                                          No. 04-190

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2005 MT 308


STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

TROY McGARVEY,

              Defendant and Appellant.




APPEAL FROM:         The District Court of the Eleventh Judicial District,
                     In and For the County of Flathead, Cause No. DC-2003-014(C),
                     Honorable Stewart E. Stadler, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     Wendy Holton, Attorney at Law, Helena, Montana

                     Herman A. Watson, Attorney at Law, Bozeman, Montana

              For Respondent:

                     Honorable Mike McGrath, Attorney General; C. Mark Fowler,
                     Assistant Attorney General, Helena, Montana

                     Ed Corrigan, County Attorney; Lori Adams, Deputy
                     County Attorney, Kalispell, Montana



                                                       Submitted on Briefs: September 21, 2005

                                                                  Decided: December 6, 2005


Filed:

                     __________________________________________
                                       Clerk
Justice W. William Leaphart delivered the Opinion of the Court.

¶1     On November 14, 2003, a jury convicted Appellant Troy McGarvey on two counts

of deliberate homicide, based in significant part on an extrajudicial confession recounted by

two trial witnesses. The court sentenced McGarvey to 100 years on each homicide count,

with a consecutive additional ten years on each count for the use of a weapon. McGarvey

maintained his innocence throughout all phases of the investigation, trial and sentencing,

moving for a directed verdict at the close of the State’s case. On appeal, McGarvey argues

that the District Court erred in denying McGarvey’s motion for a directed verdict because

the evidence was insufficient as a matter of law to support the verdict. We affirm.

                              FACTUAL BACKGROUND

¶2     Clifford Grant and Norman Nelson died from multiple gunshot wounds at Grant’s

twenty-acre property near Ferndale, Montana, in July of 2001. Grant tightly guarded his

property, kenneling over fifty pit bulls and posting signs on the locked gates reading “No

Trespassing” and “Beware of Dogs.” Motion detectors and security lights lined the

perimeter fence within the property. Grant lived in an enlarged mobile home, while Nelson,

for several months prior to the murders, resided in a camper trailer on the property. An

additional trailer home had been occupied at different times by two men from Yakima,

Washington—Tony Sanchez and Louis Rodriguez.                 Sanchez had been running

methamphetamine between Yakima and the Flathead Valley, Montana, for at least two years

prior to the murders and had regularly supplied methamphetamine to Grant, making personal

deliveries to the property approximately every two weeks.

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¶3    On the day of the homicides, Sanchez and his sixteen-year-old nephew, Arnoldo

Lopez, drove to Grant’s property to retrieve Sanchez’s truck and jet skis and to deliver a

supply of methamphetamine. Sanchez and Lopez both testified that upon their arrival,

Appellant McGarvey, whom they had never met before, came from around the west side of

Grant’s property and told them that he had knocked on Grant’s door but received no answer.

According to Lopez (though not Sanchez), McGarvey, without prompting, mentioned setting

off firecrackers in an attempt to wake Grant. At some point, Nelson noticed the three men

on the property and came out from his camper trailer to greet them. Because Grant was

apparently not home, Sanchez and Lopez both testified that they retrieved the truck (which

required a jumpstart) and then left, leaving McGarvey and Nelson alone on the property.

¶4    Detectives first learned of the murders on July 12, 2001. Prompted by local rumors,

law enforcement’s investigation initially focused on the “Mexican Mafia.” Approximately

two weeks after the killings, however, Flathead County Sheriff’s Office received a tip from

an anonymous female caller who stated that she had overheard somebody in a bar named

“Tony”or “Troy” bragging about having killed Grant and Nelson. The tipster said the man

lived on Harmony Road and was Grant’s cousin. McGarvey, a distant cousin to Grant and

who resided on Harmony Road, thus became the focus of law enforcement’s investigation.

From the beginning, McGarvey denied any involvement with the homicides.

¶5    The State, in large part, based its case on testimony from Robert Armstrong and Stan

Edwardson, Jr. Edwardson rented a shop building from McGarvey’s mother and allowed

Armstrong, his helper, to move his camper trailer to the site behind the shop. Both men

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claimed that on the day of the killings, McGarvey confessed to shooting Grant and Nelson.

Armstrong testified that he first overheard McGarvey tell McGarvey’s step-son about

“something bad [that] had happened down at Cliff’s house,” and then listened as McGarvey

told his wife and Edwardson details of the killings. A heavy drinker, Armstrong admitted

to being “half lit” at the time he overheard these conversations. According to Armstrong,

McGarvey said he went to Grant’s property and while conversing with Grant at the west

door, Grant “flipped out”—perhaps because he was on methamphetamine—and pulled a gun

on McGarvey. Armstrong testified that McGarvey said a wrestling struggle ensued, resulting

in Grant “popp[ing] off a couple rounds, one round on either side of his head,” at which

point McGarvey “wrestled the gun back away from [Grant] and shot him a few times.”

Armstrong testified that McGarvey claimed to have shot Nelson only after seeing Nelson

running to a car, because McGarvey “thought [Nelson] either had a shotgun in his hand or

he was reaching for the shotgun out of the car.” Armstrong thought McGarvey said he threw

the murder weapon into the river.

¶6     Armstrong further testified that a few days after overhearing McGarvey confess, he

told his mother, Susan Fox, of the homicides, hoping she would offer him a place to

live—which she did. After residing in the motor home on McGarvey’s property for another

couple weeks, Armstrong moved in with his mother. Approximately ten days after hearing

from her son, Fox phoned in the anonymous tip implicating McGarvey. Law enforcement

did not obtain details from Armstrong, however, until police arrested him on a fourth offense

of driving under the influence (DUI), a felony, and a hit-and-run accident. Armstrong

                                             4
promised testimony against McGarvey and subsequently received a deferred prosecution on

his felony DUI. He also inquired of authorities about receiving a Crime Stopper’s reward

for providing information about the unsolved homicides. Prior to McGarvey’s trial, in an

effort to avoid testifying, Armstrong twice jumped bail before law enforcement revoked his

suspended sentence. At some point while in jail, Armstrong wrote a letter to McGarvey

demanding payment of $3,900 for some property he claimed McGarvey stole and damaged.

The letter suggested that McGarvey push back the trial date so that Armstrong could take

care of his “stuff.” At trial, Armstrong indicated that he wanted to avoid testifying at

McGarvey’s trial and thus, needed the money in order to “run.” In exchange for cooperating

with the prosecution, the State deferred prosecution on Armstrong’s felony DUI charge and

dropped the bail-jumping charges, giving him a five-year suspended sentence.

¶7     As for Edwardson, he did not implicate McGarvey when detectives initially

questioned him regarding the homicides—even though the prosecution threatened to charge

him with obstruction of justice if he remained silent. Although Edwardson originally refused

to cooperate, he eventually changed his mind and provided an interview. With regard to

McGarvey’s confession, Edwardson’s testimony at trial was substantially similar to

Armstrong’s. He explained that on the day of the homicides, McGarvey “started telling me

how he shot these two people down in Ferndale.” According to Edwardson, Armstrong was

present for about half the conversation, which lasted approximately twenty or thirty minutes.

While he could not remember the victims’ names, Edwardson said McGarvey identified one

of the men as McGarvey’s cousin. Edwardson speculated at trial that McGarvey had killed

                                             5
Grant for writing a bad check. (Trial witness Dallas Koepfli also stated that McGarvey

appeared angry with Grant around the date of the homicides.) Edwardson testified that after

hearing about the deaths, he suggested retrieving drugs and money from Grant’s property.

Armstrong took off in his truck for that purpose, but on the way, changed his mind and

picked up beer instead.

¶8     McGarvey maintained his innocence throughout all phases of the investigation, trial

and sentencing. At trial, McGarvey claimed that on the morning of the homicides, he visited

an occupational therapist for a finger injury suffered during a work-related accident. After

the appointment, McGarvey called Grant to find out about the title to a Jeep that Grant had

given McGarvey in lieu of money for work McGarvey had done on Grant’s property. (Grant

had previously written McGarvey a bad check for the work.) After leaving a message by

phone, McGarvey drove to Grant’s property, but claimed he decided to come back later,

rather than approach the gates at that time. McGarvey testified that during his lunch break

he drove to Grant’s property and sat in his car by the gate eating lunch when Sanchez and

Lopez arrived a few minutes later. According to McGarvey, Nelson opened the gate for all

three men and allowed the cars to drive onto the property. Sanchez’s truck required a

jumpstart; after it started, McGarvey said he walked to the west side of Grant’s house

intending to knock on the door. When a chained pit bull lunged at him, however, McGarvey

decided otherwise and told Nelson he would stop by again after work. In contradiction to

Sanchez’s and Lopez’s testimony, McGarvey testified that he left Grant’s property first,

while the other two men remained behind with Nelson. McGarvey stated that he returned

                                             6
to Grant’s property after work, gaining entry by climbing over the fence. After seeing

Nelson’s body in the car, McGarvey said he fled the property, frightened by the sight, and

once at home, told Edwardson about Nelson’s corpse. While Edwardson expressed an

interest in retrieving drugs from Grant’s place, McGarvey claimed he wanted no part of such

plans. McGarvey testified that he did not report to law enforcement because he was on

probation and feared association with criminal activity. After the homicides, McGarvey

evicted Edwardson for failing to pay rent on the shop building. Because Armstrong never

had permission to move onto the property, McGarvey asked Edwardson to tell Armstrong

to leave, as well.

¶9     When law enforcement first investigated the crime scene, they discovered Grant’s

body face-up on the ground near a dog kennel outside the west entrance of his residence.

In searching Grant’s home, officers turned up two empty carrying cases for .357 Dan Wesson

revolvers. Detectives discovered in Nelson’s camper a fully loaded Dan Wesson .357

revolver wrapped in a blanket. They also found bullet parts under Nelson’s mattress that

matched the same class of ammunition stored in Grant’s Dan Wesson gun case. Law

enforcement determined that the .357 Dan Wesson revolver in Nelson’s trailer matched one

of Grant’s missing guns; the second revolver was never recovered. Experts estimated that

either a .38 or .357 caliber weapon was used in killing Grant.

¶10    Nelson’s body was found in a half-kneeling, half-sitting position in the driver’s seat

of a vehicle parked on the property; the driver and passenger windows to the vehicle were

down and blood remained splattered inside the vehicle. Detectives noted that Nelson had

                                             7
been shot two times—in the left temple and left jaw. While the range from which the

shooting took place could not be determined precisely, the assailant apparently did not fire

from close range. The investigation did not turn up a murder weapon; nor did it reveal the

perpetrator’s fingerprints, footprints or trace evidence, such as hairs or fibers from clothing

or skin.

¶11    During the trial, at the close of the State’s case-in-chief, McGarvey moved for a

directed verdict pursuant to § 46-16-403, MCA, arguing that the State failed to “identify Mr.

McGarvey as the person who has been referred to in these matters, . . . establish that the

matter occurred in Flathead County; . . . [or] establish or identify a weapon which caused the

deaths.” The court denied the motion without explanation. At the conclusion of the three-

day trial, the jury convicted McGarvey of two counts of deliberate homicide. The court

sentenced McGarvey to 100 years on each homicide count, with a consecutive additional ten

years on each count for the use of a weapon. The sentences are to run concurrently with no

parole restriction.

                                           ISSUE

¶12    Whether the District Court properly denied McGarvey’s motion for a directed verdict.



                                STANDARD OF REVIEW

¶13    “A district court’s decision to grant or deny a motion for a directed verdict lies within

its sound discretion and will not be overturned absent an abuse of that discretion.” State v.

Hayworth, 1998 MT 158, ¶ 50, 289 Mont. 433, ¶ 50, 964 P.2d 1, ¶ 50 (internal quotation

                                               8
omitted). “A directed verdict of acquittal is appropriate when the State fails to prove its case

and there is no evidence upon which a jury could base a guilty verdict. No abuse of

discretion occurs if, after viewing the evidence in a light most favorable to the prosecution,

any rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” State v. Giant III, 2001 MT 245, ¶ 9, 307 Mont. 74, ¶ 9, 37 P.3d 49, ¶

9 (citations omitted).

                                       DISCUSSION

¶14    McGarvey argues on appeal that, as a matter of law, the evidence presented at trial

did not sufficiently support the guilty verdict, and therefore, the District Court should have

granted his motion for a directed verdict of acquittal. McGarvey’s primary contention is that

Armstrong and Edwardson, the two witnesses who testified to McGarvey’s alleged

extrajudicial confession, were patently unreliable and therefore corroboration should have

been required in order to uphold their testimony.

¶15    At the outset, we note the State’s argument that McGarvey failed to preserve this issue

for appeal because he “never raised the claim that the two confession witnesses ought as a

matter of law to be held unworthy of credit.” We disagree with the State and conclude that

McGarvey’s appeal is appropriately before us. “In order to properly preserve an issue for

appeal, a defendant must make a timely objection or motion to strike. For an objection to

be timely, it must be made as soon as the grounds for the objection become apparent.” State

v. Whitlow (1997), 285 Mont. 430, 442, 949 P.2d 239, 247 (citations omitted). At the close



                                               9
of the State’s case-in-chief, McGarvey’s trial counsel moved for a directed verdict, arguing

the following:

       The State has failed in its efforts to establish or identify a weapon which
       caused the deaths of these individuals. There is no physical evidence which
       connects Mr. McGarvey in any respect to the events with which he is charged.
       The–frankly, the only evidence presented to this court is the testimony of two
       highly incredible individuals whom the State itself has impeached in regard to
       their credibility.

              So, Your Honor, there is no evidence at this time that would warrant
       this matter being submitted to the jury for its consideration.

By moving for a directed verdict based on insufficiency of the evidence after the State

concluded its case-in-chief, McGarvey preserved the issue for appeal.

¶16    Turning to McGarvey’s argument, we begin by addressing the case law upon which

McGarvey relies as a basis for his assertion that insufficient evidence existed to support his

conviction—specifically, because Armstrong’s and Edwardson’s testimony was not

corroborated by any independent evidence. McGarvey directs us to federal case law, arguing

that “[c]ourts in the United States generally refuse to allow a conviction based solely on

testimony that a defendant confessed.” McGarvey first cites Opper v. United States (1954),

348 U.S. 84, 93, 75 S.Ct. 158, 164, 99 L.Ed. 101, 109, for the proposition that a defendant’s

confession may only serve as the sole basis for a conviction if the prosecution presents

sufficient independent corroboration supporting the essential facts of the confession to justify

a jury inference of its truth. As McGarvey notes, a decade later the Court explained the

reasons for holding confessions to a stricter standard in Escobedo v. Illinois (1964), 378 U.S.

478, 488-89, 84 S.Ct. 1758, 1764, 12 L.Ed.2d 977, 985: “We have learned the lesson of

                                              10
history, ancient and modern, that a system of criminal law enforcement, which comes to

depend on the ‘confession’ will, in the long run, be less reliable and more subject to abuses

than a system which depends on extrinsic evidence independently secured through skillful

investigation.” In United States v. Lopez-Alvarez (9th Cir. 1992), 970 F.2d 583, 589, 592,

the Ninth Circuit developed a two-pronged test to address the problem of false confessions

by requiring adequate corroboration of a defendant’s admissions. The first prong of the

Lopez-Alvarez test instructs the State to “introduce sufficient evidence to establish that the

criminal conduct at the core of the offense has occurred,” while the second prong instructs

the prosecution to “introduce independent evidence tending to establish the trustworthiness

of the admissions, unless the confession is, by virtue of special circumstances, inherently

reliable.” Lopez-Alvarez, 970 F.2d at 592. McGarvey correctly notes that Montana law

encompasses the first prong of the Lopez-Alvarez test, but not the second prong. See §§ 45-

5-111 and 46-16-215, MCA. McGarvey urges this Court to adopt the second prong—that

is, require independent, corroborating evidence to establish the trustworthiness of a

defendant’s alleged extrajudicial confession.

¶17    We conclude that McGarvey’s reliance on Lopez-Alvarez, as well as Opper and

Escobedo, is misplaced. While these cases are useful for understanding why a confession

obtained by law enforcement should be regarded with caution, they are inapposite to the

circumstances of McGarvey’s case. The Supreme Court and Ninth Circuit discussions that

McGarvey cites deal with the trustworthiness of the defendant’s confession when obtained

by law enforcement, opposed to the reliability of a lay witness testifying to a defendant’s

                                             11
confession. This distinction is important because of the policy reasons behind the federal

decisions. “The requirement of corroboration [where the defendant has confessed to law

enforcement] arises from the high incidence of false confessions and the resulting need to

prevent errors in convictions based upon untrue confessions alone.” Lopez-Alvarez, 970 F.2d

at 589 (citation omitted). McGarvey does not ask this Court to address the reliability of a

statement he made to the police, but rather, the credibility of two prosecution

witnesses—both of whom did not want to come forward—claiming to have heard McGarvey

confess. Because we conclude that the federal case law on which McGarvey relies is

inapposite, we do not address the question of whether to adopt the second prong of the

Lopez-Alvarez test.

¶18    Although we distinguish the federal case law on which McGarvey relies, we are still

left to decide whether the District Court appropriately denied McGarvey’s motion for a

directed verdict given the evidence presented at trial. Viewing the evidence in a light most

favorable to the prosecution, we must determine whether “any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.” Giant, ¶ 9

(citations omitted).

¶19    We conclude that the State provided sufficient evidence for a trier of fact to have

determined McGarvey’s guilt beyond a reasonable doubt. In addition to Armstrong’s and

Edwardson’s testimony that McGarvey confessed to the murders, the State presented the

following evidence at trial: the time of the victims’ deaths; McGarvey’s presence at the

murder scene; witness testimony that McGarvey was angry with Grant at the time of the

                                            12
homicides; testimony from Sanchez and Lopez, who interacted with McGarvey at the murder

scene; and testimony from Armstrong’s mother and Edwardson’s sister that the two men

appeared distraught by McGarvey’s confession. The jury, not this Court, determines the

credibility of trial evidence.

               “As this Court has held many times over, the jury is the fact finding
       body in our system of jurisprudence, and its decision is controlling. The jury
       is free to consider all the evidence presented and to pick and choose which of
       the witnesses it wishes to believe. If sufficient testimony was introduced, as
       well as exhibits to justify the jury’s findings, then its conclusions will not be
       disturbed unless it is apparent there was a clear misunderstanding by the jury
       or that there was a misrepresentation made to the jury.”

State v. Lucero (1984), 214 Mont. 334, 338, 693 P.2d 511, 513 (quoting State v. Swazio

(1977), 173 Mont. 440, 445, 568 P.2d 124, 127).

¶20    The State’s trial presentation involved myriad evidence, which taken as a whole

implicated McGarvey’s guilt. McGarvey had the opportunity to refute the State’s case with

opposing evidence. The jury found the State’s case more compelling. Having reviewed the

record, we hold that a rational trier of fact could have found McGarvey guilty beyond a

reasonable doubt. We affirm the denial of McGarvey’s motion for directed verdict.

¶21    Affirmed.


                                                   /S/ W. WILLIAM LEAPHART


We concur:


/S/ KARLA M. GRAY
/S/ JOHN WARNER

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/S/ BRIAN MORRIS




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