No. 81-94 INTHE SUPREME COURT OF THE STATE OF MONTANA 1982

STATE OF MONTANA, Plaintiff and Respondent,



### vs. DARRELL ROSS PLOUFFE,Defendant and Appellant.

Appeal from: DistrictCourt of theFourth JudicialDistrict, Inand fortheCounty of Missoula Honorable

### James Wheelis, Judgepresiding. Counsel of Record: For Appellant: Hood and Sherwood, Missoula, Montana Randi Hood argued, Missoula, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana J. Mark Murphy argued, AssistantAttorneyGeneral,

Helena, Montana RobertL. Deschamps 111, CountyAttorney, Missoula, Montana Ed McLean argued, Deputy CountyAttorney, Missoula,

Montana

Submitted: March 29, 1982 Decided: June 15, 1982 Filed:

# JUN1 

## 519'2 

# aAim.WB.&* Clerk

### Mr. JusticeGene B. Daly delivered the Opinion of theCourt. Defendant, Darrell R. Plouffe, appealshisdeliberate homicide conviction and the denial by the District Court of the Fourth Judicial District, Missoula County, of hismotion to suppress statementshe made topolice. On June 6, 1980, defendant was arrested for parole violation. On June 9, 1980, defendant was charged with deliberate homicide, as provided in section 45-5-102, MCA. Defendant was arraigned before a Missoula County Justice of the Peace on June 10, 1980, and, on that same day, the paroleviolation charge was dropped. On July 14, 1980, an information was filed charging defendant with deliberate homicide. Defendant pleaded not guilty. Defendant's motion to suppress statementsgiven to the police was denied by the District Court on September 8, 1980. A jury trial was held from September 15 to 19; a guiltyverdict was returned on September 19. Defendant made several motions to dismiss: the first at the close of the State's case; the second atthe close of hisown case; and the third after the guilty verdict was returned, A11 motions to dismiss were denied by the District Court. Defendant was sentenced to fortyyears in the Flontana State Prison, with twenty years suspended. In the early afternoon of June 5, 1980, Rena Evans

was found dead in her trailer. The cause of death was manual strangulation, occurring sometime between 9:00 p.m.

on June 4 and 6:47 a.m. on June 5. The trailer was described generally as "neat as a pin," with no sign of a strugglehaving taken place. Evanswas clothed in 

### a red housecoat, zipped to the neck. A wallet was found underneath the couch in the trailer. The wallet contained the identification papers and the driver's license of the defendant, as well as the business card of thedefendant's parole officer. On the evening of June 5, theMissoula County Sheriff contacted the defendant's parole officer. On the grounds that defendant's wallet was found at the scene of a homicide, the parole officer authorized an oralparoleviolation warrant. A written warrant was executed on the morning of June 6.On the morning of June 6, defendant was staying at the residence of Brett Tandy, Stacy Lavin and Joe Phelps, who lived atNo. 9 South Caravan in a trailer court across from defendant's listed residence at No. 3 South Caravan. khile at No. 9 South Caravan, on the morning of June 6, defendant mixed some Drano with milk and drank it. Defendant leftbehind a notewhich reads: "Brett & Stacy, "Take care of Toke [defendant's dog]. I'm not going to letmy lifebe caged as I would only have that chose [sic] & I can't talk or I'd end up Ded [sic]. Love ya all. Take care and enjoylife.

"Ididn't do it. Threeguy outof state." The last two sentences of the note are written with seemingly lesscontrol than themain body of the note. Brett Tandy found defendant after he drank the Drano and called an ambulance. Defendant was taken to St. Patrick's Hospital thatafternoonof June 6, 1980. Two police officers talked with defendant in the

### hospital emergency room. The tape of this interview indicates that defendant was asked, "Can you tellme what happened and what did you take?" The defendant was unable to respond verbally. On the recording, the defendant can be heard gagging, clearing his throat, and spitting. The officer then asked defendant if he wished to write his

answers. Evidentlythedefendant began towritehisanswers since a few minutes later the officer said, "So 

### they will kill

### you, if you say anything." There is 

### more writing and and theofficer asks, "Who's they?'' Testimony at the suppression hearing suggests that about this time the emergency room doctor entered and asked thatthe tapebe turned off while he examined defendant. After the tape recorder was turned back on, the officer informed defendant that he was at St. Patrick's Hospital and it 

### was about 4:00 

### in the afternoon. At this point, the officer showed the defendant an advice of rights form and explained it 

### to him. Upon asking defendant if he understood the form, theofficer said,

# ".

..you're nodding yes, thatyou do understand those [the rights]

# ." The defendant then signed thewaiver of rightsand proceeded towrite hisresponsesto policequestions. Including the interviewattheemergency roorn, defendant was interviewed by authorities five times. He was interrogated by police in the evening of June 6, 

### and again

on June 7. 

### Defendant's parole officer interviewed him on June 9. 

### On June 26, 

### defendant was again interrogated by police, but defendant had his attorneys present. Guards

were assigned to watch defendant on the evening of June 6. 

### Visitorsand telephone callswere restricted.

### The State, throughout its 

### case, has emphasized the discrepancies in the statements givenby defendant. Defendant's finalnarrationof what happened on thenight of June 4-5 

### is 

### summarized asfollows: Defendant was outdrinking with friendsuntil the bars closed. In the earlymorning hours of June 5, 

### he stopped atEvans' trailer. Defendant and Evans engaged in sexual intercourse. Soon thereafter, two men entered the residence. One man was wearing a burgundy long-sleeve down jacket and blue jeans; the only clothing defendant could remember about the second man was that he was also wearing bluejeans. The man inthe goose down jacket walked over to Evans; talked with her, and slapped her. At

### thistime, the second man pulled defendant to the floor and kicked him. Defendant was told not to say anything or he and hisgirlfriend, Janice, would gethurt. Defendant then leftEvans' trailer, went back to his trailer and drank some schnapps'. About a half hour later, he returned to Evans' trailer and found her lying facedown on the floor. He turned her over, noticed that her face was dark, and thought he heard her gasping for breath. Thinking that she would be all right, defendant left the trailer. He noticed that his wallet was missing and went with a friend to look for it 

### in a bar parking lot, but theydidn't find it. 

### The above statement differs f

### ram defendant's 

### first three statements in that defendant first told police that two men, with possibly a thirdhe heard inaback room, were alreadyatEvans' house when he arrived. No mentionwasmade of hishaving sexual intercoursewith thevictim. Instead of jeans, the defendant firsttold police the men were wearing jumpsuits. In the lasttwo statements, defendant said that Evans was alonewhen he arrived, thattheyhad sexual intercourse, and then the two men arrived. Testimony indicated that after defendant left Evans'trailer the second time, he went to No. 9 South Caravan, where he had been staying. He slept for a while and in the evening of June 5 went to a movie. Also, on that evening, he was toldby one of hisroommates that Rena Evans had been found strangled. The nextmorning defendantwas found after he drank the Drano. The defendant hasraised two basic issues: 

### 1. Whether the District Court erred in denying his motion to suppress the statements l~e made to the police or hisparole officerprior toJune 10, 1980; and 2. Whether the District Court erred in denying defendant's motion todismiss. Four subsidiary issues 

### were raised by defendant to support his argument that his motion to suppress was improperly denied: A. Whether the State proved a knowing and intelligent waiver of the right to counsel and right against selfincrimination by the defendant prior to interrogations conducted on June 6, 1980; l3. Whether subsequent statements made by defendant should have been suppressed under the "cat out of the bag" theory;C. Whether the statementstaken from defendant prior toJune 10 areproductsof an arrest lacking probable cause; and D. Whether defendant's statements should have been suppressed because of the State's unnecessary delay in taking thedefendant before ajudge.I. Motion to Suppress The defendant first contends that the statements he made to police in the hospital emergency room on June 6, 1980, should have been suppressed because the State failed to show thatdefendant made a knowing waiver of hisright to counsel and right against self-incrimination. Defendant claims that while there 

### is a showing that he was read his rights, there 

### is no showing that he understood then. The Supreme Court of the United Stateshas recently setdown a two-pronged test to determine whether a defendant hasmade avalid waiver of hisrights. In Edwards v. Arizona (1981)I 

### -U.S. 

### - 

## , 101 S.Ct. 1880, 68 L.Ed.2d 378, the Court said: 

# ".

. .It 

### is reasonablyclear under our cases that waivers of counsel

### must not onlybe voluntary, but constitute a knowing and intelligent relinquishment of a known right or privilege, a matter which depends in each case 'upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused,' Johnson v. Zerbst (1938), 304 U.S. 458, 464, 58 S.Ct. 1819, 1023, 82 L.Ed. 1461. [Other citations omitted.]

## " 101 S.Ct. at 1883-1884, 68 L.Ed.2d at385. This Court has recently outlined further relevant factors which must be considered in determining whether therehasbeen avalid waiver: 

# ".

.. Other appropriate considerations include the age, education, and intelligenceof the accused, and his capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights 

# . . . [Citations omitted.] In addition, a valid waiver must include not merely a comprehension of the benefits being abandoned, but also an actual relinquishment of those benefits, as evidenced by the actions or statements of the accused. [Citations omitted.]

### " State v. Blakney (1982)

## ,-Mont

# . , 641 P.2d 1845, 1049, 39 St.Rep. 436, 440.-The District Court found that defendant made a knowing waiver of his rights, drawing from the record and the testimony as to his appearance. We will not disturb this finding of the DistrictCourt if there is substantial credible evidence to support it. State v. Davison (1980), - Mont

# . , 614 P.2d 489, 493, 37 St.Rep. 1135, 1139; State

v. Grimestad (1979)

## , Mont. 

## ,598 P.2d 198, 36 St.Rep. - 1245. Here, the defendant signed a waiver of rights form. The tape of the first interview suggeststhat defendant was able to understand and respond to police questioning. The officer who questioned defendant testified that defendant seemed cognizant of hisactions. The doctor who saw defendant after he leftthe emergency room testified that defendant was coherent and able togive a cognizant statement to police. As the Statehas pointed out, the defendant 

### is not

a person inexperienced with police procedures; he was previously convicted of a felony and on parole at the time of the offense. The above evidence was sufficient for the District Court to conclude that defendant made a knowing and intelligent waiver of his rights at the first interview in the emergency room. Since we affirm the District Court's finding that defendantmade a knowing and intelligentwaiver, defendant's "catoutof thebag" argumentneed notbe addressed. Defendant next contends that his statements made to the police on June 6, June 7, and June 9 should be suppressed because they are the result of an arrest lacking probable cause.The 

### District Court found that the parole violation warrant was properly issued and the arrest properly made because defendant's wallet was found at the scene of a criminal homicide. Even if the warrant was not properly issued, the District Court concluded that no violation of defendant's rightswould have resulted. We agree. The 

### test is whether there was probable cause or reasonable grounds to believe that the defendant had committed acts that constituted a violatiorl of parole conditions. Morrissey v. Brewer (1972), 408 U.S. 471, 92 S.Ct, 2593, 33 L.Ed.2d 484. In Petitionof Wing (1969), 154Mont. 501, 464 P.2d 302, we upheld the arrest of a parolee for giving a fictitiousname and "frequenting taverns." Under condition of parole, Rule 

### 1, the parolee 

### is under a general duty to obey and respect the law and be a good citizen. The fact that the parolee's wallet was found atthe scene of a criminal homicide gave the police reasonablegrounds to believe that therewas a breach of condition of parole oraviolationof 

### a law, The defendant next contends that the delay between his arrest on Friday, June 6, for parole violation and his arraignment on June 10 for deliberate homicide constituted

an "unnecessary delay" in bringing him before a judge and, therefore, his statements to the police during that 

### time should be suppressed. As we noted recently in State v. Rodriguez (1981), Mont

# . - - 

## , 628 P.2d 280, 38 St,Rep. 578F, we will not hesitate to fashion an appropriate remedy, 

### "[i] f the defendant can show prejudice or a deliberate attempt by the prosecution to circumvent a speedy arraignment." 628 P.2dat284. The burden is firston the defendant to show that the delaywas unnecessary. Statev. Benbo (1977), 174Mont. 252, 570 P.2d 894, 900. Here, thedefendantonlyshowed that ajustice of the peace was available from June 6 to June 9. Defendant's presence in the hospital during thistime suggests that the delay inbringing him before amagistrate was neither unreasonablenor prejudicial. More importantly, when statements to police are in issue, the requirement of a prompt initial appearance is viewed in thecontextof thevoluntarinessof the statement. See, State v. Nelson (1961), 139 Mont. 180, 362 P.2d 224; State v. White (1965), 146 Mont. 226, 405 P.2d 761; and Benbo, supra. 

### Here, there 

### is nothing to suggest that the delay influenced the voluntarinessof defendant's statements to police while he was atthe hospital. The statements given to the police by the defendant

were therefore properly admitted into evidence, and the motion to suppressthe statementswas properlydenied by the District Court.

11. Motion toDismiss In denying defendant's motion to dismiss, the DisErict Court stated: 

# ".

.. Montana has not adopted the standard arguedby theDefendant. The State, intheir brief, mistakenly says that Montana has adopted the new standard of sufficiency of the evidence set forth inJacksonv. Virginia in State v. Armstrong, 37 St.Rep. 1563 (1980). In that case the Court says, 'The test for the sufficiencyof the evidence ina crimiilal case is whether there is relevant evidence which persons of reasonable minds might accept asadequate to support a conclusion.' 37 St.Rep. at1567. This

### is simply arestatement of the 'no evidence1 rule: if there 

### is relevant evidence in the record, the Court will not disturb the verdict. The Court will not rnake an independent analysis of whether the State carried 

### its burden of proving its casebeyond a reasonable doubt." Defendant contends that the District Court erred by the above analysis and that, at least since State v. Rodriguez, supra, this Court has adopted the standard set down in Jackson v. Virginia (1979), 443 U.S. 307, 99 Sect.

In Jackson the United States Supreme Court stated that in determining whether the evidence is sufficient to support a criminal conviction,

# ".

.. the relevant question 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." 443 U.S. at319. In State v. Rodriguez, supra, this Court cited Jackson, stating, 

### "[t] he evidence is sufficient to permit any rational trier of fact to find that defendant inflicted thedeadlyblow orblows." 628 P.2d at283. The District Court incorrectly stated thatthisCourt appliesa "no evidence" ruleon review of sufficiencyof the evidence in criminal convictions. This Court has consistently applied in recent years the testof whether there is substantial evidence to support the conviction, viewed in a light most favorable to the State. See, e.g., State v. Kirkaldie (1978), 179 Mont. 283, 587 P.2d 1298; State v. Campbell (1980), -Mont. - 

## , 615 P.2d 190, 37 St.Rep. 1337; and State v. Wilson (1981), -Mont

# . - 

## , 631 P.2d 1273, 38 St.Rep. 1040. "Substantial evidence is such relevant evidence asa reasonablemind might accept asadequate

### to support a conclusion." See, Wilson, 631 P.2d at 1278, and casescitedtherein. Moreover, in Wilson, this Court concluded that the "substantial evidence" standard does not fall short of the Jackson standard, and we noted thattheJackson standard was applied inRodriguez. The question here then is 

### simply whether there is 

### substantial evidence to support thedefendant's conviction. The evidence against the defendant, in summary, is 

### that he was with Rena Evans between approximately 2: 30 a

### .m. and 4:30 a.m. on June 5, 

### 1980. Defendant had sexual intercourse with Evans. Defendant's wallet was found under Evans' couch. The Evans' home showed no signsof a struggle. Defendant attempted suicide by drinking Drano on June 6, 

### 1980. Defendant gave five statements to police containing several inconsistencies. In his statements, defendant implausibly claimed he heard Evans gasping for breath when he returned to her trailer. He did not seek medical attention for her. Moreover, when defendant discovered his wallet was missing, he did not return to Evans' trailer but rather went 

### to the parking lotof a bar. We believe these facts constitute substantial evidence and are therefore sufficient to support theconviction. Defendant claims that the above factsshow only that he had theopportunitytocommit the actand nothing else. There is 

### littlequestion that this is 

### a close case. The evidenceagainstthedefendant is

### highly circumstantial. Nevertheless, aswe noted in Statev. Armstrong (1980)

## , Mont. 

## , 616 

### P.2d 

### 341, 37 

### St.Rep. 1563, circumstantial evidence is 

### not always inferiorquality. "The determinationasto the sufficiency of circumstantial evidence to make a

case for the jury and to sustain a conviction is one to be made upon all the facts and circumstances which are to considered collectively." 616 

### P.2d at346. Based on the above facts, any rational trier of fact could find the defendant guilty beyond a reasonable doubt. As in our prior cases, we are reluctant to take this factfinding duty away from thejury.

We concur: 

# 34& 

# J.

# wb&!QQ, Chief Justice