No. 11988 

### IN THE SUPF.EME COURT OF THE STATE OF MONTANA 1972

THE STATE OF MONTANA,Plaintiff and Respondent,

ORVILLE ARCHIE WARWICK, Defendant and Appellant.

Appeal from: District Court of the Eighteenth Judicial District, Honorable

### W. W. Lessley, Judge presiding. Cou~lsel of Record: For Appellant: Sandall, Moses and Cavan, Billings, Montana. Charles F. Moses argued, Billings, Montana. For Respondent: Hon. Robert L. Woodahl, Attorney General, Helena,

Montana. David V. Gliko, Assistant Attorney General, argued,

Helena, Montana. Thomas A. Olson, County Attorney, Bozeman, Montana. Thomas D. Gai, Deputy CountyAttorney, argued, Bozeman,

Montana.

Submitted: January 11, 1972

Filed:

## FEB24 

### '{~i +J Decided

## FEB2 

## 1972

### Mr. Justice John Conway Harrison delivered the Opinion of the Court.

This appeal 

### is from a conviction of murder in the first degree. Defendant was tried by a jury in the districtcourt of the eighteenthjudicial district, Gallatin County, found guilty and sentenced to liEe imprisonment. Atabout the hour of 8:30 a.m. on December 23, 1964, Mr. Earl Plum, an employee of Glacier Mountain Cheese Co., Gallatin Gateway, while traveling along Cottonwood Road, south of Bozeman, came upon the scantily clad body of a young woman. Plum immediately called the sheriff of Gallatin County, Con McClurg,and then returned to the situs of the body and blocked off the road to see that nothing disturbed the scene until the law officers arrived. Plum testified the body lay on a%shall bridge, clad only in a bra and panties and that a dress, slip, coat, and boots were ina pile

a short distance from the body. Sheriff McClurg, upon being notified by Plum, gathered together a number of sheriff's officers, Bozeman police officers, and the then county attorney, Page Wellcome, and proceeded tothe

scene arrivingatabout 9:40 a.m. Pictures were taken; measurements were made of the area;and plaster casts were made of tire marks. Allphysical evidence was analyzed by the local officials and then sent totheFBI laboratory. This physical evidence was introduced attrial, some of which willbe referred to later in

our discussion. A broken watch which had stopped at

### 4:20and an engagement ringwere on the body of 

### the young woman. The body was removed toa funeralhome inBozeman where Dr. Mark Young, the coroner, and 

### Dr. Volney Steele, a pathologist, performed an autopsy atabout 11:30 a.m., on December 23. Theirreport shows the following: face battered and bruised, mandible fractured, fractured dislocation of left ankle, many abrasions, deformed pelvis, fractured clavicle and sternum. In their opinion the cause of deathwas due to "severe external trauma". No identification of the body was made or announced to the public until between 6:00 and 6:30 p.m. the evening of December 23, when a Mrs. Mary Kuhar of Billings, Montana, arrived and identified the body as that of her daughter, Bobbi Clark. Bobbi Clark, 

### a graduate from Montana StateUniversity, was a teacher atKalispell, Montana. 

### On the evening of December 22, 1964, she drove from Kalispell to Bozeman. She was accompanied by her roommate as far asThree Forks, her roommate's home. The roommate testified that Bobbi leftThree Forks atabout 1:30 a.m., December 23, and her car was noted arriving inBozeman atabout the hour of 2:00 a.m. by a localpolice officer. Jack Wandler, Bobbi 

### lark's fiancee, testified that he had expected her to stay athis apartment; that on the evening of December 22 he had cleaned the apartment and while waiting for her toarrive he had fallenasleep and had not awakened until about 6:QO a.m. Notfinding Bobbi there, he called her roommate in Three Forks; made another call toa local friend of ~obbi's,

a Mrs. Fulker; and then went outsidewhere he found ~obbi's locked

car parked in an alleyway parking space back of his apartment. He then went several blocks toa fraternity house to find out if his apartment mate, Jerry Sargent, had seen or heard from Bobbi, and, learning that he had not, he returned tohis apartment and called theBozeman police at6:45 a.m. The chief of police, Ron Cutting, answered the call; checked the parked auto belonging toBobbi Clark; and obtaineda picture of her from Wandler. This picturewas turned over to Sheriff McClurg. Chief Cutting and another officer returned to the car where they observed about a dozen footprints of a woman's shoe on the driver's sideof the carwhich disappeared when they got tohard snow. Tiremarks of another car were observed progressing up to~obbi's car, but no casts could be made of those marks. Plaster casts of tire tracks found near the body were sent to theFBI. On December 31, 1964, the FBI filed a report which stated that the tread design of the casts "conform most closely tothe-designof a Cordovan low-profile jet tire1\ At the time the comparison of tread designs was made, the FBI file did not contain a Crest Imperial tread design. Attrialthe FBI agent testified that "we just can't get every design that 

### is made and keep up todate

# ***." The FBI sent a copy of the Cordovan tread design to Sheriff McClurg to assisthim inhis investigation. Prior toreceiving the FBI report, the Bozeman police

on December 

### 23, initiated a survey of "every tiredealer in town" inan attempt to identify the type and make of the tirewhich made the tracks that the plaster casts were made from. Finally, in the early part of January 1965, a tirewas located ata 

### amble's store that "appeared tomatch thecasts." That tirewas a Crest Imperial. "Crest Imperial" 

### is a tradename used on tires that are marketed only by 

### amble's. On the basis of this information SheriffMcClurg early in January advertised in the loca1news media that his officewas seeking information "with respect to the type or kind of tire" which he believed was involved in the death of Bobbi Clark.

### On January 15, 1965, a short time after the sheriff's public inquiry about the tires, the defendant reported tothe Bozeman police that two tires;had been stolen from his residence. Also on January 15, 1965, one Roy Foster, while on his way home fromwork, found a Crest Imperial narrow white sidewall tireon theBridger Canyon r~ad, sometime around

### 4:40 p.m. The tirewas found alongside the guardrail next tothe road. Foster testified 

### 'yt was extremely clean" and "looked as though itmight have been washed." Foster stopped and picked up the tirebecause he had heard "ads on the radio" that the policewere looking for

a set of tires and "1noticed that it [the tire]hadn't been there that morning when I went towork". Foster took the tirehome and called the sheriff's office. A deputy sheriff came to~oster's home and took the tireintocustody. The tirehad been found approximately four-tenths of a mile up the Bridger Canyon road from a fishhatchery and rock slide. 

### On January 18, 1965, one Alfred Kinney, while plowing snow

on theBridger Canyon road,"noticed a tirelying up on the side of thehill there atthe rock slide". Kinney stopped his truck and secured the tirebecause he alsohad heard "advertising on the radioand the papers" that the sheriff was looking for tires. The tirefound by Kinney was a ''Crest'' and "it was ingood shape." Kinney turned the tireover to the sheriff's office. Subsequent investigation established that defendant's car had had two Crest Imperial tires on it. The recovered tires were sent tothe FBI laboratory tobe compared with the plajter casts made atthe scenewhere Bobbi Clark's body was found. An FBI agent testified atthe trialthat the plaster casts made where the body was found and the tires located intheBridgerCanyon area were of the same size, same tread design, and had the same degree of wear. "Further, itwas either these two tires that made these two impressions or two other tireshaving the

same characteristics as totread size, tread sizeand tread design and worn in this manner, worn tothis degree." These tires are



### a part of the circumstantial evidence that brought focus upon the defendant as a suspect. On February 2, 1965, atthe request of BurleighAllen,



### a former FBI agent and a private investigator hired by Bobbi 

### lark's mother toassist local law officials in the investigation, defendant voluntarily, afterbeing advised of his rights, consented toallow the local law enforcement officials and Mr. Allen to search his 1959 Chevrolet car and his apartment. This authorization went toallphysical items of evidence, fingerprint analysis, and chemical identification of any substances they felt should be analyzed. With this consent, the law officers and Mr. Allen completely checked the car, taking it toa service stationwhere itwas put up on a hoist. Concerning that inspection 

### Mr. Allen testified: "We noticed, I noticed, that it was extremely clean. I mean itwasn't as though-it had been through mud or anything like that

# ." Concerning the interior of the car, he testified: "The interior of the car,

# *** was alsoexceptionally clean.It 

### On that same day, February 2, 1965, Mr. Allen, in the presence of several loca

### 1law enforcement officers, took a thirtyeight page statement from the defendant concerning many facets of the investigation. This statement was taped and transcribed. In the intervalbetween February 2, 1965,and the time of trial,

some fiveyears, the tapes disappeared.Atthe trial,a state's witness, one Dick Kountz, testified -- that sometime in the first part of February 1965, he was out poaching deer with defendant and while in the process of dressing out a deer the defendant told him 

## "*

# ** he was the one who killed Bobbi Clark". This alleged statement of defendant toKountz did not become known tothe investigating officers untilnearly five years after the homicide when, for some reason not explained at the trial, Kountz gave a statement tothe county attorney on January 3, 1970. One otherwitness appeared atthe trialwho had not appeared and given testimony during the 1965 investigation. That witness was 

### Mrs. JudithVeltkamp, who had been employed in 1964

as a grocery checker atthe Buttrey Storewhere defendant worked

asa box boy and also stacked shelves. This witness, the wife of a localpolice sergeant, gave the county attorney a statement inJanuary 1970, which statement focused additionalattention on defendant. She testified atthe trialthat between thehours of 12:OO and 12:30 p.m. on December 23, 1964, shehad the following conversation with defendant atthe Buttrey Store: "A. He had come in from taking out an order of groceries and he said, 'They havejust found a girl that has been drugged todeath.

# ' "Q. What did you say? A. 

### I said 

### rugged?' and he said 'No, dragged. I "Q. What did you say tothat? A. I said, 'Where was 1 it?' and he said, On a county road. I "Q. And what did you say? A. I asked him who itwas. "Q. What did he say tothat? A. We said that itwas Bobbi Clark, and I asked him ifheknew her and he said yes. "Q. While theDefendant was relating this toyou, did he speak clearly? A. No. "Q. Do you recall how he spoke? A. He, he was extremely nervous and excited."Q. Did he stutter atall? A. Yes, he acted like his tongue was too big for his mouth. He couldn't get thewords out. Q. Did the Defendant relateanything else toyou during this conversation? A. I asked him how he found out about this and he said, 'Iheard it on the car radiowhen I took the lady's groceries out. 11' According tothe testimony given by the coroner, the sheriff, and other investigating officers

## ,no positive identification of Bobbi Clarkwas made or announced untilafter 6:00 p.m. that day, December 

### 23. Recognizing the above incriminatory facts developed against defendant atthe trial,,we, aswas thejury, are faced with a case that 

### is largely circumstantial. Almost fiveyears passed between the finding of Bobbi ~larps body and the filing of an Information charging defendant with murder in the first degree. Another sixmonths passed before defendant went to trial. We specifically note these factors because of the discrepancies in statements given during the investigation inearly 1965, and those given atthe trial, aswell as the fact that a change of personnel had taken place in the elected officials of GallatinCounty, i.e. the county attorneyand sheriff. Defendant raises six issues on appeal. 1) The court erred innot granting a continuance. 2) The court erred in that it should have disqualified itself for cause and the motion for substitution of judge should have been granted. 3) The court made prejudicial comments. 

### 4) The evidence was insufficient tojustify the verdict. 5) The admission of defendant's statement was error. 6) The court unduly limited cross-examination.We find the controlling issue tobe Issue 5, the trial courfs admission into evidence of defendant's alleged voluntary statement given on February 2, 1965, which alleged statement had been taped and then transcribed. Attrial, the statement was inthe typewritten form. In view of our finding that such admission was prejudicial, therefore necessitating a new trial, we willfocus our discussion on Issue 5, recognizing that on retrial Issues 

### 1, 2, 3, and 4, if they are issues, ought not toarise. We willbriefly comment on Issue 6 later inthis opinion. Issue 5. It 

### is the duty of this Court toascertain whether or not errors made attrialareprejudicial, for only upon such prejudicial errors may a case be returned tothe district court for retrial. Statev. Totterdell, 135Mont. 56, 336 P.2d 696. We recognize the instant casewas a most difficult one that took many days of trialand like the rec,ord of most extended trials, it could hardly be freeof error. Aswe noted in Statev. Cor, 144Mont. 323, 340, 396 P.2d 86: "Our Constitutions, both Federal and State, guarantee a fair trial, not a perfect one.It Here, the trialjudge recognized the difficulty of the question before him when he ruled toadmit the statement: "COURT: This 

### is a difficultquestion and I am well aware of thevarious cases, leading and otherwise, and I think the test 

### is whether or not it was voluntary and I think when you get right down to it--- and that 

### is what it 

### is, because allof the niceties that thejudges and lawyers areinclined to embroider the rulewith, ifwe follow to its ultimate conclusion, perhaps no voluntary statement can ever be usedagainst an accused unless it 

### ismade inopen court and maybe that 

### is the way it should be; I am not saying that that 

### is. Personally, I doubt it, but I think I have read this statement and at

### its very most it 

### is admissions. Whether they areagainst interest ornot, I am not a t a l l sureabout that. The ideal situationwould be, as 

### Mr. Moses indicated, the interviewwas taped after thorough warning and advice of allyour constitutiona1rights and then a transcription of the interviewand then a correlation between the actual tape and the interviewand than a retention of the tape for verification for those such as 

### Mr. Moses and his client. But, I suppose we have todeal with the practicalities of lifeand ithas been a long time

# -- five years.

1 l

### I am going toadmit it. 

### I have thought about it quitea littlebit since thenoon recess and your objection may be a reversable one but I don't think so. I think this 

### is a voluntary statement. "Here 

### is a man who was advised of his rights. I think it 

### is on page 

### 26. It sort of underlines the very thing that I have toassume without any hesitancy

# -- that thiswitness 

### is telling the truth and he has said that he advised him of these rights and then he says farther along on the interview, I almost two-thirds of the way through he said, Again, likewe said before, you know you don't have toanswer these questions

# --- 

# . 111 In soruling, the court relied upon Statev. Stevens, 60 Mont. 390, 

### 199 P. 256, which held that admissions against interest arealways competent without foundation. This Court has long recognized that admissions against interest areadmissible, but thevoluntariness of such admissions must be established. Statev. Zachmeier, 151Mont. 256, 

### 441 P.2d 737. The "foundation" referred toin Stevens went tothevoluntariness of the admission, and as such 

### is not relevant. Here, no one testified as tothe accuracy of the transcription of the tapes which

were either lost or destroyed sometime between the time of the taking of the statement and the time of trial. There was no way to test the accuracy of the statement, other than thememory of 

### Mr. BurleighAllen, the interrogator. 

### Mr. Allen testified he hadnot heard the tape recording; yet some fiveyears laterhe believed it tobe the same. Atthe time of the admission of the statement, counsel for defendant argued to the court that before such a taped interview can be admitted thati 

# "*** a person [must] testify that that taped interviewwas heard by him and compared with the reproduction inwriting [so] that he can then be ina position to lay a foundation to say that that which appears inwriting 

### is exactly the same, letter for letter, word for word, that therehave been no changes, no alterations, no mistakes, and that nothing appears but an actual accurate reproduction of that tape recording. "This witness has testified, of course, that he has not heard the tape recording and hejust believes it 

### is the same and we cannot tellor do not know whether therewere any parts that may have been leftout or any errors in the transcription and unless a foundation 

### is laid in that respect, Your Honor, certainlywe arejust guessing as to 

### its accuracy and in that respect we think no foundation has been laid.'' Counsel for defendant was substantially correct in stating the law to the trialcourt and the court should have either required further foundation or denied the statement. Later, in defendant's cross-examination of Mr. Allen after the statement had been admitted, itwas revealed: that after defendant gave the statement other interviews were had with defendant; that additions and corrections were made to the statement given on February 2; that no tapes were made of these unnumbered interviews nor do the additions and corrections made tothe February 

### 2 statement appear on the copy of the statement introduced attrial. The stateargues that even though the tape was not introduced, that the transcription was admissible asa business record, relying upon section 93-801-2, R.C.M. 1947:"Proof of business records. A record of an act, condition or event, shall, in so far as relevant, be competent evidence if the custodian or other qualifiedwitness testifies to 

### its identity and the mode of 

### its preparation, and if it was made in the regular course of business, ator near the time of the act, condition or event, and if, in the opinion of thecourt, the sources of information, method and time of preparation were such as to justify 

### its admission." The statecites Statev. Meyer, 37 Wash.2d 759, 226 P.2d 204, as authority for the admission of a typewritten statement without the tape. Washington has a statute similar to section 93-801-2, R.C.M. 1947. Meyer is clearly distinguishable on the facts. There, 

### a mentally incompetent female

. was admitted toa hospital where shehad previously been a patient. 

### In its regular course of business thehospitalkept clinicalrecords of 

### its patents, and in the making of her record one of the staff interviewed thepatient some ten days afterher admission. Part of the interview of questions and answers was recorded on a Soundscriber and thereafter transcribed by a typist. The Soundscriber record was destroyed. Although the typist who transcribed the statement did not testify, one of thehospital physicians, who had asked the questions, identified the statement as part of the clinical record of the patient. In Meyer, the court allowed the questions and answers to be read as portraying the stateof mind of the patient. The Washington Supreme Court allowed the statement into evidence, noting that the statutegave the court wide discretion and, too, that the evidence was not a part of the state's case, but arose

on cross-examination of one

### cf thehospital staff called as a witness by the defendant. Such arenot the facts here. While we arenot concerned with sound recordings in this

case and areconcerned only with the transcript of the recording,nevertheless we willdiscuss recordings generally. Sound recordings areadmissible in both civiland criminal cases where the recording is both materia'land relevent tothe issues before the court and a proper foundation 

### is laid. That foundation must be as is set forth in 58 ALR2d 1024, Admissibility of Sound Recordings in Evidence, § 2, pp. 1027, 1028:

1FThe cases are in general agreement as towhat constitutes a proper foundation for theadmission of a sound recording. They also indicatea reasonably strictadherence tothe rules prescribed for testing the admissibility of recordings, which have been outlined as follows: (1) a showing that the recording device was capable of taking testimony, (2) a showing that the operator of the devicewas competent, (3) establishment of authenticity and correctness of the recording, (4) a showing that changes, additions, or deletions have not been made, (5) a showing of themanner of the preservation of the recording, (6) identification of the speakers, (7) a showing that the testimony elicitedwas voluntarily made without any kind of inducement." The above foundation criteria has been adhered towith minor variations in the following cases: Statev. Baca, 82 N.M. 144, 477 P.2d 320; Statev. Hendricks, (Mo. 1970), 456 S.W.2d 

### 11; Parnell v. State, (Fla. 1969), 218 So.2d 535; Cummings v. Jess Edwards, Inc., (Tex. 1969), 445 S.W.2d 767; Kruse v. Coos Head Timber Company, 248 Ore. 294, 432 P.2d 1009; Statev. Driver, 38 N.J. 255, 183A.2d 655. See also64 Harvard Law Revnew 1369. The criteria for the foundation for admission of tapes

or records are specific. Where a transcription 

### is Lncroduced along with the record, and a proper foundation has been laid for the record it willbe admissible, for the transcription can be compared with the record or tape. There are some cases where only the transcription of the recording has been offered and though objected to on the basis that the transcription 

### is not the best evidence, courts have admitted the transcription where a proper foundation was laid for the admission. Applebaum v.Applebaum, 84 N.Y.S.2d 505 (1948); McGuire v. State, 200 Md. 601, 

### 92 A.2d 

### 582 (1952). However, in Statev. Baca, 82 

### N.M. 144, 477 P.2d 320, a police officer's notes thathad been transcribed from a tape recorded interview between the defendant and the informer were held inadmissible due to failure to lay a proper foundation Eor both the recording itself and the subsequent transcription. That 

### is precisely the factual situationhere, except under our factual situation the tape 

### is missing or destroyed. This loss

ardestruction of the tape or record has, in the few cases we have found from otherjurisdictions, raised the best evidence rule objection, and where admission has been allowed it has only been after the prosecution has proven the authenticity of the transcription--that 

### is, after laying the proper foundation as to the accuracy of the secondary evidence following theguide lines set forth in 58 ALR2d 1024, heretofore quoted. We find the circumstances in this case clearly show the defendant's statement should not have been admitted and that prejudicial error occurred when itwas admitted. Finally, we 

### willdiscuss defendant's Issue 

### 6 which relates todefendant's contention that the trialcourt unduly restricted his cross-examination. Exhibit #40, Bobbi

### lark's watch, had been accepted into evidence toshow either the time of death or the time the body was run over out on Cottonwood Road. On cross-examination of L.D.W. Anderson, deputy sheriff atthe time of thehomocide, defendant's counsel asked the following question: "Q. Now, willyou tellthis court and jury whether you have been able to find any connection of that proposed exhibit #40, the watch, withArchie Warwick?"Objection was made by the county attorney as follows: "MR. 

### ANDERSON: That 

### is objected toas invading the province of the court andjury and calling fora conclusion of this witness. 11 After considerable discussionbetween court and counsel, the objection was sustained. Upon retrial, should this question be asked, the court should permit it tobe answered. It follows from what has been said that the conviction of the defendant should be reversed and the cause remanded to the district court with instructions togrant a new trial. It 

### is so ordered. 

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