State v. Grimes

• Decision Date: 18 June 1999
• Docket Number: No. 98-149.,98-149.
• Parties: STATE of Montana, Plaintiff and Respondent, v. Burly M. GRIMES, Defendant and Appellant.
• Court: Montana Supreme Court

982 P.2d 1037

1999 MT 145

STATE of Montana, Plaintiff and Respondent, v. Burly M. GRIMES, Defendant and Appellant.

No. 98-149.

Supreme Court of Montana.

Submitted on Briefs January 28, 1999.

Decided June 18, 1999.

Edmund F. Sheehy, Jr., Cannon & Sheehy; Helena, Montana, Bridgitt Erickson, Attorney at Law; Lincoln, Montana, For Appellant.

Hon. Joseph P. Mazurek, Attorney General; Tammy K. Plubell, Assistant Attorney General; Helena, Montana, Valerie D. Wilson, Jefferson County Attorney; Boulder, Montana, For Respondent.

Justice TERRY N. TRIEWEILER delivered the Opinion of the Court.

¶ 1 By information filed in the District Court for the Fifth Judicial District in Jefferson County, the defendant, Burly Michael Grimes, was charged with aggravated kidnaping, in violation of § 45-5-303, MCA; robbery, in violation of § 45-5-401, MCA; and deliberate homicide, in violation of either § 45-5-102(1)(a) or (b), MCA. Following trial by jury, Grimes was convicted of all three offenses. He appeals from his convictions. We affirm the judgment of the District Court.

¶ 2 There are three issues on appeal ¶ 3 1. Did the District Court err when it denied Grimes' motion to suppress?

¶ 4 2. Did references to a co-defendant's statements to law enforcement officials violate Grimes' right to confront witnesses against him?

¶ 5 3. Did the District Court err when it refused Grimes' proposed "jailhouse informant" instruction?

FACTUAL BACKGROUND

¶ 6 On February 9, 1996, a Montana Highway Patrolman observed a vehicle with Idaho license plates traveling through Billings with a small child standing up unrestrained on the front seat. The officer requested that his dispatcher run the license plate through the National Crime Information Center database. He was told that the vehicle was registered to Michael Fox, who had been reported missing approximately three days earlier.

¶ 7 The MHP officer initiated a traffic stop of the vehicle. In addition to the child, Burly Grimes, his co-defendant Joe Gordon, and Gordon's wife occupied the vehicle. Grimes and Gordon produced identification which established that neither was Michael Fox, and both denied knowing Fox. The officer handcuffed Gordon and Grimes prior to speaking with them. He did not provide Miranda warnings. Each attributed possession of the vehicle to the other.

¶ 8 Yellowstone County detectives arrived at the scene of the stop and checked the trunk of the vehicle for a body. One detective informed Grimes that he was being detained as part of an investigation. He advised Grimes of his Miranda rights and Grimes requested counsel, at which point the detective halted the interview. Gordon waived his Miranda rights, however, and spoke with detectives. Grimes and Gordon were eventually transported to Idaho to face grand theft charges. Pursuant to a plea agreement, Gordon provided law enforcement authorities with the location of Fox's body and other information, which led to the arraignment of both men in Jefferson County on charges off kidnaping, burglary, and deliberate homicide. Their cases were severed for purposes of trial, and Gordon did not testify at Grimes' trial.

ISSUE 1

¶ 9 Did the District Court err when it denied Grimes' motion to suppress?

¶ 10 The standard of review of a district court's denial of a motion to suppress is whether the court's findings of fact are clearly erroneous, and whether those findings were correctly applied as a matter of law. See State v. Roberts (1997), 284 Mont. 54, 56, 943 P.2d 1249, 1250

.

¶ 11 Grimes moved to suppress both the fruits of the traffic stop and his pre-Miranda custodial statements. The District Court suppressed the pre-Miranda statements, but denied the rest of the motion. Grimes contends that the child restraint law, § 61-9-420, MCA (1995), did not provide sufficient cause to initiate an investigative stop.

¶ 12 The MHP officer who initiated the traffic stop of the vehicle in which Grimes was a passenger testified at the suppression hearing that he decided to pull over the vehicle because of the unrestrained child. He also testified that prior to the stop, he obtained an NCIC report that the registered owner of the vehicle, Michael Fox, was a missing person, as well as information from Idaho law enforcement officials that confirmed the report and indicated that Fox was "missing, and possibly endangered."

¶ 13 We have adopted a two-part test to determine whether an officer had sufficient cause to stop a person. First, the State must show objective data from which an experienced officer can make certain inferences. Second, the State must demonstrate a resulting suspicion that the occupant of the vehicle is or has been engaged in wrongdoing or was a witness to criminal activity. See State v. Gopher (1981), 193 Mont. 189, 194, 631 P.2d 293, 296

.

¶ 14 With respect to its conclusion that the officer had a particularized suspicion justifying the stop, the District Court found that "the NCIC report alone provided enough objective data for Officer McDonald to infer that the occupants of the vehicle might have more information about the whereabouts of Fox."

¶ 15 The District Court based its conclusion on the MHP officer's receipt of the missing persons bulletin, rather than on the child restraint law. Therefore, the question becomes whether the missing and endangered report for the registered owner of a vehicle could serve as the basis for a particularized suspicion.

¶ 16 In State v. Kills On Top (1990), 243 Mont. 56, 793 P.2d 1273, Billings law enforcement officers stopped a vehicle which matched the license plates and description of a vehicle described in a police bulletin, whose occupants might have been involved in an assault and kidnaping in Miles City. We held that when such information is obtained from a flier or bulletin it may serve as the basis for a vehicular stop. See Kills On Top, 243 Mont. at 82-83,

793 P.2d at 1291.

¶ 17 The basis for the traffic stop in this case is factually similar to the Kills On Top stop. Here, the MHP officer received an NCIC report that the vehicle he was following was registered to an individual who was missing and possibly endangered. We conclude that under these circumstances the officer could form a particularized suspicion that the occupants of Fox's vehicle had been involved in wrongdoing or were witnesses to criminal activity. See Gopher, 193 Mont. at 194,

631 P.2d at 296; see also Anderson v. State (1996), 275 Mont. 259, 263, 912 P.2d 212, 214. Because we conclude that the stop was valid, we need not address Grimes' "fruit of the poisonous tree" arguments and we affirm the District Court's denial of Grimes' motion to suppress.

ISSUE 2

¶ 18 Did references to a co-defendant's statements to law enforcement officials violate Grimes' right to confront witnesses against him?

¶ 19 Our standard of review for questions of constitutional law is plenary. See State v. Schnittgen (1996), 277 Mont. 291, 295, 922 P.2d 500, 503

. We review a district court's conclusions of law to determine whether the court's interpretation of the law is correct. See Schnittgen, 277 Mont. at 295-96,

922 P.2d at 503.

¶ 20 Grimes contends that the cumulative effect of repeated references at trial to the fact that Gordon provided information to the State which led to charges against Grimes, violated his Sixth Amendment right to confront witnesses against him. Grimes does not allege any violation of Article II, Section 24, of the Montana Constitution. He identifies four occasions during trial on which the State elicited testimony that Gordon cooperated with law enforcement investigators, and one occasion where the State elicited testimony from an informant that Grimes told him Gordon had "snitched."

¶ 21 Grimes contends that the cumulative effect of the following statements violated his confrontation rights because they implied to the jury that Gordon provided evidence against Grimes and Grimes did not have the opportunity to cross-examine Gordon:

¶ 22 1. The State asked one of the detectives how long he spoke with Gordon. In response to a successful objection, the State reformulated the question, and the objection was again sustained. The State then asked whether the detective had any further contact with Gordon, which the detective answered affirmatively, but without explanation.

¶ 23 2. An FBI agent testified that he was present when Gordon was interviewed in Idaho Falls.

¶ 24 3. An Idaho detective testified that he received information from another detective who had interviewed Gordon, at which point Grimes objected and the objection was sustained.

¶ 25 4. Another detective testified about locating Fox's body. Prior to the testimony and out of the presence of the jury, the court ensured that the structure of the questioning would not identify how law enforcement officials learned where Fox's body was located.

¶ 26 Grimes contends that the cumulative effect of these references, combined with the informant's testimony, "could only lead the jury to conclude that Gordon inculpated Grimes in the charged offenses." ¶ 27 In support of his argument, Grimes relies upon our line of cases which adopted and interpreted Bruton v. United States (1968), 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476. In Bruton, the United States Supreme Court held that extrajudicial statements of a co-defendant who is not subject to cross-examination may violate the Confrontation Clause. See Bruton, 391 U.S. at 135-36,

88 S.Ct. at 1628,

20 L.Ed.2d at 485. We adopted Bruton in State v. Fitzpatrick (1977), 174 Mont. 174, 569 P.2d 383.

¶ 28 Grimes successfully argued to the District Court that his trial should be severed from Gordon's because a joint trial would raise Bruton-type problems. Bruton bars the introduction of a co-defendant's post-arrest statements implicating other defendants when the co-defendant will not testify at trial. See Bruton, 391 U.S. at 126,

88 S.Ct. at 1622,

20 L.Ed.2d. at 479-80.

¶ 29 Bruton, and our case...