State v. Warren

No. 80-335

I N THE SUPREME COURT OF THE STATE OF M N A A
OTN

STATE OF MONTANA,

P l a i n t i f f and A p p e l l a n t ,

VS.

D N L ANDERSON WARREN,
O AD

D e f e n d a n t and R e s p o n d e n t .

Appeal from: D i s t r i c t Court of t h e Thirteenth J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f Y e l l o w s t o n e .
Honorable William S p e a r e , Judge p r e s i d i n g .

C o u n s e l o f Record:

For A p p e l l a n t :

Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
H a r o l d F. H a n s e r , County A t t o r n e y , B i l l i n g s , Montana
C o r b i n Howard a r g u e d , Deputy Couhty A t t o r n e y , B i l l i n g s , Montana

F a r Respondent :

Moses L a w F i r m , B i l l i n g s , Montana
S t e p h e n Moses a r g u e d , B i l l i n g s , Montana

Submitted: March 2 4 , 1981

Decided: May 20, 1981.

Filed: MAY 2 O 1981
Mr. J u s t i c e Frank B. Morrison, J r . , d e l i v e r e d t h e Opinion of
t h e Court.

Defendant was c o n v i c t e d of t h e o f f e n s e of tampering

with o r f a b r i c a t i n g p h y s i c a l evidence pursuant t o s e c t i o n

45-7-207 (1)( a ) , MCA. Defendant moved t h e c o u r t f o r a judgment

n o t w i t h s t a n d i n g t h e v e r d i c t and f o r a new t r i a l ; t h e new

t r i a l was g r a n t e d .

The d e f e n d a n t i n t h i s c a s e , Donald Warren, i s t h e

f a t h e r of Ray Warren who was a r r e s t e d on a d e l i b e r a t e homicide

c h a r g e a r i s i n g o u t of a s h o o t i n g which o c c u r r e d August 1 5 ,

1979. The d e f e n d a n t h a s b e e n c h a r g e d w i t h

suppressing m a t e r i a l evidence, s p e c i f i c a l l y a . 2 2 c a l i b e r

p i s t o l , i n c o n n e c t i o n w i t h t h e i n v e s t i g a t i o n of h i s son on

t h e d e l i b e r a t e homicide c h a r g e .

The b a s i s of t h e c a s e a g a i n s t d e f e n d a n t , Donald Warren,

s t e m s from t h e t e s t i m o n y of Norman Hopkins. Hopkins, who

l i v e d w i t h t h e d e f e n d a n t ' s d a u g h t e r , K i m Warren, and was a

f r i e n d of t h e Warren f a m i l y , t e s t i f i e d t h a t he had r e c e i v e d

a . 2 2 c a l i b e r p i s t o l from Donald Warren t h e a f t e r n o o n f o l l o w i n g

t h e a r r e s t of Ray Warren on d e l i b e r a t e homicide c h a r g e s .

Hopkins t e s t i f i e d t h a t he r e c o g n i z e d t h e p i s t o l as b e i n g one

t h a t Ray Warren had t a k e n when he accompanied Hopkins on

s e v e r a l c o y o t e h u n t i n g t r i p s . Hopkins t e s t i f i e d t h a t t h e

d e f e n d a n t , Donald Warren, s t a t e d t h e gun was p o s s i b l y u n r e -

g i s t e r e d and t h a t h e d i d n o t want t h e p o l i c e t o f i n d i t i n

t h e Warren house b e c a u s e of i t s u n c e r t a i n l e g a l i t y . Hopkins

t e s t i f i e d t h a t he was i n s t r u c t e d by d e f e n d a n t , Donald Warren,

t o d i s p o s e of t h e gun, n o t b e c a u s e i t had a n y t h i n g t o do

w i t h t h e pending homicide c h a r g e s a g a i n s t h i s s o n , b u t

r a t h e r b e c a u s e t h e weapon was n o t r e g i s t e r e d . Hopkins t h e n

s t a t e d he had p o s s e s s i o n of t h e gun from t h a t t i m e , August
1 5 , 1979, u n t i l December 3 , 1979, when he g a v e i t t o t h e

police. ~opkinsgave t h e weapon t o t h e p o l i c e a f t e r h e had

s e v e r e d h i s r e l a t i o n s h i p w i t h K i m Warren. Ray Warren, a f t e r

p o s t i n g bond, d i s a p p e a r e d and h a s n e v e r been t r i e d on t h e

d e l i b e r a t e homicide c h a r g e .

Both t h e s t a t e and t h e d e f e n d a n t r a i s e d numerous i s s u e s

f o r review. Three i s s u e s a r e d i s p o s i t i v e : (1) Was Hopkins,

a s a m a t t e r of law, an accomplice? ( 2 ) I f Hopkins was a n

accomplice, a s a m a t t e r of law, t h e n was t h e r e any e v i d e n c e

t o c o r r o b o r a t e h i s testimony? ( 3 ) Did t h e D i s t r i c t C o u r t e r r

i n g r a n t i n g a new t r i a l ?

S e c t i o n 45-2-302(3), MCA, d e f i n e s t h e e l e m e n t s of b e i n g

an accomplice, p e r t i n e n t t o t h i s case. One i s l e g a l l y

accountable f o r a n o t h e r ' s conduct i f ". . . e i t h e r before o r

d u r i n g t h e commission of a n o f f e n s e w i t h t h e p u r p o s e t o

promote o r f a c i l i t a t e such commission, h e s o l i c i t s , a i d s ,

a b e t s , a g r e e s , o r a t t e m p t s t o a i d such o t h e r p e r s o n i n t h e

p l a n n i n g o r commission of t h e o f f e n s e . "

The o n l y d i r e c t e v i d e n c e b e a r i n g on t h e i s s u e s of de-

f e n d a n t ' s i n t e n t and Hopkins b e i n g a n "accomplice" i s the

t e s t i m o n y g i v e n by Hopkins a t time of t r i a l . Hopkins t e s t i -

f i e d t h a t he i n t e n d e d t o d i s p o s e of t h e .22 c a l i b e r p i s t o l

b e c a u s e he was t o l d by t h e d e f e n d a n t , Donald Warren, t h a t

t h e p i s t o l was u n r e g i s t e r e d and p e r h a p s i l l e g a l . heref fore,

Hopkins c o n t e n d s he d i d n o t a i d Donald Warren i n s u p p r e s s i n g

e v i d e n c e m a t e r i a l t o a homicide i n v e s t i g a t i o n ; r a t h e r ~ o p k i n s

c o n t e n d s h i s o n l y i n t e n t was t o d i s p o s e of a n u n r e g i s t e r e d

gun. I f t h e j u r y b e l i e v e d t h a t t h i s was a c t u a l l y d e f e n d a n t ' s

r e a s o n f o r d i s p o s i n g of t h e p i s t o l , t h e j u r y would n e c e s s a r i l y

have a c q u i t t e d t h e d e f e n d a n t , Donald Warren, b e c a u s e he was

charged w i t h s u p p r e s s i n g e v i d e n c e i n a homicide i n v e s t i g a t i o n .
The j u r y o b v i o u s l y c h o s e t o d i s b e l i e v e t h e f a c t of "no

r e g i s t r a t i o n " a s b e i n g t h e r e a s o n f o r d i s p o s a l of t h e weapon.

I f Hopkins' t e s t i m o n y c o u l d be c o n s i d e r e d t h e r e were
/from
t h e n f a c t s which t h e j u r y c o u l d i n f e r i n t e n t t o s u p p r e s s

m a t e r i a l e v i d e n c e i n a homicide i n v e s t i g a t i o n . A t t h e time

Hopkins claimed d e f e n d a n t , Donald Warren, d e l i v e r e d t h e .22

c a l i b e r weapon t o him w i t h i n s t r u c t i o n s t o d i s p o s e of same,

b o t h Hopkins and d e f e n d a n t knew Ray Warren, d e f e n d a n t ' s s o n ,

was i n j a i l and t h a t a homicide i n v e s t i g a t i o n was b e i n g

conducted. The j u r y i n f e r r e d from t h e s e c i r c u m s t a n c e s t h a t

d e f e n d a n t , having t h i s knowledge, i n t e n d e d t o d i s p o s e of t h e

.22 c a l i b e r weapon s o t h a t i t c o u l d n o t be used as e v i d e n c e

t o c o n v i c t h i s son. However, t h i s same i n f e r e n c e would

n e c e s s a r i l y have t o be drawn a b o u t t h e m o t i v e s of Hopkins.

I f t w e l v e r e a s o n a b l e minds i n f e r r e d from t h e e v i d e n c e t h a t

d e f e n d a n t , Donald Warren, i n t e n d e d t o s u p p r e s s t h e weapon

b e c a u s e i t was p o t e n t i a l e v i d e n c e i n a homicide c a s e , t h o s e

same t w e l v e r e a s o n a b l e minds would have t o i n f e r t h a t t h e

same i n t e n t e x i s t e d f o r Norman Hopkins. This inference

would n e c e s s a r i l y make Hopkins a n a c c o m p l i c e a s a m a t t e r of

law.

W e have c a r e f u l l y examined t h i s r e c o r d t o d e t e r m i n e i f

t h e r e was any c o r r o b o r a t i o n t o s u p p o r t t h e t e s t i m o n y of

Norman Hopkins. This case presents a p e r f e c t i l l u s t r a t i o n

of why a n a c c o m p l i c e ' s t e s t i m o n y must be c o r r o b o r a t e d .

Without c o r r o b o r a t i o n , a n i n n o c e n t man c o u l d be c o n v i c t e d by

t h e t e s t i m o n y of one w i t h a s t r o n g m o t i v e f o r s e e i n g t h a t

such a c o n v i c t i o n o c c u r r e d . Norman Hopkins had o p p o r t u n i t y

f o r a c c e s s t o t h e s o n , Ray Warren, f o l l o w i n g t h e s h o o t i n g .

Had Ray Warren d i s p o s e d of t h e . 2 2 c a l i b e r p i s t o l through

Norman Hopkins, Hopkins c o u l d l a t e r e x o n e r a t e h i m s e l f and

c o n v i c t t h e f a t h e r , Donald Warren, simply by r e l a t i n g t h e
s t o r y which was g i v e n under o a t h i n t h i s c a s e .

I n o r d e r t o c o r r o b o r a t e t h e t e s t i m o n y of Hopkins, i t

was n e c e s s a r y f o r t h e s t a t e t o show t h a t t h e . 2 2 c a l i b e r

weapon c o u l d be t r a c e d from t h e homicide s c e n e back t o t h e

Warren r e s i d e n c e , where d e f e n d a n t , Donald Warren, would have

a c c e s s t o t h e weapon. The s t a t e was a b l e t o show t h a t t h e

gun was a t t h e r e s i d e n c e p r i o r t o t h e a l l e g e d homicide. Of

c o u r s e , i f t h e gun was owned by Ray Warren, i t most l i k e l y

would have been a t h i s r e s i d e n c e . However, t h e c r i t i c a l

i n q u i r y must be d i r e c t e d toward i t s l o c a t i o n a f t e r t h e

shooting. There was a b s o l u t e l y no c o r r o b o r a t i v e e v i d e n c e ,

e i t h e r d i r e c t o r c i r c u m s t a n t i a l , which would p r o v i d e a b a s i s

f o r f i n d i n g t h a t t h e weapon t r a v e l e d from t h e a l l e g e d homi-

c i d e s c e n e t o t h e Warren r e s i d e n c e .

The s t a t e c o n t e n d s t h a t t h e p r e s e n c e of Ray W a r r e n ' s

v e h i c l e a t t h e Warren r e s i d e n c e s e v e r a l h o u r s a f t e r t h e

shooting occurred, tends t o provide corroboration. This

e v i d e n c e o n l y p r o v e s t h a t Ray Warren may have r e t u r n e d t o

h i s residence following the shooting, b u t i t does n o t prove

t h e l o c a t i o n of t h e weapon. I t Seems p r o b a b l e t h a t Ray

Warren may have d i s p o s e d of t h e weapon p r i o r t o r e t u r n i n g

h i s v e h i c l e t o t h e Warren r e s i d e n c e . I t seems i m p l a u s i b l e

t h a t Warren would have t a k e n t h e weapon t o h i s home where

p o l i c e would most l i k e l y c o n d u c t a s e a r c h . I n f a c t , such a

s e a r c h was conducted s e v e r a l d a y s l a t e r and no . 2 2 c a l i b e r

p i s t o l was found.

A t t h e t i m e of the search, a spare c l i p for the . 2 2

c a l i b e r p i s t o l was found i n t h e g l o v e compartment of a n

a u t o m o b i l e owned and d r i v e n by J o y Warren, w i f e of t h e

defendant. The s t a t e a r g u e s t h a t t h i s p r o v i d e s c o r r o b o r a t i o n .

However, t h e p r e s e n c e of a s p a r e c l i p o n l y t e n d s t o p r o v e
t h a t t h e . 2 2 c a l i b e r p i s t o l was on t h e p r e m i s e s a t some

time. The c r i t i c a l q u e s t i o n i s n o t whether t h e s u b j e c t

p i s t o l belonged t o Ray Warren o r whether i t had been a t t h e

Warren r e s i d e n c e on p r i o r o c c a s i o n s ; t h e d e t e r m i n a t i v e

q u e s t i o n i s whether t h e r e i s any e v i d e n c e , o t h e r t h a n Hopkins'

t e s t i m o n y , t o show t h a t t h e weapon moved from t h e a l l e g e d

homicide s c e n e back t o t h e Warren r e s i d e n c e . W e c a n f i n d no

e v i d e n c e i n t h e r e c o r d t o c o r r o b o r a t e Hopkins' testimony

t h a t t h e d e f e n d a n t , Donald Warren, was e v e r i n p o s s e s s i o n of

t h e . 2 2 c a l i b e r p i s t o l f o l l o w i n g t h e s h o o t i n g of August 1 4 ,

1979.

S e c t i o n 46-16-213, MCA, s e t s f o r t h t h e r e q u i r e m e n t of

c o r r o b o r a t i o n f o r accomplice t e s t i m o n y . I t states: "A

c o n v i c t i o n c a n n o t be had on t h e t e s t i m o n y of one r e s p o n s i b l e

o r l e g a l l y a c c o u n t a b l e f o r t h e same o f f e n s e . . . unless the

testimony i s corroborated . . ." The s t a t u t e r e q u i r e s t h a t

t h e t e s t i m o n y be c o r r o b o r a t e d by i n d e p e n d e n t e v i d e n c e tend-

i n g t o c o n n e c t t h e d e f e n d a n t w i t h t h e commission of t h e

offense. I n S t a t e v . Kemp ( 1 9 7 9 ) , ,
Mont. - 597 P.2d 96,

36 St.Rep. 1215, t h i s C o u r t d i s c u s s e d t h e c h a r a c t e r , s c o p e

and s u f f i c i e n c y of c o r r o b o r a t i n g e v i d e n c e :

"To b e s u f f i c i e n t , c o r r o b o r a t i n g e v i d e n c e must show
more t h a n t h a t a c r i m e was i n f a c t committed o r t h e
c i r c u m s t a n c e s of i t s commission. ( C i t a t i o n o m i t t e d . )
I t must r a i s e more t h a n a s u s p i c i o n of t h e d e f e n d a n t ' s
involvement i n , o r o p p o r t u n i t y t o commit, t h e c r i m e
c h a r g e d . ( C i t a t i o n o m i t t e d . ) But c o r r o b o r a t i v e e v i -
dence need n o t be s u f f i c i e n t , by i t s e l f , t o s u p p o r t
a d e f e n d a n t ' s c o n v i c t i o n o r even t o make o u t a prima
f a c i e c a s e a g a i n s t him. ( C i t a t i o n o m i t t e d . ) Corro-
b o r a t i n g e v i d e n c e may be c i r c u m s t a n t i a l ( c i t a t i o n
o m i t t e d ) and c a n come from t h e d e f e n d a n t o r h i s
witnesses. " ( C i t a t i o n omitted. )

I n t h e c a s e a t b a r , o n l y Hopkins' testimony e s t a b l i s h e d

the defendant's action i n transferring the pistol. There-

f o r e , a s a m a t t e r of law, t h e r e was no c o r r o b o r a t i n g e v i -

dence t o s u p p o r t a c o n v i c t i o n .
 I n r u l i n g on t h e d e f e n d a n t ' s motion f o r a judgment n o t -

w i t h s t a n d i n g t h e v e r d i c t , o r i n t h e a l t e r n a t i v e f o r a new

t r i a l , t h e lower c o u r t s t a t e d :

". . . and t h a t was t h e o n l y t e s t i m o n y a b o u t t h e
gun--was Hopkins. I was i n hopes t h a t t h i s would
be i n c o r r o b o r a t i o n . I was i n hopes t h a t t h i s
A l l o r e would t e s t i f y , b u t t h a t c a n s t i l l be done
...
" I n any e v e n t , t h a t ' s t h e d e c i s i o n of t h i s C o u r t ,
and t h e r e w i l l be a new t r i a l . "

These s t a t e m e n t s show t h a t t h e lower c o u r t s u b s t a n t i a l l y

a g r e e d w i t h t h e p r o p o s i t i o n t h a t Norman Hopkins was a n

accomplice and t h a t h i s t e s t i m o n y was n o t c o r r o b o r a t e d .

However, t h e lower c o u r t i n d i c a t e s t h a t t h e s t a t e ' s f a i l u r e

t o p r e s e n t s u f f i c i e n t c o r r o b o r a t i n g e v i d e n c e c o u l d be c u r e d

p e r h a p s a t a second t r i a l . Such a c t i o n p l a c e s t h e d e f e n d a n t

i n d o u b l e jeopardy and i s n o t c o n s t i t u t i o n a l l y p e r m i s s i b l e .

Burks v . United S t a t e s ( 1 9 7 8 ) , 437 U.S. 1, 9 8 S.Ct. 2141, 57

L.Ed.2d 1.

I n Burks t h e United S t a t e s Supreme C o u r t h e l d t h a t

" [ t l h e Double J e o p a r d y C l a u s e f o r b i d s a second t r i a l f o r t h e

p u r p o s e of a f f o r d i n g t h e p r o s e c u t i o n a n o t h e r o p p o r t u n i t y t o

s u p p l y e v i d e n c e which i t f a i l e d t o m u s t e r i n t h e f i r s t

p r o c e e d i n g . " 437 U.S. a t 11, 98 S.Ct. a t 2147, 57 L.Ed.2d a t

9.

T h i s h o l d i n g was l i m i t e d t o s i t u a t i o n s where a r e v e r s a l

of a lower c o u r t d e t e r m i n a t i o n was n e c e s s i t a t e d b e c a u s e of

e v i d e n t i a r y i n s u f f i c i e n c y , n o t b e c a u s e of t r i a l e r r o r . In

the case a t bar, t h i s C o u r t i s f a c e d w i t h t h e p r e c i s e problem

of e v i d e n t i a r y i n s u f f i c i e n c y . W e have d e t e r m i n e d t h a t

Norman Hopkins' t e s t i m o n y r e n d e r s him a n accomplice of t h e

d e f e n d a n t a s a m a t t e r of law and t h a t t h e s t a t e f a i l e d t o

p r e s e n t s u f f i c i e n t e v i d e n c e c o r r o b o r a t i n g Hopkins' testimony.

T h e r e f o r e , no e v i d e n c e e x i s t s t o s u p p o r t a c o n v i c t i o n of t h e -
defendant. Allowing t h e s t a t e a second chance t o b u t t r e s s

i t s c a s e would e x p r e s s l y v i o l a t e t h e p r i n c i p l e e s p o u s e d i n

Burks v . U n i t e d S t a t e s , s u p r a .

T h i s C o u r t h a s a l s o h e l d t h a t a new t r i a l c a n n o t b e

g r a n t e d where t h e e v i d e n c e adduced a t t h e f i r s t t r i a l i s

i n s u f f i c i e n t t o support a conviction. S t a t e v. J o h n s o n

( 1 9 7 8 ) , 1 7 7 Mont. 1 8 2 , 1 8 8 , 580 P.2d 1 3 8 7 , 1390; S t a t e v.

Langan (19681, 1 5 1 Mont. 558, 568, 445 P.2d 565, 570. Thus,

t h e q u e s t i o n becomes: What i s t h e p r o p e r remedy?

In Burks v. United S t a t e s , supra, t h e United S t a t e s

Supreme C o u r t s t a t e d t h a t , ". . . S i n c e w e hold today t h a t

t h e Double J e o p a r d y C l a u s e p r e c l u d e s a s e c o n d t r i a l o n c e t h e

reviewing c o u r t h a s found t h e e v i d e n c e l e g a l l y i n s u f f i c i e n t ,

the only ' j u s t ' remedy a v a i l a b l e f o r t h a t c o u r t i s t h e

d i r e c t i o n o f a judgment o f a c q u i t t a l . " 437 U.S. a t 1 8 , 98

S.Ct. a t 2150-2151, 57 L.Ed.2d a t 14. The Supreme C o u r t

f u r t h e r s t a t e d t h a t s u c h a c t i o n was t h e p r o p e r remedy r e g a r d -

l e s s of w h e t h e r t h e d e f e n d a n t ". . . s o u g h t a new t r i a l a s

o n e o f h i s r e m e d i e s , o r e v e n a s t h e s o l e remedy." 437 U.S.

a t 1 7 , 98 S . C t . a t 2150, 57 L.Ed.2d a t 13. The c o u r t con-

c l u d e d by s t a t i n g , ". . . To the e x t e n t t h a t our p r i o r

d e c i s i o n s s u g g e s t t h a t by moving f o r a new t r i a l , a d e f e n d a n t

w a i v e s h i s r i g h t t o a judgment o f a c q u i t t a l o n t h e b a s i s of

evidentiary insufficiency, those cases a r e overruled." 437

U.S. a t 1 8 , 98 S . C t . a t 21-51, 57 L.Ed.2d a t 14. This Court

a d o p t s t h e p r i n c i p l e s e s t a b l i s h e d by t h e U n i t e d S t a t e s

Supreme C o u r t i n Burks v . U n i t e d S t a t e s , s u p r a ; t h e r e f o r e , a

judgment o f a c q u i t t a l i s t h e p r o p e r remedy i n t h i s c a s e .

I n c o n c l ~ u s i o n , w e f i n d t h a t Norman Hopkins was a n

a c c o m p l i c e a s a m a t t e r of law and t h a t b e f o r e t h i s c a s e

could be submitted t o a jury, i t was i n c u m b e n t upon t h e
s t a t e t o produce i n d e p e n d e n t c o r r o b o r a t i n g e v i d e n c e . We

f i n d t h a t t h e s t a t e f a i l e d t o produce s u f f i c i e n t e v i d e n c e of

c o r r o b o r a t i o n n e c e s s a r y f o r c r e a t i o n of a j u r y i s s u e and

t h a t , t h e r e f o r e , t h e s t a t e ' s c a s e f a i l s a s a m a t t e r of law.

T h i s c a s e i s remanded t o t h e D i s t r i c t C o u r t w i t h d i r e c -

t i o n s t o e n t e r a judgment of a c q u i t t a l f o r d e f e n d a n t , Donald

Warren.

W concur:
e

Mr. J u s t i c e D a n i e l J . Shea d i s s e n t s and w i l l f i l e a w r i t t e n
dissent later.
 No. 80-335
----------

D I S S E N T O F MR. J U S T I C E D A N I E L J . SHEA

S T A T E O F MONTANA,

Plaintiff and A p p e l l a n t ,

VS.

DONALD ANDERSON WARREN,

D e f e n d a n t and R e s p o n d e n t .

DATED: June 5, 1 9 8 1
Mr. Justice Daniel J. Shea dissenting:

I would reverse the District Court ruling granting a
new trial and affirm the conviction.
The majority is clearly in error on two fundamental
conclusions. First, Norman Hopkins was not, as the majority
has concluded, an accomplice as a matter of law. Therefore,
his testimony was not subject to the rigid rules governing
corroboration of accomplice testimony. Second, assuming that
Norman Hopkins was an accomplice, his testimony was sufficiently
corroborated by independent evidence, and therefore, his
conviction must be affirmed.
The majority makes two particularly glaring misstatements
which seem to be the basis for its conclusion that Norman
Hopkins was an accomplice as a matter of law. First, the
majority reasons that if the jury believed that Norman Hopkins
got rid of the pistol because he was told by defendant Donald
Warren that it was unregistered, that the jury must also have
believed that defendant Donald Warren gave the gun to ~opkins
to get rid of because it was unregistered. That is a totally
unfounded conclusion, and certainly not one the jury was
required to make based on the evidence presented in this case.
There is not a shred of evidence in the record to show that
Norman Hopkins knew he was getting rid of a murder weapon
when defendant Donald Warren asked him to dispose of the pistol.
There is, on the other hand, circumstantial evidence from
which the jury could reasonably believe that defendant Donald
Warren knew it was a murder weapon, or at least knew that it
might be a murder weapon, when he gave it to Norman Hopkins
to dispose of.
The evidence to support the jury's conclusion as to
defendant Donald Warren's intent does not come from the
t e s t i m o n y o f Norman Hopkins. R a t h e r , i t comes from t h e

t e s t i m o n y o f C a p t a i n C h a r l e s Hensley of t h e B i l l i n g s C i t y

P o l i c e Department, and A 1 K e t t e r l i n g of t h e Yellowstone

County S h e r i f f ' s Eepartment. I t a l s o comes from t h e r e a s o n -

a b l e i n f e r e n c e a j u r y c o u l d make i n c o n c l u d i n g t h a t Ray

Warren d r o v e h i s c a r a l m o s t d i r e c t l y from t h e murder s c e n e

t o t h e home of Donald Warren, and t h a t Ray Warren l e f t t h e

p i s t o l a t t h e Donald Warren home.

Second, t h e m a j o r i t y i s c l e a r l y wrong i n c o n c l u d i n g

t h a t t h e j u r y was r e q u i r e d t o i n f e r t h a t Norman Hopkins

i n t e n d e d t o d i s p o s e o f a murder weapon i f t h e j u r y i n f e r r e d

t h a t d e f e n d a n t Donald Warren i n t e n d e d t o d i s p o s e of a murder

weapon. The o p i n i o n s t a t e s :

". . . I f t w e l v e r e a s o n a b l e minds i n f e r r e d from
t h e e v i d e n c e t h a t d e f e n d a n t , Donald Warren,
i n t e n d e d t o s u p p r e s s t h e weapon b e c a u s e it was twelve
p o t e n t i a l e v i d e n c e i n a homicide case, t h o s e s a m e /
r e a s o n a b l e minds would have t o i n f e r t h a t t h e
same i n t e n t e x i s t e d f o r Norman Hopkins. T h i s
i n f e r e n c e would n e c e s s a r i l y make Hopkins a n
accomplice a s a m a t t e r of law."

T h i s c o n c l u s i o n r e s t s on an assumption t h a t Norman

Hopkins knew e x a c t l y what d e f e n d a n t Donald Warren knew

c o n c e r n i n g t h e s t a t u s o f t h e i n v e s t i g a t i o n and t h a t t h e

p o l i c e w e r e looking f o r a - 2 2 c a l i b e r p i s t o l o r a .22

c a l i b e r weapon a s t h e p r o b a b l e murder weapon. The e v i d e n c e

is t o the contrary. The u n c o n t r a d i c t e d t e s t i m o n y o f Norman

Hopkins i s t h a t he d i d n o t know h e was d i s p o s i n g of a murder

weapon. There i s n o t a s h r e d o f e v i d e n c e i n t h e t r i a l r e c o r d

t h a t Hopkins d i d know t h a t d e f e n d a n t Donald Warren had handed

him a murder weapon t o d i s p o s e o f . T h i s b e i n g s o , why would

t h e j u r y have t o i n f e r t h a t Norman Hopkins must have had t h e

i n t e n t t o d i s p o s e o f t h e murder weapon i f t h e j u r y i n f e r r e d

on t h e b a s i s o f t h e e n t i r e e v i d e n c e i n t h e r e c o r d , t h a t

d e f e n d a n t Donald Warren had such i n t e n t ? There i s d i r e c t
t e s t i m o n y i n t h e r e c o r d t h a t d e f e n d a n t Donald Warren was

t o l d by C a p t a i n Hensley t h a t t h e p o l i c e w e r e l o o k i n g f o r

a .22 c a l i b e r automatic p i s t o l o r a t l e a s t a . 2 2 c a l i b e r

weapon. F u r t h e r , d e f e n d a n t Donald Warren had a d d i t i o n a l

knowledge c o n c e r n i n g t h e s t a t u s o f t h e i n v e s t i g a t i o n and t h e

f o c u s i n g of t h e p o l i c e on h i s son Ray Warren, as t h e s u s p e c t .

The r e c o r d d o e s n o t show t h a t Norman Hopkins had t h i s know-

ledge. The j u r y was e n t i t l e d t o c o n v i c t d e f e n d a n t Donald

Warren on t h e b a s i s o f t h a t knowledge and of t h e e n t i r e

c i r c u m s t a n c e s s u r r o u n d i n g t h e d i s p o s a l of t h e p i s t o l .

I f a i l t o u n d e r s t a n d t h e r e a s o n i n g of t h e m a j o r i t y i n

c o n c l u d i n g ( w i t h o u t s u p p o r t i n t h e r e c o r d ) t h a t Norman Hopkins

was an accomplice a s a m a t t e r of law. I f he was an a c c o m p l i c e

as a m a t t e r of l a w , t h e t r i a l c o u r t w a s r e q u i r e d t o s o i n s t r u c t
t h e jury. But Hopkins c o u l d n o t b e an accomplice a s a m a t t e r

o f law u n l e s s t h e j u r y c h o s e t o d i s b e l i e v e h i s t e s t i m o n y

and t h e r e f o r e t o i n f e r t h a t c o n t r a r y t o h i s t e s t i m o n y , Hopkins

d i d know h e was r e c e i v i n g a murder weapon from d e f e n d a n t

Donald Warren and t h a t Hopkins had t h e i n t e n t t o d i s p o s e o f

a murder weapon. There i s c e r t a i n l y e v i d e n c e i n t h e r e c o r d

t h r o u g h t h e d i r e c t t e s t i m o n y of Norman Hopkins by which t h e

j u r y c o u l d b e l i e v e t h a t Norman Hopkins d i d n o t know he was

r e c e i v i n g and d i s p o s i n g of a murder weapon. The j u r y c o u l d

reach a c o n t r a r y conclusion only i f they chose n o t t o b e l i e v e

Norman Hopkins. The j u r y c h o s e t o b e l i e v e him. Once t h e

j u r y c h o s e t o b e l i e v e Hopkins, he w a s n o t an a c c o m p l i c e , and

t h e r e f o r e h i s t e s t i m o n y d i d n o t have t o be judged by t h e

s t a n d a r d s a p p l i c a b l e t o accomplice t e s t i m o n y .

Furthermore, even assuming t h a t Norman Hopkins was a n

a c c o m p l i c e because he knew he was r e c e i v i n g and d i s p o s i n g o f

a murder weapon handed t o him by d e f e n d a n t Donald Warren, h i s

t e s t i m o n y was s u f f i c i e n t l y c o r r o b o r a t e d , and t h e r e f o r e t h e
conviction should still be affirmed. In concluding
that Hopkins' testimony was uncorroborated, the majority
erroneously focuses on the necessity of demonstrating that
defendant Donald Warren received the murder weapon from
his son,Ray Warren. Although the evidence certainly cir-
cumstantially points to that conclusion, it is not necessary
that defendant Donald Warren received that gun from Ray
Warren. All that is necessary is that when defendant Donald
Warren gave it to Norman Hopkins, he knew or was suspicious
that it was the murder weapon and therefore that it was part
of the continuing investigation of the murder of Carl Ray
Malcom. The circumstantial evidence points clearly to that
conclusion. This evidence is sufficient to lead a jury to
conclude that Norman Hopkins received the murder weapon from
defendant Donald Warren.
The majority opinion is long on the law (although mis-
applied) and short on the facts. For this reason, I set out
a detailed factual statement based on the trial record before
the jury. Before doing so, it would first be helpful to
set out the basic criminal charge that the State was required
to prove in this case.
The statute under which defendant is charged (referred
to but not analyzed by the majority), section 45-7-207, MCA,
requires, in the context of this case, that the State prove
three essential facts. First, the State must prove that
the defendant,Donald Warren,had knowledge of an impending
investigation or proceeding. Second, the State must prove
that defendant Donald Warren took action to conceal physical
evidence (the pistol) pertinent to the investigation or
proceeding. Third, the State must prove that defendant
Donald Warren had the intent to purposely impair the avail-
ability of physical evidence (the .22 caliber pistol). The
S t a t e proved e a c h o f t h e s e f a c t s , The t e s t i m o n y of Norman

Hopkins was r e q u i r e d o n l y t o show t h a t it was t h e d e f e n d a n t ,

Donald Warren, who handed t h e p i s t o l t o Hopkins and asked

him t o d i s p o s e o f i t . Defendant's i n t e n t i n doing s o w a s

n o t proved t h r o u g h Hopkins, f o r Hopkins d i d n o t know t h e n

t h a t he had such i n t e n t . R a t h e r , i t was proved t h r o u g h

o t h e r t e s t i m o n y by which t h e j u r y had e v e r y r i g h t t o i n f e r

t h a t d e f e n d a n t Donald Warren i n t e n d e d t o d i s p o s e o f an

i m p o r t a n t i t e m of e v i d e n c e .

NORMAN HOPKINS--HIS RELATIONSHIP TO THE DONALD WARREN FAMILY.

HIS FAMILIARITY W I T H THE . 2 2 CALIBER PISTOL AND ITS AMMUNITION

CLIPS

Norman Hopkins and K i m Warren went t o g e t h e r f o r a l m o s t

a y e a r , and d u r i n g a good p a r t of t h a t t i m e , t h e y l i v e d t o g e t h e r .

During t h i s t i m e , Hopkins a l s o g o t t o know t h e d e f e n d a n t ,

Don Warren, Ray Warren, d e f e n d a n t ' s s o n , and J o y Warren,

defendant's wife. O t h e r t h a n K i m , he knew Don Warren b e t t e r

t h a n any of t h e o t h e r f a m i l y members. During t h i s p e r i o d of

t i m e , h e saw Ray Warren p e r h a p s on an a v e r a g e of o n c e a month.
During t h i s t i m e , however, Norman Hopkins became f a m i l i a r w i t h

t h e . 2 2 c a l i b e r p i s t o l which l a t e r t u r n e d o u t t o b e t h e murder

weapon.

On a t l e a s t two o c c a s i o n s i n F e b r u a r y 1979, Norman

Hopkins and Ray Warren went c o y o t e h u n t i n g , and Ray Warren

used t h e p i s t o l i n v o l v e d . On one o c c a s i o n , Norman Hopkins

s h o t a coyote with it. On a n o t h e r o c c a s i o n , t h e y s h o t a

f o x and a c o y o t e . On e a c h of t h e s e o c c a s i o n s , t h e r e w e r e

two c l i p s f o r t h e p i s t o l . Norman Hopkins had one o t h e r

o c c a s i o n t o see t h e p i s t o l b e f o r e i t was t u r n e d o v e r t o him

by Don Warren on August 1 5 , 1979, t o d i s p o s e o f .

During June 1979, a t r u c k d r i v e r ' s s t r i k e b r o k e o u t

i n t h i s s t a t e ( a s it d i d t h r o u g h o u t t h e n a t i o n ) . Norman
Hopkins, a truck driver, who then had a route from Laurel,
Montana, to St. Regis, Montana (a route which took about
26 hours round trip), was concerned about the violence and
called up defendant Don Warren and asked him if he could
borrow a gun to protect himself. He went over to Don
Warren's house and Don Warren gave him the pistol involved
here--a .22 caliber Stoeger-Luger semi-automatic. He gave
him two clips for the pistol. Norman Hopkins had the pistol
for about a week and then returned it to defendant Don Warren.
This was the last time Norman Hopkins saw the pistol until
Don Warren asked him to dispose of it on August 15, 1979.
THE ARREST OF RAY WARREN ON MURDER CHARGES
Earl Ray Malcom was murdered close to midnight on
August 14, 1979. Less than four hours later, Ray Warren
and another person were arrested for the murder. A neighbor
living next door to the victim, heard shots, ran out and
obtained a good description of an individual running into
a get-away car, and obtained a good description of the get-
away car.
Steve Gillis, a neighbor sharing a common driveway with
the murder victim (Earl Ray Malcom) was home watching tele-
vision in the late evening of August 14 and early morning
hours of August 15. He heard a rapid series of shots (later
thought them to be .22 shots because of his own familiarity
with using a .22 in target practice), and saw a man running
toward a white Plymouth station wagon which had both left
doors smashed in. He ran out to see what the shooting was
about and heard glass falling out of the window of the get-
away car. He was then only about ten to fifteen feet away
from the get-away car. He called the police, gave a description
of the get-away.car to them, and also a description of the
person he saw running from the scene to get into the car.
(Although the record is not entirely clear on this, it
appears that it was based on this information that Ray
Warren was arrested a little later in the morning on charges
of homicide.)
It so happened that at the approximate time of the murder,
deputy-sheriff A1 Ketterling was visiting the home of defendant
Don Warren. He had known the Don Warren family for about
five years, and although on duty, was paying the family a
social call. It was shortly before midnight on August 14.
He was familiar with the Ray Warren vehicle. He noticed
then that the Ray Warren vehicle was not parked at the
home. After leaving the Warren home, he learned of the murder
and obtained the description of the get-away car, a description
fitting Ray Warren's Plymouth station wagon with all the body
damage. Just a short time later (about 1:30 or 2:00 a.m.),
he passed the Don Warren home and noticed that Ray Warren's
car was parked in front. He called another deputy to get
his opinion as to whether this was the get-away car, and then
called the city police department to tell them the get-away
car had possibly been found.
A short while later, Deputy Ketterling went to the Don
Warren home with Captain Hensley of the Billings Police
Department. Ketterling was not a part of the official
investigation team and he went primarily as a friend of the
Don Warren family to tell them about Ray Warren's possible

involvement in the murder. Captain Charles Hensley was in
charge of the murder investigation.
THE TESTIMONY OF CAPTAIN CHARLES HENSLEY
After the homicide had been reported, Captain Charles
Hensley, a veteran then of almost 19 years on the Billings
police department, 13 years as a detective, took charge
of the investigation and first went to the murder scene.
Among other things, he saw empty . 2 2 cal-iber shell casings
scattered around the murder scene, he saw tire tracks, and
broken glass scattered around the scene. Uniformed officers
and two detectives were also investigating at the scene.
By this time, the police had the description of the get-away
car and of Ray Warren (given to them by Steven Gillis).
Captain Hensley returned to the police station to see if the
suspects had been located. On his arrival, he found that the
suspects were in custody and the police were questioning them.
He stayed at the police station for about 45 minutes and then
drove to the Donald Warren home He wanted to check out the
Ray Warren car, which had by then reported back at the Donald
Warren home. He also wanted to tell Donald Warren that they
were looking for a . 2 2 caliber weapon.
Deputy Ketterling went to the door, summoned Donald
Warren, and then Captain Hensley explained to him that there
had been a murder and that Ray Warren was a suspect and was
in custody. He also explained that the police were looking
for physical evidence relating to the homicide.
Captain Hensley specifically told Donald Warren that
the victim had been killed with a . 2 2 caliber gun, and that
he was looking for a .22 caliber automatic pistol or any . 2 2
caliber weapon. He also told Donald Warren that he wanted to
check the Plymouth station wagon to see if it had been recently
driven. Donald Warren replied ---- 2 weapon they
that the only . 2

- - - house was a rifle, but - Captain Hensley was
had in the -- - that
welcome -----
to take this gun and eliminate - - ballistic tests.
it by
Donald Warren -- Captain Hensley - -he (Warren) -
also told that had

- - - been a police officer ----- knew that Captain Hensley
once and he
was just doing his job.
-----
 C a p t a i n Hensley a l s o i n s p e c t e d t h e Plymouth s t a t i o n

wagon parked by t h e Donald Warren home. H e found t h e e n g i n e

s t i l l warm, i n d i c a t i n g t h a t i t had r e c e n t l y been d r i v e n .

H e a l s o found t h a t t h e l e f t r e a r wheel o r f r o n t wheel had

d r i v e n t h r o u g h a mud muddle and t h e r e w a s a damp mark on

t h e ground i n d i c a t i n g t h e c a r had gone t h r o u g h and l e f t a

t r a c k on d r y ground l e a d i n g up t o t h e v e h i c l e . Although he

d i d n o t go i n s i d e t h e c a r , he n o t i c e d , among o t h e r t h i n g s ,

t h a t t h e r e was broken g l a s s i n t h e c a r .

CONNECTION O RAY WARREN TO A PISTOL ON AUGUST 1 4 , 1979
F

Two young men, who knew Ray Warren q u i t e w e l l , saw

Warren i n h i s car on two o c c a s i o n s on August 1 4 . The f i r s t

t i m e was a b o u t 7:30 p.m. and t h e second t i m e w a s a b o u t 11:30

o r 11:45 p.m., p r o b a b l y w i t h i n 1 5 o r 2 0 minutes of t h e murder.

Both R o b e r t Corey Nevins ( a g e 1 9 ) and Leo H a r s h f i e l d ( a g e 1 7 )

saw Ray Warren parked a t t h e Big Scoop i c e cream p a r l o r , j u s t

b l o c k s away from t h e murder s c e n e , and no more t h a n 1 5 o r

20 m i n u t e s b e f o r e t h e murder. Ray warren d r o v e h i s w h i t e

Plymouth s t a t i o n wagon i n t o t h e p a r k i n g l o t and parked i t

r i g h t n e x t t o t h e v e h i c l e i n which Nevins and H a r s h f i e l d

w e r e parked. Both young men knew Ray Warren, and Nevins

t e s t i f i e d t h a t h e had known Warren f o r a b o u t two y e a r s .

Ray Warren and h i s p a s s e n g e r w e r e s i t t i n g i n t h e s t a t i o n

wagon and Nevins and H a r s h f i e l d went o v e r t o t a l k t o them.
H a r s h f i e l d was on t h e p a s s e n g e r s i d e of t h e s t a t i o n wagon j u s t

a few f e e t away from t h e c a r , and Nevins, was on t h e d r i v e r ' s

s i d e o f t h e s t a t i o n wagon, j u s t a few f e e t away from t h e c a r .
Ray Warren w a s s i t t i n g i n t h e d r i v e r ' s s e a t , t h e d r i v e r ' s

d o o r was open, and h e had h i s l e g s s t i c k i n g o u t . Both Nevins

and H a r s h f i e l d n o t i c e d t h a t n e x t t o Ray Warren was a p i s t o l ,

what a p p e a r e d t o them t o be an a u t o m a t i c p i s t o l .
 These people talked for a while and then Nevins
and Harshfield left, Nevins taking Harshfield home. Ray
Warren and his passenger were then still in the parking lot.
Fifteen or twenty minutes later, within blocks from the Big
Scoop ice cream parlor, Earl Ray Malcom was murdered.
INVOLVEMENT OF NORMAN HOPKINS IN DISPOSING OF THE PISTOL
ON AUGUST 15, 1979
Norman Hopkins arrived home at about 6 : 3 0 a.m. The
record does not disclose whether or not he had just completed
his round-trip truck route from Billings to St. Regis, Montana,
and back to Billings. His girlfriend, Kim Warren was there.
She told him that her brother Ray Warren, had been arrested
for homicide. The record is silent as to whether she told
him any more than this or whether she even knew more about
the arrest that this. We must, therefore, assume that she
told him nothing else.
At approximately 3:30 p.m., Norman Hopkins and Kim
Warren drove to the Donald Warren home. On their arrival,
Donald Warren mentioned that he was trying to raise bail so
he could get his son Ray Warren out of jail. Shortly after
this bail discussion, Donald Warren told Norman Hopkins that
he had a .22 pistol he wanted Hopkins to dispose of. He
told Hopkins that he had purchased the gun at Colstrip some
time ago, that it was unregistered, that he didn't know where
the gun had come from originally, and that he didn't want the
police to find the pistol in the house.
Donald Warren and Norman Hopkins went downstairs to
the basement, and Warren pulled the gun from inside a poof
pillow (a big fluffy pillow used as a chair) and handed it
to Hopkins. (This was the same pistol that Norman Hopkins
and Ray Warren had used previously when they went coyote
hunting and the same one that Donald Warren had given
to Hopkins to use during the truck driver's strike.) The
pistol was in a holster and there was only one ammunition
clip for the pistol.
Joy Warren, the wife of Donald Warren, then came in
with a pair of levis in her hands to wrap the pistol in.
Defendant Don Warren took the levis from his wife and went
downstairs. Hopkins then laid the pistol in the levis,
and wrapped it.
Donald Warren suggested to Hopkins that IIopkins
should throw the pistol in the river when Hopkins drove
his truck route to St. Regis, Montana, so that the pistol
should disappear and never show up. Hopkins left almost
immediately. Neither the defendant, Donald Warren, nor his
wife, Joy Warren, nor his daughter, Kim Warren, testified to
this transaction. Therefore, the only testimony as to this
entire transaction is the testimony of Norman Hopkins. His
testimony is uncontradicted and unimpeached. The jury clearly
had a right to believe Norman Hopkins.
CONTACT OF NORMAN HOPKINS WITH THE DONALD WARREN FAMILY AFTER
AUGUST 15 AND BEFORE HOPKINS TURNED THE PISTOL OVER TO THE
COUNTY ATTORNEY
Hopkins kept possession of the pistol from the time he
received it on August 15 until he turned it over to the
county attorney's office on December 3, 1979. During this
time, he talked to Donald Warren only once.
About two weeks after he received the pistol from
Donald Warren (which would be the end of August or the first
part of September), Hopkins telephoned Donald Warren at his
home. Hopkins told Warren that he had disposed of the pistol
but he did not tell Warren what he did with it and Warren
did not ask. However, Hopkins got the clear message from
Donald Warren that something drastic would happen to him
if the pistol should ever turn up.
About the middle of October 1979, Hopkins broke off
his relationship with Kim Warren. The implication of the
majority opinion is that Kim Warren broke off her relationship
with Hopkins and that in retaliation Hopkins may have had
the desire to frame Donald Warren for disposing of the pistol.
There is not a scrap of evidence in the record to support
this conclusion. Further, the uncontradicted testimony of
Norman Hopkins is that he did not want to see Kim Warren any
longer because he had met another woman and planned to marry
her.
THE CIRCUMSTANCES OF NORMAN HOPKINS' TURNING THE PISTOL OVER
TO THE COUNTY ATTORNEY'S OFFICE
The circumstances leading to Hopkins' turning the pistol
over to the Yellowstone County Attorney's Office are revealing.
As could be expected, Ray Warren was charged with the murder
of Earl Ray Malcom, and his trial was set for mid-December
1979. The State was, however, proceeding to trial without
the murder weapon. The record does not clearly reveal whether
Hopkins knew by news reports that the murder weapon had not
been recovered, but the implication is that he learned by
the news reports that the murder weapon had not been recovered.
So, in early December 1979, he telephoned the county attorney's
office and asked what caliber gun was used in the murder.
On learning the caliber, Hopkins made arrangements with the
county attorney's office to turn the .22 caliber semi-automatic
pistol over to the State.
Hopkins arranged to meet with members of the county
attorney's staff at Mr. D's restaurant in Billings. Hopkins
arrived there with his attorney, and Howard Corbin (the
prosecutor in this case) and Jeanne Wilson, from the
county attorney's staff were present. They talked at the
restaurant for about an hour and then Hopkins went to his
car, retrieved the pistol, and turned it over to the county
attorney's office. He also durned over a holster for the
pistol and an ammunition clip for the pistol.
On learning that the murder weapon had been found, the
defendant in the murder charge, Ray Warren, fled and still
has not been apprehended.
Tests on the pistol showed that it was the weapon used
in the murder of Earl Ray Malcom.
Based on Norman Hopkins' disclosures, Donald Warren was
charged with tampering with evidence. At his trial on this
charge, an F.B.I. agent, after Hopkins and a member of the
county attorney's staff had identified the pistol, testified
that the .22 caliber pistol was the murder weapon.
SUMMARY OF THE EVIDENCE
The pistol which Norman Hopkins turned over to the
county attorney's office turned out to be the murder weapon.
The evidence does not disclose how the pistol got from the
murder scene back to Donald Warren's home, but somehow it
got there. The chances are that Ray Warren brought it there.
Ray Warren's car was identified as being at the murder scene,
in fact, it was identified as the get-away car. Further, at
the time of the murder, A1 Ketterling was visiting the Donald
Warren home and noticed that the Ray Warren car was not
there. But an hour and a half later, after Ketterling had
obtained a description of the get-away car, he noticed that
Ray Warren's car was parked at the Donald Warren home. From
this evidence, it is most reasonable for the jury to assume
t h a t Ray Warren r e t u r n e d h i s c a r t o t h e Donald Warren home,

and it i s most r e a s o n a b l e t o a l s o assume t h a t he b r o u g h t

t h e murder weapon w i t h him. But it i s n o t n e c e s s a r y t h a t

Ray Warren p e r s o n a l l y b r o u g h t t h e gun home. It i s only

n e c e s s a r y t o d e t e r m i n e t h a t someone b r o u g h t t h e gun t o t h e

Donald Warren home a f t e r t h e murder. The e v i d e n c e would

g i v e t h e j u r y no problem i n i n f e r r i n g t h i s f a c t .

F u r t h e r , Donald Warren knew t h a t Ray W a r r e n ' s c a r had

been c o n n e c t e d t o t h e murder s c e n e . F o r , by t h e t i m e C a p t a i n

Hensley and d e p u t y ~ e t t e r l i n gcame t o t h e Donald Warren home,

Ray Warren had a l r e a d y been a r r e s t e d f o r t h e homicide. Both

K e t t e r l i n g and C a p t a i n Hensley t o l d Donald Warren t h i s .

C a p t a i n Hensley a l s o t o l d Donald Warren t h a t he wanted t o

i n s p e c t Ray Warren's c a r , t h e n parked a t t h e house, and he

a l s o t o l d Donald Warren t h a t t h e p o l i c e were l o o k i n g f o r ,

a s t h e murder weapon, a .22 c a l i b e r a u t o m a t i c p i s t o l o r any

. 2 2 c a l i b e r gun. Donald Warren r e p l i e d t h a t t h e o n l y .22
was
gun t h e r e was,/%.22 c a l i b e r r i f l e and t h a t t h e p o l i c e w e r e

welcome t o t a k e it and c o n d u c t b a l l i s t i c t e s t s . This i s t h e

e v i d e n c e of which Donald Warren had d i r e c t knowledge. On

t h e o t h e r hand, n o t a s c r a p of e v i d e n c e i n t h e t r i a l r e c o r d

shows t h a t Norman Hopkins knew t h a t Ray Warren's c a r had been

c o n n e c t e d t o t h e murder s c e n e o r t h a t t h e murder weapon was

o r a t l e a s t was s u s p e c t e d t o b e a .22 c a l i b e r gun.

Assuming t h e j u r i e s b e l i e v e d C a p t a i n Hensley, and t h e y

had a r i g h t t o do s o , t h e y c o u l d i n f e r t h a t Donald Warren
l i e d when h e t o l d C a p t a i n Hensley t h a t t h e o n l y .22 c a l i b e r

gun i n t h e house was a r i f l e . Norman Hopkins t e s t i f i e d t o

h i s own knowledge of t h e .22 c a l i b e r p i s t o l i n v o l v e d : he

used i t when h e and Ray Warren went c o y o t e h u n t i n g on two

o c c a s i o n s , and on b o t h o c c a s i o n s , t h e r e were two ammunition

clips for the pistol. F u r t h e r , on a n o t h e r o c c a s i o n
Hopkins talked directly to Donald Warren and asked to borrow
a gun to take with him on his truck route to St. Regis.
Donald Warren loaned him the .22 caliber pistol involved,
and also gave him two ammunition clips. Based on this
testimony, and his testimony that he received the pistol
from Donald Warren on August 15 to dispose of because it was
an unregistered pistol, the jury was entitled to believe
that Donald Warren lied to Captain Hensley when he told him
that only a .22 caliber rifle was in the house. Obviously,
then, the jury could believe, and was entitled to believe,
that Donald Warren did have knowledge that the .22 caliber
pistol was in his home and that it was connected to the murder.
Two days after the murder, the Donald Warren home and
automobiles were searched under the authority of a search
warrant. No murder weapon was found. The police did find
a .22 caliber rifle and they also found a .22 caliber
ammunition clip with 11 live rounds in it, in Joy Warren's
car. This ammunition clip did not fit the rifle, but it
did fit the .22 caliber pistol later identified as the murder
weapon. This ammunition clip corroborated Norman Hopkins'
testimony that on all three occasions he had used the pistol
there were two ammunition clips, but that when he received it

from Donald Warren on August 15, there was only one ammunition
clip. Further, the jury could also conclude by this testimony
and evidence that Donald Warren had lied when he told
Captain Hensley that the only .22 caliber gun around his
home was a rifle.
The majority makes much of the fact that a murder
weapon was not found when the house was searched (on August

17). That is not strange at all, however, since the State's
theory of the case was, and the proof was, that Donald
Warren had disposed of the pistol on August 15 by asking
Norman Hopkins to get rid of it. That was the very idea.
Donald Warren, a former policeman, knew that the police
would search for the murder weapon and he did not want it
there. Although he did not tell Norman Hopkins that the
pistol was connected to the murder, he did tell Hopkins that
he wanted him to get rid of it because he did not want the
police to find it. What is strange, then, about the police
not finding the murder weapon during the search of the house?
We have, then; the uncontradicted testimony of Norman
Hopkins telling the jury how he received the .22 caliber
pistol and holster and ammunition clip from Donald Warren
on August 15. He testified unequivocally that he did not
know it was connected to a murder when he received it from
Donald Warren. He testified unequivocally that he still
did not know that the pistol was connected when he called
the county attorney's office on December 3 to ask the caliber
of the murder weapon. Norman Hopkins was not an accomplice
because he did not have the same knowledge that Donald Warren
had concerning the pistol or concerning the details of the
police investigation connecting Ray Warren to the murder.
The jury was entitled to believe his testimony.
Because of the Fifth Amendment privilege surrounding
Donald Warren, the jury could not infer anything by Donald
Warren's failure to testify. But the same is not true of
the other members of his family present when Hopkins received
the pistol from Donald Warren. Joy Warren, Donald Warren's
wife, may have invoked the husband-wife privilege if the
State called her to testify. But certainly the defendant
Donald Warren could have called her if he felt she could
help his cause. No privilege was involved with Kim Warren.
The prosecution sought to add her as a witness, but
the defense resisted, and ultimately, the State dropped
its request. But if the defense felt she could contradict
Hopkins' version of what happened, nothing prevented the
defense from calling Kim Warren as a witness.
Once Hopkins testified to the details of the conver-
sations, the prosecution was entitled to proceed on the
assumption that any additional testimony from either Joy
Warren or Kim Warren would be cumulative. The State needed
no corroboration because the very nature of Hopkins' testimony
showed that he was not an accomplice. Therefore, if there
were any discrepancies in his testimony, or if his testimony
was a complete fabrication in the estimation of the defense,
the defense had available as witnesses, Joy Warren, defendant's
wife, and Kim Warren, defendant's daughter. The defense
called neither. These witnesses were more available to
the defense than they were to the prosecution, and the jury
could infer that their testimony would not be helpful to
the defendant, Donald Warren. Further, the jury could believe
Norman Hopkins--after all, his testimony was uncontradicted
and unimpeached.
The testimony of Norman Hopkins, in addition to the
other evidence produced, was sufficient for the jury to
convict Donald Warren of tampering with evidence. I see
no trial errors that would dictate a new trial. heref fore,