State v. Hallam

• Decision Date: 02 March 1978
• Docket Number: No. 13383,13383
• Citation: 575 P.2d 55,175 Mont. 492,35 St.Rep. 181
• Parties: STATE of Montana, Plaintiff and Respondent, v. Stephon Vincent Benito HALLAM, Defendant and Appellant.
• Court: Montana Supreme Court

Page 55

575 P.2d 55

175 Mont. 492

STATE of Montana, Plaintiff and Respondent, v. Stephon Vincent Benito HALLAM, Defendant and Appellant.

No. 13383.

Supreme Court of Montana.

Submitted Sept. 20, 1977.

Decided Feb. 6, 1978.

Rehearing Denied March 2, 1978.

Robert W. Gabriel, argued, Great Falls, Leslie S. Waite, III, argued, Great Falls, for defendant and appellant.

Michael T. Greely, Atty. Gen., argued, Helena, J. Fred Bourdeau, County Atty., argued, Great Falls, for plaintiff and respondent.

HARRISON, Justice.

Defendant was convicted of one count of arson and three counts of deliberate homicide in the District Court, Cascade County. From the judgment of conviction and the denial of his motion for a new trial, defendant appeals.

In the early morning hours of July 4, 1975, a fire occurred in an apartment house at 507-509 Fourth Street South, Great Falls, Montana. There were four separate apartments in the building, housing about ten people. At the time of the fire, Fred Cobb and his three half-sisters were occupying a second floor apartment at the head of the stairs. Cobb was sleeping on the couch and was awakened by the smoke. He opened the door leading to the stairs but retreated from the heat and the smoke. He awoke one sister who was also sleeping in the living room, told her to get the others, and escaped by crawling out a window. The girls did not make it out and were asphyxiated.

On July 10, 1975, defendant, Stephon Vincent Benito Hallam, was arrested for setting fire to the apartment house and for the resulting deaths.

The apartment building where the fire occurred had been operated by one Virginia Heckman, who had been defendant's "girl friend". Defendant had at times stayed with Mrs. Heckman in her apartment in the building and at times had a key to her apartment.

There was testimony that three days prior to the fire Mrs. Heckman decided to terminate the relationship. There was also testimony that defendant had stated they had a "blowout", but defendant testified that he was not aware of any problem between them.

The fire was investigated by several members of the Great Falls fire department as well as the Great Falls police department. Debris was gathered from the area of the fire and examined at the State Crime Lab in Missoula, Montana. The Lab determined the presence of a highly flammable liquid, a type of kerosene, from debris gathered in the front entryway outside Virginia Heckman's apartment door.

Howard Clos, Jr. is a nephew of defendant and a fireman for the city of Great Falls. He testified that defendant spent several hours on July 5, 1975, at the fire station talking to Clos. Defendant kept quizzing his nephew as to whether the fire department thought the fire was arson caused. Before leaving, he informed Clos, "the reason that I am really worried is because I did do it." He allegedly stated he piled garbage up and set the carpet on fire. He also indicated a belief that certain flammable liquids could be used to set a fire without being detected.

Defendant and a friend had removed a gas stove and replaced it with an electric stove at Mrs. Heckman's apartment at approximately the end of June, 1975.

The theory of the prosecution was that defendant deliberately set the fire for revenge against Mrs. Heckman. The theory of the defense was that defendant thought he was to blame for the fire as a result of changing the stoves and failing to do a proper job of wiring and capping off the gas.

Defendant was found guilty on all counts and sentenced to consecutive terms of one hundred years each on the three homicide counts and 20 years on the arson count.

Defendant presents eight issues on appeal:

1. The court lacked jurisdiction because of fatal errors in the affidavit for leave to file an Information.

2. The court erred in granting the prosecution's motion to amend Count IV of the Information after the defendant had entered a plea and during the jury selection;

3. The court erred in prohibiting all voir dire examination of potential jurors regarding the homicide charges and capital punishment;

4. The court erred in allowing the fire department witnesses to speculate as to the cause of the fire without the necessary evidentiary foundation and without having the question posed in the necessary hypothetical question form;

5. The trial testimony of Howard Clos, Jr. constituted surprise and should have been excluded;

6. The trial testimony of Howard Clos, Jr. should not have been admitted without a hearing to establish that it met constitutional requirements;

7. The court erred in allowing certain jury instructions that certain admissions of defendant constituted direct evidence and further, by refusing instructions regarding indirect and circumstantial evidence; and

8. The court erred in allowing the prosecution to speculate in closing argument about evidence not in the record.

The affidavit in support of the state's motion for leave to file the Information direct states, in pertinent part:

"That on or about the 4th day of July, 1975, at Great Falls, Cascade County, Montana, the defendant herein, VINCENT STEPHON HALLAM, caused the death of Sherry Rose, Charlotte Rose and Charlene Rose, by setting fire to the premises at 509 4th Street South, Great Falls, Cascade County, Montana; that the defendant has admitted to having set the said fire by igniting flammable materials at or near the entry way to the said premises; that the investigation of the fire at these premises by the Great Falls Fire Department determined that the fire was caused by intentional means and that the origin was in the entry way of the premises.

"That the State of Montana will prove by the testimony of the witnesses whose names are endorsed on the back of the Information, together with physical evidence obtained in the investigation and testing done thereon, as well as by the admission of the defendant herein, that the defendant, VINCENT STEPHON HALLAM, is guilty of the crimes of COUNTS I, II and III: DELIBERATE HOMICIDE, A FELONY, in violation of Section 94-5-102(1)(b), R.C.M. 1947 as amended and COUNT IV: ARSON, A FELONY, in violation of Section 94-6-104(1)(a), R.C.M. 1947 as amended."

In order to obtain permission to file an Information direct in District Court, the state must satisfy the judge " * * * that there is probable cause to believe that an offense has been committed by the defendant * * *." Section 95-1301(a), R.C.M. 1947. Where, as here, a warrant of arrest is issued on the basis of the granting of the leave to file direct (section 95-1301(b)), a constitutional question arises. The Fourth Amendment forbids the issuance of a warrant of arrest unless probable cause is shown and supported by oath or affirmation. Giordenello v. United States, 357 U.S. 480, 485, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958).

The existence of probable cause must be determined by the independent judgment of a detached magistrate. Aguilar v. Texas, 387 U.S. 108, 111,84 S.Ct. 1509, 1512, 12 L.Ed.2d 723 (1964). The Revised Commission Comment to section 95-1301 notes:

" * * * Obtaining leave to file an information is not a mere perfunctory matter, but rests in the sound discretion of the district judge. The application must be complete in itself, and contain such salient facts as will allow the district judge to make an independent determination that an offense has been committed. * * * "

The facts alleged by the county attorney in the affidavit are:

(1) Defendant caused the death of three persons by setting fire to the apartment building;

(2) Defendant admitted setting the fire by igniting flammable materials near the entrance;

(3) The Great Falls fire department determined that the fire was intentionally set; and

(4) The state believes it can prove the defendant guilty of the offenses charged.

In a series of cases following State ex rel. Juhl v. District Court (1938), 107 Mont. 309, 84 P.2d 979, 120 A.L.R. 353, this Court has considered the proper procedure for the application and motion for leave to file an Information. Nelson v. State (1964), 144 Mont. 439, 397 P.2d 700; State v. Peters (1965), 146 Mont. 188, 194, 405 P.2d 642, 645; State v. Corliss (1968), 150 Mont. 40, 430 P.2d 632. See also 25 Mont. Law Rev. 135 (1963) and 26 Mont. Law Rev. 9 (1964).

The Court in Peters noted:

" * * * This court has consistently held that leave to file is not a perfunctory matter, and that it must not be automatically granted. Sufficient facts must be presented to move the court's discretion to grant leave. (Citations omitted.)"

It should be noted that at the time of the request for an order to file direct, the trial court held an extended hearing thereon with briefs and oral argument. The hearing was to comply with the most recent United States Supreme Court decision in Gerstein v. Pugh, 420 U.S. 103, 119, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), and the court found that sufficient information was produced to warrant the granting of the leave to file the Information and warrant of arrest.

We hold that the fact the affidavit revealed an admission to setting the fire (2) was sufficient along with (3), an indication that the fire was intentionally set to warrant the action of the trial court. Particularly in view of the fact a separate hearing was held after the issuance of leave to file the Information and warrant of arrest. This information was clearly sufficient to establish probable cause.

The Information filed in District Court July 10, 1975, charged defendant with three counts of deliberate homicide (one count for each person killed in the fire) and one count of arson. Defendant plead not guilty to all four counts. The arson count charged:

"That at the County of Cascade, State of Montana, on or about the 4th day of July, A.D. 1975, and before the filing of this Information, the said defendant then and there being, did then and there by means of fire, knowingly or purposely, without consent, damaged or destroyed an occupied...