State v. Norgaard

• Decision Date: 04 November 1982
• Docket Number: No. 81-570,81-570
• Citation: 201 Mont. 165,653 P.2d 483
• Parties: STATE of Montana, Plaintiff and Respondent, v. William NORGAARD, Defendant and Appellant.
• Court: Montana Supreme Court

Page 483

653 P.2d 483

201 Mont. 165

STATE of Montana, Plaintiff and Respondent, v. William NORGAARD, Defendant and Appellant.

No. 81-570.

Supreme Court of Montana.

Submitted June 23, 1982.

Decided Nov. 4, 1982.

Francis J. McCarvel argued, Steven R. Marks argued, Glasgow, for defendant and appellant.

Mike Greely, Atty. Gen., Mike McGrath, Asst. Atty. Gen., argued, Marc F. Racicot argued, County Prosecutors Service Bureau, Helena, James A. McCann, County Atty., argued, Wolf Point, for plaintiff and respondent.

MORRISON, Justice.

Defendant William Allen Norgaard appeals from a verdict and judgment convicting him of three counts of deliberate homicide. Three issues are presented on appeal:

(1) Whether the District Court erred in refusing to suppress statements made by defendant to a criminal investigator during an interview conducted without counsel and after filing of an information?

(2) Whether the District Court erred in excluding as hearsay a statement victim Stanley Nees made to witness Howard Kelsey regarding the threat against Nees' life?

(3) Whether the District Court erred in refusing defendant's proposed instructions regarding mitigated deliberate homicide?

On February 25, 1981, Stanley Nees, Leota Hoye and Mildred Geer were shot to death in Poplar, Montana. William Norgaard was arrested and charged with three counts of deliberate homicide on March 4, 1981, after a lab report confirmed that shells found at the scene of the crime and shells found in the Norgaard home were fired from the same rifle. Norgaard was arraigned by the District Court judge in the Trinity Hospital in Wolf Point, Montana, where Norgaard was being treated for colitis and observed for suicidal tendencies.

On March 7, 1981, Norgaard was taken to Missoula, Montana, where he was admitted to St. Patrick's Hospital for medical and psychiatric evaluation. Dr. Will Stratford assisted with defendant's admission and treatment.

On March 11, 1981, Dr. Stratford inquired of Special Prosecutor Marc Racicot as to whether a psychiatric evaluation was to be ordered for Norgaard and whether defense counsel had been appointed on Norgaard's behalf. Stratford was concerned about appointment of counsel because Norgaard was becoming more talkative to hospital personnel. Racicot informed Dr. Stratford that on the previous day the District Court had appointed Francis McCarvel defense counsel and that McCarvel had immediately requested a court-ordered psychiatric evaluation of Norgaard. The District Court ordered the evaluation on March 11, but Stratford had not yet received a copy of the order.

Following Stratford's call, Racicot telephoned State Criminal Investigation Bureau agent Gary Carrell. Agent Carrell was assisting Roosevelt County law enforcement authorities in the investigation of the triple homicide and had previously interviewed Norgaard on March 3-4, 1981, in Wolf Point, regarding any information Norgaard might have concerning the crimes.

Agent Carrell then met with Racicot in Racicot's Helena office. Racicot informed Agent Carrell that Dr. Stratford thought Norgaard was becoming more vocal. Racicot and Agent Carrell discussed whether Carrell should go to Missoula and interview defendant without presence of or notice to defense counsel. Racicot told Agent Carrell that the Roosevelt County Attorney's policy was not to interview defendants without first contacting defense counsel, that some states do not allow such interviews, and that Montana had not decided the question of the propriety of interrogations in absence of counsel. Agent Carrell was left to decide whether or not he should interview Norgaard.

Agent Carrell chose to interview Norgaard without informing defense counsel of his decision. Carrell arrived in Missoula around 8:00 p.m., March 11, 1981. Carrell called Dr. Stratford and inquired if defendant's physical and mental health could withstand questioning. Dr. Stratford responded that Norgaard's condition would not be impaired by such an interview.

Carrell went to the hospital that night and attempted to interview defendant. Carrell advised defendant of his Miranda ights and told Norgaard that McCarvel had been appointed as his defense counsel. Carrell specifically told Norgaard that he had a right to have his attorney present during any interview or to consult with his attorney prior to an interview. When asked whether he understood what Carrell had said, Norgaard nodded. Norgaard then responded to questions asked by Agent Carrell. During this interview, Carrell elicited from Norgaard that he remembered picking up the shell casings in Leota Hoyes' apartment and that he was upset with Stanley Nees because defendant's father was having financial problems. Nees was a local banker. As Carrell left Norgaard's hospital room that evening, he explained he would return the next morning to continue their discussion of the slayings.

Norgaard was more responsive the following morning. After Carrell had again advised him of his rights and explained that McCarvel had been appointed to represent defendant, defendant stated he understood and proceeded to answer Carrell's questions. During this interview, Norgaard supplied Carrell with information which led to the discovery of the murder weapon.

On August 17, 1981, a pretrial suppression hearing was held regarding the admissions made by Norgaard during the March 11 and 12 interviews. Dr. Stratford testified that defendant was mentally capable of waiving his rights and that he could make voluntary and intelligent choices while in St. Patrick's Hospital. Agent Carrell testified as to the circumstances and content of the interviews. The only record of the interviews was Carrell's handwritten notes. The defendant did not testify.

The District Court denied defendant's motion to suppress, finding that the State had sustained its burden of proving that defendant made an effective waiver of his rights, albeit without consultation from defense counsel.

At trial Agent Carrell testified about the March 11 and 12 interviews. Howard Kelsey, appearing for defendant, testified that he observed victim Nees and two men (not defendant) in an argument some twelve days before the murders and that Nees was in an excited state after the argument. The trial court would not allow Kelsey to testify that approximately one hour after the argument occurred Nees told Kelsey that the two men had threatened his life. Dr. Stratford did not testify at trial.

The jury found Norgaard guilty of three counts of deliberate homicide. No instructions were given the jury regarding the offense of mitigated deliberate homicide. The Fifteenth Judicial District Court subsequently sentenced Norgaard to three hundred years in the Montana State Prison.

I.

Defendant contends that Agent Carrell impermissibly interfered with his Sixth Amendment right to counsel when he questioned defendant without first notifying defense counsel. Defendant asserts that an effective waiver of the right to counsel cannot be secured unless defense counsel is present when the waiver is given. This argument is based upon the New York Court of Appeals' decision in People v. Hobson (1976), 39 N.Y.2d 479, 384 N.Y.S.2d 419, 348 N.E.2d 894.

Alternatively, defendant contends that Agent Carrell violated his Sixth Amendment right to counsel when Carrell proceeded to interview defendant in disregard of the Roosevelt County Attorney's policy not to interview defendants without consulting defense counsel. Defendant believes that under either a factually-limited or an expansive interpretation of Brewer v. Williams (1977), 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424, reh. den., 431 U.S. 925, 97 S.Ct. 2200, 53 L.Ed.2d 240, the statements obtained by Carrell should have been suppressed because they were derived outside counsel's presence.

In Hobson, supra, defendant was represented by counsel who had been present during a line-up at which defendant was identified. Counsel left after the identification was made. Knowing that defendant was represented by counsel, and without notice to counsel, Detective Dolan proceeded to interview defendant. An oral waiver of the right to counsel was secured by Dolan, whereafter defendant confessed to the robbery under investigation. Defendant's statements were used against him at trial.

The New York Court of Appeals reversed defendant's conviction on the basis that defendant's statements were obtained in violation of New York's constitutional and statutory guarantees of the privilege against self-incrimination, the right to assistance of counsel, and due process of law. The New York Court of Appeals held that, "[o]nce a lawyer has entered a criminal proceeding representing a defendant in connection with criminal charges under investigation, the defendant in custody may not waive his right to counsel in the absence of the lawyer." People v. Hobson, 39 N.Y.2d at 483, 384 N.Y.S.2d at 421, 348 N.E.2d at 896. The court explained that the presence of counsel provides a more effective safeguard against involuntary waiver of right to counsel than a mere written or oral warning and that any attempt, by prosecution or law enforcement alike, to secure a waiver of the right of counsel in a criminal proceeding in absence of defense counsel would constitute a breach of professional ethics.

Brewer v. Williams, supra, involved a defendant who turned himself into law enforcement authorities on the advice of his attorney McKnight in Des Moines, Iowa. Defendant was booked in Davenport, Iowa, on an abduction charge that was specified in an outstanding arrest warrant. Defendant was to be transported from Davenport to Des Moines in a police car. Before defendant started his journey, he consulted with an attorney named Kelly in Davenport and telephoned McKnight in Des Moines. Both attorneys advised him not to make any statements until after he personally conferred with McKnight in Des Moines. McKnight and Detective Leaming, a veteran of the...