No. 80-407 INTHE SUPREME COURT OF THE STATE OF MONTANA 1981

THE STATE OF MONTANA, Plaintiff and Respondent,

VS

# . MICKEY GENE HANSEN, Defendant and Appellant.

Appeal from: DistrictCourt of theNineteenth Judicial District, Inand fortheCounty of Lincoln. Honorable Robert M. Holter, Judge presiding. Counsel of Record: For Appellant: Hood and Sherwood, Missoula, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana William Douglas, CountyAttorney, Libby, Montana

Submitted on briefs: June 10, 1981 Decided: Sept. 15, 1981 

## 151981 Filed: -

ClerkMr. Justice John Conway Harrison delivered the Opinion of theCourt. Defendant, Mickey Gene Hansen, appeals from a felony conviction entered in the District Court of the Nineteenth Judicial District, State of Montana, in and for the County of Lincoln. Four issues arepresented on appeal: 1. Whether the District Court erred inallowing the State to use, for the purposes of impeachment, statements made by the defendant when entering a guiltyplea which was laterwithdrawn by the court. 2. Whether the District Court erred in admitting evidence, over defendant's objection as to relevancy, State'sExhibitNo. 1, amug shotphotograph of defendant. 3. Whether the DistrictCourt erredwhen it refused to review police reports to determine if the reports contained exculpatory material and were, therefore, discoverabletodefendant under section46-15-302, MCA. 4. Whether the District Court erred in denying defendant's motion for a change of venue and motion for individually sequestered voir dire. This is the second time this case has been before this Court. On a previous appeal, the case was reversed, albeiton other grounds. Statev. Hansen (1980), Mont.



## , 608 P.2d 1083, 37 St.Rep. 657. The factsof the case

arecontained in thatopinion and willnotbe setforthhere exceptwhere it is necessary todo soindiscussing an issue thathasbeen raised. To discuss the first issue it is necessary to consider the background of the facts leading to the problem raised by it. Defendant was arrested on September 6, 1978,and an informationwas filedcharginghim with sexual intercourse without consent. Defendant was arraigned on that charge, plead not guilty, and trialwas setfor January 10, 1979. On January 2, 1979, defendant, with counsel, moved to withdraw hisplea of not guilty and enter a plea of guilty. During these proceedings, in response toquestions from the court, defendant denied having sexual intercourse with the complaining witness. At that time, defendant's privatelyretained counselmoved thecourt towithdraw ascounsel, and the motion was granted. After further conversations in court, defendant admitted the sexual intercourse, and the court allowed his plea of guilty. The record shows that defendant's counsel then withdrew hismotion towithdraw as counsel. Sentencingwas set for January 15, following consideration of a presentence investigation by the court. That presentence report contained the defendant's denial of any sexual intercoursewith the complainingwitness. The court,

on January 15, 1979, because of the report, entered a not guiltyplea for defendant and setthe trial for February 6, 1979. On January 19, 1979, the District Court appointed a substitute counsel for defendant, and the trial was reset for March 6, 1979. Following trial and guiltyverdict on March 8, 1979, defendant was sentenced to forty years in the stateprison and designated a dangerous offender for parolepurposes. Aspreviouslynoted, thisCourt reversed thatconviction. A new trial was set for May 6, 1980, which was continued until June 17, 1980, when defendant hired new counsel. New counsel presented motions for a change ofvenue and to require the production of evidence on June 6, 1980. The change of venue motion was denied thatday and a portion of the motion to produce the reports of investigatingofficerswas denied later. Following trial, a guilty verdict was returned on June 18, 1980, and this appeal resulted. In his first issue defendant contends the District Court erred inallowing theStateto introduce, for impeachment purposes, statements defendant made while entering a guilty plea which was later withdrawn by the court. This issuedirectlyconcerns answers defendant gave toquestions posed by the trial court when he pleaded guilty on January 2, 1979. It raises for the first time the problem of the

use of the statements under Rule 410, Mont.R.Evid., which provides: "Offer to plead guilty; nolo contendere; withdrawn plea of guilty. Evidence of aplea of guilty, laterwithdrawn, or apleaof nolo contendere, or of an offer toplead guiltyor nolo contendere to the crime charged or any other crime, or of statements made in connection with any of the foregoingpleas or offers, is not admissible in any civil or criminal action, case, or proceeding against the person who made the plea or offer. This rule shall not apply to the introduction of voluntary and reliable statements made in courton the record inconnection with any of the foregoing pleas or offers where offered for impeachment purposes or in a subsequent prosecution of the declarant for perjury or falsestatement." At the second trial, following defendant's testimony thathe didnot have sexual intercourse with thecomplaining witness without her consent, the State used the statements made on January 2, 1979, for impeachment purposes, thereby showing that on a previous occasion the defendant had admitted to such sexual intercourse without consent. Ourquestion is whether such statements are admissible under the lastsentence of Rule 410, M0nt.R.Evi.d. The statementswere made in connection with a withdrawn guilty plea and were

used for impeachment purposes and someet those requirements of the statute. The remaining question 

### is whether or not the statements were "voluntary and reliable" within the meaning of the rule. Hutto v. Ross (1976), 429 U.S. 28, 97 S.Ct. 202, 50 L.Ed.2d 194, is relied on by defendant. It should be noted that the federal rules of evidence do not allow use of

statements except in perjury hearings, as contrasted to Montana's Rule 410, which allows the use of the statements for impeachment purposes as well as for a prosecution for perjuryor false statements. In Hutto, the Court said: "The test is whether the confession was 'extracted by any sort of threats or violence, [or] obtained by any direct or implied promises, however slight, [or] by the exert ion of any improper influence.

### '" 429 U.S. at 30, 97 S.Ct. at 203, 50 L.Ed.2d at 197. In many ways the facts of Hutto are comparable to those here. In Hutto after entering a plea bargaining agreement with the prosecuting attorney with regard to a criminal charge under Arkansas law, the defendant, at the prosecutor's request, made a statement confessing to the crime of embezzlement. The confession was made in the presence of the defendant's attorney, who advised the defendant of his Fifth Amendment privilege and informed him that the terms of the plea bargaining were available regardless of the defendant's willingness to comply with the request for confession. Subsequently, the defendantwithdrew the plea bargain, retained new counsel, and demanded a jurytrial. In the course of that trial the state court ruled that the defendant had confessed voluntarily and admitted hisstatement atthe trial. The defendant was convicted. Subsequent appeals took the defendant in Hutto through the state and federal court systems to the Supreme Court of the United States. The United StatesSupreme Court unanimously reversed the Circuit Court of Appeals and held that (1)the confession was not per se inadmissible in a criminal trialmerely because it was made subsequent to and

asa result of a plea bargaining agreement thatdid not call for such confession, and (2) that the confession was not involuntary since it had been made in the presence of defense counsel who had informed the defendant that the

terms of the plea bargain were available regardless of his willingness to comply with the prosecutor's request for the confession. Such standards inHutto areproperly applicable here. See also, Jenkins v. Anderson (1980), 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86; Raffel v. United States (1926),271U.S. 496, 46 S.Ct. 566, 70 L.Ed. 1054. In this case defendant was appearing for the purpose of changing a not guiltypleatoa guiltypleapursuant toa plea bargain in which the prosecution would not seek an increased sentence under the persistent felony offender laws. At the January 2, 1979, proceeding, defendant was represented by private counsel. The court advised defendant of the charge against him, the maximum punishment that he could receive, and hisright toa fair, speedyand impartial trial. At that stage of the proceedings, defendant apparently became confused or reluctant to proceed, or did not understand the concept of a lesser included offense referredto by the trial judge. A recess was taken and upon reconvening, the court continued to advise defendant of his rights. The following is an excerpt from the transcript of theJanuary 2, 1979, proceeding: "[DEFENSE COUNSEL]: Your Honor, atthispoint I believe that I am going tohave tomove to withdraw as counsel for this individual, in view of the fact that to proceed to a trial of this matter would incur a breach of my ethical obligations. The attorney/client privilegehas dropped down toapoint where I feel I couldn't represent him. "THE COURT: I understand, counsel and I am going to permit the withdrawal. I am going to appoint someone. This matter is set for trial-- "THE DEFENDANT: Ya, I did it. "THE COURT: NOW, Mr. Hansen, it is not the purpose of this proceeding to try to get a confession out of you. That isn't the purpose of it. But the purpose 

### is to make sure you understand your rights fully and completely and that you aren't pleading guilty to a crime that indeed you feel you should have a defense to. And it puts counsel in a very, very strange place. And if you wish other counsel I will get you other counsel. Because sometimes people don't seeeye toeye on these things. But it isn't the purpose of this type of proceeding to try to get you to confess. In other words, I really don't care. It doesn't make any difference tothe Court, but I want tobe sure that if indeed you enter a plea, asyou have done, that the plea is informed and willing on your part and you arenot going to sayforever more 'Iwas railroaded.' That is thepurpose of thisthing. And not any other purpose. These arerightsof yours under the United States Constitution that we are here dabbling with thismorning, and your counsel knows and the Judge presumably knows them, and 

### we don't want toextract from you a plea that you don't feel is proper. If I don't ask you these questions and establish in my own mind the fact that something did or did not occur then I am not doing my job, you see. And that is why I am asking you them. So if you do not agreewithyour counsel, say so. Because he is not embarrassed. He has been in this courtroom alot, in courtrooms before, and he understands and he knows. And perhaps you don't see eye to eye at thisstageof the game, and that 

### is two different people in this world reacting in different ways todifferentthings. So I am not trying to get you to say 'Yes, I did it' or 'No, I didn't.' I am just trying to ask you if in your own mind you feltthattheoffensewas-- inother words thatyou didthe offense, that yes, indeed, the probability 

### is thatyou are guilty. "THE DEFENDANT: Yes, I am guilty. "THE COURT: And if you had a trial by jury the probabilitywould be very great thatthey would find you guilty. That 

### is what I am trying to establish and that 

### is why I am askingyou thesequestions. And I don'twant toembarrass you, but they must be there, so with that inmind do you wish toproceed, Mr. Hansen? "THE DEFENDAivT: Yes. "THE COURT: Now, I did ask you in regard to thismatter, you did have sexual intercourse with thisperson named? "THE DEFENDANT: Yes. "THE COURT: And that person was not your spouse? "THE DEFENDANT: No. "THE COURT: And shedid not consent tosuch intercourse? "THE DEFENDANT: No. "THE COURT: Is there anything Mr. Hansen that--I have explained toyou thismatter of representation and I want you well represented. Is there anything about thatat thistimethatyou believeyou want tomake a statementtotheCourt about? "THE DEFENDANT: No. "THE COURT: And subject to the various explanations then you are freely and voluntarily entering your plea in this matter, is thatright? "THE DEFENDANT: Yes. "THE COURT: I am going toaccept it. I know sometimes it is difficult to understand counsel in some of these cases and they try to make themselves known, but we depend somewhat on the counsel--in factwe depend agreat deal on the counsel in these matters, Mr. Hansen. And because I know the character of your representation I know that he would tryvery hard towork inyour interests, your best interests. But that 

### is why I am asking you that question, because even the best lawyer occasionally doesn't quite see eye to eye with hisclient. You understand that? "THE DEFENDANT: Yes. "THE COURT: And you would feel you are on the same wave lengthnow? "THE DEFENDANT: Yes." Aspreviously noted, the above discussion took place before the firsttrial and was not used by the State until the second trial after defendant, in his direct testimony, testified that he had never had sexual intercoursewith the complaining witness. With that, the State argues that the foundation for impeachment under Rule410, Mont.R.Evid., was properly laid. Defendant arguesthatthisCourt should adopt any one of the following four per se rulesconcerning thevoluntariness of the questioned statements: (1)since these statements were given in connection with a plea that the court later allowed tobe withdrawn, theywere made involuntarily; (2) since the statements were given in connection with a plea bargain agreement, which 

### is in effect a promise, the statements were involuntary; (3) since defendant was not warned by thetrialcourt atthe time of the change of plea of hisFifthAmendment privilege against self-incrimination, the statements were involuntary; and (4) since defendant's counsel withdrew prior to the time defendant made the statements, the statementswere involuntary. Inreply, theStateargues thatwe should examine the totalityof the circumstances todeterminewhether theques-tioned statementswere voluntary and reliable. Itmaintains that, given the quality of the explanation of rights and procedure by the trialjudge, the complete lack of coercive environment, and the lack of any inducement to defendant, the statement was voluntary and reliable. Therefore, the State contends, the statement was admissible to impeach the testimonygivenby defendant attrial. In determining the issue 

### we again turn toRule 410, Mont.R.Evid., and to the commission comment on that rule. The commission noted the difference between the federalrule and theMontana rule: "This rule is identical to a version of Federal Rule 410 conditionally adopted by Congress. The condition was that the rule would be superseded by any amendment to the Federal Rules of CriminalProcedure inconsistent with the rule. Such an amendment was made in Rule 611(e)(6), Federal Rules of Criminal Procedure, which was later substituted for this version of the rule. The Commission prefers the superseded version of the rule because it allows use of statements whether or not made under oath, on the record, or in the presence of counsel, and most important, for impeachment purposes. The Uniform Rule 410 (1974)is similar tothe first sentence of the rule but does not include a provision similar to the second sentenceof therule. "This rule allows an accused to offer to plead guilty or nolo contendere or to withdraw such plea without either action being used against him in any subsequent trial. This 

### is intended to aid the plea bargaining process, under similar policy considerations giventooffersof compromise under Rule 408, and to allow highly prejudicial evidence to be excluded under considerations that the reasons for offering toplead or withdrawing pleasof guiltyand nolo contenderewould not be understood by ajury and would almostpreclude a fair trial. The second sentence of thisrule is added toinsure thattheaccused does not abuse this rule and contradict earlier statements. See Harris v. New York, 401 U.S. 222 (1971). The trial court 

### is required to insure that the statements were 'voluntary and reliable' and if contradicted,the statements may be introduced for the purposes of impeachment or prosecution for perjury. "Existing Montana law has not specifically dealtwith the problem of offerstoplead or withdraw pleas, although a plea of guilty that 

### is not withdrawn 

### is admissible in subsequent proceedings. Sikora v. Sikora, 160 Mont. 27, 33, 499 P.2d 808 (1972). Therefore this rule is new to Montana law. It should be noted thatMontana law does not allowpleas of nolo contendere; however, such a plea 

### is included inthe rulebecause it has been recognized by Montana courts in a case where such a plea was entered in federal court and was relevant to a state case. State ex rel. McElliot v. Fousek, 91 Mont. 457, 461, 8 P.2d 795 (1932)." It is obvious from the above comment that the commission chose to allow certain statements given in connection with guilty pleas and plea negotiations to be used for impeachment purposes. Rule 410 is an exception to the general rule that admissionsby a party-defendant areadmissible. Thisexception, according tothecomment, was granted to encourage the use of plea bargaining agreements. But, the rule was not designed toallow a defendant toabuse the pleabargain process with no penalty. Here defendant 

### is no stranger in court, although reading his testimony atthe hearing on January 2 one would think it had been his firsttime incourt. The trialcourt carefully and extensivelyquestioned defendanton thevoluntariness of theplea, his understanding of the charge, the consequences of the plea and thefactualbasis for hisplea. When defendantwent back on thepleabargaining arrangements againsthiscounsel's wishes, counsel requested the court to withdraw as counsel because of a breach of professional ethicsthathe feltwas violated. The court stated it would getdefendanta new attorney, and defendant thenvoluntarily admittedthathehad committed theact.Clearly defendant abused the plea bargaining process here, and we sustain the decision of the trial judge in allowing the statement tobe introduced. Inreply todefendant's four per se rules againstthe totalityof thecircumstances argued by theState, theState notes that it was defendant here who moved the District Court to allow him towithdraw his not guilty plea and to plead guilty, and tomove the District Court to accept the plea of guilty, defendant must establish that the guilty pleawas being knowingly and voluntarilyentered. The court must thoroughly explore the voluntariness on the part of a defendant prior to accepting a guilty plea. See section 46-12-204, MCA. In State v. Azure (1977), 175 Mont. 189, 573 P.2d 179, this Court noted that the best method to establish voluntariness is on a factual basis and that this should be done at the time of the entering of the plea. Here the trial judge did all in his power to establish a factual basis for the plea. Defendant admitted that he had sexual intercourse with the complaining witness, that she was not his spouse and that the sexual intercourse had taken place without her consent. A recent case of thisCourt, Statev. August Lee White (1981), 

## , Mont. -1 

### -P.2d I



## - St.Rep. (No. 80-351, decided August 31, 1981), noted that State v. Azure, supra, requires the record to disclose the defendant has full understanding of the crime towhich he pleads. Absent such understanding, thisCourt will not presume that the plea was made "with an understanding of the charge." The State agrees that Azure requires a defendant have full knowledge of the chargeadmitted by pleadingguilty. We are satisfied that the present case meets the requirements of Azure and that the disparate outcomes of this case and Azure 

### - are mandated by the different circumstances of each case. Finally we note that, aspreviously discussed, the record in this case demonstrates that defendantwas sufficientlyinformed toenter a plea thatwas "voluntarywith understanding of the charge," section46-12- 204, MCA. InAzure the defendant was not so informed. We findno merittodefendant's contention here thathe was not properly informed and sustainthe trialcourt's admission of thedisputeevidence. The next issue raised 

### is whether State's Exhibit No. 1, a photograph of defendant, was properly admitted by the trialcourtover defendant's objection. Defendant 

### cites State v. Bischert (1957), 131Mont. 152, 308 P.2d 969, for supportof hisposition. Itstates: 

# ".

. . photographs stand on the same footing asdiagrams, maps, plans and the like, and as a general rule, whenever relevant todescribe a person, place, or thing, they are admissible for the purpose of explaining and applying theevidence and assistingthecourt andjury inunderstanding the case. "Photographs that are calculated to arouse the sympathies or prejudices of thejury are properly excluded, particularly if they are not substantially necessary or instructiveto show material facts or conditions." 131 Mont. at159, 308 P.2d at973. Here, theState introduced aphotograph taken atthe timeof defendant's arrest. The exhibitwas amug shotof defendant in an unkept, messy state. Defendant contends that the photo was irrelevant and did not go to showing any material fact. Bischertwas a homicide case involving a smallchild.

### The fact situation there is not applicable to the fact situation here. In this case the photo was taken at the time of defendant's arrest. It was admitted aspart of the identification testimony of the victim and was corroborative of the victim's ability to identifydefendant both at trial and at the time of the incident. A view of the photograph certainlydoes not arouse anyone's passion or prejudice, nor is it inflammatory. Therefore,we find no merit to this issue. The next issue for review iswhether the trial court erred in refusing to review police reports to determine if they contained exclupatory material and were, therefore, discoverable to the defendant under section 46-15-302, MCA. Prior to trial defendant filed amotion to produce, pursuant to section 46-15-302, MCA, asking to inspect and copy "all papers, documents, oral or written statements 

# .

# .."in the hands of the prosecutor. At a hearing on the motion the State took the position that all police reports were work product and not discoverable. Defendant relies on section 46-15-302(2), MCA,which provides in part: "(2) 

# . .

# . This subsection does not apply to thework product of the prosecution, which is documents drawn up by law enforcement officials for internal communications and law enforcement officers' field notes, except that any exculpatory information contained in such documents or notesmust be produced." Defendant argues that because the offense was alleged to have occurred some twenty-one months prior to defendant's request at the second trial, because several officers, including Woods and Spain, were no longer employed by the law enforcement officials of Lincoln County, and because there was no independent record of their investigation, defendant was unable to determine whether their statementscontained any exculpatory material. He, therefore, requested the court to review these police reports and determine if there was discoverable material in them. He alleges that the courtdenied theproduction of the police reportsmerely

on tne prosecutor's assertion that they contained no exculpatorymatters. At the omnibus hearing on June 6, 1980, defendant requested the court to review the police reports to determine if there were inconsistencies in the victim's early

statements and her trial testimony. The court agreed todo

so and did. The record does not indicate that defendant focused on the testimony of Spain and Woods or made any written motion for the court to so review those reports. For that reason, the issue is not properly before this Court. The matter cannot be used toput the trial court in

error if it was not brought specifically to the court's attention. The final issue before us is whether the court erred in denying defendant's motion for a change of venue and a motion for individually sequestered voir dire. Defendant filed a motion for a change of venue with a supporting affidavit on May 30, 1980, which was heard and denied on June 6, 1980. The motion was renewed, heard and denied on June 16, 1980. Both of these motions raised the same issues of pretrial publicity and the publication of information which clearlywould nothave been admissible attrial. This Court recently set forth the change of venue issues which are addressed here as going to the sound discretion of the court. See, State v. Bashor (1980),

## - Mont. 

### - 

## , 614 P.2d 470, 37 St.Rep. 1098. In State v.Board (1959), 135Mont. 139, 143-144, 337 P.2d 924, 927, we setforththe test as follows: "Our court looks for a chain reaction. It starts with the basic premise that the accused is entitled toa fair trial. Next it checks thepublicity complained of, asto its contents and more important, as to its total effect upon the 'fair trial right.

### '



# ... Finally, it objectively considers the end resulk-was a fair trialdenied asa result of the publicity and 

### its effects? 

# . .

# ."

We have examined carefully the allegations given for the requested change of venue and find they fail to establish any possibility of jury prejudice due to pretrial publicity. As noted by the State, only two prospective jurors, Mr. Cook and Mrs. Seekins, responded that they had read or heard anything about the case inthenewspaper or on the radio. There were two Misters Cook on the prospective jury panel and both Misters Cook and Mrs. Seekins were eliminated by peremptory challenge and therefore did not

serve on the trialjury. In addition, Mr. Stebans, who was selected as an alternate juror, said that he had read some newspapers articles but was not prejudiced. However, the alternatejuror did not sit asajuror in the deliberations. Therefore, no prejudice todefendant has been shown. The judgment of the DistrictCourt is affirmed.We concur: