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 County Attorney, argued, Bozeman, 

Montana. 

Submitted: January 11, 1972 

Filed: FEB 2 4 '{~i +J 

Decided FEB 2 

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 district court of 

the eighteenth judicial district, Gallatin County, found guilty 

and sentenced to liEe imprisonment. 

At about 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 a long 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 in a 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 to the 

scene arriving at about 9:40 a.m. Pictures were taken; measurements were made of the area ; and plaster casts were made of tire 

marks. All physical evidence was analyzed by the local officials 

and then sent to the FBI laboratory. This physical evidence was 

introduced at trial, some of which will be referred to later in 

our discussion. A broken watch which had stopped at 4:20 and an 

engagement ring were on the body of the young woman. 

The body was removed to a funeral home in Bozeman where 

Dr. Mark Young, the coroner, and Dr. Volney Steele, a pathologist, 

performed an autopsy at about 11:30 a.m., on December 23. Their 
report 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 death was 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 State University, was 

a teacher at Kalispell, Montana. On the evening of December 22, 

1964, she drove from Kalispell to Bozeman. She was accompanied by 

her roommate as far as Three Forks, her roommate's home. The 

roommate testified that Bobbi left Three Forks at about 1:30 a.m., 

December 23, and her car was noted arriving in Bozeman at about 

the hour of 2:00 a.m. by a local police officer. 

Jack Wandler, Bobbi lark's fiancee, testified that he 

had expected her to stay at his apartment; that on the evening of 

December 22 he had cleaned the apartment and while waiting for 

her to arrive he had fallen asleep and had not awakened until 

about 6:QO a.m. Notfinding Bobbi there, he called her roommate 

in Three Forks; made another call to a local friend of ~obbi's, 

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

car parked in an alleyway parking space back of his apartment. 

He then went several blocks to a 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 to his apartment and 

called the Bozeman police at 6:45 a.m. 

The chief of police, Ron Cutting, answered the call; 

checked the parked auto belonging to Bobbi Clark; and obtained 
a picture of her from Wandler. This picture was 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 side of the car which disappeared when they 

got to hard snow. Tire marks 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 the FBI. On December 31, 1964, the FBI filed a report 

which stated that the tread design of the casts "conform most 

closely to the -design of 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. At trial the 

FBI agent testified that "we just can't get every design that is 

made and keep up to date * * *." The FBI sent a copy of the 

Cordovan tread design to Sheriff McClurg to assist him in his 

investigation. 

Prior to receiving the FBI report, the Bozeman police 

on December 23, initiated a survey of "every tire dealer in town" 

in an attempt to identify the type and make of the tire which 

made the tracks that the plaster casts were made from. Finally, 

in the early part of January 1965, a tire was located at a 

 amble's store that "appeared to match the casts." That tire was 

a Crest Imperial. "Crest Imperial" is a trade name used on tires 

that are marketed only by amble's. 

On the basis of this information Sheriff McClurg early in 

January advertised in the loca 1 news media that his office was 

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 to the 

Bozeman police that two tires; had been stolen from his residence. 

Also on January 15, 1965, one Roy Foster, while on his 

way home from work, found a Crest Imperial narrow white sidewall 

tire on the Bridger Canyon r~ad, sometime around 4:40 p.m. The 

tire was found alongside the guardrail next to the road. Foster 

testified 'yt was extremely clean" and "looked as though it might 

have been washed." Foster stopped and picked up the tire because 

he had heard "ads on the radio" that the police were looking for 

a set of tires and "1 noticed that it [the tire] hadn't been there 

that morning when I went to work". Foster took the tire home and 

called the sheriff's office. A deputy sheriff came to ~oster's 

home and took the tire into custody. The tire had been found 

approximately four-tenths of a mile up the Bridger Canyon road 

from a fish hatchery and rock slide. 

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

on the Bridger Canyon road, "noticed a tire lying up on the side 

of the hill there at the rock slide". Kinney stopped his truck 

and secured the tire because he also had heard "advertising on 

the radio and the papers" that the sheriff was looking for tires. 

The tire found by Kinney was a ''Crest'' and "it was in good shape." 

Kinney turned the tire over 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 to the FBI laboratory to be compared with the plajter casts 

made at the scene where Bobbi Clark's body was found. 

An FBI agent testified at the trial that the plaster casts 

made where the body was found and the tires located in the Bridger 
Canyon area were of the same size, same tread design, and had 

the same degree of wear. "Further, it was either these two tires 

that made these two impressions or two other tires having the 

same characteristics as to tread size, tread size and tread design 

and worn in this manner, worn to this degree." These tires are 

a part of the circumstantial evidence that brought focus upon the 

defendant as a suspect. 

On February 2, 1965, at the request of Burleigh Allen, 

a former FBI agent and a private investigator hired by Bobbi 

 lark's mother to assist local law officials in the investigation, 

defendant voluntarily, after being advised of his rights, consented 

to allow the local law enforcement officials and Mr. Allen to 

search his 1959 Chevrolet car and his apartment. This authorization 

went to all physical 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 to a service station where 

it was put up on a hoist. Concerning that inspection Mr. Allen 

testified: 

"We noticed, I noticed, that it was extremely 

clean. I mean it wasn'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 also exceptionally clean. It 

On that same day, February 2, 1965, Mr. Allen, in the 

presence of several loca 1 law enforcement officers, took a thirtyeight page statement from the defendant concerning many facets 

of the investigation. This statement was taped and transcribed. 

In the interval between February 2, 1965,and the time of trial, 

some five years, the tapes disappeared. 
At the 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 to Kountz did 

not become known to the investigating officers until nearly five 

years after the homicide when, for some reason not explained at 

the trial, Kountz gave a statement to the county attorney on 

January 3, 1970. 

One other witness appeared at the trial who had not 

appeared and given testimony during the 1965 investigation. That 

witness was Mrs. Judith Veltkamp, who had been employed in 1964 

as a grocery checker at the Buttrey Store where defendant worked 

as a box boy and also stacked shelves. This witness, the wife 

of a local police sergeant, gave the county attorney a statement 

in January 1970, which statement focused additional attention on 

defendant. She testified at the trial that between the hours of 

12:OO and 12:30 p.m. on December 23, 1964, she had the following 

conversation with defendant at the Buttrey Store: 

"A. He had come in from taking out an order of 

groceries and he said, 'They have just found a girl 

that has been drugged to death. ' 

"Q. What did you say? A. I said rugged?' and he 

said 'No, dragged. I 

"Q. What did you say to that? 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 it was. 

"Q. What did he say to that? A. We said that it was 

Bobbi Clark, and I asked him if he knew her and he said 

yes. 

"Q. While the Defendant was relating this to you, 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 at all? A. Yes, he acted like 

his tongue was too big for his mouth. He couldn't 

get the words out. 

Q. Did the Defendant relate anything else to you 

during this conversation? A. I asked him how he 

found out about this and he said, 'I heard it on the 

car radio when I took the lady's groceries out. 11' 

According to the testimony given by the coroner, the 

sheriff, and other investigating officers , no positive identif ication of Bobbi Clark was made or announced until after 6:00 p.m. 

that day, December 23. 

Recognizing the above incriminatory facts developed 

against defendant at the trial,, we, as was the jury, are faced 

with a case that is largely circumstantial. Almost five years 

passed between the finding of Bobbi ~larps body and the filing 

of an Information charging defendant with murder in the first 

degree. Another six months passed before defendant went to 

trial. We specifically note these factors because of the discrepancies in statements given during the investigation in early 

1965, and those given at the trial, as well as the fact that a 

change of personnel had taken place in the elected officials of 

Gallatin County, i.e. the county attorney and sheriff. 

Defendant raises six issues on appeal. 

1) The court erred in not 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 to justify the verdict. 

5) The admission of defendant's statement was error. 

6) The court unduly limited cross-examination. 
We find the controlling issue to be 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. At trial, the statement was 

in the typewritten form. In view of our finding that such admission was prejudicial, therefore necessitating a new trial, we 

will focus our discussion on Issue 5, recognizing that on retrial 

Issues 1, 2, 3, and 4, if they are issues, ought not to arise. 

We will briefly comment on Issue 6 later in this opinion. 

Issue 5. It is the duty of this Court to ascertain whether 

or not errors made at trial are prejudicial, for only upon such 

prejudicial errors may a case be returned to the district court 

for retrial. State v. Totterdell, 135 Mont. 56, 336 P.2d 696. 

We recognize the instant case was a most difficult one that took 

many days of trial and like the rec,ord of most extended trials, 

it could hardly be free of error. As we noted in State v. Cor, 

144 Mont. 323, 340, 396 P.2d 86: 

"Our Constitutions, both Federal and State, 

guarantee a fair trial, not a perfect one. It 

Here, the trial judge recognized the difficulty of the question 

before him when he ruled to admit the statement: 

"COURT: This is a difficult question and I am well 

aware of the various 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 all of the niceties 

that the judges and lawyers are inclined to embroider 

the rule with, if we follow to its ultimate conclusion, perhaps no voluntary statement can ever be used 
against an accused unless it is made in open 

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 are against interest or not, I am not a t a l l 

sure about that. The ideal situation would be, 

as Mr. Moses indicated, the interview was taped 

after thorough warning and advice of all your 

constitutiona 1 rights and then a transcription of 

the interview and then a correlation between the 

actual tape and the interview and than a retention of the tape for verification for those such as 

Mr. Moses and his client. But, I suppose we have 

to deal with the practicalities of life and it has 

been a long time -- five years. 

1 l I am going to admit it. I have thought about 

it quite a little bit since the noon 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 to assume without any 

hesitancy -- that this witness 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, 

like we said before, you know you don't have to answer these questions --- . 111 

In so ruling, the court relied upon State v. Stevens, 

60 Mont. 390, 199 P. 256, which held that admissions against 

interest are always competent without foundation. This Court 

has long recognized that admissions against interest are admissible, but the voluntariness of such admissions must be established. State v. Zachmeier, 151 Mont. 256, 441 P.2d 737. The 

"foundation" referred to in Stevens went to the voluntariness of 

the admission, and as such is not relevant. Here, no one testified as to the 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 the memory of 

Mr. Burleigh Allen, the interrogator. Mr. Allen testified he had 
not heard the tape recording; yet some five years later he 

believed it to be the same. 

At the 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 

interview was heard by him and compared with the 

reproduction in writing [so] that he can then be 

in a position to lay a foundation to say that that 

which appears in writing is exactly the same, letter 

for letter, word for word, that there have 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 he just believes it is the same and we cannot tell or do not 

know whether there were any parts that may have 

been left out or any errors in the transcription 

and unless a foundation is laid in that respect, 

Your Honor, certainly we are just 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 trial court 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, it was 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 to the 

February 2 statement appear on the copy of the statement introduced at trial. 

The state argues that even though the tape was not introduced, that the transcription was admissible as a 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 

qualified witness testifies to its identity and 

the mode of its preparation, and if it was made in 

the regular course of business, at or near the 

time of the act, condition or event, and if, in the 

opinion of the court, the sources of information, 

method and time of preparation were such as to 

justify its admission." 

The state cites State v. 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 to a 

hospital where she had previously been a patient. In its regular 

course of business the hospital kept clinical records of its 

patents, and in the making of her record one of the staff interviewed the patient some ten days after her 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 the hospital 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 state of mind of the patient. The 

Washington Supreme Court allowed the statement into evidence, 

noting that the statute gave 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 the hospital staff called as a 

witness by the defendant. Such are not the facts here. 

While we are not concerned with sound recordings in this 

case and are concerned only with the transcript of the recording, 
nevertheless we will discuss recordings generally. Sound recordings are admissible in both civil and criminal cases where 

the recording is both materia'l and relevent to the 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: 

1 F The cases are in general agreement as to what 

constitutes a proper foundation for the admission 

of a sound recording. They also indicate a reasonably strict adherence to the 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 device was 

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 the manner of the preservation of 

the recording, (6) identification of the speakers, 

(7) a showing that the testimony elicited was voluntarily made without any kind of inducement." 

The above foundation criteria has been adhered to with 

minor variations in the following cases: State v. Baca, 82 N.M. 

144, 477 P.2d 320; State v. 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; State v. Driver, 

38 N. J. 255, 183 A.2d 655. See also 64 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 will be 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 State v. Baca, 82 N.M. 144, 477 P.2d 320, a 

police officer's notes that had 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 situation here, except under our 

factual situation the tape is missing or destroyed. This loss 

ar destruction of the tape or record has, in the few cases we have 

found from other jurisdictions, 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 the guide 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 it was admitted. 

Finally, we will discuss defendant's Issue 6 which relates to defendant's contention that the trial court unduly 

restricted his cross-examination. Exhibit #40, Bobbi lark's 

watch, had been accepted into evidence to show 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 at the 

time of the homocide, defendant's counsel asked the following 

quest ion : 

"Q. Now, will you tell this court and jury 

whether you have been able to find any connection of that proposed exhibit #40, the watch, 

with Archie Warwick?" 
Objection was made by the county attorney as follows: 

"MR. ANDERSON: That is objected to as invading 

the province of the court and jury and calling 

for a conclusion of this witness. 11 

After considerable discussion between court and counsel, the 

objection was sustained. Upon retrial, should this question 

be asked, the court should permit it to be 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 to grant a new trial. 

It is so ordered. 

il 1 ssociate ~ustice