No. 80-407 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

VS . 

MICKEY GENE HANSEN, 

Defendant and Appellant. 

Appeal from: District Court of the Nineteenth Judicial District, 

In and for the County 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, County Attorney, Libby, Montana 

Submitted on briefs: June 10, 1981 

Decided: Sept. 15, 1981 

15 1981 Filed: - 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

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 are presented on appeal: 

1. Whether the District Court erred in allowing the 

State to use, for the purposes of impeachment, statements 

made by the defendant when entering a guilty plea which was 

later withdrawn by the court. 

2. Whether the District Court erred in admitting 

evidence, over defendant's objection as to relevancy, 

State's Exhibit No. 1, a mug shot photograph of defendant. 

3. Whether the District Court erred when it refused 

to review police reports to determine if the reports contained exculpatory material and were, therefore, discoverable to defendant under section 46-15-302, 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, 

albeit on other grounds. State v. Hansen (1980), Mont. 

, 608 P.2d 1083, 37 St.Rep. 657. The facts of the case 

are contained in that opinion and will not be set forth here 

except where it is necessary to do so in discussing an issue 

that has been 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 information was filed charging him with sexual intercourse without consent. Defendant was arraigned on that 

charge, plead not guilty, and trial was set for January 10, 

1979. On January 2, 1979, defendant, with counsel, moved to 

withdraw his plea of not guilty and enter a plea of guilty. 

During these proceedings, in response to questions from the 

court, defendant denied having sexual intercourse with the 

complaining witness. At that time, defendant's privatelyretained counsel moved the court to withdraw as counsel, 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 his motion to withdraw as 

counsel. 

Sentencing was set for January 15, following consideration of a presentence investigation by the court. That 

presentence report contained the defendant's denial of any 

sexual intercourse with the complaining witness. The court, 

on January 15, 1979, because of the report, entered a not 

guilty plea for defendant and set the 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 guilty verdict on March 8, 1979, 

defendant was sentenced to forty years in the state prison 

and designated a dangerous offender for parole purposes. 

As previously noted, this Court reversed that conviction. 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 of 
venue and to require the production of evidence on June 6, 

1980. The change of venue motion was denied that day and a 

portion of the motion to produce the reports of investigating officers was 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 in allowing the State to introduce, for impeachment purposes, statements defendant made while entering a 

guilty plea which was later withdrawn by the court. This 

issue directly concerns answers defendant gave to questions 

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 a plea 

of guilty, later withdrawn, or a plea of nolo 

contendere, or of an offer to plead guilty or 

nolo contendere to the crime charged or any 

other crime, or of statements made in 

connection with any of the foregoing pleas 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 

court on the record in connection with any of 

the foregoing pleas or offers where offered 

for impeachment purposes or in a subsequent 

prosecution of the declarant for perjury or 

false statement." 

At the second trial, following defendant's testimony 

that he did not have sexual intercourse with the complaining 

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. Our 
question is whether such statements are admissible under the 

last sentence of Rule 410, M0nt.R.Evi.d. The statements were 

made in connection with a withdrawn guilty plea and were 

used for impeachment purposes and so meet 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 

perjury or 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 pr ivilege and inf ormed 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 defendant withdrew 

the plea bargain, retained new counsel, and demanded a jury 
trial. In the course of that trial the state court ruled 

that the defendant had confessed voluntarily and admitted 

his statement at the 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 States Supreme Court 

unanimously reversed the Circuit Court of Appeals and held 

that (1) the confession was not per se inadmissible in a 

criminal trial merely because it was made subsequent to and 

as a result of a plea bargaining agreement that did 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 in Hutto are properly 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), 271 U.S. 496, 46 S.Ct. 566, 70 L.Ed. 1054. 

In this case defendant was appearing for the purpose 

of changing a not guilty plea to a guilty plea pursuant to a 

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 his right to a fair, speedy and 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 referred 
to 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 

the January 2, 1979, proceeding: 

"[DEFENSE COUNSEL]: Your Honor, at this point 

I believe that I am going to have to move 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 

privilege has dropped down to a point 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 see eye to eye 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 to the Court, but I want to be 

sure that if indeed you enter a plea, as you 

have done, that the plea is informed and 

willing on your part and you are not going to 

say forever more 'I was railroaded.' That is 

the purpose of this thing. And not any other 

purpose. These are rights of yours under the 

United States Constitution that we are here 

dabbling with this morning, and your counsel 

knows and the Judge presumably knows them, 

and we don't want to extract 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 agree with your 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 this 
stage of the game, and that is two different 

people in this world reacting in different 

ways to different things. 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 felt that the offense was-- 

in other words that you did the offense, that 

yes, indeed, the probability is that you are 

guilty. 

"THE DEFENDANT: Yes, I am guilty. 

"THE COURT: And if you had a trial by jury 

the probability would be very great that they 

would find you guilty. That is what I am 

trying to establish and that is why I am 

asking you these questions. And I don't want 

to embarrass you, but they must be there, so 

with that in mind do you wish to proceed, Mr. 

Hansen? 

"THE DEFENDAivT: Yes. 

"THE COURT: Now, I did ask you in regard to 

this matter, you did have sexual intercourse 

with this person named? 

"THE DEFENDANT: Yes. 

"THE COURT: And that person was not your 

spouse? 

"THE DEFENDANT: No. 

"THE COURT: And she did not consent to such 

intercourse? 

"THE DEFENDANT: No. 

"THE COURT: Is there anything Mr. Hansen 

that--I have explained to you this matter of 

representation and I want you well 

represented. Is there anything about that at 

this time that you believe you want to make a 

statement to the Court 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 that right? 

"THE DEFENDANT: Yes. 

"THE COURT: I am going to accept 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 fact we depend a 
great deal on the counsel in these matters, 

Mr. Hansen. And because I know the character 

of your representation I know that he would 

try very hard to work in your 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 his client. You understand that? 

"THE DEFENDANT: Yes. 

"THE COURT: And you would feel you are on 

the same wave length now? 

"THE DEFENDANT: Yes." 

As previously noted, the above discussion took place 

before the first trial and was not used by the State until 

the second trial after defendant, in his direct testimony, 

testified that he had never had sexual intercourse with the 

complaining witness. With that, the State argues that the 

foundation for impeachment under Rule 410, Mont.R.Evid., was 

properly laid. 

Defendant argues that this Court should adopt any one 

of the following four per se rules concerning the voluntariness of the questioned statements: (1) since these statements were given in connection with a plea that the court 

later allowed to be withdrawn, they were 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 the trial court at the time of the change of plea 

of his Fifth Amendment privilege against self-incrimination, 

the statements were involuntary; and (4) since defendant's 

counsel withdrew prior to the time defendant made the 

statements, the statements were involuntary. 

In reply, the State argues that we should examine the 

totality of the circumstances to determine whether the ques- 
tioned statements were voluntary and reliable. It maintains 

that, given the quality of the explanation of rights and 

procedure by the trial judge, 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 

testimony given by defendant at trial. 

In determining the issue we again turn to Rule 410, 

Mont.R.Evid., and to the commission comment on that rule. 

The commission noted the difference between the federal rule 

and the Montana 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 Criminal Procedure 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 to the 

first sentence of the rule but does not 

include a provision similar to the second 

sentence of the rule. 

"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 

given to offers of compromise under Rule 408, 

and to allow highly prejudicial evidence to 

be excluded under considerations that the 

reasons for offering to plead or withdrawing 

pleas of guilty and nolo contendere would not 

be understood by a jury and would almost preclude a fair trial. The second sentence of 

this rule is added to insure that the accused 

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 

per jury. 

"Existing Montana law has not specifically 

dealt with the problem of offers to plead 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 that Montana law does not 

allow pleas of nolo contendere; however, such 

a plea is included in the rule because 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 admissions by a party-defendant are admissible. This exception, according to the comment, was granted 

to encourage the use of plea bargaining agreements. But, 

the rule was not designed to allow a defendant to abuse the 

plea bargain process with no penalty. 

Here defendant is no stranger in court, although 

reading his testimony at the hearing on January 2 one would 

think it had been his first time in court. The trial court 

carefully and extensively questioned defendant on the voluntariness of the plea, his understanding of the charge, the 

consequences of the plea and the factual basis for his plea. 

When defendant went back on the plea bargaining arrangements 

against his counsel's wishes, counsel requested the court to 

withdraw as counsel because of a breach of professional 

ethics that he felt was violated. The court stated it would 

get defendant a new attorney, and defendant then voluntarily 

admitted that he had committed the act. 
Clearly defendant abused the plea bargaining process 

here, and we sustain the decision of the trial judge in 

allowing the statement to be introduced. 

In reply to defendant's four per se rules against the 

totality of the circumstances argued by the State, the State 

notes that it was defendant here who moved the District 

Court to allow him to withdraw his not guilty plea and to 

plead guilty, and to move the District Court to accept the 

plea of guilty, defendant must establish that the guilty 

plea was being knowingly and voluntarily entered. 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 this Court, State v. 

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 

to which he pleads. Absent such understanding, this Court 

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 charge 
admitted by pleading guilty. 

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, as previously 

discussed, the record in this case demonstrates that 

defendant was sufficiently informed to enter a plea that was 

"voluntary with understanding of the charge," section 46-12- 

204, MCA. In Azure the defendant was not so informed. We 

find no merit to defendant's contention here that he was not 

properly informed and sustain the trial court's admission of 

the dispute evidence. 

The next issue raised is whether State's Exhibit No. 

1, a photograph of defendant, was properly admitted by the 

trial court over defendant's objection. 

Defendant cites State v. Bischert (1957), 131 Mont. 

152, 308 P.2d 969, for support of his position. It states: 

". . . photographs stand on the same footing 

as diagrams, maps, plans and the like, and as 

a general rule, whenever relevant to describe 

a person, place, or thing, they are 

admissible for the purpose of explaining and 

applying the evidence and assisting the court 

and jury in understanding the case. 

"Photographs that are calculated to arouse 

the sympathies or prejudices of the jury are 

properly excluded, particularly if they are 

not substantially necessary or instructive to 

show material facts or conditions." 131 

Mont. at 159, 308 P.2d at 973. 

Here, the State introduced a photograph taken at the time of 

defendant's arrest. The exhibit was a mug shot of defendant 

in an unkept, messy state. Defendant contends that the 

photo was irrelevant and did not go to showing any material 

fact. 

Bischert was a homicide case involving a small child. 
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 as part of the identification testimony of the victim and was corroborative of 

the victim's ability to identify defendant both at trial and 

at the time of the incident. A view of the photograph certainly does not arouse anyone's passion or prejudice, nor is 

it inflammatory. Therefore, we find no merit to this issue. 

The next issue for review is whether 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 a motion 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 

the work 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 notes must 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 statements 
contained 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 court denied the production of the police reports merely 

on tne prosecutor's assertion that they contained no exculpatory matters. 

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 to do 

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 to put 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 clearly would not have been admissible at trial. 

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), 135 Mont. 139, 143-144, 337 P.2d 924, 927, we 

set forth the test as follows: 

"Our court looks for a chain reaction. It 

starts with the basic premise that the 

accused is entitled to a fair trial. Next it 

checks the publicity complained of, as to 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 trial denied as a 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 in the newspaper 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 trial jury. 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 

alternate juror did not sit as a juror in the deliberations. 

Therefore, no prejudice to defendant has been shown. 

The judgment of the District Court is affirmed. 
We concur: