No. 85-509 INTHE 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 theThirteenth JudicialDistrict, 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

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### 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 ThirteenthJudicialDistrict,YellowstoneCounty,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 theverdict and sentence. We affirm. On June 22, 1984, two men, Linfred Cattnach and James McErid-e,were found dead.in an alley behind abuilding located in Billings,Montana. The Billings Police Departmentwas contacted themorning of June 22by an individualwho 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.ycut. During the evening of June 21, 1984, Bell and John Marshallbegan walking the streetsofBillingsdrinkingwine. Eventually they walked into an alley which had large tires stacked up near the wall of abuilding. Cattnach and McBride

were sleeping in that alley behind the tires. Sam Lionshows

was also sleeping in the same area. 1,ionshowstestified that hewoke up when Bell jerked hisblanket off ofhim. Bellwasholding a knife, and he told Lionshows to leave. Llionshows gotup,rolled up hisbedroll,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 abuilding. They finisheddrinking thebottle ofwine theyhad. Marshall testified that Bell then said thathe was going to make a "statement" about white guys coming across the tracks. He took offhis shoesand 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 twomen. 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 ofJune 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 apparentmurders. Sometime later that same day, Marshall spoke with Detective Waters of the Billings Police Department in theparking lot of theArcade Bar. Waterswas questioning people about the killings. Marshall took Waters and other officers to the alley where themen were killed and to the slab where he and Bell had sat the night before. At the slab,Marshall pointed out thewhite 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 willbe brought outwhere necessary to the discussion. Appellanthas 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, 1972Mont. Const., by the court's refusal to all-owhim to introduce character evidence and evidence ofprior actsof Sam Lionshows and JohnMarshall-? 2. Did the District Court errby allowing the testimony of Detective Hinkel regarding statements made to him by Leland Lockwood? 3. Was appellantprejudiced by an improperview of the

scene of the crimeby 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 forviolence,use ofdrugs 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 objectionby 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 confrontedpreviously with the argumentbeing raisedby 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 aperson other than the defend-antcommitted the crime. See,e.g., Statev. ~amlette(N.C. 1981), 276 S.E.2d 338; Statev. 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 issuewhich is not ripe fordecision 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 

### thecontext within which questions were asked. At no time during the trialdid appellant. make an offer of proof of facts pointing directly to the gui1.tofMarshall 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.duse drugs, but even these assertions

areunsupported. Without any other facts connecting Marshall an.dLionshows 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 himby 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 therewas no assurance of trustworthinessof 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 Lockwoodwhetherhe knewBell and whetherhe had talked topolice officersat theBillings Police Department concerning statements made to him by Bell. In response to these questions, Lockwood unequivocally declared that he did not, knowBell,

### had not talked tohim at anytime,and did not talkto any police officer about Bell. Thus, contrary to appellant's contention,Lockwood did not profess an inability to remember whether ornothe talked topolice 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 realba.d. Lockwood asked Bellwherehe had hurt someone,and Bell told him that itwas downby 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-tementto 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 statementby a witness. That section provides: (d)Statements which are not hearsay. A statementisnot 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.sto its substanceat trial. This same resultwas reached in a case very simil-arto the one at bar. In State v. Dolan (Mont. 1980), 620 P.2d 355, 37 St.Rep. 1.860,the defendantwas accused.of robbing a truck stop at gun point. A few days after theholdup, defendant allegedly told one Steele that the Canadianmoney he had

was part of the money he got from the robbery. At trial, Steele could not remember whether defendant told him, "Igot the money from the Crossroads,"or "Irobbed the Crossroads." Later, Detective Warrington testified that Steele told him that defendant said, "Iheld 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),186Mont. 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 StatesConstitutions. The Sixth Amendment provides that "[iln all criminal prosecutions, the accused shall enjoy the right

# . .. to be confronted with thewitnesses againsthim

# ..

# ." TheMontana Constitution, in substantially similar language, grants thesame 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 scrutinyof the jury. It isonly 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 furtheredby the ConfrontationClause." Californiav. Green (1970), 399 U.S. 149, 157,90S.Ct. 1930, 1934-1935, 26 L.Ed.2d 489, 496. Where a declarant testifiesat 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 statementsof 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 himhasnotbeen 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 sellingmarijuana, and he named Green as his supplier. However, at trial, Porter claimed thathe was uncertain whether ornotGreenhad 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 substantiveevidence. The Courtheld: 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 admissionofhis 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'sprior inconsistent statementwasproperly admitted

as substantiveevidence. Finally,we address briefly appellant's contention that prior inconsistent statements can be admitted only when they have an assuranceof trustworthiness evenwhere the declarant testifiesat trial. Appellant does not citeany 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 admissibleon1.y if it bears adequate "indicia of reliability.

### " [Emphasisadded.1 Therefore,because Lockwood testified at trial, itwas 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 jurorsmay 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 jurorswent 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 Marshallwere essential facts in the case. There is no question that the unauthorizedview 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 ormore 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 58A.L.R.2d 11.47,1148. Theburden is thenplaced

on the State to rebut that presumption. This standard wasannounced 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 prejudiceor injurydid not or could not occur. Upon examination of the jurors, itwas determined that two jurors visited the scene. One of them went during a lunch recess because he was curious. He stayed there about

oneminute. 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.sonscould he made between testimony and actual observation. The only arguable issues relating to the scene were the lighting conditionsvis-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.ndduring 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 thetrial 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 appellantwas not prejudiced by the improperview taken by the two jurors. We find no error in this ruling. The State rebutted the presumption ofprejudice to appellant. Beforeweproceed 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 misconductdoes not occur. Judges should be evervigilant in impressingupon jurors their responsibility not to have unauthorized views of the scene. Inmany cases, an improper view would be highly prejudicial to a defendant and would merit a new trial. Consequently, it is a foremost d.utyof the trial court to impress upon jurors,backed up by the court's contemptpower, the rule that unauthorized views of the crime scene shallnot be allowed.

Appellant next raises the argument that the verdict is not supportedby substantial credibleevidence. The applicable standard on this issuewas 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 testifiedtoseeing appellantbent over thevictims making repeated stabbing motions. Marshall also testified that when appellant returned from the alley, his sockswere stained and he washed blood off hishands. The jury also heard testimony from FBI agent Joseph Errera regarding tests he performed on Bell's clothing. He testified thaton the items of clothing taken from Bell there

were numerous spots of blood and it was possible thatMcBride

or Cattnach were the source. He alsoperformed tests on the socks which were found inthe 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 appellantnor McBride. Blood on the other sock could have come from McBride orappellant, 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 apparentlybelievedhis version of what happened. Whether a witness is credible or not is a matter sol-elywithin the province of thejury. It isnot the d-utyof thisCourt tomake 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 withwhich 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 jurywas unable to reach a verdict. The court asked the foreman if an additional instructionwould be of any help in reaching

a verdict, and the foreman repl-iedthat itmi9h.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, instructyou as to the law and to rule on the admissibilityof the evidence. It is the task of the jury to decide the case. The ultimate responsibil-ityof 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 12men and women would possess anymore ability, intelligence and courage to do the ultimate task assigned to a juryunder theArnerican SystemofJustice. The final test of the quality of your servicewill be in theverdict which you return to the Court. It is onlyby rendering a verdict in this cause that you can make a definite contribution to efficient judicial administrationasyou arrive atjust 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?lonof 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.averdict. 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 portionof 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.mosta verbatim recital of the instruction given in State v. Cline (1976), 170Mont. 520, 555 P.2d 724. The Court in that case approved that instruction. Appellant has not provided any reasonwhy

we should not continue to approve that instruction. No error

was committed on thispoint.

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 thatan 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 thedetermination in the judgment.

# . . The court stated in its judgmentand commitment that sentence is imposed for the following reasons: 1. The Court carefully read and considered thepresentence reportand 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 agreeswith 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 thevictims, whowere 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 factsof the crimes for which he is today sentenced establish that he does represent a substantialdanger 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 adangerous offender. Appellant's contentionon this point is frivolous. For the reasons stated above,the judgment is affirmed.

We concur: