April 13 2010
DA 08-0332
IN THE SUPREME COURT OF THE STATE OF MONTANA
2010 MT 73
STATE OF MONTANA,
Plaintiff and Appellee,
v.
THOMAS SCHEFFER,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DC-2007-343
Honorable Robert L. Deschamps, III, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Milton Datsopoulos, Peter Lacny, Datsopoulos, MacDonald & Lind, P.C.,
Missoula, Montana
For Appellee:
Hon. Steve Bullock, Montana Attorney General, Sheri K. Sprigg,
Assistant Attorney General, Helena, Montana
Fred Van Valkenburg, Missoula County Attorney, Jennifer Clark,
Andrew Paul, Deputy County Attorneys, Missoula, Montana
Submitted on Briefs: June 5, 2009
Decided: April 13, 2010
Filed:
__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
¶1 Thomas Eugene Scheffer appeals from his conviction of attempted tampering with
or fabricating physical evidence, a felony, following a jury trial in the Fourth Judicial
District Court, Missoula County. We affirm.
ISSUES
¶2 Scheffer raises three issues on appeal:
1. Did the District Court err in denying Scheffer’s motion to suppress?
2. Did the District Court abuse its discretion in denying Scheffer’s motion to
dismiss the Amended Information?
3. Must Scheffer’s conviction of attempted tampering with or fabricating physical
evidence be vacated as “irrationally inconsistent” with his acquittal of sexual intercourse
without consent?
GENERAL BACKGROUND
¶3 Shortly after midnight on August 25, 2007, Missoula County 9-1-1 received a
report that Scheffer had attempted to rape a woman (whom we refer to herein as “H.K.”)
earlier that evening outside Larry’s Six Mile tavern in Huson, Montana.1 Officers from
the Missoula County Sheriff’s Department responded to H.K.’s location to interview her
and other individuals who had observed H.K.’s demeanor following the incident. H.K.
1
The audio recording of the 9-1-1 call was played to the jury at Scheffer’s trial
and is contained in the record on appeal. H.K. is audibly upset and crying during the call.
Remarkably, H.K. was (without explanation) interrupted and put on hold five times—
complete with elevator music and a prerecorded voice thanking her for calling and for her
patience—before she was able to recount fully all of the details of the alleged rape
attempt. About five minutes into the call, it was picked up by a second dispatcher, who
put H.K. back on hold after she stated why she was calling.
2
told the officers that she had gone to Larry’s Six Mile at around 10:00 that evening and,
while there, had gotten into a conversation with Scheffer about Corvettes. According to
H.K., Scheffer invited her outside to look at his Corvette Stingray and, at some point
while they were outside, tried to kiss her. H.K. pulled away but Scheffer grabbed one of
her arms. This caused her to fall to the ground with Scheffer on top of her. H.K. stated
that he tried to pull up her shirt, but she resisted. Scheffer then moved one of his hands
down the front of her pants and inside her underwear and inserted one or more of his
fingers inside her vagina. H.K. said she then kicked Scheffer in order to get away.
¶4 After interviewing H.K., a deputy transported her to First Step in Missoula for a
medical examination while two other officers attempted to locate Scheffer. They found
him sitting in his Corvette with an unidentified female in the parking lot of Larry’s Six
Mile just after closing. The officers approached the car and asked Scheffer if he would
speak with them. Scheffer agreed, and they walked over to Deputy Jon Gunter’s patrol
car. Initially, Scheffer was very cooperative, but he soon became defensive. When
Gunter stated that he wanted to ask Scheffer about H.K., Scheffer preemptively
exclaimed, “I didn’t touch her.” Sergeant Anthony Rio then read Scheffer his rights
under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966), and Scheffer stated that
he would speak with Rio and answer questions. Scheffer explained that the reason H.K.
was upset and “freaked out” was because she had lost her purse. Scheffer stated that he
had helped her find it. Rio noted that Scheffer’s speech was slurred, his breath smelled of
alcohol, and he rambled quite a bit during the interview, which took place over the course
of 10 to 20 minutes.
3
¶5 Meanwhile, roughly 30 people were milling about in the parking lot, some jeering
at the officers and others coming over to listen to the interview with Scheffer. These
distractions were making it difficult to have a conversation, so Sergeant Rio suggested
that Scheffer come down to the sheriff’s office and give his statement there. Scheffer
agreed; however, due to his intoxicated condition and the fact that he was a suspect, the
officers patted him down, handcuffed him, and put him in the back of the patrol car.
¶6 At the sheriff’s office, the officers removed the handcuffs and put Scheffer in an
interrogation room, where he was questioned by Detective T.J. McDermott. McDermott
observed that Scheffer appeared to be under the influence of alcohol but nevertheless was
coherent and able to answer questions throughout the interview, which lasted roughly an
hour. The video recording of the interview is contained in the record on appeal. Portions
of it were played to the jury at trial.
¶7 Scheffer told McDermott that he and H.K. had been at Scheffer’s shop (which is
located adjacent to Larry’s Six Mile tavern) earlier in the evening and that he had kissed
H.K. several times there while the two of them were sitting on a couch. He claimed that
H.K. had “begged” him to have sex with her but he had refused because of his friendship
with H.K.’s fiancé. Scheffer emphatically denied touching H.K. (except for kissing her),
and he likewise denied putting his hand down her pants and his fingers in her vagina. He
suggested a number of times that McDermott bring H.K. and certain other individuals
down to the stationhouse in order to clear everything up right then and there.
¶8 In light of H.K.’s allegation of digital penetration, McDermott told Scheffer that
he wanted to swab Scheffer’s fingers to test for the presence of H.K.’s DNA and thereby
4
corroborate Scheffer’s story (assuming the test showed that her DNA was not present).
Scheffer consented to this procedure. However, while McDermott was out of the room
obtaining the swabbing materials, Scheffer quickly stuck three fingers of his right hand
(the index, middle, and ring fingers) entirely in his mouth, moved them back and forth,
took them out, rubbed his hands together, and then wiped his fingers on his jeans (all
within the span of about six seconds). McDermott and Sergeant Rio observed these
actions on a monitor in the hallway. Twenty seconds later, Scheffer briefly chewed on
his right-hand fingernails. 2 After McDermott swabbed Scheffer’s fingers, he confronted
Scheffer about sticking his fingers in his mouth. Scheffer flatly denied doing so.
¶9 At the conclusion of the interview, McDermott placed Scheffer under arrest. The
State subsequently charged him on September 11, 2007, with sexual intercourse without
consent, a felony, in violation of § 45-5-503, MCA (Count I); tampering with or
fabricating physical evidence, a felony, in violation of § 45-7-207, MCA (Count II); and
unlawful restraint, a misdemeanor, in violation of § 45-5-301, MCA (Count III).
Scheffer pleaded not guilty to these charges and subsequently filed a motion to suppress
his statements and the evidence obtained during the interview with McDermott. He
argued that he had requested the presence of counsel but that McDermott had continued
2
In the Statement of the Facts of the Appellant’s Brief, Scheffer’s counsel states
that “[w]hen McDermott exited the room to obtain swabbing supplies, a nervous and
intoxicated Scheffer began chewing his finger nails as he often does when plagued by
stress.” Counsel next states that McDermott “viewed Scheffer’s nervous reaction much
differently” as “sticking his fingers in his mouth and attempting to purposely remove
DNA.” The fact is, however, that Scheffer can be seen first sticking his fingers entirely
in his mouth, taking them out, wiping them on his jeans, and refolding his arms, and then,
20 seconds later, chewing briefly on his fingernails. The implication that Scheffer and
McDermott simply interpreted a single act differently is misleading and inaccurate.
5
to question Scheffer despite this request. The District Court reviewed the video recording
and thereafter denied Scheffer’s motion, concluding that he had not actually invoked his
right to counsel.
¶10 On May 21, 2008 (seven days before trial), the State requested leave to file an
Amended Information under § 46-11-205, MCA. The prosecutor explained that when the
original Information was filed, the crime lab had not yet completed testing of the swabs
of Scheffer’s fingers; however, the testing had since been completed, and it revealed the
presence of both Scheffer’s DNA and H.K.’s DNA. The prosecutor thus asserted that
Scheffer had “attempted to destroy the evidence, but was not successful,” and she sought
to amend Count II to allege attempted tampering with or fabricating physical evidence, a
felony, in violation of §§ 45-4-103 and 45-7-207, MCA. The District Court granted the
motion over Scheffer’s objections that the amendment was untimely and the supporting
affidavit was invalid. Scheffer entered a plea of not guilty to the amended charge.
¶11 A four-day jury trial commenced on May 28, 2008. Scheffer testified in his own
defense. Contrary to what he had told Detective McDermott, Scheffer stated that when
he and H.K. were on the couch in his shop, he put his hand in her pants and she put her
hand in his pants. He further admitted that he put his fingers into her vagina, but he
claimed that he did so with H.K.’s consent.
¶12 The jury ultimately found Scheffer not guilty of sexual intercourse without
consent and unlawful restraint, but found him guilty of attempted tampering with or
fabricating physical evidence. The District Court deferred imposition of sentence for a
period of three years and imposed a $1,000 fine. Scheffer now appeals.
6
DISCUSSION
¶13 Issue 1. Did the District Court err in denying Scheffer’s motion to suppress?
I. Standard of Review
¶14 In reviewing a district court’s ruling on a motion to suppress evidence or
statements, we determine whether the court’s underlying findings of fact are clearly
erroneous and whether the court’s interpretation and application of the law are correct.
State v. Munson, 2007 MT 222, ¶ 18, 339 Mont. 68, 169 P.3d 364; State v. Clark, 2008
MT 419, ¶ 12, 347 Mont. 354, 198 P.3d 809. The court’s findings are clearly erroneous
if they are not supported by substantial evidence, if the court has misapprehended the
effect of the evidence, or if this Court’s review of the record leaves us with a definite or
firm conviction that a mistake has been made. Munson, ¶ 18.
II. Legal Basis of Scheffer’s Right-to-Counsel Claim
¶15 As noted, Scheffer filed a motion to suppress his statements and the evidence
obtained during the interview with McDermott on the ground that he had been denied his
right to counsel. According to Scheffer, he made an unambiguous request for counsel, at
which point all questioning should have stopped, and because it did not, any evidence
obtained from the interrogation should have been suppressed. On appeal, the parties
disagree as to which constitutional provisions govern this claim. In fact, Scheffer accuses
the District Court and the State of having “confused” his Fifth Amendment and Sixth
Amendment rights. It is necessary at the outset, therefore, before laying out the specific
facts underlying Scheffer’s claim, to clarify which right to counsel he was entitled to
during the interrogation.
7
¶16 There are two distinct rights to counsel recognized under the Constitution. The
first is the right to counsel in all criminal prosecutions. This right is expressly recognized
by the Sixth Amendment to the United States Constitution, which states that “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of
Counsel for his defence.” This right is also expressly recognized by Article II, Section 24
of the Montana Constitution, which states that “[i]n all criminal prosecutions the accused
shall have the right to appear and defend in person and by counsel.” The right of the
“accused” to the assistance of counsel in all “criminal prosecutions” is limited by its
terms: It does not attach until a prosecution has been commenced, i.e., until adversary
judicial criminal proceedings have been initiated, whether by way of formal charge,
preliminary hearing, indictment, information, or arraignment. Rothgery v. Gillespie Co.,
___ U.S. ___, 128 S. Ct. 2578, 2583 (2008) (Sixth Amendment); State v. Schneider, 2008
MT 408, ¶¶ 16-23, 347 Mont. 215, 197 P.3d 1020 (Article II, Section 24). Indeed, the
core of this right is “a trial right, ensuring that the prosecution’s case is subjected to the
crucible of meaningful adversarial testing.” Kansas v. Ventris, ___ U.S. ___, 129 S. Ct.
1841, 1845 (2009) (internal quotation marks omitted); Schneider, ¶ 23 (the Article II,
Section 24 right to counsel is “a trial-based right”). However, because “today’s law
enforcement machinery involves critical confrontations of the accused by the prosecution
at pretrial proceedings where the results might well settle the accused’s fate and reduce
the trial itself to a mere formality,” United States v. Wade, 388 U.S. 218, 224, 87 S. Ct.
1926, 1931 (1967), the right to counsel under the Sixth Amendment and Article II,
Section 24 extends (once the adversary judicial process has been initiated) to having
8
counsel present at all pretrial “critical” interactions between the defendant and the State,
see id. at 224, 226, 87 S. Ct. at 1931, 1932; Ventris, 129 S. Ct. at 1845; Montejo v.
Louisiana, ___ U.S. ___, 129 S. Ct. 2079, 2085 (2009); Maine v. Moulton, 474 U.S. 159,
170, 106 S. Ct. 477, 484 (1985); Ranta v. State, 1998 MT 95, ¶ 17, 288 Mont. 391, 958
P.2d 670.
¶17 The second right to counsel recognized under the Constitution derives from the
privilege against self-incrimination and applies specifically to custodial interrogations.
The Fifth Amendment provides that “[n]o person . . . shall be compelled in any criminal
case to be a witness against himself.” Likewise, Article II, Section 25 guarantees that
“[n]o person shall be compelled to testify against himself in a criminal proceeding.” In
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966), the Supreme Court held that
“the Fifth Amendment privilege is available outside of criminal court proceedings and
serves to protect persons in all settings in which their freedom of action is curtailed in any
significant way from being compelled to incriminate themselves.” Id. at 467, 86 S. Ct. at
1624. Furthermore, because the modern practice of in-custody interrogation “contains
inherently compelling pressures which work to undermine the individual’s will to resist
and to compel him to speak where he would not otherwise do so freely,” the Supreme
Court concluded that “adequate protective devices” are necessary to dispel the
compulsion inherent in custodial surroundings and to permit a full opportunity to exercise
the privilege against self-incrimination. Id. at 458, 467, 86 S. Ct. at 1619, 1624; see also
Dickerson v. United States, 530 U.S. 428, 434-35, 120 S. Ct. 2326, 2331 (2000); State v.
Morrisey, 2009 MT 201, ¶¶ 27-28, 351 Mont. 144, 214 P.3d 708. One of the protective
9
devices recognized by the Court is the right of the individual to consult with a lawyer and
to have the lawyer present with him during the custodial interrogation. See Miranda, 384
U.S. at 471, 474, 86 S. Ct. at 1626, 1628; see also Montejo, 129 S. Ct. at 2089 (“Under
Miranda’s prophylactic protection of the right against compelled self-incrimination, any
suspect subject to custodial interrogation has the right to have a lawyer present if he so
requests, and to be advised of that right.”). The Miranda Court explained that
[t]he circumstances surrounding in-custody interrogation can operate very
quickly to overbear the will of one merely made aware of his privilege
[against self-incrimination] by his interrogators. Therefore, the right to
have counsel present at the interrogation is indispensable to the protection
of the Fifth Amendment privilege under the system we delineate today.
Our aim is to assure that the individual’s right to choose between silence
and speech remains unfettered throughout the interrogation process.
384 U.S. at 469, 86 S. Ct. at 1625. Once an individual has invoked his or her right to
have counsel present during custodial interrogation, the interrogation must cease and
officials may not reinitiate interrogation without counsel present. See Edwards v.
Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880, 1884-85 (1981); Minnick v. Mississippi,
498 U.S. 146, 153, 111 S. Ct. 486, 491 (1990). Although the Miranda right to counsel
derives from the Fifth Amendment, we have indicated, both implicitly and explicitly, that
the rights and procedures dictated by Miranda are required by Article II, Section 25 of
the Montana Constitution as well. See e.g. Schneider, ¶ 27; State v. Hurlbert, 2009 MT
221, ¶ 33, 351 Mont. 316, 211 P.3d 869; State v. Buck, 2006 MT 81, ¶¶ 45-48, 331 Mont.
517, 134 P.3d 53; State v. Olson, 2003 MT 61, ¶¶ 13-14, 314 Mont. 402, 66 P.3d 297.
¶18 The policies and interests underlying these two rights are distinct, see Patterson v.
Illinois, 487 U.S. 285, 297, 108 S. Ct. 2389, 2397 (1988), as are the applicable standards,
10
see e.g. Fellers v. United States, 540 U.S. 519, 524, 124 S. Ct. 1019, 1022-23 (2004).
The Sixth Amendment/Article II, Section 24 right to counsel, applicable throughout the
course of a criminal prosecution, protects “the unaided layman at critical confrontations
with his expert adversary, the government, after the adverse positions of government and
defendant have solidified with respect t o a particular alleged crime.” McNeil v.
Wisconsin, 501 U.S. 171, 177-78, 111 S. Ct. 2204, 2208-09 (1991) (internal quotation
marks omitted). This right is thus offense specific. Id. at 175, 111 S. Ct. at 2207;
Schneider, ¶ 23. In contrast, the Fifth Amendment/Article II, Section 25 right to counsel,
applicable during a custodial interrogation, protects “the suspect’s desire to deal with the
police only through counsel.” McNeil, 501 U.S. at 178, 111 S. Ct. at 2209 (internal
quotation marks omitted). This right is thus not offense specific, and “[o]nce a suspect
invokes the Miranda right to counsel for interrogation regarding one offense, he may not
be reapproached regarding any offense unless counsel is present.” Id. at 177, 111 S. Ct.
at 2208; see also Arizona v. Roberson, 486 U.S. 675, 108 S. Ct. 2093 (1988). Hence, the
interest protected by the Fifth Amendment guarantee “is in one respect narrower than the
interest protected by the Sixth Amendment guarantee (because it relates only to custodial
interrogation) and in another respect broader (because it relates to interrogation regarding
any suspected crime and attaches whether or not the ‘adversarial relationship’ produced
by a pending prosecution has yet arisen).” McNeil, 501 U.S. at 178, 111 S. Ct. at 2209.
It is worth noting that both rights to counsel may be applicable in certain situations—for
example, at a postarraignment custodial interrogation. See Montejo, 129 S. Ct. at 2090;
11
Michigan v. Jackson, 475 U.S. 625, 629, 106 S. Ct. 1404, 1407 (1986), overruled on
other grounds, Montejo, 129 S. Ct. at 2091.
¶19 In addition to the foregoing distinctions, the consequences of violating the two
rights differ in some important respects (at least insofar as federal law is concerned). The
privilege against self-incrimination protects a person “only from being compelled to
testify against himself, or otherwise provide the State with evidence of a testimonial or
communicative nature.” Pennsylvania v. Muniz, 496 U.S. 582, 589, 110 S. Ct. 2638,
2643 (1990) (internal quotation marks omitted); see also Oregon v. Elstad, 470 U.S. 298,
304, 105 S. Ct. 1285, 1290 (1985) (“The Fifth Amendment, of course, is not concerned
with nontestimonial evidence.”); State v. Devlin, 1999 MT 90, 294 Mont. 215, 980 P.2d
1037. The Miranda safeguards, in turn, serve to protect the privilege by requiring that
when a person is in custody, he must be warned prior to any questioning that he has the
right to remain silent, that anything he says can be used against him in a court of law, that
he has the right to the presence of an attorney, and that if he cannot afford an attorney one
will be appointed for him prior to any questioning if he so desires. Miranda, 384 U.S. at
478-79, 86 S. Ct. at 1630; State v. Buck, 2006 MT 81, ¶¶ 35, 45, 331 Mont. 517, 134 P.3d
53. Failure to give these warnings and obtain a valid waiver of rights prior to
questioning, or failure to fully honor the exercise of these rights throughout the
interrogation, generally requires the exclusion of any testimonial evidence (i.e.,
communications) obtained. See Miranda, 384 U.S. at 467, 476, 479, 86 S. Ct. at 1624,
1629, 1630; State v. Morrisey, 2009 MT 201, ¶ 28, 351 Mont. 144, 214 P.3d 708.
However, the Supreme Court has refused to apply the fruit-of-the-poisonous-tree
12
doctrine3 to exclude derivative evidence (i.e., evidence discovered as a result of a
statement obtained in violation of Miranda).4 See United States v. Patane, 542 U.S. 630,
124 S. Ct. 2620 (2004); see also Elstad, 470 U.S. 298, 105 S. Ct. 1285 (rejecting
application of the fruits doctrine to a second confession that followed a first confession
obtained in violation of Miranda); Missouri v. Seibert, 542 U.S. 600, 124 S. Ct. 2601
(2004) (again declining to apply the fruits doctrine to a second confession); Wayne R.
LaFave et al., Criminal Procedure vol. 3, § 9.5(a)-(c), 466-82 (3d ed., West 2007).
¶20 In contrast, the Sixth Amendment right to counsel is not a “protective device” that
functions solely as a safeguard against compelled self-incrimination. Indeed, “the Sixth
Amendment’s protection of the attorney-client relationship—the right to rely on counsel
as a ‘medium’ between [the accused] and the State—extends beyond Miranda’s
protection of the Fifth Amendment right to counsel.” Patterson, 487 U.S. at 296 n. 9,
108 S. Ct. at 2397 n. 9 (brackets in Patterson, some internal quotation marks omitted).
The Sixth Amendment right to counsel is specifically affirmed in the Constitution, and it
3
See Missouri v. Seibert, 542 U.S. 600, 612 n. 4, 124 S. Ct. 2601, 2610 n. 4
(2004) (plurality opinion) (explaining that under the fruit-of-the-poisonous-tree doctrine,
“evidence otherwise admissible but discovered as a result of an earlier violation is
excluded as tainted, lest the law encourage future violations”).
4
We have not yet decided whether the fruits doctrine applies under Article II,
Section 25, see Morrisey, 351 Mont. at 157 n. 4, 214 P.3d at 719 n. 4, and while Scheffer
asserts the exclusionary rule in this case, none of his authorities address specifically the
exclusion of derivative evidence acquired as a result of a violation of the Article II,
Section 25 right to counsel. Of course, it should be noted that the fruits of actually
compelled statements must be excluded. See New Jersey v. Portash, 440 U.S. 450,
458-59, 99 S. Ct. 1292, 1296-97 (1979); United States v. Hubbell, 530 U.S. 27, 37-38,
120 S. Ct. 2037, 2044 (2000). Also, the Due Process Clause provides some protection
against the compulsion of evidence. See Rochin v. California, 342 U.S. 165, 172-74, 72
S. Ct. 205, 209-10 (1952). But no factual grounds have been presented in the present
case for concluding that the evidence in question was the product of actual compulsion.
13
broadly guarantees an accused “aid in coping with legal problems or assistance in
meeting his adversary” (the government) at critical stages of the criminal proceedings.
United States v. Ash, 413 U.S. 300, 310-11, 313, 93 S. Ct. 2568, 2574, 2575 (1973). It
also protects the integrity and fairness of the adversary criminal process. See Lockhart v.
Fretwell, 506 U.S. 364, 368-69, 113 S. Ct. 838, 842 (1993); Nix v. Williams, 467 U.S.
431, 446, 104 S. Ct. 2501, 2510 (1984). It thus is not limited to testimonial evidence, and
the fruits doctrine applies to Sixth Amendment violations. See e.g. Brewer v. Williams,
430 U.S. 387, 406 n. 12, 97 S. Ct. 1232, 1243 n. 12 (1977) (due to Sixth Amendment
violation, neither the defendant’s incriminating statements nor any testimony describing
his having led the police to the victim’s body was admissible); Nix, 467 U.S. at 441-50,
104 S. Ct. at 2507-12 (in the context of a Sixth Amendment violation, acknowledging the
fruits doctrine and applying the inevitable-discovery exception to it); Wade, 388 U.S. at
239-42, 87 S. Ct. at 1939-40 (evidence based on identification made at postindictment
lineup, in violation of the accused’s Sixth Amendment right to counsel, is inadmissible);
accord Gilbert v. California, 388 U.S. 263, 272-74, 87 S. Ct. 1951, 1956-57 (1967).
¶21 Recognizing these distinctions, Scheffer insists that his right-to-counsel claim is
governed by the Sixth Amendment and Article II, Section 24. As noted, he was acquitted
of sexual intercourse without consent and unlawful restraint, but was found guilty of
attempted tampering with or fabricating physical evidence. The primary evidence
obtained from the interrogation and introduced at trial to prove this charge did not consist
of testimonial statements given by Scheffer, but rather consisted of the videotape
recording of what Scheffer did (sticking his fingers in his mouth) and the testimony of
14
Detective McDermott and Sergeant Rio about what they witnessed through the hallway
monitor (Scheffer sticking his fingers in his mouth). For the reasons discussed above,
Scheffer faces significant obstacles to suppressing this evidence under a Fifth
Amendment/Article II, Section 25 theory. Thus, Scheffer cites the Sixth Amendment,
Article II, Section 24, and Wade, 388 U.S. 218, 87 S. Ct. 1926, in arguing that he is
entitled to suppression of his “conduct” because he was questioned in the absence of
counsel at a “critical stage” proceeding.
¶22 The State counters that Scheffer’s claim is governed by the Fifth Amendment and
Article II, Section 25, not the Sixth Amendment and Article II, Section 24, given that the
interrogation was not part of a “judicial proceeding.” In response, Scheffer maintains his
Sixth Amendment/Article II, Section 24 argument, but also argues that even if the Fifth
Amendment and Article II, Section 25 apply, he had the right to have counsel present,
this right was infringed, and his motion to suppress should have been granted.
¶23 The State is correct that the Fifth Amendment and Article II, Section 25 apply to
Scheffer’s claim. As explained above, the Sixth Amendment/Article II, Section 24 right
to counsel does not attach until adversary judicial criminal proceedings have been
initiated, and there is no question that at the time of the McDermott-Scheffer interview,
the State had not yet commenced a formal criminal prosecution against Scheffer. See
State v. Schneider, 2008 MT 408, ¶¶ 17, 21, 347 Mont. 215, 197 P.3d 1020. Scheffer’s
argument to the contrary (that the Sixth Amendment and Article II, Section 24 apply) is
based entirely on Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758 (1964). In
Escobedo—which, it should be noted, was decided two years before the Supreme Court
15
issued its decision in Miranda—the defendant (Escobedo) was arrested, taken to police
headquarters, and interrogated. Despite his repeated requests to speak to his retained
lawyer, he was afforded no opportunity to do so during the course of the interrogation.
He ultimately made an incriminating statement. On appeal, the Supreme Court
concluded that although the interrogation was conducted before Escobedo was formally
indicted, his Sixth Amendment right to counsel nevertheless applied under the particular
circumstances. The Court held
that where, as here, the investigation is no longer a general inquiry into an
unsolved crime but has begun to focus on a particular suspect, the suspect
has been taken into police custody, the police carry out a process of
interrogations that lends itself to eliciting incriminating statements, the
suspect has requested and been denied an opportunity to consult with his
lawyer, and the police have not effectively warned him of his absolute
constitutional right to remain silent, the accused has been denied “the
Assistance of Counsel” in violation of the Sixth Amendment to the
Constitution . . . .
Id. at 490-91, 84 S. Ct. at 1765. In short, “when the process shifts from investigatory to
accusatory—when its focus is on the accused and its purpose is to elicit a confession—
our adversary system begins to operate, and, under the circumstances here, the accused
must be permitted to consult with his lawyer.” Id. at 492, 84 S. Ct. at 1766. Relying on
this holding, Scheffer argues that McDermott’s interrogation of him “was an accusatory
process rather than a general investigation,” that he was “an accused rather than a mere
suspect,” that “the underlying purpose of the interrogation was to get [him] to confess his
guilt,” and that “the ‘guiding hand of counsel’ was essential” to advise him of his rights.
¶24 What Scheffer doggedly fails to accept, however, in the face of contrary authority
cited by the State, is that subsequent decisions of the Supreme Court
16
foreclose any reliance on Escobedo . . . for the proposition that the Sixth
Amendment right, in any of its manifestations, applies prior to the initiation
of adversary judicial proceedings. Although Escobedo was originally
decided as a Sixth Amendment case, the Court in retrospect perceived that
the prime purpose of Escobedo was not to vindicate the constitutional right
to counsel as such, but, like Miranda, to guarantee full effectuation of the
privilege against self-incrimination.
Moran v. Burbine, 475 U.S. 412, 429, 106 S. Ct. 1135, 1145 (1986) (internal quotation
marks omitted); accord United States v. Gouveia, 467 U.S. 180, 188 n. 5, 104 S. Ct.
2292, 2297 n. 5 (1984) (“[W]e required counsel in . . . Escobedo in order to protect the
Fifth Amendment privilege against self-incrimination rather than to vindicate the Sixth
Amendment right to counsel.”). While Scheffer still insists that Escobedo permits
application of the Sixth Amendment right to counsel “in certain instances” before
adversary judicial criminal proceedings have been initiated, the Supreme Court has stated
otherwise, see Moran, 475 U.S. at 429, 106 S. Ct. at 1145; Rothgery, 128 S. Ct. at 2583
(“The Sixth Amendment right of the accused to assistance of counsel in all criminal
prosecutions . . . does not attach until a prosecution is commenced.” (internal quotation
marks omitted)), and Scheffer’s argument, therefore, is simply wrong. Accordingly, we
conclude that his Sixth Amendment right to counsel had not arisen at the time of the
interrogation, which occurred before Scheffer was formally charged, see State v. Reavley,
2003 MT 298, ¶¶ 37-45, 318 Mont. 150, 79 P.3d 270, and we reach the same conclusion
under Article II, Section 24, see Schneider, ¶ 23 (“[T]he Montana right applies with
respect to an offense when prosecution has been commenced for that offense.” (emphasis
added)). We are left, then, with the question of whether Scheffer’s right to counsel under
the Fifth Amendment and Article II, Section 25 was violated.
17
III. The Merits of Scheffer’s Right-to-Counsel Claim
¶25 Initially, we note that there is no dispute that the McDermott-Scheffer interview
constituted a “custodial interrogation” and, consequently, that Scheffer had the right to
counsel under the Fifth Amendment and Article II, Section 25. The State contends,
however, that he did not adequately assert this right and that the right, therefore, was not
violated. Alternatively, the State contends that even if the right was violated, the
exclusionary rule does not apply to evidence of criminal conduct (here, Scheffer’s
attempting to tamper with physical evidence on his fingers) committed in response to a
claimed constitutional violation.5 Scheffer disputes the State’s arguments on both points;
however, because we agree with the State’s first argument, we do not reach the second.
¶26 If a suspect knowingly and voluntarily waives his right to counsel after receiving
the Miranda warnings (as Scheffer concedes he did here), law enforcement officers are
free to question him. Davis v. United States, 512 U.S. 452, 458, 114 S. Ct. 2350, 2354
(1994). But if the suspect later requests counsel at any time during the interview, he is
not subject to further questioning regarding any offense unless an attorney is actually
present or the suspect himself reinitiates conversation. Id. at 458, 114 S. Ct. at 2354-55.
The question here is whether Scheffer actually invoked his right to counsel after initially
waiving it. This is an objective inquiry, id. at 458-59, 114 S. Ct. at 2355, and the
5
See e.g. People v. Luffman, 650 N.Y.S.2d 354, 357 (N.Y. App. Div. 3d Dept.
1996) (the legal protection of Miranda as to the crimes for which the defendant was
already in custody do not extend to a new crime committed in the officer’s presence);
accord United States v. Smith, 7 F.3d 1164, 1167 (5th Cir. 1993); United States v. Pryor,
32 F.3d 1192, 1196 (7th Cir. 1994); cf. State v. Courville, 2002 MT 330, ¶ 23, 313 Mont.
218, 61 P.3d 749 (the exclusionary rule does not apply to evidence of criminal conduct
committed in response to a claimed Fourth Amendment violation).
18
Supreme Court has said that in this situation (i.e., after the suspect has waived the
Miranda rights), a request for counsel must be “clear” and “unambiguous,” id. at 459,
461, 114 S. Ct. at 2355, 2356. Of course, he “need not ‘speak with the discrimination of
an Oxford don.’ ” Id. at 459, 114 S. Ct. at 2355. As we have noted before, laypeople are
not learned in constitutional principle or legal nicety, and to require that precise words be
uttered would elevate form over substance. State v. Morrisey, 2009 MT 201, ¶ 40, 351
Mont. 144, 214 P.3d 708. But, “he must articulate his desire to have counsel present
sufficiently clearly that a reasonable police officer in the circumstances would understand
the statement to be a request for an attorney.” Davis, 512 U.S. at 459, 114 S. Ct. at 2355.
If the suspect “makes a reference to an attorney that is ambiguous or equivocal in that a
reasonable officer in light of the circumstances would have understood only that the
suspect might be invoking the right to counsel,” the officer is not required to cease
questioning. Id. It is “good police practice,” however, for the interviewing officer to
clarify whether or not the suspect actually wants an attorney. See id. at 461, 114 S. Ct. at
2356; Morrisey, ¶ 41 n. 8. Indeed, “custodial officers who press on with questioning
assuming that a suspect’s statements or conduct are not indications of the suspect’s desire
to retain his Fifth Amendment rights do so at the risk of suppression of the suspect’s
subsequent statements.” United States v. Plugh, 576 F.3d 135, 141 (2d Cir. 2009); see
also Davis, 512 U.S. at 461, 114 S. Ct. at 2356 (“Clarifying questions help protect the
rights of the suspect by ensuring that he gets an attorney if he wants one, and will
minimize the chance of a confession being suppressed due to subsequent judicial second-
guessing as to the meaning of the suspect’s statement regarding counsel.”).
19
¶27 These principles, of course, are based on the Fifth Amendment. With respect to
invoking the Article II, Section 25 right to counsel in custodial interrogations, this Court
has stated that “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.” State v.
Spang, 2002 MT 120, ¶ 22, 310 Mont. 52, 48 P.3d 727 (citing State v. Johnson, 221
Mont. 503, 512, 719 P.2d 1248, 1254 (1986)); see also State v. Buck, 2006 MT 81,
¶¶ 45-48, 331 Mont. 517, 134 P.3d 53 (clarifying that Spang and Johnson involved the
right to counsel under Article II, Section 25, not Article II, Section 24, and stating that
invocation of this right “depends on the evident purpose of the suspect’s statement, as
viewed in light of the circumstances and in light of the rule that requests for counsel must
be construed broadly”). In Spang, we declined to accept the State’s analysis based on
Davis and instead purported to rely on Article II, Section 25 in concluding that the
defendant had adequately invoked his right to counsel. See Spang, ¶¶ 19, 22-25. In the
present case, however, while Scheffer cites Article II, Section 25, he offers no argument
that his alleged assertion of his right to counsel under this provision, even if inadequate
under Davis, was still adequate under Johnson, Spang, and Buck. Accordingly, we limit
our analysis to the standards set forth in Davis and recited above.
¶28 It is appropriate at this juncture to lay out the relevant portions of the colloquy
between Detective McDermott and Scheffer. At the outset of the interview, McDermott
introduced himself and asked, “What’s going on tonight?” Scheffer responded, “I don’t
[expletive] know what the deal is here.” Scheffer then proceeded to explain that he knew
20
H.K., her family, and her fiancé. McDermott interrupted, however, in order to read
Scheffer the Miranda warnings. The following exchange occurred:
McDermott: Hold on real quick, though, okay?
Scheffer: Sure.
McDermott: There’s a form that I just need to go over with you real
quick—
Scheffer: Sure. No problem.
McDermott: —just uh—
Scheffer: You bet. No problem.
McDermott: —before we get started. It’s just—
Scheffer: I don’t care. I mean, I don’t need an attorney or nothing.
[Inaudible.] Read me my rights. I don’t care.
McDermott: I just have a form, you know?
Scheffer: Sure. No problem. You bet.
McDermott: That way, my boss will be happy. So—
Scheffer: Yeah, yeah.
McDermott: Let me just read this for you, okay?
Scheffer: Sure. Go ahead.
McDermott: Just kind of a standard deal.
Scheffer: But could you do something for me?
At this point, Scheffer asked McDermott to bring H.K. to the stationhouse in order to
“clear everything up.” Scheffer claimed that H.K. presently was with a guy doing drugs
and that Scheffer knew how to reach her. McDermott responded, “Okay. Well, let me
get through this, then we’ll talk about that.” The dialogue continued:
McDermott: So, anyway, these are your Miranda warnings.
Scheffer: Sure. No problem.
McDermott: They state you have the right to remain silent. Anything you
say can and will be used against you in a court of law.
Scheffer: So should I remain silent, or should I stand up for myself?
McDermott: Tommy, let me get through this, okay, then I’ll answer any
questions for you. Just let me read through this first.
Scheffer: Okay.
McDermott: So again, you do have the right to remain silent. Anything
you say can and will be used against you in a court of law.
You have the right to speak to a lawyer and have your lawyer
present before this interview proceeds. If you are unable to
21
pay for a lawyer, the court will appoint one for you at public
expense before this interview continues. And should you
decide to cooperate in this interview, you still have the right
to stop at any time, okay, and then request to have a lawyer
present with you before you participate any further. So, do
you understand your rights?
Scheffer: Yes.
McDermott: Okay. So if you could just sign here, this is just a record. It
protects you, it protects me, that I did my job and treated you
right. Can you date it for me? Just put the 25th. I just want
to make sure I treat you right tonight, okay? So, I do not
know much about what’s going on. I’ll certainly look into
some of these other things you have, but let’s just start with
what happened tonight. That’s probably the best—
Scheffer: Let me start here. Am I under arrest?
McDermott: At this point, you’re being detained, and at the end of this—
Scheffer: Where’s she at?
McDermott: —investigation—
Scheffer: Where’s she at?
McDermott: Tommy, listen to me.
Scheffer: I’m listening.
McDermott: At this point—
Scheffer: Maybe I should call my lawyer.
McDermott: Maybe you’re not listening to me, Tommy.
Scheffer: Maybe I should call him.
McDermott: Listen, I’m trying to treat you right. I’m trying—
Scheffer: I’ve done nothing but try to help people tonight—
McDermott: Okay.
Scheffer: —and this is bullshit.
McDermott: Tommy, at this point we’re doing an investigation. You’re
gonna be detained. Sounds like you cooperated. You wanted
to sit and talk to me—
Scheffer: Let’s get, let’s get my lawyer here.
McDermott: Okay.
Scheffer: Yeah. Let’s get Bobby here, her fiancé here. Tell him what
really happened.
McDermott: Okay. But don’t you think it’d be wiser if I talked to you first
so that I know the story?
Scheffer: No, not really.
McDermott: Okay.
Scheffer: Let’s get my lawyer here. This is, I mean, I’m, this is, you
guys should never have brought me down here. I’ve done
nothing but found her purse. She gave her car to a friend. I
22
wasn’t gonna let her car get wrecked. I talked her into going
to get her car. I found her [purse], and she freaked out
because she didn’t have Bobby and hers credit cards.
[Inaudible] people she didn’t know. I went and got that, gave
it to, I did nothing but help her. And she wanted to fuck, she
wanted to do this. She’d been on drugs all night last night.
Find her, I can take you to my house and show you the guy
she’s with right now, who she did drugs with all night last
night. You can call that number. I’ll guarantee that’s who
she’s with now. That’s what she wanted to go do. She said
she was going to go see him.
McDermott: Okay.
Scheffer: This is bullshit. I am not at fault here. She wants to lay me at
fault for why, for Bobby, why she’s going, not getting
married, this is bullshit. I never touched her. Get her, look,
take her to the hospital, get her tested, vaginal. I never have
touched [H.K.]. Ever. This is bullshit. I should not be here.
McDermott: Okay. Well, Tommy, the question is you need to decide if
you want to talk to me about this or—
Scheffer: What do you wanna talk, what do you wanna ask me?
McDermott: —if you want to talk to a lawyer.
Scheffer: What do you, am I under arrest? What do you wanna ask me,
and I’ll just tell you what I wanna, if I wanna talk to a lawyer
or not, ’cause I should not be here.
McDermott: Okay.
Scheffer: I should be home in bed sleeping with my kids right now.
McDermott: Okay. Well, do you understand your rights?
Scheffer: Yes I do.
McDermott: Okay. Do you want to talk to me a little bit about it, and you
can still stop—
Scheffer: Ask me, you, you ask me what you want you wanna ask me.
The conversation proceeded from here into a discussion of the evening’s events.
¶29 Scheffer argues that he made an unambiguous request for counsel when he said
“let’s get my lawyer here.” In fact, he claims he made multiple invocations of this right.
Yet, while Scheffer did indeed mention a “lawyer” several times, we cannot agree that a
reasonable officer in the circumstances would have understood his statements to be a
request for an attorney (in the sense that he wanted to deal with McDermott only through
23
counsel). In this regard, while Scheffer isolates specific passages from the transcript, it is
important to note that “our analysis does not end with words alone; . . . we also consider
the circumstances in which the statement was made.” United States v. Shabaz, 579 F.3d
815, 819 (7th Cir. 2009). Doing so, we agree with the District Court’s assessment:
[Scheffer] here had no intention to invoke his right to counsel, but rather
had an overwhelming desire to explain his version of what happened no
matter what. It appears to the Court that [Scheffer] believed he could talk
his way out of the situation and very much wanted the chance to do so. As
a part of this course of action, the mention of a lawyer was a part of
[Scheffer’s] early-on suggestion to the officer that he immediately assemble
everybody that might have any relationship to the matter under
investigation, including his lawyer, and get to the bottom of it right then
and there. In the face of [Scheffer’s] eagerness to talk[,] Detective
McDermott showed much restraint in trying to slow him down and doing
exactly what the Montana and United States Supreme Courts require. He
clarified if [Scheffer’s] equivocal statements were a request for a lawyer.
They were not.
¶30 We addressed a similar scenario in State v. Maestas, 2006 MT 101, 332 Mont.
140, 136 P.3d 514. The defendant (Maestas), immediately after demanding an attorney,
and without interruption, told the detective to question another witness about the events
in question: “Now, give me a fucking lawyer ‘cause I don’t have to sit here and fucking
put up with this bullshit, ‘cause I ain’t done nothin’. You can ask Jim, the owner, what
time we left.” The detective immediately instructed Maestas to stop talking and tell him
whether he wished to have counsel present before proceeding. He asked Maestas at least
six times whether he wanted an attorney, and Maestas repeatedly told him that he did not.
See Maestas, ¶¶ 6, 18. We concluded under these circumstances that Maestas’ requests
for a lawyer were equivocal and that it was appropriate for the detective to determine
what Maestas truly wanted. Maestas, ¶¶ 18-19.
24
¶31 In the present case, while Scheffer asserts that his supposed requests for counsel
were met with “coercive responses” and “interview tactics,” the fact is that McDermott
was simply attempting to respond to Scheffer’s various questions and suggestions—
obviously a difficult task, given Scheffer’s repeated interruptions. Moreover, Scheffer’s
references to a “lawyer” were equivocal at best, given his initial statement that “I don’t
need an attorney or nothing,” followed closely thereafter by his remarks that “Maybe I
should call my lawyer” and his suggestions that they bring various people (including his
lawyer) down to the stationhouse to clear everything up. Cf. Davis, 512 U.S. at 462, 114
S. Ct. at 2357 (“Maybe I should talk to a lawyer” is not an unambiguous request for
counsel). As noted, if a suspect makes a reference to an attorney that is ambiguous or
equivocal, in that a reasonable officer in light of the circumstances would have
understood only that the suspect might be invoking the right to counsel, the officer is not
required to cease questioning. The prudent course of action, though, is for the officer to
clarify whether the suspect actually wants an attorney. And that is what McDermott did.
He told Scheffer: “Well, Tommy, the question is you need to decide if you want to talk
to me about this or if you want to talk to a lawyer.” Scheffer responded: “What do you
wanna ask me, and I’ll just tell you what I wanna, if I wanna talk to a lawyer or not . . . .”
The conversation proceeded from there, without Scheffer ever stating that he wanted to
talk to a lawyer. He later engaged in the conduct that formed the basis of the attempted-
tampering charge.
¶32 We accordingly hold that Scheffer did not make an unambiguous request for
counsel. Hence, the District Court did not err in denying his motion to suppress.
25
¶33 Issue 2. Did the District Court abuse its discretion in denying Scheffer’s motion
to dismiss the Amended Information?
¶34 We review for abuse of discretion a district court’s decision whether to allow the
amendment of an information. State v. Wilson, 2007 MT 327, ¶ 19, 340 Mont. 191, 172
P.3d 1264. A court abuses its discretion if it acts arbitrarily without the employment of
conscientious judgment or exceeds the bounds of reason, resulting in substantial injustice.
State v. Derbyshire, 2009 MT 27, ¶ 19, 349 Mont. 114, 201 P.3d 811.
¶35 As noted, the State charged Scheffer in the Information filed September 11, 2007,
with tampering with or fabricating physical evidence, a felony, in violation of § 45-7-207,
MCA (2005). On May 21, 2008, the State requested leave to file an Amended
Information changing this charge to attempted tampering with or fabricating physical
evidence, a felony, in violation of §§ 45-4-103 and 45-7-207, MCA.6 The reason for this
amendment was that the testing of the swabs of Scheffer’s fingers by the crime lab, which
had not been completed at the time the original Information was filed, had since been
completed and revealed the presence of both Scheffer’s DNA and H.K.’s DNA, thus
indicating that Scheffer had not destroyed this evidence (by sticking his fingers in his
mouth during the interrogation), but rather had unsuccessfully attempted to do so. The
prosecutor sought “to conform [the charge] to the evidence in the case.”
¶36 Scheffer moved to dismiss the tampering and attempted-tampering charges. As to
the former, he reasoned that the State’s amendment constituted a tacit admission that it
6
Section 45-4-103(1), MCA, states that “[a] person commits the offense of
attempt when, with the purpose to commit a specific offense, he does any act toward the
commission of such offense.”
26
could not prove he had actually tampered with physical evidence. As to the latter, he
argued that the Amended Information was untimely under § 46-11-205(1), MCA, which
states that the trial court may allow an information to be amended in matters of substance
at any time, “but not less than 5 days before trial.” The District Court denied Scheffer’s
motion, concluding that the Amended Information was filed in a timely manner and that
Scheffer had not been prejudiced by the amendment of the charge.
¶37 On appeal, Scheffer argues that the District Court erred in its determination that
the Amended Information was timely filed. In this regard, both he and the State dispute
which time-computation rule governs calculations under § 46-11-205(1), MCA. We need
not resolve this dispute, however, because we agree with the State that the amendment
was one of form, not substance, and as such was permissible under § 46-11-205(3),
MCA.
¶38 An information is a written accusation of criminal conduct prepared by a
prosecutor in the name of the State. Wilson, ¶ 25. The information must reasonably
apprise the accused of the charges against him, so that he may have the opportunity to
prepare and present his defense. Wilson, ¶ 25. “The court may permit an information to
be amended as to form at any time before a verdict or finding is issued if no additional or
different offense is charged and if the substantial rights of the defendant are not
prejudiced.” Section 46-11-205(3), MCA. An amendment is one of form when the same
crime is charged, the elements of the crime and the proof required remain the same, and
the defendant is informed of the charges against him. Wilson, ¶ 26. To differentiate
amendments of form and substance, we examine whether an amendment to an
27
information or complaint alters the nature of the offense, the essential elements of the
crime, the proofs, or the defenses. Wilson, ¶ 26.
¶39 In the present case, the nature of the offense was the same, the essential elements
of the crime remained the same, and there is no indication that the proofs or the defenses
changed in response to the amendment. The alleged facts underlying the tampering and
attempted-tampering charges were identical: Scheffer first penetrated H.K.’s vagina with
his fingers; he later stuck his fingers in his mouth and wiped them on his jeans at the
stationhouse, prior to their being swabbed for DNA. The only difference in the State’s
proof following the amendment was that the swabs revealed the presence of both
Scheffer’s DNA and H.K.’s DNA, instead of inconclusive results or no DNA at all, thus
indicating that he did not actually “alter, destroy, conceal, or remove” the evidence, see
§ 45-7-207(1)(a), MCA, but only attempted to do so. There were no new allegations of
additional or different instances of criminal conduct. Cf. City of Red Lodge v. Kennedy,
2002 MT 89, ¶¶ 15-16, 309 Mont. 330, 46 P.3d 602. The amended charge was identical
to the original charge except that the phrase “altered, destroyed, concealed, or removed”
in the original charge was replaced with the phrase “attempted to alter, destroy, conceal,
or remove” in the amended charge. Cf. State v. Matson, 227 Mont. 36, 43, 736 P.2d 971,
975 (1987) (insertion of the word “serious” before the phrase “bodily injury” to describe
the charge of aggravated assault was an amendment of form); State v. Clark, 1998 MT
221, ¶ 52, 290 Mont. 479, 964 P.2d 766 (change from possession of methamphetamine to
possession of amphetamine was an amendment of form).
28
¶40 Furthermore, while Scheffer claims the amendment was “greatly injurious” to his
substantive rights and “drastically interfered” with his ability to prepare a defense, he
proffers nothing concrete in support of these bald assertions. He speculates that had he
“been afforded adequate opportunity to prepare a defense to the ‘attempt’ charge, defense
counsel may have theorized during cross-examination and closing that Scheffer could not
have attempted to tamper with physical evidence of a crime he did not commit.” We fail
to see, however, how he was precluded from making this argument. A plausible change
in his defense is suggested in the attempt statute itself, which states that “[a] person shall
not be liable under this section if, under circumstances manifesting a voluntary and
complete renunciation of his criminal purpose, he avoided the commission of the offense
attempted by abandoning his criminal effort.” Section 45-4-103(4), MCA. But again,
there is no indication that Scheffer was precluded in any way from presenting such
evidence and making this argument at trial. Finally, the State points out that Scheffer
was not exposed to any greater punishment as a result of the amendment, given that
tampering and attempted-tampering convictions lead to the same possible punishment.
See § 45-4-103(3), MCA; cf. State v. Gardipee, 2004 MT 250, ¶ 9, 323 Mont. 59, 98 P.3d
305 (defendant’s substantial rights were not prejudiced by amendment of the information
on the morning of trial from misdemeanor partner or family member assault to felony
partner or family member assault, since the amendment merely reflected the statutorily
mandated sentencing range for a repeat offender).
¶41 Based on the foregoing, we conclude that the amendment of the tampering charge
to an attempted-tampering charge was a timely amendment as to form and that Scheffer’s
29
substantial rights were not prejudiced by this amendment. Section 46-11-205(3), MCA.
Accordingly, the District Court did not abuse its discretion in denying Scheffer’s motion
to dismiss the Amended Information.
¶42 Issue 3. Must Scheffer’s conviction of attempted tampering with or fabricating
physical evidence be vacated as “irrationally inconsistent” with his acquittal of
sexual intercourse without consent?
¶43 Scheffer claims his conviction of attempted tampering with or fabricating physical
evidence must be set aside because it is “irrationally inconsistent” with his acquittal of
sexual intercourse without consent. He contends that the verdict of not guilty on the rape
charge means that the alleged rape never occurred, and from this he reasons that “it was a
practical impossibility for Scheffer to tamper with or attempt to tamper with any evidence
of a non-existent rape” and, thus, that the jury “could not have logically concluded that
Scheffer attempted to tamper with evidence related to a rape that never occurred.”
¶44 As the State points out, however, this argument is inconsistent with the elements
of the attempted-tampering offense. The State had to prove that Scheffer, believing that
an official proceeding or investigation was pending or about to be instituted, attempted to
alter, destroy, conceal, or remove any “thing” (specifically, DNA evidence) with purpose
to impair its verity or availability in such proceeding or investigation. See §§ 45-4-103,
45-7-207(1)(a), MCA (2005). The State was not required to prove that the official
proceeding or investigation actually resulted in the conviction of a crime; rather, it had to
prove that Scheffer believed that an official proceeding or investigation was pending or
about to be instituted and that Scheffer’s purpose was to impair the verity or availability
of the evidence in such proceeding or investigation—evidence which, it should be noted,
30
Detective McDermott had specifically requested for purposes of his investigation into
H.K.’s allegations.
¶45 Furthermore, even if an actual rape “never occurred,” it does not necessarily
follow that it was a “practical impossibility” for Scheffer to attempt to tamper with
evidence of the events and acts in question. To convict on the rape charge, the State had
to prove beyond a reasonable doubt that Scheffer knowingly had sexual intercourse
without consent with H.K., see § 45-5-503(1), MCA, which here means that he
penetrated her vulva with his finger or fingers (presumably for purposes of sexual arousal
or gratification), see § 45-2-101(68), MCA, and that H.K. was compelled to submit by
force or was incapable of consent, see § 45-5-501(1), MCA. Scheffer admitted at trial
that he put his fingers into H.K.’s vagina. Thus, he now observes on appeal that “[t]he
rape acquittal inherently suggests that any contact between Scheffer and [H.K.] was
found to be consensual.” In other words, while the evidence established that Scheffer
penetrated H.K.’s vulva, the State failed to prove that this was without consent. Yet, the
DNA evidence on his fingers did not go to the element of consent; rather, it went to prove
penetration, which indisputably did occur. Thus, the fact that the jury apparently
determined that the penetration was consensual does not negate the fact that the DNA
evidence was evidence of the charged offense, nor does it negate the fact that Scheffer
attempted to tamper with this evidence by sticking his fingers into his mouth.
¶46 We conclude that Scheffer’s conviction of attempting to alter, destroy, conceal, or
remove physical evidence relating to a pending official proceeding or investigation into
31
his alleged sexual intercourse without consent with H.K. is not “irrationally inconsistent”
with his ultimate acquittal of that underlying charge.
CONCLUSION
¶47 The District Court did not err in denying Scheffer’s motion to suppress and did not
abuse its discretion in denying Scheffer’s motion to dismiss the Amended Information.
His conviction of attempted tampering with or fabricating physical evidence need not be
vacated as “irrationally inconsistent” with his acquittal of sexual intercourse without
consent.
¶48 Affirmed.
/S/ JAMES C. NELSON
We Concur:
/S/ W. WILLIAM LEAPHART
/S/ PATRICIA O. COTTER
/S/ BRIAN MORRIS
/S/ JIM RICE
32