MCGUINN v STATE

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No. 13744 IN THE SUPREME COURT OF THE STATE OF MONTANA 1978 THOLMAS P. McGUINN, Defendant and Appellant, THE STATE OF MONTANA, Plaintiff and Respondent. Appeal from: District Court of the Second Judicial District, Honorable Arnold Olsen, Judge presiding. Counsel of Record: For Appellant: Leonard J. Haxby argued, Butte, Montana Daniel R. Sweeney argued, Butte, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Denny Moreen argued, Assistant Attorney General, Helena, Montana John G. Winston, County Attorney, Butte, Montana Craig G. Phillips argued, Deputy County Attorney, Butte, Montana Submitted: March 7, 1978 Decided: ?U# Filed: 1 .' L dub' i ,:g %dl ' 1378 M r . J u s t i c e John C. Harrison d e l i v e r e d t h e Opinion of t h e Court: This i s an appeal by defendant Thomas P. McGuinn from t h e f i n a l judgment entered on a jury v e r d i c t of g u i l t y of del i b e r a t e homicide i n t h e D i s t r i c t Court, S i l v e r Bow County. The body of Mrs. LaRae Alley was found on May 30, 1976, a t approximately 2:00 p.m. i n an a r e a l o c a t e d approximately 10 miles south of Butte, Montana. b u l l e t wounds i n t h e head. The cause of death was four Time of death was estimated t o be between 5 a.m. of t h e morning of May 30 and 1 p.m. that after- noon. Defendant was f i r s t questioned concerning t h e murder on o r about May 30, 1976. N charges r e s u l t e d from t h i s questioning. o L a t e r , on June 2, 1976, defendant was a r r e s t e d and placed i n custody by t h e S i l v e r Bow County s h e r i f f ' s o f f i c e on another charge. A t t h a t time t h e c l o t h i n g of t h e defendant was taken from him and s e n t t o t h e FBI laboratory i n Washington, D.C. f o r analysis i n connection with t h e murder of LaRae Alley. On August 5 , 1976, defendant was charged by Information with t h e crime of d e l i b e r a t e homicide. 15, 1977. T r i a l commenced on February During t h e t r i a l the s t a t e o f f e r e d d i r e c t and circum- s t a n t i a l evidence tending t o prove defendant committed t h e crime. C o n t r a r i l y , defendant maintained h i s innocence throughout t h e t r i a l , t e s t i f y i n g on h i s own behalf and i n s i s t i n g he was n o t i n t h e a r e a a t t h e time t h e crime was committed. On February 23, 1977, defendant was found g u i l t y of t h e crime of d e l i b e r a t e homicide by a jury v e r d i c t . From t h i s v e r d i c t and subsequent judgment, defendant appeals. Defendant p r e s e n t s numerous i s s u e s f o r review by t h i s Court. The determinative i s s u e i s whether t h e r e i s s u f f i c i e n t s u b s t a n t i a l , c r e d i b l e evidence t o support t h e jury v e r d i c t ? The balance of t h e claimed e r r o r s i s a l l e g e d t o be cumulative and taken together amounts t o r e v e r s i b l e e r r o r . The standard used by t h i s Court when reviewing t h e v e r d i c t of a jury i s s e t f o r t h i n S t a t e v. Merseal, (1975), 167 Mont. 412, "This Court remains evermindful of one t h a t questions of f a c t must fundamental r u l e be determined s o l e l y by t h e j u r y , and t h a t given a c e r t a i n l e g a l minimum of evidence, t h i s Court on review w i l l n o t s u b s t i t u t e i t s judgment f o r t h a t of t h e jury. -- *** "On appeal we examine t h e evidence t o determine whether t h e v e r d i c t i s supported by subs t a n t i a l evidence. I n s o doing, we view t h e evidence i n t h e l i g h t most favorable t o t h e S t a t e . 167 Mont. 415. * * *" The s t a t e o f f e r e d evidence t o show defendant had t h e opportunity to-murder M r s . Alley. defendant with t h e crime i s : The time element connecting On May 30, M r s . Alley l e f t h e r home a t approximately 8:25 t o 8:30 a.m. t o d e l i v e r g a s o l i n e t o h e r husband on Continental Drive. O t h a t same morning, den fendant l e f t t h e D & M Bar, located i n B u t t e , a t approximately 7:30 a.m. H i s v e h i c l e was seen on t h e road leading t o t h e scene of t h e crime a t approximately 8:00 a.m. Defendant's v e h i c l e was again seen on t h a t road d r i v i n g toward Butte from t h e scene of t h e crime a t a high r a t e of speed between 8:45 and 8:50 a.m. A d e t e c t i v e i n v e s t i g a t i n g the crime t e s t i f i e d t o making s e v e r a l t r i p s between t h e v i c t i m ' s house and t h e murder scene. He found i t took from 10-12 minutes t o cover the r o u t e , i f one t r a v e l e d w i t h i n t h e speed l i m i t s . I n a d d i t i o n t o t h e time element, a p a i r of sunglasses found a t t h e crime scene, a f t e r t h e i n i t i a l discovery of t h e body, was circumstantiZilly linked t o defendant. Testimony was a l s o given t h a t a man matching defendant's d e s c r i p t i o n purchased a new p a i r of sunglasses on t h e evening of May 30. Next, t h e s t a t e produced evidence t o demonstrate defendant had t h e means t o murder Mrs. Alley. Defendant consented t o a search of h i s home which produced an unusual .38 s h o r t S & W box of b u l l e t s and a suspected . 3 8 Smith & Wesson weapon. Three Federal Bureau of I n v e s t i g a t i o n laboratory e x p e r t s gave testimony: I r a Holland, a s p e c i a l agent f o r t h e F B I , t e s t i f i e d concerning t h e neutron a c t i v a t i o n a n a l y s i s performed on t h e b u l l e t s removed from t h e v i c t i m ' s head. From t h i s a n a l y s i s t h e agent s t a t e d t h e b u l l e t s were s i m i l a r enough i n elemental composition t o have come from t h e same box of c a r t r i d g e s a s those taken i n t h e consent search a t defendant's home. This f i n d i n g was confirmed by t h e defense expert. The b u l l e t s recovered from t h e v i c t i m were i d e n t i f i e d a s .38 S 6 W caliber bullets. The b u l l e t s taken a t defendant's home were a l s o . 3 8 S & W . B a l l i s t i c s i n d i c a t e d t h e b u l l e t s were f i r e d from a b a r r e l with f i v e grooves plus a right-hand t w i s t . Testimony was given t h a t t h e .38 S & W b u l l e t i s an unusual . 3 8 s h o r t c a r t r i d g e intended f o r use i n revolvers. James B. Bollenbach, an FBI a g e n t , t e s t i f i e d t h e . 3 8 S & W s h o r t c a r t r i d g e when compared t o modern ammunition i s of r e l a t i v e l y low power. This evidence corresponded with t h e p a t h o l o g i s t ' s testimony t h a t t h e b u l l e t s removed from the v i c t i m were of a low energy type, not o f t e n seen i n modern times. The p a t h o l o g i s t , basing h i s observation on 30 years of experience, was of t h e opinion t h a t modern ammunition i s s u f f i c i e n t l y powerful t h a t t h e s k u l l i s massively f r a c t u r e d and i n most i n s t a n c e s t h e b u l l e t p e n e t r a t e s t o t h e opposite s i d e of t h e s k u l l o r e x i t s . In this case t h e b u l l e t only penetrated t h e b r a i n f o r a d i s t a n c e of approximately one inch a f t e r passing through the s k u l l . Defendant's .38 f i t t h e general d e s c r i p t i o n of t h e .38 S & W b u t it was n o t i d e n t i f i e d a s the murder weapon. James Hilverda, another FBI s p e c i a l a g e n t , t e s t i f i e d t h a t f i b e r s on t h e c l o t h i n g of t h e victim- microscopically s i m i l a r t o f i b e r s contained i n a sweater belonging t o defendant. Those f i b e r s could have come from t h e defendant's sweater, b u t n o t t o t h e exclusion of a l l t h e o t h e r garments. F i n a l l y , impeaching evidence was given by defendant while t e s t i f y i n g i n h i s own b e h a l f . A t t r i a l , defendant s t a t e d he went t o a M r . ~ o g e r ' sresidence on Continental Drive. The s t a t e pro- duced a p r i o r statement taken by S h e r i f f Hagel where defendant denied making any t r i p s on Continental Drive on May 30. Defendant claimed he was i n a b a r a t 8:00 a.m. on t h e morning of May 30. Two witnesses t e s t i f i e d t o seeing defendant t r a v e l i n g on Continental Drive around 8 a.m. Defendant submitted t o a swab t e s t t o determine t h e l a s t t i m e he f i r e d a gun. During the t e s t , defendant gave four s e p a r a t e s t o r e s concerning t h e l a s t time he f i r e d a gun. was !t The f i n a l s t o r y two days ago", which was t h e day of t h e homicide. John Whelan t e s t i f i e d defendant requested him t o g e t defendant a s u b s t i t u t e gun while both were i n t h e S i l v e r Bow County jail. Defendant denied t h i s testimony. F i n a l l y , defendant t e s t i f i e d he b a r e l y knew t h e v i c t i m and had never s o c i a l i z e d with h e r . John Whelan t e s t i f i e d defendant t o l d him he knew t h e victim. Carol Ann Gilmore t e s t i f i e d she saw defendant and t h e v i c t i m , arm-in-arm, going i n t o a r e s t a u r a n t approximately a year before t h e shooting. She was p o s i t i v e of h e r i d e n t i f i c a t i o n of both persons. Defendant was placed near t h e scene of the crime. fendant was shown t o have t h e means t o commit t h e crime. DeFinally, defendant c a s t doubt on h i s own p l e a of innocence by being impeached on t o p i c s c l o s e l y r e l a t e d t o h i s a c t i v i t i e s surrounding t h e crime. Defendant's remaining i s s u e s w i l l be reviewed i n accord with h i s theory of cumulative e r r o r . I n urging t h e d o c t r i n e of cumulative e r r o r , defendant r a i s e s 16 s p e c i f i c a t i o n s of a l l e g e d e r r o r s claiming t h a t t h e aggregate of these e r r o r s , when taken a s a whole, constlitntes p r e j u d i c i a l e r r o r and hence a r e r e v e r s i b l e . This Court i s n o t o b l i g a t e d t o r e f u t e a l l of these a l l e g e d e r r o r s where t h e e r r o r s a r e bald a s s e r t i o n s , absent any s p e c i f i c argument o r a u t h o r i t y , o r a r e a l l e g a t i o n s which can be c l a s s i f i e d a s n i t p i c k i n g and void of d e f i n a b l e p r e j u d i c e . W w i l l , however, e b r i e f l y answer t h e s e contentions i n l i g h t of t h e Court's r u l i n g on t h e d o c t r i n e of cumulative e r r o r i n S t a t e v. Meidinger, (1972), 160 Mont. 310, 321, 502 P.2d 58, where t h e Court s a i d : ***W e cannot accept t h i s contention. Defendant i n i n t e r p r e t i n g t h i s d o c t r i n e p o i n t s o u t 33 s e p a r a t e s p e c i f i c a t i o n s of a l l e g e d e r r o r s and claims t h a t t h e aggregate of t h e s e e r r o r s when taken a s a whole c o n s t i t u t e s p r e j u d i c i a l e r r o r . This d o c t r i n e , i f i t i n f a c t e x i s t s , presumes t h a t a l l 33 a l l e g a t i o n s a r e e r r o r s . I f (Emphasis supplied.) " Here, defendant a t t h e o u t s e t contends the Information was n o t based on s u f f i c i e n t probable cause. Section 95-1301, R.C.M. 1947, provides i n p e r t i n e n t p a r t : "* * *If it appears t h e r e i s probable cause t o b e l i e v e t h a t an offense has been committed by t h e defendant t h e judge s h a l l g r a n t leave t o f i l e *.I1 t h e information ** The c o u r t may r e l y on t h e presence of p r o b a b i l i t i e s . ** "* a mere p r o b a b i l i t y i s s u f f i c i e n t f o r probable cause, a prima f a c i e showing n o t being necessary. Also a f f i d a v i t s of probable cause a r e s u b j e c t t o much l e s s rigorous standards than S t a t e v. Miner, t h e a d m i s s i b i l i t y of evidence." (1976), 169 Mont. 260, 264, 546 P.2d 252. W have reviewed t h e a p p l i c a t i o n f o r leave t o f i l e t h e e Information. The county a t t o r n e y presented a l a r g e a r r a y of f a c t s . Probable cause t o b e l i e v e t h a t an offense was committed by t h e defendant appears from t h e s e f a c t s . Defendant's second contention i s t h a t a t o t a l of 17 e x h i b i t s were improperly admitted i n t o evidence. Defendant has apparently r a i s e d a s e r r o r every e x h i b i t t o which he objected i n some manner during t r i a l . Eight of t h e e x h i b i t s were objected t o on t h e grounds of l a c k of proper foundation. *** " A determination of whether a foundation has been properly l a i d i n o r d e r t o introduce e x h i b i t s i n t o evidence r e s t s with t h e lower c o u r t and such a determination w i l l n o t be overturned *." u n l e s s t h e r e i s a c l e a r abuse of d i s c r e t i o n S t a t e v. Olsen, (1968), 152 Mont. 1, 10, 445 P.2d 926. ** N abuse of d i s c r e t i o n i s present i n t h i s case. o I f an e x h i b i t has been shown t o be connected with t h e crime and i d e n t i f i e d a s such, i t i s s u f f i c i e n t . 259, 434 P,2d 138. S t a t e v. Wilroy, (1967), 150 Mont. 255, The i t e m s i n question were shown t o be connected with t h e crime. Eight o t h e r e x h i b i t s were objected t o on t h e grounds of relevancy. Evidence i s considered r e l e v a n t i f i t n a t u r a l l y and l o g i c a l l y tends t o e s t a b l i s h a f a c t i n i s s u e . S t a t e v. Sanders, (1971), 158 Mont, 113, 117,118, 489 P.2d 371. Exhibits con- t a i n i n g b u l l e t s from the crime and photographs of t h e crime scene have been found t o be admissible. S t a t e v. A l l i s o n , (1948), 122 Mont. 120, 133, 199 P.2d 279; S t a t e v. McKenzie, (1976), Mont . , 557 P.2d 1023, 1037, 33 St.Rep. 1043 (Remanded by t h e United S t a t e s Supreme Court f o r f u r t h e r c o n s i d e r a t i o n , see: S t a t e v. McKenzie, 759). Mont . , P.2d , 35 St.Rep. A l l of t h e questioned items were s u f f i c i e n t l y connected t o t h e crime. Defendant r a i s e s a s e r r o r t h e admission i n t o evidence of Exhibit 7A, a p i s t o l introduced f o r i l l u s t r a t i v e purposes only. The county a t t o r n e y upon presenting t h i s p i s t o l s t a t e d : I ' m going t o show you a weapon and have i t marked. (Whereupon, S t a t e ' s proposed Exhibit 7A i s marked f o r i d e n t i f i c a t i o n . ) "Q. "Q. F i r s t of a l l , I ' m going t o t e l l you t h i s was n o t t h e weapon t h a t d i d t h e shooting. ** *I1 Af t e r some d i s c u s s i o n and an o b j e c t i o n by defendant t h a t Exhibit 7 was n o t t h e gun t h a t shot t h e v i c t i m and t h e r e f o r e i t was A t o t a l l y immaterial and i r r e l e v a n t t o t h e c a s e , t h e t r i a l c o u r t apparently admitted t h e e x h i b i t i n t o evidence without a motion from e i t h e r party. O n appeal defendant now a l l e g e s s i n c e no attempt was made t o introduce t h e e x h i b i t , t h e erroneous admittance of t h e e x h i b i t i n t o evidence misled t h e jury i n t o b e l i e v i n g t h e defendant was t h e owner of t h e murder weapon. The county a t t o r n e y c l e a r l y s t a t e d t h a t t h e e x h i b i t was t o be used f o r i l l u s t r a t i v e purposes only. While n e i t h e r p a r t y moved t o admit t h i s e x h i b i t i n t o evidence, they d i d not o b j e c t when t h e t r i a l c o u r t s t a t e d " ~ x h i b i t7A may be admitted i n t o evidence. I' I n a d d i t i o n t o lacking a s p e c i f i c o b j e c t i o n f o r admitting t h i s e x h i b i t without a motion, w s e e no s u b s t a n t i a l p r e j u d i c e . e Both t h e s t a t e and defendant c l e a r l y s t a t e d t h e e x h i b i t was n o t t h e murder weapon. Defendant next raises an additional series of error concerning the introduction of hearsay testimony. Many of the allegations of error deal with the introduction of statements made by defendant and admitted by the trial court as a verbal act exception to the hearsay rule. The law on admissions against interest is well established. Section 93-401-27, R.C.M. 1947, dealing with facts which may be proven at trial, provides in pertinent part: "2. The act, declaration or omission of a party, as evidence against such party. 1 I An admission has been defined as any voluntary statement by an accused relating to some particular fact or circumstance which indicates a consciousness of guilt and tends to connect the accused with the crime charged. State v. Allison, (1948), 122 Mont. 120, 144, 199 P.2d 279. The state questioned the sheriff regarding statements made by the defendant's son. Defendant objected on the grounds that any statements made by the son concerning the sunglasses would be hearsay, The county attorney responded to this objection by stating: "It's the same verbal act that we're talking about now. We're not asking Mr. Hagel to tell the statement was true, but that the statement was made * * *.I1 These statements would have been hearsay had they been offered to prove the truth of the matter stated. However, as the county attorney stated, they were not offered for that purpose but rather to show how the investigation focused on the defendant as a suspect, Going further through the transcript we note defendant's son's subsequent testimony. The son stated he had not identified the sunglasses but rather said: "Those look like my dad's sunglasses.II - 9 - Accordingly, we f i n d no s u b s t a n t i a l p r e j u d i c i a l e f f e c t on t h e defendant. A s s t a t e d by t h i s Court i n S t a t e v. Rornero, (1973), 161 Mont. 333, 341, 505 P.2d 1207, under s e c t i o n 952425, R.C.M. 1947: "Any e r r o r , d e f e c t , i r r e g u l a r i t y o r variance which does n o t a f f e c t s u b s t a n t i a l *'I r i g h t s s h a l l be disregarded. ** Additional e r r o r i s a l l e g e d r e s u l t i n g from t h e comments and remarks made by t h e prosecutor. Defendant contends t h e comments were inflammatory and p r e j u d i c i a l . The l a c k of s i g n i f i c a n c e of t h i s a l l e g e d e r r o r i s p a r t i c u l a r l y found i n defendant's f a i l u r e t o take any c o r r e c t i v e measure during t r i a l . S t a t e v. Caryl, (1975), 168 Mont. 414, 432, 543 P.2d 389. Defendant had t h e burden t o show t h a t t h e remarks and comments a f f e c t e d h i s s u b s t a n t i a l r i g h t . showing t h e r e can be no prejudice. I n t h e absence of such S t a t e v. Meidinger, supra. A l i k e contention of e r r o r i s made by defendant concerning a l l e g e d comments on t h e evidence made by t h e D i s t r i c t Court. For s i m i l a r reasons, no merit i s found i n t h i s argument. The r e f e r e n c e s c i t e d from t h e t r a n s c r i p t a r e n i t p i c k y and f a i l t o q u a l i f y a s comments on e i t h e r t h e weight o r i n t e r p r e t a t i o n of t h e evidence. During t r i a l defendant d i d n o t o b j e c t t o any of t h e statements of t h e c o u r t now a l l e g e d t o be p r e j u d i c i a l , nor d i d he take any o t h e r c o r r e c t i v e a c t i o n . S t a t e v. Jensen, (1969), 153 Mont. 233, 236, 455 P.2d 631. F i n a l l y , defendant contends t h e t r i a l c o u r t gave 7 improper jury i n s t r u c t i o n s and f a i l e d t o submit 14 proper i n s t r u c t i o n s on behalf of t h e defendant. B r i e f l y , 2 of t h e 7 s p e c i f i c a t i o n s of e r r o r concerning improper i n s t r u c t i o n s were n o t objected t o a t t h e time t h e i n s t r u c t i o n s were s e t t l e d . These i n s t r u c t i o n s , Court's In- s t r u c t i o n s #7 and #16, cannot now be challenged on appeal f o r t h e f i r s t time. S t a t e v. Meidinger, supra. A third alleged improper i n s t r u c t i o n , Court's I n s t r u c t i o n #3, was objected t o on t h e grounds t h a t a s h o r t e r more concise i n s t r u c t i o n was a v a i l a b l e . Court's I n s t r u c t i o n #3 i s recommended and found i n t h e Montana J u r y I n s t r u c t i o n Guide. Court's I n s t r u c t i o n /I18 was objected t o by defendant on t h e grounds of being r e p e t i t i o u s of a p r i o r c o u r t instruction. A reading of t h e i n s t r u c t i o n s r e v e a l s t h e i n s t r u c - t i o n objected t o defined c i r c u m s t a n t i a l evidence, whereas t h e p r i o r c o u r t i n s t r u c t i o n d i f f e r e n t i a t e d d i r e c t and c i r c u m s t a n t i a l evidence and explained how the jury should consider c i r c u m s t a n t i a l evidence. W f i n d no merit i n defendant's o b j e c t i o n . e The remainder of defendant's a l l e g e d improper jury i n s t r u c t i o n s f a i l t o e s t a b l i s h any r e v e r s i b l e e r r o r and w deem e them n o t worthy of discussion. Of t h e 14 i n s t r u c t i o n s proposed by defendant, b u t n o t given, 1 were r e j e c t e d on t h e grounds of being r e p e t i t i o u s of 1 A f a i r reading of a l l of t h e jury i n s t r u c t i o n s given i n s t r u c t i o n s . a s a whole demonstrates they a r e s u f f i c i e n t and properly i n s t r u c t e d t h e jury on t h e law governing t h i s case. Those jury i n s t r u c t i o n s r e j e c t e d a s r e p e t i t i o u s were n o t an abuse of d i s c r e t i o n by t h e c o u r t . The remaining 3 proposed i n s t r u c t i o n s a l s o f a i l t o provide grounds f o r r e v e r s a l . Defendant attempted t o o f f e r an i n s t r u c t i o n concerning t h e defense of a l i b i . This i n s t r u c t i o n was properly r e j e c t e d a s defendant's case was not founded upon an a l i b i defense. N n o t i c e of such a defense was given a s required by s e c t i o n o 95-1803(3), R.C.M. 1947. N claim was made by defendant i n keeping o with t h e defense of a l i b i . Defendant a l s o proposed 2 i n s t r u c t i o n s providing a l e g a l d e f i n i t i o n f o r the words "could" and ''similar". Court refused these i n s t r u c t i o n s s t a t i n g : The D i s t r i c t '* I * * They [the jury] heard the testimony of the similarities and it's up to them to determine the similarities and its not within the province of this court to say what similarity is or is not.1 1 We find no error on the part of the trial court in refusing these instructions. This Court has carefully reviewed the issues for review presented by the defendant. We find sufficient substantial evidence, if believed by the jury. We find no abuse of judicial discretion or reversible error. The judgment of the trial court is affirmed. We Concur: $LJ&tQQ\ Chief Justice Judge, sitting with the Court.

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