State v. Grimestad, 14601

• Decision Date: 09 July 1979
• Docket Number: No. 14601,14601
• Citation: 183 Mont. 29,36 St.Rep. 1245,598 P.2d 198
• Parties: STATE of Montana, Plaintiff and Appellant, v. Wayne Lee GRIMESTAD, Defendant and Respondent.
• Court: Montana Supreme Court

Page 198

598 P.2d 198

183 Mont. 29

STATE of Montana, Plaintiff and Appellant, v. Wayne Lee GRIMESTAD, Defendant and Respondent.

No. 14601.

Supreme Court of Montana.

Submitted April 27, 1979.

Decided July 9, 1979.

Mike Greely, Atty. Gen., Helena, Ted O. Lympus argued, County Atty., Kalispell, for plaintiff and appellant.

Christian, McCurdy, Ingraham & Wold, Frank L. Ingraham argued, Ronan, for defendant and respondent.

HASWELL, Chief Justice.

The State of Montana appeals from an order of the District Court, Flathead County, granting defendant's motion to suppress evidence on the grounds that certain incrimination statements and admissions made by defendant were not voluntary.

On October 3, 1977, around 7:00 in the evening, officers of the Flathead County sheriff's department were summoned to the scene of a shooting near the Isaac Walton Inn outside of Essex, Montana, on Highway 2 East. Upon arrival, they encountered defendant Wayne Lee Grimestad waiting with a highway patrolman near defendant's pickup truck. In the cab of the pickup, curled on the floor face down and lying on the passenger's side with head pointing toward the driver's side, was the body of Gary Jewett, dead of a single bullet wound through the head. A .357 Magnum pistol belonging to the deceased was on the floor of the pickup under his body. One spent shell was found in the seat on the driver's side.

According to an investigative report filed by the officer in charge, defendant related the following circumstances when interviewed at the scene:

Defendant and Jewett had left Kalispell at noon that day on a fishing trip. They had stopped at several taverns during the course of the day and had also tarried once along the way to shoot Jewett's new pistol. They stopped at the Isaac Walton Inn, intending to have a drink, but found the bar closed. As they were returning to the pickup after finding they could not get into the bar, Jewett stopped in the lobby to talk to a young woman. Defendant waited in his pickup for three or four minutes and then returned to get Jewett to leave. Jewett continued his conversation. Defendant went back outside, sat waiting in the pickup another three or four minutes, and then fired the pistol out the driver's side window into the tree tops, hoping to attract Jewett's attention. When Jewett still did not come, defendant returned once more to the lobby and demanded "Come on, let's go." This time Jewett accompanied defendant back to the pickup.

They had driven down the road and were approaching a stop sign at the highway when defendant heard a shot go off. Defendant turned to Jewett to admonish him about firing from a moving vehicle and saw him slumped over in his seat. Defendant stopped the pickup, flagged down a passing vehicle, and told the driver his partner had just shot himself. (Again, this scenario is as reported by the investigating officer from statements taken from defendant on the evening of the incident. The report is dated October 11, 1977, which means it was filed subsequent to an interview and a later polygraph exam administered to defendant which are the central events in this appeal.)

On October 4, 1977, the day following the shooting, defendant was at his parents' house where he was called on the telephone by the Flathead County sheriff's office. Defendant's mother answered the phone and relayed to him the message that the sheriff's office would like him to come down for more questioning. She contends that the caller assured her that the authorities were convinced the shooting incident was an accident and only wanted to clear up a few details. In fact, however, because of certain physical evidence (body position, gun position, and trajectory of the bullet), the sheriff's office felt that Jewett could not have been holding the pistol himself when the fatal shot was fired.

Defendant voluntarily went to the sheriff's office that afternoon and submitted to an interview. He was not accompanied by counsel. He was shown, read, and signed a Miranda rights form and waiver, which procedure was prefaced by one of the officers saying: ". . . I don't want to freak you out with the thing, but just by our procedures and the way the courts go and everything, before we talk to anybody about virtually anything we have to advise them of their rights, and I don't want you to get all excited thinking we're accusing you of anything or we suspect you of anything or anything else, but that's part of the procedure."

The transcript of the interview on October 4 is of the same tenor as the statements from the investigative report concerning the evening of the incident. Defendant said the gun was sitting on the seat between him and the decedent when they left the Isaac Walton Inn. Both men had reached a point of intoxication where they were "pretty well along the road," but neither was incapacitated to any extreme. Defendant's truck had rounded a curve, was slowing for a stop sign, and the shot went off. Defendant said he did not see what happened.

The officers repeatedly suggested that the physical evidence indicated that the decedent could not have been holding the gun when it went off. They emphasized again and again that they were convinced that the shooting was no more than an unfortunate accident. They theorized that what occurred was that Jewett, who had a reputation as a hothead when drinking, was "messing with" the gun and defendant grabbed for it, causing it to fire. Defendant repeatedly stated that he did not recall any such occurrence. The officers insisted that the physical evidence did not match defendant's story. Defendant steadfastly maintained he was telling all he knew, that he was not really sure what happened, and that he had come to the interview hoping the sheriff's office could clarify it for him. The officers suggested a polygraph at a later date and defendant closed the interview by saying: "Well, if you need any help, like you said, take the test or whatever, I mean, I've got to find out for myself what happened."

Several days after this first interview, a sheriff's deputy again telephoned defendant at his parents' home. His mother again took the call. He was requested to come back to the sheriff's office for a polygraph examination. His mother said she asked the caller "Well, then maybe we should get a lawyer for Wayne," to which she stated the caller responded "What do you want a lawyer for unless you need one."

On October 8, 1977, pursuant to arrangements made by phone calls, defendant again voluntarily presented himself, again unrepresented by counsel, at the Flathead County sheriff's office. He was accompanied by his parents, who waited for him while he was privately subjected to a polygraph test by two officers. Apparently no tape or transcript was made of this second stationhouse interrogation; none appears in the record. The officers who administered the test maintained that the polygraph registered a negative response when defendant replied to the question "Did you deliberately shoot Gary Jewett?" They also maintained that during the course of the conversations on that day, defendant repudiated his earlier statements and recalled specific incriminating details of the shooting incident.

At the conclusion of the polygraph interview, the officers asked defendant to make a written statement embodying the substance of what he had told them. The original of that statement is not part of the record, and the copy is difficult to decipher. It appears to read as follows:

"We stopped at the Isaac Walton to have a beer. the Bar was closed I was going to leave and Gary was talking to a girl. I said lets go. I went out in the pickup and waited. Look at his gun check to see if it was loaded it had only 1 shell in it I looked around (undecipherable) shot it into a tree a woman was looking out a window then I went in to get gary. I went out to the pickup then gary came out he was saying something about Jim & Gordie then he said I'll show them I grab for the gun and it went off. Then I really don't remember much.

After firing at the tree I reloaded the gun W.L.G."

Several matters by way of explanation and background of this written statement require comment. The reference to "Jim and Gordie" is to the deceased's two children. The last sentence appended to the end of the statement was added at the specific request of one of the interrogating officers. It is also noteworthy that defendant's parents maintained that after the polygraph interview, but while defendant was still isolated and apparently before he executed the written statement, one of the interrogating officers came out and told them: "I believe Wayne did it, but without a doubt it was an accident."

On November 21, 1977, a complaint was filed in Flathead County justice court charging defendant with deliberate homicide in the shooting death of Gary Jewett. A preliminary hearing was held before the Justice of the Peace. At the preliminary hearing, one of the officers who was present at the polygraph interview testified that defendant had stated during that conversation that, contrary to his previous statements, in actuality "the shooting had occurred directly in front of the Isaac Walton Hotel, that (defendant) remembered having...