State v. DuBray

• Decision Date: 23 September 2003
• Docket Number: No. 00-102.,00-102.
• Citation: 317 Mont. 377,77 P.3d 247,2003 MT 255
• Parties: STATE of Montana, Plaintiff and Respondent, v. Donald DuBRAY, Defendant and Appellant.
• Court: Montana Supreme Court

77 P.3d 247

2003 MT 255

317 Mont. 377

STATE of Montana, Plaintiff and Respondent, v.Donald DuBRAY, Defendant and Appellant.

No. 00-102.

Supreme Court of Montana.

Submitted on Briefs October 31, 2002.

Decided September 23, 2003.

For Appellant: Lawrence A. LaFountain, Attorney at Law, Great Falls, Montana.

For Respondent: Hon. Mike McGrath, Attorney General; Tammy K. Plubell, Assistant Attorney General, Helena, Montana, Brant Light, Cascade County Attorney, Great Falls, Montana.

Justice JIM REGNIERdelivered the Opinion of the Court.

¶ 1Donald DuBray was convicted by a jury of deliberate homicide, theft, and robbery, all relating to an incident which occurred at a Great Falls convenience store in the early morning hours of October 7, 1986.He appeals his conviction.We affirm.

BACKGROUND

¶ 2 On the night of October 6, 1986, Suzette Pritchard was working at a Town Pump convenience store located on 10th Avenue South in Great Falls.Friends of Suzette's, including Becky Hill, Vicki Kuhn, and Suzette's sister, Annette Pritchard, visited Suzette at work periodically throughout her shift that night.At about 12:55 a.m., Annette, Becky, and Vicki left to get Suzette french fries from a nearby Burger King.When they returned about five minutes later, they noticed a maroon-colored car parked behind the Town Pump that they had not seen before.The three generally described the car as older, beat-up, and dirty.

¶ 3 Vicki took the french fries into the Town Pump while Annette and Becky waited in the car.Vicki noticed a man she did not recognize at the microwave.The man walked toward her and stopped about three feet in front of her.Vicki observed that he may have been intoxicated.She reported that the man made her feel uneasy, and that she attempted to make conversation with him.Becky and Annette also saw the man, and all three were able to give similar, though not identical, descriptions of him.

¶ 4 When Vicki returned to the car, she told Annette and Becky that the man gave her the creeps.Becky had the feeling he was just waiting for them to leave.Annette decided she would call her sister intermittently through the rest of her shift that night.As they drove away from the Town Pump, Annette noticed it was 1:08 a.m.

¶ 5 At about 1:20 a.m., Larry Blanchard, the owner of a private security business, drove in front of the Town Pump.He observed a dirty, red, mid-sized car with some body damage leaving from the rear of the store.¶ 6 After Vicki dropped her friends off, she and her boyfriend returned to the Town Pump to visit with Suzette.Vicki found Suzette's body lying on the floor behind the counter.At 1:22 a.m., Officer Porter from the Great Falls Police Department was dispatched to the Town Pump.Suzette was dead when he arrived.She had been stabbed multiple times in the chest.During his investigation of the crime scene, Officer Porter noticed a wrapped-up sandwich lying on the counter.Later that night, a detective processed the crime scene and lifted fingerprints throughout the store.Unfortunately, the prints on the sandwich wrapper were not usable.

¶ 7 The owner of the Town Pump found that approximately $300 was missing from the store.About a week after the homicide, he realized that a knife with a five-inch steel blade, which was always kept in the store, was missing.He was also able to determine by looking at cash register receipts, that the last transaction before the homicide was for ninety nine cents, the price of the sandwich on the counter.

¶ 8 In the weeks and months following the homicide, Vicki and Becky helped develop composite drawings of the suspect.All three of the primary witnesses, Annette, Becky, and Vicki, participated in approximately fifty photo lineups.The detectives followed up on information provided by the public, but to little avail.At one point they investigated Joseph Grosbusch, another Town Pump employee, but concluded he was not a suspect.

¶ 9 Between 1989 and 1997, there were no significant developments in the investigation.In 1997, however, Detective Cameron received information from a confidential informant that Donald DuBray committed the homicide.DuBray was in prison for a rape conviction at the time the tip was provided.The confidential informant also told Detective Cameron that DuBray owned 1969 and 1974 red Pontiacs.Based on this information, Detective Cameron reopened the investigation.Detective Cameron learned that DuBray had been driving a 1967 red or maroon Pontiac with damage to the rear end at the time of the homicide.

¶ 10 At the time of Suzette's murder, DuBray lived with his girlfriend, Rose Valenzuela.Rose testified that on the night of October 6, 1986, the night of the homicide, DuBray left the apartment and did not return until early the morning of October 7, 1986.That day Rose flew to Seattle.She testified that a month or two later when DuBray found her in Seattle, he told her he had robbed the Town Pump.

¶ 11 As Detective Cameron continued with the investigation, more and more clues led him to suspect DuBray.DuBray was finally charged by Information with deliberate homicide, theft, and robbery in January of 1998.DuBray was convicted by a jury on all Counts.He appeals the conviction.

¶ 12We address the following issues on appeal:

¶ 13 1.Did the District Court err when it denied DuBray's motion to dismiss on the grounds of pre-indictment delay and failure to preserve potentially exculpatory evidence?

¶ 14 2.Did the District Court abuse its discretion when it refused to allow expert testimony on eyewitness identification?

¶ 15 3.Did the District Court abuse its discretion when it allowed testimony by a witness who had been previously hypnotized and refused to allow expert testimony on the effects of hypnosis on memory?

¶ 16 4.Did the District Court abuse its discretion when it refused to allow expert testimony regarding the credibility of informants who are incarcerated?

¶ 17 5.Did the District Court err when it denied DuBray's motion to suppressVicki Kuhn's testimony that she identified DuBray in a photographic lineup?

¶ 18 6.Did the District Court abuse its discretion in its rulings on the admissibility of testimony regarding whether Grosbusch had been positively identified as a suspect in photo lineups?

¶ 19 7.Did the District Court abuse its discretion by admitting Wally Clark's fingerprint card into evidence?

¶ 20 8.Did the District Court err when it denied DuBray's motion for a mistrial?¶ 21 9.Did the District Court err when it refused to give DuBray's proposed jury instruction regarding informants?

¶ 22 10.Did the District Court err when it denied DuBray's motion to suppress copies of telephone recordings made between DuBray and others while DuBray was in prison?

¶ 23 11.Did the District Court abuse its discretion by denying certain discovery requests?

¶ 24 12.Were DuBray's due process rights violated because one of the jurors claimed to be a psychic?

¶ 25 13.Did the District Court err when it denied DuBray's motion to dismiss Counts II and III as beyond the statute of limitations?

DISCUSSION

ISSUE ONE

¶ 26 Did the District Court err when it denied DuBray's motion to dismiss on the grounds of pre-indictment delay and failure to preserve potentially exculpatory evidence?

¶ 27 DuBray first argues that the District Court should have granted his Motion to Dismiss because the State failed to timely investigate him as a suspect in Suzette's murder and failed to preserve potentially exculpatory evidence.Because this is essentially a claim that DuBray was prejudiced due to the State's pre-indictment delay, we will treat it as such.

¶ 28We review a district court's decision regarding a pre-indictment delay as a question of constitutional law.State v. Taylor,1998 MT 121, ¶ 18, 289 Mont. 63, ¶ 18, 960 P.2d 773, ¶ 18.We review a district court's conclusions of law to determine whether its interpretation of the law is correct.Taylor,¶ 19.Our consideration of a defendant's claim that pre-indictment delay has violated his right to due process pursuant to the Fifth and Fourteenth Amendments of the United States Constitution involves a two-step process.Taylor,¶ 20.First, the defendant has the burden to show that he has suffered actual and substantial prejudice from the delay.Taylor,¶ 20.Then, if he has shown sufficient prejudice, we must weigh the reasons for the delay offered by the State, as well as the length of the delay, to determine whether the defendant's rights have been denied.Taylor,¶ 20.We should be guided by the principle that a pre-indictment delay will lead to a violation of a defendant's due process rights if it can be said that requiring the defendant to stand trial "violates those fundamental conceptions of justice which lie at the base of our civil and political institutions and which define the community's sense of fair play and decency."Taylor,¶ 20(citation omitted).

¶ 29 As we stated previously, Suzette was murdered in 1986.Nothing came of the investigation in the years following the murder until 1997, when a confidential informant told law enforcement officers that DuBray committed the homicide.Based on information provided by the confidential informant, the investigation of Suzette's murder was reopened, with DuBray as the focus.

¶ 30 As DuBray points out, Taylor requires the State to explain how the periods of inactivity comport with a conscientious and reasonable investigation.Taylor,¶ 20.In Taylor,the State had identified a suspect it thought had committed workers' compensation fraud.Taylor,¶ 5.By the time the State finally charged him, two of the defendant's medical witnesses, who could have supported his defense, had died.Taylor,¶ 13.We held that the State offered no satisfactory explanation for the two-year delay.Taylor,¶ 33.

¶ 31 DuBray argues that as in Taylor, here, the State provided no reason for the long period of time that...