State v. Shurtliff

No. 14901
IN THE SUPREME COURT OF THE STATE OF P1lONTANA
1980

STATE OF MONTANA,
Plaintiff and Respondent,
VS.

FRANK ARTHUR SHURTLIFF,
Defendant and Appellant.

Appeal from: District Court of the Fifth Judicial District,
Honorable Frank E. Blair, Judge presiding.
Counsel of Record:
For Appellant:
Jardine and McCarthy, Whitehall, Montana
John Jardine argued, Whitehall, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Mike McGrath argued, Assistant Attorney General,
Helena, Montana
Pat Flaherty, County Attorney, Boulder, Montana

Submitted: February 19, 1980
.
Decided: -2 4 ? q
. 'r%D
Filed: APR 10 1 9 !
Mr. J u s t i c e D a n i e l J. Shea d e l i v e r e d t h e Opinion o f t h e
Court.

The d e f e n d a n t , Frank A . S h u r t l i f f , appeals a Jefferson

County D i s t r i c t C o u r t c o n v i c t i o n f o r d e l i b e r a t e homicide,

r o b b e r y , and t h e f t . The i s s u e s i n t h i s a p p e a l are whether

d e f e n d a n t was d e n i e d a speedy t r i a l and whether t h e S t a t e ' s

case w a s s u f f i c i e n t l y corroborated. W e affirm.

On February 22, 1978, t h e S t a t e f i l e d an i n f o r m a t i o n

a g a i n s t t h e d e f e n d a n t c h a r g i n g him w i t h d e l i b e r a t e homicide,

r o b b e r y , and t h e f t . The d e f e n d a n t ' s t r i a l was s e t f o r J u n e

5 , 1978, b u t by s u b s e q u e n t o r d e r of t h e c o u r t t h e d a t e was

v a c a t e d and t w i c e reset. On J a n u a r y 1 7 , 1979, t h e c o u r t s e t

t h e t r i a l d a t e f o r March 5, 1979. Five days later t h e S t a t e

f i l e d an amended i n f o r m a t i o n which c h a r g e d t h e d e f e n d a n t

w i t h d e l i b e r a t e homicide, a g g r a v a t e d k i d n a p p i n g , r o b b e r y ,

and t h e f t . T r i a l w a s h e l d on March 5, 1979, and t h e j u r y

returned a g u i l t y v e r d i c t t o t h e charges of d e l i b e r a t e

homicide, r o b b e r y , and f e l o n y t h e f t . On A p r i l 6 , 1979,

t h e c o u r t f i l e d i t s judgment and o r d e r s e n t e n c i n g t h e d e f e n d a n t

t o c o n c u r r e n t terms of 75 y e a r s f o r d e l i b e r a t e homicide, 25

y e a r s f o r r o b b e r y , and 1 0 y e a r s f o r f e l o n y t h e f t . The

d e f e n d a n t f i l e d a motion f o r a new t r i a l o r o t h e r r e l i e f , a l l

of which was d e n i e d . Defendant a p p e a l s from t h e u n d e r l y i n g

c o n v i c t i o n s and from t h e t r i a l c o u r t ' s d e n i a l of h i s motion

f o r a new t r i a l .

The s c e n e f o r t h e s e crimes s t a r t e d i n B u t t e a t 2:00 a . m .

a s the bars closed. The d e f e n d a n t and Yvonne Johnson m e t

w i t h t h e v i c t i m , Douglas B a r b e r , o u t s i d e t h e Keyboard Club.

The v i c t i m s u g g e s t e d t h a t t h e y c o n t i n u e t h e i r p a r t y i n g and

t h e y t h e n d r o v e i n t h e v i c t i m ' s a u t o m o b i l e t o a n e a r b y house

where t h e y p a r t i e d f o r a b o u t an h o u r . While a t t h e h o u s e ,

d e f e n d a n t and w i t n e s s Johnson d i s c u s s e d t a k i n g t h e v i c t i m ' s

money. A f t e r l e a v i n g t h e house, t h e t h r e e p e o p l e d r o v e around

town f o r a s h o r t t i m e b e f o r e d e p a r t i n g f o r Elk P a r k .

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 On the way to Elk Park, the defendant and Johnson
revealed to Barber that they planned to take his car and
money, and leave him to die in the cold. Barber became very
frightened and begged the defendant not to let him die. He
attempted to jump from the car, but the defendant grabbed
him and prevented him from escaping. Then Barber began to
cry and continued crying almost all the way to Elk Park.
The defendant, who was driving Barber's car at the
time, left the interstate and drove to a farm in the lowlands
of Elk Park. He stopped the car. Barber handed his wallet
to the defendant and stated, "Take my car and my money.
This is all I got, but don't let me die." The defendant
took Barber's wallet and told him to remove his clothes. The
deceased refused, and the defendant and Johnson removed the
deceased's coat and one boot. A struggle occurred in which

the Barber was beaten across the face. Barber escaped
from the car but his glasses, coat and one boot remained
inside. Barber, who was nearly sightless without his
glasses, ran blindly across a snow-covered field. The
defendant started the car and turned it around, and Johnson
assumed the driver's position and drove away from Elk Park.
Barber's body was recovered in Elk Park a little more than
one week later. He had frozen to death.
The defendant was arrested in Butte, and placed in jail
on February 16, 1978. On February 22, 1978, the State filed
an information which was subsequently amended to charge the
defendant with deliberate homicide, aggravated kidnapping,
robbery, and felony theft. Trial commenced on March 5,
1979. The State's case rested entirely on the testimony of
Yvonne Johnson. The defendant presented no witness in his
own defense. The jury found him guilty of the crimes of
deliberate homicide, robbery, and felony theft.
 Defendant contends first that he was denied his right
to a speedy trial. Second, he contends that the State did
not adequately corroborate the testimony of his accomplice,
Yvonne Johnson. In this respect, defendant further argues
that Yvonne Johnson's testimony, because it is accomplice
testimony, cannot be used to establish either the corpus
delecti of the crimes or his intent to commit the crime. His
last assignment of error is a vague contention that the court
erred in instructing the jury.
A speedy trial question must, of course, be resolved by
balancing the length of the delay, the reason for the delay,
the defendant's assertion of his rights, and the degree of
prejudice to the defendant. See State v. Puzio (1979),
Mont. , 595 P.2d 1163, 36 St.Rep. 1004. Barker v. Wingo
(1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101. The
defendant was incarcerated on February 16, 1978, but he was
not brought to trial for over a year. This interim is clearly
long enough to require the State to explain the reason for
the delay and to show the absence of prejudice to the defendant.
See Puzio, supra. The defendant made a timely assertion of
his right to a speedy trial by filing motions to dismiss on
December 5, 1978, and on the opening day of trial. Thus,
our analysis focuses on the reason for the delay and the
degree of prejudice suffered by the defendant.
The defendant's trial occurred 382 days after his
arrest on February 16, 1978. The trial was initially set
for June 5, 1978, but this date was vacated when the defendant
moved for a continuance in order to interview new witnesses.
The State sent a letter to the defendant asking him whether
July 10, 1978 was a suitable date for trial. However, this
date became impracticable when the defendant filed a motion
for substitution of the trial judge. On June 21, 1978,
the court held the hearing on defendant's motion. However,
at approximately the same time defendant's first court-appointed
counsel resigned and another court-appointed counsel was
assigned to the case. The trial court reset the trial date
for September 20, 1978, which was apparently an attempt to
give new defense counsel time to prepare for tirial.
A further delay resulted when defendant's counsel was
substituted a second time. Defendant's second counsel ran
for and was elected county attorney. In January 1979, John
Jardine and Jack McCarthy were appointed counsel. At a
hearing on January 10, 1979, the State informed the court
that it was ready to go to trial and asked the court to set
a firm date. Trial was reset for March 5, 1979, the date on
which trial actually commenced.
We do not believe the delays caused by defendant's
substitution of counsel should be attributed to the State.
There is no mechanical test for determining whether the
State or the defendant should be charged with any given
pretrial delay. State v. Carden (1977), - Mont . , 566
P.2d 780, 785, The delays here appear to be the result of
personal actions taken on the part of defense counsel rather
than result of the justice system's failure to provide the
defendant with effective counsel. Under these circumstances,
the delay should not be weighed against the State.
A major delay chargeable to the State occurred when
Yvonne Johnson, the State's most important witness, left the
United States in November 1978. On November 17, 1978, the
State moved for a continuance and the court reset the trial
date from November 29, 1978 to January 15, 1979. Johnson's
disappearance, however, was not a result of the State's lack
of diligence, and the length of the delay was insignificant
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in light of two delays resulting from substitution of defense
counsel.
The defendant argues that the State's filing of an
amended information on January 22, 1979 indicates that the
State was not ready to proceed to trial before March 5,
1979. The State amended the information to comply with a
decision we had later handed down. This argument clearly
lacks merit. The State in a letter directed to the defendant
on June 13, 1978 stated that it desired trial to be set on
July 10, 1978. On January 10, 1979, after the defendant had
acquired his third set of counsel, the State asked the court
to set a firm date for trial. The record does not suggest
that the prosecution took any action to stall for more time.
On the contrary, the bulk of the pretrial delays were taken
to accomodate the defense in its trial preparation.
The last factor relating to the right to a speedy trial
is the degree of prejudice suffered by the defendant. The
degree of prejudice is determined by considering the oppressive-
ness of the pretrial incarceration, the anxiety and concern
of the defendant and the impairment of the defense. See
State v. Carden, supra.
We do not find prejudice here. Although the defendant
was incarcerated for approximately eleven months, the
defendant's activity pretrial indicates that the long pretrial
period was actually to his benefit. In addition to allowing
each set of defense counsel additional time to prepare for
trial, defendant used the period to obtain a continuance to
interview new witnesses, to present arguments at a hearing
to substitute the trial judge and to obtain a psychiatric
examination to support his insanity defense. The record
indicates that the defendant was actively preparing his
defense throughout the entire pretrial period.
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 The defendant contends that his defense was weakened
by his inability to take the deposition of Yvonne Johnson
prior to trial. Yvonne Johnson left the country in November
1978 and her whereabouts were unknown until December 1978.
Defendant's argument carries little weight because there is
no showing that in the months prior to Ms. Johnson's dis-
appearance or in the months following her return that the
defendant was prevented from deposing Johnson. Statements
made to the police by Ms. Johnson were included in the State's
affidavit for leave to file an information on February 22,
1978, and on October 20, 1978, the defendant filed a notice
of intent to depose Ms. Johnson. Thus, it is clear that from
the very beginning of the proceedings against him, the State
had put defendant on notice that Johnson could be a witness.
Nothing in the record suggests that the defendant was unable
to depose Johnson prior to her disappearance from this country.
The defendant presented no witnesses in his defense and
provided this Court with no facts suggesting that his defense
was weakened as a result of the delay. Defendant was not
denied a speedy trial.
The defendant next contends that the State's evidence
corroborating that of his accomplice, Yvonne Johnson, is
insufficient as a matter of law. There can be no question
that defendant could not have been convicted without Johnson's
testimony; but this fact does not establish that the cor-
roborating proof was insufficient.
Section 46-16-213, MCA, which governs the admissibility
of accomplice 'testimony provides:
"A conviction cannot be had on the testimony
of one responsible or legally accountable for
the same offense, as defined in 45-2-301, unless
the testimony is corroborated by other evidence
which in itself and without the aid of the
 testimony of the one responsible or legally account-
able 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 State is not required to corroborate every fact
to which the accomplice testifies. It is sufficient if the
corroborating evidence tends to connect the defendant with
the commission of the crime. State v. Coleman (1978),
Mont . - 579 P.2d 732, 748.
, However, independent evidence
must show more than the mere opportunity to commit the crime.
If the corroborating facts and circumstances are as con-
sistent with innocence as guilt, the corroborating testimony
must be set aside. State v. Jones (1933), 95 Mont. 317, 26
P.2d 341. In the present case the following corroborating
evidence was introduced.
Lucille Hunt, an intimate friend of the victim, testified
that she last saw him on the night of January 3, and identified
exhibit 4 as a picture of Barber's coat, and exhibits 2A and
2B as pictures of the victim's blue Pontiac automobile.
Tommy Strictland, the owner of the Keyboard Club in
Butte, testified that he saw the victim and the defendant
with a girl outside of his club at approximately 2:30 a.m.
on the morning of January 4. The victim's body was found
at Elk Park, a community located between Butte and Boulder.
The defendant was seen with a girl in Dot's Spot Cafe in
Boulder at 6:00 a.m., January 4. A Boulder paperboy testified
that on the morning of January 4, the driver of a car resembling
Barber's vehicle asked him for directions to a motel. He
identified Ms. Johnson as the woman in the car.
Later that morning, the defendant drove a car into
the 0-Z Motel parking lot, and received a room from the clerk,
Donna Axt. On the motel's register card, the defendant gave
a f i c t i t i o u s name and d i d n o t f i l l i n t h e b l a n k s on t h e c a r d

c o n c e r n i n g t h e make and l i c e n s e number of h i s car. A t Mrs.

A x t ' s r e q u e s t , t h e d e f e n d a n t informed h e r t h a t h e was d r i v i n g

a P o n t i a c , b u t h e r e f u s e d t o g i v e t h e l i c e n s e number on h i s

car. The d e f e n d a n t parked h i s c a r i n back of t h e m o t e l

where i t w a s n o t v i s i b l e from t h e highway. Mrs. Axt s t a t e d

t h a t t h e c o a t d e f e n d a n t was wearing when h e came i n t o t h e

motel w a s very s i m i l a r t o Barber's c o a t , b u t she could n o t

i d e n t i f y it with c e r t a i n t y .

On t h e n i g h t of J a n u a r y 4 , t h e d e f e n d a n t was a r r e s t e d

i n Boulder f o r d i s o r d e r l y conduct. H e gave a f a l s e name t o

the arresting officer. A missing persons r e p o r t w a s f i l e d

on J a n u a r y 7 o r 8, and t h e d e c e a s e d ' s f r o z e n body w a s found

on J a n u a r y 11. When he was a r r e s t e d i n B u t t e , d e f e n d a n t was

found h i d i n g under a bed. The j u r y was n o t r e q u i r e d t o view

t h i s a s t h e c o n d u c t o f a n i n n o c e n t man.

The p h y s i c a l e v i d e n c e c o n n e c t s t h e d e f e n d a n t w i t h t h e

v i c t i m , w i t h t h e v i c t i m ' s v e h i c l e , and w i t h t h e v i c t i m ' s

coat. This, together with defendant's behavior a t t h e 0-Z

Motel and a t t h e t i m e of h i s a r r e s t , i s s u f f i c i e n t c o r r o b o r a t i n g

evidence.

The d e f e n d a n t n e x t c o n t e n d s t h a t accomplice t e s t i m o n y

c a n n o t be used t o p r o v e e i t h e r t h e c o r p u s d e l e c t i o f a c r i m e

o r t o prove c r i m i n a l i n t e n t . To a d o p t t h i s view would o f

n e c e s s i t y r e q u i r e u s t o r u l e t h a t a c c o m p l i c e t e s t i m o n y can

be u s e d o n l y a s s u p p o r t i n g o r c u m u l a t i v e e v i d e n c e . Defendant

c i t e s no a u t h o r i t y , n o r h a s t h i s view been f o l l o w e d i n any

j u r i s d i c t i o n t o which w e have been r e f e r r e d . See S t a t e v.

Gambrel1 (C.A. 1 9 7 7 ) , 116 A r i z . 1 8 8 , 586 P.2d 1086; F o r t u n e

v . S t a t e (Okla. C r i m i n a l , 1 9 7 6 ) , 549 P.2d 380; P e o p l e v .

McLaughlin ( 1 9 5 7 ) , 156 Cal.App.2d 291, 319 P.2d 365. Our

own r u l e s r e g a r d i n g c o r r o b o r a t i o n a r e i n c o n s i s t e n t w i t h t h e

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defendant's argument. Corroborating testimony need not
be sufficient to establish guilt or even a prima facie case.
State v. Cobb (1926), 76 Mont. 89, 92, 245 P. 265. Section
46-16-213, P4CA, supra, does not expressly limit the use of
corroborating testimony to that argued for by the defendant,
and we decline to so construe the statute.
The defendant has presented numerous arguments concerning
the trial court's instructions. Ne asserts that the court's
instruction on the felony murder rule was erroneous because
one sentence in the instruction used the word "crime" rather
than felony. However, this statement of the law did not
prejudice the defendant because other portions of the same
instruction referred to actions in furtherance of a "felony"
and each of the crimes which the defendant allegedly committed
were felonies.
The defendant contends that two instructions place
undue emphasis on the terms "aiding and abetting" and presup-
poses that there is corroboration of the accomplice's testimony.
No undue emphasis is contained in these instructions and
another instruction properly instructed on corroboration.
This instruction states that "the corroboration of an
accomplice need not be sufficient to justify a conviction
and it need not be sufficient to connect the defendant with
the commission of the crime. If [sic] is sufficient if it
tends to do so."
The defendant argues that the phrase "beyond a reasonable
doubt" should be added to the end of the last sentence quoted
above. However, this would be an incorrect statement of the
law. Corroborative testimony is sufficient if it "tends to
connect the defendant with the commission of the offense."
Section 46-16-213, PICA. The defendant's argument is without
merit. Furthermore, the jury was given a proper reasonable
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doubt instruction.
The defendant's objection to instructing the jury on
the question of defendant's flight is baseless. He contends
there was no evidence of flight, but Donna Axt's testimony
concerning the defendant's use of a fictitious name, and
his covert behavior concerning his car presented the jury with
evidence suggesting flight. And the accomplice's testimony,
furthermore, contains a detailed explanation of the defendant's
flight from the scene of the crime.
Judgment is affirmed.

Justi

We Concur:

Chief Justice

Justices