                                     No. 12259

       I N THE SUPREME COURT O THE STATE O M N A A
                              F           F OTN

                                      1973

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THE STATE O MONTANA,
           F

                              P l a i n t i f f and Respondent,



RANDALL G. BRADEN,

                              Defendant and A p p e l l a n t .



Appeal from:        D i s t r i c t Court of t h e Eighth J u d i c i a l D i s t r i c t ,
                    Honorable R. J . Nelson, Judge p r e s i d i n g .

Counsel o f Record:

    For A p p e l l a n t :

           John C . H a l l appeared, Great F a l l s , Montana
           L. D. Nybo argued, Great F a l l s , Montana

    For Respondent :

           Hon. Robert L. Woodahl, A t t o r n e y General, Helena,
            Montana
           J. C. Weingartner, A s s i s t a n t A t t o r n e y General, a r g u e d ,
            Helena, Montana
           J. Fred Bourdeau argued, County A t t o r n e y , Great F a l l s ,
            Montana
           N e i l E. Ugrin, Deputy County A t t o r n e y , Great F a l l s ,
            Montana

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                                             Submitted:           September 10, 1973

                                               Decided : wov 6       -
M. J u s t i c e John Conway Harrison d e l i v e r e d t h e Opinion o f t h e
 r
Court.

        T h i s i s an a p p e a l by defendant Randall G. Braden from a
c o n v i c t i o n of f i r s t degree murder e n t e r e d i n t h e d i s t r i c t c o u r t
of t h e e i g h t h j u d i c i a l d i s t r i c t , Hon. R . J .   Nelson, d i s t r i c t judge
presiding.         Defendant was sentenced t o l i f e imprisonment i n t h e
Montana S t a t e Prison.
        Appellant r a i s e s two i s s u e s on a p p e a l :
        I.    Whether he h a s s t a n d i n g t o c h a l l e n g e a l l e g e d v i o l a t i o n s
of t h e c o n s t i t u t i o n a l r i g h t s of a w i t n e s s who t e s t i f i e d a g a i n s t
him?
        2.    Whether t h e j u r y ' s l a c k of knowledge of t h e f i n a l d i s p o s i -
t i o n o f c a s e s pending a g a i n s t t h r e e of t h e s t a t e ' s w i t n e s s e s pre-
judiced h i s c a s e ?
        Braden had p r e v i o u s l y been c o n v i c t e d o f t h e crime of robbery
and was on p a r o l e a t t h e time of t h e murder.                     A t t r i a l one of
t h e p r i n c i p a l w i t n e s s e s was Thomas Tanner.           Tanner t e s t i f i e d h e ,
Braden and John LaFond ( t h e v i c t i m ) , were i n Tanner's c a r d r i v i n g
a i m l e s s l y about w h i l e smoking marijuana and d r i n k i n g b e e r .                 The
t r i o proceeded i n t o t h e c a n t r y i n t o an a r e a known a s t h e Spanish
Coulee a r e a and a t a random p o i n t Tanner stopped t h e c a r i n o r d e r
t o r e l i e v e himself.        According t o Tanner, Braden and Lafond began
t o q u a r r e l about whether LaFond was an informer who had i m p l i c a t e d
Braden i n a r e c e n t b u r g l a r y .      The t h r e e men proceeded through t h e
barrow p i t , crawled through a f e n c e , and a r r i v e d a t an embankment
overlooking a small c r e e k .
       A t t h a t p o i n t Braden handed Tanner h i s weapon and d i r e c t e d
Tanner t o shoot LaFond.                Tanner r e f u s e d and handed t h e weapon back
t o Braden, who thereupon s h o t LaFond t h r e e times.                          Braden then
d i r e c t e d Tanner t o h e l p him push LaFond i n t o t h e c t e e k . Braden
and Tanner then r e t u r n e d t o Great F a l l s , throwing t h e weapon i n t o
a r i v e r a l o n g t h e way.
     Another state's witness, Michael Stillings, testified Braden
told him that he, Braden, had killed LaFond, Stillings gave some
details which tended to corroborate Tanner's version of the killing.
     Marjorie Mann, another witness, testified that while she
was incarcerated in jail at the same time as Stillings and Braden,
Braden attempted to get Stillings to change his story to the
effect that Braden had told Stillings that Tanner, not Braden, had
committed the murder.
     At the time of the murder Tanner was on parole from a sentence
imposed as a result of a conviction of burglary.     Testimony re-
vealed that he was jailed for parole violation in late June or
early July and at the time of his arrest he was a suspect in the
LaFond homicide.      Cross-examination of Tanner revealed he was
held for a period of some 38 days, during which time he refused
to make a statement about the LaFond killing.     On August 13, 1971,
he made the statement implicating Braden and was released from
jail immediately thereafter.     Tanner testified that he was visited
daily during this period of time by sheriff's deputies or members
of the county attorney's staff; that he did not have an attorney
or the funds to employ one; and, that he was never taken before a
magistrate or judge during this time.
     There is nothing in the record to suggest the reasons for
~anner'sincarceration for this period of time, other than what
has been heretofore stated.      It may be, as Braden suggests, that
the authoritieswre applying coercive tactics to elicit ~anner's
statement and subsequent testimony.      It is just as likely that
Tanner was seeking to plea bargain, i.e. trade his      testimony for
the consideration of not being charged as an accomplice in the crime.
Section 95-1504(d),    R.C.M. 1947 (formerly section 94-7206, R.C.M.
1947).
     ~raden's first contention is that the incarceration of Tanner
was a violation of ~anner's constitutional rights and that he,
Braden, should have standing to challenge that violation, thus
excluding the testimony given by Tanner.     We cannot agree.   The
record discloses that Tanner's testimony was not challenged at
trial.    A well established rule in Montana is stated in Bower v.
Tebbs, 132 Mont. 146, 160, 314 P.2d 731:
     "Objections which are urged for the first time
     on appeal will not be considered by this court. 11
See also:    Teesdale v, Anschultz Drilling Co., 138 Mont. 427, 357
P,2d 4; Close v. Ruegsegger, 143 Mont. 32, 386 P.2d 739; Pickett
v. Kyger, 151 Mont. 87, 439 P.2d 57; State v. Perkins, 153 Mont,
361, 457 P.2d 465, and cases cited therein.
     However, assuming for the purposes of argument that Tanner's
constitutional rights were violated, does Braden have the requi-
site standing to challenge testimony obtained in violation of
Tanner's constitutional rights?
     In his brief Braden asserts "a constitutional right independent
of the Fourth and Fifth Amendments to be free from having testimony
admitted against him in a criminal prosecution which has been
coerced from some individual by law enforcement authorities.11
    A defendant does not have standing to challenge violations
of Fourth Amendment rights of a codefendant or third party by
law enforcement authorities.    In Alderman v. United States, 394
U.S. 165, 89 S.Ct. 961, 22 L ed 2d 176, 185, 187, Justice White,
speaking for six members of the Court, said:
      his expansive reading of the Fourth Amendment
    and of the exclusionary rule fashioned to enforce
    it is admittedly inconsistent with prior cases, and
    we reject it. The established principle is that
    suppression of the product of a Fourth Amendment
    violation can be successfully urged only by those
    whose rights were violated by the search itself,
    not by those who are aggrieved solely by the intro-
    duction of damaging evidence. Coconspirators and
    codefendants have been accorded no special standing


     11
     But we are not convinced that the additional
    benefits of extending the exclusionary rule to
    other defendants would justify further encroachment
    upon the public interest in prosecuting those ac-
    cused of crime and having them acquitted or con-
    victed on the basis of all the evidence which exposes
    the truth."
     The Ninth Circuit Court of Appeals follows the same rule with
regard to both the Fourth and Fifth Amendments.   Dearinger v. Rhay,
421 F.2d 1086; Byrd v. Comstock, 430 F.2d 937, cert.den. 401 U.S.
945, 91 S.Ct. 960, 28 L ed 2d 228; United States v. Pruitt, 464
F.2d 494; United States v. Howell, 470 F.2d 1064.
     Justice White's reason for rejecting the expansion of the
exclusionary rule as regards the Fourth Amendment is sound and
the same rationale is applicable to ~raden's contention.    Such
a rule also comports with precedent in Montana.     State v. Geddes,
22 Mont. 68, 55 P. 919; State v. Dess, 154 Mont. 231, 462 P.2d
186, habeas corpus den. 312 F.Supp. 1325, aff'd, 450 F.2d 939;
State v. Armstrong, 149 Mont. 470, 428 P.2d 611. Traditionally,
the testimony of a coerced witness has been admitted on the
ground that the coercion goes to the weight and credibility of
the testimony, not to its exclusion.    3 Wigmore, Evidence $815
(Chadbourn rev. 1970), pp. 289, 290, and cases cited in footnote
3, p. 290.
     For these reasons we reject ~raden'scontention and hold
that ~anner's testimony, even on the assumption that it was
coerced, does not violate ~raden'sconstitutional rights.
     Here, we note two recent cases,not cited to us by either
party, that appear to be in conflict.    In People v. Bradford,
10 Mich.App. 696, 160 N.W.2d 373, cert. den. 394 U.S. 1022, 89 S.
Ct. 1638, 23 L ed 2d 48, habeas corpus granted, 354 F.Supp. 1331,
aff'd, 476 F.2d 66, the Sixth Circuit Court of Appeals approved
the granting of a writ of habeas corpus to an inmate convicted
principally on the testimony of a brutally tortured witness. By
way of contrast, in People v. Portelli, 15 N.Y.2d 235, 257 N.Y.S.
2d 931, 205 N.E.2d 857, remittitur amended, 16 N.Y.2d 537, 260
N.Y,S.2d   649, 208 N.E.2d 458, cert. den. 382 U.S. 1009, 86 S.Ct.
612, 15 L ed 2d 524, the New York Court of Appeals on essentially
the same facts held that the testimony of the witness was admis-
sible, going to the weight and credibility of the testimony only,
and that no constitutional rights of defendant had been violated,
     In the instant case we do not find the coercion set forth
in the above cited two cases and base our holding here on the
authority of Alderman.
     ~raden's second contention is that the three principal
witnesses against him were all in jail for various crimes and
that in return for favorable disposition of these charges the
witnesses agreed to testify against him, Braden.    He alleges
the jury should have been made aware of the final disposition
of the cases against these witnesses and since it was not, it
could not properly weigh the credibility and veracity of the
witnesses, hence Braden was prejudiced by the jury's lack of
knowledge of these matters,
     el ell ant's   contention is without merit because, as pointed
out by the state, the jury was made aware of the facts that
Tanner had twice been convicted of burglary, was in jail for
parole violation, and was a drug user.    The jury knew that Stil-
lings had plead guilty to second degree murder and was in jail
awaiting sentence, that he had committed burglary, and that he
also was a drug user.     It knew that Marjorie Mann had been con-
victed of grand larceny and was awaiting execution of her ten
year sentence and that the county attorney had instituted pro-
ceedings to take custody of her child.
     The record shows that these facts were disclosed to the jury
primarily through the offices of a vigorous cross-examination
conducted by appellant's counsel.    Appellant's contention that
had the jury known of the final disposition of the cases involving
these witnesses it might have come to a different conclusion is
untenable.   Such knowledge is not relevant to the case the jury
is called upon to decide.     The jury had before it sufficient in-
formation to judge the credibility of the witnesses and it is
apparent the jury chose to believe them.
     The judgment of the distri
//   Chief ~ u s t i c e




     Justices.
