No. 13383
I N THE SUPREME COURT OF THE STATE OF M N A A
OTN
1977
STATE O MONTANA,
F
P l a i n t i f f and R e s p o n d e n t ,
-vs-
STEPHON VINCENT BENITO HALLAM,
D e f e n d a n t and A p p e l l a n t .
Appeal from: D i s t r i c t Court of t h e Eighth J u d i c i a l D i s t r i c t ,
H o n o r a b l e P a u l G. H a t f i e l d , J u d g e p r e s i d i n g .
C o u n s e l of Record:
For A p p e l l a n t :
R o b e r t W. Gabriel argued, Great F a l l s , M~ntana
L e s l i e W. F h i t e , I11 a r g u e d , G r e a t F a l l s , Montana
F o r Respondent:
Hon. l l i k e G r e e l y , A t t o r n e y G e n e r a l , arcjued, H e l e n a ,
Montana
J . F r e d Bourdeau, County A t t o r n e y , a r g u e d , G r e a t F a l l s ,
Montana
Submitted: September 2 0 , 1977
Filed:
FEB 6 - 1378
&? %@? --A?.--
Clerk .
-
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
Defendant was convicted of one count of arson and three
counts of deliberate homicide in the District Court, Cascade
County. From the judgment of conviction and the denial of his
motion for a new trial, defendant appeals.
In the early morning hours of July 4, 1975, a fire occurred
in an apartment house at 507 - 509 Fourth Street South, Great
in
Falls, Montana. There were four separate apartments/the building,
housing about ten people. At the time of the fire, Fred Cobb and
his three half-sisters were occupying a second floor apartment at
the head of the stairs. Cobb was sleeping on the couch and was
awakened by the smoke. He opened the apartment door leading to
the stairs but retreated from the heat and the smoke. He awoke
one sister who was also sleeping in the living room, told her to
get the others, and escaped by crawling out a window. The girls
did not make it out and were asphyxiated.
On July 10, 1975, defendant, Stephon Vincent Benito Hallam,
was arrested for setting fire to the apartment house and for the
resulting deaths.
The apartment building where the fire occurred had been
operated by one Virginia Heckman, who had been defendant's "girl
friend". Defendant had at times stayed with Mrs. Heckman in her
apartment in the building and at times had a key to her apartment.
There was testimony that three days prior to the fire Mrs.
Heckman decided to terminate the relationship. There was also
testimony that defendant had stated they had a "blowout", but
defendant testified that he was not aware of any problem between
them.
The fire was investigated by several members of the Great
Falls fire department as well as the Great Falls police department.
Debris was gathered from the area of the fire and examined at the
State Crime Lab in Missoula, Montana. The Lab determined the
presence of a highly flammable liquid, a type of kerosene, from
debris gathered in the front entryway outside Virginia Heckman's
apartment door.
Howard Clos, Jr. is a nephew of defendant and a fireman
for the city of Great Falls. He testified that defendant spent
several hours on July 5, 1975, at the fire station talking to
Clos. Defendant kept quizzing his nephew as to whether the fire
department thought the fire was arson caused. Before leaving,
he informed Clos, "the reason that I am really worried is because
I did do it." He allegedly stated he piled garbage up and set
the carpet on fire. He also indicated a belief that certain
flammable liquids could be used to set a fire without being de-
tected.
Defendant and a friend had removed a gas stove and re-
placed it with an electric stove at Mrs. Heckman's apartment at
approximately the end of June, 1975.
The theory of the prosecution was that defendant deliber-
ately set the fire for revenge against Mrs. Heckman. The theory
of the defense was that defendant thought he was to blame for the
fire as a result of changing the stoves and failing to do a proper
job of wiring and capping off the gas.
Defendant was found guilty on all counts and sentenced to
consecutive terms of one hundred years each on the three homicide
counts and 20 years on the arson count.
Defendant presents eight issues on appeal:
1. The court lacked jurisdiction because of fatal errors
in the affidavit for leave to file an Information.
2. The court erred in granting the prosecution's motion
to amend Count IV of the Information after the defendant had enter-
ed a plea and during the jury selection;
3. The court erred in prohibiting all voir dire examin-
ation of potential jurors regarding the homicide charges and
capital punishment;
4. The court erred in allowing the fire department
witnesses to speculate as to the cause of the fire without the
necessary evidentiary foundation and without having the question
posed in the necessary hypothetical question form;
5. The trial testimony of Howard Clos, Jr. constituted
surprise and should have been excluded;
6. The trial testimony of Howard Clos, Jr. should not
have been admitted without a hearing to establish that it met
constitutional requirements;
7. The court erred in allowing certain jury instructions
that certain admissions of defendant constituted direct evidence
and further, by refusing instructions regarding indirect and cir-
cumstantial evidence; and
8. The court erred in allowing the prosecution to spec-
ulate in closing argument about evidence not in the record.
The affidavit in support of the state's motion for leave
to file the Information direct states, in pertinent part:
"That on or about the 4th day of July, 1975, at
Great Falls, Cascade County, Montana, the defen-
dant herein, VINCENT STEPHON HALLAM, caused the
death of Sherry Rose, Charlotte Rose and Charlene
Rose, by setting fire to the premises at 509 - 4th
Street South, Great Falls, Cascade County, Montana;
that the defendant has admitted to having set the
said fire by igniting flammable materials at or
near the entry way to the said premises; that the
investigation of the fire at these premises by
the Great Falls Fire Department determined that the
fire was caused by intentional means and that the
origin was in the entry way of the premises.
"That the State of Montana will prove by the testi-
mony of the witnesses whose names are endorsed on '
the back of the Information, together with physical
evidence obtained in the investigation and testing
done thereon, as well as by the admission of the
defendant herein, that the defendant, VINCENT
STEPHON HALLAM, is guilty of the crimes of COUNTS I,
I1 and 111: DELIBERATE HOMICIDE, A FELONY, in
violation of Section 94-5-102 (1)(b), R.C.M. 1947
as amended and COUNT IV: ARSON, A FELONY, in
violation of Section 94-6-104 (1)(a), R.C.M. 1947
as amended."
In order to obtain permission to file an Information
direct in District Court, the state must satisfy the judge
that there is probable cause to believe that an offense has been
committed by the defendant * * *." Section 95-1301(a), R.C.M.
1947. Where, as here, a warrant of arrest is issued on the basis
of the granting of the leave to file direct (section 95-1301(b)),
a constitutional question arises. The Fourth Amendment forbids
the issuance of a warrant of arrest unless probable cause is shown
and supported by oath or affirmation. Giordenello v. United States,
357 U.S. 480, 485, 78 S.Ct. 1245, 2 L ed 2d 1503 (1958).
The existence of probable cause must be determined by the
independent judgment of a detached magistrate. Aguilar v. Texas,
387 U.S. 108, 111, 84 S.Ct. 1509, 1512, 12 L ed 2d 723 (1964).
The Revised Commission Comment to section 95-1301 notes:
" * * * Obtaining leave to file an information is
not a mere perfunctory matter, but rests in the
sound discretion of the district judge. The appli-
cation must be complete in itself, and contain such
salient facts as will allow the district judge to
make an independent determination that an offense
has been committed. * * * "
The facts alleged by the county attorney in the affidavit
are :
(1) Defendant caused the death of three persons by
setting fire to the apartment building;
(2) Defendant admitted setting the fire by igniting
flammable materials near the entrance;
(3) The Great Falls fire department determined that the
fire was intentionally set; and
(4) The state believes it can prove the defendant guilty
of the offenses charged.
In a series of cases following State ex rel. Juhl v.
District Court (1938), 107 Mont. 309, 84 P.2d 979, 120 A.L.R.
353, this Court has considered the proper procedure for the
application and motion for leave to file an Information. Nelson
v. State (1964), 144 Mont. 439, 397 P.2d 700; State v. Peters
(1965), 146 Mont. 188, 194, 405 P.2d 642; State v. Corliss (1968),
150 Mont. 40, 430 P.2d 632: See also 25 14ont. Law. Rev. 135 (1963)
and 26 Mont. Law. Rev. 9 (1964).
The Court in Peters noted:
" * * * This court has consistently held that leave
to file is not a perfunctory matter, and that it
must not be automatically granted. Sufficient facts
must be presented to move the court's discretion to
grant leave. (Citations omitted.)"
It should be noted that at the time of the request for
an order to file direct, the trial court held an extended hear-
ing thereon with briefs and oral argument. The hearing was to
comply with the most recent United States Supreme Court decision
in Gerstein v. Pugh, 420 U.S. 103, 119, 95 S.Ct. 854, 43 L Ed 2d
54 (1975)) and the court found that sufficient information was
produced to warrant the granting of the leave to file the Infor-
mation and warrant of arrest.
We hold that the fact the affidavit revealed an admission
to setting the fire (2) was sufficient along with (3), an indi-
cation that the fire was intentionally set to warrant the action
of the trial court. Particularly in view of the fact a separate
hearing was held after the issuance of leave to file the Informa-
tion and warrant of arrest. This information was clearly suffi-
cient to establish probable cause.
The Information filed in District Court July 10, 1975,
charged defendant with three counts of deliberate homicide (one
count for each person killed in the fire) and one count of arson.
Defendant plead not guilty to all four counts. The arson count
charged :
"That at the County of Cascade, State of Montana,
on or about the 4th day of July, A.D. 1975, and
before the filing of this Information, the said
defendant then and there being, did then and there
by means of fire, knowingly or purposely, without
consent, damaged or destroyed an occupied struc-
ture of Walter Peck, namely an apartment building
located at 509 - 4th Street South, Great Falls,
Montana, in violation of Section 94-6-104 (1)(a),
R.C.M., 1947, as amended."
On the opening day of the trial, the county attorney's
motion was granted to amend the arson count to charge defendant
under subsection (b) rather than subsection (a) of the arson
statute :
"That at the County of Cascade, State of Montana,
on or about the 4th day of July, A.D. 1975, and
before the filing of this Information, the said de-
fendant then and there being, did then and there by
means of fire knowingly or purposely place Sherry
Rose, Charlotte Rose, and Charlene Rose in danger
of death, in violation of Section 94-6-104 (1)(b),
R.C.M. 1947 as amended;"
Defendant contends this amendment was a matter of sub-
stance and in violation of section 95-1505(b), R.C.M. 1947;
"(b) The court may permit any charge toy%mended
as to form at any time before verdict or finding
if no additional or different offense is charged and
if the substantial rights of the defendant are not
prejudiced."
An amendment of an Information subsequent to pleading must
meet the two-pronged test set forth in State v. Brown (1976),
Mont . , 560 P.2d 533, 535, 33 St.Rep. 820:
" * * * (1) such an amendment is only allowed
as to matters of form, and (2) only when no sub-
stantial right of the defendant is prejudiced. * * *"
This Court in Brown held that an attempted amendment of
a charge of aggravated assault by causing "serious bodily injury"
to aggravated assault by causing "reasonable apprehension of
serious bodily injury" was substantive and therefore not allow-
able. Accordingly, we hold the amendment should not have been
granted.
The District Court refused to allow defense counsel to
ask prospective jurors about their conscientous opinions regard-
ing the death penalty. The court took the position that since
the sentencing function rests solely with the judge, such in-
quiry is irrelevant.
Defendant notes that section 95-1909(4) (b)(viii), R.C.M.
1947, allows either party to challenge for cause, in a capital
case, any juror having such conscientious opinions as would pre-
clude finding a defendant guilty. It is difficult to see how
defendant can complain that this statute was violated. The
empaneling of such a juror could only be for his benefit.
Nor do the cases cited by defendant bolster his position.
Defendant certainly has an unqualified constitutional right to a
fair and impartial jury. State v. Russell (1925), 73 blont. 240,
235 P. 712. But the defense has not shown how a juror's opinions
either favoring or disfavoring capital punishment make such a
juror more likely to convict defendant. The Supreme Court in
Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L Ed 2d
776 (1968) considered a jury selection process by which any pros-
pective juror opposed to the death penalty could be challenged
for cause. While the Court concluded such a jury could not con-
stitutionally sentence a defendant to death, it expressly refused
to reverse defendant's conviction on that basis. The Court could
not find that such a jury substantially increased the risk of
conviction. Witherspoon, supra, 391 U.S. at 517. See also Bumper
v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L Ed 2d 797 (1968).
It is clearly within the rulings of Witherspoon and Bumper
that inquiry be made as to such conscienti~usopinions of prospec-
tive jurors that would preclude them from finding a defendant
guilty. Thus the state could complain with some merit about the
restriction of voir dire in this case. There is no authority,
however, for the proposition that such restriction is prejudicial
to defendant, and we decline to so hold.
The defense next contends the court erred in allowing
fire department witnesses to speculate as to the cause of the
fire without the necessary evidentiary foundation and without
having the questions posed in hypothetical form.
It has never been the law that a hypothetical question
is indispensable to the testimony of the opinion of an expert
witness. The cases cited by defendant only require the witness
to testify as to the facts upon which he bases his opinion.
Boehler v. Sanders (1965), 146 Mont. 158, 404 P.2d 885; Irion v.
Hyde (1940), 110 Mont. 570, 105 P.2d 666.
The witnesses in question were experts. They were testify-
ing from facts revealed through investigation carried out by
themselves and under their direction. They testified as to the
facts and were available for full cross-examination. The nistrict
Court was correct in its ruling.
The defense claims surprise at the trial testimony of
Howard Clos, Jr. Clos gave a statement July 10, 1975, which was
made available to defense counsel and which detailed defendant's
admission. Defense counsel also had the opportunity to interview
Clos about the incident. At trial Clos quoted defendant as using
certain profane and vulgar language which Clos had not previously
mentioned. Clos, referring to defendant, stated:
"He said
that
that -- he says, '1'11 be back to burn
out.' He says, 'If the fire
marshal1 hadn't of closed that building down,'
he says, 'I would have been back today.'"
While the addition of the profanity may have been damag-
ing to defendant, Clos's testimony did not differ in substance
from his prior statement. Defense counsel had the opportunity to
impeach Clos with the prior statement, and they did so. Defen-
dant's claim of surprise is without merit.
The defense argues the trial testimony of Howard Clos
should not have been admitted without a hearing to establish
that Miranda warnings had been given and that defendant's con-
fession was voluntary.
The Supreme Court in Jackson v. Denno, 378 U.S. 368,
84 S.Ct. 1774, 12 L Ed 2d 908, 1 ALR3d 1205 (1964) held that
where the voluntariness of a confession is brought into question,
a defendant has a constitutional right to a hearing on the volun-
tariness issue. Jackson is not applicable to the instant case.
Here there was never an issue regarding the voluntariness of the
statements. Defendant initiated the conversation with Clos. He
way
never claimed his statements were in any/coerced. Defendant
testified that his remarks must have been misunderstood by Clos,
but did not even intimate that they were not voluntary.
Miranda warnings are necessary to protect the Fifth
Amendment rights of an accused undergoing "custodial interroga-
tion". Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16
L Ed 2d 694 (1966). The Supreme Court in Miranda noted:
"By * * * custodial interrogation, we mean
questioning initiated by law enforcement officers
after a person has been taken into custody or
otherwise deprived of his freedom of action in
any significant way. * * * "
Clos was not a law enforcement officer. There is no in-
dication that defendant was deprived of his freedom of action by
anyone at the time the statements were made. No Miranda warn-
ings were necessary.
Defendant cites as error the refusal of the ~istrictCourt
to give defendant's proposed instruction No. 2, an instruction
that " * * * the evidence presented against the defendant is en-
tirely circumstantial * * *."
Instructions on circumstantial evidence, such as the one
offered here, are proper only when there is no direct evidence of
the corpus dilecti. State v. Stoddard (1966), 147 Mont. 402, 412
P.2d 827; State v. Mah Sam Hing (1930), 89 Mont. 178, 295 P. 1014.
This Court has held that a confession constitutes direct
evidence and that it is not error to refuse a circumstantial
evidence instruction when there is testimony of a confession.
State v. White (1965), 146 Mont. 226, 240, 405 P.2d 761.
Defendant contends the statement related by Clos is not
a confession, but is an admission. A 'confession' is an admission
of crime itself and an 'admission' concerns only some specific
fact which, in turn, tends to establish guilt or some element of
the offense. This distinction is clearly stated in Gladden v.
Unsworth, 396 F.2d 373, (9th Cir. 1968).
Clos'stestimony was that defendant told him that he "did
it". In addition he said that if the fire marshal had not closed
the building he would have gone back that day and burned it. This
goes to the central fact of guilt and was a confession. The cir-
cumstantial evidence instruction was properly refused.
The final issue raised by the defense concerns the clos-
ing argument of the county attorney. According to the state's
theory of the case, the fire burned for 30 to 40 minutes before
it was put out. Under this theory, the fire would have had to
have been burning at 5:10 a.m. when a fireman on his way to work
passed near the location but did not see any smoke. The county
attorney postulated that the smoke was not immediately visible
because the doors to the entryway, where the fire started, were
closed. Defense counsel objected to this on the basis that the
evidence showed the front door was a screen door. His objection
was overruled.
We find no error here. Both the prosecution and the
defense presented their respective theories regarding the origin
and timing of the fire. The jury is instructed as to what con-
stitutes evidence. The state's theory was not an unfair inference
from the evidence presented.
W a f f i r m t h e t h r e e c o n v i c t i o n s on t h e homicide
e
c o u n t s and r e v e r s e on c o u n t No. 4 .
W e concur:
................................
Justices
................................
Hon. LeRoy L . McKinnon, D i s t r i c t
Judge, s i t t i n g i n p l a c e of M r .
Chief J u s t i c e P a u l G. H a t f i e l d .
I concur in the foregoing opinion, but not
all the statements contained therein.
Mr. Justice Daniel J. Shea dissenting:
In addition to reversing the arson conviction, I would also
reverse the homicide convictions.
None of the charges in this case can withstand the scrutiny
as to whether probable cause existed for the original arrest as is
compelled by Giordenello v. United States, 357 U.S. 480, 73 S.Ct.
1245, 2 L ed 2d 1503 (1958). Nor can the convictions withstand
the scrutiny of our own statutes relating to the requirement of
probable cause.
In the context of this case, I would not reverse for the
sole reason of not allowing the defense to inquire into the jurors'
attitudes on capital punishment; nevertheless, I believe the Dis-
trict Court also erred in not allowing this inquiry, even though
punishment is ultimately a function of the court. I believe the
widest possible latitude on voir dire should be allowed the defense
and prosecution in a criminal case. Voir dire examination is one
of the most important (and most neglected) parts of the entire
trial. In the interests of fairness it ought not be unduly restricted.
The question of whether there was probable cause for the
filing of the information and, consequently, for the issuance of
the arrest warrant, must be put in its proper perspective. This
is not a situation where we are asked to review the sufficiency
of the evidence to sustain the ultimate convictions obtained in
this case. Rather, we are asked to determine if probable cause
existed for the original filing of the charges and the issuance
of the warrant of arrest. That inquiry must be confined solely
to the application for leave to file the information (for no other
evidence was offered at that time), and the answer must be a re-
sounding "no".
To buttress the total lack of factual statements in the
application, the majority relies on a hearing held after the defend-
ant was arrested. However, even this hearing did not include the
taking of evidence. It was confined to briefs and oral arguments
on the question of whether probable cause existed to arrest the
defendant. Apparently, this hearing was held in order to comply
with the requirements of Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct.
854, 43 L ed 2d 54 (1975). It must again be emphasized that the
hearing was held after the arrest and that no additional evidence
was received.
We have, accordingly, a situation where the county prosecu-
tor elected to rely on the sufficiency of his application for
leave to file the information to justify the issuance of the arrest
warrant. Where he fails in that regard, it is not our duty to
bail him out simply because the ultimate convictions were supported
by sufficient evidence. There was no law that required the prose-
cutor to stand on the sufficiency of the application for leave to
file the information. He could have decided that the previous
application was inadequate, dismissed the charge, and them immedi-
ately filed an application containing sufficient factual statements
to justify a finding of probable cause. Having elected to stand
on his original application, the prosecutor must have known that
any ultimate convictions must withstand judicial scrutiny of whether
probable cause was stated to justify the arrest and subsequent
criminal proceedings. Needless to say, any evidence brought forth
at pretrial hearings or the actual trial cannot relate back to the
original filing to save a conviction.
The majority relies on four statements contained in the
application for leave to file the information, but recognizes that
only the second and third statements are applicable to a determina-
tion of the existence of probable cause. The majority summarizes
the application as follows:
"The facts alleged by the county attorney
in the affidavit are:
"(1) Defendant caused the death of three
persons by setting fire to the apartment building;
"(2) Defendant admitted setting the fire
by igniting flammable materials near the entrance;
"(3) The Great Falls Fire department determined
that the fire was intentionally set; and
"(4) The state believes it can prove the defend-
ant guilty of the offenses charged."
As to probable cause contained in these statements the majority
concluded:
"We hold that the fact the affidavit revealed
an admission to setting the fire (2) was sufficient
along with ( 3 ) , an indication that the fire was in-
tentionally set to warrant the action of the trial
court. Particularly in view of the fact a separate
hearing was held after the issuance of leave to file
the Information and warrant of arrest. This infor-
mation was clearly sufficient to establish probable
cause. "
Contrary to these conclusions, I believe that the applica-
tion is totally devoid of probable cause. By not addressing points
(1) and (4), the majority tacitly agrees that they add nothing to
establish probable cause. And surely they are correct in this
analysis. The statement in (1) that defendant caused the death
of three persons is a bald conclusion. Moreover, it does not indi-
cate whether the deaths were intentionally caused or could have
been accidentally caused. Likewise, the statement in (4) that the
state believed it could prove the defendant guilty of the offense
charged is a conclusion, adding nothing to the requirements \of
probable cause.
The statement in (2) that defendant admitted setting the
fire by igniting flammable materials adds nothing to the require-
ment that the fire be deliberately set as opposed to accidentally
set. And neither do we have any idea of the circumstances and con-
text in which defendant allegedly made this statement. To whom did
he make this statement? Was it a child, a policeman, a relative,
a friend, an eavesdropper? Was the person reliable? The record
is silent on these questions.
The statement in (3) that the Great Falls fire department
determined that the fire was intentionally set is also a mere con-
clusion. When did the fire department determine this? How was it
determined? What was the basis for making this determination? Who
made this determination? Was there independent evidence linking
defendant to the scene of the crime or with any of the occupants who
were killed in the fire? On these matters, the application is also
silent.
The law requires, as the majority agrees, that there be
factual statements contained in the moving papers so that the Dis-
trict Court can make an independent determination that probable cause
does exist. Here, the District Court had nothing but bald conclu-
sions. The majority interprets -
Aguilar, supra, to require that
"the existence of probable cause must be determined by the indepen-
dent judgment of a detached magistrate". Here, there were no facts
upon which the District Court could have made an independent judg-
ment. Moreover, the application flies in the face of section 95-
1301, which the majority purports to follow. The majority quotes
with approval the following language from the Revised Commission
Comment to section 95-1301, but then totally ingnores its applica-
tion:
" * * * Obtaining leave to file an information is
not a mere perfunctory matter, but rests in the
sound discretion of the district judge. The appli-
cation must be complete in itself, and contain such
salient facts was will allow the district judge to
make an independent determination that an offense
has been committed. * * * ' (Emphasis added.)
I cannot imagine a more incomplete application than was filed
in this case, nor a more perfunctory treatment by the prosecutor and
District Court. The application contained no facts, let alone salient
facts, and for this reason the District Court was in no position to
make any independent judgment that an offense had been committed.
There was no room for the District Court to exercise its discretion.
Leave to file should have been denied as a matter of law. If the
District Court performed its duties, and the prosecutor his, it
would have been a simple matter for the prosecutor to refile and
the District Court to approve a legally sufficient application. As
matters now stand, these convictions cannot withstand an attack on
the original probable cause required before the issuance of a war-
rant of arrest. The convictions should be reversed.
P 2 d . A
Justi