State v. Grant

No. 83-285

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

1986

STATE O MONTANA,
F

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

-vs-

D N L DEAN GRANT,
O AD

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

APPEAL F O :
R M D i s t r i c t Court of t h e Twentieth 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,
The Honorable R o b e r t H o l t e r , Judge p r e s i d i n g .

COUNSEL O RECORD:
F

For Appellant:

Skedd, A s h l e y , McCabe & W e i n g a r t n e r ; J . Mayo Ashley
a r g u e d , H e l e n a , Montana

F o r 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
J i m S c h e i e r a r g u e d , A s s t . A t t y . G e n e r a l , Helena
John R . F r e d e r i c k , County A t t o r n e y , P o l s o n , Montana

Submitted: J a n u a r y 2 3 , 1986

Decided: ~ p r i l 2, 1986
2

Filed: APR221986
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.

Donald Dean Grant, the defendan.t, appeals his
convictions for deliberate homicide and attempted deliberate
homicide followi.ng a jury trial. He raises issues concerning
the alternate juror's presence with other jurors after the
submission of the case; the conduct of the prosecutor,
defense counsel and the District Court Judge; the
admissibility of several items of evidence; the adequacy of
the information; and the effectiveness of defense counsel's
representation. We affirm.
Two out-of-state motorcyclists, Jay Witteman and Carl
Warbitsky, arrived in Arlee, Montana, sometime after 3 : 3 0
a.m. on July 17, 1982. They stopped at Grant's Place, a
restaurant on Highway 93, to ask a group of people standing
in the parking lot where they could find a place to camp.
The four people in the group were Latricia Rogers, David
Sanchez, Robert Jones, and the defendant. Grant spoke with
the eventual victims and directed them to a gravel pit south
of Arlee next to Highway 93 as a place to camp.
After the motorcyclists headed south, Grant told
Sanchez, and possibly Jones, that they should get a gun and
go to the gravel pit where they could shoot and kill the
campers and steal the motorcycle. Grant said he had been in
the army and knew how to kill people. Sanchez thought he was
ioking. After this conversation, Jones started home. Grant
asked him to wait. Sanchez then saw Grant a.nd Jones drive
south on 93 toward the gravel pit in Grant's car.
Jones testified concerning the events which occurred
after they left the parking lot. They went to Grant's
residence where he lived with h i s mother and stepfather.

G r a n t g o t a r i f l e and f i v e s h e l l s and t o l d J o n e s t h a t h e knew

where t h e m o t o r c y c l i s t s were camped and t h a t t h e y s h o u l d go

o u t and f i n d them. G r a n t t o o k t h e gun and h e and J o n e s l e f t

the residence i n Grant's c a r and headed toward the gravel

pit. When t h e y a r r i v e d a t t h e g r a v e l p i t , G r a n t s e a r c h e d f o r

t h e t e n t and s t o p p e d a s h o r t d i s t a n c e away from i t . While

s t i l l i n t h e c a r , he t o l d Jones, "I'm g o i n g t o k i l l them."

J o n e s d i d n o t t h i n k he meant i t . They g o t o u t o f t h e c a r and

Grant gave J o n e s t h e gun. After Jones refused t o f i r e it,

Grant grabbed it from him and fired four shots in rapid

succession i n t o t h e t e n t . J o n e s t e s t i f i e d h e h e a r d sounds

coming from t h e t e n t : " 0 ~ 7 . . . OW." They g o t back i n t o t h e

car and returned. to Arlee. Sanchez and Rogers both saw

G r a n t ' s c a r d r i v e p a s t them h e a d i n g n o r t h a t a h i g h r a t e o f

speed.

G r a n t and J o n e s t h e n s t o p p e d a t t h e Tepee V i l l a g e C a f e ,

north of Arlee, where they had coffee. Linda Schlemmer,

G r a n t ' s a u n t , s e r v e d them. She t e s t i f i e d t h a t s h e h e a r d some

s h o t s w h i l e t h e y were i n t h e c a f e . A f t e r a s h o r t t i m e , Grant

and Jones left the cafe and returned to the gravel. p i t .

According t o J o n e s , Grant s a i d , " I g o t one o f them. I got t o

c u t the other guy's throat." Grant t h e n t o o k a k n i f e and

t h e y walked toward t h e t e n t . Jones stayed about 60 yards

away b u t G r a n t moved c l o s e r and t h r e w r o c k s a t t h e t e n t . He

t o l d J o n e s he saw someone move s o Grant and J o n e s r a n a c r o s s

t h e g r a v e l p i t and a f i e l d , e n d i n g up n e a r Highway 9 3 . Jones

refused t o r e t u r n t o t h e g r a v e l p i t with Grant t o g e t t h e

car. G r a n t t o l d J o n e s t o t e l l t h e p o l i c e h i s c a r had been

stolen. A f t e r J o n e s went home, Grant r e t u r n e d t o t h e c a f e

and t o l d h i s a u n t t h a t h i s c a r had been s t o l e n .
 Grant retrieved his car from the gravel pit area the
next morning after reporting to one of the investigating
officers at the scene that it had been stolen. Grant also
gave authorities what la-ter proved to be a substantially
false statement concerning the theft of his car and his
movements and activities during the early morning hours of
July 17, 1982.
Two of the bullets from the .300 Savage rifle fired by
Grant struck Witteman. He died as a result of shock and
hemorrhage caused by the gunshot wounds. Flarbitsky, the
other occupant of the tent, had been momentarily awakened by
the sound of gunfire and a departing car, but he went back to
sleep. Warbitsky later reawoke when the rocks struck the
tent. Upon hearing the rocks, he attempted, unsuccessfully,
to awaken Witteman. Warbitsky got out of his sleeping bag,
put on his hoots, and emerged from the tent. He saw two
figures some distance from the tent, moving away through the
gravel pit. He grabbed his jacket from the tent and chased
the two fleeing figures, but was unable to catch them. On
his way back to the tent, some people in a van approached
Warbitsky. He explained what had happened and received a
ride back to the campsite. Upon arriving at the tent,
Warbitsky and the others in the van discovered that Witteman
was dead, so they contacted the authorities.
The State charged Grant with deliberate homicide (count
I) for Witteman's death and attempted deliberate homicide
(count 11) for putting Warbitsky in fear of his life. Trial
began on November 16, 1982 and concluded on December 7, 1982,
with the jury finding Grant guilty on both counts. The
District Court sentenced Grant to 100 years on the first
count plus 10 years for use of a weapon and 40 years on the
second count plus 10 years for use of a weapon, with the
terms to run consecutively.
Following sentencing on February 9, 1983, Grant filed a
notice of appeal through new counsel, Charles F. Moses.
Shortly thereafter, the State filed criminal charges against
Grant's trial counsel, K. M. Bridenstine, for tampering with
evidence in Grant" case because, when handling the murder
weapon prior to trial, Bridenstine may have intentionally
have obscured fingerprint evidence. Bridenstine also hired
Moses to represent him on the charge of tampering with
evidence. The State objected to this on the grounds that it
represented a conflict of interest for Moses. This Court
issued an order disqualifying Moses from representing either
client.
On July 10, 1985, at the request of this Court, Judge
Thomas Olson held an evidentiary hearing concerning the
pretrial responsibilities of the prosecutor, the District
Court and Grant's counsel to inform Grant of the alleged
improprieties of Grant's counsel. After hearing testimony,
including that of the District Court Judge, Judge Olson
concluded that Bridenstine did not impair himself from
defending Grant during trial; Bridenstine acted competently
during trial; no conflict of interest affected his
performance as defense counsel; Grant received effective
assistance of counsel and was not denied due process; the
evidence did not show a reasonable likelihood that the jury
verdict would have been different absent Bridenstine's
misconduct; and the District Court and the county attorney
had no affirmative duty to advise Grant of the possible
charges against Bridenstine because they did not contemplate
the charges and because Bridenstine's conduct at trial did
not appear impaired or ineffective. After the entry of the
order in the above hearing, this Court heard the appeal.
We address ten issues:
(1) Should Grant's convictions be reversed because an
alternate juror was present in the jury room for a. brief
period of time after the case was submitted to the jury?
(2) Did Grant receive effective assistance of counsel
where he was not informed that his counsel mishandled the
murder weapon?
(3) Did the District Court properly refuse to give
instructions on mitigated deliberate homicide, a lesser
included offense of deliberate homicide?
(4) Did the District Court correctly find the chain of
custody adequate for the State's exhibits of bullets,
cartridges, and a rifle introduced as the murder weapon?
(5) Did the District Court correctly deny Grant's
motion for a mistrial following a comment by the prosecutor
that an armed deputy was "in charge and keeping the
defendant?"
(6) Did the amended information properly charge an
offense in the language of the statute describing the
offense?
(7) Was Grant's false exculpatory statement properly
admitted into evidence?
(8) Were photographs of the victim's body properly
admitted into evidence?
(9) Was the murder weapon improperly seized by law
enforcement officers?
(10) Did the overall demeanor of the prosecution and

the District Court, along with other errors, deprive Grant of
a fair trial?
 In the first issue Grant contends that the return of
the alternate juror to the jury room with the jury after the
case had been submitted for decision constitutes reversible
error. The judge questioned the jury on the effect of the
alternate's presence prior to asking for the verdict and, at
a subsequent evidentiary hearing, heard testimony from the
twelve jurors individually, the alternate juror and the
bailiff. The questioning and testimony indicated that no one
on the jury discussed the case with the alternate; that the
alternate made no verbal or non-verbal expressions which
conveyed his attitude about the case; that the alternate was
present in the jury room from three to no more than fifteen
minutes; that his presence after the submission of the ca-se
did not influence the decision of any juror; that the
alternate went to dinner with the other jurors as he had done
during trial; and that, pursuant to instructions, no one
discussed the case over dinner. One juror indicated the
foreman may have been selected when the alternate was in the
jury room. After the questioning of the jury which occurred
prior to their giving the verdict, the judge asked counsel if
they had questions about the alternate's presence with the
jury. Defense counsel stated "seems to be all right, your
Honor." His first objection came twenty-seven days later
when he filed a motion for a new trial.
Grant alleges that allowing the alternate into the jury
room violates § 46-16-501, MCA, which requires an officer of
the court to prevent outside communication with the jurors
during trial and 5 46-16-503 (1) , MCA, which requires an
officer of the court "to keep the jurors together and to
prevent conversations between the jurors and others" after
the jury retires. Since the questioned conduct occurred
after the case was submitted to the jury, we will consider §

46-16-503(1), MCA, rather than S 46-16-501, MCA. We find no
violation of S 46-16-503(l), MCA. An alternate, although
excluded from deliberating and voting, is in every other
respect a juror. The alternate is accepted after voir dire,
sits with the jurors through oral argument, and is governed
by the admonitions of the district court. The alternate is
not discharged until after the verdict. Section 46-16-307,
MCA. As such, an alternate would not fall within the
statutory ban against conversations with others.
Section 46-16-307(3), MCA, requires discussion as well.
It states:
... [Aln alternate juror may not join
the jury in its deliberation unless
called upon by the court to replace a
member of the jury. His conduct during
the period in which the jury is
considering its verdict shall be
regulated by instructions of the trial
court. An alternate juror who does not
replace a principal juror shall be
discharged after the jury arrives at its
verdict.
In State Highway Commission v. Dunks (1975), 166 Mont.
239, 531 P.2d 1316, the alternate juror went into the jury
room when the jury began its deliberations. No one
established how long she was in the jury room or what went on
while she was present. The jury foreman submitted an
affidavit stating the alternate sat in for a few minutes, she
did not participate in discussion or deliberation, and her
presence did not prejudice or "seriously [cause] injustice to
the defendants." Dunks, 166 Mont. at 241, 531 P.2d at 1317.
Apparently, she may have been present during some
deliberations. This Court observed that the jury foreman's
opinion should not be the deciding factor because he did not
know what prejudicial effect her presence had on the other
jurors and that the evidence conflicted on how much time the
alternate spent in the jury room. This Court then held that
the District Court properly granted a new trial. Dunks, 166
Mont. at 244, 531 P.2d at 1318.
Grant asserts that Dunks controls here. However, Dunks
is distinguishable from this case in the following respects:
1 ) In Dunks, no one established how long the alternate was
present in the jury room. Here, jury testimony established
the alternate's presence for "a few minutes," or 3 to 15
minutes maximum. (2) In Dunks, the a.lternate may have been
present during some deliberations. Here, the alternate was
not present during deliberations. (3) In Dunks, only the
foreman submitted an affidavit on the alternate's role. No
one testified on what was said in the jury room or what
effect any communication had. Here, all twelve jurors and
the alternate testified under oath that no deliberations
began while the alternate was present, no one discussed the
case with the alternate either in the jury room or at dinner,
he did not take part in any deliberations, and. the jurors
were not influenced by the alternate's brief presence in the
jury room. In addition, in Dunks there was little evidence
on which the District Court could rely for its decision.
Here, the District Court held a full evidentiary hearing on
the matter prior to denying Grant's motion for a new trial.
This Court summarized the general rule on jury misconduct in
State v. Eagan (1978), 178 Mont. 67, 79, 582 P.2d 1195, 1202:
...[Ilf jury misconduct is shown
tending to injure the defendant,
prejudice to the defendant is presumed;
however, the presumption is not absolute
and may be rebutted by the use of
testimony of the jurors to show facts
which prove that prejudice or injury did
not or could not occur ... [Citations
omitted. ]
In this case, unlike Dunks, the State produced juror
testimony on which the District Court could properly rely to
find no prejudice or injury to Grant occurred. We hold that
since no deliberations had begun, the State showed no
prejudice or injury to Grant. Thus, no reversible error
occurred.
In the second issue, Grant asserts that he did not
receive effective assistance of counsel where his retained
trial counsel mishandled the murder weapon and neither his
counsel, the District Court nor the prosecutor informed him
of the possible charges against his counsel which could have
resulted in a conflict of interest between Grant and
Bridenstine. The State submits that this Court should defer
to the findings and conclusions made by Judge Olson following
the evidentiary hearing on this issue.
The defendant carries a heavy burden in Montana to
establish a claim of ineffective assistance of counsel.
State v. Henricks (Mont. 1983), 672 P.2d 20, 25, 40 St.Rep.
1786, 1790. He must show that counsel failed to act within
the range of competence resulting in prejudice to his defense
or rights. Henricks, supra. Thus, to prevail on this claim,
Grant must show prejudice, i.e., "that there is a reasonable
probability that, but for counsel's unprofessional errors,
the result of the proceeding would have been different."
Strickland v. Washington (1984), 466 U.S. 668, 694, 104 S.Ct.
2052, 2068, 80 L.Ed.2d 674, 698, reh. den. (1984), - U.S.

-, 104 S.Ct. 3562, 82 L.Ed.2d 864.
The record and the findings made after the evidentiary
hearing may demonstrate improper action on Bridenstine's
part, hut they do not demonstrate a conflict of interest at
the time of trial. The prosecutor, although upset about the
incident, did not initially plan to file charges against
Bridenstine. The matter was referred to the Attorney
General's office for investigation only after the discovery
of additional evidence. Rridenstine was not aware criminal
charges would be filed. No witness at the evidentiary
hearing, including the District Court Judge who presided at
the trial and Charles F. Moses who briefly represented both
Grant and Bridenstine, could refer to any act or omission at
trial which would constitute ineffectivr assistance. Given
Bridenstine ' s performance at trial, his testimony at the
evidentiary hearing that he was not aware of any impending
charges, the prosecutor's decision to not press charges but
only refer the matter for investigation and the lack of
charges until the trial was completed, we find no conflict of
interest existed which hampered Bridenstine's effectiveness
at trial.
In addition, Grant has not demonstrated tha.t any
alleged conflict of interest or ineffective representation
resulted in prejudice to his rights or defenses. Judge Olson
correctly pointed out that the evidence presented at the
hearing "does not establish that the jury verdict reached in
[this] case would reasonably likely have been different
absent the misconduct of defense counsel," citing Strickland,
supra. Any of Grant's fingerprints on the murder weapon,
potential-ly obscured by Bridenstine's actions, were not
critical at trial because several other people, including a
witness and deputies, handled the rifle. Bridenstine showed
no reticence when cross-examining the Sta.telswitness about
fingerprint evidence and the District Court Judge testified
that Bridenstine performed as an agressive, competent lawyer.
Grant has failed to demonstrate prejudice from any misconduct
by Bridenstine.
Grant also maintains that the failure to inform him of
possible charges against Bridenstine deprived him of his
right to counsel. The prosecutor did not com.plete any
investigation into the incident and was not aware of the
charges prior to trial. Under these circumstances, neither
the District Court nor the prosecutor could have an
affirmative duty to advise Grant of the charges. Similarly,
Bridenstine was unaware of the charges and could not have
informed Grant. Fi-nally, Grant and possibly one of his
parents, were present at an omnibus hearing in September 1982
when the matter was called to the attention of the District
Court Judge. We hold that Grant was not denied effective
assistance of counsel due to either any misconduct of defense
counsel or any failure to inform him of the possible charges
prior to the completion of trial.
The third issue concerns whether the District Court
properly refused to give instructions on mitigated deliberate
homicide, a lesser included offense of deliberate homicide.
". . [Tlhe district court's instructions must cover every
issue or theory having support in the evidence, and the
inquiry of the district court must only be whether or not any
evidence exists in the record to warrant an instruction on
mitigated deliberate homicide." (Emphasis in original.)
State v. Buckley (1976), 171 Mont. 238, 242, 557 P. 2d 283,
285.
Deliberate homicide is mitigated when it is committed
under the influence of extreme mental or emotional stress for
which there is a reasonable explanation or excuse. Section
45-5-103 (I), MCA.
 The only potentially mitigating circumstance presented
at trial concerned Grant's use of alcohol on the night in
question. Voluntary intoxication, alone, is insufficient to
show "extreme mental or emotions-l stress" which would reduce
a charge of deliberate homicide to mitigated deliberate
homicide. State v. White (Mont. 1981), 632 P.2d 1118,
1121-22, 38 St.Rep. 1417, 1422. In White, the defendant
attempted to withdraw his plea of guilty to deliberate
homicide asserting that he did not adequately understand the
charge. Apparently, he argued that his voluntary use of
alcohol and drugs at the time of the homicide may ha,ve been
circumstances which would have allowed a. jury to find him
guilty of the lesser charge of mitigated deliberate homicide.
This Court affirmed the District Court's denial of the
defendant's motion to withdraw his plea and noted no evidence
of emotional stress. State v. Azure (1977), 175 Mont. 189,
573 P.2d 179, was distinguished in that the defendant in
Azure, "in addition to being under the influence of drugs and
alcohol at the time he committed the crime, was said to have
been emotionally depressed." White, 632 P.2d at 1122, 38
St.Rep. at 1422. The evidence presented at this trial does
not show Grant was under the influence of emotional stress.
One witness described Grant as in a "good mood." There were
references to his having beer cans in his car and his having
been in a bar. This evidence shows at most the possibility
of the influence of alcohol. It does not show emotional
stress which would warrant an instruction on mitigated
deliberate homicide.
Grant was not entitled to instructions on mitigated
deliberate homicide for a second reason--his main defense at
trial was alibi. In State v. Baugh (1977), 174 Mont. 456,
571 P.2d 779, the defendant was convicted of deliberate
homicide. His theory at trial was that he did not kill the
victim and had no knowledge of who did.. This Court held that
the District Court judge properly refused to instruct the
jury on mitigated deliberate homicide:
In the instant case there was no evidence
in the record to show mitigation as
required by section C45-5-1031. In fact,
defendant's theory throughout the trial
was that he did not murder the victim.
In State v. McDonald, 51 Mont. 1, 16, 149
P. 279, 285 (1915), it was said:
". . . In many instances, however,
the evidence is such as to show
that the defendant is either guilty
of the offense charged or is
entitled to an acquittal. In such
cases the court may not be put in
error for refusing or failing to
instruct as to the lower degree or
the included offense .l1

Baugh, 174 Mont. at 460, 571 P.2d at 781.
Grant claims that Baugh is distinguishable because
there the defendant testified that he did not kill the victim
and did not know who did, whereas here, Grant did not testify
and did not tell his story to the jury. This distinction is
meaningless. The defendant in State IT. Radi (1978), 176
Mont. 451, 463-64, 578 P.2d 11.69, 1177, presented his alibi
defense through his witnesses. There, this Court remarked
that the nature of the alibi defense was not consistent with
presenting the lesser included offense and held that the jury
heard no evidence from which it could rationally conclude the
defendant was guilty only of the lesser included offense.
Similarly here, Grant presented his alibi defense through his
aunt. She testified that Grant and. Jones were in the Tepee
Village Cafe with her when she heard some shots fired. If

the jury had believed this testimony, it would have been
inconsistent with finding Grant guilty of mitigated
deliberate homicide. As in McDonald, and Baugh, supra, the
evidence shows that Grant is either guilty of the offense
charged or entitled to an acquittal. We find no error in the
District Court's refusal to instruct on the lesser included
offense of mitigated deliberate homicide.
The fourth issue involves whether three exhibits, the
bullets taken from the body, the four cartridges found at the
scene, and the murder weapon, were admitted into evidence
without the State establishing a proper chain of evidence.
The basic rules which govern the chain of evidence are set
forth in State v. Wells (1983), 202 Mont. 337, 356, 658 P.2d

It is not necessary for the State to
prove that it would be impossible to
tamper with the exhibits . .
Rather,.
the State need only make a prima facie
showing that there has been no
substantial change in the evidence ...
After such a showing, the burden of proof
shifts to the defendant to show why the
evidence should not be admitted ...
Adequacy of the foundation for the
admission of evidence is within the
discretion of the District Court and its
determination of adequacy will not be
overturned absent a clear abuse of
discretion. [Citations omitted. 1
[Emphasis in original.]
Each exhibit was properly admitted. With respect to
the bullets, the pathologist testified that he removed the
bullets from the body and clothing of Jay Mitchell Witteman,
placed them in a plastic bottle and gave them to an
undersheriff of Lake County. The undersheriff marked the
container, put it in an evidence bag, and locked it up in his
office. The State firearms and toolmark examiner testified
that he received the bullets from the undersheriff for
testing at the crime lab. He initial-ed the evidence bag and,
after he had completed testing, the undersheriff picked up
this evidence bag from the crime lab. The undersheriff
brought it back to his office where he locked it in a file
cabinet. The examiner and the undersheriff both identified
this piece of evidence in court. The State established a
similar chain of custody for the cartridges found at the
scene. Grant's only complaint about the rifle introduced
into evidence related to a letter which contained an
incorrect digit in the serial number. The undersheriff
testified that the laboratory reports contained the correct
serial number and the incorrect digit in the letter
apparently was a clerical error.
Extensive testimony chronicled the labeling, storing,
securing, transferring of possession and testing of each
exhibit. The State made a prima facie showing that there had
been no substantial change in the evidence. Grant produced
no evidence to show actual or even potential tampering could
have occurred. Even if this Court accepted Grant's argument
that the State inadequately identified the evidence, such a
defect would go to the weight rather than the admissibility
of the evidence. State v. Zuidema (1971), 157 Mont. 367,
372, 485 P.2d 952, 955. At trial, he vigorously attacked the
chain of evidence and argued that the State inadequately
marked and identified the evidence. Thus, the jury ha.d an
opportunity to weigh this evidence. We hold that the
District Court did not abuse its discretion when admitting
these items into evidence.
In the fifth issue, Grant contends that the
prosecutor's statement before the jury that an armed deputy
was "in charge and keeping the defendant" warrants a new
trial. During cross-examination, defense counsel drew the
jury's attention to the fact that the officer guarding the
defendant was armed in order to demonstrate that the witness
had limited powers of observation. A short time later, the
prosecutor made the statement which Grant complains
prejudiced him before the jury and. which he claims should
have been the subject of a cautionary instruction.
Obviously, defense counsel drew the jury ' s attention to the
armed officer. Further, if he thought a cautionary
instruction was necessary, he should have offered one. State
v. Close (Mont. 1981), 623 P.2d 940, 947, 38 St.F.ep. 177,
186. The District Court properly cautioned both counsel and
ended the matter. The defendant has failed to show any error
which affected his substantial rights or resulted in
prejudice. We hold that the District Court did not abuse its
discretion when it failed to declare a mistrial.
Grant claims in the sixth issue that the amended
information failed to state an offense by not adequately
alleging the proper mental state a.nd that therefore the
attempted deliberate homicide conviction should be reversed
and the amended information dismissed. The portion of the
amended information at issue stated:
That on or about July 17, 1982 in Lake
County, Montana the defendant, DONALD
DEAN GRANT, performed an act toward the
commission of the crime of DELIBERATE
HOMICIDE, a Felony, of KARL WARBITSKY
with the purpose to commit that offense
by shooting repeatedly with a rifle into
a certain two-person campers [sic] tent
in which the said KARL WARBITSKY and his
companion, JAY MITCHELL WITTEMAN, were
sleeping.
An information is sufficient if it properly charges an
offense in the language of the statute describing the
offense, State ex rel. Glantz v. District Court (1969), 154
Mont. 132, 142, 461 P.2d 193, 198-199, and if it adequately
apprises the accused of the crime charged. It need not be
perfect. State v. Coleman (1978), 177 Mont. 1, 22, 579 P.2d
732, 745. The test of sufficiency is often expressed as
whether a person of common understanding would know what is
intended to be charged. State v. Dunn (1970), 155 Mont. 319,
327, 472 P.2d 288, 294. Section 45-4-103(1), MCA, defines
the offense charged as follows: "A person commits the
offense of attempt when, with the purpose to commit a
specific offense [deliberate homicide here], he does any act
toward the commission of such offense. " The information
charged attempted deliberate homicide using the language of
this statute. It apprised Grant of the crime charged using
language with which a person of common understanding would
know what is intended to be charged. We hold that the
information properly stated an offense.
As part of this issue, Grant argues that the
instructions compounded the defect in the information. The
instructions to the jury correctly reflected the law
applicable to the crime charged and, as we held above, no
defect existed in the information. Thus, we find this
argument unpersuasive.
In the seventh issue, Grant claims that a voluntary
statement he gave to a deputy sheriff prior to the time he
was a suspect in the homicide should not have been admitted.
Grant reported to authorities that his car had been stolen
when he returned to the gravel pit after the homicide had
been discovered. When a deputy sheriff later questioned him
about the theft, Grant gave a statement about his actions and
whereabouts at the time of the homicide that later proved to
be false. Since he was not a suspect at the time, the deputy
sheriff did not give Grant the Miranda warnings. A false
exculpatory statement may be used as evidence of
"consciousness of quilt and unlawful intent." State v. Goltz
(19821, 197 Mont. 361, 369, 642 P.2d 1079, 1083-84. Grant
apparently argues that since the statement was not made
regarding the particular crime charged, as in Goltz, supra,
it no longer shows "consciousness of guilt and unlawful
intent. " We find no merit in this distinction. The
suspicious circumstances about which Grant gave a false
explanation tended to connect him to the homicide regardless
of the reason for the statement. We hold that the statement
was properly admitted into evidence.
The eighth issue concerns the admission of photographs
of the victim taken at the scene of the crime. In this case,
the District Court admitted the photographs into evidence
after defense counsel raised issues relating to the locations
of the bullet holes in the tent and sleeping bag, the
position of the victim's body in the tent, and the locations
of wounds on the body. "The longstandinq rule in Montana is
that a photograph is admissible if it 'fairly and accurately
represents relevant evidence.' State v. Jones (1914), 48
Mont. 505, 139 P. 441. It is within the discretion of the
trial court to allow into evidence duly verified photographs
to aid the jury in its fact-finding process . . ."
(Citations omitted. ) State v. Mackie (Mont. 1981) , 622 P. 2d
673, 674, 38 St.Rep. 86, 88. Once relevance is established,
photographs should not be excluded only because of potential
prejudice. State v. Austad (1982), 197 Mont. 70, 83, 641
P.2d 1373, 1380. The photographs in this case were relevant
to the dispute on how the wounds were inflicted and the
victim's position when the shots were fired and aided the
jury in its fact-finding on these questions. The District
Court correctly determined their probative value outweighed
any prejudice to Grant. We hold that the photographs were
properly admitted into evidence.
Grant asserts, in the ninth issue, that the rifle used
in the homicide "was taken by questionable means." He
expresses no specific legal defect in the seizure of the
weapon and acknowledges that he made no suppression motion
prior to trial. This issue may not be raised for the first
time on appeal. State v. Gallagher (1973), 162. Mont. 155,
167-68, 509 P.2d 852, 859. Therefore, we will not address
this issue further.
In the final issue, Grant argues that the overall
demeanor of the prosecution and the District Court, together
with the other alleged errors set forth above, requires a
reversal of his conviction. He articulates no particular
comments or remarks and alleges no prejudice to his
substantial rights. Montana acknowledges the "cumulative
error doctrine." This refers to the accumulation of errors
which prejudice a defendant's right to a fair trial. State
v. McKenzie (1978), 177 Mont. 280, 581 P.2d 1205. Mere
al-1-egations of error without proof of prejudice are
insufficient to satisfy the cumulative error doctrine. State
v. Phelps (Mont. 1985), 696 P.2d 447, 454, 42 St.Rep. 305,
313. The resolutions of the prior issues indicate no error
meriting reversal. Grant's all-egations in raising this issue
are vague and without support in the record. We hold that
Grant has failed to carry his burden of showing prejudice and
decline to reverse his conviction on this ground.
Grant's convictions are affirmed.
We Concur:
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C h i e f Justice