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:

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### ;Lj)il

Clerk

### Mr. Justice Frank B. 

### Morrison, Jr., delivered the Opinion of the Court. DefendantWilliam 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 statementsmade by defendant to a criminal investigator during an interviewconductedwithout counsel and after filing of an information? (2) Whether the District Court erred in excluding as hearsay a statementvictim StanleyNees made to witness Howard Kelsey regarding the threat againstNees' life? (3) 

### Whether the District Court erred in refusing defendant's proposed instructions regardingmitigated deliberatehomicide? On February 25, 1981, StanleyNees, Leota Hoye and Mildred Geer were shot to death in Poplar,Montana. William Norgaard was arrested and charged with three counts of deliberate homicide onMarch 4, 

### 1981,after a lab report confirmed that shells found at the scene of the crime and shells found in theNorgaard homewere fired from the same rifle. Norgaard was arraigned by the District Court judge in the Trinity Hospital inWolf 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 hewas admitted to St. Patrick's Hospital for medical and psychiatric evaluation. Dr. Will Stratford assistedwith defendant's admission and treatment. On March 11, 1981,Dr. Stratford inquired of Special ProsecutorMarc Racicot as to whether a psychiatric evalu-

### ationwas to be ordered for Norgaard and whether defense counselhad been appointed onNorgaard's behalf. Stratford

was concerned about appointment of counselbecause Norgaard

was becoming more talkative to hospital personnel. Racicot informed Dr. Stratford that on the previous day the District Court had appointed FrancisMcCarvel defense counsel and thatMcCarvel had immediately requested a court-ordered psychiatric evaluation of Norgaard. The DistrictCourt ordered the evaluation onMarch 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 Carrellwas assisting Roosevelt County law enforcement authorities in the investigationof the triple homicide and had previously interviewedNorgaard onMarch 3-4, 

### 1981, in Wolf Point, regarding any information Norgaardmight have concerning the crimes. Agent Carrell thenmet with Racicot in Racicot's Helena office. Racicot informed Agent Carrell that Dr. Stratford thoughtNorgaard 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 CountyAttorney's policy was not to interviewdefendants without firstcontacting 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 nothe 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 thatNorgaard's condition would not be impaired by such an interview. Carrellwent to the hospital that night and attempted to interview defendant. Carrell advised defendant of his Miranda rights and told Norgaard thatMcCarvel 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 fromNorgaard thathe remembered picking up the shell casings in Leota Hoyes' apartment and that he was upset with Stanley Nees because defendant's fatherwas having financialproblems. Nees was a local banker. As Carrell leftNorgaard's hospital room that evening, he explained he would return the nextmorning to continue their discussion of the slayings. Norgaard was more responsive the followingmorning. After Carrellhad again advised him of his rights and explained thatMcCarvel had been appointed to represent defendant, defendant stated he understood and proceeded to

answer Carrell's questions. During this interview,Norgaard supplied Carrell with informationwhich led to the discovery of the murder weapon. OnAugust 17, 1981, a 

### pretrial suppression hearing was held regarding the admissionsmade by Norgaard during the March 11 and 12 interviews. Dr. Stratford testified that

### defendant was mentally capableof waiving his rights and that he couldmake 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 interviewswas Carrell's handwritten notes. The defendantdid not testify. The DistrictCourt denied defendant's motion to suppress, finding that the Statehad sustained its burden of proving that defendantmade an effectivewaiver of his rights,albeitwithout consultation from defense counsel. At trialAgent 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 thatNees was in an excited state after the argument. The trial courtwould not allow Kelsey to testify that approximately onehour after the argument occurred Nees told Kelsey that the twomen had threatened his life. Dr. Stratford did not testify at trial. The jury found Norgaard guilty of three counts of deliberate homicide. No instructionswere 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 Stateprison. I. 

### Defendant contends thatAgent Carrell impermissibly interfered with his SixthAmendment right to counsel when he questioned defendantwithout firstnotifying defense counsel. Defendant asserts that an effectivewaiver of the right to counsel cannotbe secured unless defense counsel is present when the waiver is given. This argument isbased upon theNew York Court of Appeals' decision in People v. Hobson (1976), 39 N.Y.2d 468, 384N.Y.S.2d 419, 348 N.E.2d 894. Alternatively, defendant contends that Agent Carrell violated his SixthAmendment right to counsel when Carrell proceeded to interviewdefendant in disregard of the Roosevelt CountyAttorney's policy not to interview defendants without consulting defense counsel. Defendantbelieves 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., 431U.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 atwhich defendant was identified. Counsel left after the identificationwas made. Knowing that defendantwas represented by counsel, and without notice to counsel,Detective Dolan proceeded to interview defendant. An oralwaiver of the right to counsel

was secured by Dolan,whereafter defendant confessed to the robbery under investigation. Defendant's statementswere used againsthim at trial. TheNew York Court of Appeals reversed defendant's conviction on the basis that defendant's statementswere obtained inviolation 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. TheNew York Court of Appeals held that, "[olnce a lawyer has entered a criminal proceeding representing a defendant in connectionwith criminal charges under investigation, the defendant in custody may not waive his right tocounsel 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 oralwarning 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 counselwould 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 statementsuntil 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 (violationof

### SixthAmendment 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' SixthAmendment right to counsel. In doing so, the Court acknowledged that even thoughWilliams 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 Williamswished to relinquish that rightwhen he deliberately elicited from defendant incriminating evidence in absence of his counsel. Referring to the Johnsonv. 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 thatWilliams 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 thatWilliams had intentionally relinquished his right to counsel. This Court hereby holds that a defendant, charged under information or indictment and representedby 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 Peoplev. Hobson, supra. In adopting a

### per - se rule the New York court hasgone beyond the contours of Johnson v. Zerbst and its progeny in holding that despite "theparticular 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, 82L.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 counselprovides a more effective safeguard against involuntarywaiver than a written or oral Massiahtype warning,we emphatically disagree with the New York court's implicit assumption that written and oralwarnings in absence of counsel cannot ensure that a defendant's right to counsel will be protected from unintentional relinquishment. The vastmajority of jurisdictionshave upheld counselless waivers which were obtained after written or oral warnings have been given. State v. McLucas (1977), 172 Conn. 542, 375A.2d 1014, cert. denied, 434U.S. 855, 98 S.Ct. 174, 54 L.Ed.2d 126; Piercev. State (1975), 235 Ga. 237, 219 S.E.2d 158; State v. Ruth (1981), 102 Id. 638, 637 P.2d 415; Peoplev. 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, 370A.2d 1149,aff'd, 282 Md. 73, 382A.2d 574, cert. denied, (1978) 474U.S. 908, 98 S.Ct. 3100, 57 L.Ed.2d 1140; Statev. Williams (Mo.App. 1978), 566 S.W.2d 841; Peoplev. Green (1979), Mich. 

### , 274 N.W.2d 488;Giddingsv. State (Minn. 1980), 290 N.W.2d 595; State v. Jackson (19801, 205 Neb. 806, 290N.W.2d 458; State v. Romero (1982), 56 N.C.App. 48, 286 S.E.2d 903;Matter of Sanders (1982), 560r.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),217Va. 307, 227 S.E.2d 737; Statev. Clawson (W.Va. 1980), 270 S.E.2d 659;Jordan v. State (1980),93Wis.2d 449, 287

In rejecting Peoplev. Hobson, supra,we also note the language in another Sixth Amendment case,United Statesv. Henry (1980), 447U.S. 264, 100 S.Ct. 2183, 2189, fn.14, 65 L.Ed.2d 115,wherein Mr. Chief JusticeBurger stated that bar associationdisciplinary rules have no constitutional bearing. 

### -- See also,Massiah v. United States, supra, 377 U.S. 201, 210, 84 S.Ct. 1199, 1205 (White Jardissenting); United States v. Thomas (10thCir. 1973), 474 F.2d 110, 112, cert. denied, 412U.S. 932, 93 S.Ct. 2758, 37 L.Ed.2d 160; State



### v. Richmond (1976), 114Ariz. 186, 560 P.2d 41, 46, cert. denied, 433U.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. "Theadmissibility of evidence in a court of law

# . . . is normally determined by reference to relevant constitutionaland statutory provisions, applicable court rules and pertinent common-law doctrines. Codes of professional conduct play no part in such decisions." People

### v. Green, supra, 274N.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 FourteenthAmendments to require counsel's notice or agreementbefore an effective waiver can be found. What Massiah, Brewer and Henry stand for is the proposition that federal and state agents cannotdeliberately 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 caseswas 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 deliberatelydesigned to secure incriminating evidence from unwitting defendants. Defendantmistakenly equates the express agreement between police and defense counsel in Brewer v. Williams, supra, with the Roosevelt CountyAttorney's policy not to interview defendantswithout 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 CountyAttorney and defense counsel but itdid 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 SixthAmendment BrewerHobson contentions,defendant's brief drawsmuch attention to the facts and circumstances surroundingdefendant's waiver, however, defendant does not directly challenge the DistrictCourt'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 defendantmade 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 DistrictCourt's findings, the DistrictCourt's conclusion that a valid waiver was effected will not be disturbed. Statev. Plouffe (1982), Mont. 

### , 646 P.2d 533, 39 St.Rep. 1064. 11. 

### Defendant contends that the DistrictCourt erred when it refused to permit Howard Kelsey to testify to the fact that shortly before the crime occurred, twomen, other than defendant, threatened Stanley Nees' life. Defendantwould have the declarationsmade 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 statementagainst 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. Statev. 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 argumentwith twomen and he recounted the contents of that argument to Kelsey. Given the time lapse and the fact that the eventprecipitating excitementwas a verbal argument rather than an assaultwitha weapon, under Statev. Swazio (1977), 173 Mont. 440, 568 P.2d 124, itwas reasonable for the District Court to conclude that the "excited utterance exception" should not apply Regarding defendant's "statementagainst interest" assertion, we find it to be too tenuous to warrant serious consideration, thus,we cannothere fault the District Court for not accepting it. Defendant's third evidentiary argument deserves comment. Defendant argues that the statementmade 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 "comparabletrustworthiness" exceptionwas in a dissenting opinion to Jacquesv. 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 ismore probative on the point for which itwas offered than any other evidence; and (3) the generalpurposes of the rules and the interests of justicewill 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 StanleyNees, 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 justicewere 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-yearhistory of suffering from a mental illness and his expressed concern about the financial problems his fatherwas experiencing. Defendant correctly relies on Statev. 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 difficultywith 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 onmitigated 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 suppressionhearing. 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 therewas 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. Affirmed.WeConcur:

Chief JusticeMr. 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 interviewsby 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 itmildly, was a sick man. Approximately 26 years old, he had sufferedmost of his teen andadult 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 rectalbleeding. Dr. Stratford, a psychiatrist, testified that when defendant came to Missoula "heneeded 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 onemilligram per day whereas in the previous weeks inWolf Point, he had been given doses each day of Haldol ranging from 6milligrams 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. McCarvellsappointment, 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 crimeswere 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 attorneysMcCann and McCarvel that no defendant that McCarvel is appointed to representwill be interrogated in McCarveltsabsence by law enforcement officials. It is obvious thatMcCarvel 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 120miles away to tell the special prosecutor that the defendant should have an attorney because hewas beginning to make incriminating statements against his own interests. The special prosecutor called into his office in Helena SpecialAgent 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 consultwith 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 ofAgent Carrell respecting his interview of Norgaard aremore 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:"InterviewedNorgaard "Advised rights

It Is Attorney McCarvel had been appointed

It !I advised chargedw/

I! I# who 

### Iwas & 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 againsthim "shellcasings match "possibilityof fingerprints on casings" On the morning of March 12, 1981,Agent Carrell came again to the hospital room to interviewNorgaard. 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. "Againadvised 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 knewwho Iwas "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'reattorney,Mr. McCarvel, will probably be getting in touchw/you.' reply

'What's the difference between an attorney and a lawyer?' I 

### stated 'They're the same thing.' "Billasked 'Willhe represent me?' I replied, 'Hehas been appointed to representyou. Anything he does will be what he considers to be in your best interests. He's a good lawyer.' "Billasked 'Whenwill he talk to me?' I 

### replied 'Idon't know,but itwill probably be in the next fewdays.'" 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 ofmaking decisions,even though his intelligencewas in the lower normal range. What is sadly lacking in the testimony respecting his mental ability, however, iswhether 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 rudimentaryknowledge ofwhat 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 reasonswhy I think the State has not carried its "heavy burden" of showing thatNorgaard'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 consultwith 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 respectMcCarvellsright, and it is a right,of fair and influence-free consultationwith 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. Norgaardlsevident confusion as to what a lawyer is; the surreptitious trip to ?4issoulaby Agent Carrell; the special prosecutor's calling in ofAgent 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 inMissoula, all lead me to conclude that the State might well stretch a point when its agents testify thatNorgaard's consent to be interrogated in the absence of counselwas knowing and voluntary. Iwould suppress the statementsmade 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 trialwere granted, Iwould also instruct the DistrictCourt 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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