State v. Hill, 98-567.

• Citation: 14 P.3d 1237,2000 MT 308
• Decision Date: 07 December 2000
• Docket Number: No. 98-567.,98-567.
• Parties: STATE of Montana, Plaintiff and Respondent, v. Kippy Joe HILL, Defendant and Appellant.
• Court: United States State Supreme Court of Montana

14 P.3d 1237

2000 MT 308

STATE of Montana, Plaintiff and Respondent, v. Kippy Joe HILL, Defendant and Appellant.

No. 98-567.

Supreme Court of Montana.

Submitted on Briefs July 6, 2000.

Decided December 7, 2000.

David E. Stenerson, Stenerson Law Office, Hamilton, Montana, Kirk Krutilla, Attorney at Law, Superior, MT, For Appellant.

Hon. Joseph P. Mazurek, Attorney General; Jim Wheelis, Assistant Attorney General, Helena, MT, George H. Corn, Ravalli County Attorney, Hamilton, MT, For Respondent.

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

¶ 1 The Defendant, Kippy Joe Hill, was charged by Information filed in the District Court for the Twenty-First Judicial District in Ravalli County with the offense of deliberate homicide. The prosecution later added counts of sexual assault, attempted sexual assault, and an alternative deliberate homicide charge pursuant to § 45-5-102(1)(b), MCA (the felony murder statute). Hill pled not guilty to all charges. The jury found Hill guilty of deliberate homicide and not guilty of the remaining charges. Hill appeals from his conviction. We affirm the judgment of the District Court.

¶ 2 Hill presents the following issues on appeal:

¶ 3 (1) Did the District Court err when it denied Hill's motion for a pretrial psychological evaluation?

¶ 4 (2) Did the District Court err when it denied Hill's motion for a psychological autopsy of the victim?

¶ 5 (3) Did the District Court err when it denied the motion to suppress videotapes of Hill's statement to Ravalli County officers?

¶ 6 (4) Did the District Court err when it denied Hill's motion for a poll conducted at state expense and for change of venue?

¶ 7 (5) Did the Ravalli County Attorney commit prosecutorial misconduct by disseminating information to the public despite a Justice Court order prohibiting further disclosure?

FACTUAL BACKGROUND

¶ 8 On the morning of June 30, 1996, Scott Camper found the body of his mother, Laurel Camper, in her bedroom in Hamilton, Montana. Ravalli County Sheriff's Detective Sterling Maus arrived shortly thereafter and observed Laurel lying facedown on her bed. Scott Camper told Detective Maus that his sister, Christine Dunaway, and her boyfriend, the Defendant Kippy Joe Hill, had been living with Laurel since December and that "things had been a little bit tense." Scott Camper told Maus that Dunaway and Hill probably had an argument with Laurel the night before and that the argument probably caused his mother's death. After an examination, Maus decided to remove the body to the Montana State Crime Lab in Missoula for an autopsy.

¶ 9 Dr. Gary Dale, the State Medical Examiner, telephoned Maus later that afternoon. Dr. Dale told Maus that Laurel's death looked suspicious. Maus returned to Laurel's house at 322 Doran Lane to secure the crime scene.

¶ 10 At approximately 4:50 p.m. on June 30, Hill arrived at the Doran Lane residence. Hill informed Maus that he had been at Laurel's house the previous evening from 8:00 to 9:30 p.m., but that he and Dunaway spent the night at the Hamilton residence of Dunaway's father and Laurel's exhusband, Dave Camper.

¶ 11 Detective Ed Zerbst went to Dave Camper's house later that evening to interview Hill and Dunaway. After consenting to a search of Dave Camper's house, Hill and Dunaway agreed to return to the sheriff's office for the interview. During the interview, which was videotaped, Hill denied seeing Laurel during the previous day.

¶ 12 On July 4, 1996, officers took hair samples from several members of Laurel's family, including Hill. While at the police station, Hill approached Zerbst and admitted that he had been at Laurel's house on the evening of June 29, but that he avoided a confrontation by remaining in his bedroom until Laurel was asleep. When asked why he did not initially tell the truth about being at Laurel's house, Hill said he was scared it might sound bad.

¶ 13 On July 10, 1996, the forensic laboratory informed the detectives that pubic hairs found on Laurel appeared to match samples taken from Hill. Detectives videotaped an interview with Hill on July 16, 1996. Prior to the interview, Zerbst advised Hill of his Miranda rights. Hill then voluntarily signed a Miranda waiver form provided by Zerbst. At various points during the interview, Hill asked if he could see his children and Dunaway. He also said that he needed "some air, or something, man, some water...." At no time, however, did Hill request an attorney or otherwise indicate his desire to terminate the interrogation. Hill was arrested for deliberate homicide and handcuffed. Sheriff Jay Printz continued the interview and Hill eventually admitted having a physical altercation with Laurel but claimed that she was alive when he left the house.

¶ 14 The State filed a Complaint in Ravalli County Justice Court on July 16, 1996. The Complaint accused Hill of deliberate homicide pursuant to § 45-5-102, MCA. Following Hill's arrest, area newspapers reported that Hill had confessed to the homicide and that Laurel was possibly the victim of sexual assault. Hill made an initial appearance with court appointed counsel before Ravalli County Justice of the Peace Edward Sperry on July 17, 1996. On July 18, 1996, the Justice Court granted Hill's motion to "limit the dissemination of factual and evidentiary information" to the public and the press.

¶ 15 On August 6, 1996, the State filed an Information in the Twenty-First Judicial District Court charging Hill with deliberate homicide pursuant to § 45-5-102, MCA. In light of the extensive press coverage, the District Court filed a restrictive order on August 16, 1996 which superseded the Justice Court's earlier restrictive order. The District Court order prohibited further dissemination of information about the case. This Court reversed the District Court order with a writ of supervisory control based in part on the "right to know" provision in Article II, Section 9 of the Montana Constitution. See State ex rel. The Missoulian v. Montana Twenty-First Jud. Dist. Ct. (1997), 281 Mont. 285, 933 P.2d 829

.

¶ 16 On April 25, 1997, the Ravalli County Attorney filed an Amended Information, adding counts of sexual assault, or, alternatively, attempted sexual assault. A Second Amended Information was filed on June 26, 1997. The Second Amended Information added an alternative deliberate homicide charge pursuant to § 45-5-102(1)(b), MCA, alleging that the homicide occurred during a sexual or attempted sexual assault; both felonies.

¶ 17 Hill filed a Motion for State Funds for Psychological Evaluation and a Motion for State Funds to Employ Expert for Post-Mortem Psychological Autopsy on November 12, 1996. Hill moved for a change of venue and state funding for a poll to establish possible jury prejudice. Hill also moved to suppress the videotaped admission obtained by Ravalli County law enforcement officers during questioning on July 16, 1996. The District Court denied all of these motions.

¶ 18 Hill pled not guilty to all counts. On October 29, 1997, the jury convicted Hill of deliberate homicide but returned not guilty verdicts on the sexual assault and attempted sexual assault counts. The District Court sentenced Hill to 100 years at the Montana State Prison, with a minimum of 25 years and conditional parole eligibility.

¶ 19 Hill now appeals the District Court orders which denied his motions for a psychological evaluation and psychological autopsy. He further appeals the District Court's denial of the motion to suppress his videotaped statements and the denial of his motion for change of venue and state-funded poll. Finally, Hill alleges that the Ravalli County Attorney committed prosecutorial misconduct by disclosing facts not previously known to the public while the Justice Court gag order was still in effect.

DISCUSSION

ISSUE 1

¶ 20 Did the District Court err when it denied Hill's motion for a pretrial psychological evaluation?

¶ 21 Motions requesting an examination by a psychiatrist where the existence of a mental disease or defect is not at issue fall within the discretion of the trial court. State v. Cox, (1994), 266 Mont. 110, 117-18, 879 P.2d 662, 666-67. We review discretionary trial court rulings for an abuse of discretion. May v. First Nat'l Pawn Brokers, Ltd. (1995), 270 Mont. 132, 134, 890 P.2d 386, 388.

¶ 22 Hill contends that the District Court erred when it denied his motion for a pretrial psychological examination. Hill argues that the District Court's order amounted to a denial of due process. In support of this argument, Hill cites the following rule established by the United States Supreme Court:

[W]hen a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.

Ake v. Oklahoma (1985), 470 U.S. 68, 83, 105 S.Ct. 1087, 1096, 84 L.Ed.2d 53, 66.

Hill also relies on § 46-14-205, MCA, which provides that:

If either the defendant or the prosecution wishes the defendant to be examined by a qualified psychiatrist or licensed clinical psychologist ... to determine the defendant's fitness to proceed or whether the defendant had, at the time the offense was committed, a particular state of mind that is an essential element of the offense, the examiner shall be permitted to have reasonable access to the defendant for the purpose of the examination.

¶ 23 Hill concludes that the quoted language entitled him to a psychological evaluation as part of the affirmative defense of mitigated deliberate homicide pursuant to § 45-5-103(1), MCA, which permits the defendant to introduce evidence of extreme mental or emotional stress for which there was a reasonable explanation or excuse. However, the State's duty to provide meaningful assistance to indigent defe...