No. 84-376 

IN THE SUPREME COURT OF THE STATE OF MONTAKA 

1986 

THE STATE OF MONTANA, 

Pla.intiff and Respondent, 

-VSRUSSELL WOODS, 

Defendant and Appellant. 

APPEAL FROM: The District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable Jack L. Green, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

O'Brien Law Office; James P. O'Brien, Missoula, 

Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Judy Browning, Asst. Atty. General, Helena, Montana 

Robert I,. Deschamps, 111, County Attorney, Missoula 

Karen Townsend & Ed McLean, Deputy County Attorneys, 

Missoula, Montana 

Submitted on briefs: Nov. 29, 1985 

Decided: April 10, 1986 
Mr. Justice William E. Hunt, Sr., delivered the Opinion of 

the Court. 

The appellant, Russell Woods, was charged by information 

with two counts of burglary, one count of escape, and one 

count of tampering with a witness. He pled not guilty. At 

trial by jury he was found guilty on all charges. The 

District Court designated him a dangerous offender and 

sentenced him to 20 years for each count of burglary, 10 

years for tampering with a witness, and 6 months in jail for 

escape. The prison sentences were to run consecutively. 

This appeal followed. 

We affirm. 

Four issues are presented for review: 

1. Whether a juror's nondisclosure of information 

during voir dire is grounds for reversal. 

2. Whether § 45-7-206(1), MCA, violates the appellant's 

state and federal constitutional rights of freedom of 

expression and due process of law. 

3. Whether there is sufficient corroborative evidence 

to confirm accomplice testimony that the appellant committed 

burglary. 

4. Whether a note addressed to the appellant was 

properly admissible. 

In the late evening hours of December 13, 1983, Timothy 

Rorrocks and Wayne Conger went to the Trading Post Saloon in 

Missoula, Montana. There they met the appellant, Russell 

Woods, who was a friend of Conger. When this bar closed they 

continued their drinking at Conger's trailer house in 

Missoula. They then left Missoula in Conger's automobile, 

traveling south towards Lolo, Montana. 
At about 6:00 a.m. on December 14, 1983, Dennis 

McKeehan, Lolo Tavern's assistant manager who lived jn a 

trailer house behind the tavern noticed Conger's automobile 

parked near the tavern. He asked Conger if assistance was 

needed. Conger asked for a flashlight. After getting a 

flashlight, McKeehan saw the appellant run out of the 

tavern's emergency exit with what looked like a tire iron in 

his hand. McKeehan ran back into the trailer ar_d asked a 

friend to call the police. He then observed Conger's 

automobile being driven away. A later check revealed that 

the tavern's cash register had been disturbed. 

The appellant and his two companions then proceeded west 

toward Lolo Hot Springs where they stopped at a filling 

sttit-ion. A night attendant zt the filling station was 

sleeping. He woke up and observed the appellant and another 

person approach the station. He then hid under his blankets. 

After they left he discovered that someone had tampered with 

the cash register. It was later discovered that a radio hadalso been taken out of a wrecker at the station. 

The appellant and his two companions then proceeded back 

towards Lolo where they were spotted by a deputy sheriff and 

apprehended. After a stop at the bolo Tavern for 

identification, Conger and Horrocks were transported in one 

vehicle and the appellant was transported in another towards 

Missoula. The appellant, although cuffed, succeeded in 

unbuckling his seat belt twice. While being moved from the 

highway patrol car in which he was riding to the deputy 

sheriff's car for more secure transport he broke free and 

ran. He was soon captured again. 

While the three suspects were in the Missoula County 

jail the appellant wrote several notes to his companions. 
One note was intercepted by a jailer and. another was 

delivered to the sheriff's department by the recipient. Both 

notes were a.ttempts by the appell-a.nt to establish a story as 

to what the three should all say occurred. At trial, 

Horrocks testified that the appellant ha.d broken into the 

Lolo Hot Springs service station. Conger testified that the 

appellant had complained, "We only got thirty dollars." 

After trial, the jury found appe1la.nt guilty of burglary, 

escape and witness tampering. 

The first issue presented is whether a juror's 

nondisclosure of information during voir dire is grounds for 

reversal. We hold that the conviction stands despite the 

nondisclosure. 

During voir dire those persons of the jury panel sitting 

in the jury box were asked whether they had ever been victims 

of any crime. Following a lunch recess, a member of the 

panel was dismissed and Juror Tollefson took her place. The 

prosecuting attorney asked: 

(?. Mr. Tollefson, when I was questioning the 

prospective jurors earlier this morning, did you 

have any definite responses to any of the questions 

I was asking? A. No. 

Q. Any reason why you can't sit? A. No. 

Juror Tollefson eventually became the foreman of the 

jury which found the appellant guilty of two counts of 

burqlary. In another case a few days later, Mr. Tollefson 

again sat on a jury panel. In response to questioning, Kr. 

Tollefson acknowledged he had been burglarized three times. 

The appellant contends Mr. Tollefson's nondisclosure of this 

information during voir dire preceding his trial, and his 

eventual position as jury foreman, prejudiced the appellant's 

right to an impartial jury and his right to due process. 
We disagree. In State v. Eauer (Mont. 1984), 683 P.2d 

946, 953, 41 St.Rep. 1066, 1-073, we held that nondisclosure, 

without more, does not amount to misconduct tending to 

prejudice the appellant. Here, as in Bauer the omission 

appears to have been inadvertent and unintentional. Where 

the nondisclosure does not amount to intentional concealment 

and no further evidence of bias is proven, there are no 

grounds for reversal. - Id. 

Next, the appellant contends that 5 45-7-206 (1) (a), MCA, 

violates state and federal constitutional rights to freedom 

of expression and due process of law. That statute provides: 

Tampering with witnesses and informants. (1) A 

person commits the offense of tamp<ring with 

witnesses and informants if, believing that an 

official proceeding or investigation is pending or 

about to be instituted, he purposely or knowingly 

attempts to induce or otherwise cause a witness or 

informant to: 

(a) testify or inform falsely; 

First, we turn. to the due process issue. Appellant 

argues that the statute, both on its face and as applied, j s 

so vague that it violates the Fourteenth. Amendment to the 

United States Constitution and Art. 11, 7 of the Montana 

Constitution. The general rule is that a statute is void on 

its face if it fails to give a person of ordinary 

intelligence fair notice that his contemplated conduct is 

forbidden. United States v. Harris (1954), 347 U.S. 612, 74 

S.Ct. 808, 98 L.Ed. 989; City of Choteau v. Joslyn (19841, 

678 P.2d 665, 668, 41 St.Rep. 492, 497. Appellant contends 

that the terms "investigation" and "about to be instituted" 

a.re not defined in the criminal code, nor is their meanina 

clarified by their context. Furthermore, the appellant 

maintains the phrase "knowingly attempts to induce or 
otherwise cause a witness or informant to testify falsely" 

does not indicate when conduct becomes criminal. 

When the statute is read as a whole, the meanings of the 

terms are evident. Any person of ordinary intelligence would 

understand the meaning of "investigation" to include inquiry 

by public officials, whether police or court officers. 

Furthermore the language, "believing that an investigation is 

pending or about to be instituted" modifies the next phrase: 

"purposely or knowingly attempts to induce or otherwise cause 

a witness to: (a) testify or inform falsely." Placed in 

this context, there is no doubt that the conduct proscribed 

by the statute are acts designed to mislead factfinders who 

are investigating or who are about to begin an inquiry. 

The statute, as applied to the appellant, is also 

without constitutional defect. The appellant, while awaiting 

trial. wrote two letters to his co-defendants concerning the 

testimony to be presented at trial. The appellant maintains 

these were innocent discussions about testimony. The jury 

found these notes to be attempts to cause false testimony. 

we have no difficulty in holding that the statute makes clear 

that the act proscribed is inducement of false testimony 

while believing an investigation has been or is about to be 

instituted. Appellant, at the time he wrote the notes, was 

under arrest for suspected burglary. He wrote the notes in 

order to elicit testimony which would exculpate him. That he 

knew the testimony he sought would be false is evident from 

the opening sentence of one note which stated, "If the kid 

goes for it here's the story." The statute as applied is not 

unconstitutionally vague. 

The appellant also contends the statute is so broad in 

what. it prohibits, that it violates his rights of free speech 
under the First Amendment to the United States Constitution 

and under Art. 11, 5 7 of the Montana Constitution. The 

crucial inquiry here is whether the statute sweeps within its 

prohibitions that speech which may not be punished 

constitutionally. Grayned v. City of Rockford (19721, 408 

U.S. 104, 11-4, 92 S.Ct. 2294, 2302, 33 L.Ed.2d 222, 231; City 

of Whitefish v. OIShaughnessy (Mont. 1985), 704 P.2d 1021, 

1026, 42 St.Rep. 928, 932. 

Initially, we must note that the right to freedom of 

speech is not absolute. Speech may properly be regulated if 

the regulating statutes are narrowly and precisely designed. 

City of Whitefish, 704 P.2d at 1025, 42 St.Rep. 928, 932. As 

we have explained above, the statute has been precisely drawn 

to prohibit only speech designed to induce false testimony. 

Next then, the state's interest in prohibiting the 

solicitation of false testimony must be balanced with 

defendant's right to speak his mind. 

The defendant's right to speak is not limited to 

speaking the truth. As Justice Holms remarked, "the best 

test of truth is the power of the thought to get itself 

accepted in the competition of the market . . . " Abrams v. 

United States (1919), 250 U.S. 616, 630 (Holmes, J., joined 

by Brandeis J., dissenting). The difficulty here is that 

solicitation of false testimony is not subject to the test of 

the marketplace. It is always surreptitious and, if 

undiscovered, remains unrefuted. Therefore the usual tools 

under our system of government for exposing falsehood, those 

being counterargument and education, are unavailable. See 

Linmark Assoc., Inc. v. Township of Willingboro (1977), 431 

U.S. 85, 97, 97 S.Ct. 1614, 1-620, 52 L.Ed. 155, 164-165; Wood 
v. Georgia (19621, 370 U.S. 375, 389, 82 S.Ct. 1364, 3.372, 8 

L.Ed.2d 569, 579. 

Placing this inducement of deception in its context 

heightens the urgency with which it must dealt. The right 

of courts to conduct their business in an untrammeled way 

lies at the foundation of our system of government. Wood v. 

Georgia (19621, 370 U.S. 375, 383, 82 S.Ct. 1364, 1369, 8 

L.Ed.2d 569, 576. Justice Frankfurter has noted, and we 

agree, that one of the "substantive evils with which 

legislation may deal is the hampering of a court in a pending 

controversy, because the fair administration of justice is 

one of the chief tests of a true democraclr." Pennekemp v. 

Florida (1.9461, 328 U.S. 331, 353, 66 S.Ct. 1029, 1041., 90 

L.Ed. 1295, 1307. 

To justify prohibiting speech, the threat posed by the 

speech to the fair administration of justice "must constitute 

an imminent, not merely a likely [danger] ." Craig v. Harney 

(1947), 331 U.S. 367, 376, 67 S.Ct. 1249, 1255, 91 L.Ed. 

1546, 1552. Attempting to induce or cause false testimony 

poses just such an imminent threat to the fact-finding aspect 

of the trial- process. Orchestrated false testimony, if 

czrefully done, could evade even the most thorough 

cross-examination. It could also survive the introduction of 

contrary physical evidence or t.estimony. The crucial nature 

of truthful testimony is evidenced by the oath administered 

to witnesses and the seriousness with which society and the 

law regard perjury. 

Because witness tampering presents an imminent threat to 

the trial process, an aspect central to our democratic 

society, and because S 45-7-206 (1) (a) is narrowly drawn to 

address that threat, we hold that section does not violate 
the Montana or federal constitutional guarantees of the right. 

to free speech. 

The next issue presented by the appella-nt concerns 

whether there was sufficient corroborative evidence to 

confirm testimony at trial by the accomplices to the crime 

that the appellant committed burglary. Section 46-16-213, 

MCA, mandates that accomplice testimony be corroborated by 

other evidence which tends to connect the appeilant with the 

charged offense. In State v. Case (Mont. 1980), 621 P.2d 

1066, 1070, 37 St.Rep. 2057, 2060-2061, we explained: 

To be sufficient, corroborating evidence must show 

more than that a crime was in fact committed or the 

circumstances of its commission. It must raise 

more than a suspicion of the defendant's 

involvement in, or opportunity to commit, the crime 

charged. But corroborative evidence need not be 

sufficient, by itself, to support a defendant's 

conviction or even to make out a prima facie ca-se 

against him. Corroborating evidence may be 

circumstantial and can come from the defendant or 

his witnesses.. . . (Citations omitted.) 

With these rules in mind we turn to the evidence 

presented at trial to corroborate the testimony by Conger and 

Harrocks that the appellant committed burglary. 

Glen Fuller, an attendant at the Lolo Hot Springs 

service station, who was inside the stztion during the 

burglary testified that he saw the appellant. and Harrocks get 

out of a car and move toward the station. Fuller then hid in 

the station's bunk room. He testified he heard people come 

into the station and leave. Then he checked the cash 

register and saw that it had been broken into. Robert Sharp, 

another attendant at the station testified that when he 

arrived at work on the morning of the burglary, he observed 

that the cash register was open and money was missing. 

Finally there are the notes written by the appellant himself 

discussing the events surrounding the burglary. 
This evidence presented at ra and judged for its 

credibility by the jury, surely is enough to tend to connect 

the appellant with the burglary. We cannot disturb the 

finding of the jury that the appellant did commit the 

burglary. 

Finally the appellant contends the District Court erred 

in admitting into evidence a note addressed to the appellant 

and written by two other inmates. The note was intercepted 

by jailors before it reached the appellant. The note 

contained offers by the two inmates to "talk sense" into 

Harrocks--with physical force If necessary. While this note 

is obviously relevant to whether the witness Harrocks was 

being solicited to give false testimony, it is hearsay. The 

State contends the note was offered to prove the witness's 

state of fear. However, the inference that the witness was 

fearful cannot be reached without the intermediate inference 

that the inmates actually attempted to "talk sense" into the 

witness. The note, then, was offered by the State to prove 

the contents of the note and, as such, is inadmj.ssible 

hearsay. Rule 801(c), M.F.Evid. However, the note 

constituted cumulative evidence in that the charge of witness 

tampering is also supported by the substantial credible 

evidence of Harrock's testimony and the notes written by the 

appellant, himself. The District Court by admitting the note 

erred, but the error was harmless. 

The judqment of the District Court is affirmed. 

We Concur: