No. 81-94 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

STATE OF MONTANA, 

Plaintiff and Respondent, 

vs. 

DARRELL ROSS PLOUFFE, 

Defendant and Appellant. 

Appeal from: District Court of the Fourth Judicial District, 

In and for the County of Missoula 

Honorable James Wheelis, Judge presiding. 

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, Assistant Attorney General, 

Helena, Montana 

Robert L. Deschamps 111, County Attorney, Missoula, Montana 

Ed McLean argued, Deputy County Attorney, Missoula, 

Montana 

Submitted: March 29, 1982 

Decided: June 15, 1982 

Filed: JUN 1 5 19'2 

aAim.WB.&* 

Clerk 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

Defendant, Darrell R. Plouffe, appeals his deliberate 

homicide conviction and the denial by the District Court of 

the Fourth Judicial District, Missoula County, of his motion 

to suppress statements he made to police. 

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 

parole violation 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 statements given to 

the police was denied by the District Court on September 8, 

1980. 

A jury trial was held from September 15 to 19; a 

guilty verdict was returned on September 19. Defendant made 

several motions to dismiss: the first at the close of the 

State's case; the second at the close of his own case; and 

the third after the guilty verdict was returned, A1 1 

motions to dismiss were denied by the District Court. 

Defendant was sentenced to forty years 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 struggle having taken place. Evans 
was 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 

the defendant's parole officer. 

On the evening of June 5, the Missoula 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 oral parole violation 

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 at No. 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 left behind a note which reads: 

"Brett & Stacy, 

"Take care of Toke [defendant's dog]. I'm 

not going to let my life be 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 enjoy life. 

"I didn't do it. Three guy out of state." 

The last two sentences of the note are written with seemingly less control than the main 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 that afternoon of 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 tell me 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. Evidently the defendant began to write his answers 

since a few minutes later the officer said, "So they will 

kill you, if you say anything." There is more writing and 

and the officer asks, "Who's they?'' 

Testimony at the suppression hearing suggests that 

about this time the emergency room doctor entered and asked 

that the tape be 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, the officer said, ". . . you're nodding 

yes, that you do understand those [the rights] ." The defendant then signed the waiver of rights and proceeded to write 

his responses to police questions. 

Including the interview at the emergency 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. 

Visitors and telephone calls were restricted. 
The State, throughout its case, has emphasized the 

discrepancies in the statements given by defendant. Def endant's final narration of what happened on the night of June 

4-5 is summarized as follows: 

Defendant was out drinking with friends until 

the bars closed. In the early morning hours 

of June 5, he stopped at Evans' 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 

blue jeans. 

The man in the goose down jacket walked over 

to Evans; talked with her, and slapped her. 

At this time, the second man pulled defendant 

to the floor and kicked him. Defendant was 

told not to say anything or he and his girlfriend, Janice, would get hurt. 

Defendant then left Evans' trailer, went back 

to his trailer and drank some schnapps'. 

About a half hour later, he returned to 

Evans' trailer and found her lying face down 

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 they didn'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 third he heard in a back room, were 

already at Evans' house when he arrived. No mention was made 

of his having sexual intercourse with the victim. Instead of 

jeans, the defendant first told police the men were wearing 

jumpsuits. In the last two statements, defendant said that 

Evans was alone when he arrived, that they had 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 told by one of his roommates that Rena Evans had been 

found strangled. The next morning defendant was found after 

he drank the Drano. 

The defendant has raised two basic issues: 

1. Whether the District Court erred in denying his 

motion to suppress the statements l~e made to the police or 

his parole officer prior to June 10, 1980; and 

2. Whether the District Court erred in denying 

defendant's motion to dismiss. 

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 statements taken from defendant prior 

to June 10 are products of an arrest lacking probable cause; 

and 

D. Whether defendant's statements should have been 

suppressed because of the State's unnecessary delay in 

taking the defendant before a judge. 
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 that defendant made a knowing waiver of his right 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 States has recently 

set down a two-pronged test to determine whether a defendant 

has made a valid waiver of his rights. In Edwards v. Arizona 

(1981) I - U.S. - , 101 S.Ct. 1880, 68 L.Ed.2d 378, the 

Court said: 

". . . It is reasonably clear under our cases 

that waivers of counsel must not only be 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 at 385. 

This Court has recently outlined further relevant 

factors which must be considered in determining whether 

there has been a valid waiver: 

". . . Other appropriate considerations include the age, education, and intelligence of 

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 District Court 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 suggests that defendant was 

able to understand and respond to police questioning. The 

officer who questioned defendant testified that defendant 

seemed cognizant of his actions. The doctor who saw defendant after he left the emergency room testified that defendant was coherent and able to give a cognizant statement to 

police. As the State has 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 

defendant made a knowing and intelligent waiver, defendant's 

"cat out of the bag" argument need not be 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 rights would 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 Petition of Wing (1969), 154 Mont. 

501, 464 P.2d 302, we upheld the arrest of a parolee for 

giving a fictitious name 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 

at the scene of a criminal homicide gave the police reasonable grounds to believe that there was a breach of condition 

of parole or a violation of 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.2d 
at 284. The burden is first on the defendant to show that 

the delay was unnecessary. State v. Benbo (1977), 174 Mont. 

252, 570 P.2d 894, 900. 

Here, the defendant only showed that a justice of the 

peace was available from June 6 to June 9. Defendant's 

presence in the hospital during this time suggests that the 

delay in bringing him before a magistrate was neither unreasonable nor prejudicial. 

More importantly, when statements to police are in 

issue, the requirement of a prompt initial appearance is 

viewed in the context of the voluntariness of 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 voluntariness of defendant's statements 

to police while he was at the hospital. 

The statements given to the police by the defendant 

were therefore properly admitted into evidence, and the 

motion to suppress the statements was properly denied by the 

District Court. 

11. Motion to Dismiss 

In denying defendant's motion to dismiss, the DisErict Court stated: 

". . . Montana has not adopted the standard 

argued by the Defendant. The State, in their 

brief, mistakenly says that Montana has 

adopted the new standard of sufficiency of 

the evidence set forth in Jackson v. Virginia 

in State v. Armstrong, 37 St.Rep. 1563 

(1980). In that case the Court says, 'The 

test for the sufficiency of the evidence in a 

crimiilal case is whether there is relevant 

evidence which persons of reasonable minds 

might accept as adequate to support a conclusion.' 37 St.Rep. at 1567. This is simply a 
restatement 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 case beyond 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. at 319. 

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 

the deadly blow or blows." 628 P.2d at 283. 

The District Court incorrectly stated that this Court 

applies a "no evidence" rule on review of sufficiency of the 

evidence in criminal convictions. This Court has consistently applied in recent years the test of 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 as a reasonable mind might accept as adequate 
to support a conclusion." See, Wilson, 631 P.2d at 1278, 

and cases cited therein. 

Moreover, in Wilson, this Court concluded that the 

"substantial evidence" standard does not fall short of the 

Jackson standard, and we noted that the Jackson standard was 

applied in Rodriguez. 

The question here then is simply whether there is 

substantial evidence to support the defendant'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 signs of 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 lot of a bar. We believe these 

facts constitute substantial evidence and are therefore 

sufficient to support the conviction. 

Defendant claims that the above facts show only that 

he had the opportunity to commit the act and nothing else. 

There is little question that this is a close case. 

The evidence against the defendant is highly circumstantial. 

Nevertheless, as we noted in State v. Armstrong (1980) , 

Mont. , 616 P.2d 341, 37 St.Rep. 1563, circumstantial 

evidence is not always inferior quality. "The determination 
as to 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 at 346. 

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 the jury. 

We concur: 

34& J. w b&!QQ, Chief Justice