No. 13394 INTHE SUPREME COURT OF THE STATE OF MONTANA 1977

THE STATE OF MONTANA,Plaintiff and Respondent, 

# /' DONALD E. BRINER, Defendant and Appellant.

Appeal from: District Court of the Ninth Judicial District, Honorable R. D. McPhillips, Judge presiding. Counsel of Record:

For Appellant: Kampfe and Perhacs, Red Lodge, Montana D. Frank Kampfe argued, Red Lodge, Montana For Respondent: Mike Greely, Attorney General, Helena, Montana Dennis Moreen argued, Assistant Attorney General, Helena,

Montana Rae V. Kalbfleisch, County Attorney, argued, Shelby,

Montana

Submitted: June 9, 1977Mr. Chief Justice Paul G. Hatfield delivered the Opinion of the Court.

Defendant Donald E. Briner was charged and convicted of burglary inthe district court, Toole County. From thejury verdict and subsequent sentence of 

### 8 years, with 6 years suspended, defendant seeks this Court's review of four issues: I) Whether the district court erred indenying defendant's various motions to suppress and dismiss. 2) Whether the testimony of the accomplice had the sufficient independent corroboration requiredby section 95-3012, R.C.M. 1947.

### 3) Whether the Information filed against defendant was sufficient to inform defendant of the nature of the charges against him. 

### 4) Whether the district court erred infailingtogrant defendant's motion for a new trialbased upon newly discovered evidence. The charges against defendant Briner arose inSunburst, Montana from theburglary of the Farmers Co-op OilCo. between the hours of 6:15 p.m., July 

### 11, 1975 and 6:45 a.m., July 12, 1975. Three individualswere charged with theburglary-- Donald E. Briner, George Cain, and 'WilliamFelton. Briner and co-defendants were stopped on July 13, 1975 outside Shelby, Montana by deputies possessing this information: [I) Three hours prior to defendant's arrest, sheriff deputies responded to a burglary inprogress atthe Co-op inDevon, Montana; 

### (2) on reaching Devon a highway patrolman observed thepickup defendant was later drivingwhen arrested; (3) this pickup had left thevicinityby the time the deputies reached the Devon Co-op;

### (4) atthe Co-op the phone lfneswere cut, a window broken, and a door left open; (5) thedEputies observed footprints leading from the Co-op to and across a creek inthe directionwhere the pickup had been parked. The footprintswere similar tothose found atthe Sunburst Co-op the previous evening. The tire tracks observed atboth Co-ops were similar; and (6) the deputies had information thepickup defendant was drivingwas equipped with a radio scanner tuned topolice frequencies. On July 13, 1975 upon stopping the Briner vehicle, the deputies examined the pickup tires and determined they were similar indesign tothe tracks found atthe Devon and Sunburst Co-ops. Deputies alsoobserved defendant's and Cain's pant legswere wet; that a pair of wet waffle stomper boots was on the pickup's floorboard; and that a radio scanner was present. Arrest was made without a warrant, thepickup was seized. On the same day a searchwarrant was issued to search the vehicle defendant was driving. This warrant was r'eturned on the

same day, together with thewaffle stompers and gloves. Later,

on July 25, 1975, deputies removed the vehicle's radio scanner and on July 26, 1975, the vehicle's tires. The defendant was charged by Information on September 

### 4, 1975 with theburglary of theFarmers Co-op OilCompany of Sunburst, Montana, !'on or about July 12, 1975". Evidence presented to thejury showed: 1). Footprints fromwaffle stompers were found inside and outside the Co-op after the burglary; defendant owned a pair of waffle stomperswhich was inhispickup atthe time of his arrest; expert opinion found the prints tobe made by boots with 

### a similar tread design and wear pattern as those of defendant.2). The vehicle defendant was driving was seen parked on the Interstatehighway ramp overlooking the Co-op during the early morning hours afterthenight of theburglary; fresh tire tracks were found at the Co-op; expert opinion found the tire tracks and the tires from the pickup defendant was driving tobe of similar tiredesign and tread wear. 3). Defendant's vehiclewas equipped with a radio scanner tuned to the major law enforcement frequencies. 4). An accomplice of defendant testified tothe participation of defendant intheburglary. From this evidence thejury convicted defendant of burglary. On the firstday of trial, after the jury had been voir dired and passed for causeby the county attorney, the attorney for defendant attempted to filevarious motions to suppress evidence and todismiss. The district court recessed and took testimony and argument on the motions; later it denied allmotions. From that denial defendant raises his first issue on appeal. Counsel fordefendant argues it ishis client's constitutional right touse the exclusionary rule atany time. In Statev. Dess, 154Mont. 231, 235, 462 P.2d 186, this Court reviewed the exclusionary rule: "The exclusionary rule fashioned inWeeks v. United States, 232 U.S.383, 34 S.Ct. 341, 58 L.Ed 652 (1914), and Mapp v, Ohio, 367 U.S. 643, 81S.Ct. 1684, 

### 6 L.Ed. 2d 1081 (1961) excludes from a criminal trialany evidence seized from the defendant inviolationof his4th Amendment rights. InMapp and Weeks the defendant against whom the evidence was held tobe inadmissible was the victim of the search. In the recent case of Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969) the Supreme Court rejected any expansion of the 4thAmendment and the exclusionary rule to include those who are aggrieved solelyby the introduction of damaging evidence, or those whose rightswere not violated by the search itself.

# * * *I1Ln a recent case the United States Supreme Court reiterated that the exclusionary rule was not a personal constitutional right of the aggrieved party and again rejected the fourth and most criticaljustification for the exclusionary rule enunciated in Mapp. In United States v. Janis, 428 U.S. 433, 96 S.Ct. 3021, 

### 49 L ed 2d 1046, 1056, the Court said: "The debate within the court on the exclusionary rule has always been a warm one. 

# *** The Court, however, has established that the 'prime purpose' of the rule, ifnot the sole one, 

## 'isto deter future unlawful police conduct! [Cited cases omitted] "Thus

## "'[1]n sum, the rule isa judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved. I United States v. Calandra, 414 U.S. at348, 38 L Ed 2d 561, 94 S.Ct. 613, 66 Ohio Ops.2d 320.'' 49 L ed 2d 1056. The question of "timeliness" iswell defined inMontana. Section 95-1806, R.C.M. 1947, sets forth the procedure for filing motions to suppress evidence illegally seized and provides in part:

"(a) A defendant aggrieved by an unlawful search and seizure may move the court to suppress as evidence anything so obtained. "(b) The motion shallbe made before trialunless for good cause shown the court shall otherwise direct. "(c) The defendant shall give atleast ten (10) daysi notice of such motion to the attorneyprosecuting or such other time as the court may direct. The defendant shall serve a copy of the notice and motion upon the attorney prosecuting.

In Statev. Gotta, 71Mont. 288, 290, 229 P. 405, this Court, speaking to the issue of "timeliness" stated:

":k 

# ** One wishing to preclude the use 

### of evidence obtained through a violation of his constitutional rights must protect himself by timely action, If hehas had opportunity to suppress the evidence before trialand has failed to take advantage of his remedy, objection to the evidence upon trial willnot availhim. 

# ***" 71Mont. 290. See also: Statev. Gallagher, 162Mont. 155, 509 P.2d 852. In the instant case defendant was aware of the facts and circumstances surrounding the arrest and the possibility of the introduction of certain evidence, long before the first day of trial. Upon filing of defendant's various motions to suppress,

no offer of evidence nor showing of good cause was given which prevented defendant from filinghis motions before trial. If under section 95-1806, we assume the evidence was obtained by an unlawful searchand seizure, it ?was necessary for the accused, who desired to exclude such evidence from his trial, tomake a timely objection to itsintroduction. Such was not the fact in this case, as the trialjudge found. Also a review of the record would allow the evidence in any event. Defendant's second issue concerns whether the testimony of William J. Felton, an accomplice, was sufficiently corroborated by independent evidence. Defendant and plaintiff agree section 95-3012, 

### is the applicable statute and the numerous prior opinions of this Court concerning requirements for corroboration of an accomplice's testimony have continued validity. Section 95- 3012 replaces section 94-7220, R.C.M. 1947. The only difference between the present provision and 

### itspredecessor is the substitution of thewords "one responsible or legally accountable for the same offense, as defined by section 94-2-106'1 for the term "an acc~mplice'~. The -questionwhether there is sufficient, independent corroboration of an accomplice's testimony, tending to connect

a defendant with the commission of a crime 

### is one of law andmust be decided by the trialcourt. Statev. Spielmann, 163Mont. 199, 207, 516 P.2d 617. See also: Statev. Moran, 142Mont. 423, 452, 384 P.2d 777; Statev. Dess, supra. The requirements of section 94-7220 the predecessor of section 95-3012, arewell established inMontana. This Court in Spielmann repeats the requirements of section 94-7220 as explained inDess: 

# "'*

# *

# * Appellant suggests that the evidence, independent of the testimony of an accomplice, must prove him guilty beyond a reasonable doubt. This 

### isnot the law inMontana, however. Though there must be some independent evidence connecting the defendant to the crime, it.need not be sufficient alone to sustain a conviction. The jury can consider the testimony of the accomplice and give the testimony whatever weight they desire. In Statev. Donges, 126 Mont. 341, 251 P.2d 254,(1952), the Court stated atpage 347, 251 P.2d atpage 257: 

## ""'The evidence which corroborated Bungard could be furnished by the defendants. It could be circumstantial, It need not extend to every fact towhich Bungard testified and need not be sufficient tojustify a conviction or establish a prima facie case of guilt; it being sufficient if it tends toconnect defendants with the commission of the crime. Whether it tends todo so 

### is a question of law, while 

### itsweight-its efficacy to fortify the testimony of Eungard and render his story trustworthy

# - is a matter for the consideration of the jury. Statev. Cobb, 76 Mont. 89, 245 P. 265."'" 163Mont. 207,208. In this case there 

### is sufficient corroborating evidence 

### in the record for the district courtjudge, as a matter of law, to warrant the submission of the case to thejury: (a) waffle stomper footprints were discovered inside and outside the Co-op after theburglary; (b) defendant owned a pair of waffle stomper boots seized on the same day ashis arrest; (c) expert comparison of defendant's boots to footprints found atthe Co-op demonstrated the prints were made by boots similar to defendantis; (d) the pickup defendant was driving was seen parked on the Sunburst Interstate 15 exit ramp overlooking the Co-op in the early morning hours following the night of the burglary; (e) freshtiretracks were found atthe Co-op after the burglary; (f) expert comparison of the tire tracks found atthe Co-op and the tires on the pickup defendant was driving determined the tracks were made by tireswith similar tread design and wear as those of the pickup; (g) eyewitnesses who saw the pickup defendant was driving on the Sunburst exit ramp, observed thepickup proceed down the ramp and repark atthe Texaco station across the street from the Co-op; (h) waffle stomper footprints led from the ramp towards the Co-op; and (i) the pickup defendant was drivingwas equipped with

a radio scanner tuned toMontana law enforcement channels. Defendant's third issue claims the time alleged in the Information was not sufficiently definite to inform defendant of the nature of the charge against him. This Court finds this issuewithout merit. Defendant's motion to dismiss, which challenged the sufficiency of'the Information, was properly denied asuntimely filed. Defendant's fourth issue contends the court erred indenying his motion for a new trial, based on newly discovered evidence. This Court inStatev. Gallagher, supra, set forthrequirements for thismotion: 

## "*

# ** (1) That the evidence must have come tothe knowledge of the applicant since the trial; (2) that it was not through want of diligence that itwas not discovered earlier J;

# *

# *." 162Mont. 161. By raising this issue, defendant requires this Court to review the discretionof the trialcourt. Section 95-2101, R.C.M. 1947, states inpart:

"(b) Motion for a New Trial "(1) Following a verdict or finding of guilty the court may grant the defendant a new trial if required in the interest of justice."The trialcourt using sound discretionmust decide if a new trialisrequired "in the interest of justice". Where the trial court acts within 

### itsdiscretion, this Court has no right of review. State

### v. Laughlin, 105Mont. 490, 497, 73 P.2d 718; State

### v. Quigg, 155Mont. 119, 147, 467 P.2d 692. Here defendant supported his motion fornew trialwith four affidavits. Three were from alibiwitnesses who purportedly

saw defendant on the night in question, and one was from John S. Lindsey 

### Jr., an investigator, who knew of and tried to locate

one alibiwitness before trial. This affidavit from Lindsey shows the alibiwitness was known before trial. Statev. Gallagher, supra. The trialjudge was in the best position to weigh the merits of the other three affidavits. Statev. Quigg, supra. We find there was no abuse of discretionby the trialcourt indenying the motion for a new trial. The judgment isaffirmed.

Chief Justice 

# A We Concur:

Justices.

-.g

# -Mr. Justice Daniel J. Shea specially concurring:

I agree with the result of this case but I do not agree with allthat issaid inrelation to the search and seizure question. The trialcourt did not find the motion to suppress was untimely. After the motion to suppress was filedthe trial judge heard the evidence and denied the motion without stating his reasons. He left it for this Court to speculate as to the reasons he denied the motion. I do agree however, that the evidence was not illegally seized. With regard to the exclusionary rule and 

### itsapplication to searches and seizures, I feel this Court ispaying too much attention to the United States Supreme Court ininterpreting the 4thAmendment to the United States Constitution, and not paying enough attention toArt. 11, Section 

### 11, of Montana's 1972 Constitutionwhich provides: "The people shallbe secure intheir persons, papers, homes and effects from unreasonable searches and seizures. No warrant to search any place, or seize any person or thing shall issuewithout describing the place tobe searched or the person or thing tobe seized, orwithout probable cause, supported by oath or affirmation reduced towriting

# ." Undoubtedly we arebound by the United States Supreme Court in its interpretations of the United States Constitution but we

arenot bound by itwhen we implement and give meaning to Montana's Constitution. We certainly can reach a contrary result by interpreting similarprovisions of ~ontana's Constitution. Without specifically referring to theMontana Constitution this Court seems tobe holding that the exclusionary rule 

### isnot

a personal right of the accused, although the right tobe freefrom unreasonable searches and seizures 

### ishispersonal right. Without the exclusionary rule the right tobe free from unreasonable searches and seizures would be meaningless. I would hold the exclusionary rule ispart and parcel of Art. 11, Section 

### 11 of the 1972Montana Constitution and accordingly isa personal right of the defendant. This does not mean that a defendant

can feel free toraise the issue atany time during the proceedings. But it does mean that a defendant must be informed, in sufficient time ahead of trial, that he has a right to make a motion to suppress, If a defendant filesno motion to suppress, the court should obtain an informed, intelligent waiver. Here, the defendant has shown no prejudice however, because the trialcourt did hear the motion to suppress and a review of the evidence clearly shows the motion was properly denied.