I N THE SUPREME COURT O THE STATE O MONTANA
F F
1972
STATE OF MONTANA,
P l a i n t i f f and Respondent,
-vs -
LEON OSCAR MEIDINGER,
Defendant and Appellant.
Appeal from: D i s t r i c t Court of t h e S i x t e e n t h J u d i c i a l D i s t r i c t ,
Honorable A l f r e d B. Coate, Judge p r e s i d i n g .
Counsel of Record:
For Appellant:
Berger, Anderson, S i n c l a i r and Murphy, B i l l i n g s ,
Montana.
Arnold A. Berger argued, B i l l i n g s , Montana.
For Respondent :
Hon. Robert L. Woodahl, Attorney General, Helena,
Montana.
J. C. Weingartner, Deputy Attorney General, argued,
Helena, Montana.
William J. K r u t z f e l d t , County Attorney, argued, Miles
C i t y , Montana.
Submitted: September 18, 1972
Decided :
I 9 1972
Filed: ;cT - 9
1 3 * i 7 -9
q d
Mr. Justice John C. Harrison delivered the Opinion of the Court.
This is an appeal by defendant Leon Meidinger from a
conviction of first degree burglary in the district court of
the sixteenth judicial district, county of Custer.
The facts of the instant case are essentially the same
as those in the case of State v. Harris, - .- 498
Mont ,
P.2d 1222, 29 St.Rep. 498, where this Court affirmed the first
degree burglary conviction of Meidinger's codefendant, Philip
Harris.
During the fall months of 1970, Leon Meidinger began
frequenting Kelly's Gaslite, a bar in Miles City. Working at
the bar was one Lila Williamson, an acquaintance of Meidinger.
Meidinger expressed an interest in where the owner of the bar,
Earl Kelly, kept his money. At trial, Meidinger testified he
had played in a poker game in the basement of Kelly's Gaslite
and was aware that considerable cash was involved in the game.
In November 1970, Meidinger pursuaded Lila Williamson to obtain
a duplicate of her key to the bar and his brother picked up the
key for Meidinger.
On December 11, 1970, Lila Williamson contacted a local
police officer, Larry Kuchynka, and told him that during the
night of December 11, Kelly's Gaslite bar would be burglarized.
Kuchynka notified Kelly, the owner, and then proceeded with
local police and sheriff's deputies to stake out the bar.
On the night of December 11, 1970, Meidinger and Harris
drove from Billings to Miles City in Meidinger's pickup truck.
Along the way they stopped and stole some license plates, affix-
ing them to the pickup. Meidinger testified he and Harris did
not arrive in Miles City until 2:30 a.m., but the state's evidence
indicates Kelly closed the bar at 2:00 a.m., and Harris was seen going
into the bar within fifteen minutes after closing.
Harris entered the front door of the bar, apparently
with a key. Upon exiting the bar, Harris was stopped by seven
law enforcement officers. When they frisked Harris, the police
found a walkie-talkie and a bag full of checks and currency tied
with a cord around Harris' neck. At the time of the arrest Harris
was ordered to put up his hands, and the arresting officers heard
what turned out to be the duplicate key to the bar fall to the
pavement.
Following the arrest and search of Harris, the officers
went into the Gaslite bar, using the duplicate key, and dis-
covered the safe was open and empty. The dial of the safe had
been knocked off and alongside the safe was a hammer.
Later Kelly identified the checks and currency which
were found in the bag hanging around Harris' neck when he was
apprehended, as having been in the safe.
As the officers came out of the bar following completion
of their investigation there, one of them saw the camper pickup
parked across the street cater-corner from the Gaslite bar. The
officer recognized the truck as belonging to Leon Meidinger, a
known personality to law enforcement officers in the area. Upon
flashing his flashlight into the truck, one of the officers dis-
covered Meidinger crouched down in the truck. He was ordered
to get out and to the officer's surprise a walkie-talkie simi-
lar in design and cover to that found on Harris was in Meidinger's
possession.
Both Harris and Meidinger alleged they did not arrive in
Miles City until 2 : 3 0 a.m., but Officer Hom, who recognized the
camper pickup, testified he had seen the pickup parked across
the street from Kelly's Gaslite approximately at midnight. The
pickup was discovered to have stolen license plates and both
defendants admitted stealing the plates at Rosebud, Montana,
enroute to Miles City.
Defendant alleges Officer Hom's testimony as to the
time he first saw defendant's vehicle was discredited and should
not have been allowed. Officer Hom testified he saw the vehicle
around midnight and later contradicted that testimony putting
the time at 1:15 a.m. Although the statements were contradictory,
the fact remains that shortly after 2:00 a.m. Harris went into
the Gaslite bar, burglarized it, and was apprehended. Too,
Officer Horn testified he had seen the vehicle before the burglary
and had made a registration check of the license plates on the
vehicle. All of this was a question for the jury and it believed
the vehicle was on the street of Miles City, cater-corner from
the Kelly's Gaslite bar sometime before the burglary.
Both Harris and Meidinger were arrested and charged with
burglary. Each posted bail of $3,750. While awaiting release
on bail, they were in the sheriff's office talking to relatives.
Both Sheriff D r r and Officer Adrian at that time heard Meidinger
ann
say to his brother "I should have known better to pull something
like this in my home town."
Meidinger's defense as to why he was in the back of the
pickup camper was that he was sleeping and was not aware of the
activities taking place until he was awakened and arrested by
the Miles City police. An independent hearing on a motion to
suppress the evidence found in Meidinger's truck was held prior
to trial and after considerable testimony the motion to suppress
was denied.
Defendant presents four issues for review:
1. Was the affidavit for the search warrant insufficient?
2. Was the search warrant defective?
3. Was defendant denied a fair trial because:
A. The court improperly waived the exclusionary
rule;
B. The opening statement of the state was unethical
and prejudicial;
C. Evidence of other crimes was improperly admitted;
D. The Montana doctrine of cumulative error applies;
E. Counsel for defendant Meidinger was ineffective;
F. The prosecution was permitted to demean witnesses
for the defense.
4. The jury was improperly instructed.
We find no merit to issue No. 1. Sufficient probable
cause for the issuance existed. The following tests of suffi-
ciency set out in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509,
12 L ed 2d 723, and Spinelli v. United States, 393 U.S. 410, 89
S.Ct. 584, 21 L ed 2d 637, are satisfied.
1. Basis of knowledge test. The informants, all police
offi~ers~arrested
Harris and Meidinger after Harris had burglar-
ized the Gaslite Bar. These informants obtained their knowledge
by observing the burglary in progress. The arrests were made
after Harris was searched and the fruits of the crime discovered.
These officers viewed the walkie-talkie in Meidinger's pickup,
after he was arrested.
2. Reliability test. The informants are reliable. The
FBI told the Miles City police department that Meidinger and
Harris were traveling together and that they were planning to
make a "hit" . This information alerted the police and the police
believed the information to be true. Meidinger and Harris were
traveling together and they did in fact make a "hit". The local
law enforcement personnel's information was reliable because
they observed the Gaslite bar being "knocked over" and they did
arrest Meidinger and Harris after the burglary. The officers
observed instruments used in connection with the burglary in
the pickup, i.e. the walkie-talkie.
These tests are strengthened by the fact that the search
was conducted after the crime had been committed and after de-
fendant was arrested. This is a classic case where law enforce-
ment officials attempted to abide by the mandates and spirit of
the law. A search warrant was not even required in this instance.
The walkie-talkie and other instrumentalities could have been
seized under the "open fields" doctrine enunciated in Harris v.
United States, 390 U.S. 234, 88 S.Ct. 992, 19 L ed 2d 1067, and
adopted by this Court in State v. Perkins, 153 Mont. 361, 457
P.2d 465. Yet, here, the law enforcement personnel to avoid
having this evidence tossed out because of a possible illegal
search, obtained a search warrant to comply with recent court
holdings.
Defendant relies on two leading United States Supreme
Court cases Aguilar and Spinelli. The fact situations in those
cases are not on all fours with this case. In Aquilar and
Spinelli the arrests were made after the search warrant was issued.
Here, defendant was already arrested and in the course of the
arrest one of the items, the walkie-talkie, was noted after which
a search warrant was obtained. Defendant's counsel asks this
Court to accept as a fact that the police searched the truck,
noted the items later listed in the warrant, and only then did
they get the warrant. This was not proven at the time of the
hearing to suppress the evidence and we refuse to assume such facts.
See: State ex rel. Wilson and Hoffer v. District Court, -Mont.
- 498 P.2d
, 1217, 29 St.Rep. 523.
There can be no doubt that the affidavit established
sufficient probable cause to move the court's discretion to
grant the search warrant. The facts presented to the court
established probable cause that various instrumentalities used
in the burglary were being kept in the defendant's pickup.
Defendant's issue No. 2 is whether or not the search
warrant was defective. We find it was valid and proper.
Section 95-704, R.C.M. 1947, sets forth the grounds
for a search warrant :
"Any judge may issue a search warrant upon the
written application of any person that an offense
has been committed, made under oath or affirmation
before him which:
"(a) States facts sufficient to show probable
cause for issuance of the warrant,
"(b) Particularly describes the place or things to
be searched, and
"(c) Particularly describes the things to be seized."
Section 95-705, R.C.M. 1947, limits the scope of a search
warrant and in pertinent part provides:
"A search warrant may authorize the seizure of
the following:
I (a) Contraband.
'
"(b) Any instruments, articles or things which
are the fruits of, have been used in the com-
mission of, or which may constitute evidence
of, any offense."
Here, the search warrant satisfied all of the require-
ments. The warrant directed law enforcement personnel to search
"a 1969 blue one-half ton Chevrolet pickup, Montana license num-
ber 2T-5275" that is located in Custer County garage in the city
of Miles City, County of Custer, State of Montana. There can be
no doubt that the thing to be searched was described with partic-
ularity. The warrant describes the exact thing to be searched
and described the area of the truck that could be searched.
The warrant directed the officers to search for "a
walkie-talkie, license plates, and there may be fingerprints,
letters, papers, burglary tools, and other objects or materials
which may be the fruit of an offense or evidence of an offense."
The things to be seized were sufficiently described. Officers,
at the time of the arrest, observed a walkie-talkie in the pick-
up--a walkie-talkie that was similar to the one found on Harris.
The search warrant directed the officers to seize this walkie-
talkie, which they had previously observed.
It was discovered that Meidinger and Harris had stolen
some license plates and put them on the truck before they attempt-
ed the burglary. The license plates were "instruments, articles
or things which * * * have been used in the commission of * * *
any offense." These plates were used to hide the identity of
the vehicle used in the burglary and to conceal the identity of
the true owner of the vehicle. The plates were described with
particularity.
The search warrant satisfied all of the requirements
enunciated by this Court in State v. Quigg, 155 Mont. 119, 467
P.2d 692, approved by the United States District Court, Billings
Division, on June 5, 1972. The direction to seize "other objects
or materials which may be the fruit of an offense or evidence of
an offense:' satisfied the requirements of Warden, Maryland Peni-
tentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L ed 2d 782,
which stated that "mere evidence" may be seized by officers
during a search, especially where the evidence is connected to
the offense. It is well established that, given a lawful search,
some things may be seized in connection therewith which are not
described in the warrant. Johnson v. United States, 293 F.2d
539; State v. Quigg, 155 Mont. 119, 467 P.2d 692.
Defendant also contends the search warrant was defective
because it was directed to "any peace officer of this State."
He contends the search warrant should be directed to a specific
peace officer. Section 95-707, R.C.M. 1947, states:
"A search warrant may in all cases be served by
any of the officers mentioned in its direction,
but by no other person except in aid of the
officer on his requiring it, he being present
and acting in its execution."
As the statute indicates, a warrant may be "served by any of the
officers mentioned in its direction." Here, the warrant was
directed "to any peace officers of this state." The warrant
was served by peace officers, as directed.
Defendant is correct in that section 95-703, R.C.M. 1947,
states that "A search warrant is an order * * * directed to a
peace officer, commanding him to search for personal property and
bring it before the judge." While this Court does not find that
the search warrant was defective because it was not directed to
a particular police officer, we do not approve this type of search
warrant and recommend that such practice be discontinued. Read-
ing section 95-703, R.C.M. 1947, in conjunction with section
95-707, R.C.M. 1947, we find the search warrant in this case com-
plied with the requisite statutes. Any of the officers named
in section 95-707 were authorized to serve the warrant within the
territory in which they were authorized as officers to act. The
search warrant was served by police officers of the city of
Miles City, within the city. We cannot agree with defendant's
contention that error was predicated on this highly technical
point of law to the extent that it was so prejudicial as to neces-
sitate retrial.
In this fact situation we find section 95-717, R.C.M.
1947, to be controlling. In pertinent part that section states:
"No search and seizure, whether with or without
warrant, shall be held to be illegal as to a
defendant if:
"(b) No right of the defendant has been infring-
ed by the search and seizure, or
"(c) Any irregularities in the proceedings do
not affect the substantial rights of the accused."
Much was made by defendant as to the tools found in
the vehicle at the time of the search. We find no merit to
this allegation of error. Defendant and Harris were known to
be setting up some business in Miles City to burglarize. This
information came not only from the FBI but also from a local
informant. They were known to be traveling together, they had
stolen license plates that evening and Harris was caught coming
out of the burglarized bar. The tools of his trade were new,
as were those found in the truck, and their seizure was proper
under Warden, Maryland Penitentiary v. Hayden, as "other objects
or materials * * *". No substantial rights of defendant were
infringed by the search and seizure. The evidence secured by
the police officers under the circumstances heretofore detailed
was competent.
We find no merit in defendant's issue No. 2.
Defendant's issue No. 3 is divided into six subsections.
A. Was the trial court in error when it waived the ex-
clusionary rule? It has been a long and well established rule
in Montana that the exclusionary rule does not apply to law
enforcement personnel. State v. Fitzpatrick, 149 Mont. 400,
427 P.2d 300; State v. Walsh, 72 Mont. 110, 232 P. 194. The
trial court, in exercising its discretion, was simply following
the law. Here, the state is corredt in submitting that it is
- 10 -
impossible for the trial court to err if it is following the
doctrines promulgated by this Court. We cannot agree with
defendant's contention that he was prejudiced by this action
of the trial court. We find no error on the waiver of the
exclusionary rule.
B. Defendant claims the State's opening statement was
unethical and prejudicial. We find the opening statement of
the prosecuting attorney was merely an explanation to the jury
of the duties of the county attorney. Defendant has the duty
to show that this statement affected his substantial rights.
In the absence of such showing, there can be no prejudice.
In State v. Boe, 143 Mont. 141, 149, 388 P.2d 372, we
stated:
"Error will not be presumed nor will a criminal
case be reversed for errors or defects appear-
ing in the record which do not affect the sub-
stantial rights of the defendant. State v.
Gransberry, 140 Mont. 70, 367 P.2d 766".
In State v. Straight, 136 Mont. 255, 264, 347 P.2d 482,
we stated:
"It is up to this court to decide whether an
error affects the substantial rights of the
defendant and the defendant must demonstrate
prejudice from the record."
C. Defendant contends that evidence of other crimes
was improperly admitted. Again, we cannot agree with defendant's
contention. Specifically he contends the court erred in allow-
ing evidence of (1) having a motor vehicle with false license
plates; (2) having possession of burglary tools; (3) being an
accessory to gambling; and (4) being an accessory to selling
liquor after hours. Items (1) and (2) we find are not evidence
of separate crimes, but rather were part of the res gestae and
as such were properly admitted. Res gestae in its broad concept
can generally be defined as a matter incidental to the main or
principal fact and explanatory thereof. It may include acts
as well as words. 29 Am Jur 2d, Evidence S 7 0 8 . In item ( 3 )
defendant seems to be claiming error on matters raised by his
direct testimony. This he cannot do. Item (4) relates to an
alleged selling liquor charge that appears on defendant's FBI
rap sheet. It was never shown to the jury, was not allowed in
evidence, therefore this allegation can be classified as nit-
picking, and without merit.
D. The Montana doctrine of cumulative error applies.
We cannot accept this contention. Defendant in interpreting
this doctrine points out 3 3 separate specifications of alleged
errors and claims that the aggregate of these errors when taken
as a whole constitutes prejudicial error. This doctrine, if it
in fact exists, presumes that all 3 3 allegations are errors.
This Court does not feel obliged to refute all of these
alleged errors because of an absence of any argument or authority
supporting defendant's contention in each instance. We will,
however, briefly answer.
Five of the specifications of error that concern instruc-
tions were not objected to at the time instructions were settled
and cannot now be presented on appeal for the first time. State
v. Boe, 1 4 3 Mont. 141, 3 8 8 P.2d 3 7 2 . In four alleged errors
concerning instructions the court sustained defendant's objec-
tions and we are unable to comprehend how defendant can claim
error in the sustaining of his own objections.
The remainder of defendant's objections concern themselves
with objections which were not sustained. He has not shown how
the court erred in overruling these objections (aside from the
fact that he simply claims it did), and certainly has not shown
any prejudice .
Defendant also contends the court erred when it refused,
without any objection from the state, to give various instruc-
tions offered by defendant. It is within the prerogative of the
trial court to give instructions. The trial judge has the duty
to instruct the jury as to the applicable law which he does by
giving instructions he believes accurately state the law.
We find no merit in defendant's subdivision D.
E. Counsel for defendant Meidinger was ineffective. We
find no merit in this argument.
In this case defendant was tried together with his co-
defendant Harris. Both retained the same counsel to represent
them during trial. Counsel was not appointed--he was retained
by defendants. Prior to this appeal defendant had no claim he
was denied effective counsel, but he now contends that since he
was represented by the same counsel as Harris, he was denied his
right to effective counsel. We note the following taken from
the record:
"THE COURT: Would the defendants please stand.
Now before we go into the sentencing, it's im-
portant to this Court, to know--and I want to
know at this time, are you satisfied with your
counsel?
"DEFENDANT MEIDINGER: Yes.
"THE COURT: Mr. Meidinger, are you satisfied with
your counsel?
"DEFENDANT MEIDINGER: Yes.
"THE COURT: Do you believe that he truly rep-
resented you?
"DEFENDANT MEIDINGER: Yes, I do."
Defendant was satisfied with his counsel by his own
words. He is precluded from now attempting to raise this issue
on appeal.
The problem of multiple defendants retaining one counsel
to defend them has in the recent years become a source of con-
tention between the state and federal jurisdictions. It had
been assumed, until recent years, that when knowledgeable adults
hired counsel in a criminal case they knew what they were doing;
that they were knowledgeable enough to realize that though their
interests as defendants might be in conflict their retained
attorney would protect such individual interests in defending
them. The whole problem directs itself ultimately on appeal
to the adequacy or inadequacy of defense counsel and in the eyes
of this Court such adequacy or unadequacy of counsel should not
be tested by the greater sophistication of appellate counsel who
did not try the case, nor should the test be made on the basis
of applying different defense tactics, perhaps of doubtful
efficiency, after leisurely studying the transcript of the trial.
To make success the only test of effective counsel would be an
injustice to many able counsel, for frequently the ablest of
counsel is overcome by truth.
Most of the recent decisions speaking to the issue are
based on Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86
L ed 680, 702, and is relied upon by defendant. Glasser does not
hold that the fact a single attorney is appointed to defend
and represent two defendants is ipso facto evidence of lack of
effective counsel. Factwise, Glasser is considerably different
than the instant case. Glasser had retained counsel and then
just before trial, after an alleged co-conspirator's counsel had
withdrawn, a federal judge's ruling placed his counsel in the
position of representing the alleged co-conspirator as well as
Glasser at a joint trial. Glasser objected. That is not the
case here. As the U. S. Supreme Court noted "Glasser wished the
benefit of the undivided assistance of counsel of his own choice.
We think that such a desire on the part of an accused should
be respected." Likewise we feel, under the facts before us,
that where two defendants desire to retain one counsel their
decision should be honored. Too, that later, when on hindsight
after conviction, they should not be allowed to change that
decision by alleging on appeal the inadequacy of their chosen
counsel, especially when raised for the first time on appeal.
F. The final subsection under defendant's issue No. 3
alleges he was denied a fair trial due to the fact the prose-
cution was permitted to demean witnesses for the defense. The
county attorney asked Meidinger and his brother various ques-
tions, all under the rules governing cross-examination. From
the record, all his questions were asked in good faith. Scrut-
inizing these questions from a defense standpoint, we cannot
find them to be insulting and demeaning, let alone prejudicial.
find merit in this contention.
Defendant's Issue No. 4 alleges the jury was improperly
instructed.
Defendant maintains the court erred in refusing to give
his offered instruction No, 2 3 . It was refused because it was
already covered by other instructions. Proposed instruction No.
2 3 read:
"In that the evidence shows Leon Meidinger did
not make entry into Kelly's Gaslight you must
find beyond a reasonable doubt that he either
aided or abetted another person making an entry
or advised and encouraged another person who
made entry and failing to find either of these
conditions beyond a reasonable doubt, you must
find the defendant Leon Meidinger not guilty."
Court's instructions No. 19 and 20 cover proposed No. 2 3 .
No. 19 states, in part:
"If you find beyond a reasonable doubt that
the defendant, Phillip Harris, on or about the
date charged in the information entered Kelly's
Gaslite, Miles City, Montana, during the night-
time with the intent to commit larceny, and if
you find beyond a reasonable doubt that the De-
fendant Leon Oscar Meidinger aided and abetted
or advised and encouraged Phillip Harris, then
you should return a verdict of guilty on de-
fendants Phillip Harris and Leon Oscar Meidinger."
No. 20 stated:
"One may become an accomplice by being present
and joining in the criminal act, by aiding and
abetting another in its commission, or, not
being present, by advising and encouraging its
commission; but knowledge and voluntary actions
are essential in order to impute guilt."
In State v. Logan, 156 Mont. 48, 66, 473 P.2d
833, this Court said:
"Refusal to give an instruction already covered
by other instructions is not error."
Defendant contends the court erred in refusing to'give his
proposed instruction No. 20:
"A conviction cannot be had on the testimony of
an accomplice, unless he is corroborated by other
evidence, which in itself, and without the aid of
the testimony of the accomplice tends to connect
the defendant with the commission of the offense;
and the corroboration is not sufficient, if it
merely shows the commission of the offense, or
the circumstances thereof."
The court properly refused to give this instruction because
there were no accomplices who testified for the state. The only
accomplices were Meidinger and Harris, and their testimony surely
did not assist the state in securing a conviction. Since the
conviction was not had on the testimony of an accomplice, the court
properly refused the instruction.
Finally, we consider the witness Lila Williamson and
whether or not she was an accomplice. Assuming arguendo that
she was--there was still sufficient evidence before the jury
that corroborated the evidence given by Lila Williamson connect-
ing defendant to the crime. Wigmore on Evidence, 3rd Ed., Vol. 7,
§ 2059, (1970 Pocket Supp. p. 108) cites State v. Barick, 143
Mont. 273, 282, 389 P.2d 170, as a discerning opinion, authored
by Mr. Justice Castles, covering this issue. There it was said:
"Accomplices are not precluded from testifying
in criminal cases in Montana. R.C.M. $947, 5s
94-7220, 94-8803, 94-8804, 94-8801, 93-701-1,
93-701-2, 93-701-3, 93-701-4.
"The fact that accomplices are convicted felons
at the time of their giving testimony does not
detract from their competency as witnesses.
R.C.M. 1947, S 94-4723.
"Therefore, we are only concerned with that
portion of section 94-7220, which says ' * * *
unless he [the accomplice] is corroborated by
other evidence, which in itself, and without
the aid of the testimony of the accomplice,
tends to connect the defendant with the commis-
sion of the offense * * * . ' Emphasis supplied.
"The sufficiency of the corroboration necessary,
to sustain a conviction based upon accomplice
testimony, is a matter of law. [Citing cases.]"
Here, we hold that as a matter of law there was suffi-
cient corroboration. We find no merit in defendant's Issue No. 4.
For the foregoing reasons, the decision of the district
*
court is affirmed.
Associate Justice
We concur-
- -- --,-- -------------
I
I
4 / Chief Justice
Associate Jbbtices