State v. Moore

No. 93-369

IN THE SUPREME COURT OF THE STATE OF MONTANA
1994

STATE OF MONTANA,
Plaintiff and Respondent,
-v-
LARRY T. MOORE,
DefendantIAppellant.

APPEAL FROM: District 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:
Larry Jent, Williams, Jent & Dockins, Bozeman,
Montana; Herman A. Watson, 111, Bozeman, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General, Mark
Murphy and Cregg W. Coughlin, Assistants Attorney
General, Helena, Montana; Mike Salvagni, Gallatin
County Attorney, Robert W. Brown, Special Deputy
County Attorney, Bozeman, Montana

Heard: September 1, 1994
Submitted: September 13, 1994
NO\/ 22 1994 Decided: November 2 2 , 1994
Filed:
Justice James C. Nelson delivered the Opinion of the Court.

Defendant Larry Moore was charged with deliberate homicide in
violation of § 45-5-102(1) (a), MCA, and two counts of tampering
with or fabricating physical evidence, in violation of 45-7-
207(l)(a) and (b), MCA. The District Court severed the tampering
charges, and Moore was tried before a jury on the deliberate
homicide charge in the Eighteenth Judicial District Court, Gallatin
County, on October 22, 1992 through November 17, 1992. The jury
returned a guilty verdict on November 19, 1992. At sentencing, the
District Court dismissed sua sponte the two counts of tampering
with or fabricating evidence. Moore appeals his conviction of
deliberate homicide. We affirm.
ISSUES
We state the issues on appeal as follows:
Whether the District Court erred in allowing the
introduction of the DNA analysis evidence after it
had excluded the statistical evidence relating to
the DNA testing?
Whether the District Court erred in admitting the
results of DNA tests performed on the muscle tissue
found in Moore's camper?
Whether the District Court erred in admitting the
PCR results performed on brain tissue discovered
inside Moore's camper?
Whether the District Court erred in denying Moore's
motion to suppress a statement he made to Sgt.
Burns while being transported in a patrol car?
Whether the District Court erred in denying Moore's
motions for a change of venue and motion for
individual voir dire on the issue of pretrial
publicity?
Whether the District Court erred when it denied
 Moore's motion for a new trial on claims of juror
misconduct?
7. Whether the District Court erred when it prohibited
Moore from impeaching the verdict with juror
testimony?
8. Whether the District Court erred when it denied
Moore's motion for a judgment of acquittal alleging
there was insufficient evidence to convict him of
deliberate homicide?
9. Whether Moore was denied his right to a speedy
trial?
FACTUAL BACKGROUND
Larry Moore was charged with deliberate homicide, following
the disappearance of Brad Brisbin. Brisbin, a West Yellowstone
restaurant owner, was last seen November 9, 1990. Rene Brisbin,
Brisbin's wife, testified that her husband told her that Moore had
called him on the morning of November 9th, and asked Brisbin to
meet him at Bair's truckstop because he had sold his pickup and
camper and needed a ride back to West Yellowstone.
Brisbin went to the high school where he was employed as a
part-time teacher. He told the principal that he needed the day
off to deal with a screwed up friend. Two people testified that
they saw Brisbin driving up Gallatin Canyon the morning of November
9th. Both testified they saw nothing unusual with Brisbin's
driving. Brisbin has not been seen since the morning of November

That afternoon, Moore drove his pickup with his camper back to
West Yellowstone. Shortly before 1:00 p.m. on November 9, 1990,
Moore called his construction shop and asked Jerry Hillier, one of
Moore's employees, to warm up the backhoe. Moore arrived at the
shop at approximately 1:00 p.m., and left the shop with the backhoe
at approximately 1:30 p.m. Mr. Hillier testified that he saw the
backhoe parked in the construction yard at 3:00 p.m. Mr. Moore,
however, did not return to the shop until 5:00 pm.
That evening Moore began to tell people that Brisbin had
climbed into a car on Interstate 90, with a woman driver. Moore's
story concerning that morning's events changed considerably over
the course of time.
Moore became a suspect in the case, and police obtained a
search warrant for his pickup and camper. Investigators found
three bullet holes under the interior step. They also found a
piece of tissue on a curtain in the camper, a bullet with blood on
it, and blood stains, which Moore had attempted to obliterate,
throughout the camper.
The police confronted Moore with this evidence, and he began
to change his story. Moore eventually told the police that Brisbin
had been drinking the morning of November 9th, and was waiving a
gun around in the back of Moore's camper. Moore struggled to get
the gun away from Brisbin and when the gun accidentally discharged,
the shot grazed Brisbinls head. Brisbin was bleeding, and Moore
went into the truckstop to get some water to clean up the blood.
When he returned, Brisbin was not in the camper, but Moore believed
he saw Brisbin on the on-ramp of the interstate getting into a red
car.
Law enforcement sent the tissue found on the curtain in the
camper to the Montana State Crime Lab, which determined that the
tissue was of human origin. The State Crime Lab divided the tissue
into three pieces: one portion was sent to Cellmark Diagnostics
(Cellmark), one to Analytic Genetic Testing Center (AGTC), and the
State Crime Lab retained one portion. Cellmark, a laboratory which
performs deoxyribonucleic acid (DNA) analysis, conducted
restriction fragment length polymorphism analysis (RFLP) typing on
DNA extracted from the muscle tissue.
AGTC tested the muscle tissue using GM/KM analysis. GM/KM
markers are an inherited variation of antibody molecules found in
blood serum, human tissue and body fluids, which have a significant
variation between populations so that, for instance, some
combinations of markers are only found in the Caucasian population,
and some in the Afro-American population. GM and KM markers have
been used since the 1960's to identify and individualize human
blood for forensic applications. The results of the GM/KM analysis
confirmed that the muscle tissue was human and the tissue was
consistent with having come fromthe biological father of Brisbin's
children.
While examining blood stains located on the underside of the
interior step board, which had been removed from Moore's camper, a
forensic scientist at the Montana State Crime Lab found a small
piece of tissue. The tissue was determined to be cerebellum
tissue, which is located at the base of the brain, under the skull
bone. The State Crime Lab embedded the brain tissue in a paraffin
block and sent it to Dr. Cosette Wheeler, at the University of New
Mexico Cancer Center, who extracted DNA from the tissue. Dr.
Wheeler then sent the processed tissue to AGTC which conducted
polymerase chain reaction (PCR) analysis on the sample tissue.
AGTC also conducted PCR analysis on members of the Brisbin family
and concluded that the tissue could not be excluded as having come
from the biological father of the Brisbin children.
Moore was charged by information on December 17, 1990 with two
counts of tampering with or fabricating physical evidence and one
count of deliberate homicide. Upon Moore's motion, the District
Court severed the tampering with or fabricating physical evidence
charges. A jury trial was held October 22 through November 17,
1992, and Moore was found guilty of deliberate homicide. Moore
appeals this conviction. Additional facts will be presented as is
necessary for the discussion of the issues.
DNA PROFILING ISSUES
The first three issues we consider on appeal raise questions
concerning DNA profiling. This case presents the first instance in
Montana that forensic DNA analysis evidence has been introduced in
a criminal trial which has reached this Court on appeal.
Therefore, before we begin analysis of the legal principles
involved in those issues, it is necessary to set out a brief
introduction to the basic theory of DNA analysis. The discussion
of DNA and RFLP analysis is derived from the following sources:
testimony at the admissibility hearing and trial, United States v.
Jakobetz (2nd Cir. 1992), 955 F.2d 786, cert. denied 113 S.Ct. 104,
121 L.Ed.2d 63; Commonwealth v. Curnin (Mass. 1991), 565 N.E.2d

440; People v. Axell (Cal.App. 2 Dist. 1993), 1 Cal.Rptr.2d 411;
United States v. Yee, 134 F.R.D. 161 (Ohio 1991).
Introduction
DNA is a fundamental material which determines the genetic
properties of all living things. All nucleated cells of every
human being contain DNA, and every cell of a particular individual
contains the same configuration of DNA. The significance of DNA
for forensic purposes is that, with the exception of identical
twins, no two individuals have identical DNA. Another important
fundamental aspect of human genetics is that, except for unusual
but recognized occurrences of mutation, offspring inherit genes
from their parents, receiving one-half from the mother and one-half
from the father.
The DNA molecule is composed of a long double helix, which
looks like a twisted ladder. The sides of the ladder are made up
of alternating units of phosphate and sugar. Attached to the sides
of the ladder are the rungs, which are made up of four types of
organic bases: adenine, guanine, cytosine, and thymine. Due to
their chemical compositions, adenine will only bond with thymine,
and cytosine will only bond with guanine. Thus, the bases on one
side of the rung will determine the order on the other side. For
the purpose of DNA profiling, these base pairs are the critical
components of the ladder. It is the order or sequence of the base
pairs (the rungs) that determines the genetic traits of an
individual life form and each human being. A specific sequence of
base pairs that is responsible for a particular trait is called a
gene.
 Genetically, humans are more alike than dissimilar.
Approximately 99 percent of human DNA molecules, i.e., base pair
sequences, are the same, creating such shared features as arms and
legs. Other sections of the DNA ladder, however, vary distinctly
from one person to another. It is these variable regions, called
"polym~rphisms,~*
which make it possible to establish identity and
differences between individuals.
The length of each polymorphism is determined by the number of
repeat core sequences of base pairs. The core sequence is called
a Variable Number Tandem Repeat (VNTR) while the total fragment
length is called a Restriction Fragment Length Polymorphism (RFLP).
Alternative forms of RFLP1s are called alleles.
A particular region on the DNA molecule where a specific VNTR
occurs is called a "locus." A locus is considered polymorphic when
the number of VNTR1s varies from one person to another. Of the
approximately three billion base pairs contained in one DNA
molecule, roughly three million are thought to be polymorphic. DNA
profiling focuses on several highly polymorphic or hypervariable
segments of the DNA. Different people will have the same VNTRs in
a particular hypervariable locus, but the loci will differ in
length because varying numbers of the VNTRs are linked together.
Although a person may not have a unique polymorphic area at any one
locus, the frequency with which two people will exhibit eight or
ten of these alleles at four or five different locations is
extremely low. Thus DNA analysis attempts to detect these highly
variable regions and distinguish among the alleles that exist
there.
At the time the testing was conducted in this case, there were
two technologies generally used in forensic DNA analysis to detect
the polymorphic regions: restriction fragment length polymorphism
(RFLP), and polymerase chain reaction (PCR). Both methods were
employed in this case.
RFLP Analysis
As is explained in Commonwealth v. Curnin, 565 N.E.2d at 446-
47, and U.S. v. Jakobetz, 955 F.2d at 792-93, RFLP analysis
involves several steps.
1. Extraction of DNA. The DNA must be extracted from the
evidentiary sample by using chemical enzymes. An enzyme is then
added to digest cellular material that is not DNA, thereby
providing a purer sample.
2. Restriction or Digestion. The DNA is then mixed with
restriction enzymes which cut the DNA molecules into fragments at
specific base sequences. The restriction enzymes recognize
particular sequences of base pairs. The enzymes sever the DNA
molecule at targeted locations within the sequence. The process
severs the DNA molecule at all sites targeted at locations along
the three billion base pair length of the molecule. Therefore,
some of the resulting "restriction fragmentstt will contain
polymorphic DNA segments, although most will not. Because the
alleles differ markedly in length from one person to the next, the
restriction fragments containing the alleles will also differ in
length.
 3. Gel Electrophoresis. This technique entails placing the
DNA fragments into an agarose gel which has a negative and positive
electrode at either end. An electrical current is then run through
the gel. The restriction fragments, which are negatively charged
in their natural state, travel toward the positive charge. The
process is able to sort the restriction enzymes by length, as the
shorter fragments--which are lighter and less bulky--will travel
further in the gel. Several samples are run on the gel but in
different tracks or lanes which run parallel to each other. In
addition to the samples, fragments of known base-pair lengths are
placed in separate lanes to facilitate measurement.
4. Southern Transfer. This procedure transfers the fragments

to a more functional surface. A nylon membrane is placed over the
gel and, through capillary action, the DNA fragments attach
themselves to the membrane while occupying the same position
relative to one another as they had on the gel. The restriction
fragments are then treated with a chemical which cuts the fragments
of DNA lengthwise along each base pair, by sawing through the
middle of each rung. The result is a collection of single stranded
restriction fragments.
5. Hybridization. The nylon membrane is dipped into a
solution containing various "genetic probes," which are single
stranded DNA fragments of known length and sequence designed to
link with identified polymorphic alleles. The probes will link
only to those DNA fragments which contain base pair sequences that
are complementary to the base sequences of the probe. The genetic
probes are tagged with a radioactive marker so that after the probe
links with a particular allele, its position relative to the other
restriction fragments can be observed.
6. Autoradiography. The nylon membrane is placed on an x-ray

film and exposed by the radioactively charged probes. The result
is a pattern of bands called an "autoradiograph", or "autorad."
Each band represents a different polymorphic allele, and its
position indicates the length of the restriction fragment in which
that allele occurs. Because individuals differ in length of their
polymorphic alleles, the position of the bands on the DNA prints
will tend to differ from person to person.
7. Interpretation of the DNA Print. The DNA print of the
crime sample and the DNA print of the defendant are then compared
both visually and with a machine to determine if both samples of
DNA came from the same person. A match will be declared if the
samples fall within a certain distance of one another. Cellmark
Diagnostics, the laboratory conducting the RFLP analysis in this
case, will declare a match if the bands from two DNA prints fall
within one millimeter of each other.
8. Statistical Analysis. Statistical analysis is used in
both RFLP and PCR analysis. If the two DNA samples match, then
population geneticists determine the likelihood that the match is
unique. The scientists determine the frequency with which a
particular allele is found in the population, then by using a
multiplication or product rule, compute an aggregate estimate of
the statistical probability that the suspect's combination of
alleles would be found in the relevant racial population. United
States v. Bond (6th Cir. 1993), 12 F.3d 540, 550, aff'g United
States v. Yee, (Ohio 1991), 134 F.R.D. 161.
PCR Analysis
AGTC tested the brain tissue by conducting polymerase chain
reaction testing. The following discussion of PCRtesting is taken
from Thomas M. Fleming, Annotation, Admissibility of DNA
Identification Evidence, 84 A.L.R.4th 313 (1991), and testimony
from the trial, unless otherwise noted. PCR testing is used to
increase the amount of the DNA sample. This technique makes DNA
testing possible on much smaller samples than RFLP analysis.
However, PCR's ability to identify a particular individual to the
exclusion of others is much lower.
In this procedure, DNA is extracted from a sample purified and
added to a buffer solution containing chemical primers and an
enzyme called "TAQ polymera~e.~~ solution is then placed in a
The
heating device, called a thermal cycler, which cycles it through
several successive temperature plateaus. After 30 or 40 of these
cycles, the DNA has become denatured. The primers have annealed
to the DNA, identifying a "gene of interest," in this case the DQ-
alpha gene, which will have been replicated or "amplified" by the
enzyme billions of times.
Next, the amplified DNA is flooded over a nylon membrane onto
which have been dotted a number of ~tallele-specific"
probes, each
designed to recognize one variant of the DQ-alpha gene. This will
result in a color reaction and a visible dot on the membrane
wherever a probe has identified one of the alleles.
This genetic marker system has six traits which are simply
numbered, 1.1, 1.2, 1.3, 2, 3 , and 4. These alleles are combined in
pairs in each person, because one is received from each parent.
There are 21 possible pairs of these traits, and each pairing is
called a ffgenotype.ff
The purpose of the testing is to identify the
genotype present in the amplified DNA.
After conducting PCR analysis on the piece of brain tissue,
AGTC typed it as a DQ-alpha 3, 4. AGTC also conducted PCR analysis
on the Brisbin family members and found that If . . . among [the]
four children, there are only two alleles found, the 4 allele ..
. and a 3 allele. Since any given person can only have two
alleles, the biological father of these individuals has to have a
3 allele and a 4 allele. The evidentiary material, the brain
tissue, typed as a 3, 4 so it cannot be excluded as having come
from the biological father."
In sum, the PCR process clones the region of a DNA strand
containing the DQ-alpha gene. The copies are then analyzed to
determine whether certain sequences of the gene are present.
Issue 1.
Whether the District Court erred in allowing the
introduction of the DNA analysis evidence after it had
excluded the statistical evidence relating to the DNA
testing?
Before trial, Moore moved to have all DNA evidence excluded.
After an extensive pretrial hearing concerning the admissibility of
the DNA analysis evidence, the District Court denied Moore's
motion, and allowed the State to present evidence concerning the
13
DNA analysis conducted on both the muscle tissue and the brain
tissue. Moore then moved to exclude testimony concerning the
statistical calculations which would have presented a probability
that any alleged match between the tissue samples and the Brisbin
children is not coincidental. The District Court granted the
motion and refused to allow testimony concerning the statistics,
but allowed the experts to testify that the RFLP and PCR test
results were "consistentI1 with Brisbin. Moore alleges on appeal
that the District Court erred in not excluding DNA evidence in its
entirety. Moore claims that because no valid statistics were
presented, the DNA evidence failed to meet requirements of Rule
702, M.R.Evid., as it failed to assist the trier of fact to
understand the evidence or to determine a fact in issue.
Relying on the testimony of defense expert Dr. Shapiro, Moore
states that the only way the jury has to evaluate the DNA evidence
is through the statistical data which supports it. Without the
statistics, the evidence is meaningless and, therefore, is not
helpful to the trier of fact. Moore concludes by arguing that
there is no difference between saying the evidence is "consistent"
with Brisbin and that there is a "matchw with Brisbin.
Admissibility of evidence is left to the sound discretion of
the trial judge. State v. Stewart (1992), 253 Mont. 475, 479, 833
P.2d 1085, 1087. This Court's review of a district court's
evidentiary rulings is whether the district court abused its
discretion. State v. Gollehon (1993), 262 Mont. 293, 301, 864 P.2d
1257, 1263.
 We conclude that because the District Court excluded testimony
concerning the statistical evidence upon Moore's own motion, he
cannot now complain that the court erred in granting his motion.
The District Court concluded that the statistical probabilities
"invad[es] the province of the jury, ... [because] when you get
numbers high enough, in essence you're directing a verdict, and
that gets way beyond reasonable doubt." Because the ruling made
upon Moore's motion benefitted the defense, Moore cannot now
complain.
In addressing this same issue, the Eighth Circuit Court of
Appeals held that the defendant was barred from raising the issue
on appeal when he had specifically requested that the district
court exclude the statistical evidence. The court noted:
After the district court decided to admit the DNA match
evidence, the court invited counsel to comment on the
propriety of admitting statistical evidence of the
likelihood of a match. In response to this invitation,
Martinezf counsel suggested that the court exclude the
probability evidence . . . Having specifically requested
that the district court exclude the statistical evidence,
Martinez may not now complain about its exclusion.
United States v. Martinez, (8th Cir. 1993), 3 F.3d 1191, 1199, cert
denied 114 S.Ct. 734, 126 L.Ed.2d. 697. We conclude that, like the
defendant in Martinez, Moore is barred from complaining that the
statistical evidence was excluded because he sought its exclusion.
Our determination does not address whether we will allow the
admission of DNA analysis results in a future case without the
accompanying statistical analysis. We recognize that there is
presently a diversity of opinion among the jurisdictions that have
addressed this issue. A summary of the different approaches is
found in People v. Adams (Mich.App. 1992), 489 N.W.2d 192, 198,
where the Michigan Court of Appeals noted:
Some courts of other jurisdictions have ruled that DNA
identification evidence is admissible at trial, but have
then refused to allow into evidence the statistical
analysis of the testing because the databases were shown
to have not been in Hardy-Weinberg equilibrium. Curnin,
409 Mass. at pp. 225-227, 565 N.E.2d 440; Caldwell, 260
Ga. at pp. 289-290, 393 S.E. 2d 436 [1991]; State v.
Pennell, 584 A.2d 513, 517-520 (Del.Super. 1989).
However, other courts have recognized that conservative
or reduced calculations such as those used by Cellmark
may correct any Hardy-Weinberg deviation problems.
u, 235 Cal.App.3d at p. 868, 1 Cal.Rptr.2d 411
[1991]; Caldwell, 260 Ga. at p. 289, 393 S.E.2d 436;
Castro, 144 Misc.2d at p. 969, 545 N.Y.S.2d 985 [1989].
The statistical analysis of DNA testing is inadmissible
in some jurisdictions because of its prejudicial effect.
Schwartz [447 N.W.2d 4221 at pp. 428-429 [Minn. 19891;
Pennell at pp. 519-520. On the other hand, some courts
have held that such evidence is a matter of weight for
the jury. Axell, 235 Cal.App.3d at p. 868, 1 Cal.Rptr.2d
411; Ho~kins[Ind. 19911 [579 N.E.2d 12971 at p. 1303;
United States v. Yee, 134 F.R.D. 161 (N.D. Ohio 1991).
Whether, and if so, to what extent we will allow DNA evidence
without the accompanying statistical evidence in other criminal
trials will be decided in a future case. Our decision in this case
is based solely on the fact that Moore moved to exclude the
evidence, and cannot now argue that its exclusion was error.
Because Moore moved to exclude the statistical analysis evidence at
trial, and in light of the varied approaches among the
jurisdictions which have addressed this issue, we hold that the
District Court did not abuse its discretion when it admitted the
DNA analysis evidence without the statistical evidence in this
case.
Issue 2.

Whether the District Court erred in admitting the
results of DNA tests performed on the muscle tissue found
 in Moore's camper?
Moore presents three arguments as to why the District Court
erred in admitting the RFLP analysis in this case. First, Moore
alleges that Cellmark used "sloppy laboratory technique^.^' Moore
does not argue that the theory underlying DNA and RFLP analysis is
inadmissible, rather, he states t h a t the general reason courts
exclude RFLP analysis evidence is because the particular laboratory
failed to adhere to generally accepted techniques for obtaining
relevant, reliable results. See, State v. Vandebogart (N.H. 19921,
616 A.2d 483; United States v, Martinez (8th Cir. l993), 3 F . 3 d

1191; State v. Cauthron (Wash. 1993), 846 P.2d 502.

After a thorough review of the cases and other current
literature and authorities, we conclude that t h e theory underlying
DNA and RFLP technology is generally n o t open t o serious a t t a c k and
t h a t such evidence is widely admitted in various state and federal
courts and jurisdictions. I * [ T ] h e threshold [test] for admissibility
[of DNA evidence] should require only a preliminary showing of
reliability of the particular data to be offered, i . e . , some
indication of how the laboratory work was done and what analysis
and assumptions underlie the probability calculation^.^^ Jakobetz,

955 F.2d at 799-800.
While Moore first argues that the State failed to demonstrate
that Cellmark's testing results were reliable because Cellmark used
"sloppy laboratory techniques," he fails to identify what
techniques were sloppy, or objectionable. Rather, h e "incorporates
by reference all the evidentiary arguments made about PCR in the
preceding sections [of his opening brief], as well as the technical
arguments made at the [admissibility] hearing."
We conclude that Moore's argument must fail. Rule 23(a)(4),
M.R.App.P., provides in pertinent part:
The argument shall contain the contentions of the
appellant with respect to the issues presented, and the
reasons therefor, with citations to the authorities,
statutes and pages of the record relied on.
Moore failed to properly raise specific points of error concerning
Cellmarkls laboratory techniques, and this Court will not presume
which techniques he considered were "sloppy." Accordingly, we will
not address this argument further. Allmaras v. Yellowstone Basin
Properties (1991), 248 Mont. 477, 483, 812 P.2d 770, 773.
Second, Moore argues that the Itnumbersused to mathematically
determine a match by Cellmark are unreliable." Moore's argument is
without merit, because, as we discussed in issue one, the District
Court excluded all testimony concerning statistical evidence.
Martinez, 3 F.3d at 1199.
Third, Moore argues that the District Court erred in allowing
testimony that the DNA profile of the muscle tissue sample was
consistent with the DNA profiles of Brisbinrs children and his
mother, because according to Moore, Cellmark's criteria for
declaring a match, or consistency are highly suspect. Moore
alleges that two probes contained "anomalies" and therefore,
Cellmark should have declared these probes to be exclusions.
According to Moore, the fact that Cellmark declared a match even
though two anomalies were present evidences that the RFLP test
results did not have a reliable foundation.
18
 At this juncture, it is important that we distinguish between
DNA identification analysis and DNA paternity analysis. DNAtyping
for forensic purposes in criminal law is usually used to aid in the
identification or exclusion of criminal suspects. The
characteristics of a suspect's genetic structure are profiled and
compared to the genetic structure found in material such as blood
or semen recovered from the crime scene. The two profiles are then
compared to see if they "match.*I
Because Brisbin's body has never been found, the laboratories
conducting the tests could not obtain a comparison sample of his
DNA. The scientists therefore conducted a paternity analysis on
the muscle tissue found in Moore's camper to determine if the DNA
extracted from the sample muscle tissue was consistent with having
come from the father of the Brisbin children. Because genes are
inherited, a child will have a composite profile which is
consistent with his or her parents.
Cellmark received blood samples from seven people: Rosaleen
Kovash, Brisbin's former wife and the mother of Jeremiah and Erin
Brisbin; Maureen Brisbin, Brisbin's wife and the mother of Parker
and Mariah Brisbin; and Mary Ann Brisbin, Brisbin's mother.
Cellmark used five probes to examine five different genetic
locations. The result of each probe is visible on the x-ray film
or autorad, and appears as dark lines called bands. A comparison
was made between the bands exhibited on the autorads for each
mother, her two children, and the DNA from the tissue. For each of
those comparisons, Cellmark examined the DNA pattern of the two
children, to determine which band in the child was consistent with
the mother and if the other band was consistent with the DNA coming
from the tissue. Moore contends that because two of the samples
failed to visually coincide, the samples could not be said to be
consistent, but were exclusions and, therefore, were inadmissible.
The first alleged exclusion concerned an autorad for the probe
MS1. Both Mariah Brisbin and her mother only showed one band for
this probe, and Mariah's band did not coincide with the band
expressed for her mother, Maureen. Moore argues that because
Mariahls maternal band did not show up on the autorad, the results
were inadmissible.
In interpreting why only one of Mariahrs bands was visible on
the autorad, the Staters expert explained that Mariahrs other band
had probably run off the gel and, therefore, could not be seen.
The expert noted that even though the band could not be seen on the
gel, one could continue with the analysis using the one band which
was visible. In this case, the band which was visible on the
autorad was consistent with a band from the piece of muscle tissue.
Moore also claims that an inconsistency on the probe YNH24
between Brisbinrs mother Mary Ann Brisbin, and the piece of muscle
tissue rendered the results inadmissible. In this instance, the
band from the piece of muscle tissue did not correspond to either
band from Mary Ann Brisbinrs autorad. Moore claims that because
neither of the bands from Brisbin's mother matched the band from
the piece of muscle tissue, Cellmark should have excluded Mary Ann
Brisbin as the mother of the donor of the muscle tissue. Moore
claims t h a t Cellmark should n o t have concluded t h a t Mary Ann
results were consistent with the piece of muscle tissue
~risbin~s

in light of probe YNH24, which did not match. According t o Moore,
Cellmarkts conclusion t h a t the two DNA profiles were consistent
evidences the lack of foundation for the entire RFLP testimony.
Of the five probes used to examine Mary Ann Brisbinfs DNA

profile, nine bands were visible an the autorads. The muscle
tissue matched four of those bands. However, as stated above, Mary
Ann Brisbintsband was not consistent with t h e muscle tissue's band
for probe YNH224. Cellmark's e x p e r t s testified that one would
still have to conclude that Mary Ann was somehow genetically
related to the donor of the muscle tissue, because Mary Ann's bands
and the muscle tissue's bands matched on the other probes. The
experts testified that given the known h i g h mutation rate at these
genetic locations, a reasonable conclusion was that a mutation
slightly altered t h e gene at this locus.
The District Court ruled that Moorefs objections to Cellmark's
RFLP analysis r e s u l t s were a matter of weight for t h e j u r y t o
assign t o the testimony, not a question of admissibility. We
agree.
In determining whether to allow expert testimony concerning
novel scientific evidence, this Court has held that I t i t is better
t o admit r e l e v a n t scientific evidence in t h e same manner as other

expert testimony and allow its weight to be attacked by c r o s s -
examination and refutation." Barmeyer v, Montana Power Co. (1983),
202 Mont. 185, 193-94, 657 P.2d 594, 598. (Citation omitted.) In
Barmever we rejected the "general acceptance" test set forth in
Frye v. United States (D.C. Cir. 1923), 293 F. 1013, holding that
"the general acceptance rule is not in conformity with the spirit
of the new rules of evidence." Barmever, 657 P.2d at 598. (While
we stated in Martel v. Montana Power Co. (1988), 231 Mont. 96, 103,
752 P.2d 140, 145, that we "~verruled'~
Barmever, it is readily
apparent that the only portion of our opinion that was actually
overruled was that pertaining to violation of the NESC standards
being negligence per se.)
More than a decade later, the United States Supreme Court also
rejected Frve's "general acceptancev1
standard for admissibility of
expert testimony in favor of the more liberal test embodied in Rule
702, F.R.Evid. This test requires the trial judge to determine
whether the expert is proposing to testify to (1) scientific
knowledge that (2) will assist the trier of fact to understand or
determine a fact in issue. Daubert v. Merrell Dow Pharmaceuticals,
Inc. (1993), -U.S. -, 113 S. Ct. 2786, 2796. In Daubert,
the Court noted that Rule 702, F.R.Evid., still requires the
district court to screen such evidence to ensure that any and all
scientific testimony or evidence admitted is not only relevant, but
reliable. Daubert, 113 S.Ct. at 2795.
To guide the trial court's assessment of the reliability of
the scientific evidence offered, the Court established the
following non-exclusive factors to be considered: (a) whether the
theory or technique can be and has been tested; (b) whether the
theory or technique has been subjected to peer review and
publication; (c) the known or potential rate of error in using a
particular scientific technique and the existence and maintenance
of standards controlling the technique's operation; and (d) whether
the theory or technique has been generally accepted or rejected in
the particular scientific field. Daubert, 113 S.Ct. at 2796-97.
The Court emphasized that the inquiry under Rule 702,
F.R.Evid., is "a flexible one," and that the focus is on the
principles and methodology underlying the proffered evidence rather
than the conclusions they generate. Daubert, 113 S.Ct. at 2797.
We conclude that the guidelines set forth in Daubert are consistent
with our previous holding in BarmeVer concerning the admission of
expert testimony of novel scientific evidence, and we, therefore,
adopt the Daubert standard for the admission of scientific expert
testimony. Accordingly, we conclude that before a trial court
admits scientific expert testimony, there must be a preliminary
showing that the expert's opinion is premised on a reliable
methodology. We note, however, that the court must be flexible in
its inquiry. "Not every error in the application of a particular
methodology should warrant exclusion. An alleged error in the
application of a reliable methodology should provide the basis for
exclusion of the opinion only if that error negates the basis for
the reliability of the principle itself .I1 Martinez, 3 F.3d at
1198.

In the instant case, although the District Court did not apply
the Daubert standard, it did hold an admissibility hearing which
involved seven days of testimony from scientists in the fields of
genetics, molecular biology, and statistics. After considering the
testimony, the court concluded:
(Biased upon a thorough and conscientious review of all
the DNA evidence, the Court's conclusion is that while
there are cracks in the foundation of the testimony of
some of the Staters expert witnesses, such is
sufficiently mitigated by the overall testimony of
witnesses, Dr. Schanfield, Dr. Cotton, and Dr. Eoldman,
to create an issue of fact.
In considering admissibility of evidence, the Court
must walk a fine line, avoiding considerations of weicsht
to be given t h e proffered evidence, and, generally, the
credibility of the witnesses offering testimony. Under
the circumstances presented, it is the opinion of this
Court that the DNA evidence profgered by the State meets
the threshold test for admissibility.
The credibility of witnesses, issues of fact, and
the weisht to be accorded t h e testimony of witnesses are
issues for a jury to resolve, not the Court. (Emphasis
in original.)
Rulings on the admissibility of evidence are left do the sound
discretion of the trial court. State v. Stewart (1992), 253 Mont.
475, 479, 8 3 3 P.2d 1085, 1087. In light of the ~istrictCourt's
extensive and thoughtful consideration of the DNA analysis
evidence, we hold t h a t it did not err in determining that Moore's

objections to Cellmark's RFLP analysis were a matter of weight, not
admissibility and in admitting the RFLP evidence in this case.
Issue 3 .
Whether the District Court erred in admitting the
PCR results performed on brain tissue discovered inside
Moore's camper?
Moore maintains that the PCR testing AGTC conducted on the
piece of brain tissue was done improperly and that the test results
were therefore unreliable. ~ccordingly,Moore contends that the
PCR test results failed to meet the threshold test for
admissibility under Daubert, Moore makes the following challenges
to the reliability of the PCR analysis: (1) the thermal cycler

failed to meet the proper working order requirement; (2) the proper
procedures were not followed; (3) Tom Wahl, the laboratory
technician who conducted the PCR testing was unqualified, and
therefore Dr. Schanfield, the genetics expert could not base his
testimony concerning the PCR test results upon Mr. Wahl's
testimony; and (4) PCR analysis is not sufficiently reliable for
forensic use.
In its ruling on the admissibility of this evidence, the
District Court found that the proffered evidence met the threshold
test for admissibility, and that Moore's challenges were questions
of weight for the jury to determine. We agree, and as explained in
detail below, Moore's objections do not negate the reliability of
the PCR analysis itself. Rather these questions go to the weight
of the evidence.
1 Thermal Cycler
.

Moore first challenges the thermal cycler, the heating device
used in the DNA amplification process, on the following grounds:
(a) the instrument was not assembled properly; (b) the brand of
thermal cycler used was not the brand recommended by the
manufacturer of the Cetus AmpliType Kit, (the particular PCR
testing kit used in this case); and (c) AGTC used a different
temperature for the denaturation phase of the DNA testing than
recommended by the manufacturer of the testing kit.
The sole objection Moore raises concerning the "assembly" of
the thermal cycler is that it did not have an external monitoring
system as was required by the users guide for the Perkin-Elmer
thermal cycler. In response to Moore's concern that AGTC did not
have an external monitoring system, Tom Wahl, the lab technician
who conducted the PCR testing on the piece of brain tissue,
testified that AGTC did not use the Perkin-Elmer thermal cycler but
a BIOS BSC 100 thermal cycler which monitors temperature by using
an internal probe. Wahl also explained that if the thermal cycler
overheated the DNA sample, it could destroy the TAQ polymerase, and
if the temperature was too low, there would be inadequate or no
denaturation of the DNA.
In response to Moore's allegation that the brand of thermal
cycler was not the brand recommended by the manufacturer of the
Cetus AmpliType Kit, Dr. Schanfield, the laboratory director of
AGTC, testified that there was no requirement that AGTC use any
specific thermal cycler. In addition, Dr. Wheeler, whose research
duties include adapting the Cetus AmpliType Kit for clinical use,
testified that there were a variety of thermal cyclers on the
market, some of which "produce similar and sometimes better results
than the Perkin-Elmer Cetus machines [the machine recommended by
the manufa~turer].~Finally, Moore's own expert acknowledged that
one reason Cetus recommended the Perkin-Elmer thermal cycler over
other brands was because Cetus had a financial interest in the
Perkin-Elmer machine. We conclude that Moore's challenge to the
PCR evidence based on the brand of machine used did not render the
PCR results inadmissible.
Moore's argument that AGTC used a different temperature for
the denaturation phase of the DNA testing than recommended by the
manufacturer of the testing kit was also adequately explained by
the Statersexperts. All the experts agreed that the temperatures
at which the PCR process is conducted are critical. Dr. Schanfield
echoed Mr. Wahlfs testimony and explained that if the temperature
gets too hot during the cycling procedure the TAQ polymerase would
be destroyed. If the temperature does not get hot enough, the DNA
will not separate and amplification will not occur. In either
event, there would be no result.
Moore complains that AGTC ran the denaturation phase of the
PCR analysis at 9'
3 Celsius, plus or minus two degrees, when the
Cetus kit specified that the phase be conducted at a temperature of
9'
4 Celsius, plus or minus two-tenths of one degree. Once again,
Dr. Schanfield provided an adequate explanation for this
difference, by stating that AGTC had to consider the elevation of
its laboratory in Denver when setting the appropriate temperature
for the thermal cycler.
2. Proper Procedures
Moore argues that the most critical error by AGTC was its
failure to follow its own protocol when it did not retest the
sample of brain tissue which did not amplify. Moore claims it was
AGTC's policy to amplify a sample twice, and AGTC's failure to
follow its own protocol should have resulted in the mandatory
exclusion of the PCR analysis evidence.
Moore relies on State v. McDohald (1985), 215 Mont. 340, 697

P.2d 1328, to support his position that AGTC1s failure to use
proper procedures results in a mandatory exclusion of the evidence.
In McDonald, the defendant was convicted of DUI based in part on a
blood alcohol test report and testimony concerning the report.
McDonald, 697 P.2d at 1330. This Court reversed and remanded the
conviction finding that there was inadequate foundation for the
report's admission, because it did not conform to the statutory and
administrative rule requirements concerning blood alcohol testing.
We held that a defendant charged with a DUI was entitled to have a
proper foundation laid which incorporated the administrative rules
on proper test procedures. McDonald, 697 P.2d at 1331-32.
However, Moore's reliance on McDonald is unpersuasive. AGTC
did not fail to follow its protocol, nor has Moore alleged or
established the omission of a procedure created by statute or
administrative rule for the admission of PCR analysis evidence.
The testimony showed that AGTC received two samples of the
piece of brain tissue, sample A, and sample B. Mr. Wahl put both
samples through the PCR procedure, however, sample B did not
amplify. Mr. Wahl testified that sample size permitting, it was
AGTC's policy to amplify the DNA extract or sample twice. However,
Mr. Wahl also explained that if a second amplification procedure
would use up all of the sample, AGTC would not amplify it twice
because "[wle [AGTC] strive at all times to maintain at least half
of the sample for referee analysis." Mr. Wahl also testified that
if AGTC amplified the samples a second time, they would have used
up "most if not all, of the extract, not allowing any extract for
referee analysis."
 We conclude that Moore's challenges concerning AGTC1s failure
to retest the brain tissue sample go to the weight of the evidence,
and not its admissibility.
3. Testimonv of Tom Wahl and Dr. Schanfield
Moore argues that Tom Wahl, who performed the PCR testing
procedure for AGTC, is unqualified to perform the PCR testing, and
consequently Dr. Schanfield should not have been allowed to render
his expert opinion on Mr. Wahl's test results. Moore primarily
criticizes the proficiency tests Mr. Wahl conducted, and maintains
that the results of the proficiency tests show, among other things,
contamination in some test results and an inability to get
reproducible results. The District Court allowed Mr. Wahl to
testify at trial as to the lab protocols performed and Dr.
Schanfield then interpreted the results for the jury.
Rule 702, M.R.Evid., governs the testimony of expert
witnesses. That rule provides:
If scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence
or to determine a fact in issue, a witness qualified as
an expert by knowledge, skill, experience, training, or
education may testify thereto in the form of an opinion
or otherwise.
The determination of whether a witness is qualified rests
within the sound discretion of the trial court, and such a
determination will not be disturbed on appeal absent a showing of
abuse of discretion. State v. Evans (1991), 247 Mont. 218, 228-29,
806 P.2d 512, 519. The degree or extent of a witnessesr
qualifications affects the weight of the expert's testimony, not
its admissibility. Evans, 806 P.2d at 519. citinq, State v. art in
29
(1987), 226 Mont. 463, 736 P.2d 477. Furthermore, cross-
examination is the shield to guard against unwarranted opinions.
Evans, 806 P.2d at 519, citing, Stewart v. Casey (1979), 182 Mont.
185, 193, 595 P.2d 1176, 1180.
The record clearly reveals that Mr. Wahl is qualified to
testify as an expert witness on the basis of both his educational
background and his experience. In fact, Moore's only challenge to
Mr. Wahlrs qualifications goes to the results of Wahlrs proficiency
tests, not Mr. Wahl's lack of education, training or experience.
We conclude that Moore failed to demonstrate that Mr. Wahl was not
qualified as an expert on the basis of the proficiency test
results. Moore's challenges to the proficiency testing go to the
weight of the evidence, not its admissibility.
Even if Moore's argument concerning the error rate of Mr.
Wahlrs proficiency tests is meant to challenge the reliability of
the PCR analysis, this argument would not result in exclusion of
the PCR evidence. Under the Daubert test, the error rate is only
one factor in the non-exclusive list of factors to be considered in
addressing the admissibility question. Bonds, 12 F.3d at 560. We
conclude that Moore did not demonstrate that Mr. Wahlrs rate of
error was unacceptable in the scientific community, or rendered the
test results inadmissible.
Based on Moore's contention that Mr. Wahl was unqualified to
testify, he argues that Dr. Schanfield should not have been able to
interpret Mr. Wahl's test results. In light of our conclusion that
Mr. Wahl was qualified to perform the PCR testing procedures and
that any alleged error in the proficiency tests did not render the
testing procedure inadmissible, we conclude that Moore's argument
is without merit.
Pursuant to Rule 703, M.R.Evid, experts can base their
opinions on facts or data perceived by the experts, or made known
to them at or before the hearing. In the instant case, the
District Court found that Mr. Wahl did not have the qualifications
to interpret the PCR analysis results. Therefore, the State
introduced evidence concerning the results of the PCR analysis
through Dr. Schanfield. As is explained by Imwinkelried, Courtroom
Criminal Evidence § 625 (2d ed. 1993), this method is well
recognized.
For example, a technician operates the X-Ray machine but
is not qualified to interpret the results. Similarly, a
police officer could qualify as an expert in the
operation of a breathalyzer but would not have the
requisite expertise to interpret the results. A
physician or other expert would have to testify about the
relationship between the alcohol content of the breath
and the effect on the brain[.]
The District Court did not abuse its discretion in allowing
Dr. Schanfield to rely on Mr. Wahlrs PCR testing procedures in
forming his opinion as to the test results.
4. PCR analvsis is not sufficiently reliable for forensic
purposes.
In his final challenge to the PCR analysis evidence, Moore
contends that PCR analysis in general is not sufficiently reliable
for forensic use. In support of his argument Moore primarily
relies on a report prepared by the Committee on DNA Technology in
Forensic Science, under the auspices of the National Academy of
Sciences. The report, entitled DNA Technoloqv in or en sic Science
(~ationalAcadamy Press 1992) (hereinafter DNA Technology), was
prepared by a committee of scientists and jurists to address the
status of forensic DNA typing. State v. Cauthron (Wash. 1993), 846
P.2d 502, 504.
According to the report, "one of the most serious concerns
regarding PCR-based typing is contamination of evidence samples
with other human DNA." DNA Technology at 65. Moore contends that
this potential for contamination makes the PCR analysis evidence
unreliable and, therefore, inadmissible.
In the instant case, the record reveals that the experts
handling the piece of brain tissue were aware of the possibility of
contamination, and took appropriate steps to avoid and detect
contamination of the specimen. Although Moore raises the issue of
the potential for contamination, he fails to demonstrate whether
contamination of the tissue actually occurred.
Moore also presented a theory that the piece of brain tissue
could have been something other than human tissue which was
contaminated by Brisbin's blood. Moore's expert Dr. Blake, a plant
geneticist at Montana State University, conducted an experiment
wherein he placed human blood onto a piece of deer brain. Dr.
Blake then put the sample through a PCR process to amplify the DQ-
alpha gene. The results of the test showed that the human blood
placed upon the deer brain would amplify the DQ-alpha gene.
While Moore's experiment does support his theory that the
piece of brain tissue found in the camper may have been deer brain
which had been covered with some of Brisbinfs blood, the theory
does not prove Moore's underlying contention, that PCR analysis is
unreliable for forensic use and, therefore, inadmissible. Moore's
experiment simply provided the jury with an alternate explanation
to the piece of brain tissue, i.e., that Brisbin may not have been
the donor of the piece of brain tissue.
Moore's challenge to the reliability of PCR analysis in
forensic use was recently addressed by the Oregon Court of Appeals.
The Oregon Court noted:
There is, however, disagreement among experts about
whether the PCR method is appropriate for forensic use.
The disagreement centers primarily on the fact that
samples obtained at the crime scene are often produced
and recovered under adverse conditions that can result in
various forms of contamination before the sample ever
reaches a laboratory. The potential for contamination is
present in the collection, identification and retention
of most forms of forensic type evidence. The potential
for contamination presents an "open field" for cross-
examination at trial, but does not indicate that the PCR
method is inappropriate for forensic use.
State v. Lyons (0r.App. 1993), 863 P.2d 1303, 1309.
The District Court determined that the PCR analysis evidence
met the initial test for admissibility, and that Moore's arguments
were a matter of weight for the jury to determine. We agree with
the trial court, and hold that the District Court did not abuse its
discretion in admitting evidence concerning the PCR analysis.
Issue 4.

Whether the District Court erred in denying Moorefs
motion to suppress a statement he made to Sqt. Burns
while being transported in a patrol car?
On November 23, 1990, Moore was brought into the West
Yellowstone police station for an interview. Four officers were
present, Sheriff C. Ron Cutting, Lt. Bill Slaughter, Lt. Bob
Pearson, and Sgt. Kevin Burns. After being advised of his Miranda
rights, Moore signed a waiver of the rights and agreed to answer
questions without the presence of counsel.
During the interview, Moore stated that he had used a .357
revolver to shoot at some rats in his camper.' Moore also told the
officers that they were welcome to have the .357 revolver. The
interview concluded after Moore invoked his right to counsel for
the third time. Sgt. Burns then drove Moore home to pick up the
gun. Moore could not drive himself home as the police had just
seized his pickup. En route, Sgt. Burns made the following
statement, "[Ylou know, make sure you don't do anything to
yourself. You know, nothing is that bad." Moore responded, "if I
did something to myself then w ' never find Brad."
ed
Moore moved to suppress the statement he made while in the
patrol car. The District Court denied the motion, concluding that
Moore was not in custody and that his statement was entirely
voluntary and was not made as part of a custodial interrogation.
Therefore, this Court must determine if the District Court
correctly concluded that: (1) Moore was not in custody at the time
he made the statement to Burns; and (2) Burns had made no effort to
interrogate Moore. State v. Flack (1993), 260 Mont. 181, 185, 860
P.2d 89, 92.

. The District Court granted Moore's motion to suppress the
statements he made at this interview. This Court
affirmedthe District Court's suppression ruling in State
v. Moore (1991), 250 Mont. 254, 818 P.2d 835.
 In support of his claim of error, Moore characterizes the
interrogation technique used by the officers at the police station
as a suicide colloquy; i.e., the officers used Moore's confused
mental state to convince him that if he did not confess, he was
likely to commit suicide. According to Moore, the statement Burns
made in the patrol car was simply a continuation of that technique.
In determining whether a custodial interrogation has occurred,
this Court examines whether a "reasonable personn would feel free
to leave. State v. Staat (l99l), 251 Mont. 2 , 6, 8 2 2 P.2d 643,

646. If a reasonable person does not f e e l free to leave, then the
examination is custodial. Staat, 822 P.2d at 646. The
determination of what constitutes custodial interrogation is made
on a case-by-case b a s i s . Staat, 822 P.2d at 6 4 6 .

In this case, the facts clearly indicate that Moore was in
custody at the time he made the statement to Sgt. Burns. Moore had
been taken into the police station for questioning, where he was
advised of his Miranda rights. During the interview Moore offered
to provide the officers with a gun he had at home. After the
interview concluded, Sheriff Cutting asked Sgt. Burns to go with
Moore to get the gun. Burns then told Moore, t t [ w ] e might as we12
get in my vehicle." Moore was not allowed to drive his vehicle
home as it had just been seized.
Having concluded that Moore was in custody while riding in the
police car, w e must next determine whether Moore was interrogated
by Sgt. Burns after Moore had invoked his right to counsel. Flack,
860 P.2d at 9 2 .
 In Rhode Island v. Innis (1980), 446 U.S. 291, 100 S.Ct. 1682,
64 L.Ed.2d 297, the United States Supreme Court addressed the
meaning of tlinterrogationgl
under the holding of Miranda v. Arizona
(1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 692. The United
States Supreme Court held that interrogation included express
questioning and persuasion techniques while a subject was in
custody. Innis, 446 U.S. at 299, 100 S.Ct. at 1689, 64 L.Ed. 2d
at 307. According to the Court, interrogation includes "any words
or actions on the part of the police . . . that the police should
know are reasonably likelyto elicit an incriminating response from
the suspect.'' Innis, 446 U.S. at 301, 100 S.Ct. at 1689-90, 64
L.Ed.2d at 307-08. The focus of the inquiry is on the perception
of the suspect and not the perceptions of the police. However, the
Court recognized that the police should not Itbeheld accountable
for the unforeseeable results of their words or actions," and
therefore, limited the definition of interrogation to "words or
actions on the part of police officers that they should have known
were reasonably likely to elicit an incriminating response."
(Emphasis in original) Innis, 446 U.S. at 301-02, 100 S.Ct. at
1690, 64 L.Ed.2d at 308.

Applying this test to the case before us, we conclude that
Moore was not interrogated within the meaning of Miranda. First,
although Sgt. Burns was present during the initial interview, he
did not participate in any direct questioning of Moore. Second, we
are not convinced that the officers conducted the interviews using
a suicide colloquy. Sheriff Cutting testified that there was no
plan or tactic used to interview Moore, other than to confront him
with new evidence. Finally, Burns testified that he had known
Moore for years, and had made the statement in the patrol car out
of concern for Moore's well being. Burns had no reason to know
that Moore would respond to the statement in the manner that he
did.
Given these facts, Sgt. Burnsr statement cannot be
characterized as reasonably likely to elicit an incriminating
response. Although the District Court was incorrect in concluding
that Moore was not in custody, it was correct in determining that
Sgt. Burns made no effort to interrogate Moore, and that any
statements Moore made during this time were voluntary and
admissible at trial. Where the result reached by the district
court is correct, we will uphold it upon appeal regardless of the
reasons given for the result. Kephart v. Portmann (1993), 259
Mont. 232, 236, 855 P.2d 120, 122-23. We therefore affirm the
District Court's denial of Moore's motion to suppress.
Issue 5.
Whether the District Court erred in denying Moore's
motions for a change of venue and motion for individual
voir dire on the issue of pretrial publicity?
Moore moved for a change of venue on April 24, 1991, alleging
that the extensive pretrial publicity his case had received made it
impossible for him to receive a fair and impartial trial in
Gallatin County. The District Court denied this motion in a
Memorandum Opinion filed on January 16, 1992, wherein the court
found that up to that point in time, the "[plress reports of this
case have been uniformly professional, free of bias, prejudice,
inflammatory matters, and comment." The court however reserved the
right to monitor and re-examine the issue during selection of the
jury panel. Moore renewed his motion for a change of venue on
September 4, 1992. The District Court denied the motion in a
written order dated September 24, 1992.
Moore also moved the court for individual voir dire on the
issue of pretrial publicity. Although the District Court
originally granted the motion, it later reversed itself, deniedthe
motion, and required that voir dire be conducted in open court. On
appeal, Moore maintains that the District Court erred in denying
his motions. ,
This Court will reverse a district court's denial of a motion
for change of venue or motion for individual voir dire only upon a
showing of an abuse of discretion. State v. Sunday (1980)' 187
Mont. 292, 298, 609 P.2d 1188, 1192.
Criminal defendants have a constitutional right to a trial by
an impartial jury, and failure to provide an impartial tribunal is
a violation of due process. U. S. Const. amend. VI, Mont. Const.
Art. 11, Sec. 24. Additionally, § 46-13-203(1), MCA, permits a
defendant to move for a change of venue when "there exists in the
county in which the charge is pending such prejudice that a fair
trial cannot be had in the county.It
A defendant is entitled to a change of venue if it appears
there are reasonable grounds to believe that prejudice exists and
that by reason of the prejudice, there is a reasonable apprehension
that the accused cannot receive a fair and impartial trial. State
v. Link (1981), 194 Mont. 556, 559-60, 640 P.2d 366, 368. A
defendant seeking a change of venue on the basis of prejudicial
pretrial publicity must prove two elements: (1) that the news
reports were inflammatory; and (2) that the news reports actually
inflamed the prejudice of the community to an extent that a
reasonable possibility exists that the defendant may not receive a
fair trial. State v. Bousquet (1991), 248 Mont. 53, 56, 808 P.2d
506, 508. (Citations omitted.)
The test requires us to examine whether the publicity was of
sufficient inflammatory nature so as to generate a widespread
belief among the community of the defendant's guilt. State v.
Miller (1988), 231 Mont. 497, 505, 757 P.2d 1275, 1280. This Court
has characterized inflammatory publicity as:
editorializing on the part of the media or any calculated
attempt to prejudice public opinion against [defendant]
or to destroy the fairness of the pool from which [the
defendant's] prospective jurors would be drawn.
State v. Nichols (1987), 225 Mont. 438, 444, 734 P.2d 170, 173-74.
(Citation omitted.)
Moore alleges that from December 7, 1990, until the time of
trial, potential jurors were exposed to approximately one article
a week pertaining to Moore and the homicide. These numbers,
according to Moore, show the pervasiveness of the publicity. Moore
alleges the newspaper articles were inflammatory for a number of
reasons. Moore claims that the media: emphasized the grief
experienced by the Brisbin family; printed numerous inflammatory
remarks from law enforcement officials and prosecutors; and
39
portrayed the DNA evidence as " a scientific saviorq4
for the Staters
case.

Upon reviewing the numerous newspaper articles submitted by

Moore, we do not agree that the newspaper reports were
inflammatory. Although a few reports mentioned Rene Brisbinfs
grief, it is misleading to characterize the reports as emphasizing
the family's grief. Regarding the press coverage of the allegedly
inflammatory remarks made by the State, the remarks published were
statements made during pretrial proceedings or statements
concerning the investigation of the case. There was no
editorializing on the part of the press in reporting these
statements.
As to t h e publicity covering the DNA evidence, given the fact
t h a t Mooreis case presented the first instance DNA testing was to
be used in a Montana homicide trial, it is not surprising that the
press would extensively cover this story. In addition, after
reviewing the articles concerning the DNA evidence, we conclude
that the media presented a balanced view of the issue, For
example, the Bozeman Dailv Chronicle printed an article on March
10, 1991, entitled tlInvisibleCrime Clues. The article states
that "DNA fingerprinting has been viewed as virtually foolproof in
linking suspects with crimes." However, the article later reports
ll[bjut DNA testing is far from perfect. Attorneys have begun
challenging the process and succeeding, causing the scientific
community to reexamine the procedure. l1 Given the balanced
reporting of the DNA issue, we conclude that these articles cannot
be characterized as inflammatory.
Moore also alleges that the media coverage of the suppression
hearings was prejudicial to his case. While facially it appears
that publication of suppressed statements is prejudicial to a
defendant's case, mere allegations of prejudicial pretrial
publicity are an insufficient basis on which to grant a motion for
a change of venue. Rather, defendant must show that the publicity
actually inflamed community prejudice to such an extent that the
defendant is denied a fair trial. State v. Ritchson (1982), 199
Mont. 51, 54, 647 P.2d 830, 832.
Moore maintains that the public opinion survey he had
commissioned demonstrates that he was denied a fair trial. The
survey questioned 106 persons in Gallatin County concerning the
media's coverage of Moore's case. The survey results showed that
85.8 percent of the respondents had been exposed to media coverage
concerning the case. Approximately thirty percent (30.2%) said
they had an opinion, while 50.9 percent said they did not have an
opinion and 15.1 percent said they did not know. Therefore, two-
thirds of the respondents either had not formed an opinion or did
not know if they had formed an opinion about the case as a result
of the media coverage.
Moore relies on State v. Paisley (1983), 204 Mont. 191, 663
P.2d 322, as authority for the proposition that even where a survey
does not overwhelmingly indicate the likelihood that a defendant
will not receive a fair trial in the county, a defendant may still
be entitled to a change of venue. However, Paisley is
distinguishable because in that case, the media coverage was
inflammatory, while in the instant case it was not.
The defendant in Paisley, was charged with both misdemeanor
and felony sexual assault. A trial on the misdemeanor charge was
held in justice court prior to his being tried on the felony
charges. Paislev, 663 P. 2d at 323. The trial in justice court
received extensive coverage, and upon the justice court's return of
a guilty verdict, the local newspaper reported that the justice
court judge told the defendant: "[Tlhe evidence presents you as
being guilty of more than the particular offense charged." In
addition the paper reported that "[The judge] said he was amending
the formal charge to include misdemeanor charges against [the
defendant] that could have resulted from the incidents detailed in
the testimony of the witnesses." The witnesses were the alleged
victims of the pending felony charges. Paislev, 663 P.2d at 324.
As previously discussed, our review of the newspaper articles
submitted by Moore evidences that the pretrial publicity in this
case was not inflammatory. Unlike the media coverage in Paislev,
the newspaper reports did not present Moore as being guilty of the
crimes charged before he received his trial.
Even Moore concedes in his brief that I1[t]he results of Dr.
Floyd's survey did not overwhelmingly indicate, one way or the
other, that Mr. Moore would or would not receive a fair and
impartial trial in Gallatin County." Moore's acknowledgement that
the survey results were inconclusive combined with the fact that
the pretrial publicity was not inflammatory demonstrates that Moore
was not denied his right to a fair trial.
Moore also contends that because over one-third of the panel
immediately excused themselves after being asked if they could not
sit fairly on the case for any reason demonstrates the extent and
prejudicial nature of the pretrial publicity. However, the record
fails to support this claim. Two of the jurors stated the reason
they were unable to serve was because they knew someone in the
Brisbin family. One juror stated he had knowledge of the case due
to his extensive dealings with law enforcement. And two others
indicated they could not convict the defendant of homicide unless
the State produced the victim's body.
The jurors were questioned about their exposure to pretrial
publicity. While most indicated they had read or heard something
about the case, they all stated they would base their decisions
only upon the evidence they received from the witnesses and
exhibits presented at trial.
Living, as we do, in a society which is continuously inundated
with news coverage by the print and broadcast media, it is doubtful
that most members of the community will not share some knowledge
of, or about, a locally high-profile crime, and the various persons
allegedly involved in its commission or in its investigation.
Given the inevitable conflict with the media's constitutional right
of free speech, the public's constitutional right to know, and the
accused's constitutional right to a fair trial, it remains the task
of the district court, in such cases, to scrupulously examine the
evidence supporting a motion for change of venue to insure that the
jurors who will ultimately decide the guilt or innocence of the
accused are fair minded and uninfluenced by what they may have
seen, heard or read. That conclusion must necessarily be based
upon not only the jurors' responses in voir dire, but also on a
careful analysis of the quantity and content of the pretrial
publicity. Each case is unique and must be decided on its own
merits. Bourquet, 808 P.2d at 508. While this was a difficult
case, we are nevertheless satisfied that the trial judge
conscientiously considered this issue, and that despite the
pervasiveness of the media coverage, it was generally balanced and
fair. We conclude the jurors who decided Moore's fate were not
disposed to guilt or innocence by what they may have seen, heard or
read in the media.
We further conclude that Moore failed to establish either that
the news reports were inflammatory or that the reports actually
inflamed the prejudice of the community. Therefore, we hold that
the District Court did not abuse its discretion in denying Moore's
motions for a change of venue.
Finally, Moore argues that the District Court erred in denying
his motion for individual voir dire on the issue of pretrial
publicity. The District Court determined that the need for
individual voir dire could be assessed during the jury selection
process, and permitted individual voir dire upon counsel's request.
In deciding whether to close voir dire, this Court has held:
Closed voir dire has been found unnecessary where the
publicity is factually accurate and contains the
essential facts of the crimes which would ultimately be
presented to the jury anyway. The trial judge's plan to
 question individual veniremen in chambers should the need
arise would have been adequate had it been properly
implemented. This is especially true since the veniremen
were cautioned that if they had strong opinions about the
case, they should notify the judge. (Citation omitted.)
Nichols, 734 P.2d at 174
In the instant case, the court found that the publicity was
"uniformly professional, free of bias, prejudice, inflammatory
matters, and comment. The court also allowed individual voir
dire upon counsel's request. Therefore, we hold that the District
Court did not abuse its discretion in denying Moore's motion for
individual voir dire.
Issue 6.
Whether the District Court erred when it denied
Moore's motion for a new trial on claims of juror
misconduct?
On January 19, 1993, Moore moved for a new trial alleging,
among other things, juror misconduct as a result of two contacts
Moore had with juror Tina Coulston during trial which occurred
outside of the courtroom. During trial, Ms. Coulston told some of
the other jurors about these contacts. Ms. Coulston also related
a bad dream she had about Moore to some of the other jurors just
prior to deliberations.
After learning that Ms. Coulston made these remarks to other
jurors, Moore moved for a new trial two months after the verdict.
Moore alleged in his motion that "one of the jurors expressed an
opinion during deliberations to the other jurors that she was being
stalked by the defendant in the course of the trial."
Pursuant to Moore's motion, a hearing was held where Ms.
Coulston testified that on two different occasions, Moore had come
out to the Gallatin County airport cafe and ordered coffee. Ms.
Coulston testified that she acted as Moore's waitress on both
occasions, as she was the only waitress on duty, and that she did
not talk to him on either occasion. Ms. Coulston also testified
the contacts made her uncomfortable, but that she did not feel
threatened. Ms. Coulston testified that she never used the term
stalking when explaining the situation, and did not know where the
term came from. In addition, the other jurors who testified
concerning the stalking allegation related that Ms. Coulston did
not use the term wstalking."
The following testimony from the hearing on Moore's motion for
a new trial, evidences that Ms. Coulston did not relate to other
jurors or anyone else, that she believed Moore was stalking her,
following her, or that she felt threatened by the incidents.
Q: [By defense counsel] During the trial, do you recall
telling Patrick Fleming or saying in his presence at a
lasagna party that Larry Moore was stalking you,
following you, or watching you?
A: [By Ms. Coulston] I did not say that.

Q: Did you express concern regarding your belief that
you were being watched by Larry Moore?
A: NO.
Q: You did not express concern to the other jurors?
A: Just that he was there and he made me uncomfortable.

Q: And you told two different groups of jurors during
the trial when they were sitting as active jurors in this
46
 case Mr. Moore was watching you, isn't that correct?
A: I did not say he was watching me. I told them about
the incident at the airport.
Q: An you indicated by your tone of voice and by your
expressions and by your gestures that you felt threatened
by Mr. Moore, isn't that correct?
A: NO.
Q: And as a matter of fact, Miss Coulston, you did feel
threatened by Mr. Moore, didn't you?
A: No, I did not.
When testifying about relating her dream to the other jurors,
Ms. Coulstonrs stated that she could not remember the specifics of
her dream, just that she had a bad dream. However, Juror Knight
testified that Ms. Coulston related to other jurors that "[Ms.
Coulston] dreamed that we all found Larry guilty, and he had a gun
and he shot Mr. Jent and you, [Jent's co-counsel] and he grabbed
her out of the jury box and ran off with her."
After considering the testimony at the hearing, the District
Court denied Moore's motion finding no evidence to support the
allegation of juror misconduct concerning either the %talkingtt
claim or in relating the dream. We agree.
The decision whether to grant a new trial is left to the sound
discretion of the trial judge. Absent an abuse of discretion, we
will not overturn a denial of a motion for a new trial on appeal.
State v. Arlington (1994), 51 St.Rep. 417, 427, 875 P.2d 307, 321;
State v. Staat (1991), 251 Mont. 1, 9-10, 822 P.2d 643, 648.
Initially, we address the State's argument that the District
Court was without jurisdiction to consider Moore's motion for a new
trial, because he failed to file his motion within 30 days of the
verdict as is required by statute. Section 46-16-702, MCA,
provides in pertinent part:
Motion f o r a new t r i a l .
(1) Following a verdict or
finding of guilty, the court may grant the defendant a
new trial if required in the interest of justice.
(2) The motion for a new trial must be in writing
and must specify the grounds for a new trial. The motion
must be filed by the defendant within 30 days following
a verdict or finding of guilty and be served upon the
prosecution.
Moore argues that our decision in State v. Redcrow (1990), 242
Mont. 254, 790 P.2d 449, provides two exceptions to the 30 day time
limit: (1) if the motion was filed within a reasonable period of
time after the verdict; and (2) if the crime is of a serious
nature. However, in Redcrow we noted that those factors did not
require the district court to entertain the motion, but
nevertheless, we agreed to address the issue as a result of the
district court's extensive consideration of the motion. Redcrow,
790 P.2d at 452. Similarly, in the instant case, because the
District Court gave extensive consideration to Moore's motion for
a new trial, and because this is a serious case, we shall address
the merits of the motion.
A defendant's right to a fair and impartial jury is guaranteed
by both our state and federal constitutions. Mont. Const. Art. 11,
Sec. 2 4 ; U. S. Const. amend. VI. Moore argues that when a defendant
moves for a mistrial based on ex parte contact, the defendant is
afforded a presumption of prejudice. We disagree.
Where a defendant moves for a mistrial based on juror
misconduct resulting from ex parte contact, the defendant must
demonstrate "actual prejudicet1in order to receive a new trial.
State v. Hage (1993), 258 Mont. 498, 503, 853 P.2d 1251, 1254,
citing, united states v. Madrid (9th Cir. 1988), 842 F.2d 1090,
1094-95, cert. denied 488 U.S. 912, 109 S.Ct. 269, 102 L.Ed. 2d 256.
The Ninth circuit Court in Madrid distinguished between cases where
ex parte contact provided ItextraneousinformationI1to the jury, and
ex parte contact which did not pertain to "any fact or controversy
or any law applicable to the case." The court held that the
defendant must prove actual prejudice in cases which do not involve
the unauthorized submission of extraneous information to the jury.
Madrid, 842 F.2d at 1093.
Here the District Court concluded that the contact did not
result in the jury receiving any extraneous information. The court
summarized its ruling as follows:
There had been no discussion between the defendant
and Miss Coulston. There had been no discussion of the
case between Miss Coulston and any of the other jurors.
What really occurred was that Mr. Moore was at the
Gallatin County airport to pick up or deliver his sister
or his mother, who were in attendance at one time or
another during the course of this trial, and saw Ms.
Coulston there.
So i ' going to be the Court's ruling with respect
ts
to that issue that it is insufficient and inadequate as
a matter of law to impeach the jury verdict or to cause
this Court to grant a new trial or to cause this Court to
set aside the jury verdict in this case.
We agree that no extraneous information was submitted to the jury
as a result of Ms. Coulston's relating the incidents. There was
testimony that the defendant and the juror had seen each other at
the Gallatin County airport. The extent of the contact was that
Ms. Coulston acted as Moore's waitress. Moore kept his head down
and did not engage Ms. Coulston in any conversation.
We conclude that Ms. Coulston did not discuss any fact in
controversy or any law applicable to the case with either Moore or
other jurors. Ms. Coulston merely mentioned an incident that had
occurred to her about which she was concerned.
In alleging that Ms. Coulston related to other jurors that she
felt Moore was stalking her during trial, we first observe that the
evidence does not support the accusation. Moreover, it appears
that Moore is attempting to take advantage of his own conduct.
During the trial Moore went to the airport cafe on two occasions
and ordered food or coffee from Ms. Coulston. Ms. Coulston had to
serve Moore as she was the only waitress on duty. Ms. Coulston
related to other members of the jury that she was concerned by the
contact. However, there is no evidence in the record that the
"stalkingB1
term came from the juror, or that she made remarks that
Moore had "stalked" her during trial.
The law will not allow a defendant to purposefully create
grounds for a mistrial. ' T hold otherwise would provide a
'o
criminal defendant with a convenient device for provoking a
mistrial whenever he chose to do so, either inside or outside the
courtroom." Hammond v. United States (D.C.App. 1975) , 345 A. 2d
140, 141. We agree with the reasoning of the Supreme Court of
Maine which held:
[A] defendant who seeks to prejudice his own case by
[contact with a juror], and keeps that contact secret
until an unfavorable verdict is returned, cannot claim to
be prejudiced by his own misdeed.
State v. Nielson, (Me. 1989), 552 A.2d 543, 545.
 Although he was permitted an evidentiary hearing to prove his
allegations of juror misconduct, Moore failed to prove that juror
misconduct occurred, or that his right to a fair trial was
prejudiced. Rather, it appears that Moore was simply trying to
take advantage of his own acts.
Moore also contends that it was juror misconduct for Ms.
Coulston to have related her dream about Moore to the jury. The
State counters that the dream is beyond the scope of inquiry
pursuant to Rule 606(b), M.R.Evid.
Rule 606(b), M.R.Evid., provides in pertinent part:
Inquiry into validity of verdict or indictment. Upon an
inquiry into the validity of a verdict or indictment, a
juror may not testify as to any matter or statement
occurring during the course of the jury's deliberations
or to the effect of anything upon that or any other
juror's mind or emotions as influencing the juror to
assent or dissent from the verdict or indictment or
concerning the juror's mental processes in connection
therewith. ..
However, as an exception to this subdivision, a
juror may testify . . .
as to any matter or statement
concerning only the following questions, whether
occurring during the course of the jury's deliberations
or not: (1) whether extraneous prejudicial information
was improperly brought to the jury's attention; or (2)
whether any outside influence was brought to bear upon
any juror. ..
This Court has held that "[a] juror's physical, mental, and
emotional condition is inherent in the verdict, and the effect of
such a condition on a juror's vote is within the prohibition of
Rule 606 (b). ' I Haqe, 853 P.2d at 1257, citing State v. DeMers
(1988), 234 Mont. 273, 277-278, 762 P.2d 860, 863. After an
extensive search, this Court was unable to find any authority
indicating that a juror's relating a dream to other jurors
constituted either impermissible extraneous prejudicial
information, or an outside influence. Therefore, w e hold that any
inquiry into Ms. Coulston's dream is prohibited pursuant to Rule
606 (b), M.R. Evid., as it relates to her mental process, and because

it cannot be characterized as an exception to the rule.
During the trial Ms. Coulston approached the bailiff, and
related that Moore had been out at the airport cafe. Ms. Coulston
explained she was concerned about the contact, and thought it was
very peculiar that Moore would travel all the way to the airport to
eat. The bailiff asked Ms. Coulston whether Moore had talked to
her. Upon learning that Moore did not say anything, the bailiff
told Ms. Coulston that she (the bailiff) would bring the matter to
the judge's attention, and would let Ms. Coulston know if the court
had any further concerns. The bailiff related the matter to the
judge, and the matter never came up again during the trial or
deliberations. Moore argues that the District Court erred by
failing to immediately notify counsel of the situation after Ms.
Coulston contacted the bailiff.
Moore alleges that had he learned of this incident during
trial, he would have questioned Ms. Coulston and the other jurors
during trial to determine what she had conveyed to them concerning
the incident. If the defense determined Ms. Coulston had related
that she felt she was being stalked by Moore, the defense would
have asked the court to remove Ms. Coulston from the jury and to
seat one of the alternate jurors.
Moore's claims are without merit. He was afforded a hearing
after trial but could not demonstrate prejudice. As stated by the
United States Supreme Court in Rushen v. Spain (1983), 464 U.S.

When an ex parte communication relates to some aspect of
the trial, the trial judge generally should disclose the
communication to counsel for all parties. The
prejudicial effect of a failure to do so, however, can
normally be determined by a post-trial hearing. The
adequacy of any remedy is determined solely by its
ability to mitigate constitutional error, if any, that
has occurred. Post-trial hearings are adequately
tailored to this task. (Citations omitted.)
The United State Supreme Court addressed the issue of juror
misconduct as a result of ex parte contact in Smith v. Phillips
(1982), 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78. There a juror
applied for a job as an investigator with the district attorney's
office during the defendant's trial. The prosecution did not
disclose this information until after the verdict had been
rendered, and the defendant moved to set aside the verdict. Smith,
455 U.S. at 212-13, 102 S.Ct. at 943-44, 71 L.Ed.2d at 83-84. The
trial court denied the motion after holding a post-trial hearing,
at which the defendant failed to demonstrate prejudice. Smith, 455
U.S. at 213-14, 102 S.Ct. at 944, 71 L.Ed.2d at 84. The defendant
argued to the United States Supreme Court that jurors' testimony
could not be relied upon to determine whether they were impartial,
and maintained that the law must impute bias to jurors in these
situations. Smith, 455 U.S. at 215, 102 S.Ct. at 944-45, 71
L.Ed. 2d at 85. The Supreme Court disagreed, stating, "[tlhis Court
has long held that the remedy for allegations of juror partiality
is a hearing in which the defendant has the opportunity to prove
actual bias." Smith, 455 U.S. at 215, 102 S.Ct. at 945, 71 L.Ed.2d
at 85. The Court also stated:
[Dlue process does not require a new trial every time a
juror has been placed in a potentially compromising
situation. Were that the rule, few trials would be
constitutionally acceptable. The safeguards of juror
impartiality, such as voir dire and protective
instructions from the trial judge, are not infallible; it
is virtually impossible to shield jurors from every
contact or influence that might theoretically affect
their vote. Due process means a jury capable and willing
to decide the case solely on the evidence before it, and
a trial judge ever watchful to prevent prejudicial
occurrences and to determine the effect of such
occurrences when they happen. Such determinations may
properly be made at a hearing like that . ..held in
this case.
Smith
I 455 U . S . at 217, 102 S.Ct. at 946, 71 L.Ed.2d at 86.

In conclusion, here, the trial judge held a hearing on Moore's
motion for a new trial, and Moore failed to demonstrate that his
right to a fair trial was prejudiced as a result of alleged juror
misconduct. We therefore hold that the District Court did not
abuse its discretion in denying Moore's new trial motion on the
basis of juror misconduct.
Issue 7.
Whether the District Court erred when it prohibited
Moore from impeaching the verdict with juror testimony?
Among the reasons included in Moore's motion for a new trial
was his allegation that during deliberations, certain jurors
expressed opinions based on personal knowledge respecting the
characteristics of a - 3 5 7 magnum handgun. According to Moore, one
of the jurors told the other jurors that he knew a - 3 5 7 magnum
handgun could not be fired in rapid succession. Moore argues that
as a result of the juror relating his opinion, the other jurors
concluded that Moore's story concerning Brisbin shooting himself
was inherently incredible.
The District Court refused to allow Moore to question the
jurors about the discussion concerning the handgun, ruling that it
was part of the jury dynamics and therefore any inquiry into the
matter was precluded by Rule 606(b), M,R.Evid. On appeal Moore
alleges that the District Court should have allowed juror testimony
concerning t h i s issue. According to Moore, the juror's comment
concerning his knowledge of the .357 handgun is similar to the
situation where a juror conducts an experiment outside of the
courtroom and then relates the experiment's outcome to the other
jurors. Therefore, Moore argues he should have been allowed to
question the jurors regarding this matter pursuant to the

exceptions to Rule 6 0 6 (b), M.R. Evid, We disagree, and conclude
t h a t Moore is asking this Court to allow inquiry into t h e i n t e r n a l
mechanisms of t h e jury's decision-making process.
Rule 606 (b) , M R Evid. , precludes
.. inquiry regarding the

i n t e r n a l mechanisms and processes the j u r y used to deliberate and
reach a v e r d i c t . However, 'ICwfhere external influence i exerted
s
on the jury or where extraneous prejudicial information i brought
s
to the jury's attention, juror [testimony] can be the basis f o r
o v e r t u r n i n g t h e judgment i f either party w a s t h e r e b y deprived of a

fair trial.'' Haw, 853 P.2d at 1257.

Moore1s characterization of the discussion about the gun a s an
external i n f l u e n c e is erroneous, A s we stated in H a w :
[Kjnowledge and information s h a r e d from one juror to
another or others is not an extraneous influence. Jurors
55
 are expected to bring to the courtroom their own
knowledge and experience to aid in the resolution of a
case.... For the juror to have considered the credibility
of defendant's expert witness within the parameters of
his own experience and background is insufficient to
qualify as an exception to Rule 606(b).'
Haqe, 853 P.2d at 1257-58, quoting State v. DeMers (1988), 234
Mont. 273, 277-78, 762 P.2d 860, 863
In DeMers, this Court rejected the defendant's argument that
one of the jurors influenced the other jurors with his expertise
regarding the study of bones. We held that a juror's possession of
knowledge of the human body did not fall under any of the
exceptions to Rule 606(b), and we affirmed the district court's
refusal to allow juror testimony concerning the matter. DeMers,
762 P.2d at 863. Similarly, a juror's consideration and sharing of
his personal knowledge of a handgun cannot be characterized as an
external influence or extraneous prejudicial information. There is
no evidence that any juror conducted any out-of-court experiments
in this case. We therefore hold that the District Court was
correct in concluding that inquiry into this matter was precluded
pursuant to Rule 606(b), M.R.Evid.
Issue 8.
Whether the District Court erred when it denied
Moore's motion for a judgment of acquittal alleging there
was insufficient evidence to convict him of deliberate
homicide?
Moore moved for a judgment of acquittal alleging that there
was insufficient evidence to convict him of deliberate homicide.
Moore advances three arguments to support: his motion: (1) the State
failed to prove that Moore purposely or knowingly caused Brisbin's
death; (2) the evidence failed the sufficiency analysis for
circumstantial evidence; and (3) the only evidence which proves
Brisbinrs death is the piece of brain tissue which was found in
Moore's camper, and the State did not prove beyond a reasonable
doubt that the brain tissue was human.
The decision whether to direct a verdict of acquittal lies
within the sound discretion of the trial court and will not be
disturbed absent an abuse of that discretion. The trial court
should grant a motion for a directed verdict of acquittal only when
there is no evidence to support a guilty verdict. State v.
Bromgard (1993), 261 Mont. 291, 293, 862 P.2d 1140, 1141. The
standard of review for a judgment of acquittal is "whether, after
viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt." State
v. Mergenthaler (1994), 263 Mont. 198, 203, 868 P.2d 560, 562. We
address each of Moore's arguments in turn.
1. Mental State
Moore was charged with deliberate homicide, which requires the
State to prove that Moore purposely or knowingly caused the death
of Brisbin. Section 45-5-102, MCA. Moore claims that the record
is bare concerning Moore's mental state at the time the homicide
was committed.
Section 45-5-112, MCA, provides that "[i]n a deliberate
homicide, knowledge or purpose may be inferred from the fact that
the accused committed a homicide and no circumstances of
mitigation, excuse, or justification appear." While Moore
recognizes this statute, he claims that it creates a presumption
which unconstitutionally relieves the State of its burden of
proving an element of the crime. However, it is well established
that § 45-5-112, MCA, does not create a conclusive presumption but
a permissive inference. The ultimate determination is left to the
finder of fact. State v. Cowan (1993), 260 Mont, 510, 516-17, 861
P.2d 884, 888. We therefore reaffirm the constitutionality of §

45-5-112, MCA, and hold that there was sufficient evidence for the
jury to conclude that Moore purposely or knowingly caused the death
of Brisbin.
2. Circumstantial Evidence
While Moore recognizes that a person may be convicted upon
circumstantial evidence alone, Bromqard, 862 P.2d at 1142, citing,
State v. Atlas (1986), 224 Mont. 92, 95, 728 P.2d 421, 423, he
maintains that "the facts and circumstances in evidence should be
consistent with each other and the guilt of the defendant, and
inconsistent with any reasonable theory of the defendant's
innocence.
While this may be true, it is the jury's province to judge
inconsistencies in the evidence and not a matter for the trial
court to determine on a motion for judgment of acquittal. See,
Bromqard, 862 P.2d at 1142. Furthermore, this Court has also held
ll[w]hen circumstantial evidence is susceptible of two
interpretations, one supporting guilt and the other supporting
innocence, the trier of fact determines which is most reasonable.''
Bromaard, 862 P.2d at 1142, citing, State v. Tome (1987), 228 Mont.
398, 401, 742 P.2d 479, 481. Moore's allegation that the evidence
was circumstantial and susceptible of different interpretations
more properly goes to the weight of the evidence. We therefore
conclude that Moore's argument that the circumstantial evidence was
insufficient to prove Moore's guilt beyond a reasonable doubt is
without merit, and hold that the District Court did not abuse its
discretion in denying the motion for a judgment of acquittal on
that basis.
3. Brain Tissue
Moore contends that the only evidence which proves Brisbinls
death is the piece of brain tissue which was found in Moore1s
camper, and the State did not prove beyond a reasonable doubt that
the brain tissue was human. Moore states that the experiment Dr.
Blake conducted demonstrates that the DNA amplified by the PCR test
could have been any human genetic material (i-e.,not cerebellum
tissue) on a substrate such as deer brain. In fact, Dr.
Schanfield, the State's expert, readily admitted that deer brain
mixed with human blood would amplify under the DQ-alpha system.
Moore states that his theory that the piece of brain tissue was
actually deer brain or other tissue which had been contaminated by
Brisbin's blood is further supported by the fact that of the two
samples of brain tissue, only one sample amplified. However, as
we stated in issue three, Moore's theory concerning the brain
tissue provided nothing more than an alternative theory for the
jury's consideration. Moreover, we do not agree that the piece of
brain tissue is the only evidence of Brisbinls death. The record
is replete with evidence of Moore's guilt. Brisbin disappeared on
the morning of November 9, 1990, after meeting Moore at Bairrs
truckstop. Because Brisbin was a conscientious father and
businessman, his disappearance was totally out of character.
Upon returning to West Yellowstone, on November 9, 1990, Moore
developed a story that he last saw Brisbin climbing into a car on
Interstate 90 with a woman driver. When confronted with
incriminating evidence, Moore began to change his story, and
eventually developed the story that Brisbin was drunk, threatening
suicide, and had shot himself in the head after Moore struggled to
get a gun away from him. Moore testified at trial that he
initially lied about the facts surrounding Brisbinfs disappearance

because he thought Brisbin might wan.t to return and t a k e the job as
undersheriff, which Brisbin had applied for before his
disappearance, and the incident might jeopardize Brisbinis
position.
Moore expended great efforts to destroy evidence in his
camper, including removing bullet fragments, covering up bullet
holes, and using a power washer to clean the interior of the
camper. Attorney Larry Whitman and Sheriff Slaughter each received
a letter purportedly from Brisbin. In the letter to Whitman, Rene
Brisbinfsname was misspelled, and it made reference to the alleged
events which took place in the camper. Moore acknowledged that
only he and Brisbin could have known what had occurred in Moore's
camper on November 9, 1990. The signatures on the letters were
determined to be forgeries.
In addition, both serological and RFLP analysis of the muscle
tissue found in the camper indicated that the muscle tissue was of
human origin, and was consistent with having come from the
biological father of the Brisbin children. The PCR analysis of the
brain tissue also indicated that the tissue was human and
consistent with the father of the children.
Without going into further detail, based on our review of the
record, we conclude that the State presented a significant amount
of evidence upon which a rational trier of fact could find Moore
guilty beyond a reasonable doubt. Therefore, we hold that the
District Court did not abuse its discretion in denying Moore's
motion for a judgment of acquittal.
Issue 9.
Whether Moore was denied his right to a speedy
trial?
Moore argues he was denied his right to a speedy trial as a
result of the State's two interlocutory appeals. The State filed
its first interlocutory appeal on April 25, 1991. The appeal was
taken from the District Court's ruling which granted Moore's motion
to suppress evidence of the taped interviews taken by law
enforcement officials, and which reserved ruling on whether the
State could use the suppressed evidence for impeachment. This
Court affirmed the District Court's rulings in our opinion dated
October 8, 1991. State v. Moore (lggl), 250 Mont. 254, 818 P.2d
835.

On January 24, 1992, the State filed its second interlocutory
61
appeal. The State appealed from the District Court's order of
January 16, 1 9 9 2 , suppressing e v i d e n c e relating to the actions of
Moore after the s h o o t i n g of B r i s b i n , and the testimony of two
potential witnesses. W e r e v e r s e d t h e District Court's suppression

rulings on all issues. State v. Moore (19921, 2 5 4 Mont. 241, 8 3 6
P.2d 6 0 4 . We issued our second opinion on August 20, 1 9 9 2 .
The right to a speedy trial in a criminal prosecution is
guaranteed by the Sixth Amendment to the United States
Constitution, and Article 11, Section 24 of the Montana
Constitution. State v. Stewart (1994), 51 St.Rep. 910, 881 P.2d
629, 632. Montana has adopted the test s e t f o r t h i n Barker v.
Wingo (l972), 407 U , S . 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, to

determine whether the right to a speedy trial has been violated.
State ex r e l . Briceno v. District Court (1977), 173 Mont. 516, 568
P.2d 162. The factors this Court must examine are the tt[l]engthof
delay, the reason for the delay, the defendant's assertion of his
right, and prejudice to t h e defendant." Barker, 407 U.S. a t 530,
9 2 S.Ct. a t 2 1 9 2 , 3 3 L.Ed.2d at 117; State v. Thompson (1993), 263
Mont. 1 7 , 31-32, 8 6 5 P.2d 1125, 1 1 3 4 .
Moore relies on the United States Supreme Court decision
United States v. Loud Hawk (1986), 474 U.S. 302, 106 S.Ct. 648, 88
L.Ed.2d 640, the seminal case on interlocutory appeal and speedy

trial, to support his contention that he was denied h i s right to a
speedy t r i a l as a result of the State's two interlocutory appeals.

Loud Hawk adopted the four-part test set forth in Barker to
determine whether a defendantf right to a speedy trial was
s
violated. Loud Hawk, 474 U.S. at 314, 106 S.Ct. at 655, 89 L.Ed.2d
at 653. However, after applying the Barker factors to the case
before us, we conclude that Moore's right to a speedy trial was not
violated.
Over one year and ten months (692 days) expired between
Moore's arrest and trial, therefore, the length of the delay is
presumptively prejudicial. See, State v. Bartnes (1988), 234 Mont.
522, 527, 764 P.2d 1271, 1275 (175 day delay which was attributable
mainly to the State found to be presumptively prejudicial);
Thompson, 865 P.2d at 1135 (203 day delay presumptively
prejudicial). Because the delay is presumptively prejudicial, the
remaining three factors must be considered. In balancing the
factors, no particular factor is determinative; all the factors
must be weighed in light of the facts and circumstances of the
case. Thompson, 865 P.2d at 1134-35.
In assessing the second factor of the Barker test, the United
States Supreme Court in Loud Hawk noted that different weights
should be assigned to different reasons for delay, and that
"[gliven the important public interests in appellate review, ...
it hardly need be said that an interlocutory appeal by the
Government ordinarily is a valid reason that justifies delay."
Loud Hawk, 474 U.S. at 315, 106 S.Ct. at 656, 88 L.Ed.2d at 654.
Loud Hawk set forth several factors to be considered in
determining whether to charge the government with the delay
occasioned by its interlocutory appeals: the strength of the
government's position on the appealed issue; the importance of the
issue in the posture of the case; and the seriousness of the crime.
Loud Hawk, 474 U.S. at 315, 106 S.Ct. at 656, 88 L.Ed.2d at 654.
If the issues raised by the government's interlocutory appeal were
"clearly tangential or frivolous," the delay should be weighed
heavily against the government. Loud Hawk, 474 U.S. at 315-16, 106
S.Ct. at 656, 88 L.Ed. 2d at 654-55. However, when the government's
conduct is reasonable, and there has been no showing of bad faith
or dilatory purpose on the part of the government, delays
occasioned by the government's interlocutory appeals should not
weigh in favor of a defendant's speedy trial claim. Loud Hawk, 474
U.S. at 316, 106 S.Ct. at 656, 88 L.Ed.2d at 655.
Moore alleges that the State's motive for both appeals is
"highly suspect." Moore suggests that the State filed its first
appeal after being chastised by the District Court for having its
case in disarray. Moore then implies that the State filed its
second appeal in retaliation for the District Court sanctioning the
prosecution by removing the lead counsel, Deputy County Attorney
Marty Lambert, from the case. We conclude that Moore's contentions
are without merit.
There is no indication in the record that the State chose to
appeal as a delay tactic or in retaliation for being chastised or
sanctioned by the District Court. The District Court itself was
quoted as saying, "I don't think [the first appeal] was a time-
consuming ploy on the part of the county attorney. They had
legitimate grounds to file the appeal." Bozeman Dailv Chronicle,
"Judge says evidence rejected in Moore case won't cause delays",
October 8, 1991. We agree with the District Court that the first
appeal was meritorious and, therefore, the appeal should not weigh
heavily against the State.
The record also does not support Moore's allegation that the
State filed its second appeal in retaliation for the trial court
removing lead counsel from the case. The record shows that the
District Court removed the deputy county attorney from the case
after it had been informed that the State had filed its notice of
appeal.
In addition, we reversed the trial court in the State's second
appeal and llreversalsby the Court of Appeals are prima facie
evidence of the reasonableness of the Government's action." Loud
Hawk, 474 U.S. at 316, 106 S.Ct. at 656, 88 L.Ed.2d at 655.
We conclude that there is no basis for Moore's allegation that
the State's motive for its appeals was suspect, as there was no
showing of bad faith or dilatory purpose on its part. Therefore,
the reason for the delay should be resolved in favor of the State.
Regarding the third Barker factor, Moore made a timely
assertion of his right to a speedy trial by raising the issue two
times before the commencement of his trial. State v. Palmer
(1986), 223 Mont. 25, 28, 723 P.2d 956, 959.
In considering the fourth factor, we must examine the
interests of the defendant which may be prejudiced by a delay in
coming to trial. These interests are: (1) pretrial incarceration,
(2) anxiety and concern, and (3) impairment of defense. Barker,
407 U.S. at 532; Stewart, 881 P.2d at 633; Thompson, 865 P.2d at
1135.
Moore was incarcerated for approximately 9 0 days before his
release on bail. Although incarceration is a serious matter, Moore
was free on bail nearly all of the time between arrest and trial.
Therefore, Moore cannot complain of prejudice resulting from
pretrial incarceration. Stewart, 881 P.2d at 633.
The second interests we must consider, anxiety and concern,
are difficult matters to prove. However, it must be kept in mind
that the charge against Moore is one of the most serious which may
be levied, and the mere fact it was filed will produce some anxiety
and concern. Thom~son,
865 P.2d at 1135. Moore failed to indicate

how his anxiety and concern were aggravated as a result of the
delay, and we decline to presume prejudice.
The most important consideration is whether the delay impaired
or prejudiced Moore's defense. Moore claims he was financially
devastated as a result of the protracted legal proceedings, and as
a result, his defense suffered as he did not have enough funds to
pay for his own experts at trial.
Again, however, the record fails to support Moorefs
allegations. After holding a hearing on Moore's motion to
determine whether the State should pay for his experts at trial,
the District Court found that Moore had remaining assets valued in
excess of $160,000. The court determined that Moore was not
indigent and denied Moore's motion. In addition, Moore indicated
at the indigence hearing that his experts had been paid up to date,
and his experts appeared and testified at trial.
 In considering whether Moore's defense was prejudiced by the
delay the ~istrictCourt reasoned as follows:
Here, Defendant has been free on bond for many, many
months, has traveled in and out of the State of Montana
to conduct his usual business affairs, has traveled
outside Montana on family matters, and has consistently
been available to work with his counsel on preparation of
this case. No witnesses essential to the defense have
died; the Defendant has had full discovery of prosecution
evidence, and has had equal time to assemble his own
evidence. Nothing about the delays which have occurred
in this case can be reasonably attributed to State
actions having the purpose of prejudicing the Defendant,
and there are no allegations that evidence essential to
the Defendant has been lost.
We agree with the District Court's conclusion that Moore did
not suffer any prejudicial effect as a result of the delay in
bringing the case to trial. Therefore, after balancing the four
Barker factors, we hold that Moore was not deprived of his
constitutional right to a speedy trial.
In conclusion, having carefully considered the lengthy
transcript and the record in this case along with the briefs and
arguments of counsel, we hold that the District Court did not
commit reversible error on any of the issues raised by Moore in
this appeal. Accordingly, his conviction of deliberate homicide is