STATE v WATKINS

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No. 12463 I N THE SUPREME C U T O THE STATE O MONTANA OR F F 1973 STATE O MONTANA, F Pla i n t i f f and Respondent, -VS - CHARLES R. CJATKINS , Defendant and Appellant. Appeal from: D i s t r i c t Court of t h e T h i r t e e n t h J u d i c i a l D i s t r i c t , Honorable Robert H. Wilson, Judge p r e s i d i n g . Counsel of Record : For Appellant : John L. Adams argued, B i l l i n g s , Montana For Respondent: Hon. Robert L. Woodahl, Attorney General, Helena, Montana Thomas Beers, A s s i s t a n t Attorney General, argued, Helena, Montana Harold F. Hanser, County Attorney, B i l l i n g s , Montana Diane G. Barz, Deputy County Attorney, appeared, B i l l i n g s , Montana Submitted: October 1, 1973 Honorable Paul G. H a t f i e l d , D i s t r i c t Judge, s i t t i n g f o r J u s t i c e John Conway H a r r i s o n , d e l i v e r e d t h e Opinion of t h e Court. O October 31, 1972, defendant C h a r l e s R. Watkins was n t r i e d , and on November 1, 1972, c o n v i c t e d of b u r g l a r y i n t h e second d e g r e e i n t h e d i s t r i c t c o u r t , Yellowstone County. sentenced t o a term o f f i v e y e a r s i n t h e s t a t e p r i s o n . He was From t h i s c o n v i c t i o n and judgment he a p p e a l s . E i t h e r l a t e on May 5 , 1972, o r e a r l y i n t h e morning May 6 , 1972, t h e r e a r door of t h e Gorham Park Drug, l o c a t e d a t Broadwater Avenue and 1 9 t h S t r e e t West i n B i l l i n g s , Montana, was found open by a merchant policeman. The owner-manager t e s t i f i e d he had b r r e d t h e r e a r door from t h e i n s i d e of t h e s t o r e and l e f t t h e s t o r e through t h e f r o n t d o o r , which he locked, a t approximately 8:15 p.m. on May 5 , 1972. The testimony was u n c o n t r a d i c t e d t h a t defendant f r e q u e n t e d t h e s t o r e q u i t e o f t e n ; t h a t defendant was i n t h e d r u g s t o r e on t h e evening of May 5 w i t h a companion; t h a t h e s t a y e d q u i t e a w h i l e ; t h a t he bought e i t h e r Winston o r Camel c i g a r e t t e s , a s t h e c l e r k r e c a l l e d ; and, t h a t no employee of t h e s t o r e saw d e f e n d a n t l e a v e t h e premises. Testimony of t h e i n v e s t i g a t i n g o f f i c e r s r e v e a l e d t h a t , i n t h e i r o p i n i o n , no f o r c e d e n t r y of t h e premises was made. How- e v e r , t h e y d i d conclude t h a t escape was made through t h e r e a r door. There was f u r t h e r testimony t h a t someone had been h i d i n g i n t h e back storeroom. I n f a c t , s e v e r a l Camel c i g a r e t t e b u t t s were found i n a s t o r a g e a r e a between boxes. T h i s was an a r e a of t h e premises used f o r s t o r a g e and n o t open t o t h e p u b l i c . Investigation also uncovered a p a i r of g l o v e s which were d i r t y and g r e a s y . was peeled. The s a f e Found a t t h e s a f e were a s c r e w d r i v e r and a c h i s e l , which d i d n o t belong t o t h e s t o r e . Also found was t h e d i a l from t h e s a f e and t h e s h a f t housing from t h e i n s i d e of t h e s a f e , which t h e p o l i c e marked. I n v e n t o r y of m i s s i n g items given by t h e s t o r e manager t o t h e p o l i c e a t t h e time of t h e i n v e s t i g a t i o n i n c l u d e d a p i s t o l w i t h its make, model and serial number; watches; cigarette lighters; and quite a bit of medicine from the pharmacy. There was also money and some narcotics missing from the safe. On the morning of May 7, 1972, authorities, armed with a search warrant, searched the premises of Room 6, in the Uptown Motel, Billings, Montana. In the room was defendant Charles Watkins. The authorities found a pistol which matched in make, model and serial number the pistol reported stolen from the Gorham Park Drug; and a narcotics label with the Gorham Park owner's initials, which labels were kept on the narcotics in the safe at the drugstore, in the room. They also found in the room an attache case containing numerous drugs, along with some watches and cigarette lighters. These items were all similar to the items reported missing from the Gorham Park Drug, but they had no identifying marks and, therefore, were not positively identified. Also found was a wallet in a shaving kit in a box next to or on the bed in the room. to defendant. In the wallet were two ID'S belonging Next to the box was found a paper sack containing brass, whiich together with pieces of the safe found at the scene of the crime were sent to the F.B.I. The F.B.I. reported this brass could have been from the same safe as the brass found at the scene of the crime. Placed in evidence were two registration cards for Room 6 of the Uptown Motel. One of these cards listed the address of the signer as 317 South 27th Street. one-half of a duplex. This address is the address of There was testimony that the other half of this duplex was rented to a Charles Watkins and a Betty Jones about a year prior to the date of the crime. Also on this registration card was listed a license number of a car owned by a person known to associate with defendant. Finally, there was found in Room 6 of the Uptown Motel a laundry tag with Watkins's name on it and the address 2612 South First. Testimony indicated this address is located between 26th Street South and 27th Street South in Billings. Too, there was evidence of the statement made by defendant at the sheriff's office, which will be discussed with more particularity later. Defendant contends t h a t no b u r g l a r y was committed because of t h e l a c k o f forced e n t r y . The a t t o r n e y on a p p e a l i s n o t t h e same a t t o r n e y who r e p r e s e n t e d defendant a t t r i a l , and t h i s argument was n o t p r e s e n t e d a t t r i a l . A s a m a t t e r of f a c t , i n t h e c l o s i n g argument t o t h e j u r y t h e d e f e n s e counsel s a i d : ** "* N w we do n o t deny t h a t a b u r g l a r y must o have taken p l a c e . The p o l i c e say i t took p l a c e , i t must have taken p l a c e . But, Ladies and Gentlemen, t h i s defendant d i d n ' t do i t . I' F u r t h e r , t h e c a s e law c i t e d by defendant r e q u i r i n g a t r e s p a s s , S t a t e v. Mish, 36 Mont. 168, 170, 92 P. 459, a f f i r m e d S t a t e v. Rodgers, 40 Mont. 248, 251, 106 P. 3 , and c a r r i e d out i n S t a t e v. Starkweather, 89 Mont. 381, 386, 297 P. 497, i s : * "* * ' i n o r d e r t o c o n s t i t u t e a b u r g l a r i o u s e n t r y t h e n a t u r e of t h e e n t r y must be i t s e l f a trespass.' A t r e s p a s s i s t h e i n v a s i o n of (Coburn C a t t l e Co. t h e possession of a n o t h e r . v. Hensen, 52 Mont. 252, 157 Pac. 177; Thrasher v. Hodge, 86 Mont. 218, 283 Pac. 219.)" The two c a s e s c i t e d i n t h e above q u o t a t i o n a r e c i v i l c a s e s . In t h i s c a s e , someone exceeded t h e i n v i t a t i o n given a s a b u s i n e s s i n v i t e e and s t a y e d i n t h e s t o r e a f t e r b u s i n e s s was c l o s e d , becoming a trespasser. The p r i n c i p a l c o n t e n t i o n s of defendant a r e (1) t h a t t h e evidence viewed i n i t s e n t i r e t y was i n s u f f i c i e n t i n law t o j u s t i f y c o n v i c t i o n of t h e crime of b u r g l a r y i n t h e second degree; (2) t h a t the p i s t o l introduced i n evidence was i n t r o d u c e d w i t h o u t proper foundation l a i d f o r i t s admission; (3) t h a t evidence of o t h e r crimes i n c l u d i n g t h e f a c t defendant was under s u r v e i l l a n c e f o r a n o t h e r crime was p r e j u d i c i a l and improperly i n t r o d u c e d ; (4) t h a t t h e s t a t e ment taken from defendant by t h e s h e r i f f was coerced and should have been suppressed; and (5) t h a t t h e c l o s i n g argument of t h e p r o s e c u t o r was p r e j u d i c i a l t o t h e r i g h t s of defendant t o a f a i r and i m p a r t i a l trial. Concerning d e f e n d a n t ' s f i r s t c o n t e n t i o n , t h i s Court i n S t a t e v. Joseph Lee Allen, Mont . , 509 P.2d 849, 850, 30 St.Rep. 532, 533, 534, examined a s i m i l a r c o n v i c t i o n . said: I n A l l e n t h e Court "The r e c o r d shows t h a t during t h e e a r l y morning hours of December 8 , 1969, t h e Eagles Club Bar i n Bozeman, Montana was b u r g l a r i z e d . There was no f o r c e d e n t r y and t h e crime was accomplished by t h e b u r g l a r h i d i n g himself i n t h e b u i l d i n g u n t i l t h e c l u b c l o s e a a t 1:00 a.m. He t h e n wheeled t h e s a f e from t h e o f f i c e where i t was k e p t i n t o t h e b a r a r e a . T h i s was done so he was n o t v i s i b l e from t h e o u t s i d e of t h e b u i l d i n g . The s a f e was turned on i t s back, t h e door p r i e d o f f , and over $5,000 i n small b i l l s , f i v e s , t e n s and t w e n t i e s , s t o l e n . I I The same c o n t e n t i o n , l a c k of evidence, was made i n A l l e n and t h e Court s a i d : h his Court has been faced w i t h t h i s i s s u e i n s e v e r a l previous c a s e s . J u s t what weight and u s e should be given t o c i r c u m s t a n t i a l evidence i n a c r i m i n a l t r i a l ? W answered t h a t q u e s t i o n e and e s t a b l i s h e d a t e s t i n S t a t e v. Cor, 144 Mont. 323, 326, 396 P.2d 86 (1964). I n t h a t c a s e we held: 11 1 C i r c u m s t a n t i a l evidence i s n o t always i n f e r i o r i n q u a l i t y nor i s i t n e c e s s a r i l y r e l e g a t e d t o a "second c l a s s s t a t u s " i n t h e c o n s i d e r a t i o n t o be given i t . The very f a c t it i s c i r cumstantial i s not a s u f f i c i e n t allegation t o j u s t i f y a r e v e r s a l o f t h e judgment f o r such e v i dence may be and f r e q u e n t l y i s , most convincing and s a t i s f a c t o r y . I n any c r i m i n a l c a s e , evidence t h a t i s m a t e r i a l , r e l e v a n t and competent, w i l l b e admitted, "nothing more and n o t h i n g l e s s . " The t e s t i s whether t h e f a c t s and circumstances a r e of such a q u a l i t y and q u a n t i t y a s t o l e g a l l y j u s t i f y a j u r y i n determining g u i l t beyond a r e a s o n a b l e doubt. I f such be t h e c a s e , then t h e c o u r t should n o t , indeed cannot, s e t a s i d e t h e solemn f i n d i n g s of t h e t r i e r of t h e f a c t s . ' 1I This t e s t was used r e c e n t l y i n a f i r s t degree murder c a s e where t h e evidence of g u i l t was based on c i r c u m s t a n t i a l evidence. S t a t e v. Gallagher, Mont P.2d , 30 S t a t e Rep. r c ~ a y , .m:" Again, i n S t a t e v. F i t z p a t r i c k , P. 2d , 30 Mont *Y - S t . Rep. 1052, 1060, t h i s Court r e i t e r a t e d t h e r u l e on c i r c u m s t a n t i a l evidence. I n t h e i n s t a n t c a s e t h e r e was s u f f i - c i e n t evidence t o j u s t i f y t h e c o n v i c t i o n . A s t o d e f e n d a n t ' s second c o n t e n t i o n - - t h e i n t r o d u c t i o n of t h e gun-- t h e o b j e c t i o n i s t h a t t h e s t a t e f a i l e d t o i n t r o d u c e i n evidence t h e box i n which t h e gun was k e p t and which was l e f t a t t h e scene of t h e crime, o r a t l e a s t t h a t t h e s e r i a l number i n t r o duced a t t r i a l had n o t been compared w i t h t h e box t h e gun had o r i g i n a l l y come i n . However, t h e o f f i c e r s d i d t e s t i f y t h e y were given t h e s e r i a l number and t h a t t h e gun recovered i n motel Room 6 bore t h e same s e r i a l number a s t h e one given them a f t e r t h e b u r g l a r y i n t h e i n v e n t o r y of missing a r t i c l e s . S t a t e v. Wilroy, 150 Mont. 255, 258, 259, 434 P.2d 138, s e t s out t h e r u l e : 11 Failure t o e i t h e r properly i d e n t i f y t h e a r t i c l e , o r t o prove t h a t no s u b s t a n t i a l change has taken p l a c e i n t h e a r t i c l e , w h i l e i n custody, c o n s t i t u t e s ground f o r a n o b j e c t i o n t h a t t h e proper foundation has n o t been shown. I 1 X t h i s c a s e a s u f f i c i e n t foundation was shown and a s s t a t e d i n n Wilroy and i n F i t z p a t r i c k : "* * * we f i n d t h e i d e n t i f i c a t i o n t o have been s u f f i c i e n t . The l a c k of s p e c i f i c o r p o s i t i v e i d e n t i f i c a t i o n marks i s n o t of g r e a t import f o r t h e items were n o t s o uncommon t h a t a r e a s o n a b l e i d e n t i f i c a t i o n cannot be made. The l a c k of o s i t i v e i d e n t i f i c a t i o n goes t o t h e weight of !he evidence r a t h e r t h a n i t s a d m i s s i b i l i t y . I t i s s u f f i c i e n t i f they a r e shown t o be connect w i t h t h e crime, and i d e n t i f i e d a s such." ** A s t o d e f e n d a n t ' s t h i r d c o n t e n t i o n - - t h a t evidence of o t h e r crimes i n c l u d i n g t h e f a c t defendant was under s u r v e i l l a n c e f o r ano t h e r crime was p r e j u d i c i a l and improperly i n t r o d u c e d i n t h e case-we have made a c a r e f u l i n s p e c t i o n of t h e r e c o r d and f i n d no m e r i t i n t h i s contention. A s t o t h e f i f t h c o n t e n t i o n - - t h a t t h e c l o s i n g argument of t h e p r o s e c u t o r was p r e j u d i c i a l t o t h e r i g h t s of defendant t o a f a i r and i m p a r t i a l t r i a l when he r e l a t e d evidence n o t i n t r o d u c e d . Again, we have examined t h e f i n a l argument of c o u n s e l s e t o u t i n t h e t r a n s c r i p t , and t h e c a s e law i n S t a t e v. Watkins, 156 Mont. 456, 481 P.2d 689; S t a t e v. Quigg, 155 Mont. 119. 467 P.2d 692; S t a t e v. Lucero, 151 Mont. 531, 445 P.2d 731; and S t a t e v. J e n s e n , 153 Mont. 233, 455 P.2d 63). W f i n d t h e remarks made by t h e p r o s e c u t o r e were n o t s u f f i c i e n t l y p r e j u d i c i a l t o r e q u i r e a m i s t r i a l . The remaining m a t t e r i s d e f e n d a n t ' s f o u r t h c o n t e n t i o n - t h a t t h e statement taken from defendant by t h e s h e r i f f was coerced and should have been suppressed. During t h e time a f t e r t h e execu- t i o n of t h e search w a r r a n t on May 7, 1972, and t h e time defendant was charged w i t h t h e crime by d i r e c t Information on J u l y 21, 1972, defendant on h i s own v o l i t i o n went t o t h e s h e r i f f ' s o f f i c e and i n q u i r e d a s t o o b t a i n i n g h i s i d e n t i f i c a t i o n , which t h e s h e r i f f had from t h e e x e c u t i o n of t h e search w a r r a n t . Defendant contends t h a t t h e statement taken a t t h a t time by t h e s h e r i f f from him was coerced and should have been suppressed. B a s i c a l l y , t h e statement t h e s h e r i f f took was merely a r e c e i p t f o r t h e i d e n t i f i c a t i o n which defendant wanted. The statement was r e q u i r e d a s a r e c e i p t f o r l e t t i n g o u t of custody of t h e s h e r i f f evidence t h a t t h e s e a r c h warrant had o b t a i n e d , and i t merely s t a t e d t h a t t h e i d e n t i f i c a t i o n w a s h i s , t h e defendant Watkins. The f i r s t q u e s t i o n i s whether o r n o t t h e s t a t e m e n t was voluntary. The t r i a l c o u r t p r o p e r l y h e l d t h e h e a r i n g o u t s i d e t h e presence of t h e j u r y and found t h e statement t o be v o l u n t a r y b e f o r e a l l o w i n g i t s admission i n t o evidence. S t a t e v. White, 146 Mont. 226, 236, 405 P.2d 761; S t a t e v. I a c e r o , 151 Mont. 531, 445 P.2d 731. A t t h e time defendant signed t h e r e c e i p t he was r e p r e s e n t e d by counsel. statement. He was r e a d t h e Miranda warning b e f o r e he signed t h e He was t o l d i n p a r t t h a t he had a r i g h t t o remain s i l e n t ; t h a t a n y t h i n g he s a i d could and probably would be used a g a i n s t him; t h a t he had a r i g h t t o c o n s u l t an a t t o r n e y b e f o r e making any s t a t e ment; b u t t h a t he could waive t h e s e r i g h t s and make a s t a t e m e n t without c o n s u l t i n g a n a t t o r n e y i f he d e s i r e d . says i t i s v o l u n t a r y . The statement i t s e l f Watkins t e s t i f i e d he understood t h e warning. There were no t h r e a t s nor promises made n o r o t h e r c o e r c i o n t o g e t him t o g i v e t h e statement. Again, i t should be s t a t e d t h a t he went t o t h e s h e r i f f ' s o f f i c e on h i s own i n i t i a t i v e and t h e only admission was t h a t t h e i d e n t i f c a t i o n was h i s , which i s merely a r e c e i p t which t h e s h e r i f f would r e q u i r e anyone t o s i g n i n o r d e r t o o b t a i n any p r o p e r t y t h e s h e r i f f might have. F u r t h e r , i t should be remembered t h a t Watkins himself was i n t h e room a t t h e time of t h e execution of t h e search w a r r a n t . admission of t h e statement was n o t e r r o r . For t h e above r e a s o n s , t h e v e r d i c t was j u s t i f i e d by t h e The evidence. The pistol was properly admitted into evidence, and the trial court did not err in allowing statements made by the prosecution in closing argument, especially where no objection was made at the time. The conviction of burglary in the second degree is a£ firmed. ...................................... Hon. Paul G. Hatfied, sitting for Justice John Conway Harrison. /i /chief Justice Justices.

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