No. 13744 IN THE SUPREME COURT OF THE STATE OF MONTANA 1978

THOLMASP. 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. JusticeJohn C. Harrison delivered the Opinion of the Court:

This is an appeal by defendant Thomas P. McGuinn from the finaljudgment entered on a jury verdict of guilty of deliberate homicide in the District Court, SilverBow County. The body of Mrs. LaRae Alley was found on May 30, 1976, atapproximately 2:00 p.m. inan 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 tobe between 5 a.m. of the morning of May 30 and 

### 1p.m. that afternoon. Defendant was firstquestioned 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 SilverBow County sheriff's office on another charge. Atthat time the clothing of the defendant was taken from him and sent tothe FBI laboratory inWashington, 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 stateoffered direct and circumstantial evidence tending toprove defendant committed the crime. Contrarily, defendant maintained his innocence throughout the trial, testifying on his own behalf and insistinghe was not inthe area atthe 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 subsequentjudgment, defendant appeals. Defendant presents numerous issues for review by this Court. The determinative issue iswhether there is sufficientsubstantial, credible evidence to support thejury verdict? The balance of the claimed errors 

### is alleged tobe cumulative and taken together amounts toreversible error. The standard used by this Court when reviewing the verdict of a jury is set forth inStatev. Merseal, (1975), 167Mont. 412,

"This Court remains evermindful of one fundamental rule

# -- that questions of fact must be determined solelyby thejury, and that given a certain legal minimum of evidence, this Court on review willnot substitute itsjudgment for that of thejury. 

# ***

"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 lightmost favorable to the State. 

# * **" 167Mont. 415. The state offered evidence to show defendant had the opportunity to-murderMrs. Alley. The time element connecting defendant with the crime 

### is: On May 30, Mrs. Alley lefther home atapproximately 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 inButte, atapproximately 7:30 a.m. Hisvehicle was seen on the road leading to the scene of the crime atapproximately 8:00 a.m. Defendant's vehicle

was again seen on that road driving toward Butte from the scene of the crime ata high rate of speed between 8:45 and 8:50 a.m. A detective investigating the crime testified tomaking several tripsbetween the victim's house and the murder scene. He found it took from 10-12 minutes to cover the route, if one traveledwithin the speed limits. In addition tothe time element, a pair of sunglasses found atthe crime scene, after the initialdiscovery of the body,was circumstantiZilly linked todefendant. Testimony was alsogiven that a man matching defendant's description purchased a new pair of sunglasses on the evening of May 

### 30. Next, the stateproduced evidence to demonstrate defendant had the means to murder Mrs. Alley. Defendant consented to a search of hishome 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: IraHolland, 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 thebullets were similar enough inelemental composition tohave

come from the same box of cartridges as those taken in the consent search atdefendant's home. This findingwas confirmed by the defense expert. The bullets recovered from the victimwere identified

as 

### .38 S 6W caliberbullets. The bullets taken atdefendant's home were also 

### .38 S &

### W. Ballistics indicated the bulletswere fired from a barrel with five grooves plus a right-hand twist. Testimony was given that the 

### .38 S & W bullet isan unusual 

### .38 short cartridge intended for use in revolvers. James B. Bollenbach, an FBI agent, testified the 

### .38 S & W short cartridge when compared tomodern ammunition 

### is of relatively low power. This evidence corresponded with the pathologist's testimony that the bullets removed from the victimwere of a low energy type, not often seen inmodern times. The pathologist, basing his observation on 

### 30 years of experience, was of the opinion that modern ammunition is sufficientlypowerful that the skull

### ismassively fractured and inmost instances the bulletpenetrates tothe opposite side of the skull or exits. In this

case the bullet only penetrated thebrain for a distance of approximately one inch afterpassing through the skull. Defendant's .38 fitthe general description of the .38 

### S &

### W but it was not identified as the murder weapon. James Hilverda, another FBI specialagent, testified that fibers on the clothing of the victim- microscopically similar to fibers contained ina sweater belonging to defendant. Those fibers could have come from the defendant's sweater, but not to the exclusion of allthe other garments. Finally, impeaching evidence was given by defendant while testifying in his own behalf. Attrial, defendant statedhe went to a Mr. ~oger's residence on Continental Drive. The stateproduced a prior statement taken by Sheriff Hagel where defendant denied making any trips on Continental Drive on May 30. Defendant claimed he was ina bar at8:00 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 timehe 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 inthe Silver Bow County jail. Defendant denied this testimony. Finally, defendant testifiedhe barely knew the victim and had never socializedwith her. John Whelan testified defendant told him he knew the victim. CarolAnn Gilmore testified she saw defendant and the victim, arm-in-arm, going into a restaurant approximately a yearbefore the shooting. She was positive of her identification of both persons. Defendant was placed near the scene of the crime. Defendant was shown tohave the means to commit the crime. Finally, defendant cast doubt on his own plea of innocence by being impeached on topics closely related tohis activities surrounding the crime. Defendant's remaining issues willbe 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 torefute allof these alleged

errorswhere the errors arebald assertions, absent any specific argument or authority, or are allegationswhich can be classified

asnitpicking 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 inState v. Meidinger, (1972), 160Mont. 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 atthe outset contends the Information was not based on sufficient probable cause. Section 95-1301, R.C.M. 1947, provides inpertinent part: 

## "*

# * *If it appears there 

### isprobable cause to believe that an offense has been committed by the defendant thejudge shall grant leave to file the information

# ** *.I1The court may rely on the presence of probabilities. 

### "*

# *

# * a mere probability is sufficient for probable cause, a prima facie showing not being necessary. Also affidavits of probable cause are subject tomuch less rigorous standards than the admissibility of evidence." Statev. Miner, (1976), 169Mont. 260, 264, 546 P.2d 252. We have reviewed the application for leave to filethe Information. The county attorney presented a large array of facts. Probable cause tobelieve 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 towhich 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 inorder to introduce exhibits into evidence restswith the lower court and such a determination

### willnot be overturned unless there is a clear abuse of discretion

# ** *." Statev. Olsen, (1968), 152Mont. 1, 10, 445 P.2d 926. No abuse of discretion ispresent inthis case. If an exhibit has been shown tobe connected with the crime and identified as such, it 

### is sufficient. Statev. Wilroy, (1967), 150Mont. 255, 259, 434 P,2d 138. The items inquestion were shown tobe connected with the crime. Eight other exhibits were objected toon the grounds of relevancy. Evidence 

### is considered relevant if itnaturally and logically tends to establish a fact in issue. Statev. Sanders, (1971), 158Mont, 113, 117,118, 489 P.2d 371. Exhibits containingbullets from the crime and photographs of the crime

scene have been found tobe admissible. Statev. Allison, (1948), 122Mont. 120, 133, 199 P.2d 279; Statev. McKenzie, (1976),Mont

# . ,557 P.2d 1023, 1037, 33 St.Rep. 1043 (Remanded by the United States Supreme Court for further consideration, see: Statev. McKenzie, Mont

# . , P.2d 

## ,35 St.Rep. 759). Allof the questioned items were sufficiently connected to the crime. Defendant raises aserror the admission into evidence of Exhibit 7A, a pistol introduced for illustrative purposes only. The county attorney upon presenting thispistol stated: 

### "Q. I'm going to show you a weapon and have it marked. (Whereupon, State'

### s proposed Exhibit 

### 7A ismarked for identification.) "Q. First of all, I'm going to tellyou this was not the weapon that did the shooting.

# *

# * *I1 After 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 trialcourt apparently admitted the exhibit intoevidence without a motion from either party. On appeal defendant now alleges sinceno attempt was made to introduce the exhibit, the erroneous admittance of the exhibit into evidence misled thejury intobelieving the defendant was the owner of the murder weapon. The county attorney clearly stated that the exhibit was tobe used for illustrative purposes only. While neither party moved to admit this exhibit into evidence, they did not object when the trialcourt stated "~xhibit 7A may be admitted into evidence.I' In addition to lacking a specific objection for admitting this exhibitwithout a motion, we seeno substantial prejudice. Both the stateand defendant clearly stated the exhibit was not the murder weapon.

### Defendantnext raises an additional series of error concerning the introduction ofhearsay testimony. Many of the allegationsof error dealwith 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 admissionsagainst 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.1I 

### An admissionhas been defined as any voluntary statementby an accused relating to someparticular fact or circumstancewhich indicates a consciousness of guilt and tends to connect the accusedwith the crime charged. Statev. 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 statementsmade 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 statementwas true,but that the statement was made

# ** *.I1 

### These statementswould have beenhearsay had they been offered to prove the truth of the matter stated. However,as the county attorney stated, theywere not offered for that purpose but rather to showhow the investigation focused on the defendant

as a suspect, Going further through the transcriptwe note defendant's son's subsequent testimony. The son statedhe had not identified the sunglasses but rather said: "Those look likemy dad's sunglasses.II 

### -9-Accordingly, we findno substantial prejudicial effect

on the defendant. As statedby this Court in Statev. Rornero, (1973), 161Mont. 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 shallbe disregarded. 

# ** *'I Additional error 

### isalleged 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 totake any corrective measure during trial. Statev. Caryl, (1975), 168Mont. 414, 432, 543 P.2d 389. Defendant had theburden to show that the remarks and comments affectedhis substantial right. In the absence of such showing there can be no prejudice. Statev. Meidinger, supra. A like contention of error 

### ismade 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 arenitpicky and failto qualify as comments on either the weight or interpretation of the evidence. During trialdefendant did not object to any of the statements of the court now alleged tobe prejudicial,

nor did he take any other corrective action. State

### v. Jensen, (1969), 153Mont. 233, 236, 455 P.2d 631. Finally, defendant contends the trialcourt gave 

### 7 improper jury instructions and failed to submit 14proper instructions on behalf of the defendant. Briefly, 2 of the 

### 7 specifications of error concerning improper instructions were not objected to atthe time the instructions were settled. These instructions, Court's Instructions

### #7 and #16, cannot now be challenged on appeal forthe firsttime. Statev. 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 toby 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 explainedhow the jury should consider circumstantial evidence. We findno merit indefendant'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, 11were rejected on the grounds of being repetitious of given instructions. A fair reading of allof thejury instructions

as a whole demonstrates they are sufficient and properly instructed thejury on the law governing this case. Those jury instructions rejected as repetitious were not an abuse of discretionby the court. The remaining 3 proposed instructions also failto provide grounds for reversal. Defendant attempted to offer an instruction concerning the defense of alibi. This instructionwas properly rejected as defendant's case was not founded upon an alibidefense. No notice of such a defense was given as required by section 95-1803(3), R.C.M. 1947. No claimwas made by defendant inkeeping with the defense of alibi. Defendant alsoproposed 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 saywhat 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 findno abuse of judicial discretion or reversible error. The judgment of the trial court is affirmed.

We Concur: 

# $LJ&tQQ\ Chief Justice

Judge, sittingwith the Court.