No. 12259 INTHE SUPREME COURT OF THE STATE OF MONTANA 1973

- -- THE STATE OF MONTANA, Plaintiff and Respondent,

RANDALL G. BRADEN, Defendant and Appellant.

Appeal from: District Court of the Eighth Judicial District, Honorable R. J. Nelson, Judge presiding. Counsel of Record: For Appellant: John C. Hall appeared, Great Falls, Montana L. D. Nybo argued, Great Falls, Montana For Respondent : Hon. Robert L. Woodahl, Attorney General, Helena,

Montana J. C. Weingartner, Assistant Attorney General, argued,

Helena, Montana J. Fred Bourdeau argued, County Attorney, Great Falls,

Montana NeilE. Ugrin, Deputy County Attorney, Great Falls,

Montana

- - Submitted: September 10, 1973 Decided :

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# -Mr. Justice John Conway Harrison delivered the Opinion of the Court.

This isan appeal by defendant Randall G. Braden from a conviction of firstdegree murder entered inthe district court of the eighthjudicial district, Hon. R.J. Nelson, districtjudge presiding. Defendant was sentenced to lifeimprisonment in the Montana StatePrison. Appellant raises two issues on appeal: I. Whether he has standing tochallenge alleged violations of the constitutional rights of a witness who testified against him? 2. Whether thejury's lack of knowledge of the final disposition of cases pending against three of the state's witnesses prejudiced his case? Braden had previously been convicted of the crime of robbery and was on parole atthe time of the murder. At trial one of the principal witnesses was Thomas Tanner. Tanner testified he, Braden and John LaFond (the victim), were inTanner's car driving aimlessly about while smoking marijuana and drinking beer. The trioproceeded into thecantry into an area known as the Spanish Coulee area and ata random point Tanner stopped the car inorder torelievehimself. According toTanner, Braden and Lafond began to quarrel about whether LaFond was an informer who had implicated Braden in a recent burglary. The three men proceeded through the barrow pit, crawled through a fence, and arrived atan embankment overlooking a small creek. Atthat point Braden handed Tanner hisweapon and directed Tanner to shoot LaFond. Tanner refused and handed theweapon back toBraden, who thereupon shot LaFond three times. Braden then directed Tanner to help him push LaFond into the cteek. Braden and Tanner then returned to Great Falls, throwing theweapon into

a river along theway.Another state's witness,Michael Stillings, testified Braden told him that he, Braden, had killed LaFond, Stillings gave some detailswhich tended to corroborateTanner's version of the killing. Marjorie Mann, another witness, testified thatwhile she

was incarcerated in jail at the same time as Stillings and Braden, Braden attempted to get Stillings to change his story to the effect that Braden had told Stillings that Tanner,not Braden, had committed the murder. At the time of the murder Tannerwas on parole from a sentence imposed as a result of a conviction ofburglary. Testimony revealed that hewas jailed for parole violation in late June or early July and at the time of his arrest hewas a suspect in the LaFond homicide. Cross-examinationof Tanner revealed he was held for a period of some 38 days, duringwhich time he refused to make a statement about the LaFond killing. On August 13, 1971, he made the statement implicating Braden and was released from jail immediately thereafter. Tanner testified that he was visited daily during this period of time by sheriff's deputies or members of the county attorney's staff; that he did not have an attorney

or the funds to employ one; and, that he was never taken before a magistrate or judge during this time. There isnothing in the record to suggest the reasons for ~anner'sincarceration for this period of time, other thanwhat has been heretofore stated. Itmay be, as Braden suggests, that the authoritieswre applyingcoercive tactics to elicit ~anner's statement and subsequent testimony. It is just as likely that Tannerwas seeking to plea bargain, i.e. trade his testimony for the considerationofnot being charged as an accomplice in the crime. Section 95-1504(d), R.C.M. 1947 (formerly section 94-7206,R.C.M. 1947).~raden'sfirst contention is that the incarcerationof Tanner

was a violation of ~anner'sconstitutionalrights and that he, Braden, shouldhave standing to challenge that violation, thus excluding the testimony given by Tanner. We cannot agree. Therecord discloses that Tanner's testimonywas not challenged at trial. A well established rule in Montana is stated in Bower v. Tebbs, 132Mont. 146, 160, 314P.2d 731: "Objections which are urged for the first time on appealwill not be considered by this court.11 See also: Teesdalev, Anschultz Drilling Co., 138Mont. 427, 357 P,2d 

### 4;Close v. Ruegsegger, 143 Mont. 32, 386 P.2d 739; Pickett

v. Kyger, 151Mont. 87, 439 P.2d 57; State v. Perkins, 153 Mont, 361, 457 P.2d 465, and cases cited therein. However,assuming for the purposes of argument that Tanner's constitutional rightswere violated, does Braden have the requisite standing to challenge testimony obtained in violation of Tanner's constitutional rights? Inhis brief Braden asserts "a constitutionalright independent of the Fourth and FifthAmendments to be free fromhaving testimony admitted against him in a criminalprosecutionwhich has been coerced from some individualby law enforcement authorities.11 A defendant does not have standing to challengeviolations of FourthAmendment rights of a codefendant or third party by law enforcement authorities. InAlderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 

### L ed 2d 176, 185, 187,JusticeWhite, speaking for six members of the Court, said: 

### his expansive reading of the FourthAmendment and of the exclusionary rule fashioned to enforce it is admittedly inconsistentwith prior cases, and we reject it. The established principle is that suppression of the product of a Fourth Amendment violation canbe successfully urged only by those whose rightswere violated by the search itself, not by thosewho are aggrieved solelyby the introduction of damaging evidence. Coconspirators and codefendants have been accorded no special standing

11

But we are not convinced that the additional benefits of extending the exclusionary rule to other defendantswould justify further encroachment upon the public interest in prosecuting those accused of crime and having them acquitted or convicted on the basis of all the evidence which exposes the truth."TheNinth Circuit Court of Appeals follows the same rulewith regard to both the Fourth and FifthAmendments. Dearingerv. Rhay, 421 F.2d 1086;Byrd v. Comstock,430 F.2d 937,cert.den. 401 U.S. 945, 91 S.Ct. 960, 28 

### L ed 2d 228; United States v. Pruitt, 464 F.2d 494;United States 

### v. Howell, 470 F.2d 1064. JusticeWhite's reason for rejecting the expansion of the exclusionary rule as regards the FourthAmendment is sound and the same rationale is applicable to ~raden'scontention. Such

a rule also comportswith precedent in Montana. State v. Geddes, 22Mont. 68, 55 P. 919; State 

### v. Dess, 154Mont. 231, 462 P.2d 186,habeas corpus den. 312 F.Supp. 1325, aff'd, 450 F.2d 939; State v. Armstrong, 149 Mont. 470,428 P.2d 611. Traditionally, the testimony of a coerced witness has been admitted on the ground that the coercion goes to the weight and credibility of the testimony,not to its exclusion. 3Wigmore,Evidence $815 (Chadbourn rev. 1970), pp. 289, 290, and cases cited in footnote 3,p. 290. For these reasonswe reject ~raden'scontention and hold that ~anner'stestimony, even on the assumption that itwas coerced,does not violate ~raden's constitutional rights. Here,we note two recent cases,not cited to us by either party, that appear to be in conflict. In People v. Bradford, 10Mich.App. 696, 160N.W.2d 373, cert. den. 394 U.S. 1022, 89 S. Ct. 1638, 23 

### L ed 2d 48,habeas corpus granted, 354 F.Supp. 1331, aff'd, 476 F.2d 66, the Sixth Circuit Court of Appeals approved the granting of a writ of habeas corpus to an inmate convicted principally on the testimony of a brutally tortured witness. By way of contrast, in People v. Portelli, 15 N.Y.2d 235, 257 N.Y.S. 2d 931, 205 N.E.2d 857,remittitur amended, 16 N.Y.2d 537, 260 N.Y,S.2d 649, 208 N.E.2d 458,cert. den. 382 U.S. 1009, 86 S.Ct. 612, 15 

### L ed 2d 524, the New York Court of Appeals on essentially the same facts held that the testimony of the witness was admissible,going to the weight and credibility of the testimony only, and that no constitutional rights of defendant had been violated,In the instant casewe do not find the coercion set forth in the above cited two cases and base our holding here on the authority ofAlderman. ~raden'ssecond contention is that the three principal witnesses against him were all in jail for various crimes and that in return for favorable disposition of these charges the witnesses agreed to testify against him, Braden. He alleges the jury should have been made aware of the final disposition of the cases against these witnesses and since it was not, it could not properlyweigh the credibility and veracity of the witnesses, hence Bradenwas prejudiced by the jury's lack of knowledge of thesematters, 

## el ell ant's contention is without merit because, as pointed out by the state, the jurywas made aware of the facts that Tanner had twicebeen convicted ofburglary,was in jail for parole violation, and was a drug user. The jury knew that Stillings had plead guilty to second degree murder and was in jail awaiting sentence, that he had committed burglary, and that he alsowas a drug user. It knew that Marjorie Mann had been convicted of grand larceny and was awaiting execution of her ten year sentence and that the county attorney had instituted proceedings to take custody ofher child. The record shows that these factswere disclosed to the jury primarily through the offices of a vigorous cross-examination conducted by appellant's counsel. Appellant's contention that had the jury known of the final disposition of the cases involving thesewitnesses it might have come to a different conclusion is untenable. Such knowledge is not relevant to the case the jury is called upon to decide. The jury had before it sufficient information to judge the credibility of the witnesses and it is apparent the jury chose to believe them. The judgment of the distri

# //Chief ~ustice

Justices.