*1
MONTANA,
STATE
OF
Respondent,
Plaintiff
v.
Appellant.
GILLHAM, Defendant
HENRY JAMES
No. 82-366.
April
Submitted
1983.
Decided Oct.
Kerry Newcomer, Defender, Roundup N. Public (argued), for and appellant. defendant Greely, Gen., Atty. Helena,
Mike Chris (argued), Tweeten Gen., Helena, Atty. Asst. William A. Douglas, County Atty., Libby, plaintiff respondent.
MR. JUSTICE WEBER the opinion delivered Court. *3 appeals
Defendant from a of attempted conviction deliber- ate in the following jury homicide trial Nineteenth Judicial Court, County. District Lincoln affirm. We Defendant raises following issues review: (1) Did the District Court admit “other crimes” evidence following required procedures? without (2) Is defendant trial ju- entitled to a new on the basis of ror misconduct?
(3) prosecutor’s argument Did the closing violate defend- right ant’s fair trial?
(4) Is the conviction based on insufficient evidence? (5) Did cumulative deny error defendant a fair trial? 1981, 13, On morning of November Jean Nordahl noti- fied the Lincoln County Department Sheriff’s that he had dynamite found a bomb made of several an sticks blasting cap logging electrical of his truck behind the seat Eureka, near was ord- Montana. The bomb removed Lewis, experts Washington, nance of whom Fort one properly, it would have been wired later testified any killing destroying exploded, the truck and the cab of occupants. daughter, Weitz, 24, 1981, Linda Gillham’s
On November Darby, boyfriend, the Lincoln contacted Michael and County Department im- affidavits Sheriff’s and submitted attempted plicating The same Gillham in the homicide. day, pursuant evi- to a warrant uncovered when search home, December arrested. On in Gillham’s was dence attempted charged by information with homicide, as follows: deliberate Attorney County, County Douglas, Lincoln “William A. day charges November, 1981, the 13th that on Montana Highway Eureka, in Lin- #93, Montana South at off U.S. County, com- named Defendant Montana the above coln Attempted Homicide, a the offense of: Deliberate mitted felony constituting are, to-wit: “The facts offense purposely Henry Gillham, Defendant, or “—the James attempt knowingly human be- the death of another to cause pur- Henry say, ing; Gillham did the said James posely knowingly explosives owned into the truck wire operated by purpose kill with Jean Jean Nordahl Nordahl. 45-4-103; 45-5-102, MCA, 1981]”
[§ § May through April tried before a Gillham was presented Gil- at trial indicated evidence - plan $5,000 to earn lham had made no secret of his blowing up Carolyn, by wife, $10,000 from Jean Nordahl’s dynamite. Jean Nordahl Darby when testified that
Linda Weitz and Mike both Septem- arrived in from the west coast first Eureka *4 cap blasting and wires a ber of Gillham showed them dynamite in his truck. Weitz testified claimed to have and gotten into a new business Gillham them “he’d told up.” guy going later, Sometime . . this . He was to blow Carolyn Nordahl, Mrs. met Gillham identified after Weitz up. Nordahl as the the man he intended to wife of blow Darby during Weitz and lived with Gillham their first sev- in eral weeks “[t]his Montana. Weitz testified that mess bombing Nordahl, threats,” with Jean con- the became a topic stant of conversation around the house. She and Darby feared Gillham their and moved into own house about November Darby they
Weitz and testified that on November accompanied ostensibly residence, Gillham to the Nordahl go “poaching” Darby to and deliver some moonshine. and up Weitz in remained car while Gillham went Through they Carolyn window, Nordahl house. saw pass object carry- Nordahl an to Gillham. Gillham returned ing pistol, Ruger a .22 caliber which was later found in his Darby supposed home. He told Weitz he to shoot pistol bury Nordahl with the him in a hole behind the Darby living. house where Weitz and were Because Nordahl home, was not at the trio visited elsewhere and returned log- the Nordahl residence later that afternoon. Nordahl’s ging Again Darby truck was there. Weitz and in remained the car while entered Nordahl house. re-He briefly get pistol, turned he which stuck the waist jacket, jug of his trouser and covered with a and a of moon- shine, which minutes, he carried into the house. In a few Carolyn Gillham, house, Jean Nordahl and Nordahl left guests, where there were a number of and walked into shop building. Carolyn minutes, new After a few emerged shop looking “upset angered.” from the She “smacked tree” A and entered the house. minutes few shop. later, Jean Nordahl and Gillham left the When Gil- Darby truck, lham returned to the Weitz and told Carolyn Nordahl had wanted him shoot Jean Nordahl shop, while as Nordahl leaned over a sol- vent tank. Gillham refused to do so. three returned their homes. Darby evening,
About 10:30 that Weitz and were awak- very Gillham, excited, ened when who was burst into their *5 up! go!” It’s time to Gillham up! Get shouting, house “Get Darby him. testified Darby go to Weitz and ordered very strenu- they object of Gillham and did were afraid him. ously Darby accompany his that to order them to the Nordahl Darby testified that Gillham drove sight off the main road out of property parked and bag, proceeded through he paper a Carrying house. brown shop. the back door of Nordahl’s the woods and entered front office win- Darby guard to stand at the Gillham told dow, by himself twenty he busied for about minutes while point, At Gillham com- truck. one logging Jean Nordahl’s re- too and that he plained big the bomb was dynamite place the bomb behind move some sticks tricky. The bomb wiring seat. He indicated the was driver’s turned a was wired to detonate few seconds after until he usually to do so headlights. on the truck He waited build- spare wife shop. was outside of the His wished dropped piece a he had ing. Gillham also remarked that feet, it, and Darby wire. around Gillham’s tangled located logging his with the pocketed it. Gillham finished business Darby at his home. dropped truck and off they saw Gillham the Darby and that when Weitz testified them, thing go didn’t off.” day, next damn he told “[t]he his Weitz, extremely worried that According to Gillham holding together bomb would fingerprints tape on the experiments with him He a number of give away. conducted he tape, mirrors determine whether egg cartons and and Gillham asked Weitz might fingerprints. have left containing red suitcase Darby Ruger pistol, to hide the a items,” jacket orange other and the fluorescent “some They truck. night he wired the Nordahl had worn the 23, Gillham took the items. On November agreed hide not be pistol but suitcase could jacket back the might Gillham Darby Both feared that found. Weitz and dispensa- they knew too much and harm them because 24, 1981, a.m., contacted ble. At 6:00 November led to Gil- the affidavits which prepared Sheriff’s office and lham’s arrest. Darby’s testimony
Weitz’s and was far in- only criminating against evidence trial. at Jean nineteen-year-old Sonja, Nordahl’s stepdaughter, testified “gravelly-voiced mother man” she identified telephone voice as Gillham had numerous conversations. They occasionally telephone relay used her as to transfer details of Jean Nordahl’s schedule. She recalled on September telephone 1981 her mother received a call afterward, from the “gravelly-voiced Shortly Sonja man.” *6 accompanied Eureka, her into Carolyn mother where slipped Nordahl envelope a manila into a “gunky, green station behind wagon” the Eureka Gil- Cafe and Tavern. lham owned an green old Chevrolet wagon. station Two ac- quaintances of Gillham testified that in the fall of 1981 Gil- lham had money shown them in a envelope. manila told He $5,000 them it was he was being paid to make someone’s up husband “come missing.” Jean Nordahl’s accountant in testified that August Carolyn late Nordahl had $5,000. written two checks for cash totaling Sonja Nordahl testified that she seen although had and mother, heard her Gillham and a friend of Gillham’s dis- cussing Jean home, Nordahl’s murder the Nordahl she never believed serious it. On about November present, when Gillham was saw Sonja her mother car- rying Ruger pistol, Bearcat Sonja but did not it see Finally, thereafter. later night telephoned she Gillham for her mother and him supposed hurry told to “[h]e up get this thing responded done.” Gillham that “[Jean driveway wouldn’t make it out the next Nordahl] morning.” The next morning, Sonja called Gillham again. transcript description conversation, contains her as follows: -
“Q. What was the message you say what did to him? IA. told him he had made out of the ... I house fine him, fine; told had left for work nothing ‘[h]e happened.’ something A. He
“Q. response his to that? said What was ‘Oh, fifteen like, It have off within my gone God! should ” seconds.’ any of information the above Sonja did not communicate fact, testimony, she her In to her stepfather. according she the dis- “hated his But insisted that believed guts.” she serious, but killing Jean Nordahl were cussions about relief.” pathetic were “a form of comic Miller, who and friend of Gillham employee Marvin an Christmas, fall, early him trees testified helped cut kill planning about Jean Nordahl that Gillham talked time, Miller in Oc- everybody.” Gillham told late “all the set,” day passing while and the same tober all “[i]t’s house, Miller, is the Gil- place.” Nordahl’s told “[t]hat Miller, already re- he had lham also told in October that $5,000 $10,000 him Carolyn pay would ceived 13, 1981, after the killing for Jean Nordahl. On November Miller, discovered, told bombing attempt was off,” According set.” go bomb didn’t was all “[i]t “[t]he Miller, Gillham was “scared death.” Gillham, Lyons, testified daughter Another Laurel business,” and that to his “new she had heard Gillham refer away.” He showed get paid “blowing he could someone leaving dynamite Lyons in a recalled Gillham suitcase. *7 suitcase, had a to do. saying job house he the with the returned, Lyons he had been When he Gillham told almost ready to caught; up he the and the wires were “had hood up” been up” dog penned hook when a that “should have evi- girl. he shot the This girl. nearly alerted a Gillham said objection by defense continuing dence was admitted over a crimes” evidence. concerning counsel “other 13, 1981, Lyons on November after also testified that discovered, her, daddy “[y]our Gillham told bomb up.” fucked Moore, No- on daughter,
Linda Tess testified that Weitz’s discovered, 13, 1981, grand- vember after the bomb was her: discussed the matter with father Gillham
177 just “He told me he it and he that didn’t want me - doing think him him bad about about it. And he me told - that he was the one that did it he was the one that set everything.” behind the seat and May guilty 1, On 1982 a returned verdict of on charge attempted of deliberate homicide. The District sixty years Court sentenced Gillham to for that crime and years an additional ten the use a destructive device. designated dangerous appeals. He was a offender. Gillham
I. first issue whether the District Court admitted evi- wrongs crimes, dence acts, of other defendant following required procedures. transcript without The trial objections reflects Gillham’s continuous to the introduction argued of evidence which he could not be admitted without procedures (1979), v. mandated State Just St.Rep. 262, Mont. 602 P.2d 1649. The record estab- procedural requirements lishes notice, that the Just ad- monition and instruction were not satisfied. The State does argue procedures argues that Just It followed. required were not because the District Court properly (1) disputed characterized the evidence as either (2) acts which were not criminal nature or acts which inextricably charged were so related as to the crime to be part parcel it. argues may
The State that acts which not crimes are procedural safeguards be admitted without the of Just. It is portion true that substantial of the evidence was not evi dence of crimes. This ac includes evidence defendant quainted significant portion population of Eureka’s plan Nordahl, his to kill that he called and visited the Nordahl home and in followed Nordahl’s vehicle tending to harm Nordahl. whether the acts criminal But are applicability or not does not resolve the of Just. issue Casagranda Mont., In State v. 637 P.2d St.Rep. 2122, 2127, we stated: *8 along exceptions, general rule, been has
“This 404(b), Mont.R.Evid., which states: codified Rule wrongs, crimes, is admissible or acts of other ‘Evidence person prove show that he order to of a the character may, conformity however, be admissi- It acted in therewith. opportu- proof purposes, motive, as of such ble other identity, plan, knowledge, nity, preparation, or ab- intent, mistake or accident.’ sence of by important language this rule overlooked
“The to ‘other crimes.’ rule is not limited State that the ‘wrongs applies to or acts’ also rule defendant.” added) (emphasis acts of the evidence is of non-criminal The fact that the exempt the evidence admission of does not defendant procedural guidelines in Just. established recognized is entitled to State This Court has charged corpus “present in offense entire delecti of the explana closely cluding and offense matters related to the requirements tory of it . .” rule overrides the . This Riley 413, 649 P.2d State v. 199 Mont. Just. Riley St.Rep. homi a deliberate was physi followed severe of a cide case where the death child including group, by de communal cal abuse members systematic admitted at trial of a Evidence was fendant. extending pattern punishment disciplinary over a of brutal period many death. Evidence before the victim’s months by pattern defend of violence was also admitted show a against group mem other other children of the and ant group against children. We and other the victim bers provided of a continuous the evidence context held that beatings entitled to view de in which the was series of closely to the related fendant’s actions. The evidence explanatory of it. offense and possessed dynamite blast
Evidence that Gillham gun gave Carolyn ing equipment, him a evening urged of November him to shoot Jean Nordahl expío- attempt to wire 12,1981, and that made an earlier squarely sives to Nordahl’s fits ar- vehicle within the rule Riley. act, not, ticulated in Each whether criminal or is in- *9 separably charged. act of related the None the can acts “wholly independent” be characterized as acts. or unrelated (1980), Trombley Mont., 367, 368, See State v. 620 P.2d 37 St.Rep. 1871, Likewise, evidence that Gillham told plan Nordahl, of others his to kill he visited the home, Nordahl followed in- Nordahl’s vehicle tending Riley part to harm is admissible under as corpus charged. of the delicti of the crime All of this evi- provides explanatory jury dence an in context which the was entitled to view the actions of Gillham. The State was present corpus entitled to at trial the entire of delicti the charged, including closely crime this evidence of acts re- explanatory charged. lated and crime The District proce- did Court not admit in evidence the Just violation of requirements. dural argues required that reversal his conviction is Gray in our decision State v. 197 Mont. St.Rep. agree.
P.2d 622. We not do The facts of Gray distinguishable are from the facts of this case. In Gray, the District Court admitted evidence of an com- act days charged. five Here, mitted after the crime none of the disputed subsequent evidence is of acts. It evidence of inseparable Gray charged. acts the crime does re- quire reversal of Gillham’s conviction.
Although Just, the District Court not violate we encourage apply safeguards trial courts liber of Just ally. though may procedures Even of Just re not be quired may given proper case, in a their use be and wise. Especially procedures cases, Just close use of the would procedural safeguards assure fairness defendants. The designed protect unfair those accused crime from surprise punishment. They liberally ap be double should plied to that end.
II. jurors verdict, their exposure defense counsel After the returned coverage polled regarding their to media them merely glanced juror headlines, at some the trial. One presented, sec- the defendant’s case had been but before newspaper juror sum- article which ond had read an entire heard She she either had not marized the State’s case. said reading forgotten judge’s admonition avoid or had reports day given the first The admonition was trial. trial, her mistake not thereafter. She admitted but paper, reading report was accurate and had but said the way opinions her or affected delibera- in no reinforced until the be held Defense counsel asked tions. accuracy or, in the be alterna- of the article could verified requests. tive, denied both moved for mistrial. The court *10 argues be- to a new trial now that he entitled emphasizes juror He that because a of misconduct. cause required conviction, for the vote unanimous verdict is possibility juror she was so that this prejudiced was critical reversal and retrial. is sufficient to warrant prej jurors exposed agree been We that where have may information which udicial and outside inadmissible In Putro v. verdict, is in influenced their retrial order. have (1966), 717, 139, ordered a 410 P.2d we Baker Mont. during negligence where, in action deliberation new trial exposed jurors arising accident, an automobile were been convicted had inadmissible evidence that defendant arising manslaughter We of the accident. for deaths out prejudicial im information was outside stated that where pre rebuttably jury, properly prejudice would be before the purge juror not himself that a could sumed. We also stated declaring by merely did not affect his such that information judgment forming 147, Putro, 147 Mont. at the verdict. pre noted, however, “[t]he 721-22. that 410 P.2d at We testimony may by sumption the use of be rebutted injury prejudice prove jurors facts which that ‘to show ” 147, Putro, at 147 Mont. not not occur.’ or could State v. 721, 508, Jackson citing P.2d at 9 Mont. 24 P. case, single juror In this newspaper who read the article report, testified that it was an accurate and factual “about testimony already same” as the admissible jury. correctly observes, before the As the State there was no evidence before the trial court that the information was prejudicial. juror Indeed the declared that was not and it was no more than a factual account of the State’s Clearly juror case. there was misconduct but that itself does not necessitate As reversal. the Oklahoma court stated (Okla.Cr in Tomlinson v. State App.1976), 554 P.2d 804: jury prejudice [by report exposure] media is al-
“[W]here leged any stage at appeal persua- of trial or the burden of sion is on the defendant convincing show clear and (1) jurors evidence specifically exposed me- (2)were prejudicial to the defendant. reports dia which proof Mere a juror or jury exposed was ac- factual count the trial persua- will not meet this burden sion. added) ’’(emphasis
We hold that Gillham has not met his burden of establish- ing prejudicial nature of the information to which the juror exposed. denying trial court did err in request Gillham’s While mistrial. the trial court was perhaps unnecessarily brusque in releasing before the factual newspaper nature of the account could be veri- fied, it was 2:45 a.m. Defendant could have raised the mat- ter on a motion for new if the trial article been prejudicial.
We no error on find this issue.
III. be remaining may three issues are without merit and disposed of summarily.
First, in argument attorney closing prosecuting dispar- aged testimony a witness whose tended to link Linda Weitz 182 plan the testi- a kill Jean He referred to Nordahl. thirteen-year-old
mony when she was “a tootie little stepdad coming pregnant a with a from shack with girl’s testimony ‘Hippie He this Dave’.” indicated name pre-notice” to the “second been introduced without investigate impossible making State, for the State to relationship moonshine-drinking between “her what existed moonshine-making stepdaddy” defendant.” and “the argues right to a fair trial under now that his Defendant jeopard- Constitutions was United States and Montana improper prosecutor. He ar- remarks ized these appeal, pursuant gues they sec- must be considered on objection despite MCA, 46-20-702, at the absence tion trial. light consider that, in of the entire trial and
We hold single ing strength statement, case, the State’s this concededly boundary comment, of fair outside the gross whole render the trial such a abuse as to constitute Supreme States unfair. Both this Court and the United that while a defendant entitled Court have stated perfect States trial, United he is not entitled to a one. fair (1983); Hastings, 1974, U.S., 96 76 L.Ed.2d v. 103 S.Ct. (1973), 223, 1565, 411 93 S.Ct. States U.S. Brown v. United (1983), Weinberger Mont., 208; v. 665 State 36 L.Ed.2d (1982), St.Rep. 202, 844; State v. Powers 198 Mont. P.2d Hastings, St.Rep. 1363, 989, In 298, 1357, 996. 645 P.2d Supreme rule the harmless error Court noted “ setting errors or de [s] convictions small ‘block aside changed any, having little, if likelihood of fects that have duty reviewing of a [I]t . . . is the the result of the trial’ ignore whole and as a to consider the trial record court including harmless, vio most constitutional errors that are Chapman quoting v. Cali .” . . 103 S.Ct. at lations 87 S.Ct. 17 L.Ed.2d 386 U.S. fornia remaining arguments, his convic two Defendant’s evidence and because be reversed for insufficient tion must error, merit. The case without of cumulative are likewise *12 against overwhelming alleged him is are and the errors insignificant. compels technical and We find no error which reversal.
Affirmed.
MR. CHIEF JUSTICE HASWELL and JUSTICES HAR- RISON and SHEEHY concur. specially concurring: SHEA,
MR. JUSTICE join majority’s agree I result, Ibut do not with all that is said.