State v. Morigeau

No. 81-328

I N THE SUPREIE COURT O THE STATE O MONTANA
F F

1982

STATE O MONTANA,
F

P l a i n t i f f and Respondent,

VS .
WILLIAM "BILL" MORIGEAU,

Defendant and A p p e l l a n t .

Appeal from: D i s t r i c t Court of t h e Fourth 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 Lake
Honorable John Henson, J u d g e p r e s i d i n g .

Counsel of Record:

For Appellant:

Turnage and McNeil, P o l s o n , Montana
C . B. M c N e i l a r g u e d , P o l s o n , Montana
James A . Manley a r g u e d , P o l s o n , Montana

For Respondent:

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
S t e v e Johnson a r g u e d , A s s i s t a n t A t t o r n e y G e n e r a l , H e l e n a ,
Montana
R i c h a r d I?. H e i n z , County A t t o r n e y , P o l s o n , Montana
Duke R. Wolf a r g u e d , Deputy County A t t o r n e y , P o l s o n ,
Montana

Submitted: O c t o b e r 1 4 , 1982

Decided: December 29, 1982
Mr. J u s t i c e Fred J. Weber d e l i v e r e d t h e Opinion of t h e C o u r t .

The d e f e n d a n t , W i l l i a m " B i l l " Morigeau, was c h a r g e d i n

t h e D i s t r i c t C o u r t of t h e F o u r t h J u d i c i a l D i s t r i c t , Lake

County, w i t h two c o u n t s of f e l o n y b u r g l a r y . A jury returned

a v e r d i c t of g u i l t y t o b o t h c o u n t s . Morigeau was s e n t e n c e d

t o t e n y e a r s i n p r i s o n and d e s i g n a t e d a dangerous o f f e n d e r .

Morigeau a p p e a l s and p r e s e n t s t h e f o l l o w i n g i s s u e s :

1. Whether t h e e v i d e n c e of t h e S t a t e ' s immunized

w i t n e s s 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 ?

2. Whether d e f e n d a n t was p r o v i d e d e f f e c t i v e a s s i s t a n c e

of c o u n s e l a t t r i a l ?

The v e r d i c t i s v a c a t e d and t h e c a u s e i s remanded f o r a

new t r i a l .

While working t o g e t h e r on a Housing and Urban Development

P r o j e c t a t P a b l o , Montana, Morigeau and Kevin G r o a t became

f r i e n d s and d e c i d e d t o s h a r e a house i n Ronan, Montana. They

began moving i n t o t h e house on October 2 8 , 1980. Morigeau

t e s t i f i e d t h a t h e , G r o a t , and a Mexican, F o r t i n o Gonzales

who had been s t a y i n g w i t h G r o a t , d r a n k some b e e r a s t h e y

were moving i n t o t h e house. T h a t n i g h t a l l t h r e e man s l e p t

i n t h e l i v i n g room o f t h e house a s i t was t h e o n l y room

which was h e a t e d .

According t o G r o a t ' s t e s t i m o n y , b e f o r e t h e men went t o

s l e e p , he and Morigeau went t o D a v i s , I n c . , which i s l o c a t e d

a c r o s s t h e s t r e e t from t h e a p a r t m e n t G r o a t was moving o u t

o f . G r o a t broke a window and climbed i n and t h e n l e t Morigeau

i n through a door. They began p i c k i n g up t o o l s and began

c a r r y i n g s m a l l boxes o v e r t o M o r i g e a u ' s c a r which was p a r k e d

across the s t r e e t . They d r o v e t h e c a r o v e r t o D a v i s , I n c .

t o l o a d t h e l a r g e r boxes which weighed a s much a s 195 l b s .

They r e t u r n e d t o t h e house and unloaded t h e c a r . The t o o l

boxes were d i v i d e d up and p l a c e d i n t h e men's r e s p e c t i v e

bedrooms and some i n t h e basement.
 '
Morigeau testified that on the next day, he, Groat,' and
"the Mexican" finished moving Groat's belongings into the
house using the Morigeau car, and that the first time he saw
the items taken from Davis, Inc. was when they moved them
from Groat's apartment to the house. Morigeau testified
that he let Groat keep some of the tool boxes in the closet

in his bedroom because Groat's bedroom was full.
That evening Morigeau and Groat were driving to Polson
when Morigeau's car broke down. A sheriff's deputy gave
then a ride to Ronan and dropped them off in front of Pete's

Conoco which is two blocks from the house. The sheriff's
deputy testified that he dropped the men off at approximately
12:30 a.m.
Morigeau testified that after the men walked to the
house they both walked to their boss's house where Morigeau
left a note on the windshield of the boss's truck telling
him that the car had broken down "so we had to walk and
didn't get home till just now ( 3 : O O ) so we won't be able to
make it to work today . . ." They then returned to the
house and Morigeau went to sleep in the living room and
assumed Groat had also.
According to Groat's testimony, after being dropped

off and walking to the house, the two men returned to
Pete's Conoco. Groat broke a window, climbed in, and
opened a door to let Morigeau in. He testified that Morigeau
was looking for new tires and picked out six and they both
rolled them over to the house and placed four tires in the

basement and left two outside. They returned to Pete's
Conoco and took a saw, bolt cutter, and a case of Pennzoil.

The saw was placed on a shelf in the basement of the house
while the oil and bolt cutter were put in Morigeau's closet.
After a third trip, change, candy bars, and six cans of oil

treatment were taken back to the house. Groat testified
they then walked to their boss's house and left a note on

the windshield of his truck and then went to the house and

went to sleep.
The following afternoon, sheriff's deputies searched
the house with the consent of Morigeau. When asked about
the items in his closet, Morigeau stated that they were
there when he moved in except for the oil which was his. At

trial Morigeau testified that he first saw the oil and bolt
cutter while the sheriff was conducting his search, and
although he had hung clothing in the closet earlier that
day, he didn't notice the case of oil. A logging chain
missing from Davis, Inc., was found in the trunk of Morigeau's

car.

Whether the evidence of the State's immunized witness
was sufficiently corroborated?
Morigeau argues that the record is void of any evidence
of entry by him into either the Davis, Inc. or Pete's Conoco
building and is void of any evidence of theft by him except

for the uncorroborated testimony of the State's immunized
witness, Groat, who voluntarily confessed to being an
accomplice.
Section 46-16-213, MCA, requires corroboration of the
testimony of an accomplice.
"A conviction cannot be had on the testmony of one
responsible or legally accountable for the
same offense, as defined in 45-2-301, unless
the testimony is corroborated by other evidence
which in itself and without the aid of the
testimony of the one responsible or legally
accountable for the same offense tends to
connect the defendant with the commission of
the offense. The corroboration is not sufficient
if it merely shows the commission of the offense
or the circumstances thereof."
The general principles of corroborating evidence are
stated in State V. Kemp (1979) 182 Mont. 383, 387, 597 P.2d
 "To be sufficient, corroborating evidence
must show more than that a crime was in
fact committed or the circumstances of its
commission. State v. Keckonen (1938), 107
Mont. 253, 263, 84 P.2d 341, 345. It must
raise more than a suspicion of the defend-
ant's involvement in, or opportunity to
commit, the crime charged. State v. Gangner
(1957), 130 Mont. 533, 535, 305 P.2d 338,
339. But corroborative evidence need not
be sufficient, by itself, to support a de-
fendant's conviction or even to make out a
prima facie case against him. State v.
Ritz (1922), 65 Mont. 180, 186, 211 P. 298,
300; State V. Stevenson (1902), 26 Mont. 332
334, 67 P. 1001, 1002. Corroborating
evidence may be circumstantial (State v.
Harmon (1959), 135 Mont. 227, 233, 340 P.2d
128, 131) and can come from the defendant
or his witnesses. State v. Phillips (19531,
127 Mont. 381, 387, 264 P.2d 1009, 1012."
Morigeau contends that without Groat's testimony "there
is not sufficient evidence to convict the defendant of
eit-her burglary." As noted above, that is not the test.
Corroborative evidence need not be sufficient to support a
conviction or even make out a prima facie case, but need
only tend to connect the defendant with the commission of
the offense. 46-16-213, MCA.
~n state v. Williams (1979) Mont . , 604 P.2d
1224, 36 St.Rep.2328, the defendant was storing property

taken in a burglary at his mother-in-law's house and he

gave other property to another party. This constructive

possession of the property taken was held by this Court to
be sufficient corroborating evidence to clearly connect the

defendant with the commission of the offense.
In State v. Rose (1980) Mont . , 608 P.2d 1074, 37
St-Rep. 642, the only independent evidence which tended to
connect the defendant with the burglary was his possession
of the guns which were stolen. The defendant tried to

explain away his possession of the stolen guns, but this
Court held that the defendant's possession of the guns was
sufficient as a matter of law to corroborate the accomplice's

testimony and that whether the explanations were sufficiently
satisfactory to raise a reasonable doubt in the minds of the

jurors as to defendant's connection with the offense charged
was a question for the jury's determination. Rose, 608 P.2d
at 1078-80, 37 St. Rep. 647; State v. Broell (1930), 87 Mont.
284, 292, 286 P. 1108, 1111.
In the present case, tool boxes,identified as belonging
to Davis, Inc., were found in Morigeau's closet. A bolt

cutter, identified as belonging to Pete's Conoco, was also
found in Morigeau's closet. A logging chain, identified as

belonging to Davis, Inc., was found in the trunk of P40rigeau1s
car. Morigeau's possession of these items is sufficient as
a matter of law to corroborate Groat's testimony. Morigeau
chose to testify in an attempt to explain away the possession.
The weight of that evidence is for the jury. Morigeau's
testimony also contains elements which could be found cor-
roborating in nature by the jury.

We hold there was sufficient corroborative evidence,
tending to connect Morigeau with the commission of the
offense in order to satisfy the statutory requirements of

corroboration of the testimony of Groat.
11.

Whether defendant was provided effective assistance of
counsel at trial?
Morigeau raises three areas where defense counsel did
not provide effective assistance of counsel:
1. failure to locate and interview certain witnesses,

2. failure to conduct pretrial discovery or file

pretrail motions,
3. allowing defendant's criminal record into evidence.
The effectiveness of counsel issue was returned to the
District Court for an extraordinary hearing. The lower

court found defense counsel used every means available to

locate witnesses. The court, however, failed to make any
findings with regard to defense counsel bringing defendant's

criminal record into evidence.

During the hearing defense counsel stated, "I had no
intention of bringing in his criminal record. What I intended

to do was to have him testify that he was on parole, from a
prior offense, which I believe it was an unrelated offense
of forgery."
During the trial Morigeau was questioned by his defense
counsel about previous offenses:
"Q. Bill, have you ever been convicted of
any other felonies other than that?
A. Yes, I have.
"Q. How many? A. Assault, two.
"Q. Two others? A. Yes.
"Q. Assault and what else? A. Assault
and escape.
"Q. Where was that? A. Assault was in
Boise, Idaho; and the escape was in Spokane,
Washington.

"Q. As an adult, have you ever been convicted
of any burglaries or thefts? A. No, sir.

"Q. Have you ever been charged with any bur-
glaries? A. Yes, sir.
"Q. I beg your pardon? A. Yes, sir.
"Q. What? A. A burglary in Boise.

"Q. What was the disposition of that charge?
A. It got dismissed.
"Q. Why? A. Illegal search and seizure."
During cross examination, the State brought out the details

of the previous burglary charge.

"Q. Do you recall a violation being reported
by entering without permission, a Western
Cabinet shop in Garden City, Idaho, and removing
a CB radio and camera? A. That was dismissed.
"Q. On what basis was it dismissed? A. Illegal
search and seizure.
"Q. Was that violation true? A. No.
"Q. But the basis for its dismissal was an
illegal search and seizure? A. Yes,
 "Q. What was seized illegally at that time?
A. I don't know. There was some stolen articles
in the house that me and this other man occupied.
He let them in. He let them into the house where
they found the stuff, and I was charged for it.

"Q. Is that similar to what happened here?
A. Exactly.

"Q. So in other words, there was a time when
you were charged with having stolen something
based on a supposed illegal search? A. Yes.
"Q. This other individual, do you feel that he
was responsible for that theft? A. He was
responsible.
"Q. Was he charged with that? A. No, he
wasn't, as far as I know.
"Q. You seem to have a lot of occurrences,
then, or at least one previous occurrence
where you were found with stolen property;
is that correct? A. Yes.
"Q. Are you often found with stolen property?
A. NO, sir."
In closing argument, defense counsel argued that (1)
Groat knew of Morigeau's criminal record and that it would
be easy to put the blame on him, (2) Morigeau was too
streetwise to do such amateurish burglaries, and (3) Morigeau
had too much to lose as a parole violator to become involved
in the burglaries.
To determine whether a defendant has been denied

effective assistance of counsel, this Court uses the
"reasonably effective assistance" test, which has been
stated as follows:
"'Persons accused of crime are entitled to
the effective assistance of counsel acting
within the range of competence demanded of
attorneys in criminal cases.'" State v.
Rose (1980) Mont. , 608 P.2d at 1081,
37 St.Rep. at 649-650; Fitzpartick v. State
(1981) Mont. , 638 P.2d 1002, 1007,
38 St.Rep.1448, 1451; Cooper v. Fitzharris
(9th Cir. 1978) 586 F.2d 1325, 1330.
"'Claimed inadequacy of counsel must not be
tested by a greater sophistication of appellate
counsel, nor by that counsel's unrivaled
opportunity to study the record at leisure
and cite different tactics of perhaps doubt-
ful efficacy. Success is not a test of
efficient counsel, frequently neither vigor,
zeal, nor skill can overcome the truth.'"
State v. Rose, 608 P.2d at 1082,37 St.Rep. at
652; State v. Forsness (1972) 159 Mont. 105,
110, 495 P.2d 176, 178-179.
To sustain a claim of ineffective assistance, a criminal
defendant must show that the error allegedly committed
by his lawyer resulted in prejudice to him and stemmed
from neglect - ignorance rather -- informed, pro-
or than from
fessional deliberation. State V. Rose, 608 P.2d at 1081,
37 St.Rep. at 651; United States v. Bosch (1st Cir. 1978)

Defense counsel's choice of the tactic to show that
Morigeau was on parole is not at issue here. However, this
Court will consider the effect the introduction of
Morigeau's entire criminal record including the burglary
charge in Idaho.
By bringing in the previous criminal charges, de-
fense counsel opened Morigeau to cross examination on the
previous charges. The result was that the jury had before
it evidence from Morigeau demonstrating his involvement in
an alleged burglary where Morigeau claimed another man
brought stolen articles into the house where he was stay-
ing. This evidence would not have been admissible except
for the actions of defense counsel. The evidence was
extremely prejudicial showing circumstances almost ident-
ical to the present case. This indicates neglect or
ignorance on the part of counsel and satisfies the State
v. Rose test. We hold that the introduction and direct
examination of Morigeau by his counsel regarding his pre-
vious crimes and charges were not within the range of
competence demanded of attorneys in criminal cases.
During the trial the following jury instruction was
given:
"You are instructed that possession of stolen
property shall not constitute proof of the com-
mission of the offense of theft. Such fact shall
place a burden on the possessor to remove the
effect of such fact as a circumstance to be
considered with all the other evidence pointing
to his guilt."
On retrial this instruction, which is taken from section

45-6-304, MCA, should not be used. This Court in State v.
Kramp (1982) Mont. , 651 P.2d 614, 39 St. Rep. 1819,
declared section 45-6-304, MCA, unconstitutional and held

that any instruction using the language of that statute
was prejudicial to a defendant. This is another ground
for reversal. The instruction takes away defendant's
presumption of innocence and forces him to testify, by
placing a burden on him either to disprove unlawful pos-
session or to prove lawful possession. State v. Kramp
651 P.2d at 621, 39 St.Rep. at 1827. For further discussion
and a suggested alternate instruction see State v. #ramp.
The verdict is vacated and the cause is remanded for
a new trial.

We concur: