No. 8i-570
IN THE SUPREME COURT OF THE STATE OF MONTANA
1982
STATE OF MONTANA,
Plaintiff and Respondent,
VS .
WILLIAM NORGAARD,
Defendant and Appellant.
Appeal from: District Court of the Fifteenth Judicial District,
In and for the County of Roosevelt
Honorable M. James Sorte, Judge presiding
Counsel of Record:
For Appellant:
Francis J. McCarvel argued, Glasgow, Montana
Steven R. Marks argued, Glasgow, Montana
For Respondent :
Hon. Mike Greely, Attorney General, Helena, Montana
Mike McGrath, Assistant Attorney General, argued,
Helena, Montana
Marc F. Racicot argued, County Prosecutors Service
Bureau, Helena, Montana
James A. McCann, County Attorney, argued, Wolf Point,
Montana
Submitted: June 23, 1982
Decided : November 4, 1982
Filed : jfov zk ' ;Lj)il
Clerk
Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of
the Court.
Defendant William Allen Norgaard appeals from a verdict
and judgment convicting him of three counts of deliberate
homicide. Three issues are presented on appeal:
(1) Whether the District Court erred in refusing to
suppress statements made by defendant to a criminal investi-
gator during an interview conducted without counsel and
after filing of an information?
(2) Whether the District Court erred in excluding as
hearsay a statement victim Stanley Nees made to witness
Howard Kelsey regarding the threat against Nees' life?
(3) Whether the District Court erred in refusing
defendant's proposed instructions regarding mitigated
deliberate homicide?
On February 25, 1981, Stanley Nees, Leota Hoye and
Mildred Geer were shot to death in Poplar, Montana. William
Norgaard was arrested and charged with three counts of
deliberate homicide on March 4 , 1981, after a lab report
confirmed that shells found at the scene of the crime and
shells found in the Norgaard home were fired from the same
rifle. Norgaard was arraigned by the District Court judge
in the Trinity Hospital in Wolf Point, Montana, where
Norgaard was being treated for colitis and observed for
suicidal tendencies.
On March 7, 1981, Norgaard was taken to Missoula,
Montana, where he was admitted to St. Patrick's Hospital for
medical and psychiatric evaluation. Dr. Will Stratford
assisted with defendant's admission and treatment.
On March 11, 1981, Dr. Stratford inquired of Special
Prosecutor Marc Racicot as to whether a psychiatric evalu-
ation was to be ordered for Norgaard and whether defense
counsel had been appointed on Norgaard's behalf. Stratford
was concerned about appointment of counsel because Norgaard
was becoming more talkative to hospital personnel. Racicot
informed Dr. Stratford that on the previous day the District
Court had appointed Francis McCarvel defense counsel and
that McCarvel had immediately requested a court-ordered
psychiatric evaluation of Norgaard. The District Court
ordered the evaluation on March 11, but Stratford had not
yet received a copy of the order.
Following Stratford's call, Racicot telephoned State
Criminal Investigation Bureau agent Gary Carrell. Agent
Carrell was assisting Roosevelt County law enforcement
authorities in the investigation of the triple homicide and
had previously interviewed Norgaard on March 3-4, 1981, in
Wolf Point, regarding any information Norgaard might have
concerning the crimes.
Agent Carrell then met with Racicot in Racicot's Helena
office. Racicot informed Agent Carrell that Dr. Stratford
thought Norgaard was becoming more vocal. Racicot and Agent
Carrell discussed whether Carrell should go to Missoula and
interview defendant without presence of or notice to defense
counsel. Racicot told Agent Carrell that the Roosevelt
County Attorney's policy was not to interview defendants
without first contacting defense counsel, that some states
do not allow such interviews, and that Montana had not
decided the question of the propriety of interrogations in
absence of counsel. Agent Carrell was left to decide whe-
ther or not he should interview ~orgaard.
Agent Carrell chose to interview Norgaard without
informing defense counsel of his decision. Carrell arrived
in Missoula around 8:00 p.m., March 11, 1981. Carrell
called Dr. Stratford and inquired if defendant's physical
and mental health could withstand questioning. Dr. Strat-
ford responded that Norgaard's condition would not be impaired
by such an interview.
Carrell went to the hospital that night and attempted
to interview defendant. Carrell advised defendant of his
Miranda rights and told Norgaard that McCarvel had been
appointed as his defense counsel. Carrell specifically
told Norgaard that he had a right to have his attorney
present during any interview or to consult with his attor-
ney prior to an interview. When asked whether he understood
what Carrell had said, Norgaard nodded. Norgaard then
responded to questions asked by Agent Carrell. During this
interview, Carrell elicited from Norgaard that he remembered
picking up the shell casings in Leota Hoyes' apartment and
that he was upset with Stanley Nees because defendant's
father was having financial problems. Nees was a local
banker. As Carrell left Norgaard's hospital room that
evening, he explained he would return the next morning to
continue their discussion of the slayings.
Norgaard was more responsive the following morning.
After Carrell had again advised him of his rights and ex-
plained that McCarvel had been appointed to represent
defendant, defendant stated he understood and proceeded to
answer Carrell's questions. During this interview, Norgaard
supplied Carrell with information which led to the discovery
of the murder weapon.
On August 17, 1981, a pretrial suppression hearing was
held regarding the admissions made by Norgaard during the
March 11 and 12 interviews. Dr. Stratford testified that
defendant was mentally capable of waiving his rights and
that he could make voluntary and intelligent choices while
in St. Patrick's Hospital. Agent Carrell testified as to
the circumstances and content of the interviews. The only
record of the interviews was Carrell's handwritten notes.
The defendant did not testify.
The District Court denied defendant's motion to sup-
press, finding that the State had sustained its burden of
proving that defendant made an effective waiver of his
rights, albeit without consultation from defense counsel.
At trial Agent Carrell testified about the March 11 and
12 interviews. Howard Kelsey, appearing for defendant,
testified that he observed victim Nees and two men (not
defendant) in an argument some twelve days before the
murders and that Nees was in an excited state after the
argument. The trial court would not allow Kelsey to testify
that approximately one hour after the argument occurred Nees
told Kelsey that the two men had threatened his life. Dr.
Stratford did not testify at trial.
The jury found Norgaard guilty of three counts of
deliberate homicide. No instructions were given the jury
regarding the offense of mitigated deliberate homicide. The
Fifteenth Judicial District Court subsequently sentenced
Norgaard to three hundred years in the Montana State prison.
I.
Defendant contends that Agent Carrell impermissibly
interfered with his Sixth Amendment right to counsel when he
questioned defendant without first notifying defense counsel.
Defendant asserts that an effective waiver of the right to
counsel cannot be secured unless defense counsel is present
when the waiver is given. This argument is based upon the
New York Court of Appeals' decision in People v. Hobson
(1976), 39 N.Y.2d 468, 384 N.Y.S.2d 419, 348 N.E.2d 894.
Alternatively, defendant contends that Agent Carrell
violated his Sixth Amendment right to counsel when Carrell
proceeded to interview defendant in disregard of the Roose-
velt County Attorney's policy not to interview defendants
without consulting defense counsel. Defendant believes that
under either a factually-limited or an expansive interpreta-
tion of Brewer v. Williams (1977), 430 U.S. 387, 97 S.Ct.
1232, 51 L.Ed.2d 424, -- 431 U.S. 925, 97 S.Ct.
reh. den.,
2200, 53 L.Ed.2d 240, the statements obtained by Carrell
should have been suppressed because they were derived outside
counsel's presence.
In Hobson, supra, defendant was represented by counsel
who had been present during a line-up at which defendant was
identified. Counsel left after the identification was made.
Knowing that defendant was represented by counsel, and
without notice to counsel, Detective Dolan proceeded to
interview defendant. An oral waiver of the right to counsel
was secured by Dolan, whereafter defendant confessed to the
robbery under investigation. Defendant's statements were
used against him at trial.
The New York Court of Appeals reversed defendant's
conviction on the basis that defendant's statements were
obtained in violation of New York's constitutional and
statutory guarantees of the privilege against self-incrimina-
tion, the right to assistance of counsel, and due process of
law. The New York Court of Appeals held that, "[olnce a
lawyer has entered a criminal proceeding representing a
defendant in connection with criminal charges under investi-
gation, the defendant in custody may not waive his right to
counsel in the absence of the lawyer." People v. Hobson, 39
N.Y.2d at 483, 384 N.Y.S.2d at 421, 348 N.E.2d at 896. The court
explained that the presence of counsel provides a more
effective safeguard against involuntary waiver of right to
counsel than a mere written or oral warning and that any
attempt, by prosecution or law enforcement alike, to secure
a waiver of the right of counsel in a criminal proceeding in
absence of defense counsel would constitute a breach of
professional ethics.
Brewer v. Williams, supra, involved a defendant who
turned himself into law enforcement authorities on the
advice of his attorney McKnight in Des Moines, Iowa. Defen-
dant was booked in Davenport, Iowa, on an abduction charge
that was specified in an outstanding arrest warrant. Defen-
dant was to be transported from Davenport to Des Moines in a
police car. Before defendant started his journey, he con-
sulted with an attorney named Kelly in Davenport and tele-
phoned McKnight in Des Moines. Both attorneys advised him
not to make any statements until after he personally con-
ferred with McKnight in Des Moines. McKnight and Detective
Leaming, a veteran of the Davenport police department,
agreed that Williams would not be questioned during his trip
to Des Moines. Kelly firmly admonished Detective Leaming to
honor his agreement with McKnight. Without counsel Williams
set off for Des Moines with Detective Leaming and another
police officer. Detective Leaming did not formally inter-
rogate Williams; instead he used what has been referred to
as the "Christian burial speech" to induce ~illiamsinto
disclosing the whereabouts of the young victim's body.
Invoking the rule of Massiah v. United States (1964),
377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (violation of
Sixth Amendment found where federal agents deliberately
elicited incriminating evidence from defendant after he had
been indicted and in absence of his counsel), the United
States Supreme Court held that Detective Leaming violated
Williams' Sixth Amendment right to counsel. In doing so,
the Court acknowledged that even though Williams previously
had been informed of and appeared to understand his right
to counsel, Detective Leaming neither advised Williams that
he had a right to presence of an attorney or made an effort
to ascertain whether Williams wished to relinquish that
right when he deliberately elicited from defendant incriminat-
ing evidence in absence of his counsel. Referring to the
Johnson v. Zerbst standard of "an intentional relinquishment
or abandonment of a known right or privilege" [(1938), 304
U.S. 458, 464158 S.Ct. 1019, 1023, 82 L.Ed. 1461, 14661, the
Brewer court did not hold that Williams could not, without
notice to counsel, waive his rights under the Sixth and
Fourteenth Amendments; instead, it specifically stated that
the State of Iowa failed to sustain its heavy burden in
proving that Williams had intentionally relinquished his
right to counsel.
This Court hereby holds that a defendant, charged under
information or indictment and represented by counsel, may
waive his right to counsel, without notice to or presence of
counsel, during an interview initiated by law enforcement
officers investigating the charged crime, so long as defen-
dant's waiver is voluntary, knowing and intelligent as shown
by the particular facts and circumstances surrounding that
case.
We expressly reject the rule of People v. Hobson,
supra. In adopting a per - rule the New York court has
se
gone beyond the contours of Johnson v. Zerbst and its progeny
in holding that despite "the particular facts and circum-
stances of [a] case, including the background, experience
and conduct of the accused," Edwards v. Arizona (1981),
,
U.S. - 101 S.Ct. 1880, 1883-1884, 68 L.Ed.2d 378,
385, citing Zerbst, supra, 304 U.S. 458, 464, 58 S.Ct. 1019,
1023, 82 L.Ed.2d 1461, 1466, a defendant cannot effect a valid
waiver of the right to counsel, without counsel's presence
or consent. While we do not dispute the assertion that the
presence of counsel provides a more effective safeguard
against involuntary waiver than a written or oral Massiah-
type warning, we emphatically disagree with the New York
court's implicit assumption that written and oral warnings
in absence of counsel cannot ensure that a defendant's right
to counsel will be protected from unintentional relinquish-
ment. The vast majority of jurisdictions have upheld coun-
selless waivers which were obtained after written or oral
warnings have been given. State v. McLucas (1977), 172
Conn. 542, 375 A.2d 1014, cert. denied, 434 U.S. 855, 98
S.Ct. 174, 54 L.Ed.2d 126; Pierce v. State (1975), 235 Ga.
237, 219 S.E.2d 158; State v. Ruth (1981), 102 Id. 638, 637
P.2d 415; People v. Aldridge (1979), 68 Ill.App.3d 181, 24
I11.Dec. 484, 385 N.E.2d 396; State v. Costa (1980), 228
Kan. 308, 613 P.2d 1359; Watson v. State (1977), 35 Md.App.
381, 370 A.2d 1149, aff'd, 282 Md. 73, 382 A.2d 574, cert.
denied, (1978) 474 U.S. 908, 98 S.Ct. 3100, 57 L.Ed.2d 1140;
State v. Williams (Mo.App. 1978), 566 S.W.2d 841; People v.
Green (1979), Mich. , 274 N.W.2d 488; Giddings v.
State (Minn. 1980), 290 N.W.2d 595; State v. Jackson (19801,
205 Neb. 806, 290 N.W.2d 458; State v. Romero (1982), 56
N.C.App. 48, 286 S.E.2d 903; Matter of Sanders (1982), 56
0r.App. 724, 643 P.2d 384; Commonwealth v. Lowery (1980),
276 Pa.S. 569, 419 A.2d 604; McPherson v. State (Tenn.Cr.App.
1977), 562 S.W.2d 210; Lamb v. Commonwealth (1976), 217 Va.
307, 227 S.E.2d 737; State v. Clawson (W.Va. 1980), 270
S.E.2d 659; Jordan v. State (1980), 93 Wis.2d 449, 287
In rejecting People v. Hobson, supra, we also note the
language in another Sixth Amendment case, United States v.
Henry (1980), 447 U.S. 264, 100 S.Ct. 2183, 2189, fn.14, 65
L.Ed.2d 115, wherein Mr. Chief Justice Burger stated that
bar association disciplinary rules have no constitutional
bearing. --
See also, Massiah v. United States, supra, 377 U.S.
201, 210, 84 S.Ct. 1199, 1205 (White J a r dissenting); United
States v. Thomas (10th Cir. 1973), 474 F.2d 110, 112, cert.
denied, 412 U.S. 932, 93 S.Ct. 2758, 37 L.Ed.2d 160; State
v. Richmond (1976), 114 Ariz. 186, 560 P.2d 41, 46, cert.
denied, 433 U.S. 915, 97 S.Ct. 2988, 53 L.Ed.2d 1101; State
v. Ruth, supra, 637 P.2d 415, 417; State v. Nicholson (1969),
77 Wash.2d 45, 463 P.2d 633. We agree. "The admissibility
of evidence in a court of law ... is normally determined
by reference to relevant constitutional and statutory provi-
sions, applicable court rules and pertinent common-law
doctrines. Codes of professional conduct play no part in
such decisions." People v. Green, supra, 274 N.W.2d at 454.
Careful review of the line of cases following Massiah
reveals that the United States Supreme Court has not inter-
preted the Sixth and Fourteenth Amendments to require coun-
sel's notice or agreement before an effective waiver can be
found. What Massiah, Brewer and Henry stand for is the
proposition that federal and state agents cannot deliberately
elicit incriminating evidence from an indicted defendant in
defense counsel's absence, unless an intentional relinquish-
ment of the right to counsel has been secured from defendant.
In none of these cases was defendant given an express oppor-
tunity, as was defendant here, to effectively assert or
waive his right to counsel. Unlike Norgaard who voluntarily
and knowingly participated in a formal interview conducted
by an identified criminal investigator, Massiah, Brewer and
Henry were the objects of surreptitious, subtle investigative
techniques deliberately designed to secure incriminating
evidence from unwitting defendants.
Defendant mistakenly equates the express agreement
between police and defense counsel in Brewer v. Williams,
supra, with the Roosevelt County Attorney's policy not to
interview defendants without notifying defense counsel. The
significance of the agreement in Brewer was not its breach
but the fact that the breach resulted in an impermissible
interference with defendant's right to counsel. Agent
Carrell's decision may have eroded trust between the Roose-
velt County Attorney and defense counsel but it did not
produce an unintentional abandonment of a constitutional
right. What is constitutionally guaranteed here is defen-
dant's right to assistance of counsel, not defense counsel's
right to assist defendant.
In an attempt to underscore his Sixth Amendment Brewer-
Hobson contentions, defendant's brief draws much attention
to the facts and circumstances surrounding defendant's
waiver, however, defendant does not directly challenge the
District Court's conclusion that defendant executed a
voluntary, knowing and intelligent waiver of his right to
counsel.
We nevertheless have reviewed the record and the District
Court's order and memorandum opinion. It is evident that
the District Court applied the appropriate test to determine
whether defendant made a valid waiver of his rights and
concluded that a knowing waiver was given. Finding no legal
error and substantial credible evidence to support the
District Court's findings, the District Court's conclusion
that a valid waiver was effected will not be disturbed.
State v. Plouffe (1982), Mont. , 646 P.2d 533, 39
St.Rep. 1064.
11.
Defendant contends that the District Court erred when
it refused to permit Howard Kelsey to testify to the fact
that shortly before the crime occurred, two men, other than
defendant, threatened Stanley Nees' life. Defendant would
have the declarations made by Nees admitted under one of
three exceptions to the hearsay rule: (i) the excited
utterance exception under Mont.R.Evid., Rule 803(2); (ii)
the statement against interest exception under Mont.R.Evid.,
Rule 804 (b) (3); or (iii) the catch-all "other exceptions"
category of Mont.R.Evid., Rule 804 (b)(5) .
As a general rule, the question of admissibility under
a hearsay exception is left to the sound legal discretion of
the trial court; only a case of manifest abuse of discretion
will warrant reversal on appeal. State v. Caryl (1975), 168
Mont. 414, 543 P.2d 389.
We find no abuse of discretion here. One hour had
passed between when Nees had an argument with two men and he
recounted the contents of that argument to Kelsey. Given
the time lapse and the fact that the event precipitating
excitement was a verbal argument rather than an assault with
a weapon, under State v. Swazio (1977), 173 Mont. 440, 568
P.2d 124, it was reasonable for the District Court to con-
clude that the "excited utterance exception" should not
apply
Regarding defendant's "statement against interest"
assertion, we find it to be too tenuous to warrant serious
consideration, thus, we cannot here fault the District Court
for not accepting it.
Defendant's third evidentiary argument deserves comment.
Defendant argues that the statement made by Nees to Kelsey
has comparable circumstantial guarantees of trustworthiness
as the other specified exceptions to the hearsay rule.
The only opportunity this Court has had to discuss the
"comparable trustworthiness" exception was in a dissenting
opinion to Jacques v. Montana National Guard (1982),
Mont. -
1 - P. 2d , 39 St.Rep. 1565 (Harrison, J.,
dissenting). There, Justice Harrison, referring to the
commission comments, recognized and liberally applied the
guidelines set forth in the federal counterpart to this section.
Those criteria are: (1) the statement is offered as evidence
of a material fact; (2) it is more probative on the point
for which it was offered than any other evidence; and (3)
the general purposes of the rules and the interests of
justice will be served by its admission. Rule 804(b) (5),
Fed.R. Evid.
unlike Jacques, where the excluded testimony was arguably
the lynch pin of plaintiff's case, the testimony here is but
tangentially related to the critical question of who killed
Stanley Nees, Leota Hoye and Mildred Geer. gain st an
evidentiary backdrop that included all but a confession by
defendant that he committed the homicides, it cannot be
seriously contended that interests of justice were frustrated
by the exclusion of such testimony.
111.
Defendant's final contention is that he was entitled to
an instruction on the lesser included offense of mitigated
deliberate homicide. In support of his argument, he refers
to defendant's thirteen-year history of suffering from a
mental illness and his expressed concern about the financial
problems his father was experiencing.
Defendant correctly relies on State v. Gopher (1981),
Mont. , 633 P.2d 1195, 1196, 38 St.Rep. 1521, 1523, for
the rule that "if - evidence exists in the record which
any
would permit the jury to rationally find [defendant] guilty
of a lesser offense and acquit him of a greater," a defendant
is entitled to instructions on lesser included offenses.
However, the difficulty with defendant's final contention is
not its legal bearing, but its lack of evidentiary support.
In his initial brief, defendant as much as concedes
that, standing alone, defendant's concern for his father's
financial well-being would not suffice to support an instruc-
tion on mitigated deliberate homicide. We agree. No evi-
dence was presented at trial regarding the nature or extent
of defendant's mental condition. Dr. Stratford testified at
a pretrial suppression hearing. The only other evidence of
defendant's mental history was presented to the court for
its sentencing considerations. Without that context or
other evidentiary support, it cannot be said that there was
any evidence to support a theory that defendant acted under
the influence of extreme mental or emotional stress for
which there is a reasonable explanation or excuse.
Af firmed.
W e Concur:
Chief J u s t i c e
Mr. Justice John C. Sheehy, dissenting:
I dissent.
A casual reader of the foregoing opinion might wonder
why anyone would dissent in this case. The answer is that
additional facts are needed to give a full background of
what happened here.
The killings in this case occurred on February 25,
1981. From February 26, 1981 onward, William Norgaard was
the prime suspect in this case. He was hospitalized most of
the time from February 26, 1981, until his arrest on March
4, 1981. While he was not technically "in custody" in the
period prior to March 4, 1981, he was subjected to interrogation
by the authorities, including Agent Carrell, on several
occasions.
Norgaard was interviewed, or an interview of him was
attempted five times between February 26, and March 4, the
day he was charged with the crimes. On three of those
occasions, on February 26, 1981, in Poplar, Montana, on
March 2, 1981, when he was in the hospital, and on March 4,
1981, after he had been arraigned, written waivers of his
right to have counsel present were signed by Norgaard. At
all other times, and there were many, including the two
interviews by Agent Carrell in Missoula, no written waivers
were acquired, although Agent Carrell testified that oral
Miranda warnings were given to Norgaard.
Norgaard was in the hospital, either in Wolf Point or
in Missoula, Montana, most of the time from and after
February 26, 1981.
Norgaard, to put it mildly, was a sick man. Approx-
imately 26 years old, he had suffered most of his teen and
adult life from the disease of colitis. When he arrived in
the hospital in Missoula on March 11, 1981, he was weak from
loss of blood, and had undergone a period of sustained
rectal bleeding. Dr. Stratford, a psychiatrist, testified
that when defendant came to Missoula "he needed to be seen
by [doctors] who see this kind of people every day, an
internist and a gastro-enterologist."
Colitis was not his only illness. Since the defendant
was 13 years old, he had "historically a severe mental
illness, and he has undergone years and years of treatment,
electric shock treatments, massive doses of anti-psychotics,
multiple years of therapy with a psychiatrist, and in-
patient and outpatient . . ." treatment. Dr. Stratford, who
had never seen the defendant before, inadvertently lowered
the defendant's prescription of Haldol, an anti-psychotic
drug, to one milligram per day whereas in the previous weeks
in Wolf Point, he had been given doses each day of Haldol
ranging from 6 milligrams to 22.5 milligrams.
The defendant was arraigned on March 4, 1981, in Wolf
Point. The District Court judge came to the defendant's
hospital room in order to arraign him. An attorney was not
appointed for him at that time because his family indicated
they might seek their own counsel.
On March 10, 1981, the District Court appointed Francis
McCarvel, of Glasgow, to represent the defendant. At the
time of Mr. McCarvells appointment, the defendant was in
Missoula, Montana, where he had been sent by the State for
psychiatric evaluation by Dr. Stratford. Missoula is 439
miles from Glasgow, where McCarvel resides and has his
offices, and 488 miles from Wolf Point, where the charges
were pending against the defendant.
James 14cCann is the county attorney in Roosevelt
County, of which the county seat is Wolf Point, where the
crimes were committed. Although McCarvel resides in Glasgow,
he is frequently called on to represent defendants by appoint-
ment in the judicial district including Roosevelt County.
There is a standing agreement between attorneys McCann and
McCarvel that no defendant that McCarvel is appointed to
represent will be interrogated in McCarvelts absence by law
enforcement officials. It is obvious that McCarvel saw no
reason to hurry to Missoula, nearly 500 miles away, to
interview his newly-found client until the psychiatric
evaluation of the defendant in Missoula had been completed.
On March 11, 1981, Dr. Stratford, in s is sou la, called
the special prosecutor in the Attorney General's office in
Helena, Montana, some 120 miles away to tell the special
prosecutor that the defendant should have an attorney
because he was beginning to make incriminating statements
against his own interests. The special prosecutor called
into his office in Helena Special Agent Carrell, and together
they discussed the propriety and ethics of Carrell attempting
to interview the defendant in the absence of his counsel and
before his counsel had a chance to consult with his client
and advise him of his right to protect himself in this case.
The special prosecutor left the decision up to the agent and
Carrell lost no time in proceeding immediately to Missoula to
interview Norgaard, which he did beginning that evening of
March 11, 1981.
The handwritten notes of Agent Carrell respecting his
interview of Norgaard are more revealing than anything I
could write or the majority has said with respect to the
consent of Norgaard to the interview and his purported
relinquishment of his right to counsel:
"Interviewed Norgaard
"Advised rights
It Is Attorney McCarvel had been appointed
It I
! advised charged w/
!
I I# who I was & why I was there. Nodded
-understood all -
"Nodding & shaking of head"
Also revealing from the handwritten notes of
Agent Carrell are his recorded statements to Norgaard:
"Explained to Bill preponderence of evidence
against him
"shell casings match
"possibility of fingerprints on casings"
On the morning of March 12, 1981, Agent Carrell came
again to the hospital room to interview Norgaard. Again
his notes are revealing:
"Introduced myself against [sic] as CIB Agent-
showed Bill badge - took it looked at it.
"Advised Bill of rights verbally & specifically
advised him he did not have to talk to me -
said he understood.
"Again advised Bill an attorney named Jim
McCarvel had been appointed by the court
to represent him - he understood
"Advised Bill he could have attorney present
or talk to him before talking to me - he
understood
"Advised Bill again he was charged with the
homicide of Stanley Nees, Mildred Geer,
and Leota Hoye - He understood.
"Asked again if he knew who I was
"He said 'You're a police officer?' I replied
yes. I1
And finally, as startling as it is revealing, are
the notes respecting the conclusion of the interview:
"Advised 'You're attorney, Mr. McCarvel, will
probably be getting in touch w/you.' reply
'What's the difference between an attorney and
a lawyer?' I stated 'They're the same thing.'
"Bill asked 'Will he represent me?' I replied,
'He has been appointed to represent you. Anything
he does will be what he considers to be in
your best interests. He's a good lawyer.'
"Bill asked 'When will he talk to me?' I replied
'I don't know, but it will probably be in the
next few days.'"
It is true that Dr. Stratford testified that on the
night of March 11, 1981 and on the morning of March 12,
1981, Norgaard was capable of making decisions, even though
his intelligence was in the lower normal range. What is
sadly lacking in the testimony respecting his mental ability,
however, is whether he had the requisite knowledge to make a
knowing and voluntary waiver of his right to counsel. His
question to Carrel1 as to what was the difference between an
attorney and a lawyer indicates a very rudimentary knowledge
of what he was about or perhaps his inability to grasp what
was being said to him respecting his right to have counsel
present. That is one of the reasons why I think the State
has not carried its "heavy burden" of showing that Norgaard's
waiver of right to counsel was knowing and voluntary.
I also believe that the evidence does not sustain a
knowing and voluntary waiver of Norgaard's right to have
counsel present during his interviews because he was never
given a chance to consult with his own counsel to learn
exactly how those rights operate. Here the State deliberately
beat Norgaard's counsel to the punch, in spite of the long-
standing agreement between McCarvel and the county attorney
of Roosevelt County to respect McCarvells right, and it is a
right, of fair and influence-free consultation with his
clients under his appointments by the court.
It 1s on a fact situation such as we find here that the
New York court adopted its per- rule in People v. Hobson,
- se
supra, cited in the majority opinion. Norgaardls evident
confusion as to what a lawyer is; the surreptitious trip to
?4issoula by Agent Carrell; the special prosecutor's calling
in of Agent Carrell when he learned that Norgaard was becoming
talkative; the lack of an immediate telephone call by the
state counsel to the appointed attorney; and the lack of a
written Miranda waiver from Norgaard in the two crucial
interviews in Missoula, all lead me to conclude that the
State might well stretch a point when its agents testify
that Norgaard's consent to be interrogated in the absence of
counsel was knowing and voluntary.
I would suppress the statements made by PJorgaard in the
Missoula interviews, and remand the cause for a new trial.
There is probably enough remaining evidence against him to
bring about his conviction in any event.
One's credibility is at nadir when it is more important
to win than to be honorable.
If another trial were granted, I would also instruct
the District Court to ascertain the physical and mental
health of the defendant at the time of the crime. Here
no evidence was given on that important aspect of the case.
Then certainly the jury could decide whether these killings
involved mitigated deliberate homicide under proper evidential
background. The jury in this case convicted the defendant
without any knowledge of his mental difficulties.
Justice
/
I join in the dissent of ~ u s t i c d h e e h ~ .
/
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