No. 14797
IN THE SUPREME COURT-OF THE STATE OF MONTANA
1980
THE STATE OF MONTANA,
Plaintiff and Respondent,
VS .
HAROLD ARMSTRONG,
Defendant and Appellant.
Appeal from: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone,
Honorable Robert W. Wilson, Judge presiding.
Counsel of Record:
For Appellant:
Berger, Anderson, Sinclair and Murphy, Billings, Montana
Donald W. Molloy argued, Billings, Montana
For Respondent :
Hon. Mike Greely, Attorney General, Helena, Montana
Chris D. Tweeten argued, Assistant Attorney General,
Helena, Montana
Harold F. Hanser, County Attorney, Billings, Montana
Charles Bradley argued, Deputy County Attorney,
Billings, Montana
Submitted: March 25, 1980
Decided: SEp 3.
1980
Filed: LP : -
E .
..
Mr. Justice John C. Sheehy delivered the Opinion of the Court.
his is an appeal from a judgment entered in Yellowstone
County District Court, pursuant to a jury verdict finding
Harold Armstrong guilty of the crimes of deliberate homicide
and robbery. Although the facts have been set forth in a
prior appeal, we will briefly iterate them.
At approximately 8:00 a.m. on January 22, 1975, the
body of Lynn Lords was found in a boiler room located in a
Billings alley. There were multiple stab wounds in Lords'
neck, back and chest. The cause of death was determined to
be due to a massive blood loss from the wound in the neck.
Lords had participated in a poker game at the Crystal
Lounge in Billings on the previous night, January 21-22,
1975,until about closing time when he cashed in chips valued
at about $400. Harold Armstrong participated in the same
poker game but cashed in no more than $30 worth of chips at
the end of the game.
Armstrong and Lords separately entered the Crystal
Lounge early on January 21, 1975. Both men apparently left
separately and by different exits at about 2:00 a.m., January
22, 1975. When Armstrong entered the establishment he was
wearing a blue coat and a gunbelt holstering a pistol and
sheathing a hunting knife. Armstrong checked the belt, gun
and knife at the bar. He later gave the pistol to a Crystal
employee as security for a loan of money. The pistol was
never returned to him. He did however, pick up his knife
and belt.
Shortly after 2:30 a.m., January 22, Armstrong drove
his vehicle to a service station in Billings. He requested
the attendant perform certain repair work on the van.
Armstrong cleaned his vehicle and washed the floor mats and
- 2-
a pair of boots while the attendant worked on repairing the
vehicle. While Armstrong was paying for the repair work in
cash, the attendant noticed Armstrong had a large amount of
money in his wallet.
On the afternoon of January 22, 1975, Armstrong was
arrested for shoplifting a blue coat from a store in Billings.
The investigation relating to the shoplifting arrest eventually
led to the charges involved in the instant case.
Armstrong was subsequently charged and convicted on
April 15, 1975, of one count of deliberate homicide and one
count of robbery, following a jury trial. He was sentenced
to one hundred years and forty years imprisonment respectively,
the terms to be served consecutively. On July 20, 1976,
this Court entered its opinion affirming the judgment.
State v. Armstrong (1976), 170 Mont. 256, 552 P.2d 616.
Armstrong thereafter filed a petition for a writ of
habeas corpus in the United States District Court alleging
inter alia that he had been denied the effective assistance
of counsel. On December 6, 1977,the United States District
Court issued an order granting the writ and directing that
Armstrong be released or retried within ninety days. This
order was stayed by the District Court pending appeal. On
August 28, 1978, the United States Court of Appeals for the
Ninth Circuit affirmed the District Court order and dismissed
the stay order effective September 18, 1978.
A second trial was commenced on November 27, 1978.
Prior to this second trial on November 16, 1978, the District
Court entered an order denying the State's motion to use the
first trial testimony of Lynn Helmey and Jo Strobbe.
However, on November 29, 1978, this Court issued an order
in response to the State's petition for a writ of supervisory
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control, directing "the District Court to examine the transcript
of the previous testimony and make a determination based on
the record [as to] whether in fact the witnesses were effectively
cross-examined, and based upon that determination, which
shall be in writing, admit or deny the proffered testimony."
The District Court made an order admitting the transcripts
based on its finding that prior counsel had adequately
cross-examined the witnesses.
On December 15, 1978, the jury returned verdicts of
guilty on both counts. Armstrong received sentences identical
to those imposed at the first trial, i.e. one hundred years
for deliberate homicide and forty years for robbery to be
served consecutively. This appeal follows.
The following issues are presented for review:
(1) Is the verdict supported by substantial evidence?
(2) Did the District Court err by denying the motions
to suppress evidence based on an alleged illegal search and
seizure?
(3) Did the District Court err by denying appellant's
motion for a change of venue?
(4) Was the appellant denied a speedy trial?
(5) Did prosecutorial misconduct deny appellant a fair
trial?
(6) Did the introduction of first trial testimony of
absent witnesses deny the appellant a fair trial?
(7) Did the District Court err in permitting impeachment
of a defense witness by the use of a prior inconsistent
statement allegedly not made by the witness?
(8) Did the District Court err by admitting and excluding
various items of evidence?
(9) Did the alleged inadequacy of the autopsy report
deny the appellant a fair trial?
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ISSUE NO. 1: SUFFICIENCY OF THE EVIDENCE
The rule is well settled that if substantial credible
evidence exists to support a verdict, it will stand. State
v. Bad Horse (1980), Mont. , 605 P.2d 1113, 1119,
37 St.Rep. 45, 53. A defendant must be convicted on evidence
that allows the jury to find beyond a reasonable doubt that
he is guilty, and a verdict cannot be based upon a strong
probability, a justifiable suspicion, or a shrewd conjecture
that he is guilty. State v. Konon (1929), 84 Mont. 255, 274
P. 1060; State v. Cooper (1926), 78 Mont. 35, 252 P. 376.
Here Armstrong contends that the circumstances and
inferences adduced from the State's evidence is not sufficient
to find Armstrong guilty beyond a reasonable doubt.
His contentions include these:
(1) There was not sufficient time between 2:00 a.m.,
when the car dealer testified that appellant left the lounge
until 2:30 a.m., when the night service station attendant
testified he appeared at the service station, for Armstrong
to murder the deceased, stuff the body in the boiler room
after robbing him, walk three blocks to his vehicle, drive
to a remote location on a road off the main Billings thorough-
fare, hide the victim's wallet and his own clothes, and
return to the Standard Station;
(2) The gloves admitted by the State were not the
gloves which witness Ibach testified were purchased by
Armstrong in Big Timber in November 1974;
(3) The evidence that Armstrong was dyeing his gunbelt
and holster on January 22, 1975, in order to cover alleged
bloodstains is speculation which was refuted by the testimony
of Donald Finch that he had been dyeing the gunbelt prior to
the homicide;
(4) The microscopic drop of blood on Armstrong's left
boot was not from the deceased and the bloodstain was not
found on the boot on first examination;
(5) The pubic hair on the appellant's shirt is not
consistent with the State's theory that Armstrong had dis-
carded his jacket due to his food-soaked condition; he would
have had to have zipped up his jacket so that the blood did
not get on his shirt, which had no trace of blood on it;
(6) The pubic hair found in the debris of the sack
containing his left boot is also not plausible as it was
impossible for pubic hair from the deceased to be transferred
to the boots located in a shoe store in downtown Billings at
the time the offense occurred;
(7) Armstrong could not have hidden the victim's
wallet in a culvert in the early morning of January 22,
1975, because Parsons did not discover the wallet although
he walked the ditch regularly where it was found and had not
seen it prior to May 5, 1975;
(8) The measurements of Armstrong's knife show that he
could not have inflicted the wounds upon the deceased.
The State's response is that Armstrong's approach is to
isolate individual pieces of evidence and to identify specu-
lative theories consistent with innocence.
It is true in this case that most, if not all, of the
evidence against Armstrong is circumstantial. However, cir-
cumstantial evidence is not always inferior in quality.
The determination as to the sufficiency of circumstantial
evidence to make a case for the jury and to sustain a convic-
tion is one to be made upon all the facts and circumstances
which are to be taken into consideration collectively.
State v. DeTonancour (1941), 112 Mont. 94, 98, 112 P.2d
1065, 1067.
In addition to the foregoing circumstantial evidence
pointing toward the defendant Armstrong, there were other
factors for the jury to consider. The defendant had motive,
because he had little or no money on January 21, 1975. When
he was arrested on January 22, 1975, he had $319.02 in cash
including a $100 bill. He had spent another $100 bill
earlier in the day and proof showed that the victim had
two $100 bills in his possession shortly before his death.
Armstrong left the bar within minutes of the victim and was
next seen 30 to 35 minutes later at a point approximately
1.2 miles from the Crystal Lounge at the Standard Station
washing his boots. The victim's wallet was found with a
pair of trousers identified by Peggy Finch, Armstrong's
sister, as belonging to Armstrong. Bloodstains were found
on several items belonging to Armstrong. In November 1974,
Armstrong had purchased a pair of gloves similar to the
blood soaked gloves which were found at the scene of the
crime. Armstrong did not produce the gloves which he pur-
chased in November to refute the contention that the blood
soaked gloves were in fact his. A bootprint similar in size
and configuration to the sole of Armstrong's boot was found
in the boiler room where the body was found. Armstrong was
apprehended the day after the crime was committed, stealing
a jacket similar to the one he had worn the night before.
In their collective weight, these factors are con-
sistent with his guilt, and inconsistent with his innocence.
We cannot therefore fault the jury verdict based on that
evidence.
The test for sufficiency of the evidence in a criminal
conviction is whether there is relevant evidence which
persons of reasonable minds might accept as adequate to
support a conclusion. State v. Azure (1979), - Mont . I
591 P.2d 1125, 36 St.Rep. 514; State v. Pendergrass (1978),
Mont . , 586 P.2d 691, 35 St.Rep. 1512; State v.
Merseal (1975), 167 Mont. 412, 538 P.2d 1366; State v. Cor
(1964), 144 Mont. 323, 396 P.2d 86. The relevant evidence
here meets that test of sufficiency as far as this convic-
tion is concerned.
ISSUE NO. 2: SEARCH AND SEIZURE
There were four searches in this cause. On January 22
and January 28, 1975, warrants were issued authorizing a
search of Armstrong's trailer home and automobile. On
January 22, 1975, the day of Armstrong's arrest, a warrant-
less inventory search of Armstrong's wallet was conducted.
On November 28, 1978, a warrant was issued authorizing a
body search of Armstrong. He contends here that all four
searches were illegal, and that the evidence obtained from
these searches should have been suppressed.
Search Warrants of January 22 and January 28, 1975
On November 17, 1978, the District Court suppressed all
evidence obtained under the search warrants issued on Janu-
ary 22 and January 28, 1975. The order was based on State
ex rel. Sanford v. Dist. Court (1976), 170 Mont. 196, 551
P.2d 1005, which invalidated search warrants directed to
"any police officer in this State." Thereupon the State
brought an action in this Court for a writ of supervisory
control relating to the District Court order. State of
Montana ex rel. Charles A. Bradley v. Dist. Court (No.
14580, Decided November 29, 1978). This Court accepted
jurisdiction of the petition for writ, and reversed the
order suppressing the evidence on the ground that Sanford
should not be applied retrospectively. Three justices of
this Court signed the reversal order. A fourth, the author
of this opinion, concurred, upon the reservation, among
other things, that the propriety of applying Sanford r e t r o ~ , 1
~
spectively could be considered on any subsequent appeal.
Until Sanford, a search warrant directed to "any police
officer" created a technical violation of the governing
statutes. This Court had refused to suppress evidence
seized under warrants issued in that style if it was exe-
cuted by the officer who applied for the warrant. State v.
Snider (1975), 168 Mont. 220, 541 P.2d 1204; State v. Tropf
(1975), 166 Mont. 79, 530 P.2d 1158; State v. Meidinger
(1972), 160 Mont. 310, 502 P.2d 58. The Sanford rule
changed the effect of those three decisions.
In assuming jurisdiction of the supervisory control
case, the majority of this Court decided that it would not
apply the Sanford rule here retrospectively. Johnson v. New
Jersey (1966), 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882.
The defendant argues that this Court should now reverse
itself and determine that retrospective application of the
Sanford rule as to the search warrant of January 22 and
January 28, 1975, should be applied. The searches there-
under occurred seventeen months before -
Sanford was decided.
In LaRoque v. State (1978), - Mont . , 583 P.2d
1059, 35 St-Rep. 1281, we stated a three-part test to deter-
mine whether a decision should be applied retroactively:
(1) The decision must establish a new principal of law
overruling established precedent on which litigants have
relied, or it must decide an issue of first impression, the
resolution of which is not clearly foreshadowed.
(2) The rule in question must be examined to determine
whether the threat of application will further or retard its
operation; and
(3) The equity of retroactive application must be con-
sidered.
Assuming t h a t t h e S a n f o r d r u l e was c l e a r l y foreshadowed
i n e a r l i e r d e c i s i o n s and t h a t i t s r e t r o s p e c t i v e a p p l i c a t i o n
would f o r c e p r o s e c u t o r s t o t i g h t e n t h e i r forms p r o c e d u r e s
f o r s e c u r i n g w a r r a n t s , t h e d e f e n d a n t must s t i l l make t h e
t h i r d h u r d l e , whether t h e e q u i t y o f r e t r o a c t i v e a p p l i c a t i o n
f a v o r s him i n t h i s c a s e .
The S a n f o r d r u l e w a s i n t e n d e d by t h i s C o u r t t o s u p p o r t
and improve t h e i n t e g r i t y of t h e f a c t - f i n d i n g p r o c e s s . Here
r e t r o a c t i v e a p p l i c a t i o n of t h e S a n f o r d r u l e would e x c l u d e
r e l e v a n t and r e l i a b l e e v i d e n c e from t h e j u r y . W e do n o t
f i n d t h a t t h e i n t e r e s t s of j u s t i c e r e q u i r e s u c h r e s u l t .
Moreover, e q u i t y d o e s n o t f a v o r r e t r o a c t i v i t y h e r e . Both
t h e c o u r t s i s s u i n g t h e s e a r c h w a r r a n t s and t h e p o l i c e are
e n t i t l e d t o r e l y on t h e r u l e s i n e f f e c t a t t h e t i m e t h e
. ' , r -,
. - J
/ . , . - , /., * L '
search warrant i s issued. S t a t e v. Campbell, sups%. W e
d e t e r m i n e t h e r e f o r e n o t t o a p p l y r e t r o s p e c t i v e l y t h e -anford
S
r u l e i n t h i s c a s e b e c a u s e t o do s o would v i t i a t e t h e s e a r c h
w a r r a n t s , and t h e e v i d e n c e found t h r o u g h them.
W e have been urged by t h e S t a t e t o a p p l y t h e "law of
t h e c a s e " r u l e , F i s c u s v. B e a r t o o t h E l e c . C o o p e r a t i v e , I n c .
(19791, ,
- Mont. - 591 P.2d 196, 36 St.Rep. 333, t o t h i s
case. I n view of t h e f a c t t h a t t h e o r d e r g r a n t i n g s u p e r -
v i s o r y c o n t r o l i n t h e r e l a t e d c a u s e w a s by a d i v i d e d c o u r t ,
w e have reviewed t h i s m a t t e r a g a i n on a p p e a l by a f u l l
c o u r t , and have d e t e r m i n e d t h a t r e t r o s p e c t i v e a p p l i c a t i o n of
S a n f o r d i s n o t r e q u i r e d by t h e e q u i t i e s of t h e c a s e and
would b e a d v e r s e t o t h e i n t e r e s t s o f j u s t i c e .
Armstrong however, f u r t h e r a t t a c k s t h e w a r r a n t s o f
J a n u a r y 2 2 and J a n u a r y 28, 1975, upon t h e grounds t h a t t h e y
d o n o t a d e q u a t e l y d e s c r i b e t h e p l a c e s t o be s e a r c h e d and t h e
t h i n g s t o b e s e i z e d , t h a t t h e y do n o t s u f f i c i e n t l y i d e n t i f y
t h e i s s u i n g c o u r t and t h a t t h e y are n o t s u p p o r t e d by
probable cause.
W e look f i r s t a t t h e probable cause contention. The
a f f i d a v i t s u p p o r t i n g t h e w a r r a n t o f J a n u a r y 22, 1975, i n -
formed t h e i s s u i n g c o u r t t h a t : Lynn Kichard Lords had d i e d
i n t h e e a r l y morning h o u r s o f J a n u a r y 22, 1975, by mul-
t i p l e s t a b wounds a p p a r e n t l y made by a k n i f e ; i n v e s t i g a t i o n
had shown t h a t Lords had been p l a y i n g poker a t t h e C r y s t a l
Lounge and had l e f t a b o u t 1:30 a.m. on t h e morning of
J a n u a r y 22, 1975; he had i n h i s p o s s e s s i o n two $100 b i l l s ;
Harold Armstrong had been i d e n t i f i e d as p l a y i n g i n t h e game
a t a b o u t t h e s a m e t i m e a s t h e v i c t i m ; Armstrong had checked
a r e v o l v e r and a h u n t i n g k n i f e w i t h t h e b a r t e n d e r a t t h e
t i m e o f h i s e n t r y i n t h e game; Armstrong was a l o s e r and had
hocked t h e gun f o r money t o c o n t i n u e t h e game; Armstrong
d i d n o t c a s h i n any c h i p s a t t h e end o f t h e game and t h e
k n i f e w a s r e t u r n e d t o him when h e l e f t t h e b a r ; on t h e same
day a t 3:30 p.m., Armstrong w a s a r r e s t e d by t h e B i l l i n g s
p o l i c e d e p a r t m e n t f o r s h o p l i f t i n g ; h e had i n h i s p o s s e s s i o n
a $100 b i l l , p l u s a n a d d i t i o n a l $199.07 i n b i l l s and change;
one $5 b i l l a p p e a r e d t o have blood on i t ; and Armstrong
had been wearing a b l u e j a c k e t , b l u e l e v i s and s h o e s ; when
a r r e s t e d he w a s w e a r i n g t a n cowboy b o o t s , and no j a c k e t .
The a p p l i c a t i o n f o r t h e J a n u a r y 2 8 , 1975, s e a r c h w a r r a n t
included a r e c i t a t i o n of t h e foregoing f a c t s e s s e n t i a l l y ,
and i n a d d i t i o n t h e r e t o r e c i t e d t h a t f u r t h e r i n v e s t i g a t i o n
by t h e p o l i c e had t u r n e d up a w i t n e s s from a S t a n d a r d
S e r v i c e S t a t i o n who a t 2:35 a.m. on t h e morning o f t h e
v i c t i m ' s d e a t h o b s e r v e d Armstrong go t o t h e washroom where
h e washed o f f a p a i r o f g r e e n b o o t s , and a p l a s t i c f l o o r m a t
from t h e v e h i c l e h e w a s d r i v i n g .
Based on t h e s e a l l e g e d f a c t s , t h e c o u r t s i n e a c h case
i s s u e d a s e a r c h w a r r a n t , on J a n u a r y 22, 1975, f o r a des-
c r i b e d C h e v r o l e t van and a t r a i l e r home where Armstrong
had been staying, and the other for a further search of the
Chevrolet van, also described. Our examination of the
applications for the search warrants show that they contain
sufficient facts to enable an impartial magistrate to
determine whether probable cause existed under the Fourth
Amendment. In judging probable cause, we do not require
that the issuing magistrates be confined by "niggardly
limitations or by restrictions on the use of common sense"
and the determination of probable cause by a magistrate is
paid great deference by this appellate court. State ex rel.
Garris v. Wilson (1973), 162 Mont. 256, 511 P . 2 d 15. The
applications established that probable cause existed. There
is no substance to Armstrong's contentions that the objects
to be seized and the premises to be searched were not suf-
ficiently identified. In each warrant, the vehicle and in
the first warrant, the trailer home were specifically des-
cribed. Moreover, the name of the court issuing the warrant
is set forth in the caption of the warrant.
We therefore hold that the warrants of January 22 and
28, 1975, were validly issued and fully met the legal require-
ments for the issuance. Therefore, the motions of Armstrong
to suppress the evidence acquired thereunder were properly
denied by the District Court.
We now look at the inventory search of January 22,
1975. This was the date of Armstrong's arrest for shoplift-
ing. During an inventory search, the Billings Police seized
a $100 bill from his wallet. The attack by Armstrong on this
item is that the inventory search was illegal and therefore
the $100 bill should be suppressed from the evidence.
Shoplifting is a misdemeanor for which bail bond
schedules are established in Yellowstone County. The arrest-
ing officer refused to accept the scheduled bond and kept
Armstrong in custody. Armstrong now argues that he should
have been allowed to post bond. In that way, his billfold
and its contents would have been returned to him when he was
released.
However, the officer arresting Armstrong knew that he
was a major suspect in Lords' homicide at the time. In that
circumstance, the police had not only the right to refuse
bail bond, but the duty to detain him. People v. Cocroft
(1967), 37 I11.2d 19, 225 N.E.2d 16, 19.
The inventory search of Armstrong which turned up the
$100 bill in his wallet, was incident to a lawful arrest,
section 46-5-101, MCA, and since the bill was lawfully
seized, is admissible as evidence in any other prosecution
or proceeding as well as the offense for which the search
was originally made. Section 46-5-104, MCA.
We now look at the contentions relating to the search
warrant of January 28, 1975. On that date a search warrant
was issued authorizing the seizure of pubic hairs from
Armstrong. He contends that the seizure violated his right
against self-incrimination, violated his due process rights
and again that the search was not based upon probable cause.
The State concedes the body search comes within the
ambit of the Fourth Amendment warrant requirement. It
contends however, that ample facts in the application sup-
ported a finding of probable cause by the issuing magistrate.
The affidavit for the search warrant recounts the testimony
of an expert witness at Armstrong's first trial. That
testimony established a connection between Armstrong and the
homicide by a comparison of pubic hairs of Armstrong and the
victim Lords. The State was asking for the warrant to seize
additional hairs because of the fact that the hairs used in
the first trial had been obtained with counsel's consent,
and the federal court had determined that Armstrong had been
rendered ineffective assistance at his first trial. a he
hairs at the first trial tended to connect the defendant
with the victim and the crime. The court found probable
cause and issued the warrant. We agree that probable cause
existed as the affidavit in application therefore set out
sufficient facts to disclose the evidentiary value of the
pubic hairs.
The due process claim of Armstrong is that it was
improper to issue the search warrant after jeopardy at-
tached.
a he claim is novel, and no authority is cited in connection
with this contention. Perhaps, if prejudice to the defendant
had occurred by virtue of the issuance of the search warrant,
some due process rights of the defendant might have been
offended. Here however, the court was careful to offer such
additional time to the defendant as he might need to meet
any testimony that might be given with respect to the newly
seized pubic hairs. No prejudice is otherwise pointed out
by Armstrong in this appeal.
As far as the self-incriminatory nature of the seizure
of pubic hairs is concerned, that issue was decided in
Schmerber v. California (1966), 384 U.S. 757, 86 s.Ct. 1826,
16 L.Ed.2d 908. The Fifth Amendment protects an accused
only from being compelled to provide evidence of a testimonial
Or communicative nature. The Schmerber case involved a
blood sample, but the same rationale applies to pubic hairs.
ISSUE NO. 3: CHANGE OF VENUE
In pretrial motions, Armstrong sought a change of venue
and the appointment of an independent pollster. The venue
change and pollster were demanded on the basis of prejudicial
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pretrial publicity. The motions were supported by defendant's
affidavit reciting the existence of pretrial news coverage,
accompanied by copies of the news articles of the Billings
Gazette and also an affidavit of his counsel which recited
that he had heard numerous comments from persons who had
formed an opinion as to the defendant's guilt. Counsel's
affidavit further stated that a scientific poll would disclose
widespread prejudice in the community. The court heard the
argument on the motion to appoint a pollster on November 2,
1978, and denied the same on November 6, 1978. The court
heard the argument on the venue motion on November 8, 1978,
and denied that motion on November 13, 1978.
On November 21, 1978, both motions were renewed on the
basis of an article appearing on that date in the Billinss
Gazette. The court heard evidence and argument in support
of the renewed motions on November 22, 1978. Again the
court denied the motion for an opinion pollster, and reserved
ruling on the venue notion pending voir dire of the jury
panel. The venue motion was denied following voir dire.
With respect to the pollster motion, Armstrong contends
that he has been denied equal protection of the law, alleging
that a pollster was necessary to establish the grounds for a
change of venue and to assess the existence of prejudice in
the county, and that the denial of the pollster to an indigent
defendant was unconstitutional.
We discuss the denial of the two motions together
because the issues intertwine. As noted in State v. Williams
(Iowa 1979), 285 N.W.2d 248, 266, the defendant overstates
the problem with respect to the pollster. The question is
whether the trial court denied him the means to avoid being
tried in a county where, because of the dissemination of
-15-
potentially prejudicial material, there was a reasonable
likelihood that he could not receive a fair trial. State v.
~illiams,supra; and see State v. Powers (Idaho 1975),
96 Idaho 833, 537 P.2d 1369, cert.den. 423 U.S. 1089, 96
S.Ct. 881, 47 L.Ed.2d 99.
We agree with the procedure adopted by the District
Court. Armstrong has not indicated that the voir dire
examination of prospective jurors disclosed any prevalent
opinion against him in the community or among the panel
members, nor any overriding prejudice which the prospective
jurors could not put aside. In other words, the District
Court here gave Armstrong, through his counsel, the opportunity
to dig out and expose, through voir dire examination, any
bias or prejudice that would have prevented a fair trial of
the defendant. The voir dire examination did not reveal any
such prejudice. The court therefore had properly denied the
motion for an opinion survey at county expense.
The voir dire examination here failed to reveal such
bias or prejudice as prevented a fair trial for the defendant
or made his representation by counsel ineffective. As to
the motions for change of venue, the indicia of "undue
prejudice" identified in State v. Board (1959), 135 Mont.
139, 143, 337 P.2d 924, do not appear here. Those were
identified as (1) aroused feelings in the community,
(2) threat to personal safety of the defendant, (3) established
opinion of members of the community as to the guilt of the
accused, (4) news articles beyond the objectivity of news
printing and dissemination, and (5) difficulty or failure in
securing a fair and partial jury. In this case, the defendant
submitted news articles which show extensive publicity, but
do not show editorializing on the part of the media or any
calculated attempt to prejudice public opinion against him
-16-
or to destroy the fairness of the pool from which his
prospective jurors would be drawn. We have no indication
here that the published accounts were so passionate as to
excite undue prejudice against the defendant. State v.
Logan (1970), 156 Mont. 48, 473 P.2d 853; Hanrahan v. District
Court (19651, 145 Mont. 501, 401 P.2d 770.
Because Armstrong has not shown any prejudice resulting
from the denial either of the motion for change of venue or
the motion for a public opinion survey, there is no need for
of
us to reach the question/whether Armstrong is denied equal
protection of the laws as an indigent because he could not
afford a public opinion survey whereas a defendant with
means might be able to do so.
The remaining contention with respect to this issue is
whether it is a violation of the equal protection of the
law to allow the State to appeal the denial for change of
venue but to refuse that same right to a defendant. Under
sections 46-20-103 and 46-20-104, MCA, the State but not a
defendant is allowed an interlocutory appeal of a District
Court's determination denying a change of venue.
Relying on Groppi v. Wisconsin (1971), 400 U.S. 505, 91
S.Ct. 490, 27 L.Ed.2d 571, Armstrong asserts that this Court
must apply strict scrutiny to the contested statutes, since
proper venue involves the minimum standards of due process.
However, Armstrong has not shown the failure to change venue
denied him an impartial jury. Since he has failed to show
the impairment of a fundamental right, we apply the "rational
basis" test to determine the constitutionality of the appellate
procedures of orders on motions for a change of venue.
The answer is simple. The State has no right to appeal
following a conviction or acquittal. Therefore, the allowance
to the State of an interlocutory appeal for review of orders
respecting place of trial, prior to conviction or acquittal,
serves a purpose, that the public interest be protected in
the handling of criminal cases. There is a rational basis
for these appeal provisions in the statute.
Moreover, the issue respecting the difference between
the State and the defendant as to right of appeal in this
instant case was not raised at the trial court level. We do
not review it upon appeal. See Henry v. Mississippi (1965),
379 U.S. 443, 448, 85 S.Ct. 564, 567-568, 13 L.Ed.2d 408,
413.
ISSUE NO. 4: SPEEDY TRIAL AND LATENT BOOTPRINT
Armstrong maintains his right to a speedy public trial
has been denied.
In speedy trial determinations, one factor to be con-
sidered is the length of the delay in trial. State v.
Harvey (19791, - Mont . - 603 P.2d 661, 667, 36 St.Rep.
,
2035, 2041. There is no need to examine other factors
unless there has been some delay which is deemed presumptively
prejudicial.
Armstrong asserts this Court should determine the
length of the delay to be about three and one half years,
the time from his original conviction to his second conviction.
The assertion is unsupportable. We will not consider the
time period from Armstrong's initial notice of appeal to
this Court until remittitur was issued from the Ninth Circuit
Court of Appeals, from May 9, 1975 to August 28, 1978. Such
time is not included within the computation of a speedy
trial delay. During that period, the Montana ~istrictCourt
was without jurisdiction to engage in proceedings leading to
a retrial. State v. Ward (1978), 120 Ariz. 413, 586 P.2d
974, 976-77.
-18-
After subtracting the time during which this cause was
in the appellate courts, the period of delay, 108 days, is
not long enough to be deemed presumptively prejudicial. The
length of delay is much shorter than for example, Fitzpatrick
v. Crist (1974), 165 Mont. 382, 528 P.2d 1322, a seven-month
delay case.
The Bootprint Argument
As an adjunct to a speedy trial claim, the defendant
contends that the bootprint photographs and transparencies
should have been suppressed under the rule of Brady v.
Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215.
He cites these grounds: that the original copy of the
Polaroid photograph was not forwarded to Judge Smith for his
consideration in the federal habeas corpus proceeding which
resulted in Armstrong's retrial; that the photograph was not
furnished to the defendant prior to trial in accordance with
Judge Wilson's discovery order; and that the defendant had
insufficient opportunity to inspect the exhibits prior to
trial.
At the time of the crime, Lieutenant Aukshun had taken
a Polaroid photograph of the floor area of the boiler room
in which the victim's body was found. Later, a paralegal in
the county attorney's office claimed to discern a bootprint
in the photograph but it was not introduced at the first
trial.
After the first trial, the photograph was enlarged, and in
the process the original photograph and enlargement were lost,
but a negative of the original Polaroid photograph was
retained by the photographer. When the judge in the Federal
District Court case ordered the delivery to him of all
evidence, the photograph was inadvertently excluded in the
evidence delivered to that court.
-19-
Prior to the second trial, the State moved to endorse
as witnesses persons who could testify with respect to the
photograph, which motion was granted by the trial judge. The
judge also authorized the employment of a photographic
expert for the defendant to evaluate the photograph and the
photographic procedures. The expert was allowed to travel
to Great Falls at State expense to view the preparation of
the enlargement and transparencies which were later introduced
at trial.
Armstrong's contention is that the admission of the
photographic exhibits violated the State's discovery duty
under Brady v Maryland, supra.
.
It appears in the record that with respect to the
second trial, all orders respecting delivery of evidence
were complied with, and the court went further to allow the
attendance of experts on the defendant's behalf and copies
of all material were delivered to the defendant's representatives
eighteen days prior to the testimony of the State's witnesses
relating to the photographs.
The State contends Brady v. Maryland is not in point.
That case dealt with the suppression by prosecution of
exculpatory evidence. Here the evidence was inculpatory and
was not withheld from the defendant. State v. Craig (19761,
169 Mont. 150, 153, 545 P.2d 649, 651. We see no merit in
Armstrong's contentions with respect to the use of the
photographs relating to the bootprint.
ISSUE NO. 5: PROSECUTORIAL MISCONDUCT
Two instances of alleged prosecutorial misconduct are
pointed out by the appellant as grounds for reversal on the
fifth allegation of error. First, the State in its closing
argument stated in part:
-20-
"The proof must be to you beyond a reasonable doubt,
but read that instruction, it doesn't say beyond any
doubt. The only time we are sure of something is
when we see it with our own two eyes. You feel it,
you smell it, and you taste it. You weren't there.
If you were, you would be witnesses, but we have
given you more evidence than you will see in another
murder case where there is not an eye witness.
"This man is guilty - -
--- as sin. Do not be confused by
language of the phony boot trick, the planting of
blood, the accidental transfer of hairs, planting
of blood on a watch, planting of blood on money. We
didn't plant the jacket on him, we didn't plant the
knife on him, we didn't plant him in that game, we
didn't plant the money on him."
Disciplinary Rule No. 7-106(C) (3) (4) of the Canons of
Professional Ethics which were adopted by this Court on
April 25, 1973, states:
"In appearing in his professional capacity before
a court, a lawyer shall not:
" ( 3 ) Assert his personal knowledge of the facts
in issue, except when testifying as a witness,
" (4) Assert his personal opinion as to the just-
ness of the cause, as to the credibility of a witness,
as to the culpability of a civil litigant, or as to
the guilt or innocence of an accused; but he may argue,
in his analysis of the evidence, for any position or
conclusion with respect to the matter stated therein."
Although this Court does not approve of the State's
usage of the above emphasized simile, we do believe that when
taken in context with the language of the remainder of the
closing argument to the jury, the cited language appears to
be based upon the State's analysis of the evidence and is not
an expression of the State's personal opinion within the
explicit purview of the disciplinary rules.
While cross-examining the appellant, the prosecutor
chalked in lines on the blackboard, resulting in the following
objection:
"(Mr. Bradley writing on chart at this time.)
"MR. WHALEN: Your honor, I object to this drawing
Mr. Bradley is putting up on the board for the
reason that it amounts to a comment upon the
evidence and invades the province of the Court and
jury, is not a proper mode of examination.
"THE COURT: I don't understand the purpose of the
drawing.
"A. Well, he is writing lie on there.
"Q. You did lie, didn't you, Mr. Armstrong? A.
Many times, yes, sir.
"THE COURT: Objection sustained."
In addition to sustaining the objection, the court
submitted its jury instruction which informed the jury:
"Statements of counsel are not to be regarded
by you as evidence and you will disregard any
such statements which are not supported by the
evidence received upon this trial."
From the record, it appears that what the prosecutor
was doing in the cross-examination of Armstrong was to place
a chalkmark upon the board with respect to each answer that
he received from Armstrong in such manner that on the com-
pletion of his questioning, the word "lies" or "liar" would
appear on the blackboard. While this sort of conduct stretches
our lenience to the fullest extent, we observe that the
court moved quickly to sustain the objection, and later to
instruct the jury to remove any possible prejudice from the
actions of the prosecutor. Of course, we cannot assume that
the jury considered evidence to which objections were timely
made and sustained, nor that the jury did not follow the
instructions of the court. Therefore, we find no prejudice
on this point.
ISSUE NO. 6: TESTIMONY FROM THE FIRST TRIAL
Armstrong asserts that the District Court erred in
admitting the first-trial testimonies of Lynn Helmey and Jo
Strobbe who were not available for the second trial. Appellant's
objection on this point is that counsel at the second trial
was forced to use the cross-examination of a prior attorney
who had been declared inadequate as a matter of law, thus
denying appellant the effective assistance of counsel at the
second trial also.
This was one of the issues which was brought to this
Court's attention in the petition for supervisory control,
to which we have already adverted. In making our order on
that petition, the majority of the court directed the trial
court to examine the transcript of the prior trial, and if
it determined therefrom that the cross-examination was
indeed effective, to permit its use at the second trial of
Armstrong. The court made a finding that the prior defense
counsel had adequately examined the witnesses. Armstrong
presents no error in the court's finding in that regard.
Therefore, the order of the District Court admitting such
testimony will stand.
ISSUE NO. 7: PRIOR INCONSISTENT STATEMENT
Florence LaFleur, Armstrong's sister, testified on his
behalf at trial. She stated on direct examination that
defendant had lived with her husband and herself during
December 1974 and January 1975. She testified that the
trousers found with thevictim's wallet did not belong to
Armstrong. She also stated that the defendant liked to
flash large denominations of currency. The final point of
her testimony went to the nature of a gunshot wound in
Armstrong's hip. Florence LaFleur testified that the wound
was inflicted accidentally by her husband.
Oncross-examination the State inquired into the cir-
cumstances of the shooting. Over objection, the prosecutor
asked the witness whether her husband had ever stated in her
presence that the wound was purposely inflicted. The witness
responded, "I don't know if he said that or not. I told you
before, I was not listening to them, I was nervous enough
-23-
without listening to that officer and him talking." The
State later called Officer Knutson as a rebuttal witness who
testified that LaFleur's husband had indicated that the
shooting was intentional.
The State concedes the error in admitting this testimony,
as inconsistent hearsay on a collateral matter. The State
contends however, that no prejudicial error occurred from
the admission of the testimony.
Armstrong contends that the allowance of the testimony
damages the credibility of LaFleur, and established his
character as a violent person. Armstrong relies on Chapman
v. California (1967), 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d
705, as requiring reversal unless the error can be declared
harmless beyond a reasonable doubt.
Chapman rejected the rule that all federal constitutional
errors required automatic reversal of a conviction. In
State v. McKenzie (1980), - Mont . - 608 P.2d 428, 458,
,
37 St.Rep. 325, 357, this Court stated:
"As far as we can determine, the United States
Supreme Court has not yet fashioned a uniform
standard for determining harmless federal con-
stitutional error beyond Chapman. See Harmless
The Need for*^ ~nifo;m Standard, St. John's
Error: - - - -
Law Review, Vol. 53, Sprinq 1979, No. 3, p. 541;
- -
Assessing The Harmlessness-of Federal constitutional
Error--A Process - -Need o f a Rationale, University
In - -
of Pennsylvania Law Review, December 1976, Vol. 125,
No. 2, p. 15. At least three definable approaches
appear in United States Supreme Court cases:
" (1) focusing on the erroneously admitted
evidence or other constitutional error to
determine whether it might have contributed
to the conviction. e.g. Fahy v. Connecticut
(1963), 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d
171;
"(2) excluding the constitutional infirmity
where overwhelming evidence supports the con-
viction, e.g. Milton v. Wainwright (19721, 407
U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1;
" (3) determining whether the tainted evidence
is merely cumulative or duplicates properly
admitted evidence. e.g., Harrington v. California
(1969), 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d
284.
"Under such circumstances, we feel free to adopt
any of the three standards in assessing federal
constitutional harmless error within the confines
of Chapman . . ."
We find the first approach the only one applicable in
the present case. Viewing the admitted error in light of
all the facts, we find beyond a reasonable doubt that the
error in this particular case was harmless because it did
not contribute to appellant's conviction.
The collateral matter impeached in this case indicated
only that the appellant had at some prior time been shot by
his brother-in-law while in the company of his sister.
Whether his brother-in-law had committed the shooting intentionally
or accidentally, the evidence amounted only to making Armstrong
the victim, and could not arouse in the jury any feelings
against Armstrong based upon the intention or lack of intention
on the part of LaFleur's husband. We therefore find that
error harmless.
ISSUE NO. 8: FURTHER EVIDENTIARY ERROR
Armstrong also argues that prejudicial error occurred
by the court either admitting or excluding the following
items of evidence:
(1) Shoplifting evidence. The State submitted evidence
showing Armstrong shoplifted a light blue coat in the afternoon
of the day that Lords was killed. Armstrong contended it
was error to admit the shoplifting evidence because it was
evidence of a distinct and independent crime which was not
admissible here and there was no evidence showing that the
coat formerly worn by Armstrong had been destroyed.
The shoplifting evidence tended to show the destruction
or suppression of evidence by Armstrong and tended to show
-25-
his guilt and was therefore relevant and clearly admissible.
If evidence tends to prove the commission of the crime
charged, it is not rendered inadmissible because it also
tends to prove the commission of another crime. The test is
whether the evidence is relevant as tending to prove any
facts material to an issue in the cause before the court.
State v Cesar (1925), 72 Mont. 252, 255, 232 P. 1109.
.
(2) Boots with the blood spot. Armstrong's boots were
admitted and the testimony showed that there was a blood
spot upon them; The boots had been sent to the FBI in
separate bags. No blood was discovered on the boots during
their initial examination by the FBI. Upon resubmission by
the Billings police, a blood spot was discovered. According
to Armstrong, these facts affirmatively show a change in the
condition of the boots while in police custody. Armstrong
asserts it was error to admit the boots since a proper chain
of custody was not shown.
The testimony of the police officers Bruce and Ross and
the FBI agent Semmes established prima facie that no one
tampered with the boots. Once this was shown, the burden of
proving tampering shifted to Armstrong. State v. Burtchett
(1974), 165 Mont. 280, 287, 530 P.2d 471, 475; cert.den. 420
U.S. 974. The fact that the FBI found no blood on the boots
when they were initially examined does not mean that there
was no blood on them; it merely means that the FBI did not
find the blood in the first instance. This is not proof of
tampering while in police custody.
(3) Clothes found in a ditch near the city dump. These
exhibits were: a Pendleton shirt and two pairs of trousers
found in a ditch on the road to the city dump. Armstrong
contends error, since the State failed adequately to establish
-26-
t h e c h a i n of c u s t o d y . Armstrong c o n t e n d s t h a t t h e S t a t e
must show a complete c h a i n o f c u s t o d y from t h e t i m e o f L o r d s '
homicide u n t i l t h e i n t r o d u c t i o n i n t o e v i d e n c e , and i f a l i n k
i n t h e c h a i n of p o s s e s s i o n i s m i s s i n g , t h e e x h i b i t may n o t
be admitted.
The adequacy of t h e f o u n d a t i o n f o r a d m i s s i o n o f s u c h
e v i d e n c e i s w i t h i n t h e D i s t r i c t C o u r t ' s d i s c r e t i o n , and t h e
D i s t r i c t Court's determination w i l l n o t be reversed absent
a c l e a r abuse of d i s c r e t i o n . S t a t e v. Thomas ( 1 9 7 5 ) , 166
Mont. 265, 268-269, 532 P.2d 405, 407.
The S t a t e e s t a b l i s h e d a complete c h a i n o f c u s t o d y from
t h e t i m e of f i n d i n g t h e c l o t h e s u n t i l t h e c l o t h e s w e r e i n t r o -
duced i n t o e v i d e n c e . The p o s s i b i l i t y of tampering p r i o r t o
t h e f i n d i n g i s mere c o n j e c t u r e . Such c o n j e c t u r e i s n o t
s u f f i c i e n t t o p r e c l u d e t h e c l o t h e s from b e i n g i n t r o d u c e d i n t o
evidence. Armstrong h a s n o t met h i s burden o f a f f i r m a t i v e l y
showing t h a t some t a m p e r i n g w i t h t h a t e v i d e n c e h a s t a k e n p l a c e .
S t a t e v. Thomas, s u p r a .
(4) Photo o f l a t e n t b o o t p r i n t . In addition t o the
o b j e c t i o n s t o t h e p h o t o g r a p h of t h e l a t e n t b o o t p r i n t t o
which w e have e a r l i e r a d v e r t e d , Armstrong c o n t e n d s i t was
e r r o r t o admit t h i s photograph and t h e t e s t i m o n y o f O f f i c e r
Anderson c o n c e r n i n g t h e b o o t p r i n t . Armstrong c o n t e n d s t h a t
t h e S t a t e f a i l e d t o p r o v e t h e photograph w a s t a k e n b e f o r e t h e
c r i m e s c e n e was d i s t u r b e d by i n v e s t i g a t i n g o f f i c e r s .
(5) Testimony e s t a b l i s h e d when t h e photograph was t a k e n .
Armstrong c o n t e n d s h e was n o t p o s i t i v e l y i d e n t i f i e d as t h e
source of the p r i n t . However, s u c h i d e n t i t y need n o t be
p o s i t i v e i n order f o r t h e p r i n t t o be admissible. Any
u n c e r t a i n t y i n t h e i d e n t i t y o r method o f i d e n t i f i c a t i o n g o e s
t o t h e w e i g h t o f t h e e v i d e n c e and n o t i t s a d m i s s i b i l i t y . People
-27-
v. Robbins (1974), 21 Ill.App.3d 317, 315 N.E.2d 198, 203.
The foundation for the photograph was sufficient. Lamb v.
Page (1969), 153 Mont. 171, 176, 455 P.2d 337, 340.
(6) Blood-soaked jacket. The court refused to admit
into evidence Armstrong's exhibit, a blood-soaked jacket
found in a hotel room near the scene of the crime. The blood
on the jacket was human type "O", the same as that of Lords.
The jacket was discovered in a Billings hotel room. An
investigation revealed the blood was deposited on the coat
some six weeks prior to the Lords' homicide. The jacket was
was
not relevant and/inadmissible. Rule 402, Mont .R.Evid.
(7) Testimony of Cannon and Ross. In the examination
of two rebuttal witnesses, Cannon and Ross, the prosecutor
repeatedly questioned them in such manner as to draw objections
which were sustained by the trial court. The reasonable
inference to be drawn from the questions was that Armstrong
did not have bank accounts in Hawaii and was not receiving
money from Hawaii as he had earlier testified. The purport
of the questions, Armstrong contends, was to imply the exist-
ence of an independent crime on the part of Armstrong, the
writing of bad checks. The jury was admonished to disregard
the rebuttal testimony of Cannon and Ross by the District Court.
Misconduct by the prosecution may form the basis for a
new trial where the prosecution's conduct deprived the
defendant of a fair and impartial trial. Willful attempts
by counsel to place excluded evidence before the jury may
result in a reversal. State v. Bain (1978), - Mont . -I
575 P.2d 919, 35 St.Rep. 257, 261-262.
We determine the examination was not an attempt to
place before the jury the assumption of damaging facts which
could not be proven. Rather, the questioning was an attempt
-28-
by the prosecution to fit within an exception to the hearsay
rule. When on objection, the prosecution discovered that it
could not so interrogate the witnesses, the prosecution
refrained from further such examination. We find no prejudice
in the incidents.
(8) Autopsy report. The remaining issue is a question
of fact as to whether the measurement of appellant's knife
blade was consistent with the measurements found in the autopsy
report concerning the decedent's stab wounds. Armstrong con-
tends that the length of the blade on the knife in evidence,
and its width, are not sufficient to comply with the length
of the knife wound found in the decedent's body or the width.
It is, however, the exclusive function of the jury to determine
the credibility of witnesses, to resolve evidentiary conflicts,
and to assign such weight to the evidence as it may determine.
United States v. Brady (9th Cir. 1978), 579 F.2d 1121, 1127;
State v. Glidden (1974), 165 Mont. 470, 473, 529 P.2d 1384,
1386.
Although Armstrong argues that it was impossible for his
knife to inflict the wounds found on the deceased as evidenced
by the respective measurements of the wound and of the knife,
and the lack of hilt marks, these are factual arguments which
the jury determined.
Judgment of conviction is affirmed.
Justice
We Concur:
flhief Justice
n
Judge, s i t t f n m k e a ; e of Mr.
Justice Danie -29-
Mr. J u s t i c e John Conway H a r r i s o n c o n c u r r i n g :
I concur, b u t wish t o note t h a t i n m opinion t h i s
y
i s a c l a s s i c c a s e where one judge i n t h e f e d e r a l s y s t e m
erroneously granted habeas corpus. The m e d i c a l t e s t i m o n y
i n t r o d u c e d a t t h e f e d e r a l h e a r i n g , when matched by t h e
e x p e r t pathology testimony introduced a t both t r i a l s , f a i l s
t o q u a l i f y a s e x p e r t t e s t i m o n y worthy o f c o n s i d e r a t i o n i n
overcoming t h e e v i d e n c e i n t r o d u c e d by t h e s t a t e . As a result,
t h e s t a t e h a s been p u t t o a c o s t l y second t r i a l , i n my
opinion, needlessly.