No. 90-448
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
JANICE McCORD,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable G. Todd Baugh, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Gary E. Wilcox argued, Billings, Montana
For Respondent:
Hon. Marc Racicot, Attorney General; Kathy Seeley
argued, Assistant, Helena, Montana
Dennis Paxinos, County Attorney; Curtis Bevolden,
Deputy, ~illings, Montana
Submitted: November 5, 1991
Decided: January 1 6 , 1992
Filed:
< . .
Clerk
~usticeFred J. Weber delivered the Opinion of the Court.
A jury from the Thirteenth Judicial District Court,
Yellowstone County, convicted y an ice McCord, the defendant, of
conspiracy to commit deliberate homicide in violation of 5 45-4-
102, MCA. Defendant appeals. We affirm.
Defendant raises the following issues for review:
(1) Did the District Court violate hearsay rules and
defendant's right to confrontation by admitting testimony of Alan
Foster's (Foster's) statements where Foster was not available to
testify?
(2) Did the State's delay in processing swab tests constitute
negligent suppression of exculpatory evidence, violate due process
and require dismissal of the case?
On December 26, 1987, Russell McCord died of a gunshot wound
through the temple. Defendant, the wife of Russell McCord,
testified that she and Foster found her husband in his bed, covered
with blood. Investigators did not find the murder weapon. The
investigators found no signs of forced entry or theft of property
at the residence. The wound was consistent with the caliber of a
silver derringer owned by the decedent and formerly stored in the
family safe at the McCord residence. That derringer was never
located.
Defendant called 911 from their home. Emergency personnel
testified that she told them that her husband was being medically
treated for depression. The testimony established that statement
was not true.
The prosecution established that in order to avoid delinquent
federal tax debts, Russell McCord set up a family corporation to
which various assets were transferred. The evidence established
that money had been placed in the corporate bank account, but that
the corporation had defaulted on payments owing on contracts for
the purchase of property. The defendant, as treasurer, testified
that she controlled the corporate finances and paid corporate
bills, including making payments on a contract for deed on their
residence. The evidence also established that the defendant was
responsible for making payments on a contract for deed on a duplex
property, which the McCords, together with Foster, had purchased.
The evidence further established that the McCords and Foster had
defaulted on a number of payments on the duplex contract and
ultimately forfeited their interest in that duplex. In addition,
the evidence established that the McCords received a notice of
eviction on the family residence with such eviction to take place
on December 27, 1987. The defendant did not tell Russell McCord of
the default, forfeiture or the impending eviction.
Three days before the homicide, defendant wrote to the sellers
under the contract requesting a delay in eviction from their
residence. She pointed out that Russell McCordls brain cells were
deteriorating, that he only had a few months to live, and that she
would pay the delinquent obligation with his life insurance
proceeds. The testimony established that the defendant's
statements regarding her husband's illness were not true.
prior to the shooting, in November 1987, someone took coins
from Russell McCord s collection, worth several thousand dollars.
There was evidence to establish that Russell McCord suspected
Foster or the defendant had removed the coins from the family safe.
The evidence established that Russell McCord had planned to
hold an annual meeting of the family corporation on December 27,
1987, the day following his death. His plan had been to examine
the corporate books, and discuss the missing coins. In addition,
Russell McCord had disclosed his intention to require Foster to
move out of the McCord home by January 1, 1988. At the time of the
shooting, Foster had lived with the defendant and the decedent for
almost eleven years. Dennis McCord testified that during that
time, his mother, the defendant, and Foster were engaged in a long-
term sexual affair.
On August 18, 1988, Foster was killed when he drove his pickup
truck off U.S. Highway 212. While the death was officially ruled
as an accident, a Montana Highway Patrol accident reconstruction
expert, as well as an undersheriff who investigated the accident,
testified that, in their opinion, Foster's death was a suicide.
Dennis McCord testified that two days before Foster's death, he had
told the defendant that she and Foster were going to be arrested
for Russell McCordrs murder.
The first issue concerns the testimony by several witnesses to
a number of statements Foster made following Russell McCordgs
death. These will be discussed in further detail.
The defendant's second issue involves swabs which
investigators took from the hands of the decedent, defendant, and
Foster at the scene of the murder. The State left these swabs in
an evidence locker and did not process them to check for powder
residue until just prior to the trial when defendant requested the
analysis. As a result of this delay in processing, the results
were not available until the fourth day of trial. At trial, the
State's witness testified that the swab tests were inconclusive
because they did not detect gunshot residue on any of the three
subjects. After the close of the Staters case, defense counsel
moved to dismiss the case for negligent suppression of exculpatory
evidence. Defendant claimed the State's delay in processing the
swab results prevented her from obtaining an expert to explain the
significance of these inconclusive results to the jury.
I
Did the ~istrict Court violate defendant's right to
confrontation and the Montana Rules of Evidence by admitting
Foster's statements when Foster was not available to testify? The
challenged statements are set out in numbered order below.
1. Defendant's son Dennis and Dennis' wife Grace, both
testified that they drove Foster home after the police
investigation at the station on the day of the murder. They
testified that during the drive, Foster told them Russell McCord
had been shot at a slight downward angle, from about twelve inches
away with a small caliber weapon, probably a .22, and had
suffocated in his own blood. He told them that he learned these
details from emergency personnel.
2. Grace testified that on the eve of the funeral, Foster
stated that he loved ÿ us sell McCord and I1didn't mean to do it."
3. Dennis testified that he did not actually hear Foster's
statement, but that he told Detective Comfort that Grace said to
him that Foster said he did not mean to nkillll
Russell McCord.
4. Grace called the police immediately after telling Dennis
of Foster's statements. During the resulting interrogation, Foster
feigned intoxication. The detective testified that when
confronted, Foster stated he faked intoxication for "self-
preservation. "
5. Detectives testified regarding Foster's account of the
particular time and sequence of his activities the afternoon of the
homicide. His statements were inconsistent with the testimony of
defendant and other witnesses.
6. Foster told detectives he was unaware that as a result of
default, he and the McCords forfeited their interest in the duplex
property. The State contradicted this statement at trial with
other evidence.
A. Statements 1 and 2: Admissions Against Interest.
The District Court ruled that statements 1 and 2 fell within
the hearsay exclusion of Rule 804 (b) (3) , M.R. Evid. , which allows
the admission of statements made by an unavailable declarant which
so far tend to subject the declarant to criminal liability, that a
reasonable man in his position would not have made the statement
unless he believed it to be true. Defendant contends that the
witnesses1 account of the statements were inaccurate, mis-
characterized, and did not subject Foster to criminal liability.
The State contends that any statement which indicates an
insider's knowledge of or participation in a crime tends to subject
the declarant to criminal liability. United States v. Alvarez (5th
Cir. 1978), 584 F.2d 694, 700. Here, Foster's description of
Russell McCordfswound and death indicate an insider's knowledge of
or participation in the murder. This further suggests that the
statement subjected Foster to criminal liability and would come
within the statement against interest portion of Rule 804(b) (3).
We conclude the court properly admitted statement 1 into evidence
under Rule 804 (b)(3), M.R. Evid.
In a similar manner, we conclude Foster's statement that he
loved Russell McCord and did not mean to do it indicated knowledge
of or participation in the crime and tended to subject him to
criminal liability. At the time Foster made this statement, he
knew the police considered him a suspect in the homicide. Two days
prior to Foster saying that he did not mean to do it, police had
extensively questioned him and swabbed his hands for powder
residue. Given these circumstances, a reasonable man in Foster's
position would not have made this statement unless he believed it
to be true. Thus, we conclude statement number 2 was properly
admitted into evidence under Rule 804(b)(3), M.R.Evid.
Next, defendant contends Foster's statements admitted as
statements against interest are inculpatory, unreliable, and
untrustworthy. In Rule 804 (b)(3) "A statement tending to expose
the declarant to criminal liability and offered to exculpate the
accused is not admissible unless corroborating circumstances
clearly indicate the trustworthiness of the statement.tt State v.
Powers (1988)) 233 Mont. 54, 57, 758 P.2d 761, 763. The defendant
asks us to expand this rule and exclude uncorroborated inculpatory
declarations against interest.
[Ilnculpatory declarations against interest requires
corroborating circumstances that I1clearly indicate the
trustworthiness of the statement ...
11
Under Rule 804 (b)( 3 ) , trustworthiness is determined
primarily by analysis of two elements: The probable
veracity of the in-court witness, and the reliability of
the out-of-court declarant.
Alvarez, 584 F.2d at 701. We do not find it necessary to determine
whether or not uncorroborated inculpatorv declarations may be
admitted. Here the State provided extensive corroboration. The
corroboration includes the following: Russell McCordlsbody was in
his home with no sign of forced entry; the wound was consistent
with a weapon owned by the decedent, kept in the family safe which
police never found; Foster and defendant had access to the home and
the safe; Dennis testified that Foster and the defendant were
having an affair; Russell McCord had informed Foster he would have
to move out; and finally Foster was aware that the decedent would
find out about the bleak financial situation. Further, in Alvarez
the in-court witness was a co-conspirator who turned state's
evidence in exchange for a lesser sentence. Here, Dennis and Grace
McCord, the principal witnesses, had no similar motive to testify
falsely, and were extensively cross-examined by defendant. We
conclude the evidence clearly corroborated Foster's statements.
Finally, defendant contends that statements 1 and 2 violate
her right to confrontation guaranteed by Article 11, 5 24 of the
Montana constitution and the Sixth Amendment of the United States
Constitution. This Court has examined several factors in
addressing confrontation clause violations. State v. Weinberger,
(1983), 204 Mont. 278, 665 P.2d 202. In Weinberser, the Court
examined Bruton v. United States (1968), 391 U.S. 123, 88 S.Ct.
1620, 20 L.Ed.2d 476, and held that testimony did not violate the
defendant's right to confrontation where the statement was not
critical to the prosecution, incriminating only in conjunction with
other facts, and did not demonstrate a co-defendant's recognized
motivation to shift blame to others. Weinberser, 204 Mont. at 298,
665 P. 2d at 213. Next in examining Dutton v. Evans (1970), 400
U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213, Weinberser added:
. . . [Tlhe statement did not contain an express
assertion about past fact; . . .
[the declarantfs]
personal knowledge of the identities and roles of the
other murder participants had been abundantly established
by other evidence; and, that the possibility . ..
[the
declarantfs]statement was founded on faulty recollection
was remote in the extreme. Finally, the circumstances
provided widely recognized indicia of reliability where,
as here, the statement was spontaneous and where it was
against . . .
[the declarant's] penal interest to make
it.
Weinberqer, 204 Mont. at 303, 665 P.2d at 215. We conclude
Foster's statements meet the requirements contained in Weinberser.
First, the statements were not crucial to the State's case in light
of other evidence. The statements here did not incriminate the
defendant, but rather tended to incriminate Foster. Until linked
by other evidence to the defendant, the primary thrust of the
statements was to link Foster to the homicide. Of itself, that did
not establish that the defendant was also linked to the homicide.
~dditionalevidence was required and was submitted by the State to
establish that link. The statements were made by Foster within the
two-day period after the homicide and the statements were
spontaneous and against Foster's interest. We hold the trial court
did not violate Rules of Evidence or the defendant's right to
confrontation by admitting statements 1 and 2 in evidence.
B. Statement 3.
Dennis McCord testified that his wife, Grace, told him that
Foster did not mean to kill the deceased. ~he'defendantdid not
object to this questioning of Dennis McCord. The pertinent part of
Dennis' testimony is set out as follows:
[Direct exam]
A. I gave my statement to, I think Detective
Comfort, I think is who I gave it to, and then Grace gave
hers, and they gave us a ride back out, I think, that was
about it.
Q. That night what did you tell Detective Comfort?
A . I said that Grace said to me that Alan just said
he didn't mean to kill him.
Q. Did you say anything else? Did you tell
Detective Comfort that in your mind you had figured out
the situation?
A. Oh, yeah.
[Cross exam]
Q. Do you recall on the 28th, when the police came,
when the detective came out to the house after your wife
said that Alan had said, I didn't mean to do it, do you
recall talking to Detective Comfort at that point?
A. I gave him [Detective Comfort] a statement after
Q. Do you recall telling him at the scene, when he
was out there that what your wife told you was, I am
sorry, I didn't mean to do it?
A. I think I said that my wife told me that he
didn't mean to kill him.
Q. You don't recall telling Detective Comfort out
at the house, I am sorry, I didn't mean to do it?
A. No. And in that case it would be semantics
anyway.
Q. It would be? Do and kill mean the same thing?
A. When they are referenced that way, yes.
Here, no objection was raised to this testimony at trial. We
will not put a trial court in error where that court has not been
given the opportunity to rule the admissibility of evidence and
to correct itself. Section 46-20-104 (2) , MCA. The issues were not
properly raised before the District Court. We will not consider
the issues of evidence and confrontation raised on this testimony.
C. Statement 4: Then-existing State of Mind.
The trial court admitted statements 4-6 as non-hearsay
statements made by a co-conspirator under Rule 801 (d)(2)(e),
M.R.Evid. On appeal, the State presents an alternative basis for
admitting each statement. We conclude that if Foster's statements
do not violate hearsay rules or defendant's right to confrontation,
we will affirm the decision of the trial court regardless of its
basis in admitting the statements. Phillips v. City of Billings
(1988), 233 Mont. 249, 252, 758 P.2d 772, 774.
The State contends that statement 4, Foster's explanation for
feigning intoxication during the police interrogation related to
his then existing mental or emotional condition. Thus, it was
properly admitted under Rule 803(3), M.R.Evid.:
Then-existing mental, emotional, or physical condition.
A statement of the declarant's then-existing state of
mind, emotion, sensation, or physical condition (such as
intent, plan, motive, design, mental feeling,...), but
not including a statement of memory or belief to prove
the fact remembered or believed.
Here, after giving Foster a breathalizer test, police asked
him why he was faking intoxication. Foster's Itselfpreservationt1
statement was not to prove a fact remembered or believed, but a
spontaneous response to his contemporaneous conduct of acting
intoxicated. It explained the motivation for engaging in that
conduct. Thus we conclude that Foster's self-preservation
statement falls within the hearsay exception of Rule 803(3),
Next, defendant argues that by admitting this statement the
trial court violated her right to confront the declarant. State
contends admitting this statement did not violate defendant's right
to confrontation. We agree that this statement meets the
Weinberqer criteria. First, Foster's statement was not crucial to
the prosecution. The statement was based on his personal
knowledge. The statement did not attempt to shift blame to the
defendant. It was spontaneous and tended to show the defendant's
involvement in the conspiracy only when linked to other testimony.
Finally, this statement falls within a recognized exception to the
hearsay rule. Weinberqer, 204 Mont. at 298, 303, 665 P.2d at 213,
215. We hold that the admission of statement 4 neither violated
the Rules of Evidence nor violated defendant's right to
confrontation.
D. Statement 5 and 6: Non-hearsay.
Finally, the State contends that statements 5 and 6 are non-
hearsay. Rule 801(c), M.R.Evid. "Out-of court statements
constitute hearsay only when offered in evidence to prove the truth
of the matter asserted. " Anderson v. united States (1974), 417
U.S. 211, 219, 94 S.Ct 2253, 2260, 41 L.Ed.2d 21, 28-29. Here, the
State offered Foster's account of his activities the afternoon of
the homicide to prove inconsistencies not to prove its truth.
~ikewise,Foster's statements regarding the duplex property was
introduced to show its falsity. Thus, we conclude the trial court
did not violate hearsay rules by admitting statements 5 and 6.
Last, defendant contends the statements violated her right to
confrontation. Again, using the Weinberqer analysis, we conclude
that defendant's right to confrontation was not violated.
We hold that the court properly admitted statements 1 through
6 under the Rules of Evidence and under the confrontation clause.
I1
Did the late receipt of the "swab1' test results constitute
negligent suppressing of exculpatory evidence, violate due process,
and require dismissal of the State's case?
Defendant contends that the delay in processing the swab test
results was negligent suppression of exculpatory evidence by the
State, and violative of due process. Brady v. Maryland (1963), 373
U.S. 83, 83 S.Ct 1194, 10 L.Ed.2d 215.
The record discloses that defendant failed to object to this
evidence during the trial, and did not request the court stay the
proceedings until defendant could obtain experts to analyze the
results. Under 5 46-20-701(2), MCA, a defendant who fails to
object to an alleged error at trial must prove the error was
prejudicial to her guilt or punishment, and that the prosecutor,
court or law enforcement agency suppressed the evidence and
prevented the claim from being raised at trial. Here the record
does not support either contention. The defendant has failed to
demonstrate prejudice and failed to demonstrate that the State ' s
conduct prevented her claim from being raised. We hold the late
receipt of the I's~ab~~
tests did not require dismissal of the
State's case.
Affirmed.
We Concur: A
'
Justices
Justice Terry N. Trieweiler specially concurring.
I concur with the result of the majority opinion and would
likewise affirm the judgment of the District Court. However, I do
not agree with all of the majority's reasons for its decisions.
Specifically, I disagree that the statements referred to in
paragraphs 1, 2, and 4 under Issue I were exceptions to the hearsay
rule. I conclude that the statements were admissible because they
were not hearsay at all. "Hearsay is a statement, other than one
made by the declarant while testifying at the trial or hearing,
offered in evidence to prove the truth of the matter asserted."
Rule 801(c), M.R.Evid. (emphasis added).
None of the statements referred to above were offered to prove
the truth of what the out-of-court declarant had said. The issue
with regard to those statements was whether they had been made at
all. That issue depended on the truthfulness of the witness who
testified in court that the statements had been made.
For example, the State did not offer Alan Foster's statement
that he "didn't mean to do itw to prove that he unintentionally
killed Russell McCord. If that statement were true, it would have
been a defense to the charges against the defendant.
Because I do not believe that statements 1, 2, and 4 were
hearsay, I cannot conclude that they come within any exception to