No. 86-369 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsROBERT EUGENE MORSE, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Joel G. Roth, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

John S. Keith, Great Falls, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Barbara Claassen, Asst. Atty. General, Helena 

Patrick L. Paul, Cascade County Attorney, Great Falls, 

Montana 

Submitted on Briefs: Sept. 3, 1987 

Decided: November 24, 1987 

Filed: NOV 24 198Z a 
Mr. Justice L. C. Gulbrandson delivered the opinion of the 

Court. 

Defendant Robert Morse appeals his conviction of 

solicitation following a jury trial in the Eighth Judicial 

District, Cascade County. Morse, along with codefendant Ray 

Brown, was charged by information on November 19, 1985 with 

two counts: Count I, conspiracy (aggravated kidnapping); and 

Count 11, conspiracy (deliberate homicide). On January 24, 

1986, the information was amended to include solicitation to 

encourage or facilitate aggravated kidnapping and deliberate 

homicide, a felony, against Morse only as Count 111. 

Joint-trial was held from February 24, 1986 to March 10, 

1986. The jury returned a verdict of not guilty on Count I 

and Count I1 but Morse was found guilty of solicitation. On 

May 9, 1986, he was sentenced to fifty years in the Montana 

State Prison. Brown was found not guilty on both counts. 

We affirm. 

The two following issues are presented for our review: 

(1) Was the State's informant an accomplice and 

therefore legally accountable for Morse's solicitation 

requiring corroborating evidence prior to the informant's 

testimony? 

(2) Did the District Court err in allowing in evidence 

a surveillance tape recording and testimony of an agent who 

cond6cted the surveillance? 

Defendant in this case, Robert Morse (Morse), was 88 

years old at the time of trial of this case. His sight had 

previously dissipated and therefore he could not operate an 

automobile. Morse, who is also known as "Goldie," met Thomas 

Marchington (Marchington), the informant for the State in 

this case, at a bar i.n Billings, Montana, while the two were 

playing poker. Marchington was asked by Morse if he wanted 
to earn some money for doing something illegal. It was not 

made clear to Marchington originally what the act would be, 

but Marchington was interested. 

In May and April of 1985, Marchington told agent Steve 

Sparhawk (Sparhawk) of the Montana Department of Justice Law 

Enforcement Services Division that Morse approached 

Marchington and was planning something illegal. Sparhawk and 

Marchington had previously met regarding matters unrelated to 

this case. When Marchington first discussed Morse's offer 

with Sparhawk, he testified he did not intend to do what 

Morse had suggested. Marchington testified that Morse woul-d 

pay Marchington for transporting him to Great Falls, that 

they would pick up a number of people, and that Marchington 

would transport them back to Billings. 

Approximately a month after Marchington contacted 

Sparhawk, Morse again asked Marchington if he was interested 

in participating in the illegal activity for a large amount 

of money. Marchington still did not know what the specific 

activity was, but at trial testified: "I told him I was 

always interested in trying to get some money." Marchington 

did not immediately report Morse's request to Sparhawk. 

By late summer or early autumn of 1985, Marchington 

began driving Morse to Great Falls in Morse's car. 

Marchington still did not know what illegal activity was 

involved. Morse told him not to bring any weapon. 

On the first trip to Great Falls, Marchington said he 

left Morse at the Greyhound Bus depot at approximately 1:00 

p.m. Morse gave Marchington $20 and told him not to get 

drunk but to return with the car around 4:00 p.m. 

Marchington said he left the car parked in a parking lot 

across from the bus depot, and watched Morse get picked up in 

a blue El Camino driven by a black man. Morse returned later 

that afternoon and Marchington and Morse drove back to 
Billings. There were a number of trips between Billings and 

Great Falls after this first trip and Morse often mentioned 

people that he talked to in Great Falls. One of these people 

was Ray Brown, whom Marchington was introduced to later. 

Brown was also referred to by Morse as "Brown" or "Brownie." 

Brown is a black man and owns a blue El Camino. 

Marchington again contacted Sparhawk on October 15, 

1985. Marchington had been given more information as to what 

the intended crime was to be by this meeting. By October 15, 

Marchington had driven Morse to Great Falls approximately 

seven or eight times. Marchington told Sparhawk of Morse's 

plans in a taped conversation. The alleged scheme was to 

pick up Dr. John McGregor, a Great Falls physician, and 

possibly McGregor's wife, and hold them for ransom. The 

kidnapping allegedly would entail threatening the victims 

into writing ransom notes and then end in the murder of the 

victims. 

On October 22, 1985, Marchington notified Sparhawk that 

he was again driving Morse to Great Falls. Before he left 

Billings, Marchington met with another state agent, Ward 

McKay (McKay) who attached an electronic transmitter on 

Marchington so that any conversation could be heard and 

taped. 

Morse and Marchington were followed to Great Falls by 

agents from Billings. These agents and Great Falls police 

officers watched them drive by Dr. McGregor's house. The 

McGregors had been transported from Great Falls for 

protection purposes. Marchington testified that he and Morse 

drove past the McGregor's residence in the early evening of 

October 22 and saw a man and woman inside but no vehicle. 

Morse became suspicious because of the lack of a car. A 

similar type vehicle as the McGregors' was obtained by the 

Great Falls officers and placed at the McGregor residence at 
8:15 p.m. At approximately 9:00 p.m., they again drove by 

the house and noticed a new Lincoln automobile with a 

thirty-day sticker but no license plates. Morse at this time 

became fairly nervous according to Marchington. In fact, the 

individuals inside the McGregor residence were actually 

undercover police officers. On October 23, Morse and 

Marchington made one more pass by the McGregors' and again 

noticed people inside but no vehicle. Morse was arrested 

later that day when he and Marchington stopped at a trailer 

rental business. 

At trial, Marchington stated that he and Morse, on a 

number of occasions, watched Dr. McGregor at his house and 

work. The two also drove to an area on the Missouri River 

known as "Big Bend" where the bodies were allegedly to be 

disposed. Marchington said Morse had to unlock two padlocks 

to get to Big Bend and Morse had keys to the padlocks. This 

property adjacent to the river is owned by Harry Mitchell who 

testified that he had previously given two keys, one marked 

"BB," to Ray Brown approximately four or five years before 

trial. Morse was found in possession of these or similar 

keys when he was arrested. 

Marchington testified that Morse had a number of items 

that he always carried in two bags in the trunk of his car 

that were to be used in the kidnapping, murder and 

dismemberment of the victims. These items included pencils, 

pens, paper, a typewriter, a set of handcuffs and a .38 

revolver which were to be used to coerce the victims into 

writing ransom notes. Marchington testified that he saw a 

rubber raft, hammer, chisel, flashlight, hacksaw, and two 

knives, a shovel and a small board which were to be used to 

dismember and dispose of the bodies. Also, there were 

newspapers to be used to burn the victim's hair off and 

hinder identification. 
The initial information was filed November 19, 1985, 

and Morse was arraigned and entered a plea of not guilty on 

December 2, 1985. He entered a plea of not guilty to the 

amended information on January 24, 1986. 

At trial, much of the State's case was based on the 

testimony of Marchington. Seven Great Falls police officers, 

a Cascade County sheriff's deputy, and three investigators 

(along with Sparhawk) from the Department of Justice also 

testified. One of the investigators was McKay. McKay placed 

the transmitter on Marchington and followed Marchington and 

Morse to Great Falls. He testified as to portions of eight 

tape-recordings made during the surveillance of October 22 

and 23, 1985. Portions of the tapes were difficult to hear 

and understand so McKay was allowed by the District Court to 

describe what he saw and heard. 

Morse contends on this appeal that the District Court's 

allowance of Marchington's testimony was error because he was 

an accomplice to the solicitation charge and no corroborating 

evidence was presented to support his testimony. Morse 

argues that as a coconspirator and accomplice Marchington's 

testimony had to be limited as provided in 5 46-16-213, MCA, 

which provides: 

A conviction cannot be had on the 

testimony of one responsible or legally 

accountable for the same offense, as 

defined in 45-2-301, unless the testimony 

is corroborated by other evidence wh.ich 

in itself and without the aid of the 

testimony of the one responsible or 

legally accountable for the same offense 

tends to connect the defendant with the 

commission of the offense. The 

corroboration is not sufficient if it 

merely shows the commission of the 

offense or the circumstances thereof. 
Section 45-2-302(3), MCA, defines the elements of being 

an accomplice that could apply in this case. One is legally 

accountable for another's conduct if "[elither before or 

during the commission of an offense with the purpose to 

promote or facilitate such commission, he solicits, aids, 

abets, agrees, or attempts to aid such other person in the 

planning or commission of the offense." Morse contends that 

in Marchington's own testimony he admitted that he and Morse 

discussed the proposed criminal activity, and Marchington did 

not advise the authorities. 

Q. When Morse asked you if you were 

interested in this--still interested in 

this activity about a month after you 

talked to Sparhawk, did you tell Sparhawk 

about that conversation? 

A. No. 

R. Why not? 

A. I was interested in getting some 

money in my pocket. 

This statement, Morse argues, shows that Marchington 

should be accountable for Morse's actions as an accomplice 

because he was aiding Morse. When this statement was ma.de, 

Marchington was still unaware of what criminal activity was 

involved. The referenced testimony occurred approximately 

June of the summer of 1985. It was not until August or 

September of 1985 that Marchington began driving Morse to 

Great Falls for surveillance of Dr. McGregor and it was not 

until later in the fall that he realized what crime was to be 

committed. 

Q. Prior to your first trip to Great 

Falls, did you have any more discussion 

about what this criminal activity would 

be? 

A. No, not until after the first trip. 
Q. Okay. Do you recall about when the 

first trip to Great Falls was? 

A. Late summer or early fall. August, 

September, somewhere in there. 

Q. During this period of time prior to 

October 15th when you were to see 

Sparhawk again, were you ever given any 

more details of what the criminal 

activity was supposed to entail? 

A. Yes. 

Q. Was that on one occasion or on more 

than one occasion? 

A. A little bit here and there. 

Q. Bits and pieces? 

A. Bits and pieces. 

Q. Do you recall the next thing you 

heard about the activity? 

A. That he was going to pick up Dr. John 

and/or his wife. 

Q. Did he give you anything more than 

"Dr. John1' ? 

A. That and the address where they 

lived. He had me go past the doctor's 

house. 

Q. Okay. When did you first discuss 

with Morse what specifically you were to 

do with Dr. John? 

A. Morse went--started going into detail 

on one trip back to Billings here. 

Q. Do you recall about when that trip 

was or which trip it was? 
A. I am not positive when it was . . . 

Although the testimony shows that the exact time period 

is unclear as to when Marchington finally determined that the 

crime of kidnapping was going to occur, it is clear the 

knowledge was obtained much later than June when he made the 

damaging statement on which Morse relies. Marchington 

contacted Sparhawk and informed him of Morse's plan on 

October 15, 1985. 

Section 45-2-302, MCA, has an exception to subsection 

(3) that aids in determination of this case which states: 

[Hlowever, -- a person --- is not so accountable 

- if: 

(b) before the commission of the 

offense, he terminates his effort to 

promote or facilitate such commission and 

does one of the following: 

(ii) gives timely warning -- to the proper 

law enforcement authorities ... (Emphasis added. 1 

Marchington did indeed give notice to Officer Sparhawk and as 

a result, the actual commission of the crime did not occur. 

A plain reading of this statute shows Marchington is not 

accountable for any crime. He was not an accomplice to the 

offense of solicitation. 

The law regarding accountability on the part of an 

accomplice is well settled. Section 45-2-302, MCA, has been 

interpreted by this Court and from the testimony presented at 

the District Court, we can find no accountability on the part 

of Marchington for the crime of solicitation: 

[Accountability] has been the subject of 

much attention in case law. We have 
emphasized that mere presence at the 

scene of a crime is not enough to charge 

one as an accomplice. State v. Fish 

(Mont. 1980), 621 P.2d 1072, 1078, 37 

St.Rep. 2065, 2071; State ex rel. Murphy 

v. McKinnon (1976), 171 Mont. 120, 125, 

556 P.2d 906, 909. Moreover, the mere 

knowledge that a crime is about to be 

committed does not make one an 

accomplice. State v. Harvey (1979), 184 

Mont. 423, 431, 603 P.2d 661, 666; State 

v. Mercer (1943), 114 Mont. 142, 152, 133 

P.2d 358, 361. A true accomplice is: 

"'one who knowingly, voluntarily and with 

common intent with the principal offender 

unites in the commission of a crime . . . One may become an accomplice by 

being present and joining in the criminal 

act, by aiding and abetting another in 

its commission, or not being present, by 

advising and encouraging its commission; 

but knowledge and voluntary actions are 

essential in order to impute guilt. '" 

(Citations omitted.) 

State v. Nordahl (Mont. 1984), 679 P.2d 241, 243, 41 St.Rep. 

Marchington did not have the common intent to commit 

the crime of solicitation. His testimony shows that it was 

only after he received "bits and pieces" of information that 

he fully understood what Morse planned to do. Once the 

entire plot was understood by Marchington, he informed 

Sparhawk and therefore the exception of S 45-2-302(3), MCA, 

is applicable. At any rate, Marchington could not be 

accountable for the crime of solicitation of which Morse was 

convicted. 

Counsel for Morse did make a motion in limine to have 

the court rule that Marchington was an 

accomplice/coconspirator and to therefore limit his testimony 

until corroborating evidence was first presented. However, 
the requirement of S 46-16-213, MCA, requiring corroborating 

evidence is applicable only if Marchington was in fact an 

accomplice or accountable for Morse's solicitation. The 

District Court denied Morse's motion and stated it would not 

require the State to present its case in a particular 

fashion. 

The State points to the fact that Morse was not 

convicted of conspiracy (kidnapping) , or conspiracy 

(deliberate homicide) , as he was originally charged. Morse 

- was convicted of solicitation pursuant to cS. 45-4-101, MCA, 

which provides: 

(1) A person commits the offense of 

solicitation when, with the purpose that 

an offense be committed, he commands, 

encourages, or facilitates the commission 

of that offense. 

Therefore, any claim relating to conspiracy is 

irrelevant in this case. We are bound to determine the 

merits of Morse's claim on the solicitation conviction only. 

Solicitation is distinct from the crime of conspiracy. 

Solicitation requires that the solicitor "attempt[s] to 

enlist coconspirators" to commit a crime. Compiler's 

Comments, Vol 5, MCA Annot. at 121, cS. 45-4-101, MCA. There 

was never any allegation nor evidence presented that 

Marchinqton attempted to persuade any other person to 

facilitate any criminal activity. The jury's finding was 

based on the solicitation of Marchington by Morse to 

facilitate the crimes of kidnapping and deliberate homicide. 

Nonetheless, the testimony of Marchington was 

corroborated numerous times. " [TI he corroboration is 

sufficient if, 'unaided by the testimony of an accomplice, it 

tends to connect the defendant with the commission of the 

offense. '" State v. Gonyea (Mont. 1987), 730 P.2d 424, 427 

44 St.Rep. 39, 42. The officers investigating this case 
testified that they followed Marchington and Morse from 

Billings to Great Falls. The route chosen was exactly as 

told to them by Marchington. Marchington and Morse were 

observed driving by Dr. McGregor's house on a number of 

occasions on October 22, 1985. The instruments, tools and 

other objects the officers were told by Marchington were in 

Morse's car were indeed found by i.nvestigating officers and 

independently introduced into evidence. Evidence was also 

presented that showed a new muffler was installed on Morse's 

automobile in Great Falls during this period of time, and the 

mechanic described Morse and Marchington together in that 

vehicle. Newspapers were found in the back of Morse's 

automobile with dates similar to the period of time in which 

Marchington and Morse were to have made other trips to Great 

Falls prior to October 15, 1985. Keys which opened the gates 

onto the Mitchell. property, one of which had printed on it 

"BBW--for Big Bend, the area where the McGregors were to be 

executed--were found on Morse and identified by Harry 

Mitchell. 

All of this evidence tends to connect Morse with the 

commission of the offense of sol.icitation without the 

courtroom testimony by Marchington. This corroborating 

evidence was all introduced and the jury needed only the 

testimony of Marchington, who was not an accomplice, to find 

the elements of the crime. 

We recognize that this Court has previously stated that 

when there are disputed facts as to whether a person is an 

accomplice that the issue is one for the jury under proper 

instruction. Gonyea, supra. 730 P.2d at 425, 44 St.Rep. at 

40. But in this instance, there was no disputed fact that 

Marchington properly alerted the authorities and aided in the 

prevention of a possible heinous crime. The District Court 
therefore properly ruled as a matter of law that Marchington 

was not an accomplice. 

Morse also contends that the District Court erred in 

admitting surveillance tapes into evidence of the trip from 

Billings on October 22 and 23, 1985. The District Court 

acknowledged that much of the recorded conversation was 

inaudible. However, the District Court allowed officer McKay 

to act as an "oral transcriber," interpreting what was said 

on the tapes and what occurred while the statements were 

made. 

The policy behind the use of transmitters on informants 

was enunciated in State v. Hanley (1980), 186 Mont. 410, 608 

P.2d 104, a case involving the recording of a drug 

transaction by an informant: 

The general rule is that it is 

impermissible for police officers to 

intercept, transmit or record private 

conversations; however, if one of the 

parties to the conversation consents, 

even an informer, such actions are legal. 

People v. Patrick (1973), 46 Mich.App. 

678, 208 N.W.2d 604; United States v. 

Mendoza (U.S.C.A. 5th, 1978), 574 F.2d 

1373, rehearing denied 579 F.2d 644. 

This is true as long as the will of the 

consenting party has not been subjected 

to overbearing pressure from the 

authorities. 

Hanely, 186 Mont at 419, 608 P.2d at 109. 

We have previously held that the use of tape recordings 

is acceptable and is a question left to the discretion of the 

trial court. State v. Bassett (1980), 189 Mont. 28, 614 P.2d 

1054; Hanley, supra; and State v. Brubaker (1979), 184 Mont. 

294, 602 P.2d 974. In Bassett, we stated: 

The recordings of conversations monitored 

with the consent of one of the 

conversants and with judicial authority 

are not subject to suppression. See 
State v. Hanley, supra. Further, as we 

noted in State v. Brubaker (1979), Mont., 

602 P.2d 974, 36 St-Rep. 1915, tape 

recorded statements may be considered 

direct evidence or corroborative evidence 

and are subject to the same test for 

admissibility as the direct evidence of 

eyewitnesses or the testimony of 

witnesses to oral statements. - The 

question - of admissibility ---- of this kindof 

evidence is a matter for - - the sound 

discretionof 7- tine trial judge. (Emphasis 

added. ) 

Bassett, supra, 189 Mont. at 32-33, 602 P.2d at 1056. 

Under the facts of this case, Marchington was a willing 

participant in the tape recording. There was no allegation 

of overbearing pressure ever made. Morse did not object to 

the tapes on any ground other than that they were of poor 

quality and inaudible and he argued it was unfair prejudice 

to allow McKay to interpret them. Morse cites United States 

v. Frazier (2nd. Cir. 1973), 479 F.2d 983, as controlling 

because of the possible inference the jury could make from 

unintelligible recordings and due to the substantial impact 

that an inaudible recording may have on the jury. The 

Frazier case involved a tape which was found by the trial 

judge to be "75% unintelligible. " The tape was made by the 

appellant who was later convicted without the use of the 

tape. The court initially refused to allow appellant's 

counsel to introduce the tape because of its poor quality. 

The court later ruled the tape would be allowed if 

accompanied by an explanation by the judge that he considered 

the majority of the tape inaudible and that counsel had 

failed to provide the court with a transcript of the recorded 

conversation. Frazier, supra, 479 F.2d at 985. The attorney 

for the appellant decided not to use the tape under these 
conditions but it is noted that the tape was still made 

available. 

In the case at bar, the District Court allowed the use 

of the tape and testimony of McKay but included a specific 

instruction to the jury which stated: 

Tape recordings of conversations 

identified by witnesses have been 

received in evidence. An interpretation 

was furnished by Agent McKay for your 

guidance as you listened to the tapes, 

clarifying portions of the tapes which 

were difficult to hear and identifying 

speakers. The tapes, however, are 

evidence in the case and interpretation 

of those tapes by Agent McKay is not 

evidence. If you perceive any variation 

you will be guided solely by the tapes 

and not by Agent McKayls interpretation. 

If you cannot determine from the tape 

that particular words were spoken you 

must disregard the interpretation insofar 

as those words are concerned. 

We find this instruction proper. 

Frazier further supports Brubaker, Hanley and Bassett 

in that the Frazier court noted that "[a] trial judge has 

wide discretion in determining whether to allow a recording 

to be played before the jury when there is a serious question 

of its audibility." Frazier, supra, 479 F.2d at 985, 

Additional authority is found in United States v. Jones 

(10th Cir. 1976), 540 F.2d 456, cert. denied, 429 U.S. 1011, 

where poor quality tapes were played to the jury while an 

informer testified as to what was said. The appellate court 

held the trial court had not abused its discretion: 

Where a tape recording is objected to as 

unintelligible or inaudible its 

admissibility is within the sound 

discretion of the trial judge. United 

States v. Hodges, 480 F.2d 229, 233-34 

(10th Cir. ) . Unless the unintelligible 
portions are so substantial as to render 

the recording as a whole untrustworthy, 

it may be admitted; this is especially so 

where a witness who heard the statements 

also testifies and the recording gives 

independent support to his testimony. 

Jones, supra, 540 F. 2d at 470. The District Court properly 

allowed McKay to interpret the tape in this case. 

Finally, Morse contends he was prejudiced by the 

District Court allowing the jury to take the tape recordings 

into deliberations. The District Court denied a motion for 

mistrial on the grounds that the jury had already heard the 

testimony and tapes. This again is subject to the discretion 

of the court. Section 46-16-504, MCA, states: 

Upon retiring for deliberation, the jury 

may take with them all papers which have 

been received as evidence in the cause, 

except depositions or copies of such 

papers as ought not, in the opinion of 

the court, to be taken from the person 

having them in his possession. - The jury 

may---- also take with them any exhibits 

which the court may deem proper and notes 

of the proceedings taken by themselves. 

(Emphasis added.) 

The tapes had been admitted into evidence by the 

District Court and the jury was properly instructed as to the 

weight to give the tapes. Those portions the jury could not 

understand were to be disregarded entirely. Just as with 

papers which have been properly admitted into evidence that 

are allowed in the jury room during deliberations, the tapes 

were evidence which at the discretion of the court could be 

allowed. We do not find abuse of discretion by the court. 

The conviction is affirmed. 
We concur: