No. 93-369 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1994 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vLARRY T. MOORE, 

DefendantIAppellant. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Larry W. Moran, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Larry Jent, Williams, Jent & Dockins, Bozeman, 

Montana; Herman A. Watson, 111, Bozeman, Montana 

For Respondent: 

Hon. Joseph P. Mazurek, Attorney General, Mark 

Murphy and Cregg W. Coughlin, Assistants Attorney 

General, Helena, Montana; Mike Salvagni, Gallatin 

County Attorney, Robert W. Brown, Special Deputy 

County Attorney, Bozeman, Montana 

Heard: September 1, 1994 

Submitted: September 13, 1994 

NO\/ 2 2 1994 Decided: November 22, 1994 

Filed: 
Justice James C. Nelson delivered the Opinion of the Court. 

Defendant Larry Moore was charged with deliberate homicide in 

violation of § 45-5-102(1) (a), MCA, and two counts of tampering 

with or fabricating physical evidence, in violation of 45-7- 

207(l)(a) and (b), MCA. The District Court severed the tampering 

charges, and Moore was tried before a jury on the deliberate 

homicide charge in the Eighteenth Judicial District Court, Gallatin 

County, on October 22, 1992 through November 17, 1992. The jury 

returned a guilty verdict on November 19, 1992. At sentencing, the 

District Court dismissed sua sponte the two counts of tampering 

with or fabricating evidence. Moore appeals his conviction of 

deliberate homicide. We affirm. 

ISSUES 

We state the issues on appeal as follows: 

Whether the District Court erred in allowing the 

introduction of the DNA analysis evidence after it 

had excluded the statistical evidence relating to 

the DNA testing? 

Whether the District Court erred in admitting the 

results of DNA tests performed on the muscle tissue 

found in Moore's camper? 

Whether the District Court erred in admitting the 

PCR results performed on brain tissue discovered 

inside Moore's camper? 

Whether the District Court erred in denying Moore's 

motion to suppress a statement he made to Sgt. 

Burns while being transported in a patrol car? 

Whether the District Court erred in denying Moore's 

motions for a change of venue and motion for 

individual voir dire on the issue of pretrial 

publicity? 

Whether the District Court erred when it denied 
Moore's motion for a new trial on claims of juror 

misconduct? 

7. Whether the District Court erred when it prohibited 

Moore from impeaching the verdict with juror 

testimony? 

8. Whether the District Court erred when it denied 

Moore's motion for a judgment of acquittal alleging 

there was insufficient evidence to convict him of 

deliberate homicide? 

9. Whether Moore was denied his right to a speedy 

trial? 

FACTUAL BACKGROUND 

Larry Moore was charged with deliberate homicide, following 

the disappearance of Brad Brisbin. Brisbin, a West Yellowstone 

restaurant owner, was last seen November 9, 1990. Rene Brisbin, 

Brisbin's wife, testified that her husband told her that Moore had 

called him on the morning of November 9th, and asked Brisbin to 

meet him at Bair's truckstop because he had sold his pickup and 

camper and needed a ride back to West Yellowstone. 

Brisbin went to the high school where he was employed as a 

part-time teacher. He told the principal that he needed the day 

off to deal with a screwed up friend. Two people testified that 

they saw Brisbin driving up Gallatin Canyon the morning of November 

9th. Both testified they saw nothing unusual with Brisbin's 

driving. Brisbin has not been seen since the morning of November 

That afternoon, Moore drove his pickup with his camper back to 

West Yellowstone. Shortly before 1:00 p.m. on November 9, 1990, 

Moore called his construction shop and asked Jerry Hillier, one of 

Moore's employees, to warm up the backhoe. Moore arrived at the 
shop at approximately 1: 00 p.m., and left the shop with the backhoe 

at approximately 1:30 p.m. Mr. Hillier testified that he saw the 

backhoe parked in the construction yard at 3:00 p.m. Mr. Moore, 

however, did not return to the shop until 5:00 pm. 

That evening Moore began to tell people that Brisbin had 

climbed into a car on Interstate 90, with a woman driver. Moore's 

story concerning that morning's events changed considerably over 

the course of time. 

Moore became a suspect in the case, and police obtained a 

search warrant for his pickup and camper. Investigators found 

three bullet holes under the interior step. They also found a 

piece of tissue on a curtain in the camper, a bullet with blood on 

it, and blood stains, which Moore had attempted to obliterate, 

throughout the camper. 

The police confronted Moore with this evidence, and he began 

to change his story. Moore eventually told the police that Brisbin 

had been drinking the morning of November 9th, and was waiving a 

gun around in the back of Moore's camper. Moore struggled to get 

the gun away from Brisbin and when the gun accidentally discharged, 

the shot grazed Brisbinls head. Brisbin was bleeding, and Moore 

went into the truckstop to get some water to clean up the blood. 

When he returned, Brisbin was not in the camper, but Moore believed 

he saw Brisbin on the on-ramp of the interstate getting into a red 

car. 

Law enforcement sent the tissue found on the curtain in the 

camper to the Montana State Crime Lab, which determined that the 
tissue was of human origin. The State Crime Lab divided the tissue 

into three pieces: one portion was sent to Cellmark Diagnostics 

(Cellmark), one to Analytic Genetic Testing Center (AGTC), and the 

State Crime Lab retained one portion. Cellmark, a laboratory which 

performs deoxyribonucleic acid (DNA) analysis, conducted 

restriction fragment length polymorphism analysis (RFLP) typing on 

DNA extracted from the muscle tissue. 

AGTC tested the muscle tissue using GM/KM analysis. GM/KM 

markers are an inherited variation of antibody molecules found in 

blood serum, human tissue and body fluids, which have a significant 

variation between populations so that, for instance, some 

combinations of markers are only found in the Caucasian population, 

and some in the Afro-American population. GM and KM markers have 

been used since the 1960's to identify and individualize human 

blood for forensic applications. The results of the GM/KM analysis 

confirmed that the muscle tissue was human and the tissue was 

consistent with having come fromthe biological father of Brisbin's 

children. 

While examining blood stains located on the underside of the 

interior step board, which had been removed from Moore's camper, a 

forensic scientist at the Montana State Crime Lab found a small 

piece of tissue. The tissue was determined to be cerebellum 

tissue, which is located at the base of the brain, under the skull 

bone. The State Crime Lab embedded the brain tissue in a paraffin 

block and sent it to Dr. Cosette Wheeler, at the University of New 

Mexico Cancer Center, who extracted DNA from the tissue. Dr. 
Wheeler then sent the processed tissue to AGTC which conducted 

polymerase chain reaction (PCR) analysis on the sample tissue. 

AGTC also conducted PCR analysis on members of the Brisbin family 

and concluded that the tissue could not be excluded as having come 

from the biological father of the Brisbin children. 

Moore was charged by information on December 17, 1990 with two 

counts of tampering with or fabricating physical evidence and one 

count of deliberate homicide. Upon Moore's motion, the District 

Court severed the tampering with or fabricating physical evidence 

charges. A jury trial was held October 22 through November 17, 

1992, and Moore was found guilty of deliberate homicide. Moore 

appeals this conviction. Additional facts will be presented as is 

necessary for the discussion of the issues. 

DNA PROFILING ISSUES 

The first three issues we consider on appeal raise questions 

concerning DNA profiling. This case presents the first instance in 

Montana that forensic DNA analysis evidence has been introduced in 

a criminal trial which has reached this Court on appeal. 

Therefore, before we begin analysis of the legal principles 

involved in those issues, it is necessary to set out a brief 

introduction to the basic theory of DNA analysis. The discussion 

of DNA and RFLP analysis is derived from the following sources: 

testimony at the admissibility hearing and trial, United States v. 

Jakobetz (2nd Cir. 1992), 955 F.2d 786, cert. denied 113 S.Ct. 104, 

121 L.Ed.2d 63; Commonwealth v. Curnin (Mass. 1991), 565 N.E.2d 

440; People v. Axell (Cal.App. 2 Dist. 1993), 1 Cal.Rptr.2d 411; 
United States v. Yee, 134 F.R.D. 161 (Ohio 1991). 

Introduction 

DNA is a fundamental material which determines the genetic 

properties of all living things. All nucleated cells of every 

human being contain DNA, and every cell of a particular individual 

contains the same configuration of DNA. The significance of DNA 

for forensic purposes is that, with the exception of identical 

twins, no two individuals have identical DNA. Another important 

fundamental aspect of human genetics is that, except for unusual 

but recognized occurrences of mutation, offspring inherit genes 

from their parents, receiving one-half from the mother and one-half 

from the father. 

The DNA molecule is composed of a long double helix, which 

looks like a twisted ladder. The sides of the ladder are made up 

of alternating units of phosphate and sugar. Attached to the sides 

of the ladder are the rungs, which are made up of four types of 

organic bases: adenine, guanine, cytosine, and thymine. Due to 

their chemical compositions, adenine will only bond with thymine, 

and cytosine will only bond with guanine. Thus, the bases on one 

side of the rung will determine the order on the other side. For 

the purpose of DNA profiling, these base pairs are the critical 

components of the ladder. It is the order or sequence of the base 

pairs (the rungs) that determines the genetic traits of an 

individual life form and each human being. A specific sequence of 

base pairs that is responsible for a particular trait is called a 

gene. 
Genetically, humans are more alike than dissimilar. 

Approximately 99 percent of human DNA molecules, i.e., base pair 

sequences, are the same, creating such shared features as arms and 

legs. Other sections of the DNA ladder, however, vary distinctly 

from one person to another. It is these variable regions, called 

"polym~rphisms,~* which make it possible to establish identity and 

differences between individuals. 

The length of each polymorphism is determined by the number of 

repeat core sequences of base pairs. The core sequence is called 

a Variable Number Tandem Repeat (VNTR) while the total fragment 

length is called a Restriction Fragment Length Polymorphism (RFLP). 

Alternative forms of RFLP1s are called alleles. 

A particular region on the DNA molecule where a specific VNTR 

occurs is called a "locus." A locus is considered polymorphic when 

the number of VNTR1s varies from one person to another. Of the 

approximately three billion base pairs contained in one DNA 

molecule, roughly three million are thought to be polymorphic. DNA 

profiling focuses on several highly polymorphic or hypervariable 

segments of the DNA. Different people will have the same VNTRs in 

a particular hypervariable locus, but the loci will differ in 

length because varying numbers of the VNTRs are linked together. 

Although a person may not have a unique polymorphic area at any one 

locus, the frequency with which two people will exhibit eight or 

ten of these alleles at four or five different locations is 

extremely low. Thus DNA analysis attempts to detect these highly 

variable regions and distinguish among the alleles that exist 
there. 

At the time the testing was conducted in this case, there were 

two technologies generally used in forensic DNA analysis to detect 

the polymorphic regions: restriction fragment length polymorphism 

(RFLP), and polymerase chain reaction (PCR). Both methods were 

employed in this case. 

RFLP Analysis 

As is explained in Commonwealth v. Curnin, 565 N.E.2d at 446- 

47, and U.S. v. Jakobetz, 955 F.2d at 792-93, RFLP analysis 

involves several steps. 

1. Extraction of DNA. The DNA must be extracted from the 

evidentiary sample by using chemical enzymes. An enzyme is then 

added to digest cellular material that is not DNA, thereby 

providing a purer sample. 

2. Restriction or Digestion. The DNA is then mixed with 

restriction enzymes which cut the DNA molecules into fragments at 

specific base sequences. The restriction enzymes recognize 

particular sequences of base pairs. The enzymes sever the DNA 

molecule at targeted locations within the sequence. The process 

severs the DNA molecule at all sites targeted at locations along 

the three billion base pair length of the molecule. Therefore, 

some of the resulting "restriction fragmentstt will contain 

polymorphic DNA segments, although most will not. Because the 

alleles differ markedly in length from one person to the next, the 

restriction fragments containing the alleles will also differ in 

length. 
3. Gel Electrophoresis. This technique entails placing the 

DNA fragments into an agarose gel which has a negative and positive 

electrode at either end. An electrical current is then run through 

the gel. The restriction fragments, which are negatively charged 

in their natural state, travel toward the positive charge. The 

process is able to sort the restriction enzymes by length, as the 

shorter fragments--which are lighter and less bulky--will travel 

further in the gel. Several samples are run on the gel but in 

different tracks or lanes which run parallel to each other. In 

addition to the samples, fragments of known base-pair lengths are 

placed in separate lanes to facilitate measurement. 

4. Southern Transfer. This procedure transfers the fragments 

to a more functional surface. A nylon membrane is placed over the 

gel and, through capillary action, the DNA fragments attach 

themselves to the membrane while occupying the same position 

relative to one another as they had on the gel. The restriction 

fragments are then treated with a chemical which cuts the fragments 

of DNA lengthwise along each base pair, by sawing through the 

middle of each rung. The result is a collection of single stranded 

restriction fragments. 

5. Hybridization. The nylon membrane is dipped into a 

solution containing various "genetic probes," which are single 

stranded DNA fragments of known length and sequence designed to 

link with identified polymorphic alleles. The probes will link 

only to those DNA fragments which contain base pair sequences that 

are complementary to the base sequences of the probe. The genetic 
probes are tagged with a radioactive marker so that after the probe 

links with a particular allele, its position relative to the other 

restriction fragments can be observed. 

6. Autoradiography. The nylon membrane is placed on an x-ray 

film and exposed by the radioactively charged probes. The result 

is a pattern of bands called an "autoradiograph", or "autorad." 

Each band represents a different polymorphic allele, and its 

position indicates the length of the restriction fragment in which 

that allele occurs. Because individuals differ in length of their 

polymorphic alleles, the position of the bands on the DNA prints 

will tend to differ from person to person. 

7. Interpretation of the DNA Print. The DNA print of the 

crime sample and the DNA print of the defendant are then compared 

both visually and with a machine to determine if both samples of 

DNA came from the same person. A match will be declared if the 

samples fall within a certain distance of one another. Cellmark 

Diagnostics, the laboratory conducting the RFLP analysis in this 

case, will declare a match if the bands from two DNA prints fall 

within one millimeter of each other. 

8. Statistical Analysis. Statistical analysis is used in 

both RFLP and PCR analysis. If the two DNA samples match, then 

population geneticists determine the likelihood that the match is 

unique. The scientists determine the frequency with which a 

particular allele is found in the population, then by using a 

multiplication or product rule, compute an aggregate estimate of 

the statistical probability that the suspect's combination of 
alleles would be found in the relevant racial population. United 

States v. Bond (6th Cir. 1993), 12 F.3d 540, 550, aff'g United 

States v. Yee, (Ohio 1991), 134 F.R.D. 161. 

PCR Analysis 

AGTC tested the brain tissue by conducting polymerase chain 

reaction testing. The following discussion of PCRtesting is taken 

from Thomas M. Fleming, Annotation, Admissibility of DNA 

Identification Evidence, 84 A.L.R.4th 313 (1991), and testimony 

from the trial, unless otherwise noted. PCR testing is used to 

increase the amount of the DNA sample. This technique makes DNA 

testing possible on much smaller samples than RFLP analysis. 

However, PCR's ability to identify a particular individual to the 

exclusion of others is much lower. 

In this procedure, DNA is extracted from a sample purified and 

added to a buffer solution containing chemical primers and an 

enzyme called "TAQ polymera~e.~~ The solution is then placed in a 

heating device, called a thermal cycler, which cycles it through 

several successive temperature plateaus. After 30 or 40 of these 

cycles, the DNA has become denatured. The primers have annealed 

to the DNA, identifying a "gene of interest," in this case the DQalpha gene, which will have been replicated or "amplified" by the 

enzyme billions of times. 

Next, the amplified DNA is flooded over a nylon membrane onto 

which have been dotted a number of ~tallele-specific" probes, each 

designed to recognize one variant of the DQ-alpha gene. This will 

result in a color reaction and a visible dot on the membrane 
wherever a probe has identified one of the alleles. 

This genetic marker system has six traits which are simply 

numbered, 1.1, 1.2, 1.3, 2, 3, and 4. These alleles are combined in 

pairs in each person, because one is received from each parent. 

There are 21 possible pairs of these traits, and each pairing is 

called a ffgenotype.ff The purpose of the testing is to identify the 

genotype present in the amplified DNA. 

After conducting PCR analysis on the piece of brain tissue, 

AGTC typed it as a DQ-alpha 3, 4. AGTC also conducted PCR analysis 

on the Brisbin family members and found that If . . . among [the] 

four children, there are only two alleles found, the 4 allele . . . and a 3 allele. Since any given person can only have two 

alleles, the biological father of these individuals has to have a 

3 allele and a 4 allele. The evidentiary material, the brain 

tissue, typed as a 3, 4 so it cannot be excluded as having come 

from the biological father." 

In sum, the PCR process clones the region of a DNA strand 

containing the DQ-alpha gene. The copies are then analyzed to 

determine whether certain sequences of the gene are present. 

Issue 1. 

Whether the District Court erred in allowing the 

introduction of the DNA analysis evidence after it had 

excluded the statistical evidence relating to the DNA 

testing? 

Before trial, Moore moved to have all DNA evidence excluded. 

After an extensive pretrial hearing concerning the admissibility of 

the DNA analysis evidence, the District Court denied Moore's 

motion, and allowed the State to present evidence concerning the 

13 
DNA analysis conducted on both the muscle tissue and the brain 

tissue. Moore then moved to exclude testimony concerning the 

statistical calculations which would have presented a probability 

that any alleged match between the tissue samples and the Brisbin 

children is not coincidental. The District Court granted the 

motion and refused to allow testimony concerning the statistics, 

but allowed the experts to testify that the RFLP and PCR test 

results were "consistentI1 with Brisbin. Moore alleges on appeal 

that the District Court erred in not excluding DNA evidence in its 

entirety. Moore claims that because no valid statistics were 

presented, the DNA evidence failed to meet requirements of Rule 

702, M.R.Evid., as it failed to assist the trier of fact to 

understand the evidence or to determine a fact in issue. 

Relying on the testimony of defense expert Dr. Shapiro, Moore 

states that the only way the jury has to evaluate the DNA evidence 

is through the statistical data which supports it. Without the 

statistics, the evidence is meaningless and, therefore, is not 

helpful to the trier of fact. Moore concludes by arguing that 

there is no difference between saying the evidence is "consistent" 

with Brisbin and that there is a "matchw with Brisbin. 

Admissibility of evidence is left to the sound discretion of 

the trial judge. State v. Stewart (1992), 253 Mont. 475, 479, 833 

P.2d 1085, 1087. This Court's review of a district court's 

evidentiary rulings is whether the district court abused its 

discretion. State v. Gollehon (1993), 262 Mont. 293, 301, 864 P.2d 

1257, 1263. 
We conclude that because the District Court excluded testimony 

concerning the statistical evidence upon Moore's own motion, he 

cannot now complain that the court erred in granting his motion. 

The District Court concluded that the statistical probabilities 

"invad[es] the province of the jury, . . . [because] when you get 

numbers high enough, in essence you're directing a verdict, and 

that gets way beyond reasonable doubt." Because the ruling made 

upon Moore's motion benefitted the defense, Moore cannot now 

complain. 

In addressing this same issue, the Eighth Circuit Court of 

Appeals held that the defendant was barred from raising the issue 

on appeal when he had specifically requested that the district 

court exclude the statistical evidence. The court noted: 

After the district court decided to admit the DNA match 

evidence, the court invited counsel to comment on the 

propriety of admitting statistical evidence of the 

likelihood of a match. In response to this invitation, 

Martinezf counsel suggested that the court exclude the 

probability evidence . . . Having specifically requested 

that the district court exclude the statistical evidence, 

Martinez may not now complain about its exclusion. 

United States v. Martinez, (8th Cir. 1993), 3 F.3d 1191, 1199, cert 

denied 114 S.Ct. 734, 126 L.Ed.2d. 697. We conclude that, like the 

defendant in Martinez, Moore is barred from complaining that the 

statistical evidence was excluded because he sought its exclusion. 

Our determination does not address whether we will allow the 

admission of DNA analysis results in a future case without the 

accompanying statistical analysis. We recognize that there is 

presently a diversity of opinion among the jurisdictions that have 

addressed this issue. A summary of the different approaches is 
found in People v. Adams (Mich.App. 1992), 489 N.W.2d 192, 198, 

where the Michigan Court of Appeals noted: 

Some courts of other jurisdictions have ruled that DNA 

identification evidence is admissible at trial, but have 

then refused to allow into evidence the statistical 

analysis of the testing because the databases were shown 

to have not been in Hardy-Weinberg equilibrium. Curnin, 

409 Mass. at pp. 225-227, 565 N.E.2d 440; Caldwell, 260 

Ga. at pp. 289-290, 393 S.E. 2d 436 [1991]; State v. 

Pennell, 584 A.2d 513, 517-520 (Del.Super. 1989). 

However, other courts have recognized that conservative 

or reduced calculations such as those used by Cellmark 

u, 

may correct any Hardy-Weinberg deviation problems. 

235 Cal.App.3d at p. 868, 1 Cal.Rptr.2d 411 

[1991]; Caldwell, 260 Ga. at p. 289, 393 S.E.2d 436; 

Castro, 144 Misc.2d at p. 969, 545 N.Y.S.2d 985 [1989]. 

The statistical analysis of DNA testing is inadmissible 

in some jurisdictions because of its prejudicial effect. 

Schwartz [447 N.W.2d 4221 at pp. 428-429 [Minn. 19891; 

Pennell at pp. 519-520. On the other hand, some courts 

have held that such evidence is a matter of weight for 

the jury. Axell, 235 Cal.App.3d at p. 868, 1 Cal.Rptr.2d 

411; Ho~kins [Ind. 19911 [579 N.E.2d 12971 at p. 1303; 

United States v. Yee, 134 F.R.D. 161 (N.D. Ohio 1991). 

Whether, and if so, to what extent we will allow DNA evidence 

without the accompanying statistical evidence in other criminal 

trials will be decided in a future case. Our decision in this case 

is based solely on the fact that Moore moved to exclude the 

evidence, and cannot now argue that its exclusion was error. 

Because Moore moved to exclude the statistical analysis evidence at 

trial, and in light of the varied approaches among the 

jurisdictions which have addressed this issue, we hold that the 

District Court did not abuse its discretion when it admitted the 

DNA analysis evidence without the statistical evidence in this 

case. 

Issue 2. 

Whether the District Court erred in admitting the 

results of DNA tests performed on the muscle tissue found 
in Moore's camper? 

Moore presents three arguments as to why the District Court 

erred in admitting the RFLP analysis in this case. First, Moore 

alleges that Cellmark used "sloppy laboratory technique^.^' Moore 

does not argue that the theory underlying DNA and RFLP analysis is 

inadmissible, rather, he states that the general reason courts 

exclude RFLP analysis evidence is because the particular laboratory 

failed to adhere to generally accepted techniques for obtaining 

relevant, reliable results. See, State v. Vandebogart (N.H. 19921, 

616 A.2d 483; United States v, Martinez (8th Cir. l993), 3 F.3d 

1191; State v. Cauthron (Wash. 1993), 846 P.2d 502. 

After a thorough review of the cases and other current 

literature and authorities, we conclude that the theory underlying 

DNA and RFLP technology is generally not open to serious attack and 

that such evidence is widely admitted in various state and federal 

courts and jurisdictions. I*[T]he threshold [test] for admissibility 

[of DNA evidence] should require only a preliminary showing of 

reliability of the particular data to be offered, i.e., some 

indication of how the laboratory work was done and what analysis 

and assumptions underlie the probability calculation^.^^ Jakobetz, 

955 F.2d at 799-800. 

While Moore first argues that the State failed to demonstrate 

that Cellmark's testing results were reliable because Cellmark used 

"sloppy laboratory techniques," he fails to identify what 

techniques were sloppy, or objectionable. Rather, he "incorporates 

by reference all the evidentiary arguments made about PCR in the 
preceding sections [of his opening brief], as well as the technical 

arguments made at the [admissibility] hearing." 

We conclude that Moore's argument must fail. Rule 23(a)(4), 

M.R.App.P., provides in pertinent part: 

The argument shall contain the contentions of the 

appellant with respect to the issues presented, and the 

reasons therefor, with citations to the authorities, 

statutes and pages of the record relied on. 

Moore failed to properly raise specific points of error concerning 

Cellmarkls laboratory techniques, and this Court will not presume 

which techniques he considered were "sloppy." Accordingly, we will 

not address this argument further. Allmaras v. Yellowstone Basin 

Properties (1991), 248 Mont. 477, 483, 812 P.2d 770, 773. 

Second, Moore argues that the Itnumbers used to mathematically 

determine a match by Cellmark are unreliable." Moore's argument is 

without merit, because, as we discussed in issue one, the District 

Court excluded all testimony concerning statistical evidence. 

Martinez, 3 F.3d at 1199. 

Third, Moore argues that the District Court erred in allowing 

testimony that the DNA profile of the muscle tissue sample was 

consistent with the DNA profiles of Brisbinrs children and his 

mother, because according to Moore, Cellmark's criteria for 

declaring a match, or consistency are highly suspect. Moore 

alleges that two probes contained "anomalies" and therefore, 

Cellmark should have declared these probes to be exclusions. 

According to Moore, the fact that Cellmark declared a match even 

though two anomalies were present evidences that the RFLP test 

results did not have a reliable foundation. 

18 
At this juncture, it is important that we distinguish between 

DNA identification analysis and DNA paternity analysis. DNAtyping 

for forensic purposes in criminal law is usually used to aid in the 

identification or exclusion of criminal suspects. The 

characteristics of a suspect's genetic structure are profiled and 

compared to the genetic structure found in material such as blood 

or semen recovered from the crime scene. The two profiles are then 

compared to see if they "match.*I 

Because Brisbin's body has never been found, the laboratories 

conducting the tests could not obtain a comparison sample of his 

DNA. The scientists therefore conducted a paternity analysis on 

the muscle tissue found in Moore's camper to determine if the DNA 

extracted from the sample muscle tissue was consistent with having 

come from the father of the Brisbin children. Because genes are 

inherited, a child will have a composite profile which is 

consistent with his or her parents. 

Cellmark received blood samples from seven people: Rosaleen 

Kovash, Brisbin's former wife and the mother of Jeremiah and Erin 

Brisbin; Maureen Brisbin, Brisbin's wife and the mother of Parker 

and Mariah Brisbin; and Mary Ann Brisbin, Brisbin's mother. 

Cellmark used five probes to examine five different genetic 

locations. The result of each probe is visible on the x-ray film 

or autorad, and appears as dark lines called bands. A comparison 

was made between the bands exhibited on the autorads for each 

mother, her two children, and the DNA from the tissue. For each of 

those comparisons, Cellmark examined the DNA pattern of the two 
children, to determine which band in the child was consistent with 

the mother and if the other band was consistent with the DNA coming 

from the tissue. Moore contends that because two of the samples 

failed to visually coincide, the samples could not be said to be 

consistent, but were exclusions and, therefore, were inadmissible. 

The first alleged exclusion concerned an autorad for the probe 

MS1. Both Mariah Brisbin and her mother only showed one band for 

this probe, and Mariah's band did not coincide with the band 

expressed for her mother, Maureen. Moore argues that because 

Mariahls maternal band did not show up on the autorad, the results 

were inadmissible. 

In interpreting why only one of Mariahrs bands was visible on 

the autorad, the Staters expert explained that Mariahrs other band 

had probably run off the gel and, therefore, could not be seen. 

The expert noted that even though the band could not be seen on the 

gel, one could continue with the analysis using the one band which 

was visible. In this case, the band which was visible on the 

autorad was consistent with a band from the piece of muscle tissue. 

Moore also claims that an inconsistency on the probe YNH24 

between Brisbinrs mother Mary Ann Brisbin, and the piece of muscle 

tissue rendered the results inadmissible. In this instance, the 

band from the piece of muscle tissue did not correspond to either 

band from Mary Ann Brisbinrs autorad. Moore claims that because 

neither of the bands from Brisbin's mother matched the band from 

the piece of muscle tissue, Cellmark should have excluded Mary Ann 

Brisbin as the mother of the donor of the muscle tissue. Moore 
claims that Cellmark should not have concluded that Mary Ann 

~risbin~s results were consistent with the piece of muscle tissue 

in light of probe YNH24, which did not match. According to Moore, 

Cellmarkts conclusion that the two DNA profiles were consistent 

evidences the lack of foundation for the entire RFLP testimony. 

Of the five probes used to examine Mary Ann Brisbinfs DNA 

profile, nine bands were visible an the autorads. The muscle 

tissue matched four of those bands. However, as stated above, Mary 

Ann Brisbints band was not consistent with the muscle tissue's band 

for probe YNH224. Cellmark's experts testified that one would 

still have to conclude that Mary Ann was somehow genetically 

related to the donor of the muscle tissue, because Mary Ann's bands 

and the muscle tissue's bands matched on the other probes. The 

experts testified that given the known high mutation rate at these 

genetic locations, a reasonable conclusion was that a mutation 

slightly altered the gene at this locus. 

The District Court ruled that Mooref s objections to Cellmark's 

RFLP analysis results were a matter of weight for the jury to 

assign to the testimony, not a question of admissibility. We 

agree. 

In determining whether to allow expert testimony concerning 

novel scientific evidence, this Court has held that Itit is better 

to admit relevant scientific evidence in the same manner as other 

expert testimony and allow its weight to be attacked by crossexamination and refutation." Barmeyer v, Montana Power Co. (1983), 

202 Mont. 185, 193-94, 657 P.2d 594, 598. (Citation omitted.) In 
Barmever we rejected the "general acceptance" test set forth in 

Frye v. United States (D.C. Cir. 1923), 293 F. 1013, holding that 

"the general acceptance rule is not in conformity with the spirit 

of the new rules of evidence." Barmever, 657 P.2d at 598. (While 

we stated in Martel v. Montana Power Co. (1988), 231 Mont. 96, 103, 

752 P.2d 140, 145, that we "~verruled'~ Barmever, it is readily 

apparent that the only portion of our opinion that was actually 

overruled was that pertaining to violation of the NESC standards 

being negligence per se.) 

More than a decade later, the United States Supreme Court also 

rejected Frve's "general acceptancev1 standard for admissibility of 

expert testimony in favor of the more liberal test embodied in Rule 

702, F.R.Evid. This test requires the trial judge to determine 

whether the expert is proposing to testify to (1) scientific 

knowledge that (2) will assist the trier of fact to understand or 

determine a fact in issue. Daubert v. Merrell Dow Pharmaceuticals, 

Inc. (1993), - U.S. -, 113 S. Ct. 2786, 2796. In Daubert, 

the Court noted that Rule 702, F.R.Evid., still requires the 

district court to screen such evidence to ensure that any and all 

scientific testimony or evidence admitted is not only relevant, but 

reliable. Daubert, 113 S.Ct. at 2795. 

To guide the trial court's assessment of the reliability of 

the scientific evidence offered, the Court established the 

following non-exclusive factors to be considered: (a) whether the 

theory or technique can be and has been tested; (b) whether the 

theory or technique has been subjected to peer review and 
publication; (c) the known or potential rate of error in using a 

particular scientific technique and the existence and maintenance 

of standards controlling the technique's operation; and (d) whether 

the theory or technique has been generally accepted or rejected in 

the particular scientific field. Daubert, 113 S.Ct. at 2796-97. 

The Court emphasized that the inquiry under Rule 702, 

F.R.Evid., is "a flexible one," and that the focus is on the 

principles and methodology underlying the proffered evidence rather 

than the conclusions they generate. Daubert, 113 S.Ct. at 2797. 

We conclude that the guidelines set forth in Daubert are consistent 

with our previous holding in BarmeVer concerning the admission of 

expert testimony of novel scientific evidence, and we, therefore, 

adopt the Daubert standard for the admission of scientific expert 

testimony. Accordingly, we conclude that before a trial court 

admits scientific expert testimony, there must be a preliminary 

showing that the expert's opinion is premised on a reliable 

methodology. We note, however, that the court must be flexible in 

its inquiry. "Not every error in the application of a particular 

methodology should warrant exclusion. An alleged error in the 

application of a reliable methodology should provide the basis for 

exclusion of the opinion only if that error negates the basis for 

the reliability of the principle itself .I1 Martinez, 3 F.3d at 

1198. 

In the instant case, although the District Court did not apply 

the Daubert standard, it did hold an admissibility hearing which 

involved seven days of testimony from scientists in the fields of 
genetics, molecular biology, and statistics. After considering the 

testimony, the court concluded: 

(Biased upon a thorough and conscientious review of all 

the DNA evidence, the Court's conclusion is that while 

there are cracks in the foundation of the testimony of 

some of the Staters expert witnesses, such is 

sufficiently mitigated by the overall testimony of 

witnesses, Dr. Schanfield, Dr. Cotton, and Dr. Eoldman, 

to create an issue of fact. 

In considering admissibility of evidence, the Court 

must walk a fine line, avoiding considerations of weicsht 

to be given the proffered evidence, and, generally, the 

credibility of the witnesses offering testimony. Under 

the circumstances presented, it is the opinion of this 

Court that the DNA evidence profgered by the State meets 

the threshold test for admissibility. 

The credibility of witnesses, issues of fact, and 

the weisht to be accorded the testimony of witnesses are 

issues for a jury to resolve, not the Court. (Emphasis 

in original.) 

Rulings on the admissibility of evidence are left do the sound 

discretion of the trial court. State v. Stewart (1992), 253 Mont. 

475, 479, 833 P.2d 1085, 1087. In light of the ~istrict Court's 

extensive and thoughtful consideration of the DNA analysis 

evidence, we hold that it did not err in determining that Moore's 

objections to Cellmark's RFLP analysis were a matter of weight, not 

admissibility and in admitting the RFLP evidence in this case. 

Issue 3. 

Whether the District Court erred in admitting the 

PCR results performed on brain tissue discovered inside 

Moore's camper? 

Moore maintains that the PCR testing AGTC conducted on the 

piece of brain tissue was done improperly and that the test results 

were therefore unreliable. ~ccordingly, Moore contends that the 

PCR test results failed to meet the threshold test for 

admissibility under Daubert, Moore makes the following challenges 
to the reliability of the PCR analysis: (1) the thermal cycler 

failed to meet the proper working order requirement; (2) the proper 

procedures were not followed; (3) Tom Wahl, the laboratory 

technician who conducted the PCR testing was unqualified, and 

therefore Dr. Schanfield, the genetics expert could not base his 

testimony concerning the PCR test results upon Mr. Wahl's 

testimony; and (4) PCR analysis is not sufficiently reliable for 

forensic use. 

In its ruling on the admissibility of this evidence, the 

District Court found that the proffered evidence met the threshold 

test for admissibility, and that Moore's challenges were questions 

of weight for the jury to determine. We agree, and as explained in 

detail below, Moore's objections do not negate the reliability of 

the PCR analysis itself. Rather these questions go to the weight 

of the evidence. 

1. Thermal Cycler 

Moore first challenges the thermal cycler, the heating device 

used in the DNA amplification process, on the following grounds: 

(a) the instrument was not assembled properly; (b) the brand of 

thermal cycler used was not the brand recommended by the 

manufacturer of the Cetus AmpliType Kit, (the particular PCR 

testing kit used in this case); and (c) AGTC used a different 

temperature for the denaturation phase of the DNA testing than 

recommended by the manufacturer of the testing kit. 

The sole objection Moore raises concerning the "assembly" of 

the thermal cycler is that it did not have an external monitoring 
system as was required by the users guide for the Perkin-Elmer 

thermal cycler. In response to Moore's concern that AGTC did not 

have an external monitoring system, Tom Wahl, the lab technician 

who conducted the PCR testing on the piece of brain tissue, 

testified that AGTC did not use the Perkin-Elmer thermal cycler but 

a BIOS BSC 100 thermal cycler which monitors temperature by using 

an internal probe. Wahl also explained that if the thermal cycler 

overheated the DNA sample, it could destroy the TAQ polymerase, and 

if the temperature was too low, there would be inadequate or no 

denaturation of the DNA. 

In response to Moore's allegation that the brand of thermal 

cycler was not the brand recommended by the manufacturer of the 

Cetus AmpliType Kit, Dr. Schanfield, the laboratory director of 

AGTC, testified that there was no requirement that AGTC use any 

specific thermal cycler. In addition, Dr. Wheeler, whose research 

duties include adapting the Cetus AmpliType Kit for clinical use, 

testified that there were a variety of thermal cyclers on the 

market, some of which "produce similar and sometimes better results 

than the Perkin-Elmer Cetus machines [the machine recommended by 

the manufa~turer].~ Finally, Moore's own expert acknowledged that 

one reason Cetus recommended the Perkin-Elmer thermal cycler over 

other brands was because Cetus had a financial interest in the 

Perkin-Elmer machine. We conclude that Moore's challenge to the 

PCR evidence based on the brand of machine used did not render the 

PCR results inadmissible. 

Moore's argument that AGTC used a different temperature for 
the denaturation phase of the DNA testing than recommended by the 

manufacturer of the testing kit was also adequately explained by 

the Staters experts. All the experts agreed that the temperatures 

at which the PCR process is conducted are critical. Dr. Schanfield 

echoed Mr. Wahlfs testimony and explained that if the temperature 

gets too hot during the cycling procedure the TAQ polymerase would 

be destroyed. If the temperature does not get hot enough, the DNA 

will not separate and amplification will not occur. In either 

event, there would be no result. 

Moore complains that AGTC ran the denaturation phase of the 

PCR analysis at 93' Celsius, plus or minus two degrees, when the 

Cetus kit specified that the phase be conducted at a temperature of 

94' Celsius, plus or minus two-tenths of one degree. Once again, 

Dr. Schanfield provided an adequate explanation for this 

difference, by stating that AGTC had to consider the elevation of 

its laboratory in Denver when setting the appropriate temperature 

for the thermal cycler. 

2. Proper Procedures 

Moore argues that the most critical error by AGTC was its 

failure to follow its own protocol when it did not retest the 

sample of brain tissue which did not amplify. Moore claims it was 

AGTC's policy to amplify a sample twice, and AGTC's failure to 

follow its own protocol should have resulted in the mandatory 

exclusion of the PCR analysis evidence. 

Moore relies on State v. McDohald (1985), 215 Mont. 340, 697 

P.2d 1328, to support his position that AGTC1s failure to use 
proper procedures results in a mandatory exclusion of the evidence. 

In McDonald, the defendant was convicted of DUI based in part on a 

blood alcohol test report and testimony concerning the report. 

McDonald, 697 P.2d at 1330. This Court reversed and remanded the 

conviction finding that there was inadequate foundation for the 

report's admission, because it did not conform to the statutory and 

administrative rule requirements concerning blood alcohol testing. 

We held that a defendant charged with a DUI was entitled to have a 

proper foundation laid which incorporated the administrative rules 

on proper test procedures. McDonald, 697 P.2d at 1331-32. 

However, Moore's reliance on McDonald is unpersuasive. AGTC 

did not fail to follow its protocol, nor has Moore alleged or 

established the omission of a procedure created by statute or 

administrative rule for the admission of PCR analysis evidence. 

The testimony showed that AGTC received two samples of the 

piece of brain tissue, sample A, and sample B. Mr. Wahl put both 

samples through the PCR procedure, however, sample B did not 

amplify. Mr. Wahl testified that sample size permitting, it was 

AGTC's policy to amplify the DNA extract or sample twice. However, 

Mr. Wahl also explained that if a second amplification procedure 

would use up all of the sample, AGTC would not amplify it twice 

because "[wle [AGTC] strive at all times to maintain at least half 

of the sample for referee analysis." Mr. Wahl also testified that 

if AGTC amplified the samples a second time, they would have used 

up "most if not all, of the extract, not allowing any extract for 

referee analysis." 
We conclude that Moore's challenges concerning AGTC1s failure 

to retest the brain tissue sample go to the weight of the evidence, 

and not its admissibility. 

3. Testimonv of Tom Wahl and Dr. Schanfield 

Moore argues that Tom Wahl, who performed the PCR testing 

procedure for AGTC, is unqualified to perform the PCR testing, and 

consequently Dr. Schanfield should not have been allowed to render 

his expert opinion on Mr. Wahl's test results. Moore primarily 

criticizes the proficiency tests Mr. Wahl conducted, and maintains 

that the results of the proficiency tests show, among other things, 

contamination in some test results and an inability to get 

reproducible results. The District Court allowed Mr. Wahl to 

testify at trial as to the lab protocols performed and Dr. 

Schanfield then interpreted the results for the jury. 

Rule 702, M.R.Evid., governs the testimony of expert 

witnesses. That rule provides: 

If scientific, technical, or other specialized knowledge 

will assist the trier of fact to understand the evidence 

or to determine a fact in issue, a witness qualified as 

an expert by knowledge, skill, experience, training, or 

education may testify thereto in the form of an opinion 

or otherwise. 

The determination of whether a witness is qualified rests 

within the sound discretion of the trial court, and such a 

determination will not be disturbed on appeal absent a showing of 

abuse of discretion. State v. Evans (1991) , 247 Mont. 218, 228-29, 

806 P.2d 512, 519. The degree or extent of a witnessesr 

qualifications affects the weight of the expert's testimony, not 

its admissibility. Evans, 806 P.2d at 519. citinq, State v. art in 

29 
(1987), 226 Mont. 463, 736 P.2d 477. Furthermore, crossexamination is the shield to guard against unwarranted opinions. 

Evans, 806 P.2d at 519, citing, Stewart v. Casey (1979), 182 Mont. 

185, 193, 595 P.2d 1176, 1180. 

The record clearly reveals that Mr. Wahl is qualified to 

testify as an expert witness on the basis of both his educational 

background and his experience. In fact, Moore's only challenge to 

Mr. Wahlrs qualifications goes to the results of Wahlrs proficiency 

tests, not Mr. Wahl's lack of education, training or experience. 

We conclude that Moore failed to demonstrate that Mr. Wahl was not 

qualified as an expert on the basis of the proficiency test 

results. Moore's challenges to the proficiency testing go to the 

weight of the evidence, not its admissibility. 

Even if Moore's argument concerning the error rate of Mr. 

Wahlrs proficiency tests is meant to challenge the reliability of 

the PCR analysis, this argument would not result in exclusion of 

the PCR evidence. Under the Daubert test, the error rate is only 

one factor in the non-exclusive list of factors to be considered in 

addressing the admissibility question. Bonds, 12 F.3d at 560. We 

conclude that Moore did not demonstrate that Mr. Wahlrs rate of 

error was unacceptable in the scientific community, or rendered the 

test results inadmissible. 

Based on Moore's contention that Mr. Wahl was unqualified to 

testify, he argues that Dr. Schanfield should not have been able to 

interpret Mr. Wahl's test results. In light of our conclusion that 

Mr. Wahl was qualified to perform the PCR testing procedures and 
that any alleged error in the proficiency tests did not render the 

testing procedure inadmissible, we conclude that Moore's argument 

is without merit. 

Pursuant to Rule 703, M.R.Evid, experts can base their 

opinions on facts or data perceived by the experts, or made known 

to them at or before the hearing. In the instant case, the 

District Court found that Mr. Wahl did not have the qualifications 

to interpret the PCR analysis results. Therefore, the State 

introduced evidence concerning the results of the PCR analysis 

through Dr. Schanfield. As is explained by Imwinkelried, Courtroom 

Criminal Evidence § 625 (2d ed. 1993), this method is well 

recognized. 

For example, a technician operates the X-Ray machine but 

is not qualified to interpret the results. Similarly, a 

police officer could qualify as an expert in the 

operation of a breathalyzer but would not have the 

requisite expertise to interpret the results. A 

physician or other expert would have to testify about the 

relationship between the alcohol content of the breath 

and the effect on the brain[.] 

The District Court did not abuse its discretion in allowing 

Dr. Schanfield to rely on Mr. Wahlrs PCR testing procedures in 

forming his opinion as to the test results. 

4. PCR analvsis is not sufficiently reliable for forensic 

purposes. 

In his final challenge to the PCR analysis evidence, Moore 

contends that PCR analysis in general is not sufficiently reliable 

for forensic use. In support of his argument Moore primarily 

relies on a report prepared by the Committee on DNA Technology in 

Forensic Science, under the auspices of the National Academy of 
Sciences. The report, entitled DNA Technoloqv in or en sic Science 

(~ational Acadamy Press 1992) (hereinafter DNA Technology), was 

prepared by a committee of scientists and jurists to address the 

status of forensic DNA typing. State v. Cauthron (Wash. 1993), 846 

P.2d 502, 504. 

According to the report, "one of the most serious concerns 

regarding PCR-based typing is contamination of evidence samples 

with other human DNA." DNA Technology at 65. Moore contends that 

this potential for contamination makes the PCR analysis evidence 

unreliable and, therefore, inadmissible. 

In the instant case, the record reveals that the experts 

handling the piece of brain tissue were aware of the possibility of 

contamination, and took appropriate steps to avoid and detect 

contamination of the specimen. Although Moore raises the issue of 

the potential for contamination, he fails to demonstrate whether 

contamination of the tissue actually occurred. 

Moore also presented a theory that the piece of brain tissue 

could have been something other than human tissue which was 

contaminated by Brisbin's blood. Moore's expert Dr. Blake, a plant 

geneticist at Montana State University, conducted an experiment 

wherein he placed human blood onto a piece of deer brain. Dr. 

Blake then put the sample through a PCR process to amplify the DQalpha gene. The results of the test showed that the human blood 

placed upon the deer brain would amplify the DQ-alpha gene. 

While Moore's experiment does support his theory that the 

piece of brain tissue found in the camper may have been deer brain 
which had been covered with some of Brisbinfs blood, the theory 

does not prove Moore's underlying contention, that PCR analysis is 

unreliable for forensic use and, therefore, inadmissible. Moore's 

experiment simply provided the jury with an alternate explanation 

to the piece of brain tissue, i.e., that Brisbin may not have been 

the donor of the piece of brain tissue. 

Moore's challenge to the reliability of PCR analysis in 

forensic use was recently addressed by the Oregon Court of Appeals. 

The Oregon Court noted: 

There is, however, disagreement among experts about 

whether the PCR method is appropriate for forensic use. 

The disagreement centers primarily on the fact that 

samples obtained at the crime scene are often produced 

and recovered under adverse conditions that can result in 

various forms of contamination before the sample ever 

reaches a laboratory. The potential for contamination is 

present in the collection, identification and retention 

of most forms of forensic type evidence. The potential 

for contamination presents an "open field" for crossexamination at trial, but does not indicate that the PCR 

method is inappropriate for forensic use. 

State v. Lyons (0r.App. 1993), 863 P.2d 1303, 1309. 

The District Court determined that the PCR analysis evidence 

met the initial test for admissibility, and that Moore's arguments 

were a matter of weight for the jury to determine. We agree with 

the trial court, and hold that the District Court did not abuse its 

discretion in admitting evidence concerning the PCR analysis. 

Issue 4. 

Whether the District Court erred in denying Mooref s 

motion to suppress a statement he made to Sqt. Burns 

while being transported in a patrol car? 

On November 23, 1990, Moore was brought into the West 

Yellowstone police station for an interview. Four officers were 
present, Sheriff C. Ron Cutting, Lt. Bill Slaughter, Lt. Bob 

Pearson, and Sgt. Kevin Burns. After being advised of his Miranda 

rights, Moore signed a waiver of the rights and agreed to answer 

questions without the presence of counsel. 

During the interview, Moore stated that he had used a .357 

revolver to shoot at some rats in his camper.' Moore also told the 

officers that they were welcome to have the .357 revolver. The 

interview concluded after Moore invoked his right to counsel for 

the third time. Sgt. Burns then drove Moore home to pick up the 

gun. Moore could not drive himself home as the police had just 

seized his pickup. En route, Sgt. Burns made the following 

statement, "[Ylou know, make sure you don't do anything to 

yourself. You know, nothing is that bad." Moore responded, "if I 

did something to myself then we'd never find Brad." 

Moore moved to suppress the statement he made while in the 

patrol car. The District Court denied the motion, concluding that 

Moore was not in custody and that his statement was entirely 

voluntary and was not made as part of a custodial interrogation. 

Therefore, this Court must determine if the District Court 

correctly concluded that: (1) Moore was not in custody at the time 

he made the statement to Burns; and (2) Burns had made no effort to 

interrogate Moore. State v. Flack (1993), 260 Mont. 181, 185, 860 

P.2d 89, 92. 

. The District Court granted Moore's motion to suppress the 

statements he made at this interview. This Court 

affirmedthe District Court's suppression ruling in State 

v. Moore (1991), 250 Mont. 254, 818 P.2d 835. 
In support of his claim of error, Moore characterizes the 

interrogation technique used by the officers at the police station 

as a suicide colloquy; i.e., the officers used Moore's confused 

mental state to convince him that if he did not confess, he was 

likely to commit suicide. According to Moore, the statement Burns 

made in the patrol car was simply a continuation of that technique. 

In determining whether a custodial interrogation has occurred, 

this Court examines whether a "reasonable personn would feel free 

to leave. State v. Staat (l99l), 251 Mont. 2, 6, 822 P.2d 643, 

646. If a reasonable person does not feel free to leave, then the 

examination is custodial. Staat, 822 P.2d at 646. The 

determination of what constitutes custodial interrogation is made 

on a case-by-case basis. Staat, 822 P.2d at 646. 

In this case, the facts clearly indicate that Moore was in 

custody at the time he made the statement to Sgt. Burns. Moore had 

been taken into the police station for questioning, where he was 

advised of his Miranda rights. During the interview Moore offered 

to provide the officers with a gun he had at home. After the 

interview concluded, Sheriff Cutting asked Sgt. Burns to go with 

Moore to get the gun. Burns then told Moore, tt[w]e might as we12 

get in my vehicle." Moore was not allowed to drive his vehicle 

home as it had just been seized. 

Having concluded that Moore was in custody while riding in the 

police car, we must next determine whether Moore was interrogated 

by Sgt. Burns after Moore had invoked his right to counsel. Flack, 

860 P.2d at 92. 
In Rhode Island v. Innis (1980), 446 U.S. 291, 100 S.Ct. 1682, 

64 L.Ed.2d 297, the United States Supreme Court addressed the 

meaning of tlinterrogationgl under the holding of Miranda v. Arizona 

(1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 692. The United 

States Supreme Court held that interrogation included express 

questioning and persuasion techniques while a subject was in 

custody. Innis, 446 U.S. at 299, 100 S.Ct. at 1689, 64 L.Ed. 2d 

at 307. According to the Court, interrogation includes "any words 

or actions on the part of the police . . . that the police should 

know are reasonably likelyto elicit an incriminating response from 

the suspect.'' Innis, 446 U.S. at 301, 100 S.Ct. at 1689-90, 64 

L.Ed.2d at 307-08. The focus of the inquiry is on the perception 

of the suspect and not the perceptions of the police. However, the 

Court recognized that the police should not Itbe held accountable 

for the unforeseeable results of their words or actions," and 

therefore, limited the definition of interrogation to "words or 

actions on the part of police officers that they should have known 

were reasonably likely to elicit an incriminating response." 

(Emphasis in original) Innis, 446 U.S. at 301-02, 100 S.Ct. at 

1690, 64 L.Ed.2d at 308. 

Applying this test to the case before us, we conclude that 

Moore was not interrogated within the meaning of Miranda. First, 

although Sgt. Burns was present during the initial interview, he 

did not participate in any direct questioning of Moore. Second, we 

are not convinced that the officers conducted the interviews using 

a suicide colloquy. Sheriff Cutting testified that there was no 
plan or tactic used to interview Moore, other than to confront him 

with new evidence. Finally, Burns testified that he had known 

Moore for years, and had made the statement in the patrol car out 

of concern for Moore's well being. Burns had no reason to know 

that Moore would respond to the statement in the manner that he 

did. 

Given these facts, Sgt. Burnsr statement cannot be 

characterized as reasonably likely to elicit an incriminating 

response. Although the District Court was incorrect in concluding 

that Moore was not in custody, it was correct in determining that 

Sgt. Burns made no effort to interrogate Moore, and that any 

statements Moore made during this time were voluntary and 

admissible at trial. Where the result reached by the district 

court is correct, we will uphold it upon appeal regardless of the 

reasons given for the result. Kephart v. Portmann (1993), 259 

Mont. 232, 236, 855 P.2d 120, 122-23. We therefore affirm the 

District Court's denial of Moore's motion to suppress. 

Issue 5. 

Whether the District Court erred in denying Moore's 

motions for a change of venue and motion for individual 

voir dire on the issue of pretrial publicity? 

Moore moved for a change of venue on April 24, 1991, alleging 

that the extensive pretrial publicity his case had received made it 

impossible for him to receive a fair and impartial trial in 

Gallatin County. The District Court denied this motion in a 

Memorandum Opinion filed on January 16, 1992, wherein the court 

found that up to that point in time, the "[plress reports of this 
case have been uniformly professional, free of bias, prejudice, 

inflammatory matters, and comment." The court however reserved the 

right to monitor and re-examine the issue during selection of the 

jury panel. Moore renewed his motion for a change of venue on 

September 4, 1992. The District Court denied the motion in a 

written order dated September 24, 1992. 

Moore also moved the court for individual voir dire on the 

issue of pretrial publicity. Although the District Court 

originally granted the motion, it later reversed itself, deniedthe 

motion, and required that voir dire be conducted in open court. On 

appeal, Moore maintains that the District Court erred in denying 

his motions. , 

This Court will reverse a district court's denial of a motion 

for change of venue or motion for individual voir dire only upon a 

showing of an abuse of discretion. State v. Sunday (1980)' 187 

Mont. 292, 298, 609 P.2d 1188, 1192. 

Criminal defendants have a constitutional right to a trial by 

an impartial jury, and failure to provide an impartial tribunal is 

a violation of due process. U. S. Const. amend. VI, Mont. Const. 

Art. 11, Sec. 24. Additionally, § 46-13-203(1), MCA, permits a 

defendant to move for a change of venue when "there exists in the 

county in which the charge is pending such prejudice that a fair 

trial cannot be had in the county.It 

A defendant is entitled to a change of venue if it appears 

there are reasonable grounds to believe that prejudice exists and 

that by reason of the prejudice, there is a reasonable apprehension 
that the accused cannot receive a fair and impartial trial. State 

v. Link (1981), 194 Mont. 556, 559-60, 640 P.2d 366, 368. A 

defendant seeking a change of venue on the basis of prejudicial 

pretrial publicity must prove two elements: (1) that the news 

reports were inflammatory; and (2) that the news reports actually 

inflamed the prejudice of the community to an extent that a 

reasonable possibility exists that the defendant may not receive a 

fair trial. State v. Bousquet (1991), 248 Mont. 53, 56, 808 P.2d 

506, 508. (Citations omitted.) 

The test requires us to examine whether the publicity was of 

sufficient inflammatory nature so as to generate a widespread 

belief among the community of the defendant's guilt. State v. 

Miller (1988), 231 Mont. 497, 505, 757 P.2d 1275, 1280. This Court 

has characterized inflammatory publicity as: 

editorializing on the part of the media or any calculated 

attempt to prejudice public opinion against [defendant] 

or to destroy the fairness of the pool from which [the 

defendant's] prospective jurors would be drawn. 

State v. Nichols (1987), 225 Mont. 438, 444, 734 P.2d 170, 173-74. 

(Citation omitted.) 

Moore alleges that from December 7, 1990, until the time of 

trial, potential jurors were exposed to approximately one article 

a week pertaining to Moore and the homicide. These numbers, 

according to Moore, show the pervasiveness of the publicity. Moore 

alleges the newspaper articles were inflammatory for a number of 

reasons. Moore claims that the media: emphasized the grief 

experienced by the Brisbin family; printed numerous inflammatory 

remarks from law enforcement officials and prosecutors; and 

39 
portrayed the DNA evidence as "a scientific saviorq4 for the Staters 

case. 

Upon reviewing the numerous newspaper articles submitted by 

Moore, we do not agree that the newspaper reports were 

inflammatory. Although a few reports mentioned Rene Brisbinfs 

grief, it is misleading to characterize the reports as emphasizing 

the family's grief. Regarding the press coverage of the allegedly 

inflammatory remarks made by the State, the remarks published were 

statements made during pretrial proceedings or statements 

concerning the investigation of the case. There was no 

editorializing on the part of the press in reporting these 

statements. 

As to the publicity covering the DNA evidence, given the fact 

that Mooreis case presented the first instance DNA testing was to 

be used in a Montana homicide trial, it is not surprising that the 

press would extensively cover this story. In addition, after 

reviewing the articles concerning the DNA evidence, we conclude 

that the media presented a balanced view of the issue, For 

example, the Bozeman Dailv Chronicle printed an article on March 

10, 1991, entitled tlInvisible Crime Clues. The article states 

that "DNA fingerprinting has been viewed as virtually foolproof in 

linking suspects with crimes." However, the article later reports 

ll[bjut DNA testing is far from perfect. Attorneys have begun 

challenging the process and succeeding, causing the scientific 

community to reexamine the procedure. l1 Given the balanced 

reporting of the DNA issue, we conclude that these articles cannot 
be characterized as inflammatory. 

Moore also alleges that the media coverage of the suppression 

hearings was prejudicial to his case. While facially it appears 

that publication of suppressed statements is prejudicial to a 

defendant's case, mere allegations of prejudicial pretrial 

publicity are an insufficient basis on which to grant a motion for 

a change of venue. Rather, defendant must show that the publicity 

actually inflamed community prejudice to such an extent that the 

defendant is denied a fair trial. State v. Ritchson (1982), 199 

Mont. 51, 54, 647 P.2d 830, 832. 

Moore maintains that the public opinion survey he had 

commissioned demonstrates that he was denied a fair trial. The 

survey questioned 106 persons in Gallatin County concerning the 

media's coverage of Moore's case. The survey results showed that 

85.8 percent of the respondents had been exposed to media coverage 

concerning the case. Approximately thirty percent (30.2%) said 

they had an opinion, while 50.9 percent said they did not have an 

opinion and 15.1 percent said they did not know. Therefore, twothirds of the respondents either had not formed an opinion or did 

not know if they had formed an opinion about the case as a result 

of the media coverage. 

Moore relies on State v. Paisley (1983), 204 Mont. 191, 663 

P.2d 322, as authority for the proposition that even where a survey 

does not overwhelmingly indicate the likelihood that a defendant 

will not receive a fair trial in the county, a defendant may still 

be entitled to a change of venue. However, Paisley is 
distinguishable because in that case, the media coverage was 

inflammatory, while in the instant case it was not. 

The defendant in Paisley, was charged with both misdemeanor 

and felony sexual assault. A trial on the misdemeanor charge was 

held in justice court prior to his being tried on the felony 

charges. Paislev, 663 P. 2d at 323. The trial in justice court 

received extensive coverage, and upon the justice court's return of 

a guilty verdict, the local newspaper reported that the justice 

court judge told the defendant: "[Tlhe evidence presents you as 

being guilty of more than the particular offense charged." In 

addition the paper reported that "[The judge] said he was amending 

the formal charge to include misdemeanor charges against [the 

defendant] that could have resulted from the incidents detailed in 

the testimony of the witnesses." The witnesses were the alleged 

victims of the pending felony charges. Paislev, 663 P.2d at 324. 

As previously discussed, our review of the newspaper articles 

submitted by Moore evidences that the pretrial publicity in this 

case was not inflammatory. Unlike the media coverage in Paislev, 

the newspaper reports did not present Moore as being guilty of the 

crimes charged before he received his trial. 

Even Moore concedes in his brief that I1[t]he results of Dr. 

Floyd's survey did not overwhelmingly indicate, one way or the 

other, that Mr. Moore would or would not receive a fair and 

impartial trial in Gallatin County." Moore's acknowledgement that 

the survey results were inconclusive combined with the fact that 

the pretrial publicity was not inflammatory demonstrates that Moore 
was not denied his right to a fair trial. 

Moore also contends that because over one-third of the panel 

immediately excused themselves after being asked if they could not 

sit fairly on the case for any reason demonstrates the extent and 

prejudicial nature of the pretrial publicity. However, the record 

fails to support this claim. Two of the jurors stated the reason 

they were unable to serve was because they knew someone in the 

Brisbin family. One juror stated he had knowledge of the case due 

to his extensive dealings with law enforcement. And two others 

indicated they could not convict the defendant of homicide unless 

the State produced the victim's body. 

The jurors were questioned about their exposure to pretrial 

publicity. While most indicated they had read or heard something 

about the case, they all stated they would base their decisions 

only upon the evidence they received from the witnesses and 

exhibits presented at trial. 

Living, as we do, in a society which is continuously inundated 

with news coverage by the print and broadcast media, it is doubtful 

that most members of the community will not share some knowledge 

of, or about, a locally high-profile crime, and the various persons 

allegedly involved in its commission or in its investigation. 

Given the inevitable conflict with the media's constitutional right 

of free speech, the public's constitutional right to know, and the 

accused's constitutional right to a fair trial, it remains the task 

of the district court, in such cases, to scrupulously examine the 

evidence supporting a motion for change of venue to insure that the 
jurors who will ultimately decide the guilt or innocence of the 

accused are fair minded and uninfluenced by what they may have 

seen, heard or read. That conclusion must necessarily be based 

upon not only the jurors' responses in voir dire, but also on a 

careful analysis of the quantity and content of the pretrial 

publicity. Each case is unique and must be decided on its own 

merits. Bourquet, 808 P.2d at 508. While this was a difficult 

case, we are nevertheless satisfied that the trial judge 

conscientiously considered this issue, and that despite the 

pervasiveness of the media coverage, it was generally balanced and 

fair. We conclude the jurors who decided Moore's fate were not 

disposed to guilt or innocence by what they may have seen, heard or 

read in the media. 

We further conclude that Moore failed to establish either that 

the news reports were inflammatory or that the reports actually 

inflamed the prejudice of the community. Therefore, we hold that 

the District Court did not abuse its discretion in denying Moore's 

motions for a change of venue. 

Finally, Moore argues that the District Court erred in denying 

his motion for individual voir dire on the issue of pretrial 

publicity. The District Court determined that the need for 

individual voir dire could be assessed during the jury selection 

process, and permitted individual voir dire upon counsel's request. 

In deciding whether to close voir dire, this Court has held: 

Closed voir dire has been found unnecessary where the 

publicity is factually accurate and contains the 

essential facts of the crimes which would ultimately be 

presented to the jury anyway. The trial judge's plan to 
question individual veniremen in chambers should the need 

arise would have been adequate had it been properly 

implemented. This is especially true since the veniremen 

were cautioned that if they had strong opinions about the 

case, they should notify the judge. (Citation omitted.) 

Nichols, 734 P.2d at 174 

In the instant case, the court found that the publicity was 

"uniformly professional, free of bias, prejudice, inflammatory 

matters, and comment. The court also allowed individual voir 

dire upon counsel's request. Therefore, we hold that the District 

Court did not abuse its discretion in denying Moore's motion for 

individual voir dire. 

Issue 6. 

Whether the District Court erred when it denied 

Moore's motion for a new trial on claims of juror 

misconduct? 

On January 19, 1993, Moore moved for a new trial alleging, 

among other things, juror misconduct as a result of two contacts 

Moore had with juror Tina Coulston during trial which occurred 

outside of the courtroom. During trial, Ms. Coulston told some of 

the other jurors about these contacts. Ms. Coulston also related 

a bad dream she had about Moore to some of the other jurors just 

prior to deliberations. 

After learning that Ms. Coulston made these remarks to other 

jurors, Moore moved for a new trial two months after the verdict. 

Moore alleged in his motion that "one of the jurors expressed an 

opinion during deliberations to the other jurors that she was being 

stalked by the defendant in the course of the trial." 

Pursuant to Moore's motion, a hearing was held where Ms. 
Coulston testified that on two different occasions, Moore had come 

out to the Gallatin County airport cafe and ordered coffee. Ms. 

Coulston testified that she acted as Moore's waitress on both 

occasions, as she was the only waitress on duty, and that she did 

not talk to him on either occasion. Ms. Coulston also testified 

the contacts made her uncomfortable, but that she did not feel 

threatened. Ms. Coulston testified that she never used the term 

stalking when explaining the situation, and did not know where the 

term came from. In addition, the other jurors who testified 

concerning the stalking allegation related that Ms. Coulston did 

not use the term wstalking." 

The following testimony from the hearing on Moore's motion for 

a new trial, evidences that Ms. Coulston did not relate to other 

jurors or anyone else, that she believed Moore was stalking her, 

following her, or that she felt threatened by the incidents. 

Q: [By defense counsel] During the trial, do you recall 

telling Patrick Fleming or saying in his presence at a 

lasagna party that Larry Moore was stalking you, 

following you, or watching you? 

A: [By Ms. Coulston] I did not say that. 

Q: Did you express concern regarding your belief that 

you were being watched by Larry Moore? 

A: NO. 

Q: You did not express concern to the other jurors? 

A: Just that he was there and he made me uncomfortable. 

Q: And you told two different groups of jurors during 

the trial when they were sitting as active jurors in this 

4 6 
case Mr. Moore was watching you, isn't that correct? 

A: I did not say he was watching me. I told them about 

the incident at the airport. 

Q: An you indicated by your tone of voice and by your 

expressions and by your gestures that you felt threatened 

by Mr. Moore, isn't that correct? 

A: NO. 

Q: And as a matter of fact, Miss Coulston, you did feel 

threatened by Mr. Moore, didn't you? 

A: No, I did not. 

When testifying about relating her dream to the other jurors, 

Ms. Coulstonrs stated that she could not remember the specifics of 

her dream, just that she had a bad dream. However, Juror Knight 

testified that Ms. Coulston related to other jurors that "[Ms. 

Coulston] dreamed that we all found Larry guilty, and he had a gun 

and he shot Mr. Jent and you, [Jent's co-counsel] and he grabbed 

her out of the jury box and ran off with her." 

After considering the testimony at the hearing, the District 

Court denied Moore's motion finding no evidence to support the 

allegation of juror misconduct concerning either the %talkingtt 

claim or in relating the dream. We agree. 

The decision whether to grant a new trial is left to the sound 

discretion of the trial judge. Absent an abuse of discretion, we 

will not overturn a denial of a motion for a new trial on appeal. 

State v. Arlington (1994), 51 St.Rep. 417, 427, 875 P.2d 307, 321; 

State v. Staat (1991), 251 Mont. 1, 9-10, 822 P.2d 643, 648. 

Initially, we address the State's argument that the District 

Court was without jurisdiction to consider Moore's motion for a new 
trial, because he failed to file his motion within 30 days of the 

verdict as is required by statute. Section 46-16-702, MCA, 

provides in pertinent part: 

Motion for a new trial. (1) Following a verdict or 

finding of guilty, the court may grant the defendant a 

new trial if required in the interest of justice. 

(2) The motion for a new trial must be in writing 

and must specify the grounds for a new trial. The motion 

must be filed by the defendant within 30 days following 

a verdict or finding of guilty and be served upon the 

prosecution. 

Moore argues that our decision in State v. Redcrow (1990) , 242 

Mont. 254, 790 P.2d 449, provides two exceptions to the 30 day time 

limit: (1) if the motion was filed within a reasonable period of 

time after the verdict; and (2) if the crime is of a serious 

nature. However, in Redcrow we noted that those factors did not 

require the district court to entertain the motion, but 

nevertheless, we agreed to address the issue as a result of the 

district court's extensive consideration of the motion. Redcrow, 

790 P.2d at 452. Similarly, in the instant case, because the 

District Court gave extensive consideration to Moore's motion for 

a new trial, and because this is a serious case, we shall address 

the merits of the motion. 

A defendant's right to a fair and impartial jury is guaranteed 

by both our state and federal constitutions. Mont. Const. Art. 11, 

Sec. 24 ; U. S. Const. amend. VI. Moore argues that when a defendant 

moves for a mistrial based on ex parte contact, the defendant is 

afforded a presumption of prejudice. We disagree. 

Where a defendant moves for a mistrial based on juror 

misconduct resulting from ex parte contact, the defendant must 
demonstrate "actual prejudicet1 in order to receive a new trial. 

State v. Hage (1993), 258 Mont. 498, 503, 853 P.2d 1251, 1254, 

citing, united states v. Madrid (9th Cir. 1988), 842 F.2d 1090, 

1094-95, cert. denied 488 U.S. 912, 109 S.Ct. 269, 102 L.Ed. 2d 256. 

The Ninth circuit Court in Madrid distinguished between cases where 

ex parte contact provided Itextraneous informationI1 to the jury, and 

ex parte contact which did not pertain to "any fact or controversy 

or any law applicable to the case." The court held that the 

defendant must prove actual prejudice in cases which do not involve 

the unauthorized submission of extraneous information to the jury. 

Madrid, 842 F.2d at 1093. 

Here the District Court concluded that the contact did not 

result in the jury receiving any extraneous information. The court 

summarized its ruling as follows: 

There had been no discussion between the defendant 

and Miss Coulston. There had been no discussion of the 

case between Miss Coulston and any of the other jurors. 

What really occurred was that Mr. Moore was at the 

Gallatin County airport to pick up or deliver his sister 

or his mother, who were in attendance at one time or 

another during the course of this trial, and saw Ms. 

Coulston there. 

So it's going to be the Court's ruling with respect 

to that issue that it is insufficient and inadequate as 

a matter of law to impeach the jury verdict or to cause 

this Court to grant a new trial or to cause this Court to 

set aside the jury verdict in this case. 

We agree that no extraneous information was submitted to the jury 

as a result of Ms. Coulston's relating the incidents. There was 

testimony that the defendant and the juror had seen each other at 

the Gallatin County airport. The extent of the contact was that 

Ms. Coulston acted as Moore's waitress. Moore kept his head down 
and did not engage Ms. Coulston in any conversation. 

We conclude that Ms. Coulston did not discuss any fact in 

controversy or any law applicable to the case with either Moore or 

other jurors. Ms. Coulston merely mentioned an incident that had 

occurred to her about which she was concerned. 

In alleging that Ms. Coulston related to other jurors that she 

felt Moore was stalking her during trial, we first observe that the 

evidence does not support the accusation. Moreover, it appears 

that Moore is attempting to take advantage of his own conduct. 

During the trial Moore went to the airport cafe on two occasions 

and ordered food or coffee from Ms. Coulston. Ms. Coulston had to 

serve Moore as she was the only waitress on duty. Ms. Coulston 

related to other members of the jury that she was concerned by the 

contact. However, there is no evidence in the record that the 

"stalkingB1 term came from the juror, or that she made remarks that 

Moore had "stalked" her during trial. 

The law will not allow a defendant to purposefully create 

grounds for a mistrial. ''To hold otherwise would provide a 

criminal defendant with a convenient device for provoking a 

mistrial whenever he chose to do so, either inside or outside the 

courtroom. " Hammond v. United States (D. C.App. 1975) , 345 A. 2d 

140, 141. We agree with the reasoning of the Supreme Court of 

Maine which held: 

[A] defendant who seeks to prejudice his own case by 

[contact with a juror], and keeps that contact secret 

until an unfavorable verdict is returned, cannot claim to 

be prejudiced by his own misdeed. 

State v. Nielson, (Me. 1989), 552 A.2d 543, 545. 
Although he was permitted an evidentiary hearing to prove his 

allegations of juror misconduct, Moore failed to prove that juror 

misconduct occurred, or that his right to a fair trial was 

prejudiced. Rather, it appears that Moore was simply trying to 

take advantage of his own acts. 

Moore also contends that it was juror misconduct for Ms. 

Coulston to have related her dream about Moore to the jury. The 

State counters that the dream is beyond the scope of inquiry 

pursuant to Rule 606(b), M.R.Evid. 

Rule 606(b), M.R.Evid., provides in pertinent part: 

Inquiry into validity of verdict or indictment. Upon an 

inquiry into the validity of a verdict or indictment, a 

juror may not testify as to any matter or statement 

occurring during the course of the jury's deliberations 

or to the effect of anything upon that or any other 

juror's mind or emotions as influencing the juror to 

assent or dissent from the verdict or indictment or 

concerning the juror's mental processes in connection 

therewith. . . However, as an exception to this subdivision, a 

juror may testify . . . as to any matter or statement 

concerning only the following questions, whether 

occurring during the course of the jury's deliberations 

or not: (1) whether extraneous prejudicial information 

was improperly brought to the jury's attention; or (2) 

whether any outside influence was brought to bear upon 

any juror. . . 

This Court has held that "[a] juror's physical, mental, and 

emotional condition is inherent in the verdict, and the effect of 

such a condition on a juror's vote is within the prohibition of 

Rule 606 (b) .'I Haqe, 853 P. 2d at 1257, citing State v. DeMers 

(1988), 234 Mont. 273, 277-278, 762 P.2d 860, 863. After an 

extensive search, this Court was unable to find any authority 

indicating that a juror's relating a dream to other jurors 
constituted either impermissible extraneous prejudicial 

information, or an outside influence. Therefore, we hold that any 

inquiry into Ms. Coulston's dream is prohibited pursuant to Rule 

606 (b) , M.R. Evid., as it relates to her mental process, and because 

it cannot be characterized as an exception to the rule. 

During the trial Ms. Coulston approached the bailiff, and 

related that Moore had been out at the airport cafe. Ms. Coulston 

explained she was concerned about the contact, and thought it was 

very peculiar that Moore would travel all the way to the airport to 

eat. The bailiff asked Ms. Coulston whether Moore had talked to 

her. Upon learning that Moore did not say anything, the bailiff 

told Ms. Coulston that she (the bailiff) would bring the matter to 

the judge's attention, and would let Ms. Coulston know if the court 

had any further concerns. The bailiff related the matter to the 

judge, and the matter never came up again during the trial or 

deliberations. Moore argues that the District Court erred by 

failing to immediately notify counsel of the situation after Ms. 

Coulston contacted the bailiff. 

Moore alleges that had he learned of this incident during 

trial, he would have questioned Ms. Coulston and the other jurors 

during trial to determine what she had conveyed to them concerning 

the incident. If the defense determined Ms. Coulston had related 

that she felt she was being stalked by Moore, the defense would 

have asked the court to remove Ms. Coulston from the jury and to 

seat one of the alternate jurors. 

Moore's claims are without merit. He was afforded a hearing 
after trial but could not demonstrate prejudice. As stated by the 

United States Supreme Court in Rushen v. Spain (1983), 464 U.S. 

When an ex parte communication relates to some aspect of 

the trial, the trial judge generally should disclose the 

communication to counsel for all parties. The 

prejudicial effect of a failure to do so, however, can 

normally be determined by a post-trial hearing. The 

adequacy of any remedy is determined solely by its 

ability to mitigate constitutional error, if any, that 

has occurred. Post-trial hearings are adequately 

tailored to this task. (Citations omitted.) 

The United State Supreme Court addressed the issue of juror 

misconduct as a result of ex parte contact in Smith v. Phillips 

(1982), 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78. There a juror 

applied for a job as an investigator with the district attorney's 

office during the defendant's trial. The prosecution did not 

disclose this information until after the verdict had been 

rendered, and the defendant moved to set aside the verdict. Smith, 

455 U.S. at 212-13, 102 S.Ct. at 943-44, 71 L.Ed.2d at 83-84. The 

trial court denied the motion after holding a post-trial hearing, 

at which the defendant failed to demonstrate prejudice. Smith, 455 

U.S. at 213-14, 102 S.Ct. at 944, 71 L.Ed.2d at 84. The defendant 

argued to the United States Supreme Court that jurors' testimony 

could not be relied upon to determine whether they were impartial, 

and maintained that the law must impute bias to jurors in these 

situations. Smith, 455 U.S. at 215, 102 S.Ct. at 944-45, 71 

L.Ed. 2d at 85. The Supreme Court disagreed, stating, "[tlhis Court 

has long held that the remedy for allegations of juror partiality 

is a hearing in which the defendant has the opportunity to prove 
actual bias." Smith, 455 U.S. at 215, 102 S.Ct. at 945, 71 L.Ed.2d 

at 85. The Court also stated: 

[Dlue process does not require a new trial every time a 

juror has been placed in a potentially compromising 

situation. Were that the rule, few trials would be 

constitutionally acceptable. The safeguards of juror 

impartiality, such as voir dire and protective 

instructions from the trial judge, are not infallible; it 

is virtually impossible to shield jurors from every 

contact or influence that might theoretically affect 

their vote. Due process means a jury capable and willing 

to decide the case solely on the evidence before it, and 

a trial judge ever watchful to prevent prejudicial 

occurrences and to determine the effect of such 

occurrences when they happen. Such determinations may 

properly be made at a hearing like that . . . held in 

this case. 

I Smith 455 U.S. at 217, 102 S.Ct. at 946, 71 L.Ed.2d at 86. 

In conclusion, here, the trial judge held a hearing on Moore's 

motion for a new trial, and Moore failed to demonstrate that his 

right to a fair trial was prejudiced as a result of alleged juror 

misconduct. We therefore hold that the District Court did not 

abuse its discretion in denying Moore's new trial motion on the 

basis of juror misconduct. 

Issue 7. 

Whether the District Court erred when it prohibited 

Moore from impeaching the verdict with juror testimony? 

Among the reasons included in Moore's motion for a new trial 

was his allegation that during deliberations, certain jurors 

expressed opinions based on personal knowledge respecting the 

characteristics of a -357 magnum handgun. According to Moore, one 

of the jurors told the other jurors that he knew a -357 magnum 

handgun could not be fired in rapid succession. Moore argues that 

as a result of the juror relating his opinion, the other jurors 
concluded that Moore's story concerning Brisbin shooting himself 

was inherently incredible. 

The District Court refused to allow Moore to question the 

jurors about the discussion concerning the handgun, ruling that it 

was part of the jury dynamics and therefore any inquiry into the 

matter was precluded by Rule 606(b), M,R.Evid. On appeal Moore 

alleges that the District Court should have allowed juror testimony 

concerning this issue. According to Moore, the juror's comment 

concerning his knowledge of the .357 handgun is similar to the 

situation where a juror conducts an experiment outside of the 

courtroom and then relates the experiment's outcome to the other 

jurors. Therefore, Moore argues he should have been allowed to 

question the jurors regarding this matter pursuant to the 

exceptions to Rule 606 (b) , M.R. Evid, We disagree, and conclude 

that Moore is asking this Court to allow inquiry into the internal 

mechanisms of the jury's decision-making process. 

Rule 606 (b) , M.R. Evid. , precludes inquiry regarding the 

internal mechanisms and processes the jury used to deliberate and 

reach a verdict. However, 'ICwfhere external influence is exerted 

on the jury or where extraneous prejudicial information is brought 

to the jury's attention, juror [testimony] can be the basis for 

overturning the judgment if either party was thereby deprived of a 

fair trial.'' Haw, 853 P.2d at 1257. 

Moore1 s characterization of the discussion about the gun as an 

external influence is erroneous, As we stated in Haw: 

[Kjnowledge and information shared from one juror to 

another or others is not an extraneous influence. Jurors 

55 
are expected to bring to the courtroom their own 

knowledge and experience to aid in the resolution of a 

case.. . . For the juror to have considered the credibility 

of defendant's expert witness within the parameters of 

his own experience and background is insufficient to 

qualify as an exception to Rule 606(b).' 

Haqe, 853 P.2d at 1257-58, quoting State v. DeMers (1988), 234 

Mont. 273, 277-78, 762 P.2d 860, 863 

In DeMers, this Court rejected the defendant's argument that 

one of the jurors influenced the other jurors with his expertise 

regarding the study of bones. We held that a juror's possession of 

knowledge of the human body did not fall under any of the 

exceptions to Rule 606(b), and we affirmed the district court's 

refusal to allow juror testimony concerning the matter. DeMers, 

762 P.2d at 863. Similarly, a juror's consideration and sharing of 

his personal knowledge of a handgun cannot be characterized as an 

external influence or extraneous prejudicial information. There is 

no evidence that any juror conducted any out-of-court experiments 

in this case. We therefore hold that the District Court was 

correct in concluding that inquiry into this matter was precluded 

pursuant to Rule 606(b), M.R.Evid. 

Issue 8. 

Whether the District Court erred when it denied 

Moore's motion for a judgment of acquittal alleging there 

was insufficient evidence to convict him of deliberate 

homicide? 

Moore moved for a judgment of acquittal alleging that there 

was insufficient evidence to convict him of deliberate homicide. 

Moore advances three arguments to support: his motion: (1) the State 

failed to prove that Moore purposely or knowingly caused Brisbin's 
death; (2) the evidence failed the sufficiency analysis for 

circumstantial evidence; and (3) the only evidence which proves 

Brisbinrs death is the piece of brain tissue which was found in 

Moore's camper, and the State did not prove beyond a reasonable 

doubt that the brain tissue was human. 

The decision whether to direct a verdict of acquittal lies 

within the sound discretion of the trial court and will not be 

disturbed absent an abuse of that discretion. The trial court 

should grant a motion for a directed verdict of acquittal only when 

there is no evidence to support a guilty verdict. State v. 

Bromgard (1993), 261 Mont. 291, 293, 862 P.2d 1140, 1141. The 

standard of review for a judgment of acquittal is "whether, after 

viewing the evidence in the light most favorable to the 

prosecution, any rational trier of fact could have found the 

essential elements of the crime beyond a reasonable doubt." State 

v. Mergenthaler (1994), 263 Mont. 198, 203, 868 P.2d 560, 562. We 

address each of Moore's arguments in turn. 

1. Mental State 

Moore was charged with deliberate homicide, which requires the 

State to prove that Moore purposely or knowingly caused the death 

of Brisbin. Section 45-5-102, MCA. Moore claims that the record 

is bare concerning Moore's mental state at the time the homicide 

was committed. 

Section 45-5-112, MCA, provides that "[i]n a deliberate 

homicide, knowledge or purpose may be inferred from the fact that 

the accused committed a homicide and no circumstances of 
mitigation, excuse, or justification appear." While Moore 

recognizes this statute, he claims that it creates a presumption 

which unconstitutionally relieves the State of its burden of 

proving an element of the crime. However, it is well established 

that § 45-5-112, MCA, does not create a conclusive presumption but 

a permissive inference. The ultimate determination is left to the 

finder of fact. State v. Cowan (1993), 260 Mont, 510, 516-17, 861 

P.2d 884, 888. We therefore reaffirm the constitutionality of § 

45-5-112, MCA, and hold that there was sufficient evidence for the 

jury to conclude that Moore purposely or knowingly caused the death 

of Brisbin. 

2. Circumstantial Evidence 

While Moore recognizes that a person may be convicted upon 

circumstantial evidence alone, Bromqard, 862 P.2d at 1142, citing, 

State v. Atlas (1986), 224 Mont. 92, 95, 728 P.2d 421, 423, he 

maintains that "the facts and circumstances in evidence should be 

consistent with each other and the guilt of the defendant, and 

inconsistent with any reasonable theory of the defendant's 

innocence. 

While this may be true, it is the jury's province to judge 

inconsistencies in the evidence and not a matter for the trial 

court to determine on a motion for judgment of acquittal. See, 

Bromqard, 862 P.2d at 1142. Furthermore, this Court has also held 

ll[w]hen circumstantial evidence is susceptible of two 

interpretations, one supporting guilt and the other supporting 

innocence, the trier of fact determines which is most reasonable.'' 
Bromaard, 862 P.2d at 1142, citing, State v. Tome (1987), 228 Mont. 

398, 401, 742 P.2d 479, 481. Moore's allegation that the evidence 

was circumstantial and susceptible of different interpretations 

more properly goes to the weight of the evidence. We therefore 

conclude that Moore's argument that the circumstantial evidence was 

insufficient to prove Moore's guilt beyond a reasonable doubt is 

without merit, and hold that the District Court did not abuse its 

discretion in denying the motion for a judgment of acquittal on 

that basis. 

3. Brain Tissue 

Moore contends that the only evidence which proves Brisbinls 

death is the piece of brain tissue which was found in Moore1s 

camper, and the State did not prove beyond a reasonable doubt that 

the brain tissue was human. Moore states that the experiment Dr. 

Blake conducted demonstrates that the DNA amplified by the PCR test 

could have been any human genetic material (i-e., not cerebellum 

tissue) on a substrate such as deer brain. In fact, Dr. 

Schanfield, the State's expert, readily admitted that deer brain 

mixed with human blood would amplify under the DQ-alpha system. 

Moore states that his theory that the piece of brain tissue was 

actually deer brain or other tissue which had been contaminated by 

Brisbin's blood is further supported by the fact that of the two 

samples of brain tissue, only one sample amplified. However, as 

we stated in issue three, Moore's theory concerning the brain 

tissue provided nothing more than an alternative theory for the 

jury's consideration. Moreover, we do not agree that the piece of 
brain tissue is the only evidence of Brisbinls death. The record 

is replete with evidence of Moore's guilt. Brisbin disappeared on 

the morning of November 9, 1990, after meeting Moore at Bairrs 

truckstop. Because Brisbin was a conscientious father and 

businessman, his disappearance was totally out of character. 

Upon returning to West Yellowstone, on November 9, 1990, Moore 

developed a story that he last saw Brisbin climbing into a car on 

Interstate 90 with a woman driver. When confronted with 

incriminating evidence, Moore began to change his story, and 

eventually developed the story that Brisbin was drunk, threatening 

suicide, and had shot himself in the head after Moore struggled to 

get a gun away from him. Moore testified at trial that he 

initially lied about the facts surrounding Brisbinfs disappearance 

because he thought Brisbin might wan.t to return and take the job as 

undersherif f , which Brisbin had applied for before his 

disappearance, and the incident might jeopardize Brisbini s 

position. 

Moore expended great efforts to destroy evidence in his 

camper, including removing bullet fragments, covering up bullet 

holes, and using a power washer to clean the interior of the 

camper. Attorney Larry Whitman and Sheriff Slaughter each received 

a letter purportedly from Brisbin. In the letter to Whitman, Rene 

Brisbinfs name was misspelled, and it made reference to the alleged 

events which took place in the camper. Moore acknowledged that 

only he and Brisbin could have known what had occurred in Moore's 

camper on November 9, 1990. The signatures on the letters were 
determined to be forgeries. 

In addition, both serological and RFLP analysis of the muscle 

tissue found in the camper indicated that the muscle tissue was of 

human origin, and was consistent with having come from the 

biological father of the Brisbin children. The PCR analysis of the 

brain tissue also indicated that the tissue was human and 

consistent with the father of the children. 

Without going into further detail, based on our review of the 

record, we conclude that the State presented a significant amount 

of evidence upon which a rational trier of fact could find Moore 

guilty beyond a reasonable doubt. Therefore, we hold that the 

District Court did not abuse its discretion in denying Moore's 

motion for a judgment of acquittal. 

Issue 9. 

Whether Moore was denied his right to a speedy 

trial? 

Moore argues he was denied his right to a speedy trial as a 

result of the State's two interlocutory appeals. The State filed 

its first interlocutory appeal on April 25, 1991. The appeal was 

taken from the District Court's ruling which granted Moore's motion 

to suppress evidence of the taped interviews taken by law 

enforcement officials, and which reserved ruling on whether the 

State could use the suppressed evidence for impeachment. This 

Court affirmed the District Court's rulings in our opinion dated 

October 8, 1991. State v. Moore (lggl), 250 Mont. 254, 818 P.2d 

835. 

On January 24, 1992, the State filed its second interlocutory 

61 
appeal. The State appealed from the District Court's order of 

January 16, 1992, suppressing evidence relating to the actions of 

Moore after the shooting of Brisbin, and the testimony of two 

potential witnesses. We reversed the District Court's suppression 

rulings on all issues. State v. Moore (19921, 254 Mont. 241, 836 

P.2d 604. We issued our second opinion on August 20, 1992. 

The right to a speedy trial in a criminal prosecution is 

guaranteed by the Sixth Amendment to the United States 

Constitution, and Article 11, Section 24 of the Montana 

Constitution. State v. Stewart (1994), 51 St.Rep. 910, 881 P.2d 

629, 632. Montana has adopted the test set forth in Barker v. 

Wingo (l972), 407 U,S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, to 

determine whether the right to a speedy trial has been violated. 

State ex rel. Briceno v. District Court (1977), 173 Mont. 516, 568 

P. 2d 162. The factors this Court must examine are the tt[l]ength of 

delay, the reason for the delay, the defendant's assertion of his 

right, and prejudice to the defendant." Barker, 407 U.S. at 530, 

92 S.Ct. at 2192, 33 L.Ed.2d at 117; State v. Thompson (1993), 263 

Mont. 17, 31-32, 865 P.2d 1125, 1134. 

Moore relies on the United States Supreme Court decision 

United States v. Loud Hawk (1986), 474 U.S. 302, 106 S.Ct. 648, 88 

L.Ed.2d 640, the seminal case on interlocutory appeal and speedy 

trial, to support his contention that he was denied his right to a 

speedy trial as a result of the State's two interlocutory appeals. 

Loud Hawk adopted the four-part test set forth in Barker to 

determine whether a defendantf s right to a speedy trial was 
violated. Loud Hawk, 474 U.S. at 314, 106 S.Ct. at 655, 89 L.Ed.2d 

at 653. However, after applying the Barker factors to the case 

before us, we conclude that Moore's right to a speedy trial was not 

violated. 

Over one year and ten months (692 days) expired between 

Moore's arrest and trial, therefore, the length of the delay is 

presumptively prejudicial. See, State v. Bartnes (1988), 234 Mont. 

522, 527, 764 P.2d 1271, 1275 (175 day delay which was attributable 

mainly to the State found to be presumptively prejudicial); 

Thompson, 865 P.2d at 1135 (203 day delay presumptively 

prejudicial). Because the delay is presumptively prejudicial, the 

remaining three factors must be considered. In balancing the 

factors, no particular factor is determinative; all the factors 

must be weighed in light of the facts and circumstances of the 

case. Thompson, 865 P.2d at 1134-35. 

In assessing the second factor of the Barker test, the United 

States Supreme Court in Loud Hawk noted that different weights 

should be assigned to different reasons for delay, and that 

"[gliven the important public interests in appellate review, . . . 

it hardly need be said that an interlocutory appeal by the 

Government ordinarily is a valid reason that justifies delay." 

Loud Hawk, 474 U.S. at 315, 106 S.Ct. at 656, 88 L.Ed.2d at 654. 

Loud Hawk set forth several factors to be considered in 

determining whether to charge the government with the delay 

occasioned by its interlocutory appeals: the strength of the 

government's position on the appealed issue; the importance of the 
issue in the posture of the case; and the seriousness of the crime. 

Loud Hawk, 474 U.S. at 315, 106 S.Ct. at 656, 88 L.Ed.2d at 654. 

If the issues raised by the government's interlocutory appeal were 

"clearly tangential or frivolous," the delay should be weighed 

heavily against the government. Loud Hawk, 474 U. S. at 315-16, 106 

S.Ct. at 656, 88 L.Ed. 2d at 654-55. However, when the government's 

conduct is reasonable, and there has been no showing of bad faith 

or dilatory purpose on the part of the government, delays 

occasioned by the government's interlocutory appeals should not 

weigh in favor of a defendant's speedy trial claim. Loud Hawk, 474 

U.S. at 316, 106 S.Ct. at 656, 88 L.Ed.2d at 655. 

Moore alleges that the State's motive for both appeals is 

"highly suspect." Moore suggests that the State filed its first 

appeal after being chastised by the District Court for having its 

case in disarray. Moore then implies that the State filed its 

second appeal in retaliation for the District Court sanctioning the 

prosecution by removing the lead counsel, Deputy County Attorney 

Marty Lambert, from the case. We conclude that Moore's contentions 

are without merit. 

There is no indication in the record that the State chose to 

appeal as a delay tactic or in retaliation for being chastised or 

sanctioned by the District Court. The District Court itself was 

quoted as saying, "I don't think [the first appeal] was a timeconsuming ploy on the part of the county attorney. They had 

legitimate grounds to file the appeal." Bozeman Dailv Chronicle, 

"Judge says evidence rejected in Moore case won't cause delays", 
October 8, 1991. We agree with the District Court that the first 

appeal was meritorious and, therefore, the appeal should not weigh 

heavily against the State. 

The record also does not support Moore's allegation that the 

State filed its second appeal in retaliation for the trial court 

removing lead counsel from the case. The record shows that the 

District Court removed the deputy county attorney from the case 

after it had been informed that the State had filed its notice of 

appeal. 

In addition, we reversed the trial court in the State's second 

appeal and llreversals by the Court of Appeals are prima facie 

evidence of the reasonableness of the Government's action." Loud 

Hawk, 474 U.S. at 316, 106 S.Ct. at 656, 88 L.Ed.2d at 655. 

We conclude that there is no basis for Moore's allegation that 

the State's motive for its appeals was suspect, as there was no 

showing of bad faith or dilatory purpose on its part. Therefore, 

the reason for the delay should be resolved in favor of the State. 

Regarding the third Barker factor, Moore made a timely 

assertion of his right to a speedy trial by raising the issue two 

times before the commencement of his trial. State v. Palmer 

(1986), 223 Mont. 25, 28, 723 P.2d 956, 959. 

In considering the fourth factor, we must examine the 

interests of the defendant which may be prejudiced by a delay in 

coming to trial. These interests are: (1) pretrial incarceration, 

(2) anxiety and concern, and (3) impairment of defense. Barker, 

407 U.S. at 532; Stewart, 881 P.2d at 633; Thompson, 865 P.2d at 
1135. 

Moore was incarcerated for approximately 90 days before his 

release on bail. Although incarceration is a serious matter, Moore 

was free on bail nearly all of the time between arrest and trial. 

Therefore, Moore cannot complain of prejudice resulting from 

pretrial incarceration. Stewart, 881 P.2d at 633. 

The second interests we must consider, anxiety and concern, 

are difficult matters to prove. However, it must be kept in mind 

that the charge against Moore is one of the most serious which may 

be levied, and the mere fact it was filed will produce some anxiety 

and concern. Thom~son, 865 P.2d at 1135. Moore failed to indicate 

how his anxiety and concern were aggravated as a result of the 

delay, and we decline to presume prejudice. 

The most important consideration is whether the delay impaired 

or prejudiced Moore's defense. Moore claims he was financially 

devastated as a result of the protracted legal proceedings, and as 

a result, his defense suffered as he did not have enough funds to 

pay for his own experts at trial. 

Again, however, the record fails to support Mooref s 

allegations. After holding a hearing on Moore's motion to 

determine whether the State should pay for his experts at trial, 

the District Court found that Moore had remaining assets valued in 

excess of $160,000. The court determined that Moore was not 

indigent and denied Moore's motion. In addition, Moore indicated 

at the indigence hearing that his experts had been paid up to date, 

and his experts appeared and testified at trial. 
In considering whether Moore's defense was prejudiced by the 

delay the ~istrict Court reasoned as follows: 

Here, Defendant has been free on bond for many, many 

months, has traveled in and out of the State of Montana 

to conduct his usual business affairs, has traveled 

outside Montana on family matters, and has consistently 

been available to work with his counsel on preparation of 

this case. No witnesses essential to the defense have 

died; the Defendant has had full discovery of prosecution 

evidence, and has had equal time to assemble his own 

evidence. Nothing about the delays which have occurred 

in this case can be reasonably attributed to State 

actions having the purpose of prejudicing the Defendant, 

and there are no allegations that evidence essential to 

the Defendant has been lost. 

We agree with the District Court's conclusion that Moore did 

not suffer any prejudicial effect as a result of the delay in 

bringing the case to trial. Therefore, after balancing the four 

Barker factors, we hold that Moore was not deprived of his 

constitutional right to a speedy trial. 

In conclusion, having carefully considered the lengthy 

transcript and the record in this case along with the briefs and 

arguments of counsel, we hold that the District Court did not 

commit reversible error on any of the issues raised by Moore in 

this appeal. Accordingly, his conviction of deliberate homicide is