*1
Respondent,
MONTANA, Plaintiff
THE
OF
STATE
Appellant.
FORSYTH,
PAUL
Defendant
v. JERRY
No. 80-285.
21,
Oct.
1981.
Submitted
19,
March
1982.
Decided
Rehearing
April
Denied
1982.
Keller Robert Keller & appellant. dant and Atty. argued, Greely, Atty. Tweeten Asst. Gen.,
Mike Chris Atty., Lympus argued, County Helena, 0. Gen., Kalispell, Ted respondent. plaintiff and opinion SHEEHY delivered the MR. JUSTICE Court. Forsyth appeals judgment
Jerry a Paul from of conviction following Forsyth, his Karen a wife, deliberate homicide of Court, District, in the District Eleventh trial Judicial County. Forsyth imprison- received a sentence of Flathead years designated dangerous a ment of 70 and was offender. Kalispell police depart- case, In this bizarre offices of the shooting report Skyline investigated Bowl in ment a at the Kalispell in- 12, December 1979. The about 2:30 a.m. on vestigating met at the front door of the officers were Jerry alley by Douglas Inside, the officers found Richards. lying Forsyth apparently semi-conscious, on the floor. Paul brought Douglas of the officers to Richards the attention body bowling alley, found the counter of the where single gunshot Karen dead of wife, defendant’s pistol, fired, A had not been wound to the head. hand which lying near the victim’s feet. was separate squad placed in cars. and were Richards building found that no one else The officers searched the and complaining present. Forsyth hopsital of a was taken to a was suffering superficial injury. from a He was found to be head no the back of his head but exhibited bruise and laceration on symptoms. serious morning questioned Jerry
The next two officers Paul For- syth shooting about incident. He stated that closing bowling alley night. wife were .the As he jerked to lock the door, started front the door was from his hand from the He outside. turned to warn his wife struck from behind and He knocked unconscious. testified to story the same at trial.
Douglas questioned squad Richards had been in the car at the scene of the crime. He stated he had been in the base- bowling alley “popping” ment of the and had heard a sound thought which he to be a boiler Later, noise. he came when upstairs, he found Karen defendant, dead and the Jerry Paul unconscious. Richards then called the police. January 25,
On Richards was arrested on a charge involving girl of sexual intercourse consent without age Following under the of 16. his arrest, he was further inter- rogated regarding Forsyth. the murder of Karen When granted immunity exchange coopera- Richards was for his respecting prior tion death, Karen’s Richards recanted his *3 story implicated Jerry Forsyth the defendant Paul in the Forsyth. murder of Karen grant
At the trial of Richards testified under a of immunity prosecution Forsyth from the murder, statutory rape charge for which he been arrested, and an charge possession dangerous drugs. additional In testimony begun working he stated that he had for the defen- Jerry Forsyth Skyline dant Paul at Bowl in the summer of Forsyth acquainted. and that he and had become well Forsyth complained longer to Richards that he no loved his wife Karen, but couldnot seek a divorce because an interest in bowling alley Forsyth having was in her name. an af- Debby fair awith woman named Neff, and he wanted to move in with her Christmas. Because of in his wife’s interest family property, Forsyth told Richards that he to kill wanted his wife and asked for Richards, advice on how to do it. who apears obliging person respects, to have been a most in these suggested ways, including staging robbery. several aof kill The discussions on to Karen extended over ways Forsyth he Richards, several months. to told According $40,000 $50,000 it would take to for Richards to kill her In November, himself. late decided to an overdose of try barbiturates on Karen Richards Forsyth. purchased the Seconal and from a drugs, using phenobarbitol, pharmacist, furnished the defendant. later told money Forsyth that the Richards failed because the were not attempt drugs powerful enough. Richards a fake in
Thereupon suggested setting robbery up which Karen Forsyth would be killed. a .22 Forsyth procured caliber snub-nosed revolver. and Richards chose a Forsyth locker in the basement locker room in bowling alley which to hide the gun and the expected fruits of For this robbery. filled out the locker purpose, Forsyth for locker key envelope no. 191 in the name of Greg a bowler who had Phillips, bowled on a team at Bowl. Skyline Richards placed bowling bag and shoes in pair bowling the locker in to order avoid suspi- cion. 9, 1979, On December in the placed gun locker. When Richards arrived at work the next December night, the defendant told him the crime would be committed night. Richards took the from gun locker, in a it wrapped rag, and it to gave was an Forsyth. Richards alcoholic and he drank steadily throughout from a bottle night hidden the basement area of the bowling alley. Although alley usually earlier, closed had been until remaining bar closed at 2:00 a.m. for adjoining several days, pur- portedly vandalism of This stop bowling alley equipment. routine served aas Karen remain in pretext get so the bowling alley could take On “robbery” place. fateful night, bartenders and last left several patrons minutes after 2:00 a.m. Richards and stood at the front window them watching leave. Richards’ made girlfriend a brief about appearance this time. Richards her a gave key *4 and her told to wait for him at his Richards then apartment. went to the basement room, locker the locker and opened it to prepared receive the the proceeds “robbery” and He to the gun. area, returned set several alarm upstairs trip- lights. He went to hide turned off the downstairs wires, and single gunshot get his He and his coat. then heard bottle and alley upstairs the he found to the where returned removing gloves. gun putting and the down leaning against position Forsyth the fallen to a Karen register. near the cash counter signs part body
They life. As no until her showed waited pencil “robbery”, Forsyth barrel of a into the the inserted got holding pistol by pencil, pistol the and, .9 millimeter Forsyth’s fingerprints pistol placed it near on the Karen gloves, pistol body. pair took the her Richards donned For- kill Karen and struck that had used to pushed syth to the head. in the back of the Richards money to com- then collected the from the counter floor and money, gloves, “robbery.” plete He took Thereupon gun them in no. 191. downstairs, and locked locker report “robbery” telephone operator to called police. in this will later There are additional facts which we discuss opinion an in the issue of corroboration of connection with accomplice. guilty and the District Court
The returned a verdict of appeal judgment imposed from which this and sentence arises. overriding issue which we must reverse
There is an judgment to the District Court and remand this cause District the failure of the a new trial. That issue involves probably the crime the elements of Court, accidental, to define given jury. homicide the instructions of deliberate The error in that the was not instructed State concedes statutory also concedes as elements of the crime. It (1981), 545, 625 P.2d Mont., under State v. Lundblade obligated give St.Rep. clear that the trial court it is if is not offered the defense. even one an instruction such er the instructional however, asks us to overlook State, The ground that it was harmless. ror proceeded on sides that in this case both State contends premise commmitted, a deliberate homicidehad been *5 jury question fact the decide was and that the essential for to identity decide, All to contends of the killer. the by crime committed the defen- state, is whether the by showed, as the evidence or an unknown dant State’s assailant. proposition that “at a
Lundblade stands for the
explain
the crime
minimum” the District Court must
or define
jury.
St.Rep.
443.
Lundblade,
548,
for the
Because retried, this case must be we will discuss other appellant purpose issues raised of guidance trial court.
Forsyth contends that there was insufficient cor support testimony roborative evidence in this case to of except immunity given Richards, him, who was otherwise accountable for this crime. (1979), St.Rep. Kemp 1215, Mont.,
In
v.
597P.2d
State
necessary
sufficiency
to cor-
of evidence
we discussed the
accomplicetestimony.
sufficiency
roborate
all,
First of
question
Kemp,
such evidence is a
P.2d at 99 and
of law.
sufficient,
cases cited thereunder. To be
it must show more
than that a crime was in fact committed or the circumstances
suspicion of its commission.It
more than the
must raise
defendant’s involvement or
to commit the crime
opportunity
But the
charged.
evidence need not be sufficient
itself to
support
defendant’s conviction or even to make out a
facie case
him. It
prima
be
against
may
circumstantial and can
Kemp,
come from the defendant or his witnesses.
Keeping these principles, we examine cor- roborative evidence supports Douglas Richards’ testimony.
The Gun *6 that, Richards testified after he in killing, placed gun locker no. 191 in the basement of the bowling with alley along money gloves had been used. He testified that he burned the in the boiler gloves firebox, and melted gun down with an arc-welder in the kept bowling alley equip- ment The repairs. melting gun smoke which generated was noticeable to bowling alley Witness patrons. Lynn Norby went at the Bowl on Skyline 5, 1980. While January there, she said she saw smoke down on the lanes. She went to the desk where was Forsyth because she standing thought on fire place was and talked him. He her, reassured tell- her ing ahead go and bowl because were some doing welding downstairs. Money The
Richards had testified that in taken money “rob- had bery” been deposited him in by locker no. 191. He testified that ten later he days removed from the money locker and hid it in two other in basement, places behind a floor joist, and an oil reservoir behind the pin polishing machine. He spent large bills, denomination which had been hidden the floor behind joist, drinking and gambling. of one dollar bills which had been group hidden in the oil reser- voir became saturated with oil. Richards that he testified gave these bills to who told Richards to avoid suspi- cion, he would send them to the bank with the bowling alley with a receipts cover that his Ball story Jon partner spill- polish ed furniture on them. Jon Ball that he Witness testified oily, remembered the one dollar bills which were and that For- syth polish spilled had told him that furniture had been them. Statements
Defendant’s statutory rape charge, When Richards was arrested Forsyth. Forsyth Kalispell his first call was to went to a at- torney purpose learning bailing what to do about Forsyth Richards out. Richards that when testified failed to previous agreement, him bail out in accordance with their Forsyth’s decided to tell the truth Karen about murder and parents make the best deal he could for himself. Both Douglas regarding Richards testified statements made morning following defendant the Richards’ arrest. William telephone Richards that he testified received a call from Deb- girlfriend, asking Forsyth Neff, the defendant’s if could Forsyth come to talk to them. When he arrived, told the Richards’ that Richards had been arrested for statutory rape provide and that could $1,000 of the necessary $2,500 Doug for bail. then said, “If talks, we will both be in lot more trouble than he is in now.” Doris essentially Richards testified the same but in more She detail. very very stated that nervous and concerned getting Douglas about morning. out when he arrived that She kept saying, get testified that the “We have to him got get out there, we have him out of there if because he *7 going talks we are both to be in a lot more trouble than he is in Forsyth now.” Doris Richards also stated, testified “I Doug gets get completely wish when he out he would out of country.” handwriting expert There was other A evidence. testified printed Greg Phillips envelope, that the name of on the locker compared exemplar when to an taken from could Forsyth. Forsyth poor have been that of Also had a relation- ship weighed with his wife. She was 5’4-l/2” tall and pounds. emotionally She had been disturbed and suicidal over period years prior Debby of to her death. She was hostile to Gary Neff and had threatened her her children. Witness respect Elk Red testified that once told him with attempts: going “If I Karen’s suicide she’s to"do it wish she get would do it and it over with.” also Elk told Red acceptable that divorce was not because of Karen’s in interest bowling alley, purebred the house, the and several valuable dogs show owned. morning killing, requested
On the the officers of For- syth bowling alley. Forsyth gave his consent to search the consent on the not condition officers search the locker area according where, Richards, the evidence of the murder was morning following killing, hidden. Also on the vestigating in- began suspect officer the defendant because he emotionally seemed unaffected his wife’s death. individually, In sum, and taken these items of evidence tend to connect the crime, with and to corroborate the testimony Forsyth quarrels appeal of Richards. with the ef- particularly fect of this evidence, and with statements parents related of Richards. However, his quarrel goes weight to the of the evidence and not to its admissibility.
Forsyth also contends that the court erred its instruc credibility tion to the of an immunized witness. respect testimony The court instructed with of Richards as follows: testimony Douglas ought
“The of M. Richards to be viewed accomplice weighing with distrust because he is an and in his testimony, you are to further consider that he has been granted immunity prosecution.” from Forsyth’s
The court refused offered instruction which jury: would have told the testimony Douglas ought
“The M. Richards to be viewed given exchange with distrust, and because has evidence in immunity prosecution, given by from evidence him and upon testimony particularly other evidence based suspect.” portion Forsyth’s
The last offered instruction is taken language Kemp, supra, opinion from found in our v. State at 98. P.2d *8 in civil 46-16-201, MCA, the rules of evidence section Under actions, criminal unless otherwise are to actions applicable 26-1-303, MCA, criminal Under section in the code. provided to evaluate on how jury to instructions to relating by be instructed jury it is evidence, required an ac- testimony “that on all occasions court proper be with distrust.” viewed ought complice court, no error in the instruction given by We find different from substantially proposed which is not is substantial dif counsel contends there although ference. The of the District Court in this statutory obligation ought cause was to inform the that Richards’ testimony effect to be viewed with distrust. A statement to that simple would best serve the In statutory probably requirement. “the retrial, we would instruction that suggest simple of a accountable for the same crime testimony person ought may be viewed with distrust.” further embellishment Any tend to lend to confusion and obfuscation. also contended that the of the hand testimony the record Jan Beck should be stricken from
writing expert im because his were procedures examining envelope We made suggestive. regard objections permissibly as merely going weight testimony, fur see exclude that evidence in however, any no need to ther trial. enough counsel also contends was not
Forsyth’s given time at the the case. his case to conclusion of argue an This can be avoided in a future trial by express agreement counsel and the court before the argument arrived at between oral making as to the amount of time allotted begins argument. rais- trial, we are for a new other issues
Since remanding ed are not for discussion. by Forsyth germane therefore, judgment
In accordance with this opinion, deliberate homicide against conviction for for a vacated, this cause is remanded to District Court new trial.
MR. CHIEF JUSTICE HASWELL and JUSTICES DA- LY and WEBER concur. dissenting:
MR. JUSTICE SHEA
accomplice testimony
I
sufficiently
do not believe the
*9
as a
law,
corroborated
matter of
and
I
therefore, would
reverse and order the case dismissed. The so-called cor-
roborating evidence in this case falls far short of what the
California court has declared to be insufficient as a matter of
People
(1958),
Cal.App.2d
law. See
v. D’Allesandro
163
On other I with the that the solely jury defendant is entitled to a new trial because the was not on instructed the elements of deliberate homicide. The elements of this offense were not at issue in this case, and the jury failure to instruct the on them was therefore harmless error. prove prove
To deliberate homicide State must that the person charged “purposely knowingly” or killed another. The issue in this case “purposely was not whether the defendant knowingly” or wife, killed'his and the issue was not whether legal justification the defendant had excuse or to kill his wife. “purposely that The evidence was uncontroverted someone or wife, knowingly” killed his issue was not whether .the Forsyth. question The at trial was whether this defendant any way killing. accomplice was in involved with planned testified that he and the defendant the murder and actually that defendant fired the fatal shot. The defendant, the other closing hand, testified that he and his wife were bowling alley night. for the As he started to lock the front jerked door, the door was from his He hand. turned to warn wife, his was struck from behind, and knocked unconscious. And, of course, he denied that he and Richards had planned a murder. setting
At trial, the conclusionof the an instruction forth the accepted by elements of deliberate homicide was the trial paper court, but somehowthis instruction was lost in the shuf- given jury. fle and it was not The defendant at no time brought this to the attention, trial court’s and both the State any argued jury and the defendant case to without homicide, need to refer to the elements of deliberate simply elements the crime were not at The issue of issue. was whether defendant killed wife. jury charge given
Several instructions were on the although of them forth the homicide, deliberate none set elements. Instruction 8 stated that the defendant was ac- no. prove cused deliberate homicide and that State must every the State material Instruction no. 9 stated that fact. prove pur- must that each element of offense done was posely knowingly. or Instruction no. told the voluntary material element of the offense is a act—that is, killing voluntary. “voluntary act of must have been The term jury. certainly act” was Further, defined this case was ground killing not defended that the an acci- either dent or that the not defendant somehow did have state mind to commit the offense. Instruction no. told “purposely knowingly” proved: how the terms or are “Purpose knowledge are manifested cir- *10 Purpose cumstances with the connected offense. and knowledge proved may need not be direct evidence, but be appearing acts, inferred from conduct and circumstances the evidence.” long
This Court has rule adhered to the that will not it reverse a case for a new trial where the trial court failed to in jury pre struct the on a matter of law that unless failure judicial rights appellant. to substantial Section (1965), 46-20-702,MCA; State v. 146 413, 419, Heiser Mont. 407 (1963), 370,373; P.2d State v. 142 377, 393, 382 Bubnash Mont. (9th 1981), 830, P.2d 838. See also McGuinn v. Crist Cir. F.2d 1107.In alibi, McGuinn defen defense was and the gave jury dant asserted that because the trial court (declared impermissible Sandstrom instruction unconstitu (1979),442 v. Montana U.S. S.Ct. tional in Sandstrom 39), 2450, 61 a L.Ed.2d he was to new That in entitled trial. presumes person struction stated that “the law that a intends ordinary voluntary consequences of his acts.” The Ninth Circuit, however, held this to be harmless error instruction jury’s effect on decision. it not have an
because could had been four in the head and shot times The victim had been a very obviously The concluded murdered. Court beyond juror a reasonable could not have found reasonable voluntarily com- that the defendant from the evidence doubt causing the acts the victim’s death without also infer- mitted ring beyond doubt he also committed these a reasonable thing knowingly purposely. here; The acts or same occured Jerry only question was at trial whether killed his setting wife. An instruction forth the elements of deliberate juror’s 'have a homicide would not affected reasonable deliberations. always jury
Although proper in- I been a have stickler ground I a structions, fail to see for reversal on this basis jury only where the issue before the was whether the defen- killing participated in wanted the dant wife. alley jury to believe came into the and that someone him unconscious then his wife. knocked murdered story, jury chose to Richards had different circumstances, believe it. these the failure to instruct Under on the essential elements of the where crime, in issue, were not was error. harmless Although give I the failure an elements instruc- believe here, was fact that the court fail- tion harmless error trial statutory procedure in- to follow the for settlement of ed 46-16-401(4Xd), ignored. MCA, structions, cannot be Section requires reporter’s presence are court when instructions reporter present settled; in- but a court was not when the structions were settled. evening, settled no court
Instructions were late in the but reporter appears parties present. It that both had offered setting offense, forth the elements of but instructions happened no those instruc- there is record of what offered *11 attempting bystander’s And, bill, the trial tions. settle relating these of- court could not recall circumstances “at the fered instructions. He stated that time these discus- place midnight passed court had sions took believes attorneys agree everyone was exhausted.” The could not And, on what had to the offered instructions. happened course, statute, because of the failure to follow the there is no record of what happened.
Before case was morn- argued following ing, parties went record instructions that had been before, settled and the not in- night instructions did clude an elements instruction. Neither the trial court nor that an noticed elements instruction been attorneys omitted.
Had been there a record of the settling instructions night before, Court would have been able, before reading instructions to the jury, to determine that for some reason the elements instruction had been omitted. Court could then have rectified situation an by ordering elements instruction to be The failure of the trial prepared. court to follow the statute certainly contributed to the failure to discover the omission of the instruction, elements and the omission that elements instruction has ultimately led reversal 46-16-401(4Xd) defendant’s conviction. Section was meant to be followed. The trial courts should if do so they want to avoid such results as have occurred here.