State v. Warwick

• Decision Date: 24 February 1972
• Docket Number: No. 11988,11988
• Citation: 494 P.2d 627,158 Mont. 531
• Parties: The STATE of Montana, Plaintiff and Respondent, v. Orville Archie WARWICK, Defendant and Appellant.
• Court: Montana Supreme Court

Page 627

494 P.2d 627

158 Mont. 531

The STATE of Montana, Plaintiff and Respondent, v. Orville Archie WARWICK, Defendant and Appellant.

No. 11988.

Supreme Court of Montana.

Submitted Jan. 11, 1972.

Decided Feb. 24, 1972.

Sandall, Moses & Cavan, Charles F. Moses argued, Billings, for defendant and appellant.

Robert L. Woodahl, Atty. Gen., David V. Gliko, Asst. Atty. Gen., argued, Helena, Thomas A. Olson, County Atty., Thomas D. Gai, Deputy County Atty., argued, Bozeman, for plaintiff and respondent.

JOHN C. HARRISON, Justice.

This appeal is from a conviction of murder in the first degree. Defendant was tried by a jury in the district court of the eighteenth judicial district, Gallatin County, found guilty and sentenced to life imprisonment.

At about the hour of 8:30 a. m. on December 23, 1964, Mr. Earl Plum, an employee of Glacier Mountain Cheese Co., Gallatin Gateway, while traveling along Cottonwood Road, south of Bozeman, came upon the scantily clad body of a young woman. Plum immediately called the sheriff of Gallatin County, Con McClurg, and then returned to the situs of the body and blocked off the road to see that nothing disturbed the scene until the law officers arrived. Plum testified the body lay on a small bridge, clad only in a bra and panties and that a dress, slip, coat, and boots were in a pile a short distance from the body.

Sheriff McClurg, upon being notified by Plum, gathered together a number of sheriff's officers, Bozeman police officers, and the then county attorney, Page Wellcome, and proceeded to the scene arriving at about 9:40 a. m. Pictures were taken; measurements were made of the area; and plaster casts were made of tire marks. All physical evidence was analyzed by the local officials and then sent to the FBI laboratory. This physical evidence was introduced at trial, some of which will be referred to later in our discussion. A broken watch which had stopped at 4:20 and an engagement ring were on the body of the young woman.

The body was removed to a funeral home in Bozeman where Dr. Mark Young, the coroner, and Dr. Volney Steele, a pathologist, performed an autopsy at about 11:30 a. m., on December 23. Their report shows the following: face battered and bruised, mandible fractured, fractured dislocation of left ankle, many abrasions, deformed pelvis, fractured clavicle and sternum. In their opinion the cause of death was due to 'severe external trauma'.

No identification of the body was made or announced to the public until between 6:00 and 6:30 p. m., the evening of December 23, when a Mrs. Mary Kuhar of Billings, Montana, arrived and identified the body as that of her daughter, Bobbi Clark.

Bobbi Clark, a graduate from Montana State University, was a teacher at Kalispell, Montana. On the evening of December 22, 1964, she drove from Kalispell to Bozeman. She was accompanied by her roommate as far as Three Forks, her roommate's home. The roommate testified that Bobbi left Three Forks at about 1:30 a. m., December 23, and her car was noted arriving in Bozeman at about the hour of 2:00 a. m. by a local police officer.

Jack Wandler, Bobbi Clark's fiancee, testified that he had expected her to stay at his apartment; that on the evening of December 22 he had cleaned the apartment and while waiting for her to arrive he had fallen asleep and had not awakened until about 6:00 a. m. Not finding Bobbi there, he called her roommate in Three Forks; made another call to a local friend of Bobbi's, a Mrs. Fulker; and then went outside where he found Bobbi's locked car parked in an alleyway parking space back of his apartment. He then went several blocks to a fraternity house to find out if his apartment mate, Jerry Sargent, had seen or heard from Bobbi, and, learning that he had not, he returned to his apartment and called the Bozeman police at 6:45 a. m.

The chief of police, Ron Cutting, answered the call; checked the parked auto belonging to Bobbi Clark; and obtained a picture of her from Wandler. This picture was turned over to Sheriff McClurg. Chief Cutting and another officer returned to the car where they observed about a dozen footprints of a woman's shoe on the driver's side of the car which disappeared when they got to hard snow. Tire marks of another car were observed progressing up to Bobbi's car, but no casts could be made of those marks.

Plaster casts of tire tracks found near the body were sent to the FBI. On December 31, 1964, the FBI filed a report which stated that the tread design of the casts 'conform most closely to the design of a Cordovan low-profile jet tire'. At the time the comparison of tread designs was made, the FBI file did not contain a Crest Imperial tread design. At trial the FBI agent testified that 'we just can't get every design that is made and keep up to date * * *.' FBI sent a copy of the Cordovan tread design to Sheriff McClurg to assist him in his investigation.

Prior to receiving the FBI report, the Bozeman police on December 23, initiated a survey of 'every tire dealer in town' in an attempt to identify the type and make of the tire which made the tracks that the plaster casts were made from. Finally, in the early part of January 1965, a tire was located at a Gamble's store that 'appeared to match the casts.' That tire was a Crest Imperial. 'Crest imperial' is a trade name used on tires that are marketed only by Gamble's.

On the basis of this information Sheriff McClurg early in January advertised in the local news media that his office was seeking information 'with respect to the type or kind of tire' which he believed was involved in the death of Bobbi Clark.

On January 15, 1965, a short time after the sheriff's public inquiry about the tires, the defendant reported to the Bozeman police that two tires had been stolen from his residence.

Also on January 15, 1965, one Roy Foster, while on his way home from work found a Crest Imperial narrow white sidewall tire on the Bridger Canyon road, sometime around 4:40 p. m. The tire was found alongside the guardrail next to the road. Foster testified 'it was extremely clean' and 'looked as though it might have been washed.' Foster stopped and picked up the tire because he had heard 'ads on the radio' that the police were looking for a set of tires and 'I noticed that it (the tire) hadn't been there that morning when I went to work'. Foster took the tire home and called the sheriff's office. A deputy sheriff came to Foster's home and took the tire into custody. The tire had been found approximately four-tenths of a mile up the Bridger Canyon road from a fish hatchery and rock slide.

On January 18, 1965, one Alfred Kinney, while plowing snow on the Bridger Canyon road, 'noticed a tire lying up on the side of the hill there at the rock slide'. Kinney stopped his truck and secured the tire because he also had heard 'advertising on the radio and the papers' that the sheriff was looking for tires. The tire found by Kinney was a 'Crest' and 'it was in good shape.' Kinney turned the tire over to the sheriff's office.

Subsequent investigation established that defendant's car had had two Crest Imperial tires on it. The recovered tires were sent to the FBI laboratory to be compared with the plaster casts made at the scene where Bobbi Clark's body was found.

An FBI agent testified at the trial that the plaster casts made where the body was found and the tires located in the Bridger Canyon area were of the same size, same tread design, and had the same degree of wear. 'Further, it was either these two tires that made these two impressions or two other tires having the same characteristics as to tread size, tread size and tread design and worn in this manner, worn to this degree.' These tires are a part of the circumstantial evidence that brought focus upon the defendant as a suspect.

On February 2, 1965, at the request of Burleigh Allen, a former FBI agent and a private investigator hired by Bobbi Clark's mother to assist local law officials in the investigation, defendant voluntarily, after being advised of his rights, consented to allow the local law enforcement officials and Mr. Allen to search his 1959 Chevrolet car and his apartment. This authorization went to all physical items of evidence, fingerprint analysis, and chemical identification of any substances they felt should be anaylzed. With this consent, the law officers and Mr. Allen completely checked the car, taking it to a service station where it was put up on a hoist. Concerning that inspection Mr. Allen testified:

'We noticed, I noticed, that it was extremely clean. I mean it wasn't as though it had been through mud or anything like that.'

Concerning the interior of the car, he testified:

'The interior of the car, * * * was also exceptionally clean.'

On that same day, February 2, 1965, Mr. Allen, in the presence of several local law enforcement officers, took a thirty-eight page statement from the defendant concerning many facets of the investigation. This statement was taped and transcribed. In the interval between February 2, 1965, and the time of trial, some five years, the tapes disappeared.

At the trial, a state's witness, one Dick Kountz, testified that sometime in the first part of February 1965, he was out poaching deer with defendant and while in the process of dressing out a deer the defendant told him '* * * he was the one who killed Bobbi Clark'. This alleged statement of defendant to Kountz did not become known to the investigating officers until nearly five years after the homicide when, for some reason not explained at the trial, Kountz gave a statement to the county attorney on January 3, 1970.

One other witness appeared at the trial who had not appeared and given testimony during the 1965 investigation. That witness was Mrs. Judith Veltkamp, who had been employed in 1964 as a grocery checker at the Buttrey Store where defendant worked as a box boy and also stacked shelves. This witness, the wife of a local...