No. 84-373 

IN THE SUPREfE COURT OF THE STATE OF IWNTANA 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsBARRY ALLAN BEACH, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Fifteenth Judicial District, 

In and for the County of Roosevelt, 

The Honorable M. James Sorte, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Moses Law Firm; Richard Carstenson argued, Billings, 

Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Clay Smith argued, Asst. Atty. General, Helena 

James A. McCann, County Attorney, Wolf Point, 

Montana 

-- -- - - - 

Submitted: March 13, 1985 

Decided: July 25, 1985 

Filed: 4 ,: ; i3&5 

Clerk 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the 

Court. 

Defendant appeals from a denial of his motion to 

supress, motion for change of venue, jury verdict of guilty 

of deliberate homicide, and sentence imposed thereon; all 

rendered in the District Court of the Fifteenth Judicial 

District, Roosevelt County, Montana. We affirm. 

On June 16, 1979, the body of Kimberly Nees was 

discovered in the Poplar River near Poplar, Montana. She had 

been bludgeoned to death. The Roosevelt County Sheriff's 

Office investigated the crime, but was unable to make an 

immediate arrest. High on the list of suspects was the 

defendant, Barry Allen Beach. 

Several years later, on January 4, 1983, the Ouachita 

Parish, Louisiana, Sheriff's Office received a complaint from 

Carolyn Beach, Barry Beach's step-mother. She alleged that 

the defendant, then living in Monroe, Louisiana, had 

picked-up two under age girls from school and that they had 

not returned. Deputy Talmadge Stutts responded to her 

complaint, and went to the defendant's house. The defendant 

admitted that both girls had been there earlier in the day, 

but had gone home. Stutts then advised the defendant nf his 

Miranda rights, and asked if he could inspect the apartment. 

According to Stutts, the defendant consented to the search. 

The defendant later testified at a suppression hearing that 

he did not give Deputy Stutts permission to enter his 

apartment. Stutts entered, and following the search, 

arrested defendant on the charge of contributing to the 

delinquency of minors. He then took the defendant to the 

Ouachita Parish Sheriff's Office. 
That night, defendant signed a Miranda waiver form and 

gave a statement regarding the contributing charge. He spent 

the night in jail. The next day, January 5, defendant 

telephoned his mother, Roberta Clincher, in Poplar, Montana 

and advised her of his arrest. Mrs. Clincher then contacted 

Tim Beach, the defendant's uncle, who was also in Monroe, 

Louisiana, to see about getting the defendant out of jail. 

The defendant also contacted his step-mother , Carolyn 

Reach, and allegedly threatened to kill her for complaining 

to the Sheriff's Office. Mrs. Beach reported the threat to 

Alfred Calhoun, the Commander of the criminal investigation 

unit of the Ouachita Parish Sheriff's Office. She also told 

Commander Calhoun that the defendant was a suspect in the 

Nees murder in Montana. The Louisiana authorities contacted 

the Roosevelt County Sheriff and confirmed Mrs. Beach's 

report. They also indicated to the Roosevelt County Sheriff 

that Barry Beach was a suspect in three murders in Louisiana. 

On January 6, 1983, Louisiana investigators began to 

question Barry Beach. Sergeant Jay Via first interviewed the 

defendant after giving him Miranda warnings and having a 

waiver signed. Sergeant Via testified at the supression 

hearing that the January 6 interview lasted approximately one 

hour, from 11:OO a.m. to 12:05 p.m. The defendant testified 

that this interview commenced at 7:30 a.m. and lasted four 

hours. 

At the time of the first interview, defendant was still 

being held on the contributing charge. That afternoon, Geary 

Aycock, an assistant district attorney for Ouachita Parish 

requested the Sheriff 's Office to release the defendant. 

Sergeant Via told Aycock about the death threat and the Nees 

murder in Montana. On this basis, Aycock authorized 
continued custody of the defendant. Bail remained set at 

$1,500, the amount previously set for the contributing to the 

delinquency of minors charge. 

That afternoon, Tim Beach came to the Ouachita Parish 

Correctional Center to post bail for the defendant. Tim 

Beach spoke to Sergeant Via, and Via testified that he told 

Tim that he had a right to post bond, but that because of the 

death threats, the defendant's step-mother and father desired 

that Barry Beach remain in custody. Tim Beach testified that 

Via ~xplained to him the procedure to get psychiatric help 

for Barry Beach, and also told him that getting a lawyer 

would be "a waste of money." Via denied making any specific 

recommendations to Tim Beach. 

Via arranged a phone conversation between Tim Beach and 

the defendant during which the defendant allegedly told Tim 

that he did not wish to be bailed out. Tim Beach later 

talked in a three-way conference call that included Sergeant 

Via, to his mother, Mrs. Clincher, who at that time indicated 

that she was "content" with the defendant remaining in jail. 

She testified that she assented to this because Sergeant Via 

had assured her that the defendant would be provided with 

psychological help, and that he would be released soon 

anyway. 

Tim Beach also testified that he remembered talking to 

an assistant district attorney who told him that the 

defendant would be released if taken back to Montana. The 

assistant district attorney allegedly told Tim Beach to wait 

in the courthouse for the defendant's release. Tim did so, 

but several hours later received word that other charges were 

being brought against the defendant, and that he was also 

being investigated for murder. Tim Beach could not say 
whether these last events occurred on January 6 or 7, but the 

record shows two things; first that charges against the 

defendant for deliberate homicide were not brought until 

January 8, and second that no bond was posted for the 

defendant on January 6. The record also shows that the 

defendant had not yet been taken before a judge or magistrate 

for an initial appearance, arraignment, or proceeding. 

The questioning of Barry Beach continued at 12:30 p.m. 

on January 7. This interview concerned the three Louisiana 

murders, and the Nees murder in Montana. Sergeant Via again 

did the questioning. He gave the defendant Miranda warnings 

and received a signed waiver thereof. He testified that the 

defendant was coherent and comfortable in the interrogation 

room. Via interrupted the interview once, when another 

deputy entered the room, to give the defendant another 

Miranda warning and to obtain another waiver. At 

approximately 2:30 p.m. the defendant authorized Sergeant Via 

to conduct a stress evaluation test. Via conducted the test 

and found stress indicative of deception. Because of this, 

Via requested Commander Calhoun to conduct another test. 

Commander Calhoun, after giving more Miranda warnings, did so 

using a different form of questioning. Testimony varies as 

to what occurred at this point, but according to the 

defendant, he was left alone with Commander Calhoun, who 

first conducted the test, and then accused him of lying. The 

defendant also testified that Commander Calhoun was abusive, 

and threatened him, telling him that he was going to "fry in 

the electric chair." Commander Calhoun denied using any such 

tactics, stating that all he did was administer the test and 

tell Barry Beach that his responses indicated deception. The 

Commander further testified that after he told the defendant 
his answers were apparently untruthful, Beach broke down and 

began to talk about the Nees murder. 

Sergeant Via re-entered the interview room at 

approximately 7:00 p.m. and Commander Calhoun left. When Via 

came into the room, Barry Beach was broken down and crying. 

He began talking and admitted murdering Kimberly Nees. Via 

had Calhoun return to the interview room, and had the 

defendant sign another Miranda waiver. They then tape 

recorded an interview with the defendant in which he 

described in detail facts, not known by the general public, 

concerning the murder of Kimberly Nees. 

On January 8, the defendant retained counsel. On 

January 11, the defendant, his attorney, Sergeant Via, and 

Joe Cummings, a deputy sheriff, held a conference. Defendant 

was given Miranda warnings, and signed a waiver thereof. 

During this meeting, the defendant again admitted he murdered 

Kimberly Nees, but denied any involvement in the unsolved 

Louisiana murders. 

During this time the investigators in Louisiana had 

been in contact with the Roosevelt County Sheriff's Office. 

On January 8, 1983, the Roosevelt County Attorney filed a 

petition in the youth court for the Fifteenth Judicial 

District, Roosevelt County, seeking a declaration that the 

defendant, then 20 years old, was a delinquent youth, and 

requesting authority to incarcerate him. The county attorney 

simultaneously filed a motion to transfer the youth court 

proceedings to District Court. This motion was not ruled 

upon before defendant turned 21. The District Court issued 

an order of detention and, for extradition purposes, a 

finding of probable cause. 
The defendant turned 21 years of age on February 15, 

1983. On April 29, 1983 his Montana attorneys filed a motion 

to dismiss the youth court action. The basis for the motion 

was the loss of youth court jurisdiction over the defendant 

under section 45-5-205(3), MCA, at the time he reached the 

age of 21. The defendant's motion was granted by order dated 

May 4, 1983. Defendant had been charged in District Court on 

May 3, 1983. 

The defendant was extradited back to Montana in August 

of 1983 and was tried on April 9, 1984 in Glasgow, Valley 

County, Montana. Valley County is adjacent to Roosevelt 

County. On April 13, 1984, the jury returned a verdict of 

guilty of deliberate homicide. On May 11, 1984 judgment was 

entered on the conviction and Barry Beach was sentenced to a 

term of 100 years in the Montana State Prison. The court 

also determined the defendant to be ineligible for 

designation as a non-dangerous offender and further 

determined that he would be restricted from eligibility for 

parole and release programs while serving his term. Barry 

Beach appeals his conviction and sentence to this Court, 

presenting the following issues for review: 

(1) That the District Court did not have jurisdiction 

to try Barry Beach for deliberate homicide. 

(2) That the District Court erred in not changing venue 

to a county outside of the primary news coverage area of the 

same media that prejudicially affected his rights to a fair 

trial in Roosevelt County, Montana. 

(3) That the District Court erred in not suppressing 

the confession Barry Beach made to the Louisiana authorities. 
(4) That the District Court erred in not instructing 

the jury that it must find the defendant possessed a specific 

mental state, in order to convict him. 

(5) That the sentence imposed was harsh, oppressive, 

cruel and unusual, and an abuse of the District Court's 

discretion. 

Issue - #1 

Appellant contends that the District Court lacked 

jurisdiction to try him. As authority, he points to section 

41-5-203, MCA, which states: 

"Jurisdiction of the court. (I) Except as 

provided in subsection (2), the court has 

exclusive original jurisdiction of all 

proceedings under the Montana Youth Court 

Act in which a youth is alleged to be a 

delinquent youth, a youth in need of 

supervision, or a youth in need of care 

or concerning any person under 21 years 

of age charged with having violated any 

law of the state or ordinance of any city 

or town other than a traffic or fish and 

game law prior to having become 18 years 

of age. " (Emphasis added. ) 

and to section 41-5-205, MCA which states: 

"Retention of jurisdiction. Once a court 

obtains jurisdiction over a youth, the 

court retains jurisdiction unless 

terminated by the court or by mandatory 

termination in the following cases: 

"(1) at the time the proceedings are 

transferred to adult criminal court; 

" (3) in any event, ---- at the time the youth 

reaches the age -- of 21 years." (Emphasis 

added. ) 

The defendant argues that the District Court lacked 

jurisdiction because he was under the age of 18 when the 

crime was committed and the youth court proceedings 

instituted on January 8, 1983 were never transferred under 
section 41-5-206 (1) , MCA, to the District Court prior to his 

reaching of age 21 on February 15, 1983. He contends that 

once the "exclusive jurisdiction" of the youth court has 

attached under section 45-5-203(1), MCA, the District Court 

can never assume jurisdiction over the offense underlying the 

youth court's proceeding absent transfer pursuant to section 

45-5-206 (I), MCA. 

We do not find the defendant's argument to be 

pursuasive. In State ex re1 Elliot v. District Court (Mont. 

1984), 684 P.2d 481, 41 St.Rep. 1184, we held that there is 

no "window" of jurisdiction between the youth court act and 

the genera1 district court jurisdiction. Furthermore, in 

dicta, Elliot, supra, addresses the situation at issue here 

and resolves it in favor of jurisdiction resting in the 

district court. 

In Elliot, the defendant committed a murder when he was 

154 years old. His involvement in the murder was not 

discovered until several years later when he was 22 years of 

age and had voluntarily confessed. The defendant argued that 

the youth court act provides for "exclusive original 

jurisdiction" over juvenile offenses, and allows the juvenile 

court to transfer jurisdiction to the district court only 

under certain circumstances as provided for in section 

41-5-206, MCA. Since the defendant in Elliot never came under 

the exclusive original jurisdiction of the juvenile court, he 

contended that transfer to District Court could not be 

effected. 

In Elliot we held that the "exclusive original 

jurisdiction" of the youth court depended upon on two 

factors: (1) that the offense was committed while the youth 

was under the age of 18; and (2) that the youth was charged 
before the age of 21. In this case, Barry Beach was clearly 

under the exclusive original jurisdiction of the juvenile 

court. In Elliot this Court held that since he had committed 

a crime he came under the jurisdiction of the District Court 

pursuant to Art. VII, Sec. 4 Mont. Const., even though he was 

not under the exclusive original jurisdiction of the youth 

court. 

In Elliot this Court cited a case from Minnesota, In 

the Matter of the Welfare of S.V. (Minn. 1980), 296 N.W.2d 

404, that is very closely on point with the case at bar. In 

- In Matter -- of the Welfare -- of S.V., the 17 year old defendant 

was charged with homicide in juvenile court. The case 

dragged on in juvenile court for over four years and the 

court lost jurisdiction (pursuant to a clause in the 

Minnesota Code similar to section 41-5-205 (3) , MCA) because 

the offender turned 21. At age 22, the county sought to 

prosecute the defendant in district court. Defendant made 

this argument: 

". . . the respondent is attempting to 

take advantage of an alleged loop-hole in 

the juvenile court's statutes. Minn. 

Stat. sec. 2260.111 . . . provides that 

juvenile courts have original and 

exclusive jurisdiction over offenses 

committed by persons under age 18 unless 

the case is referred by the juvenile 

court for adult prosecution. . . However . . . juvenile court jurisdiction ends 

for all purposes at age 21. The 

respondent urges that the juvenile court 

lacks jurisdiction because he is over 21, 

and the district court lacks jurisdiction 

because there has been no juvenile court 

referral of the juvenile act. The 

respondent thus argues that he cannot now 

be prosecuted anywhere." 296 N.W.2d at 

407 

This Court went on to further quote from the Minnesota 

court as follows: 
"We believe it would ridiculous to say 

that if a person of 16 or 17 years of age 

commits a murder and escapes detection or 

apprehension either on a warrant or 

indictment until after he reached 18 

years of age, or 21 years under the 

recent changes, he could no longer be 

proceeded against in juvenile court or 

tried by the district court . . . [Court's emphasis deleted.] 

" [The defendant's] interpretation would 

be in violation of [the Minnesota 

constitution] which gives the district 

court original jurisdiction in all 

criminal cases, and it would be 

unreasonable and absurd. The legislature 

does not intend a result that is absurd 

or in violation of the constitution." 

296 N.W.2d at 407 

The conclusion in Elliot supports the State's argument in 

this case. Exclusive original jurisdiction in the juvenile 

court does not divest a district court of jurisdiction over 

crimes committed by the juvenile defendant. It merely allows 

a juvenile to be treated, if the circumstances so permit, as 

a juvenile, and benefit from a less punitive and retributive 

system than provided in the district courts. The defendant 

argues that this holding will vest in the prosecutor the 

power to conclusively determine the forum merely by dragging 

his feet in prosecuting the crime. This is a valid 

observation, but misses one point; juveniles, as we11 as 

adults, benefit from the right to a speedy trial. 

We hold that upon termination of the youth court 

jurisdiction, no bar existed to the exercise of the district 

court's jurisdiction under Article VII, section 4 (1) of the 

Montana Constitution and sections 3-5-302(1)(a) and 46-2-201, 

MCA, over felony criminal proceedings against the defendant. 

Issue - #2 
The District Court granted defendant's rimtion for 

change of venue, but, over defendant.'^ objection placed venue 

in adjacent Valley County. Section 46-13-203, MCA is the 

statue that allows a trial court to change venue in criminal 

cases. It states in pertinent part: 

" (3) If the court determines that there 

exists in he county in which the 

prosecution s pending such ~rciurlLcc 

that a fair tr~i1 c?r,llot Lc FIsc2, 51 

shall: 

"(a) transfer the cause to any other 

court of competent jurisdiction in any 

county - in which -- a fair trial lay -- be had 

... " (Emphasis added.) 

The defendant's motion, supported by affidavit and 

other evidence, alleged wide spread media exposure of the 

facts involving the death of Kimberly Nees, and the 

prejudicial information published about Beach's confession. 

The District Court found that the motion had merit, and 

ordered that the trial should be moved to adjacent Valley 

County. The defendant objected and moved again for a change 

of venue contending that the same prejudice existed in Valley 

County as in Roosevelt County. As authority defendant cited 

State ex re1 Dryman v. District Court (1954), 128 Mont. 402, 

276 P.2d 969, where he argued that this Court implicitly 

recognized the pervasive, prejudicial nature of region-wide 

media coverage in rural Montana and ordered a new trial to be 

had in a county non-ad j~ c:clrit: t:o l:l~c? (3 rigina 1 county. 

The District Court denied the defendant's second motion 

for change of venue and ordered the trial to be held in 

Valley County at Glasgow, Montana. In denying this motion 

the District Court stated: 

"The motion to move the venue again is 

dismissed, denied and overruled, but the 
court will reconsider the entire matter 

and change the venue if the selection of 

jurors in Valley County indicates the 

defendant cannot receive a fair trial in 

that county." 

This Court will not overturn a District Court order 

granting or denying a motion for change of venue unless such 

action is found to be arbitrary or capricious, or, in other 

words, an abuse of discretion. State v. Link (Mont. 19811, 

640 P.2d 366, 38 St.Rep. 982; Bashor v. Risley (D.C.Mont. 

1982), 539 F.Supp. 259, aff. 730 F.2d 1228. 

We hold that the District Court did not act improperly 

in denying defendant's second motion for change of venue. In 

so ordering, the District Court acted reasonably in balancing 

the competing considerations of cost and inconvenience to 

Roosevelt County of holding a trial at a distant venue, with 

the defendant's right to a fair trial. 

All that section 46-13-203 (3) (a), MCA requires is that 

when venue is changed, it be to a county "in which a fair 

trial may be had." This question is primarily factual. The 

defendant presented several allegedly prejudicial newspaper 

articles to the District Court, one in which the county 

prosecutor purportedly told the Governor that the defendant 

would be unable to get a fair trail anywhere in eastern 

Montana. The court apparently did not find factual support 

for defendant' s a llegation of area-wide prejudice , and moved 

the trial to the next county. But, recognizing defendant's 

concerns, the District Court in its order denying the second 

motion for change of venue expressly provided that if, at the 

time of jury selection, it became apparent that a fair and 

impartial jury could not be had in Valley County, the motion 

would be reconsidered. As the case came to trial and the 
jury selected, defendant did not renew his allegation of 

prejudice. He, at that time, waived this objection. 

The Dryman, supra, case which defendant cites is in 

accord with this decision. In Dryman, this Court directed 

the district court to change the venue of a criminal trial to 

a county "not adjacent" to the original county because a fair 

trial could not be had in any adjacent county. Addressing 

that point, this Court stated: 

"This court's sole purpose in directing 

that relators new trial be had in same 

county 'not adjacent' to Toole County was 

to secure him the fair trial by an 

impartial jury which is guaranteed to 

every person charged with a crime by our 

Constitution." 128 Mont. at 406, 276 

P.2d at 971. 

Dryman, supra, supports the rule that the key to the venue 

inquiry is where a fair trial may be had. Absent an abuse of 

discretion, a district court's determination thereof will not 

be disturbed. We affirm on this point. 

Issue - #3 

As framed by the appellant, issue #3 presents four 

sub-issues. All of them revolve around the admissibility of 

the confessions Barry Reach made to the Louisiana 

authorities. Defendant points out four grounds upon which he 

contends that the confessions are inadmissible. They are: 

A. That such statements were obtained as a result of 

defendant's arrest in his home without a warrant. 

B. Such statements were obtained after the defendant 

was denied his constitutional right to release on bail. 

C. Such statements were obtained after the defendant 

was denied his right to be taken before a magistrate or a 

judge and arraigned and advised of his rights. 
D. That the State failed its burden of proving the 

voluntariness of the statements. 

We address these issues in the above order. 

The defendant was arrested in his home on a charge of 

contributing to the delinquency of minors. This arrest was 

affected without a warrant. The United States Supreme Court 

has clearly stated that, absent exigent circumstances, a 

warrantless arrest for a minor (misdemeanor or nonviolent) 

crime cannot be made in the defendant's home without a 

warrant. Welsh v. Wisconsin (1984), U.S. , 104 

S.Ct. 2091, 80 L.Ed.2d 732; Payton v. New York (1980), 445 

U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639; Harris v. united 

States (1947), 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399; 

U.S. v. Prescott (9th Cir. 1978), 581 F.2d 1343. 

In Brown v. Illinois (1975), 422 U.S. 590, 95 S.Ct. 

2254, 45 L.Ed.2d 416, the United States Supreme Court 

considered the admissibility of incriminating statements made 

by a defendant shortly after a warrantless arrest without 

probable cause. The Court held that the propriety of using 

statements following an improper arrest at trial required 

separate analysis under both the Fourth and Fifth Amendment: 

"Wong Sun [v. United States (1963), 317 

U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 4411 

requires not merely that the statement 

meet the Fifth Amendment standard of 

voluntariness but that it be 

'sufficiently an act of free will to 

purge the primary taint' [Citations 

omitted. ] . . . Wong Sun thus mandates 

consideration of a statement's 

admissibility in light of the distinct 

policies and interests of the Fourth 

Amendment. " 

The District Court examined the defendant's contentions 

and found that the confessions obtained were neither causally 

connected to the initial arrest nor involuntary. 
In reviewing the District Court's denial of the 

defendant's motion to supress we are restricted to examining 

the record to adduce whether it contains substantial credible 

evidence to support the findings, and to determine whether 

those findings were applied correctly as a matter of law, 

State v. Davison (1980), 188 Mont. 432, 439, 614 P.2d 489, 

493; State v. Grimestead (1979), 183 Mont. 29, 598 P.2d 198. 

It is a general principle of constitutional law that 

statements and confessions made as a result of an unlawful 

incarceration are inadmissible, Taylor v. Alabama (1982), 457 

U.S. 687, 102 S.Ct. 2664, 73 L.Ed.2d 314; Wong Sun v. United 

States, supra. But, there must be some causal connection 

between the original unlawful detention and the statements 

made, Taylor, supra at 690, 102 S.Ct. at 2667, 73 L.Ed.2d at 

319. The District Court, addressing this connection stated 

"the State has established that the statements were not the 

result of an exploitation of that illegality under the 

attenuation analysis of Wong - Sun, supra, Brown v. Illinois 

[supra,] ; [and] Dunaway v. New York [ (1980), 442 U.S. 200, 99 

S.Ct. 2248, 60 L.Ed.2d 8241." We affirm. 

The question under the first prong of this analysis is 

whether the evidence presented at trial was the result of an 

exploitation of the original illegality of the arrest. In 

making this judgment four factors must be considered: (1) the 

presence or absence of timely Miranda warnings; (2) whether 

there was an intervening independent act by the defendant or 

some third party; (3) the temporal proximity of the arrest 

and statement made; (4) the degree of the alleged 

Constitutional violation. Brown, supra at 603-04, 95 S.Ct. 

at 2261-2262, 45 L.Ed.2d at 426-427; Dunaway, supra at 

217-18, 99 S.Ct. at 2259, 60 L.Ed.2d at 839. 
There is substantial credible evidence in the record to 

support the District Court's conclusion that the defendant's 

confessions did not come about as a result of any alleged 

exploitation. First defendant was given ten Miranda warnings 

and executed severa 1 signed waivers thereof. As to the 

factor of " tempora 1 proximity, " the defendant confessed more 

than three days after his initial arrest. This three day 

period is substantially longer than the several hour period 

discussed in Brown and Dunaway. In this regard, the United 

States Supreme Court's approach is to determine whether there 

was sufficient time for the defendant to overcome the 

unsettling affect that the arrest may have initially had, and 

to give him time to gather his thoughts. Three days appears 

to be enough time for this to have occurred. Furthermore, 

the defendant made an additional confession on January 11 in 

the presence of his attorney, five days after the initial 

arrest. This also negates any direct causal link between the 

anxiety causing effect of the arrest and the statement. The 

death threat the defendant made to Carolyn Beach can clearly 

be considered to be an intervening act to sever the chain of 

causality. Furthermore, this threat was a sufficient ground 

to continue the defendant in custody. As to defendant's 

allegation of police misconduct, the District Court 

specifically stated that "there was no police misconduct." 

Again, though the record may support a differing 

interpretation, we find there is substantial credible 

evidence in the record to support this finding. 

Secondly, defendant argues that he was denied his 

l'constitutional" right to release on bail. He alleges that 

Tim Beach went to the Ouachita Parish Correctional Center in 

order to bail the defendant out and was told by Sergeant Via 
and an assistant county attorney that Barry Beach would be 

released the next day, or that it was in the defendant's best 

interest to stay in jail in order to receive psychological 

counseling. These representations, defendant contends, had 

the effect of denying him his right to bail. 

Although the District Court did not specifically 

address this issue, we do not find defendant's argument to be 

persuasive. Assuming, arguendo, that the defendant had a 

constitutional right to bail, he does not show how it was 

denied. Bail had been set for the contributing to the 

delinquency of minors charge at $1,500 and was available to 

the defendant at the time. There is no allegation or 

evidence in the record that Tim Beach or anyone ever tendered 

bail money on behalf of the defendant. Neither the 

defendant, nor any of his representatives made any request 

for his bail to be reduced, or for a release on his own 

recognizance. By not diligently pursuing this right, he 

waived it. Furthermore, we simply cannot believe that the 

defendant was denied any right by several alleged 

misrepresentations on the part of the Louisiana authorities. 

In order for the defendant to pursuasively argue that he was 

prejudiced by an alleged denial of a constitutional right, 

he first must show that the right was actually denied. In 

this regard we do not think it unreasonable to hold the 

defendant to a - de minimus level of diligence in pursuing his 

rights. 

Thirdly, the defendant contends that his confession was 

obtained after he was denied his right to be taken before a 

magistrate or judge to be arraigned and advised of his 

rights. The defendant was origina1l.y incarcerated on the 

evening of January 4, 1983 on the contributing charge and was 
not brought before a magistrate for several days, until after 

he made his first confession. The rule in this regard is the 

"McNabb-Ma 1 lory1' rule which requires the exclusion of any 

confession obtained as a result of "unnecessary delay" in the 

initial appearance. McNabb v. United States (1943), 318 U.S. 

332, 63 S.Ct. 608, 87 L.Ed. 819; Mallory v. United States 

(1957), 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479. The 

McNabb-Mallory rule is not based on any specific 

constitutional provision, but rather is a rule of supervisory 

control over federal courts, and has since been legislatively 

restricted, see 18 U.S.C. 53501 (1972). In State v. Benbo 

(1977), 174 Mont. 252, 570 P.2d 894, though, this Court 

adopted the McNabb-Mallory rule under our own supervisory 

power. The test as set forth in Benbo is the following: 

"When a defendant bases a motion to 

suppress evidence upon a claim that he 

was not provided a prompt initial 

appearance, the burden is first on the 

defendant to show the delay was 

unnecessary. The district court should 

focus on the diligence of the persons who 

made the arrest in bringing the defendant 

before the nearest and most accessible 

judge. While the length of the time 

between arrest and initial appearance is 

not determinative of the 'necessity' of 

the delay, it is a factor to be 

considered. 

"Once a defendant has established the 

delay was unnecessary the burden shifts 

to the prosecution. The State must show 

the evidence obtained during the delay 

was not reasonably related to the delay. 

Absent such a showing the evidence will 

be excluded." (Relying on R.C.M. 1947 5 

95-603 (d) (3), now section 46-7-101, MCA) ; 

174 Mont. at 262, 570 P.2d at 900. See 

also State v. Dieziger (Mont. 1982), 650 

P.2d 800, 39 St.Rep. 1734. 

Addressing this point, the District Court stated "the 

court finds that an unnecessary delay in arraignment was not 

established and even if it is assumed that there was such a 
dely, the State has still demonstrated the vol.untariness of 

the defendant's statements by preponderance of the evidence." 

Under Benbo the defendant has the initial burden to 

show that the delay was unnecessary. This Court has applied 

this first element strictly and denied appeals of lower court 

denials of supression on motions made on this ground when the 

defendant failed to show the "unnecessary" nature of the 

delay. In State v. Plouffe (1982), 198 Mont. 379, 646 P.2d 

533, we held that the defendant's burden in this respect is 

more than just pointing out that the authorities could have 

presented him earlier. See also State v. Lenon (1977), 174 

Mont. 264, 570 P.2d 901. In one case where a similar delay 

was encountered, i.e. approximately five or six days, this 

Court found that the delay was not unnecessary, State v. 

Plouffe, supra. Here, the defendant does not contend any 

more than that the authorities "could have" presented him 

earlier. He fails to address the fact that various charges 

were being raised against him, investigated, and then some of 

them dropped. During this short period of time the Louisiana 

authorities had the right to keep him in custody, but their 

investigations had yet to produce a charge upon which the 

defendant could be presented. Furthermore, the period of 

time involved was not so long as to create any presumption of 

unreasonableness. We hold that the first element of Benbo 

was not met and that the defendant's statements should not be 

suppressed on this ground. 

As to the above point, the State contends that the 

Aenbo rule should not be applied here because defendant was 

incarcerated in Louisiana and at that time subject to 

Louisiana law. The State points to Art. 230.1. of the 

Louisiana Code Crim.Proc. (West 1967), which provides that 
authorities have a seventy-two hour period before they are 

required to bring a suspect before a judge. In that statute, 

the remedy for the failure to do so is the release of the 

suspect. The statute specifically provides that a violation 

thereof does not require the automatic suppression of 

incriminating statements. 

The general rule is that, as to questions of evidence, 

the law of the forum controls, 16 Am.Jur.2dI Conflict of Laws 

S131. This question is best characterized as being one of an 

application of the exclusionary rule, i.e. a rule of 

evidence. Thus Montana law should control. The State 

proposes that what actually is involved here is an 

application of substantive law, in which this Court should 

apply Louisiana law. This argument is not compelling for two 

reasons; first, the remedy requested by the defendant is not 

a remedy provided for by Louisiana law, but rather is a 

remedy provided by Montana evidence law; and secondly, we 

feel that whenever possible, defendants should be entitled to 

the fullest protection of Montana law when appearing in its 

courts. 

Finally, the defendant argues that the State failed to 

meet its burden of proving that the statements made by the 

defendant were voluntary. As stated above, when a defendant 

shows that his incarceration was initially il lega 1, the 

burden shifts to the State to show that the Fifth Amendment 

was not violated. 

In State v. Camitsch (Mont. 1981), 626 P.2d 1250, 1253, 

38 St.Rep. 563, 565, we stated: 

"In determinining whether a confession 

should be suppressed, the trial judge 

must decide whether or not it was 

voluntary. [Citation omitted.] The 

determination of voluntariness depends 
upon the 'totality of the circumstances,' 

with the burden of proof on the State to 

prove voluntariness by a preponderance of 

the evidence." 

See also State v. Mercer (Mont. 1981), 625 P.2d 44, 47, 38 

St.Rep. 312, 315; State v. Allies (Mont. 1980), 621 P.2d 

1080, 1086-87, 37 St.Rep. 2089, 2097. The issue of 

voluntariness is largely a factual question committed to the 

district court's discretion. We will not reverse that court 

if its order is supported by substantial credible evidence, 

State v. Davison, supra, at 439, 614 P.2d 493; State v. 

Grimestead, supra at 29, 598 P.2d at 202. This case is 

especially one where the resolution of the voluntariness 

issue turns on the credibility of witnesses, and this Court 

"must defer to the district judge who is in a superior 

position to judge the credibility of [those 

witnesses] . . . " State v. Camitsch, 626 P.2d at 1253, 38 

One factor, not conclusive, supporting voluntariness is 

the presence of timely and complete Miranda advisements prior 

to the incriminating statement, State v. Allies, supra at 

112, 606 P.2d at 1050. The record indicates that the 

defendant received ten Miranda warnings between January 4 and 

January 11. Eight of these advisements and associated 

waivers were directly related to questioning in connection 

with the Nees murder. The defendant signed several waivers 

thereof. There was no evidence adduced that the defendant 

possessed less than average intelligence, or that by reason 

of mental j-mpaiment he was incapable of understanding the 

Miranda warnings. Sergeant Via and Commander Calhoun both 

testified that the defendant appeared calm, coherent and free 

from the influence of intoxicants during any of the 
interviews. The questioning sessions were not long, arduous, 

or designed to take advantage of the defendant's situation or 

fatigue. Via and Calhoun testified that no promises of 

benefit or threats of harm were made to the defendant. 

Particularly, defendant's allegation, disputed by Calhoun and 

Via, concerning Calhoun' s "fry" comment was obviously not 

credited by the District Court. 

Furthermore, and most importantly, defendant made a 

statement on January 11 in the presence of his attorney and 

after opportunity to confer with him. Presumably, the 

Louisiana attorney had advised the defendant of his rights 

and consequences of waiving the same, and was diligent in 

protecting the defendant from coercion. The defendant has 

made no allegation that his Louisiana attorney failed in this 

regard and thus we have little difficulty holding that this 

confession was voluntary. 

On this point, the District Court found "The statements 

of the defendant were voluntary'' and "the voluntariness of 

the statements was obvious." The totality of the 

circumstances indicates the District Court did not err. 

Issue - #4 

Defendant argues that due process requires that a 

conviction of deliberate homicide must be based on an 

information that charges, and instructions to the jury that 

require, a finding that the defendant possessed the specific 

mental state to kill the victim; in other words, that the 

element of mens rea is constitutionally required. He 

contends that the statutory element of purposely and/or 

knowingly does not satisfy this requirement. 
This Court has previously addressed and resolved this 

question. In State v. Powell (Mont. 1982), 645 P.2d 1357, 39 

St.Rep. 989, we rejected this argument. See also State v. 

Lemmon (Mont. 1984), 692 P.2d 455, 41 St.Rep. 2359; and State 

v. Weinberger (Mont. 1983), 665 P.2d 202, 40 St.Rep. 844. The 

scienter element of section 45-5-102(a) defines the crime of 

deliberate homicide with sufficient specificity to obviate 

any claim of unconstitutiona 1 vaugueness. State v. Sharbono 

(1979), 175 Mont. 373, 563 P.2d 61. 

Issue - #5 

The defendant received the maximum a llowable sentence, 

one hundred years, and was determined to be ineligible for 

designation as a non-dangerous offender, or parole. 

Defendant argues that this sentence was not based on any 

credible evidence presented at the sentencing hearing, or 

contained in the pre-sentence report, but rather was 

motivated by the District Court's desire for vengence on 

behalf of the victim's family. The District Court stated 

that it imposed this onerous sentence because of its belief 

that defendant should be removed from society. 

In either case, defendant argues that this is violative 

of Article 11, section 28 of the Montana Constitution, which 

requires that "laws for the punishment of crime shall be 

founded on the principles of prevention and reformation"; and 

section 46-18-101, MCA, which provides that the policy behind 

sentencing is the rehabilitation, if possible, of convicts. 

In the defendant's mind, his sentence was not based on any 

principle of prevention, reformation, or rehabilitation, and 

thus an abuse of discretion by the District Court. 
We find no merit in defendant's argument. First, 

Article 11, section 28, Mont. Const. allows a district court 

in its discretion to base a sentence upon the principle of 

prevention of future crimes. This includes the power to 

remove a person from society, as the District Court found 

necessary here. 

Secondl-y, the District Court's sentence was within the 

permissible statutory range, and, in the absence of clear 

abuse of discretion is properly reviewed by the Sentence 

Review Division. There was no clear abuse of discretion in 

this case and thus this is a matter for the Sentence Review 

Board. See State v. Watson (Mont. 1984), 686 P.2d 879, 41 

St.Rep. 1452; and State v. Holmes (Mont. 1983), 674 P.2d 

1071, 40 St.Rep. 1973. 

The judgment and sentence are affirmed. 

I 

We concur: ,--" 7' 

Justices 
Mr. Justice John C. Sheehy, specially concurring: 

I agree with the result. The question of voluntariness 

is ended in the fact that Beach confessed in the presence of 

his attorney. All the other issues fade in that fact.