STATE v POUND

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No. 12346 I N THE SUPREME C U T O T E STATE O MONTANA OR F H F 1973 T E STATE O M N A A H F OTN, P l a i n t i f f and Respondent, -VS - JOHN EDWARD POUND, Defendant and Appellant. Appeal from: D i s t r i c t Court of t h e Twelfth J u d i c i a l District, Honorable B e W. Thomas, Judge p r e s i d i n g . Counsel of Record: For Appellant : Morrison and E t t i e n , Havre, Montana Robert D. Morrison argued, Havre, Montana For Respondent : Hon. Robert L. Woodahl, Attorney General, Helena, Montana Jonathan B e Smith, A s s i s t a n t Attorney General, argued, Helena, Montana William M. Solem appeared, Chinook, Montana Submitted: Decided Filed : $f&R 2 '2 .- January 26, 1973 *Rfik 2 7 55'73 M r . J u s t i c e Sene B. Daly d e l i v e r e d t h e Opinion of t h e Court. T h i s a p p e a l i s talten from a judgment e n t e r e d on a j u r y v e r d i c t i n t h e d i s t r i c t c o u r t of B l a i n e County, c o n v i c t i n g John Edward Pound of one count of grand l a r c e n y and s e n t e n c i n g him t o s e r v e f i v e y e a r s i n t h e Montana S t a t e P r i s o n . Pound was charged by amended I n f o r m a t i o n w i t h twelve c o u n t s of grand l a r c e n y and one count of second degree b u r g l a r y . a p l e a of n o t g u i l t y t o a l l c h a r g e s . He e n t e r e d The j u r y v e r d i c t of May 1 0 , 1972, found defendant g u i l t y of count one of t h e amended I n f o r mation of grand l a r c e n y and n o t g u i l t y of a l l o t h e r c o u n t s . From t h e judgment of c o n v i c t i o n and from t h e c o u r t ' s o r d e r denying h i s motion f o r a new t r i a l , Pound b r i n g s t h i s a p p e a l . From t h e t r i a l r e c o r d unusual and o f t e n c o n t r a d i c t o r y f a c t s appear. One Joseph Lewis DeSaye, an American c i t i z e n , brought t h e c h a r g e s a g a i n s t Pound f o r a l l e g e d a c t s t h a t took p l a c e on h i s farm n e a r T u r n e r , Montana. DeSaye i s a farmer and a l s o a d e a l e r i n f i r e a r m s , r e l a t e d s u p p l i e s and c o i n s . His a c t i v i t y i n t h i s a r e a was n o t j u s t c a s u a l a s DeSaye t e s t i f i e d h i s b u s i n e s s volume i n 1971 was approximately $475,000. Defendant Pound i s 38 y e a r s of a g e , m a r r i e d , and a Canadian c i t i z e n r e s i d i n g i n t h e c i t y of Swift C u r r e n t , Saskatchewan, Canada. For f i f t e e n y e a r s he had been employed by t h e Saskatchewan government a s a petroleum e n g i n e e r . He had been a c q u a i n t e d w i t h DeSaye f o r approximately t e n y e a r s . Over t h e c o u r s e o f t h e i r a c q u a i n t a n c e Pound had done c a r p e n t r y and gunsmithing work f o r DeSaye and i n doing s o had been g i v e n f r e e access t o DeSaye's p r o p e r t y . A t times p r e v i o u s t o t h e p r e s e n t i n c i d e n t Pound had loaned s u b s t a n t i a l sums of money t o DeSaye and had purchased guns from BeSaye. By t h e i r custom, i n t e r e s t on l o a n s and wage payments from DeSaye t o Pound took t h e form of g i f t s o r d i s c o u n t s on guns o r r e l a t e d equipment. The two men were a l s o involved i n some t y p e of "coin importing scheme". Pound would t a k e d e l i v e r y of c o i n s ordered by DeSaye from Canadian sources and e i t h e r t r a n s p o r t them a c r o s s t h e border o r g i v e them t o DeSaye i n Canada f o r h i s t r a n s p o r t a t i o n a c r o s s t h e border. DeSaye would then reimburse Pound by a check on h i s Canadian bank account f o r f r e i g h t charges and o t h e r expenses. Problems a r o s e between DeSaye and Pound i n 1967 when they were charged w i t h v i o l a t i o n o f smuggling laws by Canadian a u t h o r ities. I n s u c c e s s f u l l y defending t h e c a s e , Pound i n c u r r e d a t t o r - ney f e e s of $2,075. Pound claimed he had been promised by DeSaye t h a t he would reimburse Pound f o r a l l of h i s c o s t s i n c u r r e d i n defending t h e charges. Pound t e s t i f i e d t h a t he was o n l y given $800 by DeSaye toward t h o s e expenses; DeSaye t e s t i f i e d t h a t he g i v e Pound over $1,000 f o r t h a t purpose. As a r e s u l t , Pound claimed he was owed t h e amount of $1,275 by DeSaye; DeSaye denied any indebtedness. Pound a l s o claimed he was owed a n a d d i t i o n a l $100 by DeSaye i n connection w i t h a bag of c o i n s he had given DeSaye i n 1968 t o s e l l f o r him i n t h e United S t a t e s . It appears t h a t p r i o r t o t r i a l , t h e c o u r t i n s t r u c t e d DeSaye t o produce a l l of h i s r e c o r d s which had t o do w i t h t h e i n t e r n a t i o n a l c o i n t r a n s a c t i o n s w i t h Pound and o t h e r s . The c o u r t f u r t h e r i s s u e d a subpoena duces tecum f o r t h e production of t h e s e r e c o r d s which was p r o p e r l y served and r e t u r n made t o t h e c o u r t . A t t r i a l these r e c o r d s were n o t produced and DeSaye claimed t o have only incomp l e t e o r p a r i t a l r e c o r d s of t h e s e t r a n s a c t i o n s , On cross-examina- t i o n DeSaye was extremely vague and e v a s i v e concerning c e r t a i n a r e a s of t h e s e t r a n s a c t i o n s , The c o u r t denied d e f e n d a n t ' s motion made a t t r i a l t o compel production of t h e s e r e c o r d s . On September 1 7 , 1971, DeSaye by telephone extended an i n - v i t a t i o n t o t h e Pounds t o come t o h i s farm s u g g e s t i n g Pound could complete some c a r p e n t r y work he had i n p r o g r e s s and t h e y could view some t r a v e l s l i d e s . O September 1 9 , 1971, M r . n and Mrs. Pound t r a v e l e d from Canada t o t h e DeSaye home 1 l : O O a.m. a r r i v i n g about 10:30 o r M r . and Mrs. DeSaye were n o t a t home when t h e Pounds A Montana highway p a t r o l c a r was parked on t h e premises arrived. and Patrolman Harold Savik w a i t e d u n t i l DeSaye r e t u r n e d a t about L:OO p.m., that. purchased f i r e a r m s u p p l i e s , and d e p a r t e d s h o r t l y a f t e r Savik and Pound saw each o t h e r b u t d i d n o t c o n v e r s e , Also v i s i b l y p r e s e n t i n t h e a r e a were: Osmond Olson, an e l d e r l y r e t i r e d farmer who l i v e d on t h e premises; Joseph ~ e ~ a y e ' s 2 1 y e a r o l d son Gregory and h i s w i f e ; Mrs, P a t t i Anderson, who was b a b y s i t t i n g ; and t h e t h r e e younger DeSaye c h i l d r e n , G r e t a , Grant and Brad, Lee Thomas, an a g e n t of t h e United S t a t e s Border P a c r o l , was a l s o p r e s e n t b u t had concealed h i s government c a r behind a n o u t l y i n g b a r n and had concealed h i m s e l f i n a s t r a w s t a c k . DeSaye had f u r n i s h e d Thomas w i t h two 11 super-8" movie cameras which h e used t o t a k e motion p i c t u r e s of Pound w i t h o u t h i s know,-edge. The f i l m s t a k e n by Thomas were i n t r o d u c e d i n t o e v i d e n c e a t t r i a l and shown t o t h e j u r y . The f i l m s showed Pound t a k i n g r i f l e s , s u p p l i e s and a s a c k t o h i s Bronco v e h i c l e and p l a c i n g them i n s i d e . Between 1:00 and 2:00 p.m., Pound c l a i m s DeSaye pursued a d i s c u s s i o n w i t h him i n which he was q u e s t i o n e d e x t e n s i v e l y about h i s f i n a n c i a l s t a t u s . A t approximately 2:00 p.m. DeSaye suggested t h e y should e a t , and Pound went t o wash h i s hands. Looking o u t t h e window Pound saw a man c r e e p i n g by and mentioned i t t o DeSaye. Pound t h e n went t o h i s Bronco f o r t h e claimed pur- pose of g e t t i n g h i s c o n t a c t l e n s c l e a n i n g equipment. A t this p o i n t , t h e testimony i s i n c o n f l i c t a s t o subsequent e v e n t s . I t a p p e a r s t h a t a pickup t r u c k had been p l a c e d by Gregory DeSaye c l o s e i n f r o n t of t h e d e f e n d a n t ' s Bronco and t h e b o r d e r p a t r o l c a r had been parked d i r e c t l y behind, s o a s t o wedge t h e Bronco i n . Pound claimed he d i d n o t s t a r t t h e Bronco, b u t reached i n t o g e t t h e c o n t a c t l e n s c l e a n i n g equipment when DeSaye p u l l e d him o u t and began s t r u g g l i n g w i t h him. DeSaye claimed t h a t Pound s t a r t e d t h e Bronco and attempted t o d r i v e forward, s t r i k i n g t h e pickup, whereupon h e and h i s son, Greg, p u l l e d Pound out and "subdued him". Lee Thomas, t h e border p a t r o l o f f i c e r , then came on t h e scene and locked t h e Bronco v e h i c l e , and t h e t h r e e men took Pound t o a t r a i l e r a d j a c e n t t o t h e house. I t appears t h a t Thomas l e f t t h e t r a i l e r a t t h e r e q u e s t of Pound, l e a v i n g DeSaye and Pound alone. There i s c o n f l i c t a s t o what was s a i d by t h e p a r t i e s d u r i n g t h i s p e r i o d of time. DeSaye t e s t i f i e d t h a t Pound brought up t h e s u b j e c t of making a d e a l . Pound s t a t e d t h a t DeSaye brought up t h e s u b j e c t and r e q u e s t e d a payment of $25,000 t o t u r n over t h e f i l m s which had been taken by patrolman Thomas. About an hour a f t e r h e had been taken t o t h e t r a i l e r and t h e o t h e r men had r e t u r n e d t o t h e t r a i l e r , Pound wished t o go t o t h e bathroom. Patrolman Thomas s a i d t h a t he would go w i t h him. Pound asked i f he were under a r r e s t and Thomas r e p l i e d t h a t he was. During t h e p e r i o d of Pound's confinement i n t h e t r a i l e r DeSaye made a phone c a l l t o t h e BlaimCounty s h e r i f f . 5:00 p.m. A t about S h e r i f f I4urdo MacLean and Deputy S h e r i f f Homer Duffner a r r i v e d a t t h e DeSaye ranch and were met by Osmond Olson and Floyd Robinson, an acquaintance of DeSaye, who had a r r i v e d i n t h e meantime. Upon a r r i v a l a t t h e t r a i l e r t h e s h e r i f f s t a t e d t o Pound t h a t he was under a r r e s t , r e a d a "Miranda warning" s t a t e ment, handcuffed him, and took him t o t h e s h e r i f f ' s c a r where h e w a s placed i n t h e r e a r s e a t accompanied by deputy Duffner. After a few minutes t h e s h e r i f f , accompanied by t h e o t h e r men, took Pound over t o h i s Bronco v e h i c l e . I t i s undisputed t h a t no search warrant had been obtained by t h e s h e r i f f and t h a t he d i d conduct a s e a r c h of pound's v e h i c l e a t t h a t time. There i s , however, con- f l i c t i n t h e testimony concerning whether Pound gave h i s permission t o search the vehicle. The s h e r i f f removed some r i f l e s , f i r e a r m s u p p l i e s , and a bag of c o i n s belonging t o DeSaye which were l a t e r introduced i n t o evidence a g a i n s t Pound a t t r i a l . Pound t e s t i f i e d a t t r i a l t h a t he took t h e p r o p e r t y from Deaaye, h u t s t a t e d he f e l t he had n o t i f i e d DeSaye he would t a k e sumething i f no payment was made on t h e d e b t of $1,375. Defendant has assigned six issues for review but we will consider only two inasmuch as four pertain to matters associated with the counts in the Information of which defendant was acquited and they cannot occur again during a new trial. ~efendant's issue one alleges the court erred in denying defendant's motion to suppress the evidence seized in the search of defendant's vehicle and admitting into evidence the items so Issue three, the second of the two we will discuss, seized. alleges the court erred in denying defendant's motion requiring the witness Joseph DeSaye to produce all of his records concerning his past transactions with defendant and others. Defendant contends the search conducted on the Bronco vehicle was in violation of rights guaranteed under the Fourth and Fourteenth Amendments of the United States Constitution and under Article 111, Sec. 7 of the Montana Constitution. Section 95-602(a), R.C.M. 1947, provides: II An arrest is made by an actual restraint of the person to be arrested, or by his submission to the custody of the person making the arrest." By application of that section Pound was placed under arrest at the time he was taken from the Bronco and into the trailer by Joe and Gregory DeSaye and border patrolman Thomas. Patrolman ~homas' testimony indicates that there was no doubt the law officer considered Pound to be under arrest. At any rate the initial arrest took place some hours before sheriff MacLean arrived at the scene. We cannot accept the state's contention that the sheriff's search of Pound's vehicle was "incident to the arrest". The search was not substantially contemporaneous in time with the arrest. T2 Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 ed 2d 576; Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L ed 2d 409. The state showed no exigent circumstances to justify the warrantless search, such as physical danger to the law enforcement o f f i c e r o r l o s s of evidence. 364, 84 S.Ct. 403 U.S. Preston v. United S t a t e s , 376 U.S. 881, 1 L ed 2d 777; 1 443, 91 S.Ct. Coolidge v . New Hampshire, 2022, 29 L ed 2d 564; S t a t e v , Langan, 1 5 1 Mont. 558, 445 P,2d 565. The s t a t e then contends Pound gave h i s permission t o t h e s h e r i f f t o make t h e s e a r c h of h i s v e h i c l e . The s h e r i f f t e s t i f i e d t h a t a f t e r he a r r i v e d a t t h e t r a i l e r where Pound was b e i n g h e l d he r e a d a "Miranda statement", a g a i n informed Pound h e was under a r r e s t , and handcuffed him. Then, according t o t h e s h e r i f f ' s testimony, he s a i d "Knowing t h i s , do you wish t o answer any q u e s t i o n s a t t h i s time?" Pound r e p l i e d "No", There i s n o t h i n g i n t h e r e c o r d t o i n d i c a t e Pound was e v e r informed t h a t h e had a r i g h t t o r e f u s e a s e a r c h of h i s v e h i c l e w i t h o u t a w a r r a n t . Pound was taken handcuffed, i n t h e custody of t h e s h e r i f f , t h e deputy *exiff, Lee Thomas t h e b o r d e r p a t r o l o f f i c e r , Joe and Gregory DeSaye, Osmond Olson and Floyd Robinson, o u t t o h i s Bronco v e h i c l e . The s h e r i f f t e s t i f i e d he then asked Pound "Do I have your permission t o s e a r c h t h i s v e h i c l e ? " Pound r e p l i e d "yes, go ahead". Pound denied he had been asked f o r h i s consent o r had given h i s consent f o r t h e s e a r c h . The s h e r i f f t e s t i f i e d he thought t h a t consent o r a warrant f o r t h e s e a r c h was unnecessary because h e considered t h e s e a r c h t o b e i n c i d e n t t o t h e a r r e s t . W have a l r e a d y determined t h e s e a r c h d i d n o t meet t h e e requirements of b e i n g " i n c i d e n t t o t h e a r r e s t " and, concerning t h e c o n f l i c t i n testimony a s t o c o n s e n t , we f i n d t h a t r e g a r d l e s s o f which v e r s i o n i s a c c e p t e d , a consent given under t h e s e circums t a n c e s would n o t q u a l i f y a s an i n t e l l i g e n t and v o l u n t a r y waiver of a c o n s t i t u t i o n a l r i g h t , Pound was a Canadian c i t i z e n born i n England, presumably n o t knowledgeable of r i g h t s g r a n t e d under our system of law, He had n o t been informed of h i s r i g h t t o r e f u s e a warrantless search. He had been h e l d under a r r e s t f o r s e v e r a l h o u r s , handcuffed, and taken t o t h e v e h i c l e i n t h e custody of t h r e e law o f f i c e r s and f o u r o t h e r men who were a n t a g o n i s t i c t o h i s Triterests. When t h e s t a t e seeks t o i n t r o d u c e evidence obtained i n a consent s e a r c h , i t must b e a r t h e burden of proving t h a t t h e consent was i n t e l l i g e n t l y and v o l u n t a r i l y given. Kovach v. United S t a t e s , 53 F.2d 639; Rigby v , United S t a t e s , 247 F.2d 584, Here, t h e s t a t e h a s n o t s u s t a i n e d i t s burden of p r o o f , and t h e circumstances a t t e n d a n t t o t h i s s e a r c h appear i n h e r e n t l y c o e r c i v e . I n d e f e n d a n t ' s t h i r d assignment of e r r o r , he contends t h e t r i a l c o u r t e r r e d i n denying t h e motion t o r e q u i r e t h e w i t n e s s Joseph DeSaye t o produce a l l h i s r e c o r d s concerning h i s p a s t c o i n t r a n s a c t i o n s w i t h defendant and o t h e r persons which r e l a t e d t o t r a n s a c t i o n s w i t h defendant. The r e c o r d d i s c l o s e s t h a t a subpoena duces tecum ( p l a i n t i f f ' s e x h i b i t S-1) was i s s u e d by t h e B l a i n e County d i s t r i c t c o u r t and served by t h e s h e r i f f upon Joseph DeSaye on A p r i l 28, 1972, acc o r d i n g t o t h e r e t u r n which was duly f i l e d . O cross-examination, n DeSaye admitted he was p r e s e n t a t a p r e t r i a l conference and was i n s t r u c t e d by t h e c o u r t t o produce a l l r e c o r d s r e l a t i n g t o c o i n transactions, He a l s o admitted t h a t he had c e r t a i n r e c o r d s of c o i n t r a n s a c t i o n s i n v o l v i n g a M r . Buyers i n Canada, f o r whom Pound had a c t e d a s an i n t e r m e d i a r y . These r e c o r d s were never produced i n t o c o u r t by DeSaye and t h e c o u r t denied a subsequent motion t o produce t h e s e r e c o r d s , a p p a r e n t l y on t h e basis of i r r e l e v a n c e . ~ e ~ a y e e v a s i v e and f o r g e t f u l testimony a s concerned t h e s e 's v a r i o u s t r a n s a c t i o n s was such a s t o c a s t an a u r a of t a i n t and s u s p i c i o n over t h e p a s t r e l a t i o n s h i p between himself and Pound; t h e p a s t c o i n importing p r a c t i c e s of DeSaye; t h e circumstances surrounding t h e manner i n which DeSaye's p r o p e r t y was taken by Pound; and, i n f a c t , t h e remainder of DeSaye's e n t i r e testimony. I t was s t a t e ' s w i t n e s s DeSaye who introduced t h e s u b j e c t of p a s t c o i n t r a n s a c t i o n s between himself and Pound. The m a t t e r w a s c l e a r l y r e l e v a n t a s i t p e r t a i n e d t o r e a s o n s f o r animosity between t h e two men a r i s i n g from such p a s t t r a n s a c t i o n s . I t went d i r e c t l y t o t h e i s s u e o f DeSaye's c r e d i b i l i t y a s a w i t n e s s . In State v, McKnight, 129 Mont, 8, 19, 281 ~ . 2 d816, This Court quoted from 58 Am Jur Witnesses $632, the general rule that cross-examination should be allowed to examine any phase of a general subject introduced on direct examination, and then went on to say: "This court has said: 'The right of cross-examination, as has been often said, is a valuable and substantial right, and the courts should incline to extend, rather than restrict it. Cross-examination is the most potent weapon known to the law for separating falsehood from truth, hearsay from actual knowledge, things imaginary from things real, opinion from fact, and inference from recollection, and for testing the intelligence, fairness, memory, truthfulness, accuracy, honesty and power of observation of the witness. It has become a truism in the legal profession that "The testimony of a witness is not stronger that [sic] it is made by his crossexamination."'State v. Ritz, 65 Mont. 180, 187s 211 Pac, 298, 300." (Emphasis added). --- The trial court's departure from its prior ruling on the subject of the production of these records unduly curtailed defendant's right of cross-examination, The judgment of conviction is reversed and the cause is remanded to the district -------------& ustices - - - - - - " - - I - - - - Associate Mr. Justice John Conway Harrison dissenting: I dissent. 1

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