STATE v BEACH

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No. 84-373 I N THE SUPREfE COURT O THE STATE O IWNTANA F F THE STATE O MONTANA, F P l a i n t i f f and R e s p o n d e n t , -vsBARRY ALLAN BEACH, D e f e n d a n t and A p p e l l a n t . APPEAL FROM: D i s t r i c t C o u r t of t h e F i f t e e n t h J u d i c i a l D i s t r i c t , I n and f o r t h e County o f R o o s e v e l t , The H o n o r a b l e M. James S o r t e , J u d g e p r e s i d i n g . COUNSEL O RECORD: F For Appellant: Moses L a w Firm; R i c h a r d C a r s t e n s o n a r g u e d , B i l l i n g s , Montana F o r Respondent: Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana C l a y S m i t h a r g u e d , A s s t . A t t y . G e n e r a l , Helena James A. McCann, County A t t o r n e y , Wolf P o i n t , Montana - - - - Submitted: Decided: Filed: 4 , ; i3&5 : Clerk March 1 3 , 1985 J u l y 2 5 , 1985 M r . J u s t i c e L. Court. Defendant supress, of Gulbrandson d e l i v e r e d t h e Opinion o f C. appeals from a denial motion f o r change of venue, deliberate rendered in homicide, and District the of June 16, 1979, the imposed the D i s t r i c t , R o o s e v e l t C o u n t y , Montana. On his motion thereon; Fifteenth bludgeoned Office to death. W e affirm. body investigated immediate arrest. the High The of Kimberly Roosevelt crime, on but was list the all Judicial Nees d i s c o v e r e d i n t h e P o p l a r R i v e r n e a r P o p l a r , Montana. been to jury v e r d i c t of g u i l t y sentence Court of the County unable of was She had Sheriff's t o make suspects was an the d e f e n d a n t , B a r r y A l l e n Beach. Several years l a t e r , on J a n u a r y 4 , 1983, t h e Ouachita P a r i s h , L o u i s i a n a , S h e r i f f ' s O f f i c e r e c e i v e d a c o m p l a i n t from C a r o l y n Beach, the defendant, picked-up not Barry Beach's then step-mother. living in She a l l e g e d t h a t Monroe, Louisiana, had two u n d e r a g e g i r l s from s c h o o l and t h a t t h e y had returned. Deputy Talmadge Stutts responded c o m p l a i n t , and w e n t t o t h e d e f e n d a n t ' s h o u s e . to her The d e f e n d a n t a d m i t t e d t h a t b o t h g i r l s had b e e n t h e r e e a r l i e r i n t h e d a y , b u t had g o n e home. S t u t t s then advised t h e defendant nf h i s Miranda r i g h t s , and a s k e d i f h e c o u l d i n s p e c t t h e a p a r t m e n t . According t o S t u t t s , The d e f e n d a n t he did not l a t e r t e s t i f i e d a t a suppression hearing t h a t give apartment. arrested t h e defendant consented t o t h e search. Deputy Stutts defendant delinquency of Stutts entered, on the minors. He permission and charge then Ouachita P a r i s h S h e r i f f ' s Office. following of took to enter the contributing the his search, to the defendant t o t h e T h a t n i g h t , d e f e n d a n t s i g n e d a Miranda w a i v e r form and gave a s t a t e m e n t r e g a r d i n g t h e c o n t r i b u t i n g c h a r g e . the night in jail. The telephoned h i s mother, next day, Roberta C l i n c h e r , and a d v i s e d h e r o f h i s a r r e s t . Tim Beach, Louisiana, the January defendant's 5, defendant i n P o p l a r , Montana Clincher then contacted Mrs. uncle, H e spent who was a l s o i n Monroe, t o see a b o u t g e t t i n g t h e d e f e n d a n t o u t o f The d e f e n d a n t a l s o c o n t a c t e d h i s s t e p - m o t h e r Reach, Carolyn and a l l e g e d l y t h r e a t e n e d t o k i l l h e r f o r c o m p l a i n i n g t o t h e S h e r i f f ' s Office. A l f r e d Calhoun, Mrs. Beach r e p o r t e d t h e t h r e a t t o t h e Commander o f t h e c r i m i n a l u n i t o f t h e Ouachita P a r i s h S h e r i f f ' s O f f i c e . Commander Calhoun t h a t Roosevelt report. investigation She a l s o t o l d t h e d e f e n d a n t was a N e e s murder i n Montana. the , jail. suspect i n the The L o u i s i a n a a u t h o r i t i e s c o n t a c t e d County Sheriff and confirmed Mrs. Beach's They a l s o i n d i c a t e d t o t h e R o o s e v e l t County S h e r i f f t h a t B a r r y Beach was a s u s p e c t i n t h r e e m u r d e r s i n L o u i s i a n a . On J a n u a r y 6, q u e s t i o n B a r r y Beach. defendant waiver after signed. 1983, Louisiana i n v e s t i g a t o r s began to S e r g e a n t J a y Via f i r s t i n t e r v i e w e d t h e giving him Sergeant Miranda Via warnings testified at and the having a supression h e a r i n g t h a t t h e J a n u a r y 6 i n t e r v i e w l a s t e d a p p r o x i m a t e l y one hour, from 1 1 : O O a.m. t o 12:05 p.m. The d e f e n d a n t t e s t i f i e d t h a t t h i s i n t e r v i e w commenced a t 7:30 a.m. and lasted four hours. A t t h e t i m e o f t h e f i r s t i n t e r v i e w , d e f e n d a n t was s t i l l b e i n g h e l d on t h e c o n t r i b u t i n g c h a r g e . Aycock, T h a t a f t e r n o o n , Geary an a s s i s t a n t d i s t r i c t a t t o r n e y f o r Ouachita requested the Sheriff 's Office to release the Parish defendant. S e r g e a n t V i a t o l d Aycock a b o u t t h e d e a t h t h r e a t and t h e N e e s murder in Montana. On this basis, Aycock authorized continued custody of t h e defendant. Bail remained set a t t h e amount p r e v i o u s l y s e t f o r t h e c o n t r i b u t i n g t o t h e $1,500, delinquency o f minors charge. That afternoon, Correctional Center Tim Beach came t o t h e O u a c h i t a P a r i s h to post Beach s p o k e t o S e r g e a n t V i a , bail for the defendant. Tim and V i a t e s t i f i e d t h a t h e t o l d T i m t h a t h e had a r i g h t t o p o s t bond, b u t t h a t b e c a u s e o f t h e d e a t h t h r e a t s , t h e d e f e n d a n t ' s step-mother and f a t h e r d e s i r e d t h a t B a r r y Beach r e m a i n i n c u s t o d y . Tim Beach t e s t i f i e d t h a t Via ~ x p l a i n e d t o him t h e p r o c e d u r e t o g e t psychiatric help for Barry Beach, and also told would b e "a w a s t e o f money." him that getting a lawyer V i a d e n i e d making a n y s p e c i f i c recommendations t o T i m Beach. Via a r r a n g e d a phone c o n v e r s a t i o n b e t w e e n T i m Beach and t h e d e f e n d a n t d u r i n g which t h e d e f e n d a n t a l l e g e d l y t o l d Tim that he did not wish t a l k e d i n a three-way to be bailed out. Tim Beach later conference c a l l t h a t included Sergeant C l i n c h e r , who a t t h a t t i m e i n d i c a t e d Via, t o h i s mother, M r s . t h a t s h e was " c o n t e n t " w i t h t h e d e f e n d a n t r e m a i n i n g i n j a i l . She t e s t i f i e d t h a t s h e a s s e n t e d t o t h i s b e c a u s e S e r g e a n t Via had assured her psychological that help, t h e d e f e n d a n t would b e p r o v i d e d and that he would be released with soon anyway. Tim Beach a l s o t e s t i f i e d t h a t h e remembered t a l k i n g t o an assistant district attorney d e f e n d a n t would b e r e l e a s e d if who told him that t a k e n back t o Montana. the The a s s i s t a n t d i s t r i c t a t t o r n e y a l l e g e d l y t o l d Tim Beach t o w a i t i n t h e courthouse f o r t h e defendant's r e l e a s e . Tim d i d s o , b u t s e v e r a l h o u r s l a t e r r e c e i v e d word t h a t o t h e r c h a r g e s w e r e being brought against being investigated for the defendant, murder. Tim and t h a t h e was a l s o Beach could not say whether t h e s e l a s t e v e n t s occurred on January 6 o r 7 , b u t t h e record shows defendant January two for defendant deliberate and 8, on first things; second January that homicide that no The 6. charges were bond not against brought the until was for the also record posted shows that the d e f e n d a n t had n o t y e t been t a k e n b e f o r e a j u d g e o r m a g i s t r a t e f o r an i n i t i a l appearance, arraignment, o r proceeding. The q u e s t i o n i n g o f B a r r y Beach c o n t i n u e d a t 1 2 : 3 0 on January murders, 7. This p.m. i n t e r v i e w concerned t h e t h r e e Louisiana and t h e Nees murder i n Montana. did t h e questioning. S e r g e a n t Via a g a i n H e g a v e t h e d e f e n d a n t Miranda w a r n i n g s He testified that the and r e c e i v e d a s i g n e d w a i v e r t h e r e o f . d e f e n d a n t was c o h e r e n t and c o m f o r t a b l e i n t h e i n t e r r o g a t i o n room. Via deputy entered Miranda interrupted the warning the room, and to a p p r o x i m a t e l y 2 : 3 0 p.m. interview to give obtain once, waiver. A t t h e d e f e n d a n t a u t h o r i z e d S e r g e a n t Via Via c o n d u c t e d t h e t e s t and found s t r e s s i n d i c a t i v e o f d e c e p t i o n . requested another another t o c o n d u c t a stress e v a l u a t i o n t e s t . Via another defendant the when Commander Calhoun to Because o f t h i s , conduct another test. Commander Calhoun, a f t e r g i v i n g more Miranda w a r n i n g s , d i d s o u s i n g a d i f f e r e n t form o f q u e s t i o n i n g . to what occurred defendant, he was at this left point, alone with but Testimony v a r i e s a s according Commander to the Calhoun, who f i r s t c o n d u c t e d t h e t e s t , and t h e n a c c u s e d him o f l y i n g . The d e f e n d a n t a l s o t e s t i f i e d t h a t Commander Calhoun was a b u s i v e , and t h r e a t e n e d him, t e l l i n g h i m t h a t h e w a s g o i n g t o " f r y i n the electric chair." tactics, Commander Calhoun d e n i e d u s i n g a n y s u c h s t a t i n g t h a t a l l h e d i d was a d m i n i s t e r t h e t e s t and t e l l B a r r y Beach t h a t h i s r e s p o n s e s i n d i c a t e d d e c e p t i o n . The Commander f u r t h e r t e s t i f i e d t h a t a f t e r h e t o l d t h e d e f e n d a n t h i s a n s w e r s were a p p a r e n t l y u n t r u t h f u l , Beach b r o k e down and began t o t a l k a b o u t t h e N e e s murder. Sergeant Via re-entered a p p r o x i m a t e l y 7 : 0 0 p.m. came i n t o t h e room, the interview room and Commander Calhoun l e f t . at When Via B a r r y Beach was b r o k e n down and c r y i n g . H e began t a l k i n g and a d m i t t e d m u r d e r i n g Kimberly N e e s . Via had the Calhoun defendant recorded return sign an to the interview Miranda another interview with room, waiver. the and They defendant had then in tape which he d e s c r i b e d i n d e t a i l f a c t s , n o t known by t h e g e n e r a l p u b l i c , c o n c e r n i n g t h e murder o f Kimberly Nees. O n January January 8, the defendant 11, t h e d e f e n d a n t , retained h i s attorney, counsel. Sergeant Via, J o e Cummings, a d e p u t y s h e r i f f , h e l d a c o n f e r e n c e . was given Miranda warnings, and On signed a and Defendant waiver thereof. D u r i n g t h i s m e e t i n g , t h e d e f e n d a n t a g a i n a d m i t t e d h e murdered Kimberly Nees, but denied any involvement in the unsolved Louisiana murders. During time this the investigators in Louisiana had been i n c o n t a c t w i t h t h e R o o s e v e l t County S h e r i f f ' s O f f i c e . On January 1983, 8, petition in District, Roosevelt defendant, the then t h e Roosevelt youth 20 court County, for County A t t o r n e y the seeking a years old, was a proceedings filed a to District motion order of detention f i n d i n g o f probable cause. and, Judicial the delinquent youth, and The c o u n t y a t t o r n e y t h e youth court T h i s m o t i o n was n o t Court. upon b e f o r e d e f e n d a n t t u r n e d an to a declaration that r e q u e s t i n g a u t h o r i t y t o i n c a r c e r a t e him. simultaneously Fifteenth filed transfer ruled 21. for The D i s t r i c t C o u r t i s s u e d extradition purposes, a The d e f e n d a n t t u r n e d 1983. 21 y e a r s o f a g e on F e b r u a r y 1 5 , On A p r i l 2 9 , 1983 h i s Montana a t t o r n e y s f i l e d a m o t i o n t o dismiss t h e youth c o u r t a c t i o n . The b a s i s f o r t h e m o t i o n was t h e l o s s o f y o u t h c o u r t j u r i s d i c t i o n o v e r t h e d e f e n d a n t under s e c t i o n 45-5-205(3), a g e o f 21. MCA, a t t h e time he reached t h e The d e f e n d a n t ' s motion was g r a n t e d by o r d e r d a t e d May 4 , 1983. D e f e n d a n t had b e e n c h a r g e d i n D i s t r i c t C o u r t on May 3 , 1983. The d e f e n d a n t was e x t r a d i t e d back to Montana i n August of 1983 and was t r i e d on A p r i l County, County. Montana. Valley O April n 9, County 1984 i n Glasgow, is adjacent to Valley Roosevelt 13, 1984, t h e j u r y r e t u r n e d a v e r d i c t o f g u i l t y o f d e l i b e r a t e homicide. On May 11, 1984 judgment was e n t e r e d on t h e c o n v i c t i o n and B a r r y Beach was s e n t e n c e d t o a t e r m of also 100 y e a r s i n t h e Montana determined designation as the a defendant non-dangerous S t a t e Prison. to be The c o u r t ineligible offender and for further d e t e r m i n e d t h a t h e would b e r e s t r i c t e d from e l i g i b i l i t y f o r p a r o l e and r e l e a s e programs w h i l e s e r v i n g h i s t e r m . Beach appeals his conviction and sentence to this Barry Court, p r e s e n t i n g t h e following i s s u e s f o r review: (1) T h a t t h e D i s t r i c t C o u r t d i d n o t h a v e j u r i s d i c t i o n t o t r y B a r r y Beach f o r d e l i b e r a t e h o m i c i d e . ( 2 ) That t h e D i s t r i c t Court e r r e d i n n o t changing venue t o a c o u n t y o u t s i d e o f t h e p r i m a r y news c o v e r a g e a r e a o f t h e same media t h a t p r e j u d i c i a l l y a f f e c t e d h i s r i g h t s t o a f a i r t r i a l i n R o o s e v e l t County, Montana. (3) That t h e D i s t r i c t Court e r r e d i n not suppressing t h e c o n f e s s i o n B a r r y Beach made t o t h e L o u i s i a n a a u t h o r i t i e s . (4) That t h e D i s t r i c t Court e r r e d i n n o t i n s t r u c t i n g t h e j u r y t h a t it must f i n d t h e d e f e n d a n t p o s s e s s e d a s p e c i f i c m e n t a l s t a t e , i n o r d e r t o c o n v i c t him. (5) That t h e cruel and unusual, s e n t e n c e imposed was h a r s h , and an abuse of the oppressive, District Court's discretion. Issue #1 Appellant contends j u r i s d i c t i o n t o t r y him. 41-5-203, that the District As authority, Court lacked he p o i n t s t o s e c t i o n MCA, which s t a t e s : " J u r i s d i c t i o n o f t h e c o u r t . ( I ) Except a s provided i n s u b s e c t i o n ( 2 ) , t h e c o u r t h a s exclusive original jurisdiction of a l l p r o c e e d i n g s u n d e r t h e Montana Youth C o u r t A c t i n which a y o u t h i s a l l e g e d t o b e a d e l i n q u e n t y o u t h , a y o u t h i n need o f s u p e r v i s i o n , o r a y o u t h i n need o f c a r e o r concerning any person under 2 1 y e a r s o f a g e c h a r g e d w i t h h a v i n g v i o l a t e d any law o f t h e s t a t e o r o r d i n a n c e o f any c i t y o r town o t h e r t h a n a t r a f f i c o r f i s h and game law p r i o r t o h a v i n g become 18 y e a r s (Emphasis added. ) o f age. " and t o s e c t i o n 41-5-205, MCA which s t a t e s : "Retention of j u r i s d i c t i o n . Once a c o u r t obtains j u r i s d i c t i o n over a youth, t h e court retains jurisdiction unless t e r m i n a t e d by t h e c o u r t o r by m a n d a t o r y termination i n t h e following cases: "(1) a t t h e t i m e t h e proceedings a r e transferred t o adult criminal court; " ( 3 ) i n any e v e n t , - -e t i- t h e y o u t h a t th - m e r e a c h e s t h e age - - y e a r s . " of 2 1 (Emphasis added. ) The defendant argues jurisdiction because crime committed was i n s t i t u t e d on h e was and January 8 , that the under the District the youth age of court Court lacked 1 8 when the proceedings 1983 were n e v e r t r a n s f e r r e d u n d e r section 41-5-206 (1), MCA, to the District Court prior to his reaching of age 21 on February 15, 1983. He contends that once the "exclusive jurisdiction" of the youth court has attached under section 45-5-203(1), MCA, the District Court can never assume jurisdiction over the offense underlying the youth court's proceeding absent transfer pursuant to section 45-5-206 (I), MCA. We do not find the defendant's argument to be In State ex re1 Elliot v. District Court (Mont. pursuasive. 1984), 684 P.2d 481, 41 St.Rep. 1184, we held that there is no "window" of jurisdiction between the youth court act and the genera1 district court jurisdiction. Furthermore, in dicta, Elliot, supra, addresses the situation at issue here and resolves it in favor of jurisdiction resting in the district court. In Elliot, the defendant committed a murder when he was 154 years old. His involvement in the murder was not discovered until several years later when he was 22 years of age and had voluntarily confessed. The defendant argued that the for youth court act provides "exclusive original jurisdiction" over juvenile offenses, and allows the juvenile court to transfer jurisdiction to the district court only under certain circumstances as provided for in section 41-5-206, MCA. Since the defendant in Elliot never came under the exclusive original jurisdiction of the juvenile court, he contended that transfer to District Court could not be effected. In Elliot jurisdiction" of we the held youth that the court "exclusive depended upon original on two factors: (1) that the offense was committed while the youth was under the age of 18; and (2) that the youth was charged before the age of 21. In this case, Barry Beach was clearly under the exclusive original jurisdiction of the juvenile court. In Elliot this Court held that since he had committed a crime he came under the jurisdiction of the District Court pursuant to Art. VII, Sec. 4 Mont. Const., even though he was not under the exclusive original jurisdiction of the youth court. In Elliot this Court cited a case from Minnesota, In the Matter of the Welfare of S.V. (Minn. 1980), 296 N.W.2d 404, that is very closely on point with the case at bar. In In of the of S.V., the 17 year old defendant - Matter - - Welfare - was charged with homicide in juvenile court. The case dragged on in juvenile court for over four years and the court lost jurisdiction (pursuant to a clause in the Minnesota Code similar to section 41-5-205 (3), MCA) because the offender turned 21. At age 22, the county sought to prosecute the defendant in district court. Defendant made this argument: ". . . the respondent is attempting to take advantage of an alleged loop-hole in the juvenile court's statutes. Minn. provides that Stat. sec. 2260.111 juvenile courts have original and exclusive jurisdiction over offenses committed by persons under age 18 unless the case is referred by the juvenile However court for adult prosecution. . juvenile court jurisdiction ends for all purposes at age 21. The respondent urges that the juvenile court lacks jurisdiction because he is over 21, and the district court lacks jurisdiction because there has been no juvenile court The referral of the juvenile act. respondent thus argues that he cannot now be prosecuted anywhere." 296 N.W.2d at 407 ... .. .. This Court went on to further quote from the Minnesota court as follows: "We believe it would ridiculous to say that if a person of 16 or 17 years of age commits a murder and escapes detection or apprehension either on a warrant or indictment until after he reached 18 years of age, or 21 years under the recent changes, he could no longer be proceeded against in juvenile court or tried by the district court [Court's emphasis deleted.] ... " [The defendant's] interpretation would be in violation of [the Minnesota constitution] which gives the district court original jurisdiction in all criminal cases, and it would be unreasonable and absurd. The legislature does not intend a result that is absurd or in violation of the constitution." 296 N.W.2d at 407 The conclusion in Elliot supports the State's argument in this case. Exclusive original jurisdiction in the juvenile court does not divest a district court of jurisdiction over crimes committed by the juvenile defendant. It merely allows a juvenile to be treated, if the circumstances so permit, as a juvenile, and benefit from a less punitive and retributive system than provided in the district courts. The defendant argues that this holding will vest in the prosecutor the power to conclusively determine the forum merely by dragging his feet in prosecuting the crime. This is a valid observation, but misses one point; juveniles, as we11 as adults, benefit from the right to a speedy trial. We hold that upon termination of the youth court jurisdiction, no bar existed to the exercise of the district court's jurisdiction under Article VII, section 4 (1) of the Montana Constitution and sections 3-5-302(1)(a) and 46-2-201, MCA, over felony criminal proceedings against the defendant. #2 Issue - The District Court change of venue, but, over granted defendant's rimtion for defendant.'^ objection placed venue in adjacent Valley County. Section 46-13-203, MCA is the statue that allows a trial court to change venue in criminal cases. It states in pertinent part: " (3) If the court determines that there exists in h e county in which the prosecution s p e n d i n g such ~ r c i u r l L c c that a fair t r ~ i 1 c?r,llot Lc FIsc2, 51 shall: "(a) transfer the cause to any other court of competent jurisdiction in any in a fair trial lay - be had county - which - " (Emphasis added.) ... The defendant's motion, supported by affidavit and other evidence, alleged wide spread media exposure of the facts involving the death of Kimberly Nees, and the prejudicial information published about Beach's confession. The District Court found that the motion ordered that the trial should be moved had merit, and to adjacent Valley County. The defendant objected and moved again for a change of venue contending that the same prejudice existed in Valley County as in Roosevelt County. As authority defendant cited State ex re1 Dryman v. District Court (1954), 128 Mont. 402, 276 P.2d 969, where he argued that this Court implicitly recognized the pervasive, prejudicial nature of region-wide media coverage in rural Montana and ordered a new trial to be had in a county non-ad j~c:clrit: t:o l:l~c? (3 rigina 1 county. The District Court denied the defendant's second motion for change of venue and ordered the trial to be held in Valley County at Glasgow, Montana. In denying this motion the District Court stated: "The motion to move the venue again is dismissed, denied and overruled, but the court will reconsider the entire matter and change the venue if the selection of jurors in Valley County indicates the defendant cannot receive a fair trial in that county." This Court will not overturn a District Court order granting or denying a motion for change of venue unless such action is found to be arbitrary or capricious, or, in other words, an abuse of discretion. State v. Link (Mont. 19811, 640 P.2d 366, 38 St.Rep. 982; Bashor v. Risley (D.C.Mont. 1982), 539 F.Supp. 259, aff. 730 F.2d 1228. We hold that the District Court did not act improperly in denying defendant's second motion for change of venue. In so ordering, the District Court acted reasonably in balancing the competing considerations of cost and inconvenience to Roosevelt County of holding a trial at a distant venue, with the defendant's right to a fair trial. All that section 46-13-203 (3)(a), MCA requires is that when venue is changed, it be to a county "in which a fair trial may be had." This question is primarily factual. The defendant presented several allegedly prejudicial newspaper articles to the District Court, one in which the county prosecutor purportedly told the Governor that the defendant would be unable to get a fair trail anywhere in eastern Montana. The court apparently did not find factual support for defendant's a llegation of area-wide prejudice , and moved the trial to the next county. But, recognizing defendant's concerns, the District Court in its order denying the second motion for change of venue expressly provided that if, at the time of jury selection, it became apparent that a fair and impartial jury could not be had in Valley County, the motion would be reconsidered. As the case came to trial and the jury selected, defendant did not renew his allegation of prejudice. He, at that time, waived this objection. The Dryman, supra, case which defendant cites is in accord with this decision. In Dryman, this Court directed the district court to change the venue of a criminal trial to a county "not adjacent" to the original county because a fair trial could not be had in any adjacent county. Addressing that point, this Court stated: "This court's sole purpose in directing that relators new trial be had in same county 'not adjacent' to Toole County was to secure him the fair trial by an impartial jury which is guaranteed to every person charged with a crime by our 128 Mont. at 406, 276 Constitution." P.2d at 971. Dryman, supra, supports the rule that the key to the venue inquiry is where a fair trial may be had. Absent an abuse of discretion, a district court's determination thereof will not be disturbed. We affirm on this point. Issue #3 As framed by sub-issues. the All of them revolve around the admissibility of confessions authorities. the appellant, issue #3 presents four Barry Reach made to the Louisiana Defendant points out four grounds upon which he contends that the confessions are inadmissible. They are: A. That such statements were obtained as a result of defendant's arrest in his home without a warrant. B. Such statements were obtained after the defendant was denied his constitutional right to release on bail. C. Such statements were obtained after the defendant was denied his right to be taken before a magistrate or a judge and arraigned and advised of his rights. D. That the State failed its burden of proving the voluntariness of the statements. We address these issues in the above order. The defendant was arrested in his home on a charge of contributing to the delinquency of minors. affected without a warrant. has clearly stated The United States Supreme Court that, absent exigent circumstances, a warrantless arrest for a minor crime cannot be warrant. made Welsh v. 573, 100 S.Ct. (misdemeanor or nonviolent) in the defendant's Wisconsin S.Ct. 2091, 80 L.Ed.2d U.S. This arrest was (1984), home without U.S. a , 104 732; Payton v. New York (1980), 445 1371, 63 L.Ed.2d States (1947), 331 U.S. 639; Harris v. united 145, 67 S.Ct. 1098, 91 L.Ed. 1399; U.S. v. Prescott (9th Cir. 1978), 581 F.2d 1343. In Brown v. Illinois (1975), 422 U.S. 2254, 45 L.Ed.2d 416, the United States 590, 95 S.Ct. Supreme Court considered the admissibility of incriminating statements made by a defendant shortly after a warrantless arrest without probable cause. The Court held that the propriety of using statements following an improper arrest at trial required separate analysis under both the Fourth and Fifth Amendment: "Wong Sun [v. United States (1963), 317 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 4411 requires not merely that the statement meet the Fifth Amendment standard of voluntariness but that it be 'sufficiently an act of free will to purge the primary taint' [Citations omitted. ] Wong Sun thus mandates consideration of a statement's admissibility in light of the distinct policies and interests of the Fourth Amendment. " ... The District Court examined the defendant's contentions and found that the confessions obtained were neither causally connected to the initial arrest nor involuntary. In reviewing the District Court's denial of the defendant's motion to supress we are restricted to examining the record to adduce whether it contains substantial credible evidence to support the findings, and to determine whether those findings were applied correctly as a matter of law, State v. Davison (1980), 188 Mont. 432, 439, 614 P.2d 489, 493; State v. Grimestead (1979), 183 Mont. 29, 598 P.2d 198. It is a general principle of constitutional law that statements and confessions made as a result of an unlawful incarceration are inadmissible, Taylor v. Alabama (1982), 457 314; Wong Sun v. United 687, 102 S.Ct. 2664, 73 L.Ed.2d U.S. States, supra. But, there must be some causal connection between the original unlawful detention and the statements made, Taylor, supra at 690, 102 S.Ct. at 2667, 73 L.Ed.2d 319. at The District Court, addressing this connection stated "the State has established that the statements were not the result of an exploitation of that illegality under the Sun, attenuation analysis of Wong - supra, Brown v. Illinois [supra,]; [and] Dunaway v. New York [ (1980), 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 8241." We affirm. The question under the first prong of this analysis is whether the evidence presented at trial was the result of an exploitation of the original illegality of the arrest. In making this judgment four factors must be considered: (1) the presence or absence of timely Miranda warnings; (2) whether there was an intervening independent act by the defendant or some third party; and statement (3) the temporal proximity of the arrest made; (4) Constitutional violation. at 2261-2262, 45 L.Ed.2d the degree of the alleged Brown, supra at 603-04, 95 S.Ct. at 426-427; Dunaway, 217-18, 99 S.Ct. at 2259, 60 L.Ed.2d at 839. supra at There i s s u b s t a n t i a l c r e d i b l e evidence i n t h e record t o support t h e D i s t r i c t Court's conclusion t h a t t h e defendant's confessions did not exploitation. and than result o f any a l l e g e d F i r s t d e f e n d a n t was g i v e n t e n Miranda w a r n i n g s severa 1 signed executed factor of come a b o u t a s a " tempora 1 waivers proximity, t h r e e days a f t e r h i s thereof. to As the " t h e d e f e n d a n t c o n f e s s e d more initial arrest. This t h r e e day period i s s u b s t a n t i a l l y longer than t h e s e v e r a l hour period d i s c u s s e d i n Brown and Dunaway. In t h i s regard, t h e United S t a t e s Supreme C o u r t ' s a p p r o a c h i s t o d e t e r m i n e w h e t h e r t h e r e was sufficient time for the defendant to overcome the u n s e t t l i n g a f f e c t t h a t t h e a r r e s t may h a v e i n i t i a l l y h a d , and t o g i v e him t i m e t o g a t h e r h i s t h o u g h t s . Three days appears t o b e enough t i m e f o r t h i s t o have o c c u r r e d . Furthermore, t h e d e f e n d a n t made an a d d i t i o n a l c o n f e s s i o n o n J a n u a r y 11 i n the presence arrest. of his attorney, f i v e days a f t e r t h e initial T h i s a l s o n e g a t e s a n y d i r e c t c a u s a l l i n k between t h e a n x i e t y c a u s i n g e f f e c t o f t h e a r r e s t and t h e s t a t e m e n t . The d e a t h t h r e a t t h e d e f e n d a n t made t o C a r o l y n Beach c a n c l e a r l y be c o n s i d e r e d t o b e a n i n t e r v e n i n g a c t t o sever t h e c h a i n o f causality. to continue allegation specifically Again, F u r t h e r m o r e , t h i s t h r e a t was a s u f f i c i e n t ground the of defendant police stated though interpretation, the we in custody. misconduct, that the to defendant's District Court " t h e r e was no p o l i c e m i s c o n d u c t . " record find As may there a support is differing substantial credible evidence i n t h e record t o support t h i s finding. Secondly, defendant argues that he l ' c o n s t i t u t i o n a l " r i g h t t o r e l e a s e on b a i l . was denied his He alleges that Tim Beach went t o t h e O u a c h i t a P a r i s h C o r r e c t i o n a l C e n t e r i n o r d e r t o b a i l t h e d e f e n d a n t o u t and was t o l d by S e r g e a n t Via and a n a s s i s t a n t c o u n t y a t t o r n e y t h a t B a r r y Beach would b e r e l e a s e d t h e n e x t d a y , o r t h a t it was i n t h e d e f e n d a n t ' s b e s t interest t o stay i n jail counseling. i n order t o receive psychological These r e p r e s e n t a t i o n s , defendant contends, had t h e e f f e c t o f d e n y i n g him h i s r i g h t t o b a i l . Although District the Court did not specifically a d d r e s s t h i s i s s u e , w e do n o t f i n d d e f e n d a n t ' s argument t o be persuasive. Assuming, constitutional denied. right Bail had arguendo, to bail, been set that the defendant the a show how it was he does n o t for had contributing to the d e l i n q u e n c y o f m i n o r s c h a r g e a t $1,500 and was a v a i l a b l e t o the defendant at time. the is There no allegation or e v i d e n c e i n t h e r e c o r d t h a t T i m Beach o r anyone e v e r t e n d e r e d bail money defendant, for his on n o r any o f bail t o be recognizance. defendant By of the defendant. Neither the h i s r e p r e s e n t a t i v e s made a n y r e q u e s t reduced, not or diligently for a release pursuing on this his right, own he Furthermore, w e simply cannot b e l i e v e t h a t t h e it. waived behalf was denied any right by several alleged m i s r e p r e s e n t a t i o n s on t h e p a r t o f t h e L o u i s i a n a a u t h o r i t i e s . I n o r d e r f o r t h e d e f e n d a n t t o p u r s u a s i v e l y a r g u e t h a t h e was p r e j u d i c e d by an a l l e g e d he denial of a constitutional right, f i r s t must show t h a t t h e r i g h t was a c t u a l l y d e n i e d . this regard we do not think it unreasonable to hold In the de d e f e n d a n t t o a - minimus l e v e l o f d i l i g e n c e i n p u r s u i n g h i s rights. T h i r d l y , t h e d e f e n d a n t c o n t e n d s t h a t h i s c o n f e s s i o n was o b t a i n e d a f t e r h e was d e n i e d h i s r i g h t t o b e t a k e n b e f o r e a magistrate rights. or The judge be arraigned and advised of his d e f e n d a n t was origina1l.y incarcerated on the evening o f January 4 , to 1983 on t h e c o n t r i b u t i n g c h a r g e and was n o t brought before a m a g i s t r a t e f o r s e v e r a l days, u n t i l a f t e r h e made h i s f i r s t c o n f e s s i o n . "McNabb-Ma 1l o r y 1 ' r u l e which The r u l e i n t h i s r e g a r d i s t h e requires the exclusion of any confession obtained a s a r e s u l t of "unnecessary delay" i n t h e McNabb v. U n i t e d S t a t e s ( 1 9 4 3 ) , 318 U.S. i n i t i a l appearance. 332, 63 S . C t . 608, ( 1 9 5 7 ) , 354 U.S. McNabb-Mallory 87 L.Ed. 449, rule 819; 77 S.Ct. is Mallory v. 1356, not United 1 L.Ed.2d based on 1479. any States The specific c o n s t i t u t i o n a l provision, b u t r a t h e r i s a r u l e of supervisory c o n t r o l o v e r f e d e r a l c o u r t s , and h a s s i n c e been l e g i s l a t i v e l y restricted, see 1 8 U.S.C. 252, 53501 570 P.2d (1972). 174 Mont. adopted the McNabb-Mallory power. The t e s t a s s e t f o r t h i n Benbo i s t h e f o l l o w i n g : under though, our own this Benbo (1977), rule 894, I n S t a t e v. Court supervisory "When a d e f e n d a n t b a s e s a m o t i o n t o s u p p r e s s e v i d e n c e upon a c l a i m t h a t h e was not provided a prompt initial a p p e a r a n c e , t h e b u r d e n i s f i r s t on t h e defendant to show the delay was unnecessary. The d i s t r i c t c o u r t s h o u l d f o c u s o n t h e d i l i g e n c e o f t h e p e r s o n s who made t h e a r r e s t i n b r i n g i n g t h e d e f e n d a n t b e f o r e t h e n e a r e s t and most a c c e s s i b l e judge. While t h e l e n g t h o f t h e t i m e between a r r e s t and i n i t i a l a p p e a r a n c e i s not determinative of t h e ' n e c e s s i t y ' of it is a factor to be the delay, considered. "Once a d e f e n d a n t h a s e s t a b l i s h e d t h e d e l a y was u n n e c e s s a r y t h e b u r d e n s h i f t s t o t h e prosecution. The S t a t e must show t h e evidence obtained during t h e delay was n o t r e a s o n a b l y r e l a t e d t o t h e d e l a y . Absent s u c h a showing t h e e v i d e n c e w i l l b e e x c l u d e d . " ( R e l y i n g on R.C.M. 1947 5 95-603 ( d ) ( 3 ) , now s e c t i o n 46-7-101, MCA) ; 174 Mont. a t 262, 570 P.2d a t 900. See a l s o S t a t e v. D i e z i g e r (Mont. 1 9 8 2 ) , 650 P.2d 800, 39 St.Rep. 1734. Addressing t h i s p o i n t , t h e D i s t r i c t Court s t a t e d " t h e c o u r t f i n d s t h a t a n u n n e c e s s a r y d e l a y i n a r r a i g n m e n t was n o t e s t a b l i s h e d and e v e n i f it i s assumed t h a t t h e r e was s u c h a t h e S t a t e h a s s t i l l d e m o n s t r a t e d t h e v o l . u n t a r i n e s s of dely, t h e d e f e n d a n t ' s s t a t e m e n t s by p r e p o n d e r a n c e o f t h e e v i d e n c e . " Under Benbo t h e defendant has the show t h a t t h e d e l a y was u n n e c e s s a r y . initial burden to This Court has applied t h i s f i r s t e l e m e n t s t r i c t l y and d e n i e d a p p e a l s o f l o w e r c o u r t d e n i a l s o f s u p r e s s i o n on m o t i o n s made on t h i s ground when t h e defendant failed to show the I n S t a t e v. P l o u f f e delay. "unnecessary" nature ( 1 9 8 2 ) , 198 Mont. of the 379, 646 P.2d 533, w e h e l d t h a t t h e d e f e n d a n t ' s b u r d e n i n t h i s r e s p e c t i s more t h a n j u s t p o i n t i n g o u t t h a t t h e a u t h o r i t i e s c o u l d have p r e s e n t e d him e a r l i e r . Mont. 570 P.2d 264, found Plouffe, more than earlier. 901. i.e. was e n c o u n t e r e d , Court See a l s o S t a t e v. that supra. delay Here, that the ( 1 9 7 7 ) , 174 I n one c a s e where a s i m i l a r d e l a y approximately the Lenon was f i v e o r s i x days, not unnecessary, this S t a t e v. t h e defendant does n o t contend any authorities "could have" presented him f a i l s t o address t h e f a c t t h a t various charges He w e r e b e i n g r a i s e d a g a i n s t him, i n v e s t i g a t e d , and t h e n some o f During t h i s s h o r t p e r i o d o f t i m e t h e Louisiana them d r o p p e d . a u t h o r i t i e s had t h e r i g h t t o k e e p him i n c u s t o d y , b u t t h e i r investigations had defendant could be yet t o produce a presented. c h a r g e upon which t h e Furthermore, the period of t i m e i n v o l v e d was n o t s o l o n g a s t o c r e a t e a n y p r e s u m p t i o n o f unreasonableness. W e hold t h a t t h e f i r s t e l e m e n t o f Benbo was n o t m e t and t h a t t h e d e f e n d a n t ' s s t a t e m e n t s s h o u l d n o t b e s u p p r e s s e d on t h i s g r o u n d . As to the above point, the S t a t e contends that the Aenbo r u l e s h o u l d n o t b e a p p l i e d h e r e b e c a u s e d e f e n d a n t was incarcerated in Louisiana Louisiana law. The Louisiana Code Crim.Proc. and State at points that to time Art. subject 230.1. of to the (West 1 9 6 7 ) , which p r o v i d e s t h a t authorities have a seventy-two hour period before they are required to bring a suspect before a judge. In that statute, the remedy for the failure to do so is the release of the suspect. thereof The statute specifically provides that a violation does not require the automatic suppression of incriminating statements. The general rule is that, as to questions of evidence, the law of the forum controls, 16 Am.Jur.2dI Conflict of Laws S131. This question is best characterized as being one of an application evidence. proposes of the exclusionary Thus Montana that what rule, i.e. a law should control. actually is involved rule of The State here is an application of substantive law, in which this Court should apply Louisiana law. This argument is not compelling for two reasons; first, the remedy requested by the defendant is not a remedy provided for by Louisiana law, but rather is a remedy provided by Montana evidence law; and secondly, we feel that whenever possible, defendants should be entitled to the fullest protection of Montana law when appearing in its courts. Finally, the defendant argues that the State failed to meet its burden of proving that the statements made by the defendant were voluntary. shows that his As stated above, when a defendant incarceration was initially il lega 1, the burden shifts to the State to show that the Fifth Amendment was not violated. In State v. Camitsch (Mont. 1981), 626 P.2d 1250, 1253, 38 St.Rep. 563, 565, we stated: "In determinining whether a confession should be suppressed, the trial judge must decide whether or not it was voluntary. [Citation omitted.] The determination of voluntariness depends upon the 'totality of the circumstances,' with the burden of proof on the State to prove voluntariness by a preponderance of the evidence." See also State v. Mercer (Mont. 1981), 625 P.2d 44, 47, 38 St.Rep. 1080, 312, 315; State v. 1086-87, 37 Allies St.Rep. 2089, (Mont. 1980), 621 P.2d 2097. The issue of voluntariness is largely a factual question committed to the We will not reverse that court district court's discretion. if its order is supported by substantial credible evidence, Davison, supra, at 439, 614 P.2d State v. Grimestead, supra at 29, 598 P.2d especially one where at 202. 493; State v. This case is the resolution of the voluntariness issue turns on the credibility of witnesses, and this Court "must defer to the district judge who position to witnesses] judge ... " the is in a superior credibility of [those State v. Camitsch, 626 P.2d at 1253, 38 One factor, not conclusive, supporting voluntariness is the presence of timely and complete Miranda advisements prior to the incriminating statement, State v. Allies, supra at 112, 606 P.2d at 1050. The record indicates that the defendant received ten Miranda warnings between January 4 and January 11. Eight of these advisements and associated waivers were directly related to questioning in connection with the Nees murder. thereof. The defendant signed several waivers There was no evidence adduced that the defendant possessed less than average intelligence, or that by reason of mental j-mpaiment he was incapable of understanding the Miranda warnings. Sergeant Via and Commander Calhoun both testified that the defendant appeared calm, coherent and free from the influence of intoxicants during any of the interviews. The questioning sessions were not long, arduous, or designed to take advantage of the defendant's situation or fatigue. benefit Via and Calhoun testified that no promises of or threats of harm were made to the defendant. Particularly, defendant's allegation, disputed by Calhoun and Via, concerning Calhoun' s "fry" comment was obviously not credited by the District Court. Furthermore, and most importantly, defendant made a statement on January 11 in the presence of his attorney and after opportunity to confer with him. Presumably, the Louisiana attorney had advised the defendant of his rights and consequences of waiving the same, and was diligent in protecting the defendant from coercion. The defendant has made no allegation that his Louisiana attorney failed in this regard and thus we have little difficulty holding that this confession was voluntary. On this point, the District Court found "The statements of the defendant were voluntary'' and "the voluntariness of the statements was obvious." The totality of the circumstances indicates the District Court did not err. #4 Issue - Defendant conviction of argues that due process deliberate homicide must requires that be based on a an information that charges, and instructions to the jury that require, a finding that the defendant possessed the specific mental state to kill the victim; in other words, that the element of mens contends that the rea is constitutionally required. statutory element of purposely knowingly does not satisfy this requirement. He and/or This Court has previously addressed and resolved this question. St.Rep. In State v. Powell (Mont. 1982), 645 P.2d 1357, 39 989, we rejected this argument. See also State v. Lemmon (Mont. 1984), 692 P.2d 455, 41 St.Rep. 2359; and State v. Weinberger (Mont. 1983), 665 P.2d 202, 40 St.Rep. 844. The scienter element of section 45-5-102(a) defines the crime of deliberate homicide with sufficient specificity to obviate any claim of unconstitutiona 1 vaugueness. State v. Sharbono (1979), 175 Mont. 373, 563 P.2d 61. #5 Issue The defendant received the maximum a llowable sentence, one hundred years, and was determined to be ineligible for designation as a non-dangerous offender, or parole. Defendant argues that this sentence was not based on any credible evidence presented at the sentencing hearing, or contained in motivated by the pre-sentence report, but rather was the District Court's desire for vengence on behalf of the victim's family. The District Court stated that it imposed this onerous sentence because of its belief that defendant should be removed from society. In either case, defendant argues that this is violative of Article 11, section 28 of the Montana Constitution, which requires that "laws for the punishment of crime shall be founded on the principles of prevention and reformation"; and section 46-18-101, MCA, which provides that the policy behind sentencing is the rehabilitation, if possible, of convicts. In the defendant's mind, his sentence was not based on any principle of prevention, reformation, or rehabilitation, and thus an abuse of discretion by the District Court. We find no merit in defendant's argument. First, Article 11, section 28, Mont. Const. allows a district court in its discretion to base a sentence upon the principle of prevention of future crimes. This includes the power to remove a person from society, as the District Court found necessary here. Secondl-y, the District Court's sentence was within the permissible statutory range, and, in the absence of clear abuse of discretion is properly reviewed by the Sentence Review Division. There was no clear abuse of discretion in this case and thus this is a matter for the Sentence Review Board. See State v. Watson (Mont. 1984), 686 P.2d 879, 41 St.Rep. 1452; and State v. Holmes (Mont. 1983), 674 P.2d 1071, 40 St.Rep. 1973. The judgment and sentence are affirmed. I We concur: Justices , 7 ' " Mr. Justice John C. Sheehy, specially concurring: I agree with the result. The question of voluntariness is ended in the fact that Beach confessed in the presence of his attorney. All the other issues fade in that fact.

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