No. 14551
IN THE SUPREME COURT OF THE STATE OF MONTANA
1979
STATE OF MONTANA,
Plaintiff and Respondent,
DAVE KEMP,
Defendant and Appellant.
Appeal from: District Court of the Sixth Judicial District,
Hon. LeRoy L. McKinnon, Judge presiding.
Counsel of Record:
For Appellants:
Berger, Anderson, Sinclair & Murphy, Billings, Montana
Richard Anderson argued, Billings, Montana
For Respondents:
Mike Greely, Attorney General, Helena, Montana
Mary B. Troland argued, Helena, Montana
Bruce E. Becker, County Attorney, Livingston, Montana
Submitted: April 30, 1979
Decided: JUL 3 1 9 ~
Filed:
Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.
Defendant appeals from a conviction for sale of dangerous
drugs, methamphetamines, after jury trial in Park County
District Court.
Defendant was charged with selling methamphetamines to
Katherine Schott on March 16, 1977 in Livingston, Montana.
The State's principal witness at defendant's trial was
Ms. Schott, an admitted accomplice, former drug addict and
immunized witness.
The following facts are reconstructed from her testimony.
In March 1977, defendant agreed to sell her $12,000 worth of
methamphetamines and she, being unable to finance the transaction,
contacted various persons to participate in the deal, including
a Bill Knutson from North Dakota. Knutson, according to
Ms. Schott, was to wire $600 to defendant's Livingston bank
account. On March 16, 1977, Ms. Schott flew by chartered
plane from Helena (her home town) to Billings, picked up one
of the participants, then on to Livingston where they checked
into the Sandarosa Motel. She later contacted Robert Logan,
her common law husband, and asked him to join her in Livingston.
During the evening of March 16, defendant allegedly came
to her room with a sample of the drugs to be sold. After
testing for quality, Ms. Schott gave defendant the money and
defendant left, returning a few hours later with a one pound
sack of methamphetamines.
The following day defendant allegedly returned to the
motel room to purchase back an ounce of the drugs for himself.
Ms. Schott left Livingston shortly thereafter, going with
Robert Logan to Bozeman, where she entrusted her share of the
drugs to Timothy VanLuchene for safekeeping. It was through
the subsequent search of VanLuchene's home in Three
Forks that Ms. Schott's involvement with drugs became known
to the police.
After her arrest, Ms. Schott made several statements,
under oath, to the investigative authorities. She did not
implicate the defendant in these early statements, but later
in a deposition before the Park County Attorney she did.
Defendant was arrested and charged with the March 16, 1977
methamphetamine sale. He pleaded not guilty.
At trial, Ms. Schott testified that she had other
drug dealings with defendant during the two months preceding
the methamphetamine transaction. In January 1977, in Livingston,
she allegedly sold a "rock" of cocaine to the defendant and
was paid with the proceeds of a check from Portia Fonda to
defendant. In February 1977, in Helena, Ms. Schott allegedly
purchased a small quantity of amphetamines from the defendant.
Ms. Schott's testimony as to both these events was received
over objection.
Only Robert Logan, Ms. Schott's common law husband and
admitted accomplice to the charge, testified in corroboration
of defendant's involvement in any of these events. VanLuchene
testified that he took possession of a quantity of Ms. Schott's
methamphetamines on March 17, 1977. Richard Daem, a Livingston
banker, testified to the $600 money wire from Knutson of North
Dakota to defendant on March 17, 1977. Other witnesses'
testimony indicated that a deal involving Ms. Schott was made
on the night of March 16, 1977, but defendant was not implicated.
The only other evidence suggesting defendant's complicity
in the March 16 drug deal was Ms. Schott's ledger book and her
address book. Neither document was identified or authenticated
by an independent witness. The ledger book contained a page
which purportedly listed, by code names, the contributors and
their respective shares in the drug purchase. Ms. Schott
-3-
testified that an entry "B. J. will wire $600 to First
Security Bank direct to you" referred to Knutson's money
wire to the defendant. The address book contained the names
of both the defendant and Richard Daem. Daem's name was
incorrectly spelled "Daiem". Daem later testified that the
original transfer from Knutson to the defendant likewise
mispelled his name.
On June 29, 1978, the jury returned a verdict of guilty,
and the defendant was subsequently sentenced to ten years in
prison with five years suspended.
Though defendant has raised other issues, we determine
that as a matter of law the testimony of the accomplices was
not adequately corroborated.
It should be noted at the outset that, insofar as the
record discloses, the State's case against the defendant
was based on statements given by Ms. Schott who turned State's
evidence in exchange for immunity from prosecution. Since
her consent to cooperate stemmed from a desire to avoid
prosecution, she cannot be said to be without motive to
fabricate. This factor, coupled with her status as an admitted
accomplice to the charge, renders the information she provided
particularly suspect.
Section 95-3012 (formerly section 94-7220), R.C.M. 1947,
now section 46-16-213 MCA provides:
"Testimony of person legally accountable. A
conviction cannot be had on the testimony of
one responsible or legally accountable for the
same offense, as defined in 95-2-106, 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."
The sufficiency of evidence necessary to corroborate
accomplice testimony is a question of law. State v. Standley
(1978), Mont. , 586 P.2d 1075, 1078, 35 St.Rep. 1631,
1635; State v. Perry (1973), 161 Mont. 155, 161, 505 P.2d 113,
117. In defining the quantum and character of proof required
to corroborate accomplice testimony, a substantial body of
caselaw has evolved.
To be sufficient, corroborating evidence must show more than
that a crime was in fact committed or the circumstances of
its commission. State v. Keckonen (1938), 107 Mont. 253, 263,
84 P.2d 341, 345. It must raise more than a suspicion of
the defendant's involvement in, or opportunity to commit, the
crime charged. State v. Gangner (1957), 130 Mont. 533, 535,
305 P.2d 338, 339. But corroborative evidence need not be
sufficient, by itself, to support a defendant's conviction or
even to make out a prima facie case against him. State v.
Ritz (1922), 65 Mont. 180, 186, 211 P. 298, 300; State v.
Stevenson (1902), 26 Mont. 332, 334, 67 P. 1001, 1002. C0r-
roborating evidence may be circumstantial (State v. Harmon
(1959), 135 Mont. 227, 233, 340 P.2d 128, 131) and can come
from the defendant or his witnesses. State v. Phillips (19531,
127 Mont. 381, 387, 264 P.2d 1009, 1012.
With these principles in mind, each case must be examined
on its particular facts to determine if the evidence tends,
in and of itself, to prove defendant's connection with the
crime charged.
One accomplice cannot supply the independent evidence
necessary to corroborate another accomplice. State v. Bolton
(1922), 65 Mont. 74, 88, 212 P. 504, 509; 30 Am.Jur.2d
Evidence S1156. Hence, the testimony of Robert Logan, Ms.
Schott's common law husband and admitted accomplice to the
charge, cannot be regarded as corroborative.
-5-
Apart from the testimony of Ms. Schott and Logan, the
accomplices, the State's case consisted of: Sandarosa Motel
records that place Ms. Schott in Livingston on March 16,
1977--the night the deal was allegedly made; VanLuchene's
testimony that he received a quantity of methamphetamines from
Ms. Schott in Bozeman on March 17; the testimony of Daem,
the Livingston banker, that a $600 money wire was effected
from Knutson of North Dakota to the defendant on March 17;
Ms. Schott's ledger book which contained a reference to the
$600 money wire; Ms. Schott's address book which allegedly
contained defendant's code name and phone number and the
banker's name (Daem); and the fact that Daem's name was
mispelled "Daiem" both on the original $600 money wire and
in Ms. Schott's address book.
The motel records and VanLuchene's testimony amount to
no more than evidence relating to the commission and circum-
stances of a crime and do not implicate defendant in the
least. Daem's testimony regarding the $600 money wire depended
for its relevancy upon the testimony of Ms. Schott, an accomplice.
She alone made the connection between the $600 money wire and
the alleged drug deal of the day before. Similarly, the
ledger and address book each depended for their relevancy,
as well as their authenticity, upon the testimony of Ms.
Schott. Documentary evidence which depends for its relevancy
or authenticity upon the testimony of an accomplice will not
suffice as corroboration. "To hold otherwise would be to
say that the accomplice may corroborate himself." Annot.,
96 A.L.R.2d 1185, 1188; People v. Cona (N.Y.App. 1978), 401
N.Y.S.2d 239, 243. The coincidental mispellings of Daem's
name may suggest that Ms. Schott initiated the $600 money
wire, yet no evidence, aside from her testimony, tends to
connect this transaction with the crime.
-6-
Certainly, the contemporaneousness of the money wire
and the alleged drug deal casts a cloud of suspicion over
the defendant. Nonetheless, "where the claimed corroboration
shows no more than an opportunity to commit a crime and simply
proves a suspicion, it is not sufficient corroboration to
justify a conviction upon the testimony of an accomplice."
Standley, 586 P.2d at 1077. It was not the defendant's
burden to prove he had no connection with the crime. The
burden was on the prosecution to produce corroborating
evidence which, of itself and without aid or direction from
the accomplices' testimony, connected the defendant with the
crime charged. People v. Robinson (Cal. 1964) , 38 Cal.Rptr.
890, 907, 392 P.2d 970, 987. Here, the prosecution did not
meet this burden.
Without sufficient corroboration, a conviction that
rests on the testimony of an accomplice cannot stand. Defendant's
conviction is reversed and the cause
Ju
We Concur:
CBief Justice
Justices