Submitted on Briefs: November 8, 2018
District Court of the Fourth Judicial District, In and For
the County of Missoula, Cause No. DC 15-126 Honorable John W.
Larson, Presiding Judge.
Appellant: Chad Wright, Appellate Defender, Kristina L. Neal,
Assistant Appellate Defender, Helena, Montana
Appellee: Timothy C. Fox, Montana Attorney General, Michael
L. Fanning, Assistant General, Helena, Montana, Kirsten H.
Pabst, Missoula County Attorney, Brian C. Lowney, Deputy
County Attorney, Missoula, Montana
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
Internal Operating Rules, this case is decided by memorandum
opinion and shall not be cited and does not serve as
precedent. Its case title, cause number, and disposition
shall be included in this Court's quarterly list of
noncitable cases published in the Pacific Reporter and
Appellant Macio Norveil Brooks (Brooks) appeals his
conviction for failure to register as a violent or sexual
offender following jury trial in the Fourth Judicial District
Court, Missoula County. We affirm in part, reverse in part,
and remand for entry of amended judgment.
Brooks was arrested for failure to register as a violent or
sexual offender following a stop by Officer Volinkaty of the
Missoula Police Department in 2015. Brooks was required to
register pursuant to his 1998 adjudication in a Minnesota
youth court of committing a sexual offense. Brooks registered
in Montana as a sexual offender from 2007 to 2014. During
that time, Brooks was convicted twice in Minnesota for
failing to register as a predatory offender.
On February 15, 2015, Brooks and N.M., who Brooks claimed was
his common law wife, were walking down Brooks Street in
Missoula between 1 and 2 a.m. after leaving a restaurant. The
Missoula Police Department received a call from someone at
the restaurant who observed N.M. had bruises on her face and
legs and was wearing only underwear, a bra, a coat, and
shoes, but no pants. The caller had overheard Brooks say to
N.M. that, had her outfit been more "on-point,"
they would have made more money. Concerned about sexual
trafficking, Volinkaty located the couple to perform a
Volinkaty pulled up behind the couple on Brooks Street in his
patrol car with his lights flashing, but no siren. He asked
Brooks for his name and inquired whether Brooks and his
"lady" would talk to him "real quick."
Volinkaty assured the couple that they were "not under
arrest." Volinkaty explained that someone at the
restaurant had called police to perform a welfare check on
the couple, and Brooks responded that they were
"homeless." N.M., still dressed in only
underclothes and a coat, asked what the problem was. Brooks
put his hand over her mouth and attempted to quiet her,
saying "shhh, shhh." N.M. stated the couple had not
been at the restaurant. Volinkaty asked whether they had
family in town. Volinkaty then asked N.M. if he could speak
with her while Brooks spoke to his partner, Officer
O'Dell (O'Dell), who had just arrived at the scene.
N.M. voluntarily walked a few steps away with Volinkaty while
he reiterated that she was "not in any trouble." He
asked whether N.M. was safe with Brooks, and N.M. replied she
was "fine" and "more than safe" with
Brooks. After a few more minutes of discussion, N.M.
re-joined Brooks, who was speaking with O'Dell and
another unidentified officer.
While Volinkaty returned to his patrol car to determine
whether N.M. was listed on any prostitution websites,
O'Dell asked Brooks what he and N.M. were doing, and
stated that he was not accusing Brooks of doing
"anything illegal, anything like that." The
officers learned that Brooks was registered as a sex offender
in Great Falls, and that he had been in Missoula about one
month, without registering. One of the officers stated that
Brooks had three days to register in a new county, not one
month. Brooks stated that he did not know he had to register.
Volinkaty then again asked to speak with N.M. alone,
inquiring how long she had been with Brooks and how they met.
Volinkaty confirmed from N.M. that the couple had been in
Missoula for one month. Volinkaty reiterated that he just
wanted to help her. N.M. again terminated her interaction
with Volinkaty and re-joined Brooks. Shortly thereafter, the
officers arrested Brooks for failing to register as a sex
offender. Brooks was handcuffed and placed in the back of a
In the District Court, Brooks filed a motion to suppress the
statements he made to the officers on the ground that a
Miranda warning was required at the outset of their
encounter. At the suppression hearing, the District Court
reviewed videos of the parties' interactions recorded
from the officers' dashboard and body cameras. The court
found that the officers' questioning was not a custodial
interrogation requiring a Miranda warning, and
denied Brooks' motion.
Brooks moved the District Court to prohibit the State from
offering evidence of his past convictions for failing to
register, and sought to offer a defense of confusion.
Ultimately, after preliminary rulings, the District Court
permitted Brooks to offer the defense, but also ruled
Brooks' past convictions would be admissible for the
State to counter the defense. The court further ruled it
would take judicial notice of the ...