No. 84-373 INTHE SUPREfE COURT OF THE STATE OF IWNTANA

THE STATE OF MONTANA,Plaintiff and Respondent,

-vsBARRY ALLAN BEACH, Defendant and Appellant.

APPEAL FROM: DistrictCourt of the FifteenthJudicialDistrict, 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

ClerkMr. 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 inthe 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 tothe 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 ifhe could inspect the apartment. According to Stutts, the defendant consented tothe 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 thecontributing 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 hisarrest. 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 tokill 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 alsotold Commander Calhoun that the defendant was a suspect in the Nees murder inMontana. The Louisiana authorities contacted the Roosevelt County Sheriff and confirmed Mrs. Beach's report. They also indicated tothe Roosevelt County Sheriff thatBarry Beach was a suspect inthreemurders inLouisiana. On January 6, 1983, Louisiana investigators began to question Barry Beach. Sergeant JayVia firstinterviewedthe defendant after giving him Miranda warnings and having a waiver signed. Sergeant Via testified at the supression hearing thattheJanuary 6interview 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.Atthe

### timeof the firstinterview, defendant was still being held on the contributingcharge. 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 authorizedcontinued custody of the defendant. Bail remained set at $1,500, the amount previously 

### set forthe contributingtothe delinquencyof minors charge. That afternoon, Tim Beach came tothe Ouachita Parish Correctional Center to post bail for the defendant. Tim Beach spoke to Sergeant Via, and Via testified that he told Timthathe had a right topostbond, but thatbecause of the deaththreats, thedefendant's step-mother and fatherdesired thatBarry Beach remain incustody. 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 toTimBeach. Via arranged 

### a phone conversationbetween TimBeach 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 callthat included Sergeant Via, tohismother, Mrs. Clincher, who atthat

### timeindicated that she was "content" with the defendant remaining injail. She testified that she assented tothisbecause SergeantVia had assured her that the defendant would be provided with psychological help, and that he would be released soon anyway. Tim Beach also testified thathe remembered talkingto

an assistant district attorney who told him that the defendant would be released if taken back toMontana. The assistant district attorney allegedly told Tim Beach towait in the courthouse for the defendant's release. Tim did so, but severalhours laterreceived word thatothercharges

### were being brought against the defendant, and that he was also being investigated for murder. Tim Beach could not saywhether these lasteventsoccurred 

### on January 6 or7, 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 notyetbeen taken before a judge ormagistrate foran initialappearance, arraignment, orproceeding. 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 inMontana. Sergeant Via again did the questioning. He gave the defendant Miranda warnings and received a signed waiver thereof. Hetestified 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 2:30p.m. thedefendant authorized SergeantVia 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, aftergivingmore 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 firstconducted the

### test, and then accused him of lying. The defendant also testified that Commander Calhoun was abusive, and threatened him, telling himthathe was going to "fryin theelectricchair." Commander Calhoun denied using any such tactics, stating that allhe did was administer the test and tellBarry Beach thathisresponses indicated deception. The Commander further testified that afterhe told the defendanthis answers were apparently untruthful, Beach broke down and began totalkabout theNeesmurder. 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 themurder 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 thismeeting, thedefendant 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 toincarceratehim. 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, 1983hisMontana attorneys filed a motion todismiss the youth court action. The basis for themotion

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'smotion 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 inAugust 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 toa 

### 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, presentingthe following issues forreview: (1)That the 

### District Court did not have jurisdiction totryBarry Beach fordeliberatehomicide. (2) That theDistrictCourt erred innot changing venue to

### a county outside of theprimary news coverage area of the

same media that prejudicially affected his rights toa fair trialin Roosevelt County, Montana. (3) That the District Court erred in not suppressing theconfession Barry Beach made totheLouisiana authorities.(4) That the District Court erred in not instructing thejury that

### itmust find thedefendantpossessed a specific mental state, inordertoconvict 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 totryhim. As authority, he points tosection 41-5-203, MCA, which states: "Jurisdiction of thecourt. 

### (I)Except as provided insubsection (2), thecourthas exclusive original jurisdiction of all proceedings under theMontana Youth Court Act in which a youth 

### is alleged tobe 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 stateorordinance of any city ortown other than a trafficor fish and game law prior tohaving become 18years of age.

## " (Emphasisadded.) and tosection 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 inthe following cases: "(1) at the 

### time the proceedings are transferred to adult criminal court;



### "(3) in

### any event, atthe 

### timetheyouth 

## ---- reachesthe

### age of 21years." (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

cannever 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 amurderwhen he was 154 years old. His involvement in the murder was not discovered until several years laterwhen he was 22 years of age and had voluntarily confessed. The defendantargued 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 jurisdictionof 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 sincehe had committed

a crime he came under the jurisdiction of the District Court pursuant toArt. VII, Sec. 4Mont. 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 advantageof 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 thathe cannot

### now be prosecuted anywhere." 296 N.W.2d at 407 This Court went on to further quote from the Minnesota courtas follows:

### "We believe it would ridiculous to say that if a 

### person of 16 or 17years of age commitsamurder and escapes detectionor 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 committedby the juveniledefendant. Itmerely 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 Constitutionand 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 

### changeofvenue, 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~i1c?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 

## -- --



# ..." (Emphasisadded.) 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 ofvenue contending that the sameprejudice existed inValley 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 tobe had in a county non-adj~ c:clrit: t:o l:l~c? (3

### rigina1 county. The District Court denied the defendant's secondmotion 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 selectionof 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 amotion 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 secondmotion for change of venue. In



### so ordering, the District Court acted reasonably inbalancing the competing considerations of cost and inconvenience to Roosevelt County 

### of holding a trial at a distantvenue,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 trialmay 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 ofvenue expresslyprovided 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 thevenue ofa criminal trial to

a county "notadjacent" to the original county because a fair trial could not be had in any adjacent county. Addressing thatpoint, this Court stated: "This court's sole purpose in directing that relators new trial be had in same county 'not adjacent' to Toole Countywas 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 iswhere a fair trialmay be had. Absent an abuse of discretion,a district court's determination thereofwill not be disturbed. We affirmon thispoint.

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 uponwhich he contends that the confessions are inadmissible. They are: A. That such statements were obtained as a result of 

### defendant's arrest in hishomewithout awarrant. B. 

### Such statements were obtained after the defendant

was denied his constitutional right to release onbail. 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 ofhis rights.

### D. That the State failed its burden of proving the voluntarinessof 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 (9thCir. 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 FifthAmendment: "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 confessionsobtainedwere neither causally connected to the initial arrestnor involuntary.

### In reviewing the District Court's denial of the defendant's motion to supress

### we are restricted to examining the record to adducewhether 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),183Mont. 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,Taylorv. 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]Dunawayv. New York [

### (1980), 442U.S. 200, 99 S.Ct. 2248, 60L.Ed.2d 8241." We affirm. The question under the first prong of this analysis is whether the evidencepresented at trial was the result of an exploitation of the original illegality of the arrest. In making this judgment four factorsmust 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, 60L.Ed.2d at 839.There 

### is substantialcredible evidence inthe record to support the DistrictCourt's conclusion thatthe defendant's confessions did not come about as a result of any alleged exploitation. Firstdefendant was given ten Miranda warnings and executed severa1 signed waivers thereof. As to the factor of 

## "tempora

### 1proximity,

### " the defendant confessed more than three days after his initial arrest. This three day period 

### is substantially longer than the several hour period discussed inBrown and Dunaway. In this regard, the United StatesSupreme Court's approach 

### istodeterminewhether there

was sufficient 

### time for the defendant to overcome the unsettling affectthatthearrestmay have initiallyhad, and togive him time togather histhoughts. Three days appears to be enough 

### time for this tohave 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 arrestand the statement. The death threat the defendant made toCarolyn Beach can clearly be considered tobe an intervening actto

### sever the chain of causality. Furthermore, this threatwas a sufficientground 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 intherecord tosupportthis finding. Secondly, defendant argues that he was denied his l'constitutional" right to release on bail. He alleges that Tim Beach went tothe Ouachita Parish Correctional Center in order tobail the defendant out and was told by Sergeant Viaand an assistant county attorney that Barry Beach would be released thenext day, orthat

### it was inthedefendant'sbest interest to stay in jail in order to receive psychological counseling. These representations, defendant contends, had theeffectof denying him hisrighttobail. Although the 

### District Court did not specifically addressthisissue, 

### wedo not find defendant's argument tobe 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 intherecord thatTimBeach 

### 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 thepart of the Louisiana authorities. In order forthedefendant topursuasively argue thathe 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 toa 

## - de minimus levelof diligence inpursuing his rights. Thirdly, thedefendant contends thathisconfession was obtained after he was denied his right tobe taken before a magistrate or judge to be arraigned and advised of his rights. The defendant was origina1l.y incarcerated on the eveningof January 

### 4, 1983 on thecontributingcharge and wasnotbrought before a magistrate for severaldays, until after he made hisfirstconfession. The ruleinthisregard 

### isthe "McNabb-Ma

### 1 lory1' rule which requires the exclusion of any confession obtained asa result of "unnecessary delay" inthe initialappearance. 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 constitutionalprovision, but rather

### isa ruleof supervisory control over federal courts, and has sincebeen 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 thediligenceof thepersonswho made the arrestinbringing thedefendant 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 tothe prosecution. The Statemust show the evidence obtained during the delay was not reasonably related tothe delay. Absent such a showing the evidence 

### will be excluded." (Relyingon R.C.M. 1947

### 5 95-603(d)(3),now section 46-7-101, MCA) ; 174 Mont. at262, 570 P.2d at900. 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 therewas such adely, the State has 

### still demonstrated the vol.untariness of thedefendant's statementsby preponderance of theevidence." Under Benbo the defendant has the initial burden to show that the delaywas unnecessary. This Court has applied this firstelement strictlyand denied appealsof lower court denialsof supression on motions made on thisground 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 

### inthis respect 

### is

more than just pointing out that the authorities could have presented him earlier. See also Statev. 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 toaddress the fact that various charges



### werebeing raised againsthim, investigated, and then some of them dropped. During this shortperiod of 

### timetheLouisiana authorities had the right tokeep him in custody, but their investigations had yet to produce a charge upon which the defendant could be presented. Furthermore, the period of 

### timeinvolvedwas not solong astocreate any presumption of unreasonableness. We hold that the first element of Benbo

was not

### metand thatthedefendant's statements should notbe suppressed on thisground. 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 tobring 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 incriminatingstatements. The general rule is that,as to questions of evidence, the lawof the forum controls,16Am.Jur.2dI Conflict ofLaws S131. This question isbest characterized asbeing 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. Thisargument isnot 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 illega1, the burden shifts to the State to show that the FifthAmendment

was notviolated. In Statev. 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 'totalityof the circumstances,' with the burden of proof on the State to prove voluntarinessby apreponderanceof 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 completeMiranda advisementsprior to the incriminating statement, State v. Allies, supra at 112, 606 P.2d at 1050. The record indicates that the defendant received ten Miranda warningsbetween 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-mpaimenthe was incapable of understanding the Miranda warnings. Sergeant Via and Commander Calhoun both testified that the defendant appeared calm,coherentand free from the influence of intoxicants during any of the

### interviews. The questioning sessionswere not long,arduous,

or designed to take advantageof the defendant's situationor 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 theDistrictCourt. 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 confessionwasvoluntary. On thispoint, the DistrictCourt found "The statements of the defendant were voluntary'' and "the voluntariness of the statements was obvious." The totality of the circumstances indicatestheDistrict Courtdid 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 knowinglydoesnot satisfy this requirement.

### This Court has previously addressed and resolved this question. In Statev. Powell (Mont. 1982), 645 P.2d 1357, 39 St.Rep. 989, we rejected this argument. See also State v. Lemmon (Mont. 1984), 692P.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 unconstitutiona1 vaugueness. Statev. Sharbono

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

Issue #5 

## - The defendant received the maximum allowable 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 isviolative of Article 11, section 28 of the Montana Constitution,which requires that "laws for the punishment of crime shall be founded on theprinciplesofprevention and reformation";and section 46-18-101,MCA,which provides that thepolicy 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 discretionby the DistrictCourt.

### 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 necessaryhere. Secondl-y,the DistrictCourt's sentencewaswithin 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.