State v. Spang

No. 00-708

IN THE SUPREME COURT OF THE STATE OF MONTANA

2002 MT 120

STATE OF MONTANA,

Plaintiff and Respondent,

v.

JACOB GARY SPANG,

Defendant and Appellant.

APPEAL FROM: District Court of the Twelfth Judicial District,
In and for the County of Hill,
The Honorable John Warner, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Carl White, Attorney at Law, Havre, Montana

For Respondent:

Hon. Mike McGrath, Attorney General; Tammy K. Plubell, Assistant
Attorney General, Helena, Montana,

David G. Rice, Hill County Attorney, Havre, Montana

Submitted on Briefs: November 8, 2001

Decided: June 7, 2002
Filed:

__________________________________________
Clerk
Justice Jim Regnier delivered the Opinion of the Court.

¶1 Jacob Gary Spang (“Spang”) appeals from his convictions, by a

jury, of two counts of intimidation by accountability in the

Montana Twelfth Judicial District Court, Hill County.

We affirm in part, reverse in part and remand for a new trial on

the two counts of intimidation by accountability.

¶2 We restate the issues on appeal as follows:

¶3 1. Did the District Court err in denying Spang’s motion to

suppress the statements he made to law enforcement officers during

a custodial interrogation conducted on September 19, 1999?

¶4 2. Did the District Court err in denying Spang’s motion to

dismiss the charges of intimidation by accountability based on

insufficiency of the evidence?

BACKGROUND

¶5 On September 16, 1999, the bodies of Kristi Walker (“Walker”)

and Kevin Caplette (“Caplette”) were discovered at Walker’s

residence in Havre, Montana. Both victims died as a result of

gunshot wounds inflicted by Reid Danell (“Danell”). On the evening
of September 17, 1999, Danell and Spang were arrested in Great

Falls, Montana, in connection with the murders of Walker and

Caplette. Danell subsequently admitted to shooting the victims.

¶6 On September 17, 1999, Assistant Chief of Police of the Havre

Police Department, Kevin Olson (“Officer Olson”), traveled to the

Cascade County Regional Detention Facility to interview Spang.

After Spang was advised of his rights by Officer Olson, Spang

voluntarily answered questions during a custodial interrogation on

2
September 17, 1999. The custodial interrogation was videotaped.

The audio portion of the videotape is difficult to hear.

¶7 On September 19, 1999, Officer Olson and Staff Sergeant George

Tate of the Havre Police Department conducted another custodial

interrogation of Spang. After being advised of his rights, Spang

stated, “Shit, I need a lawyer, man.” After Spang requested an

attorney, Officer Olson asked Spang whether he wanted to talk to

the police prior to talking with an attorney. In addition, Officer

Olson stated that he would like to talk to Spang about what they

had discussed on September 17, 1999. Spang answered that was

“[a]lright” and proceeded to answer Officer Olson’s questions while

therein providing similar incriminating statements as he provided

on September 17, 1999.
¶8 During both interrogations, Spang explained what had occurred

at Walker’s residence on the night of September 15, 1999, and the

morning of September 16, 1999. Spang stated that he and Danell

attended a party at Walker’s residence on September 15, 1999.

Spang indicated that many of the party goers, including himself and

Danell, were smoking methamphetamine and drinking alcohol. He

further explained that Walker sold drugs and owed a debt to Wesley

Merrill (“Merrill”) resulting from her sale of drugs. Spang stated

that Danell and Merrill were members of the LVL 13 gang and that he

was awaiting induction as a member into said gang. According to

Spang, Danell volunteered to collect from Walker the money she owed

Merrill or collect items from Walker’s residence as collateral to

satisfy the debt. Spang conveyed that Danell did in fact demand

3
money from Walker, and in doing so, threatened to inflict physical

harm upon her if she did not pay the debt. Spang stated that

Walker thereafter left her residence, and that during that time he

assisted Danell in collecting collateral from Walker’s garage.

Spang also told how he unloaded and reloaded a clip to a nine

millimeter rifle during that time period. Spang disclosed that he

later observed Danell threaten and then subsequently shoot

Caplette. Spang explained that shortly after observing Danell

shoot Caplette, he observed Danell shoot Walker. Afterwards, Spang

stated that he accompanied Danell to Great Falls.
¶9 On October 14, 1999, the State filed an Information in the

District Court charging Spang with two counts of deliberate

homicide by application of the felony murder rule, two counts of

felony intimidation by accountability, felony theft, and tampering

with physical evidence. Attorneys Carl White (“White”) and Edmund

Sheehy (“Sheehy”) were appointed to represent Spang.

¶10 On March 15, 2000, Spang filed a motion to suppress the

statements he made on September 17 and September 19, 1999, claiming

his statements were made in violation of his constitutional right

to counsel and his right to be brought before the nearest judge

without unnecessary delay. The District Court held an evidentiary

hearing on March 23, 2000. On April 11, 2000, the District Court

entered its Order denying Spang’s motion to suppress. The District

Court determined that Spang waived his right to counsel after being

advised of his rights when he voluntarily answered questions on

September 17, 1999, and again voluntarily answered questions, after

4
requesting an attorney, on September 19, 1999. Additionally, the

District Court determined that the 2 ½ day delay between Spang’s

arrest on a Friday night and arraignment on the following Monday

morning was not excessive, unreasonable nor prejudicial. The

District Court noted that the customary practice in Great Falls is

to conduct an initial appearance on Monday morning when individuals

are arrested between Friday afternoon and Monday morning. Further,

the District Court determined that Spang presented no evidence to

suggest that the delay influenced the voluntariness of his

statements made to officers during the period of delay.
¶11 On May 23, 2000, Spang filed a motion to dismiss alleging his

right to a speedy trial had been violated. On May 31, 2000, the

District Court held a pretrial conference and informed the parties

that it could not conduct a hearing on Spang’s motion prior to the

June 5, 2000, trial date. Sheehy informed the District Court, at

the pretrial conference, that it was in Spang’s best interest to

withdraw the motion. White disagreed. The District Court gave

Sheehy and White additional time to discuss the matter. Later that

day, White withdrew the motion.

¶12 A jury trial was held June 5 through June 13, 2000. Both

parties prepared transcripts from the tapes of Spang’s September

19, 1999, custodial interrogation. The transcripts were provided
th
to the jury as the videotape and audio tapes from the September 19
custodial interrogation were played during the State’s case-in-

chief. The transcripts made from the custodial interrogation were

not sent into the jury room during deliberations.

5
¶13 At the conclusion of the State’s case-in-chief, Spang moved to

dismiss the charges of intimidation by accountability and

deliberate homicide by application of the felony murder rule based

on insufficiency of the evidence, pursuant to § 46-16-403, MCA.

The District Court denied Spang’s motion finding that there was

sufficient evidence to sustain convictions on the charges.

¶14 On June 13, 2000, the jury returned its verdicts of not

guilty to both charges of deliberate homicide and the charge of

theft, and guilty to both charges of intimidation by accountability

and the charge of tampering with physical evidence. On August 7,

2000, the District Court entered its Judgment sentencing Spang to

ten years on each conviction of intimidation by accountability,

and one year and one day on the tampering with physical evidence

conviction. The District Court ordered that all three sentences be

served concurrently at the Montana State Prison. Spang appeals

from his convictions of two counts of intimidation by

accountability.
STANDARD OF REVIEW

¶15 We review a district court’s denial of a motion to suppress to

determine whether the court’s findings of fact are clearly

erroneous and whether those findings were correctly applied as a

matter of law. State v. Simmons, 2000 MT 329, ¶ 9, 303 Mont. 60, ¶

9, 15 P.3d 408, ¶ 9 (citation omitted).

¶16 We review a district court’s denial of a motion to dismiss

based on insufficiency of the evidence for an abuse of discretion.

State v. Miller, 1998 MT 177, ¶ 21, 290 Mont. 97, ¶ 21, 966 P.2d

6
721, ¶ 21 (citation omitted). In reviewing the sufficiency of the

evidence, we determine whether, upon 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. Miller, ¶ 21 (citation omitted).

DISCUSSION

ISSUE 1

¶17 Did the District Court err in denying Spang’s motion to

suppress the statements he made to law enforcement officers during

a custodial interrogation conducted on September 19, 1999?
¶18 Spang argues he unequivocally invoked his right to counsel,

after he was read his Miranda rights, when he stated, “Shit, I need

a lawyer, man.” After requesting counsel, Spang argues that he

should not have been further questioned until either counsel was

made available to him or until he initiated further communications

with the officers. Since counsel was not made available to Spang

nor did he initiate further communications with the officers, Spang

alleges all interrogation should have ceased, including Officer

Olson’s questioning regarding whether he wanted to talk to the

officers prior to talking with an attorney. In addition, Spang

argues that the District Court’s reliance, in part, on our holding

in State v. Brubaker (1979), 184 Mont. 294, 602 P.2d 974, was

misplaced, as the defendant in that case reinitiated conversation

with officers after he stated that it would be advisable for him to

speak to a lawyer. Therefore, Spang argues since the District
th
Court erred in admitting the statements he made on September 19 ,

7
his convictions of two counts of intimidation by accountability

should be reversed and this matter should be remanded for a new

trial.

¶19 The State claims Spang’s request for counsel was equivocal or

ambiguous. The State contends that when an equivocal request is

made for counsel, the better practice is to allow law enforcement

officers to ask limited questions to clarify whether a suspect is

invoking his or her right to counsel, pursuant to the United States

Supreme Court’s holding in Davis v. United States (1994), 512 U.S.

452, 114 S.Ct. 2350, 129 L.Ed.2d 362. The State therefore

maintains that the officers properly asked Spang clarifying

questions to determine whether Spang wished to contact counsel

before continuing with the interview. Thereafter, the State

alleges that Spang voluntarily elected to continue with the

interview, and thus waived his right to counsel.
¶20 The United States Supreme Court has held that a suspect is

entitled to the assistance of counsel during a custodial

interrogation and that law enforcement officers must explain this

right to a suspect prior to questioning. Miranda v. Arizona

(1966), 384 U.S. 436, 469-473, 86 S.Ct. 1602, 1625-1627, 16 L.Ed.2d

694. The right to counsel established in Miranda is a procedural

safeguard to insure that the right against compulsory self-

incrimination, provided by the Fifth Amendment to the United States

Constitution, is protected. Michigan v. Tucker (1974), 417 U.S.

433, 443-444, 94 S.Ct. 2357, 2363-2364, 41 L.Ed.2d 182. If

suspects effectively waive their right to counsel after receiving

8
Miranda warnings, law enforcement officers are free to question the

suspects. North Carolina v. Butler (1979), 441 U.S. 369, 372-376,

99 S.Ct. 1755, 1756-1759, 60 L.Ed.2d 286.

¶21 However, if suspects request counsel at any time during the

interview, they are not subject to further questioning until a

lawyer has been made available or until the suspect reinitiates

conversation with law enforcement officers. Edwards v. Arizona

(1981), 451 U.S. 477, 484-485, 101 S.Ct. 1880, 1884-1885, 68

L.Ed.2d 378. If a suspect makes a reference to an attorney that is

ambiguous or equivocal, the cessation of questioning is not

required. Davis, 512 U.S. at 459, 114 S.Ct. at 2355 (citing

Edwards, 451 U.S. at 485, 101 S.Ct. at 1885). Hence, questioning

may continue if a suspect does not actually request to speak to an

attorney. See Davis, 512 U.S. at 462, 114 S.Ct. at 2357 (The Davis

Court determined that the statement, “[m]aybe I should talk to a

lawyer”, is not an actual request for counsel.) The Court in Davis

noted that when a suspect makes an ambiguous or equivocal

statement, it will often be “good police practice” for interviewing

officers to clarify whether or not the suspect wants an attorney.

Davis, 512 U.S. at 461, 114 S.Ct. at 2356. Nonetheless, the Davis

Court declined to adopt a rule requiring officers to ask clarifying

questions in such situations. Davis, 512 U.S. at 461, 114 S.Ct. at

2356.
¶22 We have held that the right to counsel afforded by Article II,

Section 24, of the Montana Constitution is broader than the rights

afforded by the United States Constitution. See State v. Johnson

9
(1986), 221 Mont. 503, 514-515, 719 P.2d 1248, 1255. As we have

previously noted, “[f]ederal rights are considered minimal and a

state constitution may be more demanding than the equivalent

federal constitutional provision.” Johnson, 221 Mont. at 513, 719

P.2d at 1254 (citation omitted). Therefore, “[w]e will not be

bound by decisions of the United States Supreme Court where

independent state grounds exist for developing heightened and

expanded rights under our constitution.” Johnson, 221 Mont. at

513, 719 P.2d at 1255 (quoting Butte Community Union v. Lewis

(1986), 219 Mont. 426, 433, 712 P.2d 1309, 1313). Moreover, “a

state court always is responsible for the law of its state before

deciding whether the state falls short of a national standard, so

that no federal issue is properly reached when the state’s law

protects the claimed right.” Johnson, 221 Mont. at 514, 719 P.2d

at 1255 (quoting Hans A. Linde, E Pluribus -- Constitutional Theory

and State Courts, 18 Ga.L.Rev. 165, 178 (1984)). Accordingly, even

where we accept the State’s analysis insofar as it pertains to the

United States Constitution, we refuse to “march lock-step” with the

United States Supreme Court when the provisions of the Montana

Constitution call for greater protection of an individual’s rights

than that guaranteed by the United States Constitution. Johnson,

221 Mont. at 512, 719 P.2d at 1254.
¶23 Therefore, relying on our own Constitution and applicable law,

we held in Johnson that the defendant invoked his right to counsel

when he inquired whether he had the right to address “somebody,”

immediately after he was read his Miranda rights, and subsequently

10
stated, “I would like to talk to somebody.” Johnson, 221 Mont. at

514, 719 P.2d at 1255. Since the right to counsel “is not and

should not be a right easily abridged” under our Constitution, we

thus concluded in Johnson that the implication of asking to speak

to “someone,” after the reading of an individual’s rights, refers

to a request for counsel. Johnson, 221 Mont. at 514, 719 P.2d at

1255. We pointed out in Johnson that “[l]ay people are not learned

in constitutional principle nor legal nicety.” Johnson, 221 Mont.

at 514, 719 P.2d at 1255. Thus, “[t]o require precise words be

uttered would elevate form over substance.” Johnson, 221 Mont. at

514, 719 P.2d at 1255.
¶24 We further held in Johnson that the defendant’s subsequent

conversation with law enforcement officers did not result in the

voluntary waiver of his right to counsel. Johnson, 221 Mont. at

514, 719 P.2d at 1255. Although the defendant in Johnson initiated

the portion of the conversation wherein he provided incriminating

statements, we determined that the defendant’s statements were all

part of one taped interview, lasting only seven minutes, initiated

by the law enforcement officers subsequent to Johnson’s request for

counsel. Johnson, 221 Mont. at 514, 719 P.2d at 1255.

Consequently, we concluded that the defendant’s incriminating

statements should not have been admitted during the State’s case-

in-chief. Johnson, 221 Mont. at 515, 719 P.2d at 1255.

¶25 While the State argues that Spang’s request for counsel was

ambiguous or equivocal, we recall few requests which exceed the

clarity and lack ambiguity as illustrated by Spang’s request for

11
counsel. Here, Spang specifically requested “a lawyer” after he

was Mirandized, unlike the defendant in Johnson who merely

requested to speak to “somebody.” Accordingly, we conclude that

Spang’s request for counsel is neither ambiguous nor equivocal.

Therefore, we hold once Spang unequivocally requested counsel, he

was not subject to further questioning by law enforcement officers

until an attorney was made available to him or until he initiated

further conversation with the officers. Since counsel was not made

available to Spang nor did he initiate the portion of the

conversation wherein he provided incriminating statements to law
th
enforcement officers on September 19 , we further hold that Spang
did not waive his right to counsel when he answered the officers’

questions. See Johnson, 221 Mont. at 514-515, 719 P.2d at 1255.

¶26 In addition, we conclude that the District Court’s reliance,

in part, on our holding in Brubaker is misplaced. We held that the

defendant in Brubaker waived his right to counsel when he told law

enforcement officers that “it would probably be advisable for me to

obtain an attorney”, and immediately thereafter stated that he did

not need an attorney at that time. Brubaker, 184 Mont. at 300-301,

602 P.2d at 977-978. Subsequently, the defendant in that case

voluntarily provided a statement to the officers. Brubaker, 184

Mont. at 300, 602 P.2d at 977. Moreover, Brubaker was not

questioned by law enforcement officers during a custodial

interrogation, as he was questioned at his place of employment and

was not under arrest at the time of his questioning. Brubaker, 184

Mont. at 299, 602 P.2d at 977. Conversely in the case at hand,

12
Spang was questioned at the Cascade County Regional Detention

Facility subsequent to his arrest. Further, Spang unequivocally

invoked his right to counsel and remained silent until he was

further questioned by Officer Olson unlike Brubaker. Thus, in

contrast to Brubaker, cessation of questioning was required in this

case until Spang either reinitiated conversation with the officers

or until Spang was provided an attorney. As neither event

occurred, we hold that the District Court erred when it denied

Spang’s motion to suppress the statements he made during the
th
custodial interrogation on September 19 . As a result, we must now

determine whether such error was harmless.

¶27 We will not reverse a case by reason of any error committed by

the District Court against the convicted person unless the record

shows that the error was prejudicial. See Section 46-20-701(1),

MCA. We recently adopted a two-step analysis in State v. Van Kirk,

2001 MT 184, 306 Mont. 215, 32 P.3d 735, to determine whether the

error at issue in a case prejudiced the criminal defendant’s right

to a fair trial and is therefore reversible pursuant to § 46-20-

701(1), MCA. The first step in the analysis is to determine

whether the error is categorized as “structural” error or “trial”

error. Van Kirk, ¶ 37.

¶28 Structural error “[a]ffects the framework within which the

trial proceeds, rather than simply an error in the trial process

itself.” Van Kirk, ¶ 38 (citations omitted). This type of error

is “typically of constitutional dimensions, precedes the trial, and

undermines the fairness of the entire trial proceeding.” Van Kirk,

13
¶ 38. Errors in the jury selection process, total deprivation of

the right to counsel, and lack of an impartial trial judge are

examples of structural error. Van Kirk, ¶ 39 (citations omitted).

Structural error is automatically reversible and is not subject to

harmless error review under § 46-20-701, MCA. Van Kirk, ¶¶ 38-39.

¶29 In contrast, trial error typically occurs during the

presentation of a case to the jury. Van Kirk, ¶ 40. “Such error

is amenable to qualitative assessment by a reviewing court for

prejudicial impact relative to the other evidence introduced at

trial.” Van Kirk, ¶ 40. Trial error is not presumptively

prejudicial and is subject to review under § 46-20-701(1), MCA.

Van Kirk, ¶ 40.
¶30 We conclude that the error in this case is trial error since

the error occurred during the presentation of the case to the jury

and is amenable to qualitative assessment for prejudicial impact

relative to the other evidence introduced at trial. We thus

proceed to the second step of the analysis, which involves

determining whether the error was harmless under the circumstances.

Van Kirk, ¶ 41. To do so, we conduct a “cumulative evidence” test

to ascertain whether the fact-finder was presented with admissible

evidence that proved the same facts as the tainted evidence proved.

Van Kirk, ¶ 43.

¶31 The State must direct us to admissible evidence that proved

the same facts as the tainted facts in making its proof under the

“cumulative evidence” test. Van Kirk, ¶ 44. In addition, the

State must also demonstrate that the quality of the tainted

14
evidence was such that there was “no reasonable possibility” that

it might have contributed to the defendant’s conviction. Van Kirk,

¶ 44. If the only evidence tending to prove an element of the

crime is tainted, then reversal will be compelled. Van Kirk, ¶ 45.

However, where the tainted evidence does not go to the proof of an

element of the crime charged, and there is no other admissible

evidence tending to prove the particular fact at issue, the

admission of the tainted evidence will be deemed harmless if the

State demonstrates that, qualitatively, no reasonable possibility

exists that the admission of the tainted evidence might have

contributed to the defendant’s conviction. Van Kirk, ¶ 46.
¶32 This case presents an analogous scenario as that which we

presented, by way of example only, in Van Kirk. In our example in

Van Kirk, we expressed that if the tainted evidence in a case

involves the admission of an involuntary confession made by a

defendant, the State will be “hard-pressed to demonstrate that,

qualitatively, there is no reasonable possibility that this

evidence might have contributed to the defendant’s conviction, even

though there was other evidence tending to prove that the defendant

committed the crime.” Van Kirk, ¶ 44. Such a difficult task faced

by the State in our example is now a reality encountered by the

State in the case at hand.

¶33 Here, the State claims that the evidence presented to the jury

by the statements Spang made on September 19th was repetitive of

what was properly presented to the jury by the statements Spang
th
made on September 17 and testimony from witnesses during the

15
trial, including the testimony of Danell, Francine Spang, Donny

Ferguson, and Amanda Grant. After reviewing the record, we agree.

Nevertheless, Spang points out that transcripts were prepared, by

both parties, from the tapes of the September 19th custodial

interrogation and given to the jury to read as those tapes were

played during the State’s case-in-chief. However, the videotape

from the September 17th custodial interrogation was not transcribed,

as the audio quality of the videotape was too poor to transcribe.

In response, the State fails to demonstrate that, qualitatively,
th
there is no reasonable possibility that the September 19
statements and transcripts made therefrom did not contribute to

Spang’s conviction.

¶34 Moreover, our review of the record reveals that the State

specifically relied upon the statements Spang made on September 19th

in its closing argument. For example, the prosecutor stated during

his closing argument:

He [Spang] says he took a stereo amplifier and a drill from
the bedroom, it’s not a
drill but a saw that looked like a drill, and this is what
th
transpires on the 19
between Olson and the defendant.

Kevin Olson says, okay, wait a minute, when does he go back
and get the rifle?
The defendant says, he already had it when we went back in
here, the bedroom.
And Kevin Olson said, he threw it in the closet while you guys
put the amp and
drill in here? And what did the defendant say? Yeah.

. . . .

And during the course of his taped interview with Olson on the
19th,
what did the defendant say Danell did most of the first day,
the day of the

16
 16th in Great Falls? That he slept. [Spang] [s]till hangs
around. Why would he hang
around? Well, if you want to get into a gang, if you want to
be worthy,
if you want to be a stand-up guy, are you going to abandon
your partner
when he’s on the lamb? No, of course not.
The defendant’s actions, after the murders, are consistent
with somebody
who wanted to help Reid Danell get away with two counts of
murder.
[Emphasis added.]

¶35 Although there was other sufficient evidence tending to prove

that Spang committed two counts of intimidation by accountability,

we conclude that, qualitatively, there exists a reasonable

possibility the statements Spang made during the custodial
th
interrogation on September 19 contributed to his convictions

because of the strong emphasis placed on those statements during

the trial. Consequently, we hold that the District Court committed

reversible error when it admitted Spang’s September 19th statements

during the State’s case-in-chief. Therefore, we remand this case

for a new trial on the two counts of intimidation by accountability

and instruct the District Court that the statements Spang made on
th
September 19 shall not be admitted during the State’s case-in-

chief.

¶36 We note that Spang additionally alleges his September 19th

statements should have been suppressed because the 2 ½ day delay

between his arrest on the evening of Friday, September 17, 1999,

and his initial appearance on the morning of Monday, September 20,

1999, was unnecessary, and thus violated § 46-7-101(1), MCA. Since

we have held that the District Court erred in admitting Spang’s

September 19th statements for the foregoing reasons, we will not

17
address whether the September 19th statements should have been

suppressed on additional grounds.

¶37 To the extent that Spang also challenges the admission of his

September 17th statements on unnecessary delay grounds, we hold that

the District Court did not err in admitting such statements at

trial. In cases involving statements made during the interim

between arrest and initial appearance, the requirement of a prompt

initial appearance is considered in the context of the

voluntariness of the statements. State v. Plouffe (1982), 198

Mont. 379, 387, 646 P.2d 533, 537 (citations omitted). Here, in

light of Spang’s concession on appeal that he voluntarily made
th
statements to Officer Olson on September 17 , after waiving his
right to counsel, there is no evidence to suggest that the delay

between Spang’s arrest and initial appearance influenced the

voluntariness of those statements made on September 17th.

Accordingly, we affirm the District Court’s denial of Spang’s

motion to suppress his September 17th statements.

ISSUE 2

¶38 Did the District Court err in denying Spang’s motion to

dismiss the charges of intimidation by accountability based on

insufficiency of the evidence?

¶39 Spang contends the keystone to proving intimidation is

communication of a threat. Spang alleges, however, that no

evidence was presented at trial that he solicited, aided, abetted,

agreed, or attempted to aid Danell in communicating to Caplette or

Walker a threat to inflict personal harm on either of them. Spang

18
argues, at most, the evidence showed that he may have assisted

Danell in gathering collateral from Walker’s garage, but this

occurred outside the presence of Caplette or Walker. Thus, since

Caplette and Walker were unaware that Spang assisted Danell in

collecting collateral, Spang argues there was no evidence presented

that he aided or solicited Danell in communicating threats to the

victims. Additionally, Spang claims that although he was present

and observed Danell threaten to harm and subsequently kill Caplette

and Walker, his mere presence at the crime scene, and even his

failure to interfere with Danell’s intimidation of the victims, are

insufficient grounds to hold him accountable for intimidation,

pursuant to our holding in State v. Hart (1981), 191 Mont. 375, 625

P.2d 21, cert. denied, 454 U.S. 827 (1981). Spang therefore

contends his convictions of two counts of intimidation by

accountability should be reversed and those charges should be

dismissed with prejudice.
¶40 The State maintains that the District Court properly denied

Spang’s motion to dismiss the charges of intimidation by

accountability after viewing the evidence in the light most

favorable to the prosecution. The State asserts it proved the

essential elements of intimidation by accountability since the

evidence proffered at trial established that Spang was not merely

present at the murder scene. Rather, the State alleges the

evidence it presented at trial established that Spang took actions

prior to and during Danell’s commission of intimidating Caplette

and Walker which aided and assisted Danell in the commission of the

19
crimes. For instance, Spang collected collateral from Walker’s

garage, tore the telephone cords out of the walls in Walker’s

house, and unloaded and reloaded the clip to the nine millimeter

rifle later used by Danell to threaten and ultimately murder the

victims. Also, the State argues the circumstances surrounding the

commission of the crimes, including Spang’s association with Danell

prior to the crimes, his presence at the murder scene, his failure

to call law enforcement during or after the commission of the

crimes, his disposal of evidence, and his flight from the murder

scene to another city with Danell, indicate that Spang aided and

abetted Danell in the commission of intimidating Caplette and

Walker.
¶41 The elements necessary to establish the offense of

intimidation are stated in § 45-5-203(1), MCA (1999), which

provides:

(1) A person commits the offense of intimidation when, with
the purpose
to cause another to perform or to omit the performance of any
act, he
communicates to another, under circumstances which reasonably
tend
to produce a fear that it will be carried out, a threat to
perform without
lawful authority any of the following acts:

(a) inflict physical harm on the person threatened or any
other person;

(b) subject any person to physical confinement or restraint;
or

(c) commit any felony.

¶42 Section 45-2-302(3), MCA (1999), provides that a person is

legally accountable for the conduct of another when:

20
 either before or during the commission of an offense with the
purpose to
promote or facilitate such commission, he solicits, aids,
abets, agrees, or
attempts to aid such other person in the planning or
commission of the
offense.

¶43 Hence, mere presence at the scene of a crime is not enough to

establish accountability, but the “accused need not take an active

part in any overt criminal acts to be adjudged criminally liable

for the acts.” State v. Miller (1988), 231 Mont. 497, 511, 757

P.2d 1275, 1284 (quoting State v. Bradford (1984), 210 Mont. 130,

142, 683 P.2d 924, 930). Additionally, while mere presence and the

failure to disapprove or oppose another’s commission of an offense

are insufficient to sustain an accountability charge, these factors

may be considered by a jury, along with other circumstances, which

may indicate whether the accused in some way aided or abetted the

principal in the commission of the crime. Hart, 191 Mont. at 390,

625 P.2d at 30 (citations omitted).
¶44 Here, the State presented evidence which establishes that

Spang was not merely present at the scene of the crimes. The

evidence presented by the State shows that the jury could have

inferred that Spang did aid and abet Danell prior to and during his

commission of threatening Caplette and Walker with physical harm.

Notably, the State presented evidence that Spang had unloaded and

reloaded the clip to the nine millimeter rifle used by Danell to

threaten the victims, Spang assisted Danell in collecting

collateral from Walker’s garage, Spang pulled the telephone cords

out of the walls in Walker’s residence, and Spang failed to

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disapprove or oppose Danell’s commission of the crimes. The State

further presented evidence that Spang was associated with Danell

prior to the commission of the crimes. Therefore, we conclude that

the State presented sufficient evidence upon which a rational trier

of fact could find beyond a reasonable doubt that Spang committed

two offenses of intimidation by accountability. Consequently, we

hold that the District Court did not abuse its discretion in

denying Spang’s motion for directed verdict on the intimidation by

accountability charges.
¶45 Furthermore, we note that Spang also contends the District

Court erred in denying a hearing on his motion to dismiss based on

lack of a speedy trial, and forcing him to choose between a hearing

on his motion or a trial. As we have repeatedly emphasized, “[a]

District Court will not be put in error where it was not accorded

an opportunity to correct itself.” State v. Long (1986), 223 Mont.

502, 506, 726 P.2d 1364, 1366 (citation omitted). The record

clearly reflects that Spang’s counsel voluntarily withdrew the

motion and failed to object to the options regarding the

disposition of the motion presented by the District Court. Thus,

Spang’s claim of error on this matter was not before the District

Court. Hence, we will not address this issue on appeal.

¶46 Affirmed in part, reversed in part and remanded for a new

trial on the two counts of intimidation by accountability.

/S/ JIM REGNIER

We Concur:

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/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART

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Justice Jim Rice concurring in part and dissenting in part.

¶47 I concur in affirming the District Court’s denial of the motion for a directed verdict,

but dissent from the Court’s reversal of Spang’s conviction on the grounds that the District

Court erroneously denied Spang’s motion to suppress his confession of September 19, 1999.

¶48 Spang was arrested on September 17, 1999, after police

implicated him in the deaths of Kristi Walker and Kevin Caplette.

Later that day, Officer Olson and Deputy VanVleet left Havre and

traveled to Great Falls, where Spang was detained, to question him,

and arrived shortly after 11:00 p.m. After Spang waived his

rights, the officers interviewed him for over an hour. By then, it

was early in the morning of September 18, and the officers decided

to conclude the interview, return to Havre, and continue the

interview the next day, September 19. The officers informed Spang

of their intentions and returned to Havre. The District Court

found this interview was not unduly long or grueling, and stated as

follows about Spang:
Even though he is young, defendant has more experience
with the legal system, and his rights, than most people.
He is “street wise.” It is apparent from the tapes that
he was not intimidated by his surroundings, was alert and
aware of his situation. He was aware of his rights, was
reminded of them, voluntarily waived his right to counsel
and gave a statement on September 17-18, 1999.

¶49 The District Court then found that “as promised,” Officer Olson, on September 19,

1999, again made the lengthy trip from Havre to Great Falls, accompanied by Officer Tate, to

continue the interview with Spang, at which time the conversation referenced by the Court in

¶ 7 occurred. After considering the evidence of this interview, the District Court found:

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 Upon review of the transcript and recordings in this matter, it is clear that
Officer Olson did not “interrogate” the defendant after he requested an
attorney. The defendant mentioned an attorney, and the officer asked some
clarifying questions. Those questions were not reasonably likely to elicit an
incriminatory response. In fact they did not. Nor did the question “Do you
want to talk to us before you talk to a lawyer?” contain a measure of
compulsion above and beyond that which is inherent in custody itself. There is
no indication that Olson tried to talk defendant out of his decision.

¶50 In fact, Officer Olson was even more accommodating to Spang as their conversation

continued. After Spang indicated that he would continue the interview, Olson did not, as the

Court’s opinion states at ¶ 7, immediately commence interrogation of Spang. The Court

omits the portion of the conversation in which Olson, after Spang indicated he would speak

with them, once again asked Spang if he would like to have a lawyer before doing so. Spang

responded by indicating that he would talk to the officers without a lawyer. These facts led

the District Court to conclude:

It is not impermissible to inquire if a defendant wants a lawyer before he
speaks. This is especially true in this particular instance as (a) Mr. Spang had
already made a statement concerning the crimes and, (b) the way the statement
of the defendant was phrased. Here, it was the defendant himself who decided
to continue the interview and answer questions. . . . Considering all of the
circumstances, defendant waived his right to consult with a lawyer or have a
lawyer present before speaking to the police on September 19, 1999.

¶51 I agree. As the District Court found, Spang was “street wise” and well aware of what

was necessary to invoke his rights. Yet, from his comment, Officer Olson could not know if

Spang wanted a lawyer right then, or if he was expressing a general need for one to be

appointed at some point. Thus, Olson asked a clarifying question. The Court would require

that the officers, at the Defendant’s mention of the word “lawyer,” silently turn off the tape

recorder, get up, gather their materials, walk out of the room, and drive back to Havre

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without so much as a question to clarify if that was the Defendant’s intention. Such a

conclusion is neither a reasonable assessment of the circumstances here, nor a balanced rule

for future cases, inviting the problem about which the United States Supreme Court has

warned:

We decline . . . [to] require law enforcement officers to cease questioning
immediately upon the making of an ambiguous or equivocal reference to an
attorney. . . . [A] rule requiring the immediate cessation of questioning
“would transform the Miranda safeguards into wholly irrational obstacles to
legitimate police investigative activity,” Michigan v. Mosely [citation omitted],
because it would needlessly prevent the police from questioning a suspect in
the absence of counsel even if the suspect did not wish to have a lawyer
present.

Davis v. United States (1994), 512 U.S. 452, 459-60, 114 S.Ct. 2350, 2355-56, 129 L.Ed.2d

362, 372.

¶52 Finding that Officer Olson’s questioning was appropriate under the United States

Constitution and the Montana Constitution, and following this Court’s holding in the similar

case of State v. Brubaker, I would uphold the District Court’s denial of the motion to

suppress and affirm Spang’s conviction.

/S/ JIM RICE

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