No. 12346
I N THE SUPREME C U T O T E STATE O MONTANA
OR F H F
1973
T E STATE O M N A A
H F OTN,
P l a i n t i f f and Respondent,
-VS -
JOHN EDWARD POUND,
Defendant and Appellant.
Appeal from: D i s t r i c t Court of t h e Twelfth J u d i c i a l District,
Honorable B e W. Thomas, Judge p r e s i d i n g .
Counsel of Record:
For Appellant :
Morrison and E t t i e n , Havre, Montana
Robert D. Morrison argued, Havre, Montana
For Respondent :
Hon. Robert L. Woodahl, Attorney General, Helena,
Montana
Jonathan B e Smith, A s s i s t a n t Attorney General, argued,
Helena, Montana
William M. Solem appeared, Chinook, Montana
Submitted: January 26, 1973
Decided
*Rfik 2 7 55'73
Filed : $f&R 2 '2 .-
M r . J u s t i c e Sene B. Daly d e l i v e r e d t h e Opinion of t h e Court.
T h i s a p p e a l i s talten from a judgment e n t e r e d on a j u r y
v e r d i c t i n t h e d i s t r i c t c o u r t of B l a i n e County, c o n v i c t i n g John
Edward Pound of one count of grand l a r c e n y and s e n t e n c i n g him
t o s e r v e f i v e y e a r s i n t h e Montana S t a t e P r i s o n . Pound was
charged by amended I n f o r m a t i o n w i t h twelve c o u n t s of grand
l a r c e n y and one count of second degree b u r g l a r y . He e n t e r e d
a p l e a of n o t g u i l t y t o a l l c h a r g e s . The j u r y v e r d i c t of May 1 0 ,
1972, found defendant g u i l t y of count one of t h e amended I n f o r -
mation of grand l a r c e n y and n o t g u i l t y of a l l o t h e r c o u n t s . From
t h e judgment of c o n v i c t i o n and from t h e c o u r t ' s o r d e r denying h i s
motion f o r a new t r i a l , Pound b r i n g s t h i s a p p e a l .
From t h e t r i a l r e c o r d unusual and o f t e n c o n t r a d i c t o r y
f a c t s appear. One Joseph Lewis DeSaye, an American c i t i z e n ,
brought t h e c h a r g e s a g a i n s t Pound f o r a l l e g e d a c t s t h a t took
p l a c e on h i s farm n e a r T u r n e r , Montana. DeSaye i s a farmer and
a l s o a d e a l e r i n f i r e a r m s , r e l a t e d s u p p l i e s and c o i n s . His
a c t i v i t y i n t h i s a r e a was n o t j u s t c a s u a l a s DeSaye t e s t i f i e d h i s
b u s i n e s s volume i n 1971 was approximately $475,000.
Defendant Pound i s 38 y e a r s of a g e , m a r r i e d , and a
Canadian c i t i z e n r e s i d i n g i n t h e c i t y of Swift C u r r e n t , Saskatch-
ewan, Canada. For f i f t e e n y e a r s he had been employed by t h e
Saskatchewan government a s a petroleum e n g i n e e r . He had been
a c q u a i n t e d w i t h DeSaye f o r approximately t e n y e a r s . Over t h e
c o u r s e o f t h e i r a c q u a i n t a n c e Pound had done c a r p e n t r y and gun-
smithing work f o r DeSaye and i n doing s o had been g i v e n f r e e
access t o DeSaye's p r o p e r t y .
A t times p r e v i o u s t o t h e p r e s e n t i n c i d e n t Pound had loaned
s u b s t a n t i a l sums of money t o DeSaye and had purchased guns from
BeSaye. By t h e i r custom, i n t e r e s t on l o a n s and wage payments from
DeSaye t o Pound took t h e form of g i f t s o r d i s c o u n t s on guns o r
r e l a t e d equipment. The two men were a l s o involved i n some t y p e
of "coin importing scheme". Pound would t a k e d e l i v e r y of c o i n s
ordered by DeSaye from Canadian sources and e i t h e r t r a n s p o r t
them a c r o s s t h e border o r g i v e them t o DeSaye i n Canada f o r h i s
t r a n s p o r t a t i o n a c r o s s t h e border. DeSaye would then reimburse
Pound by a check on h i s Canadian bank account f o r f r e i g h t charges
and o t h e r expenses.
Problems a r o s e between DeSaye and Pound i n 1967 when they
were charged w i t h v i o l a t i o n o f smuggling laws by Canadian a u t h o r -
ities. I n s u c c e s s f u l l y defending t h e c a s e , Pound i n c u r r e d a t t o r -
ney f e e s of $2,075. Pound claimed he had been promised by DeSaye
t h a t he would reimburse Pound f o r a l l of h i s c o s t s i n c u r r e d i n
defending t h e charges. Pound t e s t i f i e d t h a t he was o n l y given
$800 by DeSaye toward t h o s e expenses; DeSaye t e s t i f i e d t h a t he
g i v e Pound over $1,000 f o r t h a t purpose. As a r e s u l t , Pound
claimed he was owed t h e amount of $1,275 by DeSaye; DeSaye denied
any indebtedness.
Pound a l s o claimed he was owed a n a d d i t i o n a l $100 by
DeSaye i n connection w i t h a bag of c o i n s he had given DeSaye i n
1968 t o s e l l f o r him i n t h e United S t a t e s .
It appears t h a t p r i o r t o t r i a l , t h e c o u r t i n s t r u c t e d DeSaye
t o produce a l l of h i s r e c o r d s which had t o do w i t h t h e i n t e r n a t i o n a l
c o i n t r a n s a c t i o n s w i t h Pound and o t h e r s . The c o u r t f u r t h e r i s s u e d
a subpoena duces tecum f o r t h e production of t h e s e r e c o r d s which
was p r o p e r l y served and r e t u r n made t o t h e c o u r t . A t t r i a l these
r e c o r d s were n o t produced and DeSaye claimed t o have only incom-
p l e t e o r p a r i t a l r e c o r d s of t h e s e t r a n s a c t i o n s , On cross-examina-
t i o n DeSaye was extremely vague and e v a s i v e concerning c e r t a i n
a r e a s of t h e s e t r a n s a c t i o n s , The c o u r t denied d e f e n d a n t ' s motion
made a t t r i a l t o compel production of t h e s e r e c o r d s .
On September 1 7 , 1971, DeSaye by telephone extended an i n -
v i t a t i o n t o t h e Pounds t o come t o h i s farm s u g g e s t i n g Pound could
complete some c a r p e n t r y work he had i n p r o g r e s s and t h e y could view
some t r a v e l s l i d e s . O September 1 9 , 1971, M r .
n and Mrs. Pound
t r a v e l e d from Canada t o t h e DeSaye home a r r i v i n g about 10:30 o r
1 l : O O a.m. M r . and Mrs. DeSaye were n o t a t home when t h e Pounds
arrived. A Montana highway p a t r o l c a r was parked on t h e premises
and Patrolman Harold Savik w a i t e d u n t i l DeSaye r e t u r n e d a t about
L:OO p.m., purchased f i r e a r m s u p p l i e s , and d e p a r t e d s h o r t l y a f t e r
that. Savik and Pound saw each o t h e r b u t d i d n o t c o n v e r s e ,
Also v i s i b l y p r e s e n t i n t h e a r e a were: Osmond Olson, an
e l d e r l y r e t i r e d farmer who l i v e d on t h e premises; Joseph ~ e ~ a y e ' s
2 1 y e a r o l d son Gregory and h i s w i f e ; Mrs, P a t t i Anderson, who
was b a b y s i t t i n g ; and t h e t h r e e younger DeSaye c h i l d r e n , G r e t a ,
Grant and Brad, Lee Thomas, an a g e n t of t h e United S t a t e s Border
P a c r o l , was a l s o p r e s e n t b u t had concealed h i s government c a r
behind a n o u t l y i n g b a r n and had concealed h i m s e l f i n a s t r a w s t a c k .
11
DeSaye had f u r n i s h e d Thomas w i t h two super-8" movie cameras
which h e used t o t a k e motion p i c t u r e s of Pound w i t h o u t h i s know-
,-edge. The f i l m s t a k e n by Thomas were i n t r o d u c e d i n t o e v i d e n c e
a t t r i a l and shown t o t h e j u r y . The f i l m s showed Pound t a k i n g
r i f l e s , s u p p l i e s and a s a c k t o h i s Bronco v e h i c l e and p l a c i n g
them i n s i d e .
Between 1:00 and 2:00 p.m., Pound c l a i m s DeSaye pursued
a d i s c u s s i o n w i t h him i n which he was q u e s t i o n e d e x t e n s i v e l y
about h i s f i n a n c i a l s t a t u s . A t approximately 2:00 p.m. DeSaye
suggested t h e y should e a t , and Pound went t o wash h i s hands.
Looking o u t t h e window Pound saw a man c r e e p i n g by and mentioned
i t t o DeSaye. Pound t h e n went t o h i s Bronco f o r t h e claimed pur-
pose of g e t t i n g h i s c o n t a c t l e n s c l e a n i n g equipment. A t this
p o i n t , t h e testimony i s i n c o n f l i c t a s t o subsequent e v e n t s .
I t a p p e a r s t h a t a pickup t r u c k had been p l a c e d by Gregory DeSaye
c l o s e i n f r o n t of t h e d e f e n d a n t ' s Bronco and t h e b o r d e r p a t r o l c a r
had been parked d i r e c t l y behind, s o a s t o wedge t h e Bronco i n .
Pound claimed he d i d n o t s t a r t t h e Bronco, b u t reached i n t o g e t
t h e c o n t a c t l e n s c l e a n i n g equipment when DeSaye p u l l e d him o u t and
began s t r u g g l i n g w i t h him. DeSaye claimed t h a t Pound s t a r t e d t h e
Bronco and attempted t o d r i v e forward, s t r i k i n g t h e pickup, whereupon
h e and h i s son, Greg, p u l l e d Pound out and "subdued him".
Lee Thomas, t h e border p a t r o l o f f i c e r , then came on t h e
scene and locked t h e Bronco v e h i c l e , and t h e t h r e e men took
Pound t o a t r a i l e r a d j a c e n t t o t h e house. I t appears t h a t
Thomas l e f t t h e t r a i l e r a t t h e r e q u e s t of Pound, l e a v i n g DeSaye
and Pound alone. There i s c o n f l i c t a s t o what was s a i d by t h e
p a r t i e s d u r i n g t h i s p e r i o d of time. DeSaye t e s t i f i e d t h a t Pound
brought up t h e s u b j e c t of making a d e a l . Pound s t a t e d t h a t
DeSaye brought up t h e s u b j e c t and r e q u e s t e d a payment of $25,000
t o t u r n over t h e f i l m s which had been taken by patrolman Thomas.
About an hour a f t e r h e had been taken t o t h e t r a i l e r and
t h e o t h e r men had r e t u r n e d t o t h e t r a i l e r , Pound wished t o go
t o t h e bathroom. Patrolman Thomas s a i d t h a t he would go w i t h him.
Pound asked i f he were under a r r e s t and Thomas r e p l i e d t h a t he
was.
During t h e p e r i o d of Pound's confinement i n t h e t r a i l e r
DeSaye made a phone c a l l t o t h e BlaimCounty s h e r i f f . A t about
5:00 p.m. S h e r i f f I4urdo MacLean and Deputy S h e r i f f Homer Duffner
a r r i v e d a t t h e DeSaye ranch and were met by Osmond Olson and
Floyd Robinson, an acquaintance of DeSaye, who had a r r i v e d i n
t h e meantime. Upon a r r i v a l a t t h e t r a i l e r t h e s h e r i f f s t a t e d t o
Pound t h a t he was under a r r e s t , r e a d a "Miranda warning" s t a t e -
ment, handcuffed him, and took him t o t h e s h e r i f f ' s c a r where h e
w a s placed i n t h e r e a r s e a t accompanied by deputy Duffner. After
a few minutes t h e s h e r i f f , accompanied by t h e o t h e r men, took
Pound over t o h i s Bronco v e h i c l e . I t i s undisputed t h a t no search
warrant had been obtained by t h e s h e r i f f and t h a t he d i d conduct
a s e a r c h of pound's v e h i c l e a t t h a t time. There i s , however, con-
f l i c t i n t h e testimony concerning whether Pound gave h i s permission
t o search the vehicle. The s h e r i f f removed some r i f l e s , f i r e a r m
s u p p l i e s , and a bag of c o i n s belonging t o DeSaye which were l a t e r
introduced i n t o evidence a g a i n s t Pound a t t r i a l .
Pound t e s t i f i e d a t t r i a l t h a t he took t h e p r o p e r t y from
Deaaye, h u t s t a t e d he f e l t he had n o t i f i e d DeSaye he would t a k e
sumething i f no payment was made on t h e d e b t of $1,375.
Defendant has assigned six issues for review but we will
consider only two inasmuch as four pertain to matters associated
with the counts in the Information of which defendant was acquited
and they cannot occur again during a new trial.
~efendant's issue one alleges the court erred in denying
defendant's motion to suppress the evidence seized in the search
of defendant's vehicle and admitting into evidence the items so
seized. Issue three, the second of the two we will discuss,
alleges the court erred in denying defendant's motion requiring
the witness Joseph DeSaye to produce all of his records concerning
his past transactions with defendant and others.
Defendant contends the search conducted on the Bronco
vehicle was in violation of rights guaranteed under the Fourth and
Fourteenth Amendments of the United States Constitution and under
Article 111, Sec. 7 of the Montana Constitution.
Section 95-602(a), R.C.M. 1947, provides:
II
An arrest is made by an actual restraint of the
person to be arrested, or by his submission to
the custody of the person making the arrest."
By application of that section Pound was placed under arrest
at the time he was taken from the Bronco and into the trailer
by Joe and Gregory DeSaye and border patrolman Thomas. Patrolman
~homas' testimony indicates that there was no doubt the law
officer considered Pound to be under arrest. At any rate the
initial arrest took place some hours before sheriff MacLean
arrived at the scene.
We cannot accept the state's contention that the sheriff's
search of Pound's vehicle was "incident to the arrest". The
search was not substantially contemporaneous in time with the
arrest. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19
T2 ed 2d 576; Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26
L ed 2d 409.
The state showed no exigent circumstances to justify the
warrantless search, such as physical danger to the law enforcement
o f f i c e r o r l o s s of evidence. Preston v. United S t a t e s , 376 U.S.
364, 84 S.Ct. 881, 1 L ed 2d 777;
1 Coolidge v . New Hampshire,
403 U.S. 443, 91 S.Ct. 2022, 29 L ed 2d 564; S t a t e v , Langan,
1 5 1 Mont. 558, 445 P,2d 565.
The s t a t e then contends Pound gave h i s permission t o t h e
s h e r i f f t o make t h e s e a r c h of h i s v e h i c l e . The s h e r i f f t e s t i f i e d
t h a t a f t e r he a r r i v e d a t t h e t r a i l e r where Pound was b e i n g h e l d
he r e a d a "Miranda statement", a g a i n informed Pound h e was under
a r r e s t , and handcuffed him. Then, according t o t h e s h e r i f f ' s
testimony, he s a i d "Knowing t h i s , do you wish t o answer any
q u e s t i o n s a t t h i s time?" Pound r e p l i e d "No", There i s n o t h i n g
i n t h e r e c o r d t o i n d i c a t e Pound was e v e r informed t h a t h e had a
r i g h t t o r e f u s e a s e a r c h of h i s v e h i c l e w i t h o u t a w a r r a n t . Pound
was taken handcuffed, i n t h e custody of t h e s h e r i f f , t h e deputy
*exiff, Lee Thomas t h e b o r d e r p a t r o l o f f i c e r , Joe and Gregory
DeSaye, Osmond Olson and Floyd Robinson, o u t t o h i s Bronco v e h i c l e .
The s h e r i f f t e s t i f i e d he then asked Pound "Do I have your per-
mission t o s e a r c h t h i s v e h i c l e ? " Pound r e p l i e d "yes, go ahead".
Pound denied he had been asked f o r h i s consent o r had given h i s
consent f o r t h e s e a r c h . The s h e r i f f t e s t i f i e d he thought t h a t
consent o r a warrant f o r t h e s e a r c h was unnecessary because h e
considered t h e s e a r c h t o b e i n c i d e n t t o t h e a r r e s t .
W have a l r e a d y determined t h e s e a r c h d i d n o t meet t h e
e
requirements of b e i n g " i n c i d e n t t o t h e a r r e s t " and, concerning
t h e c o n f l i c t i n testimony a s t o c o n s e n t , we f i n d t h a t r e g a r d l e s s
o f which v e r s i o n i s a c c e p t e d , a consent given under t h e s e circum-
s t a n c e s would n o t q u a l i f y a s an i n t e l l i g e n t and v o l u n t a r y waiver
of a c o n s t i t u t i o n a l r i g h t , Pound was a Canadian c i t i z e n born i n
England, presumably n o t knowledgeable of r i g h t s g r a n t e d under our
system of law, He had n o t been informed of h i s r i g h t t o r e f u s e
a warrantless search. He had been h e l d under a r r e s t f o r s e v e r a l
h o u r s , handcuffed, and taken t o t h e v e h i c l e i n t h e custody of
t h r e e law o f f i c e r s and f o u r o t h e r men who were a n t a g o n i s t i c t o h i s
Triterests.
When t h e s t a t e seeks t o i n t r o d u c e evidence obtained i n
a consent s e a r c h , i t must b e a r t h e burden of proving t h a t t h e
consent was i n t e l l i g e n t l y and v o l u n t a r i l y given. Kovach v.
United S t a t e s , 53 F.2d 639; Rigby v , United S t a t e s , 247 F.2d 584,
Here, t h e s t a t e h a s n o t s u s t a i n e d i t s burden of p r o o f , and t h e
circumstances a t t e n d a n t t o t h i s s e a r c h appear i n h e r e n t l y c o e r c i v e .
I n d e f e n d a n t ' s t h i r d assignment of e r r o r , he contends
t h e t r i a l c o u r t e r r e d i n denying t h e motion t o r e q u i r e t h e w i t n e s s
Joseph DeSaye t o produce a l l h i s r e c o r d s concerning h i s p a s t c o i n
t r a n s a c t i o n s w i t h defendant and o t h e r persons which r e l a t e d t o
t r a n s a c t i o n s w i t h defendant.
The r e c o r d d i s c l o s e s t h a t a subpoena duces tecum ( p l a i n t i f f ' s
e x h i b i t S-1) was i s s u e d by t h e B l a i n e County d i s t r i c t c o u r t and
served by t h e s h e r i f f upon Joseph DeSaye on A p r i l 28, 1972, ac-
c o r d i n g t o t h e r e t u r n which was duly f i l e d . O cross-examination,
n
DeSaye admitted he was p r e s e n t a t a p r e t r i a l conference and was
i n s t r u c t e d by t h e c o u r t t o produce a l l r e c o r d s r e l a t i n g t o c o i n
transactions, He a l s o admitted t h a t he had c e r t a i n r e c o r d s of
c o i n t r a n s a c t i o n s i n v o l v i n g a M r . Buyers i n Canada, f o r whom Pound
had a c t e d a s an i n t e r m e d i a r y . These r e c o r d s were never produced
i n t o c o u r t by DeSaye and t h e c o u r t denied a subsequent motion t o
produce t h e s e r e c o r d s , a p p a r e n t l y on t h e basis of i r r e l e v a n c e .
~ e ~ a y e e v a s i v e and f o r g e t f u l testimony a s concerned t h e s e
's
v a r i o u s t r a n s a c t i o n s was such a s t o c a s t an a u r a of t a i n t and
s u s p i c i o n over t h e p a s t r e l a t i o n s h i p between himself and Pound;
t h e p a s t c o i n importing p r a c t i c e s of DeSaye; t h e circumstances
surrounding t h e manner i n which DeSaye's p r o p e r t y was taken by
Pound; and, i n f a c t , t h e remainder of DeSaye's e n t i r e testimony.
I t was s t a t e ' s w i t n e s s DeSaye who introduced t h e s u b j e c t
of p a s t c o i n t r a n s a c t i o n s between himself and Pound. The m a t t e r
w a s c l e a r l y r e l e v a n t a s i t p e r t a i n e d t o r e a s o n s f o r animosity
between t h e two men a r i s i n g from such p a s t t r a n s a c t i o n s . I t went
d i r e c t l y t o t h e i s s u e o f DeSaye's c r e d i b i l i t y a s a w i t n e s s .
In State v, McKnight, 129 Mont, 8, 19, 281 ~ . 2 d816,
This Court quoted from 58 Am Jur Witnesses $632, the general
rule that cross-examination should be allowed to examine any
phase of a general subject introduced on direct examination,
and then went on to say:
"This court has said: 'The right of cross-examina-
tion, as has been often said, is a valuable and
substantial right, and the courts should incline
to extend, rather than restrict it. Cross-examina-
tion is the most potent weapon known to the law for
separating falsehood from truth, hearsay from actual
knowledge, things imaginary from things real, opinion
from fact, and inference from recollection, and for
testing the intelligence, fairness, memory, truth-
fulness, accuracy, honesty and power of observation
of the witness. It has become a truism in the legal
profession that ---
"The testimony of a witness is
not stronger that [sic] it is made by his cross-
examination."'State v. Ritz, 65 Mont. 180, 187s 211
Pac, 298, 300." (Emphasis added).
The trial court's departure from its prior ruling on the
subject of the production of these records unduly curtailed de-
fendant's right of cross-examination,
The judgment of conviction is reversed and the cause is
remanded to the district
--------------
Associate &
- - - - - - " - - I - - - -
ustices
Mr. Justice John Conway Harrison dissenting:
1
I dissent.