State v. Hallam

MONTANA, Respondent, v. STEPHON STATE OF Plaintiff Appellant. HALLAM, VINCENT BENITO Defendant No. 13383. Sept. 1977. Submitted Feb. 1978. Decided 2, 1978. Rehearing Denied March P.2d 55. Falls, Waite,

Robert W. Gabriel Leslie argued, Great S. III Falls, Great defendant and argued, for appellant. Gen., Helena, Michael T. Fred Greely, Atty. argued, J.

Bourdeau, Falls, for Atty., Great and County argued, plaintiff respondent.

MR. HARRISON delivered the of opinion the Court. JUSTICE arson of one count of and three Defendant convicted counts the deliberate homicide in District Court. From the judgment trial, and conviction the denial of his motion new defendant appeals. 4, 1975,

In the early hours of fire occurred in an morning July South, Falls, at house 507-509 Street Great apartment Fourt Mon- tana. There were four housing the separate apartments building, fire, about At ten the time of the Fred his people. Cobb and three half-sisters were floor at head occupying apartment second the the Cobb was stairs. on the couch and was awakened by sleeping He smoke. the door stairs but retreated opened leading from the heat and smoke. He awoke one sister who also room, others, in the sleeping living told her to and get escaped out a by crawling window. The did not and make out were girls asphyxiated. 10, 1975, defendant, Hallam,

On July Stephon Vincent Benito was arrested for fire to the setting house and for the apartment deaths. resulting apartment building where fire occurred had been Heckman, by one

operated Virginia who had been defendant’s “girlfriend”. Defendant had at times with Mrs. Heckman in stayed her apartment in the at times had a building to her key apart- ment.

There was that three testimony the fire days prior Mrs. Heckman decided to terminate the There was relationship. also “blowout”, that defendant had testimony stated had a they but defendant testified that he was not aware between problem them.

The fire was investigated several members of the Great Falls well as Great department Falls police department. Debris was from area of the fire examined at gathered Missoula, State Lab in Crime Montana. The determined lab kerosene, a of presence liquid, flammable a from highly type debris in the front outside gathered way Virginia Heckman’s entry door. apartment Clos,

Howard is a nephew of defendant and fireman Jr. several hours spent that defendant He testified of Great Falls. city Defendant kept to Clos. talking at the fire station on July thought the fire department as to whether his nephew quizzing Clos, “the informed he leaving, caused. Before fire was arson it.” allegedly I did do He worried is because that I am really reason also in- on fire. He and set the carpet he up stated piled garbage to set could be used liquids that certain flammable dicated a belief detected. a fire without being and replaced stove gas and a friend had removed

Defendant at approx- apartment stove at Mrs. Heckman’s with an electric June, 1975. the end of imately set deliberately was that defendant

The theory prosecution theory Mrs. Heckman. against the fire for revenge for the fire he was to blame that defendant thought defense was wir- and to do job the stoves failing a result of changing proper off the gas. ing capping con- sentenced to all counts and was found on guilty

Defendant three homicide each on the hundred years secutive terms of one count. on the arson counts and 20 years issues on appeal: Defendant presents eight of fatal errors in the af- because lacked jurisdiction 1. The court leave to file Information. fidavit for motion the prosecution’s The court erred granting 2. had the defendant after IV of Information amend Count selection; and during jury entered plea all voir dire examination erred in 3. The court prohibiting charges capital the homicide jurors regarding potential punishment; witnesses to the fire allowing department The court erred

4. eviden- the necessary fire without as to the cause of the speculate in the the question posed and without having foundation tiary form; question necessary hypothetical Clos, surprise constituted of Howard 5. The trial testimony Jr. excluded; have been and should

497 Clos, 6. The trial of Howard should not have been testimony Jr. to that admitted without establish it met hearing constitutional requirements;

7. The erred in court certain instruction that cer- allowing jury tain admissions of defendant direct constituted evidence and fur- ther, by refusing instruction indirect and circumstantial regarding evidence; and

8. The court erred in the to in allowing prosecution speculate closing about evidence not in the argument record.

The affidavit in of the state’s to motion leave file the support states, direct Information in pertinent part: 1975, Falls, “That on or 4th about the day of at Great July, Montana, herein, Cascade County, the defendant VINCENT HALLAM, Rose, STEPHON caused the of death Charlotte Sherry Rose, Rose and Charlene the at by fire to 509-4th setting premises South, Falls, Montana; Street Great Cascade that County, the defendant has admitted to said having set the fire flam- by igniting mable materials at or the near the said entry that way premises; of investigation the fire at these the Great Falls premises by Fire Department determined that the caused inten- by tional means of origin way entry premises.

“That the of State Montana will prove by testimony witnesses whose names are endorsed on back of the Informa- tion, with together evidence obtained in the physical investigation thereon, done testing as well as the admission defend- herein, defendant, HALLAM, ant that the VINCENT STEPHON I, of the crimes of guilty COUNTS II AND II: DELIBERATE HOMICICE, FELONY, 94-5-102(l)(b), A violation Section R.C.M.1947, ARSON, FELONY, as amended and COUNT IV: A 94-6-104(l)(a), in violation Section R.C.M.1947 as amended.” In order to obtain to file an Information permission direct “ * * * Court, in District the state must the judge that there is satisfy probable cause believe that an offense has been committed by * * Where, 95-1301(a), the defendant Section R.C.M.1947. here, a warrant of arrest is issued on the basis of the granting (section 95-1301(b)), leave to file direct a constitutional question arises. The Fourth Amendment forbids the issuance of warrant of arrest unless cause is shown and oath or af- probable supported by States, firmation. v. United U.S. Giordenello (1958). S.Ct. 2 L.Ed.2d 1503

The existence of cause must determined be probable Texas, of a detached independent v. judgment magistrate. Aguilar 108, 111, 1509, 1512, 387 u.S. 84 S.Ct. 12 L.Ed.2d 723 The Revised Commission to section 95-1301 notes: Comment

“* * * file leave to an information is not a mere Obtaining per- matter, but rests in the sound discretion of the district functory itself, The must be and contain such judge. application complete salient facts as will allow an the district to make judge independent * * *” determination that an offense has been committed.

The facts in the affidavit are: alleged by county attorney (1) Defendant caused the death of three fire to persons by setting the apartment building;

(2) Defendant admitted the fire flammable setting by igniting entrance; materials near the

(3) The Great Falls determined that the fire was department set; and intentionally

(4) The state believes it can the defendant of the of- prove guilty fenses charged. aIn series of cases State ex rel. v. District Court following Juhl

(1938), 309, 979, 353, 107 Mont. 84 P.2d 120 this A.L.R. Court has considered the for the and mo proper procedure application (1964), tion for leave to file an Information. v. State 144 Nelson 439, 700; 188, (1965), Mont. 397 P.2d State v. Peters 146 Mont. 194, 645; (1968), 405 P.2d State v. Corliss 150 Mont. 430 (1963) P.2d 632. See also 25 Mont. Law Rev. 135 and 26 Mont. Law Rev. 9

The noted: Court Peters

“* * * This court has held that leave to file is not a consistently matter, and that it must be not perfunctory automatically granted. Sufficient facts must be to move the court’s discretion to presented (Citations omitted.)” leave. grant

It should be noted that at the time of the request an order to direct, file the trial court held an extended thereon with hearing briefs and oral The was to argument. with the hearing comply most recent United States Court decision in Supreme Gerstein v. 103, 119, (1975), 420 U.S. 43 L.Ed.2d Pugh, S.Ct. the court found that sufficient wa information to war- produced rant the of the leave granting to file the Information and warrant of arrest.

We hold that the fact the affidavit revealed an admission to (2) fire was setting sufficient with along indication that the fire was set to intentionally warrant the action of the trial court, in view of the fact a particularly separate was held hearing after the issuance leave to file the Information and warrant of ar rest. This information was sufficient to clearly establish probable cause. 10, 1975, Information filed in District Court July charged

defendant with (one three counts of deliberate homicide count for fire) each person killed in the and one count of arson. Defendant plead to all guilty four counts. The arson count charged: Cascade, “That at the Montana, of County State of on or about 1975, the 4th of A.D. day July, before the of this Infor- filing mation, the said defendant then and there did being, then and there fire, means of by consent, or knowingly without purposely, dam- aged Peck, or destroyed an structure of Walter occupied an namely South, apartment Falls, building located at 509-4th Street Great Montana, in 94-6-104(l)(a), 1947, violation of Section R.C.M. amended.” trial,

On opening day county motion was attorney’s granted to amend the arson count to defendant charge under (b) (a) subsection rather than subsection of the arson statute: Cascade, Montana, “That at the of County State of on or about 1975, the 4th A.D. and before day July, of this filing Infor- mation, said defendant then and there did then and there being, Rose, or place Sherry means of fire knowingly purposely death, Rose, in violation and Charlene Rose in danger Charlotte 94-6-104(l)(b), R.C.M.1947 as amended.” of Section Defendant contends this amendment was matter of substance 95-1505(b), and in of section R.C.M.1947: violation “(b) The be amended as to form court to may permit any charge at time before verdict or if no additional or different finding any if of the defendant are offense is and the substantial charged rights not prejudices.”

An to subsequent pleading amendment of Information (1976), must meet the test set forth in State v. Brown two-pronged 560 P.2d 535: Mont. *“* * (1) such an allowed as to matters of amendment is only form, (2) when no substantial of the defendant only right pre- * *”* judiced. of a

This Court Brown held that an amendment attempted assault “serious to charge aggravated by causing bodily injury” assault “reasonable of serious aggravated by causing apprehension was substantive and therefore not allowable. Ac- bodily injury” we should not have been hold amendment cordingly, granted. The District Court refused to allow defense counsel ask pros- about their conscientious regarding pective jurors opinions that since the sentencing death The court took penalty. position function rests with the such is irrelevant. inquiry solely judge, R.C.M.1947, 95-1909(4)(b)(viii),

Defendant notes that section cause, case, allows either challenge capital party conscientious as would find- preclude such juror having opinions is difficult to see how defendant can com- defendant It ing guilty. such a that this statute was violated. The empaneling juror plain be for his benefit. could only bolster

Nor do the cases cited defendant his position. to a has an constitutional unqualified right Defendant certainly v. 73 Mont. fair and State Russell impartial jury. either the defense has not shown how juror’s opinions P.712. But

501 or favoring disfavoring capital make such a punishment juror more to convict defendant. The likely Court in Wither Supreme Illinois, 510, 1770, v. 391 88 spoon U.S. S.Ct. 20 L.Ed.2d 776 (1968) considered selection jury which process by any prospec tive to the juror opposed death could be penalty challenged cause. While the Court concluded such could not constitu jury death, sentence a tionally defendant to refused to expressly reverse defendant’s conviction on that basis. The could Court vind that such a increased the jury substantially risk of conviction. 517, 391 at supra, U.S. 88 Witherspoon, S.Ct. 1770. See also Carolina, 1788, v. North 391 Bumper U.S. 88 S.Ct. 20 L.Ed.2d 797

It is within the clearly rulings Witherspoon be made Bumper as to such inquiry conscientious opinions prospective jurors that would them from preclude finding defendant Thus the guilty. state could with some complain merit about the restriction of voir dire in this case. There is no authority, however, for the that such proposition restriction is prejudicial defendant, and we decline to so hold.

The defense next contends the court erred in allowing depart- ment witnesses to as to the speculate cause of the fire without the necessary evidentiary foundation and without having questions posed form. hypothetical

It has never been the law that a hypothetical question to the indispensable .testimony witness. opinion expert The cases cited defendant only require witness to as to testify the facts which he upon bases his Boehler v. Sanders opinion. (1965), 885; Mont. 404 P.2d v. Hyde Irion Mont. 105 P.2d 666.

The witnesses in question were were experts. They testify from ing facts revealed through investigation carried out them selves and under their direction. testified as to the facts and They were available for full cross-examination. The District Court was correct in its ruling.

The defense claims at trial surprise testimony 10, 1975, Clos, which was a statement July Howard Clos gave Jr. and which detailed defendant’s made available to defense counsel to interview counsel also had the opportunity admission. Defense using defendant as quoted about the incident. At trial Clos Clos which Clos had not previous- certain profane vulgar language defendant, Clos, to stated: mentioned. ly referring that_out.’ He ‘I’ll be back to burn “He said that —he says, the_ that building fire marshall hadn’t of closed ‘If sayd, ” down,’ have been back he T would says, today.’ to have been damaging While the addition of the profanity may defendant, from his did not differ in substance Clos’s testimony to statement. Defense counsel had the impeach prior opportunity statement, claim with did so. Defendant’s Clos the prior they is without merit. surprise Howard Clos should not The defense the trial argues testimony that Miranda have been admitted without a to establish hearing and that defendant’s confession had been warnings given voluntary. 368, Denno, 84

The v. 378 U.S. Court Supreme Jackson 1774, 908, (1964) held that S.Ct. 12 1 A.L.R.3d 1205 L.Ed.2d is into question, where the voluntariness of confession brought defendant has a constitutional to a on the voluntari right hearing case. Here there ness issue. is not to the instant applicable Jackson the voluntariness of the statements. was never issue regarding with Clos. He never claimed Defendant initiated the conversation coerced. Defendant testified his statements were any way Clos, but did not his remarks must have been misunderstood by even intimate that were not they voluntary. the Fifth protect

Miranda are warnings necessary interroga Amendment of an accused “custodial undergoing rights 1602, 436, 444, Arizona, tion”. S.Ct. Miranda v. U.S. 1612, in Miranda 16 L.Ed.2d 694 Court Supreme noted: * ** initiated we mean questioning interrogation, custodial “By into cus- has been taken officers after person law enforcement otherwise of his freedom of action in any or tody deprived signifi- * * *” cant way.

Clos law enforcement officer. There is no indica tion that defendant was of his freedom of action deprived any one at the time the made. statements were No Miranda warnings were necessary. Defendant as cites error refusal of the District Court give “* **

defendant’s instruction No. an instruction that proposed the evidence against the defendant presented entirely circum- * * stantial evidence,

Instructions on circumstantial such the one here, offered are when there is direct proper only no evidence of the (1966), delicti. v. State Stoddard 147 Mont. corpus 412 P.2d 827; v. State Mah Sam 89 Mont. 295 P. 1014. Hing

This Court has held that a confession constitutes direct evidence and that it is not error to refuse a circumstantial evidence instruc- tion when is there aof confession. State v. testimony White 146 Mont. P.2d 761.

Defendant contends the statement related Clos is not by confession, an but is admission. A is “confession” an admission crime itself and “admission” only concerns some fact specific which, turn, tends to establish or some element of guilt the of Unsworth, This fense. distinction is stated in Gladden v. clearly (9th 1968). 396 F.2d 373 Cir.

Clos’s was that defendant told he testimony him that “did he it”. In addition said that if the fire marshal had not closed the he building would have back gone that and it. day burned This the central fact was a goes guilt confession. The circum stantial evidence instruction was refused. properly

The final issue raised the defense concerns the closing of the to the argument county state’s attorney. According theory case, the the fire burned for 30 to minutes before it was out. put this Under theory, fire would have had to have been at burning 5:10 m. a. when on fireman his to work near the way passed loca tion but did not see smoke. The county attorney postulated not visible the doors to smoke was because immediately started, where the fire were closed. Defense counsel ob-

entryway, to this on the that the evidence showed the front basis door jected was a screen door. His overruled. objection error and the We find no here. Both defense prosecution their theories respective regarding origin timing presented fire. The instructed as to constitutes jury what evidence. unfair theory The state’s was not an inference from evidence presented.

We affirm the three convictions on the homicide counts and count No. 4. reverse on and DALY

MR. HASWELL concur. JUSTICES McKINNON, LeROY L. District of Chief Judge, place sitting Hatfield: Justice

I concur in the but all the statements con- foregoing opinion, tained therein. SHEA, dissenting:

MR. JUSTICE conviction, addition to the arson I would also In reversing reverse the homicide convictions. can the scrutiny in this case withstand as to charges

None of as is existed for the arrest com- whether cause probable original States, 480, 78 357 U.S. S.Ct. Giordenello v. United pelled can withstand Nor the convictions 2 L.Ed.2d 1503 requirement of our statutes scrutiny relating own cause. probable case, sole not reverse for the reason the context of this I would

In attitudes on inquire the defense to into the jurors’ of not allowing nevertheless, Court I believe the District also capital punishment; even ulti- punishment inquiry, though erred in not this allowing latitude of I believe the widest possible a function the court. mately in a the defense and prosecution dire should be allowed on voir important Voir is one of the most criminal case. dire examination of (and entire the interests fair- of the trial. In most neglected) parts be restricted. it ought unduly ness of whether cause the question there was probable filing and, of the information for the issuánce of the arrest consequently, warrant, be must in its This a put is not situa- proper perspective. tion where are to we asked review the of the to evidence sufficiency Rather, the sustain ultimate convictions obtained in case. we this are if asked to determine existed for probable cause the fil- original the and the issuance the ing charges warrant of arrest. That must be confined to inquiry for leave to file solely application (for time), the information no other evidence was offered at that the answer must be “no”. resounding To buttress the total lack of factual statements the application, relies on a held majority the defendant was hearing arrest- after However, ed. even this did not include the of evi- hearing taking dence. It was to confined briefs and oral on the arguments question of whether cause existed to arrest probable the defendant. Ap- this was to parently, held in order hearing with the comply require- ments of Gerstein v. Pugh, 420 U.S. 95 S.Ct. 43 L.Ed.2d It must be that again was emphasized hearing held after the arrest that no additional evidence was received. have,

We situation accordingly, where the county prosecutor elected to on the of his for leave to rely sufficiency application file to justify information issuance of the arrest warrant. Where he fails that is not our to bail regard, him out duty simply because ultimate convictions were sufficient supported by evidence. law There no required stand prosecutor on the for leave to file sufficiency application the informa- tion. He could have decided previous that the application inadequate, dismissed and then filed charge, immediately sufficient factual statements application containing to justify cause. finding probable elected to stand on his Having original have known that application, prosecutor must ultimate any convictions must withstand judicial scrutiny probable whether cause was stated to the arrest and criminal justify subsequent pro- ceedings. Needless to say, evidence forth at brought pretrial or the actual hearings trial cannot relate back to the filing original save conviction. in the The relies on four statements contained applica- majority information, sec- the but that recognizes only tion for leave to file of the ond third are to determination statements applicable cause. The summarizes probable majority applica- existence tion as follows: are: facts in the affidavit county attorney

“The alleged by “(1) fire setting caused the death of three persons by Defendant to the apartment building;

“(2) flammable setting Defendant admitted igniting entrance; near materials

“(3) that the fire The Great Falls Fire determined department set; intentionally “(4) The the defendant guilty state believes it can prove offenses charged.”

As to cause in statements majority contained these probable concluded: to set- the fact affidavit revealed an admission

“We hold that (2) (3), with an indication that along the fire was sufficient ting the trial court. set to warrant the action of intentionally fire was was held after in fact a hearing view the Particularly separate arrest. Information and warrant of the issuance of leave to file the to sufficient establish probable This information clearly cause.” conclusions, is I the application to believe that these

Contrary (1) and addressing points devoid cause. By totally probable add to establish that nothing tacitly agrees they the majority The in this analysis. And are correct they cause. surely probable (1) death of three persons defendant caused the statement that Moreover, whether it not indicate a bald conclusion. does accidentally been caused or could have intentionally were deaths Likewise, (4) the state believed the statement that caused. is a conclu- charged of the offense the defendant guilty could prove sion, cause. probable requirements to the adding nothing (2) the fire setting defendant admitted statement in that requirement adds nothing materials flammable igniting set And the fire be set. deliberately opposed accidentally neither do we have idea of the circumstances and context in which defendant made this statement. To whom did he allegedly child, relative, make this Was it a statement? policeman, friend, an Was the reliable? The record is eavesdropper? person silent on these questions. (3)

The statement in that fire the Great Falls deter- department mined that the fire set is also a mere conclusion. intentionally When did department determine this? How was it deter- mined? What was the basis for this determination? making Who made this determination? Was there independent evidence linking defendant to the scene of the crime or with any occupants matters, who were killed in fire? On these application also silent.

The requires, law as the majority agrees, there be factual statements contained in the so that moving papers the District Court can make an independent determination that probable cause Here, does exist. the District Court had but bald conclu- nothing sions. The majority interprets Aguilar, require that “the supra, existence of be probable cause must determined independent Here, a judgment of detached magistrate”. there were no facts which upon the District Court could have an made independent Moreover, judgment. in flies the fact of application section 95-1301, which the to follow. majority purports The majority quotes with approval from following language the Revised 95-1301, Commission Comment to section but then totally ignores its application:

“* ** leave to file an Obtaining information is anot mere per- matter, functory but rests the sound discretion of the district The judge. must be application itself, complete contain such salient as will allow the district judge make independent facts * * *” determination that an has been committed. (Empha- offense added.) sis

I cannot imagine more incomplete than was filed application case, in this nor a more treatment perfunctory prosecutor facts, let alone no and District contained Court. application facts, was in no posi- for this reason the District Court salient that an offense had been tion to make independent judgment its for the District Court to exercise committed. There no room file have denied as matter discretion. Leave to should been duties, and its the prosecutor law. If District Court performed his, to refile been a matter for the simple prosecutor would have sufficient application. and the District Court to approve legally stand, cannot withstand an As convictions now these matters issuance on cause before the required attack the original probable be arrest. The convictions should reversed. of warrant of

Case Details

Case Name: State v. Hallam

Court Name: Montana Supreme Court

Date Published: Feb 6, 1978

Citation: 575 P.2d 55

Docket Number: 13383

Court Abbreviation: Mont.