No. 8i-570 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

STATE OF MONTANA, 

Plaintiff and Respondent, 

VS . 

WILLIAM NORGAARD, 

Defendant and Appellant. 

Appeal from: District Court of the Fifteenth Judicial District, 

In and for the County of Roosevelt 

Honorable M. James Sorte, Judge presiding 

Counsel of Record: 

For Appellant: 

Francis J. McCarvel argued, Glasgow, Montana 

Steven R. Marks argued, Glasgow, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

Mike McGrath, Assistant Attorney General, argued, 

Helena, Montana 

Marc F. Racicot argued, County Prosecutors Service 

Bureau, Helena, Montana 

James A. McCann, County Attorney, argued, Wolf Point, 

Montana 

Submitted: June 23, 1982 

Decided : November 4, 1982 

Filed : jfov zk ' ;Lj)il 

Clerk 
Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of 

the Court. 

Defendant William Allen Norgaard appeals from a verdict 

and judgment convicting him of three counts of deliberate 

homicide. Three issues are presented on appeal: 

(1) Whether the District Court erred in refusing to 

suppress statements made by defendant to a criminal investigator during an interview conducted without counsel and 

after filing of an information? 

(2) Whether the District Court erred in excluding as 

hearsay a statement victim Stanley Nees made to witness 

Howard Kelsey regarding the threat against Nees' life? 

(3) Whether the District Court erred in refusing 

defendant's proposed instructions regarding mitigated 

deliberate homicide? 

On February 25, 1981, Stanley Nees, Leota Hoye and 

Mildred Geer were shot to death in Poplar, Montana. William 

Norgaard was arrested and charged with three counts of 

deliberate homicide on March 4, 1981, after a lab report 

confirmed that shells found at the scene of the crime and 

shells found in the Norgaard home were fired from the same 

rifle. Norgaard was arraigned by the District Court judge 

in the Trinity Hospital in Wolf Point, Montana, where 

Norgaard was being treated for colitis and observed for 

suicidal tendencies. 

On March 7, 1981, Norgaard was taken to Missoula, 

Montana, where he was admitted to St. Patrick's Hospital for 

medical and psychiatric evaluation. Dr. Will Stratford 

assisted with defendant's admission and treatment. 

On March 11, 1981, Dr. Stratford inquired of Special 

Prosecutor Marc Racicot as to whether a psychiatric evalu- 
ation was to be ordered for Norgaard and whether defense 

counsel had been appointed on Norgaard's behalf. Stratford 

was concerned about appointment of counsel because Norgaard 

was becoming more talkative to hospital personnel. Racicot 

informed Dr. Stratford that on the previous day the District 

Court had appointed Francis McCarvel defense counsel and 

that McCarvel had immediately requested a court-ordered 

psychiatric evaluation of Norgaard. The District Court 

ordered the evaluation on March 11, but Stratford had not 

yet received a copy of the order. 

Following Stratford's call, Racicot telephoned State 

Criminal Investigation Bureau agent Gary Carrell. Agent 

Carrell was assisting Roosevelt County law enforcement 

authorities in the investigation of the triple homicide and 

had previously interviewed Norgaard on March 3-4, 1981, in 

Wolf Point, regarding any information Norgaard might have 

concerning the crimes. 

Agent Carrell then met with Racicot in Racicot's Helena 

office. Racicot informed Agent Carrell that Dr. Stratford 

thought Norgaard was becoming more vocal. Racicot and Agent 

Carrell discussed whether Carrell should go to Missoula and 

interview defendant without presence of or notice to defense 

counsel. Racicot told Agent Carrell that the Roosevelt 

County Attorney's policy was not to interview defendants 

without first contacting defense counsel, that some states 

do not allow such interviews, and that Montana had not 

decided the question of the propriety of interrogations in 

absence of counsel. Agent Carrell was left to decide whether or not he should interview ~orgaard. 

Agent Carrell chose to interview Norgaard without 

informing defense counsel of his decision. Carrell arrived 
in Missoula around 8:00 p.m., March 11, 1981. Carrell 

called Dr. Stratford and inquired if defendant's physical 

and mental health could withstand questioning. Dr. Stratford responded that Norgaard's condition would not be impaired 

by such an interview. 

Carrell went to the hospital that night and attempted 

to interview defendant. Carrell advised defendant of his 

Miranda rights and told Norgaard that McCarvel had been 

appointed as his defense counsel. Carrell specifically 

told Norgaard that he had a right to have his attorney 

present during any interview or to consult with his attorney prior to an interview. When asked whether he understood 

what Carrell had said, Norgaard nodded. Norgaard then 

responded to questions asked by Agent Carrell. During this 

interview, Carrell elicited from Norgaard that he remembered 

picking up the shell casings in Leota Hoyes' apartment and 

that he was upset with Stanley Nees because defendant's 

father was having financial problems. Nees was a local 

banker. As Carrell left Norgaard's hospital room that 

evening, he explained he would return the next morning to 

continue their discussion of the slayings. 

Norgaard was more responsive the following morning. 

After Carrell had again advised him of his rights and explained that McCarvel had been appointed to represent 

defendant, defendant stated he understood and proceeded to 

answer Carrell's questions. During this interview, Norgaard 

supplied Carrell with information which led to the discovery 

of the murder weapon. 

On August 17, 1981, a pretrial suppression hearing was 

held regarding the admissions made by Norgaard during the 

March 11 and 12 interviews. Dr. Stratford testified that 
defendant was mentally capable of waiving his rights and 

that he could make voluntary and intelligent choices while 

in St. Patrick's Hospital. Agent Carrell testified as to 

the circumstances and content of the interviews. The only 

record of the interviews was Carrell's handwritten notes. 

The defendant did not testify. 

The District Court denied defendant's motion to suppress, finding that the State had sustained its burden of 

proving that defendant made an effective waiver of his 

rights, albeit without consultation from defense counsel. 

At trial Agent Carrell testified about the March 11 and 

12 interviews. Howard Kelsey, appearing for defendant, 

testified that he observed victim Nees and two men (not 

defendant) in an argument some twelve days before the 

murders and that Nees was in an excited state after the 

argument. The trial court would not allow Kelsey to testify 

that approximately one hour after the argument occurred Nees 

told Kelsey that the two men had threatened his life. Dr. 

Stratford did not testify at trial. 

The jury found Norgaard guilty of three counts of 

deliberate homicide. No instructions were given the jury 

regarding the offense of mitigated deliberate homicide. The 

Fifteenth Judicial District Court subsequently sentenced 

Norgaard to three hundred years in the Montana State prison. 

I. 

Defendant contends that Agent Carrell impermissibly 

interfered with his Sixth Amendment right to counsel when he 

questioned defendant without first notifying defense counsel. 

Defendant asserts that an effective waiver of the right to 

counsel cannot be secured unless defense counsel is present 

when the waiver is given. This argument is based upon the 
New York Court of Appeals' decision in People v. Hobson 

(1976), 39 N.Y.2d 468, 384 N.Y.S.2d 419, 348 N.E.2d 894. 

Alternatively, defendant contends that Agent Carrell 

violated his Sixth Amendment right to counsel when Carrell 

proceeded to interview defendant in disregard of the Roosevelt County Attorney's policy not to interview defendants 

without consulting defense counsel. Defendant believes that 

under either a factually-limited or an expansive interpretation of Brewer v. Williams (1977), 430 U.S. 387, 97 S.Ct. 

1232, 51 L.Ed.2d 424, -- reh. den., 431 U.S. 925, 97 S.Ct. 

2200, 53 L.Ed.2d 240, the statements obtained by Carrell 

should have been suppressed because they were derived outside 

counsel's presence. 

In Hobson, supra, defendant was represented by counsel 

who had been present during a line-up at which defendant was 

identified. Counsel left after the identification was made. 

Knowing that defendant was represented by counsel, and 

without notice to counsel, Detective Dolan proceeded to 

interview defendant. An oral waiver of the right to counsel 

was secured by Dolan, whereafter defendant confessed to the 

robbery under investigation. Defendant's statements were 

used against him at trial. 

The New York Court of Appeals reversed defendant's 

conviction on the basis that defendant's statements were 

obtained in violation of New York's constitutional and 

statutory guarantees of the privilege against self-incrimination, the right to assistance of counsel, and due process of 

law. The New York Court of Appeals held that, "[olnce a 

lawyer has entered a criminal proceeding representing a 

defendant in connection with criminal charges under investigation, the defendant in custody may not waive his right to 
counsel in the absence of the lawyer." People v. Hobson, 39 

N.Y.2d at 483, 384 N.Y.S.2d at 421, 348 N.E.2d at 896. The court 

explained that the presence of counsel provides a more 

effective safeguard against involuntary waiver of right to 

counsel than a mere written or oral warning and that any 

attempt, by prosecution or law enforcement alike, to secure 

a waiver of the right of counsel in a criminal proceeding in 

absence of defense counsel would constitute a breach of 

professional ethics. 

Brewer v. Williams, supra, involved a defendant who 

turned himself into law enforcement authorities on the 

advice of his attorney McKnight in Des Moines, Iowa. Defendant was booked in Davenport, Iowa, on an abduction charge 

that was specified in an outstanding arrest warrant. Defendant was to be transported from Davenport to Des Moines in a 

police car. Before defendant started his journey, he consulted with an attorney named Kelly in Davenport and telephoned McKnight in Des Moines. Both attorneys advised him 

not to make any statements until after he personally conferred with McKnight in Des Moines. McKnight and Detective 

Leaming, a veteran of the Davenport police department, 

agreed that Williams would not be questioned during his trip 

to Des Moines. Kelly firmly admonished Detective Leaming to 

honor his agreement with McKnight. Without counsel Williams 

set off for Des Moines with Detective Leaming and another 

police officer. Detective Leaming did not formally interrogate Williams; instead he used what has been referred to 

as the "Christian burial speech" to induce ~illiams into 

disclosing the whereabouts of the young victim's body. 

Invoking the rule of Massiah v. United States (1964), 

377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (violation of 
Sixth Amendment found where federal agents deliberately 

elicited incriminating evidence from defendant after he had 

been indicted and in absence of his counsel), the United 

States Supreme Court held that Detective Leaming violated 

Williams' Sixth Amendment right to counsel. In doing so, 

the Court acknowledged that even though Williams previously 

had been informed of and appeared to understand his right 

to counsel, Detective Leaming neither advised Williams that 

he had a right to presence of an attorney or made an effort 

to ascertain whether Williams wished to relinquish that 

right when he deliberately elicited from defendant incriminating evidence in absence of his counsel. Referring to the 

Johnson v. Zerbst standard of "an intentional relinquishment 

or abandonment of a known right or privilege" [(1938), 304 

U.S. 458, 464158 S.Ct. 1019, 1023, 82 L.Ed. 1461, 14661, the 

Brewer court did not hold that Williams could not, without 

notice to counsel, waive his rights under the Sixth and 

Fourteenth Amendments; instead, it specifically stated that 

the State of Iowa failed to sustain its heavy burden in 

proving that Williams had intentionally relinquished his 

right to counsel. 

This Court hereby holds that a defendant, charged under 

information or indictment and represented by counsel, may 

waive his right to counsel, without notice to or presence of 

counsel, during an interview initiated by law enforcement 

officers investigating the charged crime, so long as defendant's waiver is voluntary, knowing and intelligent as shown 

by the particular facts and circumstances surrounding that 

case. 

We expressly reject the rule of People v. Hobson, 

supra. In adopting a per - se rule the New York court has 
gone beyond the contours of Johnson v. Zerbst and its progeny 

in holding that despite "the particular facts and circumstances of [a] case, including the background, experience 

and conduct of the accused," Edwards v. Arizona (1981), 

U.S. - , 101 S.Ct. 1880, 1883-1884, 68 L.Ed.2d 378, 

385, citing Zerbst, supra, 304 U.S. 458, 464, 58 S.Ct. 1019, 

1023, 82 L.Ed.2d 1461, 1466, a defendant cannot effect a valid 

waiver of the right to counsel, without counsel's presence 

or consent. While we do not dispute the assertion that the 

presence of counsel provides a more effective safeguard 

against involuntary waiver than a written or oral Massiahtype warning, we emphatically disagree with the New York 

court's implicit assumption that written and oral warnings 

in absence of counsel cannot ensure that a defendant's right 

to counsel will be protected from unintentional relinquishment. The vast majority of jurisdictions have upheld counselless waivers which were obtained after written or oral 

warnings have been given. State v. McLucas (1977), 172 

Conn. 542, 375 A.2d 1014, cert. denied, 434 U.S. 855, 98 

S.Ct. 174, 54 L.Ed.2d 126; Pierce v. State (1975), 235 Ga. 

237, 219 S.E.2d 158; State v. Ruth (1981), 102 Id. 638, 637 

P.2d 415; People v. Aldridge (1979), 68 Ill.App.3d 181, 24 

I11.Dec. 484, 385 N.E.2d 396; State v. Costa (1980), 228 

Kan. 308, 613 P.2d 1359; Watson v. State (1977), 35 Md.App. 

381, 370 A.2d 1149, aff'd, 282 Md. 73, 382 A.2d 574, cert. 

denied, (1978) 474 U.S. 908, 98 S.Ct. 3100, 57 L.Ed.2d 1140; 

State v. Williams (Mo.App. 1978), 566 S.W.2d 841; People v. 

Green (1979), Mich. , 274 N.W.2d 488; Giddings v. 

State (Minn. 1980), 290 N.W.2d 595; State v. Jackson (19801, 

205 Neb. 806, 290 N.W.2d 458; State v. Romero (1982), 56 

N.C.App. 48, 286 S.E.2d 903; Matter of Sanders (1982), 56 
0r.App. 724, 643 P.2d 384; Commonwealth v. Lowery (1980), 

276 Pa.S. 569, 419 A.2d 604; McPherson v. State (Tenn.Cr.App. 

1977), 562 S.W.2d 210; Lamb v. Commonwealth (1976), 217 Va. 

307, 227 S.E.2d 737; State v. Clawson (W.Va. 1980), 270 

S.E.2d 659; Jordan v. State (1980), 93 Wis.2d 449, 287 

In rejecting People v. Hobson, supra, we also note the 

language in another Sixth Amendment case, United States v. 

Henry (1980), 447 U.S. 264, 100 S.Ct. 2183, 2189, fn.14, 65 

L.Ed.2d 115, wherein Mr. Chief Justice Burger stated that 

bar association disciplinary rules have no constitutional 

bearing. -- See also, Massiah v. United States, supra, 377 U.S. 

201, 210, 84 S.Ct. 1199, 1205 (White Jar dissenting); United 

States v. Thomas (10th Cir. 1973), 474 F.2d 110, 112, cert. 

denied, 412 U.S. 932, 93 S.Ct. 2758, 37 L.Ed.2d 160; State 

v. Richmond (1976), 114 Ariz. 186, 560 P.2d 41, 46, cert. 

denied, 433 U.S. 915, 97 S.Ct. 2988, 53 L.Ed.2d 1101; State 

v. Ruth, supra, 637 P.2d 415, 417; State v. Nicholson (1969), 

77 Wash.2d 45, 463 P.2d 633. We agree. "The admissibility 

of evidence in a court of law . . . is normally determined 

by reference to relevant constitutional and statutory provisions, applicable court rules and pertinent common-law 

doctrines. Codes of professional conduct play no part in 

such decisions." People v. Green, supra, 274 N.W.2d at 454. 

Careful review of the line of cases following Massiah 

reveals that the United States Supreme Court has not interpreted the Sixth and Fourteenth Amendments to require counsel's notice or agreement before an effective waiver can be 

found. What Massiah, Brewer and Henry stand for is the 

proposition that federal and state agents cannot deliberately 

elicit incriminating evidence from an indicted defendant in 
defense counsel's absence, unless an intentional relinquishment of the right to counsel has been secured from defendant. 

In none of these cases was defendant given an express opportunity, as was defendant here, to effectively assert or 

waive his right to counsel. Unlike Norgaard who voluntarily 

and knowingly participated in a formal interview conducted 

by an identified criminal investigator, Massiah, Brewer and 

Henry were the objects of surreptitious, subtle investigative 

techniques deliberately designed to secure incriminating 

evidence from unwitting defendants. 

Defendant mistakenly equates the express agreement 

between police and defense counsel in Brewer v. Williams, 

supra, with the Roosevelt County Attorney's policy not to 

interview defendants without notifying defense counsel. The 

significance of the agreement in Brewer was not its breach 

but the fact that the breach resulted in an impermissible 

interference with defendant's right to counsel. Agent 

Carrell's decision may have eroded trust between the Roosevelt County Attorney and defense counsel but it did not 

produce an unintentional abandonment of a constitutional 

right. What is constitutionally guaranteed here is defendant's right to assistance of counsel, not defense counsel's 

right to assist defendant. 

In an attempt to underscore his Sixth Amendment BrewerHobson contentions, defendant's brief draws much attention 

to the facts and circumstances surrounding defendant's 

waiver, however, defendant does not directly challenge the 

District Court's conclusion that defendant executed a 

voluntary, knowing and intelligent waiver of his right to 

counsel. 
We nevertheless have reviewed the record and the District 

Court's order and memorandum opinion. It is evident that 

the District Court applied the appropriate test to determine 

whether defendant made a valid waiver of his rights and 

concluded that a knowing waiver was given. Finding no legal 

error and substantial credible evidence to support the 

District Court's findings, the District Court's conclusion 

that a valid waiver was effected will not be disturbed. 

State v. Plouffe (1982), Mont. , 646 P.2d 533, 39 

St.Rep. 1064. 

11. 

Defendant contends that the District Court erred when 

it refused to permit Howard Kelsey to testify to the fact 

that shortly before the crime occurred, two men, other than 

defendant, threatened Stanley Nees' life. Defendant would 

have the declarations made by Nees admitted under one of 

three exceptions to the hearsay rule: (i) the excited 

utterance exception under Mont.R.Evid., Rule 803(2); (ii) 

the statement against interest exception under Mont.R.Evid., 

Rule 804 (b) (3) ; or (iii) the catch-all "other exceptions" 

category of Mont.R.Evid., Rule 804 (b) (5) . 

As a general rule, the question of admissibility under 

a hearsay exception is left to the sound legal discretion of 

the trial court; only a case of manifest abuse of discretion 

will warrant reversal on appeal. State v. Caryl (1975), 168 

Mont. 414, 543 P.2d 389. 

We find no abuse of discretion here. One hour had 

passed between when Nees had an argument with two men and he 

recounted the contents of that argument to Kelsey. Given 

the time lapse and the fact that the event precipitating 

excitement was a verbal argument rather than an assault with 
a weapon, under State v. Swazio (1977), 173 Mont. 440, 568 

P.2d 124, it was reasonable for the District Court to conclude that the "excited utterance exception" should not 

apply 

Regarding defendant's "statement against interest" 

assertion, we find it to be too tenuous to warrant serious 

consideration, thus, we cannot here fault the District Court 

for not accepting it. 

Defendant's third evidentiary argument deserves comment. 

Defendant argues that the statement made by Nees to Kelsey 

has comparable circumstantial guarantees of trustworthiness 

as the other specified exceptions to the hearsay rule. 

The only opportunity this Court has had to discuss the 

"comparable trustworthiness" exception was in a dissenting 

opinion to Jacques v. Montana National Guard (1982), 

Mont. -1 - P. 2d , 39 St.Rep. 1565 (Harrison, J., 

dissenting). There, Justice Harrison, referring to the 

commission comments, recognized and liberally applied the 

guidelines set forth in the federal counterpart to this section. 

Those criteria are: (1) the statement is offered as evidence 

of a material fact; (2) it is more probative on the point 

for which it was offered than any other evidence; and (3) 

the general purposes of the rules and the interests of 

justice will be served by its admission. Rule 804(b) (5), 

Fed. R. Evid. 

unlike Jacques, where the excluded testimony was arguably 

the lynch pin of plaintiff's case, the testimony here is but 

tangentially related to the critical question of who killed 

Stanley Nees, Leota Hoye and Mildred Geer. gain st an 

evidentiary backdrop that included all but a confession by 

defendant that he committed the homicides, it cannot be 
seriously contended that interests of justice were frustrated 

by the exclusion of such testimony. 

111. 

Defendant's final contention is that he was entitled to 

an instruction on the lesser included offense of mitigated 

deliberate homicide. In support of his argument, he refers 

to defendant's thirteen-year history of suffering from a 

mental illness and his expressed concern about the financial 

problems his father was experiencing. 

Defendant correctly relies on State v. Gopher (1981), 

Mont. , 633 P.2d 1195, 1196, 38 St.Rep. 1521, 1523, for 

the rule that "if - any evidence exists in the record which 

would permit the jury to rationally find [defendant] guilty 

of a lesser offense and acquit him of a greater," a defendant 

is entitled to instructions on lesser included offenses. 

However, the difficulty with defendant's final contention is 

not its legal bearing, but its lack of evidentiary support. 

In his initial brief, defendant as much as concedes 

that, standing alone, defendant's concern for his father's 

financial well-being would not suffice to support an instruction on mitigated deliberate homicide. We agree. No evidence was presented at trial regarding the nature or extent 

of defendant's mental condition. Dr. Stratford testified at 

a pretrial suppression hearing. The only other evidence of 

defendant's mental history was presented to the court for 

its sentencing considerations. Without that context or 

other evidentiary support, it cannot be said that there was 

any evidence to support a theory that defendant acted under 

the influence of extreme mental or emotional stress for 

which there is a reasonable explanation or excuse. 

Af firmed. 
We Concur: 

Chief Justice 
Mr. Justice John C. Sheehy, dissenting: 

I dissent. 

A casual reader of the foregoing opinion might wonder 

why anyone would dissent in this case. The answer is that 

additional facts are needed to give a full background of 

what happened here. 

The killings in this case occurred on February 25, 

1981. From February 26, 1981 onward, William Norgaard was 

the prime suspect in this case. He was hospitalized most of 

the time from February 26, 1981, until his arrest on March 

4, 1981. While he was not technically "in custody" in the 

period prior to March 4, 1981, he was subjected to interrogation 

by the authorities, including Agent Carrell, on several 

occasions. 

Norgaard was interviewed, or an interview of him was 

attempted five times between February 26, and March 4, the 

day he was charged with the crimes. On three of those 

occasions, on February 26, 1981, in Poplar, Montana, on 

March 2, 1981, when he was in the hospital, and on March 4, 

1981, after he had been arraigned, written waivers of his 

right to have counsel present were signed by Norgaard. At 

all other times, and there were many, including the two 

interviews by Agent Carrell in Missoula, no written waivers 

were acquired, although Agent Carrell testified that oral 

Miranda warnings were given to Norgaard. 

Norgaard was in the hospital, either in Wolf Point or 

in Missoula, Montana, most of the time from and after 

February 26, 1981. 

Norgaard, to put it mildly, was a sick man. Approximately 26 years old, he had suffered most of his teen and 
adult life from the disease of colitis. When he arrived in 

the hospital in Missoula on March 11, 1981, he was weak from 

loss of blood, and had undergone a period of sustained 

rectal bleeding. Dr. Stratford, a psychiatrist, testified 

that when defendant came to Missoula "he needed to be seen 

by [doctors] who see this kind of people every day, an 

internist and a gastro-enterologist." 

Colitis was not his only illness. Since the defendant 

was 13 years old, he had "historically a severe mental 

illness, and he has undergone years and years of treatment, 

electric shock treatments, massive doses of anti-psychotics, 

multiple years of therapy with a psychiatrist, and inpatient and outpatient . . ." treatment. Dr. Stratford, who 

had never seen the defendant before, inadvertently lowered 

the defendant's prescription of Haldol, an anti-psychotic 

drug, to one milligram per day whereas in the previous weeks 

in Wolf Point, he had been given doses each day of Haldol 

ranging from 6 milligrams to 22.5 milligrams. 

The defendant was arraigned on March 4, 1981, in Wolf 

Point. The District Court judge came to the defendant's 

hospital room in order to arraign him. An attorney was not 

appointed for him at that time because his family indicated 

they might seek their own counsel. 

On March 10, 1981, the District Court appointed Francis 

McCarvel, of Glasgow, to represent the defendant. At the 

time of Mr. McCarvells appointment, the defendant was in 

Missoula, Montana, where he had been sent by the State for 

psychiatric evaluation by Dr. Stratford. Missoula is 439 

miles from Glasgow, where McCarvel resides and has his 

offices, and 488 miles from Wolf Point, where the charges 

were pending against the defendant. 
James 14cCann is the county attorney in Roosevelt 

County, of which the county seat is Wolf Point, where the 

crimes were committed. Although McCarvel resides in Glasgow, 

he is frequently called on to represent defendants by appointment in the judicial district including Roosevelt County. 

There is a standing agreement between attorneys McCann and 

McCarvel that no defendant that McCarvel is appointed to 

represent will be interrogated in McCarvelts absence by law 

enforcement officials. It is obvious that McCarvel saw no 

reason to hurry to Missoula, nearly 500 miles away, to 

interview his newly-found client until the psychiatric 

evaluation of the defendant in Missoula had been completed. 

On March 11, 1981, Dr. Stratford, in s is sou la, called 

the special prosecutor in the Attorney General's office in 

Helena, Montana, some 120 miles away to tell the special 

prosecutor that the defendant should have an attorney 

because he was beginning to make incriminating statements 

against his own interests. The special prosecutor called 

into his office in Helena Special Agent Carrell, and together 

they discussed the propriety and ethics of Carrell attempting 

to interview the defendant in the absence of his counsel and 

before his counsel had a chance to consult with his client 

and advise him of his right to protect himself in this case. 

The special prosecutor left the decision up to the agent and 

Carrell lost no time in proceeding immediately to Missoula to 

interview Norgaard, which he did beginning that evening of 

March 11, 1981. 

The handwritten notes of Agent Carrell respecting his 

interview of Norgaard are more revealing than anything I 

could write or the majority has said with respect to the 

consent of Norgaard to the interview and his purported 

relinquishment of his right to counsel: 
"Interviewed Norgaard 

"Advised rights 

It Is Attorney McCarvel had been appointed 

It !I advised charged w/ 

I! I# who I was & why I was there. Nodded 

-understood all - 

"Nodding & shaking of head" 

Also revealing from the handwritten notes of 

Agent Carrell are his recorded statements to Norgaard: 

"Explained to Bill preponderence of evidence 

against him 

"shell casings match 

"possibility of fingerprints on casings" 

On the morning of March 12, 1981, Agent Carrell came 

again to the hospital room to interview Norgaard. Again 

his notes are revealing: 

"Introduced myself against [sic] as CIB Agentshowed Bill badge - took it looked at it. 

"Advised Bill of rights verbally & specifically 

advised him he did not have to talk to me - 

said he understood. 

"Again advised Bill an attorney named Jim 

McCarvel had been appointed by the court 

to represent him - he understood 

"Advised Bill he could have attorney present 

or talk to him before talking to me - he 

understood 

"Advised Bill again he was charged with the 

homicide of Stanley Nees, Mildred Geer, 

and Leota Hoye - He understood. 

"Asked again if he knew who I was 

"He said 'You're a police officer?' I replied 

yes. I1 

And finally, as startling as it is revealing, are 

the notes respecting the conclusion of the interview: 
"Advised 'You're attorney, Mr. McCarvel, will 

probably be getting in touch w/you.' reply 

'What's the difference between an attorney and 

a lawyer?' I stated 'They're the same thing.' 

"Bill asked 'Will he represent me?' I replied, 

'He has been appointed to represent you. Anything 

he does will be what he considers to be in 

your best interests. He's a good lawyer.' 

"Bill asked 'When will he talk to me?' I replied 

'I don't know, but it will probably be in the 

next few days.'" 

It is true that Dr. Stratford testified that on the 

night of March 11, 1981 and on the morning of March 12, 

1981, Norgaard was capable of making decisions, even though 

his intelligence was in the lower normal range. What is 

sadly lacking in the testimony respecting his mental ability, 

however, is whether he had the requisite knowledge to make a 

knowing and voluntary waiver of his right to counsel. His 

question to Carrel1 as to what was the difference between an 

attorney and a lawyer indicates a very rudimentary knowledge 

of what he was about or perhaps his inability to grasp what 

was being said to him respecting his right to have counsel 

present. That is one of the reasons why I think the State 

has not carried its "heavy burden" of showing that Norgaard's 

waiver of right to counsel was knowing and voluntary. 

I also believe that the evidence does not sustain a 

knowing and voluntary waiver of Norgaard's right to have 

counsel present during his interviews because he was never 

given a chance to consult with his own counsel to learn 

exactly how those rights operate. Here the State deliberately 

beat Norgaard's counsel to the punch, in spite of the longstanding agreement between McCarvel and the county attorney 

of Roosevelt County to respect McCarvells right, and it is a 

right, of fair and influence-free consultation with his 

clients under his appointments by the court. 
It 1s on a fact situation such as we find here that the 

New York court adopted its per -- se rule in People v. Hobson, 

supra, cited in the majority opinion. Norgaardls evident 

confusion as to what a lawyer is; the surreptitious trip to 

?4issoula by Agent Carrell; the special prosecutor's calling 

in of Agent Carrell when he learned that Norgaard was becoming 

talkative; the lack of an immediate telephone call by the 

state counsel to the appointed attorney; and the lack of a 

written Miranda waiver from Norgaard in the two crucial 

interviews in Missoula, all lead me to conclude that the 

State might well stretch a point when its agents testify 

that Norgaard's consent to be interrogated in the absence of 

counsel was knowing and voluntary. 

I would suppress the statements made by PJorgaard in the 

Missoula interviews, and remand the cause for a new trial. 

There is probably enough remaining evidence against him to 

bring about his conviction in any event. 

One's credibility is at nadir when it is more important 

to win than to be honorable. 

If another trial were granted, I would also instruct 

the District Court to ascertain the physical and mental 

health of the defendant at the time of the crime. Here 

no evidence was given on that important aspect of the case. 

Then certainly the jury could decide whether these killings 

involved mitigated deliberate homicide under proper evidential 

background. The jury in this case convicted the defendant 

without any knowledge of his mental difficulties. 

Justice / 

I join in the dissent of ~usticdheeh~. / 

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