No. 13111
I N THE SUPREME COURT O THE STATE O F M N A A
F O T N
1977
STATE O MONTANA,
F
P l a i n t i f f and Respondent,
VS.
LOREN DUANE SHARBONO,
Defendant and A p p e l l a n t .
Appeal from: D i s t r i c t Court of t h e Seventh J u d i c i a l District,
Bonorable L. C . Gulbrandson, Judge p r e s i d i n g .
Counsel o f Record:
For Appellant:
Moses, Kampfe, T o l l i v e r a n d W r i g h t , B i l l i n g s ,
Montana
C h a r l e s F. Moses a r g u e d , B i l l i n g s , Montana
For Respondent :
Hon. M i c h a e l 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
V i c t o r G. Koch a r g u e d , C o u n t y A t t o r n e y , S i d n e y ,
Montana
Submitted: January 24, 1977
~ecided: Pn!? 3 1 19fl
M r . J u s t i c e John Conway H a r r i s o n d e l i v e r e d t h e Opinion o f t h e
Court.
Defendant a p p e a l s from a j u r y c o n v i c t i o n of d e l i b e r a t e
homicide e n t e r e d i n t h e d i s t r i c t c o u r t , Richland County. Defendant
was sentenced t o 75 y e a r s i n t h e Montana S t a t e P r i s o n .
Defendant Loren Sharbono was an independent o i l f i e l d
s e r v i c e worker whose job took him away from home. He r e s i d e d w i t h
h i s w i f e E l l e n Sharbono and t h e i r 12 y e a r o l d son i n Baker, Montana.
A t t h e time of h e r d e a t h E l l e n was e i g h t months pregnant.
On November 1 5 , 1974, defendant picked up h i s son i n
Baker and took him t o s t a y i n Glendive, Montana. Defendant was
t o r e t u r n on November 1 6 , 1974, t o p i c k up E l l e n and go t o Sidney,
Montana o r t o Dickinson, North Dakota, f o r t h e weekend t o t a l k
over some domestic problems. Testimony of w i t n e s s e s i n d i c a t e d
E l l e n was a f r a i d of n i g h t d r i v i n g and was n o t going u n l e s s de-
fendant came f o r h e r . Defendant denied t h i s , b u t t e s t i f i e d she
d i d have poor e y e s i g h t and wore t h i c k l e n s g l a s s e s .
Defendant had been going w i t h a Sidney g i r l , J a n i s Hams,
f o r two y e a r s and t h i s was known by E l l e n . According t o testimony
of J a n i s , t h e y were contemplating marriage. T h i r t y days b e f o r e
~ l l e n ' s e a t h a December 6 , 1974 marriage d a t e was s e t .
d Defendant
t o l d J a n i s h i s d i v o r c e would be f i n a l November 2 3 , 1974, a l t h o u g h
he r e f u s e d t o name h i s a t t o r n e y and asked J a n i s t o t r u s t him.
Defendant denied any i n t e n t t o d i v o r c e E l l e n and t e s t i f i e d
he had no i n t e n t i o n t o marry J a n i s . However, sometime f o l l o w i n g
~ l l e n ' s eath, he t o l d
d an is' f a t h e r he was i n love w i t h J a n i s .
O November 1 6 , 1974, defendant.made a d a t e w i t h J a n i s
n
to pick h e r up from work a t 11:30 p.m. A t 7:01 p.m., telephone
records i n d i c a t e d he c a l l e d h i s Baker home from a telephone booth
i n Wibaux, Montana, 45 miles from Baker, charged t o h i s business
c r e d i t c a r d , and t a l k e d f o r 2 minutes. Defendant t e s t i f i e d he then
drove t o Glendive and went coon hunting i n western Richland County,
without a gun. H i s hunting consisted of using a s t i c k and f l a s h -
l i g h t , s t r i k i n g t h e coons between t h e eyes.
A t about 11:15 p.m. t h a t evening, defendant c a l l e d J a n i s
from Savage, Montana, and t o l d h e r he was running l a t e and would
pick h e r up about 12:15 o r 12:20 a.m. She t e s t i f i e d t h i s was t h e
f i r s t time he had been l a t e i n t h e i r two year courtship. He l a t e r
advised h e r he had pickup t r o u b l e .
Ross Wilson of Savage, Montana, a key witness f o r t h e s t a t e ,
went to Glendive t h e evening of November 16 t o s e e a movie. He l e f t
Gkndive about 20:00 p.m. He t e s t i f i e d he was anxious t o g e t
home and drove a t 80-90 miles per hour on t h e t r i p home. He was
approximately four miles south of Savage when he came upon an
Because h i s p a r e n t s l i v e d nearby
orange Ford pickup t r u c k , parked i n h i s l a n e of t r a f f i c . / B e -thought
i t might be poachers, so he slowed down and checked t h e l i c e n s e
number, g e t t i n g t h e county designation 39- and t h e f i r s t and l a s t
numbers of 10-9. The middle two numbers he could not c a t c h due t o
t h e f a c t they were p a r t i a l l y covered with d i r t . Estimating h i s
speed between Glendive and t h e parked t r u c k , he thought he came
upon t h e orange pickup a t about 10:30 p.m. H e slowed down t o 12
t o 15 miles per hour before passing t h e t r u c k and i n so doing
noted t h e r e were two occupants of t h e truck cab; a passenger was
g e t t i n g i n t o t h e t r u c k and a man was bent over i n an e f f o r t t o
c l o s e t h e door. He noted t h e d r i v e r had dark h a i r . Upon hearing
of t h e "accident" l a t e r t h a t n i g h t , he went t o t h e scene and reported
t h i s information t o a fireman and t h e u n d e r s h e r i f f . Defendant was
d r i v i n g h i s orange Ford p ~ c k u p ,wich License number 39-1969.
Savage, Montana i s l o c a t e d approximately 23 m i l e s
south of Sidney on t h e highway t o Glendive. A t approximately
LL;15 p.m., November 1 6 , 1974, a w i t n e s s C l i n t o n P a t t e r s o n was
d r i v i n g toward Glendive. About f o u r m i l e s s o u t h of Savage he
s a w a glowing on t h e s i d e of t h e h i l l s . When he a r r i v e d a t t h e
scene he saw a c a r i n a r a v i n e w i t h flames coming o u t o f t h e
window a r e a and around t h e hood.
About t h i s same time a b e e t t r u c k a r r i v e d a t t h e scene.
this cruck was d r i v e n by o f f - d u t y highway patrolman J a c k Gaughan,
who i n s t r u c t e d P a t t e r s o n t o r e t u r n t o Savage and c a l l t h e f i r e
department and a u t h o r i t i e s . Gaughan could o n l y g e t w i t h i n 10 t o
1 2 f e e t of t h e c a r , s i n c e i t was burning f i e r c e l y , b u t he r e a d
t h e l i c e n s e number of t h e c a r a s 39-924. The v e h i c l e was r e g i s t e r e d
i n t h e name of E l l e n Sharbono and defendant. Other o f f i c e r s , t h e
Savage f i r e department, and t h e c o r o n e r s u b s e q u e n t l y a r r i v e d
a t t h e scene. The f i r e department took about 25 minw~testoc o n t r o l
the f i r e . By t h i s time t h e badly c h a r r e d remains of E l l e n Sharbono
had been d i s c o v e r e d l y i n g on t h e f l o o r b o a r d , w i t h h e r head a g a i n s t
t h e passenger s i d e of t h e c a r . The v i c t i m ' s body was removed by
the coroner.
I n t h e e a r l y morning of November 1-7, 1974, defendant
was l o c a t e d a t a motel i n Sidney and n o t i f i e d of h i s w i f e ' s d e a t h .
H i s t r u c k , w i t h l i c e n s e number 39-1969, was parked a t t h e motel.
About 4:15 a.m. on November 1 7 , 1974, t h e Sharbono t r u c k was s e e n
s t o p p i n g a t t h e home of J i m F i s c h e r , a r e t i r e d highway patrolman and
b r o t h e r - i n - l a w of defendant married t o d e f e n d a n t ' s s i s t e r , L o u e l l a .
F i s c h e r s t e s t i f i e d defendant c a l l e d them t o t e l l them of
~ l l e n ' s e a t h and asked t o come o u t t o t h e i r home.
d They t e s t i f i e d
he was v e r y u p s e t when he a r r i v e d and i t had been an emotional
experience. Defendant t a l k e d w i t h them f o r sometime and s l e p t on
a couch i n t h e l i v i n g room f o r an hour and h a l f e a r l y i n t h e
morning of t h e 1 7 t h . During h i s c o n v e r s a t i o n s w i t h t h e F i s c h e r s ,
from t h e testimony of numerous w i t n e s s e s , i t would a p p e a r defendant
made an e f f o r t t o g e t them t o p r o v i d e a n a l i b i f o r him by s t a t i n g :
"You can say we was f o x h u n t i n g t o g e t h e r . ' '
The F i s c h e r s t o l d t h i s s t o r y about f o x h u n t i n g t o s e v e r a l
i n v e s t i g a t i n g o f f i c e r s and i t was n o t u n t i l December 26, t h e day
of d e f e n d a n t ' s a r r e s t t h a t J i m F i s c h e r v o l u n t a r i l y went t o t h e
county a t t o r n e y ' s o f f i c e and gave him a c o r r e c t e d s t o r y .
I n t h e meantime, on November 20, upon l e a r n i n g t h a t h i s
w i f e ' s body had been t a k e n t o G r e a t F a l l s , defendant c o n t a c t e d
F i s c h e r s and had them d r i v e o v e r a c o u n t r y road from Sidney t o
Wibaux w i t h him. During t h i s t r i p h e had them n o t e c e r t a i n , p l a c e s
where he s a i d he had been, a t s p e c i f i e d t i m e s , d u r i n g t h e evening
of November 16-17. During d e f e n d a n t ' s v i s i t t o t h e home o f
F i s c h e r s on t h e 1 7 t h , h e asked h i s s i s t e r t o say t h e y were p l a y i n g
"pinochle" t h a t evening. When h i s s i s t e r asked him why s h e should
say t h a t , he r e p l i e d "I was on t h a t road--the Glendive-Sidney road".
H e a l s o t o l d h i s s i s t e r he c a l l e d h i s g i r l f r i e n d from Savage a t
a b o u t 11:OO t o 11:lO p.m. on November 16. A t no time d u r i n g h i s
testimony d i d defendant admit being on t h e p a r t i c u l a r s e c t i o n of
the Glendive-Sidney road where t h e a c c i d e n t o c c u r r e d .
I n v e s t i g a t i o n of t h e a c c i d e n t r e v e a l e d t h e v i c t i m ' s c a r
went o f f t h e road a t almost a 90' angle. T h i s was d e s c r i b e d by
t h e i n v e s t i g a t o r s a s a most unusual a n g l e of l e a v i n g t h e highway.
Investigation by the state fire marshal's office revealed
the fire was caused by accelerants, starting in the passenger
portion of the victim's automobile. The chemist from the state
crime laboratory concluded the gasoline sample taken from the
interior of the victim's car was a different gasoline than that
in the tank of the automobile.
On November 20, 1974, Dr. Joseph McKinley, a Sidney
pathologist, made a partial autopsy and found fractures of the
hyoid bone and thyroid cartilage, which to him indicated manual
strangulation. On December 20, 1974, the body was flown to Great
Falls where a complete autopsy was performed jointly by Dr. McKinley
and Dr. Pfaff, a forensic pathologist. Both concluded Ellen
Sharbono died of manual strangulation. The victim's own doctor
testified that Ellen Sharbono was previously in good health.
In1;addition,
the state introduced evidence that defendant
obtained life insurance on his wife on September 24, 1974. The
policy was a joint whole-life policy for Loren and Ellen Sharbono
in the amount of $150,000. Defendant's agent testified he had
suggested the additional insurance due to defendant's going into
business for himself.
On appeal, defendant presents 14 issues for'this Court's
review:
1) Was Patrolman Gaughan improperly allowed to give an
unresponsive answer and testify as to his opinions and conclusions
in describing the burning car?
2) Was Patrolman Rowe improperly allowed to testify as
to a self-serving statement by saying he went to view the car "to
gather evidence" ?
improperly
3) Was Patrolman ~aul/allowedto give his opinion as to
the speed of the car when it left the highway and its speed when
it hLt the bottom of the ravine without proper foundation?
4) Was Exhibit A-14, a gaschromebiography analysis of
gasoline, improperly admitted into evidence without sufficient
foundation?
5) Was it error to permit Dr. Pfaff to repeat his opinion
that the cause of death was by strangulation?
6) Was hearsay testimony improperly allowed into evidence
when Mary McGonigal testified as to a telephone conversation she
had with Ellen Sharbono?
7) Was hearsay testimony improperly allowed into evidence
when James Fischer testified as to a telephone conversation he
had with the county attorney?
8 Was the State improperly allowed to impeach its
)
witness, James Fischer, without a showing of surprise?
9) Was there sufficient evidence at the close of the
state's case to go to the jury?
10) Should the case have been dismissed at the close of
the state's case because the medical testimony failed to satisfy
the circumstantial evidence test by failing to rule out all other
reasonable hypotheses as to the cause of death other than
strangulation?
11) Was the sheriff improperly allowed to present hearsay
and conclusionary testimony by stating he had no reason to believe
Wilson would be involved?
12) Was the sheriff improperly allowal to repeat his
testimony about Wilson?
13) Was it error for the district court to refuse the
'burn film''?
14) Did the district court err in refusing Sharbono's
proposed instruction ill4 which defined "deliberation" ?
I s s u e s 1, 2 and 3 i n v o l v e t h e tescirnony of t h r e e highway
patrolmen and w i l l be c o n s i d e r e d a s one.
J a c k Gaughan was one of t h e f i r s t w i t n e s s e s on t h e scene.
S e f o r e going down t o t h e burning c a r , he s e n t P a t t e r s o n , t h e
f i r s t w i t n e s s on t h e s c e n e , t o Savage t o g e t h e l p from t h e
v o l u n t e e r f i r e department. Gaughan e s t i m a t e d h i s time of a r r i v a l
a t t h e scene between 11:15 and 11:30 p.m. He took an e x t i n g u i s h e r
from h i s t r u c k down t o t h e f i r e i n an e f f o r t t o e x t i n g u i s h i t ,
b u t was unable t o g e t c l o s e r than from 10 t o 12 f e e t , due t o t h e
i n t e n s i t y of t h e f i r e . I n d e s c r i b i n g what he saw, he s a i d
"* * * i t would---like a p i e c e of r a g b u r n i n g t h a t h a s been o i l
soaked o r something, t o m i t reminded m o f
e e ---- .'I ~efendant's
dounsel o b j e c t e d a l l e g i n g t h e answer was n o t r e s p o n s i v e and was
che o p i n i o n and c o n c l u s i o n of t h e w i t n e s s .
Defendant a r g u e s t h e c o u r t e r r e d i n o v e r r u l i n g h i s o b j e c t i o n
and c i t e s numerous c a s e s and t e x t i n s u p p o r t of h i s o b j e c t i o n .
Ne have examined t h o s e c a s e s and t e x t c i t e d and f i n d none c p n t i o l -
ling,,
Here, Gaughan was asked t h e q u e s t i o n "Would you d e s c r i b e
whac you saw i n r e g a r d t o t h e burning v e h i c l e ? " The answer was
a d e s c r i p t i o n of what Gaughan saw and defendant o b j e c t e d and moved
t o s t r i k e t h e e n t i r e answer a s n o t r e s p o n s i v e and a s an o p i n i o n
and c o n c l u s i o n . N e f f o r t was made t o s p e c i f i c a l l y p o i n t o u t
o
w h a t h i s o b j e c t i o n was d i r e c t e d t o and i t was a n improper o b j e c t i o n .
H w i t n e s s , a s t h e w i t n e s s h e r e , who saw t h e c a r b u r n i n g , may,
a r t e r s t a t i n g a s much a s he can of t h e c o n s t i t u e n t f a c t s , s t a t e
h i s impression o r i n f e r e n c e w i t h r e s p e c t t o what he saw. In re
~ ~ L l e r E s t a t e , 36 Utah 228, 102 P. 996; P a u l i c h v. N i p p l e , 104
'
Yan. 801, 180 P.771; H i l l v. Chappel Bros., 97 Mont. 305, 33 P.2d
819; Union P a c i f i c Ry. Co. v. G i l l a n d , 4 Wyo.395, 34 P. 953; 32
Z.J.S., Evidence § 5 4 6 ( 9 ) .
- 8 -
Defendant n e x t o b j e c t s t o t h e testimony of Patrolman
Rowe a s " s e l f - s e r v i n g u . Rowe , along w i t h s e v e r a l o t h e r i n v e s t i -
g a t i n g o f f i c e r s , went t o t h e fairgounds where t h e burned v e h i c l e
was s t o r e d f o r t h e purpose of g e t t i n g c e r t a i n p a r t s of t h e
v e h i c l e t h a t where l a t e r used i n t h i s c a s e . The testimony and
o b j e c t i o n was:
"Q. Was t h e r e any purpose i n going o u t and meeting
w i t h t h e s e o t h e r p a r t i e s you d e s c r i b e d on t h e 25th
of November? A . Yes.
Q . What was t h a t purpose?
"MR. MOSES: I o b j e c t upon t h e ground t h a t i t i s
s e l f -serving.''
W f i n d no m e r i t t o d e f e n d a n t ' s argument.
e Rowe was a
p a r t of an i n v e s t i g a t i v e team f o r t h e purpose of " g a t h e r i n g evidence1'.
His answer was n o t a s e l f - s e r v i n g s t a t e m e n t . 3LA C.J.S. Evidence,
9216, p. 590, s t a t e s t h e r u l e r e g a r d i n g s e l f ~ s e r v i n g e c l a r a -
d
tions :
"A ' s e l f - s e r v i n g d e c l a r a t i o n ' w i t h i n t h e r u l e i s one
made by a p a r t y i n h i s own i n t e r e s t a t some time
and p l a c e o u t of c o u r t , and does n o t i n c l u d e t e s t i -
mony which he g i v e s a s a w i t n e s s a t t h e t r i a l . "
See Welch v. Thomas, 102 Mont. 591, 601, 6 1 P.2d 404.
Defendant a l s o o b j e c t e d t o t h e testimony of S g t . John
Kaul of t h e highway p a t r o l a s t o h i s o p i n i o n of t h e speed of t h e
d e a t h v e h i c l e when i t l e f t t h e road. S g t . Kaul t e s t i f i e d he had
been a highway p a t r o l s e r g e a n t f o r approximately 12 y e a r s ; had
c o n s i d e r a b l e s p e c i a l t r a i n i n g i n a c c i d e n t i n v e s t i g a t i o n s and had
i n v e s t i g a t e d some 300 a c c i d e n t s . He q u a l i f i e d a s a n e x p e r t i n
his field.
Kaul s t a t e d , i n h i s o p i n i o n , t h e v e h i c l e l e f t t h e road
a t "a very low r a t e of speed" --- somewhere i n t h e v i c i n i t y of
from 10 t o 15 miles p e r hour. P r i o r t o t h a t testimony, he had
totally familiarized himself with the scene, observed .the tracks
of the vehicle on the grass slope, checked for skid or gouge
marks on both the slope and highway and found none, observed the
damage done to the automobile caused by its coming to rest against
the bank of the ravine, took photographs of the scene (later used
as exhibits), and noted the unusual angle of the vehicle as it
left the highway. The trial court properly admitted this testimony.
The rule in Montana relating to the admission of expert testimony
is set forth in Haynes v. County of Missoula, 163 Mont. 270, 517
P.2d 370,
This Court has held highway patrolmen are experts in
their field of accident investigation. See: State v. Souhrada,
122 Mont, 377, 204 P.2d 792; State v. Stoddard, 147 Mont. 402,
412 P.2d 827; State v. Deshner, 158 Mont.188, 489 P.2d 1290;
8 Am Jur 2d, Automobiles and Highway Traffic 5990,
We find defendant's issues 1, 2 and 3 to be without merit.
Issue 4, alleges there was insufficient foundation for
the admission of evidence obtained from the gaschromebiography.
We find no merit in ,issue,4.
The objection arose during the testimony of Arnold Melnikoff,
the forensic chemist and lab supervisor of the criminal investiga-
tion department when he tried to use a chart to illustrate the
gaschromebiography analysis of gas samples taken at the scene and
from the burned vehicle.
Following extensive direct examination and cross-examina-
tion on the operation and use of the gaschromebiograph, and a
discussion in chambers with the judge, counsel for defendant made
his objection as to the competency of the evidence in a criminal
case. The court ruled a proper foundation had been laid and stated:
- 10 -
"* * * Certainly I am convinced it was adequate
after you [Moses] got through with him. I think
I understand the process but 1 am not sure it makes
it more competent evidence, but in mind I am much
more familiar with the process. * * *"
Defendant's objection can be divided into two parts:
1) The lack of foundation of the verification of the accuracy of
the instrument. 2) The competency of the gaschromebiograph in a
criminal case.
1 The foundation was laid by the qualifications of
)
Melnikoff, the state chemist, and his testimony of how the machine
was periodically checked and that it was in good working order.
2) Concerning the competency of such evidence on the
fractionation of mixtures of substances and its ability to afialyze
both organic and inorganic compounds, see: The Cyclopedia of
Chemistry, 2d Ed.(1966); The Journal of Chromatopgraphy, a 116
volume work of scientific scholars; and the Journal of Forensic
Medicine from 1971 through 1976.
Whfle admission of this type of evidence in a criminal case
is a matter of first impression in this jurisdiction, we have
allowed its admission in a civil case, Jangula v. United States
Yubber.Co., 147 Mont. 98, 410 P.2d 462. Several states, Missouri,
California, Arkansas and Vermont have allowed its admission in
criminal cases. State v. Perryman, (Mo.App. 1975), 520 S.W.2d 126;
State v. Munn, 257 Ark. 1057, 521 S.W.2d 535; People v. Rawlings,
4 2 Cal.App.3d 952, 117 Cal.Rptr. 651; State v. Burack, 133 Vt.
482, 346 A.2d 192, 194; 23 C,J.S., Criminal Law, §858(2), p. 380.
We adopt the position of the Vermont Court in ----
Burack in allowing
admission of the tests made by a gaschromebiograph.
~ h e
This Court has long held it is within the jurisdiction
OL the trial judge to admit scientific and expert testimony. We
f i n d no abuse of t h a t d i s c r e t i o n h e r e . Graha~nv . Kolandson, 150
Mont. 270, 435 P.2d 263; Hurley v. S t a r T r a n s f e r Company, 141
Mont. 176, 376 P.2d 504.
Issue 5 i s directed a t alleged r e p e t i t i o u s opinion t e s t i -
niorly of D r . Pfaff, the forensic pathologist. During d i r e c t
testimony D r . P f a f f t e s t i f i e d t h a t , i n h i s o p i n i o n "I b e l i e v e
she d i e d a s t h e r e s u l t of manual s t r a n g u l a t i o n and asphyxia
therefrom. I I
On r e d i r e c t , he gave t h e same testimony i n answer t o a
question---over t h e o b j e c t i o n of d e f e n d a n t . The r e d i r e c t testimony
cane a f t e r d e f e n d a n t ' s cross-examination where a n e f f o r t was
made t o e s t a b l i s h t h e cause of d e a t h o c c u r r i n g from a s t e e r i n g
bheel injury. I t s purpose was t o c l a r i f y any q u e s t i o n i n t h e
airids of t h e j u r y members a s t o what was D r . ~ f a f f ' s x p e r t
e
o p i n i o n on t h e cause of d e a t h . W f i n d no e r r o r .
e Moore v.
r r e m e l l i n g , 100 F. 2d 39 ; 3 Wigmore, Evidence, 5 782 (2) (Chadbourn
Kev. 1970) ; 4 Jones on Evidence, 5 28: 7 .
I s s u e 6 i s d i r e c t e d t o h e a r s a y c o n v e r s a t i o n s between
E l l e n and Mary McGonigal, a n u r s e and neighbor f r i e n d o f E l l e n .
rhey saw each o t h e r d a i l y and t a l k e d o f t e n on t h e phone. Mary
WcJonigal t e s t i f i e d she could r e c o g n i z e E l l e n ' s v o i c e on t h e
ohone, she knew of ~ l l e n ' s l a n s t o spend t h e weekend w i t h de-
p
Lendant, and had, i n f a c t , loaned h e r a s u i t c a s e t o go on t h e
trip. She was allowed, over o b j e c t i o n and a f t e r argument i n
chambers t o t e s t i f y t h a t s h e t a l k e d on t h e phone w i t h E l l e n on
Yovember 5 about h e r weekend p l a n s ; t h a t E l l e n was a f r a i d t o
d r i v e a t n i g h t and t h a t she would n o t go on t h e weekend u n l e s s
h e r husband drove. The t r i a l c o u r t allowed t h e admission o f t h e
testimony under t h e state-of-mind e x c e p t i o n t o t h e h e a r s a y r u l e .
W agree.
e
- 12 -
The hearsay r u l e g e n e r a l l y dxcludes s t a t e m e n t s made aut
of c o u r t , where t h e s p e a k e r s a r e n o t p r e s e n t t o be examined.
There a r e e x c e p t i o n s made f o r s t a t e m e n t s and a c t s which s e r v e
t o e x p l a i n t h e a c t i n q u e s t i o n where t h e speaker i s i n c a p a b l e
of being p r e s e n t . Telephone c o n v e r s a t i o n s , a s i n t h i s c a s e , a r e
admissible. 22A C.J.S. Criminal Law $662(2) ( 4 ) ; Anno. 113 A.L.R.
268 303, $ V(b) ( 2 ) .
T h i s Court i n Thompson v. Steinkamp, 120 Mont. 475, 481,
187 P.2d 1018, allowed h e a r s a y testimony t o show i n t e n t . The
Court s a i d :
"' When i n t e n t i s a m a t e r i a l element of a d i s p u t e d
f a c t , d e c l a r a t i o n s of a decedent made a f t e r a s w e l l
a s b e f o r e an a l l e g e d a c t t h a t i n d i c a t e t h e i n t e n t
w i t h which he performed t h e a c t a r e a d m i s s i b l e i n
evidence a s a n e x c e p t i o n t o t h e h e a r s a y r u l e * 9~ * . " I
Testimony r e l a t i ~ ~ o t h e i n t e n t of a decedent a s t o
te
d e s t i n a t i o n o r t a k i n g a t r 2 p i s a d m i s s i b l e and i s one of t h e
state-oE-mind h e a r s a y e x c e p t i o n s . Mutual L i f e I n s . Co. v.
Hillmon, 145 U.S. 285, 12 S.Ct. 909, 36 L ed 706; People v.
McMonigle, 29- Cal.2d 730, 177 P.2d 745. I n a c a s e n e a r l y on
a l l f o u r s w i t h t h e i n s t a n t c a s e t h e Supreme Court of Oregon
i n S t a t e v. B a r t o l o n , 8 Ore.App.538, 495 P.2d 772, a d m i t t e d a
s t a t e m e n t by deceased of h e r i n t e n t t o go t o a c e r t a i n p l a c e .
I n t h e i n s t a n t c a s e arguments of b o t h c o u n s e l were made
t o t h e c o u r t i n chambers, q u e s t i o n s t o be propounded t o t h e '
w i t n e s s Mary McGonigal were d i s c u s s e d and many were dropped by t h e
county a t t o r n e y due t o d e f e n d a n t ' s o b j e c t i o n s . I n t h e end t h e
s o l u t i o n on a d m i s s i b i l i t y was i n t h e hands of t h e t r i a l c o u r t
whose sound d i s c r e t i o n i s s u b j e c t t o review only i n a c a s e of
m a n i f e s t abuse. None i s found h e r e . S t a t e v. Medicine B u l l , J r . ,
i j 2 Mont. 34, 445 P.2d 916.
Issue 7 is directed at hearsay testimony by a witness in a
telephone conversation with the county attorney. Defendant
contends it was error to permit James Fischer, defendant's
brother-in-law, to testify as to a hearsay conversation he had
with the county attorney. Fischer had given a statement to the
county attorney that the defendant had been hunting with him on
the night of November 16. The conversation referred to was
between James Fischer and the county attorney:
"Q. Prior to that time, Mr. Fischer, before any
conversation that we have been refreshing your
memory on on the statement, did you make any state-
ment to any law enforcement officer about going to
the Sidney-Wibaux road with the defendant and stopping
at a pay booth where you made a telephone call on
November 16, 1974? A. Go over that one more.
"Q. Prior to the time that --
let me go back a
minute. After you learned that the defendant had
been arrested and what he was charged with, what
did you do? Did you notify anybody? A. Not that
I know of really. If mean, if I did now you can
refresh my memory.
"Q. All right, that very evening, did you call the
County Attorney? A. I did, sir.
"Q. What did you say? A. I simply lied to you."
No error is found in the court's ruling. Where the witness
can answer the question propounded to him of his own knowledge,
and the value of his testimony does not depend in any degree
upon the veracity or competency of any other person, his answers
are not objectionable as hearsay. In State v. Crean, 43 Mont. 47,
59, 114 P. 603, a similar fact,case, this Court said:
"* * 9~ Our Code * * * provides: ' A witness can testify
to those facts only which he knows of his own knowledge',
etc. The term 'hearsay,' as used in the law of evidence,
signifies a11 evidence which is not founded upon the
personal knowledge of the witness from whom it is elicited
* * The principal objections to this species of evidence
are (1) that it is given under oath--that is, that
the person whose words are repeared was riot under o a r h - -
and (2) that such person is not subject to cross-examination.
That the evidence sought to be elicited by these questions
was not hearsay is apparent enough. The witness could ans-
wer every question of his own knowledge, and the value of
the testimony given did not depend in any degree upon the
veracity or competency of any other person. I I
See also: McGonigle v. Prudential Insurance Co., 100 Mont. 203,
Issue 8 relates to charges the state was erroneously per-
mitted to impeach its own witness without showing surprise.
James Fischer, defendant's brother-in-law, who made the
quoted statement in Issue 7, and who went with defendant over the
Sidney-Wibaux road to cover defendant's travels on the night of
the death, was a most reluctant witness for the state. This re-
luctance came after he called the county attorney and admitted
he lied and after voluntarily going to the county attorney's
office and giving a clarifying statement. That statement was taken
home by Fischer and his wife a week before the trial for any
corrections, but in spite of all of this he was a most evasive
witness. Finally, after two sessions in the judge's chamber and
some 30 pages of testimony, the trial court declared him a hostile
witness and allowed impeachment. The state contends that it was
refreshing the witness' memory, but since the defense's objection
is to impeachment, we cite the Montana sections pertinent:
Section 93-1901-8, R. C .M. 1947. "The party producing
a witness is not allowed to impeach his credit by
dvidence of bad,character, but he may contradict him
by other evidence, and may also show that he has made
dt other times statements inconsistent with his present
testimony as provided in section 93-1901-12.''
jection 93-1901-12, R.C.M. 1947. "A witness may also be
impeached by evidence that he has made, at other times,
statements inconsistent with his present testimony; but
before this can be done the statements must be related to
him, with the circumstances of times, places, and persons
present, and he must be asked whether he made such
statements, and if so, allowed to explain them. If
the statements be in writing, they must be shown to
the witness before any question is put to him concerning
them."
Here, Fischer voluntarily gave a statement correcting a
previous statement and was also allowed time to correct same. He
failed to tell the truth and the trial judge, from all the
testimony he heard and from what he saw of the witness, ruled
the county attorney was surprised. We find no merit in defendant's
Issue 8.
Issue 9 questions whether there was insufficient evidence
at the close of the state's case to grant a motion to dismiss.
Defendant directed his motion on an alleged failure of the
state to establish his presence in the vicinity or as to the
evidentiary value of the attempt by defendant to establish an
alibi. The court recognized the problems of the case at that
point of the trial and ruled there was sufficient circumstantial
evidence before the jury with (I) the double indemnity insurance,
(2) the proposal of marriage to the girl £rid,, (3) the alibi
attempt, and ( ) the statement of the defendant made to Mary
4
McGonigal on the day of Ellen's funeral.
Defendant cites authority that there must be substantial
proof to convict and suspicion is not enough. He relies on State
v. McCarthy, 36 Mont. 226, 92 P. 521; State v. Powers, 39 Mont.
259, 102 P. 583; State v. Brower, 55 Mont.349, 117 P. 241; State
v. Merseal, 167 Mont. 409, 538 P.2d 1366, 32 St.Rep. 823. We
find the cases cited unrelated to the issue of alibi and have
little value to the facts here.
The thrust of defendant's motion was directed at the alibi
testimony. We find the rule on such testimony stated in People
v. Wayne, 41 Cal.2d 814, 264 P.2d 547, 551, where it was said:
" ' 9 ~** But where a m a t e r i a l f a c t i s e s t a b l i s h e d
by evidence and i t i s shown t h a t a d e f e n d a n t ' s
testimony a s t o t h a t f a c t was w i l f u l l y u n t r u e ,
t h i s circumstance n o t only f u r n i s h e s a ground f o r
d i s b e l i e v i n g o t h e r testimony of t h i s defendant ***
b u t a l s o t e n d s t o show consciousness of g u i l t o r
l i a b i l i t y on h i s p a r t and h a s p r o b a t i v e f o r c e i n
connection w i t h o t h e r evidence on t h e i s s u e of such
g u i l t o r l i a b i l i t y . Such f a l s e testimony i s i n t h e
n a t u r e of a n admission from which o t h e r evidence
g u i l t o r l i a b i l i t y may be i n f e r r e d . ' "
See a l s o : 2 Wigmore, Evidence, 5 278.
Here, t h e c o u r t n o t e d t h e c i r c u m s t a n t i a l evidence b e f o r e
t h e j u r y and found i t s u f f i c i e n t t o o v e r r u l e d e f e n d a n t ' s motion
t o dismiss. W f i n d no e r r o r i n t h e c o u r t ' s r u l i n g f o r n o t
e
only was t h e r e an a t t e m p t t o e s t a b l i s h an a l i b i b u t t h e r e was
testimony t h a t (1) placed defendant a t t h e s c e n e , ( 2 ) e s t a b l i s h e d
motive f o r t h e crime, ( 3 ) showed deceased f e a r e d n i g h t d r i v i n g ,
(4) t h e medical testimony on t h e c a u s e of d e a t h , and (5) Mary
~ c G o n i g a l ' stestimony a s t o t h i s c o n v e r s a t i o n w i t h defendant on
t h e day of ~ l l e n ' sf u n e r a l :
"Q. Would you c i t e a s n e a r a s p o s s i b l e t h e conversa-
t i o n ? A. He s a i d : 'Mary, I am a w f u l l y s o r r y about
your s u i t c a s e and I want t o r e p l a c e i t ' and I t o l d
him i t was a l l r i g h t .
"Q. Did you have any r e a c t i o n t o t h a t ? A. Yes, I d i d
because nobody knew I loaned i t . I I
See: S t a t e v . Cor, 144 Mont. 323, 396 P.2d 86.
I s s u e 10 contends e r r o r because t h e t r i a l c o u r t f a i l e d t o
d i s m i s s a t t h e c l o s e of t h e s t a t e ' s c a s e on t h e b a s i s t h a t t h e
medical evidence a s t o d e a t h f a i l e d t o s a t i s f y t h e c i r c u m s t a n t i a l
dvidence t e s t . While t h e two p a t h o l o g i s t s could n o t r u l e o u t
a blow t o t h e neck from t h e s t e e r i n g wheel, they b o t h found o t h e r
ovidence of damage t h a t t h e t h r o a t f r a c t u r e s would have been i n
d i i f e r e n t l o c a t i o n s had t h e r e been a blow t o t h e windpipe. In
c h a t c a s e t h e f r a c t u r e s would have been a l o n g t h e s i d e s , n o t t h e
front. Both p a t h o l o g i s t s t e s t i f i e d t h a t E l l e n was dead b e f o r e
the fire began and in their opinions death was caused by
asphyxiation, due to manual strangulation.
Defendant cites State v. Allen, 34 Mont. 403, 415, 87 P.
177, for the rule for admitting circumstantial evidence. There
the Court speaking to an instruction, noted:
"* * * Reading this paragraph with the rest of the
charge, we do not think the jury could have been
mislead; yet, it should have stated that the jury
should convict only if the circumstances were of such
a character as to satisfy the minds of the jury of the
guilt of the defendant beyond a reasonable doubt to
the exclusion of every reasonable hypothesis other than
the guilt of the defendant." (Emphasis added.)
While we do r o disagree with this citation in an early case
it
of this Court, we find the evidence here could well have satis-
fied the minds of the jurors "to the exclusion of every reason-
-hypothesis."
able This Court in State v. Fitzpatrick, 163 Mont.
220, 227, 516 P.2d 605, stated:
"* * * this Court held in reviewing a case the
Court is to give to each circumstance in evidence
-
all the legal effect toward guilt which it could
support to see whether a rational conclusion of
innocence was excluded. * **"
See: State v. Radi, Mont . , 542 P.2d 1206, 32 St.Rep.
1143; State v Cor, supra; State v. DeTonancour, 112 Mont. 94, 98,
.
112 P.2d 1065; State v. Warrick, 152 Mont. 94, 4 6 P.2d 916.
4
Issue 11 alleges that hearsay and conclusion testimony was
permitted by the sheriff. Over the objections of the defendant
the sheriff was allowed to testify to what was clearly hearsay and
conclusion answers in regard to matters concerning-whetheror not
Ross Wilson was involved. Allowing the sheriff to testify in the
manner he did was improper and error. However, we do not find it
so prejudicial as to require reversal. Before this Court will
reverse a judgment, prejudice must be shown. State v. Totterdell,
135 Mont. 56, 336 P.2d 696; State v. Hay, 120 Mont. 573, 194
~ e i e n d a n c ' sZssue 1 2 a l l e g e s t h e s h e r i f f ' s s t a t e m e n t s ,
d i s c u s s e d i n I s s u e 11, were r e p e t i t i o u s . W f i n d no e r r o r .
e The
rnatter i s d i s c r e t i o n a r y w i t h t h e t r i a l c o u r t and no s u b s t a n t i a l
r i g h t s of defendant were damaged.
I s s u e 13 a l l e g e s t h e c o u r t e r r e d i n r e f u s i n g t o a l l o w t h e
j u r y tu view a "burn f i l m t ' o f f e r e d by t h e d e f e n s e . Defense c a l l e d
ds i t s w i t n e s s D r . F. D. Lee, a p h y s i c s t e a c h e r from B a l l S t a t e
U n i v e r s i t y , Muncie, I n d i a n a , who t e s t i f i e d a s t o t h e speed of
t h e d e a t h v e h i c l e and t h e i n j u r i e s t h a t could have r e s u l t e d .
The d e f e n s e t h e n a t t e m p t e d t o p u t i n t o evidence a f i l m which de-
monstrated s i x d i f f e r e n t c a r b u r n i n g s , and a f i l m t h a t had been
prepared t o demonstrate what could happen a s f a r a s f i r e s were
concerned when c a r s were involved i n c o l l i s i o n s . Defendant
a r g u e s t h i s evidence was v i t a l t o t h e d e f e n s e i n view of t h e
testimony given by s t a t e w i t n e s s e s and t h a t under Montana law
i c was e r r o r n o t t o a l l o w t h e j u r y t o s e e t h e s e f i l m s , c i t i n g
Gobel v . R i n i o , 122 Mont. 235, 238, 200 P.2d 700.
Here, t h e c o u r t viewed t h e f i l m i n chambers and noted
t h a ~ l l s i x c o l l i s i o n s d e a l t w i t h r e a r end c o l l i s i o n s where
a
t h e gas t a n k s were r u p t u r e d and noted t h a t t h e r e was no r u p t u r e
i n the instant case, f u r t h e r t h a t t h e r e was no e v i d e n c e of a
f u e l l i n e r u p t u r e o r a showing of g a s b u r n i n g underneath t h e
a . The t r i a l c o u r t denied a showing o f t h e f i l m s .
T h i s Court c o n s i d e r e d t h e same i s s u e i n Leary v. Kelly
!?ipe Co. , Mont . , 549 P.2d 813, 817, 33 St.Rep. 413,
411, i n v o l v i n g t h e n e g l i g e n t unloading of a I t r u c k where t h e
t l r l a l c o u r t excluded evidence on a showing of t h e p r o p e r method
J E l o a d i n g a t r u c k , and s a i d :
"These photographs do n o t d e y i c c A L L Y conditiori
r e l a t e d t o t h i s c o n t r o v e r s y . The p i c t u r e d t r u c k s
a r e d i f f e r e n t t r u c k s loaded d i f f e r e n t l y from t h e
F-B t r u c k and t r a i l e r involved i n t h i s c a s e . W e
f i n d no e r r o r i n e x c l u d i n g them."
Here, t h e f i l m s involved experiments w i t h d i f f e r e n t and s m a l l e r
vehicles i n crash s i t u a t i o n s e n t i r e l y d i f f e r e n t than t h e f a c t s
here. Leary c o n t r o l s and a s noted i n Gobel, c i t e d by d e f e n d a n t :
"This c o u r t i s committed t o t h e view t h a t t h e t r i a l
c o u r t has a wide d i s c r e t i o n i n a d m i t t i n g any diagram,
map o r photograph * * *."
D e f e n d a n t ' s I s s u e 14 concerns t h e c o u r t ' s d e n i a l of d e f e n d a n t ' s
o f f e r e d i n s t r u c t i o n No. 14 a s t o t h e r e q u i r e d i n t e n t f o r d e l i b e r a t e
homicide. Defendant's proposed i n s t r u c t i o n No. 14 r e a d s :
"You a r e i n s t r u c t e d t h a t homicide which i s p e r p e t r a t e d
by any kind of w i l l f u l , d e l i b e r a t e and p r e m e d i t a t e d
k i l l i n g i s committed purposely o r knowingly and i s
d e l i 6 e r a t e homicide.
"To c o n s t i t u t e t h i s type of crime, t h e k i l l i n g must
be accompanied and must be preceded by a c l e a r
d e l i b e r a t e i n t e n t t o t a k e l i f e , an i n t e n t t o k i l l
which must be t h e r e s u l t of d e l i b e r a t i o n and premedi-
t a t i o n s o t h a t i t must have been formed upon a p r e e x i s t i n g
r e f l e c t i o n and n o t under a sudden h e a t of p a s s i o n o r
o t h e r c o n d i t i o n such a s p r e c l u d e s t h e i d e a of d e l i b e r a t i o n . II
I t i s d e f e n d a n t ' s p o s i t i o n t h a t b e f o r e he can be c o n v i c t e d
of t h i s crime t h e s t a t e must beyond a r e a s o n a b l e doubt s a t i s f y
i t s burden t h a t defendant had a g u i l t y mind, a g u i l t y o r wrongful
purpose, a c r i m i n a l i n t e n t . I n s u p p o r t he r e l i e s upon a number of
cases b u t p r i n c i p a l l y t h e h o l d i n g i n M o r i s s e t t e v. United S t a t e s ,
342 U.S. 246, 96 L ed 288, 72 S.Ct. 240. Defendant a r g u e s t h a t
under t h e i n s t r u c t i o n s g i v e n by t h e c o u r t t h e n e c e s s i t y f o r
t h e j u r y t o f i n d defendanfs mens r e a ( c r i m i n a l i n t e n t ) i s e l i m i n a t e d .
F u r t h e r t h a t knowingly and p u r p o s e l y , a s d e f i n e d by t h e Montana
Criminal Code, and a s g i v e n i n t h e c o u r t ' s given i n s t r u c t i o n s do
n o t i n c l u d e t h i s v i t a l element and t h e r e f o r e f a i l u r e t o g i v e d e f e n a n t ' s
proposed i n s t r u c t i o n No. 14 was e r r o r .
The statute involved ,is section 94-5-102, R.C.M. 1947,
the pertinent part of which reads:
"~xceptas provided in section 94-5-103(1) (a) ,
criminal homicide constitutes a deliberate homi-
cide if:
"(a) it is committed purposefully or knowingly".
The Commission Comment states:
"Section 94-5-102 relates only to conduct which is
done deliberately; that is, purposely or knowingly.
*"
* * (Emphasis supplied.)
What the legislature did, in enacting the Montana Criminal
Code 1973, was to reduce the difficulty in this area by arti-
culating general principles that shall apply when the definitions
of a particular offense are ambiguous. The culpability re-
quirements adhere to familiar concepts, purposely, knowingly.
Upon the whole it is the person who means to do the thing that
constitutes a crime , knows he is doing it, and knows that there
is a substantial and unjustifiable risk in doing it, whose
conduct warrants condemnation of the kind from which conviction
results.
The problem of scienter, guilty knowledge, goes to the
question of culpability generally and has been usually dealt with
by the concept of -- While culpability is variously stated
mens rea.
in criminal statutes in terms such as "willful","willfully and
unlawfully", "with intent to" and other phrases, these exact
words are not necessary in determining whether the statute is
vague. The United States Supreme Court has held in a series
of cases that a statute will not be evaluated on its face, but
... , ..
- 21 -
only i n t h e context with which a defendant i s , c h a r g e d . United
S t a t e s v. P e t r i l l o , 332 U.S. 1, 91 L ed 1877, 67 S.Ct. 1538.
It has a l s o looked i n t o t h e requirement of s c i e n t e r i n t h e
s t a t u t o r y d e f i n i t i o n of t h e crime i n words l i k e " ~ i l l f u l l y ' ~ ,
" i n t e n t i o n a l l y 1 ' and "knowingly" a s overcoming t h e v i c e of vague-
ness. Boyce Motor Lines v. United S t a t e s , 342 U.S. 337, 9 1 L ed
367, 72 S.Ct. 329.
Under t h e provisions of s e c t i o n 94-5-102, R.C.M. 1947, t h e
necessary requirements f o r "mens rea" and "criminal i n t e n t " a r e
embodied i n the use of t h e new language of t h e s t a t u t e "purposely"
and "knowingly". The c o u r t ' s given I n s t r u c t i o n No. 1 7 defined both
II purposely" and "knowingly" i n terms s e t f o r t h i n s e c t i o n 94-2-
101, R.C.M. 1947. I t i s defendant's contention t h e homicide s t a t u t e
r e q u i r e s more t o be c l e a r . W do n o t agree, f o r i t i s c l e a r from
e
t h e Commission Comment t h a t it was t h e l e g i s l a t i v e i n t e n t t o
r e p l a c e such terms a s " d e l i b e r a t e l y " .
This Court i n S t a t e v. Klein, Mont . , 547 P.2d
75,78, 33 St.Rep. 283,288, spoke t o t h i s i s s u e . I n Klein, a
robbery c a s e , i t was a l l e g e d t h e t r i a l c o u r t committed e r r o r i n
r e f u s i n g defendant's i n s t r u c t i o n d e f i n i n g "feloniously". There
we r e f e r r e d t o t h e Annotator's notes under s e c t i o n 94-2-101,
Montana Criminal Code of 1973, Annotated, which s t a t e d :
"A major problem of p r i o r Montana criminal law
was t h e use i n t h e code of numerous terms a f f e c t i n g
c u l p a b i l i t y t h a t were l a r g e l y undefined. Under t h e
new Code, t h e mental s t a t e s required f o r various
degrees of c u l p a b i l i t y a r e defined c a r e f u l l y i n a
hierarchy. 'Purposely' i s t h e most culpable s t a t e
and implies a design. This term r e p l a c e s a term
frequently used i n t h e o l d code, ' i n t e n t i o n a l l y '
J
: 3c **"
The Court then stated:
"It is clear that the legislature intended the words
I purposely' and 'knowingly' would substitute for the
word ' felonious' (i.e. intentionally) as used in the
old code.* * *"
Here, the court gave defendant's offered instruction No.
17, defining both "purposely" and "knowingly". We find no error.
Judgment of the trial court is affirmed.
We Concur:
,--
--7