No. 84-376
IN THE SUPREME COURT OF THE STATE OF MONTAKA
1986
THE STATE OF MONTANA,
Pla.intiff and Respondent,
-VS-
RUSSELL WOODS,
Defendant and Appellant.
APPEAL FROM: The District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Jack L. Green, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
O'Brien Law Office; James P. O'Brien, Missoula,
Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Judy Browning, Asst. Atty. General, Helena, Montana
Robert I,. Deschamps, 111, County Attorney, Missoula
Karen Townsend & Ed McLean, Deputy County Attorneys,
Missoula, Montana
Submitted on briefs: Nov. 29, 1985
Decided: April 10, 1986
Mr. Justice William E. Hunt, Sr., delivered the Opinion of
the Court.
The appellant, Russell Woods, was charged by information
with two counts of burglary, one count of escape, and one
count of tampering with a witness. He pled not guilty. At
trial by jury he was found guilty on all charges. The
District Court designated him a dangerous offender and
sentenced him to 20 years for each count of burglary, 10
years for tampering with a witness, and 6 months in jail for
escape. The prison sentences were to run consecutively.
This appeal followed.
We affirm.
Four issues are presented for review:
1. Whether a juror's nondisclosure of information
during voir dire is grounds for reversal.
2. Whether § 45-7-206(1), MCA, violates the appellant's
state and federal constitutional rights of freedom of
expression and due process of law.
3. Whether there is sufficient corroborative evidence
to confirm accomplice testimony that the appellant committed
burglary.
4. Whether a note addressed to the appellant was
properly admissible.
In the late evening hours of December 13, 1983, Timothy
Rorrocks and Wayne Conger went to the Trading Post Saloon in
Missoula, Montana. There they met the appellant, Russell
Woods, who was a friend of Conger. When this bar closed they
continued their drinking at Conger's trailer house in
Missoula. They then left Missoula in Conger's automobile,
traveling south towards Lolo, Montana.
At about 6:00 a.m. on December 14, 1983, Dennis
McKeehan, Lolo Tavern's assistant manager who lived jn a
trailer house behind the tavern noticed Conger's automobile
parked near the tavern. He asked Conger if assistance was
needed. Conger asked for a flashlight. After getting a
flashlight, McKeehan saw the appellant run out of the
tavern's emergency exit with what looked like a tire iron in
his hand. McKeehan ran back into the trailer ar_d asked a
friend to call the police. He then observed Conger's
automobile being driven away. A later check revealed that
the tavern's cash register had been disturbed.
The appellant and his two companions then proceeded west
toward Lolo Hot Springs where they stopped at a filling
sttit-ion. A night attendant zt the filling station was
sleeping. He woke up and observed the appellant and another
person approach the station. He then hid under his blankets.
After they left he discovered that someone had tampered with
the cash register. It was later discovered that a radio had-
also been taken out of a wrecker at the station.
The appellant and his two companions then proceeded back
towards Lolo where they were spotted by a deputy sheriff and
apprehended. After a stop at the bolo Tavern for
identification, Conger and Horrocks were transported in one
vehicle and the appellant was transported in another towards
Missoula. The appellant, although cuffed, succeeded in
unbuckling his seat belt twice. While being moved from the
highway patrol car in which he was riding to the deputy
sheriff's car for more secure transport he broke free and
ran. He was soon captured again.
While the three suspects were in the Missoula County
jail the appellant wrote several notes to his companions.
One note was intercepted by a jailer and. another was
delivered to the sheriff's department by the recipient. Both
notes were a.ttempts by the appell-a.ntto establish a story as
to what the three should all say occurred. At trial,
Horrocks testified that the appellant ha.d broken into the
Lolo Hot Springs service station. Conger testified that the
appellant had complained, "We only got thirty dollars."
After trial, the jury found appe1la.nt guilty of burglary,
escape and witness tampering.
The first issue presented is whether a juror's
nondisclosure of information during voir dire is grounds for
reversal. We hold that the conviction stands despite the
nondisclosure.
During voir dire those persons of the jury panel sitting
in the jury box were asked whether they had ever been victims
of any crime. Following a lunch recess, a member of the
panel was dismissed and Juror Tollefson took her place. The
prosecuting attorney asked:
(?. Mr. Tollefson, when I was questioning the
prospective jurors earlier this morning, did you
have any definite responses to any of the questions
I was asking? A. No.
Q. Any reason why you can't sit? A. No.
Juror Tollefson eventually became the foreman of the
jury which found the appellant guilty of two counts of
burqlary. In another case a few days later, Mr. Tollefson
again sat on a jury panel. In response to questioning, Kr.
Tollefson acknowledged he had been burglarized three times.
The appellant contends Mr. Tollefson's nondisclosure of this
information during voir dire preceding his trial, and his
eventual position as jury foreman, prejudiced the appellant's
right to an impartial jury and his right to due process.
We disagree. In State v. Eauer (Mont. 1984), 683 P . 2 d
946, 953, 41 St.Rep. 1066, 1-073, we held that nondisclosure,
without more, does not amount to misconduct tending to
prejudice the appellant. Here, as in Bauer the omission
appears to have been inadvertent and unintentional. Where
the nondisclosure does not amount to intentional concealment
and no further evidence of bias is proven, there are no
grounds for reversal. Id.
-
Next, the appellant contends that 5 45-7-206 (1)(a), MCA,
violates state and federal constitutional rights to freedom
of expression and due process of law. That statute provides:
Tampering with witnesses and informants. (1) A
person commits the offense of tamp