State v. Moore
| Decision Date | 20 August 1992 |
| Docket Number | No. 92-091,92-091 |
| Citation | 836 P.2d 604,254 Mont. 241 |
| Parties | STATE of Montana, Plaintiff and Appellant, v. Larry MOORE, Defendant and Respondent. |
| Court | Montana Supreme Court |
Marc Racicot, Atty. Gen., Cregg W. Coughlin, Asst. Atty. Gen., Helena, Mike Salvagni, Gallatin County Atty., Bozeman, Mark Murphy, Sp. Deputy Gallatin County Atty., Helena, Robert Brown, Asst. Atty. Gen., Bozeman, for plaintiff and appellant.
Larry Jent, Williams, Jent & Dockins, James H. Goetz and Brian Gallik, Goetz, Madden & Dunn, Bozeman, for defendant and respondent.
This is an appeal by the State of Montana from an order granting a motion in limine in the Eighteenth Judicial District, Gallatin County. We reverse.
The issues for review are:
1. Whether the District Court abused its discretion when it suppressed evidence relating to the actions of the defendant after the alleged shooting of Bradford Brisbin.
2. Whether the District Court abused its discretion when it suppressed evidence of all testimony from the defendant's wife.
3. Whether the District Court abused its discretion when it suppressed evidence of the witness Hoffman.
On December 17, 1990, defendant Larry Moore was charged by an information with Count I, deliberate homicide in the death of Bradford Brisbin (Brisbin), in violation of Sec. 45-5-102(1)(a), MCA. Defendant was also charged in Counts II and III of the information with tampering with or fabricating physical evidence, in violation of Secs. 45-7-206(1)(a), and 45-7-207(1)(b), MCA, respectively. On September 30, 1991, pursuant to a motion by the defendant, the District Court, on the grounds of prejudice, granted the defendant's motion to sever Counts II and III, tampering with or fabricating physical evidence, from the deliberate homicide charge. This order was not appealed.
In our subsequent discussion relative to the offers of proof and rulings of the District Court, we only consider the principle of evidence and whether the offered evidence generally comes within such principle. We do not, and we cannot, make a definitive decision as to the admissibility of particular pieces of evidence. At this stage we have no way of ascertaining if compliance with other rules of evidence, such as having a proper foundation, relevancy, opinion, hearsay, authenticism, etc., has been met. Only some of the facts pertaining to each issue will be more fully developed as each issue is discussed. The State's appeal is timely.
Whether the District Court abused its discretion when it suppressed evidence relating to the actions of the defendant after the shooting of Brisbin.
On the morning of November 9, 1990, Brisbin received a telephone call from the defendant. Defendant told Brisbin he had sold his pickup and camper and needed a ride back to West Yellowstone from Belgrade. Brisbin then drove his pickup to Bairs Truck Stop in Belgrade and met the defendant. From there on the stories vary, one version being that Brisbin left the truck stop restaurant to go to the restroom, did not return, and disappeared. Neither he nor his body have yet been found. The State's case is based on circumstantial evidence.
The State proposed that certain evidence be admitted at trial which is evidence of defendant's consciousness of guilt and is part of the res gestae or corpus delicti of the crime charged. In the offer of proof, supported by affidavits, the State offered the following: Officer Brown saw the defendant in his camper on the evening of Brisbin's disappearance. When Moore saw Officer Brown, he turned out the lights in the camper in an attempt not to be seen. A couple days later Officers Brown and Pronovost approached Moore who was working on the camper which was then attached to his pickup and parked in front of the West Gate Enterprise Machine Shop, a business owned by the defendant. Moore was using a tar like substance, which he told the officers he was using to patch water leaks in the camper. The above evidence was excluded.
Other proffered evidence was that Moore purchased the camper from Dave Barstead in the spring or summer of 1990 and Barstead claims that the floor of the camper was covered by brown carpet at the time of sale. Moore's employee, Norman Hanna, who installed the camper on Moore's pickup, claimed that there was a brown carpet covering the camper floor during its installation. There was no brown carpet in the camper after the alleged crime. The court excluded this evidence. Later a 12-volt automobile battery was found inside the camper. The caps to the battery had been removed and battery acid spilled on the floor. This evidence was excluded.
Other excluded evidence is that when Officer Pearson, looking for the camper, found it next to the Jack residence in southern Madison County, the camper had been taken off the truck. Officer Pearson also noticed fresh footprints leading to the camper.
Further, Officer Christie also found three bullet holes inside Moore's camper that had been covered with tar. A piece of paneling had also been cut out of the camper and replaced with other paneling which did not match the original paneling. This evidence was excluded. Officer Christie also found a bullet under the floor of the camper. A reddish substance was on the bullet, which the State Crime Laboratory determined was blood.
Samples of the camper floor containing the reddish liquid were analyzed by the State Crime Lab and were found to be consistent with sulfuric acid, the acid contained in car batteries. This evidence was excluded, as was other similar evidence.
In essence the evidence offered was in support of the State's position that defendant cleaned blood from the camper, discarded bullets and carpet, covered and repaired bullet holes, spilled battery acid and inferring therefrom that the battery acid was used to cover or clean some material. The defendant argues that the admission of this evidence which also tends to prove elements of the crime of tampering or fabrication, amounts to the admission of evidence of another crime. Applying subdivision (4) of the Just Rule, it would be prejudicial to admit this evidence relative to the proof of the crime of deliberate homicide. See State v. Just (1979), 184 Mont. 262, 602 P.2d 957.
The District Court opined that the ruling of prejudice as the reason for separating the charges on September 30, 1991, had the effect of also rendering this evidence inadmissible on the charge of deliberate homicide because of its potential of prejudice. The State's position is, however, that the evidence is admissible under Montana law as evidence of Moore's consciousness of guilt and as part of the res gestae or corpus delicti of the crime charged.
It should be first noted that the admissibility test and the procedural requirements of State v. Just (1979), 184 Mont. 262, 602 P.2d 957, do not apply to evidence establishing consciousness of guilt regarding the crime with which the defendant is charged. See State v. Baker (1989), 237 Mont. 140, 773 P.2d 1194; State v. Shaw (1982), 199 Mont. 248, 648 P.2d 287; State v. Trombley (1980), 190 Mont. 218, 620 P.2d 367. We have said numerous times that testimony showing or tending to show flight or concealment by the defendant may be taken into consideration by a jury in determining whether the defendant is guilty of the offense charged. For example see State v. Paisley (1907), 36 Mont. 237, 92 P. 566. Flight or concealment may be considered by the jury as a circumstance tending to prove the consciousness of guilt. State v. Walker (1966)...
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State v. Moore
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