NO. 85-446
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-
PATRICK H . CAIN,
Defendant and A p p e l l a n t .
APPEAL FROM: D i s t r i c t Court o f t h e S i x t e e n t h Judicial. D i s t r i c t ,
I n and f o r t h e County o f C u s t e r ,
The H o n o r a b l e A l f r e d B. C o a t e , J u d g e p r e s i d i n g .
COUNSEL! O RECORD :
F
For Appellant.:
James G. H u n t , H e l e n a , 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
Dorothy McCarter, A s s t . A t t y . G e n e r a l , Helena
K e i t h D . H a k e r , County A t t o r n e y , M i l e s C i t y , Montana
S u b m i t t e d on B r i e f s : Dec. 3 0 , 1985
Decided: A p r i l 8 , 1986
Filed: APR 8 - 1986
Clerk
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
Appellant, Patrick Cain, was convicted of conspiracy to
commit arson and attempted criminal mischief following trial
before a jury in the Sixteenth Judicial District. We affirm.
The Crossroads Inn (Inn) in Miles City, Montana, was
destroyed by fire on the morning of October 20, 1984. Ja-ck
Holmes, who lives near the Inn, was awakened by smoke around
4: 00 that morning. After driving over to the Inn, he saw
heavy smoke coming from the kitchen area.. Officer Newby
arrived at the Inn around 4 : 3 0 a.m. He observed that most of
the flames were around the kitchen area and coming through
the roof above the kitchen.
Sometime that same morning, Cain and Joseph Leser were
involved in a car accident south of Miles City at the Pumpkin
Creek Bridge. Officer Schiffer was notified of the accident
around 4:55 a.m. by police dispatch. When he arrived, he saw
a car in a ditch near the bridge. Cain was in the driver's
seat, and Leser was in the passenger seat. After inquiring
into the cause of the accident he drove the two men back to
town. Officer Schiffer later learned that the car was regis-
tered to Joanne Cain, appellant's mother.
On October 21, 1984, Detective Uden received an anony-
mous tip on the Crime Stoppers network concerning the Cross-
roads Inn fire. Detective Uden testified the tip indicated
that Rod Walter, the owner of the Inn, had hired someone to
set the fire; that $8000 was the agreed upon price; and that
cash registers had been removed from the Inn. He received a
second Crime Stoppers tip two says later. That tip indicated
that Cain and Leser had been involved in an accident near the
Pumpkin Creek Bridge on the morning of the fire and that cash
registers and evidence from the fire ha-d been removed from
Cain's vehicle and hidden under the bridge so that the offi-
cer investigating the accident would not associate the two
men with the fire.
On the basis of this information, Detective Uden and
Patrolman Schiffer went to the scene of the earlier accident
at the Pumpkin Creek Eridge. When they arrived they found
several items of property that came from the Crossroads Inn.
In the ditch near where Cain's car had been, they found cash
register receipts from the Crossroads Inn, a cash register
key, and plastic parts similar to the type used in the con-
struction of cash registers. Underneath the bridge, they
found fresh indentations of square corners in the ground.
Detective Uden then obtained a search warrant for
Cain's car on the basis of the evidence found at the bridge
and the two tips. Upon searching the car, he found cash
register receipts from the Inn, a rubber stamp for a receipt
and broken plastic parts.
On October 26, 1984, without realizing that there was a
warrant out for his arrest, Cain voluntarily came into the
police department to turn himself in. After being read his
Miranda warnings, Cain admitted to burglarizing the Inn.
However, he denied then, and does so now, that he had any
part in setting fire to the Inn.
Joe Leser testified for the prosecution pursuant to a
plea bargain agreement. According to his testimony, Cain
approached him with the proposition of burning down the Inn
in return for some insurance money. Leser agreed. After the
Inn had closed, Cain and Leser entered the building with a
key that Cain had. They took three cash registers and other
items and put them in Cain's car. Then they wadded up paper
sacks, put them between pipes in the basement below the
kitchen and lit the sacks. After the sacks began to burn,
Cain kicked the kitchen door in to make it look like the Inn
had been broken into.
Cain's testimony was essentially the same as Leser's
except that he denied suggesting to Leser that they burn down
the Inn for money, and he asserted that he never set fire to
the Inn.
Appellant raises four issues for our consideration:
1. Whether testimony concerning the two Crime Stoppers
tips constituted a violation of appellant's Sixth Amendment
right to confront the witnesses against him.
2. Whether the Crime Stoppers tips were reliable for
determining probable cause to obtain a search warrant.
3. Whether testimony concerning the tips was inadmis-
sible hearsay, and whether its use at trial created revers-
ible error because it was not harmless.
4. Whether the prosecutor's conduct in mentioning the
tips in his opening statement and closing argument and ques-
tioning a witness as to the content of the tips breached his
duty to the accused.
Because the issues center on the introduction into
evidence of the Crime Stoppers tips, it is appropriate that
we set out exactly what was said.
The main source of objection was the testimony given by
Detective Uden on direct examination:
Q. Did the Miles City Police Department
receive a tip or tips on the Crime
Stoppers network relative to the Cross-
roads Inn fire?
A. Yes.
Q. When was th.at tip received?
A. First tip was received on October
21, 1984, at approximately 12:40 p.m.
&. What information did that tip
provide?
A. That information indicated that the
Crossroads Inn fire was set and that Mr.
Rod Wal-ter, the owner of the Crossroads
Inn, had hired the fire to be set and
that $8000 was the agreed upon price for
the fire and that some cash registers or
tills had been removed from the scene.
Q. Was there more than one tip?
A. Yes, sir, there was.
Q. When was the second tip?
A. The second tip was received in the
late morning of October 23, 198[41.
What did that tip consist of?
A. That tip indicated. that Mr. Pat Cain
and Mr. Joe Leser, both of Miles City,
bad been involved in an accident on the
early morning of the fire at a location
m r t h of the Pumpkin Rridge on Highway
59 which is south of Miles City and that
the cash registers and evidence from the
fire had been removed from the vehicle
that was involved in the accident and
hidden under the Pumpkin Creek Bridge so
that the highway patrolman investigating
the accident wouldn't associate the two
individuals with the Crossroads Inn
fire.
The prosecutor also briefly mentioned the tips in his opening
statement and closing argument. However, at no time during
the trial did defense counsel object to references to these
tips.
I
Appellant contends that the Crime Stoppers tips were
hearsay and violated his Sixth Amendment right to confront
the witnesses against him. Section. 46-20-702, MCA, provides
the appropriate standard of review for alleged constitutional
violat.ions:
... No claim alleging an error affect-
ing jurisdictional or constitutional.
rights may be noticed on appeal, if the
alleged error was not objected to as
provid-ed in 46-20-104, unless the defen-
dant establishes that the error was
prejudicial as to his guilt or punish-
ment --
and that:
(1) the right asserted in the claim d . i d
not exist at the time of the trial and
has been determined to be retroactive in
its application;
(2) the prosecutor, the judge, or a law
enforcement agency suppressed evidence
from the defendant or his attorney that
prevented the claim from being raised
and disposed of; or
(3) material and controlling facts upon
which the claim is predicated were not
known to the defendant or his attorney
and could not have been ascertained by
the exercise of reasonable diligence.
[Emphasis added.]
Since there was no objection to the tips at any time during
the trial, appellant must meet both requirements of the
statute; i .e. , he must show prejudicial error and at least
one of the three statutory requirements.
Appellant does not meet any of the three requirements
listed in the statute. Appellant ' s constitutional right to
be confronted by the witnesses against him existed at the
time of trial, as did the right to prevent testimony that was
hearsay. Although appellant claims that testimony about the
tips had the same effect as actively concealing the name of
the witness since the informant was anonymous, he had ample
opportunity to object to such questions before the content of
the tip was testified to. Furthermore, nothing prevented
appel-lant from raising his constitutional claims at trial by
objection or motion to strike. Finally, there are no facts
upon which appellant bases his claim that were not known to
him at the time of trial. Since appellant has not met any of
the three requirements, his failure to object at trial con-
stitutes a waiver of his constitutional claim. Section
46-20-104, MCA.
We do not decide the question whether admission of the
anonymous tips into evidence violated appel-lant's Sixth
Amendment confrontation right. Rather, we hold that by
failing to raise his objection at trial, he waived the right
to bring such objection on appeal. The error, if there was
one, cannot be noticed because appellant does not satisfy the
requirements of 5 46-20-702, ECA.
The United States Supreme Court gave firm support to
this view in Estelle v. Williams (1976), 425 U.S. 501, 96
S.Ct. 1691, 48 L.Ed.2d 126. The defendant in that case was
forced to wear identifiable prison clothing at his trial by
jury, but no objection to this was ever raised. The Court
recognized that it is a violation of the Fourteenth Amendment
for the state to compel an accused to stand trial before a
jury while wearing a prison uniform. However, by failing to
raise an objection, defendant was held to have waived his
constitutional claim. "The reason for this rule is clear:
if the defendant has an objection, there is an obligation to
call the matter to the court's attention so the trial judge
will have an opportunity to remedy the situation." Estelle,
425 U.S. at 508, n. 3. The Court further recognized that
"[ulnder our adversary system, once a defendant has the
assistance of counsel the vast array of trial decisions,
strategic and tactical, which must be made before and during
trial rests with the accused and his attorney. Any other
approach wou1.d rewrite the duties of trial judges and counsel-
in our legal system." Estelle, 425 U.S. at 512. This rea-
soning applies with equal force in the present case.
The approach taken in Estelle has also been talcen by
this Court in State v. Weinberger ( 1 9 8 3 1 , 565 P.2d 202, 40
St.Rep. 844. In that case, as in the present, defendant
raised various objections to certain out of court statements
for the first time on a.ppea1. This Court stated:
The District Court was never given an
opportunity to rule on admission of the
statements or to correct itself if
admission was not proper. We will not
put the trial court in error where it
has not been given such a chance.
Weinherger, 665 P.2d at 216.
We reaffirm the approach taken in Weinberger. On an
alleged constitut.iona1 violation where the error was not
objected to at trial, a party must show prejudicial error and
one of the three requirements listed in S 46-20-702, MCA,
before the claim will be noticed on appeal. Since appellant
did not meet this burden, we do not consider the merits of
his constitutional claim.
II
Appellant contends next that the Crime Stoppers tips
were not sufficiently reliable to meet the standards required
for determining probable cause for a search warrant. The
same problem that plagued appellant's first issue also bur-
dens this one. No motion to suppress the evidence obtained
from the search of appel.1ant's car was ever filed, nor was
any objection based on those grounds raised at trial. For
the reasons discussed above, we find that appellant has
waived his right to raise this issue on appeal.
We note in passing, however, that the use of anonymous
tips as an element in obtaining a search warrant has been
sustained by the United States Supreme Court jn Illinois v.
.
Gates (1982), 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527,
and by the Montana Supreme Court in State v. Kelly (1983),
668 P.2d 1032, 40 St..Rep. 1400, where other corroborating
evidence is shown. Under the totality of the circumstances
analysis, the question is simply whether, given all the facts
set forth in the affidavit, "there is a fair probability that
contraband or evidence of a crime will be found in a particu-
lar place." Gates, 462 U.S. at 238. This determination is a
practical-, common sense decision, not a technical, analytical
litmus test. Therefore, as a general rule, we do not disap-
prove of the use of anonymous tips as one element in the
determination of probable cause for a search warrant.
111
Appellant asserts that testimony on the content of the
tips was hearsay, constituting reversible error because they
were not harmless beyond a reasonable doubt. We reiterate
that no objection to the tips was raised at any time during
the trial-. Thus, in order to prevail, appellant must demon-
strate that admission of the testimony constituted plain
error affecting a substantial right. Rule 103, M.R.Evid.
Before we decide whether admission of the testimony consti-
tuted reversible error, we must first determine whether the
tips were hearsay.
Respondent would have us believe that the description
of the tips was not hearsay because it was not asserted to
prove the truth of their contents; rather, it was used to
explain the basis of the investigation and the issuance of
the subsequent. search warrant. We reject this assertion. An
integral part of the State's case was proving conspiracy
between appellant, Leser and Rod Walter, the owner of the
Inn. This theory of the case was asserted in the prosecu-
tion's opening statement. Therefore, testimony that the tip
indicated that Walter had hired someone to set the fire and
that appellant and Leser took evidence from the fire could
only be viewed by the jury as tending to prove the truth of
the assertion. We cannot reasonably require a jury of lay
persons to make a distinction which is so fine that it proves
difficult even for attorneys and legal scholars to make.
Respondent cites State v. White (1980), 185 Mont. 213,
605 P.2d 1-91, and State v. Paulson (1975), 167 Mont. 310, 538
P.2d 339, in support of its contention that the tips were not
hearsay. However, both cases are distinguishable by the fact
that the testimony was introduced for the purpose of showing
probable cause to make an arrest without a warrant. The
testimony in those cases was not intrduced for the purpose
of explaining the basis of an investigation. Furthermore,
Detective Uden could have testified that the basis for the
investigation was a Crime Stoppers tip without testifying as
to the content of the tip. The description of the tips was
totally unnecessary to prove respondent's asserted purpose.
Therefore, we find that the tips were hearsay. However,
although admission of the tips was error, because appellant
failed to raise an objection to this at trial, our inquiry
only goes so fi?r as to determine whether the admission was
plain error affecting substantial rights of appellant. Rule
103, M.R.Evid.
Testimony on the first tip indicated that Rod Walter
had hired someone to set the fire and that cash registers had
Seen removed from the Inn. Appellant's name was not men-
tioned. The second tip indicated that appellant and Leser
were in an accident near the Pumpkin Creek Bridge on the
morning of the fire and that cash registers and evidence from
the fire had been removed from the car and hidden.
The substance of the second tip was completely corrobo-
rated by the independent testimony of Patrolman Schiffer and
Detective TJden. The same evidence was established without
the testimony on the tip. Thus, testimony concerning the
second tip had no prejudicial effect on appellant.
The only part of the first tip which was not directly
proved was the information about Walter hiring someone to set
the fire. However, testimony was given that the Crossroads
Inn was in financial trouble and was losing a great deal of
money. Leser testified that appellant suggested to him that
they burn the Inn in return for money. Much of Leser's
testimony was corroborated by other evidence. Although
appellant contends that Leser is not a credible witness, the
jury had an opportunity to judge his credibility and appar-
ently believed his version of the matter over that of appel-
lant. The fire marshall testified that the fire started in
the basement and could have been set by paper bags being lit
underneath the floor joints. He found very little inventory
jn the Inn a s compared to the usual situation.
.
The other evidence linking appellant to the crime was
overwhel-ming. Cash register receipts from the Inn were found
in his car and in the area where his car had wrecked on the
night of the fire. Appellant admitted to burglarizing the
Inn at a time shortly before the fire. Therefore, appellant
has failed to demonstrate that admission of part of the first
tip constitutes plain error. "At most, this statement can be
viewed as linkage testimony that is incriminating only -
in
conjunction with other facts." Weinberqer, 665 P.2d at 213.
(Emphasis added.) This statement was not vital to the
State's case, and its admission into evidence was merely
cumulative of all the other evidence submitted. In light of
the fact that the other evidence presented was overwhelming,
its admission was harmless.
IV
Finally, appellant contends that the prosecutor
breached his duty to the accused by questioning the witness
about the tips and by mentioning the tips in his opening
statement and closing argument. This issue was not raised at
trial and will not be considered on appeal. Section
46-20-104, MCA; State v. Lernmon (1984), 692 P.2d 455, 41
St.Rep. 2359.
However, a word of caution to the prosecution is in
order. We condemn the use of anonymous tips as evidence at
trial. The jury has no means in which to test the reliabil-
ity of the informant. Furthermore, serious questions arise
as to a defendant's Sixth Amendment and confrontation rights.
There was no need to introduce the content of the tips for
any reason in this case. By taking such actions in the
future, the prosecution runs the risk that a conviction might
be overturned on appeal. Also, it is highly unlikely that in
future cases defense counsel will fail to object to such
testimony, which would present a different question to this
Court. With this said, for the reasons stated above, the
judgment of conviction must be affirmed.
W e concur:
Mr. J u s t i c e John C . Sneehy:
I agree wlth t h e r e s u l t foregoing.
Mr. J u s t i c e William E. Hunt, S r . , d i d n o t p a r t i c i p a t e i n t h i s
appeal.