No. 14745
IN THE SUPREME COURT OF THE STATE OF MONTANA
1979
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
DONALD D. HALL,
Defendant and Appellant.
Appeal from: District Court of the Fourth Judicial District,
Honorable Jack L. Green, Judge presiding.
Counsel of Record:
For Appellant:
Morales, Volinkaty and Harr, Missoula, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Robert L. Deschamps, 111, County Attorney, Missoula, Montana
Submitted on briefs: August 13, 1979
Decided: QCT = 1979
T - 132
Filed:
Mr. Chief Justice Frank I. Haswell delivered the Opinion of the
court.
Defendant Donald D. Hall was convicted of two counts of
aggravated assault on his two-year old stepson following a jury
trial in the District Court of Missoula County. He appeals from
the judgment of conviction.
Defendant and the child's mother, Cathy, were married
in June, 1977, following the death of the child's father. On
August 21, 1977, just prior to 5:00 p.m. Cathy Hall left home to
pick up some chicken for dinner and was gone about 20 minutes.
Defendant and the child were home alone. On her return Cathy
asked defendant where the child was. Defendant replied that the
child was tired and wanted to lie down. Cathy went downstairs
but was unable to arouse the child who seemed unconscious. Cathy
and defendant took the child to the emergency room of the Missoula
Community Hospital. While there, Cathy asked defendant how the
injuries occurred. Defendant said the child was riding his new
19" tricycle, tipped over on it, and hit the wall.
The same story was given by both parents to Dr. Henry Gary,
a neurological specialist who inquired in order to proper1.y treat
the child. From the facts obtained from the parents and his med-
ical findings, Dr. Gary diagnosed the child as having a subdural
hematoma and as being a battered child. Dr. Gary testified it
was highly unlikely the injury could have occurred as defendant
claimed, as defendant's story did not coincide with his medical
finding.
Because of Dr. Gary's diagnosis of child abuse, the Montana
Department of Social and Rehabilitation Services was contacted
and social worker McCluskie assigned to the case. McCluskie spoke
to defendant and his wife concerning the incident and was given
the same explanation. Dr. Daniel Harper, a Missoula pediatrician
and an expert in child abuse, was called in and spoke to the parents.
He likewise concluded it was a case of child abuse.
The second incident occurred on October 30, 1977. Again
Cathy Hall was temporarily away from home and the child was in
defendant's care. Upon returning and finding no one home, she
immediately drove to the Missoula Community Hospital where de-
fendant told her he had been flipping the child in the air above
a bed and that the child's leg had been broken. The same explan-
ation was given by defendant and his wife to Dr. Steven Wisner, the
pediatrician on call at the hospital. Dr. Wisner found that the
child had a long spiral fracture of the left femur and other un-
explained bruises, including bruises on the ears. Dr. Wisner deter-
mined it was highly unlikely that the fracture of the child's femur
could have occurred in the manner indicated. His diagnosis was
"unexplained trauma" which was reported as suspected child abuse.
Cathy called social worker McCluskie to the emergency room
where defendant repeated the "flipping" story. Dr. Robert Cunning-
ham, an orthopedic specialist who was called in, testified that
defendant's explanation of how the child's injury occurred was
highly unlikely because of the significant force that would have
to be applied to cause such a break. Dr. David Jacobsen, another
orthopedic specialist who treated the child after the emergency
room treatment, testified it was unlikely the injury occurred as
defendant related.
Police were not called in until Dr. Wisner called them.
Detective Scott Graham advised both Cathy and defendant of their
Miranda rights at the hospital, inquired how the incident occurred,
and both parents repeated the explanation previously given the
doctors.
An information charging defendant with two counts of ag-
gravated assault was filed on March 2, 1978. Defendant pleaded not
guilty and trial was set for May 1. Defendant waived his right
to a speedy trial and obtained a continuance of his trial until
the fall jury term. Eight days before the trial date of October
2 defendant filed a motion to suppress all statements and admis-
sions made by him to his wife Cathy, Dr. Gary, Dr. Wisner, social
worker McCluskie, and to any other persons involved in the crim-
inal investigation. Four days later defendant filed a brief in
support of his motion to suppress. The District Court denied the
motion. The motion was renewed during the course of trial and
again denied.
Defendant also moved to separate the two counts prior to
trial. The motion was subsequently withdrawn. Trial proceeded
and the jury returned a verdict of guilty on both counts. Judg-
ment was entered and defendant was sentenced to 10 years on each
count to be served concurrently, and the sentence was suspended.
Defendant has appealed from the judgment of conviction.
Defendant raises three specifications of error:
(1) Denial of his motion to suppress.
(2) Refusal to permit him to introduce exculpatory, re-
habilitative and impeaching evidence from a civil proceeding under
the Abused, Dependent and Neglected Child Act.
(3) Denial of his motion to try the two counts separately.
We hold that the District Court's denial of his motion to
suppress was proper on two grounds: (1) the motion was untimely,
and (2) it was correctly denied on the merits.
Defendant's motion to suppress was untimely as it was not
made until 8 days before trial. The applicable statute requires
at least 10 days notice. Section 46-13-301, MCA. Here the defen-
dant waited over 7 months after he was charged to file his motion
and then filed it only 8 days prior to trial.
The thrust of defendant's argument is that his statements
and admissions were procured by persons acting as alter egos of
law enforcement under the guise of civil proceedings relating to
dependent, neglected and abused children and then using this
information to prosecute him criminally. He claims that this
subjects his statements and admissions to exclusion as violat-
ing his constitutional right against self-incrimination.
Defendant's motion to suppress was properly denied on
the merits. The record shows that the statements to his wife
Cathy, Dr. Gary, Dr. Wisner and social worker McCluskie were
voluntarily given by him. Miranda warnings and safeguards do not
apply to these statements and admissions because he was not a
criminal suspect in police custody at the time the statements
and admissions were made. See Miranda v. Arizona (1966), 384
U.S. 436, 86 S.Ct. 1602, 16 L Ed 2d 694; State v. Johnson (1978),
Mont. , 580 P.2d 1387, 35 St.Rep. 952; State v. Hallam
(1978), Mon t . , 575 P.2d 55, 35 St.Rep. 181. Contrary to
defendant's claim, neither the doctors nor the social worker
were law enforcement agents nor was defendant in custody within
the purview of Miranda. See Oregon v. Mathiason (1977), 429 U.S.
492, 97 S.Ct. 711, 50 L Ed 2d 714. Clearly, defendant's wife Cathy
was not a law enforcement agent. The statements to Detective
Graham were made after the Miranda warning was given.
Defendant contends that the statements he made violated
his right of privacy guaranteed by Art. 11, Sec. 10, 1972 Mont.
Const. The statements were freely and voluntarily given. There
is no element of surreptitious obtaining of the information or
securing information after consulting law enforcement officers.
Cf. State v. Coburn (1974), 165 Mont. 488, 530 P.2d 442, and
State v. Brecht (1971), 157 Mont. 264, 485 P.2d 47. Additionally,
constitutional provisions on right of privacy permit its invasion
upon a showing of a compelling state interest. That compelling
state interest is clearly shown in child abuse cases by the decla-
ration of policy contained in section 41-3-101, MCA.
Defendant's second specification of error relates to
the District Court's sustaining objections to evidence he sought
to introduce that he claims is exculpatory, rehabilitating and
impeaches testimony offered by the State. He refers to an
attempt to impeach a state's witness by prior inconsistent state-
ments and his attempt to elicit from the child victim's grand-
mother statements made to her by the child victim. Defendant
does not tell us nor does the record disclose the nature of the
alleged impeaching testimony or the child victim's statements to
his grandmother. No offer of proof was made. Absent this, we have
no basis for review. Rule 103 (a)(2), Mont. R.Evid.
The final specification of error is the denial of defen-
dant's motion to try each of the two counts separately. The min-
utes of the District Court show that this motion was withdrawn in
the Court's chambers immediately prior to trial. This specifica-
tion of error is frivolous.
We have examined the other authorities cited by defen-
dant in his brief. We have no quarrel with these authorities.
They simply do not apply under the facts of this case. An extend-
ed discussion of these authorities in this opinion would serve no
useful purpose nor change the result in this case.
Affirmed.
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Chief Justice
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We co cur:
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