NO. 92-591 IN THE SUPREME COURT OF THE STATE OF MONTANA

STATE OF MONTANA. Plaintiff

-vsLARRY MOORE, Defendant and Appellant,

APPEAL FROM: ~istrict Court of the EighteenthJudicial District, In and for the County of Gallatin, The Honorable Larry W. Moran, Judgepresiding.

COUNSEL OF RECORD: For Appellant: Hon.Marc Racicot, AttorneyGeneral,Helena,Montana Cregg W. Couqhlin, Assistant Attorney General, Helena, Montana Mike Salvagni, Gallatin County Attorney, Bozeman, Montana Mark Murphy, Special Deputy Gallatin County Attorney, Helena, Montana Robert Brown, Assistant Attorney General, Bozeman, Montana

For Respondent: Larry Jent, Williams, Jent & Dockins, Bozeman, Montana James H. Goetz and Brian Gallik, Goetz, Madden & Dunn, Bozeman, Montana

Submitted on Briefs: August 6, 1992 Filed: ~~~id~d: August 20, 1992Justice R. C. McDonough delivered the Opinion of the Court.

This is an appeal by the State of Montana from an order granting a motion in limine in the Eighteenth Judicial District, Gallatin County. 

### We reverse. The issues for review are: 1. Whether the District Court abused its discretionwhen it suppressed evidence relating to the actions of thedefendant after the alleged shooting of Bradford Brisbin. 2. Whether the District Court abused its discretion when it suppressed evidence of all testimony from the defendant'swife. 3. Whether the District Court abused its discretionwhen it suppressed evidence of the witness Hoffman. On December 17, 1990,defendant LarryMoore was charged by an information with Count I, deliberate homicide in the death of Bradford Brisbin (Brisbin), in violation of 5 45-5-102(1)(a), MCA. Defendantwas also charged in Counts 11 and 111 of the information with tampering with or fabricating physical evidence, inviolation of 55 45-7-206(1) (a), 

### and 45-7-207(1)(b)

### , MCA, respectively. On September 30, 1991, pursuant to a motion by the defendant, the District Court, on the grounds of prejudice, granted the defendant's motion to severe Counts I1 and 111, tampering with or fabricating physical evidence, fromthedeliberate homicide

### charge. This order was 

### not appealed. 

### In our subsequent discussion 

### relative to the 

### offers of 

### proof and rulings of the District Court, we only 

### consider the principle

### of evidenceandwhether theoffered evidence generallycomeswithin such principle. We do not, and we cannot, make a definitive decision as to the admissibility of particularpieces of evidence. At this stage we have no way of ascertaining if compliance with other rules of evidence, such as having a proper foundation, relevancy, opinion, hearsay, authenticism, etc., has been met. Only some of the factspertaining to each issue will be more fully developed as each issue is discussed. The State's appeal is timely. I Whether the District Court abused its discretion when it suppressed evidence relating to the actions of the defendant after the shooting of Brisbin. On the morning of November 9, 1990, 

### Brisbin received a telephone call from the defendant. Defendant told Brisbin he had sold his pickup and camper and needed a ride back to West Yellowstone from Belgrade. Brisbin then drovehispickup to Bairs Truck Stop in Belgrade and met the defendant. From there on the stories vary, one version being that Brisbin left the truck stop restaurant to go to the restroom,did not return, and disappeared. Neither he nor his body have yet been found. The State's case is based on circumstantial evidence. The Stateproposed that certain evidence be admitted at trial which is evidence ofdefendant's consciousness of guilt and ispart of the res gestae or corpus delicti of the crime charged. In the offer of proof, supported by affidavits, the State offered thefollowing: Officer Brown saw the defendant in his camper on the evening of Brisbin's disappearance. When Moore saw Officer Brown, he turned out the lights in the camper in an attempt not to be

seen. A couple days later Officers Brown and Pronovost approached Moore who was working on the camper which was then attached to his pickup and parked in front of the West Gate Enterprise Machine Shop, a business owned by the defendant. Moore was using a tar like substance, which he told the officers he was using to patch water leaks in the camper. The above evidence was excluded. Other proffered evidence was that Moore purchased the camper from Dave Barstead in the spring or summer of 1990 and Barstead claims that the floor of the camperwas covered by brown carpet at the time of sale. Moore's employee, Norman Hanna, who installed the camper onMoore's pickup, claimed that there was a brown carpet covering the camper floor during its installation. There was no brown carpet in the camper after the alleged crime. The court excluded this evidence. Later a 12-volt automobile battery was found inside the camper. The caps to the battery had been removed and battery acid spilled on the floor. This evidencewas excluded. Other excluded evidence is that when Officer Pearson, looking for the camper, found it next to the Jack residence in southern Madison County, the camper had been taken off the truck. Officer Pearson also noticed fresh footprints leading to the camper. Further,OfficerChristie also found threebulletholes inside Moore's camper thathad been coveredwith tar. A piece of panelinghad also been cut out of the camper and replaced with other paneling which did notmatch the original paneling. This evidence

was excluded. Officer Christie also found a bullet under the floor of the camper. A reddish substance was on the bullet, which the State Crime Laboratory determined was blood. Samplesof the camper floor containingthereddish liquidwere analyzed by the State Crime Lab and were found to be consistent with sulfuric acid, the acid contained in car batteries. This evidence was excluded,as was other similar evidence. In essence the evidence offered was in support of the State's position that defendant cleaned blood from the camper, discarded bullets and carpet, covered and repaired bullet holes, spilled battery acid and inferring therefrom that thebattery acidwas used to cover or clean some material. The defendant argues that the admission of this evidence which also tends to prove elements of the crime of tampering or fabrication, amounts to the admission of evidence of another crime. Applying subdivision (4) of the Just Rule, it would be prejudicial to admit this evidence relative to the proof of the crime of deliberate homicide. See State v. Just (1979), 184 Mont. 262, 602 P.2d 957. The District Court opined that the ruling of prejudice as the

reason for separating the charges on September 30, 1991, had the effect of also rendering this evidence inadmissible on the charge of deliberate homicide because of its potential of prejudice. The State'sposition is,however,that the evidence isadmissible underMontana law as evidence of Moore's consciousness of guilt and as part of the res gestae or corpus delicti of the crime charged. It should be first noted that the admissibility test and the procedural requirements of Statev. Just (1979),184Mont. 262, 602 P.2d 957, do not apply to evidence establishing consciousness of guilt regarding the crime with which thedefendant is charged. See Statev. Baker (1989), 237 Mont. 140, 773 P.2d 1194;Statev. Shaw (1982), 199 Mont. 248, 648 P.2d 287; Statev. Trombley (1980), 190 Mont. 218, 620 P.2d 367. We have said numerous times that testimony showing or tending to show flight or concealment by the defendantmay be taken into considerationby a jury in determining whether the defendant is guilty of the offense charged. For example see State v. Paisley (1907), 36 Mont. 237, 92 P. 566. Flight or concealment may be considered by the jury as a circumstance tending toprove the consciousness of guilt. Statev. Walker (1966), 148 Mont. 216, 419 P.2d 300 In the case of State v. Armstrong (1980), 189 Mont. 407, 616 P.2d 341, we stated: [Elvidencetended to showthe destruction or suppression of evidenceby Armstrong and tended to showhisguilt and was therefore relevant and clearly admissible. If evidence tends to prove the commission of the crime charged it is not rendered inadmissible because it also tendstoprove the commission of another crime. The test iswhether the evidence is relevant as tending to prove any facts material to an issue in a cause before the court. Statev. Cesar (1925), 72 Mont. 252, 255, 231 P. 1109. The evidence is relevant because it tends to show consciousness of guilt and therefore tends to prove the commission of the crimecharged and the defendant

## 's responsibility for it. Rule 404(b)

## , M.R.Evid., as to other crimes, does not apply. The alleged acts of the defendant occurring after the alleged crime was committed are also inseparably related to the alleged criminal act, as part of the res gestae or corpus delicti of the crime, and therefore are 

### not subject to the restriction of "other crimesM evidence. The acts subsequent to the crime to be introduced here tend to prove the circumstance of the defendant's intent and theelement of nknowinglylt and therefore are intertwined 

### with the 

### evidence of the proof 

### of the 

### crime itself. As stated by the case of Cruz v. state, 645 S.W.2d 498 (Tex.Ct.App. l982), admissibility is predicated on the jury's right to hear what transgressed immediately

### prior and subsequent to the commission of the offense charged, so that they may evaluate the evidence in the context in which the criminal act occurred. Acts of a defendant subsequent

### to the alleged commissionof the 

### crime, and intertwined therewith, are 

### highly probative. We therefore conclude that the District Court abused its discretion in excluding acts of the defendant subsequent to the alleged commission of the crime which tend to show the consciousness of his guilt or are a part of the res gestae and corpus delicti of 

### the crime charged. I1 Whether the ~istrictCourt abused its discretion when it suppressed evidence of all testimony from the defendantfswife.One of the District Court's reasons for suppressing all the testimony of the defendant's wife, was that such witness was incompetent under 

### 5 46-16-212,MCA, as it read at the time of the alleged crime. Prior to October 1, 1991, 46-16-212, MCA, provided as follows: Exceptwith the consent of both, or in cases of criminal violenceby oneupon the other, abandonmentorneglect of children by either party, or abandonment or neglect of one by the other, neither spouse is a competent witness for or against the other in a criminal action or proceeding to which one or both are parties. Relative to the competency of a spouse, the statute was amended effective October 1, 1991, to read as follows: (1)Neither spousemay testify to thecommunications or conversationsbetween spouses that occursduringtheir marriage unless: (a) consent of the defendant-spouse is obtained; (b) the defendant-spouse has been charged with an act of criminal violence against the other; or (c) the defendant-spouse has been charged with abuse, abandonment, or neglect of the other spouse or either spouse's children. (2) Except as provided in subsection (I), a spouse is a competent witness for or against the other spouse. It is evident that when the alleged crime was committed, which was prior to October 1, 1991, the statute relative to the competency of a spouse to testify in criminal proceedings for or against his or her spouse, is different than the wording of the statute at the time of trial. It raises the question of whether this change in the statute is procedural or substantive. The statute isprocedural. Thereforethe statute ineffect at the timeof trial governs. See Wolfe v. Webb (1992), 824 P.2d 240, 49 St.Rep. 1. We conclude that testimony by the wife Michelle Moore, if it meets other rules of evidence, isnot to be excluded on thegrounds of her competency as a witness, unless it is testimony of communications and conversation between 

### the spouses during their marriage. I11 Whether the District Court abused its discretion when it suppressed testimony of witness Hoffman which the District Court has ordered to be under seal and therefore it will not be recited here.The offeredtestimonyclearly revealsMoore'spossiblemotive. Evidence of a person's motive in the prosecution of a homicide is admissible. We therefore concludethat theDistrictCourtwas in error and abused its discretion. We reverse the District Court and remand for further proceedings in conformance to this opinion. 

# @p-

We Concur:

### August20, 1992 CERTIFICATEOFSERVICE 

### Ihereby certifythatthefollowingorderwas sentbyUnited Statesmail,prepaid, tothe followingnamed:

Hon. MarcRacicot, AttorneyGeneral Cregg Coughlin, Assistant JusticeBldg. Helena,MT 59620 A.MichaelSalvagni CountyAttorney 615S. 16thSt. Bozeman,

### MT 59715 

### LarryJent Williams,Jent&

### Dockins 506

### E.Babcock Bozeman,MT 59715 James

### H.GoetzandBrian

### K. Gallik Eoetz, Madden&

### Dunn 35

### N. Grand Bozeman, MT 59715 

### EDSMITH CLERKOFTHESUPREMECOURT STATE

### OFMONTANA