No. 81-328 

IN THE SUPREIE COURT OF THE STATE OF MONTANA 

1982 

STATE OF MONTANA, 

Plaintiff and Respondent, 

VS . 

WILLIAM "BILL" MORIGEAU, 

Defendant and Appellant. 

Appeal from: District Court of the Fourth Judicial District, 

In and for the County of Lake 

Honorable John Henson, Judge presiding. 

Counsel of Record: 

For Appellant: 

Turnage and McNeil, Polson, Montana 

C. B. McNeil argued, Polson, Montana 

James A. Manley argued, Polson, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Steve Johnson argued, Assistant Attorney General, Helena, 

Montana 

Richard I?. Heinz, County Attorney, Polson, Montana 

Duke R. Wolf argued, Deputy County Attorney, Polson, 

Montana 

Submitted: October 14, 1982 

Decided: December 29, 1982 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

The defendant, William "Bill" Morigeau, was charged in 

the District Court of the Fourth Judicial District, Lake 

County, with two counts of felony burglary. A jury returned 

a verdict of guilty to both counts. Morigeau was sentenced 

to ten years in prison and designated a dangerous offender. 

Morigeau appeals and presents the following issues: 

1. Whether the evidence of the State's immunized 

witness was sufficiently corroborated? 

2. Whether defendant was provided effective assistance 

of counsel at trial? 

The verdict is vacated and the cause is remanded for a 

new trial. 

While working together on a Housing and Urban Development 

Project at Pablo, Montana, Morigeau and Kevin Groat became 

friends and decided to share a house in Ronan, Montana. They 

began moving into the house on October 28, 1980. Morigeau 

testified that he, Groat, and a Mexican, Fortino Gonzales 

who had been staying with Groat, drank some beer as they 

were moving into the house. That night all three man slept 

in the living room of the house as it was the only room 

which was heated. 

According to Groat's testimony, before the men went to 

sleep, he and Morigeau went to Davis, Inc., which is located 

across the street from the apartment Groat was moving out 

of. Groat broke a window and climbed in and then let Morigeau 

in through a door. They began picking up tools and began 

carrying small boxes over to Morigeau's car which was parked 

across the street. They drove the car over to Davis, Inc. 

to load the larger boxes which weighed as much as 195 lbs. 

They returned to the house and unloaded the car. The tool 

boxes were divided up and placed in the men's respective 

bedrooms and some in the basement. 
' 

Morigeau testified that on the next day, he, Groat,' and 

"the Mexican" finished moving Groat's belongings into the 

house using the Morigeau car, and that the first time he saw 

the items taken from Davis, Inc. was when they moved them 

from Groat's apartment to the house. Morigeau testified 

that he let Groat keep some of the tool boxes in the closet 

in his bedroom because Groat's bedroom was full. 

That evening Morigeau and Groat were driving to Polson 

when Morigeau's car broke down. A sheriff's deputy gave 

then a ride to Ronan and dropped them off in front of Pete's 

Conoco which is two blocks from the house. The sheriff's 

deputy testified that he dropped the men off at approximately 

12:30 a.m. 

Morigeau testified that after the men walked to the 

house they both walked to their boss's house where Morigeau 

left a note on the windshield of the boss's truck telling 

him that the car had broken down "so we had to walk and 

didn't get home till just now (3:OO) so we won't be able to 

make it to work today . . ." They then returned to the 

house and Morigeau went to sleep in the living room and 

assumed Groat had also. 

According to Groat's testimony, after being dropped 

off and walking to the house, the two men returned to 

Pete's Conoco. Groat broke a window, climbed in, and 

opened a door to let Morigeau in. He testified that Morigeau 

was looking for new tires and picked out six and they both 

rolled them over to the house and placed four tires in the 

basement and left two outside. They returned to Pete's 

Conoco and took a saw, bolt cutter, and a case of Pennzoil. 

The saw was placed on a shelf in the basement of the house 

while the oil and bolt cutter were put in Morigeau's closet. 

After a third trip, change, candy bars, and six cans of oil 

treatment were taken back to the house. Groat testified 
they then walked to their boss's house and left a note on 

the windshield of his truck and then went to the house and 

went to sleep. 

The following afternoon, sheriff's deputies searched 

the house with the consent of Morigeau. When asked about 

the items in his closet, Morigeau stated that they were 

there when he moved in except for the oil which was his. At 

trial Morigeau testified that he first saw the oil and bolt 

cutter while the sheriff was conducting his search, and 

although he had hung clothing in the closet earlier that 

day, he didn't notice the case of oil. A logging chain 

missing from Davis, Inc., was found in the trunk of Morigeau's 

car. 

Whether the evidence of the State's immunized witness 

was sufficiently corroborated? 

Morigeau argues that the record is void of any evidence 

of entry by him into either the Davis, Inc. or Pete's Conoco 

building and is void of any evidence of theft by him except 

for the uncorroborated testimony of the State's immunized 

witness, Groat, who voluntarily confessed to being an 

accomplice. 

Section 46-16-213, MCA, requires corroboration of the 

testimony of an accomplice. 

"A conviction cannot be had on the testmony of one 

responsible or legally accountable for the 

same offense, as defined in 45-2-301, unless 

the testimony is corroborated by other evidence 

which in itself and without the aid of the 

testimony of the one responsible or legally 

accountable for the same offense tends to 

connect the defendant with the commission of 

the offense. The corroboration is not sufficient 

if it merely shows the commission of the offense 

or the circumstances thereof." 

The general principles of corroborating evidence are 

stated in State V. Kemp (1979) 182 Mont. 383, 387, 597 P.2d 
"To be sufficient, corroborating evidence 

must show more than that a crime was in 

fact committed or the circumstances of its 

commission. State v. Keckonen (1938), 107 

Mont. 253, 263, 84 P.2d 341, 345. It must 

raise more than a suspicion of the defendant's involvement in, or opportunity to 

commit, the crime charged. State v. Gangner 

(1957), 130 Mont. 533, 535, 305 P.2d 338, 

339. But corroborative evidence need not 

be sufficient, by itself, to support a defendant's conviction or even to make out a 

prima facie case against him. State v. 

Ritz (1922), 65 Mont. 180, 186, 211 P. 298, 

300; State V. Stevenson (1902), 26 Mont. 332 

334, 67 P. 1001, 1002. Corroborating 

evidence may be circumstantial (State v. 

Harmon (1959), 135 Mont. 227, 233, 340 P.2d 

128, 131) and can come from the defendant 

or his witnesses. State v. Phillips (19531, 

127 Mont. 381, 387, 264 P.2d 1009, 1012." 

Morigeau contends that without Groat's testimony "there 

is not sufficient evidence to convict the defendant of 

eit-her burglary." As noted above, that is not the test. 

Corroborative evidence need not be sufficient to support a 

conviction or even make out a prima facie case, but need 

only tend to connect the defendant with the commission of 

the offense. 46-16-213, MCA. 

~n state v. Williams (1979) Mont . , 604 P.2d 

1224, 36 St.Rep.2328, the defendant was storing property 

taken in a burglary at his mother-in-law's house and he 

gave other property to another party. This constructive 

possession of the property taken was held by this Court to 

be sufficient corroborating evidence to clearly connect the 

defendant with the commission of the offense. 

In State v. Rose (1980) Mont . , 608 P.2d 1074, 37 

St-Rep. 642, the only independent evidence which tended to 

connect the defendant with the burglary was his possession 

of the guns which were stolen. The defendant tried to 

explain away his possession of the stolen guns, but this 

Court held that the defendant's possession of the guns was 

sufficient as a matter of law to corroborate the accomplice's 

testimony and that whether the explanations were sufficiently 
satisfactory to raise a reasonable doubt in the minds of the 

jurors as to defendant's connection with the offense charged 

was a question for the jury's determination. Rose, 608 P.2d 

at 1078-80, 37 St. Rep. 647; State v. Broell (1930), 87 Mont. 

284, 292, 286 P. 1108, 1111. 

In the present case, tool boxes,identified as belonging 

to Davis, Inc., were found in Morigeau's closet. A bolt 

cutter, identified as belonging to Pete's Conoco, was also 

found in Morigeau's closet. A logging chain, identified as 

belonging to Davis, Inc., was found in the trunk of P40rigeau1s 

car. Morigeau's possession of these items is sufficient as 

a matter of law to corroborate Groat's testimony. Morigeau 

chose to testify in an attempt to explain away the possession. 

The weight of that evidence is for the jury. Morigeau's 

testimony also contains elements which could be found corroborating in nature by the jury. 

We hold there was sufficient corroborative evidence, 

tending to connect Morigeau with the commission of the 

offense in order to satisfy the statutory requirements of 

corroboration of the testimony of Groat. 

11. 

Whether defendant was provided effective assistance of 

counsel at trial? 

Morigeau raises three areas where defense counsel did 

not provide effective assistance of counsel: 

1. failure to locate and interview certain witnesses, 

2. failure to conduct pretrial discovery or file 

pretrail motions, 

3. allowing defendant's criminal record into evidence. 

The effectiveness of counsel issue was returned to the 

District Court for an extraordinary hearing. The lower 

court found defense counsel used every means available to 

locate witnesses. The court, however, failed to make any 
findings with regard to defense counsel bringing defendant's 

criminal record into evidence. 

During the hearing defense counsel stated, "I had no 

intention of bringing in his criminal record. What I intended 

to do was to have him testify that he was on parole, from a 

prior offense, which I believe it was an unrelated offense 

of forgery." 

During the trial Morigeau was questioned by his defense 

counsel about previous offenses: 

"Q. Bill, have you ever been convicted of 

any other felonies other than that? 

A. Yes, I have. 

"Q. How many? A. Assault, two. 

"Q. Two others? A. Yes. 

"Q. Assault and what else? A. Assault 

and escape. 

"Q. Where was that? A. Assault was in 

Boise, Idaho; and the escape was in Spokane, 

Washington. 

"Q. As an adult, have you ever been convicted 

of any burglaries or thefts? A. No, sir. 

"Q. Have you ever been charged with any burglaries? A. Yes, sir. 

"Q. I beg your pardon? A. Yes, sir. 

"Q. What? A. A burglary in Boise. 

"Q. What was the disposition of that charge? 

A. It got dismissed. 

"Q. Why? A. Illegal search and seizure." 

During cross examination, the State brought out the details 

of the previous burglary charge. 

"Q. Do you recall a violation being reported 

by entering without permission, a Western 

Cabinet shop in Garden City, Idaho, and removing 

a CB radio and camera? A. That was dismissed. 

"Q. On what basis was it dismissed? A. Illegal 

search and seizure. 

"Q. Was that violation true? A. No. 

"Q. But the basis for its dismissal was an 

illegal search and seizure? A. Yes, 
"Q. What was seized illegally at that time? 

A. I don't know. There was some stolen articles 

in the house that me and this other man occupied. 

He let them in. He let them into the house where 

they found the stuff, and I was charged for it. 

"Q. Is that similar to what happened here? 

A. Exactly. 

"Q. So in other words, there was a time when 

you were charged with having stolen something 

based on a supposed illegal search? A. Yes. 

"Q. This other individual, do you feel that he 

was responsible for that theft? A. He was 

responsible. 

"Q. Was he charged with that? A. No, he 

wasn't, as far as I know. 

"Q. You seem to have a lot of occurrences, 

then, or at least one previous occurrence 

where you were found with stolen property; 

is that correct? A. Yes. 

"Q. Are you often found with stolen property? 

A. NO, sir." 

In closing argument, defense counsel argued that (1) 

Groat knew of Morigeau's criminal record and that it would 

be easy to put the blame on him, (2) Morigeau was too 

streetwise to do such amateurish burglaries, and (3) Morigeau 

had too much to lose as a parole violator to become involved 

in the burglaries. 

To determine whether a defendant has been denied 

effective assistance of counsel, this Court uses the 

"reasonably effective assistance" test, which has been 

stated as follows: 

"'Persons accused of crime are entitled to 

the effective assistance of counsel acting 

within the range of competence demanded of 

attorneys in criminal cases.'" State v. 

Rose (1980) Mont. , 608 P.2d at 1081, 

37 St.Rep. at 649-650; Fitzpartick v. State 

(1981) Mont. , 638 P.2d 1002, 1007, 

38 St.Rep.1448, 1451; Cooper v. Fitzharris 

(9th Cir. 1978) 586 F.2d 1325, 1330. 

"'Claimed inadequacy of counsel must not be 

tested by a greater sophistication of appellate 

counsel, nor by that counsel's unrivaled 

opportunity to study the record at leisure 

and cite different tactics of perhaps doubtful efficacy. Success is not a test of 

efficient counsel, frequently neither vigor, 

zeal, nor skill can overcome the truth.'" 

State v. Rose, 608 P.2d at 1082,37 St.Rep. at 

652; State v. Forsness (1972) 159 Mont. 105, 

110, 495 P.2d 176, 178-179. 
To sustain a claim of ineffective assistance, a criminal 

defendant must show that the error allegedly committed 

by his lawyer resulted in prejudice to him and stemmed 

from neglect - or ignorance rather than from informed, -- professional deliberation. State V. Rose, 608 P.2d at 1081, 

37 St.Rep. at 651; United States v. Bosch (1st Cir. 1978) 

Defense counsel's choice of the tactic to show that 

Morigeau was on parole is not at issue here. However, this 

Court will consider the effect the introduction of 

Morigeau's entire criminal record including the burglary 

charge in Idaho. 

By bringing in the previous criminal charges, defense counsel opened Morigeau to cross examination on the 

previous charges. The result was that the jury had before 

it evidence from Morigeau demonstrating his involvement in 

an alleged burglary where Morigeau claimed another man 

brought stolen articles into the house where he was staying. This evidence would not have been admissible except 

for the actions of defense counsel. The evidence was 

extremely prejudicial showing circumstances almost identical to the present case. This indicates neglect or 

ignorance on the part of counsel and satisfies the State 

v. Rose test. We hold that the introduction and direct 

examination of Morigeau by his counsel regarding his previous crimes and charges were not within the range of 

competence demanded of attorneys in criminal cases. 

During the trial the following jury instruction was 

given: 

"You are instructed that possession of stolen 

property shall not constitute proof of the commission of the offense of theft. Such fact shall 

place a burden on the possessor to remove the 

effect of such fact as a circumstance to be 

considered with all the other evidence pointing 

to his guilt." 
On retrial this instruction, which is taken from section 

45-6-304, MCA, should not be used. This Court in State v. 

Kramp (1982) Mont. , 651 P.2d 614, 39 St. Rep. 1819, 

declared section 45-6-304, MCA, unconstitutional and held 

that any instruction using the language of that statute 

was prejudicial to a defendant. This is another ground 

for reversal. The instruction takes away defendant's 

presumption of innocence and forces him to testify, by 

placing a burden on him either to disprove unlawful possession or to prove lawful possession. State v. Kramp 

651 P.2d at 621, 39 St.Rep. at 1827. For further discussion 

and a suggested alternate instruction see State v. #ramp. 

The verdict is vacated and the cause is remanded for 

a new trial. 

We concur: