State v. Hayworth

No

No. 97-424

IN THE SUPREME COURT OF THE STATE OF MONTANA

1998 MT 158

STATE OF MONTANA,

Plaintiff and Respondent,

v.

MARTY HAYWORTH,

Defendant and Appellant.

APPEAL FROM: District Court of the Eighth Judicial District,

In and for the County of Cascade,

The Honorable Robert Goff, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-424%20Opinion.htm (1 of 17)4/19/2007 9:34:54 AM
 No

Bethany F. Schendel, Attorney at Law, Great Falls, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General; Cregg W. Coughlin,

Assistant Attorney General; Helena, Montana

Brant S. Light, Cascade County Attorney; Julie Macek,

Deputy County Attorney; Great Falls, Montana

Submitted on Briefs: April 23, 1998

Decided: June 23, 1998

Filed:

__________________________________________

Clerk

Justice Jim Regnier delivered the opinion of the Court.

¶1 Marty Hayworth appeals from a judgment and sentence of the Eighth Judicial
District Court, Cascade County, based on a jury verdict convicting him of two counts
of attempted deliberate homicide by accountability. For the reasons stated below, we
affirm.

¶2 Hayworth presents the following issues on appeal:

¶3 1. Did the District Court err in denying Hayworth's motion to suppress evidence
of his confession?

¶4 2. Did the District Court err in denying Hayworth's motion to exclude evidence of

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-424%20Opinion.htm (2 of 17)4/19/2007 9:34:54 AM
 No

a discussion between Hayworth and co-defendant Lloyd Maier?

¶5 3. Did the District Court err in permitting Nick Burwell and Katie Crepeau to
testify for the State?

¶6 4. Did the District Court err in permitting Nick Burwell to refresh his memory
while testifying?

¶7 5. Did the District Court err in denying Hayworth's motion for a directed verdict?

¶8 6. Did the District Court err in denying Hayworth the opportunity to call
attorneys Toni Marra and Scott Albers as rebuttal witnesses?

FACTUAL AND PROCEDURAL BACKGROUND

¶9 On the afternoon of August 12, 1995, Hayworth met up with Robert Bradford and
Brian Kunesh, the victims in this case. Bradford was attempting to locate some car
stereo equipment, and asked if Hayworth knew where he could find some car
speakers.

¶10 Shortly after his encounter with Bradford and Kunesh, Hayworth gave an
acquaintance of his, Nick Burwell, a ride to the trailer park where co-defendant
Lloyd Maier resided. Burwell told Hayworth that someone named Tray had made
death threats against Hayworth. Burwell and Hayworth then visited with Maier in
his trailer and engaged in a conversation, the precise content of which is disputed by
the various witnesses in this case. At some point during their conversation, however,
it is clear that Maier learned of the threats made against Hayworth by Tray.

¶11 Shortly thereafter, Burwell asked Hayworth for a ride to the home of his friend,
Shadow Mogensen. Before the three departed for Mogensen's, Maier loaded his SKS
assault rifle and Burwell placed it in Hayworth's vehicle. With Hayworth behind the
wheel, the three drove to Mogensen's home. When they arrived, Hayworth went into
the house to use the telephone, and Mogensen came out to the vehicle to speak with
Maier. At some point, after everyone had entered the house, Mogensen asked
Burwell, Hayworth, and Maier to leave.

¶12 As they pulled away from Mogensen's house, Hayworth was driving and Maier
was in the van's front passenger seat. Shortly thereafter, they passed Bradford and
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-424%20Opinion.htm (3 of 17)4/19/2007 9:34:54 AM
 No

Kunesh's vehicle approaching from the opposite direction. Burwell testified that he
heard Hayworth say to Maier, "There's Bradford, do you want to get him?" and that
Maier responded affirmatively. Hayworth then sped up, made a U-turn and pulled
up next to the car driven by Bradford. One witness testified that Hayworth was
driving so quickly that the van fishtailed as it approached Bradford's vehicle. Once
Hayworth had stopped the van, Maier fired several shots at the vehicle, injuring both
Bradford and Kunesh.

¶13 On August 15, 1995, Great Falls police questioned Maier about the incident.
Maier related his version of the events which had transpired on August 12, 1995, and
told police that Hayworth could verify his story. Maier then left the police station,
and returned later that afternoon with Hayworth. Police placed Maier and Hayworth
in separate rooms for questioning. Hayworth was first questioned by Officer Richard
Hollis, who testified that he advised Hayworth of his Miranda rights and that
Hayworth indicated he understood those rights and was willing to answer questions.
Hayworth, in contrast, testified that Hollis did not explain his Miranda rights, but
simply presented him with a form and instructed him to sign it prior to questioning.
The State did not produce a written waiver in this case.

¶14 During his interview with Officer Hollis, Hayworth indicated that Burwell had
fired the shots which injured Bradford and Kunesh. After Officer Hollis finished
questioning Hayworth, he left the room and spoke with Officer Steffens who had just
finished questioning Maier. Officer Hollis then proceeded to interview Maier, while
Officer Steffens began questioning Hayworth. Officer Steffens did not advise
Hayworth of his Miranda rights, and did not ask Officer Hollis whether had already
Mirandized Hayworth. Confronted with inconsistencies between his and Maier's
version of events, Hayworth altered his explanation of events and told Officer
Steffens that Maier had in fact fired the shots which injured Bradford and Kunesh.
After Hayworth had confessed his involvement in the events of August 12, 1995, to
Officer Steffens, Officer Hollis returned to interview Hayworth again. Officer Hollis
did not give Hayworth a full Miranda warning, but instead advised him that he was
still under his rights. When Officer Hollis finished his questioning, he arrested
Hayworth on an outstanding warrant for a probation violation.

¶15 By way of an information filed in the Eighth Judicial District Court on August
16, 1995, Hayworth was charged with two counts of attempted deliberate homicide
by accountability, in violation of §§ 45-4-103(1), 45-2-302(3), and 45-5-102(1)(a),

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-424%20Opinion.htm (4 of 17)4/19/2007 9:34:54 AM
 No

MCA (1993). Hayworth was tried before a jury on March 19-22, 1996, and found
guilty of both counts. On June 25, 1996, the District Court sentenced Hayworth to
sixty years in Montana State Prison on each count, with the sentences to run
concurrently. Hayworth appeals.

ISSUE 1

¶16 Did the District Court err in denying Hayworth's motion to suppress evidence of
his confession?

¶17 Prior to trial, Hayworth filed a motion to suppress evidence of the "confession
and/or admission," (hereinafter confession) he made during questioning by Officers
Hollis and Steffens, on the grounds that it was given involuntarily. Following a
suppression hearing, the District Court denied Hayworth's motion in a March 19,
1996, order. Looking to the totality of the circumstances, the court found that
Hayworth "was given his Miranda rights and understood them, and that he made a
knowing waiver thereof before giving his confession."

¶18 On appeal, Hayworth argues the court erred in finding he had been advised of
his Miranda rights and erred in finding he knowingly, voluntarily, and intelligently
waived those rights before giving his confession. Hayworth asserts the State failed to
introduce evidence of the particular Miranda rights given, and failed to introduce a
written waiver demonstrating Hayworth's decision to waive those rights. Moreover,
Hayworth argues the State failed to rebut his assertion that "he was enticed before
he made any incriminating statement to Detective Steffens." In conclusion, Hayworth
argues the District Court erred in denying his motion to suppress evidence of his
confession "because it resulted from a custodial interrogation where he was not
properly Mirandized and the State failed to rebut testimony of involuntariness."

¶19 In response, the State first argues that, because Hayworth voluntarily appeared
at the police station, he was not in custody at the time of his interrogation, and law
enforcement officers were thus under no obligation to advise him of his Miranda
rights. Even assuming Hayworth was in custody, however, the State argues the
District Court properly looked to the totality of the circumstances before finding that
Hayworth had been advised of his Miranda rights and agreed to waive them before
making a voluntary confession.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-424%20Opinion.htm (5 of 17)4/19/2007 9:34:54 AM
 No

¶20 We review a district court's denial of a motion to suppress evidence to determine
whether the court's findings of fact are clearly erroneous and whether those findings
were correctly applied as a matter of law. State v. Siegal (1997), 281 Mont. 250, 257,
934 P.2d 176, 180 (citing State v. Williams (1995), 273 Mont. 459, 462, 904 P.2d 1019,
1021; State v. Flack (1993), 260 Mont. 181, 188, 860 P.2d 89, 94). We have recognized
that "when a defendant raises the question of voluntariness, the State must prove by
a preponderance of the evidence that the confession or admission was voluntarily
obtained." State v. Mayes (1992), 251 Mont. 358, 376, 825 P.2d 1196, 1208; § 46-13-301
(2), MCA. The question of whether a defendant has given a voluntary confession "is
largely a factual determination that is within the discretion of the district court."
State v. Grey (1995), 274 Mont. 206, 209, 907 P.2d 951, 953.

¶21 We have held that, in making that factual determination, the district court
"must take into account the totality of the circumstances." State v. Loh (1996), 275
Mont. 460, 475, 914 P.2d 592, 601. Among the factors which the court must consider
when evaluating the totality of the circumstances are the defendant's age and level of
education, the interrogation technique used, whether the defendant was advised of
his Miranda rights, the defendant's prior experience with the criminal justice system
and police interrogation, the defendant's background and experience, and the
defendant's demeanor, coherence, articulateness, and capacity to make full use of his
faculties. Loh, 275 Mont. at 475-76, 914 P.2d at 601-02; State v. Hermes (1995), 273
Mont. 446, 450, 904 P.2d 587, 589.

¶22 In the present case, the District Court looked to the totality of the circumstances
surrounding Hayworth's confession, and found the following:

Defendant Marty Hayworth is approximately thirty-three (33) years old. He
understands English and is of average intelligence. He has had numerous prior
contacts with the criminal justice system, and has been given Miranda
warnings on prior occasions. The Court finds that the police officers'
testimony was credible and that the Defendant's was not. Accordingly, the
Court believes that Defendant was given his Miranda rights and understood
them, and that he made a knowing waiver thereof before giving his
confession.

¶23 At the suppression hearing, Hayworth testified that Officer Hollis gave him a
form and told him to sign it so the officers could speak to him, but asserted he was

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-424%20Opinion.htm (6 of 17)4/19/2007 9:34:54 AM
 No

not given an opportunity to read it. Moreover, when asked if law enforcement
officers explained his rights to him, Hayworth responded, "Not that I know of."

¶24 Although Hayworth argues he was not informed of his rights, we conclude
otherwise and hold the record contains substantial evidence which supports the
District Court's finding that Hayworth "was given his Miranda rights and
understood them." For example, at the suppression hearing Officer Hollis testified
that he did in fact advise Hayworth of his Miranda rights when "he came in the office
and the interview started." Also, Officer Hollis testified that Hayworth appeared to
understand those warnings, and was able to respond appropriately to his questions.
Although Hayworth asserted he had not slept for a prolonged period of time and was
under the influence of drugs at the time of the questioning, Officers Hollis, Steffens,
and Jim Wells all testified that Hayworth did not appear to be tired or under the
influence of drugs. Furthermore, as the District Court found, the record indicates
that Hayworth was thirty-three years old at the time, of average intelligence, and had
had numerous prior contacts with the criminal justice system.

¶25 Based on the foregoing, and having considered the totality of the circumstances
surrounding Hayworth's confession, we conclude that substantial evidence exists to
support the District Court's finding that the State met its burden of showing by a
preponderance of the evidence that Hayworth made a knowing, intelligent, and
voluntary confession.

ISSUE 2

¶26 Did the District Court err in denying Hayworth's motion to exclude evidence of a
discussion between Hayworth and co-defendant Lloyd Maier?

¶27 On the first day of his March 19, 1996, trial, Hayworth filed a motion in limine
asking that the court issue an order prohibiting the State "from referring to any and
all of Defendant's prior acts, including drug activity." More specifically, defense
counsel clarified prior to jury selection that she would object to any attempts by the
State to introduce evidence of statements allegedly made by Hayworth on the day of
the crime regarding his intent to kill a man known as Big Rich, and one known as
Tray. Hayworth argued that any evidence of his intent to kill either Big Rich or Tray
was not part of the res gestae and, therefore, was inadmissible. The State, in contrast,
argued that any such statements were admissible as part of the res gestae. After

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-424%20Opinion.htm (7 of 17)4/19/2007 9:34:54 AM
 No

hearing argument by the parties, the District Court ruled from the bench, ordering
that it would "deny the motion in limine" and "allow the State to introduce this
evidence."

¶28 As with any evidentiary ruling, we review the district court's decision for an
abuse of discretion. See State v. Gollehon (1993), 262 Mont. 293, 301, 864 P.2d 1257,
1263.

¶29 On appeal, Hayworth argues it was an abuse of discretion for the District Court
to deny his motion in limine and admit "evidence regarding any potential plan to kill
Tray or Big Rich Rustvold, that may have been discussed at Maier's trailer earlier on
the day that Bradford and Kunesh were shot." Hayworth first argues evidence that
he discussed killing anyone other than the victims in this case was not relevant, and
was thus inadmissible. Even if relevant, Hayworth asserts, such evidence "was
extremely prejudicial and minutely probative and therefore, should have been
excluded at trial." Hayworth also argues any evidence that he discussed killing Tray
or Big Rich was wholly independent of, and unrelated to the crime charged, and as
such, was not part of the res gestae. Finally, Hayworth asserts for the first time on
appeal that any evidence regarding a plan to kill Big Rich was not properly
corroborated and, therefore, was inadmissible.

¶30 The State, in response, asserts that "[e]vidence of Hayworth's and Maier's
discussions about killing Tray, Rustvold, and Bradford immediately prior to the
loading of the weapon and traveling to Shadow Mogensen's house was properly
admitted as part of the res gestae." The State argues the challenged evidence was
relevant as well as probative, and "was clearly part and parcel of the same criminal
offense with which [Hayworth] was charged."

¶31 We have held that "the State is entitled to present the entire corpus delicti of the
crime charged, including matters closely related to the offense and explanatory of the
crime." State v. Monaco (1996), 277 Mont. 221, 226, 921 P.2d 863, 866. Under the
concept of corpus delicti, "[e]vidence of acts which are inextricably or inseparably
linked with the crime charged is admissible without regard to the rules governing
'other crimes' evidence." State v. Romero (1986), 224 Mont. 431, 438, 730 P.2d 1157,
1162. Additionally, we have recognized that "admissibility is predicated on the jury's
right to hear what transgressed immediately prior and subsequent to the commission
of the offense charged, so that they may evaluate the evidence in the context in which

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-424%20Opinion.htm (8 of 17)4/19/2007 9:34:54 AM
 No

the criminal act occurred." State v. Moore (1992), 254 Mont. 241, 246, 836 P.2d 604,
607.

¶32 In State v. Wing (1994), 264 Mont. 215, 224, 870 P.2d 1368, 1374, we recognized
that "[t]he concepts embraced by the term res gestae are included within the
codification of that common law doctrine . . . referred to as the 'transaction' rule."
We clarified that "[w]hether an act is referred to as part of the res gestae or as part
of the 'transaction,' that act is evidence which is part of the same litigated event."
Wing, 264 Mont. at 224, 870 P.2d at 1374. It is well established "that evidence which
tends to explain circumstances surrounding the charged offense is relevant,
probative and competent." Wing, 264 Mont. at 225, 870 P.2d at 1374.

¶33 Although Hayworth argues otherwise, we conclude evidence of a discussion
between Hayworth and Maier in which the two discussed a plan to kill Tray or Big
Rich is clearly a part of the res gestae and corpus delicti of the crime charged. The
record indicates that the discussion at issue took place just prior to the time
Hayworth and his companions drove into town with a loaded assault rifle. The State
was entitled to explain the circumstances surrounding the charged offense by
introducing evidence of that conversation. It was not error for the District Court to
allow the State to introduce evidence of "what transgressed immediately prior . . . to
the commission of the offense," so that the jury could "evaluate the evidence in the
context in which the criminal act occurred." Moore, 254 Mont. at 246, 836 P.2d at
607. Based on the foregoing, we hold the District Court did not abuse its discretion in
admitting, as part of the res gestae or corpus delicti of the crime charged, evidence of
a discussion between Hayworth and Maier in which the two discussed a plan to kill
Tray and Big Rich.

ISSUE 3

¶34 Did the District Court err in permitting Nick Burwell and Katie Crepeau to
testify for the State?

¶35 At trial, Hayworth objected to the State calling Nick Burwell and Katie Crepeau
as witnesses on the grounds that the State had failed to provide him with formal
written notice of its intent to do so. The District Court overruled Hayworth's
objections, and permitted both witnesses to testify. On appeal, Hayworth asserts the
State's failure to provide him with formal written notice of its intent to call Crepeau

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-424%20Opinion.htm (9 of 17)4/19/2007 9:34:54 AM
 No

and Burwell as witnesses caused him "great[] prejudice." The State, in response,
asserts "[t]here was no surprise, no prejudice to the defense, and no abuse of
discretion" by the District Court in permitting the two witnesses to testify.

¶36 We review the district court's decision for an abuse of discretion. State v. Liddell
(1984), 211 Mont. 180, 190, 685 P.2d 918, 924.

¶37 The record indeed indicates that the State failed to provide Hayworth with
formal written notice of its intent to call Crepeau as a witness. Hayworth objected to
the State's initial attempts to call Crepeau to the stand on the second day of trial. The
State conceded that, although it had served Hayworth's co-defendant with notice of
its endorsement of Crepeau, it had failed to similarly provide Hayworth with formal
notice of its intent to call her as a witness. The prosecutor indicated that she had,
however, "personally talked to the defense and given them these people and told
them who we were calling." In contrast, Hayworth's counsel maintained that she
"never knew about Katie Crepeau."

¶38 By way of resolution, the District Court suggested that the State call Crepeau "at
a different time," thereby giving Hayworth's counsel the opportunity to interview the
witness. Hayworth voiced no objection to the remedy proposed by the court, and
indeed interviewed Crepeau before the State called her to testify. After having an
opportunity to interview her, Hayworth did not object when the State called Crepeau
to the stand. We additionally note that, although Hayworth asserts he did not learn
of Crepeau's existence until the second day of trial, the State's affidavit in support of
its motion for leave to file the information in this case identified Crepeau and
described her involvement in the events of August 12, 1995.

¶39 In light of the foregoing, we conclude the State's failure to provide Hayworth
with formal written notice of its intent to call Crepeau as a witness did not prejudice
the defendant, and conclude the District Court did not abuse its discretion in
permitting Crepeau to testify on behalf of the State.

¶40 At trial, Hayworth similarly objected to the State calling Burwell as a witness
"because, again, he was not formally endorsed as a witness in this case." In response,
the prosecutor argued that Hayworth had known for months that Burwell was going
to testify and had in fact interviewed Burwell in anticipation of trial. Moreover, the
prosecutor represented to the court that she had "personally discussed the fact that

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-424%20Opinion.htm (10 of 17)4/19/2007 9:34:54 AM
 No

[Burwell] was going to be a witness in this matter" with Hayworth's defense counsel.
Thus, although the prosecutor conceded the State had failed to provide Hayworth
with formal written notice of its intent to call Burwell as a witness, she argued the
State's intent to call him was not "in any way any type of a surprise" to Hayworth's
counsel.

¶41 As demonstrated by the following exchange between Hayworth's counsel and the
presiding judge, the record indicates Hayworth was not prejudiced by the court's
decision to allow Burwell's testimony:

Q: [The court]: Are you telling me that Mr. Albers didn't
interview this guy in anticipation of trial?

A: [Hayworth's counsel]: I'm saying we've -- I guess I can't say
why he interviewed him. I suspect he knew he was a possible
witness in this case. But we've never got any formal notice that he
was going to be called.

Q: I understand. So the objection is you didn't receive a formal
written notice?

A: Yes.

Q: Are you claiming prejudice if he testifies now?

A: We would claim prejudice in light -- I think we have a right to
stand by the rules of procedure.

Q: I understand that. I'm not objecting to your making -- I'm not
quarreling with your making the objection. I just want to find out
if you think there's some prejudice to you if he testifies right now.

A: We have interviewed Mr. Burwell.

Q: Are you prepared to cross-examine him?

A: Yes.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-424%20Opinion.htm (11 of 17)4/19/2007 9:34:54 AM
 No

¶42 In light of the foregoing exchange, we similarly conclude the State's failure to
provide Hayworth with formal written notice of its intent to call Burwell as a witness
did not prejudice the defendant, and conclude the District Court did not abuse its
discretion in permitting him to testify on behalf of the State.

ISSUE 4

¶43 Did the District Court err in permitting Nick Burwell to refresh his memory
while testifying?

¶44 During Burwell's testimony at trial, the State asked him about a taped statement
he had given to police during an August 1995 interview. Burwell acknowledged
giving the statement, and agreed that looking at that statement would enable him to
better remember what happened on the day of the crime. The prosecutor then asked
Burwell to read to himself a portion of the transcript from the taped statement.

¶45 Hayworth objected to the prosecutor "showing the statement before she asks
questions," asserting that "the proper method is to ask questions [and] then show it
to him." The court noted that Hayworth had "already been asked a question," and
accordingly overruled Hayworth's objection.

¶46 On appeal, Hayworth argues the District Court erred in permitting Burwell to
refresh his recollection at all, and erred in permitting the State to introduce portions
of Burwell's statement into evidence. Review of the record indicates that Hayworth
failed to specifically raise either of these objections at trial. Because he failed to
properly preserve these precise objections at trial, Hayworth is precluded from now
raising them for the first time on appeal. See, e.g., State v. Swoboda (1996), 276 Mont.
479, 481, 918 P.2d 296, 298.

ISSUE 5

¶47 Did the District Court err in denying Hayworth's motion for a directed verdict?

¶48 Hayworth orally moved for a directed verdict at the close of the State's case,
asserting the State had failed to demonstrate that he "purposely and knowingly

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-424%20Opinion.htm (12 of 17)4/19/2007 9:34:54 AM
 No

turned that car around with the intent of facilitating the shooting of Mr. Bradford
and Kunesh." Hayworth asserted that, because the State's case rested almost entirely
upon the uncorroborated "testimony of codefendants or coconspirators," he was
entitled to a directed verdict.

¶49 The State opposed Hayworth's motion, instead arguing there was ample
"evidence before the jury to substantiate the elements of the crime" charged. The
court agreed, and denied Hayworth's motion on the grounds that there was
"sufficient evidence to establish a prima facie case."

¶50 A district court's decision to grant or deny a motion for a directed verdict lies
within its sound discretion and will not be overturned absent an abuse of that
discretion. State v. Keating (Mont. 1997), 949 P.2d 251, 260, 54 St. Rep. 1250, 1255. It
is well established that "we review a trial court's denial of a motion for a directed
verdict to determine whether, after reviewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt." Keating, 949 P.2d at 260, 54 St. Rep. at
1255, (quoting State v. Romannose (1997), 281 Mont. 84, 88, 931 P.2d 1304, 1307).

¶51 On appeal, Hayworth argues the primary evidence connecting him to the
commission of the crimes charged is that of his own confession, as well as that
contained in Burwell's "accomplice" testimony. Alleging the State failed to introduce
evidence which corroborated either his own confession or Burwell's testimony,
Hayworth contends there was insufficient evidence to go to the jury and asserts the
court thus erred in denying his motion for a directed verdict.

¶52 With respect to the State's ability to rely upon evidence of Hayworth's
confession, § 46-16-215, MCA, provides that "[b]efore an extrajudicial confession of
the defendant to the crime charged may be admitted into evidence, the prosecution
shall introduce independent evidence tending to establish the commission of the
crime charged."

¶53 We have held that the plain language of § 46-16-215, MCA, "requires only that
the prosecution present independent evidence tending to establish that the crime was
committed, not that the defendant committed it." State v. Campbell (1996), 278 Mont.
236, 244-45, 924 P.2d 1304, 1310.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-424%20Opinion.htm (13 of 17)4/19/2007 9:34:54 AM
 No

¶54 Here, review of the record indicates the State clearly presented independent
evidence which established the elements of the crime charged. For example, before
the State introduced evidence of Hayworth's statements, the victims testified and
described the events which transpired on August 12, 1995. Furthermore, the State
introduced evidence that police had found rifle casings on the street and that the
victims' vehicle had several bullet holes in it. Finally, Crepeau testified that she
witnessed Hayworth drive down the street, make a U-turn and pull up alongside the
victims' car just before shots were fired. In light of the foregoing, we conclude the
State provided evidence which corroborated Hayworth's statements to police, and
hold it was not error for the court to admit those statements into evidence.

¶55 As noted above, Hayworth additionally asserts the State failed to present
evidence to corroborate Burwell's testimony, and that his conviction should thus be
overturned. Hayworth characterizes Burwell as an accomplice, contending that "[i]f
Defendant is legally accountable for Maier's actions, then so is Burwell."

¶56 Section 46-16-213, MCA, provides that:

A person may not be found guilty of an offense on the testimony of one responsible or
legally accountable for the same offense . . . unless the testimony is corroborated by other
evidence that in itself and without the aid of the testimony of the one responsible or legally
accountable for the same offense tends to connect the defendant with the commission of
the offense.

¶57 In State v. Kaczmarek (1990), 243 Mont. 456, 795 P.2d 439, we explained that:

"To be sufficient, corroborating evidence must show more than that a crime
was in fact committed or the circumstances of its commission. It must raise
more than a suspicion of the defendant's involvement in, or opportunity to
commit, the crime charged. But corroborative evidence need not be sufficient,
by itself, to support a defendant's conviction or even to make out a prima facie
case against him. Corroborating evidence may be circumstantial and may
come from the defendant and his witnesses."

State v. Kemp (1979), 182 Mont. 383, 387, 597 P.2d 96, 99. (Emphasis
added.) (Citations omitted.) Corroborating testimony is viewed in a light most
favorable to the State. The corroborating evidence need only tend to connect

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-424%20Opinion.htm (14 of 17)4/19/2007 9:34:54 AM
 No

the defendant with the crime charged and need not extend to every fact to
which the accomplice testifies. Thus, corroborating evidence is not
insufficient merely because it is circumstantial, disputed, or possibly
consistent with innocent conduct; it is the jury's duty to resolve such factual
questions.

Kaczmarek, 243 Mont. at 459-60, 795 P.2d at 441-42 (citations omitted).

¶58 In the present case, whether Burwell was, as Hayworth asserts, an accomplice to
the crimes charged, is, at best, questionable. Even assuming Burwell was an
accomplice, however, we conclude the State presented ample evidence which
corroborates his testimony. For example, Bradford, one of the victims in this case,
identified Hayworth as the driver of the van and testified that Hayworth initially
slowed down as he approached Bradford and Kunesh's vehicle, but then came
"flying around" and cut them off just before shots were fired. Moreover, Crepeau
corroborated Burwell's testimony regarding the speed and intentional manner in
which Hayworth drove to reach and cut off Bradford's vehicle. Having reviewed the
record, we conclude the State provided evidence which corroborated Burwell's
testimony.

¶59 Based on the foregoing, we hold the District Court did not abuse its discretion in
denying Hayworth's motion for a directed verdict.

ISSUE 6

¶60 Did the District Court err in denying Hayworth the opportunity to call attorneys
Toni Marra and Scott Albers as rebuttal witnesses?

¶61 At the close of the second day of trial, Hayworth informed the court that he
intended to call co-defendant Maier's attorney, Toni Marra, as a rebuttal witness for
the limited purpose of rebutting certain portions of Detective Hollis's testimony.
Hayworth also informed the court that he intended to call Scott Albers, formerly
Hayworth's and Mogensen's attorney, as a witness to rebut portions of Nick
Burwell's testimony.

¶62 After reviewing a transcript of Officer Hollis's and Burwell's testimonies, the
court determined that there were "some issues that would be proper for

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-424%20Opinion.htm (15 of 17)4/19/2007 9:34:54 AM
 No

impeachment." After conferring with her client, Marra indicated Maier would allow
her to testify if the court would make a prior ruling restricting the scope of
Hayworth's questioning. The court refused to "make that prior ruling," so Maier
asserted his attorney-client privilege and the court refused to allow Marra to testify.

¶63 The court and counsel engaged in a similar discussion with respect to
Hayworth's attempts to call Mogensen's former attorney, Scott Albers, as a witness.
Mogensen did not waive her attorney-client privilege, so the court similarly refused
to allow Albers to testify.

¶64 On appeal, Hayworth argues the court erred in denying what he characterizes as
Marra's motion for a protective order limiting the scope of Hayworth's questioning.
Hayworth also agues the "specific rebuttal testimony" he wished to elicit from Marra
"was not attorney-client privilege because the conversation" he wanted to ask her
about "occurred in the presence of third parties." Hayworth argues he was
prejudiced by the court's refusal to issue a protective order, and he was thereby
"denied the opportunity to present crucial testimony which greatly prejudiced him
and deprived [him] of the right to a fair and impartial trial."

¶65 Having reviewed the record, we conclude Hayworth's arguments are without
merit. Whether Marra actually moved for a protective order is not at all clear. Even
assuming she did, we hold it was not error for the court to refuse to "make a prior
ruling" limiting the scope of Hayworth's questioning. Although Hayworth asserts the
statements about which he intended to ask Marra occurred in the presence of third
parties, Maier asserted his attorney-client privilege to protect, not what Marra may
have heard during the interview with the police officer, but rather what privileged
information she may have revealed on cross-examination. We hold the District Court
did not abuse its discretion in denying Hayworth the opportunity to call Maier's
attorney as a rebuttal witness in light of the fact that Maier refused to waive his
attorney-client privilege. We similarly hold the District Court did not abuse its
discretion in refusing to permit Scott Albers to testify in light of the fact that
Mogensen never waived her attorney-client privilege.

¶66 Affirmed.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-424%20Opinion.htm (16 of 17)4/19/2007 9:34:54 AM
 No

/S/ JIM REGNIER

We Concur:

/S/ KARLA M. GRAY

/S/ W. WILLIAM LEAPHART

/S/ WILLIAM E. HUNT, SR.

/S/ TERRY N. TRIEWEILER

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-424%20Opinion.htm (17 of 17)4/19/2007 9:34:54 AM