NO. 92-591
IN THE SUPREME COURT OF THE STATE OF MONTANA
STATE OF MONTANA.
Plaintiff and Appellant,
-vs-
LARRY MOORE,
Defendant
APPEAL FROM: ~istrict Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Larry W. Moran, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Hon. Marc Racicot, Attorney General, Helena, Montana
Cregg W. Couqhlin, Assistant Attorney General,
Helena, Montana
Mike Salvagni, Gallatin County Attorney, Bozeman,
Montana
Mark Murphy, Special Deputy Gallatin County
Attorney, Helena, Montana
Robert Brown, Assistant Attorney General, Bozeman,
Montana
For Respondent:
Larry Jent, Williams, Jent & Dockins, Bozeman,
Montana
James H. Goetz and Brian Gallik, Goetz, Madden &
Dunn, Bozeman, Montana
Submitted on Briefs: August 6, 1992
~ ~ ~ i d ~ d :20, 1992
August
Filed:
Justice R. C. McDonough delivered the Opinion of the Court.
This is an appeal by the State of Montana from an order
granting a motion in limine in the Eighteenth Judicial District,
Gallatin County. We reverse.
The issues for review are:
1. Whether the District Court abused its discretion when it
suppressed evidence relating to the actions of the defendant after
the alleged shooting of Bradford Brisbin.
2. Whether the District Court abused its discretion when it
suppressed evidence of all testimony from the defendant's wife.
3. Whether the District Court abused its discretion when it
suppressed evidence of the witness Hoffman.
On December 17, 1990, defendant Larry Moore was charged by an
information with Count I, deliberate homicide in the death of
Bradford Brisbin (Brisbin), in violation of 5 45-5-102(1)(a), MCA.
Defendant was also charged in Counts 11 and 111 of the information
with tampering with or fabricating physical evidence, in violation
of 5 5 45-7-206(1) (a), and 45-7-207 (1)(b), MCA, respectively. On
September 30, 1991, pursuant to a motion by the defendant, the
District Court, on the grounds of prejudice, granted the
defendant's motion to severe Counts I1 and 111, tampering with or
fabricating physical evidence, fromthe deliberate homicide charge.
This order was not appealed.
In our subsequent discussion relative to the offers of proof
and rulings of the District Court, we only consider the principle
of evidence and whether the offered evidence generally comes within
such principle. We do not, and we cannot, make a definitive
decision as to the admissibility of particular pieces of evidence.
At this stage we have no way of ascertaining if compliance with
other rules of evidence, such as having a proper foundation,
relevancy, opinion, hearsay, authenticism, etc., has been met.
Only some of the facts pertaining to each issue will be more fully
developed as each issue is discussed. The State's appeal is
timely.
I
Whether the District Court abused its discretion when it
suppressed evidence relating to the actions of the defendant after
the shooting of Brisbin.
On the morning of November 9, 1990, Brisbin received a
telephone call from the defendant. Defendant told Brisbin he had
sold his pickup and camper and needed a ride back to West
Yellowstone from Belgrade. Brisbin then drove his pickup to Bairs
Truck Stop in Belgrade and met the defendant. From there on the
stories vary, one version being that Brisbin left the truck stop
restaurant to go to the restroom, did not return, and disappeared.
Neither he nor his body have yet been found. The State's case is
based on circumstantial evidence.
The State proposed that certain evidence be admitted at trial
which is evidence of defendant's consciousness of guilt and is part
of the res gestae or corpus delicti of the crime charged. In the
offer of proof, supported by affidavits, the State offered the
following: Officer Brown saw the defendant in his camper on the
evening of Brisbin's disappearance. When Moore saw Officer Brown,
he turned out the lights in the camper in an attempt not to be
seen. A couple days later Officers Brown and Pronovost approached
Moore who was working on the camper which was then attached to his
pickup and parked in front of the West Gate Enterprise Machine
Shop, a business owned by the defendant. Moore was using a tar
like substance, which he told the officers he was using to patch
water leaks in the camper. The above evidence was excluded.
Other proffered evidence was that Moore purchased the camper
from Dave Barstead in the spring or summer of 1990 and Barstead
claims that the floor of the camper was covered by brown carpet at
the time of sale. Moore's employee, Norman Hanna, who installed
the camper on Moore's pickup, claimed that there was a brown carpet
covering the camper floor during its installation. There was no
brown carpet in the camper after the alleged crime. The court
excluded this evidence. Later a 12-volt automobile battery was
found inside the camper. The caps to the battery had been removed
and battery acid spilled on the floor. This evidence was excluded.
Other excluded evidence is that when Officer Pearson, looking
for the camper, found it next to the Jack residence in southern
Madison County, the camper had been taken off the truck. Officer
Pearson also noticed fresh footprints leading to the camper.
Further, Officer Christie also found three bullet holes inside
Moore's camper that had been covered with tar. A piece of paneling
had also been cut out of the camper and replaced with other
paneling which did not match the original paneling. This evidence
was excluded. Officer Christie also found a bullet under the floor
of the camper. A reddish substance was on the bullet, which the
State Crime Laboratory determined was blood.
Samples of the camper floor containing the reddish liquid were
analyzed by the State Crime Lab and were found to be consistent
with sulfuric acid, the acid contained in car batteries. This
evidence was excluded, as was other similar evidence.
In essence the evidence offered was in support of the State's
position that defendant cleaned blood from the camper, discarded
bullets and carpet, covered and repaired bullet holes, spilled
battery acid and inferring therefrom that the battery acid was used
to cover or clean some material. The defendant argues that the
admission of this evidence which also tends to prove elements of
the crime of tampering or fabrication, amounts to the admission of
evidence of another crime. Applying subdivision (4) of the Just
Rule, it would be prejudicial to admit this evidence relative to
the proof of the crime of deliberate homicide. See State v. Just
(1979), 184 Mont. 262, 602 P.2d 957.
The District Court opined that the ruling of prejudice as the
reason for separating the charges on September 30, 1991, had the
effect of also rendering this evidence inadmissible on the charge
of deliberate homicide because of its potential of prejudice. The
State's position is, however, that the evidence is admissible under
Montana law as evidence of Moore's consciousness of guilt and as
part of the res gestae or corpus delicti of the crime charged.
It should be first noted that the admissibility test and the
procedural requirements of State v. Just (1979), 184 Mont. 262, 602
P.2d 957, do not apply to evidence establishing consciousness of
guilt regarding the crime with which the defendant is charged. See
State v. Baker (1989), 237 Mont. 140, 773 P.2d 1194; State v. Shaw
(1982), 199 Mont. 248, 648 P.2d 287; State v. Trombley (1980), 190
Mont. 218, 620 P.2d 367. We have said numerous times that
testimony showing or tending to show flight or concealment by the
defendant may be taken into consideration by a jury in determining
whether the defendant is guilty of the offense charged. For
example see State v. Paisley (1907), 36 Mont. 237, 92 P. 566.
Flight or concealment may be considered by the jury as a
circumstance tending to prove the consciousness of guilt. State v.
Walker (1966), 148 Mont. 216, 419 P.2d 300
In the case of State v. Armstrong (1980), 189 Mont. 407, 616
P.2d 341, we stated:
[Elvidence tended to show the destruction or suppression
of evidence by Armstrong and tended to show his guilt and
was therefore relevant and clearly admissible. If
evidence tends to prove the commission of the crime
charged it is not rendered inadmissible because it also
tends to prove the commission of another crime. The test
is whether the evidence is relevant as tending to prove
any facts material to an issue in a cause before the
court. State v. Cesar (1925), 72 Mont. 252, 255, 231 P.
1109.
The evidence is relevant because it tends to show consciousness of
guilt and therefore tends to prove the commission of the crime
charged and the defendant ' s responsibility for it. Rule 404 (b),
M.R.Evid., as to other crimes, does not apply.
The alleged acts of the defendant occurring after the alleged
crime was committed are also inseparably related to the alleged
criminal act, as part of the res gestae or corpus delicti of the
crime, and therefore are not subject to the restriction of "other
crimesM evidence. The acts subsequent to the crime to be
introduced here tend to prove the circumstance of the defendant's
intent and the element of nknowinglylt
and therefore are intertwined
with the evidence of the proof of the crime itself. As stated by
the case of Cruz v. state, 645 S.W.2d 498 (Tex.Ct.App. l982),
admissibility is predicated on the jury's right to hear what
transgressed immediately prior and subsequent to the commission of
the offense charged, so that they may evaluate the evidence in the
context in which the criminal act occurred. Acts of a defendant
subsequent to the alleged commission of the crime, and intertwined
therewith, are highly probative.
We therefore conclude that the District Court abused its
discretion in excluding acts of the defendant subsequent to the
alleged commission of the crime which tend to show the
consciousness of his guilt or are a part of the res gestae and
corpus delicti of the crime charged.
I1
Whether the ~istrict Court abused its discretion when it
suppressed evidence of all testimony from the defendantfs wife.
One of the District Court's reasons for suppressing all the
testimony of the defendant's wife, was that such witness was
incompetent under 5 46-16-212, MCA, as it read at the time of the
alleged crime.
Prior to October 1, 1991, 46-16-212, MCA, provided as
follows:
Except with the consent of both, or in cases of criminal
violence by one upon the other, abandonment or neglect of
children by either party, or abandonment or neglect of
one by the other, neither spouse is a competent witness
for or against the other in a criminal action or
proceeding to which one or both are parties.
Relative to the competency of a spouse, the statute was amended
effective October 1, 1991, to read as follows:
(1) Neither spouse may testify to the communications
or conversations between spouses that occurs duringtheir
marriage unless:
(a) consent of the defendant-spouse is obtained;
(b) the defendant-spouse has been charged with an
act of criminal violence against the other; or
(c) the defendant-spouse has been charged with
abuse, abandonment, or neglect of the other spouse or
either spouse's children.
(2) Except as provided in subsection (I), a spouse
is a competent witness for or against the other spouse.
It is evident that when the alleged crime was committed,
which was prior to October 1, 1991, the statute relative to the
competency of a spouse to testify in criminal proceedings for or
against his or her spouse, is different than the wording of the
statute at the time of trial. It raises the question of whether
this change in the statute is procedural or substantive. The
statute is procedural. Therefore the statute in effect at the time
of trial governs. See Wolfe v. Webb (1992), 824 P.2d 240, 49
St.Rep. 1.
We conclude that testimony by the wife Michelle Moore, if it
meets other rules of evidence, is not to be excluded on the grounds
of her competency as a witness, unless it is testimony of
communications and conversation between the spouses during their
marriage.
I11
Whether the District Court abused its discretion when it
suppressed testimony of witness Hoffman which the District Court
has ordered to be under seal and therefore it will not be recited
here.
The offeredtestimony clearly reveals Moore's possible motive.
Evidence of a person's motive in the prosecution of a homicide is
admissible.
We therefore conclude that the District Court was in error and
abused its discretion.
We reverse the District Court and remand for further
proceedings in conformance to this opinion.
We Concur:
@p-
August 20, 1992
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
Hon. Marc Racicot, Attorney General
Cregg Coughlin, Assistant
Justice Bldg.
Helena, MT 59620
A. Michael Salvagni
County Attorney
615 S. 16th St.
Bozeman, MT 59715
Larry Jent
Williams, Jent & Dockins
506 E. Babcock
Bozeman, MT 59715
James H. Goetz and Brian K. Gallik
Eoetz, Madden & Dunn
35 N. Grand
Bozeman, MT 59715
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA