No. 90-448 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsJANICE McCORD, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable G. Todd Baugh, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Gary E. Wilcox argued, Billings, Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General; Kathy Seeley 

argued, Assistant, Helena, Montana 

Dennis Paxinos, County Attorney; Curtis Bevolden, 

Deputy, ~illings, Montana 

Filed: 

Submitted: November 5, 1991 

Decided: January 16, 1992 

<.. 

Clerk 
~ustice Fred J. Weber delivered the Opinion of the Court. 

A jury from the Thirteenth Judicial District Court, 

Yellowstone County, convicted y an ice McCord, the defendant, of 

conspiracy to commit deliberate homicide in violation of 5 45-4- 

102, MCA. Defendant appeals. We affirm. 

Defendant raises the following issues for review: 

(1) Did the District Court violate hearsay rules and 

defendant's right to confrontation by admitting testimony of Alan 

Foster's (Foster's) statements where Foster was not available to 

testify? 

(2) Did the State's delay in processing swab tests constitute 

negligent suppression of exculpatory evidence, violate due process 

and require dismissal of the case? 

On December 26, 1987, Russell McCord died of a gunshot wound 

through the temple. Defendant, the wife of Russell McCord, 

testified that she and Foster found her husband in his bed, covered 

with blood. Investigators did not find the murder weapon. The 

investigators found no signs of forced entry or theft of property 

at the residence. The wound was consistent with the caliber of a 

silver derringer owned by the decedent and formerly stored in the 

family safe at the McCord residence. That derringer was never 

located. 

Defendant called 911 from their home. Emergency personnel 

testified that she told them that her husband was being medically 

treated for depression. The testimony established that statement 

was not true. 
The prosecution established that in order to avoid delinquent 

federal tax debts, Russell McCord set up a family corporation to 

which various assets were transferred. The evidence established 

that money had been placed in the corporate bank account, but that 

the corporation had defaulted on payments owing on contracts for 

the purchase of property. The defendant, as treasurer, testified 

that she controlled the corporate finances and paid corporate 

bills, including making payments on a contract for deed on their 

residence. The evidence also established that the defendant was 

responsible for making payments on a contract for deed on a duplex 

property, which the McCords, together with Foster, had purchased. 

The evidence further established that the McCords and Foster had 

defaulted on a number of payments on the duplex contract and 

ultimately forfeited their interest in that duplex. In addition, 

the evidence established that the McCords received a notice of 

eviction on the family residence with such eviction to take place 

on December 27, 1987. The defendant did not tell Russell McCord of 

the default, forfeiture or the impending eviction. 

Three days before the homicide, defendant wrote to the sellers 

under the contract requesting a delay in eviction from their 

residence. She pointed out that Russell McCordls brain cells were 

deteriorating, that he only had a few months to live, and that she 

would pay the delinquent obligation with his life insurance 

proceeds. The testimony established that the defendant's 

statements regarding her husband's illness were not true. 

prior to the shooting, in November 1987, someone took coins 
from Russell McCord s collection, worth several thousand dollars. 

There was evidence to establish that Russell McCord suspected 

Foster or the defendant had removed the coins from the family safe. 

The evidence established that Russell McCord had planned to 

hold an annual meeting of the family corporation on December 27, 

1987, the day following his death. His plan had been to examine 

the corporate books, and discuss the missing coins. In addition, 

Russell McCord had disclosed his intention to require Foster to 

move out of the McCord home by January 1, 1988. At the time of the 

shooting, Foster had lived with the defendant and the decedent for 

almost eleven years. Dennis McCord testified that during that 

time, his mother, the defendant, and Foster were engaged in a longterm sexual affair. 

On August 18, 1988, Foster was killed when he drove his pickup 

truck off U.S. Highway 212. While the death was officially ruled 

as an accident, a Montana Highway Patrol accident reconstruction 

expert, as well as an undersheriff who investigated the accident, 

testified that, in their opinion, Foster's death was a suicide. 

Dennis McCord testified that two days before Foster's death, he had 

told the defendant that she and Foster were going to be arrested 

for Russell McCordrs murder. 

The first issue concerns the testimony by several witnesses to 

a number of statements Foster made following Russell McCordgs 

death. These will be discussed in further detail. 

The defendant's second issue involves swabs which 

investigators took from the hands of the decedent, defendant, and 
Foster at the scene of the murder. The State left these swabs in 

an evidence locker and did not process them to check for powder 

residue until just prior to the trial when defendant requested the 

analysis. As a result of this delay in processing, the results 

were not available until the fourth day of trial. At trial, the 

State's witness testified that the swab tests were inconclusive 

because they did not detect gunshot residue on any of the three 

subjects. After the close of the Staters case, defense counsel 

moved to dismiss the case for negligent suppression of exculpatory 

evidence. Defendant claimed the State's delay in processing the 

swab results prevented her from obtaining an expert to explain the 

significance of these inconclusive results to the jury. 

I 

Did the ~istrict Court violate defendant's right to 

confrontation and the Montana Rules of Evidence by admitting 

Foster's statements when Foster was not available to testify? The 

challenged statements are set out in numbered order below. 

1. Defendant's son Dennis and Dennis' wife Grace, both 

testified that they drove Foster home after the police 

investigation at the station on the day of the murder. They 

testified that during the drive, Foster told them Russell McCord 

had been shot at a slight downward angle, from about twelve inches 

away with a small caliber weapon, probably a .22, and had 

suffocated in his own blood. He told them that he learned these 

details from emergency personnel. 

2. Grace testified that on the eve of the funeral, Foster 
stated that he loved ÿ us sell McCord and I1didn't mean to do it." 

3. Dennis testified that he did not actually hear Foster's 

statement, but that he told Detective Comfort that Grace said to 

him that Foster said he did not mean to nkillll Russell McCord. 

4. Grace called the police immediately after telling Dennis 

of Foster's statements. During the resulting interrogation, Foster 

feigned intoxication. The detective testified that when 

confronted, Foster stated he faked intoxication for "selfpreservation. " 

5. Detectives testified regarding Foster's account of the 

particular time and sequence of his activities the afternoon of the 

homicide. His statements were inconsistent with the testimony of 

defendant and other witnesses. 

6. Foster told detectives he was unaware that as a result of 

default, he and the McCords forfeited their interest in the duplex 

property. The State contradicted this statement at trial with 

other evidence. 

A. Statements 1 and 2: Admissions Against Interest. 

The District Court ruled that statements 1 and 2 fell within 

the hearsay exclusion of Rule 804 (b) (3) , M. R. Evid. , which allows 

the admission of statements made by an unavailable declarant which 

so far tend to subject the declarant to criminal liability, that a 

reasonable man in his position would not have made the statement 

unless he believed it to be true. Defendant contends that the 

witnesses1 account of the statements were inaccurate, mischaracterized, and did not subject Foster to criminal liability. 
The State contends that any statement which indicates an 

insider's knowledge of or participation in a crime tends to subject 

the declarant to criminal liability. United States v. Alvarez (5th 

Cir. 1978), 584 F.2d 694, 700. Here, Foster's description of 

Russell McCordfs wound and death indicate an insider's knowledge of 

or participation in the murder. This further suggests that the 

statement subjected Foster to criminal liability and would come 

within the statement against interest portion of Rule 804(b) (3). 

We conclude the court properly admitted statement 1 into evidence 

under Rule 804 (b) (3) , M.R. Evid. 

In a similar manner, we conclude Foster's statement that he 

loved Russell McCord and did not mean to do it indicated knowledge 

of or participation in the crime and tended to subject him to 

criminal liability. At the time Foster made this statement, he 

knew the police considered him a suspect in the homicide. Two days 

prior to Foster saying that he did not mean to do it, police had 

extensively questioned him and swabbed his hands for powder 

residue. Given these circumstances, a reasonable man in Foster's 

position would not have made this statement unless he believed it 

to be true. Thus, we conclude statement number 2 was properly 

admitted into evidence under Rule 804(b)(3), M.R.Evid. 

Next, defendant contends Foster's statements admitted as 

statements against interest are inculpatory, unreliable, and 

untrustworthy. In Rule 804 (b) (3) "A statement tending to expose 

the declarant to criminal liability and offered to exculpate the 

accused is not admissible unless corroborating circumstances 
clearly indicate the trustworthiness of the statement. tt State v. 

Powers (1988)) 233 Mont. 54, 57, 758 P.2d 761, 763. The defendant 

asks us to expand this rule and exclude uncorroborated inculpatory 

declarations against interest. 

[Ilnculpatory declarations against interest requires 

corroborating circumstances that I1clearly indicate the 

trustworthiness of the statement . . . 11 

Under Rule 804 (b) (3), trustworthiness is determined 

primarily by analysis of two elements: The probable 

veracity of the in-court witness, and the reliability of 

the out-of-court declarant. 

Alvarez, 584 F. 2d at 701. We do not find it necessary to determine 

whether or not uncorroborated inculpatorv declarations may be 

admitted. Here the State provided extensive corroboration. The 

corroboration includes the following: Russell McCordls body was in 

his home with no sign of forced entry; the wound was consistent 

with a weapon owned by the decedent, kept in the family safe which 

police never found; Foster and defendant had access to the home and 

the safe; Dennis testified that Foster and the defendant were 

having an affair; Russell McCord had informed Foster he would have 

to move out; and finally Foster was aware that the decedent would 

find out about the bleak financial situation. Further, in Alvarez 

the in-court witness was a co-conspirator who turned state's 

evidence in exchange for a lesser sentence. Here, Dennis and Grace 

McCord, the principal witnesses, had no similar motive to testify 

falsely, and were extensively cross-examined by defendant. We 

conclude the evidence clearly corroborated Foster's statements. 

Finally, defendant contends that statements 1 and 2 violate 
her right to confrontation guaranteed by Article 11, 5 24 of the 

Montana constitution and the Sixth Amendment of the United States 

Constitution. This Court has examined several factors in 

addressing confrontation clause violations. State v. Weinberger, 

(1983), 204 Mont. 278, 665 P.2d 202. In Weinberser, the Court 

examined Bruton v. United States (1968), 391 U.S. 123, 88 S.Ct. 

1620, 20 L.Ed.2d 476, and held that testimony did not violate the 

defendant's right to confrontation where the statement was not 

critical to the prosecution, incriminating only in conjunction with 

other facts, and did not demonstrate a co-defendant's recognized 

motivation to shift blame to others. Weinberser, 204 Mont. at 298, 

665 P. 2d at 213. Next in examining Dutton v. Evans (1970) , 400 

U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213, Weinberser added: 

. . . [Tlhe statement did not contain an express 

assertion about past fact; . . . [the declarantfs] 

personal knowledge of the identities and roles of the 

other murder participants had been abundantly established 

by other evidence; and, that the possibility . . . [the 

declarantfs] statement was founded on faulty recollection 

was remote in the extreme. Finally, the circumstances 

provided widely recognized indicia of reliability where, 

as here, the statement was spontaneous and where it was 

against . . . [the declarant's] penal interest to make 

it. 

Weinberqer, 204 Mont. at 303, 665 P.2d at 215. We conclude 

Foster's statements meet the requirements contained in Weinberser. 

First, the statements were not crucial to the State's case in light 

of other evidence. The statements here did not incriminate the 

defendant, but rather tended to incriminate Foster. Until linked 

by other evidence to the defendant, the primary thrust of the 

statements was to link Foster to the homicide. Of itself, that did 
not establish that the defendant was also linked to the homicide. 

~dditional evidence was required and was submitted by the State to 

establish that link. The statements were made by Foster within the 

two-day period after the homicide and the statements were 

spontaneous and against Foster's interest. We hold the trial court 

did not violate Rules of Evidence or the defendant's right to 

confrontation by admitting statements 1 and 2 in evidence. 

B. Statement 3. 

Dennis McCord testified that his wife, Grace, told him that 

Foster did not mean to kill the deceased. ~he'defendant did not 

object to this questioning of Dennis McCord. The pertinent part of 

Dennis' testimony is set out as follows: 

[Direct exam] 

A. I gave my statement to, I think Detective 

Comfort, I think is who I gave it to, and then Grace gave 

hers, and they gave us a ride back out, I think, that was 

about it. 

Q. That night what did you tell Detective Comfort? 

A. I said that Grace said to me that Alan just said 

he didn't mean to kill him. 

Q. Did you say anything else? Did you tell 

Detective Comfort that in your mind you had figured out 

the situation? 

A. Oh, yeah. 

[Cross exam] 

Q. Do you recall on the 28th, when the police came, 

when the detective came out to the house after your wife 

said that Alan had said, I didn't mean to do it, do you 

recall talking to Detective Comfort at that point? 

A. I gave him [Detective Comfort] a statement after 
Q. Do you recall telling him at the scene, when he 

was out there that what your wife told you was, I am 

sorry, I didn't mean to do it? 

A. I think I said that my wife told me that he 

didn't mean to kill him. 

Q. You don't recall telling Detective Comfort out 

at the house, I am sorry, I didn't mean to do it? 

A. No. And in that case it would be semantics 

anyway. 

Q. It would be? Do and kill mean the same thing? 

A. When they are referenced that way, yes. 

Here, no objection was raised to this testimony at trial. We 

will not put a trial court in error where that court has not been 

given the opportunity to rule the admissibility of evidence and 

to correct itself. Section 46-20-104 (2) , MCA. The issues were not 

properly raised before the District Court. We will not consider 

the issues of evidence and confrontation raised on this testimony. 

C. Statement 4: Then-existing State of Mind. 

The trial court admitted statements 4-6 as non-hearsay 

statements made by a co-conspirator under Rule 801 (d) (2) (e) , 

M.R.Evid. On appeal, the State presents an alternative basis for 

admitting each statement. We conclude that if Foster's statements 

do not violate hearsay rules or defendant's right to confrontation, 

we will affirm the decision of the trial court regardless of its 

basis in admitting the statements. Phillips v. City of Billings 

(1988), 233 Mont. 249, 252, 758 P.2d 772, 774. 

The State contends that statement 4, Foster's explanation for 

feigning intoxication during the police interrogation related to 
his then existing mental or emotional condition. Thus, it was 

properly admitted under Rule 803(3), M.R.Evid.: 

Then-existing mental, emotional, or physical condition. 

A statement of the declarant's then-existing state of 

mind, emotion, sensation, or physical condition (such as 

intent, plan, motive, design, mental feeling,...), but 

not including a statement of memory or belief to prove 

the fact remembered or believed. 

Here, after giving Foster a breathalizer test, police asked 

him why he was faking intoxication. Foster's Itself preservationt1 

statement was not to prove a fact remembered or believed, but a 

spontaneous response to his contemporaneous conduct of acting 

intoxicated. It explained the motivation for engaging in that 

conduct. Thus we conclude that Foster's self-preservation 

statement falls within the hearsay exception of Rule 803(3), 

Next, defendant argues that by admitting this statement the 

trial court violated her right to confront the declarant. State 

contends admitting this statement did not violate defendant's right 

to confrontation. We agree that this statement meets the 

Weinberqer criteria. First, Foster's statement was not crucial to 

the prosecution. The statement was based on his personal 

knowledge. The statement did not attempt to shift blame to the 

defendant. It was spontaneous and tended to show the defendant's 

involvement in the conspiracy only when linked to other testimony. 

Finally, this statement falls within a recognized exception to the 

hearsay rule. Weinberqer, 204 Mont. at 298, 303, 665 P.2d at 213, 

215. We hold that the admission of statement 4 neither violated 

the Rules of Evidence nor violated defendant's right to 
confrontation. 

D. Statement 5 and 6: Non-hearsay. 

Finally, the State contends that statements 5 and 6 are nonhearsay. Rule 801(c), M.R.Evid. "Out-of court statements 

constitute hearsay only when offered in evidence to prove the truth 

of the matter asserted. " Anderson v. united States (1974), 417 

U.S. 211, 219, 94 S.Ct 2253, 2260, 41 L.Ed.2d 21, 28-29. Here, the 

State offered Foster's account of his activities the afternoon of 

the homicide to prove inconsistencies not to prove its truth. 

~ikewise, Foster's statements regarding the duplex property was 

introduced to show its falsity. Thus, we conclude the trial court 

did not violate hearsay rules by admitting statements 5 and 6. 

Last, defendant contends the statements violated her right to 

confrontation. Again, using the Weinberqer analysis, we conclude 

that defendant's right to confrontation was not violated. 

We hold that the court properly admitted statements 1 through 

6 under the Rules of Evidence and under the confrontation clause. 

I1 

Did the late receipt of the "swab1' test results constitute 

negligent suppressing of exculpatory evidence, violate due process, 

and require dismissal of the State's case? 

Defendant contends that the delay in processing the swab test 

results was negligent suppression of exculpatory evidence by the 

State, and violative of due process. Brady v. Maryland (1963), 373 

U.S. 83, 83 S.Ct 1194, 10 L.Ed.2d 215. 

The record discloses that defendant failed to object to this 
evidence during the trial, and did not request the court stay the 

proceedings until defendant could obtain experts to analyze the 

results. Under 5 46-20-701(2), MCA, a defendant who fails to 

object to an alleged error at trial must prove the error was 

prejudicial to her guilt or punishment, and that the prosecutor, 

court or law enforcement agency suppressed the evidence and 

prevented the claim from being raised at trial. Here the record 

does not support either contention. The defendant has failed to 

demonstrate prejudice and failed to demonstrate that the State ' s 

conduct prevented her claim from being raised. We hold the late 

receipt of the I's~ab~~ tests did not require dismissal of the 

State's case. 

Affirmed. 

We Concur: A' 

Justices 
Justice Terry N. Trieweiler specially concurring. 

I concur with the result of the majority opinion and would 

likewise affirm the judgment of the District Court. However, I do 

not agree with all of the majority's reasons for its decisions. 

Specifically, I disagree that the statements referred to in 

paragraphs 1, 2, and 4 under Issue I were exceptions to the hearsay 

rule. I conclude that the statements were admissible because they 

were not hearsay at all. "Hearsay is a statement, other than one 

made by the declarant while testifying at the trial or hearing, 

offered in evidence to prove the truth of the matter asserted." 

Rule 801(c), M.R.Evid. (emphasis added). 

None of the statements referred to above were offered to prove 

the truth of what the out-of-court declarant had said. The issue 

with regard to those statements was whether they had been made at 

all. That issue depended on the truthfulness of the witness who 

testified in court that the statements had been made. 

For example, the State did not offer Alan Foster's statement 

that he "didn't mean to do itw to prove that he unintentionally 

killed Russell McCord. If that statement were true, it would have 

been a defense to the charges against the defendant. 

Because I do not believe that statements 1, 2, and 4 were 

hearsay, I cannot conclude that they come within any exception to