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 Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Larry W. Moran, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Hon. Marc Racicot, Attorney General, 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, 1992 
Justice 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 discretion when it 

suppressed evidence relating to the actions of the defendant 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's wife. 

3. Whether the District Court abused its discretion when it 

suppressed evidence of the witness Hoffman. 

On December 17, 1990, defendant Larry Moore 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. 

Defendant was also charged in Counts 11 and 111 of the information 

with tampering with or fabricating physical evidence, in violation 

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, fromthe deliberate 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 evidence and whether the offered evidence generally comes within 

such principle. We do not, and we cannot, make a definitive 

decision as to the admissibility of particular pieces 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 facts pertaining 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 drove his pickup 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 State proposed that certain evidence be admitted at trial 

which is evidence of defendant's consciousness of guilt and is part 

of the res gestae or corpus delicti of the crime charged. In the 

offer of proof, supported by affidavits, the State offered the 
following: 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 camper was covered by brown carpet at 

the time of sale. Moore's employee, Norman Hanna, who installed 

the camper on Moore'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 evidence was 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, Officer Christie also found three bullet holes inside 

Moore's camper that had been covered with tar. A piece of paneling 
had also been cut out of the camper and replaced with other 

paneling which did not match 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. 

Samples of the camper floor containing the reddish liquid were 

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 the battery acid was 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's position is, however, that the evidence is admissible under 
Montana 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 State v. Just (1979), 184 Mont. 262, 602 

P.2d 957, do not apply to evidence establishing consciousness of 

guilt regarding the crime with which the defendant is charged. See 

State v. Baker (1989), 237 Mont. 140, 773 P.2d 1194; State v. Shaw 

(1982), 199 Mont. 248, 648 P.2d 287; State v. 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 

defendant may be taken into consideration by 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 to prove the consciousness of guilt. State v. 

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: 

[Elvidence tended to show the destruction or suppression 

of evidence by Armstrong and tended to show his guilt 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 

tends to prove the commission of another crime. The test 

is whether the evidence is relevant as tending to prove 

any facts material to an issue in a cause before the 

court. State v. 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 crime 
charged 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 the element 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 commission of 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 ~istrict Court abused its discretion when it 

suppressed evidence of all testimony from the defendantfs wife. 
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: 

Except with the consent of both, or in cases of criminal 

violence by one upon the other, abandonment or neglect 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 spouse may testify to the communications 

or conversations between spouses that occurs duringtheir 

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 is procedural. Therefore the statute in effect at the time 
of 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, is not to be excluded on the grounds 

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 offeredtestimony clearly reveals Moore's possible motive. 

Evidence of a person's motive in the prosecution of a homicide is 

admissible. 

We therefore conclude that the District Court was in error and 

abused its discretion. 

We reverse the District Court and remand for further 

proceedings in conformance to this opinion. 

@p- We Concur: 

August 20, 1992 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

Hon. Marc Racicot, Attorney General 

Cregg Coughlin, Assistant 

Justice Bldg. 

Helena, MT 59620 

A. Michael Salvagni 

County Attorney 

615 S. 16th St. 

Bozeman, MT 59715 

Larry Jent 

Williams, Jent & Dockins 

506 E. Babcock 

Bozeman, MT 59715 

James H. Goetz and Brian K. Gallik 

Eoetz, Madden & Dunn 

35 N. Grand 

Bozeman, MT 59715 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA