State v. Bell

No. 85-509

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

1.987

STP.TE O MONTANA,
F

P l a i n t i f f and Responden-t,

-vs-

ROGER LUKE BELL,

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 T h i r t e e n 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 County o f Y e l l o w s t o n e ,
The Honorable R o b e r t Holmstrom, J u d g e p r e s i d i n g .

COUNSEL O RECORD:
F

For Appellant:

A l l e n Beck a r g u e d , B i l l i n g s , 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
B a r b a r a C l a a s s e n a r g u e d , A s s t . A t t y . G e n e r a l , Helena
H a r o l d H a n s e r , County A t t o r n e y , B i l l i n g s , Montana

S u b m i t t e d : S e p t e m b e r 1 2 , 1986

Decided: January 9 , 1 9 8 7

Filed: \
,
I jiij y . 287
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
Roger Luke Bell, defendant and appellant, was charged
by information filed on June 28, 1984, in the District Court
of the Thirteenth Judicial District, Yellowstone County, with
two counts of deliberate homicide. The information alleged
that Bel.1 purposely or knowingly killed Linfred Cattnach and
James McBri.de. Upon a plea of not guilty, trial began on
February 1.1, 1985. After extended deliberations, the jury
returned. a verdict of guilty on both counts. Bell was sen-
tenced to two 100-year sentences for the homicides. The
court also designated him as a dangerous offender and gave
him an additional ten years on each count. Bell appeals from
the verdict and sentence. We affirm.
On June 22, 1984, two men, Linfred Cattnach and James
McErid-e, were found dead. in an alley behind a building locat-
ed in Billings, Montana. The Billings Police Department was
contacted the morning of June 22 by an individual who report-
ed that two men were dead in an alley. Upon investigation,
police officers discovered the bodies behind stacks of large
tires located near the wall of a building. An autopsy re-
vealed that both men had sustained multiple stab wounds to
their chests and each man's throat had been se~rexe1.y cut.
During the evening of June 21, 1984, Bell and John
Marshall began walking the streets of Billings drinking wine.
Eventually they walked into an alley which had large tires
stacked up near the wall of a building. Cattnach and McBride
were sleeping in that alley behind the tires. Sam Lionshows
was also sleeping in the same area. 1,ionshows testified that
he woke up when Bell jerked his blanket off of him. Bell was
holding a knife, and he told Lionshows to leave. Llionshows
got up, rolled up his bedroll, and then left.
After Lionshows had left, Bell and Marshall walked
about a block away from the tires and sat on a cement slab
behind a building. They finished drinking the bottle of wine
they had. Marshall testified that Bell then said that he was
going to make a "statement" about white guys coming across
the tracks. He took off his shoes and started walking across
the tracks in the direction of the alley where the tires
were. Marshall followed him to that alley. He testified
that Bell. went behind the tires where McBride and Cattnach
were sleeping, and he saw Bell bent over. He then saw Bell
moving his arm up and down and heard a gurgling noise.
Because he had seen Bell with a knife earlier thzt night, he
believed that Re11 was stabbing the two men. Marshall felt
sick, so he went back to the cement slab where he and Re11
had been drinking earlier.
A short time later, Bell returned to the cement slab
where Marshall was sitting. Bell stated that he had enough
money for a jug. Marshall testified that Bell took off his
socks and put his shoes back on. He noticed that Bell's
white socks were stained. As they began to leave, Bell
washed blood off of his hands with water from a plastic
bottle he had.
Richard Anderson and Sam Lionshows found Cattnach and
McRride the morning of June 22. Anderson testified that they
went to the men to get some money for a bottle of wine.
After finding the two men, they notified the police of the
apparent murders.
Sometime later that same day, Marshall spoke with
Detective Waters of the Billings Police Department in the
parking lot of the Arcade Bar. Waters was questioning people
about the killings. Marshall took Waters and other officers
to the alley where the men were killed and to the slab where
he and Bell had sat the night before. At the slab, Marshall
pointed out the white socks that Bell had been wearing.
Bell was arrested on June 23, 1984. He gave a state-
ment to the police the following day wherein he denied any
knowledge of the killings. The trial began on February 11,
1985. After extensive deliberations, the jury found Bell
guilty of the murders of Cattnach and McBride. Other facts
will be brought out where necessary to the discussion.
Appellant has raised six issues on appeal:
1. Was appellant denied due process of law under the
Fourteenth Amendment and the right of confrontation under
Article 11, Sec. 24, 1972 Mont. Const., by the court's refus-
al to all-ow him to introduce character evidence and evidence
of prior acts of Sam Lionshows and John Marshall-?
2. Did the District Court err by allowing the testimo-
ny of Detective Hinkel regarding statements made to him by
Leland Lockwood?
3. Was appellant prejudiced by an improper view of the
scene of the crime by certain members of the jury?
4. is the verdict supported by substantial credible
evidence?
5. Did the District Court commit error by giving the
jury an additional instruction during deliberations?
6. Was appellant properly designated a dangerous
offender under 5 46-18-404, MCA?
 During the cross-examinations of Marshall and
Lionshows, appellant attempted to question them regarding
their propensity for violence, use of drugs and past acts of
violent behavior for the expressed purpose of demonstrating
that it was those two who committed the murders rather than
a.ppellant. However, the court sustained an objection by th.e
State to this line of questioning. Appellant contends that
this ruling denied him his constitutional right to confront
the witnesses against him and his right to due process of

This Court has not been confronted previously with the
argument being raised by appellant; i.e., whether a defendant
may properly assert as a defense the allegation that another
person committed the crime for which he is accused. Our
statutes do not address this issue either. Others states
facing this question, however, have allowed a defendant to
present evidence showing that a person other than the defen-
d-ant committed the crime. See, e.g., State v. ~amlette (N.C.
1981), 276 S.E.2d 338; State v. Smith (Mo. 19641, 377 S.~.2d
241. Whether a defendant should be allowed to assert such a
defense, and if so, what would be the parameters of accept-
able proof under that defense, is an issue which is not ripe
for decision at this time.
Rule 103, M.R.Evid., provides:
(a) Effect of erroneous ruling. Error
may not be predicated upon a ruling
which admits or excludes evidence unless
a substantial right of the party is
affected, and
(2) Offer of proof. In case the ruling
is one excluding evidence, the substance
of the evidence was made known to the
court by offer or was apparent from the
 context within which questions were
asked.
At no time during the trial did appellant. make an offer
of proof of facts pointing directly to the gui1.t of Marshall
and Lionshows. Even on appeal, he has not pointed to any
specific facts indicating that they committed the crimes.
Rather, he has merely attempted to show that they have vio-
lent dispositions an.d use drugs, but even these assertions
are unsupported. Without any other facts connecting Marshall
an.d Lionshows to the murders of Cattnach and McBride, these
contentions are irrelevant. Therefore, because no proper
offer of proof was made, appellant cannot claim as error the
court's ruling sustaining the State's objection.

11
Appellant contends that the court erred in allowing
Officer Hinkel to testify to statements made to him by Leland
Lockwood. He argues that because Lockwood had no memory of
his conversation with Hinkel, he was denied his right of
effective cross-examination. He contends further that
Lockwood's prior inconsistent statement should not have been
admitted as substantive evidence because there was no assur-
ance of trustworthiness of the statement.
Ini.tially, appellant's first assertion is flawed be-
cause it is unsupported by the facts. The State called
IJockwood in its case-in-chief. On direct examination, it
asked Lockwood whether he knew Bell and whether he had talked
to police officers at the Billings Police Department concern-
ing statements made to him by Bell. In response to these
questions, Lockwood unequivocally declared that he did not,
know Bell, had not talked to him at anytime, and did not talk
to any police officer about Bell. Thus, contrary to appel-
lant's contention, Lockwood did not profess an inability to
remember whether or not he talked to police officers. Appel-
lant's contention on this point is wholly without merit.
We now proceed to determine whether Lockwood's prior
inconsistent statement can be used as substantive evidence.
After Lockwood had denied talking to Officer Hinkel, the
State called Offi'cer Hinkel to testify to the substance of
Lockwood's prior statement to him. He testified that
Lockwood spoke with him on June 23 about the homicides.
Lockwood told. Hinkel that he talked with Bell on the morning
of the 22nd, and Bell told him that Bell had hurt someone
real ba.d. Lockwood asked Bell where he had hurt someone, and
Bell told him that it was down by the tires.
First, we must determine whether Hinkel's testimony is
inadmissible hearsay under our rules of evidence. Hinkel
testified to a statement made to him by Lockwood which, in
turn, was made to Lockwood by appellant. The substance of
appellant's sta-tement to Lockwood as related by Hinkel is
clearly admissible under Rule 801 (d)(2), E4.R.Evid. Appel-
lant's statement to Lockwood to the effect that he hurt
someone real bad down by the tires is an admission by a
party-opponent and is not hearsa.~. Likewise, Lockwood's
statement to Hinkel is admissible under Rule 801 (d)( I ) ,
M.R.Evid., as a prior statement by a witness. That section
provides :
(d) Statements which are not hearsay. A
statement is not hearsay if:
. .. The declarant testifies at the
trial. or hearing and is subject to
cross-examination concerning the state-
ment, and the statement is (A) inconsis-
tent with his testimony ...
 Lockwood was the declarant. He testified at the trial
and was cross-examined concerning the prior statement to
Hinkel. The statement he gave to Hinkel was inconsistent
with his testimony at trial. Therefore, Lockwood's statement
to Hinkel was not hearsay, and the latter was properly a.1.-
lowed to testify a.s to its substance at trial.
This same result was reached in a case very simil-ar to
the one at bar. In State v. Dolan (Mont. 1980), 620 P.2d
355, 37 St.Rep. 1.860, the defendant was accused. of robbing a
truck stop at gun point. A few days after the holdup, defen-
dant allegedly told one Steele that the Canadian money he had
was part of the money he got from the robbery. At trial,
Steele could not remember whether defendant told him, "I got
the money from the Crossroads," or "I robbed the Crossroads."
Later, Detective Warrington testified that Steele told him
that defendant said, "I held up the Crossroa.ds." This Court

This evidence is not hearsay .. . The
statement made by defendant to Steele is
an admission by a party opponent to the
action. The statement made by Steele to
Warrington is a prior statement of the
witness Steele.
Dolan, 620 P.2d at 358-359. See also State v. Fitzpatrick
(1980), 186 Mont. 187, 606 P . 2 6 1343.
A further issue that arises in allowing Lockwood's
prior inconsistent statement to be used as substantive evi-
dence is whether such use violates the confrontation clauses
of the Montana and United States Constitutions.
The Sixth Amendment provides that "[iln all criminal
prosecutions, the accused shall enjoy the right ... to be
confronted with the witnesses against him . . ." The Montana
Constitution, in substantially similar language, grants the
same right. The primary purpose behind both of these provi-
sions was to prevent an accused from being convicted solely
on the basis of ex parte affidavits or depositions. See
Mattox v. United States (1895), 156 U.S. 237, 15 S.Ct. 337,
39 L.Ed. 409. It was originally believed and it still is
that the best method for obtaining the truth is to have the
witness testify under oath at trial and be subjected to
cross-examination under the scrutiny of the jury. It is only
in this manner that a jury can assess the credibility of a
declarant and measure the believability of his statements.
Consequently, "it is this literal right to 'confront' the
witness at the time of trial that forms the core of the
values furthered by the Confrontation Clause." California v.
Green (1970), 399 U.S. 149, 157, 90 S.Ct. 1930, 1934-1935, 26
L.Ed.2d 489, 496.
Where a declarant testifies at trial and either affirms
the prior inconsistent statement as his and now gives a new
story or denies that he ever made such a statement, the jury
has before it two conflicting statements from the same de-
clarant. The defendant has the opportunity to cross-examine
the declarant and have him explain why he is giving a state-
ment inconsistent with his prior one. Under such intense
cross-examination, literally confrontation, of the witness,
the jury has a sufficient basis to test the truth of the
prior and present statements of the declarant. It may choose
to believe the prior statement or the statement given at
trial, or it may give little weight to either statement.
Thus, the defendant's right to confront the witness against
him has not been abridged.
The United States Supreme Court adopted this view
almost twenty years ago in California v. Green, supra.
There, one Melvin Porter was arrested for selling marijuana,
and he named Green as his supplier. However, at trial,
Porter claimed that he was uncertain whether or not Green had
been his supplier. The State then called Officer Wade who
testified that Porter had named Green as his supplier in an
earlier statement to Wade. This testimony was admitted as
substantive evidence. The Court held:
For where the declarant is not absent,
but is present to testify and to submit
to cross-examination, our cases, if
anything, support the conclusion that
the admission of his out-of-court state-
ments does not create a confrontation
problem.
Green, 399 U.S. at 162. See also, Nelson v. 0'~eil (19711,
402 U.S. 622, 91 S.Ct. 1723, 29 L.Ed.2d 222. We hold that
Lockwood's prior inconsistent statement was properly admitted
as substantive evidence.
Finally, we address briefly appellant's contention that
prior inconsistent statements can be admitted only when they
have an assurance of trustworthiness even where the declarant
testifies at trial. Appellant does not cite any authority to
support this novel argument, and we have not found any.
Concerns with the reliability of a statement normally arise
only when the declarant is unavailable to testify at trial.
There is no need for a statement to possess a certain "indi-
cia of reliability" in order to be admitted into evidence
when the declarant testifies at trial and is subject to full
and effective cross-examination. As the Court explained in
Ohio v. Roberts (1980), 448 U.S. 56, 66, 100 S.Ct. 2531,

In sum, when a hearsay declarant is -not
present for cross-examination at trial,
the Confrontation Clause normally re-
quires a showing that he is unavailable.
Even then, his statement is admissible
 on1.y if it bears adequate "indicia of
reliability. " [Emphasis added. 1
Therefore, because Lockwood testified at trial, it was
unnecessary for the court to weigh his prior statement for a
certain measure of reliability.

111

After the jury had begun deliberations, the bailiff
informed the court that some of the jurors may have visited
the scene of the crime. However, within an hour of being
informed, and before the court could take any action on the
matter, the jury reached its verdict. Subsequently, the
court questioned each juror under oath to discover what had
occurred. The court discovered that two of the jurors went
to the scene of the crime during the trial and discussed
their observations with the jury during deliberations.
Appellant contends that this unauthorized view constitutes
reversible error and prejudiced him because the amount of
light available in the alley and the angle of view of Mar-
shall were essential facts in the case.
There is no question that the unauthorized view by the
two jurors constituted misconduct. Section 46-16-502, MCA,
provides that the jury may view the scene only upon order of
the court. Moreover, it is universally held throughout the
country that unauthorized views by one or more jurors consti-
tutes misconduct. However, unlike the rule in most states
which places the burden on the defendant to show that he was
materially prejudiced by an unauthorized view, the rule in
Montana has been to presume that the defendant was preju-
diced. See 58 A.L.R.2d 11.47, 1148. The burden is then placed
on the State to rebut that presumption. This standard was
announced in State v. Eagan (1978), 178 Mont. 67, 79, 582

It is the rule in thj-s state that if:
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.
Upon examination of the jurors, it was determined that
two jurors visited the scene. One of them went during a
lunch recess because he was curious. He stayed there about
one minute. Because he went during the day, he did not have
an opportunity to observe the lighting conditions. Further-
more, the investigating officers had moved a1.l of the tires
in the alley after taking pictures, so no comparj.sons could
he made between testimony and actual observation. The only
arguable issues relating to the scene were the lighting
conditions vis-a-vis Marshall's ability to see appellant and
the height of the staclcs of tires. Since this juror could
not observe either of these conditions, no prejudice to
appellant could have occurred.
However, the other juror visited the scene during the
evening and stayed about one and one-half minutes. This
juror did. observe the lighting conditions in the area, a]--
though he did not conduct any experiments or make any mea-
surements. Officer O'Rrien of the Billings Police Department
testified at the hearing on the matter that he visited the
scene during the trial a.nd during jury deliberations. He
also visited the scene the night after the crimes had oc-
curred. At that time, five lights in the area of the alley
were working, whereas during the trial, some of those lights
were not working. Thus, the lighting conditions during the
trial were worse than they were on the night the crimes
occurred.. Therefore, on the question of Marshall's percep-
tion, the juror's observations would have worked to appel-
lant's benefit because it was harder to see in the alley
during the trial than it was on the night of the crimes.
The District Court found that appellant was not preju-
diced by the improper view taken by the two jurors. We find
no error in this ruling. The State rebutted the presumption
of prejudice to appellant.
Before we proceed to the next issue, however, a comment
about the jury misconduct which occurred here is in order.
It cannot be emphasized enough that jurors should not visit
the scene of the crime except by order of the court. It is
the duty of the trial-judge to make sure such misconduct does
not occur. Judges should be ever vigilant in impressing upon
jurors their responsibility not to have unauthorized views of
the scene. In many cases, an improper view would be highly
prejudicial to a defendant and would merit a new trial.
Consequently, it is a foremost d.uty of the trial court to
impress upon jurors, backed up by the court's contempt power,
the rule that unauthorized views of the crime scene shall not
be allowed.

Appellant next raises the argument that the verdict is
not supported by substantial credible evidence. The applica-
ble standard on this issue was set forth in State v. Cornell
(Mont. 1986), 715 P.2d 446, 447, 43 St.Rep. 505, 506:
Substantial evidence is such relevant
evidence as a reasonable mind might
accept as adequate to support a
conclusion.
 The j u r y h e a r d t e s t i m o n y from John M a r s h a l l who t e s t i -

f i e d t o s e e i n g a p p e l l a n t b e n t o v e r t h e v i c t i m s making r e p e a t -

ed stabbing motions. Marshall also testified that when

a p p e l l a n t r e t u r n e d from t h e a l l e y , h i s s o c k s were s t a i n e d and

he washed b l o o d o f f h i s hands.

The jury a l s o heard testimony from FBI agent Joseph

E r r e r a r e g a r d i n g t e s t s he performed on B e l l ' s c l o t h i n g . He

t e s t i f i e d t h a t on t h e i t e m s o f c l o t h i n g t a k e n from B e l l t h e r e

were numerous s p o t s o f b l o o d and i t was p o s s i b l e t h a t McBride

o r C a t t n a c h were t h e s o u r c e . He a l s o performed t e s t s on t h e

s o c k s which were found i n t h e a r e a where M a r s h a l l and a p p e l -

lant had been d r i n k i n g wine. These were the socks that

a p p e l l a n t t o o k o f f a f t e r coming back from t h e a l l e y . Rlood

on one o f t h e s o c k s c o u l d have come from C a t t n a c h b u t c o u l d

n o t have come from a p p e l l a n t n o r McBride. Blood on t h e o t h e r

sock c o u l d have come from McBride o r a p p e l l a n t , h u t c o u l d n o t

have come from C a t t n a c h .

Appellant argues t h a t Marshall i s not a c r e d i b l e w i t -

ness. Th.e j u r y had an o p p o r t u n i t y t o o b s e r v e M a r s h a l l on

e x a m i n a t i o n and c r o s s - e x a m i n a t i o n and a p p a r e n t l y b e l i e v e d h i s

v e r s i o n o f what happened. Whether a w i t n e s s i s c r e d i b l e o r

not i s a matter sol-ely w i t h i n t h e province of t h e jury. It

i s n o t t h e d-uty o f t h i s C o u r t t o make a d e novo r e v i e w o f t h e

evidence; r a t h e r , w e must d e t e r m i n e o n l y whether s u b s t a n t i a l

evidence supports the verdict. In this case, reasona.ble

minds could have concluded that appellant committed the

c r i m e s w i t h which he was charged.

V

After t h e jury had been d e l i b e r a t i n g f o r over a day,

the foreman s e n t a n o t e t o t h e judge s t a t i n g t h a t t h e j u r y
was unable to reach a verdict. The court asked the foreman
if an additional instruction would be of any help in reaching
a verdict, and the foreman repl-ied that it mi9h.t; whereupon,
the court gave the jury the following instruction:
The judicia.1 process a.ssigns tasks to
the various units. It is the task of
the witnesses to testify truthfully as
they recall the facts. It is the task
of the lawyers to prepare the case for
final submission to the tryer [sic] of
facts, the jury. It is the task of the
judge to preside, instruct you as to the
law and to rule on the admissibility of
the evidence. It is the task of the
jury to decide the case. The ultimate
responsibil-ity of the jury is to render
a verdict in this cause. You are not
partisan nor are you advocates in this
matter, but you are the judges; you axe
the only judges of the facts; it is you
and you alone that can render a verdict
in this cause. There is no reason to
believe that any other 1 2 men and women
would possess anymore ability, intelli-
gence and courage to do the ultimate
task assigned to a jury under the Arneri-
can System of Justice.
The final test of the quality of your
service will be in the verdict which you
return to the Court. It is only b y
rendering a verdict in this cause that
you can make a definite contribution to
efficient judicial administration as you
arrive at j u s t verdict. --
I have never
asked, - - matter - -
as a of fact, I have
instructed vou. that vou shouid not
surrender your honest convictions - in
this matter - - - purpose of
for the mere
returnincr a, verdict. - or solely because
- -
- the
of - opin?lon of other jurors, but this
does not mean that you should avoid a
task assigned to you of rendering a
verdict of guilty or not guilty in this
cause.
After approximately eleven hours of further deliberations,
the jury reached. a verdict.
Appellant contends that the court erred in giving this
instruction because it was, in effect, a direction to the
jury to enter a finding of guilty or not guilty. This argu-
ment is completely without merit. As the emphasized portion
of the instruction shows, the court told the jurors not to
surrender their honest convictions in order to reach a ver-
dict. Furthermore, this instruction is a.I.most a verbatim
recital of the instruction given in State v. Cline (1976),
170 Mont. 520, 555 P.2d 724. The Court in that case approved
that instruction. Appellant has not provided any reason why
we should not continue to approve that instruction. No error
was committed on this point.

Appellant was designated a dangerous offender pursuant
to 5 46-18-404, MCA. He contends that this designation is
error because the court failed to articulate the reasons for
such finding in its judgment.
Section 46-18-404(3), MCA, provides:
If the court determines that an offender
is not eligible to he designated as a
nondangerous offender, it shall make
that determination a part of the sen-
tence imposed and shall state the deter-
mination in the judgment. ..
The court stated in its judgment and commitment that sentence
is imposed for the following reasons:
1. The Court carefully read and consid-
ered the presentence report and is aware
that defendant's prior history shows a
pattern of illegal activity including
numerous misdemeanor offenses and felony
convictions for Burglary and Criminal
Mischief.

3. The Court agrees with the statement
made by the County Attorney's office
that this was a very vicious crime.
4. The evidence which the jury consid-
ered and which this Court heard indi-
cates that the victims, who were stabbed
many times and their throats slashed at
a time when they were asleep, were
innocent of any provocation.
 6. Defendant's history and the facts of
the crimes for which he is today sen-
tenced establish that he does represent
a substantial danger to society.
Not only did the court adequately articulate its reasons for
finding appellant dangerous in its judgment, but also the
reasons stated are more than sufficient to designate appel-
lant as a dangerous offender. Appellant's contention on this
point is frivolous.
For the reasons stated above, the judgment is affirmed.

We concur: