No. 80-335 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

STATE OF MONTANA, 

Plaintiff and Appellant, 

VS. 

DONALD ANDERSON WARREN, 

Defendant and Respondent. 

Appeal from: District Court 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: MAY 2 O 1981 
Mr. 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 

trial was granted. 

The defendant in this case, Donald Warren, is the 

father of Ray Warren who was arrested on a deliberate homicide 

charge arising out of a shooting which occurred August 15, 

1979. The defendant hasbeen charged with 

suppressing material evidence, specifically a .22 caliber 

pistol, in connection with the investigation of his son on 

the deliberate homicide charge. 

The basis of the case against defendant, Donald Warren, 

stems from the testimony of Norman Hopkins. Hopkins, who 

lived with the defendant's daughter, Kim Warren, and was a 

friend of the Warren family, testified that he had received 

a .22 caliber pistol from Donald Warren the afternoon following 

the arrest of Ray Warren on deliberate homicide charges. 

Hopkins testified that he recognized the pistol as being one 

that Ray 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 that he did not want the police to find it in 

the Warren house because of its uncertain legality. Hopkins 

testified that he was instructed by defendant, Donald Warren, 

to dispose of the gun, not because 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, August 
15, 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 Kim Warren. Ray Warren, after 

posting bond, disappeared and has never been tried on the 

deliberate homicide charge. 

Both the state and the defendant raised numerous issues 

for review. Three issues are dispositive: (1) Was Hopkins, 

as a matter of law, an accomplice? (2) If Hopkins was an 

accomplice, as a matter of law, then was there any evidence 

to corroborate his testimony? (3) Did the District Court err 

in granting 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 direct evidence bearing on the issues of defendant's intent and Hopkins being an "accomplice" is the 

testimony given by Hopkins at time of trial. Hopkins testified that he 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 aid Donald Warren in suppressing 

evidence material to a homicide investigation; rather ~opkins 

contends his only intent was to dispose 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 in a homicide investigation. 
The jury obviously chose to disbelieve the fact of "no 

registration" as being the reason for disposal of the weapon. 

If Hopkins' testimony could be considered there were 

/from 

then facts which the jury could infer intent to suppress 

material evidence in a homicide investigation. At the time 

Hopkins claimed defendant, Donald Warren, delivered the .22 

caliber weapon to him with instructions to dispose of same, 

both Hopkins and defendant knew Ray Warren, defendant's son, 

was in jail and that a homicide investigation was being 

conducted. The jury inferred from these circumstances that 

defendant, having this knowledge, 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 it was potential evidence in a 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 to determine 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 the 
story which was given under oath in this 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 state was able to show that the 

gun was at the residence prior to the alleged homicide. Of 

course, if the gun was owned by Ray Warren, it most likely 

would have been at his residence. However, the critical 

inquiry must be directed toward its location after the 

shooting. There was absolutely no corroborative evidence, 

either direct or circumstantial, which would provide a basis 

for finding that the weapon traveled from the alleged homicide scene to the Warren residence. 

The state contends that the presence of Ray Warren's 

vehicle at the Warren residence several hours after the 

shooting occurred, tends to provide corroboration. This 

evidence only proves that Ray Warren may have returned to 

his residence following the shooting, but it does 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 

that Warren would have taken the weapon to his home where 

police would most likely conduct a search. In fact, such a 

search was conducted several days later and no .22 caliber 

pistol was found. 

At the time of the search, a spare clip for the .22 

caliber pistol was found in the glove compartment of an 

automobile owned and driven by Joy Warren, wife of the 

defendant. The state argues that this provides corroboration. 

However, the presence of a spare clip only tends to prove 
that the .22 caliber pistol was on the premises at some 

time. The critical question is not whether the subject 

pistol belonged to Ray Warren or whether it had been at the 

Warren residence on prior occasions; the determinative 

question is whether there is any evidence, other than Hopkins' 

testimony, to show that the weapon moved from the alleged 

homicide scene back to the Warren residence. We can find no 

evidence in the record to corroborate Hopkins' testimony 

that the defendant, Donald Warren, was ever in possession 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 statute requires that 

the testimony be corroborated by independent evidence tending to connect the defendant with the commission of the 

offense. In State v. Kemp (1979), Mont. - , 597 P.2d 96, 

36 St.Rep. 1215, this Court discussed the character, scope 

and sufficiency of corroborating evidence: 

"To be sufficient, corroborating evidence must show 

more than that a crime was in fact committed or the 

circumstances of its commission. (Citation omitted. ) 

It must raise more than a suspicion of the defendant's 

involvement in, or opportunity to commit, the crime 

charged. (Citation omitted.) But corroborative evidence need not be sufficient, by itself, to support 

a defendant's conviction or even to make out a prima 

facie case against him. (Citation omitted. ) Corroborating evidence may be circumstantial (citation 

omitted) and can come from the defendant or his 

witnesses. " (Citation omitted. ) 

In the case at bar, 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 that was the only testimony about the 

gun--was Hopkins. I was in hopes that this would 

be in corroboration. I was in hopes that this 

Allore would testify, but that can still be done 

... 

"In any event, that's the decision of this Court, 

and there will be a new trial." 

These statements show that the lower court substantially 

agreed with the proposition that Norman Hopkins was an 

accomplice and that his testimony was not corroborated. 

However, the lower court indicates that the state's failure 

to present sufficient corroborating evidence could be cured 

perhaps at a second trial. Such action places the defendant 

in double jeopardy and is not constitutionally permissible. 

Burks v. United States (1978), 437 U.S. 1, 98 S.Ct. 2141, 57 

L.Ed.2d 1. 

In Burks the United States Supreme Court held that 

"[tlhe Double Jeopardy Clause forbids a second trial for the 

purpose of affording the prosecution another opportunity to 

supply evidence which it failed to muster in the first 

proceeding." 437 U.S. at 11, 98 S.Ct. at 2147, 57 L.Ed.2d at 

9. 

This holding was limited to situations where a reversal 

of a lower court determination was necessitated because of 

evidentiary insufficiency, not because of trial error. In 

the case at bar, this Court is faced with the precise problem 

of evidentiary insufficiency. We have 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 state a second chance to buttress 

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 at the first trial is 

insufficient to support a conviction. State v. Johnson 

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

Langan (19681, 151 Mont. 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. at 18, 98 

S.Ct. at 2150-2151, 57 L.Ed.2d at 14. 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 sole remedy." 437 U.S. 

at 17, 98 S.Ct. at 2150, 57 L.Ed.2d at 13. The court concluded by stating, ". . . To the extent that our prior 

decisions suggest that by 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. at 18, 98 S.Ct. at 21-51, 57 L.Ed.2d at 14. This Court 

adopts the principles established by the United States 

Supreme Court in Burks v. United States, supra; therefore, a 

judgment of acquittal is the proper remedy in this case. 

In concl~usion, we find that Norman Hopkins was an 

accomplice as a matter of law and that before this case 

could be submitted to a jury, it was incumbent upon the 
state to produce independent corroborating evidence. We 

find that the state failed to produce sufficient evidence of 

corroboration necessary for creation of a jury issue and 

that, therefore, the state's case fails as a matter of law. 

This case is remanded to the District Court with directions to enter a judgment of acquittal for defendant, Donald 

Warren. 

We concur: 

Mr. Justice Daniel J. Shea dissents and will file a 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. Justice Daniel J. Shea dissenting: 

I would reverse the District Court ruling granting a 

new trial and affirm the conviction. 

The majority 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 testimony was sufficiently 

corroborated by independent evidence, and therefore, his 

conviction must be affirmed. 

The majority makes two particularly glaring misstatements 

which seem to be the basis for its conclusion that Norman 

Hopkins was an accomplice as a matter of law. First, the 

majority reasons that if the jury believed that Norman Hopkins 

got rid of the pistol because he was told by defendant Donald 

Warren that it was unregistered, that the jury must also have 

believed that defendant Donald Warren gave the gun to ~opkins 

to get rid of because it was unregistered. That is a totally 

unfounded conclusion, and certainly not one the jury was 

required to make based on the evidence presented in this case. 

There is not a shred of evidence in the record to show that 

Norman Hopkins knew he 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 it was 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 

defendant Donald Warren's intent does not come from the 
testimony of Norman Hopkins. Rather, it comes from the 

testimony of Captain Charles Hensley of the Billings City 

Police Department, and A1 Ketterling of the Yellowstone 

County Sheriff's Eepartment. It also comes from the reasonable inference a jury could make in concluding that Ray 

Warren drove his car almost directly from the murder scene 

to the home of Donald Warren, and that Ray Warren left the 

pistol at the Donald Warren home. 

Second, the majority is clearly wrong in concluding 

that the jury was required to infer that Norman Hopkins 

intended to dispose of a murder weapon if the jury inferred 

that defendant Donald Warren intended to dispose of a murder 

weapon. The opinion states: 

". . . If twelve reasonable minds inferred from 

the evidence that defendant, Donald Warren, 

intended to suppress the weapon because it was twelve 

potential evidence in a homicide case, those same/ 

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." 

This conclusion rests on an assumption that Norman 

Hopkins knew exactly what defendant Donald Warren knew 

concerning the status of the investigation and that the 

police were looking for a -22 caliber pistol or a .22 

caliber weapon as the probable murder weapon. The evidence 

is to the contrary. The uncontradicted testimony of Norman 

Hopkins is that he did not know he was disposing of a murder 

weapon. There is not a shred of evidence in the trial record 

that Hopkins did know that defendant Donald Warren had handed 

him a murder weapon to dispose of. This being so, why would 

the jury have to infer that Norman Hopkins must have had the 

intent to dispose of the murder weapon if the jury inferred 

on the basis of the entire evidence in the record, that 

defendant Donald Warren had such intent? There is direct 
testimony in the record that defendant Donald Warren was 

told by Captain Hensley that the police were looking for 

a .22 caliber automatic pistol or at least 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 that Norman Hopkins had this knowledge. The jury was entitled to convict defendant Donald 

Warren on the basis of that knowledge and of the entire 

circumstances surrounding the disposal of the pistol. 

I fail to understand the reasoning of the majority in 

concluding (without support in the record) that Norman Hopkins 

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

as a matter of law, the trial court was required to so instruct 

the jury. But Hopkins could not be an accomplice as a matter 

of law unless the jury chose to disbelieve his testimony 

and therefore to infer that contrary to his testimony, Hopkins 

did know he was receiving a murder weapon from defendant 

Donald Warren and that Hopkins had the intent to dispose of 

a murder weapon. There is certainly evidence in the record 

through the direct testimony of Norman Hopkins by which the 

jury could believe that Norman Hopkins did not know he was 

receiving and disposing of a murder weapon. The jury could 

reach a contrary conclusion only if they chose not to believe 

Norman Hopkins. The jury chose to believe him. Once the 

jury chose to believe Hopkins, he was not an accomplice, and 

therefore his testimony did not have to be judged by the 

standards applicable to accomplice testimony. 

Furthermore, even assuming that Norman Hopkins was an 

accomplice because he knew he was receiving and disposing of 

a murder weapon handed to him by defendant Donald Warren, his 

testimony was sufficiently corroborated, and therefore the 
conviction should still be affirmed. In concluding 

that Hopkins' testimony was uncorroborated, the majority 

erroneously focuses on the necessity of demonstrating that 

defendant Donald Warren received the murder weapon from 

his son,Ray Warren. 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 that when defendant Donald 

Warren gave it to Norman Hopkins, he knew or was suspicious 

that it was the murder weapon and therefore that it was part 

of the continuing investigation of the murder 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 the murder weapon from 

defendant Donald Warren. 

The majority opinion is long on the law (although misapplied) and short on the facts. For this reason, I set out 

a detailed factual statement based on the trial record before 

the jury. Before doing so, it would first be helpful to 

set out the basic criminal charge that the State was 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 State must prove that 

the defendant,Donald Warren,had knowledge of an impending 

investigation or proceeding. Second, the State must prove 

that defendant Donald Warren took action to conceal physical 

evidence (the pistol) 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). The 
State proved 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 to Hopkins and asked 

him to dispose of it. Defendant's intent in doing so was 

not proved through Hopkins, for Hopkins did not know then 

that he had such intent. Rather, it was proved through 

other testimony by which the jury had every right to infer 

that defendant Donald Warren intended to dispose 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 Kim Warren went together for almost 

a year, and during a good part of that time, they lived together. 

During this time, Hopkins also got to know 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 this period of 

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

During this time, however, Norman Hopkins became familiar with 

the .22 caliber pistol which later turned out to be the murder 

weapon. 

On at least two occasions in February 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, there were 

two clips for the pistol. Norman Hopkins had one other 

occasion to see the pistol before it was turned over to him 

by Don Warren on August 15, 1979, to dispose of. 

During June 1979, a truck driver's strike broke out 

in this state (as it did throughout the nation). Norman 
Hopkins, a truck driver, who then had a route from Laurel, 

Montana, to St. Regis, Montana (a route 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 on August 15, 1979. 

THE ARREST 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 (Earl Ray Malcom) was home watching television in the late evening of August 14 and early morning 

hours of August 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 a man running 

toward a white Plymouth station wagon which had both left 

doors smashed in. He ran out to see what the shooting was 

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 

five years, and although on duty, was paying the family a 

social call. It was shortly before midnight on August 14. 

He was familiar with 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 station wagon with all the body 

damage. Just a short time later (about 1:30 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 to whether this was 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 

investigation team and he went primarily as a friend of the 

Don Warren family to tell them about Ray Warren's possible 

involvement in the murder. Captain Charles Hensley was in 

charge of the murder investigation. 

THE TESTIMONY OF 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-iber shell casings 

scattered around the murder scene, he saw tire tracks, and 

broken glass scattered around the scene. Uniformed officers 

and two detectives were 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 caliber weapon. 

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 

for physical evidence relating to the homicide. 

Captain Hensley specifically told Donald Warren that 

the victim had been killed with a .22 caliber gun, and that 

he was looking for a .22 caliber automatic pistol or any .22 

caliber weapon. He also told Donald Warren that he wanted to 

check the Plymouth station wagon to see if it had been recently 

driven. Donald Warren replied that ---- the only .22 weapon they 

--- had in the house was -- 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 

still warm, indicating that it had recently been driven. 

He also found that the left rear wheel or front wheel had 

driven through a mud muddle and there was a damp mark on 

the ground indicating the car had gone through and left a 

track on dry ground leading up to the vehicle. Although he 

did not go inside the car, he noticed, among other things, 

that there was 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 in his car on two occasions on August 14. The first 

time was about 7:30 p.m. and the second time was about 11:30 

or 11:45 p.m., probably within 15 or 20 minutes of the murder. 

Both Robert Corey Nevins (age 19) and Leo Harshfield (age 17) 

saw Ray Warren parked at the Big Scoop ice cream parlor, just 

blocks away from the murder scene, and no more than 15 or 

20 minutes before the murder. Ray warren drove his white 

Plymouth station wagon into the parking lot and parked it 

right next to the vehicle in which Nevins and Harshfield 

were parked. 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 in the station 

wagon and Nevins and Harshfield went over to talk to them. 

Harshfield was on the passenger side of the station wagon just 

a few feet away from the car, and Nevins, was on the driver's 

side of the station wagon, just a few feet away from the car. 

Ray Warren was sitting in the driver's seat, the driver's 

door was open, and he had his legs sticking out. Both Nevins 

and Harshfield noticed that next to Ray Warren was a pistol, 

what appeared to them to be an automatic pistol. 
These people talked for a while and then Nevins 

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 cream parlor, Earl Ray Malcom was murdered. 

INVOLVEMENT OF NORMAN HOPKINS IN DISPOSING OF THE PISTOL 

ON AUGUST 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 to whether she told 

him any more than this or whether she even knew more 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 it was unregistered, that he didn't know where 

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. (This was the same pistol that Norman Hopkins 

and Ray Warren had used previously when 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 there was 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 to wrap 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 the pistol in the river when Hopkins drove 

his truck route to St. Regis, Montana, so that the pistol 

should disappear and never show up. 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 15 AND BEFORE HOPKINS TURNED THE PISTOL OVER TO THE 

COUNTY ATTORNEY 

Hopkins kept possession 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 (which would 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 clear message from 

Donald Warren that something drastic would happen to him 

if the pistol should ever turn up. 

About the middle of October 1979, Hopkins broke off 

his relationship with Kim Warren. The implication of the 

majority opinion is that Kim Warren broke off her relationship 

with Hopkins and that in retaliation Hopkins may have had 

the desire to frame Donald 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 to marry 

her. 

THE CIRCUMSTANCES OF NORMAN HOPKINS' TURNING THE PISTOL OVER 

TO THE COUNTY ATTORNEY'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 the murder 

of Earl Ray Malcom, and his trial was set for mid-December 

1979. The State was, however, proceeding to trial without 

the murder weapon. The record does not clearly reveal whether 

Hopkins knew by news reports that the murder weapon had not 

been recovered, but the implication is that he learned by 

the news reports that the murder 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 arrangements with the 

county attorney's office to turn the .22 caliber semi-automatic 

pistol over to the State. 

Hopkins arranged to meet with members 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 Hopkins went to his 

car, retrieved the pistol, 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 the murder weapon had been found, the 

defendant in the murder charge, Ray Warren, fled and still 

has not been apprehended. 

Tests on the pistol showed that it was the weapon used 

in the murder of Earl Ray Malcom. 

Based on Norman Hopkins' disclosures, Donald Warren was 

charged with tampering with 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 caliber pistol 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 the murder weapon. 

The evidence does not disclose how the pistol got from the 

murder scene back to Donald Warren's home, but somehow it 

got there. The chances are that Ray Warren brought it there. 

Ray Warren's car was identified as being at the murder scene, 

in fact, it was identified as the get-away car. Further, at 

the time of the murder, A1 Ketterling was visiting the Donald 

Warren home and noticed that the Ray Warren car was 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 car was parked at the Donald Warren home. From 

this evidence, it is most reasonable for the jury to assume 
that Ray Warren returned his car to the Donald Warren home, 

and it is most reasonable to also assume that he brought 

the murder weapon with him. But it is not necessary that 

Ray Warren personally brought the gun home. It is only 

necessary to determine that someone brought the gun to the 

Donald Warren home after the murder. The evidence would 

give the jury no problem in inferring this fact. 

Further, Donald Warren knew that Ray Warren's car had 

been connected to the murder scene. For, by the time Captain 

Hensley and deputy ~etterling came to the 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 at the house, and he 

also told Donald Warren that the police were looking for, 

as the murder weapon, a .22 caliber automatic pistol or any 

.22 caliber gun. Donald Warren replied that the only .22 

was 

gun there was,/%.22 caliber rifle and that the police were 

welcome to take it and conduct ballistic tests. This is the 

evidence of which Donald Warren had direct knowledge. On 

the other hand, not a scrap of evidence in the trial record 

shows that Norman Hopkins knew that Ray Warren's car had been 

connected to the murder scene or that the murder weapon was 

or at least was suspected to be a .22 caliber gun. 

Assuming the juries believed Captain Hensley, and they 

had a right to do so, they could infer that Donald Warren 

lied when he told Captain Hensley that the only .22 caliber 

gun in the house 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 the pistol. Further, on another occasion 
Hopkins talked directly to Donald Warren and asked to borrow 

a gun to take with him on his truck route to St. Regis. 

Donald Warren loaned him the .22 caliber pistol involved, 

and also gave him two ammunition clips. Based on this 

testimony, and his testimony that he received the pistol 

from Donald Warren on August 15 to dispose of because it was 

an unregistered pistol, the jury was entitled to believe 

that Donald Warren lied to Captain Hensley when he told him 

that only a .22 caliber rifle was 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 it was connected to the murder. 

Two days after the murder, the Donald Warren home and 

automobiles were 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 clip with 11 live rounds in it, in Joy Warren's 

car. This ammunition clip did not fit the rifle, but it 

did fit the .22 caliber pistol later identified as the murder 

weapon. This ammunition clip corroborated Norman Hopkins' 

testimony that on all three occasions he had used the pistol 

there were two ammunition clips, but that when he received it 

from Donald Warren on August 15, there was only one ammunition 

clip. Further, the jury could also conclude by this testimony 

and evidence that Donald Warren had lied when he told 

Captain Hensley that the only .22 caliber gun around his 

home was a rifle. 

The majority makes much of the fact that a murder 

weapon was not found when the house was searched (on August 

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 the murder 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 

he wanted 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 

on August 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 the pistol or concerning the details of the 

police investigation connecting Ray Warren to the murder. 

The jury was entitled to believe his testimony. 

Because of the Fifth Amendment 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 other members 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 involved with Kim Warren. 
The prosecution sought to add her as a witness, but 

the defense resisted, and ultimately, the State dropped 

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. These witnesses 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 

convict Donald Warren of tampering with evidence. I see 

no trial errors that would dictate a new trial. heref fore,