State v. Morrisey

June 9 2009

DA 06-0278

IN THE SUPREME COURT OF THE STATE OF MONTANA

2009 MT 201

STATE OF MONTANA,

Plaintiff and Appellee,

v.

WILFRED MORRISEY,

Defendant and Appellant.

APPEAL FROM: District Court of the Eighth Judicial District,
In and For the County of Cascade, Cause No. ADC-2002-356
Honorable Thomas M. McKittrick, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Jim Wheelis, Chief Appellate Defender, Joslyn Hunt, Assistant Appellate
Defender, Helena, Montana

For Appellee:

Hon. Steve Bullock, Montana Attorney General, Ilka Becker, Assistant
Attorney General, Helena, Montana

Brant S. Light, Cascade County Attorney, Great Falls, Montana

Submitted on Briefs: September 6, 2007

Decided: June 9, 2009

Filed:

__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.

¶1 Wilfred Morrisey appeals from his conviction of deliberate homicide in the Eighth

Judicial District Court, Cascade County. We affirm.

ISSUES

¶2 Morrisey raises four issues on appeal:

1. Did the District Court err in denying Morrisey’s motion to suppress statements

he made to law enforcement officers and the evidence recovered as a result of those

statements?

2. Did the District Court err in denying Morrisey’s motion to dismiss for violation

of his constitutional right to a speedy trial?

3. Did the District Court err in denying Morrisey’s motion for disclosure and

allowing Dr. Symes, a forensic anthropologist called by the State as a rebuttal witness, to

testify?

4. Was there sufficient evidence upon which a jury could find Morrisey guilty of

deliberate homicide beyond a reasonable doubt?

BACKGROUND

¶3 Nine-year-old Dolana Clark, who lived with her parents in Great Falls, Montana,

disappeared the evening of August 2, 1988. Friends and family last saw Dolana riding

her sister’s bicycle down 25th Street South at around 5:30 p.m. The police conducted an

extensive search but were unable to locate her. A year later, a hunter found Dolana’s

remains in the Little Belt Mountains southeast of Great Falls. Her skull had an entrance

wound in back and an exit wound in front caused by a small-caliber bullet.

2
¶4 Morrissey lived a couple of blocks from the Clark residence and had a close

relationship with the family during the years preceding Dolana’s disappearance. He ran

errands for them, joined them on picnics, and came to holiday dinners. The Clarks used

Morrisey’s telephone since they did not have one of their own. Dolana spent substantial

time at Morrisey’s house, and she and her older half-sister, Lisa, occasionally spent the

night there. At one point, Morrisey thought about marrying Lisa. He also talked to

Dolana about moving in with him once she got older. When Dolana disappeared,

Morrisey joined several members of the family in searching for her. About two weeks

after her disappearance, however, Morrisey ceased all interactions with the Clark family.

¶5 Morrisey became a suspect in Dolana’s disappearance based on his relationship

with Dolana, certain inconsistencies in his statements to investigators, and information

the police had learned through interviews with other witnesses. Detectives searched

Morrisey’s house and two vehicles but found no evidence indicating where Dolana might

be. They also found no weapons in the house, and Morrisey told them that he did not

own any weapons. He repeatedly denied any involvement in what happened to Dolana.

Morrisey left Great Falls a few months later and eventually settled in Colorado.

¶6 In 2002, the Great Falls police renewed the investigation into Dolana’s death.

Detectives reviewed the case file, including statements Morrisey had given back in 1988,

and ultimately developed the following theory: Dolana went to Morrisey’s house the

evening of August 2, 1988, after her father had refused to give her money to purchase a

Siamese cat on layaway at a local pet store; Morrisey killed Dolana at some point during

the evening and placed her body and bicycle in the trunk of his 1963 Chevy Impala; he

3
then joined family members in searching for Dolana but refused to use either of his

vehicles in the search; afterward, he drove her body up to the mountains where it was

found a year later; and he then returned to town by roughly 6:30 the morning of August 3.

¶7 The Cascade County Attorney’s Office obtained warrants to search Morrisey’s

residence (which was in a remote location in Weston, Colorado), his Impala, and his

1985 Chevy Camaro. Sergeant John Cameron and Detectives John Schaffer and William

Bellusci of the Great Falls Police Department then traveled to Colorado and met with

officers from the Las Animas County Sheriff’s Office and the Colorado Bureau of

Investigation. With these officers’ assistance, Cameron, Schaffer, and Bellusci executed

the search warrants on September 3, 2002.

¶8 While en route to Morrisey’s residence that morning, Sergeant Martinez of the Las

Animas County Sheriff’s Office noticed Morrisey driving by in the opposite direction in

a 1982 Chevy pickup. Martinez initiated a traffic stop, and Cameron advised Morrisey of

the search warrants. Cameron asked Morrisey to return with the officers to his residence

and provide them access to the house and vehicles. Morrisey complied.

¶9 Once at Morrisey’s house, Cameron served him with the search warrants, read him

his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966), and proceeded

with the search, leaving Morrisey with Detectives Schaffer and Bellusci. During the

ensuing conversation with the detectives, Morrisey gave a number of incriminating

statements. Among other things, he told them that he owned a .22-caliber rifle, which he

had broken into several pieces, and that he had thrown parts of the rifle away but had

buried the barrel in the mountains behind his house. He also stated that he had done all

4
of this just a couple of weeks earlier after finding out that the police had renewed their

investigation into Dolana’s death. He explained that he got rid of the gun “because I

knew I was going to get pinned with something I didn’t do.”

¶10 Morrisey directed the detectives to the location where he had buried the rifle

barrel. After recovering the barrel, they transported him to the local police station to give

a videotaped statement. During the interview, Morrisey admitted that he had lied to

detectives in 1988 when he told them that he did not have any weapons. He claimed,

however, that he had loaned his rifle to Dolana’s father one week before she disappeared

and that the rifle was not returned until a week after her disappearance.

¶11 The State charged Morrisey on September 4, 2002, with deliberate homicide, a

felony, in violation of § 45-5-102(1)(a), MCA (1987). In May 2004, following a number

of continuances and the filing of an amended information, Morrisey filed a motion to

suppress his statements to the detectives and any evidence recovered as a result of those

statements. The District Court held a hearing, at which Cameron, Schaffer, Bellusci, and

Morrisey testified, and thereafter denied the motion. In September 2005, following more

continuances, Morrisey filed a motion to dismiss on the ground that his right to a speedy

trial had been violated. The District Court held a hearing and thereafter denied that

motion as well. The case then proceeded to a four-day jury trial in November 2005. The

jury found Morrisey guilty, and the District Court sentenced him to the Montana State

Prison for life with no eligibility for parole. Morrisey now appeals.

¶12 Additional facts and procedural background are set forth below as they relate to

each issue under consideration.

5
 DISCUSSION

¶13 ISSUE 1. Did the District Court err in denying Morrisey’s motion to suppress
statements he made to law enforcement officers and the evidence recovered as a
result of those statements?

I. Standard of Review

¶14 In reviewing a district court’s ruling on a motion to suppress evidence or

statements, we determine whether the court’s underlying factual findings are clearly

erroneous and whether the court’s interpretation and application of the law are correct.

State v. Munson, 2007 MT 222, ¶ 18, 339 Mont. 68, 169 P.3d 364. The court’s findings

of fact are clearly erroneous if they are not supported by substantial evidence, if the court

has misapprehended the effect of the evidence, or if this Court’s review of the record

leaves us with a definite or firm conviction that a mistake has been made. Munson, ¶ 18.

II. Facts and Arguments Related to Morrisey’s Motion to Suppress

¶15 As noted, while en route to Morrisey’s Colorado residence to execute the search

warrants, Sergeant Martinez noticed Morrisey driving by in a pickup in the opposite

direction. Martinez, who was driving a marked squad car, turned around and initiated a

traffic stop using his overhead lights. Sergeant Cameron and Detective Schaffer were in

the squad car with Martinez at the time. Morrisey pulled over, and Martinez (who was in

full uniform) instructed Morrisey to exit the vehicle. Cameron and Schaffer (who were in

plain clothes but displaying their badges and guns) then approached Morrisey, identified

themselves as law enforcement officers from Great Falls, and advised him of the search

warrants. Cameron asked Morrisey if he had any weapons, and Morrisey replied that he

had a loaded .38-caliber revolver in the pickup. Cameron stated that he would need to

6
secure the weapon and that he would also be taking control of the pickup. Cameron took

Morrisey’s keys and asked him to return with them to his residence. Morrisey agreed to

do so, and the officers then placed him in the caged back seat of Martinez’s squad car for

transport. Cameron followed in Morrisey’s pickup. At no point during his time with the

detectives that day was Morrisey advised that he was free to leave.

¶16 Approximately eight to ten law enforcement officers were present at Morrisey’s

residence to conduct the search of his house and cars. After arriving, Cameron activated

a microcassette recorder, served Morrisey with the search warrants, and told him that

“[t]his is probably going to take us at least two days.” Cameron then read Morrisey his

Miranda rights. When Cameron first stated, “You have the right to remain silent,”

Morrisey interjected, “Yeah, I will.” Likewise, when Cameron stated, “Anything you say

can and will be used against you in a court of law,” Morrisey replied, “I ain’t saying

nothing.” Cameron next informed Morrisey: “You have the right to an attorney. One

will be appointed to [sic] you prior to any questioning if you desire. If you wish to

answer questions now without an attorney, you have the right to stop answering at any

time. Do you understand that, Mr. Morrisey?” Morrisey responded, “Yes, got it.”

¶17 Following this, the detectives conversed with and questioned Morrisey for the next

three to four hours. Morrisey contends that in so doing, the detectives infringed his right

to remain silent. In addition, he argues that through “continued prodding” and “improper

use of their influence,” the detectives “lured” him into speaking with them and that his

statements, therefore, were not made voluntarily. Given these arguments, it is necessary

to detail relevant portions of the dialogue between Morrisey and the detectives.

7
¶18 After giving the Miranda warnings, Cameron informed Morrisey that his house

was in the officers’ control. Cameron asked Morrisey where the Impala and Camaro

were, requested that Morrisey provide the keys to the house and cars, and asked which

key opened which door. Cameron then proceeded with the search and left Morrisey with

Detectives Schaffer and Bellusci, at which point the following discussion ensued:

Detective 1: Okay – we sure appreciate your cooperation.
Morrisey: Well, I’ve got nothing to hide.
Detective: Well that’s excellent –
Morrisey: I do have nothing to hide.
Detective: Good. You know why we’re here –
Morrisey: I got a feeling.
Detective: Okay –
Morrisey: I got a feeling – yes.
Detective: It’s in reference to the Dolana Clark investigation.
Morrisey: I have a feeling. I have nothing to hide.
Detective: And this is one of those –
Morrisey: Lower and raise it – it acts up a little bit, okay? All right. There’s the
cars in there, all right –
Detective: My job, Bill, is two-fold, okay? I’m assigned to this case and what I
want to do is – there’s a million that were talked to back in 1988 –
about this and you were one of the people that were talked to about
that, too –
Morrisey: Yes.
Detective: And we want to get it cleared up – we want to get this case done. Part
of my job – is to – try to hold the person responsible who did this.
Morrisey: Yes.
Detective: The other part of my job is to clear those that are not.
Morrisey: All right.
Detective: And that’s one of the reasons we’re here is to – is to –
Morrisey: Arrest –
Detective: Get this taken care of – hopefully sit down, visit with you and see
where we can – see if we can get this resolved.
Morrisey: All right.
Detective: Fair enough?
Morrisey: That is fair. I got no complaints.

1
The transcript does not identify which of the two detectives is speaking.

8
¶19 At this point, the conversation turned to other topics. In summary, Morrisey stated

he wanted to be present in the house during the search, but the detectives would not allow

that. When he expressed concern that an officer might “steal” something, the detectives

explained that the officers would be taking photographs first and that any evidence seized

would be documented. Morrisey inquired whether they had “done this” to Dolana’s

father also, and the detectives told him they were “talking to everybody.” They asked

Morrisey whether he had any other loaded weapons, and he responded that he did, noting

that there were bears and mountain lions in the area. He told them about an incident in

which a bear had caused damage to his house. He also informed them that he had a pet

cat, which he insisted was not Siamese, noting that he had “a witness to where I got it

when I was in Illinois.” He asked them not to let the cat outside. An officer asked to use

the phone, and Morrisey told him there was one in the laundry room. The detectives and

Morrisey also discussed the weather, when he moved to the area, why he had decided to

settle in that part of Colorado, whether he was active in church, where he does his

banking, how far his property line extended, and why he did not have a computer or

Internet access.

¶20 Schaffer and Bellusci then reiterated that they wanted “to sit down and just visit

with you and get a formal statement.” They put Morrisey in an unmarked police car and

proposed driving to the local sheriff’s office, but Morrisey indicated that he would not

feel comfortable talking there, so they drove to a local café instead. On the way there,

Morrisey remarked on where he buys his gas and groceries, why he was unmarried, and

the experiences he had with the police during the 1988 investigation. Notably, one of the

9
detectives commented that “it looks to me like you were a bit traumatized by the police

before.” He told Morrisey, “I want you to relax.” They discussed several other topics

(an old coal mine they passed on the highway, Morrisey’s encounters with bears on his

property, the price of gas), and then one of the detectives noted that he had read

Morrisey’s 1988 statement to the police and felt that Morrisey had been “really protective

of folks around you.” He asked Morrisey to be “neutral” this time. He also mentioned

that the investigators were not going to leave any stone unturned, to which Morrisey

replied, “I have nothing to hide.” The conversation then returned to other topics.

¶21 Morrisey, Schaffer, and Bellusci arrived at the café, but the conditions there were

not conducive to discussing Dolana’s homicide. So, they walked to a nearby picnic table,

but it began to rain. Thus, they returned to the police car. At the outset of the formal

interview, the following exchange occurred:

Detective: Let’s get rolling – you know Dolana Clark.
Morrisey: Yes I did know her.
Detective: Okay and you know that we’re up here investigating – the homicide of
Dolana Clark.
Morrisey: I do know.
Detective: You know that you have been a suspect listed in that case.
Morrisey: Evidently I have been.
Detective: You’ve been advised of your rights?
Morrisey: Yes.
Detective: Okay and you’re willing to talk to us about it.
Morrisey: I will talk.

¶22 During the interrogation, Morrisey stated initially that he did not own a .22-caliber

rifle; however, he later admitted that he did own a .22 when he was living in Great Falls,

but he claimed that he had “sold it a long time ago” at a flea market in Illinois. Then,

after further questioning, he stated that he did not sell the gun, but rather threw it off a

10
bridge into the Mississippi River. Ultimately, however, Morrisey acknowledged that he

had the gun until a couple of weeks earlier when he learned through a friend that the

police had renewed their investigation into Dolana’s death and were asking about small-

caliber guns. He explained that he then cleaned and dismantled the rifle, threw parts of it

in a trash dumpster, and buried the barrel under some rocks in the mountains behind his

house. Morrisey directed the detectives to the location of the barrel. When they further

inquired about the other pieces of the rifle, Morrisey stated that “you’ll never find them”

because he had thrown them “all along the highway.” Throughout the interview,

Morrisey repeatedly insisted that he did not kill Dolana. He also expressed his belief that

Dolana’s father had done so.

¶23 In his motion to suppress, Morrisey argued that “the failure of the police to

immediately terminate the interview” after he told Cameron “I ain’t saying nothing”

violated his right to remain silent under Miranda, as interpreted in Michigan v. Mosley,

423 U.S. 96, 96 S. Ct. 321 (1975) (requiring the exclusion of statements obtained during

a custodial interrogation if the police did not “scrupulously honor” the suspect’s right to

cut off questioning). He also argued that the detectives questioned him “relentlessly” and

“intimidated” him until they “overcame his resistance” and he “reluctantly” agreed to

speak with them. On appeal, Morrisey again contends that under Mosley, “the officers

should have ceased their interrogation once Cameron first advised Morrisey of his right

to remain silent and Morrisey stated that he was not saying anything.” He also claims his

statements were not made voluntarily, but were the product of “continued prodding” and

“improper use” of the detectives’ influence and interrogation “techniques.”

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¶24 In response to Morrisey’s motion, the State argued that he was not in custody

when he made his statements and that, in any event, the detectives were free to continue

questioning him because he did not invoke his right to counsel. The State also argued

that Morrisey was not subjected to police coercion or intimidation and that it could be

“inferred” from his words and actions that he waived his right to be silent and voluntarily

answered questions. The State reiterates this argument on appeal. In addition, the State

contends that Morrisey did not validly invoke his right to remain silent in the first place,

and even if he did, this does not mean that questioning could never be resumed.

III. Applicable Law

¶25 Morrisey and the State conflate into one analysis (1) the alleged involuntariness of

his statements and (2) the detectives’ alleged failure to “scrupulously honor” his right to

remain silent. This appears to be due in part to the procedural history of this case. The

District Court denied Morrisey’s motion to suppress on the ground that he “was not

subjected to a custodial interrogation and thus Miranda warnings were not required and

whether he invoked his Miranda rights is moot.” But Morrisey then filed a petition for a

writ of supervisory control, and in denying that petition we stated that “the real issue is

not whether Morrisey was in custody, but whether his post Miranda statements were

voluntary.” However, with the benefit of a complete record, and in light of the doctrinal

distinctions discussed below, it is now clear that Morrisey challenges the admissibility of

his statements on two distinct grounds, and it is necessary to analyze those accordingly.

¶26 Prior to Miranda, the Supreme Court evaluated the admissibility of a suspect’s

confession under a voluntariness test that was grounded in the Fifth Amendment’s

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Self-Incrimination Clause (“No person . . . shall be compelled in any criminal case to be a

witness against himself.”) and the Fourteenth Amendment’s Due Process Clause. See

Dickerson v. United States, 530 U.S. 428, 432-33, 120 S. Ct. 2326, 2330 (2000); Withrow

v. Williams, 507 U.S. 680, 688, 113 S. Ct. 1745, 1751 (1993); Missouri v. Seibert, 542

U.S. 600, 607-08, 124 S. Ct. 2601, 2607 (2004) (plurality opinion). This voluntariness

test is based on notions of due process, and the essential inquiry is whether the suspect’s

will was overborne by the circumstances surrounding the giving of the confession.

Dickerson, 530 U.S. at 433-34, 120 S. Ct. at 2330-31. A court must examine the totality

of all the surrounding circumstances—both the characteristics of the individual and the

details of the interrogation—to determine whether the confession was given freely,

voluntarily, and without compulsion or inducement of any sort. See Dickerson, 530 U.S.

at 434, 120 S. Ct. at 2331; Withrow, 507 U.S. at 688-89, 693, 113 S. Ct. at 1751, 1754.

The Supreme Court has never abandoned this due process/totality-of-the-circumstances

test and continues to exclude confessions that were obtained involuntarily. See

Dickerson, 530 U.S. at 434, 120 S. Ct. at 2331; Withrow, 507 U.S. at 689, 113 S. Ct. at

1751; Miller v. Fenton, 474 U.S. 104, 109-10, 106 S. Ct. 445, 449 (1985); see also e.g.

Arizona v. Fulminante, 499 U.S. 279, 286-88, 111 S. Ct. 1246, 1252-53 (1991).

¶27 The Supreme Court’s decisions in Miranda and Malloy v. Hogan, 378 U.S. 1, 84

S. Ct. 1489 (1964), however, changed the focus of much of the inquiry in determining the

admissibility of a suspect’s incriminating statements. Dickerson, 530 U.S. at 434, 120

S. Ct. at 2331. First, in Malloy, the Court held that the Fifth Amendment’s Self-

Incrimination Clause is incorporated in the Fourteenth Amendment’s Due Process Clause

13
and, thus, applies to the States. Malloy, 378 U.S. at 6-11, 84 S. Ct. at 1492-95. Then,

two years later in Miranda, the Court held that the Fifth Amendment privilege against

self-incrimination is available outside of criminal court proceedings and serves to protect

persons “in all settings in which their freedom of action is curtailed in any significant

way from being compelled to incriminate themselves.” Miranda, 384 U.S. at 467, 86

S. Ct. at 1624. Furthermore, the Miranda Court recognized that the modern practice of

in-custody interrogation “contains inherently compelling pressures which work to

undermine the individual’s will to resist and to compel him to speak where he would not

otherwise do so freely.” Miranda, 384 U.S. at 467, 86 S. Ct. at 1624. The Court noted

that because “the coercion inherent in custodial interrogation blurs the line between

voluntary and involuntary statements,” Dickerson, 530 U.S. at 435, 120 S. Ct. at 2331,

the traditional due process/totality-of-the-circumstances test thus posed an “unacceptably

great” risk that involuntary custodial confessions would escape detection, Dickerson, 530

U.S. at 442, 120 S. Ct. at 2335; Seibert, 542 U.S. at 608, 124 S. Ct. at 2608.

¶28 Accordingly, the Supreme Court concluded that “adequate protective devices” are

necessary to dispel the compulsion inherent in custodial surroundings and to permit a full

opportunity to exercise the privilege against self-incrimination. Miranda, 384 U.S. at

458, 467, 86 S. Ct. at 1619, 1624. To that end, the Court laid down the now-familiar

“concrete constitutional guidelines” for law enforcement agencies and courts to follow.

Miranda, 384 U.S. at 442, 86 S. Ct. at 1611; see also Dickerson, 530 U.S. at 437-44, 120

S. Ct. at 2332-36 (holding that Miranda announced a constitutional rule which cannot be

superseded legislatively). When a person “is taken into custody or otherwise deprived of

14
his freedom by the authorities in any significant way and is subjected to questioning,”

Miranda, 384 U.S. at 478, 86 S. Ct. at 1630, he “must be adequately and effectively

apprised of his rights and the exercise of those rights must be fully honored,” Miranda,

384 U.S. at 467, 86 S. Ct. at 1624. Specifically, he “must be warned prior to any

questioning that he has the right to remain silent, that anything he says can be used

against him in a court of law, that he has the right to the presence of an attorney, and that

if he cannot afford an attorney one will be appointed for him prior to any questioning if

he so desires.” Miranda, 384 U.S. at 479, 86 S. Ct. at 1630. Moreover, “[o]pportunity to

exercise these rights must be afforded to him throughout the interrogation.” Miranda,

384 U.S. at 479, 86 S. Ct. at 1630. Failure to give the warnings and obtain a waiver of

rights prior to custodial questioning generally requires exclusion of any statements

obtained.2 Miranda, 384 U.S. at 476, 479, 86 S. Ct. at 1629, 1630. Conversely, giving

the warnings and getting a waiver generally produces “a virtual ticket of admissibility.”3

Seibert, 542 U.S. at 608-09, 124 S. Ct. at 2608.

¶29 In sum, no person may be “compelled” in any criminal case to be a witness against

himself or herself. U.S. Const. amend. V. The due process/totality-of-the-circumstances

test and the Miranda doctrine both serve to protect this privilege. The former asks

2
The Supreme Court has since recognized exceptions to Miranda’s exclusionary
rule. See New York v. Quarles, 467 U.S. 649, 655-59, 104 S. Ct. 2626, 2631-33 (1984)
(recognizing a “public safety” exception); Harris v. New York, 401 U.S. 222, 224-26, 91
S. Ct. 643, 645-46 (1971) (unwarned but otherwise voluntary statements may be used to
impeach a defendant’s testimony at trial). Neither of these exceptions has been argued
here.
3
The prosecution has the burden of proving admissibility, including compliance
with Miranda and the voluntariness of the statements. Seibert, 542 U.S. at 608 n. 1, 124
S. Ct. at 2608 n. 1; Miranda, 384 U.S. at 479, 86 S. Ct. at 1630; § 46-13-301(2), MCA.

15
whether the suspect’s will was overborne by the circumstances surrounding the giving of

his or her statements. A statement that was actually coerced must be excluded from trial

for all purposes. See Kansas v. Ventris, ___ U.S. ___, 129 S. Ct. 1841, 1845 (2009)

(citing New Jersey v. Portash, 440 U.S. 450, 458-59, 99 S. Ct. 1292, 1296-97 (1979)).

Separate and apart from this due process test, the Miranda doctrine applies specifically to

custodial interrogation and requires that certain procedural safeguards be used in this

context. Failure to give the prescribed warnings prior to questioning does not constitute

actual coercion; rather, it creates “a bright-line, legal presumption of coercion” which is

“irrebuttable for purposes of the prosecution’s case in chief.” Oregon v. Elstad, 470 U.S.

298, 306-07 & n. 1, 105 S. Ct. 1285, 1292 & n. 1 (1985); accord United States v. Patane,

542 U.S. 630, 639, 124 S. Ct. 2620, 2627 (2004) (plurality opinion).

¶30 Thus, a custodial statement which may be “voluntary” under traditional due

process standards is nevertheless presumed coerced under Miranda and is generally

inadmissible at trial if law enforcement failed to provide the warnings and obtain a valid

waiver of the Miranda rights. See Dickerson, 530 U.S. at 444, 120 S. Ct. at 2336;

Withrow, 507 U.S. at 690, 113 S. Ct. at 1752; Elstad, 470 U.S. at 304, 105 S. Ct. at 1290;

Miranda, 384 U.S. at 457, 479, 86 S. Ct. at 1618-19, 1630. In that case, a due process

analysis would be unnecessary. Conversely, where there has been no Miranda violation

or the Miranda rule simply does not apply, the defendant may still challenge the

admissibility of his statement on due process grounds. See Dickerson, 530 U.S. at 444,

120 S. Ct. at 2336; Elstad, 470 U.S. at 307-08, 105 S. Ct. at 1292; Berkemer v. McCarty,

468 U.S. 420, 433 n. 20, 104 S. Ct. 3138, 3147 n. 20 (1984); New York v. Quarles, 467

16
U.S. 649, 655 n. 5, 104 S. Ct. 2626, 2631 n. 5 (1984). Importantly, both the due

process/totality-of-the circumstances test and the Miranda test apply where the defendant

challenges statements made during a custodial interrogation.

¶31 With these distinctions in mind, we first address Morrisey’s Miranda-based claim,

after which we address his due process voluntariness claim.

IV. Analysis of Morrisey’s Miranda-Mosley Claim4

A. Mosley’s “Scrupulously Honor” Standard

¶32 Morrisey does not contend that the detectives failed to give him the Miranda

warnings prior to questioning. Rather, he contends that they failed to honor his assertion

of his right to remain silent, thus requiring the suppression of his statements. This claim

derives from the following passage in Miranda:

Once warnings have been given, the subsequent procedure is clear.
If the individual indicates in any manner, at any time prior to or during
questioning, that he wishes to remain silent, the interrogation must cease.

4
In his motion, Morrisey sought to suppress both the statements he made to the
detectives and “any evidence recovered as a result of those statements.” Yet, in Patane, a
fragmented Supreme Court held that a Miranda violation does not require suppression of
the physical fruits of a suspect’s unwarned but otherwise voluntary statements. Patane,
542 U.S. at 636-37, 124 S. Ct. at 2626 (Opinion of Thomas, J., joined by Rehnquist, C.J.,
& Scalia, J.); 542 U.S. at 644-45, 124 S. Ct. at 2630-31 (Kennedy & O’Connor, JJ.,
concurring in the judgment). Several state appellate courts have rejected Patane under
their respective state constitutions. See Commonwealth v. Martin, 827 N.E.2d 198 (Mass.
2005); State v. Knapp, 700 N.W.2d 899 (Wis. 2005); State v. Farris, 849 N.E.2d 985
(Ohio 2006); State v. Peterson, 923 A.2d 585 (Vt. 2007); State v. Vondehn, 184 P.3d 567
(Or. App. 2008), rev. allowed, 200 P.3d 146 (Or. 2008). However, Morrisey has not
made any arguments specific to Article II, Section 25 of the Montana Constitution (which
provides that “[n]o person shall be compelled to testify against himself in a criminal
proceeding”). Thus, we consider only his statements, and not the physical fruits of those
statements; and as we did in State v. Adkins, 2009 MT 71, ¶ 27 n. 1, 349 Mont. 444, 204
P.3d 1, we again leave open the question of whether the exclusionary rule applies to
physical evidence obtained through an un-Mirandized but otherwise voluntary statement.

17
 At this point he has shown that he intends to exercise his Fifth Amendment
privilege; any statement taken after the person invokes his privilege cannot
be other than the product of compulsion, subtle or otherwise. Without the
right to cut off questioning, the setting of in-custody interrogation operates
on the individual to overcome free choice in producing a statement after the
privilege has been once invoked.

Miranda, 384 U.S. at 473-74, 86 S. Ct. at 1627-28 (footnote omitted).

¶33 The Supreme Court interpreted this passage in Michigan v. Mosley, 423 U.S. 96,

96 S. Ct. 321 (1975). The Court first rejected the notion that the passage requires only

the immediate cessation of questioning and permits a resumption of interrogation after a

momentary respite. The Court reasoned that “[t]o permit the continuation of custodial

interrogation after a momentary cessation would clearly frustrate the purposes of

Miranda by allowing repeated rounds of questioning to undermine the will of the person

being questioned.” Mosley, 423 U.S. at 102, 96 S. Ct. at 326. Likewise, the Court

rejected the opposite extreme under which a person who has invoked his right to silence

can never again be subjected to custodial interrogation by any police officer at any time

or place on any subject. The Court reasoned that “a blanket prohibition against the taking

of voluntary statements or a permanent immunity from further interrogation, regardless of

the circumstances, would transform the Miranda safeguards into wholly irrational

obstacles to legitimate police investigative activity, and deprive suspects of an

opportunity to make informed and intelligent assessments of their interests.” Mosley, 423

U.S. at 102, 96 S. Ct. at 326.

¶34 The Court instead settled on a middle ground. The critical safeguard identified in

the passage at issue, the Court noted, is a person’s “right to cut off questioning.”

18
Through the exercise of that right, the person can “control the time at which questioning

occurs, the subjects discussed, and the duration of the interrogation.” Mosley, 423 U.S. at

103-04, 96 S. Ct. at 326. In turn, the requirement that law enforcement respect a person’s

exercise of the right to cut off questioning “counteracts the coercive pressures of the

custodial setting.” Mosley, 423 U.S. at 104, 96 S. Ct. at 326. Thus, the Court adopted the

following standard: “the admissibility of statements obtained after the person in custody

has decided to remain silent depends under Miranda on whether his ‘right to cut off

questioning’ was ‘scrupulously honored.’ ”5 Mosley, 423 U.S. at 104, 96 S. Ct. at 326.

¶35 Before we consider whether the officers satisfied this standard in the present case,

we must address two preliminary matters: whether Morrisey was subjected to custodial

interrogation and whether Morrisey invoked his right to remain silent.

B. Custodial Interrogation

¶36 Because the rules articulated in Miranda and its progeny protect persons who are

subjected to interrogation while in custody, Morrisey cannot invoke Miranda’s

exclusionary rule unless his statements stemmed from a custodial interrogation. See

Slwooko v. State, 139 P.3d 593, 602-04 (Alaska App. 2006), and cases cited therein. The

State disposes of this question as follows: “For the sake of complying with the word

5
In contrast, if the person asks for an attorney (i.e., invokes his Fifth Amendment
right to counsel under Miranda), then the interrogation must stop and the person is not
subject to further interrogation until counsel has been made available to him (unless the
suspect himself initiates further communication with the police). Edwards v. Arizona,
451 U.S. 477, 484-85, 101 S. Ct. 1880, 1885 (1981); Montejo v. Louisiana, ___ U.S. ___,
___ S. Ct. ___, 173 L. Ed. 2d 955, 968 (2009); see also Arizona v. Roberson, 486 U.S.
675, 682-85, 108 S. Ct. 2093, 2098-2100 (1988) (holding that the Edwards rule is not
offense-specific); State v. Buck, 2006 MT 81, ¶ 39, 331 Mont. 517, 134 P.3d 53 (noting
the distinction between the Fifth Amendment and Sixth Amendment rights to counsel).

19
limit of the Appellate Rules, the State will not address the issue whether Morrisey was

subject to ‘custodial interrogation,’ although it agrees with the district court’s analysis

that Morrisey was not ‘in custody.’ ”6 Based on our independent review of the record,

however, we agree with Morrisey that the statements at issue here were the product of

custodial interrogation. As the District Court noted, there is no dispute that Morrisey was

interrogated about Dolana’s homicide. Thus, we focus on the question of custody.

¶37 A person is “in custody” for Miranda purposes if he has been deprived of his

freedom of action in any significant way or his freedom of action has been curtailed to a

degree associated with a formal arrest. State v. Munson, 2007 MT 222, ¶ 21, 339 Mont.

68, 169 P.3d 364. This determination focuses on whether, given the circumstances

surrounding the interrogation, “a reasonable person [would] have felt he or she was not at

liberty to terminate the interrogation and leave.” Thompson v. Keohane, 516 U.S. 99,

112, 116 S. Ct. 457, 465 (1995); see also Munson, ¶ 23 (listing circumstances pertinent to

6
The Montana Rules of Appellate Procedure do not allow for “shortcut tactics”
such as this. State v. Ferguson, 2005 MT 343, ¶ 40, 330 Mont. 103, 126 P.3d 463. The
argument section of an appellee’s brief must contain legal analysis and citations to
relevant authority with respect to the issues presented. See M. R. App. P. 23(b) (2005),
superseded, M. R. App. P. 12(2) (2007); see also M. R. App. P. 23(g)(i) (2005),
superseded, M. R. App. P. 12(10) (2007) (providing for over-length briefs). As we have
previously stated, “[t]he requirement that appellate briefs ‘contain’ a party’s contentions
unquestionably precludes parties from incorporating trial briefs or any other kind of
argument into appellate briefs by mere reference. Simply put, appellate arguments must
be contained within the appellate brief, not within some other document.” Ferguson,
¶ 41. The State’s approach, moreover, is totally incongruous in light of its position in
State v. Cybulski, 2009 MT 70, 349 Mont. 429, 204 P.3d 7, where the State argued that
“allowing [the appellant] to incorporate trial arguments into appellate briefs by reference
seriously undermines the word and page limitations in M. R. App. P. 11(4)” (formerly
M. R. App. P. 27(d) (2005)). Cybulski, ¶ 14. Likewise here, incorporating the District
Court’s analysis into its appellate brief by reference undermines the very word and page
limitations with which the State purports to be complying.

20
this inquiry). Here, Morrisey was stopped by armed police officers pursuant to a traffic

stop in a remote area. The officers took control of his pickup and placed him in the caged

back seat of their squad car for transport back to his house. They then took control of his

house and his other two vehicles. He was given the Miranda warnings which, although

not dispositive (see Munson, ¶ 23 n. 1), certainly contributes to a reasonable person’s

understanding that he or she is being held as a criminal suspect. See People v. Aguilera,

59 Cal. Rptr. 2d 587, 593 n. 6 (Cal. App. 6th Dist. 1996); People v. Brown, 554 N.E.2d

216, 221-22 (Ill. 1990); see also e.g. State v. Lacey, 2009 MT 62, ¶ 63, 349 Mont. 371,

204 P.3d 1192. Eight to ten law enforcement officers were present at his residence. He

was accompanied by at least two officers at all times (while in the front yard, on the trip

to the café, and during the interview). They told him that they “came a long ways to talk

to you about [Dolana’s homicide]” and wanted to “get a formal statement” then and there

because they were “not coming back here.” The detectives put Morrisey in another

police car and transported him elsewhere for an interview. They became increasingly

forceful in their questioning, directing him several times to stay on point and repeatedly

challenging the veracity of his answers. It is true that when he objected to doing the

interview at the local sheriff’s office, they allowed him to choose another location. It is

also true that they did not physically restrain him with handcuffs or by use of force.

Nevertheless, they controlled his actions while at his house, they took him from his house

in a police car for purposes of an interrogation, and they told him that they needed to get

a formal statement that day. Morrisey was never advised that he was free to leave; to the

contrary, through their statements and conduct, the detectives communicated that he was

21
under their control and would not be let out of their presence until he gave a statement.7

In sum, a reasonable person in Morrisey’s shoes would not have felt free to terminate the

interrogation, get out of the police car, and leave. The totality of the circumstances

establishes that he was in custody, having been “deprived of his freedom of action in [a]

significant way.” Miranda, 384 U.S. at 444, 86 S. Ct. at 1612.

C. Invocation of the Right to Remain Silent

¶38 The State asserted in the District Court that Morrisey “did not invoke his right to

counsel; therefore the police were free to continue questioning him.” The issue, however,

is whether he invoked his right to remain silent, and the fact that he “did not request an

attorney is certainly irrelevant to the question of whether he invoked his right to remain

silent.” United States v. Rambo, 365 F.3d 906, 910 (10th Cir. 2004). Moreover, it does

not follow that the police were free to continue questioning Morrisey simply because he

did not invoke his right to counsel. If he invoked his right to remain silent, the police

were required to cease any interrogation and to “scrupulously honor” his right to cut off

questioning. Mosley, 423 U.S. at 100, 104, 96 S. Ct. at 325, 326.

¶39 Alternatively, the State argues that Morrisey’s invocation of his right to remain

silent was invalid because it was ambiguous or equivocal. This standard, which derives

7
At the suppression hearing, Cameron testified that Morrisey “could have left at
any time.” Schaffer and Bellusci testified to the same effect. However, the detectives
acknowledged that not one of them communicated this fact to Morrisey, and it is well-
settled that “an officer’s undisclosed view that the individual may (or may not) terminate
the interview and leave has no bearing on the question whether the individual was in
custody at the time.” Munson, ¶ 21; accord Evans v. District Court, 2000 MT 38, ¶ 21,
298 Mont. 279, 995 P.2d 455. “Custody” depends on objective circumstances, not on the
subjective and undisclosed views harbored by the officers. Stansbury v. California, 511
U.S. 318, 323-24, 114 S. Ct. 1526, 1529-30 (1994) (per curiam).

22
from Davis v. United States, 512 U.S. 452, 459, 114 S. Ct. 2350, 2355 (1994), applies to

a post-waiver invocation of the Miranda right to counsel (i.e., an invocation after having

initially waived that right), and the Supreme Court has not yet directly addressed whether

it applies to the right to remain silent, let alone a pre-waiver invocation of that right. See

DeWeaver v. Runnels, 556 F.3d 995, 1000-01 & n. 1 (9th Cir. 2009) (noting that an

ambiguous pre-waiver assertion might require a different analysis); State v. Leyva, 951

P.2d 738, 743 (Utah 1997) (refusing to extend Davis to pre-waiver scenarios). But even

assuming, arguendo, that a person in custody must articulate his pre-waiver desire not to

answer questions “sufficiently clearly that a reasonable police officer in the

circumstances would understand the statement to be” an assertion of the right to remain

silent, Davis, 512 U.S. at 459, 114 S. Ct. at 2355, we conclude that Morrisey did so.

¶40 “[A] suspect need not ‘speak with the discrimination of an Oxford don.’ ” Davis,

512 U.S. at 459, 114 S. Ct. at 2355. Nor need he “rely on talismanic phrases or any

special combination of words to invoke his Fifth Amendment right to remain silent.”

United States v. Ramirez, 79 F.3d 298, 304 (2d Cir. 1996); accord McGraw v. Holland,

257 F.3d 513, 518 (6th Cir. 2001). Laypeople are not learned in constitutional principle

or legal nicety, and to require that precise words be uttered would elevate form over

substance. State v. Spang, 2002 MT 120, ¶ 23, 310 Mont. 52, 48 P.3d 727, overruled in

part on other grounds, State v. Buck, 2006 MT 81, ¶ 48, 331 Mont. 517, 134 P.3d 53.

Whether the suspect invoked his Miranda rights is an objective inquiry. See Davis, 512

U.S. at 458-59, 114 S. Ct. at 2355. Here, when Cameron told Morrisey, “You have the

right to remain silent,” Morrisey responded, “Yeah, I will.” And when Cameron stated,

23
“Anything you say can and will be used against you in a court of law,” Morrisey asserted,

“I ain’t saying nothing.” Taken together, we find nothing ambiguous or equivocal about

these responses. Cf. State v. Szpyrka, 202 P.3d 524, ¶ 5 (Ariz. App. 2d Div. 2008)

(finding no meaningful difference between the defendant’s statement “I got nothin’ to

say” and the locution “I wish to remain silent”); People v. Carey, 227 Cal. Rptr. 813,

814-15 (Cal. App. 2d Dist. 1986) (“I ain’t got nothin’ to say” was sufficient to invoke the

right to remain silent); Cuervo v. State, 967 So.2d 155, 163 (Fla. 2007) (“No quiero

declarar nada,” or “I don’t want to declare anything,” constituted a clear invocation of the

right to remain silent); State v. Crump, 834 S.W.2d 265, 269-70 (Tenn. 1992) (“I don’t

have anything to say” was sufficient to invoke the right to remain silent).

¶41 The State notes Morrisey’s subsequent statements to the detectives and contends

that his remarks could not have been interpreted to mean that he was unwilling to talk.

But a suspect’s post-request responses to further questioning “may not be used to cast

retrospective doubt on the clarity of the initial request itself.” Smith v. Illinois, 469 U.S.

91, 100, 105 S. Ct. 490, 495 (1984) (per curiam). We conclude that a reasonable police

officer in the circumstances would have understood Morrisey’s initial statements to be an

assertion of his right to remain silent.8

8
To the extent the detectives found Morrisey’s statements to be ambiguous or
equivocal, it is “good police practice” in such situations for the interviewing officers to
clarify whether or not the suspect is actually invoking his Miranda rights. See Davis, 512
U.S. at 461, 114 S. Ct. at 2356; Simmons v. Bowersox, 235 F.3d 1124, 1132 n. 3 (8th Cir.
2001); see also e.g. State v. Maestas, 2006 MT 101, ¶ 18, 332 Mont. 140, 136 P.3d 514.
Clarifying questions help protect the rights of the suspect and will minimize the chance of
a confession being suppressed due to subsequent judicial second-guessing as to the
meaning of the suspect’s statement. Davis, 512 U.S. at 461, 114 S. Ct. at 2356.

24
 D. Application of the “Scrupulously Honor” Standard

¶42 Having concluded that Morrisey was subjected to custodial interrogation and

invoked his right to remain silent, we now address whether that right was infringed thus

requiring the suppression of his statements. The central question is whether his right to

cut off questioning was “scrupulously honored.” Mosley, 423 U.S. at 104, 96 S. Ct. at

326. The Mosley Court did not announce a bright-line rule for determining whether the

police satisfied this standard, but the Court did indicate that “refusing to discontinue the

interrogation upon request” or “persisting in repeated efforts to wear down [the person’s]

resistance and make him change his mind” would violate the “scrupulously honor”

requirement. See Mosley, 423 U.S. at 105-06, 96 S. Ct. at 327. Short of such conduct,

the determination depends on surrounding circumstances, such as the amount of time that

elapsed between the assertion of the right to remain silent and the resumption of

questioning, whether the person was given a fresh set of Miranda warnings and a full and

fair opportunity to exercise his rights, whether the second interrogation concerned the

same crime that the person previously declined to discuss, and the intensity with which

the police pursued questioning after the suspect asserted the right to silence. See Mosley,

423 U.S. at 104-06, 96 S. Ct. at 326-27; United States v. Barone, 968 F.2d 1378, 1383-84

(1st Cir. 1992). Unlike the traditional voluntariness test, where the suspect’s state of

mind is central (see ¶ 26, supra), the Mosley test focuses on “what the police did, and

when,” after the suspect exercised the right to remain silent. Barone, 968 F.2d at 1384.

¶43 The present case does not involve a refusal by the police to discontinue an

interrogation upon request. First, when Morrisey first asserted his right to remain silent,

25
there was no interrogation in progress. Then, at the outset of the formal interview, he

told the detectives that he was willing to talk to them about Dolana’s homicide; and at no

point thereafter did he ask that questioning be terminated. Morrisey points out that in the

interim between his assertion of the right to remain silent and the start of the formal

interview, the detectives conversed with him about a variety of topics (see ¶¶ 18-20,

supra), which in Morrisey’s view violated Mosley. However, none of the detectives’

questions and comments constituted interrogation. “Interrogation,” as conceptualized in

Miranda, “must reflect a measure of compulsion above and beyond that inherent in

custody itself.” Rhode Island v. Innis, 446 U.S. 291, 300, 100 S. Ct. 1682, 1689 (1980).

A definition that included any question posed by a police officer would be broader than

that required to implement the policy of Miranda itself. United States v. Foster, 227 F.3d

1096, 1102-03 (9th Cir. 2000). Thus, the Supreme Court has stated that “interrogation”

under Miranda extends only to “words or actions on the part of the police (other than

those normally attendant to arrest and custody) that the police should know are

reasonably likely to elicit an incriminating response from the suspect.” Innis, 446 U.S. at

301-02, 100 S. Ct. at 1689-90 (footnote omitted). Here, Cameron asked Morrisey a few

questions related to the search and then left Morrisey with Schaffer and Bellusci, who in

turn informed Morrisey why they were there and told him that they wanted to sit down

with him and discuss Dolana’s homicide. Morrisey responded, “That is fair. I got no

complaints.” He also stated several times, “I have nothing to hide.” From that point

forward until the formal interview began, the three of them conversed about numerous

topics which had nothing to do with the investigation. Although the conversation did

26
touch on the investigation a few times, we cannot agree that the detectives should have

known that their questions and comments were reasonably likely to elicit incriminating

responses. Indeed, no incriminating response was elicited during this period.

¶44 This also is not a case in which the police persisted in repeated efforts to wear

down the suspect’s resistance and make him change his mind about remaining silent. To

the contrary, the transcript of the conversation preceding the formal interview shows that

Morrisey changed his mind of his own volition. With little or no prompting at all, he

freely conversed with the detectives about the weather, the surrounding landscape, his pet

cat, his guns, the price of gas, his relationship with his mother, his experiences with bears

in the area, where he does his banking, where he buys his gas and groceries, why he

decided to settle in that part of Colorado, why he was unmarried, and why he did not

have a computer or Internet access. Morrisey was hardly opposed to speaking; if

anything, he was loquacious. Furthermore, at the outset of the formal interview, the

detectives reminded him that he had been advised of his rights, they asked him whether

he was willing to talk to them about the homicide, and Morrisey stated, “I will talk.”

¶45 Morrisey points out that not long after he asserted his right to remain silent, the

detectives told him that “we want to get it cleared up – we want to get this case done” and

“hopefully sit down, visit with you and see where we can – see if we can get this

resolved.” In isolation, these statements could be viewed as an attempt to undermine

Morrisey’s resolve to remain silent. But by that point, he had already stated several times

that he had nothing to hide; and when read in context, the detectives’ remarks were not

part of an effort to induce Morrisey to talk when he otherwise would not do so.

27
¶46 In sum, the critical safeguard at issue is Morrisey’s right to cut off questioning and

thus control the time at which questioning occurs, the subjects discussed, and the duration

of the interrogation, thereby counteracting the coercive pressures of the custodial setting.

Mosley, 423 U.S. at 103-04, 96 S. Ct. at 326. The record before us does not support the

conclusion that this right was infringed. We hold, therefore, that Morrisey was not

entitled to suppression of his statements under his Miranda-Mosley theory.

V. Analysis of Morrisey’s Due Process/Totality-of-the-Circumstances Claim

¶47 As noted, the essential inquiry under the due process voluntariness test is whether

the suspect’s will was overborne by the circumstances surrounding the giving of the

confession. Dickerson, 530 U.S. at 433-34, 120 S. Ct. at 2330-31. A court must examine

the totality of all the surrounding circumstances, including the characteristics of the

individual and the details of the interrogation, to determine whether the confession was

given freely, voluntarily, and without compulsion or inducement of any sort. See

Dickerson, 530 U.S. at 434, 120 S. Ct. at 2331; Withrow, 507 U.S. at 688-89, 113 S. Ct.

at 1751. Various factors may be relevant to this inquiry, including: the defendant’s age,

maturity, education, physical condition, and mental health; the defendant’s demeanor,

coherence, articulateness, and capacity to make full use of his or her faculties; the

defendant’s background and experience, including any prior experience with the criminal

justice system and police interrogation; the length, mood, location, and continuity of the

questioning; the use of threats, violence, or physical punishment (such as the deprivation

of food or sleep); the exertion of improper influence, psychological coercion, deception,

or implied or express promises; and whether the police advised the defendant of his or

28
her rights to remain silent and to have counsel present during custodial interrogation. See

Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S. Ct. 2041, 2047 (1973); Withrow,

507 U.S. at 693-94, 113 S. Ct. at 1754; State v. Honey, 2005 MT 107, ¶ 21, 327 Mont.

49, 112 P.3d 983; State v. Bieber, 2007 MT 262, ¶ 31, 339 Mont. 309, 170 P.3d 444.

¶48 Morrisey insists that his statements were not made voluntarily. He points out that

at the time he was interrogated, he was over 60 years old and had no prior experience

with the criminal justice system or police interrogation. He contends that the detectives

disregarded his invocation of his right to remain silent, and through “continued prodding”

they “lured” and “guilted” him into talking. We are not persuaded. Although Morrisey

initially asserted his right to remain silent, the detectives did not attempt to wear down his

resistance and make him change his mind. He decided of his own volition to speak with

them. Indeed, when he was first asked whether he was willing to talk about Dolana’s

homicide, he stated, “That is fair. I got no complaints.” And when he was asked the

same question later, he stated, without hesitation, “I will talk.” The length and continuity

of the interrogation (roughly three hours during the afternoon, followed closely by two or

three hours in the evening) weigh in Morrisey’s favor, as does the fact that the detectives

became increasingly forceful in their questioning. However, the detectives did not use

threats, violence, or physical punishment. Nor did they use trickery or “good cop/bad

cop” tactics. Morrisey was not deprived of sleep, refreshment, bathroom breaks, or

physical comfort. In fact, the detectives tried to accommodate him when he said he

would not feel comfortable talking at the local sheriff’s office. In sum, the record does

not support the conclusion that Morrisey’s will was overborne by the circumstances. If

29
anything, the totality of the circumstances demonstrates that Morrisey willingly engaged

in a running conversation with the detectives. In short, the record reflects that his

statements were not “compelled,” but rather were given freely and voluntarily.

VI. Conclusion

¶49 For the foregoing reasons, the District Court correctly denied Morrisey’s motion to

suppress, albeit for the wrong reasons. Nevertheless, we will affirm a district court’s

decision when it reaches the correct result for the wrong reasons. State v. Howard, 2008

MT 173, ¶ 20, 343 Mont. 378, 184 P.3d 344.

¶50 ISSUE 2. Did the District Court err in denying Morrisey’s motion to dismiss for
violation of his constitutional right to a speedy trial?

I. Analytical Framework and Standard of Review

¶51 We analyze a speedy trial claim pursuant to the four-factor balancing test set out in

State v. Ariegwe, 2007 MT 204, 338 Mont. 442, 167 P.3d 815. We examine the length of

the delay, the reasons for the delay, the accused’s responses to the delay, and any

prejudice to the accused and then balance these four factors with any other relevant

circumstances to determine whether the right to a speedy trial has been violated.

Ariegwe, ¶¶ 106-112; State v. Billman, 2008 MT 326, ¶ 11, 346 Mont. 118, 194 P.3d 58.

¶52 Whether a defendant has been denied the right to a speedy trial presents a question

of constitutional law. Billman, ¶ 8. This Court reviews de novo a district court’s legal

conclusions to determine whether the court correctly interpreted and applied the law.

Billman, ¶ 8. But we review the factual findings underlying the court’s speedy trial

ruling to determine whether those findings are clearly erroneous. Ariegwe, ¶ 119.

30
 II. Analysis9

A. Factor One: The Length of the Delay

¶53 The State charged Morrisey on September 4, 2002, with deliberate homicide and

tampering with evidence (the latter charge was dismissed on the last day of trial);

however, he was arrested in relation to those charges on September 3, 2002. His trial

commenced on November 14, 2005. This constitutes a quite significant delay of 1,168

days between accusation and trial. This delay is considerably greater than the 278-day

delay in Billman, the 408-day delay in Ariegwe, and the 507-day delay in State v. Rose,

2009 MT 4, 348 Mont. 291, 202 P.3d 749. Thus, the State has a heavy burden to justify

the delay and to show that Morrisey was not prejudiced. See Ariegwe, ¶¶ 62, 123;

Billman, ¶ 18; Rose, ¶ 46. Still, while the length of the delay here is substantial, it is but

one factor in the analysis. Indeed, whereas the 278-day delay in Billman amounted to a

speedy trial violation, the 408-day delay in Ariegwe and the 507-day delay in Rose did

not. See Billman, ¶ 52; Ariegwe, ¶ 155; Rose, ¶¶ 88-92. This is because the speedy trial

right is “necessarily relative” and “depend[ent] upon circumstances.” Barker v. Wingo,

407 U.S. 514, 522, 92 S. Ct. 2182, 2188 (1972) (internal quotation marks omitted).

9
Morrisey’s motion to dismiss was based on the pre- and post-accusation delay in
bringing him to trial. The right to a speedy trial applies to one who has been “accused”
of a criminal offense and thus does not protect against pre-accusation delay. See Mont.
Const. art. II, § 24; U.S. Const. amend. VI; United States v. Marion, 404 U.S. 307,
313-15, 92 S. Ct. 455, 459-60 (1971). Rather, pre-accusation delay is addressed by the
Due Process Clause or an applicable statute of limitations. See United States v. Lovasco,
431 U.S. 783, 788-89, 97 S. Ct. 2044, 2048 (1977); State v. Krinitt, 251 Mont. 28, 32-36,
823 P.2d 848, 851-53 (1991). While Morrisey asserted a due process claim related to the
pre-accusation delay in this case, which the District Court denied, he does not argue that
claim on appeal. We accordingly will consider only his speedy trial claim, and we note
that the record before us is sufficient for analyzing that claim. Cf. Ariegwe, ¶ 120.

31
 B. Factor Two: The Reasons for the Delay

¶54 Under Factor Two, we identify each period of delay, attribute the delay to the

appropriate party, and assign weight to each period based on the specific cause and

motive for the delay. Billman, ¶ 20; Ariegwe, ¶¶ 63-67. Delay is charged to the State

unless the accused caused the delay or affirmatively waived the speedy trial right for that

period. Billman, ¶ 20; Ariegwe, ¶ 65.

¶55 First Trial Setting: February 18, 2003, which constitutes a 168-day delay from the

date of accusation (i.e., from Morrisey’s arrest). The District Court selected this trial date

at Morrisey’s December 12, 2002 arraignment, which we note was the court’s earliest

feasible opportunity for doing so. However, the arraignment was originally scheduled for

November 21, 2002, and was continued on motion of defense counsel who was scheduled

to be out of town on personal matters. According to the motion, Morrisey waived his

speedy trial right with respect to this continuance. Thus, of the 168 days, we attribute the

period of November 21 to December 12 (21 days) to Morrisey,10 and we attribute the

balance (147 days) to the State as institutional delay. See Billman, ¶ 22; Ariegwe, ¶ 125.

¶56 Second Trial Setting: May 12, 2003 (an additional 83 days of delay). Morrisey

requested a continuance, explaining that by virtue of the “complexity” of this case, the

February 18 trial date was unrealistic. He noted that the incident giving rise to the

10
Delay caused by defense counsel is charged against the defendant. Vermont v.
Brillon, ___ U.S. ___, 129 S. Ct. 1283, 1290-91 (2009). But this rule is not absolute.
Brillon, 129 S. Ct. at 1292. For example, “[d]elay resulting from a systemic breakdown
in the public defender system could be charged to the State.” Brillon, 129 S. Ct. at 1292
(citation and internal quotation marks omitted). Likewise, a defendant can preserve his
speedy trial right if he expressly asserts that right and his actions contradict those of his
counsel. See McNeely v. Blanas, 336 F.3d 822, 829 n. 8 (9th Cir. 2003).

32
homicide charge had occurred over 14 years earlier and that he needed additional time to

investigate, locate potential witnesses, and complete discovery. He stated that he was

waiving his speedy trial right with respect to this continuance. We thus attribute the 83

days to Morrisey as legitimate delay related to preparing his defense.

¶57 Third Trial Setting: July 28, 2003 (77 days). This postponement was also at

Morrisey’s request because additional time was needed to prepare his defense. The delay

is likewise attributable to Morrisey.

¶58 Fourth Trial Setting: September 8, 2003 (42 days). Again, Morrisey filed a

motion to continue because he needed additional time to locate and interview potential

witnesses, because he was still waiting on certain discovery from the prosecution, and

because he was waiting for the reports on evidence that the State had sent to the State

Crime Lab for analysis. Given these reasons, responsibility for the 42-day delay is shared

equally by Morrisey and the State.

¶59 Fifth Trial Setting: December 1, 2003 (84 days). Morrisey filed a motion to

continue, citing the same reasons articulated in his previous motion. The State filed a

response, stating that it did not oppose a continuance and noting that it was waiting for

DNA results from the State Crime Lab. The State also asserted that it had provided

Morrisey with all discovery currently in its possession. Responsibility for the 84-day

delay is thus shared equally by Morrisey and the State.

¶60 Sixth Trial Setting: May 17, 2004 (168 days). Morrisey requested a continuance,

again citing “the complexity of this case, the quantity and nature of the evidence and the

significant number of witnesses.” He also noted that he was still waiting on reports from

33
the State Crime Lab. The State filed a response, stating that it did not object to a

continuance and requesting that the court not set trial during January 2004 due to other

homicide trials the County Attorney’s Office would be prosecuting that month. This

delay is therefore attributable to both Morrisey and the State.

¶61 Seventh Trial Setting: August 23, 2004 (98 days). Morrisey requested a 90- to

120-day continuance because he was still trying to locate and interview potential defense

witnesses and because the State had endorsed over 100 witnesses, many of whom still

needed to be interviewed. Defense counsel stated in the motion that he had proceeded

with due diligence in preparing the case but that additional time and funds were needed to

complete his investigation. He also noted that the State had recently filed an amended

information adding an alternative charge of deliberate homicide by accountability. The

State filed a response, stating that it did not object to a continuance and requesting that

trial be set for August 2004. Morrisey waived his speedy trial right with respect to this

continuance; thus, we attribute these 98 days to him.

¶62 Eighth Trial Setting: November 1, 2004 (70 days). Morrisey and the State filed a

joint stipulation on August 17, 2004. They noted that the trial needed to be continued

because the District Court was presently in the midst of a lengthy civil trial (Sunburst

School Dist. No. 2 v. Texaco, Inc.). They stipulated to reset trial for November 1, 2004.

This delay is attributable to the State as institutional delay related to the court’s docket.

¶63 Ninth Trial Setting: April 4, 2005 (154 days). Morrisey requested a continuance,

noting that the State had recently exhumed Dolana’s remains to have them scientifically

tested. Morrisey stated that he would be obtaining independent testing and that he

34
needed time to consult with his experts and interview the State’s experts. In addition, he

noted that his petition for a writ of supervisory control (related to the denial of his motion

to suppress) was pending before this Court. Morrisey stated that he was waiving his

speedy trial right with respect to this continuance. We thus attribute the delay to him.

¶64 Tenth Trial Setting: October 17, 2005 (196 days). On March 18, 2005, Morrisey

and the State filed a joint Stipulation to Continue Trial. The forensic anthropologist

retained by Morrisey had just recently completed his examination of Dolana’s remains,

and the State intended to have his opinions and conclusions reviewed by its own expert.

The parties stated that they would “provide the Court with a joint recommendation as to a

proposed resetting of the trial.” Thus, the District Court vacated the April 4 trial date.

Yet, by August the court had not heard anything from the parties and was understandably

concerned about the mounting delay without a pending trial date. See Ariegwe, ¶ 72

(“[T]he primary burden to assure that cases are brought to trial is on the courts and the

prosecutors.” (internal quotation marks omitted)). The court accordingly ordered the

parties to appear for a status hearing. At the hearing, the State explained that it was

waiting on a report from its expert. The court, however, noted that Morrisey had been

incarcerated since September 2002; and while recognizing that forensic examinations had

been ongoing, the court said that it was “not willing to let this case drag on indefinitely.”

The court thus inquired about the parties’ availability and then set trial. Given these

circumstances, the 196-day delay is attributable to both Morrisey and the State.

¶65 Eleventh (and Final) Trial Setting: November 14, 2005 (28 days). The State filed

a motion to continue, attaching a joint stipulation by Morrisey and the State. Morrisey

35
had to undergo cataract surgery and was not expected to recover in time for trial on

October 17. The State asked that the continuance be charged to Morrisey, and the

District Court did so. We agree and, thus, attribute the 28 days to Morrisey.

¶66 Summary: Unquestionably, the delay of 1,168 days in bringing Morrisey to trial

was substantial; however, the parties share equal responsibility for 490 days (42%), and

Morrisey waived another 356 days (30%). That leaves 322 days (28%), which were

attributable to Morrisey’s requests for additional time to prepare his defense, to his

cataract surgery, and to institutional circumstances beyond his and the State’s control

(e.g., the District Court’s docket and the time needed to process evidence at the State

Crime Lab). Significantly, there is no evidence of any dilatory tactics, purposeful foot-

dragging, negligence, or bad-faith delay on the part of the prosecution. To the contrary,

the delay here was due largely to the “complexity” of the case and the parties’ need for

additional time to investigate and prepare for a trial that was based on events which had

occurred over 14 years earlier. We conclude, therefore, that Factor Two weighs heavily

against finding a violation of Morrisey’s right to a speedy trial.

C. Factor Three: The Accused’s Responses to the Delay

¶67 Under the third speedy trial factor, we evaluate the accused’s responses to the

delay, i.e., his or her acquiescence in and objections to pretrial delays. Ariegwe, ¶ 110.

The totality of the accused’s responses to the pretrial delays is indicative of whether he or

she actually wanted a speedy trial. Billman, ¶ 31; Ariegwe, ¶ 79. Here, the record

reflects that Morrisey wanted to proceed to trial as expeditiously as possible and that he

only requested continuances in order to conduct the necessary investigations, to prepare

36
his defense, and to address a medical emergency (prior to the cataract surgery, Morrisey

was almost blind). We also note that Morrisey filed a timely motion asserting his right to

a speedy trial. Accordingly, Factor Three weighs in Morrisey’s favor.

D. Factor Four: Prejudice to the Accused

¶68 Lastly, under Factor Four, we consider whether the pretrial delay prejudiced the

accused in light of the interests that the speedy trial right protects: (i) preventing

oppressive pretrial incarceration, (ii) minimizing anxiety and concern caused by the

presence of unresolved criminal charges, and (iii) limiting the possibility that the

accused’s ability to present an effective defense will be impaired. Ariegwe, ¶ 111. We

have long recognized these three interests as relevant to the analysis of prejudice. See

e.g. City of Billings v. Bruce, 1998 MT 186, ¶ 68, 290 Mont. 148, 965 P.2d 866; State v.

Keller, 170 Mont. 372, 380-81, 553 P.2d 1013, 1018-19 (1976). As noted (see ¶ 53,

supra), the State has a heavy burden to show that Morrisey was not prejudiced, given the

substantial delay of 1,168 days in this case.

¶69 The District Court determined that Morrisey had been subjected to oppressive

pretrial incarceration, having been incarcerated on unproven charges for over three years.

Cf. Ariegwe, ¶ 90 (“[T]he longer the pretrial incarceration, the more likely it has been

oppressive and the more likely the accused has been prejudiced by the delay.”). Next, the

court determined that the delay in bringing Morrisey to trial had not aggravated the

anxiety and concern inherent in being accused of a crime. The court noted that Morrisey

had never moved the court for a reduction of his bail. Lastly, the court determined that

Morrisey’s ability to present an effective defense had not been impaired. In this regard,

37
Morrisey’s position was that he suffered prejudice because certain witnesses either had

died or could not be located. He also claimed that some of his witnesses had difficulty

recalling the events in question after so many years. But the District Court observed that

Morrisey had not subpoenaed a single witness for any of the previous trial dates and that

he had offered nothing more than speculation as to what testimony the unlocated or

deceased witnesses would have provided.

¶70 On appeal, the parties focus on the impairment issue and present no arguments

related to the first two speedy trial interests (oppressive pretrial incarceration, and anxiety

and concern). Morrisey again claims that the pretrial delay impaired his ability to present

an effective defense. He contends that one of the other suspects in Dolana’s death

committed suicide in July 2004 “before Morrisey could interview him.” As the State

points out, however, Morrisey had “ample time” to interview this witness prior to his

death. Morrisey also contends that he was unable to locate a witness named Soloria who

(according to Morrisey) told the police that she saw Dolana hiding and jumping out of a

truck on the day she disappeared. Morrisey asserts that Soloria’s testimony “would have

established . . . that Morrisey was not involved in her disappearance since he did not own

a truck.” But, as the State points out, Morrisey does not explain how Soloria’s

unavailability was due to the pretrial delay in this case.

¶71 We agree with Morrisey that time may erode the accuracy of witness testimony

and exculpatory evidence, thereby impairing the defendant’s ability to present an

effective defense. Ariegwe, ¶ 98. We also agree that impairment of one’s defense is the

most difficult form of speedy trial prejudice to prove, since time’s erosion of exculpatory

38
evidence and testimony can rarely be shown. Ariegwe, ¶ 99. But the period at issue here

is the time between accusation and trial, not the time between Dolana’s disappearance

and trial (see footnote 9, supra), and Morrisey fails to explain how the delay between his

arrest in September 2002 and his trial in November 2005 impaired his ability to present

an effective defense. As discussed under Factor Two, a substantial portion of the delay

was requested by Morrisey for the express purpose of conducting investigations, having

evidence tested, locating and interviewing potential witnesses, and preparing his defense

to the charges. If anything, therefore, the record suggests that Morrisey’s ability to

prepare his defense was benefited, not prejudiced, by the continuances in his trial.

¶72 We conclude that, notwithstanding the presumption of prejudice in this case (see

¶ 53, supra; Ariegwe, ¶ 49), Factor Four does not weigh significantly in Morrisey’s favor.

Although the pretrial incarceration was oppressive in terms of duration, Morrisey has not

demonstrated aggravated anxiety and concern or an impaired ability to present an

effective defense as a consequence of the delay.

E. Balancing

¶73 We last determine whether Morrisey was deprived of his right to a speedy trial in

light of the facts of the case and the weight assigned to each of the four factors discussed

above. Rose, ¶ 87. “None of the factors is dispositive by itself; rather, the factors are

related and must be considered together with such other circumstances as may be

relevant.” Ariegwe, ¶ 153. Moreover, each factor’s significance depends on the unique

facts and circumstances of the case. Ariegwe, ¶ 105; Billman, ¶ 11. Here, on one hand,

the pretrial delay was substantial and Morrisey wanted to proceed to trial as expeditiously

39
as possible. But, on the other hand, he requested or waived much of the delay so that he

could properly prepare his defense, and there is no evidence of negligence or bad-faith

delaying tactics on the part of the prosecution. Given these latter considerations and the

lack of significant prejudice caused by the delay, we conclude that Morrisey was not

denied his right to a speedy trial.

¶74 ISSUE 3. Did the District Court err in denying Morrisey’s motion for disclosure
and allowing Dr. Symes, a forensic anthropologist called by the State as a
rebuttal witness, to testify?

I. Standard of Review

¶75 The interpretation and construction of a statute is a matter of law which we review

de novo to determine whether the district court interpreted and applied the statute

correctly. State v. Triplett, 2008 MT 360, ¶ 13, 346 Mont. 383, 195 P.3d 819.

II. Background

¶76 Prior to trial, Morrisey filed a motion for disclosure under § 46-15-322, MCA,

asking the State to produce the curriculum vitae and other qualifications of its witness Dr.

Symes, a forensic anthropologist who examined Dolana’s skull. Morrisey also sought

disclosure of Dr. Symes’ “conclusion(s) or opinion(s) herein; the basis and/or reasoning

and/or methodology of or for said conclusions or opinions; the results of any tests

conducted; [and] a copy or any report of his opinion(s), conclusion(s).” In response, the

State asserted that such disclosure was not required because (1) the State did not intend to

call Dr. Symes in its case-in-chief, but rather would call him only “as a rebuttal witness to

rebut the testimony of” Dr. Gill-King, a forensic anthropologist retained by Morrisey, and

(2) the State would call Dr. Symes only “to impeach the credibility” of Dr. Gill-King.

40
Morrissey, however, pointed out that the State had never indicated before then that Dr.

Symes would be called only for rebuttal purposes. He noted that six months earlier, the

parties had filed a joint Stipulation to Continue Trial in which the State explained that Dr.

Symes would be reviewing Dr. Gill-King’s opinions and conclusions and, “dependent

upon [Dr. Symes’] opinion, the results may result in a resolution of this matter.”

Morrisey also pointed out that a central issue at trial was going to be whether his

.22-caliber rifle was the murder weapon and that Dr. Symes’ opinion specifically

addressed that issue. Morrisey opined that Dr. Symes’ opinion would play “a major part”

in the State’s case. Nevertheless, the District Court denied his motion.

¶77 After the State rested its case-in-chief, Morrisey renewed his argument that he was

entitled to disclosure of Dr. Symes’ conclusions. He noted that if the State were truly

going to call Dr. Symes just to impeach Dr. Gill-King’s credibility, then disclosure of Dr.

Symes’ conclusions was probably not required. However, he contended that if Dr. Symes

were going to offer a forensic opinion that differed from Dr. Gill-King’s forensic opinion,

then disclosure was required. In this regard, Morrisey argued that in substance, what Dr.

Symes would be providing was a forensic opinion, not testimony about Dr. Gill-King’s

credibility. The District Court again denied his motion.

¶78 Dr. Gill-King testified that he examined Dolana’s skull to determine what caliber

weapon had been used. His ultimate conclusion was that Dolana had been killed by a

high-velocity round, traveling much faster than a standard .22 long rifle round, but with a

diameter similar to a .22. He stated that in his opinion, it was “very improbable” that the

entry and exit wounds had been caused by a .22 long rifle round. Thereafter, the State

41
called Dr. Symes, who testified that he was present at trial to discuss his examination of

Dolana’s skull, and Dr. Gill-King’s examination of the skull as well. In Dr. Symes’ view,

Dolana was killed by a low-velocity round fired from a small-caliber weapon, and he

concluded that a .22-caliber rifle firing typical ammunition could have been used. Dr.

Symes also commented on Dr. Gill-King’s report and discussed points on which he

disagreed with Dr. Gill-King. On cross-examination, however, Dr. Symes agreed that Dr.

Gill-King was “competent and qualified.” Dr. Symes also acknowledged that he could

not say a .22 rifle had in fact been used.

III. Analysis

¶79 “If scientific, technical, or other specialized knowledge will assist the trier of fact

to understand the evidence or to determine a fact in issue, a witness qualified as an expert

by knowledge, skill, experience, training, or education may testify thereto in the form of

an opinion or otherwise.” M. R. Evid. 702. Section 46-15-322(1)(c), MCA, in turn,

states that upon request, the prosecutor shall make available to the defendant for

examination and reproduction certain material and information within the prosecutor’s

possession or control, including “all written reports or statements of experts who have

personally examined the defendant or any evidence in the particular case, together with

the results of physical examinations, scientific tests, experiments, or comparisons.”

¶80 Morrisey argues that the State was “statutorily obligated to disclose Dr. Symes’

conclusions, given that Dr. Symes was an expert witness—not a rebuttal witness—and he

gave pure expert testimony.” As it did under Issue 1 (see ¶ 36, supra), the State responds

as follows: “For the sake of complying with the word limits and without conceding that

42
Dr. Symes’ conclusions should have been disclosed to Morrisey prior to trial, the State

will forego an analysis of whether an expert who testifies as a rebuttal witness is subject

to the disclosure requirements of [§ 46-15-322(1)(c), MCA].” In the State’s view,

“[e]ven if nondisclosure of Dr. Symes’ report was error, it was harmless.” While we

agree with Morrisey that the State should have provided the requested disclosure, we

agree with the State that the error was harmless.

¶81 As noted, the State argued that disclosure of Dr. Symes’ opinions and conclusions

was not required for two reasons: (1) because the State did not intend to call Dr. Symes

in its case-in-chief, but would call him only “as a rebuttal witness to rebut the testimony

of” Dr. Gill-King, and (2) because the State would call Dr. Symes only “to impeach the

credibility” of Dr. Gill-King. As for the State’s first theory, nothing in the statute stands

for the proposition that disclosure is not required for experts called by the prosecution “in

rebuttal.” In this connection, the State pointed out that § 46-15-322(1)(a), MCA, requires

the prosecutor to disclose “the names, addresses, and statements of all persons whom the

prosecutor may call as witnesses in the case in chief” (emphasis added). But Morrisey

did not rely on subsection (1)(a). He relied on subsection (1)(c), which requires the

prosecutor to disclose “all written reports or statements of experts who have personally

examined the defendant or any evidence in the particular case, together with the results of

physical examinations, scientific tests, experiments, or comparisons.” This requirement

is not limited like subsection (1)(a) to “the case in chief,” and we reject the State’s

attempt to insert such language into subsection (1)(c). See § 1-2-101, MCA. The State

also cited State v. Weitzel, 2000 MT 86, ¶¶ 31-32, 299 Mont. 192, 998 P.2d 1154, and

43
State v. Hildreth, 267 Mont. 423, 430, 884 P.2d 771, 775-76 (1994), for the proposition

that the prosecution is not required by § 46-15-322(6), MCA, to provide notice of a

witness called to impeach the credibility of a defense witness. Yet, neither Weitzel nor

Hildreth involved a witness providing expert testimony, and the present case does not

involve subsection (6) of § 46-15-322, MCA. But more to the point, the State cannot

escape the disclosure requirements of subsection (1)(c) through the mere expedient of

cloaking expert-opinion testimony as “credibility-impeachment” testimony.

¶82 As for the State’s second theory, however, we agree that under the language of

§ 46-15-322(1)(c), MCA, the prosecution is not required to disclose the reports of a

witness whom the State will not be calling to provide expert testimony. In other words, if

the person is being called strictly as a fact witness, the statute’s disclosure requirements

are not applicable. Thus, as Morrisey acknowledged in the District Court, if Dr. Symes

were being called solely to impeach Dr. Gill-King’s credibility by some means other than

by providing a contrary expert forensic opinion, then disclosure was not required.

¶83 Accordingly, by refusing Morrisey’s pretrial request for disclosure of Dr. Symes’

opinions and conclusions, the State effectively bound itself not to call Dr. Symes as an

expert to provide his opinions about Dolana’s skull and the murder weapon (whether in

the State’s case-in-chief or in rebuttal). Section 46-15-322(1)(c), MCA, is quite clear on

this point. And for this reason, while the District Court did not provide an explanation

for its decision to deny Morrisey’s motion for disclosure, the court’s ruling was not

necessarily incorrect. The State had vowed several times that it would call Dr. Symes

only to impeach Dr. Gill-King’s credibility, and the District Court evidently took this to

44
mean that the State would not call Dr. Symes to provide expert testimony. The real issue

arose when the State did call Dr. Symes to give his expert opinion regarding the gun used

to kill Dolana. That testimony clearly fell within the strictures of § 46-15-322(1)(c),

MCA, and outside the bounds of what the State had told the court and Morrisey Dr.

Symes’ testimony would be. Hence, the testimony was objectionable, and a timely

objection would have been properly sustained.

¶84 Although Morrisey did not contemporaneously object to Dr. Symes’ testimony

due to the fact that he had already twice argued that the testimony was improper, we

conclude that any error caused by the State’s failure to comply with § 46-15-322(1)(c),

MCA, was harmless. “A cause may not be reversed by reason of any error committed by

the trial court against the convicted person unless the record shows that the error was

prejudicial.” Section 46-20-701(1), MCA. Here, while Morrisey claims that he “could

not adequately prepare a defense or cross-examination” because he did not know in

advance what Dr. Symes’ opinions and conclusions were, the record reflects that

Morrisey in fact cross-examined Dr. Symes at length. Morrisey surmises that he could

have prepared a more vigorous cross-examination; yet, he fails to provide any concrete

factual analysis to support this claim. Finally, Morrisey asserts that the State’s

nondisclosure was “inherently prejudicial”; but on the record before us, we are not

persuaded that such prejudice exists here. In short, Morrisey has not adequately

demonstrated that he was prejudiced by the State’s violation of § 46-15-322(1)(c), MCA.

¶85 ISSUE 4. Was there sufficient evidence upon which a jury could find Morrisey
guilty of deliberate homicide beyond a reasonable doubt?

45
 I. Standard of Review

¶86 We review the sufficiency of evidence to support a conviction 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. State v. Shields, 2005 MT 249, ¶ 14, 328 Mont. 509, 122 P.3d 421;

State v. Debus, 2002 MT 307, ¶ 15, 313 Mont. 57, 59 P.3d 1154.

II. Analysis

¶87 The jury found Morrisey guilty of deliberate homicide. A person commits this

offense if he or she “purposely or knowingly causes the death of another human being.”

Section 45-5-102(1)(a), MCA (1987). Morrisey argues that the evidence presented at

trial was not sufficient for a rational trier of fact to find that he purposely or knowingly

caused Dolana’s death. He observes that the police found no direct evidence connecting

him to Dolana’s disappearance or death, and he argues that the State’s physical evidence

was inconclusive. In Morrisey’s view, the State’s case rested on “witnesses’ concerns”

about the amount of time he and Dolana spent together and the detectives’ “impression”

that he was responsible for her death. Morrisey points out that he was a “close friend” of

the Clark family, that he helped search for Dolana on the night she disappeared, and that

he even put up a reward for information regarding her disappearance and contacted the

National Center for Missing Children. Morrisey thus contends that his conviction must

be reversed due to insufficient evidence of his guilt. We disagree.

¶88 This Court reviews a jury’s verdict to determine whether sufficient evidence exists

to support the verdict, not whether the evidence could have supported a different result.

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State v. Field, 2005 MT 181, ¶ 15, 328 Mont. 26, 116 P.3d 813. Here, the evidence

against Morrisey was indisputably circumstantial. Shortly after Dolana disappeared in

1988, the investigating officers thoroughly searched Morrisey’s residence; and although

they gathered evidence of fibers and stains, none of this evidence indicated that Morrisey

was involved in Dolana’s disappearance. Similarly, after spending several days in 2002

searching his Colorado residence and vehicles, the officers again found no physical

evidence conclusively connecting Morrisey to Dolana’s death.

¶89 As a result, the prosecution relied on circumstantial evidence of Morrisey’s guilt.

“Circumstantial evidence” is “that which tends to establish a fact by proving another and

which, though true, does not of itself conclusively establish that fact but affords an

inference or presumption of its existence.” Section 26-1-102(1), MCA. Circumstantial

evidence is sufficient by itself to sustain a conviction if it is of such a quality and quantity

as to legally justify a jury in determining guilt beyond a reasonable doubt, when all of the

facts and circumstances are considered collectively. See State v. Rosling, 2008 MT 62,

¶ 36, 342 Mont. 1, 180 P.3d 1102; State v. Hill, 2008 MT 260, ¶ 35, 345 Mont. 95, 189

P.3d 1201. Where, as here, circumstantial evidence is susceptible to two reasonable

interpretations, one which supports guilt and the other which supports innocence, the trier

of fact determines which interpretation is most reasonable. Rosling, ¶ 36.

¶90 According to the evidence presented at trial, Morrisey told the police in 1988 that

on the day of her disappearance, Dolana stopped by his house at 10:00 a.m. for a short

visit and was supposed to return at 12:30 p.m. so that he could drive her to the pet store to

see the cat she wanted to purchase. Yet, Lisa (Dolana’s half-sister) testified that she,

47
Dolana, and their mother were together at the Clark home all of that morning until about

1:00 p.m. Morrisey also claimed in 1988 that he did not see Dolana again after their

alleged 10:00 a.m. visit. Yet, during his interview with the detectives in 2002, he stated

that he saw Dolana between 2:00 p.m. and 4:00 p.m. on the day she disappeared.

¶91 On the night of Dolana’s disappearance, Morrisey, Lisa, and Rick (a

brother-in-law of Dolana and Lisa) agreed to search for Dolana. Rick testified that he

suggested they split up to cover more ground, but Morrisey rejected that idea. Rick also

testified that Morrisey did not want to use either of his own vehicles in the search.

¶92 The Clarks did not have a telephone in their home and often used Morrisey’s

phone. Yet, after Dolana disappeared, Morrisey stayed at the Clark home for several

days, even though he had told people that Dolana, if she could, would try to call him at

his house or would simply show up there. In addition, Vicki (another of Dolana’s half-

sisters) testified that about a week after Dolana disappeared, Morrisey suggested, without

explanation, that Vicki call the police and report that she had spotted Dolana’s bike in a

river, even though this information was untrue.

¶93 About two weeks after Dolana’s disappearance, Morrisey discontinued all contact

with the Clarks, despite having had a close relationship with the family for years. Two or

three months later, he left Great Falls and never spoke to any of the Clarks again.

Notably, during his interview with the detectives in 2002, he stated a number of times

that he wished he had never met “them people.”

¶94 Dr. Jack Henneford testified at Morrisey’s trial as an expert in forensic pathology.

He had examined Dolana’s skull in 1989 and located an entrance wound at the base of the

48
skull and an exit wound in the forehead. Based on the measurement of these wounds, he

concluded that they had been caused by a small-caliber bullet, such as a .22, though he

acknowledged that a range of weapons could have produced the wounds. Likewise,

neither Dr. Symes nor Dr. Gill-King could say for certain what caliber weapon was used;

however, Dr. Symes thought that it could have been a .22-caliber rifle firing typical

ammunition.

¶95 In 2002, Morrisey learned through his friend Melvin that the police had renewed

their investigation into Dolana’s death and were asking about Morrisey’s cars and small-

caliber guns. According to Melvin, Morrisey seemed nervous at the mention of his cars

and stated that because Dolana had been in the Impala a lot, the police would find her

DNA there. Morrisey thereafter destroyed his .22 rifle—a rifle his mother had given him

when he was 12 years old. Moreover, when the detectives arrived in Colorado to execute

the search warrants, they found his house to be “almost sterile” and his Camaro to be

“spotless.” Likewise, the Impala was “immaculate” and the trunk had been sprayed with

a heavy-duty black paint or bedliner. The detectives found the following items inside the

Impala: a .45-caliber “Tommy gun,” a fully loaded 10-shot clip, an 11-shot clip, and 400

rounds of .45 ammunition; water bottles; cat food; and a drawer containing personal

possessions such as family photographs, birth and death certificates, baby books, a Social

Security card, school records, and other memorabilia. The tank was full of gas, and the

keys were in the ignition. Morrisey told the detectives that he kept the ammunition in his

vehicle in case of fire, because keeping it in the house would pose a danger to the

responders; yet, they found a box of .38-special ammunition in the kitchen.

49
¶96 Morrisey’s statements to the police, which were introduced into evidence, were

riddled with inconsistencies and contradicted by the other testimony and evidence. For

instance, at the time of Dolana’s disappearance, Morrisey told investigators that he did

not own any guns; however, he admitted to the detectives during the 2002 interview that

he owned a.22-caliber rifle when he was living in Great Falls. Morrisey claimed that his

gun was in a closet when the officers searched his house in 1988; yet, the investigating

officers did not find any guns in Morrisey’s closets. When asked where the .22 was now,

Morrisey stated that he had sold it several years earlier at a flea market in Illinois, but

after further questioning he changed his story and stated that he had thrown it off a bridge

into the Mississippi River. Still later, Morrisey admitted that he had recently disposed of

the gun after learning about the renewed investigation. He explained that he had done so

because he was afraid that the gun would be used to “pin” Dolana’s death on him.

¶97 Morrisey agreed with the detectives that either he or Dolana’s father (Boyce) had

killed Dolana and that there was no “bogeyman” out there, i.e., “it’s just down to

[Morrisey] did it or [Boyce] did it.” But Morrisey claimed that he had loaned his gun to

Boyce about a week before Dolana disappeared and that Boyce had returned the gun

about a week after her disappearance. Morrisey asserted that Boyce then admitted to

killing Dolana with the .22. However, Morrisey acknowledged that he did not report this

admission to the police at any point during the preceding 14 years, notwithstanding the

fact that Morrisey had been a suspect back in 1988 and notwithstanding the fact that he

purported to love Dolana. Morrisey explained that he kept Boyce’s admission to himself

because he and Boyce were friends and he was only revealing it now because he was “in

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a big jam.” Yet, Morrisey later characterized Boyce as a “son of a bitch” and stated that

he wanted nothing to do with Boyce.

¶98 In conclusion, although the evidence presented at Morrisey’s trial was susceptible

to multiple reasonable interpretations, some pointing to his guilt and others pointing to

alternative explanations for his actions, this does not mean that the evidence was

insufficient to support a verdict of guilty. It was the province of the jury to decide which

interpretation of the evidence was most reasonable. Rosling, ¶ 43. It was also the

province of the jury to decide the credibility of each witness and the weight to be given

their testimony and, in the event of conflicting evidence, to determine which will prevail.

See State v. Merrick, 2000 MT 124, ¶ 13, 299 Mont. 472, 2 P.3d 242; State v. Baker,

2004 MT 393, ¶ 22, 325 Mont. 229, 104 P.3d 491; State v. Maetche, 2008 MT 184, ¶ 14,

343 Mont. 464, 185 P.3d 980. Having reviewed the record, we hold that when all of the

facts and circumstances are considered collectively and in the light most favorable to the

prosecution, the circumstantial evidence in this case was of sufficient quality and quantity

that a rational trier of fact could find beyond a reasonable doubt that Morrisey purposely

or knowingly caused Dolana’s death.

CONCLUSION

¶99 The District Court correctly denied Morrisey’s motion to suppress and his motion

to dismiss for lack of a speedy trial. Although the State did not properly comply with

§ 46-15-322(1)(c), MCA, Morrisey has not demonstrated that he was prejudiced by this

error. Lastly, we hold that there was sufficient evidence presented at trial to support the

jury’s guilty verdict.

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¶100 Affirmed.

/S/ JAMES C. NELSON

We Concur:

/S/ PATRICIA COTTER
/S/ JOHN WARNER
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE

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