NO. 93-006
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
STATE OF MONTANA,
Plaintiff and Respondent,
-vs.-
PAUL MYRHOW,
Defendant and Appellant.
APPEAL FROM: District Court of the Fifth Judicial District,
In and for the County of Jefferson,
The Honorable Frank M. Davis, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Gregory A. Jackson; Jackson & Rice, Helena, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General; Paul D.
Johnson, Assistant Attorney General Helena, Montana
Joseph E. Thaggard, Special Deputy Jefferson County
Attorney, Helena, Montana
Submitted on Briefs: July 1, 1993
Decided: December 6, 1993
Filed:
Justice John Conway Harrison delivered the Opinion of the Court.
This is an appeal from the District Court of the Fifth
Judicial District, Jefferson County, the Honorable Frank M. Davis
presiding. Defendant Paul Myrhow (Myrhow) appeals the denial of
his motion to dismiss for failure to state an offense. Myrhow
contends that the State of Montana (State) granted him immunity
from prosecution for deviate sexual conduct in exchange for his
cooperation in the investigation of another sex offender. We
affirm.
The issues are:
1. What was the scope of the agreement not to prosecute
between the State and Myrhow?
2. Did the State grant Myrhow statutory immunity from
prosecution for providing information which was used to convict a
sex offender?
3. Did the District Court err by ruling that Myrhow could be
convicted for deviate sexual conduct occurring prior to June 28,
1989?
During his school days in Boulder, Montana, Myrhow was one of
several sexual abuse victims of Douglas Marks, a Boulder school
teacher. In 1984, Myrhow, then 18, complained to Jefferson County
Deputy Sheriff, D.D. Craft, about Marks' deviate sexual conduct
with Myrhow and other adolescents. Later in 1984 or 1985, Myrhow
approached Jefferson County Sheriff, Tom Dawson, with the same
complaint.
By June 1989, Marks had not been charged with any crimes. At
2
that time, Myrhow met with Dr. Phillip Pallister, a family friend,
revealing that Marks had molested him for years. He wanted to stop
Marks from molesting other juveniles. On June 23, 1989, Pallister
and Myrhow met with Allen LeMieux, the former Jefferson County
Attorney and another of Myrhow's friends. After discussing Marks,
they arranged a June 26th meeting with Rick Moe, the superintendent
of schools. The meeting with the superintendent prompted a meeting
with Jefferson County Attorney, Richard Llewellyn, on June 28,
1989. Attending that meeting were Myrhow, Pallister, LeMieux and
Llewellyn.
What occurred during the June 28, 1989, meeting is in dispute.
It is clear from the record that Myrhow, Pallister and Lemieux
informed Llewellyn of their frustration with the progress of the
Marks investigation. According to Pallister and Lemieux, tempers
flared. Myrhow wanted Marks' deviate sexual activities stopped.
He revealed his involvement with Marks and agreed to cooperate in
the Marks investigation. However, Myrhow never revealed that he,
too, was an offender.
Myrhow agreed to furnish Llewellyn with a list of twenty to
twenty-five other victims, provided that he first secured the
victims' permission and provided that he be granted immunity.
Llewellyn denies that Myrhow ever mentioned the word *'immunity** at
the meeting; however, Pallister, Lemieux and Myrhow testified that
Myrhow asked for immunity and Llewellyn granted the request.
Although the grant was not reduced to writing, Llewellyn informed
Myrhow that Myrhow would not be excused for serious offenses, such
as bank robberies or murders.
3
In exchange for furnishing the list of names, Llewellyn agreed
not to prosecute Myrhow for certain activities which Llewellyn
doubted were even offenses. Those activities were: 1) Myrhow's
deviate sexual conduct with Marks; 2) Myrhow's voyeurism--covertly
watching Marks perform deviate sexual acts with another adolescent;
3) Myrhow's conspiring to kill Marks by blowing him up with
dynamite; 4) Myrhow's threatening Marks with a pistol; and 5)
Myrhow's breaking into the elementary school and placing a tape
recorder in the nurses' quarters to record conversations between
Marks and other children.
At that meeting, Pallister voiced his concern that the
Jefferson County Sheriff had not vigorously investigated Marks in
the past. Therefore, Llewellyn suggested the investigation be
turned over to the Montana Attorney General's office. At no point
during that meeting or at any other time did Myrhow ever mention
that he, too, had committed sexual offenses against adolescent
males.
Llewellyn next contacted Sheriff Dawson, who arranged a
meeting between Myrhow and Dan Skuletich of the Montana Department
of Justice Criminal Investigation Bureau. Myrhow provided
Skuletich with a list of about twenty names of persons who may have
been sexually involved with Marks, most of whom were now adults.
Myrhow never mentioned to Skuletich that he was, at that time,
sexually abusing adolescent males or that he had been granted any
type of immunity.
According to Skuletich, the investigation was progressing
"very slowly" in August 1989. Dawson and Skuletich were
4
interviewing people from Myrhow's list, but most were now adults
and the statute of limitations on them had passed. Therefore, they
narrowed the focus of their investigation to younger persons on the
list. In so doing, Dawson developed a l'profilelV for younger
persons. He created an independent list of potential victims of
Marks. To derive this list, Dawson perused school yearbooks and
coordinated with the Departments of Family Services and Social and
Rehabilitation Services.
While investigating Marks, Dawson received a phone call from
Wanda Stout of the Department of Social and Rehabilitation
Services. She provided Dawson with J.P.'s name, which Dawson added
to his profile. Also on Dawson's independent list were C.G., J.G.
and L.G. Myrhow did not provide Dawson with any of these names.
On October 17, 1989, Dawson and Skuletich interviewed J-P.,
who related his belief that L.G. had been sexually involved with
Myrhow. This was the first time that the investigators had reason
to suspect that Myrhow himself may have been offending. J.P.
indicated that J.G. and C.G. might also be sexually involved with
Myrhow. Skuletich then interviewed L.G., who confirmed that Myrhow
paid him to have sex at Myrhow's residence in 1988. According to
L-G., J.G. was also in the house at that time. Before speaking
with J.P. and L-G., Skuletich had never heard of J.G. or C.G., from
Myrhow or anyone else.
Later that day, Skuletich and Dawson met with Myrhow at the
sheriff's office. Skuletich advised Myrhow of the allegations
against him. Myrhow abruptly departed. Because neither J.P. nor
L.G. were molested by Marks, Skuletich and Dawson decided to
5
separate the Marks investigation from the allegations against
Myrhow. Neither Skuletich nor Dawson ever interviewed J.G. or C.G.
Myrhow contacted Dawson in February 1990 to express his
disappointment at the slow pace of the Marks investigation. At
that time, Myrhow mentioned that he "could have" had sexual
relations with adolescent males. Dawson asked if Myrhow wanted to
discuss the subject, to which Myrhow replied, "Irm not sure if I
have immunity." Dawson suggested that Myrhow get an attorney, and
never again discussed immunity with Myrhow.
Ray Mills, J.G.'s grandfather, approached Myrhow in Helena,
Montana, asking Myrhow to meet with him to discuss some personal
matters involving J.G. Mr. Mills met with Myrhow and Dr. Pallister
on December 1, 1989. At that time, Mr. Mills learned that Myrhow
had molested J.G. Mr. Mills told Myrhow and Dr. Pallister about
J.G. ' s legal problems. Myrhow responded by writing a letter to the
Fifth Judicial District Court on J.G.'s behalf, in which he
accepted partial blame for J.G. 's conduct and admitted that he had
sexually victimized J.G.
Mr. Mills contacted Donna Hale of Lewis and Clark Human
Services in December 1990, telling her that Myrhow had sexually
molested J.G. She relayed this information to Jefferson County
Undersheriff Tim Campbell. Dawson then informed Campbell of the
allegations concerning Myrhow, which Dawson and Skuletich had
separated from the Marks investigation. Prior to this time, no
investigation was focused on Myrhow.
Campbell interviewed J.G. and C.G. They related when and how
Myrhow molested them. C.G. testified that Myrhow began molesting
6
him in 1988, when he was in the eighth grade, through May 1990.
C.G. recalled having oral sex with Myrhow after February 19, 1990,
the day on which Marks was arrested. It was stipulated that J.G.
would testify that his sexual activity with Myrhow ended by the
late fall of 1989, although he was uncertain of the exact
termination date.
The State charged Myrhow by amended information with eight
counts of deviate sexual conduct without consent. See 5 45-5-505,
MCA. Each count involved Myrhow's sexual contact with males under
sixteen years of age. Counts I through V involved J.G. Counts VI
through VIII involved C.G.
The five counts involving J.G. occurred on the following
dates: Count I, May 20, 1989; Count II, early August 1989; Count
III, early October 1989; Count IV, October 1989; and Count V,
between December 15 and December 24, 1989. The remaining three
counts involving C.G. occurred on the following dates: Count VI,
between July 1 and August 31, 1989; Count VII, between December 1,
1989, and January 31, 1990; and Count VIII, between May 1 and May
27, 1990.
Myrhow moved to dismiss all charges. He alleged that the
prosecution granted him immunity and agreed not to prosecute him in
exchange for providing information in the Marks investigation. The
District Court held an evidentiary hearing on November 27 and 29,
1991. On March 18, 1992, the District Court entered its findings
of fact and conclusions of law, and an order denying Myrhow's
motion to dismiss.
On May 22, 1992, Myrhow pled guilty to all charges pursuant to
7
a plea bargain, the terms of which are not stated in the record.
The District Court rejected the plea bargain and granted Myrhowls
motion to withdraw his guilty pleas. On October 28, 1992, Myrhow
withdrew his motion and his guilty pleas were reinstated. Myrhow
received a deferred sentence of six years, implementation of which
is stayed during this appeal.
I
What was the scope of the agreement not to prosecute between
the State and Myrhow?
Myrhow and the State recognize that Llewellyn contractually
agreed not to prosecute Myrhow for the criminal acts which Myrhow
communicated to Llewellyn during the June 28th meeting. An
agreement not to prosecute is generally enforceable and is governed
by principles of contract law. United States v. Irvine (9th Cir.
1985), 756 F.2d 708. The agreement may be express or implied.
Section 28-2-103, MCA. Additionally, as here, the contract may be
oral. See § 28-2-901, MCA. The language of the agreement must be
read as a whole and given a reasonable interpretation. Irvine, 756
F.2d at 710-11.
Notwithstanding the statutory immunity issue, there is no
dispute that a contractual agreement not to prosecute did, in fact,
exist. The substantive issue before us is the scope of that
agreement.
Testimony concerning the terms of the agreement was
contradictory. Myrhow claims that Llewellyn granted Myrhow
immunity for matters related directly and indirectly to the Marks
investigation. Lemieux, present at the June 28th meeting,
8
testified that he thought that all sexual offenses committed by
Myrhow were covered by the immunity.
However, the State argues that Llewellyn could not grant
immunity for offenses of which he had no knowledge. At no point
during the June 28th meeting; during meetings with Llewellyn,
Skuletich, Dawson or Campbell: or when interacting with his
friends-- such as Pallister and Lemieux--did Myrhow mention that he,
too, had committed sexual offenses against adolescent males. Only
after being confronted with the allegations did Myrhow admit to
sexually molesting adolescents. Even then, as late as February
1990, Myrhow admitted to Dawson, 'II'm not sure if I have immunity."
A careful review of the record reveals that Llewellyn did not
extend immunity to sexual offenses committed by Myrhow.
The District Court found that Myrhow never revealed to
Llewellyn or his friends at the June 28, 1989, meeting or at any
other time the fact that he had victimized juveniles. Moreover,
the court found that Llewellyn did not grant Myrhow immunity for
criminal acts committed by him against others after June 28, 1989.
These determinations are well supported by the record, are not
clearly erroneous and must, therefore, be upheld. See Montana
Dep't of State Lands v. Armstrong (1992), 251 Mont. 235, 824 P.2d
255.
The District Court correctly found that Llewellyn granted
Myrhow & facto immunity from prosecution for the following acts:
a) the sexual relationship with Marks; b) the confessed voyeurism:
c) the alleged burglary of the Boulder School; d) the alleged
attempt to kill Marks with a gun or explosives; e) violation of
9
Marks' right to privacy: and f) act of intimidation of Marks. We
note that the "immunity" to which the District Court refers is a
limited, contractual, transactional immunity arising solely from
the agreement not to prosecute--not from Montana's immunity
statute.
II
Did the State grant Myrhow statutory immunity from prosecution
for providing information which was used to convict a sex offender?
Myrhow contends he was granted immunity from prosecution for
providing information used to convict Douglas Marks. According to
Myrhow, immunity extended to his sexual offenses against adolescent
males. Myrhow argues that his belief concerning the grant of
immunity was manifested in his conduct. For example, he told
several people he had been granted immunity, he discussed his
offending with various people, and he wrote a letter to the court
admitting his offending.
The statute on which Myrhow relies, § 46-15-331, MCA, provides
in pertinent part:
(1) Before or during trial in any judicial proceeding, a
judge of the district or municipal court, upon request by
the prosecutor or defense counsel, may require a person
to answer any question or produce any evidence, even
though personally incriminating, following a grant of
immunity.
(2) If a person is required to give testimony or produce
evidence in accordance with this section in any
investigation or proceeding, compelled testimony or
evidence and any information directly or indirectly
derived from such testimony or evidence may not be used
against the witness in any criminal prosecution.
(3) Nothing in this section prohibits a prosecutor from
granting immunity from prosecution for or on account of
any transaction, matter, or thing concerning which a
10
witness is compelled to testify if in the prosecutor's
sole discretion it is determined that the ends of justice
would be served.
Two types of immunity are referenced in this statute: use or
derivative use immunity (in subsection 2) and transactional
immunity (in subsection 3). Section 46-15-331, MCA, provides that
immunity is only granted when a witness is comnelled to testify by
court order (emphasis added). In this case, Myrhow voluntarily
appeared before Llewellyn at the June 28, 1989, meeting. Myrhow
was later subpoenaed to testify as a potential rebuttal witness at
Marks' sentencing hearing: however, he was never compelled to
testify because he was not called as a witness at that hearing.
Myrhow and Llewellyn met at Llewellyn's office to discuss
Myrhow's potential rebuttal testimony on November 6, 1990, the day
before Marks' sentencing hearing. Because he believed he had no
choice but to answer Llewellyn's questions, Myrhow argues he was
compelled to tell Llewellynthat he was molesting adolescent males.
However, Llewellyn neither summoned Myrhow for that meeting nor
raised the issue of Myrhow's offending. Rather, Myrhow visited
Llewellyn's office and raised the subject of his sexual abuse of
the juveniles.
We determine that no compelled testimony resulted from the
issuance of the subpoena. No controlling authority requires a
different result. See Kastigar v. United States (1972), 406 U.S.
441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (analyzing statutory immunity in
relation to 18 U.S.C. § 6002, a federal statute similar to 5 46-15-
331, MCA); United States v. North (D.C. Cir. 1990), 910 F.2d 843
(which, like Kastiaar, focuses on compelled testimony). We hold
11
that the State did not grant statutory immunity to Myrhow.
III
Did the District Court err by ruling that Myrhow could be
convicted for deviate sexual conduct occurring prior to June 28,
1989?
The State correctly characterizes the District Court's
decision regarding Count I of the information as "somewhat
obscure." The court ultimately concluded that no immunity was
granted for any counts in the amended information. However, Count
I of the information alleged deviate sexual conduct by Myrhow
against J.G. on or about May 20, 1989. Count I was the only count
of the information alleging conduct which occurred before June 28,
1989.
District Court Finding No. 13 reads as follows:
The Court finds that all of the offenses alleged in the
amended Information were committed subsequent to the June
1989 meeting. While Defendant denies this, it is at the
very least an issue of fact on this point. These acts
are not covered by any grant of immunity, actual, &
facto, or otherwise. The State did not learn of one of
the offenses until late 1990, and this from a therapist
at the Department of Family Services. It had no
relationship to the Marks investigation whatsoever.
Moreover, the Court finds that the Defendant concealed
the identity of some of his victims ([John] Does l-4)
from the investigators, and [John] Does 1 and 2 advised
the authorities on their own that they had been abused by
the Defendant. Thus, as to at least two of the victims,
the Defendant would be subject to prosecution even if he
had been granted the immunity he claims.
The District Court later concluded:
The Defendant is immune from prosecution for all alleged
criminal offenses, sexual or otherwise committed by him
prior to June 28th, 1989, insofar as such offenses may
have been related to the investigation by the State in
State v. Marks, Cause No. 1288.
12
Although the District Court concluded that no immunity was
granted for offenses occurring after June 28, 1989, it also found
(Finding No. 13) that Myrhow was granted immunity for all criminal
offenses occurring prior to June 28, 1989. The District Court
erred, in part, in Finding No. 13. The District Court incorrectly
found that "all of the offenses alleged in the amended Information
were committed subsequent to the June 1989 meeting." In fact,
Count I was alleged to have been committed on or about May 20,
1989. Therefore, Finding No. 13 is clearly erroneous with regard
to that count. See Steer, Inc. v. Dep't of Revenue (1990), 245
Mont. 470, 474, 803 P.2d 601, 603.
The question remains whether this is reversible error. We
determine that the error does not affect the substantial rights of
Myrhow. See Dahlin v. Holmquist (1988), 235 Mont. 17, 21, 766 P.2d
239, 241. The error is not reversible because Count I
alternatively withstands challenge under the "independently derived
evidence" doctrine. Unquestionable support for this position is
found in the District Court's rationale:
The State acquired this information [about the victims
designated in this information] from independent sources
. . . [t]his information had nothing whatever to do with
the Marks investigation . . . all of the proposed
evidence against this Defendant was derived independently
of the massive Marks investigation.
The State correctly contends that the District Court recognized a
basis for sustaining Count I: a defendant is not protected from
the use of evidence "derived from a source independent of the
immunized testimony." United States v. Crowson (9th Cir. 1987),
828 F.2d 1427, 1428-29. The State argues, and the record shows,
13
that Myrhow's offenses against J.G. and C.G. came to light
independently of the Marks investigation and independently of any
immunized evidence Myrhow provided through his agreement with
Llewellyn.
Conversely, Myrhow contends that the State failed to meet its
"heavy burden of proving that all of the evidence it proposes to
use was derived from legitimate independent sources." See
Kastiaar, 406 U.S. at 461-62. Myrhow argues that because his
investigation followed the Marks investigation, one must have
necessarily led to the other. He contends that the information was
not independently derived because Myrhow revealed his offenses
against J.G. to Mr. Mills, which prompted Mr. Mills to contact Ms.
Hale at the Department of Rehabilitation Services, who in turn
contacted Undersheriff Campbell.
However, Myrhow never revealed to Llewellyn or investigators
that he was a sexual offender or that he had sexually molested J.G.
and C.G. That information arose from Dawson's and Skuletich's
independent investigation. The mere chronological order of the
investigations does not, in itself, provide any logical "use nexus"
from the Marks investigation to the Myrhow investigation.
There is no evidence in the record to support the proposition
that the State used information provided by Myrhow under the
cooperation agreement to obtain the report from Ms. Hale.
Moreover, Myrhow's communications with Mr. Mills were neither
immunized by the agreement with Llewellyn nor presented to
Llewellyn as the result of the use of any immunized evidence.
We hold that the evidence used to formulate Count I against
14
Myrhow was derived independently of the Marks investigation and
independently of any immunized evidence Myrhow provided through his
agreement with Llewellyn. The District Court correctly convicted
Myrhow for deviate sexual conduct occurring before June 28, 1989.
Affirmed.
wcr*,
Justicd
We Concur:
Justices
15
December 6. 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
Gregory A. Jackson
Jackson & Rice
833 North Last Chance Gulch
Helena, MT 59601
Hon. Joseph P. Mazurek, Attorney General
Paul D. Johnson, Assistant
215 N. Sanders, Justice Building
Helena, MT 59620
Joseph E. Thaggard
Special Jefferson Deputy County Attorney
215 N. Sanders, Justice Building
Helena, MT 59620
ED SMITH
CLERK OF THE SUPREME COURT
STATE CF MONTAN,A