State v. Beach

• Decision Date: 27 August 1985
• Docket Number: No. 84-373,84-373
• Court: Montana Supreme Court
• Parties: The STATE of Montana, Plaintiff and Respondent, v. Barry Allan BEACH, Defendant and Appellant.

Page 94

705 P.2d 94

217 Mont. 132

The STATE of Montana, Plaintiff and Respondent, v. Barry Allan BEACH, Defendant and Appellant.

No. 84-373.

Supreme Court of Montana.

Submitted March 13, 1985.

Decided July 25, 1985.

Rehearing Denied Aug. 27, 1985.

Moses Law Firm, Richard Carstenson, argued, Billings, for defendant and appellant.

Mike Greely, Atty. Gen., Helena, Clay Smith, argued, Asst. Atty. Gen., Helena, James A. McCann, County Attorney, Wolf Point, for plaintiff and respondent.

GULBRANDSON, Justice.

Defendant appeals from a denial of his motion to supress, motion for change of venue, jury verdict of guilty of deliberate homicide, and sentence imposed thereon; all rendered in the District Court of the Fifteenth Judicial District, Roosevelt County, Montana. We affirm.

On June 16, 1979, the body of Kimberly Nees was discovered in the Poplar River near Poplar, Montana. She had been bludgeoned to death. The Roosevelt County Sheriff's Office investigated the crime, but was unable to make an immediate arrest. High on the list of suspects was the defendant, Barry Allen Beach.

Several years later, on January 4, 1983, the Ouachita Parish, Louisiana, Sheriff's Office received a complaint from Carolyn Beach, Barry Beach's step-mother. She alleged that the defendant, then living in Monroe, Louisiana, had picked-up two under age girls from school and that they had not returned. Deputy Talmadge Stutts responded to her complaint, and went to the defendant's house. The defendant admitted that both girls had been there earlier in the day, but had gone home. Stutts then advised the defendant of his Miranda rights, and asked if he could inspect the apartment. According to Stutts, the defendant consented to the search. The defendant later testified at a suppression hearing that he did not give Deputy Stutts permission to enter his apartment. Stutts entered, and following the search, arrested defendant on the charge of contributing to the delinquency of minors. He then took the defendant to the Ouachita Parish Sheriff's Office.

That night, defendant signed a Miranda waiver form and gave a statement regarding the contributing charge. He spent the night in jail. The next day, January 5, defendant telephoned his mother, Roberta Clincher, in Poplar, Montana and advised her of his arrest. Mrs. Clincher then contacted Tim Beach, the defendant's uncle, who was also in Monroe, Louisiana, to see about getting the defendant out of jail.

The defendant also contacted his step-mother, Carolyn Beach, and allegedly threatened to kill her for complaining to the Sheriff's Office. Mrs. Beach reported the threat to Alfred Calhoun, the Commander of the criminal investigation unit of the Ouachita Parish Sheriff's Office. She also told Commander Calhoun that the defendant was a suspect in the Nees murder in Montana. The Louisiana authorities contacted the Roosevelt County Sheriff and confirmed Mrs. Beach's report. They also indicated to the Roosevelt County Sheriff that Barry Beach was a suspect in three murders in Louisiana.

On January 6, 1983, Louisiana investigators began to question Barry Beach. Sergeant Jay Via first interviewed the defendant after giving him Miranda warnings and having a waiver signed. Sergeant Via testified at the suppression hearing that the January 6 interview lasted approximately one hour, from 11:00 a.m. to 12:05 p.m. The defendant testified that this interview commenced at 7:30 a.m. and lasted four hours.

At the time of the first interview, defendant was still being held on the contributing charge. That afternoon, Geary Aycock, an assistant district attorney for Ouachita Parish requested the Sheriff's Office to release the defendant. Sergeant Via told Aycock about the death threat and the Nees murder in Montana. On this basis, Aycock authorized continued custody of the defendant. Bail remained set at $1,500, the amount previously set for the contributing to the delinquency of minors charge.

That afternoon, Tim Beach came to the Ouachita Parish Correctional Center to post bail for the defendant. Tim Beach spoke to Sergeant Via, and Via testified that he told Tim that he had a right to post bond, but that because of the death threats, the defendant's step-mother and father desired that Barry Beach remain in custody. Tim Beach testified that Via explained to him the procedure to get psychiatric help for Barry Beach, and also told him that getting a lawyer would be "a waste of money." Via denied making any specific recommendations to Tim Beach.

Via arranged a phone conversation between Tim Beach and the defendant during which the defendant allegedly told Tim that he did not wish to be bailed out. Tim Beach later talked in a three-way conference call that included Sergeant Via, to his mother, Mrs. Clincher, who at that time indicated that she was "content" with the defendant remaining in jail. She testified that she assented to this because Sergeant Via had assured her that the defendant would be provided with psychological help and that he would be released soon anyway.

Tim Beach also testified that he remembered talking to an assistant district attorney who told him that the defendant would be released if taken back to Montana. The assistant district attorney allegedly told Tim Beach to wait in the courthouse for the defendant's release. Tim did so, but several hours later received word that other charges were being brought against the defendant, and that he was also being investigated for murder. Tim Beach could not say whether these last events occurred on January 6 or 7, but the record shows two things; first that charges against the defendant for deliberate homicide were not brought until January 8, and second that no bond was posted for the defendant on January 6. The record also shows that the defendant had not yet been taken before a judge or magistrate for an initial appearance, arraignment, or proceeding.

The questioning of Barry Beach continued at 12:30 p.m. on January 7. This interview concerned the three Louisiana murders, and the Nees murder in Montana. Sergeant Via again did the questioning. He gave the defendant Miranda warnings and received a signed waiver thereof. He testified that the defendant was coherent and comfortable in the interrogation room. Via interrupted the interview once, when another deputy entered the room, to give the defendant another Miranda warning and to obtain another waiver. At approximately 2:30 p.m. the defendant authorized Sergeant Via to conduct a stress evaluation test. Via conducted the test and found stress indicative of deception. Because of this, Via requested Commander Calhoun to conduct another test. Commander Calhoun, after giving more Miranda warnings, did so using a different form of questioning. Testimony varies as to what occurred at this point, but according to the defendant, he was left alone with Commander Calhoun, who first conducted the test, and then accused him of lying. The defendant also testified that Commander Calhoun was abusive, and threatened him, telling him that he was going to "fry in the electric chair." Commander Calhoun denied using any such tactics, stating that all he did was administer the test and tell Barry Beach that his responses indicated deception. The Commander further testified that after he told the defendant his answers were apparently untruthful, Beach broke down and began to talk about the Nees murder.

Sergeant Via re-entered the interview room at approximately 7:00 p.m. and Commander Calhoun left. When Via came into the room, Barry Beach was broken down and crying. He began talking and admitted murdering Kimberly Nees. Via had Calhoun return to the interview room, and had the defendant sign another Miranda waiver. They then tape recorded an interview with the defendant in which he described in detail facts, not known by the general public, concerning the murder of Kimberly Nees.

On January 8, the defendant retained counsel. On January 11, the defendant, his attorney, Sergeant Via, and Joe Cummings, a deputy sheriff, held a conference. Defendant was given Miranda warnings, and signed a waiver thereof. During this meeting, the defendant again admitted he murdered Kimberly Nees, but denied any involvement in the unsolved Louisiana murders.

During this time the investigators in Louisiana had been in contact with the Roosevelt County Sheriff's Office. On January 8, 1983, the Roosevelt County Attorney filed a petition in the youth court for the Fifteenth Judicial District, Roosevelt County, seeking a declaration that the defendant, then 20 years old, was a delinquent youth, and requesting authority to incarcerate him. The county attorney simultaneously filed a motion to transfer the youth court proceedings to District Court. This motion was not ruled upon before defendant turned 21. The District Court issued an order of detention and, for extradition purposes, a finding of probable cause.

The defendant turned 21 years of age on February 15, 1983. On April 29, 1983 his Montana attorneys filed a motion to dismiss the youth court action. The basis for the motion was the loss of youth court jurisdiction over the defendant under section 41-5-205(3), MCA, at the time he reached the age of 21. The defendant's motion was granted by order dated May 4, 1983. Defendant had been charged in District Court on May 3, 1983.

The defendant was extradited back to Montana in August of 1983 and was tried on April 9, 1984 in Glasgow, Valley County, Montana. Valley County is adjacent to Roosevelt County. On April 13, 1984, the jury returned a verdict of guilty of deliberate homicide. On May 11, 1984 judgment was entered on the conviction and Barry Beach was sentenced to a term of 100 years in the Montana State Prison. The court also determined the defendant to be ineligible for designation as a non-dangerous offender and further determined that he would be restricted from eligibility for parole and release programs while...