State v. Morrisey

Citation214 P.3d 708,2009 MT 201,351 Mont. 144
Decision Date09 June 2009
Docket NumberNo. DA 06-0278.,DA 06-0278.
PartiesSTATE of Montana, Plaintiff and Appellee, v. Wilfred MORRISEY, Defendant and Appellant.
CourtUnited States State Supreme Court of Montana
214 P.3d 708
2009 MT 201
351 Mont. 144
STATE of Montana, Plaintiff and Appellee,
v.
Wilfred MORRISEY, Defendant and Appellant.
No. DA 06-0278.
Supreme Court of Montana.
Submitted on Briefs September 6, 2007.
Decided June 9, 2009.

[214 P.3d 712]

For Appellant: Jim Wheelis, Chief Appellate Defender, Joslyn Hunt, Assistant Appellate Defender, Helena, Montana.

For Appellee: Hon. Steve Bullock, Montana Attorney General, Ilka Becker, Assistant Attorney General, Helena, Montana, Brant S. Light, Cascade County Attorney, Great Falls, Montana.

Justice JAMES C. NELSON delivered the Opinion of the Court.


¶ 1 Wilfred Morrisey appeals from his conviction of deliberate homicide in the Eighth Judicial District Court, Cascade County. We affirm.

ISSUES

¶ 2 Morrisey raises four issues on appeal:

1. Did the District Court err in denying Morrisey's motion to suppress statements he made to law enforcement officers and the evidence recovered as a result of those statements?

2. Did the District Court err in denying Morrisey's motion to dismiss for violation of his constitutional right to a speedy trial?

214 P.3d 713

3. Did the District Court err in denying Morrisey's motion for disclosure and allowing Dr. Symes, a forensic anthropologist called by the State as a rebuttal witness, to testify?

4. Was there sufficient evidence upon which a jury could find Morrisey guilty of deliberate homicide beyond a reasonable doubt?

BACKGROUND

¶ 3 Nine-year-old Dolana Clark, who lived with her parents in Great Falls, Montana, disappeared the evening of August 2, 1988. Friends and family last saw Dolana riding her sister's bicycle down 25th Street South at around 5:30 p.m. The police conducted an extensive search but were unable to locate her. A year later, a hunter found Dolana's remains in the Little Belt Mountains southeast of Great Falls. Her skull had an entrance wound in back and an exit wound in front caused by a small-caliber bullet.

¶ 4 Morrisey lived a couple of blocks from the Clark residence and had a close relationship with the family during the years preceding Dolana's disappearance. He ran errands for them, joined them on picnics, and came to holiday dinners. The Clarks used Morrisey's telephone since they did not have one of their own. Dolana spent substantial time at Morrisey's house, and she and her older half-sister, Lisa, occasionally spent the night there. At one point, Morrisey thought about marrying Lisa. He also talked to Dolana about moving in with him once she got older. When Dolana disappeared, Morrisey joined several members of the family in searching for her. About two weeks after her disappearance, however, Morrisey ceased all interactions with the Clark family.

¶ 5 Morrisey became a suspect in Dolana's disappearance based on his relationship with Dolana, certain inconsistencies in his statements to investigators, and information the police had learned through interviews with other witnesses. Detectives searched Morrisey's house and two vehicles but found no evidence indicating where Dolana might be. They also found no weapons in the house, and Morrisey told them that he did not own any weapons. He repeatedly denied any involvement in what happened to Dolana. Morrisey left Great Falls a few months later and eventually settled in Colorado.

¶ 6 In 2002, the Great Falls police renewed the investigation into Dolana's death. Detectives reviewed the case file, including statements Morrisey had given back in 1988, and ultimately developed the following theory: Dolana went to Morrisey's house the evening of August 2, 1988, after her father had refused to give her money to purchase a Siamese cat on layaway at a local pet store; Morrisey killed Dolana at some point during the evening and placed her body and bicycle in the trunk of his 1963 Chevy Impala; he then joined family members in searching for Dolana but refused to use either of his vehicles in the search; afterward, he drove her body up to the mountains where it was found a year later; and he then returned to town by roughly 6:30 the morning of August 3.

¶ 7 The Cascade County Attorney's Office obtained warrants to search Morrisey's residence (which was in a remote location in Weston, Colorado), his Impala, and his 1985 Chevy Camaro. Sergeant John Cameron and Detectives John Schaffer and William Bellusci of the Great Falls Police Department then traveled to Colorado and met with officers from the Las Animas County Sheriff's Office and the Colorado Bureau of Investigation. With these officers' assistance, Cameron, Schaffer, and Bellusci executed the search warrants on September 3, 2002.

¶ 8 While en route to Morrisey's residence that morning, Sergeant Martinez of the Las Animas County Sheriff's Office noticed Morrisey driving by in the opposite direction in a 1982 Chevy pickup. Martinez initiated a traffic stop, and Cameron advised Morrisey of the search warrants. Cameron asked Morrisey to return with the officers to his residence and provide them access to the house and vehicles. Morrisey complied.

¶ 9 Once at Morrisey's house, Cameron served him with the search warrants, read him his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and proceeded with the search, leaving Morrisey with Detectives Schaffer and Bellusci. During the ensuing conversation with the detectives, Morrisey gave a number

214 P.3d 714

of incriminating statements. Among other things, he told them that he owned a .22-caliber rifle, which he had broken into several pieces, and that he had thrown parts of the rifle away but had buried the barrel in the mountains behind his house. He also stated that he had done all of this just a couple of weeks earlier after finding out that the police had renewed their investigation into Dolana's death. He explained that he got rid of the gun "because I knew I was going to get pinned with something I didn't do."

¶ 10 Morrisey directed the detectives to the location where he had buried the rifle barrel. After recovering the barrel, they transported him to the local police station to give a videotaped statement. During the interview, Morrisey admitted that he had lied to detectives in 1988 when he told them that he did not have any weapons. He claimed, however, that he had loaned his rifle to Dolana's father one week before she disappeared and that the rifle was not returned until a week after her disappearance.

¶ 11 The State charged Morrisey on September 4, 2002, with deliberate homicide, a felony, in violation of § 45-5-102(1)(a), MCA (1987). In May 2004, following a number of continuances and the filing of an amended information, Morrisey filed a motion to suppress his statements to the detectives and any evidence recovered as a result of those statements. The District Court held a hearing, at which Cameron, Schaffer, Bellusci, and Morrisey testified, and thereafter denied the motion. In September 2005, following more continuances, Morrisey filed a motion to dismiss on the ground that his right to a speedy trial had been violated. The District Court held a hearing and thereafter denied that motion as well. The case then proceeded to a four-day jury trial in November 2005. The jury found Morrisey guilty, and the District Court sentenced him to the Montana State Prison for life with no eligibility for parole. Morrisey now appeals.

¶ 12 Additional facts and procedural background are set forth below as they relate to each issue under consideration.

DISCUSSION

¶ 13 ISSUE 1. Did the District Court err in denying Morrisey's motion to suppress statements he made to law enforcement officers and the evidence recovered as a result of those statements?

I. Standard of Review

¶ 14 In reviewing a district court's ruling on a motion to suppress evidence or statements, we determine whether the court's underlying factual findings are clearly erroneous and whether the court's interpretation and application of the law are correct. State v. Munson, 2007 MT 222, ¶ 18, 339 Mont. 68, 169 P.3d 364. The court's findings of fact are clearly erroneous if they are not supported by substantial evidence, if the court has misapprehended the effect of the evidence, or if this Court's review of the record leaves us with a definite or firm conviction that a mistake has been made. Munson, ¶ 18.

II. Facts and Arguments Related to Morrisey's Motion to Suppress

¶ 15 As noted, while en route to Morrisey's Colorado residence to execute the search warrants, Sergeant Martinez noticed Morrisey driving by in a pickup in the opposite direction. Martinez, who was driving a marked squad car, turned around and initiated a traffic stop using his overhead lights. Sergeant Cameron and Detective Schaffer were in the squad car with Martinez at the time. Morrisey pulled over, and Martinez (who was in full uniform) instructed Morrisey to exit the vehicle. Cameron and Schaffer (who were in plain clothes but displaying their badges and guns) then approached Morrisey, identified themselves as law enforcement officers from Great Falls, and advised him of the search warrants. Cameron asked Morrisey if he had any weapons, and Morrisey replied that he had a loaded .38-caliber revolver in the pickup. Cameron stated that he would need to secure the weapon and that he would also be taking control of the pickup. Cameron took Morrisey's keys and asked him to return with them to his residence. Morrisey agreed to do so, and the officers then placed him in the caged back seat of Martinez's squad car for

214 P.3d 715

transport. Cameron followed in Morrisey's pickup. At no point during his time with the detectives that day was Morrisey advised that he was free to leave.

¶ 16 Approximately eight to ten law enforcement officers were present at Morrisey's residence to conduct the search of his house and cars. After arriving, Cameron activated a microcassette recorder, served Morrisey with the search warrants, and told him that "[t]his is probably going to take us at...

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