No. 91-148
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
STATE OF MONTANA,
plaintiff and Respondent,
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LEO F. STAAT,
Defendant and Appellant-
APPEAL FROM: District court of the Fourth Judicial District,
In and for the County of Ravalli,
The Honorable Ed McLean, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Noel K. Larrivee (argued), Larrivee Law Office,
Missoula, Montana
For Respondent:
Honorable Marc Racicot, Attorney General,
Paul D. Johnson (argued), Assistant Attorney
General, Mark Murphy, Assistant Attorney
General, Helena, Montana: George Corn, Ravalli
County Attorney, Hamilton, Montana
Submitted: October 23, 1991
Decided: November 21, 1991
Filed:
Justice William E. Hunt, Sr., delivered the opinion of the Court.
Appellant Leo G. Staat appeals from a jury verdict and trial
court orders of the Fourth Judicial District Court, Ravalli County,
finding appellant guilty of the offense of tampering with or
fabricating evidence in violation of , MCA
§ 45- 7- 207 (1)(a) (1989),
a felony.
We affirm.
Appellant raises five issues on appeal.
1. Whether the District Court erred in denying appellant's
motion to suppress a confession made after a polygraph examination
on the grounds that plaintiff's police officers' expressed or
implied conduct resulted in a "custodial interrogation."
2. Whether the District Court erred in overruling
appellant's objection to plaintiff's Exhibit No. 5, which consisted
of a secretly taped interrogation in appellant's home, violating
appellant's right to privacy under Mont. Const. art. 11, g 10, and
appellant's right to be free from unreasonable searches and
seizures under Mont. Const. art. 11, 5 11.
3. Whether the District Court erred in allowing a conviction
without any evidence of the offense charged other than appellant's
confession.
4. Whether the District Court erred by not directing a
verdict for appellant based on plaintiff's failure to offer
sufficient evidence proving the necessary mental state for the
crime charged.
2
5. Whether the District Court erred in denying appellant's
motion for a new trial on grounds that the prosecutor made
inflammatory remarks during closing argument which were not
supported by the record, thereby prejudicing appellant's right to
a fair trial.
On the morning of December 16, 1989, appellant discovered the
body of a close friend, Mary Higgins, at her residence in
Stevensville. She had been the victim of a deliberate homicide.
On the kitchen table, appellant discovered a note addressed to him
by the victim. According to appellant, the note stated
"[slweetheart, I'm out for a walk, wait for me to come back."
Appellant picked up the note and destroyed it. Appellant then
notified the police from a local drug store about the killing. A
full-scale police investigation was quickly launched.
The police questioned appellant on at least five separate
occasions. The first occurred on December 16, 1989, in a police
vehicle at the scene of the crime. Detective Maus interviewed
appellant concerning the discovery of the body. Because the police
discovered footprints and tire tracks left in the snow, appellant's
shoes and car tires were photographed. This evidence indicated
that appellant drove up to the victim's house and walked to her
door twice before notifying the police.
Appellant was questioned at his residence by police officers
on December 26, 1989, January 2, 1990, and on January 12, 1990. At
the conclusion of the January 12, 1990, interrogation, Detective
3
Horsfall requested that appellant submit to a polygraph
examination. At first, appellant declined, but after repeated
requests by the detective, appellant consented.
Throughout these interrogations the police secretly recorded
their conversations with appellant by hiding a microphone in an
officer's lapel. Appellant was unaware that he was being taped
during these interrogations.
On the evening of January 16, 1990, a polygraph examination
was conducted upon appellant in the basement of the Ravalli County
Sheriff's Office. The entire examination lasted approximately four
hours. After the polygraph, the police, dressed in plain clothes,
began interrogating appellant. It was at that time that appellant
confessed to reentering the victim's house and taking and
destroying the note. At no time throughout the investigation, and
specifically not before, during, or after the polygraph
examination, did the police read appellant the Miranda warning.
Two months later appellant was arrested and charged with tampering
with or fabricating evidence in violation of 5 45-7-207(1) (a), MCA
(1989).
On September 5, 1990, appellant filed a motion to suppress the
statements he had made to investigating officers following the
polygraph examination because he was never given a Miranda warning.
On October 25, 1990, a suppression hearing was held. The District
Court denied the motion on November 19, 1990. On November 26,
1990, a jury trial commenced. The trial concluded the following
4
day with the jury finding appellant guilty. On December 10, 1990,
appellant moved for a new trial which was denied by the District
Court. Appellant was given a three year deferred sentence. Notice
of appeal was timely filed on January 24, 1991.
I
Whether the District Court erred in denying appellant's motion
to suppress on the grounds that plaintiff's police officers'
expressed or implied conduct resulted in a "custodial
interrogation.
The United States Supreme Court has ruled that states may not
use confessions or admissions resulting from "custodial
interrogation" unless the proper Miranda warnings have been given.
Miranda v. Arizona (1965), 384 U . S . 436, 444, 8 6 S.Ct. 1 6 0 2 , 1612,
16 L.Ed.2d 694, 706. The Court defined "custodial interrogation"
as "questioning initiated by law enforcement officers after a
person has been taken into custody or otherwise deprived of his
freedom of action in any significant way." Miranda, 3 8 4 U.S. at
444. Before determining whether the police should have given the
appellant the Miranda warning, we must first determine whether
there was "custodial interrogation."
This Court has established the following guidelines to
determine what constitutes llcustodial
interrogation." If a person
has no free right to leave, then the interrogation is custodial.
State v. Ellinger (1986), 223 Mont. 3 4 9 , 355, 725 P.2d 1201, 1204.
"Custodial interrogation" can result from the expressed or implied
5
conduct of police officers. State v. Osteen (1985), 216 Mont. 258,
265, 700 P.2d 188, 193. This Court looks to whether a "reasonable
person" would not feel free to leave and has used six factors to
determine "custodial interrogation."
[Pllace of interrogation, the time of interrogation,
persons present during interrogation, whether Miranda
warnings were gratuitously given, the length and mood of
interrogation, and whether or not the suspect was
arrested following questioning.
State v. Lapp (1983), 202 Mont. 327, 331, 658 P.2d 400, 403.
Even though a suspect is questioned by police officers in a
station house, the interrogation is not necessarily custodial
unless there is a significant restriction of personal liberty.
State v. Dannels (1987), 226 Mont. 80, 87, 734 P.2d 188, 193.
"Any interview of one suspected of a crime by a police
officer will have coercive aspects to it, simply by
virtue of the fact that the police officer is part of a
law enforcement system which may ultimately cause the
suspect to be charged with a crime. But police officers
are not required to administer Mirntidcl warnings to
everyone whom they question. Nor is the requirement of
warnings to be imposed simply because the questioning
takes place in the station house, or because the
questioned person is one whom the police suspect. Miintido
warnings are required only where there has been such a
restriction on a person's freedom as to render him Itin
custody. ''I'
Dannels, 734 P.2d at 193 (quoting Oregon v. Mathiason (1977), 429
U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714, 719).
Miranda warnings might not be required even when a person is
the focus of the investigation. Dannels, 734 P.2d at 190-91. The
determination of what constitutes llcustodial
interrogation" is made
on a case-by-case analysis.
6
In this case, the facts and circumstances did not rise to the
level of llcustodial interrogation.I' Appellant stated he was
unconcerned about taking a polygraph. He volunteered to take the
polygraph and drove to the sheriff's office without a police
escort. The police did not threaten appellant with arrest, nor was
he ordered to take the polygraph. Appellant was not placed under
arrest either before or after the polygraph examination. After the
post-polygraph interview, he was free to leave. None of the
officers involved with the examination were in uniform. Toward the
end of questioning, the record reflects that the appellant and the
officers were joking and making idle conversation. After the
examination, appellant went home. Moreover, the purpose of the
polygraph examination was to develop information regarding the
Higgins homicide, not to find information about tampering with the
evidence. We have noted our extreme displeasure with the use of
polygraph examinations and results in criminal trials and forbade
their use in any proceeding in a court of law in Montana. State v.
Staat (Mont. 1991), 811 P.2d 1261, 1262, 48 St.Rep. 331. We hold
that in this case, and under these facts, the District Court did
not err in allowing appellant's confession into evidence.
I1
Whether the District Court erred in overruling appellant's
objection to plaintiff's Exhibit No. 5, which consisted of a
secretly taped interrogation in appellant's home, violating
appellant's right to privacy under Mont. Const. art. 11, § 10, and
7
appellant's right to be free from unreasonable searches and
seizures under Mont. Const. art. 11, § 11.
In State v. Brown (1988), 232 Mont. 1, 755 P.2d 1364, the
majority of this Court held:
[Tlhat warrantless consensual electronic monitoring of
face-to-face conversations by the use of a body wire
transmitting device, performed by law enforcement
officers while pursuing their official duties, does not
violate the right to be free of unreasonable searches and
seizures nor the privacy section of the Montana
Constitution.
Brown, 755 P.2d at 1369.
All that is required is that one party to the conversation
clearly consent to the monitoring and that the consent be "freely
made and without compulsion." Brown, 755 P.2d at 1369. The
consent may be given by a police officer or an informant. Brown,
755 P.2d at 1369. Evidence obtained in this manner is admissible
in a criminal trial. We hold that the District Court did not err
in failing to suppress Exhibit No. 5.
I11
Whether the District Court erred in allowing a conviction
without any evidence of the offense charged other than appellant's
confession.
Appellant's third issue on appeal is that appellant cannot be
convicted solely on the basis of his extrajudicial confession.
Section 46-20-104(4), MCA (1989), states that failure to make a
timely objection constitutes a waiver of the objection. The record
does not show that defense counsel made an objection on corpus
8
delicti grounds, and he does not assert any of the exceptions
listed in 5 46-20-701(2), MCA (1989).
In addition, at the suppression hearing appellant admitted to
taking the note. A confession in criminal law is a voluntary
statement made by a person charged with a crime acknowledging
himself to be guilty of the offense charged. Black's Law
Dictionary 369 (4th ed. rev. 1968). A judicial confession is made
before a magistrate or court during the course of the legal
proceedings. Black's Law Dictionary 369 (4th ed. rev. 1968). The
prosecution directly asked appellant whether he hadtakenthe note.
The appellant answered yes. This amounted to a judicial confession
and no independent corroboration is required. 7 Wigmore on
Evidence 5 2071 (Chadbourn Rev. 1978).
IV
Whether the District Court erred by not directing a verdict
for appellant based on plaintiff's failure to offer sufficient
evidence proving the necessary mental state for the crime charged.
Section 45-7-207, MCA (1989), states in pertinent part:
(1) A person commits the offense of tampering with or
fabricating physical evidence if, believing that an
official proceeding or investigation is pending or about
to be instituted, he:
(a) alters, destroys, conceals, or removes any record,
document, or thing with purpose to impair its verity or
availability in such a proceeding or investigation
....
9
A person acts "with purpose" "if it is his conscious object to
engage in that conduct or to cause that result." Section
45-2-101(58), MCA (1989).
Defense counsel admits appellant believed that an
investigation was about to begin, and that appellant destroyed the
note. However, appellant argues that he acted with the purpose of
avoiding unfavorable comment by the news media toward the victim,
not to imDair the investigation. We disagree.
The compiler's comments to 5 45- 7- 207, MCA (1989), state that
all that is required is that the accused believe an official
proceeding or investigation is pending or imminent and that he act
with the purpose of impairing the availability or verity of the
physical evidence.
The record reflects appellant knew a serious crime had been
committed. He failed to notify the police until after he had
destroyed the note. Although his ostensible reason for removing
and destroying the note may have been to protect the victim's
reputation, his purpose was to prevent the note's discovery during
the homicide investigation that he realized would follow his report
of the crime. For example, when asked why he took the note,
appellant stated "[i]t goes back quite a while -- I dealt with law
enforcement here." This suggests that the appellant's conscious
object was to make the note unavailable to police officials thereby
impairing the investigation.
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We will not overturn a conviction when the evidence in light
most favorable to the state "would allow mly rational trier of fact
to find the essential elements of the crime beyond a reasonable
doubt." State v. George (1983), 203 Mont. 124, 130, 660 P.2d 97,
100 [emphasis in original]. We hold there was sufficient evidence
on the record for the jury to find that the appellant acted with
the purpose of impairing the homicide investigation beyond a
reasonable doubt.
V
Whether the District Court erred in denying appellant's motion
for a new trial on grounds that the prosecutor made inflammatory
remarks during closing argument, which were not supported by the
record, thereby prejudicing appellant's right to a fair trial.
Appellant contends the State made certain comments concerning
the nature of the Higgins homicide which inflamed the jury and
denied appellant's right to a fair trial. Defense counsel moved
for a new trial partially upon this basis.
Section 46-16-702(1), MCA (1989), states a motion for a new
trial may be granted by a district court "if required in the
interest of justice." The decision is left to the sound discretion
of the trial court judge. Absent an abuse of discretion, denial of
a motion for a new trial will not be disturbed on appeal. State v.
Rose (1980), 187 Mont. 74, 83, 608 P.2d 1074, 1079.
A prosecutor may comment on the following during closing
argument:
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I1[T]he gravity of the crime charged, the volume of
evidence, credibility of witnesses, inferences to be
drawn from various phases of evidence, and legal
principles involved, to be presented in instructions to
the jury .... II
State v. Dupre (1982), 200 Mont. 165, 175, 650 P.2d 1381, 1386
(quoting State v. Thompson (1978), 176 Mont. 150, 157, 576 P.2d
1105, 1109). An appellant must also allege that the prejudicial
prosecutorial conduct resulted in a substantial right being denied.
State v. Nichols (1987), 225 Mont. 438, 448, 734 P.2d 170, 176.
The record shows defense counsel made only one objection
during the State's closing argument on the grounds that the
evidence referred to, i.e., three fingerprints, was not in the
record. Where the party opposes the admission of evidence and the
trial court sustains the objection, strikes the evidence from the
record, and instructs the jury to disregard the evidence, "'error
committed by its introduction is presumed cured. ' I 1 State v. Seaman
(1984), 236 Mont. 466, 476, 771 P.2d 950, 956 (quoting State v .
Brush (1987), 228 Mont. 247, 251, 741 P.2d 1333, 1335). The trial
judge gave a curative instruction and admonished the jury. This
cured the error.
Because this case involved tampering with evidence of a
homicide investigation, it was proper forthe State, during closing
argument, to comment on the seriousness of the crime being
investigated and the importance of preserving the criminal scene
exactly the way the appellant found it. We hold that the comments
made by the State did not deny the appellant's right to a fair
12
trial and that the District Court did not abuse its discretion in
not granting a new trial.
We affirm.
/
We concur: /
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Justice Terry N. Trieweiler specially concurring.
I concur with the result of the majority's opinion. However,
I do not agree with all of the majority's conclusions.
I specifically disagree with the conclusion that the
government may send an agent into a private citizen's home and
secretly tape-record a conversation with that citizen without his
knowledge or permission, and without a duly issued warrant.
I do not agree with the majority's conclusion that a person's
privacy can be invaded to that extent without violating Mont.
Const. art. 11, 5 10.
I agree with this Court's prior decision in State v. Brackmart
(1978), 178 Mont. 105, 582 P.2d 1216, and Justice Hunt's dissent in
Statev. Brown (1988), 232 Mont. 1, 755 P.2d 1364, wherein he made the
following observation regarding the right to privacy in Montana:
The majority feels constrained by the decisions of the
United States Supreme Court. But this state, through the
adoption of the right to privacy provision of our state
constitution, has elected to give Montana citizens even
greater guarantees of privacy than the federal
constitution gives. Why the majority chooses to ignore
this explicit guarantee puzzles me. .
. .
....
The decision made today is indeed a sad one for the
citizens of the state of Montana. The majority may have
unwittingly opened the doors for the erosion of any
protection the privacy clause gives individuals of this
state. The result may be required by the current posture
of federal law but it certainly was not intended by the
framers of our state constitution.
Brown, 755 P.2d at 1372 (Hunt, J., dissenting).
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Even though I conclude that the secretly taped conversation of
the defendant in his own home violated his constitutional right to
privacy under our State Constitution, I would affirm his
conviction. Section 46-20-701(2), MCA, provides that "[alny error,
defect, irregularity, or variance which does not affect substantial
rights shall be disregarded."
I read the entire transcript of the conversation that was
secretly recorded in the defendant's home. It is basically an
innocuous conversation during which the defendant and his wife were
asked to submit to a polygraph examination. There were no remarks
which reflected in any way on the defendant's guilt or innocence.
Therefore, even though I would exclude the results of a
secretly taped conversation in a person's home, I conclude that
there was no prejudice to the defendant from the admission of this
statement in this case.
For these reasons, I concur in the majority's decision to
affirm the judgment of the District Court.
,/
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November 21, 1991
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
NOEL K. LARRIVEE
Larrivee Law Office
334 E. Broadway
Missoula, MT 59802
Hon. Marc Racicot, Attorney General
Paul Johnson, Asst. Atty. Gen.
Justice Building
Helena, MT 59620
George Corn
County Attorney
Ravalli County Courthouse, Box 5008
Hamilton, MT 59840
ED SMITH