No. 81-564 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

STATE OF MONTANA, 

Plaintiff and Respondent, 

VS . 

GORDON HART, 

Defendant and Appellant. 

Appeal from: District Court of the Fourth Judicial District, 

In and for the County of Lake 

Hon. R. D. McPhillips, Judge presiding. 

Counsel of Record: 

For Appellant: 

K. M. Bridenstine, Polson, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Richard P. Heinz, County Attorney, Polson, Montana 

Submitted on briefs: May 27, 1982 

Decided: September 3, 1982 

Filed: 5E.P .- 3 198% 
Mr. Justice Fred J. Weber delivered the Opinion of the 

Court. 

Defendant Hart appeals from conviction in the Fourth 

Judicial District Court, Lake County, upon a jury verdict of 

guilty of sexual assault. We affirm the District Court. 

Defendant maintains that the District Court erred in 

admitting police testimony of several statements allegedly 

made by defendant prior to his receiving a Miranda warning. 

See Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 

16 L.Ed.2d. 694. The State and defendant disagree on whether 

defendant was in custody when he made the statements and 

whether defendant's motion to suppress the statements was 

timely. 

In the early morning hours of April 22, 1981, at closing 

time, defendant was invited to a party at the apartment home 

of the woman bartender of a bar in Polson. While there 

(apartment no. 6), he bothered the hostess, who went to a 

neighboring apartment (no. 3) to ask the men there to help 

her encourage defendant to leave. In apartment no. 3, were 

complainant T.A., her boyfriend, her uncle, and her two 

daughters. The two men went over to the party. When T.A. 

left her apartment for the party a few minutes later, she 

left a living room and a bathroom light on for the benefit 

of her daughters, ages two and three, who were sleeping in 

the apartment's only bedroom. A male friend was left passed 

out in a chair in the apartment. 

At the party, defendant and T.A. conversed briefly and 

then defendant left. A few minutes later, T.A. returned to 

her apartment and noticed the bedroom light was on. ~hinking 

her girls were awake and playing, she called at them to get 

back into bed. As she reached into the bedroom to turn off 

the light, someone grabbed her by the arms and yanked her 
into the room as the light went off. T.A. claims she looked 

right into defendant's face as this happened. Her assailant 

threw her against the dresser, pushed her to the floor, 

and then fled from the apartment. T.A. rushed out after 

him; her screams drew her uncle and boyfriend from apartment 

no. 6. They saw defendant running and gave chase, but he 

eventually eluded them. T.A. returned to her apartment 

before calling police, to check on her daughters. She found 

them frightened and sobbing. The pants and underpants of 

the older child were down around her ankles. She told her 

mother that a man had taken her clothes down, touched her, 

and "put poop" in her pants. She later indicated to the 

neighbor woman in the presence of witnesses that the man had 

touched her private parts with his tongue. Scratches were 

found on the child's back and buttocks the next day. 

T.A. called the police from her neighbor's apartment. 

Officer Tracy Smith arrived within a minute or two, and was 

admitted to the neighbor's apartment. There T.A. told 

Officer Smith that "Gary Hart" had grabbed her and pushed 

her down when she caught him in her bedroom, and had then 

eluded his pursuers. 

At this point, according to Officer Smith's testimony, 

the party heard a vehicle start, then stall. Several persons 

shouted, "that was him" and "go get him." Everyone rushed 

out toward the brown pickup truck, which Officer Smith 

recognized as belonging to Gordon Hart. Officer Smith 

testified that just before they reached the pickup, she told 

Officer Knickerbocker, who had just arrived as backup, that 

"the fellow we were after was in the pickup." 

Defendant Hart was found lying on the pickup seat, eyes 

open, head toward the passenger door. Officer smith asked 

him what he was doing and, "he said he was passed out, 

trying to sleep." 
Her testimony follows: 

"Q. Did you say anything further to him at 

that time? A. I told him that I had a complaint from a woman in Apartment No. 3. I 

had my back to Apartment No. 6, and I motioned to No. 3 with my right hand, and I said, 

'I have a complaint from a woman who says 

that you were in her apartment.' 

"Q. Did you receive any response to that 

statement by you? A. He said, 'Yes, I was, 

but I wasn't in there very long.' He said 

he was only in there a minute." 

Officer Smith then suggested defendant leave the pickup 

and come sit in the patrol car. The pickup was surrounded 

crowd from the cursing, shouting and pounding on 

the hood and sides. Defendant refused to leave the pickup. 

Officer Smith said that while defendant was in the pickup 

she suspected he was involved in something that had happened. 

The transcript shows: 

"Q. (By Mr. Heinz) At that time was he in 

custody, had you taken him into custody? A. 

[By Officer Smith] No, sir. 

"MR. BRIDENSTINE [Counsel for defendant]: 

Well, he was, of course, not in custody, 

Your Honor, but he was the focus of her investigation." 

Officer Smith also testified that before defendant left the 

pickup, she asked him how he had gotten dirt on his hands, 

whether he had fallen down, and he replied, "Yes, those guys 

were chasing me around the neighborhood." 

When Officer Smith suggested defendant leave the pickup 

and sit with her in the patrol car, he refused, saying that 

he wanted the police to leave him alone so he could sleep. 

He became profane and loud in his refusal. Officer Smith 

then asked her backup, Officer Knickerbocker, to try to get 

defendant into the patrol car. Defendant testified, "He 

coaxed me out of the car." Officer Knickerbocker testified 

that he told defendant "there was two ways we could do it, 

but he would be coming over to the vehicle." This testimony 

followed: 
"Q. Wouldn't you say that is a threat of 

force? A. I don't know. 

"Q. You intended to use force if you had 

to? A. If necessary.'' 

Defendant then agreed to get in the police car. As 

soon as he did, he was read his rights by Officer Smith. 

Defendant then reiterated that he had been in the apartment 

briefly and that "these guys chased him around the neighborhood." Officer Smith drove defendant to the police station, 

where he was charged with disorderly conduct and booked. 

The written statements submitted by T.A. and her boyfriend 

led to defendant's being charged, on April 24, 1981, with 

sexual assault. 

Defendant's story was that he left the party and, after 

falling over a railing, decided to go to his pickup to 

sleep. He was awakened by the arrival of the police and the 

members of the party. He denied making the disputed statements, 

either before or after he received Miranda warnings. He 

alleged that he was the victim of a vengeful plot by the 

children's mother, with whom he had had a hostile encounter 

some months earlier. These are factual matters, which were 

decided by the jury, and which were not raised as issues on 

appeal. 

On the first day of trial, August 17, 1981, after the 

jury had been seated, defendant moved in limine against any 

testimony offered by the police officers as to statements 

defendant had made before receiving his Miranda warnings. 

The State resisted the motion, arguing (1) that it was not 

timely under section 46-13-301, MCA, governing motions for 

suppression of confessions or admissions; and (2) defendant 

was not in custody at the time he made the statements, thus 

no Miranda warnings were required. The District Court 

delayed ruling on the motion until foundation was laid 

during trial, when Officer Smith was testifying. - In camera 
argument was allowed, to determine whether testimony of 

defendant's pre-Miranda statements was admissible. Again, 

both parties argued the timeliness of the motion and the 

admissibility of the statements on constitutional grounds. 

The District Court denied defendant's motion and ruled that 

the statements were admissible. The court did not indicate 

whether it found the motion to be untimely under section 46- 

13-301, MCA, or found that defendant was not protected by 

the Miranda requirements at the time he made the statements. 

Defendant was convicted of sexual assault (upon a 

minor), and was sentenced to Montana State Prison. He 

appeals his conviction to this Court. The sole assignment 

of error defendant makes is that the District Court erred by 

admitting the two statements defendant made to Officer Smith 

before being given his Miranda warnings. 

We find the matter of the timeliness of defendant's 

motion to suppress to be determinative here. 

Section 46-13-301, MCA, states: 

" (1) A defendant may move to suppress as 

evidence any confession or admission given 

by him on the ground that it was not voluntary. The motion shall be in writing and 

state facts showing wherein the confession 

or admission was involuntary. 

" (2) The motion shall be made before the 

trial unless for good cause shown the court 

shall otherwise direct. 

"(3) The defendant shall give at least 10 

days' notice of such motion to the attorney 

prosecuting or such other time as the court 

may direct. The defendant shall serve a 

copy of the notice and motion upon the attorney prosecuting." 

In State v. Hall (19791, - Mont. - , 600 P.2d 1180, 

36 St.Rep. 1780, this Court upheld the District Court's 

denial of defendant's motion to suppress statements made by 

him, because the motion was correctly denied on the merits 

and because the motion was untimely. In Hall, we found: 
"Defendant's motion to suppress was untimely 

as it was not made until 8 days before trial. 

The applicable statute requires at least 10 

days notice. Section 46-13-301, MCA. Here 

the defendant waited over 7 months after he 

was charsed - to file his motion and then 

filed it only 8 days prior to trial." 

Mont. at - , 600 P.2d at 1182, 36 St.Rep. 

at 1783, -. 

In State v. Briner (1977), 173 Mont. 185, 567 P.2d 35, 

the appeal turned in part upon the timeliness of a motion to 

suppress evidence which the defendant alleged was illegally 

seized. In Briner, defendant attempted to file various 

motions to suppress evidence on the first day of trial after 

the jury had been voir dired and passed for cause by the 

county attorney. The District Court recessed, took testimony 

and heard arguments, then, denied the motions. 

The Briner court stated that the question of timeliness 

was well defined in Montana, and continued: 

"In State v. Gotta, 71 Mont. 288, 290, 229 

P. 405, 406, this Court, speaking to the issue 

of 'timeliness1 stated: 

"I* * * one wishing to preclude the use of 

evidence obtained through a violation of his 

constitutional rights must protect himself 

by timely action. If he has had opportunity 

to suppress the evidence before trial and has 

failed to take advantage of his remedy, objection to the evidence upon trial will not avail 

him.' 71 Mont. 290, 229 P. 406. See also 

State v. Gallagher, 162 Mont. 155, 509 P.2d 

852." 173 Mont. at 190, 567 P.2d at 37-38. 

In the case at bar, we have a defendant, who was aware 

from the time of his arrest on April 22, 1981, that he had 

made damaging statements. Indeed, according to Officer 

Smith, he attempted to retract them while in the holding 

cell after his arrest. He did not submit his motion to 

suppress those statements until August 17, 1981, almost four 

months after he was charged with the sexual assault, on the 
first day of trial, after the jury was seated. His motion 

was oral, rather than written as required under section 46- 

13-301, MCA. Defendant did not provide the prosecution with 

the 10 days notice required by that statute and upheld by 

this Court. Under the circumstances, we find that the 

District Court properly denied defendant's motion to suppress, 

regardless of the fact that it did not rule immediately upon 

the question of timeliness, and did not explain the reason 

for the denial. 

Defendant claims that timeliness is brought in as a 

"new issue," and is not applicable here, as it was in Briner 

and Hall, because his motion was not a motion to suppress, 

but a motion in limine. We are not convinced. The purpose 

of the motion was to prevent the evidence of defendant's 

statements to Officer Smith from reaching the jury. The 

effect of the motion, had the District Court granted it, 

would have been the same as if the District Court had granted 

a motion to suppress. Defendant's motion in limine was, in 

fact, a motion to suppress, and, as such, was subject to the 

time and notice requirements of section 46-13-301, MCA. 

When defendant first presented his oral motion to the District 

Court the first day of trial, the State objected that it was 

untimely. When, during Officer Smith's testimony, the 

motion was again presented to the court, the State again 

argued that the 10 day notice requirement had not been met. 

The State was raising no new issue when it argued on appeal 

that the District Court's denial of defendant's motion 

should be upheld because the motion was untimely. Defendant's 

argument is without merit. 

Under section 46-20-702, MCA, when the record on appeal 

discloses to this Court that substantial rights of the 

defendant have been prejudiced due to constitutional error, 
we may overturn a conviction. See State v. Austad (1982), 

- Mont. - 

, 641 P.2d 1373, 1382, 39 St.Rep. 356, 366. 

That is not the case here. Defendant's statements that he 

had been in T.A.'s bedroom for a short time, and that people 

had chased him around the neighborhood, were reiterated by 

defendant to Officer Smith in the patrol car after defendant 

had received full Miranda warnings. The evidence would have 

been before the jury in any case. We do not find that the 

slight cumulative effect of admitting the pre-Miranda statements warrants consideration of the constitutionality of 

their admission where, as here, the defendant has waived his 

right to object to their admission by his failure to timely 

move for their suppression under section 46-13-301, MCA. 

Affirmed.