No. 86-369
I N THE SUPREME COURT O F THE S T A T E O F MONTANA
1987
S T A T E O F MONTANA,
P l a i n t i f f and R e s p o n d e n t ,
-vs-
ROBERT EUGENE MORSE,
D e f e n d a n t and A p p e l l a n t .
A P P E A L FROM: D i s t r i c t C o u r t of t h e E i g h t h 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 C o u n t y of C a s c a d e ,
T h e H o n o r a b l e J o e l G. R o t h , Judge p r e s i d i n g .
COUNSEL O F RECORD:
For A p p e l l a n t :
John S. K e i t h , G r e a t F a l l s , M o n t a n a
For R e s p o n d e n t :
Hon. M i k e 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 , M o n t a n a
Barbara Claassen, Asst. Atty. General, Helena
Patrick L. P a u l , C a s c a d e C o u n t y A t t o r n e y , G r e a t Falls,
Montana
S u b m i t t e d on B r i e f s : Sept. 3 , 1987
Decided: November 24, 1987
Filed: N O V 2 4 198Z a
Mr. Justice L. C. Gulbrandson delivered the opinion of the
Court.
Defendant Robert Morse appeals his conviction of
solicitation following a jury trial in the Eighth Judicial
District, Cascade County. Morse, along with codefendant Ray
Brown, was charged by information on November 19, 1985 with
two counts: Count I, conspiracy (aggravated kidnapping); and
Count 11, conspiracy (deliberate homicide). On January 24,
1986, the information was amended to include solicitation to
encourage or facilitate aggravated kidnapping and deliberate
homicide, a felony, against Morse only as Count 111.
Joint-trial was held from February 24, 1986 to March 10,
1986. The jury returned a verdict of not guilty on Count I
and Count I1 but Morse was found guilty of solicitation. On
May 9, 1986, he was sentenced to fifty years in the Montana
State Prison. Brown was found not guilty on both counts.
We affirm.
The two following issues are presented for our review:
(1) Was the State's informant an accomplice and
therefore legally accountable for Morse's solicitation
requiring corroborating evidence prior to the informant's
testimony?
(2) Did the District Court err in allowing in evidence
a surveillance tape recording and testimony of an agent who
cond6cted the surveillance?
Defendant in this case, Robert Morse (Morse), was 88
years old at the time of trial of this case. His sight had
previously dissipated and therefore he could not operate an
automobile. Morse, who is also known as "Goldie," met Thomas
Marchington (Marchington), the informant for the State in
this case, at a bar i n Billings, Montana, while the two were
.
playing poker. Marchington was asked by Morse if he wanted
to earn some money for doing something illegal. It was not
made clear to Marchington originally what the act would be,
but Marchington was interested.
In May and April of 1985, Marchington told agent Steve
Sparhawk (Sparhawk) of the Montana Department of Justice Law
Enforcement Services Division that Morse approached
Marchington and was planning something illegal. Sparhawk and
Marchington had previously met regarding matters unrelated to
this case. When Marchington first discussed Morse's offer
with Sparhawk, he testified he did not intend to do what
Morse had suggested. Marchington testified that Morse woul-d
pay Marchington for transporting him to Great Falls, that
they would pick up a number of people, and that Marchington
would transport them back to Billings.
Approximately a month after Marchington contacted
Sparhawk, Morse again asked Marchington if he was interested
in participating in the illegal activity for a large amount
of money. Marchington still did not know what the specific
activity was, but at trial testified: "I told him I was
always interested in trying to get some money." Marchington
did not immediately report Morse's request to Sparhawk.
By late summer or early autumn of 1985, Marchington
began driving Morse to Great Falls in Morse's car.
Marchington still did not know what illegal activity was
involved. Morse told him not to bring any weapon.
On the first trip to Great Falls, Marchington said he
left Morse at the Greyhound Bus depot at approximately 1:00
p.m. Morse gave Marchington $20 and told him not to get
drunk but to return with the car around 4 : 0 0 p.m.
Marchington said he left the car parked in a parking lot
across from the bus depot, and watched Morse get picked up in
a blue El Camino driven by a black man. Morse returned later
that afternoon and Marchington and Morse drove back to
Billings. There were a number of trips between Billings and
Great Falls after this first trip and Morse often mentioned
people that he talked to in Great Falls. One of these people
was Ray Brown, whom Marchington was introduced to later.
Brown was also referred to by Morse as "Brown" or "Brownie."
Brown is a black man and owns a blue El Camino.
Marchington again contacted Sparhawk on October 15,
1985. Marchington had been given more information as to what
the intended crime was to be by this meeting. By October 15,
Marchington had driven Morse to Great Falls approximately
seven or eight times. Marchington told Sparhawk of Morse's
plans in a taped conversation. The alleged scheme was to
pick up Dr. John McGregor, a Great Falls physician, and
possibly McGregor's wife, and hold them for ransom. The
kidnapping allegedly would entail threatening the victims
into writing ransom notes and then end in the murder of the
victims.
On October 22, 1985, Marchington notified Sparhawk that
he was again driving Morse to Great Falls. Before he left
Billings, Marchington met with another state agent, Ward
McKay (McKay) who attached an electronic transmitter on
Marchington so that any conversation could be heard and
taped.
Morse and Marchington were followed to Great Falls by
agents from Billings. These agents and Great Falls police
officers watched them drive by Dr. McGregor's house. The
McGregors had been transported from Great Falls for
protection purposes. Marchington testified that he and Morse
drove past the McGregor's residence in the early evening of
October 22 and saw a man and woman inside but no vehicle.
Morse became suspicious because of the lack of a car. A
similar type vehicle as the McGregors' was obtained by the
Great Falls officers and placed at the McGregor residence at
8:15 p.m. At approximately 9 : 0 0 p.m., they again drove by
the house and noticed a new Lincoln automobile with a
thirty-day sticker but no license plates. Morse at this time
became fairly nervous according to Marchington. In fact, the
individuals inside the McGregor residence were actually
undercover police officers. On October 23, Morse and
Marchington made one more pass by the McGregors' and again
noticed people inside but no vehicle. Morse was arrested
later that day when he and Marchington stopped at a trailer
rental business.
At trial, Marchington stated that he and Morse, on a
number of occasions, watched Dr. McGregor at his house and
work. The two also drove to an area on the Missouri River
known as "Big Bend" where the bodies were allegedly to be
disposed. Marchington said Morse had to unlock two padlocks
to get to Big Bend and Morse had keys to the padlocks. This
property adjacent to the river is owned by Harry Mitchell who
testified that he had previously given two keys, one marked
"BB," to Ray Brown approximately four or five years before
trial. Morse was found in possession of these or similar
keys when he was arrested.
Marchington testified that Morse had a number of items
that he always carried in two bags in the trunk of his car
that were to be used in the kidnapping, murder and
dismemberment of the victims. These items included pencils,
pens, paper, a typewriter, a set of handcuffs and a .38
revolver which were to be used to coerce the victims into
writing ransom notes. Marchington testified that he saw a
rubber raft, hammer, chisel, flashlight, hacksaw, and two
knives, a shovel and a small board which were to be used to
dismember and dispose of the bodies. Also, there were
newspapers to be used to burn the victim's hair off and
hinder identification.
The initial information was filed November 19, 1985,
and Morse was arraigned and entered a plea of not guilty on
December 2, 1985. He entered a plea of not guilty to the
amended information on January 24, 1986.
At trial, much of the State's case was based on the
testimony of Marchington. Seven Great Falls police officers,
a Cascade County sheriff's deputy, and three investigators
(along with Sparhawk) from the Department of Justice also
testified. One of the investigators was McKay. McKay placed
the transmitter on Marchington and followed Marchington and
Morse to Great Falls. He testified as to portions of eight
tape-recordings made during the surveillance of October 22
and 23, 1985. Portions of the tapes were difficult to hear
and understand so McKay was allowed by the District Court to
describe what he saw and heard.
Morse contends on this appeal that the District Court's
allowance of Marchington's testimony was error because he was
an accomplice to the solicitation charge and no corroborating
evidence was presented to support his testimony. Morse
argues that as a coconspirator and accomplice Marchington's
testimony had to be limited as provided in 5 46-16-213, MCA,
which provides:
A conviction cannot be had on the
testimony of one responsible or legally
accountable for the same offense, as
defined in 45-2-301, unless the testimony
is corroborated by other evidence wh.ich
in itself and without the aid of the
testimony of the one responsible or
legally accountable for the same offense
tends to connect the defendant with the
commission of the offense. The
corroboration is not sufficient if it
merely shows the commission of the
offense or the circumstances thereof.
Section 45-2-302(3), MCA, defines the elements of being
an accomplice that could apply in this case. One is legally
accountable for another's conduct if "[elither before or
during the commission of an offense with the purpose to
promote or facilitate such commission, he solicits, aids,
abets, agrees, or attempts to aid such other person in the
planning or commission of the offense." Morse contends that
in Marchington's own testimony he admitted that he and Morse
discussed the proposed criminal activity, and Marchington did
not advise the authorities.
Q. When Morse asked you if you were
interested in this--still interested in
this activity about a month after you
talked to Sparhawk, did you tell Sparhawk
about that conversation?
A. No.
R. Why not?
A. I was interested in getting some
money in my pocket.
This statement, Morse argues, shows that Marchington
should be accountable for Morse's actions as an accomplice
because he was aiding Morse. When this statement was ma.de,
Marchington was still unaware of what criminal activity was
involved. The referenced testimony occurred approximately
June of the summer of 1985. It was not until August or
September of 1985 that Marchington began driving Morse to
Great Falls for surveillance of Dr. McGregor and it was not
until later in the fall that he realized what crime was to be
committed.
Q. Prior to your first trip to Great
Falls, did you have any more discussion
about what this criminal activity would
be?
A. No, not until after the first trip.
Q. Okay. Do you recall about when the
first trip to Great Falls was?
A. Late summer or early fall. August,
September, somewhere in there.
Q. During this period of time prior to
October 15th when you were to see
Sparhawk again, were you ever given any
more details of what the criminal
activity was supposed to entail?
A. Yes.
Q. Was that on one occasion or on more
than one occasion?
A. A little bit here and there.
Q. Bits and pieces?
A. Bits and pieces.
Q. Do you recall the next thing you
heard about the activity?
A. That he was going to pick up Dr. John
and/or his wife.
Q. Did he give you anything more than
"Dr. John1'
?
A. That and the address where they
lived. He had me go past the doctor's
house.
Q. Okay. When did you first discuss
with Morse what specifically you were to
do with Dr. John?
A. Morse went--started going into detail
on one trip back to Billings here.
Q. Do you recall about when that trip
was or which trip it was?
A. I am not positive when it was . . .
Although the testimony shows that the exact time period
is unclear as to when Marchington finally determined that the
crime of kidnapping was going to occur, it is clear the
knowledge was obtained much later than June when he made the
damaging statement on which Morse relies. Marchington
contacted Sparhawk and informed him of Morse's plan on
October 15, 1985.
Section 45-2-302, MCA, has an exception to subsection
(3) that aids in determination of this case which states:
[Hlowever, -- person - - - accountable
a is not so
if:
-
(b) before the commission of the
offense, he terminates his effort to
promote or facilitate such commission and
does one of the following:
(ii) gives timely warning - - proper
to the
law enforcement authorities . . .
(Emphasis added. 1
Marchington did indeed give notice to Officer Sparhawk and as
a result, the actual commission of the crime did not occur.
A plain reading of this statute shows Marchington is not
accountable for any crime. He was not an accomplice to the
offense of solicitation.
The law regarding accountability on the part of an
accomplice is well settled. Section 45-2-302, MCA, has been
interpreted by this Court and from the testimony presented at
the District Court, we can find no accountability on the part
of Marchington for the crime of solicitation:
[Accountability] has been the subject of
much attention in case law. We have
emphasized that mere presence at the
scene of a crime is not enough to charge
one as an accomplice. State v. Fish
(Mont. 1980), 621 P.2d 1072, 1078, 37
St.Rep. 2065, 2071; State ex rel. Murphy
v. McKinnon (1976), 171 Mont. 120, 125,
556 P.2d 906, 909. Moreover, the mere
knowledge that a crime is about to be
committed does not make one an
accomplice. State v. Harvey (1979), 184
Mont. 423, 431, 603 P.2d 661, 666; State
v. Mercer (1943), 114 Mont. 142, 152, 133
P.2d 358, 361. A true accomplice is:
"'one who knowingly, voluntarily and with
common intent with the principal offender
unites in the commission of a crime
... One may become an accomplice by
being present and joining in the criminal
act, by aiding and abetting another in
its commission, or not being present, by
advising and encouraging its commission;
but knowledge and voluntary actions are
essential in order to impute guilt. ' "
(Citations omitted.)
State v. Nordahl (Mont. 1984), 679 P.2d 241, 243, 41 St.Rep.
Marchington did not have the common intent to commit
the crime of solicitation. His testimony shows that it was
only after he received "bits and pieces" of information that
he fully understood what Morse planned to do. Once the
entire plot was understood by Marchington, he informed
Sparhawk and therefore the exception of S 45-2-302(3), MCA,
is applicable. At any rate, Marchington could not be
accountable for the crime of solicitation of which Morse was
convicted.
Counsel for Morse did make a motion in limine to have
the court rule that Marchington was an
accomplice/coconspirator and to therefore limit his testimony
until corroborating evidence was first presented. However,
the requirement of S 46-16-213, MCA, requiring corroborating
evidence is applicable only if Marchington was in fact an
accomplice or accountable for Morse's solicitation. The
District Court denied Morse's motion and stated it would not
require the State to present its case in a particular
fashion.
The State points to the fact that Morse was not
convicted of conspiracy (kidnapping), or conspiracy
(deliberate homicide) , as he was originally charged. Morse
- convicted of solicitation pursuant to cS. 45-4-101, MCA,
was
which provides:
(1) A person commits the offense of
solicitation when, with the purpose that
an offense be committed, he commands,
encourages, or facilitates the commission
of that offense.
Therefore, any claim relating to conspiracy is
irrelevant in this case. We are bound to determine the
merits of Morse's claim on the solicitation conviction only.
Solicitation is distinct from the crime of conspiracy.
Solicitation requires that the solicitor "attempt[s] to
enlist coconspirators" to commit a crime. Compiler's
Comments, Vol 5, MCA Annot. at 121, cS. 45-4-101, MCA. There
was never any allegation nor evidence presented that
Marchinqton attempted to persuade any other person to
facilitate any criminal activity. The jury's finding was
based on the solicitation of Marchington by Morse to
facilitate the crimes of kidnapping and deliberate homicide.
Nonetheless, the testimony of Marchington was
corroborated numerous times. " [TIhe corroboration is
sufficient if, 'unaided by the testimony of an accomplice, it
tends to connect the defendant with the commission of the
offense. ' " State v. Gonyea (Mont. 1987), 730 P.2d 424, 427
44 St.Rep. 39, 42. The officers investigating this case
testified that they followed Marchington and Morse from
Billings to Great Falls. The route chosen was exactly as
told to them by Marchington. Marchington and Morse were
observed driving by Dr. McGregor's house on a number of
occasions on October 22, 1 9 8 5 . The instruments, tools and
other objects the officers were told by Marchington were in
Morse's car were indeed found by i.nvestigating officers and
independently introduced into evidence. Evidence was also
presented that showed a new muffler was installed on Morse's
automobile in Great Falls during this period of time, and the
mechanic described Morse and Marchington together in that
vehicle. Newspapers were found in the back of Morse's
automobile with dates similar to the period of time in which
Marchington and Morse were to have made other trips to Great
Falls prior to October 15, 1 9 8 5 . Keys which opened the gates
onto the Mitchell. property, one of which had printed on it
"BBW--for Big Bend, the area where the McGregors were to be
executed--were found on Morse and identified by Harry
Mitchell.
All of this evidence tends to connect Morse with the
commission of the offense of sol.icitation without the
courtroom testimony by Marchington. This corroborating
evidence was all introduced and the jury needed only the
testimony of Marchington, who was not an accomplice, to find
the elements of the crime.
We recognize that this Court has previously stated that
when there are disputed facts as to whether a person is an
accomplice that the issue is one for the jury under proper
instruction. Gonyea, supra. 730 P.2d at 4 2 5 , 4 4 St.Rep. at
40. But in this instance, there was no disputed fact that
Marchington properly alerted the authorities and aided in the
prevention of a possible heinous crime. The District Court
therefore properly ruled as a matter of law that Marchington
was not an accomplice.
Morse also contends that the District Court erred in
admitting surveillance tapes into evidence of the trip from
Billings on October 22 and 23, 1985. The District Court
acknowledged that much of the recorded conversation was
inaudible. However, the District Court allowed officer McKay
to act as an "oral transcriber," interpreting what was said
on the tapes and what occurred while the statements were
made.
The policy behind the use of transmitters on informants
was enunciated in State v. Hanley (1980), 186 Mont. 410, 608
P.2d 104, a case involving the recording of a drug
transaction by an informant:
The general rule is that it is
impermissible for police officers to
intercept, transmit or record private
conversations; however, if one of the
parties to the conversation consents,
even an informer, such actions are legal.
People v. Patrick (1973), 46 Mich.App.
678, 208 N.W.2d 604; United States v.
Mendoza (U.S.C.A. 5th, 1978), 574 F.2d
1373, rehearing denied 579 F.2d 644.
This is true as long as the will of the
consenting party has not been subjected
to overbearing pressure from the
authorities.
Hanely, 186 Mont at 419, 608 P.2d at 109.
We have previously held that the use of tape recordings
is acceptable and is a question left to the discretion of the
trial court. State v. Bassett (1980), 189 Mont. 28, 614 P.2d
1054; Hanley, supra; and State v. Brubaker (1979), 184 Mont.
294, 602 P.2d 974. In Bassett, we stated:
The recordings of conversations monitored
with the consent of one of the
conversants and with judicial authority
are not subject to suppression. See
State v. Hanley, supra. Further, as we
noted in State v. Brubaker (1979), Mont.,
602 P.2d 974, 36 St-Rep. 1915, tape
recorded statements may be considered
direct evidence or corroborative evidence
and are subject to the same test for
admissibility as the direct evidence of
eyewitnesses or the testimony of
witnesses to oral statements. - The
question - admissibility ----n d o f
of of this k i
evidence is a matter - - sound
for the
discretionof t n trial judge. (Emphasis
7-
ie
added. )
Bassett, supra, 189 Mont. at 32-33, 602 P.2d at 1056.
Under the facts of this case, Marchington was a willing
participant in the tape recording. There was no allegation
of overbearing pressure ever made. Morse did not object to
the tapes on any ground other than that they were of poor
quality and inaudible and he argued it was unfair prejudice
to allow McKay to interpret them. Morse cites United States
v. Frazier (2nd. Cir. 1973), 479 F.2d 983, as controlling
because of the possible inference the jury could make from
unintelligible recordings and due to the substantial impact
that an inaudible recording may have on the jury. The
Frazier case involved a tape which was found by the trial
judge to be "75% unintelligible. " The tape was made by the
appellant who was later convicted without the use of the
tape. The court initially refused to allow appellant's
counsel to introduce the tape because of its poor quality.
The court later ruled the tape would be allowed if
accompanied by an explanation by the judge that he considered
the majority of the tape inaudible and that counsel had
failed to provide the court with a transcript of the recorded
conversation. Frazier, supra, 479 F.2d at 985. The attorney
for the appellant decided not to use the tape under these
conditions but it is noted that the tape was still made
available.
In the case at bar, the District Court allowed the use
of the tape and testimony of McKay but included a specific
instruction to the jury which stated:
Tape recordings of conversations
identified by witnesses have been
received in evidence. An interpretation
was furnished by Agent McKay for your
guidance as you listened to the tapes,
clarifying portions of the tapes which
were difficult to hear and identifying
speakers. The tapes, however, are
evidence in the case and interpretation
of those tapes by Agent McKay is not
evidence. If you perceive any variation
you will be guided solely by the tapes
and not by Agent McKayls interpretation.
If you cannot determine from the tape
that particular words were spoken you
must disregard the interpretation insofar
as those words are concerned.
We find this instruction proper.
Frazier further supports Brubaker, Hanley and Bassett
in that the Frazier court noted that "[a] trial judge has
wide discretion in determining whether to allow a recording
to be played before the jury when there is a serious question
of its audibility." Frazier, supra, 479 F.2d at 985,
Additional authority is found in United States v. Jones
(10th Cir. 1976), 540 F.2d 456, cert. denied, 429 U.S. 1011,
where poor quality tapes were played to the jury while an
informer testified as to what was said. The appellate court
held the trial court had not abused its discretion:
Where a tape recording is objected to as
unintelligible or inaudible its
admissibility is within the sound
discretion of the trial judge. United
States v. Hodges, 480 F.2d 229, 233-34
(10th Cir. ) . Unless the unintelligible
portions are so substantial as to render
the recording as a whole untrustworthy,
it may be admitted; this is especially so
where a witness who heard the statements
also testifies and the recording gives
independent support to his testimony.
Jones, supra, 540 F. 2d at 470. The District Court properly
allowed McKay to interpret the tape in this case.
Finally, Morse contends he was prejudiced by the
District Court allowing the jury to take the tape recordings
into deliberations. The District Court denied a motion for
mistrial on the grounds that the jury had already heard the
testimony and tapes. This again is subject to the discretion
of the court. Section 46-16-504, MCA, states:
Upon retiring for deliberation, the jury
may take with them all papers which have
been received as evidence in the cause,
except depositions or copies of such
papers as ought not, in the opinion of
the court, to be taken from the person
having them in his possession. - jury
The
also take with them any exhibits
may----
which the court may deem proper and notes
of the proceedings taken by themselves.
(Emphasis added.)
The tapes had been admitted into evidence by the
District Court and the jury was properly instructed as to the
weight to give the tapes. Those portions the jury could not
understand were to be disregarded entirely. Just as with
papers which have been properly admitted into evidence that
are allowed in the jury room during deliberations, the tapes
were evidence which at the discretion of the court could be
allowed. We do not find abuse of discretion by the court.
The conviction is affirmed.
We concur: