No. 85-509 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1.987 

STP.TE OF MONTANA, 

Plaintiff and Responden-t, 

-vsROGER LUKE BELL, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Robert Holmstrom, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Allen Beck argued, Billings, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Barbara Claassen argued, Asst. Atty. General, Helena 

Harold Hanser, County Attorney, Billings, Montana 

Submitted: September 12, 1986 

Decided: January 9, 1987 

I jiij y . 287 Filed: \, 
Mr. Chief Justice J. A. Turnage delivered the Opinion of the 

Court. 

Roger Luke Bell, defendant and appellant, was charged 

by information filed on June 28, 1984, in the District Court 

of the Thirteenth Judicial District, Yellowstone County, with 

two counts of deliberate homicide. The information alleged 

that Bel.1 purposely or knowingly killed Linfred Cattnach and 

James McBri.de. Upon a plea of not guilty, trial began on 

February 1.1, 1985. After extended deliberations, the jury 

returned. a verdict of guilty on both counts. Bell was sentenced to two 100-year sentences for the homicides. The 

court also designated him as a dangerous offender and gave 

him an additional ten years on each count. Bell appeals from 

the verdict and sentence. We affirm. 

On June 22, 1984, two men, Linfred Cattnach and James 

McErid-e, were found dead. in an alley behind a building located in Billings, Montana. The Billings Police Department was 

contacted the morning of June 22 by an individual who reported that two men were dead in an alley. Upon investigation, 

police officers discovered the bodies behind stacks of large 

tires located near the wall of a building. An autopsy revealed that both men had sustained multiple stab wounds to 

their chests and each man's throat had been se~rexe1.y cut. 

During the evening of June 21, 1984, Bell and John 

Marshall began walking the streets of Billings drinking wine. 

Eventually they walked into an alley which had large tires 

stacked up near the wall of a building. Cattnach and McBride 

were sleeping in that alley behind the tires. Sam Lionshows 

was also sleeping in the same area. 1,ionshows testified that 

he woke up when Bell jerked his blanket off of him. Bell was 
holding a knife, and he told Lionshows to leave. Llionshows 

got up, rolled up his bedroll, and then left. 

After Lionshows had left, Bell and Marshall walked 

about a block away from the tires and sat on a cement slab 

behind a building. They finished drinking the bottle of wine 

they had. Marshall testified that Bell then said that he was 

going to make a "statement" about white guys coming across 

the tracks. He took off his shoes and started walking across 

the tracks in the direction of the alley where the tires 

were. Marshall followed him to that alley. He testified 

that Bell. went behind the tires where McBride and Cattnach 

were sleeping, and he saw Bell bent over. He then saw Bell 

moving his arm up and down and heard a gurgling noise. 

Because he had seen Bell with a knife earlier thzt night, he 

believed that Re11 was stabbing the two men. Marshall felt 

sick, so he went back to the cement slab where he and Re11 

had been drinking earlier. 

A short time later, Bell returned to the cement slab 

where Marshall was sitting. Bell stated that he had enough 

money for a jug. Marshall testified that Bell took off his 

socks and put his shoes back on. He noticed that Bell's 

white socks were stained. As they began to leave, Bell 

washed blood off of his hands with water from a plastic 

bottle he had. 

Richard Anderson and Sam Lionshows found Cattnach and 

McRride the morning of June 22. Anderson testified that they 

went to the men to get some money for a bottle of wine. 

After finding the two men, they notified the police of the 

apparent murders. 

Sometime later that same day, Marshall spoke with 

Detective Waters of the Billings Police Department in the 
parking lot of the Arcade Bar. Waters was questioning people 

about the killings. Marshall took Waters and other officers 

to the alley where the men were killed and to the slab where 

he and Bell had sat the night before. At the slab, Marshall 

pointed out the white socks that Bell had been wearing. 

Bell was arrested on June 23, 1984. He gave a statement to the police the following day wherein he denied any 

knowledge of the killings. The trial began on February 11, 

1985. After extensive deliberations, the jury found Bell 

guilty of the murders of Cattnach and McBride. Other facts 

will be brought out where necessary to the discussion. 

Appellant has raised six issues on appeal: 

1. Was appellant denied due process of law under the 

Fourteenth Amendment and the right of confrontation under 

Article 11, Sec. 24, 1972 Mont. Const., by the court's refusal to all-ow him to introduce character evidence and evidence 

of prior acts of Sam Lionshows and John Marshall-? 

2. Did the District Court err by allowing the testimony of Detective Hinkel regarding statements made to him by 

Leland Lockwood? 

3. Was appellant prejudiced by an improper view of the 

scene of the crime by certain members of the jury? 

4. is the verdict supported by substantial credible 

evidence? 

5. Did the District Court commit error by giving the 

jury an additional instruction during deliberations? 

6. Was appellant properly designated a dangerous 

offender under 5 46-18-404, MCA? 
During the cross-examinations of Marshall and 

Lionshows, appellant attempted to question them regarding 

their propensity for violence, use of drugs and past acts of 

violent behavior for the expressed purpose of demonstrating 

that it was those two who committed the murders rather than 

a.ppellant. However, the court sustained an objection by th.e 

State to this line of questioning. Appellant contends that 

this ruling denied him his constitutional right to confront 

the witnesses against him and his right to due process of 

This Court has not been confronted previously with the 

argument being raised by appellant; i.e., whether a defendant 

may properly assert as a defense the allegation that another 

person committed the crime for which he is accused. Our 

statutes do not address this issue either. Others states 

facing this question, however, have allowed a defendant to 

present evidence showing that a person other than the defend-ant committed the crime. See, e.g., State v. ~amlette (N.C. 

1981), 276 S.E.2d 338; State v. Smith (Mo. 19641, 377 S.~.2d 

241. Whether a defendant should be allowed to assert such a 

defense, and if so, what would be the parameters of acceptable proof under that defense, is an issue which is not ripe 

for decision at this time. 

Rule 103, M.R.Evid., provides: 

(a) Effect of erroneous ruling. Error 

may not be predicated upon a ruling 

which admits or excludes evidence unless 

a substantial right of the party is 

affected, and 

(2) Offer of proof. In case the ruling 

is one excluding evidence, the substance 

of the evidence was made known to the 

court by offer or was apparent from the 
context within which questions were 

asked. 

At no time during the trial did appellant. make an offer 

of proof of facts pointing directly to the gui1.t of Marshall 

and Lionshows. Even on appeal, he has not pointed to any 

specific facts indicating that they committed the crimes. 

Rather, he has merely attempted to show that they have violent dispositions an.d use drugs, but even these assertions 

are unsupported. Without any other facts connecting Marshall 

an.d Lionshows to the murders of Cattnach and McBride, these 

contentions are irrelevant. Therefore, because no proper 

offer of proof was made, appellant cannot claim as error the 

court's ruling sustaining the State's objection. 

11 

Appellant contends that the court erred in allowing 

Officer Hinkel to testify to statements made to him by Leland 

Lockwood. He argues that because Lockwood had no memory of 

his conversation with Hinkel, he was denied his right of 

effective cross-examination. He contends further that 

Lockwood's prior inconsistent statement should not have been 

admitted as substantive evidence because there was no assurance of trustworthiness of the statement. 

Ini.tially, appellant's first assertion is flawed because it is unsupported by the facts. The State called 

IJockwood in its case-in-chief. On direct examination, it 

asked Lockwood whether he knew Bell and whether he had talked 

to police officers at the Billings Police Department concerning statements made to him by Bell. In response to these 

questions, Lockwood unequivocally declared that he did not, 

know Bell, had not talked to him at anytime, and did not talk 
to any police officer about Bell. Thus, contrary to appellant's contention, Lockwood did not profess an inability to 

remember whether or not he talked to police officers. Appellant's contention on this point is wholly without merit. 

We now proceed to determine whether Lockwood's prior 

inconsistent statement can be used as substantive evidence. 

After Lockwood had denied talking to Officer Hinkel, the 

State called Offi'cer Hinkel to testify to the substance of 

Lockwood's prior statement to him. He testified that 

Lockwood spoke with him on June 23 about the homicides. 

Lockwood told. Hinkel that he talked with Bell on the morning 

of the 22nd, and Bell told him that Bell had hurt someone 

real ba.d. Lockwood asked Bell where he had hurt someone, and 

Bell told him that it was down by the tires. 

First, we must determine whether Hinkel's testimony is 

inadmissible hearsay under our rules of evidence. Hinkel 

testified to a statement made to him by Lockwood which, in 

turn, was made to Lockwood by appellant. The substance of 

appellant's sta-tement to Lockwood as related by Hinkel is 

clearly admissible under Rule 801 (d) (2) , E4.R.Evid. Appellant's statement to Lockwood to the effect that he hurt 

someone real bad down by the tires is an admission by a 

party-opponent and is not hearsa.~. Likewise, Lockwood's 

statement to Hinkel is admissible under Rule 801 (d) (I), 

M.R.Evid., as a prior statement by a witness. That section 

provides : 

(d) Statements which are not hearsay. A 

statement is not hearsay if: 

. . . The declarant testifies at the 

trial. or hearing and is subject to 

cross-examination concerning the statement, and the statement is (A) inconsistent with his testimony . . . 
Lockwood was the declarant. He testified at the trial 

and was cross-examined concerning the prior statement to 

Hinkel. The statement he gave to Hinkel was inconsistent 

with his testimony at trial. Therefore, Lockwood's statement 

to Hinkel was not hearsay, and the latter was properly a.1.- 

lowed to testify a.s to its substance at trial. 

This same result was reached in a case very simil-ar to 

the one at bar. In State v. Dolan (Mont. 1980), 620 P.2d 

355, 37 St.Rep. 1.860, the defendant was accused. of robbing a 

truck stop at gun point. A few days after the holdup, defendant allegedly told one Steele that the Canadian money he had 

was part of the money he got from the robbery. At trial, 

Steele could not remember whether defendant told him, "I got 

the money from the Crossroads," or "I robbed the Crossroads." 

Later, Detective Warrington testified that Steele told him 

that defendant said, "I held up the Crossroa.ds." This Court 

This evidence is not hearsay . . . The 

statement made by defendant to Steele is 

an admission by a party opponent to the 

action. The statement made by Steele to 

Warrington is a prior statement of the 

witness Steele. 

Dolan, 620 P.2d at 358-359. See also State v. Fitzpatrick 

(1980), 186 Mont. 187, 606 P.26 1343. 

A further issue that arises in allowing Lockwood's 

prior inconsistent statement to be used as substantive evidence is whether such use violates the confrontation clauses 

of the Montana and United States Constitutions. 

The Sixth Amendment provides that "[iln all criminal 

prosecutions, the accused shall enjoy the right . . . to be 

confronted with the witnesses against him . . ." The Montana 

Constitution, in substantially similar language, grants the 
same right. The primary purpose behind both of these provisions was to prevent an accused from being convicted solely 

on the basis of ex parte affidavits or depositions. See 

Mattox v. United States (1895), 156 U.S. 237, 15 S.Ct. 337, 

39 L.Ed. 409. It was originally believed and it still is 

that the best method for obtaining the truth is to have the 

witness testify under oath at trial and be subjected to 

cross-examination under the scrutiny of the jury. It is only 

in this manner that a jury can assess the credibility of a 

declarant and measure the believability of his statements. 

Consequently, "it is this literal right to 'confront' the 

witness at the time of trial that forms the core of the 

values furthered by the Confrontation Clause." California v. 

Green (1970), 399 U.S. 149, 157, 90 S.Ct. 1930, 1934-1935, 26 

L.Ed.2d 489, 496. 

Where a declarant testifies at trial and either affirms 

the prior inconsistent statement as his and now gives a new 

story or denies that he ever made such a statement, the jury 

has before it two conflicting statements from the same declarant. The defendant has the opportunity to cross-examine 

the declarant and have him explain why he is giving a statement inconsistent with his prior one. Under such intense 

cross-examination, literally confrontation, of the witness, 

the jury has a sufficient basis to test the truth of the 

prior and present statements of the declarant. It may choose 

to believe the prior statement or the statement given at 

trial, or it may give little weight to either statement. 

Thus, the defendant's right to confront the witness against 

him has not been abridged. 

The United States Supreme Court adopted this view 

almost twenty years ago in California v. Green, supra. 
There, one Melvin Porter was arrested for selling marijuana, 

and he named Green as his supplier. However, at trial, 

Porter claimed that he was uncertain whether or not Green had 

been his supplier. The State then called Officer Wade who 

testified that Porter had named Green as his supplier in an 

earlier statement to Wade. This testimony was admitted as 

substantive evidence. The Court held: 

For where the declarant is not absent, 

but is present to testify and to submit 

to cross-examination, our cases, if 

anything, support the conclusion that 

the admission of his out-of-court statements does not create a confrontation 

problem. 

Green, 399 U.S. at 162. See also, Nelson v. 0'~eil (19711, 

402 U.S. 622, 91 S.Ct. 1723, 29 L.Ed.2d 222. We hold that 

Lockwood's prior inconsistent statement was properly admitted 

as substantive evidence. 

Finally, we address briefly appellant's contention that 

prior inconsistent statements can be admitted only when they 

have an assurance of trustworthiness even where the declarant 

testifies at trial. Appellant does not cite any authority to 

support this novel argument, and we have not found any. 

Concerns with the reliability of a statement normally arise 

only when the declarant is unavailable to testify at trial. 

There is no need for a statement to possess a certain "indicia of reliability" in order to be admitted into evidence 

when the declarant testifies at trial and is subject to full 

and effective cross-examination. As the Court explained in 

Ohio v. Roberts (1980), 448 U.S. 56, 66, 100 S.Ct. 2531, 

In sum, when a hearsay declarant is - not 

present for cross-examination at trial, 

the Confrontation Clause normally requires a showing that he is unavailable. 

Even then, his statement is admissible 
on1.y if it bears adequate "indicia of 

reliability. " [Emphasis added. 1 

Therefore, because Lockwood testified at trial, it was 

unnecessary for the court to weigh his prior statement for a 

certain measure of reliability. 

111 

After the jury had begun deliberations, the bailiff 

informed the court that some of the jurors may have visited 

the scene of the crime. However, within an hour of being 

informed, and before the court could take any action on the 

matter, the jury reached its verdict. Subsequently, the 

court questioned each juror under oath to discover what had 

occurred. The court discovered that two of the jurors went 

to the scene of the crime during the trial and discussed 

their observations with the jury during deliberations. 

Appellant contends that this unauthorized view constitutes 

reversible error and prejudiced him because the amount of 

light available in the alley and the angle of view of Marshall were essential facts in the case. 

There is no question that the unauthorized view by the 

two jurors constituted misconduct. Section 46-16-502, MCA, 

provides that the jury may view the scene only upon order of 

the court. Moreover, it is universally held throughout the 

country that unauthorized views by one or more jurors constitutes misconduct. However, unlike the rule in most states 

which places the burden on the defendant to show that he was 

materially prejudiced by an unauthorized view, the rule in 

Montana has been to presume that the defendant was prejudiced. See 58 A.L.R.2d 11.47, 1148. The burden is then placed 

on the State to rebut that presumption. This standard was 
announced in State v. Eagan (1978), 178 Mont. 67, 79, 582 

It is the rule in thj-s state that if: 

jury misconduct is shown tending to 

injure the defendant, prejudice to the 

defendant is presumed; however, the 

presumption is not absolute and may be 

rebutted by the use of testimony of the 

jurors to show facts which prove that 

prejudice or injury did not or could not 

occur. 

Upon examination of the jurors, it was determined that 

two jurors visited the scene. One of them went during a 

lunch recess because he was curious. He stayed there about 

one minute. Because he went during the day, he did not have 

an opportunity to observe the lighting conditions. Furthermore, the investigating officers had moved a1.l of the tires 

in the alley after taking pictures, so no comparj.sons could 

he made between testimony and actual observation. The only 

arguable issues relating to the scene were the lighting 

conditions vis-a-vis Marshall's ability to see appellant and 

the height of the staclcs of tires. Since this juror could 

not observe either of these conditions, no prejudice to 

appellant could have occurred. 

However, the other juror visited the scene during the 

evening and stayed about one and one-half minutes. This 

juror did. observe the lighting conditions in the area, a]-- 

though he did not conduct any experiments or make any measurements. Officer O'Rrien of the Billings Police Department 

testified at the hearing on the matter that he visited the 

scene during the trial a.nd during jury deliberations. He 

also visited the scene the night after the crimes had occurred. At that time, five lights in the area of the alley 

were working, whereas during the trial, some of those lights 

were not working. Thus, the lighting conditions during the 
trial were worse than they were on the night the crimes 

occurred.. Therefore, on the question of Marshall's perception, the juror's observations would have worked to appellant's benefit because it was harder to see in the alley 

during the trial than it was on the night of the crimes. 

The District Court found that appellant was not prejudiced by the improper view taken by the two jurors. We find 

no error in this ruling. The State rebutted the presumption 

of prejudice to appellant. 

Before we proceed to the next issue, however, a comment 

about the jury misconduct which occurred here is in order. 

It cannot be emphasized enough that jurors should not visit 

the scene of the crime except by order of the court. It is 

the duty of the trial- judge to make sure such misconduct does 

not occur. Judges should be ever vigilant in impressing upon 

jurors their responsibility not to have unauthorized views of 

the scene. In many cases, an improper view would be highly 

prejudicial to a defendant and would merit a new trial. 

Consequently, it is a foremost d.uty of the trial court to 

impress upon jurors, backed up by the court's contempt power, 

the rule that unauthorized views of the crime scene shall not 

be allowed. 

Appellant next raises the argument that the verdict is 

not supported by substantial credible evidence. The applicable standard on this issue was set forth in State v. Cornell 

(Mont. 1986), 715 P.2d 446, 447, 43 St.Rep. 505, 506: 

Substantial evidence is such relevant 

evidence as a reasonable mind might 

accept as adequate to support a 

conclusion. 
The jury heard testimony from John Marshall who testified to seeing appellant bent over the victims making repeated stabbing motions. Marshall also testified that when 

appellant returned from the alley, his socks were stained and 

he washed blood off his hands. 

The jury also heard testimony from FBI agent Joseph 

Errera regarding tests he performed on Bell's clothing. He 

testified that on the items of clothing taken from Bell there 

were numerous spots of blood and it was possible that McBride 

or Cattnach were the source. He also performed tests on the 

socks which were found in the area where Marshall and appellant had been drinking wine. These were the socks that 

appellant took off after coming back from the alley. Rlood 

on one of the socks could have come from Cattnach but could 

not have come from appellant nor McBride. Blood on the other 

sock could have come from McBride or appellant, hut could not 

have come from Cattnach. 

Appellant argues that Marshall is not a credible witness. Th.e jury had an opportunity to observe Marshall on 

examination and cross-examination and apparently believed his 

version of what happened. Whether a witness is credible or 

not is a matter sol-ely within the province of the jury. It 

is not the d-uty of this Court to make a de novo review of the 

evidence; rather, we must determine only whether substantial 

evidence supports the verdict. In this case, reasona.ble 

minds could have concluded that appellant committed the 

crimes with which he was charged. 

V 

After the jury had been deliberating for over a day, 

the foreman sent a note to the judge stating that the jury 
was unable to reach a verdict. The court asked the foreman 

if an additional instruction would be of any help in reaching 

a verdict, and the foreman repl-ied that it mi9h.t; whereupon, 

the court gave the jury the following instruction: 

The judicia.1 process a.ssigns tasks to 

the various units. It is the task of 

the witnesses to testify truthfully as 

they recall the facts. It is the task 

of the lawyers to prepare the case for 

final submission to the tryer [sic] of 

facts, the jury. It is the task of the 

judge to preside, instruct you as to the 

law and to rule on the admissibility of 

the evidence. It is the task of the 

jury to decide the case. The ultimate 

responsibil-ity of the jury is to render 

a verdict in this cause. You are not 

partisan nor are you advocates in this 

matter, but you are the judges; you axe 

the only judges of the facts; it is you 

and you alone that can render a verdict 

in this cause. There is no reason to 

believe that any other 12 men and women 

would possess anymore ability, intelligence and courage to do the ultimate 

task assigned to a jury under the Arnerican System of Justice. 

The final test of the quality of your 

service will be in the verdict which you 

return to the Court. It is only by 

rendering a verdict in this cause that 

you can make a definite contribution to 

efficient judicial administration as you 

arrive at just verdict. -- I have never 

asked, - as - a matter -- of fact, I have 

instructed vou. that vou shouid not 

surrender your honest convictions - in 

this matter for --- the mere purpose of 

returnincr a, verdict. --- or solely because 

-- of the opin?lon of other jurors, but this 

does not mean that you should avoid a 

task assigned to you of rendering a 

verdict of guilty or not guilty in this 

cause. 

After approximately eleven hours of further deliberations, 

the jury reached. a verdict. 

Appellant contends that the court erred in giving this 

instruction because it was, in effect, a direction to the 

jury to enter a finding of guilty or not guilty. This argument is completely without merit. As the emphasized portion 
of the instruction shows, the court told the jurors not to 

surrender their honest convictions in order to reach a verdict. Furthermore, this instruction is a.I.most a verbatim 

recital of the instruction given in State v. Cline (1976), 

170 Mont. 520, 555 P.2d 724. The Court in that case approved 

that instruction. Appellant has not provided any reason why 

we should not continue to approve that instruction. No error 

was committed on this point. 

Appellant was designated a dangerous offender pursuant 

to 5 46-18-404, MCA. He contends that this designation is 

error because the court failed to articulate the reasons for 

such finding in its judgment. 

Section 46-18-404(3), MCA, provides: 

If the court determines that an offender 

is not eligible to he designated as a 

nondangerous offender, it shall make 

that determination a part of the sentence imposed and shall state the determination in the judgment. . . 

The court stated in its judgment and commitment that sentence 

is imposed for the following reasons: 

1. The Court carefully read and considered the presentence report and is aware 

that defendant's prior history shows a 

pattern of illegal activity including 

numerous misdemeanor offenses and felony 

convictions for Burglary and Criminal 

Mischief. 

3. The Court agrees with the statement 

made by the County Attorney's office 

that this was a very vicious crime. 

4. The evidence which the jury considered and which this Court heard indicates that the victims, who were stabbed 

many times and their throats slashed at 

a time when they were asleep, were 

innocent of any provocation. 
6. Defendant's history and the facts of 

the crimes for which he is today sentenced establish that he does represent 

a substantial danger to society. 

Not only did the court adequately articulate its reasons for 

finding appellant dangerous in its judgment, but also the 

reasons stated are more than sufficient to designate appellant as a dangerous offender. Appellant's contention on this 

point is frivolous. 

For the reasons stated above, the judgment is affirmed. 

We concur: