                                       No. 14305

                 IN   THE SUPREME C W O THE STA!l?E O b % N l l N A
                                  O    F             F

                                           1979



STATE O blmTZw4,
       F

                        Plaintiff and Respondent,

          -vs-

GUY JOHN ALLIES,

                        Defendant and Appellant.



Appeal froan:    D i s t r i c t Court of the Thirteenth Judicial D i s t r i c t ,
                 Honorable Nat Allen, Judge presiding.

Counsel of Record:

     For Appellant:

            Richter and Lerner, Billings, Plbntana
            Frank Richter argued and Alan J. LRmer argued, Billings,
             Plbntana


    For Respondent:

           Hon. Mike Greely, Attorney General, Helena, Plbntana
           Mike bkCarter argued, Assistant Attorney General, and
            Chris Tweeten argued, Assistant Attorney General, Helena,
            mntana
           Harold F. H n e argued, County Attorney, Billings, Mntana
                      a sr



                                               Suhnitted:     A p r i l 30, 1979



Filed :



                                                  Clerk
Mr.   J u s t i c e John Conway H a r r i s o n d e l i v e r e d t h e Opinion of
t h e Court.


        Defendant, Guy John A l l i e s , w a s c h a r g e d w i t h f o u r
c o u n t s o f d e l i b e r a t e homicide and t r i e d by a j u r y i n t h e

~ h i r t e e n t h u d i c i a l D i s t r i c t C o u r t f o r Yellowstone County.
                   J

A v e r d i c t of g u i l t y on f o u r c o u n t s o f t h e l e s s e r i n c l u d e d

o f f e n s e s of m i t i g a t e d d e l i b e r a t e homicide was r e t u r n e d , and

judgment of c o n v i c t i o n w a s e n t e r e d .          Defendant a p p e a l s .

        The c r i m e s u n d e r l y i n g t h e c a s e c a m e t o t h e a t t e n t i o n o f

t h e B i l l i n g s p o l i c e when, s h o r t l y b e f o r e noon on November

11, 1976, t h e d e p a r t m e n t r e c e i v e d a c a l l on i t s 911 emer-

gency l i n e .       Over t h e phone, t h e p o l i c e d i s p a t c h e r h e a r d
screaming, a g u n s h o t , and t h e sound o f someone moving

around.        The c a l l was t r a c e d and l e d p o l i c e o f f i c e r s t o a

B i l l i n g s r e s i d e n c e where t h e y found t h e b o d i e s of Tom T i l -

lotson; h i s wife, T e r r i ; M r s . T i l l o t s o n ' s s i x year o l d

d a u g h t e r , S h e r r i ; and, t h e c o u p l e ' s two y e a r o l d s o n ,

Montana.        Each had been s h o t once i n t h e head w i t h a s m a l l

c a l i b e r weapon.       Mrs.     T i l l o t s o n , who was found c l u t c h i n g t h e

phone, had a l s o been s h o t i n t h e jaw.

        L t . C h a r l e s Hensley of t h e B i l l i n g s p o l i c e f o r c e i m -

m e d i a t e l y took c h a r g e o f t h e i n v e s t i g a t i o n and c o n t i n u e d t o

a c t i n t h a t c a p a c i t y u n t i l t h e d e f e n d a n t was a r r e s t e d .
A s s i s t i n g him, and f i g u r i n g p r o m i n e n t l y i n t h e c a s e , were

d e t e c t i v e s Gordon H i r i s c h i , George B e l l and J a c k Trimarco.
I n i t i a l l y , t h e i n v e s t i g a t i v e team had l i t t l e f a c t u a l i n f o r -
mation.        The a d u l t v i c t i m s w e r e i n v o l v e d i n a r e a d r u g t r a f -
f i c k i n g and l a r g e q u a n t i t i e s o f d r u g s , p r i m a r i l y m a r i j u a n a

and c o c a i n e , were found a t t h e s c e n e o f t h e c r i m e .                 In
a d d i t i o n , a l i g h t b l u e van had been parked i n t h e n e i g h b o r -

hood a t t h e t i m e t h e crimes were committed, and a n uniden-
tified man had been seen walking down the alley in back of
the Tillotson house.

         here was uncontradicted testimony that Lt. Hensley
said there would be no drug-related arrests from any infor-
mation received in connection with the homicide investiga-
tion.     County Attorney Harold Hanser stated that no blanket
immunity was given, and several officers said the leniency
was limited to drug dealings with the victims.
        During the investigation it was learned that the Til-
lotsons dealt in drugs with someone named John who drove a
blue van.     Defendant's name was first mentioned to police on
November 17.    He was identified by Tom Tillotson's business
partner as a person whose connection with the Tillotsons was
drug related.
     On November 22, defendant voluntarily went to the
Billings police station because he heard Lt. Hensley wanted
to talk to him about the homicides.    He was accompanied by
Kathy Terry, a woman with whom he lived.     Officer Hirischi
met with defendant Allies and testified that, on this date,
he did not view defendant as a suspect in the investigation.
The conversation concerned defendant's relationship with the
Tillotsons.    He was not given his Miranda rights but was
told that he would not be arrested on drug charges which
could be brought as a result of his cooperation in the
homicide investigation. According to Officer Hirischi, the
immunity covered only transactions with the Tillotsons.
     On November 23, defendant voluntarily returned to the
police station, again accompanied by Kathy Terry.    They were
interviewed by Officers Hirischi and Bell.    Defendant was

asked about his activities on November 10 and 11 and about a
gun he owned.    The officers noted that Allies had trouble
answering questions, could not keep names or dates straight
and was possibly on drugs.   Arrangements were made for
Allies to take a polygraph examination.
      he polygraph test took place on November 30 and was
conducted by police Lt. Jere Wamsley.   The results were not
admitted in evidence, but Wamsley's report was available to
the investigators.   The test lasted approximately three
hours, and defendant's participation was voluntary.    Defen-
dant said he had been drinking prior to the test and was on
some type of medication.   Nevertheless, his reactions during
the first part of the examination were normal.   When con-
fronted with a diagram of the Tillotson house, defendant
became "squirrely," and by the end of the interview he was
"talking to the walls" and "completely out of it."
     Between 10:OO and 10:30 a.m. on December 9, Officers
Bell and Trimarco confronted defendant near his house and
asked him to accompany them to the police station.    Defen-
dant said he had not eaten breakfast but would be down once
he had.   He voluntarily presented himself at the station
around 11:OO a.m. and was taken to a 12' x 12' room on the
fourth floor.   Here he was isolated and questioned for
approximately four hours by Officers Bell and Trimarco.     He
had not had anything to eat but was under the influence of a
large quantity of drugs--namely, methamphetamine, triavil
and morphine.   Before the session began, Bell read defendant
his Miranda rights off a card and defendant signed a waiver
printed on the back of the card.   Officer Trimarco testified

that defendant understood his rights and did not, at this or
any other time during the session, ask for an attorney.
     The officers attempted to employ a "Mutt and Jeff," or

a "mean cop--nice cop" method of interrogation during the
f i r s t p a r t of t h e session.             One o f t h e o f f i c e r s t e s t i f i e d

t h a t he g o t a " l i t t l e e m o t i o n a l " d u r i n g t h e i n t e r v i e w .

A l l i e s d e s c r i b e d t h e o f f i c e r s a s g e n e r a l l y rough, h a r s h and

obnoxious.           Both o f f i c e r s e v e n t u a l l y t o l d d e f e n d a n t t h a t i f
he needed p s y c h i a t r i c h e l p , it w a s a v a i l a b l e .         H e was a l s o

t o l d something was wrong w i t h t h e November 30 p o l y g r a p h t e s t

and t h a t t h e o f f i c e r s knew he w a s t h e m u r d e r e r .           H e was

a c c u s e d o f t h e c r i m e s on s e v e r a l o c c a s i o n s , and t h e ques-

t i o n i n g c o n c e n t r a t e d on how he c o u l d l i v e w i t h h i m s e l f a f t e r

committing such b r u t a l a c t s .              I n employing t h i s " g u i l t

assumption" method o f i n t e r r o g a t i o n , b o t h o f f i c e r s f r e e l y

concede t h e y l i e d t o d e f e n d a n t a b o u t what t h e y knew o f h i s

c o n n e c t i o n t o t h e homicides.           They t o l d him he had been

p o s i t i v e l y i d e n t i f i e d and p l a c e d a t t h e s c e n e of t h e c r i m e .

        A t f i r s t d e f e n d a n t ' s s t o r y was c o n s i s t e n t w i t h what he

had e a r l i e r t o l d D e t e c t i v e H i r i s c h i .   H e s a i d he was working

on h i s van a t a r e n t e d g a r a g e when t h e murders o c c u r r e d and

had r e t u r n e d home a b o u t 1:00 o r 2:00 p.m.                 on November 11.

A f t e r a b o u t twenty m i n u t e s , Trimarco a d v i s e d d e f e n d a n t t h a t

t h e y d i d n o t b e l i e v e h i s s t o r y , t h a t he was a s u s p e c t i n t h e

h o m i c i d e s , t h a t t h e y knew h e was t h e k i l l e r , and t h a t he had

p o s i t i v e l y been p l a c e d a t t h e s c e n e of t h e c r i m e .

        Defendant t h e n changed h i s s t o r y .                H e s t a t e d t h a t he

had " b l a c k e d o u t " a s he was changing o i l and "came t o " a t a

g r o c e r y s t o r e n e a r t h e T i l l o t s o n house.        H e s a i d he c o u l d

n o t remember where he w a s a t t h e t i m e t h e c r i m e s w e r e com-
mitted,        During t h e q u e s t i o n i n g , d e f e n d a n t w a s shown a
p o r t r a i t o f t h e T i l l o t s o n c h i l d r e n a s w e l l a s a p i c t u r e of
Mrs.    T i l l o t s o n a s s h e was found on November 11.                     ~efendant

became u p s e t and v e r y d e p r e s s e d a t t h e i d e a h e c o u l d have
committed such a n a c t .               H e began t o s o b and t h r e a t e n e d t o
commit s u i c i d e .      H e t o l d t h e o f f i c e r s o f h i s heavy d r u g u s e ;

t h a t he b e l i v e d t h e "Space B r o t h e r s " had l a n d e d i n Wyoming

and were e x e r t i n g a n e v i l i n f l u e n c e o v e r him;         t h a t h e be-

l i e v e d i n w i t c h c r a f t ; a n d , t h a t h i s e x - w i f e was a w i t c h who

had p l a c e d a n e v i l c u r s e on him.

        D e f e n d a n t s a y s he was s u f f e r i n g from d r u g w i t h d r a w a l

and a t a b o u t 3:00 p.m.           a s k e d f o r f o o d t o r e l i e v e h i s discom-

fort.      The o f f i c e r s d o n o t r e c a l l s u c h a r e q u e s t .      Allies

s a i d h e t h o u g h t h e needed p s y c h i a t r i c h e l p , and t h e o f f i c e r s

e x p r e s s e d t h e o p i n i o n t h a t h i s problem w a s m e d i c a l o r m e n t a l

r a t h e r than criminal.           ~ o s p i t a l i z a t i o n t Warm S p r i n g s w a s
                                                                  a

mentioned.

        During t h e i n t e r r o g a t i o n , t h e o f f i c e r s t o l d d e f e n d a n t

t h e y were n o t " t o o c o n c e r n e d w i t h " d r u g s ; r a t h e r , t h e y were

seeking information o r evidence p e r t i n e n t t o t h e T i l l o t s o n

homicides.         They s a i d t h e y would l i k e t o s e a r c h h i s house

and van f o r homicide e v i d e n c e , and d e f e n d a n t e x e c u t e d t h e

following consent t o search:

        " I , Guy John A l l i e s ,
        G I V E Det. B e l l and T r i m a r c o WHO HAVE IDENTIFIED
        THEMSELVES AS POLICE OFFICER(S) F R THE CITY OO            F
        BILLINGS, YELLOWSTONE COUNTY, DO HEREBY CONSENT
        TO HAVE THEM SEARCH MY HOME OR PROPERTY LOCATED
        AT 6 2 8 No. 1 4 1965 GMC Van Blue AND I HAVE ALSO
        BEENDVISEDTHATIDO               NOT         HAVE
                                                     TO GIVE THESE
        OFFICERS PERMISSION TO SEARCH MY HOME AND PROP-
        ERTY.     I AM G I V I N G THIS CONSENT WITHOUT ANY
        THREATS OR PRESSURES O ANY TYPE USED AGAINST ME.
                                       F

                                         "SIGNED: S/ Guy J o h n A l l i e s

        "WITNESS:         S/ G.     Bell      ADDRESS        B i l l i n g s P o l i c e Dept.

        "WITNESS:         S/ John Trimarco               ADDRESS B.P.D."

        B e l l and T r i m a r c o l e f t d e f e n d a n t ' s p r e s e n c e a b o u t 3:45

p.m.    and w e r e engaged i n s e a r c h i n g t h e house and van from

a b o u t 4:00    t o 7:30 p.m.          Meanwhile, d e f e n d a n t was l e f t i n

t h e f o u r t h f l o o r room.      Because o f h i s s u i c i d e t h r e a t s , h e
was "watched" by Officers Ward and Millard.    Allies testi-

fied that during this time he asked Ward when he would be
allowed to see an attorney and that he was told to wait
until Bell and Trimarco returned.    Ward denies that this
occurred.
     During the afternoon, both Lt. Hensley and Harold
Hanser, the Yellowstone County Attorney, had been posted on
the progress of the interrogation. At approximately 4:15
p.m., Hanser contacted Dr. Bryce Hughett, a psychiatrist
employed by the State.   Hanser informed him there was a
suspect in the Tillotson homicides who could not remember
where he had been when the crimes were committed.    He also
said the suspect had indicated a desire to see a psychia-
trist and asked Hughett to come down.
     On arriving at the station, Hughett was further briefed
on the situation by Hanser and Lt. Hensley.    Hughett, who
felt he was acting as a fact finder or assistant to the
investigator and as a doctor, talked with defendant from
approximately 5:00 to 6:00 p.m.    Hensley was present for the
first 20 or 30 minutes of the interview.   Allies was not
given his Miranda rights at this time; nor was he informed
there was no doctor-patient privilege cloaking the conver-
sation.   Hughett stated that Allies was "calm--spoke quietly
and willingly.   He knew Lt. Hensley was an investigative
officer and didn't object to him remaining."   The major
topics of discussion were defendant's past, particularly his

drug abuse problem, and the Tillotson homicides.    ~uringthe
interview Hughett suggested that sodium amytal, a hypnotic
drug, might allow Allies to remember where he had been
during his November 11 blackout.
        By the time the interview concluded, Bell and Trimarco

had returned from searching defendant's house and van.        They
had found drugs at his house and a number of - 2 2 caliber
cartridges in the van.     Bell, Trimarco and Hensley testified

that on the evening of December 9, they did not have enough
to hold defendant in connection with the homicides.     Instead,
he was charged with the possession of dangerous drugs and
placed in the Yellowstone County jail.     Hensley read Allies
his ~irandarights upon arresting him and left instructions

with the jailer to allow defendant to contact him at any
time.     Hensley stated the drug arrest was "part of" or a
"tool" in the homicide investigation.
        On Friday, December 10, Allies was taken to justice
court for a preliminary hearing on the drug charge.    He was
informed of the charge against him, and his rights were
slowly read to him by Justice of the Peace Pedro Hernandez.
Defendant testified that he fully understood his rights at
this time, and it is undisputed that he asked to see an
attorney.    He was informed that an attorney can be appointed
only in District Court and was told that one would be ap-
pointed for him upon his appearance in that court.    This is
the last time the drug charge was mentioned.    It was dropped
after defendant was charged with the Tillotson homicides.
     Later the same day, defendant was taken to ~anser's
office for an interview.    He was not given his rights and
had not yet seen an attorney.    Hanser discussed the "truth
serum" (sodium amytal) interview with him and told defendant
he could rest and relax at the hospital.    ~efendantagreed
to try the serum.
     On Saturday, December 11, defendant was taken from the
jail and placed in the Intensive Psychiatric Care Room of
 t h e p s y c h i a t r i c ward a t Deaconess H o s p i t a l .          Dr.    Hughett

t a l k e d w i t h d e f e n d a n t a t v a r i o u s t i m e s d u r i n g t h e day.

~ l l i e s e s t i f i e d t h a t around 4:00 p.m.
          t                                                       he a s k e d Hughett when
h e would see an a t t o r n e y and t h a t H u g h e t t t o l d him t o w a i t
u n t i l Hanser a r r i v e d .       Hughett d e n i e d t h a t A l l i e s made s u c h

an inquiry.           Later t h a t e v e n i n g , a f t e r h e a r i n g s t r a n g e

n o i s e s from d e f e n d a n t ' s room, a g u a r d e n t e r e d and found

d e f e n d a n t crouched on t h e bed, s o b b i n g and s a y i n g , "The

D e v i l wants me t o h u r t you."               The g u a r d c o n t r o l l e d t h e

s i t u a t i o n by h a v i n g A l l i e s p r a y .

        Very soon a f t e r t h e above i n c i d e n t , D r .            Hughett, L t .

Hensley and Harold Hanser a r r i v e d .                     The serum was i n j e c t e d ,

t h e l i g h t s w e r e dimmed, and t h e i n t e r r o g a t i o n began.

Without b e i n g a d v i s e d o f h i s r i g h t s , d e f e n d a n t was a s k e d

q u e s t i o n s by Hughett and Hensley and made s e v e r a l i n c r i m i -

nating statements.                H e p l a c e d h i m s e l f a t t h e s c e n e of t h e

c r i m e b u t s a i d a n o t h e r p e r s o n committed t h e murders.               While

under t h e d r u g , h e w a s t o l d h i s s t o r y was i n c o n s i s t e n t .

        The n e x t day A l l i e s w a s awakened around 10:OO a.m.                           He

s a y s h e was s l e e p y and groggy.                  Expert testimony i n d i c a t e d

t h a t t h e r e s i d u a l e f f e c t s o f t h e "serum" would be l i k e a

m i l d hangover.          Dr.   Hughett spoke w i t h d e f e n d a n t f o r 4 5

m i n u t e s a b o u t t h e serum e x p e r i e n c e and t h e T i l l o t s o n murders.

A l l i e s s t i l l d e n i e d b e i n g t h e murderer and c l a i m e d a n o t h e r

man d i d i t .      H u g h e t t t o l d him t h e "serum" s t o r y w a s i n c o n -

s i s t e n t and c o n t r a d i c t o r y ; t h a t nobody would b e l i e v e him;

t h a t t o c l e a r h i m s e l f , he would have t o h e l p l o c a t e t h e
o t h e r man and p r o v e h i s e x i s t e n c e ; and t h a t he h i m s e l f c o u l d

b e t h e o t h e r man.

        About 1 5 m i n u t e s a f t e r t h e above c o n v e r s a t i o n , L t .

Hensley r e a d d e f e n d a n t h i s r i g h t s and o b t a i n e d a p u r p o r t e d
waiver.     Allies then confessed to committing the homicides.
He also said he had buried the murder weapon and described
its location.     Later the same day, he directed the police to
the weapon, a .22 caliber derringer.      After the pistol was
unearthed, a thumbprint found thereon was positively iden-
tified as defendant's.      FBI ballistics tests confirmed that
the pistol was the murder weapon.
     Allies was charged with four counts of deliberate
homicide on December 13 and was appointed an attorney with
whom he consulted on the afternoon of that date.      On Decem-
ber 23, defense counsel entered into a stipulation dis-
missing the drug charge.      Defendant moved to suppress the
confession and the evidence to which it led.     After five
days of testimony the trial court found and concluded that
the confession was given voluntarily and therefore it, along
with its fruits, was admissible.
     The case proceeded to jury trial in Yellowstone County
with the Honorable Nat Allen presiding.     The jury returned
verdicts of guilty on four counts of mitigated deliberate
homicide.    Defendant was sentenced to the maximum punishment
possible: 40 years in the state prison on each count to run

consecutively without possibility of parole.
     From the denial of his various motions and the judgment
of conviction, defendant appeals and raises the following
issues:
     1.     SUPPRESSION.   Whether the District Court properly
denied defendant's motion to suppress the confession and its
fruits.
     2.     PHOTOGRAPHIC EVIDENCE.   Whether the ~istrictCourt
erred in admitting certain photographic evidence.
         3.     SENTENCE PROCEDURE.                 Whether d e f e n d a n t ' s s e n t e n c e

w a s p r o p e r l y imposed.

         4.     SPEEDY TRIAL.            Whether d e f e n d a n t w a s d e n i e d h i s

r i g h t t o a speedy t r i a l .

         5.     M N A DISEASE/DEFECT.
                 E T L                                  Whether t h e s t a t u t o r y

scheme r e l a t i n g t o m e n t a l d i s e a s e o r d e f e c t i s u n c o n s t i t u -

tional.

         6.    VENUE.        Whether t h e D i s t r i c t C o u r t e r r e d i n n o t

g r a n t i n g d e f e n d a n t ' s m o t i o n f o r a change o f venue.

         7.    BALLISTICS EXPERT.                Whether t h e D i s t r i c t C o u r t

e r r e d i n r e f u s i n g t o appoint a b a l l i s t i c s e x p e r t f o r defen-

dant.

        8.     HUGHETT'S TESTIMONY.                  Whether t h e D i s t r i c t C o u r t

e r r e d i n allowing D r .         Hughett t o t e s t i f y regarding defen-

d a n t ' s mental capacity.

        9.     TRIAL J U D G E PREJUDICE.               Whether t h e t r i a l judge

c o n d u c t e d h i m s e l f s o a s t o convey p r e j u d i c e t o t h e j u r y .

        10.      CUMULATIVE ERROR.               Whether t h e r e i s c u m u l a t i v e

error requiring reversal.



SUPPRESSION

        I n s p i t e of t h e f a c t t h a t they are o u t of c o u r t s t a t e -

ments s e e m i n g l y s u b j e c t t o e x c l u s i o n a s h e a r s a y , c o n f e s s i o n s

are generally admissible a g a i n s t criminal defendants.

McCormick, E v i d e n c e , 2d. Ed.,              9145 a t 311.          A s recognized i n

Miranda v . A r i z o n a ( 1 9 6 6 ) , 384 U.S.             436, 86 S.Ct.           1602, 1 6

L.Ed.2d       694, i n - c u s t o d y i n t e r r o g a t i o n s and c o n f e s s i o n s

r e s u l t i n g t h e r e f r o m a r e n o t , i n and o f t h e m s e l v e s , b a r r e d ;

t h e y " r e m a i n a p r o p e r e l e m e n t i n law e n f o r c e m e n t , " 384 U.S.

a t 478, 86 S . C t .        a t 1630, 16 L.Ed.2d              a t 726, and "may p l a y

a n i m p o r t a n t r o l e i n some c o n v i c t i o n s . '      384 U.S.       a t 481, 86

S.Ct.     a t 1631, 16 L.Ed.2d              a t 727.
        However, t h e p r o c u r e m e n t o f a c o n f e s s i o n must comport

w i t h t h e g u a r a n t e e t h a t a n i n d i v i d u a l w i l l n o t be c o m p e l l e d

t o i n c r i m i n a t e himself      (U.S. C o n s t . ,    Amend. V;       1972 Mont.

Const.,       Art.    11, 5 2 5 ) , and t h a t h e may n o t b e c o n v i c t e d o f a

c r i m e w i t h o u t d u e p r o c e s s o f law (U.S. C o n s t . , Amend. XIV;

1972 Mont. C o n s t . , A r t .        11, 5 1 7 ) .

        W e n o t e d above t h a t c o n f e s s i o n s are g e n e r a l l y admis-

sible.        However,      " [ t l h e t r u e t e s t of a d m i s s i b i l i t y i s t h a t
t h e c o n f e s s i o n i s made f r e e l y , v o l u n t a r i l y and w i t h o u t

compulsion o f any s o r t . "             Wilson v . U n i t e d S t a t e s ( 1 8 9 6 ) ,

162 U.S.       613, 623, 1 6 S.Ct.            895, 899, 40 L.ed.              1090, 1096.
               E'rqq
See a l s o             v . U n i t e d S t a t e s ( 1 8 9 7 ) , 168 U.S.       532, 1 8

S.Ct.     1 8 3 , 42 L.ed.       568; S t a t e v . Lenon ( 1 9 7 7 ) ,                Mont.

           570 P.2d 901, 34 St.Rep.                  1153; S t a t e v . Lucero

( 1 9 6 8 ) , 1 5 1 Mont.     531, 445 P.2d 731.               H i s t o r i c a l l y , involun-

t a r y c o n f e s s i o n s w e r e excluded because t h e y w e r e f e l t t o b e

untrustworthy.            3 Wigmore on E v i d e n c e , Chadbourn R e v i s i o n ,

5822.      While t h i s r a t i o n a l e may r e t a i n some v i t a l i t y , i t i s

no l o n g e r t h e s o l e r e a s o n f o r t h e e x c l u s i o n o f i n v o l u n t a r y

confessions.           Spano v . N e w York ( 1 9 5 9 ) , 360 U.S.               315, 320,

79 S.Ct.       1202, 1205-06,          3 L.Ed.2d         1265, 1270.          The u s e o f a n

i n v o l u n t a r y c o n f e s s i o n , whether it be t r u e o r f a l s e , v i t i -

a t e s a c r i m i n a l c o n v i c t i o n on t h e b a s i s t h a t i t v i o l a t e s t h e

guarantee against self-incrimination,                          Bram v . U n i t e d S t a t e s

( 1 8 9 7 ) , 168 U.S.      532, 542, 1 8 S.Ct.              1 8 3 , 42 L.ed.      568,

Malloy v . Hogan ( 1 9 6 4 ) , 378 U.S.                 1, 84 S . C t .   1489, 1 2 L.Ed.2d

653, a s w e l l a s t h e r i g h t t o due p r o c e s s o f l a w , B l a c k b u r n

v. Alabama ( 1 9 6 0 ) , 361 U.S.             199, 205, 80 S . C t .          274, 279, 4

L.Ed.2d       242, 247.

        A s s t a t e d by t h e U n i t e d S t a t e s Supreme C o u r t :          "The

F o u r t e e n t h Amendment f o r b i d s f u n d a m e n t a l u n f a i r n e s s i n t h e
u s e of evidence, whether t r u e o r f a l s e . "                     Blackburn v .

Alabama, 361 U.S.              a t 206, 80 S.Ct.             a t 280, 4 L.Ed.2d            a t 248.

         ". . .       I n a l i n e o f d e c i s i o n s b e g i n n i n g i n 1936
        w i t h Brown v . M i s s i s s i p p i ( 1 9 3 6 ) , 297 U.S. 278,
        56 S.Ct. 461, 80 L.Ed. 682, and i n c l u d i n g c a s e s
        t o o numerous t o b e a r c i t a t i o n , [ t h e C o u r t ] h a s
        established t h e p r i n c i p l e t h a t t h e Fourteenth
        Amendment i s g r i e v o u s l y b r e a c h e d when a n i n -
        v o l u n t a r y c o n f e s s i o n i s o b t a i n e d by a s t a t e
        o f f i c e r and i n t r o d u c e d i n t o e v i d e n c e i n a crim-
        i n a l p r o s e c u t i o n which c u l m i n a t e s i n a c o n v i c -
        tion."          B l a c k b u r n v . Alabama, 361 U.S. a t 205,
        80 S . C t . a t 279, 4 L.Ed.2d a t 247.

         The p o l i c y u n d e r l y i n g t h e c o n s t i t u t i o n a l d o c t r i n e h a s

been l u c i d l y s t a t e d a s f o l l o w s :

        "The a b h o r r e n c e o f s o c i e t y t o t h e u s e of i n -
        v o l u n t a r y c o n f e s s i o n s d o e s n o t t u r n a l o n e on
        t h e i r inherefit untrustworthiness.                       It also
        t u r n s on t h e deep-rooted f e e l i n g t h a t t h e
        p o l i c e must obey t h e l a w w h i l e e n f o r c i n g t h e
        l a w ; t h a t i n t h e end l i f e and l i b e r t y c a n be
        a s much endangered from i l l e g a l methods used
        t o c o n v i c t t h o s e t h o u g h t t o b e c r i m i n a l s as
        from t h e a c t u a l c r i m i n a l s t h e m s e l v e s . "     Spano
        v . N e w York, 360 U.S. a t 320-321, 79 S.Ct. a t
        1205-1206, 3 L.Ed.2d a t 1270.

        ". . .        convictions following t h e admission i n t o
        e v i d e n c e o f c o n f e s s i o n s which a r e i n v o l u n t a r y ,
        i . e . , t h e p r o d u c t of c o e r c i o n , e i t h e r p h y s i c a l
        o r psychological, cannot stand.                          This i s so n o t
        b e c a u s e s u c h c o n f e s s i o n s a r e u n l i k e l y t o be
        t r u e b u t b e c a u s e t h e methods u s e d t o e x t r a c t
        them o f f e n d a n u n d e r l y i n g p r i n c i p l e i n t h e en-
        f o r c e m e n t o f o u r c r i m i n a l law: t h a t o u r s i s a n
        a c c u s a t o r i a l and n o t a n i n q u i s i t o r i a l system--
        a s y s t e m i n which t h e S t a t e must e s t a b l i s h
        g u i l t by e v i d e n c e i n d e p e n d e n t l y and f r e e l y se-
        c u r e d and may n o t by c o e r c i o n p r o v e i t s c h a r g e s
        a g a i n s t a n a c c u s e d o u t of h i s own mouth."
        Rogers v . Richmond, 365 U.S. a t 540-41, 8 1 S.Ct.
        a t 739, 5 L.Ed.2d a t 766.

        I n r e v i e w i n g s u p p r e s s i o n p r o c e e d i n g s , w e a r e governed

by t h e f o l l o w i n g w e l l s e t t l e d p r i n c i p l e s :

        "When a m o t i o n t o s u p p r e s s i s p r e s e n t e d t o a
        t r i a l c o u r t , i t s a n a l y s i s of t h e evidence pre-
        s e n t e d a t t h e p r e t r i a l h e a r i n g must f o c u s on
        whether impermissible procedures w e r e followed
        by law e n f o r c e m e n t a u t h o r i t i e s .    The burden o f
        p r o o f o f v o l u n t a r i n e s s i s upon t h e S t a t e , and
        i t i s r e q u i r e d t o p r o v e v o l u n t a r i n e s s by a p r e -
        p o n d e r a n c e o f t h e e v i d e n c e b u t n o t beyond a
        reasonable doubt.                 [Citations omitted. 1" S t a t e
This general statement is not supported by substantial
credible evidence.
        At the outset, we note that defendant was advised of

his ~irandarights before he confessed.      We recognize this
to be only a factor in determining if, in the "totality of
the circumstances," the confession was voluntary; it is not,
in and of itself, dispositive of the question.     Miranda v.
~rizona,384 U.S. at 469-70, 86 S.Ct. at 1625, 16 L.Ed.2d at
721.     Proceeding from this proposition is a corollary that
advising a suspect of his constitutional rights is not
license to coerce a confession from him; neither does it
legitimize any coercion which precedes a waiver of those
rights.    More than mere lip service must be given to Miranda
and the principles it embodies.     State v. Grimestad, supra.
        The pressures used on defendant to induce the confes-
sion were psychological rather than physical.    This type of
coercion nonetheless renders a confession involuntary.
Blackburn v. Alabama, 361 U.S. at 206, 80 S.Ct. at 279, 4
L.Ed.2d at 247; see also Townsend v. Sain (1963), 372 U.S.
293, 307, 83 S.Ct, 745, 754, 9 L.Ed.2d 770, 782.
       Whether or not defendant was "in custody" during the
December 9 interrogation by Officers Bell and Trimarco is
not pertinent to a determination of whether his ultimate
confession was voluntary and thus admissible.    The circum-
stances of that session are, however, relevant as coercive
factors which figure in determining if, in the totality of
circumstances, the confession is voluntary.    Many of the
factors have been judicially condemned as coercive in na-
ture.    See generally, Miranda, 384 U.S. at 445-58, 86 S.Ct.
at 1612-19, 16 L.Ed.2d at 707-14.    These factors include
keeping the suspect incommunicado in a small room; isolating
t h e s u s p e c t i n a h o s t i l e p o l i c e environment; t h e mean cop--
n i c e cop i n t e r r o g a t i o n t e c h n i q u e ; and, t h e g u i l t a s s u m p t i o n

t e c h n i q u e of i n t e r r o g a t i o n .   The f a c t o r s do n o t , o f them-

s e l v e s , r e n d e r t h e c o n f e s s i o n i n v o l u n t a r y ; t h e y must m e r e l y

be c o n s i d e r e d i n t h e t o t a l i t y of c i r c u m s t a n c e s .      The e f f e c t

o f most of t h e above v a r i a b l e s and i n t e r r o g a t i o n t e c h n i q u e s

on t h e f i n a l c a l c u l u s i s d i m i n i s h e d by t h e t i m e l a g between

t h e i n i t i a l q u e s t i o n i n g on December 9 and t h e c o n f e s s i o n .

Also e n t e r i n g i n t o our a n a l y s i s i s t h e f a c t t h a t , f o r t h e

most p a r t , t h e a b o v e - d e s c r i b e d c i r c u m s t a n c e s and methods

were n o t r e p e a t e d a f t e r December 9.

        The sodium a m y t a l i n t e r v i e w w a s t h e c o n t r o l l i n g d e v i c e

used i n o b t a i n i n g t h e c o n f e s s i o n .      A s w e w i l l d i s c u s s below,

t h i s s e s s i o n o c c u r r e d i n d i r e c t c o n t r a v e n t i o n of d e f e n d a n t ' s

r i g h t t o c o u n s e l and i s i n a d m i s s i b l e a t t r i a l .        I t i s an

i m p o r t a n t f a c t o r i n t h e " t o t a l i t y o f c i r c u m s t a n c e s " which

must be c o n s i d e r e d .        See g e n e r a l l y , Townsend v . S a i n , s u p r a ;

S t a t e v . Hudson (Mo. 1 9 2 6 ) , 289 S.W.                  920.

        Two v a r i a b l e s weigh h e a v i l y i n o u r c o n s i d e r a t i o n .          The

f i r s t , l y i n g t o d e f e n d a n t a b o u t how much i s known a b o u t h i s

i n v o l v e m e n t i n t h e c r i m e s , i s p a r t i c u l a r l y r e p u l s i v e t o and

t o t a l l y i n c o m p a t i b l e w i t h t h e c o n c e p t s o f due p r o c e s s em-

bedded i n t h e f e d e r a l and s t a t e c o n s t i t u t i o n s .           The e f f e c t

i s p a r t i c u l a r l y c o e r c i v e and i n t h i s c a s e i s n o t l e s s e n e d by

t h e t i m e l a g between t h e i n i t i a l i n t e r r o g a t i o n and t h e

confession.           The l i e , a l t h o u g h n o t r e p e a t e d , was r e i n f o r c e d

by D r . Hughett, t h e " i n v e s t i g a t o r - p s y c h i a t r i s t " who con-

versed w i t h defendant approximately f i f t e e n minutes before

he confessed.             H e t o l d d e f e n d a n t t h a t h i s s t o r y was i n -

c o n s i s t e n t , t h a t nobody would b e l i e v e him, t h a t he would
have t o produce t h e r e a l k i l l e r t o c l e a r h i m s e l f , and t h a t

he could i n f a c t be t h e k i l l e r .
         The second f a c t o r t o which w e g i v e w e i g h t i s t h e

 " s u b t l e " p s y c h o l o g i c a l p r e s s u r e which was e x e r t e d on A l l i e s

from t h e t i m e h e f i r s t t a l k e d w i t h B e l l and Trimarco u n t i l

t h e t i m e he confessed.              The p r e s s u r e o f which we speak l i e s

i n l e a d i n g d e f e n d a n t t o b e l i e v e h i s problem w a s "medical o r
psychiatric r a t h e r than criminal."                      I t began on December 9

when B e l l and Trimarco gave d e f e n d a n t t h e i r o p i n i o n a b o u t

h i s s i t u a t i o n and t o l d him he c o u l d g e t h e l p , p o s s i b l y a t

Warm Springs.            The p r e s s u r e w a s k e p t up, and t h e i d e a t h a t

h i s problem was p s y c h o l o g i c a l was r e i n f o r c e d l a t e r on t h e

9 t h i n t h e i n i t i a l c o n t a c t w i t h D r . Hughett.

        The n e x t morning t h e c o u n t y a t t o r n e y a g a i n mentioned

sodium a m y t a l and t o l d d e f e n d a n t h e c o u l d go t o t h e h o s p i t a l

and r e s t .     Again, emphasis w a s p l a c e d on t h e m e d i c a l r a t h e r

t h a n t h e c r i m i n a l a s p e c t s o f h i s problems.           H e w a s taken t o

t h e h o s p i t a l on t h e morning of t h e l l t h and p l a c e d i n t h e

i n t e n s i v e c a r e room of t h e p s y c h i a t r i c ward.          He underwent a

b a t t e r y of m e d i c a l t e s t s and t a l k e d w i t h D r .      Hughett f o r

a b o u t a n hour and a h a l f a b o u t h i s m e d i c a l h i s t o r y .           On t h e

n i g h t o f t h e l l t h , H u g h e t t a d m i n i s t e r e d sodium a m y t a l t o

d e f e n d a n t i n t h e p r e s e n c e of L t . Hensley and t h e c o u n t y

attorney.         The n e x t morning, Hughett a g a i n spoke w i t h d e f e n -

d a n t , r e l a t i n g t o him t h e s p e c i f i c s n o t e d above.          Scarcely

f i f t e e n m i n u t e s l a t e r , A l l i e s c o n f e s s e d t o L t . Hensley, who,

d u r i n g t h e c o n f e s s i o n , k e p t up t h e p s y c h o l o g i c a l p r e s s u r e by

t e l l i n g A l l i e s h e knew he needed h e l p .

        The p i v o t a l i s s u e p r e s e n t e d h e r e i s whether t h e r e s u l t s

o f t h e sodium a m y t a l ( p o p u l a r l y known as t r u t h serum) t e s t

a r e a d m i s s i b l e where t h e r e c i p i e n t was w i t h o u t b e n e f i t o r

a d v i c e o f c o u n s e l and had n o t r e c e i v e d a ~ i r a n d a
                                                                          warning

immediately p r e c e d i n g          t h e a d m i n i s t r a t i o n o f t h e serum.      We
f i n d they a r e not.             The overwhelming w e i g h t o f a u t h o r i t y i n
t h i s c o u n t r y s t i l l r e g a r d s t r u t h serum t e s t s a s i n a d m i s s i b l e

inasmuch a s t h e y have n o t a t t a i n e d t h e s c i e n t i f i c a c c e p t a n c e

a s r e l i a b l e and a c c u r a t e means of a s c e r t a i n i n g t r u t h o r
deception.           See S t a t e v . Linn ( 1 9 6 9 ) , 93 I d a h o 430, 462 P.2d

729, 732.

         Again w e n o t e t h a t d e f e n d a n t w a s r e a d h i s r i g h t s b e f o r e

c o n f e s s i n g and a t o t h e r t i m e s d u r i n g t h e p e r i o d i n i s s u e .

The a c t of a d v i s i n g a p e r s o n of h i s r i g h t s i s n o t a l i c e n s e

t o c o e r c e a c o n f e s s i o n ; n o r d o e s i t v i t i a t e any c o e r c i o n o r

p r e s s u r e s which p r e c e d e t h e c o n f e s s i o n .       W e find that,            in

considering t h e t o t a l i t y of t h e circumstances, t h e S t a t e d i d

n o t , by a preponderance o f t h e e v i d e n c e , show t h a t d e f e n d a n t

v o l u n t a r i l y and knowingly waived h i s c o n s t i t u t i o n a l r i g h t

a g a i n s t s e l f - i n c r i m i n a t i o n o r t h a t he v o l u n t a r i l y c o n f e s s e d .

Even a f t e r g i v i n g d e f e r e n c e t o t h e t r i a l c o u r t ' s d e t e r m i n a -

t i o n , w e a r e c o n s t r a i n e d by t h e f a c t s of t h i s c a s e t o h o l d

t h a t a f i n d i n g c o n t r a r y t o o u r s i s n o t s u p p o r t e d by sub-

s t a n t i a l c r e d i b l e evidence.          The t r i a l c o u r t e r r e d i n n o t

g r a n t i n g t h e motion t o s u p p r e s s t h e c o n f e s s i o n .

        To summarize, d e f e n d a n t ' s c o n f e s s i o n was i n a d m i s s i b l e

on t h e b a s i s t h a t i t was n o t v o l u n t a r y .             In addition, the

c o n f e s s i o n a l s o grows o u t of a d e n i a l of d e f e n d a n t ' s r i g h t

t o counsel.

        Defendant c o n t e n d s t h a t under t h e " f r u i t of t h e p o i -

sonous t r e e " c o n c e p t o f Wong Sun v. United S t a t e s ( 1 9 6 3 ) ,

371 U . S .     471, 83 S.Ct.            407, 9 L.Ed.2d            441,     t h e evidence

o b t a i n e d a s a r e s u l t o f h i s c o n f e s s i o n s h o u l d be s u p p r e s s e d ,

W e agree.

        Evidence g a i n e d a s a r e s u l t of a c o n s t i t u t i o n a l v i o l a -

t i o n c a n n o t be used t o uncover o t h e r p h y s i c a l e v i d e n c e .
Orozco v. T e x a s ( 1 9 6 9 ) , 394 U.S.                 324, 89 S . C t .    1 0 9 5 , 22

L.Ed.2d       311, d i s c u s s e d i n Nedrud and O b e r t o , The Supreme
                                                                            -
C o u r t - - C r i m i n a l Law, Vol. l B I S1.3-13;
          and t h e                                                            Wong Sun v .

U n i t e d S t a t e s , s u p r a ; Gladden v . H o l l a n d ( 9 t h C i r .       1966),

366 F.2d        580; Wakeman v . S t a t e (Fla.App.                 1 9 7 0 ) , 237 So.2d

61; Dover v . S t a t e ( M i s s .             1 9 6 9 ) , 227 So.2d 296; S t a t e v .

L e k a s ( 1 9 6 8 ) , 201 Kan.           579, 442 P.2d 11; P e o p l e v . O'Leary
                                / 62.3-
( 1 9 6 7 ) , 45 I 1 1 . 2 d    H,257 N.E.2d 1 1 2 ; P e o p l e v . D i t s o n

( 1 9 6 2 ) , 20 C a l . R p t r .    1 6 5 , 369 P.2d       714, p e t .   cert. dismissed

( 1 9 6 3 ) , 372 U.S.         933, 8 3 S . C t .        885, 9 L.Ed.2d        769; McCormick,

Evidence,        2d Ed.,        S157 a t 344.             See Michigan v . Tucker
                               433
( 1 9 7 4 ) , 417 U.S.         43f%       94 S . C t .   2357, 4 1 L.Ed.2d       1 8 2 ; Har-

r i s o n v . U n i t e d S t a t e s ( 1 9 6 8 ) , 392 U.S.        219,    88 S . C t .    2008,

20 L.Ed.2d         1 0 4 7 ; U n i t e d S t a t e s v . Massey (M.D.          Fla. 1977),



        A s s t a r e d by t h e U n i t e d S t a t e s Supreme C o u r t :

        "The e s s e n c e o f a p r o v i s i o n f o r b i d d i n g t h e a c q u i -
        s i t i o n o f e v i d e n c e i n a c e r t a i n way i s n o t m e r e l y
        t h a t e v i d e n c e s o a c q u i r e d may n o t b e u s e d b e f o r e
        t h e c o u r t , b u t t h a t i t may n o t b e u s e d a t a l l . "
        S i l v e r t h o r n e Lumber Co. v . U n i t e d S t a t e s ( 1 9 2 0 ) ,
        251 U.S. 385, 392, 40 S.Ct. 1 8 2 , 1 8 3 , M b L.ed.
        319, 321.                                                     L'J
The f r u i t o f t h e p o i s o n o u s t r e e d o c t r i n e i s m o s t o f t e n re-

f e r r e d t o i n c o n j u n c t i o n w i t h s e a r c h e s and s e i z u r e s .    Most

c o u r t s considering t h e r u l e a s it r e l a t e s t o inadmissible

c o n f e s s i o n s h a v e a n a l y z e d i t a l o n g t h e same l i n e a s t h e

general r u l e ; i.e.,              i f t h e physical evidence i s a f r u i t of

t h e c o n s t i t u t i o n a l v i o l a t i o n , i t must be excluded.               See

S t a t e v . Lekas,        s u p r a ; see g e n e r a l l y , McCormick, E v i d e n c e ,

2d Ed.,      S157 a t 344.                I n People v. Ditson, supra, t h e C a l i -

f o r n i a Supreme C o u r t u n d e r t o o k a n e x t e n s i v e d i s c u s s i o n o f

t h e r u l e and concluded:
     "It appears to us to follow that if it offends
     'the community's sense of fair play and decencyr
     to convict a defendant by evidence extorted
     from him in the form of an involuntary confes-
     sion, that sense of fair play and decency is
     no less offended when a defendant is convicted
     by real evidence which the police have dis-
     covered essentially    virtue of having extorted
     such a confession. If the oneamounts to a
     --
     denial of a fair trial and due process of law,
     so must the other. If the one is the inadmis-
     sible product of 'police procedure which vio-
     lates the basic notions of our accusatorial mode
     of prosecuting crime' (Watts v. Indiana (1949)r
     supra, 338 U.S. 49, 55, 69 S.Ct. 1327, 93 L.Ed.
     1801), so must the other be. It does not appear
     that we can draw a constitutionally valid dis-
     tinction between the two." Ditson, 20 Cal.Rptr.
     at 178, 369 P.2d at 727.
     We abide in the result reached by the above-cited
authorities and hold the fruits of the confession inadmis-
sible.    The fruits in this case include the .22 derringer
identified as the murder weapon, the bullets and pouch found
with the weapon, a copy of the firearm registration defen-
dant filled out when he bought the gun, photographs of the
gun, the fingerprint found thereon, and the testimony
matching the ballistics of the gun to the ballistics of the
weapon with which the crimes were committed.
     There are three general exceptions to exclusion of the
fruit of the poisonous tree.    (1) If the evidence is attenu-
ated from the constitutional violation so as to remove its
primary taint, it will be admissible.    Wong - 371 U.S. at
                                              Sun,
488, 83 S.Ct. at 417, 9 L.Ed.2d at 455.    (2) If the evidence
is obtained from a source independent of the defendant's
confession, it will be admissible.   Silverthorne Lumber Co.
v. United States, 251 U.S. at 392, 40 S.Ct. at 183, 64 L.Ed.
at 321.    (3) If it is inevitable that the evidence would

have been discovered apart from the defendant's confession,
it is admissible.   Government of Virgin Islands v. Gereau
(3rd Cir. 1974), 502 F.2d 914, 927-28.    None of these excep-
tions apply to the instant facts.
         The d e s c r i p t i o n of t h e p i s t o l ' s l o c a t i o n i n t h e c o n f e s -

 s i o n and t h e t e m p o r a l p r o x i m i t y of t h e c o n f e s s i o n t o t h e

d i s c o v e r y of t h e gun p r e c l u d e s any a s s e r t i o n t h a t o b t a i n i n g

t h e f r u i t i s a t t e n u a t e d from t h e c o n s t i t u t i o n a l v i o l a t i o n .

The f a c t t h a t A l l i e s h i m s e l f d i r e c t e d t h e p o l i c e t o t h e

p i s t o l d i s p o s e s of any argument t o t h e e f f e c t t h a t i t w a s

a c t u a l l y o b t a i n e d from a n i n d e p e n d e n t s o u r c e .   Kathy T e r r y ,

t h e o n l y p e r s o n who had knowledge o f t h e concealment ( a s

opposed t o t h e d i s c o v e r y ) o f t h e p i s t o l t e s t i f i e d :

         "Q.    R i g h t now, c a n you r e c a l l t h a t you a c t u a l l y
         saw t h e d e r r i n g e r on t h e day you went t o bury
         t h e guns? A.          I did.     They w e r e b o t h i n t h e
         same box.

        "Q.       Did you see i n t o t h e box? A.            When he was
        g e t t i n g i t r e a d y , t h e y were b o t h i n t h e same
        box. And I walked i n t o t h e k i t c h e n .            And when
        I r e t u r n e d t h e box had a l r e a d y been c l o s e d and
        t a p e d . And t h a t i s t h e l a s t t i m e I saw them.
        W e b u r i e d them a f t e r t h a t . "

She went on t o d e s c r i b e how t h e box had been hidden b e n e a t h

a rock.        On December 1 2 , b e f o r e A l l i e s c o n f e s s e d , s h e l e d

p o l i c e o f f i c e r s t o t h e l o c a t i o n where t h e box w a s c o n c e a l e d .

The o n l y gun found t h e r e i n w a s a 9 mrn p i s t o l .                Kathy T e r r y ' s

e v i d e n c e up t o t h a t p o i n t i s a d m i s s i b l e ; however, t h e murder

weapon was u n e a r t h e d a t d e f e n d a n t ' s d i r e c t i o n n e a r l y h a l f a

m i l e away.        A s d i s c u s s e d above, t h e d i s c o v e r y of t h e d e r -

r i n g e r i s a f r u i t of t h e e x c l u d e d c o n f e s s i o n and inadmis-

sible.

         I n applying t h e t h i r d exception, t h e i n e v i t a b l e d i s -

c o v e r y r u l e , c o u r t s must n o t l o s e s i g h t o f t h e p r o t e c t i o n s

g u a r a n t e e d by t h e C o n s t i t u t i o n .   To a v o i d d e c i d i n g c a s e s on

a j u d g e ' s s p e c u l a t i o n a s t o what t h e p o l i c e " m i g h t , " ''could"

o r " s h o u l d " have done, i t must a p p e a r t h a t t h e e v i d e n c e

would have been o b t a i n e d even i n t h e a b s e n c e of i n f o r m a t i o n

received i n v i o l a t i o n of a defendant's r i g h t s .                    I t must
appear t h a t , a s c e r t a i n l y a s n i g h t follows day, t h e evidence

would have been d i s c o v e r e d w i t h o u t r e f e r e n c e t o t h e v i o l a -

t i o n of t h e d e f e n d a n t ' s r i g h t s .   The e v i d e n c e i n t h i s case

c o u l d n o t c o n c e i v a b l y s u p p o r t such a f i n d i n g .

        Due t o t h e i l l e g a l i t y o f t h e method used i n o b t a i n i n g

d e f e n d a n t ' s c o n f e s s i o n , w e have no c h o i c e b u t t o r e v e r s e and

remand t h e c a s e t o t h e D i s t r i c t C o u r t f o r a new t r i a l .              In

d e c i d i n g t h i s c a s e , w e have n o t c r e a t e d new law; w e have

merely a p p l i e d e x i s t i n g l e g a l and c o n s t i t u t i o n a l p r i n c i p l e s .

        The o p i n i o n of t h i s C o u r t i s n o t e n t e r e d l i g h t l y .        The
crimes f o r which d e f e n d a n t w a s c o n v i c t e d were s e n s e l e s s and

b r u t a l a n d , as i n B r e w e r v . Williams ( 1 9 7 7 ) , 430 U . S .               387,



        ". . .        c a l l [ e d l f o r s w i f t and e n e r g e t i c a c t i o n
        by t h e p o l i c e t o apprehend t h e p e r p e t r a t o r and
        g a t h e r e v i d e n c e w i t h which h e c o u l d be c o n v i c t e d .
        No m i s s i o n o f law e n f o r c e m e n t o f f i c i a l s i s more
        important.              Yet, ' [dl i s i n t e r e s t e d z e a l f o r t h e
        p u b l i c good d o e s n o t a s s u r e e i t h e r wisdom o r
        r i g h t i n t h e methods it p u r s u e s . '            Haley v. Ohio
         [ 1 9 4 8 ] , 332 U . S . 596, 605, 68 S.Ct. 302, 306,
        92 L.Ed. 224 ( F r a n k f u r t e r , J . , c o n c u r r i n g i n
        judgment).         ..        The p r e s s u r e s on s t a t e e x e c u t i v e
        and j u d i c i a l o f f i c e r s c h a r g e d w i t h t h e adminis-
        t r a t i o n of t h e c r i m i n a l law a r e g r e a t , e s p e c i a l l y
        when t h e c r i m e i s murder            . . .       But i t i s p r e -
        c i s e l y t h e p r e d i c t a b i l i t y of those pressures
        t h a t makes i m p e r a t i v e a r e s o l u t e l o y a l t y t o t h e
        guarantees t h a t t h e Constitution extends t o us
        all."

        I n view o f o u r h o l d i n g t h a t t h i s case must be r e t u r n e d

t o t h e D i s t r i c t Court f o r r e t r i a l , we d i r e c t our a t t e n t i o n

t o d e f e n d a n t ' s second i s s u e and f i n d i t m e r i t o r i o u s :



PHOTOGRAPHIC EVIDENCE

        Defendant c o n t e n d s t h a t t h e p h o t o g r a p h s o f t h e v i c t i m s

i n t r o d u c e d a t t r i a l w e r e gruesome, inflammatory and unduly

p r e j u d i c i a l and t h a t , on t h i s ground a l o n e , he i s e n t i t l e d

t o a new t r i a l .       W e agree.
         II I   .. .[photographs] a r e admissible f o r t h e pur-
         p o s e o f e x p l a i n i n g and a p p l y i n g t h e e v i d e n c e
         and a s s i s t i n g t h e c o u r t and j u r y i n u n d e r s t a n d i n g
         t h e case. '

        "Photographs t h a t are c a l c u l a t e d t o a r o u s e t h e
        s y m p a t h i e s of t h e j u r y a r e p r o p e r l y e x c l u d e d ,
        p a r t i c u l a r l y i f they a r e not s u b s t a n t i a l l y
        n e c e s s a r y o r i n s t r u c t i v e t o show m a t e r i a l
        f a c t s o r condition."               S t a t e v. B i s c h e r t (1957),
        1 3 1 Mont. 152, 1 5 9 , 308 P.2d 969, 973.

See a l s o Rule 403, Mont.R.Evid.

        The p i c t u r e s a d m i t t e d h e r e are e x t r e m e l y gruesome and

q u i t e c a p a b l e of i n f l a m i n g t h e minds of t h e j u r y and engen-

dering prejudice.                They w e r e a d m i t t e d f o r u s e by t h e S t a t e ' s

p a t h o l o g i s t i n i d e n t i f y i n g t h e victims, demonstrating t h e

p o s i t i o n of t h e b o d i e s , and e s t a b l i s h i n g t h e c a u s e of d e a t h .

Because t h i s c o u l d have been and w a s e s t a b l i s h e d w i t h o u t t h e

u s e of t h e p h o t o g r a p h s , t h e i r p r o b a t i v e v a l u e i s low.           The

t r i a l c o u r t e r r e d i n allowing t h e i r introduction.

        W e have reviewed a l l o t h e r i s s u e s r a i s e d and f i n d them

without m e r i t .

        A s p a r t of o u r d i s p o s i t i o n o f t h i s c a s e , we n o t e i t i s

n o t a c i v i l a c t i o n b r o u g h t under C h a p t e r 21, T i t l e 53,

Montana Code Annotated, s e e k i n g t o have a n i n d i v i d u a l com-

m i t t e d t o a mental i n s t i t u t i o n .        Rather, it i s a criminal

p r o s e c u t i o n f o r c a p i t a l o f f e n s e s i n which c o n c e r n w i t h t h e

d e f e n d a n t ' s m e n t a l s t a t e was l i m i t e d t o d e t e r m i n i n g h i s

f i t n e s s t o s t a n d t r i a l and h i s l e g a l a b i l i t y t o commit a

crime.          These i s s u e s f i g u r e d p r o m i n e n t l y i n t h e c a s e and, i f

t h i s w e r e a p r o c e e d i n g f o r c i v i l commitment, t h e r e would be

s u b s t a n t i a l c r e d i b l e e v i d e n c e upon which t o b a s e a f i n d i n g

t h a t d e f e n d a n t i s a d a n g e r o u s i n d i v i d u a l who c a n n o t s a f e l y

e x i s t i n o u r law a b i d i n g s o c i e t y .      This being a criminal

a p p e a l i n which d e f e n d a n t ' s danger t o s o c i e t y was n o t r e a c h e d

under C h a p t e r 21, T i t l e 53, w e d o n o t r u l e on t h a t i s s u e .
A s a n a p p e l l a t e c o u r t , w e do n o t undertake t o r e s o l v e t h e

question.

        I n i s s u i n g o u r d e c i s i o n we r e c o g n i z e a b a s i c d u t y n o t

t o u n n e c e s s a r i l y endanger t h e s a f e t y o f t h e people of t h i s

state.       I n case t h e S t a t e d e c i d e s f u r t h e r p r o s e c u t i o n o f t h e

case i s n o t p o s s i b l e , w e f i n d t h a t t h e e v i d e n c e p r e s e n t e d i n

t h i s c a s e p o i n t s t o d e f e n d a n t ' s d a n g e r t o s o c i e t y and f e e l

t h a t a n "emergency s i t u a t i o n " would e x i s t u n d e r s e c t i o n 53-

21-129,      MCA.       Cf. Smallwood v . Warden, Maryland P e n i t e n t i a r y

(4th C i r .    1 9 6 6 ) , 3 6 7 F.2d 945.          The s t a t u t e p r o v i d e s :

        " (1) When a n emergency s i t u a t i o n e x i s t s , a p e a c e
        o f f i c e r may t a k e a n y p e r s o n who a p p e a r s t o b e
        s e r i o u s l y m e n t a l l y ill and a s a r e s u l t o f seri-
        ous mental i l l n e s s t o be a danger t o o t h e r s o r
        t o himself i n t o custody o n l y f o r s u f f i c i e n t t i m e
        t o c o n t a c t a p r o f e s s i o n a l p e r s o n f o r emergency
        evaluation.            I f possible, a p r o f e s s i o n a l person
        should be c a l l e d p r i o r t o t a k i n g t h e person i n t o
        custody     .
        " ( 2 ) I f t h e professional person agrees t h a t t h e
        person detained appears t o be s e r i o u s l y mentally
        ill and t h a t a n emergency s i t u a t i o n e x i s t s , t h e n
        t h e p e r s o n may be d e t a i n e d and t r e a t e d u n t i l t h e
        n e x t r e g u l a r b u s i n e s s day. A t t h a t t i m e , t h e
        p r o f e s s i o n a l p e r s o n s h a l l release t h e d e t a i n e d
        person o r f i l e h i s f i n d i n g s with t h e county a t -
        t o r n e y who, i f h e d e t e r m i n e s p r o b a b l e c a u s e t o
        e x i s t , s h a l l f i l e t h e p e t i t i o n provided f o r i n
        53-21-121 t h r o u g h 53-21-126 i n t h e c o u n t y of t h e
        respondent's residence.                      I n e i t h e r c a s e , t h e pro-
        f e s s i o n a l person s h a l l f i l e a r e p o r t with t h e
        court explaining h i s actions."

        I n t h i s instance, A l l i e s i s c u r r e n t l y i n custody.

T h e r e f o r e , i n t h e e v e n t t h e S t a t e d e c l i n e s t o p r o s e c u t e on

remand, w e o r d e r t h a t h i s d e t a i n m e n t b e c o n t i n u e d f o r a t i m e

p e r i o d s u f f i c i e n t f o r a n emergency e v a l u a t i o n u n d e r t h e

above-quoted         statute.         From t h i s p o i n t , t h e s t a t u t e s a r e

c l e a r on t h e procedure t o be followed.                     S e c t i o n s 53-21-121

e t s e q . , MCA; Comment, 3 8 M0nt.L.R.                   307 ( 1 9 7 7 ) .
       The D i s t r i c t C o u r t i s r e v e r s e d , and t h e case i s remanded

f o r a new t r i a l .      D e f e n d a n t i s t o be d e t a i n e d p u r s u a n t t o

t h e l a s t p a r t of t h i s opinion.




W e concur:




       Chief J u s t i c e




t r i c t J u d g e , siciyf i n p l a c e
o f M r . J u s t i c e ohn C. Sheehy
Mr. Chief Justice Haswell, concurring in part and dissenting
in part:
        I concur in the reversal of defendant's conviction for
the reasons stated in the majority opinion.     I dissent from grant-
ing a new trial.
        The essence of our criminal law is that a man may not
be convicted of committing a crime unless it is proved beyond a
reasonable doubt that he did so.     In re Winship (1970), 397 U.S.
358, 90 S.Ct. 1068, 25 L Ed 2d 368; State v. McWilliams (1936),
102 Mont. 313, 57 P.2d 788.   Upon reviewing the sufficiency of
the evidence to sustain a conviction, we do not pass on the credi-
bility of the witnesses or the weight to be given their testimony
as such matters are the sole province of the jury.     State v, De-
George (1977), 173 Mont. 35, 566 P.2d 59, 60, 34 St.Rep. 541, 543;
State v. Bouldin (1969), 153 Mont. 276, 284, 456 P.2d 830, 834-835.
Rather, we view the evidence in the light most favorable to the
state and affirm the verdict of the jury if there is substantial
credible evidence to support it.     Glasser v. United Stctes (1942),
315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L Ed 680, 704; State v.
Pascgo (1977), 173 Mont. 121, 566 P.2d 802, 805, 34 St-Rep. 657,
660.   If a case is reversed solely for insufficiency of the evi-
dence and then remanded for retrial, the defendant is unconstitu-
tionally subjected to double jeopardy.     U. S. Const., Amend. XIV;
Burks v. United States (1978), 437 U.S. 1, 98 Sect. 2141, 57 L Ed 2d
1; 1972 Mont. Const., Art. 11, 525.
        In this case, the conviction is reversed because a portion
of the evidence used at trial was obtained in violation of the
defendant's constitutional rights.    The United States Supreme Court
has not yet answered the question of whether a defendant is sub-
jected to double jeopardy upon retrial when the reviewing court
has decided the "legally competent evidence adduced at the first
trial was insufficient to prove guilt."    Greene v. Massey (1978),
437 U.S. 19, 26, 98 S.Ct. 2151, 2155, 57 L Ed 2d 15, 22, n. 9.
        The Montana Supreme Court however, has decided the
question and held that a new trial cannot be granted when admis-
sible evidence from the first trial will not support a conviction.
State v. Johnson (1978),       Mont.      , 580 P.2d 1387, 1390, 35
St.Rep. 952, 956; State v.             (1968), 151 Mont. 558, 568, 445
P.2d 565, 570.   This is a sound rule and one from which the Court
should not deviate.   By ruling otherwise, the prosecution is af-
forded another opportunity to supply evidence which it failed to
muster at the first proceeding.    This is precisely what the double
jeopardy clause forbids.     Barks v. United States, supra, 437 U.S.
at 11, 98 S.Ct. at 2147, 57 L Ed 2d at 9; see generally Note,
10 Tex. Tech. L.R. 184 (1978).
        The legally admissible evidence at defendant's trial shoved
the following:   That defendant owned and sometimes carried a small
caliber pistol; that his girlfriend did not see the gun on the
day the homicides were committed; that defendant was not at home
at the time they were committed; that defendant may have buried
the pistol; and that -22 caliber bullets were found in his van.
In addition, defendant knew the homicide victims and had been at
their home hours before their deaths.      A man, not positively iden-

tified, had been seen walking down an alley near the scene of the
crimes at about the time the murders were committed.       Finally a
van, similar to, but said positively not to be defendant's by the
only person who saw it, was seen near the victims' home and was
driven away shortly after the homicides were perpetrated.       This
is not sufficient to support a conviction and a new trial cannot
be granted.   State v. Johnson,        Plont.   ,   580 P.2d at 1390,
35 St-Rep. at 956.
        I agree with the majority that the psychiatric testimony
shows defendant to be a very disturbed individual and that his
release would present a danger to society as well as to him-
self.   I would therefore order him detained under Chapter 21,
Title 53, MCA and direct proceedings to be commenced under that
chapter to procure defendant's cornmit:n..ent to a mental institu-
tion.


                               .................................
                                          Chief Justice


Mr. Justice Daniel J. Shea will file a separate opinion later.
          SEPARATE CONCURRING OPINION AND


                        DISSENT   '
                  -----------------
              MR. JUSTICE DANIEL J. SHEA
                  -----------------


STATE OF MONTANA,

              Plaintiff and Respondent,
                                                 'JAN1 01333
     VS   .                                 ykomnd     ,$ -'
                                                             l'f
                                                                   'ltn*!f
GUY JOHN ALLIES,                            GLC-,, \ OF C: -, -.c CCUHT
                                              -n     -   7.
                                               5TATT C ,--:v? =":*
                                                               .;"A
              Defendant and Appellant.




                 January 10, 1980
                 ----------------
Mr. Justice Daniel J. Shea concurring in part and dissenting
in part.

     I concur in the majority opinion that defendant's
conviction must be reversed.   I agree, on the other hand,
with the dissent of Chief Justice Haswell that principles of
double jeopardy, as applied to the factual circumstances of
this case, require that the case be dismissed rather than
simply granting a new trial.
    Although I agree with the main opinion that unconstitutional
methods were used to extract the confession from defendant, I
would not focus, as the main opinion has, on the administering
of sodium amytal (truth serum) as being the pivotal or crucial
issue.   The main opinion has failed to focus on two crucial
issues surrounding the circumstances of defendant's confession.
The first is the effect of the arrest of the defendant on the
drug charges and the legal consequences which flow from using
this arrest as the "tool" by which to launch a more intensive
homicide interrogation.   The second is the effect of the denial
of defendant's constitutional right to counsel after he was
arrested, appeared before the justice court on the drug charges,
and requested that an attorney be appointed for him.   Legal
consequences surely flow from the continued interrogation of
the defendant after he was in custody and had requested an
attorney.
     In addition to the above, since the majority has chosen
to grant a new trial to defendant, there are other issues raised
by the defendant which should have been discussed and decided
by the majority, and the issue of speedy trial, in particular,
should have been discussed and decided.
     Insofar as the double jeopardy issue is concerned (new
trial versus dismissal), Chief Justice Haswell has cited two
cases decided by this Court which hold that if the admissible

evidence will not support a conviction, a new trial cannot be
                               -29-
granted.   State v. Johnson (1978),           .
                                          Mon t      , 580 P.2d
1387, 1390, 35 St.Rep. 952, 956; State v.     an&   (1968), 151
Mont. 558, 568, 445 P.2d 565, 570.     If the majority thought
that these cases should be overruled, then the majority should
have overruled them.    It adds nothing to the law of this State
to simply pass over these cases as though they did not exist.
Casting the illegally admitted evidence aside, it is our duty
to determine if there still exists in the case, admissible
evidence which would permit the prosecution to submit the case
to the jury for its decision.   I agree with Chief Justice Haswell
that there was insufficient evidence, thus, under double jeopardy
principles, the case must be dismissed.
"OTHER ISSUES RAISED BY THE DEFENDANT
     The defendant raised several other issues in addition to
those directly relating to the confession.    Briefly stated,
those issues are:   (I) that defendant was denied a speedy trial;
(2) that photographic evidence of the victims' bodies unduly
inflamed the passions of the jury; (3) that Dr. Hughett should
not have been permitted to testify to defendant's mental con-
dition; (4) that a ballistics expert should have been appointed
for the defendant as he had requested; (5) that a change of
venue should have been granted; (6) that trial judge prejudice
necessitates the granting of a new trial; (7) that, if nothing
else, the cumulative error doctrine requires the granting of a
new trial; and, (8) that the mental disease or defect statutes
are unconstitutional.
     Before briefly discussing these issues, I emphasize that
the position taken by both Chief Justice Haswell and myself--
that is, that double jeopardy principles require a dismissal--
would not require the Court to discuss any of the remaining issues
for the case would be over.   But that situation is drastically
changed where, as the majority has done here, a new trial has
                                -30-
      As to the remaining issues raised by the defendant,
the majority opinion passes them off with this cavalier
statement:     "We have reviewed all other issues raised and
find them without merit."     If any statement is likely to get
us in trouble with the Federal Courts at a later time, one
such as this surely will.    The issues, and particularly the
speedy trial issue, cannot be disposed of that easily.
      The issues of change of venue and cumulative error are
clearly moot.    The issue of trial judge prejudice can also
be determined as moot unless the majority should want to
address the issue because the same trial judge who presided
over the first trial may also preside over the second trial.
Perhaps the majority should consider whether the facts of the
trial record demonstrate that he should not sit again upon
the retrial.
      The issue of constitutionality of the mental disease
or defect states can be treated as being moot, although this
Court may again be faced with this same issue if defendant
is convicted again and those statutes are again involved at
the trial of the case.
      Because a new trial has been ordered, the majority opinion
should have addressed the question of whether or not Dr.
Hughett should have been permitted to testify to defendant's
mental condition.    The statement of this issue in the opinion
leaves the reader in a muddle as to what the issue actually
is.   Impliedly, one can argue that this Court ruled against
the defendant, but if one does not know precisely what the
issue is, how can the trial courts and lawyers ever know what
has been decided.
      It is also possible that ballistics may be an issue again
at the retrial.     Since defendant was denied the right to have
a ballistics expert appointed to aid in his defense, perhaps
                              -32-
been granted.   I will not address the merits of these issues,
but simply point out some defects in the majority opinion.

     Other than the main suppression issue, the only issue
discussed by the majority, and that very briefly, is the
issue of claimed error in admitting photographs of the bodies.
The majority has ruled that the pictures are unduly gruesome
or inflammatory and should not be admitted at the second trial.

It also appears that the majority, even if it held against
the defendant on all other issues, ruled that the admission of
the pictures in and of itself required the grant of a new trial.
With this I do not agree.

     There is no doubt that the prosecution could have gotten
along quite well without the pictures--they certainly were
not needed.   On the other hand, I have never thought that the
prosecution must always present a sanitized version of the
facts to the jury.    Here, the defendant was charged with
deliberate homicide and the jury convicted him of mitigated
deliberate homicide.   This, if nothing else, is an indication
that the jury was not unduly swayed by the pictures.     But
what really bothers me on the issue of photographs is the
fact that there is utterly no consistency in this Court with

regard to pictures.    Here, the court ruled that a new trial

was deserved on the issue of the photographs alone.    I note,
however, that the pictures admitted into evidence here cannot
hold a candle to the gruesomeness of the pictures admitted in
the case of State v. McKenzie (1978),        Mont .      I   581
                  1219
P.2d 1205, at 121% 35 St.Rep. 759, at      774, and yet the
Court there, without even indicating what the pictures depicted,
held them not prejudicial.    I only emphasize this to point

out that there seems to be no rhyme or reason to this Court's
position on photographic evidence of homicide victims.
                               -31-
the majority opinion should have more properly disposed of
this issue in the opinion.   Again, the majority opinion did
not state the precise issue alleged in relation to the ballistics
problem, and therefore the opinion provides no guidance to
trial judges or lawyers.
     But most important of all in terms of the ultimate effect
on the defendant, is the speedy trial issue.   This issue is
not moot and the majority has an obligation to discuss it on
the merits.   The crimes took place on November 11, 1976,
homicide charges were filed on December 12, 1976, and trial
took place on January 16, 1978, more than thirteen months
later.   Defendant concedes that time taken in his attempts to
secure a writ of supervisory control should not run against
the State, but even on this basis, the time lapse between
charges and trial is 10 months and 17 days.    In ~itzpatrick
                           382
v. Crist (1974), 165 Mont. 3-83l 528 P.2d 1322, this Court
held a 7 month delay sufficient to shift the burden to the
State to explain the delay and show an absence of prejudice.
And although we have held that there is no precise lapse of
time sufficient to give rise to presumptive prejudice (State
v. Cassidy (1978), - Mon t   .     , 578 P.2d 735, 35 St.Rep.
612, 615), undoubtedly the delay of over 10 months here (con-
ceding defendant's acknowledgment that the delay taken in the

attempts to secure a writ of supervisory control from this
Court should not be counted against the State) is sufficient
to trigger an inquiry and shift the burden to the State to
prove an absence of prejudice.
     This duty to examine the facts and circumstances sur-
rounding the time lapse between charges and trial must be
decided on the merits.   The reason is obvious:   If this Court
should conclude that defendant had been denied a speedy trial,
the result would not be a new trial, it would be a dismissal.
                                 -33-
Since a resolution of the speedy trial issue in defendant's

favor would put an end to the prosecution, the majority
cannot get away with simply making the bald conclusion (without
stating and analyzing the facts in compliance with Barker v.
Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101)
that the issue has no merit.   If this Court fails to do so,
we will be ordered to do so by a Federal Court, and with total
justification.
     With regard to this speedy trial issue, I emphasize that
I take no position.   I simply point out that this issue must
be discussed and decided by the majority, one way or the other.
     Having pointed out these problems with the majority
opinion on the "remaining issues", I turn now to my concurring
opinion wherein I discuss the effect of the arrest on the
drug charges in order to facilitate the homicide interrogations,
and the effect of the failure to provide counsel to defendant
after his arrest and after he requested the appointment of an
attorney at his appearance before the justice of the peace.
    The pretrial legal proceedings centered primarily around
defendant's motion to suppress the confession and its fruits
based on claims of constitutional rights.     The hearing was
long and involved, taking a total of five days.    At the
conclusion of the hearing the trial court took the matter under
advisement.   It did this on July 11, 1977.   On July 25, 1977,
the trial court, without an attempt to analyze the issues and
evidence presented in relation to those issues, and without
even entering findings of fact and conclusions of law, entered
the following all encompassing order denying the defendant's
motion to suppress;
     "The Court finds the statements made by
     Defendant, including all confessions ex-
     culpatory and inculpatory, were made
     voluntarily by the Defendant, without any
     doubt by the Court."
                               -34-
The main opinion has also quoted this bald-conclusory
statement.    Suffice to say that we are provided no insight
whatsoever into the trial court's analysis of the issues
and application of the law to the facts presented at the
motion to suppress.     Nothing can be more frustrating to
lawyers when a judge makes such a ruling; and nothing is
more meaningless to an appellate court when we are called
upon to review the decisions and actions of the trial courts.
How can we tell whether the trial court conscientiously
attempted to make a good faith decision based upon the evidence
and the law when no underlying basis is provided to us by
which we can make that determination?    Under these circumstances,
the presumption of regularity of a trial court's decision
should evaporate the instant such a bald conclusion is made
disposing of all the issues raised.
    Why are not the litigants and the public entitled to
know the basis upon which the trial court set forth the issues,
analyzed the evidence, and applied the law to the facts as
the trial court perceived the facts to be?     Is this too much
to ask?
    Although the main opinion has concentrated on the
methods used in obtaining the confession as being coercive,
and constitutionally repugnant, thereby rendering the confession
involuntary, I note that the opinion has not sufficiently
considered two additional grounds which independently, are
serious enough to invalidate the confession.    The confession
here was tainted by the initial illegal investigatory arrest
             on
ostensibly/drug charges, which taint continued, unabated
throughout the four day period that defendant was subjected
to the interrogation techniques so soundly condemned by the
main opinion.     Moreover, during this same period of time,
and after he had requested the appointment of counsel at the
                               -35-
justice court appearance on Friday morning, he was denied
counsel until after the confession was extracted on Sunday
morning and he appeared in District Court to answer to the
homicide charges.   The legal consequences which flow from
this illegal investigatory arrest and the denial of counsel
are such that the arrest and denial of counsel served as the
launching pad from which the State took a four day holiday
with defendant's constitutional rights.
THE LEGAL CONSEQUENCES FLOWING FROM AN ILLEGAL ARREST:
     It is abundantly clear that had the defendant not been
arrested and held in custody, the agents of the State would
not have been able to subject him to the interrogation tech-
niques used on him over a four day period until the confession
was finally extracted on Sunday morning.   It was therefore
essential for the State agents to have defendant in their
custody.   Indeed, even before defendant was formally arrested
on the drug charges, he had been held in a 12' by 12' room
where he had been interrogated for four hours by the police,
and the police guarded this room while two of the interrogating
officers went to search defendant's home and van.   The police
knew, however, that they could not continue to hold the
defendant under such circumstances without getting into deep
legal trouble.   Accordingly, they had to fashion a basis upon
which they could arrest him, and thus "legally" have defendant
in their custody.   Hence the arrest on drug charges.
     One of the main contentions of defense counsel is that
the arrest, ostensibly on drug charges, was an illegal in-
vestigatory arrest, used only as a means by which interrogation
of defendant on the homicide charges could be intensified.
Essential to this contention is the nature of the consent
which defendant gave to the police to search his home and van.
                               -36-
He claims that the police expressly or impliedly told him
that if they discovered drugs while in the process of
searching for evidence linking him to the homicides, that
they would not arrest or charge him based upon such discovery
of drugs.
    Another legal consequence which follows from an illegal
investigatory arrest, is the effect of this arrest on the
right to counsel.     If the drug arrest and charges could be
sustained, defendant was obviously entitled to counsel on
the drug charges.    On the other hand, if it was an illegal
investigatory arrest, aimed at assuring continuity of an
in-custody interrogation in relation to the homicides, the
confession cannot be admitted if it is at all tainted by
this arrest.    Moreover, if the arrest was actually one to
facilitate the homicide interrogation, defendant, upon that
arrest, was entitled to have counsel appointed for him to
represent him in relation to the homicides.
     In answering the defendant's arguments, the State
argues first that the arrest on the drug charges was legal and
therefore that a prosecution on the drug charges could legally
follow.     In essence, the State argues that defendant's consent
given to the police to search his home and van was a general
blanket consent and that agents of the State did not tell
defendant that he would not be arrested or prosecuted for
drug possession if drugs were found in his home or in his van.
Based on this assumption of legality, the State then argues
that although counsel was not provided to defendant on the
drug charges, and even thouqh he had requested counsel at his
justice court appearance, his rights were not prejudiced by
the denial of counsel because its agents did not interrogate
defendant on the drug charges after his arrest and appearance
in justice court.
     The State then proceeds to the third prong of its
contention that the arrest on the drug charges was legal.
The State argues that because defendant was not in custody
onhomicide charges, but only on the drug charges, its agents
therefore had a right to interrogate defendant concerning the
homicides.   For this theory of interrogation, the State relies
on the unrelated offense doctrine set forth in United States
v. Dowells (9th Cir. 1969), 415 F.2d 801, but the facts of the
Dowells case have absolutely no application to the facts of
this case.
     The State comes up with another argument in the event
that this Court should hold that the drug arrest was an illegal
investagatory arrest.     It argues that probable cause did in
fact exist to arrest on the homicides, and that even if
the police did not recognize they had probable cause and did
not rely on the homicide offense as the basis for making the
arrest, the arrest can nonetheless be sustained.    For this
theory, the State relies on United States v. Saunders (5th
Cir. 1973), 476 F.2d 5:
     "When an officer makes an arrest which is properly
     supported by probable cause to arrest for a
     certain offense, neither his subjective reliance
     on the offense for which no probable cause
     exists nor his verbal announcement of the wr
     offense vitiates the arrest." 476 F.2d at k i yg
Translated, this is a conversion of a rule too often used
by appellate courts when the trial court has entered a judgment
which, for some reason, can be sustained, but for which the
trial court has assigned the wrong reasons in entering the
judgment.    Applied here, the rule means that as long as the
police had probable cause to arrest on some offense, even
though they were unaware of the existence of such probable
cause, the arrest will be sustained.
     Assuming the propriety and viability of such a rule
in this State, it assumes that there was probable cause to
                            -38-
make the arrest for the homicides.     In addition, if one
assumessuch probable cause to arrest for the homicides,
defendant's right to counsel on those charges attached
immediately, and it was the State's duty, if defendant could
not obtain his own counsel, to obtain counsel for him.       Thus
when he was arraigned on Friday morning on the drug charges,
it was the State's duty to provide counsel to defendant on the
homicide charges.    The State cannot obtain the benefit of an
alternative theory of arrest to avoid a conclusion that it was
illegal and by the same process avoid the duties which attach
as a result of receiving the benefits of this alternative
theory of arrest.    By persisting in its questioning of defendant
after his right to counsel had attached by his assertion of
such right, the State proceeded for the following three days
at its own risk, knowing full well that it was depriving
the defendant of his constitutional right to counsel.
     But neither of the alternative theories of the State
can be factually sustained.     The arrest cannot be validated
on the theory that objective probable cause existed to arrest
on the homicides even though the police subjectively relied

on probable cause to arrest on the basis of illegal drug
possession.   The simple reason is that probable cause did
not exist to arrest on the homicides.    Assuming a valid
arrest on the drug possession charge, the unrelated offense
doctrine, as relied on by the State, cannot, under the facts
of this case, free the State to interrogate defendant in
relation to the homicides.     And last, but not least, the
evidence does not justify a conclusion that the initial arrest
for drug possession was valid.
     Concerning the assertion of probable cause to arrest
for the homicides:   All the police knew was that defendant
once owned a small caliber pistol; that he knew the victims
                              -39-
and had been at the scene of the crimes within eighteen
hours of its commission; and, that he had altered his alibi.

These factors would arouse suspicion, but they do not con-
stitute probable cause to make an arrest based on the con-
clusion that defendant had committed the homicides.    Probable
cause is determined by whether or not the officers had such
information to warrant a man of reasonable caution in the
belief that defendant had committed the crimes.    State v.
Hill (1976), 170 Mont. 71, 74, 550 P.2d 390, 392: section 46-

6-401, MCA.     See also Draper v. United States (1959), 358
U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327.    A good faith belief,

absent the factual foundation, does not fulfill this require-
ment.

        Assuming moreover, that probable cause did exist to

arrest defendant on the homicides, the State then had an
obligation to provide counsel to defendant to represent him
on the homicide charges, and had no right to hold defendant
incommunicado for three more days while subjecting him to
the procedures which eventually extracted the confession.
Briefly stated, the State cannot have the best of two worlds.

        In seeking to validate its continual and persistent
interrogation of defendant after his arrest and appearance

before the justice of the peace and his request for an attorney,
the State must cross two hurdles.     First, it must establish
that defendant's consent to the search of his home and van
permitted them not only to seize drugs, but also to arrest
and charge him for possession of drugs.     Second, assuming the
right to arrest and charge him with drug possession, it must

establish that the unrelated offense doctrine applies in
order to validate the interrogation of defendant on the homicide
offenses while he was in custody on the drug charges.     The
State fails on both counts.
                            -40-
     The evidence does not support a conclusion that
defendant gave his consent to search for drugs knowing
that if any were found that he would be arrested and charged
with drug possession.   Rather, it supports a conclusion
that defendant thought he would not be arrested for drug
possession in the event drugs were discovered while the police
were engaged in a search for evidence connecting defendant
to the homicides.
    As stated by the county attorney during the hearing of
this appeal, the police and his office were under tremendous
pressure from the public and the press to solve the homicide
case as soon as possible and bring the perpetrator to justice.
While investigating the case the police had generally let it
be known that no drug-related arrests or prosecutions would
come about in relation to information anyone gave to them
in connection with the homicide investigation.   The record
does not disclose whether defendant was aware of this general
drug charge leniency extended to the public in the hopes of
acquiring information relating to the homicides.    But two
factors relate directly to the defendant's situation.     On
November 22, Detective Hirischi told defendant that he would
not be arrested on drug charges stemming from his dealings
with the Tillotsons which could be brought as a result of
his cooperation in the homicide investigation. On December 9,
the day defendant signed the consent form to search his home
and van, officer Trimarco told him that they were "not inter-
ested in" or "too concerned" with drugs, but rather, were after
the instrumentalities of fruits of the homicides.    Defendant
then consented to the search of his home and van and signed
a form containing the following language:
     "I have been advised that I do not have to give
     these officers permission to search my home and
     property. I am giving this consent without any
     threats or pressures of any type used against me."
     An important factor here is that when defendant
signed the consent to search he was in fact already in
the custody of the police although he had not been formally
arrested.   Officers had just previously interrogated him for
four hours in a 12 foot by 12 foot room, and he was left
there guarded by two other officers while the interrogating
officers went to search his home and van for evidence connecting
him to the homicides.   Defendant testified that while under
guard he asked the guarding officers when he would be permitted
to see an attorney and that one officer told him to wait until
officers Bell and Trimarco returned from the search of
defendant's home and van.   The officer denies that defendant
made this request.   Defendant was held totally incommunicado
except for a brief visit by his girl friend which lasted for a
period of five or ten minutes.
     If the consent was not coercive or obtained by trickery,
at the very least the scope of the consent was limited to the
fruits or instrumentalities used in the homicides.   Though
the drugs could properly be seized as contraband, the arrest
and criminal charges based upon that seizure, was outside the
scope of the permission granted, and therefore was illegal.
LaFave, Search - Seizure, Vol. 2, 58.l(c) at 627, et seq.
               and
It is repugnant to our system of justice, federal and state,
to allow the police to express or imply that a suspect will
not be arrested on drug charges if evidence of drug use or
possession is uncovered in a consent search for the fruits
or instrumentalities of a homicide, and then, after the
consent is obtained and drugs uncovered during the search, to
arrest and charge defendant with criminal possession of drugs.
A holding to the contrary would mean that the consent would
mean precisely what the police intended it to mean--which is
most often a convenient after the fact determination made in
order to give some credibility to or justify the previous

action of the police.
     The facts of this case do not permit a conclusion that
defendant gave a blanket consent with full knowledge that
if drugs were discovered a drug prosecution against'him would
result.   Defendant had just been interrogated for four hours
in relation to the homicides, and he obviously was well aware
that the police, in asking his consent to search, were looking
for evidence connecting him to the homicides.   A blanket
consent is not given where the defendant is told by the police
as part of the process of obtaining that consent, that they
are "not interested in" or not "too concerned" with drugs, but
rather, are looking for evidence connecting him to the
homicides.   Here, if not expressly stated, it was at least
implied that he would not be arrested and charged with drug
possession if drugs were found in the process of the search.
Where items are seized which go beyond the scope of the consent
given by a defendant, a successful arrest and prosecution
based on those items seized cannot pass constitutional muster.
United States v. Marchand (2nd Cir. 1977), 554 F.2d 983, cert.
den. (1978), 434 U.S. 1015, 98 S.Ct. 732,'2 L.Ed.2d   760:
Sheff v. State (Fla. 1976), 329 So.2d 270; Commonwealth v.
Weiss (Mass. 1976), 348 N.E.2d 787; LaFave, Search and
Seizure, Vol. 3, S11.4(e), at 646, et seq.
     Under the circumstances here it matters little whether
the contraband (drugs) was in plain view and thus seizable
under the plain view doctrine (Coolidge v. New Hampshire
(1971), 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564) based
upon an initial consent to search (United States. v. Dichiarinte
(7th Cir. 1971), 445 F.2d 126), for defendant was expressly
or impliedly promised that a drug charge would not ensue from
their discovery of drugs in his home or in his van.   To
dignify the arrest for drug possession as "legal" under the
circumstances here would be an insult to our judicial system
and the values it embodies.
                            -43-
     Although there is no basis to conclude that the State
legally arrested the defendant on drug charges, a deter-
mination that it was a valid arrest must first be made before
the State's theory of questioning defendant under the unrelated
offense doctrine can come into play.      In disposing of this
theory, I will assume therefore that the defendant was validly
arrested on the drug charges.      The question then presented is
whether the State had the right to interrogate defendant on
the homicide charges without providing counsel to him.      Only
by assuming that this doctrine can properly be applied to
this case does the State have any chance of defeating defendant's
claim that his right to counsel on the homicide case attached
at the moment of his arrest.
     The case upon which the State relies is United States
v. Dowells (9th Cir. 1969), 415 F.2d 801.     But Dowells
provides no support for the State's position.     There the
defendant was arraigned on a robbery charge.     He requested
an attorney, one was appointed for him, and he did in fact
talk to his attorney.    Later, while In jail awaiting trial,
government agents approached defendant to question him about
a totally unrelated robbery.    They gave defendant his full
Miranda warnings and then defendant read and signed a waiver
of his right to counsel.    He then confessed to committing
the unrelated robbery.    There is no indication whatsoever in

this case that the arrest on the first robbery charge was
merely a tool to secure a custodial interrogation on the
unrelated robbery charge.    Furthermore, defendant had been
appointed an attorney with regard to the first charge and was
fully aware that he could consult with one concerning the
unrelated robbery.   Instead, he waived his rights to counsel
and then confessed to the second robbery.     These facts do not
come close to the facts of the present case.
                            -44-
a l s o o b t a i n e d a c o n s e n t t o s e a r c h from t h e p e r s o n who

owned t h e home o n l y a f t e r a s s u r i n g him t h a t t h e y were

"not i n t e r e s t e d " i n drugs.            By t h e t i m e d e f e n d a n t s i g n e d

t h i s c o n s e n t t h e homicide i n v e s t i g a t i o n was i n t e n s e l y and

e x c l u s i v e l y f o c u s e d on him a s b e i n g t h e p e r p e t r a t o r of t h e

homicides.           A t t h i s p o i n t , however, a l l p o l i c e o f f i c e r s who

t e s t i f i e d on t h i s m a t t e r , a g r e e d t h a t t h e y d i d n o t have

p r o b a b l e c a u s e t o a r r e s t d e f e n d a n t on t h e homicides.              Thus

t h e need a r o s e t o p u t him i n t o c u s t o d y on a n o t h e r c h a r g e s o

t h a t d e f e n d a n t c o u l d be i n t e r r o g a t e d i n i s o l a t i o n , w i t h o u t

d a n g e r of i n t e r r u p t i o n o r i n t e r f e r e n c e .    The f a c t t h a t b a i l

on t h e d r u g c h a r g e s was s e t a t $30,000 i s i n d i c a t i v e t h a t t h e

p o l i c e had o t h e r o b j e c t i v e s i n mind and d i d n o t want hlm t o

immediately p o s t b a i l .             F i n a l l y , s h o r t l y a f t e r t h e homicide

c h a r g e s were f i l e d , t h e p r o s e c u t i o n d i s m i s s e d t h e d r u g

c h a r g e s by e n t e r i n g i n t o a s t i p u l a t i o n w i t h d e f e n s e c o u n s e l ,

even though d e f e n s e c o u n s e l d i d n o t r e q u e s t t h i s d i s m i s s a l .

        The a c t i o n of S t a t e a g e n t s a f t e r d e f e n d a n t ' s a p p e a r a n c e

i n j u s t i c e c o u r t , adds a d d i t i o n a l support f o r t h i s conclusion.

Although d e f e n d a n t had r e q u e s t e d an a t t o r n e y i n j u s t i c e c o u r t

no one t o l d him when he might make h i s a p p e a r a n c e i n D i s t r i c t

C o u r t t o o b t a i n a lawyer.            I f t h e c o u n t y a t t o r n e y , moreover,

was t r u l y i n t e r e s t e d i n p r o t e c t i n g d e f e n d a n t ' s r i g h t s t o

c o u n s e l , n o t h i n g p r e v e n t e d him from f i l i n g c h a r g e s i n

D i s t r i c t C o u r t on F r i d a y , and t h u s s e c u r i n g d e f e n d a n t ' s r i g h t

t o counsel.           I t was n o t a d i f f i c u l t m a t t e r t o p r e p a r e t h e

necessary papers i n D i s t r i c t Court p e r m i t t i n g t h e drug

c h a r g e s t o be f i l e d d i r e c t l y t h e r e .       I n s t e a d , however, a f t e r

h i s j u s t i c e c o u r t a p p e a r a n c e , d e f e n d a n t was h e l d i n c o m p l e t e

i s o l a t i o n i n a h o s t i l e police-dominated                 atmosphere u n t i l t h e

p o l i c e f i n a l l y e x t r a c t e d h i s c o n f e s s i o n on Sunday morning.

                                               -46-
     Here, the police knew and fully acknowledged that
the arrest on drugs was made only to facilitate the homicide
interrogation.   Indeed, they admitted that the drug arrest
was merely a "tool" to aid in the homicide investigation.
And there can be no question that defendant must have known
that agents of the State were not looking for evidence of
drug possession but rather, were looking for evidence connecting
him to te homicides.   Before his arrest he had been intensely
questioned on several occasions concerning the homicides, and
indeed, was still in police custody as part of the homicide
interrogation when he executed the consent to search and when
he was arrested on the drug charges.   To recognize and apply
the unrelated offense doctrine to the facts of this case would
be to flatly deny to defendant his constitutional right to
counsel.   Under these circumstances, the State cannot contend
in good conscience that defendant's request for an attorney
at the justice court appearance did not constitute a request
for an attorney in relation to the homicides.    Furthermore,
since the State knew that the arrest and defendant's custody
facilitated an immediate and unremitting interrogation
process lasting for three more days, the State is in no
position to contend that defendant's arrest did not trigger
his right to counsel in the homicide case.
     The police officer who made the drug arrest admitted
during cross-examination that it was done as a "tool" or
as "part of" the homicide investigation.     Defendant, moreover,
was not the only person who could have been charged with
drug possession in relation to the drugs found in the home.
But no other person was charged.    Defendant's girl friend
lived with him and no doubt had equal access to the drugs.
And, after defendant signed the consent to search, the police
                             -45-
Indeed, shortly after his justice court appearance he
was taken to meet with the Yellowstone County Attorney
and the only item on the agenda was the homicides.      The
county attorney suggested that defendant submit himself to
a sodium amytal treatment.   The sole objct of the State after
obtaining defendant's custody through the drug charges, was
to isolate and interrogate him so that they could obtain his
confession.   That the State chose to do so in flagrant dis-
regard of the defendant's constitutional rights is a burden
which the State alone must bear, for it was not required to
choose this course of action.
    Although the main opinion has focused primarily on
the interrogation techniques which rendered the confession
admissible, it has, at least in passing, concluded that
defendant's conviction must also be reversed because he
was denied his right to counsel.       But the opinion does not
develop this aspect of the case and I am not at all certain
just where the majority concludes that defendant's right to
counsel first attached.   Just as we cannot ignore the con-
sequences which flow from the illegal arrest, we cannot
ignore the consequences which flow from the State depriving
the defendant of his right to counsel.
     Defendant requested an attorney in justice court when
he appeared there on Friday morning, ostensibly in response
to the drug charges, and after being advised of his rights,
including his right to counsel, he requested that a lawyer
be appointed for him.   At no time did defendant ever expressly

or impliedly waive an attorney until just before his formal
confession on Sunday morning.    Defendant's custody provided
the necessary condition upon which the State commenced its
four day holiday with defendant's constitutional rights,

including his right to counsel.
                                -47-
     At the hearing of this case on appeal, the Yellowstone
County Attorney, in response to questions from the bench,
explained the peculiar circumstances existing in Yellowstone
County with regard to appointment of counsel on felony charges.
If felony charges are filed against a defendant in justice
court, the charges filed there serve merely as a holding device
to give the State time to file the charges directly in District
Court.     The State rarely, if ever, allows the defendant to
effectively assert his right in justice court to a preliminary
hearing.     In addition, however, although a defendant is advised
of his right to counsel by the justice of the peace, he is also
told that the justice of peace cannot appoint counsel for him,
rather, that the defendant must wait until the county attorney
takes the case to District Court before counsel can be
appointed for him.    In the present case, because defendant
appeared in justice court on Friday morning, the county
attorney explained that he did not have time to file charges
that day in District Court, and therefore the following Monday
would have been the earliest time he could have done so.      The
county attorney would not admit any constitutional defects,
or statutory noncompliance in this customary practice in
Yellowstone County.    Presumably, he would have us believe
that it is a mere coincidence that this practice in Yellowstone
County fit in beautifully with the time frame which was needed
to extract a confession from the defendant before he was taken
to District Court for the appointment of counsel on the follow-
ing Monday.
     It is a total abdication of responsibility for the State
to contend here that under the circumstances of the case, it
did not deny counsel to defendant.    Custody on the ostensible

drug charge provided the essential control over defendant from
 which agents of the State could work on him to extract a
  confession.   One of the cardinal principles of Miranda v.
 Arizona is that once a defendant in custody asks for an
 attorney, that request must be "scrupulously honored."
 Miranda, 384 U.S. at 479, 85 S.Ct. at 1630, 16 L.Ed.2d at
 726; Michigan v. Moseley (1975), 423 U.S. 96, 103, q 6 S.Ct.
                                                    48

 321, 326, 46 L.Ed.2d   313, 321.   The Miranda Court stated:
       "If, however, he indicates in any manner and
       at any stage of the process that he wishes to
       consult with an attorney before speaking there
       can be no questioning. Likewise, if the individual
       is alone and indicates in any manner that he does
       not wish to be interrogated, the police may not
       question him. The mere fact that he may have
       answered some questions or volunteered some state-
       ments on his own does not deprive him of the right
       to refrain from answering any further inquiries until
       he has consulted with an attorney and thereafter
       consents to be questioned." Miranda, supra, 384
       U.S. at 444-445, 86 S.Ct. at 1612, 16 L.Ed.2d at 707.
 And the Court further stated as to in-custody interrogation:
       "Without the right to cut off questioning, the
       setting of in-custody interrogation operates on
       the individual to overcome free choice in producing
       a statement after the privilege has been once
       invoked. If the individual states that he wants
       an attorney, the interrogation must cease until an
       attorney is present. At that time, the individual
       must have an opportunity to confer with the
       attorney and to have him present during any
       subsequent questioning. If the individual cannot
       obtain an attorney and he indicates that he wants
       one before speaking to police, they must respect
       his decision to remain silent." Miranda, supra,
       384 U.S. at 474, 86 S.Ct. at 1628, 16 L.Ed.2d at 723.
        In this case, the facts pertinent to this issue speak
 for themselves--defendant's request for an attorney was

 completely ignored.    There was not even an attempt to comply
 with the mandate of Miranda.   Rather than being "scrupulously
 honored" defendant's request for an attorney was unscrupulously
 ignored.
        n Powell v. Alabama (1932), 287 U.S. 45, 57, 53 S.Ct.
5/5   -.5?
 559, 77 L.Ed. 158, the United States Supreme Court, in reversing
 convictions because of a denial of counsel, first declared
that early access to an attorney is indispensible to a
criminal defendant if he is to have the effective assistance
of counsel to which he is entitled under the Sixth and
Fourteenth Amendments of the United States Constitution.
In Escobedo v. Illinois (1964), 378 U.S. 478, 488, 84 S.Ct.

1758, 1764, 12 L.Ed.2d 977, 984, the Court zeroed in on the
stages at which the right to counsel must be honored.     In
declaring that most injustices and constitutional abuses
occur during a defendant's initial contacts with the criminal
justice system, the Court held that when an investigation
turns from investigatory to accusatory, a defendant who
invokes his right to counsel, must have that right respected.
This Court recognized this basic right in State v. Lucero
(1968), 151 Mont. 531, 537, 445 P.2d 731, at 734, where, in
relying on Escobedo, we stated:

     "The constitutional right to counsel and the
     constitutional right against self-incrimination
     attach prior to any court proceeding at such
     time as the police investigation shifts from
     a general investigation of an unsolved crime to
     a focus on a particular suspect. (Citing
     Escobedo v. Illinois.)"
     Furthermore, there can be no doubt that the United
States Constitution mandates that the right to counsel
attaches without question after the defendant has been
charged :
     "Whatever else it may mean, the right to
     counsel granted by the Sixth and Fourteenth
     amendments means at least that a person is
     entitled to the help of a lawyer at or after
     the time judicial proceedings have been
     initiated against him 'whether by way of
     formal charge, preliminary hearing, indictment,
     information, or arraignment.'" Brewer v.
     Williams (1977), 430 U.S. at 398, 97 S.Ct. at 1239,
     51 L.Ed.2d at 436.
     Even before his formal arrest on the drug charges, the
homicide investigation had clearly focused upon him and had
become accusatory.   Defendant testified that he requested an
attorney while the search of his home and van was conducted,
but the officers deny this.    Be that as it may, the State
cannot and does not deny that defendant requested an attorney
the following morning when he appeared before the justice
of the peace.   The arrest on drug charges served as the necessary
"tool" by which full custodial control could be asserted over
the defendant to facilitate the interrogation techniques
found so offensive in the main opinion.   After defendant's
arrest, the total focus was on him as the perpetrator of the
homicides.   The only problem was that the State had no
evidence upon which to base a prosecution without a confession
and its fruits.    There can be no doubt therefore, that when
defendant appeared before the justice court and requested
an attorney, he triggered the Escobedo request for an attorney.
By persisting in the interrogation of defendant after his
right to counsel attached, and had not been waived, the agents
of the State proceeded at their own risk, with their only
hope being that the judiciary would close its eyes to its
violations of the defendant's constitutional rights.
IMPACT OF THE ILLEGAL ARREST, DENIAL OF RIGHT TO COUNSEL,
AND ILLEGAL INTERROGATION TECHNIQUES:
     We are thus back to square one.    For the confession
to be admissible it must not have been extracted by illegal
means, for if it has been so extracted, it is not voluntary.
That, in part, is the holding of the main opinion.     The
methods used to extract the confession are, of course, in
and of themselves, sufficient to prevent the admissibility
of a confession.    But added to the methods used is the
failure of the State to provide counsel to defendant and
the exploitation of the illegal arrest from which the taint
was never removed.    The legal consequences which flow from
the denial of counsel and the illegal arrest, cannot be
ignored for they add significantly to the reasons why the
confession and its fruits are not admissible at the trial.
                              -51-
         The only theory by which the State can successfully
 avoid the issue of failure to provide counsel to defendant

 is not by a contention that it had no duty to provide him
 counsel once he asserted that right at his appearance before
 the justice of the peace, but that the defendant waived his
 right to counsel once it had been asserted.            The State,
 however, must prove that this right was voluntarily and
 knowingly relinquished.          Brewer v. Williams (1977), 430 U.S.
 387, 404, 97 S.Ct. 1232, 1242, 51 L.Ed.2d 424, 439; Johnson
 v. Zerbst (1938), 304 U.S. 458, 464, 58 S.Ct. 1010, 1023,
%%.Ed.      1461, 1466.       Not only is this the State's burden to
 prove, but the burden to prove defendant waived his right
 to counsel, is indeed a heavy one.         Miranda, supra, 384 U.S.
                          /   636
 at 475, 86 S.Ct. at4-028, 16 L.Ed.2d         at 724.   No waiver was
 proved in this case.
         There are absolutely no facts by which it can be
 determined that defendant expressly waived his right to
 counsel once it had been first asserted.          And unless the
 continuing interrogation itself can be construed as an

 implied waiver of counsel, there are absolutely no facts by
 which an implied waiver could result.          Not only would an
 implied waiver strip Miranda of its vitality, even where there
 is such a contention the State must prove upon such assertion,
 that defendant knew that the right existed and just what the
 right entailed.     North Carolina v. Butler (1979),           U.S.

 I         99   S.Ct. 1755, 60 L.Ed.2d 286.      It can hardly be
 asserted that defendant knew what the right entailed when
 he was told in justice court, after asserting his right to
 counsel, that he could not have counsel until his case reached
 District Court (whenever that time might be).            The State admits
 that defendant asserted his right to counsel in justice court,
 and just as clearly, the State should admit that he did not

 thereafter waive his right to counsel.
                                    -52-
     Outside of the events themselves, there were no
gestures or words which could be taken to manifest a
voluntary and knowing waiver.        More than mere participation
is necessary.     To rule otherwise would strip the principles
underlying Miranda and Escobeda of their vitality and
legitimize methods of interrogation which are abhorrent to
our system of justice.     It would sanction the continuing
interrogation of a defendant after the right to counsel had
been invoked, and the subject's participation in the
interrogation would in itself constitute the factual foundation
for a waiver of counsel.    This is precisely what Miranda
forbids.
     Clearly therefore, the session with the county attorney
in relation to the sodium amytal treatment, the sodium
amytal interrogation by Dr. Hughett in the presence of the
police officers, and the later interrogation by Dr. Hughett
on Sunday morning, were all tainted by a flagrant violation
of the defendant's constitutional right to counsel.
     We arrive then at the situation immediately preceding
the confession.    Just before defendant confessed, and after
he had been subjected to four days of interrogation in
isolation, in a hostile police-dominated atmosphere, the
police decided to employ the coup de gr$ce by.then formally
reading the Miranda warnings to him and obtaining a waiver
of his rights.    Presumably, they believe that this sanitized
and legitimized all that had gone before.       But a waiver
obtained under such circumstances cannot wipe out the
unremovable stain of the immediate unconstitutional past.
The waiver must be looked at in the context of the entire
proceedings which preceded it.       A court cannot condemn the

interrogation techniques used in this case, only to hold
that the confession was nonetheless admissible because just
before defendant confessed he was given his Miranda warnings
                              -53-
and waived his rights.   Such a holding would make a mockery
of the investigation and interrogation process and constitutes
a license for state agents to do anything they pleased in
prepping the defendant for the ultimate confession.
FRUIT OF THE POISONOUS TREE:
    Without regard to a consideration of an illegal invest-
igatory arrest or to a denial of the right to counsel, the
majority has concluded that the confession, because of the
interrogation techniques used, was involuntary, and thus
inadmissible. Clearly, had there not been an illegal arrest
or denial of counsel, the confession would still be rendered
inadmissible, and I concur with the majority opinion in this
regard.   The fruit of the poisonous tree doctrine set forth
in Wong Sun v. United States (1963), 371 U.S. 471, at 491,
83 S.Ct. 407, at 419, 9 L.Ed.2d 441, at 457, compels this
result.   But even if the interrogation techniques did not
induce an involuntary confession, the confession and its
fruits would nonetheless have to be excluded because of the
taint of the illegal investigatory arrest and denial of
defendant's right to counsel.
    We are, of course, required to look at the totality of
circumstances in considering the admissibility of a confession.
A confession, even if voluntary, does not ipso facto assure
its use as evidence at trial.   Thus, assuming that the evidence
established a voluntary confession, the State would still
have to establish first, that the illegal investigatory
arrest did not contribute to the ultimate confession induced.
Second, and assuming that the State crossed the first barrier,
the State would have to establish that the denial of counsel
did not contribute to the ultimate confession induced.
Without successfully crossing these evidentiary barriers, the

confession and its fruits cannot be used against the
defendant at trial.
     We look first at the illegal investigatory arrest.
On the other hand, we look at the State's token compliance
with Miranda just before he confessed on late Sunday morning.
The State would have us ignore the failures to comply with
Miranda or Escobedo during the in-custody proceedings, and
simply concentrate on the Miranda warnings and waiver obtained
immediately before the confession.    But we cannot isolate
the Miranda warnings and thus legitimize what went on before.
In Brown v. Illinois (1975), 422 U.S. 590, 95 S.Ct. 2254,
45 L.Ed.2d 416, the United States Supreme Court stated that
compliance at some point in the procedure with the Miranda
warnings does not ipso facto remove the taint of an illegal
investigatory arrest.    Although it is an important factor,
compliance with Miranda after the arrest, is only one of
several factors to be considered.
     In Brown, the Court emphasized that the Fifth Amendment
and the Fourth Amendment serve different purposes in relation
to law enforcement.     The Fifth Amendment serves to correct
abuses, and therefore, a showing that a confession is voluntary
will suffice to allow its admission into evidence.    On the
other hand, the Fourth Amendment seeks to prevent abuses and
it requires that a confession, even though it is shown to
be voluntary, must also be sufficiently removed from the
illegal arrest so as to remove the taint of the arrest.       If
it is so removed the confession is admissible; if it is not,
the confession is not admissible.     Brown, 422 U.S. at 602,
95 S.Ct. at 2261, 45 L.Ed.2d 426.     In the context of an
illegal investigatory arrest the Court discussed the importance
of the Miranda warnings in relation to the other circumstances
which occur after the arrest:
     "The Miranda warnings are an important factor,
     to be sure, in determining whether the confession
     is obtained by exploitation of an illegal arrest.
     But they are not the only factor to be
     considered. The temporal proximity of the
     arrest and the confession, the presence of
     intervening circumstances, see Johnson v.
               -
     Louisiana, 406 U.S. 356 (19721, and, particularly
     the purpose - flagrancy of - official mis-
                 and           - the
     conduct - - relevant." See Wong Sun v.
             are all
     United States, 471 U.S. at 491." Brown v.
     Illinois, 422 U.S. at 603-604, 95 S.Ct. 2261-
     2262, 45 L.Ed.2d at 427. (Emphasis added.)
     But just as a compliance with Miranda at some point
in the proceedings does not assure the admissibility of a
confession, nor does a constitutional violation ipso facto
compel the exclusion of a confession and its fruits.     If
the State can prove that the confession obtained is sufficiently
removed .from the initial constitutional violation (here, the
illegal investigatory arrest) so that it is not tainted by
this violation, the confession is admissible.   Wong-
                                                - Sun,

supra, 371 U.S. at 488, 83 S.Ct. at 417, 9 L.Ed.2d at 455.
Thus the State's burden in this case is to prove that the
confession on late Sunday morning, is by circumstances inter-
vening between the confession and the initial investigatory
arrest, sufficiently removed from the constitutional violation
so that it is no longer tainted.   That burden is insurmountable.
     The confession is inextricably connected to the illegal
investigatory arrest, for it is the arrest which secured the
necessary condition of custody and isolation by which the
agents of the State could commence its four day holiday with
defendant's constitutional rights.   Rather than the four
day time lag being a period of conscientious observance of
defendant's constitutional rights, it was a period of
unscrupulous violation of defendant's constitutional rights.
He was not only denied his right to counsel, the interrogation
techniques found so offensive in the main opinion, were the
essential tools by which the confession was induced.     There
was no intervening circumstance which did not relate back to
and was not the product of the illegal investigatory arrest.
                           -56-
Indeed, it is this kind of police misconduct which was
expressly condemned in Brown (422 U.S. at 605, 95 S.Ct.
at 2262, 42 L.Ed.2d at 428).   Here, the confession was
not merely tainted by the illegal investigatory arrest, it
was totally and irrevocably poisoned by those events
intervening between the arrest and the confession.
     For the foregoing reasons I would reverse the con-
viction, order the confession and its fruits suppressed, and,
because absent this evidence there is insufficient evidence
upon which the prosecution could survive a motion for
directed verdict based on insufficiency of the evidence, I
would order the case dismissed.    To sustain the conviction
in this case it would not only require this Court to bury
its head in the sand, it would require us to bury our entire
judicial body so that not even the soles of our feet would
appear above the mud within which the defendant's constitutional
rights were buried by the State.



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