State v. Morse, 86-369

• Decision Date: 24 November 1987
• Docket Number: No. 86-369,86-369
• Citation: 229 Mont. 222,746 P.2d 108,44 St.Rep. 1919
• Parties: STATE of Montana, Plaintiff and Respondent, v. Robert Eugene MORSE, Defendant and Appellant.
• Court: Montana Supreme Court

Page 108

746 P.2d 108

229 Mont. 222

STATE of Montana, Plaintiff and Respondent, v. Robert Eugene MORSE, Defendant and Appellant.

No. 86-369.

Supreme Court of Montana.

Submitted on Briefs Sept. 3, 1987.

Decided Nov. 24, 1987.

John S. Keith, Great Falls, Mont., for defendant and appellant.

Mike Greely, Atty. Gen., Barbara Claassen, Asst. Atty. Gen., Helena, Patrick L. Paul, Cascade Co. Atty., Great Falls, for plaintiff and respondent.

GULBRANDSON, Justice.

Defendant Robert Morse appeals his conviction of solicitation following a jury trial in the Eighth Judicial District, Cascade County. Morse, along with codefendant Ray Brown, was charged by information on November 19, 1985 with two counts: Count I, conspiracy (aggravated kidnapping); and Count II, conspiracy (deliberate homicide). On January 24, 1986, the information was amended to include solicitation to encourage or facilitate aggravated kidnapping and deliberate homicide, a felony, against Morse only as Count III. Joint-trial was held from February 24, 1986 to March 10, 1986. The jury returned a verdict of not guilty on Count I and Count II but Morse was found guilty of solicitation. On May 9, 1986, he was sentenced to fifty years in the Montana State Prison. Brown was found not guilty on both counts.

We affirm.

The two following issues are presented for our review:

(1) Was the State's informant an accomplice and therefore legally accountable for Morse's solicitation requiring corroborating evidence prior to the informant's testimony?

(2) Did the District Court err in allowing in evidence a surveillance tape recording and testimony of an agent who conducted the surveillance?

Defendant in this case, Robert Morse (Morse), was 88 years old at the time of trial of this case. His sight had previously dissipated and therefore he could not operate an automobile. Morse, who is also known as "Goldie," met Thomas Marchington (Marchington), the informant for the State in this case, at a bar in Billings, Montana, while the two were playing poker. Marchington was asked by Morse if he wanted to earn some money for doing something illegal. It was not made clear to Marchington originally what the act would be, but Marchington was interested.

In May and April of 1985, Marchington told agent Steve Sparhawk (Sparhawk) of the Montana Department of Justice Law Enforcement Services Division that Morse approached Marchington and was planning something illegal. Sparhawk and Marchington had previously met regarding matters unrelated to this case. When Marchington first discussed Morse's offer with Sparhawk, he testified he did not intend to do what Morse had suggested. Marchington testified that Morse would pay Marchington for transporting him to Great Falls, that they would pick up a number of people, and that Marchington would transport them back to Billings.

Approximately a month after Marchington contacted Sparhawk, Morse again asked Marchington if he was interested in participating in the illegal activity for a large amount of money. Marchington still did not know what the specific activity was, but at trial testified: "I told him I was always interested in trying to get some money." Marchington did not immediately report Morse's request to Sparhawk.

By late summer or early autumn of 1985, Marchington began driving Morse to Great Falls in Morse's car. Marchington still did not know what illegal activity was involved. Morse told him not to bring any weapon.

On the first trip to Great Falls, Marchington said he left Morse at the Greyhound Bus depot at approximately 1:00 p.m. Morse gave Marchington $20 and told him not to get drunk but to return with the car around 4:00 p.m. Marchington said he left the car parked in a parking lot across from the bus depot, and watched Morse get picked up in a blue El Camino driven by a black man. Morse returned later that afternoon and Marchington and Morse drove back to Billings. There were a number of trips between Billings and Great Falls after this first trip and Morse often mentioned people that he talked to in Great Falls. One of these people was Ray Brown, whom Marchington was introduced to later. Brown was also referred to by Morse as "Brown" or "Brownie." Brown is a black man and owns a blue El Camino.

Marchington again contacted Sparhawk on October 15, 1985. Marchington had been given more information as to what the intended crime was to be by this meeting. By October 15, Marchington had driven Morse to Great Falls approximately seven or eight times. Marchington told Sparhawk of Morse's plans in a taped conversation. The alleged scheme was to pick up Dr. John McGregor, a Great Falls physician, and possibly McGregor's wife, and hold them for ransom. The kidnapping allegedly would entail threatening the victims into writing ransom notes and then end in the murder of the victims.

On October 22, 1985, Marchington notified Sparhawk that he was again driving Morse to Great Falls. Before he left Billings, Marchington met with another state agent, Ward McKay (McKay) who attached an electronic transmitter on Marchington so that any conversation could be heard and taped.

Morse and Marchington were followed to Great Falls by agents from Billings. These agents and Great Falls police officers watched them drive by Dr. McGregor's house. The McGregors had been transported from Great Falls for protection purposes. Marchington testified that he and Morse drove past the McGregor's residence in the early evening of October 22 and saw a man and woman inside but no vehicle. Morse became suspicious because of the lack of a car. A similar type vehicle as the McGregors' was obtained by the Great Falls officers and placed at the McGregor residence at 8:15 p.m. At approximately 9:00 p.m., they again drove by the house and noticed a new Lincoln automobile with a thirty-day sticker but no license plates. Morse at this time became fairly nervous according to Marchington. In fact, the individuals inside the McGregor residence were actually undercover police officers. On October 23, Morse and Marchington made one more pass by the McGregors' and again noticed people inside but no vehicle. Morse was arrested later that day when he and Marchington stopped at a trailer rental business.

At trial, Marchington stated that he and Morse, on a number of occasions, watched Dr. McGregor at his house and work. The two also drove to an area on the Missouri River known as "Big Bend" where the bodies were allegedly to be disposed. Marchington said Morse had to unlock two padlocks to get to Big Bend and Morse had keys to the padlocks. This property adjacent to the river is owned by Harry Mitchell who testified that he had previously given two keys, one marked "BB," to Ray Brown approximately four or five years before trial. Morse was found in possession of these or similar keys when he was arrested.

Marchington testified that Morse had a number of items that he always carried in two bags in the trunk of his car that were to be used in the kidnapping, murder and dismemberment of the victims. These items included pencils, pens, paper, a typewriter, a set of handcuffs and a .38 revolver which were to be used to coerce the victims into writing ransom notes. Marchington testified that he saw a rubber raft, hammer, chisel, flashlight, hacksaw, and two knives, a shovel and a small board which were to be used to dismember and dispose of the bodies. Also, there were newspapers to be used to burn the victim's hair off and hinder identification.

The initial information was filed November 19, 1985, and Morse was arraigned and entered a plea of not guilty on December 2, 1985. He entered a plea of not guilty to the amended information on January 24, 1986.

At trial, much of the State's case was based on the testimony of Marchington. Seven Great Falls police officers, a Cascade County sheriff's deputy, and three investigators (along with Sparhawk) from the Department of Justice also testified. One of the investigators was McKay. McKay placed the transmitter on Marchington and followed Marchington and Morse to Great Falls. He testified as to portions of eight tape-recordings made during the surveillance of October 22 and 23, 1985. Portions of the tapes were difficult to hear and understand so McKay was allowed by the District Court to describe what he saw and heard.

Morse contends on this appeal that the District Court's allowance of Marchington's testimony was error because he was an accomplice to the solicitation charge and no corroborating evidence was presented to support his testimony. Morse argues that as a coconspirator and accomplice Marchington's testimony had to be limited as provided in Sec. 46-16-213, MCA, which provides:

A conviction cannot be had on the testimony of one responsible or legally accountable for the same offense, as defined in 45-2-301, unless the testimony is corroborated by other evidence which in itself and without the aid of the testimony of the one responsible or legally accountable for the same offense tends to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.

Section 45-2-302(3), MCA, defines the elements of being an accomplice that could apply in this case. One is legally accountable for another's conduct if "[e]ither before or during the commission of an offense with the purpose to promote or facilitate such commission, he solicits, aids, abets, agrees, or attempts to aid such other person in the planning or commission of the offense." Morse contends that in Marchington's own testimony he admitted that he and Morse discussed the proposed criminal activity, and Marchington did not advise the authorities.

Q. When Morse asked you if you were interested in this--still interested in this activity about a month after you talked to Sparhawk, did you tell Sparhawk about that conversation?

A. No.

Q. Why not?

A. I...