State v. Norgaard

No. 8i-570

IN THE SUPREME COURT OF THE STATE OF MONTANA

1982

STATE OF MONTANA,

Plaintiff and Respondent,

VS .

WILLIAM NORGAARD,

Defendant and Appellant.

Appeal from: District Court of the Fifteenth Judicial District,

In and for the County of Roosevelt

Honorable M. James Sorte, Judge presiding

Counsel of Record:

For Appellant:

Francis J. McCarvel argued, Glasgow, Montana

Steven R. Marks argued, Glasgow, Montana

For Respondent :

Hon. Mike Greely, Attorney General, Helena, Montana

Mike McGrath, Assistant Attorney General, argued,

Helena, Montana

Marc F. Racicot argued, County Prosecutors Service

Bureau, Helena, Montana

James A. McCann, County Attorney, argued, Wolf Point,

Montana

Submitted: June 23, 1982

Decided : November 4, 1982

Filed : jfov zk ' ;Lj)il

Clerk

Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of

the Court.

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 investi-

gator 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 evalu-

ation 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 whe-

ther or not he should interview ~orgaard.

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. Strat-

ford 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 rights 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 attor-

ney 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 ex-

plained 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 sup-

press, 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 468, 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 Roose-

velt County Attorney's policy not to interview defendants

without consulting defense counsel. Defendant believes that

under either a factually-limited or an expansive interpreta-

tion of Brewer v. Williams (1977), 430 U.S. 387, 97 S.Ct.

1232, 51 L.Ed.2d 424, -- 431 U.S. 925, 97 S.Ct.

reh. den.,

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-incrimina-

tion, the right to assistance of counsel, and due process of

law. The New York Court of Appeals held that, "[olnce a

lawyer has entered a criminal proceeding representing a

defendant in connection with criminal charges under investi-

gation, 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. Defen-

dant was booked in Davenport, Iowa, on an abduction charge

that was specified in an outstanding arrest warrant. Defen-

dant was to be transported from Davenport to Des Moines in a

police car. Before defendant started his journey, he con-

sulted with an attorney named Kelly in Davenport and tele-

phoned McKnight in Des Moines. Both attorneys advised him

not to make any statements until after he personally con-

ferred with McKnight in Des Moines. McKnight and Detective

Leaming, a veteran of the Davenport police department,

agreed that Williams would not be questioned during his trip

to Des Moines. Kelly firmly admonished Detective Leaming to

honor his agreement with McKnight. Without counsel Williams

set off for Des Moines with Detective Leaming and another

police officer. Detective Leaming did not formally inter-

rogate Williams; instead he used what has been referred to

as the "Christian burial speech" to induce ~illiamsinto

disclosing the whereabouts of the young victim's body.

Invoking the rule of Massiah v. United States (1964),

377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (violation of

Sixth Amendment found where federal agents deliberately

elicited incriminating evidence from defendant after he had

been indicted and in absence of his counsel), the United

States Supreme Court held that Detective Leaming violated

Williams' Sixth Amendment right to counsel. In doing so,

the Court acknowledged that even though Williams previously

had been informed of and appeared to understand his right

to counsel, Detective Leaming neither advised Williams that

he had a right to presence of an attorney or made an effort

to ascertain whether Williams wished to relinquish that

right when he deliberately elicited from defendant incriminat-

ing evidence in absence of his counsel. Referring to the

Johnson v. Zerbst standard of "an intentional relinquishment

or abandonment of a known right or privilege" [(1938), 304

U.S. 458, 464158 S.Ct. 1019, 1023, 82 L.Ed. 1461, 14661, the

Brewer court did not hold that Williams could not, without

notice to counsel, waive his rights under the Sixth and

Fourteenth Amendments; instead, it specifically stated that

the State of Iowa failed to sustain its heavy burden in

proving that Williams had intentionally relinquished his

right to counsel.

This Court hereby holds that a defendant, charged under

information or indictment and represented by counsel, may

waive his right to counsel, without notice to or presence of

counsel, during an interview initiated by law enforcement

officers investigating the charged crime, so long as defen-

dant's waiver is voluntary, knowing and intelligent as shown

by the particular facts and circumstances surrounding that

case.

We expressly reject the rule of People v. Hobson,

supra. In adopting a per - rule the New York court has

se

gone beyond the contours of Johnson v. Zerbst and its progeny

in holding that despite "the particular facts and circum-

stances of [a] case, including the background, experience

and conduct of the accused," Edwards v. Arizona (1981),

,

U.S. - 101 S.Ct. 1880, 1883-1884, 68 L.Ed.2d 378,

385, citing Zerbst, supra, 304 U.S. 458, 464, 58 S.Ct. 1019,

1023, 82 L.Ed.2d 1461, 1466, a defendant cannot effect a valid

waiver of the right to counsel, without counsel's presence

or consent. While we do not dispute the assertion that the

presence of counsel provides a more effective safeguard

against involuntary waiver than a written or oral Massiah-

type warning, we emphatically disagree with the New York

court's implicit assumption that written and oral warnings

in absence of counsel cannot ensure that a defendant's right

to counsel will be protected from unintentional relinquish-

ment. The vast majority of jurisdictions have upheld coun-

selless waivers which were obtained after written or oral

warnings have been given. State v. McLucas (1977), 172

Conn. 542, 375 A.2d 1014, cert. denied, 434 U.S. 855, 98

S.Ct. 174, 54 L.Ed.2d 126; Pierce v. State (1975), 235 Ga.

237, 219 S.E.2d 158; State v. Ruth (1981), 102 Id. 638, 637

P.2d 415; People v. Aldridge (1979), 68 Ill.App.3d 181, 24

I11.Dec. 484, 385 N.E.2d 396; State v. Costa (1980), 228

Kan. 308, 613 P.2d 1359; Watson v. State (1977), 35 Md.App.

381, 370 A.2d 1149, aff'd, 282 Md. 73, 382 A.2d 574, cert.

denied, (1978) 474 U.S. 908, 98 S.Ct. 3100, 57 L.Ed.2d 1140;

State v. Williams (Mo.App. 1978), 566 S.W.2d 841; People v.

Green (1979), Mich. , 274 N.W.2d 488; Giddings v.

State (Minn. 1980), 290 N.W.2d 595; State v. Jackson (19801,

205 Neb. 806, 290 N.W.2d 458; State v. Romero (1982), 56

N.C.App. 48, 286 S.E.2d 903; Matter of Sanders (1982), 56

0r.App. 724, 643 P.2d 384; Commonwealth v. Lowery (1980),

276 Pa.S. 569, 419 A.2d 604; McPherson v. State (Tenn.Cr.App.

1977), 562 S.W.2d 210; Lamb v. Commonwealth (1976), 217 Va.

307, 227 S.E.2d 737; State v. Clawson (W.Va. 1980), 270

S.E.2d 659; Jordan v. State (1980), 93 Wis.2d 449, 287

In rejecting People v. Hobson, supra, we also note the

language in another Sixth Amendment case, United States v.

Henry (1980), 447 U.S. 264, 100 S.Ct. 2183, 2189, fn.14, 65

L.Ed.2d 115, wherein Mr. Chief Justice Burger stated that

bar association disciplinary rules have no constitutional

bearing. --

See also, Massiah v. United States, supra, 377 U.S.

201, 210, 84 S.Ct. 1199, 1205 (White J a r dissenting); United

States v. Thomas (10th Cir. 1973), 474 F.2d 110, 112, cert.

denied, 412 U.S. 932, 93 S.Ct. 2758, 37 L.Ed.2d 160; State

v. Richmond (1976), 114 Ariz. 186, 560 P.2d 41, 46, cert.

denied, 433 U.S. 915, 97 S.Ct. 2988, 53 L.Ed.2d 1101; State

v. Ruth, supra, 637 P.2d 415, 417; State v. Nicholson (1969),

77 Wash.2d 45, 463 P.2d 633. We agree. "The admissibility

of evidence in a court of law ... is normally determined

by reference to relevant constitutional and statutory provi-

sions, applicable court rules and pertinent common-law

doctrines. Codes of professional conduct play no part in

such decisions." People v. Green, supra, 274 N.W.2d at 454.

Careful review of the line of cases following Massiah

reveals that the United States Supreme Court has not inter-

preted the Sixth and Fourteenth Amendments to require coun-

sel's notice or agreement before an effective waiver can be

found. What Massiah, Brewer and Henry stand for is the

proposition that federal and state agents cannot deliberately

elicit incriminating evidence from an indicted defendant in

defense counsel's absence, unless an intentional relinquish-

ment of the right to counsel has been secured from defendant.

In none of these cases was defendant given an express oppor-

tunity, as was defendant here, to effectively assert or

waive his right to counsel. Unlike Norgaard who voluntarily

and knowingly participated in a formal interview conducted

by an identified criminal investigator, Massiah, Brewer and

Henry were the objects of surreptitious, subtle investigative

techniques deliberately designed to secure incriminating

evidence from unwitting defendants.

Defendant mistakenly equates the express agreement

between police and defense counsel in Brewer v. Williams,

supra, with the Roosevelt County Attorney's policy not to

interview defendants without notifying defense counsel. The

significance of the agreement in Brewer was not its breach

but the fact that the breach resulted in an impermissible

interference with defendant's right to counsel. Agent

Carrell's decision may have eroded trust between the Roose-

velt County Attorney and defense counsel but it did not

produce an unintentional abandonment of a constitutional

right. What is constitutionally guaranteed here is defen-

dant's right to assistance of counsel, not defense counsel's

right to assist defendant.

In an attempt to underscore his Sixth Amendment Brewer-

Hobson contentions, defendant's brief draws much attention

to the facts and circumstances surrounding defendant's

waiver, however, defendant does not directly challenge the

District Court's conclusion that defendant executed a

voluntary, knowing and intelligent waiver of his right to

counsel.

We nevertheless have reviewed the record and the District

Court's order and memorandum opinion. It is evident that

the District Court applied the appropriate test to determine

whether defendant made a valid waiver of his rights and

concluded that a knowing waiver was given. Finding no legal

error and substantial credible evidence to support the

District Court's findings, the District Court's conclusion

that a valid waiver was effected will not be disturbed.

State v. Plouffe (1982), Mont. , 646 P.2d 533, 39

St.Rep. 1064.

11.

Defendant contends that the District Court erred when

it refused to permit Howard Kelsey to testify to the fact

that shortly before the crime occurred, two men, other than

defendant, threatened Stanley Nees' life. Defendant would

have the declarations made by Nees admitted under one of

three exceptions to the hearsay rule: (i) the excited

utterance exception under Mont.R.Evid., Rule 803(2); (ii)

the statement against interest exception under Mont.R.Evid.,

Rule 804 (b) (3); or (iii) the catch-all "other exceptions"

category of Mont.R.Evid., Rule 804 (b)(5) .

As a general rule, the question of admissibility under

a hearsay exception is left to the sound legal discretion of

the trial court; only a case of manifest abuse of discretion

will warrant reversal on appeal. State v. Caryl (1975), 168

Mont. 414, 543 P.2d 389.

We find no abuse of discretion here. One hour had

passed between when Nees had an argument with two men and he

recounted the contents of that argument to Kelsey. Given

the time lapse and the fact that the event precipitating

excitement was a verbal argument rather than an assault with

a weapon, under State v. Swazio (1977), 173 Mont. 440, 568

P.2d 124, it was reasonable for the District Court to con-

clude that the "excited utterance exception" should not

apply

Regarding defendant's "statement against interest"

assertion, we find it to be too tenuous to warrant serious

consideration, thus, we cannot here fault the District Court

for not accepting it.

Defendant's third evidentiary argument deserves comment.

Defendant argues that the statement made by Nees to Kelsey

has comparable circumstantial guarantees of trustworthiness

as the other specified exceptions to the hearsay rule.

The only opportunity this Court has had to discuss the

"comparable trustworthiness" exception was in a dissenting

opinion to Jacques v. Montana National Guard (1982),

Mont. -

1 - P. 2d , 39 St.Rep. 1565 (Harrison, J.,

dissenting). There, Justice Harrison, referring to the

commission comments, recognized and liberally applied the

guidelines set forth in the federal counterpart to this section.

Those criteria are: (1) the statement is offered as evidence

of a material fact; (2) it is more probative on the point

for which it was offered than any other evidence; and (3)

the general purposes of the rules and the interests of

justice will be served by its admission. Rule 804(b) (5),

Fed.R. Evid.

unlike Jacques, where the excluded testimony was arguably

the lynch pin of plaintiff's case, the testimony here is but

tangentially related to the critical question of who killed

Stanley Nees, Leota Hoye and Mildred Geer. gain st an

evidentiary backdrop that included all but a confession by

defendant that he committed the homicides, it cannot be

seriously contended that interests of justice were frustrated

by the exclusion of such testimony.

111.

Defendant's final contention is that he was entitled to

an instruction on the lesser included offense of mitigated

deliberate homicide. In support of his argument, he refers

to defendant's thirteen-year history of suffering from a

mental illness and his expressed concern about the financial

problems his father was experiencing.

Defendant correctly relies on State v. Gopher (1981),

Mont. , 633 P.2d 1195, 1196, 38 St.Rep. 1521, 1523, for

the rule that "if - evidence exists in the record which

any

would permit the jury to rationally find [defendant] guilty

of a lesser offense and acquit him of a greater," a defendant

is entitled to instructions on lesser included offenses.

However, the difficulty with defendant's final contention is

not its legal bearing, but its lack of evidentiary support.

In his initial brief, defendant as much as concedes

that, standing alone, defendant's concern for his father's

financial well-being would not suffice to support an instruc-

tion on mitigated deliberate homicide. We agree. No evi-

dence was presented at trial regarding the nature or extent

of defendant's mental condition. Dr. Stratford testified at

a pretrial suppression hearing. The only other evidence of

defendant's mental history was presented to the court for

its sentencing considerations. Without that context or

other evidentiary support, it cannot be said that there was

any evidence to support a theory that defendant acted under

the influence of extreme mental or emotional stress for

which there is a reasonable explanation or excuse.

Af firmed.

W e Concur:

Chief J u s t i c e

Mr. Justice John C. Sheehy, dissenting:

I dissent.

A casual reader of the foregoing opinion might wonder

why anyone would dissent in this case. The answer is that

additional facts are needed to give a full background of

what happened here.

The killings in this case occurred on February 25,

1981. From February 26, 1981 onward, William Norgaard was

the prime suspect in this case. He was hospitalized most of

the time from February 26, 1981, until his arrest on March

4, 1981. While he was not technically "in custody" in the

period prior to March 4, 1981, he was subjected to interrogation

by the authorities, including Agent Carrell, on several

occasions.

Norgaard was interviewed, or an interview of him was

attempted five times between February 26, and March 4, the

day he was charged with the crimes. On three of those

occasions, on February 26, 1981, in Poplar, Montana, on

March 2, 1981, when he was in the hospital, and on March 4,

1981, after he had been arraigned, written waivers of his

right to have counsel present were signed by Norgaard. At

all other times, and there were many, including the two

interviews by Agent Carrell in Missoula, no written waivers

were acquired, although Agent Carrell testified that oral

Miranda warnings were given to Norgaard.

Norgaard was in the hospital, either in Wolf Point or

in Missoula, Montana, most of the time from and after

February 26, 1981.

Norgaard, to put it mildly, was a sick man. Approx-

imately 26 years old, he had suffered most of his teen and

adult life from the disease of colitis. When he arrived in

the hospital in Missoula on March 11, 1981, he was weak from

loss of blood, and had undergone a period of sustained

rectal bleeding. Dr. Stratford, a psychiatrist, testified

that when defendant came to Missoula "he needed to be seen

by [doctors] who see this kind of people every day, an

internist and a gastro-enterologist."

Colitis was not his only illness. Since the defendant

was 13 years old, he had "historically a severe mental

illness, and he has undergone years and years of treatment,

electric shock treatments, massive doses of anti-psychotics,

multiple years of therapy with a psychiatrist, and in-

patient and outpatient . . ." treatment. Dr. Stratford, who

had never seen the defendant before, inadvertently lowered

the defendant's prescription of Haldol, an anti-psychotic

drug, to one milligram per day whereas in the previous weeks

in Wolf Point, he had been given doses each day of Haldol

ranging from 6 milligrams to 22.5 milligrams.

The defendant was arraigned on March 4, 1981, in Wolf

Point. The District Court judge came to the defendant's

hospital room in order to arraign him. An attorney was not

appointed for him at that time because his family indicated

they might seek their own counsel.

On March 10, 1981, the District Court appointed Francis

McCarvel, of Glasgow, to represent the defendant. At the

time of Mr. McCarvells appointment, the defendant was in

Missoula, Montana, where he had been sent by the State for

psychiatric evaluation by Dr. Stratford. Missoula is 439

miles from Glasgow, where McCarvel resides and has his

offices, and 488 miles from Wolf Point, where the charges

were pending against the defendant.

James 14cCann is the county attorney in Roosevelt

County, of which the county seat is Wolf Point, where the

crimes were committed. Although McCarvel resides in Glasgow,

he is frequently called on to represent defendants by appoint-

ment in the judicial district including Roosevelt County.

There is a standing agreement between attorneys McCann and

McCarvel that no defendant that McCarvel is appointed to

represent will be interrogated in McCarvelts absence by law

enforcement officials. It is obvious that McCarvel saw no

reason to hurry to Missoula, nearly 500 miles away, to

interview his newly-found client until the psychiatric

evaluation of the defendant in Missoula had been completed.

On March 11, 1981, Dr. Stratford, in s is sou la, called

the special prosecutor in the Attorney General's office in

Helena, Montana, some 120 miles away to tell the special

prosecutor that the defendant should have an attorney

because he was beginning to make incriminating statements

against his own interests. The special prosecutor called

into his office in Helena Special Agent Carrell, and together

they discussed the propriety and ethics of Carrell attempting

to interview the defendant in the absence of his counsel and

before his counsel had a chance to consult with his client

and advise him of his right to protect himself in this case.

The special prosecutor left the decision up to the agent and

Carrell lost no time in proceeding immediately to Missoula to

interview Norgaard, which he did beginning that evening of

March 11, 1981.

The handwritten notes of Agent Carrell respecting his

interview of Norgaard are more revealing than anything I

could write or the majority has said with respect to the

consent of Norgaard to the interview and his purported

relinquishment of his right to counsel:

"Interviewed Norgaard

"Advised rights

It Is Attorney McCarvel had been appointed

It I

! advised charged w/

!

I I# who I was & why I was there. Nodded

-understood all -

"Nodding & shaking of head"

Also revealing from the handwritten notes of

Agent Carrell are his recorded statements to Norgaard:

"Explained to Bill preponderence of evidence

against him

"shell casings match

"possibility of fingerprints on casings"

On the morning of March 12, 1981, Agent Carrell came

again to the hospital room to interview Norgaard. Again

his notes are revealing:

"Introduced myself against [sic] as CIB Agent-

showed Bill badge - took it looked at it.

"Advised Bill of rights verbally & specifically

advised him he did not have to talk to me -

said he understood.

"Again advised Bill an attorney named Jim

McCarvel had been appointed by the court

to represent him - he understood

"Advised Bill he could have attorney present

or talk to him before talking to me - he

understood

"Advised Bill again he was charged with the

homicide of Stanley Nees, Mildred Geer,

and Leota Hoye - He understood.

"Asked again if he knew who I was

"He said 'You're a police officer?' I replied

yes. I1

And finally, as startling as it is revealing, are

the notes respecting the conclusion of the interview:

"Advised 'You're attorney, Mr. McCarvel, will

probably be getting in touch w/you.' reply

'What's the difference between an attorney and

a lawyer?' I stated 'They're the same thing.'

"Bill asked 'Will he represent me?' I replied,

'He has been appointed to represent you. Anything

he does will be what he considers to be in

your best interests. He's a good lawyer.'

"Bill asked 'When will he talk to me?' I replied

'I don't know, but it will probably be in the

next few days.'"

It is true that Dr. Stratford testified that on the

night of March 11, 1981 and on the morning of March 12,

1981, Norgaard was capable of making decisions, even though

his intelligence was in the lower normal range. What is

sadly lacking in the testimony respecting his mental ability,

however, is whether he had the requisite knowledge to make a

knowing and voluntary waiver of his right to counsel. His

question to Carrel1 as to what was the difference between an

attorney and a lawyer indicates a very rudimentary knowledge

of what he was about or perhaps his inability to grasp what

was being said to him respecting his right to have counsel

present. That is one of the reasons why I think the State

has not carried its "heavy burden" of showing that Norgaard's

waiver of right to counsel was knowing and voluntary.

I also believe that the evidence does not sustain a

knowing and voluntary waiver of Norgaard's right to have

counsel present during his interviews because he was never

given a chance to consult with his own counsel to learn

exactly how those rights operate. Here the State deliberately

beat Norgaard's counsel to the punch, in spite of the long-

standing agreement between McCarvel and the county attorney

of Roosevelt County to respect McCarvells right, and it is a

right, of fair and influence-free consultation with his

clients under his appointments by the court.

It 1s on a fact situation such as we find here that the

New York court adopted its per- rule in People v. Hobson,

- se

supra, cited in the majority opinion. Norgaardls evident

confusion as to what a lawyer is; the surreptitious trip to

?4issoula by Agent Carrell; the special prosecutor's calling

in of Agent Carrell when he learned that Norgaard was becoming

talkative; the lack of an immediate telephone call by the

state counsel to the appointed attorney; and the lack of a

written Miranda waiver from Norgaard in the two crucial

interviews in Missoula, all lead me to conclude that the

State might well stretch a point when its agents testify

that Norgaard's consent to be interrogated in the absence of

counsel was knowing and voluntary.

I would suppress the statements made by PJorgaard in the

Missoula interviews, and remand the cause for a new trial.

There is probably enough remaining evidence against him to

bring about his conviction in any event.

One's credibility is at nadir when it is more important

to win than to be honorable.

If another trial were granted, I would also instruct

the District Court to ascertain the physical and mental

health of the defendant at the time of the crime. Here

no evidence was given on that important aspect of the case.

Then certainly the jury could decide whether these killings

involved mitigated deliberate homicide under proper evidential

background. The jury in this case convicted the defendant

without any knowledge of his mental difficulties.

Justice

/

I join in the dissent of ~ u s t i c d h e e h ~ .

/

, 1