No. 13744 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1978 

THOLMAS P. McGUINN, 

Defendant and Appellant, 

THE STATE OF MONTANA, 

Plaintiff and Respondent. 

Appeal from: District Court of the Second Judicial District, 

Honorable Arnold Olsen, Judge presiding. 

Counsel of Record: 

For Appellant: 

Leonard J. Haxby argued, Butte, Montana 

Daniel R. Sweeney argued, Butte, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Denny Moreen argued, Assistant Attorney General, 

Helena, Montana 

John G. Winston, County Attorney, Butte, Montana 

Craig G. Phillips argued, Deputy County Attorney, 

Butte, Montana 

Submitted: March 7, 1978 

Decided: ?U# ' 1378 i ,:g 1L .' %dl 

Filed: dub' 
Mr. Justice John C. Harrison delivered the Opinion of the Court: 

This is an appeal by defendant Thomas P. McGuinn from 

the final judgment entered on a jury verdict of guilty of deliberate homicide in the District Court, Silver Bow County. 

The body of Mrs. LaRae Alley was found on May 30, 1976, 

at approximately 2:00 p.m. in an area located approximately 

10 miles south of Butte, Montana. The cause of death was four 

bullet wounds in the head. Time of death was estimated to be 

between 5 a.m. of the morning of May 30 and 1 p.m. that afternoon. 

Defendant was first questioned concerning the murder on 

or about May 30, 1976. No charges resulted from this questioning. 

Later, on June 2, 1976, defendant was arrested and placed in 

custody by the Silver Bow County sheriff's office on another 

charge. At that time the clothing of the defendant was taken from 

him and sent to the FBI laboratory in Washington, D.C. for analysis 

in connection with the murder of LaRae Alley. 

On August 5, 1976, defendant was charged by Information 

with the crime of deliberate homicide. Trial commenced on February 

15, 1977. During the trial the state offered direct and circumstantial evidence tending to prove defendant committed the crime. 

Contrarily, defendant maintained his innocence throughout the 

trial, testifying on his own behalf and insisting he was not 

in the area at the time the crime was committed. 

On February 23, 1977, defendant was found guilty of the 

crime of deliberate homicide by a jury verdict. From this verdict 

and subsequent judgment, defendant appeals. 

Defendant presents numerous issues for review by this 

Court. The determinative issue is whether there is sufficient 
substantial, credible evidence to support the jury verdict? The 

balance of the claimed errors is alleged to be cumulative and taken 

together amounts to reversible error. 

The standard used by this Court when reviewing the verdict 

of a jury is set forth in State v. Merseal, (1975), 167 Mont. 412, 

"This Court remains evermindful of one 

fundamental rule -- that questions of fact must 

be determined solely by the jury, and that given 

a certain legal minimum of evidence, this Court 

on review will not substitute its judgment for 

that of the jury. * * * 

"On appeal we examine the evidence to determine whether the verdict is supported by substantial evidence. In so doing, we view the 

evidence in the light most favorable to the State. * * *" 167 Mont. 415. 

The state offered evidence to show defendant had the 

opportunity to-murder Mrs. Alley. The time element connecting 

defendant with the crime is: On May 30, Mrs. Alley left her 

home at approximately 8:25 to 8:30 a.m. to deliver gasoline to 

her husband on Continental Drive. On that same morning, defendant left the D & M Bar, located in Butte, at approximately 

7:30 a.m. His vehicle was seen on the road leading to the scene 

of the crime at approximately 8:00 a.m. Defendant's vehicle 

was again seen on that road driving toward Butte from the scene 

of the crime at a high rate of speed between 8:45 and 8:50 a.m. 

A detective investigating the crime testified to making 

several trips between the victim's house and the murder scene. 

He found it took from 10-12 minutes to cover the route, if one 

traveled within the speed limits. 

In addition to the time element, a pair of sunglasses 

found at the crime scene, after the initial discovery of the body, 
was circumstantiZilly linked to defendant. Testimony was also given 

that a man matching defendant's description purchased a new pair 

of sunglasses on the evening of May 30. 

Next, the state produced evidence to demonstrate defendant 

had the means to murder Mrs. Alley. Defendant consented to a 

search of his home which produced an unusual .38 short S & W 

box of bullets and a suspected .38 Smith & Wesson weapon. Three 

Federal Bureau of Investigation laboratory experts gave testimony: 

Ira Holland, a special agent for the FBI, testified concerning the neutron activation analysis performed on the bullets 

removed from the victim's head. From this analysis the agent stated 

the bullets were similar enough in elemental composition to have 

come from the same box of cartridges as those taken in the consent 

search at defendant's home. This finding was confirmed by the 

defense expert. 

The bullets recovered from the victim were identified 

as .38 S 6 W caliber bullets. The bullets taken at defendant's 

home were also .38 S & W. Ballistics indicated the bullets were 

fired from a barrel with five grooves plus a right-hand twist. 

Testimony was given that the .38 S & W bullet is an unusual .38 

short cartridge intended for use in revolvers. 

James B. Bollenbach, an FBI agent, testified the .38 S & W 

short cartridge when compared to modern ammunition is of relatively 

low power. This evidence corresponded with the pathologist's 

testimony that the bullets removed from the victim were of a low 

energy type, not often seen in modern times. The pathologist, 

basing his observation on 30 years of experience, was of the 

opinion that modern ammunition is sufficiently powerful that the 

skull is massively fractured and in most instances the bullet 
penetrates to the opposite side of the skull or exits. In this 

case the bullet only penetrated the brain for a distance of 

approximately one inch after passing through the skull. 

Defendant's .38 fit the general description of the 

.38 S & W but it was not identified as the murder weapon. 

James Hilverda, another FBI special agent, testified that 

fibers on the clothing of the victim- microscopically similar 

to fibers contained in a sweater belonging to defendant. Those 

fibers could have come from the defendant's sweater, but not to 

the exclusion of all the other garments. 

Finally, impeaching evidence was given by defendant while 

testifying in his own behalf. At trial, defendant stated he went 

to a Mr. ~oger's residence on Continental Drive. The state produced a prior statement taken by Sheriff Hagel where defendant 

denied making any trips on Continental Drive on May 30. 

Defendant claimed he was in a bar at 8:00 a.m. on the 

morning of May 30. Two witnesses testified to seeing defendant 

traveling on Continental Drive around 8 a.m. 

Defendant submitted to a swab test to determine the last 

time he fired a gun. During the test, defendant gave four separate 

stores concerning the last time he fired a gun. The final story 

!t was two days ago", which was the day of the homicide. 

John Whelan testified defendant requested him to get 

defendant a substitute gun while both were in the Silver Bow County 

jail. Defendant denied this testimony. 

Finally, defendant testified he barely knew the victim 

and had never socialized with her. John Whelan testified defendant 

told him he knew the victim. 

Carol Ann Gilmore testified she saw defendant and the 

victim, arm-in-arm, going into a restaurant approximately a year 
before the shooting. She was positive of her identification of 

both persons. 

Defendant was placed near the scene of the crime. Defendant was shown to have the means to commit the crime. Finally, 

defendant cast doubt on his own plea of innocence by being 

impeached on topics closely related to his activities surrounding 

the crime. 

Defendant's remaining issues will be reviewed in accord 

with his theory of cumulative error. In urging the doctrine of 

cumulative error, defendant raises 16 specifications of alleged 

errors claiming that the aggregate of these errors, when taken 

as a whole, constlitntes prejudicial error and hence are reversible. 

This Court is not obligated to refute all of these alleged 

errors where the errors are bald assertions, absent any specific 

argument or authority, or are allegations which can be classified 

as nitpicking and void of definable prejudice. We will, however, 

briefly answer these contentions in light of the Court's ruling 

on the doctrine of cumulative error in State v. Meidinger, (1972), 

160 Mont. 310, 321, 502 P.2d 58, where the Court said: 

" * * * We cannot accept this contention. 

Defendant in interpreting this doctrine points 

out 33 separate specifications of alleged errors 

and claims that the aggregate of these errors 

when taken as a whole constitutes prejudicial 

error. This doctrine, if it in fact exists, 

presumes that all 33 allegations are errors. If 

(Emphasis supplied.) 

Here, defendant at the outset contends the Information was 

not based on sufficient probable cause. Section 95-1301, R.C.M. 

1947, provides in pertinent part: 

"* * *If it appears there is probable cause to 

believe that an offense has been committed by 

the defendant the judge shall grant leave to file 

the information * * *.I1 
The court may rely on the presence of probabilities. 

"* * * a mere probability is sufficient for 

probable cause, a prima facie showing not being 

necessary. Also af f idavits of probable cause 

are subject to much less rigorous standards than 

the admissibility of evidence." State v. Miner, 

(1976), 169 Mont. 260, 264, 546 P.2d 252. 

We have reviewed the application for leave to file the 

Information. The county attorney presented a large array of facts. 

Probable cause to believe that an offense was committed by the 

defendant appears from these facts. 

Defendant's second contention is that a total of 17 

exhibits were improperly admitted into evidence. Defendant 

has apparently raised as error every exhibit to which he objected 

in some manner during trial. Eight of the exhibits were objected 

to on the grounds of lack of proper foundation. 

" * * * A determination of whether a foundation 

has been properly laid in order to introduce 

exhibits into evidence rests with the lower court 

and such a determination will not be overturned 

unless there is a clear abuse of discretion * * *." 

State v. Olsen, (1968), 152 Mont. 1, 10, 445 P.2d 

926. 

No abuse of discretion is present in this case. If an exhibit 

has been shown to be connected with the crime and identified as 

such, it is sufficient. State v. Wilroy, (1967), 150 Mont. 255, 

259, 434 P,2d 138. The items in question were shown to be 

connected with the crime. 

Eight other exhibits were objected to on the grounds of 

relevancy. Evidence is considered relevant if it naturally and 

logically tends to establish a fact in issue. State v. Sanders, 

(1971), 158 Mont, 113, 117,118, 489 P.2d 371. Exhibits containing bullets from the crime and photographs of the crime 

scene have been found to be admissible. State v. Allison, (1948), 

122 Mont. 120, 133, 199 P.2d 279; State v. McKenzie, (1976), 
Mont . , 557 P.2d 1023, 1037, 33 St.Rep. 1043 (Remanded by 

the United States Supreme Court for further consideration, see: 

State v. McKenzie, Mont . , P.2d , 35 St.Rep. 

759). All of the questioned items were sufficiently connected 

to the crime. 

Defendant raises as error the admission into evidence 

of Exhibit 7A, a pistol introduced for illustrative purposes 

only. The county attorney upon presenting this pistol stated: 

"Q. I'm going to show you a weapon and have 

it marked. (Whereupon, State' s proposed Exhibit 

7A is marked for identification. ) 

"Q. First of all, I'm going to tell you this 

was not the weapon that did the shooting. * * *I1 

Af ter some discussion and an objection by defendant that Exhibit 

7A was not the gun that shot the victim and therefore it was 

totally immaterial and irrelevant to the case, the trial court 

apparently admitted the exhibit into evidence without a motion 

from either party. 

On appeal defendant now alleges since no attempt was 

made to introduce the exhibit, the erroneous admittance of the 

exhibit into evidence misled the jury into believing the 

defendant was the owner of the murder weapon. 

The county attorney clearly stated that the exhibit was 

to be used for illustrative purposes only. While neither party 

moved to admit this exhibit into evidence, they did not object 

when the trial court stated "~xhibit 7A may be admitted into 

evidence. I' 

In addition to lacking a specific objection for admitting 

this exhibit without a motion, we see no substantial prejudice. 

Both the state and defendant clearly stated the exhibit was not 

the murder weapon. 
Defendant next raises an additional series of error 

concerning the introduction of hearsay testimony. Many of the 

allegations of error deal with the introduction of statements 

made by defendant and admitted by the trial court as a verbal 

act exception to the hearsay rule. 

The law on admissions against interest is well established. Section 93-401-27, R.C.M. 1947, dealing with facts 

which may be proven at trial, provides in pertinent part: 

"2. The act, declaration or omission of a party, 

as evidence against such party. 1 I 

An admission has been defined as any voluntary statement by an 

accused relating to some particular fact or circumstance which 

indicates a consciousness of guilt and tends to connect the 

accused with the crime charged. State v. Allison, (1948), 122 

Mont. 120, 144, 199 P.2d 279. 

The state questioned the sheriff regarding statements 

made by the defendant's son. Defendant objected on the grounds 

that any statements made by the son concerning the sunglasses 

would be hearsay, The county attorney responded to this objection 

by stating: 

"It's the same verbal act that we're talking 

about now. We're not asking Mr. Hagel to tell 

the statement was true, but that the statement 

was made * * *.I1 

These statements would have been hearsay had they been offered 

to prove the truth of the matter stated. However, as the county 

attorney stated, they were not offered for that purpose but 

rather to show how the investigation focused on the defendant 

as a suspect, 

Going further through the transcript we note defendant's 

son's subsequent testimony. The son stated he had not identified 

the sunglasses but rather said: "Those look like my dad's 

sunglasses. II 

-9- 
Accordingly, we find no substantial prejudicial effect 

on the defendant. As stated by this Court in State v. Rornero, 

(1973), 161 Mont. 333, 341, 505 P.2d 1207, under section 95- 

2425, R.C.M. 1947: 

"Any error, defect, irregularity or 

variance which does not affect substantial 

rights shall be disregarded. * * *'I 

Additional error is alleged resulting from the comments 

and remarks made by the prosecutor. Defendant contends the 

comments were inflammatory and prejudicial. The lack of 

significance of this alleged error is particularly found in 

defendant's failure to take any corrective measure during trial. 

State v. Caryl, (1975), 168 Mont. 414, 432, 543 P.2d 389. 

Defendant had the burden to show that the remarks and 

comments affected his substantial right. In the absence of such 

showing there can be no prejudice. State v. Meidinger, supra. 

A like contention of error is made by defendant concerning 

alleged comments on the evidence made by the District Court. 

For similar reasons, no merit is found in this argument. The 

references cited from the transcript are nitpicky and fail to 

qualify as comments on either the weight or interpretation of 

the evidence. During trial defendant did not object to any 

of the statements of the court now alleged to be prejudicial, 

nor did he take any other corrective action. State v. Jensen, 

(1969), 153 Mont. 233, 236, 455 P.2d 631. 

Finally, defendant contends the trial court gave 7 

improper jury instructions and failed to submit 14 proper instructions on behalf of the defendant. 

Briefly, 2 of the 7 specifications of error concerning 

improper instructions were not objected to at the time the 

instructions were settled. These instructions, Court's Instructions #7 and #16, cannot now be challenged on appeal for 
the first time. State v. Meidinger, supra. A third alleged 

improper instruction, Court's Instruction #3, was objected to on 

the grounds that a shorter more concise instruction was available. 

Court's Instruction #3 is recommended and found in the Montana 

Jury Instruction Guide. Court's Instruction /I18 was objected to by 

defendant on the grounds of being repetitious of a prior court 

instruction. A reading of the instructions reveals the instruction objected to defined circumstantial evidence, whereas the 

prior court instruction differentiated direct and circumstantial 

evidence and explained how the jury should consider circumstantial 

evidence. We find no merit in defendant's objection. 

The remainder of defendant's alleged improper jury instructions fail to establish any reversible error and we deem 

them not worthy of discussion. 

Of the 14 instructions proposed by defendant, but not 

given, 11 were rejected on the grounds of being repetitious of 

given instructions. A fair reading of all of the jury instructions 

as a whole demonstrates they are sufficient and properly instructed the jury on the law governing this case. Those jury 

instructions rejected as repetitious were not an abuse of 

discretion by the court. 

The remaining 3 proposed instructions also fail to provide 

grounds for reversal. Defendant attempted to offer an instruction 

concerning the defense of alibi. This instruction was properly 

rejected as defendant's case was not founded upon an alibi defense. 

No notice of such a defense was given as required by section 

95-1803(3), R.C.M. 1947. No claim was made by defendant in keeping 

with the defense of alibi. 

Defendant also proposed 2 instructions providing a legal 

definition for the words "could" and ''similar". The District 

Court refused these instructions stating: 
'I* * * They [the jury] heard the testimony 

of the similarities and it's up to them to 

determine the similarities and its not within 

the province of this court to say what similarity 

is or is not. 11 

We find no error on the part of the trial court in refusing these 

instructions. 

This Court has carefully reviewed the issues for review 

presented by the defendant. We find sufficient substantial 

evidence, if believed by the jury. We find no abuse of judicial 

discretion or reversible error. 

The judgment of the trial court is affirmed. 

We Concur: 

$LJ&tQQ\ 

Chief Justice 

Judge, sitting with the Court.