State of Mont. v. ALLEN

• Decision Date: 06 October 2010
• Docket Number: No. DA 09-0091.,DA 09-0091.
• Citation: 357 Mont. 495,2010 MT 214,241 P.3d 1045
• Parties: STATE of Montana, Plaintiff and Appellee, v. Brian Hayden ALLEN, Defendant and Appellant.
• Court: Montana Supreme Court

357 Mont. 495

241 P.3d 1045

2010 MT 214

STATE of Montana, Plaintiff and Appellee,

v.Brian Hayden ALLEN, Defendant and Appellant.

No. DA 09-0091.

Supreme Court of Montana.

Orally Argued May 3, 2010.

Submitted May 4, 2010.

Decided Oct. 6, 2010.

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For Appellant: Joslyn Hunt, Chief Appellate Defender; Taryn S. Hart, Tammy A. Hinderman, Gem Koan Mercer (argued), Assistant Appellate Defenders, Helena, Montana.

For Appellee: Steve Bullock, Montana Attorney General; Matthew T. Cochenour(argued), Assistant Attorney General, Helena, Montana, Gina Dahl, Hill County Attorney, Havre, Montana.

Justice W. WILLIAM LEAPHARTdelivered the Opinion of the Court.

¶ 1 AHill County jury convicted Brian Hayden Allen(Allen) of two counts of assault with a weapon and one count of criminal endangerment for beating Louis Escobedo(Escobedo) with a pistol and firing the pistol in a residential neighborhood.Allen appeals the conviction, alleging that the District Court committed reversible error by denying his challenge for cause of a prospective juror, denying his motion to suppress recorded telephone conversations, and denying his request for a jury instruction on accomplice testimony.We reverse and remand for a new trial.

¶ 2We address the following issues on appeal:

¶ 31.Whether the District Court abused its discretion when it denied Allen's challenge for cause.

¶ 42.Whether the District Court erred when it denied Allen's motion to suppress a warrantless recording of a telephone conversation between Allen and a confidential informant.

¶ 53.Whether the District Court abused its discretion when it denied Allen's request for a jury instruction on accomplice testimony.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 6 In February 2008the State charged Allen with four counts of assault with a weapon and one count of criminal endangerment, all felonies.The State later added a count of felony intimidation.According to the supporting affidavit, the charges (save for the first count of assault with a weapon, which was eventually severed and then dismissed) arose from an incident that occurred on the night of January 27, 2008, in Havre, Montana.

¶ 7 According to the allegations, on that night Allen used a pistol to threaten and then bludgeon (or, “pistol-whip”) Escobedo.The affidavit sketched the following chronology of events.Allen, getting increasingly drunk at the Shanty Bar in Havre, dialed Kristin Golie(Golie)(who was, unbeknownst to Allen, a police informant, working with the local drug task force) to chauffer him to the trailer house where Escobedo was babysitting his nieces.Upon arriving at the trailer house, Allen and Golie somehow (the affidavit glosses over this) drew Escobedo into the backseat of the car.Allen pointed the pistol to Escobedo's face and demanded money owed to him.Escobedo did not have the money, so Allen struck him repeatedly in the head with the pistol, causing him briefly to lose consciousness.During the fray, Allen fired the pistol, shooting a hole through the car's rear window.Eventually Escobedo was released, and Allen and Golie returned to the Shanty briefly before retiring to their separate residences for the evening.At numerous points during the incident, Allen also allegedly pointed the gun at Golie and threatened to kill her.At trial Allen testified and admitted to this basic storyline, with two critical exceptions: (1) Allen denied using or discharging a gun during the altercation, and (2) Allen denied ever threatening Golie.

¶ 8 As mentioned above, Golie was a confidential informant (CI), and she aided a law enforcement investigation of Allen.As a CI, Golie surreptitiously recorded her cell phone conversations with Allen.Law enforcement did not obtain a search warrant to record the conversations at issue.Before trial, Allen moved (pursuant to State v. Goetz,2008 MT 296, 345 Mont. 421, 191 P.3d 489) to suppress these warrantless recordings, arguing that they were obtained in violation of his rights under the Montana Constitution to privacy and to be free from unreasonable searches and seizures.The State opposed the motion, responding that no constitutionally cognizable search had actually occurred because Allen had no expectation of privacy in his cell phone calls.In fact, the State proclaimed that “one can never have an expectation of privacy in a phone conversation,” since existing technology makes it possible for third-parties to eavesdrop on telephone conversations.Further, the State added, society is not willing to recognize as reasonable an expectation of privacy in phone conversations.

¶ 9The District Court held a hearing on the motion.Golie and Allen testified.Golie testified that she was a CI involved in an investigation of Allen and that she recorded calls with Allen at the behest of law enforcement.Golie was usually alone during the calls, but occasionally law enforcement or family and friends were present.During the phone calls, Golie could also hear voices and other sounds in the background, though the only voice she could identify was that of Allen's wife.Allen in turn testified that he was unaware that Golie was recording their phone conversations and that he believed the conversations were private.Allen never heard other background voices when he spoke with Golie.Allen also testified that his cell phone would alert him if the person on the other end was using the speaker phone and that he could tell by the echo whether someone was listening on an extension line.Thus, he believed he could detect whether any third parties were overhearing his telephone calls.(Although the testimony indicated that numerous calls were recorded, only one of the calls is at issue.)

¶ 10The District Court denied Allen's motion.The court observed that Allen “had a subjective expectation of privacy in the cell phone calls he made to Golie and the calls she made to him.”Nevertheless, the court concluded that society is unwilling to recognize as reasonable an expectation of privacy in telephone conversations.Unlike face-to-face conversations, the court reasoned, a party to a telephone conversation can never be sure who may be listening to the conversation on the other end.The court also noted Golie's testimony that Allen was apparently in a public setting during portions of his call to her because she could hear voices in the background.Thus, “[w]hether he made the calls or received them from Golie, it was his choice to use the words he did and that left him at risk that someone would hear them or Golie would be recording them.”Accordingly, the court concluded that the State could present the recordings at trial because no search requiring a warrant had occurred.

¶ 11The case went to trial in October 2008.During voir dire (jury selection)the parties disputed whether the court should eliminate a prospective juror, Dennis Morgan, on account of his being partial to the prosecution.Upon the prosecutor's initial inquiry, Morgan declared that he had made up his mind about the case because he had read the newspaper, he considered himself “a law-and-order sort of person,” and he knew the police officers involved in the case both professionally and personally.

¶ 12The prosecutor attempted to rehabilitate Morgan and explained the need for jurors to hear all the evidence before deliberating.She asked, “So if I don't prove the case are you saying that you're still going to find him guilty?”Morgan responded that he would not.But under further examination by the prosecution and the defense, Morgan said that he would be “a very impatient juror” if the trial lasted more than two days and that, if it did last more than two days, he would summarily convict Allen to-as the prosecutor put it-“hurry up and get out of here.”Morgan also repeated that he would be “a great juror” for the prosecution, that he was “very law and order,” and that he“kn[ew] all the officers.”When the defense had its turn to question the jurors, Allen's counsel immediately asked Morgan if he had serious doubts about his ability to be fair in the case.Morgan confirmed that he did.

¶ 13 Defense counsel then challenged Morgan for cause, asking the court to remove him from the jury pool.The prosecution resisted, “The panelist [h]as indicated that he will listen to the evidence before making his determination and he's already indicated that he's not automatically going to find guilt or innocence until then.”The court denied the challenge, explaining, “Mr. Morgan has said that he had some biases towards that, but I don't think he indicated that he couldn't be fair and listen to the evidence.”Allen subsequently used a peremptory challenge to remove Morgan from the panel and exhausted his peremptory challenges.

¶ 14 After the jury was selected, the parties gave opening statements and then presented evidence and testimony.Witnesses called by the State during its case in chief included Escobedo, Golie, the bartender (Jodi Pickens) and a patron (Shane Munyan) at the Shanty Bar on the evening of the assault, one of Allen's friends (Timothy Vigliotti), and various members of the Havre Police Department.During Golie's testimony, the State introduced the recorded conversation between Golie and Allen that was the subject of Allen's motion to suppress.The State's witnesses described a story that closely paralleled the account from the State's charging documents-that Allen attacked Escobedo with a gun and threatened Golie.Allen, testifying in his own defense, agreed that he had attacked Escobedo in Golie's car, while Golie looked on.But Allen steadfastly denied using a gun in the attack and denied threatening Golie at any point.

¶ 15 Also in dispute was whether Golie was an accomplice to the attack.Golie testified at trial that though she agreed to drive Allen to meet Escobedo, she believed that Allen intended only to acquire narcotics...