No. 14421
I N THE SUPREME C W OF THE STATE OF M3N?1ANA
O
1979
THE STATE OF MJNTANA,
Plaintiff and Respondent,
-vs-
TRAVIS EEOLLIDAY,
Defendant and Appellant.
Appeal froan: District Court of the Thirteenth Judicial D i s t r i c t ,
Hon. Charles Luedke, Judge presiding.
Counsel of Record:
For Appellant:
Reno and Dolve, Billings, mntana
J m s A. Reno argued, Billings, mntana
a e
For Respondent:
IEon. Mike Greely, Attorney General, Helena, mntana
Mary B. Troland, Assistant Attomey General, argued and
Marc Racicot, Assistant Attorney General, appeared,
H e l e n a , mntana
James Seykora, County Attorney, appeared, Hardin, mntana
Submitted: April 30, 1979
Decided: IG 2 0
U 1979
Filed: WG 2 0 1979
Mr. Justice John C. Sheehy delivered the Opinion of the Court.
The defendant in this matter appeals from a judgment entered
on April 3, 1978 by the District Court, Thirteenth Judicial
District, Big Horn County, upon a jury verdict of guilty of
the crime of robbery.
Defendant was originally tried with three other defendants
in October 1975 for the robbery and homicide of Monte Dyckman,
a Safeway store employee in Hardin, Montana. The facts
surrounding those crimes have been recited in detail by this
Court elsewhere. See, State v. Fitzpatrick (1977),
Mont . , 569 P.2d 383, 34 St.Rep. 736. Therefore, for
purposes of this appeal, they need not be exhaustively
recounted here.
Briefly, the evidence adduced at defendant's trial
demonstrated he and four other individuals met in a Billings
bar on April 5, 1975, and discussed robbing the Safeway
store in Hardin, Montana. Defendant then accompanied the others
to a home on the west side of Billings, where further plans for
the robbery were developed. Defendant then requested a ride to
Hardin with one of the participants for himself and two female
companions. The other men drove to Hardin in a second car.
Arriving in Hardin, the men left the girls at a local bar
at defendant's request and then drove around the town to ascertain
the location of the Safeway store and the drive-in bank where the
store's receipts for that day would most likely be deposited.
This accomplished, they returned to the bar, where one of the
men, prompted by defendant's remark that they did not have tape
to bind the hands or cover the mouths of the intended victim or
victims, left to get some rope. When he returned, the group
separated, the defendant and two others going in one car, and the
remaining two men going in the other. By this time, the evidence
showed defendant had obtained a gun.
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The two g r o u p s t h e n p r o c e e d e d t o t h e Safeway s t o r e
where t h e y i n t e n d e d t o w a i t u n t i l t h e s t o r e c l o s e d a t 10:OO
p.m. During t h i s t i m e d e f e n d a n t and o n e o f t h e o c c u p a n t s of
t h e c a r c u t t h e r o p e i n t o p i e c e s which w e r e g i v e n t o t h e two
men i n t h e o t h e r c a r . When t h e s t o r e c l o s e d , t h e s t o r e
manager and Monte Dyckman e a c h d r o v e o f f i n h i s own c a r ,
d e f e n d a n t and h i s companions f o l l o w i n g Dyckman and t h e o t h e r
men f o l l o w i n g t h e s t o r e manager.
A s soon a s i t became a p p a r e n t t h e s t o r e manager d i d n o t
have t h e d e p o s i t of t h e d a y ' s r e c e i p t s , t h e men went t o t h e
d r i v e - i n bank t o a w a i t t h e a r r i v a l o f Monte Dyckman. D e f e n d a n t
and h i s companions, s e e i n g Dyckman t u r n i n t o t h e b a n k ,
r e t u r n e d t o B i l l i n g s , d e f e n d a n t r e m a r k i n g t h e men i n t h e
o t h e r c a r would g e t Dyckman.
Defendant and h i s companions a r r i v e d a t t h e w e s t s i d e
B i l l i n g s h o u s e a t a p p r o x i m a t e l y 2:00 a.m., A p r i l 6 , 1975
and a w a i t e d t h e a r r i v a l o f t h e o t h e r two members o f t h e
group. E v e n t u a l l y o n l y o n e r e t u r n e d and i n d i c a t e d t h e
r o b b e r y had i n f a c t o c c u r r e d , b u t v e r y l i t t l e money was
taken. Xonte Dyckman was d i s c o v e r e d l a t e r t h a t d a y , s h o t t o
death.
On May 20, 1975, t h e S t a t e o f Montana f i l e d an i n f o r m a t i o n
c h a r g i n g t h e d e f e n d a n t and h i s f o u r companions w i t h d e l i b e r a t e
h o m i c i d e , a g g r a v a t e d k i d n a p p i n g , and r o b b e r y . A joint t r i a l
w a s h e l d i n O c t o b e r 1 9 7 5 , and two o f t h e f o u r d e f e n d a n t s f i n a l l y
t r i e d w e r e found g u i l t y o f a l l t h r e e c o u n t s , w h i l e d e f e n d a n t
and t h e r e m a i n i n g p a r t i c i p a n t were found g ~ i l t y n l y o f t h e
o
robbery count. Upon a p p e a l , t h i s C o u r t i n d i c a t e d t h e d e f e n d a n t s
s u f f e r e d p r e j u d i c e from b e i n g t r i e d j o i n t l y and c o n c l u d e d t h a t
t h e j u r y had been i m p r o p e r l y and i n a d e q u a t e l y i n s t r u c t e d . State
v. F i t z p a t r i c k , 569 P.2d a t 393, 395. W e t h e n r e v e r s e d and
remanded f o r a new t r i a l a s t o a l l d e f e n d a n t s . 569 P.2d a t
396.
On November 2 1 , 1977, a n amended i n f o r m a t i o n was f i l e d
c h a r g i n g t h e d e f e n d a n t w i t h t h e crime o f r o b b e r y . A pretrial
motion t o d i s m i s s a s s e r t i n g d e f e n d a n t was b e i n g s u b j e c t e d t o
d o u b l e j e o p a r d y was made and d e n i e d . A t t r i a l , t h e following
was r e a d t o t h e j u r y p r i o r t o t h e t a k i n g o f any e v i d e n c e :
"Counsel o f r e c o r d s t i p u l a t e and a g r e e t h a t t h e
f o l l o w i n g f a c t u a l s i t u a t i o n may be p r e s e n t e d t o t h e
j u r y without r e q u i r i n g f u r t h e r proof o r foundation:
"On o r a b o u t t h e l a t e n i g h t h o u r s o f A p r i l 5 , 1975,
Monte Dyckman, who was t h e n an employee o f t h e S a f e -
way S t o r e o f H a r d i n , Montana was robbed o f t h a t
store's receipts.
"During t h e c o u r s e o f s a i d r o b b e r y , Monte Dyckman
w a s k i l l e d by b e i n g s h o t i n t h e back o f t h e head by
a . 4 5 a u t o m a t i c handgun t w i c e a f t e r b e i n g bound w i t h
h i s hands b e h i n d h i s b a c k .
" A t t h e s c e n e o f t h e h o m i c i d e a p p r o x i m a t e l y 12
m i l e s w e s t o f H a r d i n , Montana, i n t h e a r e a g e n e r a l l y
known a s T o l u c a I n t e r c h a n g e , t h e r e w e r e two s p e n t . 4 5
c a l i b e r s h e l l c a s i n g s found on t h e ground a p p r o x i -
m a t e l y 120 f e e t t o t h e r e a r of t h e Dyckman v e h i c l e ,
and two s p e n t . 4 5 c a l i b e r a u t o m a t i c s h e l l c a s i n g s
found i n t h e Monte Dyckman v e h i c l e .
"On J u n e 27, 1 9 7 5 , a p e r s o n by t h e name o f Gary Eugene
Radi was a r r e s t e d i n c o n n e c t i o n w i t h t h e r o b b e r y o f
Monte Dyckman i n R a w l i n s , Wyoming; upon a s e a r c h of
h i s v e h i c l e u n d e r t h e r e a r s e a t p o r t i o n o f s a i d motor
v e h i c l e w a s found a s p e n t .45 c a l i b e r s h e l l c a s i n g .
Upon e x a m i n a t i o n by t h e F e d e r a l Bureau o f I n v e s t i -
g a t i o n L a b o r a t o r y i n Washington, D . C . , it was found
t h a t t h e s h e l l c a s i n g from t h e Radi v e h i c l e had been
f i r e d by t h e s a m e gun which f i r e d t h e s h e l l c a s i n g s
found a t t h e murder s c e n e .
" T h e r e have been two p r e v i o u s t r i a l s , o n e a g a i n s t
Gary Eugene Radi and a n o t h e r a g a i n s t B e r n a r d James
Fitzpatrick. Gary Eugene Radi was found n o t g u i l t y
a l t h o u g h B e r n a r d James F i t z p a t r i c k was found g u i l t y
o f D e l i b e r a t e Homicide, Aggravated Kidnapping and
Robbery. A t t h e Radi t r i a l t h e w i t n e s s e s , Cindy
Morgan, I v a Lee F i n c h , Edwin Bushman and C h r i s t i n e
F e t t e r s d i d n o t t e s t i f y , although t h e p r i o r testimony
o f F i n c h and Bushman was r e a d i n t o t h e r e c o r d . "
During t h e p r e s e n t a t i o n o f e v i d e n c e a t d e f e n d a n t ' s t r i a l ,
C h r i s t i n e F e t t e r s d i d t e s t i f y and r e l a t e d t o a p a r t i c u l a r
c o n v e r s a t i o n which t o o k p l a c e i n h e r p r e s e n c e between t h e i n d i v -
i d u a l s involved i n t h e robbery/homicide. The c o n v e r s a t i o n
c o n c e r n e d t h e a l l e g e d e v e n t s o f A p r i l 5 , 1975. She s a i d , when
asked if one of the parties to the incidents of that date
(Radi) said anything else about the alleged crime, "About
the only other thing that I can really recall was that he
said, 'The crazy son-of-a-bitch [Fitzpatri~k]blew his [Dyckman'sl
head off.'" Defense counsel immediately objected, whereupon
the trial judge and counsel retired to chambers. In chambers,
defense counsel moved for a mistrial and the motion was
denied. Defense counsel renewed his objection at the close
of the State's evidence and the motion was again denied.
Defendant was subsequently convicted of robbery and
sentenced to a term of forty years in the State Prison.
The defendant makes three basic claims in this appeal.
First, he argues that his retrial on the robbery count has
placed him in double jeopardy contrary to federal and state
constitutional inhibitions. Second, he argues the testimony
of Christine Fetters regarding Gary Radi's statement was so
prejudicial that the District Court's denial of a mistrial
was reversible error. Finally, defendant contends the
evidence does not sufficiently corroborate the testimony of
one of the participants in the activities of April 5, 1975,
Edwin "Luke" Bushman.
The question posed by defendant's first claim has been
presented to this Court and answered in defendant's first
appeal, State v. Fitzpatrick, 569 P.2d at 395. The issue as
framed in that appeal was whether the conviction of defendant
should be reversed and the charges against him dismissed on
the grounds that the jury was inadequately instructed on the
applicable law and returned inconsistent verdicts. 569 P.2d
at 387. In arguing for dismissal, defendant in that appeal
asserted the jury verdict that defendant was not guilty of
deliberate homicide, and aggravated kidnapping also meant the
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jury was finding the defendant was not guilty of robbery.
Defendant based this contention, there as here, upon the
ground that the State had proceeded to prosecute under the
felony murder rule and under that theory, robbery was a
necessary element of the other two crimes. We rejected
defendant's requested relief of remand and dismissal and
instead remanded for a new trial. 569 P.2d at 396.
By asking, in this appeal, to construe the verdicts as
acquittal on all counts, thus barring retrial on double
jeopardy considerations, defendant is presenting in essence
the same issue we have previously decided. The difference
in the two arguments is superficial, not substantive. It is
well established in Montana that where a decision has been
reached by this Court on a particular issue between the same
parties in the same case such decision is binding on the
parties and courts, and cannot be relitigated in a subsequent
appeal, subject to certain exceptions not pertinent here.
Belgrade State Bank v. Swainson (1978), Mont . I
578 P.2d 1166, 1167, 35 St.Rep. 549; State v. Zimmerman
(1977), Mon t . , 573 P.2d 174, 177, 34 St.Rep.
1561; see also State v. Coleman (1979), Mont . I
P.2d , 36 St.Rep. 1134, (No. 14448, decided June
20, 1979). The defendant is bound by our previous determination
that defendant is not entitled to a dismissal of all charges.
The defendant is thus in the position of a defendant in a
criminal proceeding who has had a judgment of conviction reversed
on appeal for errors in the proceedings. In such a case, it is
well established a retrial does not constitute double jeopardy.
United States v. Ball (1896), 163 U.S. 662, 16 S.Ct. 1192, 41
L.Ed 300; Green v. United States (1957), 355 U.S. 184, 78
S.Ct. 221, 2 L.Ed.2d 199; State v. Ellsworth (1962), 141 Mont.
-6-
78, 375 P.2d 316. This includes a reversal for errors in
the instructions. United States v. Tateo (1964), 377 U.S.
463, 84 S.Ct. 1587, 12 L.Ed.2d 448; Forman v. United States
(1960), 361 U.S. 416, 80 S.Ct. 481, 4 L.Ed.2d 412.
Defendant next claims the testimony of Christine Fetters,
given the stipulation concerning the crime involved, was
clearly irrelevant and prejudicial, and should have resulted
in a mistrial. Defendant places reliance upon this Court's
decision in State v. Williams (1977), - Mont . , 570
P.2d 578, 34 St.Rep. 1116, declaring the admission of prejudicial
and irrelevant evidence is a causefor mistrial. In Williams,
the admitted evidence was clearly irrelevant--it indicated
the defendant's involvement in a drug sale and resulting
debt, such debt later giving rise to an altercation leading
to defendant being charged with intimidation. 570 P.2d at
579. Clearly, the fact of the drug sale had no probative
value as to the fact of intimidation and thus was not relevant.
In the present case the testimony of Christine Fetters
concerning Gary Radi's statement was relevant for impeachment
purposes. Radi had testified in defendant's trial denying
any involvement in the commission of the crime. Edwin
-
Bushman, the prosecution's main witness, testified Radi was
a participant in the crime. Thus the credibility of both
Radi and Bushman was at issue and Fetters' statement impeached
the credibility of Radi. As such, the statement was relevant
and therefore admissible. Rule 401, M0nt.R.Evi.d.
Moreover, it does not appear to be so prejudicial as to
warrant a new tr4al. The basis for determining whether an
erroneous admission of testimony constitutes justification
for reversal is a showing by defendant that prejudice resulted
from the testimony and that his substantial rights were thereby
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affected. State v. Bentley (1970), 155 Mont. 383, 472 P.2d
864, 875; State v. Hay (1948), 120 Mont. 573, 194 P.2d 232,
237; section 46-20-702 MCA. In this case, a stipulation was
read to the jury stating the nature of the crime committed
and the disposition of other prosecutions stemming from that
crime. It clearly indicated a murder had taken place and
that Bernard James Fitzpatrick was convicted of that crime.
Following the motion for mistrial, the District Court ordered
that no further references to the murder of Monte Dyckman
should be made. No further testimony on that subject occurred.
Finally Christine Fetters was thoroughly cross-examined and
indicated she had the impression defendant was not involved
in the murder.
Unlike the situation involved in Williams, supra, where
the jury had no hint that a drug sale was involved until the
offending testimony was uttered, here the jury knew murder had
been committed and who had been convicted for it. Defendant
has not met his burden of affirmatively showing prejudice.
State v. Walker (1966), 148 Mont. 216, 419 P.2d 300, 304.
Without such a showing, the denial of a mistrial does not
constitute reversible error. See, State v. Lave (19771,
Mont . , 571 P.2d 97, 34 St.Rep. 1298.
Defendant finally claims that there is absolutely no
corroborating evidence of any nature of Bushman's testimony,
meeting the standards set by this Court and the statutes. section
46-16-213 MCA provides:
"A conviction cannot be had on the testimony of
one responsible or legally accountable for the
same offense,. . . unless the testimony is
corroborated by other evidence which in itself and
without the aid of the testimony of the one
responsible or legally accountable for the same
offense tends to connect the defendant with
the commission of the offense. The corroboration
is not sufficient if it merely shows the commission
of the offense or the circumstances thereof."
This Court in State v. Cobb (1926), 76 Mont. 89, 245
P. 265, 266, set forth the general rules for evaluating corrobora-
tion of accomplice testimony:
"(a) The corroborating evidence may be supplied
by the defendant or his witnesses.
"(b) It need not be direct evidence--it may be
circumstantial.
"(c) It need not extend to every fact to which
the accomplice testifies.
"(d) It need not be sufficient to justify a
conviction or to establish a prima facie case
of guilty.
"(e) It need not be sufficient to connect the
defendant with the commission of the crime; it
is sufficient if it tends to do so.
"(f) Whether the corroborating evidence tends
to connect the defendant with the commission of
the offense is a question of law, but the weight
of the evidence--its efficacy to fortify the
testimony of the accomplice and render his story
trustworthy--is a matter for the consideration
of the jury."
The corroborating evidence must show more than a mere opportunity
to commit the crime. State v. Coleman (1978), Mont . I
In his first appeal defendant also challenged the sufficiency
of the corroborating evidence. State v. Fitzpatrick, 569 P.2d
at 393. This Court held that the testimony of Iva Lee Finch,
Cindy Morgan, Carol Braach, Raleigh Kraft, Jr., Ronald Potts,
and Lyle Doane sufficiently corroborated the testimony of Edwin
Bushman. 569 P.2d at 394. In defendant's retrial, the same
individuals gave essentially the same testimony as in the first
trial. In addition, Christine Fetters testified defendant had
asked Fitzpatrick in early April if he would like to make some
money. Fetters also testified to conversation between Gary Radi
and defendant concerning the robbery.
The total sum of the corroborating testimony does more
than merely show an opportunity to commit the crime and
satisfies the requirements of --
Cobb.
The judgment of the District Court is affirmed.
Justice
We Concur:
Chief Justice
...............................
Justices