State v. Quigg
| Decision Date | 03 April 1970 |
| Docket Number | No. 11743,11743 |
| Citation | 467 P.2d 692,155 Mont. 119 |
| Parties | The STATE of Montana, Plaintiff and Respondent, v. Gary Lee QUIGG, Defendant and Appellant. |
| Court | Montana Supreme Court |
Derry, hanser & Derry, Billings, Harold F. Hanser, argued, Billings, for appellant.
Robert L. Woodahl, Atty. Gen., Billings, Patrick J. Brophy, Asst. Atty. Gen., argued, Helena, John L. Adams, Jr., County Atty., argued, Billings, for respondent.
This is an appeal from a judgment of conviction of murder in the first degree entered on a jury verdict. Defendant was sentenced to life imprisonment. A motion for new trial was denied.
Defendant Gary Lee Quigg was charged by Information in the district court in Yellowstone County on August 5, 1968 with the crime of first degree murder of one Lee R. Robbins, who was killed on April 8, 1968. On October 21, 1968, a motion to suppress evidence seized under authority of certain search warrants was heard by Judge C. B. Sande and granted in part and denied in part.
The case was first tried on January 13, 1969 and the jury was unable to reach a verdict. The case was tried a second time on March 31, 1969 and a verdict of guilty returned.
The body of Lee R. Robbins was found on a county road near the Billings airport at approximately 10:45 p. m. on April 8, 1968, by two college students who were driving up the road on which the body was lying. Lee R. Robbins had been killed by two bullets in his head, bullets which were later shown to have been fired from his own gun which he had had under the front seat of his car. His pockets, with the exception of his left, were turned inside out; his wallet was missing; his watch was missing; his car was gone; and various small items were scattered in the area of the body.
Lee R. Robbins left his home at about 9:45 p. m. to go to the airport to meet his boss, a representative of the company which employed him. Robbins was a drug salesman for William H. Rorer, Inc., a pharmaceutical company which deals in drugs dispensed through pharmacies. Robbins carried in his car drug samples. On his way to the airport, Robbins stopped at the Rimrock Lodge to verify reservations previously made for his boss. At the Rimrock Lodge the desk man spoke with Robbins and testified that Robbins mentioned he had been followed by an automobile with which he had had a near accident earlier.
Robbins was next seen at the airport where he spoke with various acquaintances. He was last seen alive at the airport terminal between 10:25 and 10:30 on the right of April 8, 1968, at which time he was heading out towards the terminal entrance to check on his car. His body was found 15 to 20 minutes later near the airport. His boss arrived on schedule, waited in vain for Robbins, and finally went to his motel.
The investigation of the scene where the body of Robbins was discovered was conducted by law enforcement officers on the night the body was found, and again at daylight the following morning. Robbins had been slain as the result of two bullet wounds of a .22 caliber, one wound at the right ear and one at the left ear. During the search of the area, two .22 caliber shell casings were discovered near the body position.
The automobile belonging to Robbins was discovered the next morning in downtown Billings in a parking lot. Robbins' wallet was found in it but contained no money; other contents of the wallet were strewn about the floor of the car. Also scattered around the automobile were drug supplies which were the supplies used by Robbins in his work as a drug salesman. The automobile was fingerprinted and vacuumed but no results were produced linking the defendant to the automobile.
The investigation continued; about two months elapsed. On June 11, the Ten Inn bar, located between Park City and Columbus, Montana in Stillwater County, was found to have been burglarized and ransacked. A German shepherd watchdog was found dead, having been shot. Two .22 caliber shell casings were found on the floor, one under a bar stool and one in a hallway near the dog's body.
On June 23, one Richard Cammack was arrested by Carbon County Sheriff Eichler and Highway Patrolman Mead on a charge of receiving stolen property. Cammack had a case of beer in his possession. Shortly thereafter Cammack was charged with the burglary of the Ten Inn bar. He at first did not implicate others, and, in fact, plead guilty to the crime of burglary; but the following day he told officers that two men were with him on the burglary, Gary Quigg and Mort Reid.
The homicide investigation into the death of Lee R. Robbins continued. The Federal Bureau of Investigation (hereinafter referred to as FBI) Laboratory in April had examined, among other things, the two .22 caliber shell casings found near the body of Robbins. It was determined that they each had been fired from the same .22 caliber gun. It was also determined, at that time, they had marks typical of that produced by a .22 caliber Ruger pistol; but, the expert could not eliminate the possibility of a different make or style of .22 caliber gun being involved.
Subsequently, in July 1968, after the Ten Inn burglary, the same FBI laboratory expert received one of the .22 caliber shell casings found on the floor of the Ten Inn bar. His examination of that shall disclosed it had been fired from the identical gun that had fired the two shell casings found at the Robbins homicide scene. Again the type of marks indicated a Ruger pistol, but could not be narrowed down to one particular weapon.
In the meantime, police investigation continued. The same weapon was involved in Robbins' death and in the two month later burglary. Also, at this time, among other things, the officers had involved Cammack, Quigg and Reid in the burglary. Cammack testified that Quigg, defendant here, had shot the dog with an automatic pistol. The search was narrowing down.
Defendant Quigg was arrested on August 2, as were Reid and Cammack.
On that same day a petition for a search warrant was filed which read:
'Comes now Richard Shaffer, a Police Officer for the city of Billings, Montana, and being first duly sworn, on oath, alleges as follows:
'I.
'That he is a Police Officer for the City of Billings, Montana, assigned to the Detective Division;
'II.
'That on April 8, 1968, in Yellowstone County, State of Montana, a person by the name of Lee Robbins was killed by a person or persons unknown and the homicide is presently under investigation;
'III.
'That at the scene where Mr. Robbins' body was found there were found the shell casings of a gun similar in caliber to the gun with which Mr. Robbins was shot;
'IV.
'That the shell casing above mentioned were retained by the Billings Police Department and subsequently in June, 1968, there were found at the scene of another crime committed in Stillwater County, shell casings which were compared by the Federal Bureau of Investigation Laboratory to those found at the scene of Mr. Robbins slaying and the shell markings on said shell casing indicate they were fired by the same gun.
'V.
'That in the crime committed in Stillwater County, three (3) persons namely, Richard D. Cammack, William Morris Reid and Gary Lee Quigg, were apprehended for said crime and one of these persons indicated that the gun used in commission of the crime in Stillwater County, which discharged the shell casings identical with the shell casings found at the scene of the Lee Robbins homicide, has been fired by one of the three (3) persons involed in said crime.
'VI.
'That Gary Lee Quigg is known to have had .22 guns in his possession, a caliber, which is identical with the gun caliber that killed Mr. Robbins and said guns were believed kept in the home or kept in automobiles in possession of said Gary Lee Quigg;
'VII.
'That at the time of Mr. Robbins' killing certain papers, money and a watch disappeared;
'VIII.
'That for aforesaid reasons and in the reasonable belief that said person, Gary Lee Quigg has in his possession or in his vehicle the said property, the petitioner prays that a Search Warrant be issued allowing the Billings Police Department of Billings, Montana, to search the premises of a one story house, color white, with basement, exact size of house unknown, located at 236 Custer Avenue, Billings, Montana, the property of Harold M. Learn and Mabel G. Learn, and the residence address given by Gary Lee Quigg as his home also detached garage next to building, and then and there to seize and take into their possession any .22 caliber pistol, a gold wristwatch with expansion band or any other property or evidence they might discover that may connect to the demise of Lee Robbins.
'S/ Richard E. Shaffer
'On this 2nd day of August, 1968, before me E. E. Collins, Justice of the Peace, personally appeared Richard Shaffer, known to me to be the person whose name is subscribed to the within instrument and being first duly sworn and examined by me; he did acknowledge that he executed the same.
'S/ E. E. Collins
E. E. Collins
Justice of the Peace.'
Justice of the Peace Collins issued the search warrant in these words:
'THE STATE OF MONTANA TO ANY SHERIFF, CONSTABLE, MARSHAL OR POLICEMAN, Richard E. Shaffer, Police Officer, in the County of Yellowstone, State of Montana;
'Proof, by Petition under oath having been this day made before me by Richard E. Shaffer, a Police Officer for the City of Billings, Montana, seeking issuance of a search warrant for the premises located at 236 Custer Avenue, a one story house, color white, with basement, exact size of house unknown, the property of Harold M. Learn and Mable G. Learn, and the residence address given by Gary Lee Quigg as his home also detached garage next to building;
'You are hereby commanded to make a search, in either day or night of that house located at 236 Custer Avenue, a one story house, color white, with basement, exact size of house unknown, the...
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State v. McKenzie
...covered by the language "any other contraband articles" is without merit. The language used comes within the rule of State v. Quigg, (1970), 155 Mont. 119, 467 P.2d 692, where we held that items other than those specifically described in the search warrant may be seized as long as a reasona......
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State v. Fitzpatrick
...review of cases such as State v. Rhodes and Shields, supra; State v. Hatfield (1973), 163 Mont. 248, 516 P.2d 368; and State v. Quigg (1970), 155 Mont. 119, 467 P.2d 692 reveals that the death penalty was indeed being imposed "wantonly and [186 Mont. 222] freakishly" in Montana. 408 U.S. at......
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State v. McKenzie
...covered by the language "any other contraband articles" is without merit. The language used comes within the rule of State v. Quigg (1970), 155 Mont. 119, 467 P.2d 692, where we held that items other than those specifically described in the search warrant may be seized as long as a reasonab......
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State v. McKenzie
...language 'any other contraband articles', is without merit. The language used comes within the holding of this Court in State v. Quigg, 155 Mont. 119, 467 P.2d 692. Next we consider the constitutionality of section 95-1806(f), R.C.M.1947, which 'The burden of proving that the search and sei......