No. 80-335 INTHE SUPREME COURT OF THE STATE OF MONTANA

STATE OF MONTANA, Plaintiff and Appellant,

VS. DONALD ANDERSON WARREN,Defendant and Respondent.

Appeal from: DistrictCourt of the Thirteenth Judicial District, In and for the County of Yellowstone. Honorable William Speare, Judge presiding. Counsel of Record: For Appellant: Hon. Mike Greely, Attorney General, Helena, Montana Harold F. Hanser, County Attorney, Billings, Montana Corbin Howard argued, Deputy Couhty Attorney, Billings, Montana Far Respondent: Moses Law Firm, Billings, Montana

Stephen 

### Moses argued, Billings, Montana

Submitted: March 24, 1981 Decided: May 20, 1981. Filed: 

## MAY2O 

## 1981Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of the Court.

Defendant was convicted of the offense of tampering with or fabricating physical evidence pursuant to section 45-7-207 (1) (a)

## , MCA. Defendant moved the court for a judgment notwithstanding the verdict and for a new trial; the new trialwas granted. The defendant in this case, Donald Warren, 

### is the father of Ray Warren who was arrested on a deliberate homicide charge arising outof a shooting which occurred August 15, 1979. The defendant hasbeen charged with suppressing material evidence, specifically a .22 caliber pistol, inconnection with the investigation of his son on the deliberatehomicide charge. The basis of the case against defendant, Donald Warren, 

### stemsfrom the testimony of Norman Hopkins. Hopkins, who lived with the defendant's daughter, KimWarren, and was a friend of the Warren family, testified that he had received

a .22 caliber pistol from Donald Warren the afternoon following the arrestof Ray Warren on deliberate homicide charges. Hopkins testified thathe recognized the pistol 

### as being one thatRay Warren had taken when he accompanied Hopkins on several coyote hunting trips. Hopkins testified that the defendant, Donald Warren, stated the gun was possibly unregistered and thathe did notwant the police to find it 

### in theWarren house because of itsuncertain legality. Hopkins testified thathe was instructed by defendant, Donald Warren, todispose of the gun, notbecause it had anything to do with the pending homicide charges against his son, but rather because the weapon was not registered. Hopkins then stated he had possession of the gun from that time, August15, 1979, until December 3, 1979, when he gave it to the police. ~opkins gave the weapon to the police after he had severed his relationship with KimWarren. Ray Warren, after posting bond, disappeared and has never been tried on the deliberate homicide charge. Both the stateand the defendant raised numerous issues for review. Three issues aredispositive: (1)Was Hopkins,

asa matter of law, an accomplice? (2) If Hopkins was an accomplice,asa matter of law, then was there any evidence to corroborate his testimony? (3)Did the DistrictCourt err ingranting a new trial? Section 45-2-302(3), MCA, defines the elements of being

an accomplice, pertinent to this case. One is legally accountable for another's conduct if

# ".



# . . either before or during the commission of an offense with the purpose to promote or facilitate such commission, he solicits, aids, abets, agrees, or attempts to aid such other person in the planning or commission of the offense." The only directevidence bearing on the issues of defendant's intentand Hopkins being an "accomplice" is the testimony given by Hopkins attime of trial. Hopkins testified thathe intended to dispose of the .22 caliber pistol because he was told by the defendant, Donald Warren, that the pistol was unregistered and perhaps illegal. heref fore, Hopkins contends he did not aidDonald Warren in suppressing evidence material to a homicide investigation; rather ~opkins contends his only intentwas todispose of an unregistered gun. If the jury believed that this was actually defendant's

reason for disposing of the pistol, the jury would necessarily have acquitted the defendant, Donald Warren, because he was charged with suppressing evidence ina homicide investigation.The jury obviously chose todisbelieve the factof "no registration" asbeing the reason for disposal of the weapon. If Hopkins' testimony could be considered therewere /from then factswhich the jury could infer intent to suppress material evidence ina homicide investigation. Atthe time Hopkins claimed defendant, Donald Warren, delivered the .22 caliber weapon tohim with instructions to dispose of same, both Hopkins and defendant knew Ray Warren, defendant's son,

was injail and that a homicide investigationwas being conducted. The jury inferred from these circumstances that defendant, having thisknowledge, intended to dispose of the .22 caliber weapon so that it could not be used 

### as evidence to convict his son. However, this same inference would necessarily have to be drawn about the motives of Hopkins. If twelve reasonable minds inferred from the evidence that defendant, Donald Warren, intended to suppress the weapon because itwas potential evidence ina homicide case, those

same twelve reasonable minds would have to infer that the

same intent existed for Norman Hopkins. This inference would necessarily make Hopkins an accomplice as a matter of law. We have carefully examined this record todetermine if there was any corroboration to support the testimony of Norman Hopkins. This case presents a perfect illustration of why an accomplice's testimony must be corroborated. Without corroboration, an innocent man could be convicted by the testimony of one with a strong motive for seeing that such a conviction occurred. Norman Hopkins had opportunity for access to the son, Ray Warren, following the shooting. Had Ray Warren disposed of the .22 caliber pistol through Norman Hopkins, Hopkins could later exonerate himself and convict the father, Donald Warren, simply by relating thestorywhich was given under oath inthis case. In order to corroborate the testimony of Hopkins, it

was necessary for the state to show that the .22 caliber weapon could be traced from the homicide scene back to the Warren residence, where defendant, Donald Warren, would have

access to the weapon. The statewas able to show that the gun was atthe residence prior to the alleged homicide. Of course, if the gun was owned by Ray Warren, itmost likely would have been athis residence. However, the critical inquirymust be directed toward 

### its location after the shooting. There was absolutely no corroborative evidence, either director circumstantial, which would provide a basis for finding that the weapon traveled from the alleged homicide scene to theWarren residence. The statecontends that the presence of Ray Warren's vehicle atthe Warren residence several hours after the shooting occurred, tends toprovide corroboration. This evidence only proves thatRay Warren may have returned to his residence following the shooting, but itdoes not prove the location of the weapon. It Seems probable that Ray Warren may have disposed of the weapon prior to returning his vehicle to the Warren residence. It seems implausible thatWarren would have taken the weapon to his home where police would most likely conduct a search. In fact, such a searchwas conducted several days later and no .22 caliber pistol was found. Atthe timeof the search, a spare clipfor the .22 caliber pistol was found in the glove compartment of an automobile owned and driven by Joy Warren, wife of the defendant. The stateargues that thisprovides corroboration. However, thepresence of a spare cliponly tends toprovethat the .22 caliber pistol was on the premises atsome time. The criticalquestion is not whether the subject pistol belonged to Ray Warren or whether it had been atthe Warren residence on prior occasions; the determinative question iswhether there is any evidence, other than Hopkins' testimony, to show that the weapon moved from the alleged homicide scene back to the Warren residence. Wecan find no evidence inthe record to corroborate Hopkins' testimony that the defendant, Donald Warren, was ever inpossession of the .22 caliber pistol following the shooting of August 14, 1979.Section 46-16-213, MCA, sets forth the requirement of corroboration for accomplice testimony. It states: "A conviction cannot be had on the testimony of one responsible

or legally accountable for the same offense 

# . . . unless the testimony is corroborated 

# . .

# ." The statuterequires that the testimony be corroborated by independent evidence tending to connect the defendant with the commission of the Mont. offense. In Statev. Kemp (1979), - 

## , 597 P.2d 96, 36 St.Rep. 1215, thisCourt discussed the character, scope and sufficiency of corroborating evidence: "To be sufficient, corroborating evidence must show more than that a crime was infact committed or the circumstances of itscommission. (Citationomitted.) Itmust raisemore than a suspicion of the defendant's involvement in, or opportunity to commit, the crime charged. (Citationomitted.) But corroborative evidence need not be sufficient, by itself, to support a defendant's conviction or even tomake out a prima facie case against him. (Citationomitted.) Corroborating evidence may be circumstantial (citation omitted) and can come from the defendant or his witnesses.

### " (Citationomitted.) In the case atbar, only Hopkins' testimony established the defendant's action in transferring the pistol. Therefore, as a matter of law, there was no corroborating evidence to support a conviction.In ruling on the defendant's motion for a judgment notwithstanding the verdict, or in the alternative for a new trial, the lower court stated: 

# ".

. . and thatwas the only testimony about the gun--was Hopkins. I was inhopes that this would be incorroboration. I was inhopes that this Allore would testify, but that can stillbe done



# ... "In any event, that's the decision of thisCourt, and therewillbe a new trial." These statements show that the lower court substantially agreed with the proposition thatNorman Hopkins was an accomplice and that his testimony was not corroborated. However, the lower court indicates that the state's failure topresent sufficient corroborating evidence could be cured perhaps ata second trial. Such action places the defendant indouble jeopardy and 

### isnot constitutionallypermissible. Burks v. United States (1978), 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1. InBurks the United States Supreme Court held that "[tlheDouble Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed tomuster in the first proceeding." 437 U.S. at 11, 98 S.Ct. at2147, 57 L.Ed.2d at 9. This holding was limited to situations where a reversal of a lower court determinationwas necessitated because of evidentiary insufficiency, not because of trial error. In the case atbar, this Court is faced with the precise problem of evidentiary insufficiency. Wehave determined that Norman Hopkins' testimony renders him an accomplice of the defendant as a matter of law and that the state failed to present sufficient evidence corroborating Hopkins' testimony. Therefore, no evidence exists to support a conviction of the -defendant. Allowing the statea second chance tobuttress its case would expressly violate the principle espoused in Burks v. United States, supra. This Court has also held that a new trial cannot be granted where the evidence adduced atthe firsttrial is insufficient to support a conviction. State

### v. Johnson (1978), 177Mont. 182, 188, 580 P.2d 1387, 1390; State

### v. Langan (19681, 151Mont. 558, 568, 445 P.2d 565, 570. Thus, the question becomes: What is the proper remedy? In Burks v. United States, supra, the United States Supreme Court stated that,

# ".

.

# . Since

### we hold today that the Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient, the only 'just' remedy available for that court is the direction of a judgment of acquittal." 437 U.S. at18, 98 S.Ct. at2150-2151, 57 L.Ed.2d at14. The Supreme Court further stated that such action was the proper remedy regardless of whether the defendant

# ".



# .. sought a new trial as

one of his remedies, or even as the soleremedy." 437 U.S. at17, 98 S.Ct. at2150, 57 L.Ed.2d at13. The court concluded by stating,

# ".

. . To the extent that our prior decisions suggest thatby moving for a new trial, a defendant waives his right to a judgment of acquittal on the basis of evidentiary insufficiency, those cases are overruled." 437 U.S. at18, 98 S.Ct. at21-51, 57 L.Ed.2d at14. This Court adopts the principles established by the United States Supreme Court inBurks v. United States, supra; therefore, a judgment of acquittal is theproper remedy in this case. In concl~usion, we find thatNorman Hopkins was an accomplice asa matter of law and thatbefore this case could be submitted to a jury, 

### itwas incumbent 

### upon thestatetoproduce independent corroborating evidence. We find that the statefailed toproduce sufficient evidence of corroboration necessary for creation of a jury issue and that, therefore, the state's case failsasa matter of law. This case isremanded to the DistrictCourt with directions to enter a judgment of acquittal for defendant, Donald Warren.

We concur:

Mr. Justice Daniel J. Shea dissents and 

### willfilea written dissent later.No. 80-335



## ----------

DISSENT OF MR. JUSTICE DANIEL J. SHEA

STATE OF MONTANA, Plaintiff and Appellant,

VS. DONALD ANDERSON WARREN, Defendant and Respondent.

DATED: June 5, 1981

### Mr. JusticeDaniel J. 

### Shea dissenting:

Iwould reverse the District Court ruling granting a

new trial and affirm the conviction. Themajority is clearly in error on two fundamental conclusions. First,Norman Hopkins was not, as the majority has concluded,an accomplice as a matter of law. Therefore, his testimony was not subject to the rigid rules governing corroboration of accomplice testimony. Second,assuming that Norman Hopkins was an accomplice,his testimonywas sufficiently corroboratedby independent evidence,and therefore, his conviction must be affirmed. Themajority makes two particularly glaring misstatements which seem to be the basis for its conclusion that Norman Hopkinswas an accomplice as a matter of law. First, the majority reasons that if the jury believed thatNorman Hopkins got rid of the pistol because he was told by defendant Donald Warren that it was unregistered, that the jurymust also have believed that defendant Donald Warren gave the gun to ~opkins to get rid of because itwas unregistered. That is a totally unfounded conclusion, and certainlynot one the jurywas required tomake based on the evidence presented in this case. There is not a shred of evidence in the record to show that Norman Hopkins knewhe was getting rid of a murder weapon when defendant Donald Warren asked him to dispose of the pistol. There is, on the other hand, circumstantial evidence from which the jury could reasonably believe that defendant Donald Warren knew itwas a murder weapon, or at least knew that it might be a murder weapon, when he gave it to Norman Hopkins to dispose of. The evidence to support the jury's conclusion as to defendantDonald Warren's intent does not come from thetestimony of Norman Hopkins. Rather, 

### it comes from the testimony of Captain Charles Hensley of the Billings City Police Department, and A1Ketterling of the Yellowstone County Sheriff's Eepartment. It also comes from the reasonable inference a jury could make inconcluding that Ray Warren drove his car almost directly from themurder scene tothehome of Donald Warren, and that Ray Warren leftthe pistol atthe Donald Warren home. Second, themajority isclearlywrong inconcluding that the jury was required toinfer thatNorman Hopkins intended todispose of a murder weapon if thejury inferred thatdefendant Donald Warren intended todispose of 

### a murder weapon. The opinion states: 

# ".

. . If twelve reasonable minds inferred from the evidence thatdefendant, Donald Warren, intended to suppress theweapon because it wastwelve potential evidence in

### a homicide 

### case, those 

### same/ reasonable minds would have toinfer that the same intentexisted forNorman Hopkins. This inferencewould necessarily make Hopkins an accomplice as a matter of law." This conclusion rests on an assumption that Norman Hopkins knew exactlywhat defendant Donald Warren knew concerning the statusof the investigation and that the police 

### were looking for a -22 caliber pistol or a .22 caliber weapon astheprobable murder weapon. The evidence 

### is tothe contrary. The uncontradicted testimony of Norman Hopkins 

### is thathe didnot know he was disposing of a murder weapon. There 

### isnot 

### a shred of evidence inthe trialrecord that Hopkins did know that defendant Donald Warren had handed him a murder weapon todispose of. This being so, why would the jury have toinfer thatNorman Hopkins must have had the intent todispose of themurder weapon if the jury inferred

on the basis of the entire evidence inthe record, that defendant Donald Warren had such intent? There 

### is directtestimony inthe record thatdefendant Donald Warren was toldby Captain Hensley that thepolice

### were looking for

a .22 caliber automatic pistol oratleast 

### a .22 caliber weapon. Further, defendant Donald Warren had additional knowledge concerning the status of the investigation and the focusing of the police on his son Ray Warren, 

### as the suspect. The record does not show thatNorman Hopkins had thisknowledge. The jury was entitled toconvict defendant Donald Warren on thebasis of thatknowledge and of the entire circumstances surrounding the disposal of thepistol. I failtounderstand thereasoning of themajority in concluding (withoutsupport inthe record) thatNorman Hopkins

was an accomplice 

### as a matter of law. If he was an accomplice



### as a matter of 

### law, the trialcourt

### was required to so instruct thejury. But Hopkins could not be an accomplice as a matter of law unless thejury chose todisbelieve his testimony and therefore toinfer that contrary tohis testimony, Hopkins didknow he was receiving a murder weapon from defendant Donald Warren and that Hopkins had the intenttodispose of

a murder weapon. There 

### is certainlyevidence inthe record through thedirect testimony of Norman Hopkins by which the jury could believe thatNorman Hopkins didnot know he was receiving and disposing of a murder weapon. The jury could reach a contrary conclusion only if they chose not tobelieve Norman Hopkins. The jury chose tobelieve him. Once the jury chose tobelieve Hopkins, he 

### was not an accomplice, and therefore his testimony didnot have tobe judged by the standards applicable toaccomplice testimony. Furthermore, even assuming thatNorman Hopkins was an accomplice because he knew he was receiving and disposing of

a murder weapon handed tohim by defendant Donald Warren, his testimony was sufficientlycorroborated, and therefore the

### conviction should stillbe affirmed. In concluding that Hopkins' testimonywas uncorroborated, the majority erroneously focuses on the necessity of demonstrating that defendant Donald Warren received the murder weapon from his son,RayWarren. Although the evidence certainly circumstantially points to that conclusion, it is not necessary that defendant Donald Warren received that gun from Ray Warren. All that is necessary is thatwhen defendant Donald Warren gave it to Norman Hopkins, he knew orwas suspicious that it was the murder weapon and therefore that itwas part of the continuing investigationof themurder of Carl Ray Malcom. The circumstantial evidence points clearly to that conclusion. This evidence is sufficient to lead a jury to conclude that Norman Hopkins received themurder weapon from defendantDonald Warren. Themajority opinion is long on the law (althoughmisapplied) and short on the facts. For this reason, I set out a detailed factual statementbased on the trial record before the jury. Before doing so, itwould firstbe helpful to set out the basic criminal charge that the Statewas required to prove in this case. The statute under which defendant is charged (referred to but not analyzed by the majority), section 45-7-207,MCA, requires, in the context of this case, that the State prove three essential facts. First, the Statemust prove that the defendant,DonaldWarren,had knowledge of an impending investigationorproceeding. Second, the State must prove that defendant Donald Warren took action to conceal physical evidence (thepistol) pertinent to the investigation or proceeding. Third, the State must prove that defendant Donald Warren had the intent to purposely impair the availability of physical evidence (the .22 caliber pistol). TheStateproved each of these facts, The testimony of Norman Hopkins was required only to show that 

### it was the defendant, Donald Warren, who handed the pistol toHopkins and asked him todispose of 

### it. Defendant's intent indoing so

### was not proved through Hopkins, for Hopkins did not know then thathe had such intent. Rather, 

### it was proved through other testimony by which thejury had every right toinfer thatdefendant Donald Warren intended todispose of an important item of evidence. NORMAN HOPKINS--HIS RELATIONSHIP TO THE DONALD WARREN FAMILY. HIS FAMILIARITY WITH THE .22 CALIBER PISTOL AND ITS AMMUNITION CLIPS Norman Hopkins and KimWarren went together for almost

a year, and during a good part of that 

### time,they lived together. During this

### time, Hopkins also got toknow the defendant, Don Warren, Ray Warren, defendant's son, and Joy Warren, defendant's wife. Other than Kim, he knew Don Warren better than any of the other family members. During thisperiod of 

### time, he saw Ray Warren perhaps on an average of once a month. During this

### time, however, Norman Hopkins became familiarwith the .22 caliber pistolwhich 

### later turned out tobe themurder weapon. On at least two occasions inFebruary 1979, Norman Hopkins and Ray Warren went coyote hunting, and Ray Warren used the pistol involved. On one occasion, Norman Hopkins shot a coyote with 

### it. On another occasion, they shot 

### a fox and a coyote. On each of these occasions, therewere two clips for thepistol. Norman Hopkins had one other occasion tosee the pistol before 

### it was turned over tohim by Don Warren on August 15, 1979, todispose of. During June 1979, 

### a truck driver's strikebroke out inthis state (as

### it did throughout the nation). Norman

### Hopkins, a truck driver,who then had a route from Laurel, Montana, to St. Regis, Montana (aroute which took about 26 

### hours round trip),was concerned about the violence and called up defendant Don Warren and asked him if he could borrow a gun to protect himself. He went over to Don Warren's house and Don Warren gave him the pistol involved here--a .22 

### caliber Stoeger-Luger semi-automatic. He gave him two clips for the pistol. Norman Hopkins had the pistol for about a week and then returned it to defendant Don Warren. This was the last time Norman Hopkins saw the pistol until Don Warren asked him to dispose of it onAugust 15, 1979. THEARREST OF RAY 

### WARREN ON MURDER CHARGES Earl Ray Malcom was murdered close to midnight on August 14, 1979. Less than four hours later,

### Ray Warren and another person were arrested for the murder. A neighbor living next door to the victim, heard shots, ran out and obtained a good description of an individual running into

a get-away car, and obtained a good description of the getaway car. Steve Gillis, a neighbor sharing a common driveway with the murder victim (EarlRay Malcom) was home watching television in the late evening of August 14 and early morning hours ofAugust 15. He heard a rapid series of shots (later thought them to be .22 

### shots because of his own familiarity with using a .22 

### in target practice), and saw aman running toward a white Plymouth station wagon which had both left doors smashed in. 

### He ran out to see what the shootingwas about and heard glass falling out of the window of the getaway car. He was then only about ten to fifteen feet away from the get-away car. He called the police, gave a description

### of the get-away.car to them, and also a description of the person he saw running from the scene to get into the car.

(Although the record is not entirely clear on this, it appears that it was based on this information that Ray Warren was arrested a little later in the morning on charges of homicide.) It so happened that at the approximate time of the murder, deputy-sheriff A1 Ketterling was visiting the home of defendant Don Warren. He had known the Don Warren family for about fiveyears, and although on duty,was paying the family a social call. Itwas shortly beforemidnight onAugust 14. He was familiarwith the Ray Warren vehicle. He noticed then that the Ray Warren vehicle was not parked at the home. After leaving the Warren home, he learned of the murder and obtained the description of the get-away car, a description fitting Ray Warren's Plymouth stationwagon with all the body damage. Just a short time later (about1:30 or 2:00 a.m.), he passed the Don Warren home and noticed that Ray Warren's

car was parked in front. He called another deputy to get his opinion as towhether thiswas the get-away car, and then called the city police department to tell them the get-away

car had possibly been found. A short while later,Deputy Ketterling went to the Don Warren home with Captain Hensley of the Billings Police Department. Ketterling was not a part of the official investigationteam and he went primarily as a friend of the Don

### Warren family to tell them about Ray Warren's possible involvement in themurder. Captain Charles Hensley was in charge of themurder investigation. THE TESTIMONYOF CAPTAIN CHARLES HENSLEY After the homicide had been reported, Captain Charles Hensley, a veteran then of almost 19 years on the Billings

### police department, 13 years as a detective, took charge of the investigation and first went to the murder scene. Among other things, he saw empty .22 

### cal-ibershell casings scattered around themurder scene, he saw tire tracks, and broken glass scattered around the scene. Uniformed officers and two detectiveswere also investigating at the scene. By this time, the police had the description of the get-away

car and of Ray Warren (given to them by Steven Gillis). Captain Hensley returned to the police station to see if the suspects had been located. On his arrival,he found that the suspects were in custody and the police were questioning them. He stayed at the police station for about 45

### minutes and then drove to the Donald Warren home He wanted to check out the Ray Warren car,which had by then reported back at the Donald Warren home. He also wanted to tell Donald Warren that they

were looking for a .22 

### caliberweapon. Deputy Ketterling went to the door, summoned Donald Warren, and then Captain Hensley explained to him that there had been a murder and that Ray Warren was a suspect and was in custody. He also explained that the police were looking forphysical evidence relating to the homicide. Captain Hensley specifically told Donald Warren that thevictim had been killedwith a .22 

### caliber gun, and that he was looking for a .22 

### caliber automatic pistol or any .22 

### caliberweapon. He also told Donald Warren that he wanted to check the Plymouth station wagon to see if ithad been recently driven. Donald Warren replied that the only .22 

### weapon they 

## ---- had in the housewas a rifle,but that Captain Hensley was 

### --- -- -- 

### welcome to take this gun and eliminate it by ballistic tests. 

## ----- -- Donald Warren also told Captain Hensley that he (Warren)had 

## -- -- - once been a police officer and he knew that Captain Hensley --- ----- 

### was just doing his job. 

### -----Captain Hensley also inspected the Plymouth station wagon parked by the Donald Warren home. He found the engine 

### stillwarm, indicating that

### it had recentlybeen driven. He alsofound that the leftrearwheel orfront wheel had driven through a mud muddle and there

### was a damp mark on the ground indicatingthe car had gone through and lefta track on dry ground leading up tothe vehicle. Although he didnot go inside the car, he noticed, among other things, that therewas broken glass in the car. CONNECTION OF RAY WARREN TO A PISTOL ON AUGUST 14, 1979 Two young men, who knew Ray Warren quite

### well, saw Warren inhis 

### car on two occasions on August 14. The first 

### timewas about 7:30 p.m. and the second 

### timewas about 11:30

or 11:45 p.m., probably within 15or 20 minutes of themurder. Both Robert Corey Nevins (age 19) and Leo Harshfield (age 17)

saw Ray Warren parked atthe Big Scoop icecream parlor, just blocks away from themurder scene, and no more than 15or 20 minutes before themurder. Ray warren drove hiswhite Plymouth stationwagon intothe parking lotand parked 

### it rightnext tothevehicle inwhich Nevins and Harshfield



### wereparked. Both young men knew Ray Warren, and Nevins testified that he had known Warren for about two years. Ray Warren and his passenger 

### were sitting inthe station wagon and Nevins and Harshfield went over totalk tothem. Harshfield was on thepassenger side of the stationwagon just

a few feet away from the car, and Nevins, was on the driver's sideof the stationwagon, just a few feet away from the car. Ray Warren 

### was sitting inthe driver's seat, the driver's door was open, and he had his legs sticking out. Both Nevins and Harshfield noticed thatnext toRay Warren was a pistol, what appeared tothem tobe an automaticpistol.

### Thesepeople talked for a while and thenNevins and Harshfield left,Nevins taking Harshfield home. Ray Warren and his passenger were then still in the parking lot. Fifteen or twenty minutes later,within blocks from the Big Scoop ice creamparlor, Earl Ray Malcom was murdered. INVOLVEMENTOF 

### NORMAN HOPKINS IN DISPOSING OF THE PISTOL ONAUGUST 15, 1979 Norman Hopkins arrived home at about 6:30 

### a.m. The record does not disclose whether or not he had just completed his round-trip truck route from Billings to St. Regis, Montana, and back to Billings. His girlfriend, Kim Warren was there. She told him that her brother Ray Warren, had been arrested for homicide. The record is silent as towhether she told him any more than this orwhether she even knewmore about the arrest that this. We must, therefore,assume that she told him nothing else. At approximately 3:30 

### p.m., Norman Hopkins and Kim Warren drove to the Donald Warren home. On their arrival, Donald Warren mentioned that he was trying to raise bail so he could get his son Ray Warren out of jail. Shortly after this bail discussion, Donald Warren told Norman Hopkins that he had a .22 pistol he wanted Hopkins to dispose of. He told Hopkins that he had purchased the gun at Colstrip some time ago, that itwas unregistered, that he didn't knowwhere the gun had come from originally, and that he didn't want the police to find the pistol in the house. Donald Warren and Norman Hopkins went downstairs to the basement, and Warren pulled the gun from inside a poof pillow (a big fluffy pillow used as a chair) and handed it to Hopkins. (Thiswas the same pistol that Norman Hopkins and Ray Warren had used previouslywhen they went coyote

### hunting and the same one that Donald Warren had given to Hopkins to use during the truck driver's strike.) The pistol was in a holster and therewas only one ammunition clip for the pistol. Joy Warren, the wife of Donald Warren, then came in with a pair of levis in her hands towrap the pistol in. Defendant Don Warren took the levis from his wife and went downstairs. Hopkins then laid the pistol in the levis, and wrapped it. Donald Warren suggested to Hopkins that IIopkins should throw thepistol in the riverwhen Hopkins drove his truck route to St. Regis, Montana, so that the pistol should disappear and never showup. Hopkins left almost immediately. Neither the defendant,Donald Warren, nor his wife, Joy Warren, nor his daughter,Kim Warren, testified to this transaction. Therefore, the only testimony as to this entire transaction is the testimony of Norman Hopkins. His testimony is uncontradicted and unimpeached. The jury clearly had a right to believe Norman Hopkins. CONTACT OF NORMAN HOPKINS WITH THE DONALD WARREN FAMILY AFTER AUGUST 15AND BEFORE HOPKINS TURNED THE PISTOL OVER TO THE COUNTYATTORNEY Hopkins keptpossession of the pistol from the time he received it on August 15 until he turned it over to the county attorney's office on December 3, 

### 1979. During this time, he talked to Donald Warren only once. About two weeks after he received the pistol from Donald Warren (whichwould be 

### the end of August or the first part of September), Hopkins telephoned Donald Warren at his home. Hopkins told Warren that he had disposed of the pistol

### but he did not tell Warren what he did with it and Warren did not ask. However, Hopkins got the clearmessage from Donald Warren that somethingdrastic would happen to him if the pistol should ever turn up. About themiddle of October 1979,Hopkins broke off his relationship with Kim Warren. The implicationof the majority opinion is that Kim Warren broke off her relationship with Hopkins and that in retaliationHopkins may have had the desire to frameDonald Warren for disposing of the pistol. There is not a scrap of evidence in the record to support this conclusion. Further, the uncontradicted testimony of Norman Hopkins is that he did not want to see Kim Warren any longer because he had met another woman and planned tomarry her. THE CIRCUMSTANCES OF 

### NORMAN HOPKINS' TURNING THE PISTOL OVER TO THE COUNTYATTORNEY'S OFFICE The circumstances leading to Hopkins' turning the pistol

over to the Yellowstone County Attorney's Office are revealing. As could be expected, Ray Warren was charged with themurder of Earl Ray Malcom, and his trialwas set for mid-December 1979. The Statewas, however,proceeding to trial without the murder weapon. The record does not clearly reveal whether Hopkins knewby news reports that the murder weapon had not been recovered,but the implication is that he learned by the news reports that themurder weapon had not been recovered. So, in early December 1979,he telephoned the county attorney's office and asked what caliber gun was used in the murder. On learning the caliber, Hopkins made arrangementswith the county attorney's office to turn the .22 

### caliber semi-automatic pistol over to the State. Hopkins arranged tomeet withmembers 

### of the 

### county attorney's staff at Mr. D's restaurant in Billings. Hopkins

### arrived there with his attorney, and Howard Corbin (the prosecutor in this case) and Jeanne Wilson, from the county attorney's staff were present. They talked at the restaurant for about an hour and then Hopkinswent to his car, retrieved thepistol, and turned it over to the county attorney's office. He also durned over a holster for the pistol and an ammunition clip for the pistol. On learning that themurder weapon had been found, the defendant in themurder charge,Ray Warren, fled and still has not been apprehended. Tests on the pistol showed that itwas the weapon used in the murder of Earl Ray Malcom. Based on Norman Hopkins' disclosures,Donald Warren was chargedwith tamperingwith evidence. At his trial on this charge, an F.B.I. agent, after Hopkins and a member of the county attorney's staff had identified the pistol, testified that the .22 caliberpistol was the murder weapon. SUMMARY OF THE EVIDENCE The pistol which Norman Hopkins turned over to the county attorney's office turned out to be themurder weapon. The evidence does not disclose how the pistol got from the murder sceneback to Donald Warren's home, but somehow it got there. The chances are that Ray Warren brought it there. Ray Warren's carwas identified as being at the murder scene, in fact, itwas identified as the get-away car. Further, at the time of themurder,A1 Ketterling was visiting the Donald Warren home and noticed that the Ray Warren carwas not there. But an hour and a half later, after Ketterling had obtained a description of the get-away car, he noticed that Ray Warren's carwas parked at the Donald Warren home. From this evidence, it ismost reasonable for the jury to assumethat Ray Warren returned his car tothe Donald Warren home, and it ismost reasonable toalso assume that he brought themurder weapon withhim. But it 

### isnot necessary that Ray Warren personally brought thegun home. It 

### isonly necessary todetermine that someone brought the gun tothe Donald Warren home afterthe murder. The evidence would give the jury no problem in inferring this fact. Further, Donald Warren knew thatRay Warren's carhad been connected to themurder scene. For, by the timeCaptain Hensley and deputy ~etterling came tothe Donald Warren home, Ray Warren had already been arrested for the homicide. Both Ketterling and Captain Hensley told Donald Warren this. Captain Hensley also told Donald Warren that he wanted to inspect Ray Warren's car,then parked atthe house, and he alsotold Donald Warren that the police were looking for,

as themurder weapon, a .22 caliber automaticpistol or any .22 caliber gun. Donald Warren replied that the only .22 was gun therewas,/%.22 caliber rifleand that the police

### were welcome totake 

### it and conduct ballistic

### tests. This is the evidence of which Donald Warren had directknowledge. On the other hand, not a scrapof evidence in the trialrecord shows thatNorman Hopkins knew that Ray Warren's carhad been connected tothemurder scene orthat themurder weapon was

or atleastwas suspected tobe a .22 caliber gun. Assuming thejuries believed Captain Hensley, and they had a right todo so, they could infer that Donald Warren liedwhen he toldCaptain Hensley that the only .22 caliber gun inthehouse was a rifle. Norman Hopkins testified to his own knowledge of the .22 caliber pistol involved: he used it when he and Ray Warren went coyote hunting on two occasions, and on both occasions, there

### were two ammunition clips for thepistol. Further, on another occasion

### Hopkins talked directly to Donald Warren and asked to borrow

a gun to takewith him on his truck route to St. Regis. Donald Warren loaned him the .22caliber pistol involved, and also gave him two ammunition clips. Based on this testimony, and his testimony that he received the pistol from Donald Warren onAugust 15 to dispose of because itwas

an unregistered pistol, the jurywas entitled to believe that Donald Warren lied to Captain Hensley when he told him that only a .22 caliber riflewas in the house. Obviously, then, the jury could believe, and was entitled to believe, that Donald Warren did have knowledge that the .22 caliber pistol was in his home and that itwas connected to the murder. Two days after the murder, the Donald Warren home and automobileswere searched under the authority of a search warrant. No murder weapon was found. The police did find

a .22 caliber rifle and they also found a .22 caliber ammunition clipwith 

### 11 live rounds in it, in Joy Warren's

car. This ammunition clip did not fit the rifle,but it did fit the .22 caliberpistol later identified as themurder weapon. This ammunition clip corroborated Norman Hopkins' testimony that on all three occasions he had used the pistol therewere two ammunition clips, but thatwhen he received it from Donald Warren onAugust 15, there was only one ammunition clip. Further, the jury could also concludeby this testimony and evidence thatDonald Warren had lied when he told Captain Hensley that the only .22 

### caliber gun around his home was a rifle. Themajoritymakes much of the fact that a 

### murder weapon was not foundwhen thehouse was searched (onAugust 17). That is not strange at all, however, since the State's theory of the case was, and the proof was, that Donald

### Warren had disposed of the pistol on August 15 by asking Norman Hopkins to get rid of it. That was the very idea. Donald Warren, a former policeman, knew that the police would search for themurder weapon and he did not want it there. Although he did not tell Norman Hopkins that the pistol was connected to the murder, he did tell Hopkins that hewanted him to get rid of it because he did not want the police to find it. What is strange, then, about the police not finding the murder weapon during the search of the house? We have, then; the uncontradicted testimony of Norman Hopkins telling the jury how he received the .22 

### caliber pistol and holster and ammunition clip from Donald Warren

onAugust 15. He testified unequivocally that he did not know it was connected to a murder when he received it from Donald Warren. He testified unequivocally that he still did not know that the pistol was connected when he called the county attorney's office on December 3 

### to ask the caliber of the murder weapon. Norman Hopkins was not an accomplice because he did not have the same knowledge that Donald Warren had concerning thepistol or concerning the details of the police investigationconnecting Ray Warren to the murder. The jurywas entitled to believe his testimony. Because of the FifthAmendment privilege surrounding Donald Warren, the jury could not infer anything by Donald Warren's failure to testify. But the same is not true of the othermembers of his family present when Hopkins received the pistol from Donald Warren. Joy Warren, Donald Warren's wife,may have invoked the husband-wife privilege if the State called her to testify. But certainly the defendant Donald Warren could have called her if he felt she could help his cause. No privilege was involvedwith Kim Warren.

### The prosecution sought to add her as a witness,but the defense resisted, and ultimately, the Statedropped its request. But if the defense felt she could contradict Hopkins' version of what happened, nothing prevented the defense from calling Kim Warren as a witness. Once Hopkins testified to the details of the conversations, the prosecution was entitled to proceed on the assumption that any additional testimony from either Joy Warren or Kim Warren would be cumulative. The State needed

no corroboration because the very nature of Hopkins' testimony showed that he was not an accomplice. Therefore, if there

were any discrepancies in his testimony, or if his testimony

was a complete fabrication in the estimation of the defense, the defense had available as witnesses, Joy Warren, defendant's wife, and Kim Warren, defendant's daughter. The defense called neither. Thesewitnesses were more available to the defense than they were to the prosecution,and the jury could infer that their testimony would not be helpful to the defendant,Donald Warren. Further, the jury could believe Norman Hopkins--after all, his testimony was uncontradicted and unimpeached. The testimony of Norman Hopkins, in addition to the other evidence produced, was sufficient for the jury to convictDonald Warren of tamperingwith evidence. I see

no trial errors thatwould dictate a new trial. heref fore,