURES OF ANY TYPE USED AGAINST ME.

“SIGNED: S/ Guy John Allies

“WITNESS: S/ G. Bell ADDRESS Billings Police Dept.

“WITNESS: SI John Trimarco ADDRESS B.P.D.”

Bell and Trimarco left defendant’s presence about 3:45 p.m. and were engaged in searching the house and van from about 4:00 to 7:30 p.m. Meanwhile, defendant was left in the fourth floor room. Because of his suicide threats, he was “watched” by Officers Ward and Millard. Allies testified that during this time he asked Ward when he would be allowed to see an attorney and that he was told to wait until Bell and Trimarco returned. Ward denies that this occurred.

During the afternoon, both Lt. Hensley and Harold Hanser, the Yellowstone County Attorney, had been posted on the progress of the interrogation. At approximately 4:15 p.m., Hanser contacted Dr. Bryce Hughett, a psychiatrist employed by the State. Hanser informed him there was a suspect in the Tillotson homicides who could not remember where he had been when the crimes were committed. He also said the suspect had indicated a desire to see a psychiatrist and asked Hughett to come down.

On arriving at the station, Hughett was further briefed on the situation by Hanser and Lt. Hensley. Hughett, who felt he was act*106ing as a fact finder or assistant to the investigator and as a doctor, talked with defendant from approximately 5:00 to 6:00 p.m. Hensley was present for the first 20 or 30 minutes of the interview. Allies was not given his Miranda rights at this time; nor was he informed there was no doctor-patient privilege cloaking the conversation. Hughett stated that Allies' was “calm — spoke quietly and willingly. He knew Lt. Hensley was an investigative officer and didn’t object to him remaining.” The major topics of discussion were defendant’s past, particularly his drug abuse problem, and the Tillotson homicides. During the interview Hughett suggested that sodium amytal, a hypnotic drug, might allow Allies to remember where he had been during his November 11 blackout.

By the time the interview concluded, Bell and Trimarco had returned from searching defendant’s house and van. They had found drugs at his house and a number of .22 caliber cartridges in the van. Bell, Trimarco and Hensley testified that on the evening of December 9, they did not have enough to hold defendant in connection with the homicides. Instead, he was charged with the possession of dangerous drugs and placed in the Yellowstone County jail. Hensley read Allies his Miranda rights upon arresting him and left instructions with the jailer to allow defendant to contact him at any time. Hensley stated the drug arrest was “part of” or a “tool” in the homicide investigation.

On Friday, December 10, Allies was taken to justice court for a preliminary hearing on the drug charge. He was informed of the charge against him, and his rights were slowly read to him by Justice of the Peace Pedro Hernandez. Defendant testified that he fully understood his rights at this time, and it is undisputed that he asked to see an attorney. He was informed that an attorney can be appointed only in District Court and was told that one would be appointed for him upon his appearance in that court. This is the last time the drug charge was mentioned. It was dropped after defendant was charged with the Tillotson homicides.

Later the same day, defendant was taken to Hanser’s office for an interview. He was not given his rights and had not yet seen an at*107torney. Hanser discussed the “truth serum” (sodium amytal) interview with him and told defendant he could rest and relax at the hospital. Defendant agreed to try the serum.

On Saturday, December 11, defendant was taken from the jail and placed in the Intensive Psychiatric Care Room of the psychiatric ward at Deaconess Hospital. Dr. Hughett talked with defendant at various times during the day. Allies testified that around 4:00 p.m. he asked Hughett when he would see an attorney and that Hughett told him to wait until Hanser arrived. Hughett denied that Allies made such an inquiry. Later that evening, after hearing strange noises from defendant’s room, a guard entered and found defendant crouched on the bed, sobbing and saying, “The Devil wants me to hurt you.” The guard controlled the situation by having Allies pray.

Very soon after the above incident, Dr. Hughett, Lt. Hensley and Harold Hanser arrived. The serum was injected, the lights were dimmed, and the interrogation began. Without being advised of his rights, defendant was asked questions by Hughett and Hensley and made several incriminating statements. He placed himself at the scene of the crime but said another person committed the murders. While under the drug, he was told his story was inconsistent.

The next day Allies was awakened around 10:00 a.m. He says he was sleepy and groggy. Expert testimony indicated that the residual effects of the “serum” would be like a mild hangover. Dr. Hughett spoke with defendant for 45 minutes about the serum experience and the Tillotson murders. Allies still denied being the murderer and claimed another man did it. Hughett told him the “serum” story was inconsistent and contradictory; that nobody would believe him; that to clear himself, he would have to help locate the other man and prove his existence; and that he himself could be the other man.

About 15 minutes after the above conversation, Lt. Hensley read defendant his rights and obtained a purported waiver. Allies then confessed to committing the homicides. He also said he had buried the murder weapon and described its location. Later the same day, *108he directed the police to the weapon, a .22 caliber derringer. After the pistol was unearthed, a thumbprint found thereon was positively identified as defendant’s. FBI ballistics tests confirmed that the pistol was the murder weapon.

Allies was charged with four counts of deliberate homicide on December 13 and was appointed an attorney with whom he consulted on the afternoon of that date. On December 23, defense counsel entered into a stipulation dismissing the drug charge. Defendant moved to suppress the confession and the evidence to which it led. After five days of testimony the trial court found and concluded that the confession was given voluntarily and therefore it, along with its fruits, was admissible.

The case proceeded to jury trial in Yellowstone County with the Honorable Nat Allen presiding. The jury returned verdicts of guilty on four counts of mitigated deliberate homicide. Defendant was sentenced to the maximum punishment possible: 40 years in the state prison on each count to run consecutively without possibility of parole.

From the denial of his various motions and the judgment of conviction, defendant appeals and raises the following issues:

1. SUPPRESSION. Whether the District Court properly denied defendant’s motion to suppress the confession and its fruits.

2. PHOTOGRAPHIC EVIDENCE. Whether the District Court erred in admitting certain photographic evidence.

3. SENTENCE PROCEDURE. Whether defendant’s sentence was properly imposed.

4. SPEEDY TRIAL. Whether defendant was denied his right to a speedy trial.

5. MENTAL DISEASE/DEFECT. Whether the statutory scheme relating to mental disease or defect is unconstitutional.

6. VENUE. Whether the District Court erred in not granting defendant’s motion for a change of venue.

7. BALLISTICS EXPERT. Whether the District Court erred in refusing to appoint a ballistics expert for defendant.

*1098. HUGHETTS TESTIMONY. Whether the District Court erred in allowing Dr. Hughett to testify regarding defendant’s mental capacity.

9. TRIAL JUDGE PREJUDICE. Whether the trial judge conducted himself so as to convey prejudice to the jury.

10. CUMULATIVE ERROR. Whether there is cumulative error requiring reversal.

SUPPRESSION

In spite of the fact that they are out of court statements seemingly subject to exclusion as hearsay, confessions are generally admissible against criminal defendants. McCormick, Evidence, 2d Ed., § 145 at 311. As recognized in Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, in-custody interrogations and confessions resulting therefrom are not, in and of themselves, barred; they “remain a proper element in law enforcement,” 384 U.S. at 478, 86 S.Ct. at 1630, 16 L.Ed.2d at 726, and “may play an important role in some convictions.” 384 U.S. at 481, 86 S.Ct. at 1631, 16 L.Ed.2d at 727.

However, the procurement of a confession must comport with the guarantee that an individual will not be compelled to incriminate himself (U.S.Const., Amend. V; 1972 Mont.Const., Art. II, § 25), and that he may not be convicted of a crime without due process of law (U.S.Const., Amend. XIV; 1972 Mont.Const., Art. II, § 17).

We noted above that confessions are generally admissible. However, “[t]he true test of admissibility is that the confession is made freely, voluntarily, and without compulsion of any sort.” Wilson v. United States (1896), 162 U.S. 613, 623, 16 S.Ct. 895, 899, 40 L.Ed. 1090, 1096. See also Bram v. United States (1897), 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568; State v. Lenon (1977), 174 Mont. 264, 570 P.2d 901; State v. Lucero (1968), 151 Mont. 531, 445 P.2d 731. Historically, involuntary confessions were excluded because they were felt to be untrustworthy. 3 Wigmore on Evidence, Chadbourn Revision, § 822. While this rationale may retain some vitality, it is no longer the sole reason for the exclusion of *110involuntary confessions. Spano v. New York (1959), 360 U.S. 315, 320, 79 S.Ct. 1202, 1205-06, 3 L.Ed.2d 1265, 1270. The use of an involuntary confession, whether it be true or false, vitiates a criminal conviction on the basis that it violates the guarantee against self-incrimination, Bram v. United States (1897), 168 U.S. 532, 542, 18 S.Ct. 183, 186, 42 L.Ed. 568, 573; Malloy v. Hogan (1964), 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653, as well as the right to due process of law, Blackburn v. Alabama (1960), 361 U.S. 199, 205, 80 S.Ct. 274, 279, 4 L.Ed.2d 242, 247.

As stated by the United States Supreme Court: “[T]he Fourteenth Amendment forbids ‘fundamental unfairness in the use of evidence whether true or false.’ ” Blackburn v. Alabama, 361 U.S. at 206, 80 S.Ct. at 280, 4 L.Ed.2d at 248.

“. . . In a line of decisions beginning in 1936 with Brown v. State of Mississippi [(1936)], 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682, and including cases by now too well known and too numerous to bear citation, [the Court] has established the principle that the Fourteenth Amendment is grievously breached when an involuntary confession is obtained by state officers and introduced into evidence in a criminal prosecution which culminates in a conviction.” Blackburn v. Alabama, 361 U.S. at 205, 80 S.Ct. at 279, 4 L.Ed.2d at 247.

The policy underlying the constitutional doctrine has been lucidly stated as follows:

“The abhorrence of society to the use of involuntary confessions does not turn alone on their inherent untrustworthiness. It also turns on the deep-rooted feeling that the police must obey the Jaw while enforcing the law; that in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves.” Spano v. New York, 360 U.S. at 320-321, 79 S.Ct. at 1205-1206, 3 L.Ed.2d at 1270. “. . . convictions following the admission into evidence of confessions which are involuntary, i.e., the product of coercion, either physical or psychological, cannot stand. This is so *111not because such confessions are unlikely to be true but because the methods used to extract them offend an underlying principle in the enforcement of our criminal law: that ours is an accusatorial and not an inquisitorial system — a system in which the State must establish guilt by evidence independently and freely secured and may not by coercion prove its charge against an accused out of his own mouth.” Rogers v. Richmond, 365 U.S. 534, at 540-41, 81 S.Ct. 735, at 739, 5 L.Ed.2d 760, at 766.

In reviewing suppression proceedings, we are governed by the following well settled principles:

“When a motion to suppress is presented to a trial court, its analysis of the evidence presented at the pretrial hearing must focus on whether impermissible procedures were followed by law enforcement authorities. The burden of proof of voluntariness is upon the State, and it is required to prove voluntariness by a preponderance of the evidence but not beyond a reasonable doubt. [Citations omitted.]” State v. Smith (1974), 164 Mont. 334, 338, 523 P.2d 1395, 1397; see also Lego v. Twomey (1972), 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618.

“The question of voluntariness largely depends upon the facts of each case, no single fact being dispositive . . . The determination of voluntariness, rather, depends upon the ‘totality of [the] circumstances.’ [Citations omitted.]” State v. Lenon (1977), 174 Mont. 264, 570 P.2d 901, 906; see also Greenwald v. Wisconsin (1968), 390 U.S. 519, 88 S.Ct. 1152, 20 L.Ed.2d 77; Gallegos v. Colorado (1962), 370 U.S. 49, 82 S.Ct. 1209, 8 L.Ed.2d 325, 87 A.L.R.2d 614; State v. Lucero (1968), 151 Mont. 531, 538, 445 P.2d 731, 735.

We emphasize that the issue of voluntariness is a factual one addressed to the discretion of the trial court. State v. White (1965), 146 Mont. 226, 234-35, 405 P.2d 761, cert. denied 384 U.S. 1023, 86 S.Ct. 1955, 16 L.Ed. 1026. We do not sit as triers of fact; nor do we lightly disturb the trial court’s decision.

“Smith and Lenon make it clear that the standard to be applied by the trial judge on a suppression of admissions question is *112‘preponderance of the evidence,’ but when the same question comes to us on appeal to the credibility of the witnesses and the weight to be given their testimony is for the trial court’s determination and our review is limited to determining whether there is substantial credible evidence supporting the District Court’s findings.” State v. Grimestad (1979), 183 Mont. 29, 598 P.2d 198, 203.

By the same token, we cannot ignore uncontradicted, unimpeached, credible testimony contrary to the trial court’s finding.

With the foregoing concepts in mind, we consider the facts of this case. The trial judge found and concluded as follows:

“The Court finds the statements made by Defendant including all confessions exculpatory and inculpatory, were made voluntarily by the Defendant, without any doubt by the Court.”

This general statement is not supported by substantial credible evidence.

At the outset, we note that defendant was advised of his Miranda rights before he confessed. We recognize this to be only a factor in determining if, in the “totality of the circumstances,” the confession was voluntary; it is not, in and of itself, dispositive of the question. Miranda v. Arizona, 384 U.S. at 469-70, 86 S.Ct. at 1625, 16 L.Ed.2d at 721. Proceeding from this proposition is a corollary that advising a suspect of his constitutional rights is not license to coerce a confession from him; neither does it legitimize any coercion which precedes a waiver of those rights. More than mere lip service must be given to Miranda and the principles it embodies. State v. Grimestad, supra.

The pressures used on defendant to induce the confession were psychological rather than physical. This type of coercion nonetheless renders a confession involuntary. Blackburn v. Alabama, 361 U.S. at 206, 80 S.Ct. at 279, 4 L.Ed.2d at 247; see also Townsend v. Sain (1963), 372 U.S. 293, 307, 83 S.Ct. 745, 754, 9 L.Ed.2d 770, 782.

Whether or not defendant was “in custody” during the December 9 interrogation by Officers Bell and Trimarco is not per*113tinent to a determination of whether his ultimate confession was voluntary and thus admissible. The circumstances of that session are, however, relevant as coercive factors which figure in determining if, in the totality of circumstances, the confession is voluntary. Many of the factors have been judicially condemned as coercive in nature. See generally, Miranda, 384 U.S. at 445-58, 86 S.Ct. at 1612-19, 16 L.Ed.2d at 707-14. These factors include keeping the suspect incommunicado in a small room; isolating the suspect in a hostile police environment; the- mean cop — nice cop interrogation technique; and, the guilt assumption technique of interrogation. The factors do not, of themselves, render the confession involuntary; they must merely be considered in the totality of circumstances. The effect of most of the above variables and interrogation techniques on the final calculus is diminished by the time lag between the initial questioning on December 9 and the confession. Also entering into our analysis is the fact that, for the most part, the above-described circumstances and methods were not repeated after December 9.

The sodium amytal interview was the controlling device used in obtaining the confession. As we will discuss below, this session occurred in direct contravention of defendant’s right to counsel and is inadmissible at trial. It is an important factor in the “totality of circumstances” which must be considered. See generally, Townsend v. Sain, supra; State v. Hudson, (Mo. 1926), 289 S.W. 920.

Two variables weigh heavily in our consideration. The first, lying to defendant about how much is known about his involvement in the crimes, is particularly repulsive to and totally incompatible with the concepts of due process embedded in the federal and state constitutions. The effect is particularly coercive and in this case is not lessened by the time lag between the initial interrogation and the confession. The lie, although not repeated, was reinforced by Dr. Hughett, the “investigator-psychiatrist” who conversed with defendant approximately fifteen minutes before he confessed. He told defendant that his story was inconsistent, that nobody would believe him, that he would have to produce the real killer to clear himself, and that he could in fact be the killer.

*114The second factor to which we give weight is the “subtle” psychological pressure which was exerted on Allies from the time he first talked with Bell and Trimarco until the time he confessed. The pressure of which we speak lies in leading defendant to believe his problem was “medical or psychiatric rather than criminal.” It began on December 9 when Bell and Trimarco gave defendant their opinion about his situation and told him he could get help, possibly at Warm Springs. The pressure was kept up, and the idea that his problem was psychological was reinforced later on the 9th in the initial contact with Dr. Hughett.

The next morning the county attorney again mentioned sodium amytal and told defendant he could go to the -hospital and rest. Again, emphasis was placed on the medical rather than the criminal aspects of his problems. He was taken "to the hospital on the morning of the 11th and placed in the intensive care room of the psychiatric ward. He underwent a battery of medical tests and talked with Dr. Hughett for about an hour and a half about his medical history. On the night of the 11th, Hughett administered sodium amytal to defendant in the presence of Lt. Hensley and the county attorney. The next morning, Hughett again spóke with defendant, relating to him the specifics noted above. Scarcely fifteen minutes later, Allies confessed to Lt. Hensley, who, during the confession, kept up the psychological pressure by telling Allies he knew he needed help.

The pivotal issue presented here is whether the results of the sodium amytal (popularly known as truth serum) test are admissible where the recipient was without benefit or advice of counsel and had not received a Miranda warning immediately preceding the administration of the serum. We find they are not. The overwhelming weight of authority in this country still regards truth serum tests as inadmissible inasmuch as they have not attained the scientific acceptance as reliable and accurate means of ascertaining truth or deception. See State v. Linn (1969), 93 Idaho 430, 462 P.2d 729, 732.

Again we note that defendant was read his rights before confess*115ing and at other times during the period in issue. The act of advising a person of his rights is not a license to coerce a confession; nor does it vitiate any coercion or pressures which precede the confession. We find that, in considering the totality of the circumstances, the State did not, by a preponderance of the evidence, show that defendant voluntarily and knowingly waived his constitutional right against self-incrimination or that he voluntarily confessed. Even after giving deference to the trial court’s determination, we are constrained by the facts of this case to hold that a finding contrary to ours is not supported by substantial credible evidence. The trial court erred in not granting the motion to suppress the confession.

To summarize, defendant’s confession was inadmissible on the basis that it was not voluntary. In addition, the confession also grows out of a denial of defendant’s right to counsel.

Defen dent contends that under the “fruit of the poisonous tree” concept of Wong Sun v. United States (1963), 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441, the evidence obtained as a result of his confession should be suppressed. We agree.

Evidence gained as a result of a constitutional violation cannot be used to uncover other physical evidence. Orozco v. Texas (1969), 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311, discussed in Nedrud and Oberto, The Supreme Court and the Criminal Law, Vol. 1B, § 1.3-13; Wong Sun v. United States, supra; Gladden v. Holland (9th Cir. 1966), 366 F.2d 580; Wakeman v. State (Fla.App. 1970), 237 So.2d 61; Dover v. State (Miss. 1969), 227 So.2d 296; State v. Lekas (1968), 201 Kan. 579, 442 P.2d 11; People v. O’Leary (1967), 45 Ill.2d 122, 257 N.E.2d 112; People v. Ditson (1962), 57 Cal.2d 415, 20 Cal.Rptr. 165, 369 P.2d 714, pet. cert. dismissed (1963), 372 U.S. 933, 83 S.Ct. 885, 9 L.Ed.2d 769; McCormick, Evidence, 2d Ed., § 157 at 344. See Michigan v. Tucker (1974), 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182; Harrison v. United States (1968), 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047; United States v. Massey (M.D.Fla. 1977), 437 F.Supp. 843.

*116As stated by the United States Supreme Court:

“The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired may not be used before the Court but that it shall not be used at all.” Silverthorne Lumber Co. v. United States (1920), 251 U.S. 385, 392, 40 S.Ct. 182, 183, 64 L.Ed. 319, 321.

The fruit of the poisonous tree doctrine is most often referred to in conjunction with searches and seizures. Most courts considering the rule as it relates to inadmissible confessions have analyzed it along the same line as the general rule; i. e., if the physical evidence is a fruit of the constituional violation, it must be excluded. See State v. Lekas, supra; see generally, McCormick, Evidence, 2d Ed., § 157 at 344. In People v. Ditson, supra, the California Supreme Court undertook an extensive discussion of the rule and concluded:

“It appears to us to follow that if, it offends ‘the community’s sense of fair play and decency’ to convict a defendant by evidence extorted from him in the form of an involuntary confession, that sense of fair play and decency is no less offended when a defendant is convicted by real evidence which the police have discovered essentially by virtue of having extorted such a confession. If the one amounts to a denial of a fair trial and due process of law, so must the other. If the one is the inadmissible product of ‘police procedure which violates the basic notions of our accusatorial mode of prosecuting crime’ (Watts v. Indian (1949), supra, 338 U.S. 49, 55, 69 S.Ct. 1347, 93 L.Ed. 1801), so must the other be. It does not appear that we can draw a constitutionally valid distinction between the two.” Ditson, 20 Cal.Rptr. at 178, 369 P.2d at 727.

We abide in the result reached by the above-cited authorities and hold the fruits of the confession inadmissible. The fruits in this case include the .22 derringer identified as the murder weapon, the bullets and pouch found with the weapon, a copy of the firearm registration defendant filled out when he bought the gun, photographs of the gun, the fingerprint found thereon, and the testimony matching the ballistics of the gun to the ballistics of the weapon with which the crimes were committed.

*117There are three general exceptions to exclusion of the fruit of the poisonous tree. (1) If the evidence is attenuated from the constitutional violation so as to remove its primary taint, it will be admissible. Wong Sun, 371 U.S. at 488, 83 S.Ct. at 417; 9 L.Ed.2d at 455. (2) If the evidence is obtained from a source independent of the defendant’s confession, it will be admissible. Silverthorne Lumber Co. v. United States, 251 U.S. at 392, 40 S.Ct. at 183, 64 L.Ed. at 321. (3) If it is inevitable that the evidence would have been discovered apart from the defendant’s confession, it is admissible. Government of Virgin Islands v. Gereau (3rd Cir. 1974), 502 F.2d 914, 927-28. None of these exceptions apply to the instant facts.

The description of the pistol’s location in the confession and the temporal proximity of the confession to the discovery of the gun precludes any assertion that obtaining the fruit is attenuated from the constitutional violation. The fact that Allies himself directed the police to the pistol disposes of any argument to the effect that it was actually obtained from an independent source. Kathy Terry, the only person who had knowledge of the concealment (as opposed to the discovery) of the pistol testified:

“Q. Right now, can you recall that you actually saw the derringer on the day you went to bury the guns? A. I did. They were both in the same box.

“Q. Did you see into the box? A. When he was getting it ready, they were both in the same box. And I walked into the kitchen. And when I returned the box had already been closed and taped. And that is the last time I saw them. We buried them after that.”

She went on to describe how the box had been hidden beneath a rock. On December 12, before Allies confessed, she led police officers to the location where the box was concealed. The only gun found therein was a 9 mm pistol. Kathy Terry’s evidence up to that point is admissible; however, the murder weapon was uneartherd at defendant’s direction nearly half a mile away. As discussed above, the discovery of the de'rringer is a fruit of the excluded confession and inadmissible.

*118In applying the third exception, the inevitable discovery rule, courts must not lose sight of the protections guaranteed by the Constitution. To avoid deciding cases on a judge’s speculation as to what the police “might,” “could” or “should” have done, it must appear that the evidence would have been obtained even in the absence of information received in violation of a defendant’s rights. It must appear that, as certainly as night follows day, the evidence would have been discovered without reference to the violation of the defendant’s rights. The evidence in this case could not conceivably support such a finding.

Due to the illegality of the method used in obtaining defendant’s confession, we have no choice but to reverse and remand the case to the District Court for a new trial. In deciding this case, we have not created new law; we have merely applied existing legal and constitutional principles.

The opinion of this Court is not entered lightly. The crimes for which defendant was convicted were senseless and brutal and, as in Brewer v. Williams (1977), 430 U.S. 387, 406, 97 S.Ct. 1232, 1243, 51 L.Ed.2d 424, 441:

“. . . callfed] for swift and energetic action by the police to apprehend the perpetrator and gather evidence with which he could be convicted. No mission of law enforcement officials is more important. Yet ‘[disinterested zeal for the public good does not assure either wisdom or right in the methods it pursues.’ Haley v. Ohio [1948], 332 U.S. 596, 605, 68 S.Ct. 302, 306, 92 L.Ed. 224 (Frankfurter, J., concurring in judgment). . . The pressures on state executive and judicial officers charged with the administration of the criminal law are great, especially when the crime is murder . . But it is precisely the predictability of those pressures that makes imperative a resolute loyalty to the guarantees that the Constitution extends to us all.”

In view of our holding that this case must be returned to the District Court for retrial, we direct our attention to defendant’s second issue and find it meritorious:

*119 PHOTOGRAPHIC EVIDENCE

Defendant contends that the photographs of the victims introduced at trial were gruesome, inflammatory and unduly prejudicial and that, on this ground alone, he is entitled to a new trial. We agree.

“ ‘. . . [photographs] are admissible for the purpose of explaining and applying the evidence and assisting the court and jury in understanding the case.’

“Photographs that are calculated to arouse the sympathies or prejudices of the jury are properly excluded, particularly if they are not substantially necessary or instructive to show material facts or condition.” State v. Bischert (1957), 131 Mont. 152, 159, 308 P.2d 969, 973.

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