No. 12259 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1973 

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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 

Neil E. Ugrin, Deputy County Attorney, Great Falls, 

Montana 

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Submitted: September 10, 1973 

Decided : wov 6 - 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This is an appeal by defendant Randall G. Braden from a 

conviction of first degree murder entered in the district court 

of the eighth judicial district, Hon. R.J. Nelson, district judge 

presiding. Defendant was sentenced to life imprisonment in the 

Montana State Prison. 

Appellant raises two issues on appeal: 

I. Whether he has standing to challenge alleged violations 

of the constitutional rights of a witness who testified against 

him? 

2. Whether the jury'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 at the time of the murder. At trial one of 

the principal witnesses was Thomas Tanner. Tanner testified he, 

Braden and John LaFond (the victim), were in Tanner's car driving 

aimlessly about while smoking marijuana and drinking beer. The 

trio proceeded into the cantry into an area known as the Spanish 

Coulee area and at a random point Tanner stopped the car in order 

to relieve himself. According to Tanner, 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 at an embankment 

overlooking a small creek. 

At that point Braden handed Tanner his weapon and directed 

Tanner to shoot LaFond. Tanner refused and handed the weapon back 

to Braden, 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 the weapon into 

a river along the way. 
Another state's witness, Michael Stillings, testified Braden 

told him that he, Braden, had killed LaFond, Stillings gave some 

details which tended to corroborate Tanner's version of the killing. 

Marjorie Mann, another witness, testified that while 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 Tanner was on parole from a sentence 

imposed as a result of a conviction of burglary. Testimony revealed that he was jailed for parole violation in late June or 

early July and at the time of his arrest he was a suspect in the 

LaFond homicide. Cross-examination of Tanner revealed he was 

held for a period of some 38 days, during which 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 is nothing in the record to suggest the reasons for 

~anner's incarceration for this period of time, other than what 

has been heretofore stated. It may be, as Braden suggests, that 

the authoritieswre applying coercive tactics to elicit ~anner's 

statement and subsequent testimony. It is just as likely that 

Tanner was seeking to plea bargain, i.e. trade his testimony for 

the consideration of not 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's first contention is that the incarceration of Tanner 

was a violation of ~anner's constitutional rights and that he, 

Braden, should have standing to challenge that violation, thus 

excluding the testimony given by Tanner. We cannot agree. The 
record discloses that Tanner's testimony was not challenged at 

trial. A well established rule in Montana is stated in Bower v. 

Tebbs, 132 Mont. 146, 160, 314 P.2d 731: 

"Objections which are urged for the first time 

on appeal will not be considered by this court. 11 

See also: Teesdale v, Anschultz Drilling Co., 138 Mont. 427, 357 

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

v. Kyger, 151 Mont. 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 rights were violated, does Braden have the requisite standing to challenge testimony obtained in violation of 

Tanner's constitutional rights? 

In his brief Braden asserts "a constitutional right independent 

of the Fourth and Fifth Amendments to be free from having testimony 

admitted against him in a criminal prosecution which has been 

coerced from some individual by law enforcement authorities. 11 

A defendant does not have standing to challenge violations 

of Fourth Amendment rights of a codefendant or third party by 

law enforcement authorities. In Alderman v. United States, 394 

U.S. 165, 89 S.Ct. 961, 22 L ed 2d 176, 185, 187, Justice White, 

speaking for six members of the Court, said: 

 his expansive reading of the Fourth Amendment 

and of the exclusionary rule fashioned to enforce 

it is admittedly inconsistent with prior cases, and 

we reject it. The established principle is that 

suppression of the product of a Fourth Amendment 

violation can be successfully urged only by those 

whose rights were violated by the search itself, 

not by those who are aggrieved solely by 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 defendants would 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." 
The Ninth Circuit Court of Appeals follows the same rule with 

regard to both the Fourth and Fifth Amendments. Dearinger v. 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. 

Justice White's reason for rejecting the expansion of the 

exclusionary rule as regards the Fourth Amendment is sound and 

the same rationale is applicable to ~raden's contention. Such 

a rule also comports with precedent in Montana. State v. Geddes, 

22 Mont. 68, 55 P. 919; State v. Dess, 154 Mont. 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. 3 Wigmore, Evidence $815 

(Chadbourn rev. 1970), pp. 289, 290, and cases cited in footnote 

3, p. 290. 

For these reasons we reject ~raden's contention and hold 

that ~anner's testimony, even on the assumption that it was 

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, 

10 Mich.App. 696, 160 N.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 case we do not find the coercion set forth 

in the above cited two cases and base our holding here on the 

authority of Alderman. 

~raden's second 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 properly weigh the credibility and veracity of the 

witnesses, hence Braden was prejudiced by the jury's lack of 

knowledge of these matters, 

 el ell ant's contention is without merit because, as pointed 

out by the state, the jury was made aware of the facts that 

Tanner had twice been convicted of burglary, 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 

also was 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 of her child. 

The record shows that these facts were 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 

these witnesses 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 j udgment of the distri 
/ / Chief ~ustice 

Justices.