State v. Grimes

No

No. 98-149

IN THE SUPREME COURT OF THE STATE OF MONTANA

1999 MT 145

295 Mont. 22

982 P.2d 1037

STATE OF MONTANA,

Plaintiff and Respondent,

v.

BURLY M. GRIMES,

Defendant and Appellant.

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APPEAL FROM: District Court of the Fifth Judicial District,

In and for the County of Jefferson,

The Honorable Thomas A. Olson, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Edmund F. Sheehy, Jr., Cannon & Sheehy; Helena, Montana

Bridgitt Erickson, Attorney at Law; Lincoln, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General; Tammy K. Plubell,

Assistant Attorney General; Helena, Montana

Valerie D. Wilson, Jefferson County Attorney; Boulder, Montana

Submitted on Briefs: January 28, 1999

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Decided: June 18, 1999

Filed:

__________________________________________

Clerk

Justice Terry N. Trieweiler delivered the opinion of the Court.

¶1. By information filed in the District Court for the Fifth Judicial District in
Jefferson County, the defendant, Burly Michael Grimes, was charged with
aggravated kidnaping, in violation of § 45-5-303, MCA; robbery, in violation of § 45-
5-401, MCA; and deliberate homicide, in violation of either § 45-5-102(1)(a) or (b),
MCA. Following trial by jury, Grimes was convicted of all three offenses. He appeals
from his convictions. We affirm the judgment of the District Court.

¶2. There are three issues on appeal:

¶3. 1. Did the District Court err when it denied Grimes' motion to suppress?

¶4. 2. Did references to a co-defendant's statements to law enforcement officials
violate Grimes' right to confront witnesses against him?

¶5. 3. Did the District Court err when it refused Grimes' proposed "jailhouse
informant" instruction?

FACTUAL BACKGROUND

¶6. On February 9, 1996, a Montana Highway Patrolman observed a vehicle with
Idaho license plates traveling through Billings with a small child standing up
unrestrained on the front seat. The officer requested that his dispatcher run the
license plate through the National Crime Information Center database. He was told
that the vehicle was registered to Michael Fox, who had been reported missing

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approximately three days earlier.

¶7. The MHP officer initiated a traffic stop of the vehicle. In addition to the child,
Burly Grimes, his co-defendant Joe Gordon, and Gordon's wife occupied the vehicle.
Grimes and Gordon produced identification which established that neither was
Michael Fox, and both denied knowing Fox. The officer handcuffed Gordon and
Grimes prior to speaking with them. He did not provide Miranda warnings. Each
attributed possession of the vehicle to the other.

¶8. Yellowstone County detectives arrived at the scene of the stop and checked the
trunk of the vehicle for a body. One detective informed Grimes that he was being
detained as part of an investigation. He advised Grimes of his Miranda rights and
Grimes requested counsel, at which point the detective halted the interview. Gordon
waived his Miranda rights, however, and spoke with detectives. Grimes and Gordon
were eventually transported to Idaho to face grand theft charges. Pursuant to a plea
agreement, Gordon provided law enforcement authorities with the location of Fox's
body and other information, which led to the arraignment of both men in Jefferson
County on charges off kidnaping, burglary, and deliberate homicide. Their cases
were severed for purposes of trial, and Gordon did not testify at Grimes' trial.

ISSUE 1

¶9. Did the District Court err when it denied Grimes' motion to suppress?

¶10. The standard of review of a district court's denial of a motion to suppress is
whether the court's findings of fact are clearly erroneous, and whether those findings
were correctly applied as a matter of law. See State v. Roberts (1997), 284 Mont. 54,
56, 943 P.2d 1249, 1250.

¶11. Grimes moved to suppress both the fruits of the traffic stop and his pre-Miranda
custodial statements. The District Court suppressed the pre-Miranda statements, but
denied the rest of the motion. Grimes contends that the child restraint law, § 61-9-
420, MCA (1995), did not provide sufficient cause to initiate an investigative stop.

¶12. The MHP officer who initiated the traffic stop of the vehicle in which Grimes
was a passenger testified at the suppression hearing that he decided to pull over the
vehicle because of the unrestrained child. He also testified that prior to the stop, he

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obtained an NCIC report that the registered owner of the vehicle, Michael Fox, was a
missing person, as well as information from Idaho law enforcement officials that
confirmed the report and indicated that Fox was "missing, and possibly endangered."

¶13. We have adopted a two-part test to determine whether an officer had sufficient
cause to stop a person. First, the State must show objective data from which an
experienced officer can make certain inferences. Second, the State must demonstrate
a resulting suspicion that the occupant of the vehicle is or has been engaged in
wrongdoing or was a witness to criminal activity. See State v. Gopher (1981), 193
Mont. 189, 194, 631 P.2d 293, 296.

¶14. With respect to its conclusion that the officer had a particularized suspicion
justifying the stop, the District Court found that "the NCIC report alone provided
enough objective data for Officer McDonald to infer that the occupants of the vehicle
might have more information about the whereabouts of Fox."

¶15. The District Court based its conclusion on the MHP officer's receipt of the
missing persons bulletin, rather than on the child restraint law. Therefore, the
question becomes whether the missing and endangered report for the registered
owner of a vehicle could serve as the basis for a particularized suspicion.

¶16. In State v. Kills On Top (1990), 243 Mont. 56, 793 P.2d 1273, Billings law
enforcement officers stopped a vehicle which matched the license plates and
description of a vehicle described in a police bulletin, whose occupants might have
been involved in an assault and kidnaping in Miles City. We held that when such
information is obtained from a flier or bulletin it may serve as the basis for a
vehicular stop. See Kills On Top, 243 Mont. at 82-83, 793 P.2d at 1291.

¶17. The basis for the traffic stop in this case is factually similar to the Kills On Top
stop. Here, the MHP officer received an NCIC report that the vehicle he was
following was registered to an individual who was missing and possibly endangered.
We conclude that under these circumstances the officer could form a particularized
suspicion that the occupants of Fox's vehicle had been involved in wrongdoing or
were witnesses to criminal activity. See Gopher, 193 Mont. at 194, 631 P.2d at 296;
see also Anderson v. State (1996), 275 Mont. 259, 263, 912 P.2d 212, 214. Because we
conclude that the stop was valid, we need not address Grimes' "fruit of the poisonous
tree" arguments and we affirm the District Court's denial of Grimes' motion to

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suppress.

ISSUE 2

¶18. Did references to a co-defendant's statements to law enforcement officials
violate Grimes' right to confront witnesses against him?

¶19. Our standard of review for questions of constitutional law is plenary. See State
v. Schnittgen (1996), 277 Mont. 291, 295, 922 P.2d 500, 503. We review a district
court's conclusions of law to determine whether the court's interpretation of the law
is correct. See Schnittgen, 277 Mont. at 295-96, 922 P.2d at 503.

¶20. Grimes contends that the cumulative effect of repeated references at trial to the
fact that Gordon provided information to the State which led to charges against
Grimes, violated his Sixth Amendment right to confront witnesses against him.
Grimes does not allege any violation of Article II, Section 24, of the Montana
Constitution. He identifies four occasions during trial on which the State elicited
testimony that Gordon cooperated with law enforcement investigators, and one
occasion where the State elicited testimony from an informant that Grimes told him
Gordon had "snitched."

¶21. Grimes contends that the cumulative effect of the following statements violated
his confrontation rights because they implied to the jury that Gordon provided
evidence against Grimes and Grimes did not have the opportunity to cross-examine
Gordon:

¶22. 1. The State asked one of the detectives how long he spoke with Gordon. In
response to a successful objection, the State reformulated the question, and the
objection was again sustained. The State then asked whether the detective had any
further contact with Gordon, which the detective answered affirmatively, but
without explanation.

¶23. 2. An FBI agent testified that he was present when Gordon was interviewed in
Idaho Falls.

¶24. 3. An Idaho detective testified that he received information from another
detective who had interviewed Gordon, at which point Grimes objected and the

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objection was sustained.

¶25. 4. Another detective testified about locating Fox's body. Prior to the testimony
and out of the presence of the jury, the court ensured that the structure of the
questioning would not identify how law enforcement officials learned where Fox's
body was located.

¶26. Grimes contends that the cumulative effect of these references, combined with
the informant's testimony, "could only lead the jury to conclude that Gordon
inculpated Grimes in the charged offenses."

¶27. In support of his argument, Grimes relies upon our line of cases which adopted
and interpreted Bruton v. United States (1968), 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed.
2d. 476. In Bruton, the United States Supreme Court held that extrajudicial
statements of a co-defendant who is not subject to cross-examination may violate the
Confrontation Clause. See Bruton, 391 U.S. at 135-36, 88 S. Ct. at 1628, 20 L. Ed. 2d
at 485. We adopted Bruton in State v. Fitzpatrick (1977), 174 Mont. 174, 569 P.2d 383.

¶28. Grimes successfully argued to the District Court that his trial should be severed
from Gordon's because a joint trial would raise Bruton-type problems. Bruton bars
the introduction of a co-defendant's post-arrest statements implicating other
defendants when the co-defendant will not testify at trial. See Bruton, 391 U.S. at 126,
88 S. Ct. at 1622, 20 L. Ed. 2d. at 479-80.

¶29. Bruton, and our cases which follow it, are inapplicable to the statements that
Grimes challenges on appeal. The statements, except the testimony of Steve Ortega,
contain no substantive information other than indicating that particular
investigators were present each time Gordon was interviewed. The statements relate
nothing of substance which was revealed during those interviews.

¶30. As a result, the statements fall within the exception to the Bruton rule applicable
"where a statement is not powerfully incriminating but implicates the complaining
defendant 'only to the extent that the jury may make inferences based on other
clearly admissible evidence.'" State v. Weinberger (1983), 204 Mont. 278, 296, 665
P.2d 202, 212 (citations omitted). A review of the record demonstrates that the
statements were, if anything, "simply linkage testimony . . . incriminating only in
conjunction with other facts." Weinberger, 204 Mont. at 297, 665 P.2d at 212

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(citations omitted).

¶31. In Weinberger, the defendant had the opportunity to confront each witness who
made the statements complained of. The statements were not critical to the State's
case in light of other evidence, nor were they "powerfully incriminating," nor did
any of the statements directly implicate the defendant by name or connect him with
the murder. See Weinberger, 204 Mont. at 297, 665 P.2d at 212. We find the same
characteristics to be present in the statements made by the law enforcement officials
in this case. The substance of what Gordon said to investigators, or even whether he
said anything at all, was never disclosed to the jury. No statement made by Gordon
or attributed to Gordon was introduced at trial. Twice Grimes made timely
objections which were sustained by the court, and some of the witnesses' statements
consisted only of "yes" and "no." The statements complained of in this case were not
as informative as those admitted in Weinberger.

¶32. In addition to the statements made by law enforcement investigators, Steve
Ortega, who shared a jail cell with Grimes while he was incarcerated in Idaho,
testified that Grimes told him that "a Joe, I guess the other guy, which was Joe -- I
don't recall his last name -- but how if, if he wouldn't have snitched he wouldn't have
got caught because they didn't know they had a murder or something."

¶33. The holding from Bruton is also inapplicable to this statement. Ortega's
testimony related what he had been told by Grimes, not Gordon. Grimes had the
opportunity to cross-examine Ortega and, therefore, was not denied his right to
confrontation.

¶34. We conclude that no co-defendant testimony implicating Grimes was introduced
at trial and, therefore, Grimes' Sixth Amendment Confrontation Clause rights were
not violated.

ISSUE 3

¶35. Did the District Court err when it refused Grimes' proposed "jailhouse
informant" instruction?

¶36. As a preliminary matter, the State contends that Grimes did not properly
preserve this issue for appeal because he did not voice an objection when the District

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Court refused his proposed instruction.

¶37. While it is true that we will not predicate error upon the failure to give an
instruction when the party alleging the error failed to offer the instruction, see State
v. Swan (1996), 279 Mont. 483, 486, 928 P.2d 933, 935, we have previously held that
when a party's offered instructions are refused by the court in criminal cases, that
party has no duty to make further objections for the record. See State v. Young
(1983), 206 Mont 19, 24, 669 P.2d 239, 242. The statutory provision we relied on in
Young was amended by the Legislature in 1991, and the settlement of jury
instructions in criminal trials is now contained in § 46-16-410, MCA, which provides
in part: "A party may not assign as error any portion of the instructions or omission
from the instructions unless an objection was made specifically stating the matter
objected to, and the grounds for the objection, at the settlement of instructions."

¶38. In this case, the District Court's refusal to give the proposed instruction created
an omission from the instructions that Grimes contends was error. When the
instruction was offered by Grimes and subsequently refused by the trial court, a
record of Grimes' position was created which was the equivalent of an objection to
an instruction offered by an opposing party. To require a party to object to a court's
rejection of the party's own proposed instruction would create a redundancy. The
basis of the claim of error is obvious from the content of the instruction and an
adequate record exists to review the issue on appeal.

¶39. Objections to jury instructions proposed by the opposing party serve the same
functions as evidentiary objections. The Rules of Evidence require timely, specific
objections to the admission of evidence, see Rule 103, M.R.Evid., because "[t]he
function of the objection is, first, to signify that there is an issue of law and, second,
to give notice of the terms of the issue." See 1 Wigmore on Evidence § 18 (Tiller rev.
1998). When a party proposes a jury instruction and the trial court refuses to give
the instruction, the court knows that there is an issue of law raised by the party
seeking the instruction and, from the nature of the proposed instruction, knows the
nature of the party's contentions. Therefore, we hold that when a party proposes an
instruction which is rejected by the trial court, that party has made a sufficient
objection for the purposes of § 46-16-410, MCA, and has no duty to make a further
objection for the record.

¶40. We review claims of instructional error in a criminal case to determine whether

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the jury instructions, as a whole, fully and fairly instruct the jury on the law
applicable in the case. See State v. Goulet (1997), 283 Mont. 38, 41, 938 P.2d 1330,
1332.

¶41. Grimes contends that the District Court erred when it failed to give his
proposed instruction No. 18, which stated:

You have heard testimony that Steve Ortega, a witness, has received benefits,
compensation, or favored treatment from the government in connection with this case.
You should examine his testimony with greater caution than that of ordinary witnesses. In
evaluating that testimony, you should consider the extent to which it may have been
influenced by the receipt of benefits from the government.

¶42. Steve Ortega resided in a jail cell in Idaho Falls with Grimes. During that
period, Ortega made contact with the FBI regarding an unrelated federal drug case
in which he sought to provide information in exchange for favorable treatment. FBI
agent William Long negotiated an agreement with Ortega to provide information for
the federal case in exchange for a reduction of the charges Ortega faced. During their
second interview, Ortega told Agent Long that he had information about a murder in
which Grimes was involved; however, Ortega did not relate any specific information
about Grimes until after he had testified in the federal drug case and received his
bargained-for plea agreement. At Grimes' trial several months later, Ortega testified
that Grimes told him about the murder.

¶43. Montana has no prior case law addressing cautionary instructions for "jailhouse
informants." The proposed instruction which Grimes offered the District Court is
patterned on Ninth Circuit Model Criminal Jury Instruction No. 4.10, and Grimes
cites Ninth Circuit case law in support of his position. When the District Court
rejected the proposed instruction it reasoned that the jury was already adequately
instructed to view Ortega's testimony cautiously because it had been instructed to
view oral admissions and confessions by the defendant with caution.

¶44. In Guam v. Dela Rosa (9th Cir. 1981) 644 F.2d. 1257, the Ninth Circuit
concluded that a defendant was entitled to a cautionary instruction when an
accomplice testified against him in exchange for the Territory's promise not to
prosecute the accomplice. The court held that when a witness is motivated primarily

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by personal gain, and not some independent law enforcement purpose, the trial court
should give a cautionary instruction. See Dela Rosa, 644 F.2d at 1260. The court also
held that when a trial court refuses to give special instructions on the testimony of an
informer, the standard of prejudice is whether the testimony is important to the case,
"i.e., the defendant's guilt rested almost entirely on the testimony of the [informer]
and the other evidence linking the defendant to the criminal activity is weak." Dela
Rosa, 644 F.2d at 1260 (citing United States v. Bernard (9th Cir. 1980), 625 F.2d 854).

¶45. We agree with the Ninth Circuit's reasoning. We hold that when a government
informant motivated by personal gain rather than some independent law
enforcement purpose provides testimony, a cautionary instruction is the more
prudent course of action.

¶46. We further hold that when a trial court refuses a proposed cautionary
instruction, the standard of prejudice is whether the testimony was crucial to the
State's case in light of other evidence. This standard is in accord with our
jurisprudence on prejudice. See State v. Birthmark (1992), 253 Mont. 526, 530, 833
P.2d 1103, 1105; Brodniak v. State (1989), 239 Mont. 110, 115, 779 P.2d 71, 74 (the
essential question is whether there is a reasonable possibility that the error might
have contributed to the conviction).

¶47. In this case, the State contends that Ortega received no personal gain from his
testimony because his deal with the FBI had already been completed before he
provided information about Grimes' crimes. Ortega testified at trial that he couldn't
remember the chronology of the specific instances during which he had provided
Agent Long with information related to Grimes. Long testified that during their
second meeting he told Ortega "it's possible that the deal can be made, but I've got to
know what you . . . what kind of information you can offer me and whether that
information is actually valuable in my investigation before we can make a deal."
Long testified that it was during the course of this meeting that Ortega first indicated
that he had information about the Fox homicide.

¶48. From the record it is unclear whether Ortega considered the Grimes
information to be part of his deal with the FBI, or whether he considered the deal to
be limited to providing information for the federal drug case. There was no evidence,
however, that he was motivated to testify by any "independent law enforcement
purpose." Ortega's motivation notwithstanding, we conclude that the District

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Court's failure to give the requested cautionary instruction was harmless in this case.

¶49. The jury heard eyewitness testimony that Grimes was with Fox prior to Fox's
disappearance. He was in Fox's vehicle when it was recovered in Montana, and he
was in possession of clothing which belonged to Fox and also of clothing stained with
Fox's blood.

¶50. In light of other, overwhelming evidence introduced at trial which linked
Grimes to the victim, we conclude that Ortega's testimony was not crucial to the
State's case, and that there was strong evidence from which the jury could have
convicted Grimes without it. Therefore, we hold that the failure to provide a
cautionary instruction was not prejudicial to Grimes.

¶51. We affirm the judgment of the District Court.

/S/ TERRY N. TRIEWEILER

We Concur:

/S/ JAMES C. NELSON

/S/ W. WILLIAM LEAPHART

/S/ JIM REGNIER

Justice Karla M. Gray, specially concurring.

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¶52 I concur in the Court's opinion on issues 1 and 2. On issue 3, I agree that the District
Court did not commit reversible error, but I do not agree with the Court's analysis.

¶53 With regard to issue 3, I disagree with the Court's conclusion that Grimes did not
waive his right to assert as error the court's refusal to give his proposed instruction no. 18.
The Court correctly quotes § 46-16-410, MCA, which precludes a party from asserting
error as to any omission from the instructions "unless an objection was made specifically
stating the matter objected to, and the grounds for the objection, at the settlement of
instructions." The Court decides to disregard the statute--even though Grimes clearly did
not meet the statutory requirements--based on its determinations that the basis of the
claimed error is obvious from the content of the instruction and an adequate record exists
to review the issue on appeal. I cannot agree.

¶54 In the first place, it is my view that we cannot properly substitute our judgment for
that of the Legislature in this matter. The statute was duly enacted by the Legislature and
we are bound to apply it by its terms. The Court does not do so. I would conclude,
pursuant to § 46-16-410, MCA, that Grimes waived his right to raise the instructional error
on appeal.

¶55 Nor do I agree that the basis of the claim of error is obvious or that an adequate record
exists to review the issue in this case. Grimes proposed the instruction and stated its source
to be "Model Criminal Jury Instructions for the Ninth Circuit, No. 4.10 (1992)." Montana
courts are not required to give any or every instruction approved by the Ninth Circuit.
Moreover, Grimes did not cite to Dela Rosa or any other case authority presenting the
rationale for the instruction, either at the time the instruction was offered or at the time the
District Court refused it. Nor did Grimes object in any fashion to the trial court's rationale
in refusing the proposed instruction, which was that it constituted "a comment on the
evidence."

¶56 Furthermore, it is my view that Dela Rosa does not support the giving of the proposed
"jailhouse informant" instruction in this case. In Dela Rosa, an actual accomplice to the
crimes charged against the defendant testified that the defendant admitted he had
committed the crimes and disclosed the details of the crimes. The accomplice was the
prosecution's primary witness at trial and, importantly, it was undisputed that the
accomplice's testimony was secured by a promise not to prosecute him in exchange for his

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cooperation. Under such circumstances, the Ninth Circuit determined--in a per curiam
opinion--that the trial court should have given the instruction to minimize unfairness. Dela
Rosa, 644 F.2d at 1260. Here, Ortega was not an accomplice, was not the prosecution's
primary witness and, importantly, it was far from undisputed--as the Court admits--
whether his testimony was offered in exchange for anything.

¶57 Finally, our standard is whether the instructions given, taken as a whole, "fully and
fairly instruct the jury on the law applicable to the case." See Goulet, 283 Mont. at 41, 938
P.2d at 1332. Here, the District Court adequately instructed the jury that it should regard
any admission or confession [by Grimes] with caution.

¶58 I would hold that Grimes waived his right to raise the instructional error on appeal. I
would further hold that, in any event, Grimes was not entitled to have the instruction given
and the District Court did not err in refusing it. Since the Court reaches the same ultimate
conclusion--that is, that no reversible error was committed--I specially concur in the
Court's opinion on issue 3.

/S/ KARLA M. GRAY

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