State v. Beach

No. 84-373

I N THE SUPREfE COURT O THE STATE O IWNTANA
F F

THE STATE O MONTANA,
F

P l a i n t i f f and R e s p o n d e n t ,

-vs-

BARRY ALLAN BEACH,

D e f e n d a n t and A p p e l l a n t .

APPEAL FROM: D i s t r i c t C o u r t of t h e F i f t e e n t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f R o o s e v e l t ,
The H o n o r a b l e M. James S o r t e , J u d g e p r e s i d i n g .

COUNSEL O RECORD:
F

For Appellant:

Moses L a w Firm; R i c h a r d C a r s t e n s o n a r g u e d , B i l l i n g s ,
Montana

F o r Respondent:

Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
C l a y S m i t h a r g u e d , A s s t . A t t y . G e n e r a l , Helena
James A. McCann, County A t t o r n e y , Wolf P o i n t ,
Montana

-- -- - --

Submitted: March 1 3 , 1985

Decided: J u l y 2 5 , 1985

Filed: 4 , ; i3&5
:

Clerk
M r . J u s t i c e L. C. Gulbrandson d e l i v e r e d t h e Opinion o f the
Court.

Defendant appeals from a denial of his motion to

supress, motion f o r change of venue, jury v e r d i c t of g u i l t y

of deliberate homicide, and sentence imposed thereon; all

rendered in the District Court of the Fifteenth Judicial

D i s t r i c t , R o o s e v e l t C o u n t y , Montana. W e affirm.

On June 16, 1979, the body of Kimberly Nees was

d i s c o v e r e d i n t h e P o p l a r R i v e r n e a r P o p l a r , Montana. She had

been bludgeoned to death. The Roosevelt County Sheriff's

Office investigated the crime, but was unable t o make an

immediate arrest. High on the list of suspects was the

d e f e n d a n t , B a r r y A l l e n Beach.

Several years l a t e r , on J a n u a r y 4 , 1983, t h e Ouachita

P a r i s h , L o u i s i a n a , S h e r i f f ' s O f f i c e r e c e i v e d a c o m p l a i n t from

C a r o l y n Beach, Barry Beach's step-mother. She a l l e g e d t h a t

the defendant, then living in Monroe, Louisiana, had

picked-up two u n d e r a g e g i r l s from s c h o o l and t h a t t h e y had

not returned. Deputy Talmadge Stutts responded to her

c o m p l a i n t , and w e n t t o t h e d e f e n d a n t ' s h o u s e . The d e f e n d a n t

a d m i t t e d t h a t b o t h g i r l s had b e e n t h e r e e a r l i e r i n t h e d a y ,

b u t had g o n e home. S t u t t s then advised t h e defendant nf h i s

Miranda r i g h t s , and a s k e d i f h e c o u l d i n s p e c t t h e a p a r t m e n t .

According t o S t u t t s , t h e defendant consented t o t h e search.

The d e f e n d a n t l a t e r t e s t i f i e d a t a suppression hearing t h a t

he did not give Deputy Stutts permission to enter his

apartment. Stutts entered, and following the search,

arrested defendant on the charge of contributing to the

delinquency of minors. He then took the defendant t o t h e

Ouachita P a r i s h S h e r i f f ' s Office.
 T h a t n i g h t , d e f e n d a n t s i g n e d a Miranda w a i v e r form and

gave a s t a t e m e n t r e g a r d i n g t h e c o n t r i b u t i n g c h a r g e . H e spent

the night in jail. The next day, January 5, defendant

telephoned h i s mother, Roberta C l i n c h e r , i n P o p l a r , Montana

and a d v i s e d h e r o f h i s a r r e s t . Mrs. Clincher then contacted

Tim Beach, the defendant's uncle, who was a l s o i n Monroe,

Louisiana, t o see a b o u t g e t t i n g t h e d e f e n d a n t o u t o f jail.

The d e f e n d a n t a l s o c o n t a c t e d h i s s t e p - m o t h e r , Carolyn

Reach, and a l l e g e d l y t h r e a t e n e d t o k i l l h e r f o r c o m p l a i n i n g

t o t h e S h e r i f f ' s Office. Mrs. Beach r e p o r t e d t h e t h r e a t t o

A l f r e d Calhoun, t h e Commander o f t h e c r i m i n a l investigation

u n i t o f t h e Ouachita P a r i s h S h e r i f f ' s O f f i c e . She a l s o t o l d

Commander Calhoun t h a t t h e d e f e n d a n t was a suspect i n the

N e e s murder i n Montana. The L o u i s i a n a a u t h o r i t i e s c o n t a c t e d

the Roosevelt County Sheriff and confirmed Mrs. Beach's

report. They a l s o i n d i c a t e d t o t h e R o o s e v e l t County S h e r i f f

t h a t B a r r y Beach was a s u s p e c t i n t h r e e m u r d e r s i n L o u i s i a n a .

On J a n u a r y 6, 1983, Louisiana i n v e s t i g a t o r s began to

q u e s t i o n B a r r y Beach. S e r g e a n t J a y Via f i r s t i n t e r v i e w e d t h e

defendant after giving him Miranda warnings and having a

waiver signed. Sergeant Via testified at the supression

h e a r i n g t h a t t h e J a n u a r y 6 i n t e r v i e w l a s t e d a p p r o x i m a t e l y one

hour, from 1 1 : O O a.m. t o 12:05 p.m. The d e f e n d a n t t e s t i f i e d

t h a t t h i s i n t e r v i e w commenced a t 7:30 a.m. and lasted four

hours.

A t t h e t i m e o f t h e f i r s t i n t e r v i e w , d e f e n d a n t was s t i l l

b e i n g h e l d on t h e c o n t r i b u t i n g c h a r g e . T h a t a f t e r n o o n , Geary

Aycock, an a s s i s t a n t d i s t r i c t a t t o r n e y f o r Ouachita Parish

requested the Sheriff 's Office to release the defendant.

S e r g e a n t V i a t o l d Aycock a b o u t t h e d e a t h t h r e a t and t h e N e e s

murder in Montana. On this basis, Aycock authorized
continued custody of t h e defendant. Bail remained set a t

$1,500, t h e amount p r e v i o u s l y s e t f o r t h e c o n t r i b u t i n g t o t h e

delinquency o f minors charge.

That afternoon, Tim Beach came t o t h e O u a c h i t a P a r i s h

Correctional Center to post bail for the defendant. Tim

Beach s p o k e t o S e r g e a n t V i a , and V i a t e s t i f i e d t h a t h e t o l d

T i m t h a t h e had a r i g h t t o p o s t bond, b u t t h a t b e c a u s e o f t h e

d e a t h t h r e a t s , t h e d e f e n d a n t ' s step-mother and f a t h e r d e s i r e d

t h a t B a r r y Beach r e m a i n i n c u s t o d y . Tim Beach t e s t i f i e d t h a t

Via ~ x p l a i n e d t o him t h e p r o c e d u r e t o g e t psychiatric help

for Barry Beach, and also told him that getting a lawyer

would b e "a w a s t e o f money." V i a d e n i e d making a n y s p e c i f i c

recommendations t o T i m Beach.

Via a r r a n g e d a phone c o n v e r s a t i o n b e t w e e n T i m Beach and

t h e d e f e n d a n t d u r i n g which t h e d e f e n d a n t a l l e g e d l y t o l d Tim

that he did not wish to be bailed out. Tim Beach later

t a l k e d i n a three-way conference c a l l t h a t included Sergeant

Via, t o h i s mother, M r s . C l i n c h e r , who a t t h a t t i m e i n d i c a t e d

t h a t s h e was " c o n t e n t " w i t h t h e d e f e n d a n t r e m a i n i n g i n j a i l .

She t e s t i f i e d t h a t s h e a s s e n t e d t o t h i s b e c a u s e S e r g e a n t Via

had assured her that t h e d e f e n d a n t would b e p r o v i d e d with

psychological help, and that he would be released soon

anyway.

Tim Beach a l s o t e s t i f i e d t h a t h e remembered t a l k i n g t o

an assistant district attorney who told him that the

d e f e n d a n t would b e r e l e a s e d if t a k e n back t o Montana. The

a s s i s t a n t d i s t r i c t a t t o r n e y a l l e g e d l y t o l d Tim Beach t o w a i t

i n t h e courthouse f o r t h e defendant's r e l e a s e . Tim d i d s o ,

b u t s e v e r a l h o u r s l a t e r r e c e i v e d word t h a t o t h e r c h a r g e s w e r e

being brought against the defendant, and t h a t h e was a l s o

being investigated for murder. Tim Beach could not say
whether t h e s e l a s t e v e n t s occurred on January 6 o r 7 , b u t t h e

record shows two things; first that charges against the

defendant for deliberate homicide were not brought until

January 8, and second that no bond was posted for the

defendant on January 6. The record also shows that the

d e f e n d a n t had n o t y e t been t a k e n b e f o r e a j u d g e o r m a g i s t r a t e

f o r an i n i t i a l appearance, arraignment, o r proceeding.

The q u e s t i o n i n g o f B a r r y Beach c o n t i n u e d a t 1 2 : 3 0 p.m.

on January 7. This i n t e r v i e w concerned t h e t h r e e Louisiana

murders, and t h e Nees murder i n Montana. S e r g e a n t Via a g a i n

did t h e questioning. H e g a v e t h e d e f e n d a n t Miranda w a r n i n g s

and r e c e i v e d a s i g n e d w a i v e r t h e r e o f . He testified that the

d e f e n d a n t was c o h e r e n t and c o m f o r t a b l e i n t h e i n t e r r o g a t i o n

room. Via interrupted the interview once, when another

deputy entered the room, to give the defendant another

Miranda warning and to obtain another waiver. A t

a p p r o x i m a t e l y 2 : 3 0 p.m. t h e d e f e n d a n t a u t h o r i z e d S e r g e a n t Via

t o c o n d u c t a stress e v a l u a t i o n t e s t . Via c o n d u c t e d t h e t e s t

and found s t r e s s i n d i c a t i v e o f d e c e p t i o n . Because o f t h i s ,

Via requested Commander Calhoun to conduct another test.
Commander Calhoun, a f t e r g i v i n g more Miranda w a r n i n g s , d i d s o

u s i n g a d i f f e r e n t form o f q u e s t i o n i n g . Testimony v a r i e s a s

to what occurred at this point, but according to the

defendant, he was left alone with Commander Calhoun, who

f i r s t c o n d u c t e d t h e t e s t , and t h e n a c c u s e d him o f l y i n g . The

d e f e n d a n t a l s o t e s t i f i e d t h a t Commander Calhoun was a b u s i v e ,

and t h r e a t e n e d him, t e l l i n g h i m t h a t h e w a s g o i n g t o " f r y i n

the electric chair." Commander Calhoun d e n i e d u s i n g a n y s u c h

tactics, s t a t i n g t h a t a l l h e d i d was a d m i n i s t e r t h e t e s t and

t e l l B a r r y Beach t h a t h i s r e s p o n s e s i n d i c a t e d d e c e p t i o n . The

Commander f u r t h e r t e s t i f i e d t h a t a f t e r h e t o l d t h e d e f e n d a n t
h i s a n s w e r s were a p p a r e n t l y u n t r u t h f u l , Beach b r o k e down and

began t o t a l k a b o u t t h e N e e s murder.

Sergeant Via re-entered the interview room at

a p p r o x i m a t e l y 7 : 0 0 p.m. and Commander Calhoun l e f t . When Via

came i n t o t h e room, B a r r y Beach was b r o k e n down and c r y i n g .

H e began t a l k i n g and a d m i t t e d m u r d e r i n g Kimberly N e e s . Via

had Calhoun return to the interview room, and had the

defendant sign another Miranda waiver. They then tape

recorded an interview with the defendant in which he

d e s c r i b e d i n d e t a i l f a c t s , n o t known by t h e g e n e r a l p u b l i c ,

c o n c e r n i n g t h e murder o f Kimberly Nees.

On January 8, the defendant retained counsel. On

January 11, t h e d e f e n d a n t , h i s attorney, Sergeant Via, and

J o e Cummings, a d e p u t y s h e r i f f , h e l d a c o n f e r e n c e . Defendant

was given Miranda warnings, and signed a waiver thereof.

D u r i n g t h i s m e e t i n g , t h e d e f e n d a n t a g a i n a d m i t t e d h e murdered

Kimberly Nees, but denied any involvement in the unsolved

Louisiana murders.

During this time the investigators in Louisiana had

been i n c o n t a c t w i t h t h e R o o s e v e l t County S h e r i f f ' s O f f i c e .

On January 8, 1983, t h e Roosevelt County A t t o r n e y filed a

petition in the youth court for the Fifteenth Judicial

District, Roosevelt County, seeking a declaration that the

defendant, then 20 years old, was a delinquent youth, and

r e q u e s t i n g a u t h o r i t y t o i n c a r c e r a t e him. The c o u n t y a t t o r n e y

simultaneously filed a motion to transfer t h e youth court

proceedings to District Court. T h i s m o t i o n was n o t ruled

upon b e f o r e d e f e n d a n t t u r n e d 21. The D i s t r i c t C o u r t i s s u e d

an order of detention and, for extradition purposes, a

f i n d i n g o f probable cause.
 The d e f e n d a n t t u r n e d 21 y e a r s o f a g e on F e b r u a r y 1 5 ,

1983. On A p r i l 2 9 , 1983 h i s Montana a t t o r n e y s f i l e d a m o t i o n

t o dismiss t h e youth c o u r t a c t i o n . The b a s i s f o r t h e m o t i o n

was t h e l o s s o f y o u t h c o u r t j u r i s d i c t i o n o v e r t h e d e f e n d a n t

under s e c t i o n 45-5-205(3), MCA, a t t h e time he reached t h e

a g e o f 21. The d e f e n d a n t ' s motion was g r a n t e d by o r d e r d a t e d

May 4 , 1983. D e f e n d a n t had b e e n c h a r g e d i n D i s t r i c t C o u r t on

May 3 , 1983.

The d e f e n d a n t was e x t r a d i t e d back to Montana i n August

of 1983 and was t r i e d on A p r i l 9, 1984 i n Glasgow, Valley

County, Montana. Valley County is adjacent to Roosevelt

County. O April
n 13, 1984, t h e j u r y r e t u r n e d a v e r d i c t o f

g u i l t y o f d e l i b e r a t e homicide. On May 11, 1984 judgment was

e n t e r e d on t h e c o n v i c t i o n and B a r r y Beach was s e n t e n c e d t o a

t e r m of 100 y e a r s i n t h e Montana S t a t e Prison. The c o u r t

also determined the defendant to be ineligible for

designation as a non-dangerous offender and further

d e t e r m i n e d t h a t h e would b e r e s t r i c t e d from e l i g i b i l i t y f o r

p a r o l e and r e l e a s e programs w h i l e s e r v i n g h i s t e r m . Barry

Beach appeals his conviction and sentence to this Court,

p r e s e n t i n g t h e following i s s u e s f o r review:

(1) T h a t t h e D i s t r i c t C o u r t d i d n o t h a v e j u r i s d i c t i o n

t o t r y B a r r y Beach f o r d e l i b e r a t e h o m i c i d e .

( 2 ) That t h e D i s t r i c t Court e r r e d i n n o t changing venue

t o a c o u n t y o u t s i d e o f t h e p r i m a r y news c o v e r a g e a r e a o f t h e

same media t h a t p r e j u d i c i a l l y a f f e c t e d h i s r i g h t s t o a f a i r

t r i a l i n R o o s e v e l t County, Montana.

(3) That t h e D i s t r i c t Court e r r e d i n not suppressing

t h e c o n f e s s i o n B a r r y Beach made t o t h e L o u i s i a n a a u t h o r i t i e s .
 (4) That t h e D i s t r i c t Court e r r e d i n n o t i n s t r u c t i n g

t h e j u r y t h a t it must f i n d t h e d e f e n d a n t p o s s e s s e d a s p e c i f i c

m e n t a l s t a t e , i n o r d e r t o c o n v i c t him.

(5) That t h e s e n t e n c e imposed was h a r s h , oppressive,

cruel and unusual, and an abuse of the District Court's

discretion.

#1
Issue -

Appellant contends that the District Court lacked

j u r i s d i c t i o n t o t r y him. As authority, he p o i n t s t o s e c t i o n

41-5-203, MCA, which s t a t e s :

" J u r i s d i c t i o n o f t h e c o u r t . ( I ) Except a s
provided i n s u b s e c t i o n ( 2 ) , t h e c o u r t h a s
exclusive original jurisdiction of a l l
p r o c e e d i n g s u n d e r t h e Montana Youth C o u r t
A c t i n which a y o u t h i s a l l e g e d t o b e a
d e l i n q u e n t y o u t h , a y o u t h i n need o f
s u p e r v i s i o n , o r a y o u t h i n need o f c a r e
o r concerning any person under 2 1 y e a r s
o f a g e c h a r g e d w i t h h a v i n g v i o l a t e d any
law o f t h e s t a t e o r o r d i n a n c e o f any c i t y
o r town o t h e r t h a n a t r a f f i c o r f i s h and
game law p r i o r t o h a v i n g become 18 y e a r s
o f age. " (Emphasis added. )

and t o s e c t i o n 41-5-205, MCA which s t a t e s :

"Retention of j u r i s d i c t i o n . Once a c o u r t
obtains j u r i s d i c t i o n over a youth, t h e
court retains jurisdiction unless
t e r m i n a t e d by t h e c o u r t o r by m a n d a t o r y
termination i n t h e following cases:

"(1) a t t h e t i m e t h e proceedings a r e
transferred t o adult criminal court;

" ( 3 ) i n any e v e n t , - -e t i- t h e y o u t h
a t th - m e
r e a c h e s t h e age - - y e a r s . "
of 2 1 (Emphasis
added. )

The defendant argues that the District Court lacked

jurisdiction because h e was under the age of 1 8 when the

crime was committed and the youth court proceedings

i n s t i t u t e d on January 8 , 1983 were n e v e r t r a n s f e r r e d u n d e r
section 41-5-206 (1), MCA, to the District Court prior to his
reaching of age 21 on February 15, 1983. He contends that
once the "exclusive jurisdiction" of the youth court has
attached under section 45-5-203(1), MCA, the District Court
can never assume jurisdiction over the offense underlying the
youth court's proceeding absent transfer pursuant to section
45-5-206 (I), MCA.
We do not find the defendant's argument to be
pursuasive. In State ex re1 Elliot v. District Court (Mont.
1984), 684 P.2d 481, 41 St.Rep. 1184, we held that there is
no "window" of jurisdiction between the youth court act and
the genera1 district court jurisdiction. Furthermore, in
dicta, Elliot, supra, addresses the situation at issue here
and resolves it in favor of jurisdiction resting in the
district court.
In Elliot, the defendant committed a murder when he was
154 years old. His involvement in the murder was not
discovered until several years later when he was 22 years of
age and had voluntarily confessed. The defendant argued that
the youth court act provides for "exclusive original
jurisdiction" over juvenile offenses, and allows the juvenile
court to transfer jurisdiction to the district court only
under certain circumstances as provided for in section
41-5-206, MCA. Since the defendant in Elliot never came under
the exclusive original jurisdiction of the juvenile court, he
contended that transfer to District Court could not be
effected.
In Elliot we held that the "exclusive original
jurisdiction" of the youth court depended upon on two
factors: (1) that the offense was committed while the youth
was under the age of 18; and (2) that the youth was charged
before the age of 21. In this case, Barry Beach was clearly
under the exclusive original jurisdiction of the juvenile
court. In Elliot this Court held that since he had committed
a crime he came under the jurisdiction of the District Court
pursuant to Art. VII, Sec. 4 Mont. Const., even though he was
not under the exclusive original jurisdiction of the youth
court.
In Elliot this Court cited a case from Minnesota, In
the Matter of the Welfare of S.V. (Minn. 1980), 296 N.W.2d

404, that is very closely on point with the case at bar. In

- Matter - - Welfare - -
In of the of S.V., the 17 year old defendant
was charged with homicide in juvenile court. The case
dragged on in juvenile court for over four years and the
court lost jurisdiction (pursuant to a clause in the
Minnesota Code similar to section 41-5-205 (3), MCA) because
the offender turned 21. At age 22, the county sought to
prosecute the defendant in district court. Defendant made
this argument:
". . . the respondent is attempting to
take advantage of an alleged loop-hole in
the juvenile court's statutes. Minn.
Stat. sec. 2260.111 ...
provides that
juvenile courts have original and
exclusive jurisdiction over offenses
committed by persons under age 18 unless
the case is referred by the juvenile
court for adult prosecution. ..
However
. .. juvenile court jurisdiction ends
for all purposes at age 21. The
respondent urges that the juvenile court
lacks jurisdiction because he is over 21,
and the district court lacks jurisdiction
because there has been no juvenile court
referral of the juvenile act. The
respondent thus argues that he cannot now
be prosecuted anywhere." 296 N.W.2d at
407
This Court went on to further quote from the Minnesota
court as follows:
 "We believe it would ridiculous to say
that if a person of 16 or 17 years of age
commits a murder and escapes detection or
apprehension either on a warrant or
indictment until after he reached 18
years of age, or 21 years under the
recent changes, he could no longer be
proceeded against in juvenile court or
tried by the district court
...[Court's emphasis deleted.]
" [The defendant's] interpretation would
be in violation of [the Minnesota
constitution] which gives the district
court original jurisdiction in all
criminal cases, and it would be
unreasonable and absurd. The legislature
does not intend a result that is absurd
or in violation of the constitution."
296 N.W.2d at 407
The conclusion in Elliot supports the State's argument in
this case. Exclusive original jurisdiction in the juvenile
court does not divest a district court of jurisdiction over
crimes committed by the juvenile defendant. It merely allows
a juvenile to be treated, if the circumstances so permit, as
a juvenile, and benefit from a less punitive and retributive

system than provided in the district courts. The defendant
argues that this holding will vest in the prosecutor the
power to conclusively determine the forum merely by dragging
his feet in prosecuting the crime. This is a valid
observation, but misses one point; juveniles, as we11 as
adults, benefit from the right to a speedy trial.
We hold that upon termination of the youth court
jurisdiction, no bar existed to the exercise of the district
court's jurisdiction under Article VII, section 4 (1) of the
Montana Constitution and sections 3-5-302(1)(a) and 46-2-201,
MCA, over felony criminal proceedings against the defendant.

Issue -
#2
 The District Court granted defendant's rimtion for

change of venue, but, over defendant.'^ objection placed venue
in adjacent Valley County. Section 46-13-203, MCA is the
statue that allows a trial court to change venue in criminal
cases. It states in pertinent part:

" (3) If the court determines that there
exists in h e county in which the
prosecution s p e n d i n g such ~ r c i u r l L c c
that a fair t r ~ i 1 c?r,llot Lc FIsc2, 51
shall:
"(a) transfer the cause to any other
court of competent jurisdiction in any
county - which - -
in a fair trial lay - -
be had
... " (Emphasis added.)
The defendant's motion, supported by affidavit and

other evidence, alleged wide spread media exposure of the
facts involving the death of Kimberly Nees, and the
prejudicial information published about Beach's confession.
The District Court found that the motion had merit, and

ordered that the trial should be moved to adjacent Valley
County. The defendant objected and moved again for a change
of venue contending that the same prejudice existed in Valley
County as in Roosevelt County. As authority defendant cited
State ex re1 Dryman v. District Court (1954), 128 Mont. 402,
276 P.2d 969, where he argued that this Court implicitly

recognized the pervasive, prejudicial nature of region-wide
media coverage in rural Montana and ordered a new trial to be
had in a county non-ad j~c:clrit: t:o l:l~c? (3 rigina 1 county.
The District Court denied the defendant's second motion
for change of venue and ordered the trial to be held in
Valley County at Glasgow, Montana. In denying this motion
the District Court stated:
"The motion to move the venue again is
dismissed, denied and overruled, but the
 court will reconsider the entire matter
and change the venue if the selection of
jurors in Valley County indicates the
defendant cannot receive a fair trial in
that county."
This Court will not overturn a District Court order
granting or denying a motion for change of venue unless such
action is found to be arbitrary or capricious, or, in other
words, an abuse of discretion. State v. Link (Mont. 19811,
640 P.2d 366, 38 St.Rep. 982; Bashor v. Risley (D.C.Mont.
1982), 539 F.Supp. 259, aff. 730 F.2d 1228.
We hold that the District Court did not act improperly
in denying defendant's second motion for change of venue. In

so ordering, the District Court acted reasonably in balancing
the competing considerations of cost and inconvenience to
Roosevelt County of holding a trial at a distant venue, with
the defendant's right to a fair trial.
All that section 46-13-203 (3)(a), MCA requires is that
when venue is changed, it be to a county "in which a fair
trial may be had." This question is primarily factual. The
defendant presented several allegedly prejudicial newspaper
articles to the District Court, one in which the county
prosecutor purportedly told the Governor that the defendant
would be unable to get a fair trail anywhere in eastern
Montana. The court apparently did not find factual support
for defendant's a llegation of area-wide prejudice , and moved
the trial to the next county. But, recognizing defendant's
concerns, the District Court in its order denying the second
motion for change of venue expressly provided that if, at the
time of jury selection, it became apparent that a fair and
impartial jury could not be had in Valley County, the motion
would be reconsidered. As the case came to trial and the
jury selected, defendant did not renew his allegation of
prejudice. He, at that time, waived this objection.
The Dryman, supra, case which defendant cites is in
accord with this decision. In Dryman, this Court directed
the district court to change the venue of a criminal trial to
a county "not adjacent" to the original county because a fair
trial could not be had in any adjacent county. Addressing
that point, this Court stated:
"This court's sole purpose in directing
that relators new trial be had in same
county 'not adjacent' to Toole County was
to secure him the fair trial by an
impartial jury which is guaranteed to
every person charged with a crime by our
Constitution." 128 Mont. at 406, 276
P.2d at 971.
Dryman, supra, supports the rule that the key to the venue
inquiry is where a fair trial may be had. Absent an abuse of
discretion, a district court's determination thereof will not
be disturbed. We affirm on this point.

Issue -
#3

As framed by the appellant, issue #3 presents four
sub-issues. All of them revolve around the admissibility of
the confessions Barry Reach made to the Louisiana
authorities. Defendant points out four grounds upon which he
contends that the confessions are inadmissible. They are:
A. That such statements were obtained as a result of
defendant's arrest in his home without a warrant.
B. Such statements were obtained after the defendant
was denied his constitutional right to release on bail.
C. Such statements were obtained after the defendant
was denied his right to be taken before a magistrate or a
judge and arraigned and advised of his rights.
 D. That the State failed its burden of proving the
voluntariness of the statements.
We address these issues in the above order.
The defendant was arrested in his home on a charge of
contributing to the delinquency of minors. This arrest was
affected without a warrant. The United States Supreme Court
has clearly stated that, absent exigent circumstances, a
warrantless arrest for a minor (misdemeanor or nonviolent)
crime cannot be made in the defendant's home without a

warrant. Welsh v. Wisconsin (1984), U.S. , 104
S.Ct. 2091, 80 L.Ed.2d 732; Payton v. New York (1980), 445
U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639; Harris v. united

States (1947), 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399;
U.S. v. Prescott (9th Cir. 1978), 581 F.2d 1343.
In Brown v. Illinois (1975), 422 U.S. 590, 95 S.Ct.
2254, 45 L.Ed.2d 416, the United States Supreme Court
considered the admissibility of incriminating statements made
by a defendant shortly after a warrantless arrest without
probable cause. The Court held that the propriety of using
statements following an improper arrest at trial required
separate analysis under both the Fourth and Fifth Amendment:
"Wong Sun [v. United States (1963), 317
U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 4411
requires not merely that the statement
meet the Fifth Amendment standard of
voluntariness but that it be
'sufficiently an act of free will to
purge the primary taint' [Citations
omitted. ] ...
Wong Sun thus mandates
consideration of a statement's
admissibility in light of the distinct
policies and interests of the Fourth
Amendment. "
The District Court examined the defendant's contentions
and found that the confessions obtained were neither causally
connected to the initial arrest nor involuntary.
 In reviewing the District Court's denial of the
defendant's motion to supress we are restricted to examining
the record to adduce whether it contains substantial credible
evidence to support the findings, and to determine whether
those findings were applied correctly as a matter of law,
State v. Davison (1980), 188 Mont. 432, 439, 614 P.2d 489,
493; State v. Grimestead (1979), 183 Mont. 29, 598 P.2d 198.
It is a general principle of constitutional law that
statements and confessions made as a result of an unlawful
incarceration are inadmissible, Taylor v. Alabama (1982), 457
U.S. 687, 102 S.Ct. 2664, 73 L.Ed.2d 314; Wong Sun v. United
States, supra. But, there must be some causal connection
between the original unlawful detention and the statements
made, Taylor, supra at 690, 102 S.Ct. at 2667, 73 L.Ed.2d at
319. The District Court, addressing this connection stated
"the State has established that the statements were not the
result of an exploitation of that illegality under the
attenuation analysis of Wong - supra, Brown v. Illinois
Sun,
[supra,]; [and] Dunaway v. New York [ (1980), 442 U.S. 200, 99
S.Ct. 2248, 60 L.Ed.2d 8241." We affirm.
The question under the first prong of this analysis is
whether the evidence presented at trial was the result of an
exploitation of the original illegality of the arrest. In
making this judgment four factors must be considered: (1) the
presence or absence of timely Miranda warnings; (2) whether
there was an intervening independent act by the defendant or
some third party; (3) the temporal proximity of the arrest
and statement made; (4) the degree of the alleged
Constitutional violation. Brown, supra at 603-04, 95 S.Ct.
at 2261-2262, 45 L.Ed.2d at 426-427; Dunaway, supra at
217-18, 99 S.Ct. at 2259, 60 L.Ed.2d at 839.
 There i s s u b s t a n t i a l c r e d i b l e evidence i n t h e record t o

support t h e D i s t r i c t Court's conclusion t h a t t h e defendant's

confessions did not come a b o u t a s a result o f any a l l e g e d

exploitation. F i r s t d e f e n d a n t was g i v e n t e n Miranda w a r n i n g s

and executed severa 1 signed waivers thereof. As to the

factor of " tempora 1 proximity, " t h e d e f e n d a n t c o n f e s s e d more
than t h r e e days a f t e r h i s initial arrest. This t h r e e day

period i s s u b s t a n t i a l l y longer than t h e s e v e r a l hour period

d i s c u s s e d i n Brown and Dunaway. In t h i s regard, t h e United

S t a t e s Supreme C o u r t ' s a p p r o a c h i s t o d e t e r m i n e w h e t h e r t h e r e

was sufficient time for the defendant to overcome the

u n s e t t l i n g a f f e c t t h a t t h e a r r e s t may h a v e i n i t i a l l y h a d , and

t o g i v e him t i m e t o g a t h e r h i s t h o u g h t s . Three days appears

t o b e enough t i m e f o r t h i s t o have o c c u r r e d . Furthermore,

t h e d e f e n d a n t made an a d d i t i o n a l c o n f e s s i o n o n J a n u a r y 11 i n

the presence of his attorney, f i v e days a f t e r t h e initial

arrest. T h i s a l s o n e g a t e s a n y d i r e c t c a u s a l l i n k between t h e

a n x i e t y c a u s i n g e f f e c t o f t h e a r r e s t and t h e s t a t e m e n t . The

d e a t h t h r e a t t h e d e f e n d a n t made t o C a r o l y n Beach c a n c l e a r l y

be c o n s i d e r e d t o b e a n i n t e r v e n i n g a c t t o sever t h e c h a i n o f

causality. F u r t h e r m o r e , t h i s t h r e a t was a s u f f i c i e n t ground

to continue the defendant in custody. As to defendant's

allegation of police misconduct, the District Court

specifically stated that " t h e r e was no p o l i c e m i s c o n d u c t . "

Again, though the record may support a differing

interpretation, we find there is substantial credible

evidence i n t h e record t o support t h i s finding.

Secondly, defendant argues that he was denied his

l ' c o n s t i t u t i o n a l " r i g h t t o r e l e a s e on b a i l . He alleges that

Tim Beach went t o t h e O u a c h i t a P a r i s h C o r r e c t i o n a l C e n t e r i n

o r d e r t o b a i l t h e d e f e n d a n t o u t and was t o l d by S e r g e a n t Via
and a n a s s i s t a n t c o u n t y a t t o r n e y t h a t B a r r y Beach would b e

r e l e a s e d t h e n e x t d a y , o r t h a t it was i n t h e d e f e n d a n t ' s b e s t

interest t o stay i n jail i n order t o receive psychological

counseling. These r e p r e s e n t a t i o n s , defendant contends, had

t h e e f f e c t o f d e n y i n g him h i s r i g h t t o b a i l .

Although the District Court did not specifically

a d d r e s s t h i s i s s u e , w e do n o t f i n d d e f e n d a n t ' s argument t o be

persuasive. Assuming, arguendo, that the defendant had a

constitutional right to bail, he does n o t show how it was

denied. Bail had been set for the contributing to the

d e l i n q u e n c y o f m i n o r s c h a r g e a t $1,500 and was a v a i l a b l e t o

the defendant at the time. There is no allegation or

e v i d e n c e i n t h e r e c o r d t h a t T i m Beach o r anyone e v e r t e n d e r e d

bail money on behalf of the defendant. Neither the

defendant, n o r any o f h i s r e p r e s e n t a t i v e s made a n y r e q u e s t

for his bail t o be reduced, or for a release on his own

recognizance. By not diligently pursuing this right, he

waived it. Furthermore, w e simply cannot b e l i e v e t h a t t h e

defendant was denied any right by several alleged

m i s r e p r e s e n t a t i o n s on t h e p a r t o f t h e L o u i s i a n a a u t h o r i t i e s .

I n o r d e r f o r t h e d e f e n d a n t t o p u r s u a s i v e l y a r g u e t h a t h e was

p r e j u d i c e d by an a l l e g e d denial of a constitutional right,

he f i r s t must show t h a t t h e r i g h t was a c t u a l l y d e n i e d . In

this regard we do not think it unreasonable to hold the

d e f e n d a n t t o a - minimus l e v e l o f d i l i g e n c e i n p u r s u i n g h i s
de

rights.

T h i r d l y , t h e d e f e n d a n t c o n t e n d s t h a t h i s c o n f e s s i o n was

o b t a i n e d a f t e r h e was d e n i e d h i s r i g h t t o b e t a k e n b e f o r e a

magistrate or judge to be arraigned and advised of his

rights. The d e f e n d a n t was origina1l.y incarcerated on the

evening o f January 4 , 1983 on t h e c o n t r i b u t i n g c h a r g e and was
n o t brought before a m a g i s t r a t e f o r s e v e r a l days, u n t i l a f t e r

h e made h i s f i r s t c o n f e s s i o n . The r u l e i n t h i s r e g a r d i s t h e

"McNabb-Ma 1l o r y 1 ' r u l e which requires the exclusion of any

confession obtained a s a r e s u l t of "unnecessary delay" i n t h e

i n i t i a l appearance. McNabb v. U n i t e d S t a t e s ( 1 9 4 3 ) , 318 U.S.

332, 63 S . C t . 608, 87 L.Ed. 819; Mallory v. United States

( 1 9 5 7 ) , 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479. The

McNabb-Mallory rule is not based on any specific

c o n s t i t u t i o n a l provision, b u t r a t h e r i s a r u l e of supervisory

c o n t r o l o v e r f e d e r a l c o u r t s , and h a s s i n c e been l e g i s l a t i v e l y

restricted, see 1 8 U.S.C. 53501 (1972). I n S t a t e v. Benbo

(1977), 174 Mont. 252, 570 P.2d 894, though, this Court

adopted the McNabb-Mallory rule under our own supervisory

power. The t e s t a s s e t f o r t h i n Benbo i s t h e f o l l o w i n g :

"When a d e f e n d a n t b a s e s a m o t i o n t o
s u p p r e s s e v i d e n c e upon a c l a i m t h a t h e
was not provided a prompt initial
a p p e a r a n c e , t h e b u r d e n i s f i r s t on t h e
defendant to show the delay was
unnecessary. The d i s t r i c t c o u r t s h o u l d
f o c u s o n t h e d i l i g e n c e o f t h e p e r s o n s who
made t h e a r r e s t i n b r i n g i n g t h e d e f e n d a n t
b e f o r e t h e n e a r e s t and most a c c e s s i b l e
judge. While t h e l e n g t h o f t h e t i m e
between a r r e s t and i n i t i a l a p p e a r a n c e i s
not determinative of t h e ' n e c e s s i t y ' of
the delay, it is a factor to be
considered.

"Once a d e f e n d a n t h a s e s t a b l i s h e d t h e
d e l a y was u n n e c e s s a r y t h e b u r d e n s h i f t s
t o t h e prosecution. The S t a t e must show
t h e evidence obtained during t h e delay
was n o t r e a s o n a b l y r e l a t e d t o t h e d e l a y .
Absent s u c h a showing t h e e v i d e n c e w i l l
b e e x c l u d e d . " ( R e l y i n g on R.C.M. 1947 5
95-603 ( d ) ( 3 ) , now s e c t i o n 46-7-101, MCA) ;
174 Mont. a t 262, 570 P.2d a t 900. See
a l s o S t a t e v. D i e z i g e r (Mont. 1 9 8 2 ) , 650
P.2d 800, 39 St.Rep. 1734.

Addressing t h i s p o i n t , t h e D i s t r i c t Court s t a t e d " t h e

c o u r t f i n d s t h a t a n u n n e c e s s a r y d e l a y i n a r r a i g n m e n t was n o t

e s t a b l i s h e d and e v e n i f it i s assumed t h a t t h e r e was s u c h a
dely, t h e S t a t e h a s s t i l l d e m o n s t r a t e d t h e v o l . u n t a r i n e s s of

t h e d e f e n d a n t ' s s t a t e m e n t s by p r e p o n d e r a n c e o f t h e e v i d e n c e . "

Under Benbo t h e defendant has the initial burden to

show t h a t t h e d e l a y was u n n e c e s s a r y . This Court has applied

t h i s f i r s t e l e m e n t s t r i c t l y and d e n i e d a p p e a l s o f l o w e r c o u r t

d e n i a l s o f s u p r e s s i o n on m o t i o n s made on t h i s ground when t h e

defendant failed to show the "unnecessary" nature of the

delay. I n S t a t e v. P l o u f f e ( 1 9 8 2 ) , 198 Mont. 379, 646 P.2d

533, w e h e l d t h a t t h e d e f e n d a n t ' s b u r d e n i n t h i s r e s p e c t i s

more t h a n j u s t p o i n t i n g o u t t h a t t h e a u t h o r i t i e s c o u l d have

p r e s e n t e d him e a r l i e r . See a l s o S t a t e v. Lenon ( 1 9 7 7 ) , 174

Mont. 264, 570 P.2d 901. I n one c a s e where a s i m i l a r d e l a y

was e n c o u n t e r e d , i.e. approximately f i v e o r s i x days, this

Court found that the delay was not unnecessary, S t a t e v.

Plouffe, supra. Here, t h e defendant does n o t contend any

more than that the authorities "could have" presented him

earlier. He f a i l s t o address t h e f a c t t h a t various charges

w e r e b e i n g r a i s e d a g a i n s t him, i n v e s t i g a t e d , and t h e n some o f

them d r o p p e d . During t h i s s h o r t p e r i o d o f t i m e t h e Louisiana

a u t h o r i t i e s had t h e r i g h t t o k e e p him i n c u s t o d y , b u t t h e i r

investigations had yet t o produce a c h a r g e upon which t h e

defendant could be presented. Furthermore, the period of

t i m e i n v o l v e d was n o t s o l o n g a s t o c r e a t e a n y p r e s u m p t i o n o f

unreasonableness. W e hold t h a t t h e f i r s t e l e m e n t o f Benbo

was n o t m e t and t h a t t h e d e f e n d a n t ' s s t a t e m e n t s s h o u l d n o t b e

s u p p r e s s e d on t h i s g r o u n d .

As to the above point, the S t a t e contends that the

Aenbo r u l e s h o u l d n o t b e a p p l i e d h e r e b e c a u s e d e f e n d a n t was

incarcerated in Louisiana and at that time subject to

Louisiana law. The State points to Art. 230.1. of the

Louisiana Code Crim.Proc. (West 1 9 6 7 ) , which p r o v i d e s t h a t
authorities have a seventy-two hour period before they are
required to bring a suspect before a judge. In that statute,
the remedy for the failure to do so is the release of the
suspect. The statute specifically provides that a violation
thereof does not require the automatic suppression of
incriminating statements.
The general rule is that, as to questions of evidence,
the law of the forum controls, 16 Am.Jur.2dI Conflict of Laws
S131. This question is best characterized as being one of an
application of the exclusionary rule, i.e. a rule of
evidence. Thus Montana law should control. The State
proposes that what actually is involved here is an
application of substantive law, in which this Court should
apply Louisiana law. This argument is not compelling for two
reasons; first, the remedy requested by the defendant is not
a remedy provided for by Louisiana law, but rather is a
remedy provided by Montana evidence law; and secondly, we
feel that whenever possible, defendants should be entitled to
the fullest protection of Montana law when appearing in its
courts.
Finally, the defendant argues that the State failed to
meet its burden of proving that the statements made by the
defendant were voluntary. As stated above, when a defendant
shows that his incarceration was initially il lega 1, the
burden shifts to the State to show that the Fifth Amendment
was not violated.
In State v. Camitsch (Mont. 1981), 626 P.2d 1250, 1253,
38 St.Rep. 563, 565, we stated:
"In determinining whether a confession
should be suppressed, the trial judge
must decide whether or not it was
voluntary. [Citation omitted.] The
determination of voluntariness depends
 upon the 'totality of the circumstances,'
with the burden of proof on the State to
prove voluntariness by a preponderance of
the evidence."
See also State v. Mercer (Mont. 1981), 625 P.2d 44, 47, 38
St.Rep. 312, 315; State v. Allies (Mont. 1980), 621 P.2d
1080, 1086-87, 37 St.Rep. 2089, 2097. The issue of
voluntariness is largely a factual question committed to the
district court's discretion. We will not reverse that court

if its order is supported by substantial credible evidence,
State v. Davison, supra, at 439, 614 P.2d 493; State v.
Grimestead, supra at 29, 598 P.2d at 202. This case is
especially one where the resolution of the voluntariness
issue turns on the credibility of witnesses, and this Court
"must defer to the district judge who is in a superior
position to judge the credibility of [those
witnesses] ... " State v. Camitsch, 626 P.2d at 1253, 38

One factor, not conclusive, supporting voluntariness is
the presence of timely and complete Miranda advisements prior
to the incriminating statement, State v. Allies, supra at
112, 606 P.2d at 1050. The record indicates that the
defendant received ten Miranda warnings between January 4 and
January 11. Eight of these advisements and associated
waivers were directly related to questioning in connection
with the Nees murder. The defendant signed several waivers
thereof. There was no evidence adduced that the defendant
possessed less than average intelligence, or that by reason
of mental j-mpaiment he was incapable of understanding the
Miranda warnings. Sergeant Via and Commander Calhoun both
testified that the defendant appeared calm, coherent and free
from the influence of intoxicants during any of the
interviews. The questioning sessions were not long, arduous,
or designed to take advantage of the defendant's situation or
fatigue. Via and Calhoun testified that no promises of
benefit or threats of harm were made to the defendant.
Particularly, defendant's allegation, disputed by Calhoun and
Via, concerning Calhoun' s "fry" comment was obviously not
credited by the District Court.
Furthermore, and most importantly, defendant made a
statement on January 11 in the presence of his attorney and
after opportunity to confer with him. Presumably, the
Louisiana attorney had advised the defendant of his rights
and consequences of waiving the same, and was diligent in
protecting the defendant from coercion. The defendant has
made no allegation that his Louisiana attorney failed in this
regard and thus we have little difficulty holding that this
confession was voluntary.
On this point, the District Court found "The statements
of the defendant were voluntary'' and "the voluntariness of
the statements was obvious." The totality of the
circumstances indicates the District Court did not err.

Issue -
#4

Defendant argues that due process requires that a
conviction of deliberate homicide must be based on an
information that charges, and instructions to the jury that
require, a finding that the defendant possessed the specific
mental state to kill the victim; in other words, that the
element of mens rea is constitutionally required. He
contends that the statutory element of purposely and/or
knowingly does not satisfy this requirement.
 This Court has previously addressed and resolved this
question. In State v. Powell (Mont. 1982), 645 P.2d 1357, 39
St.Rep. 989, we rejected this argument. See also State v.
Lemmon (Mont. 1984), 692 P.2d 455, 41 St.Rep. 2359; and State
v. Weinberger (Mont. 1983), 665 P.2d 202, 40 St.Rep. 844. The
scienter element of section 45-5-102(a) defines the crime of
deliberate homicide with sufficient specificity to obviate
any claim of unconstitutiona 1 vaugueness. State v. Sharbono
(1979), 175 Mont. 373, 563 P.2d 61.

#5
Issue -
The defendant received the maximum a llowable sentence,
one hundred years, and was determined to be ineligible for
designation as a non-dangerous offender, or parole.
Defendant argues that this sentence was not based on any
credible evidence presented at the sentencing hearing, or
contained in the pre-sentence report, but rather was
motivated by the District Court's desire for vengence on
behalf of the victim's family. The District Court stated
that it imposed this onerous sentence because of its belief
that defendant should be removed from society.
In either case, defendant argues that this is violative
of Article 11, section 28 of the Montana Constitution, which
requires that "laws for the punishment of crime shall be
founded on the principles of prevention and reformation"; and
section 46-18-101, MCA, which provides that the policy behind
sentencing is the rehabilitation, if possible, of convicts.
In the defendant's mind, his sentence was not based on any
principle of prevention, reformation, or rehabilitation, and
thus an abuse of discretion by the District Court.
 We find no merit in defendant's argument. First,
Article 11, section 28, Mont. Const. allows a district court
in its discretion to base a sentence upon the principle of
prevention of future crimes. This includes the power to
remove a person from society, as the District Court found
necessary here.
Secondl-y, the District Court's sentence was within the
permissible statutory range, and, in the absence of clear
abuse of discretion is properly reviewed by the Sentence
Review Division. There was no clear abuse of discretion in
this case and thus this is a matter for the Sentence Review
Board. See State v. Watson (Mont. 1984), 686 P.2d 879, 41
St.Rep. 1452; and State v. Holmes (Mont. 1983), 674 P.2d
1071, 40 St.Rep. 1973.
The judgment and sentence are affirmed.

I

We concur: 7 -
,'
- "

Justices
Mr. Justice John C. Sheehy, specially concurring:

I agree with the result. The question of voluntariness
is ended in the fact that Beach confessed in the presence of
his attorney. All the other issues fade in that fact.