State v. Bad Horse

No. 14353

I N THE SUPREME COURT OF THE STATE OF M N A A
O T N

1979

STATE OF MONTANA,

P l a i n t i f f and Respondent,

-vs-
PAUL BAD HORSE, J R . ,

D e f e n d a n t and A p p e l l a n t .

Appeal from: D i s t r i c t Court of t h e T h i r t e e n t h J u d i c i a l D i s t r i c t ,
H o n o r a b l e C h a r l e s Luedke, J u d g e p r e s i d i n g .

C o u n s e l o f Record:

For Appellant:

S t a c e y and Nye, B i l l i n g s , Montana
C a l v i n S t a c e y a r g u e d , B i l l i n g s , Montana

For Respondent:

Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
Mike M c C a r t e r a r g u e d , A s s i s t a n t A t t o r n e y G e n e r a l ,
H e l e n a , Montana
James S e y k o r a a r g u e d , County A t t o r n e y , H a r d i n , Montana

-
Submitted: O c t o b e r 3 0 , 1979

Decided :
~usticeJohn C. Sheehy delivered the Opinion of the Court.

Paul Bad Horse, Jr. appeals from a conviction and judgment
entered in the District Court, Thirteenth Judicial District,
Big Horn County, against him for the crime of robbery.

The charge against the defendant arose out of the April 5,
1975 abduction, robbery and murder of Monte Dyckman, a Safeway
store employee in Hardin, Montana.
The circumstances surrounding the death of Monte Dyckman
have been before this Court on several occasions. Companion

cases include State v. Holliday (1979), Mont . , 598
P.2d 1132, 36 St-Rep. 1535; State v. Radi (1978), Mon t .
, 578 P.2d 1169, 35 St.Rep. 489; and State v. Fitzpatrick
(19771, Mont . , 569 P.2d 383, 34 St.Rep. 736.
About April 5, 1975, Bad Horse met in a Billings bar with
Travis Holliday, Edwin Bushman, Gary Radi and Bernard Fitzpatrick,
where the group planned to rob the Safeway store in Hardin, Montana.
Bad Horse told the others that bank deposits for the Safeway store
were made daily at approximately 10:OO p.m. A rough map of Hardin
was drawn on a napkin, and Bad Horse pointed out on the map the
depository bank for the Safeway store.
Later all five men met again at Radi's house. Fitzpatrick

and Radi left for Hardin in Radi's car, while Bad Horse, Holliday,
Bushman and two young girls went in another car. When the group

met again in Hardin, they toured that city to survey the area.
Bad Horse and Bushman pointed out the bank and the Safeway store
to the others. Bushman produced some rope for use in the robbery,
and Bad Horse went into a Hardin bar and borrowed a knife to cut
the rope in pieces.
At approximately 10:OO p.m., the closing time of the
Safeway store, the five men parked near the store. Radi and
Fitzpatrick were in one car, while Bad Horse, Holliday and
Bushman were in another. Shortly after 10:OO p.m., a man came
out of the Safeway store, got into his vehicle and drove
away. Fitzpatrick and Radi followed him, telling their
companions that if it developed that they were following the
wrong employee, they would circle back to the drive-in bank
to intercept the deposit there. Later Dyckman came out of
the Safeway store. Dyckman's vehicle was followed by the
vehicle in which Bad Horse, Holliday and Bushman were riding.
When Dyckman turned into the drive-in bank, Bad Horse,
Holliday and Bushman abandoned the pursuit knowing
that Fitzpatrick and Radi would be there waiting for Dyckman.
Later Bad Horse, Holliday and Bushman picked up the two young
gir1.s and returned to Billings, arriving at Radi's house at
approximately 2:00 a.m., April 6, 1975. Radi showed up shortly
thereafter. He told them that he and Fitzpatrick had followed
the first vehicle without success but had returned to the drive-
in bank in time to intercept Dyckman with the Safeway deposit.
Bad Horse then claimed to Radi that he was entitled to at least
half of the proceeds of the robbery since he had set up the job.
Bad Horse left angrily after being told the robbery produced
little or no money.
On April 6, 1975, Dyckman was discovered dead in his own
car near the Toluca interchange in Big Horn County. His hands were
tied behind his back, and he had been shot twice in the head. The
Toluca interchange is immediately off Interstate 90 between Hardin
and Billings, some 12 miles west of Hardin.
This is the second time the Bad Horse case has been before
this Court. He was originally tried jointly with Fitzpatrick,
Radi and Hoilit3ay on charges of deliberate homicide, aggravated,
kidnapping, and robbery. Bushman was granted immunity from
prosecution in exchange for his testimony at the trials of the
other four defendants.
-3-
 In the first trial, held in October 1975, Bad Horse was
found not guilty of deliberate homicide and not guilty of
aggravated kidnapping, but guilty of robbery. On appeal, this
Court reversed and remanded his conviction for robbery because

of errors in the instructions. State v. Fitzpatrick

- Mont. , 569 P.2d 383, 34 St.Rep. 736. Upon remand, Bad
Horse was retried only on the robbery charge and was again convicted.
Bad Horse raises the following issues on appeal:
(1) Retrial on the charge of robbery is prohibited
because of the double jeopardy clause and the doctrine of
collateral estoppel.
(2) The District Court h.ad no jurisdiction because the
crime occurred within "Indian Country".

(3) The District Court erred in determining that
witness Raleigh Kra.ft, Jr., was not an acco~nplice.
i4) The testimony of Edwin Bushman, an accomplice, was
not sufficiently corroborated by independent evidence.
(5) Gary Radi, a former codefendant who had been
in
acquittedla separate trial, should not have been allowed to testify
at Bad Horse's trial.
(6) Bad Horse's second robbery conviction is not
supported by substantial evidence.
(7) The instructions to the jury are in error under
Sandstrom v. Montana (1979), U. S. , 99 S.Ct. 2450,
61 L.Ed.2d 39.

Issue No. 1.
- - Double Jeopardy - - Collateral Estoppel.
and
Bad Horse's contentions under this issue are that his
conviction of guilty of the crime of robbery in the first trial,
with an acquittal of the charge of deliberate homicide, where the
second charge necessarily incorporates the first charge, !-s legally
inconsistent and unsupportable; that -the law of the case on this
point was established in the first appeal of his conviction; and

that the State is collaterally estopped from retrying the robbery
conviction.
-4-
 A portion, but not all, of this issue was answered in
State v. Fitzpatrick, supra, 569 P.2d at 395. Bad Horse claims
that in Fitzpatrick, this Court held that "[tlhese verdicts are not
merely inconsistent, they are legally unsupportable", and thereby
the law of the case was established as to inconsistency. On the
other hand, the State claims that because this Court did not order
dismissal of the robbery charge in Fitzpatrick, but instead remanded
the robbery charge for retrial against Bad Horse that the law of the

case is on the side of the State. We therefore must examine
Fitzpatrick to clarify precisely what this Court did hold in that
case.
The problem addressed by this Court in Fitzpatrick, as it
relates to Bad Horse, was the incongruity of instruction no. 28
used by the trial court when connected with instruction no. 36.
Instruction no. 28 told the jury in effect that if a conspiracy
to commit a crime existed and a death happened in the furtherance
of the conspiracy, all the conspirators were alike guilty of the
homicide. In conflict with that instruction, no. 36 told the
jury that it might find any - of four verdicts, including one
one
of guilty of robbery.
The jury in the first trial was obviously confused, because
it sent out to the court a question asking ". . . If we find one

defendant guilty of robbery does Inst. No. 28 require [a] guilty
verdict on the two remaining counts." Instead of clarifying for
the jury, the court responded that instruction no. 36, which
permitted any one of four verdicts, answered the question.
Thus it appears that in the first trial, Bad Horse having
been found guilty of the crime of robbery where his participation
was that of a conspirator,should also have been found guilty
of the crime of deliberate homicide, because the death of Monte
Dyckman arose in furtherance of the conspiracy to commit robbery.
Fortunately for the defendant, the jury acquitted him on the

charge of deliberate homicide. The State is now powerless
to try him again on that charge because of the double jeopardy
rule. That result may be laid, as it were, to the fortunes of
war. That fortuitous result however, cannot be bootstrapped to
deliver Bad Horse from his conviction of the crime of robbery
for which he has been convicted now by two juries. The remand of
Bad Horse's robbery conviction for retrial under Fitzpatrick, is
a further by-product of the strategic error made by the State in
the first Fitzpatrick trial, in joining at one trial four defendants

wirh diverse roles in the incidents leading up to Monte
Dyckman's death.
In clarification, therefore, this Court did not establish
as the law of the case in Fitzpatrick that the verdicts
relating to Bad Horse were so inconsistent that he could never
again be tried for the crime of robbery. In point of fact, this
Court did remand for retrial on that charge, His conviction of
robbery could have been sustained by this Court after the first
trial, except that his conviction was blemished by the errors that
occurred to him and others joined as defendants in the
trial. This Court did not find or believe that because he was
not guilty under the jury verdict of deliberate homicide that he
was likewise guiltless of the underlying charge of robbery. Rather,
our remand was founded on the right of Bad Horse to receive
a trial with a properly instructed jury. - Section 46-16-401(5),
See,
MCA; State v. Jackson (1930), 88 Mont. 420, 435, 293 P. 309.
With that clarification, we find Bad Horse to be in the same
situation with respect to his retrial as any other criminal defendant
whose conviction is reversed and remanded for retrial. A defendant
is not subjected to double jeopardy by virtue of his retrial after
reversal of his judgment of conviction. State v. Ellsworth
(1962), 141 Mont. 78, 81, 375 P.2d 316, 318. See also State v.
Sanders (1973), 163 Mont. 209, 216, 516 P.2d 372, 376.
-6-
 Appellate courts are not inclined to reverse convictions
in criminal cases ordinarily merely upon the ground of
inconsistency of verdicts reached by a jury as to a defendant
who has been charged in several counts. Dunn v. United
States (1932), 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed.2d 356;
State v. Gone (1978), - Mon t . , 587 P.2d 1291, 1296, 35 St.Rep.
1540, 1546. At the core of such reaction is the reverence
that courts feel for the part that juries play in the fact-
finding process in criminal trials, even though allowing
inconsistent verdicts in criminal trials run$ the risk that an
occasional conviction may have been the result of compromise.
United States v. Carbone (1967), 378 F.2d 420, 423.
We determine therefore that the defendant has not been
subjected to double jeopardy. In like manner, his contention
that collateral estoppel is applicable to void his conviction
is also rejected by us.
"Collateral estoppel", as explained in Ashe v. Swenson
(1970), 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469,

475, on which Bad Horse relies, ". . . means simply that
when an issue of ultimate fact has once been determined by a
valid and final judgment, that issue cannot again be litigated
between the same parties in any future lawsuit."
It was determined in Benton v. Maryland (1969), 395 U.S.
784, 89 S.Ct. 2056, 23 L.Td.2d 707, that collateral estoppel
is a part of the Fifth Amendment's guarantee against double jeopardy.
We are cautioned by the United States Supreme Court that the
inquiry as to whether collateral estoppel applies "must be set
in a practical frame and viewed with an eye to all the circumstances
of the proceedings." Sealfon v. United States (1948), 332 U.S.
575, 579, 68 S.Ct. 237, 240, 92 L.Ed.2d 180; Ashe v. Swenson,
supra, 397 U.S. at 444, 90 S.Ct. at 1194, 25 L.Ed.2d at 476.
-7-
 It is again Bad Horse's position under his claim of
collateral estoppel that the ultimate fact to be determined
against him is whether he was guilty of the crime of robbery;
that his acquittal of deliberate homicide also constituted
an acquittal of the underlying felony, robbery; that therefore
the underlying ultimate fact has been decided in his favor
and he cannot again be retried.
Were we to accede to Bad Horse's collateral estoppel
claim, we had then pulled the teeth from our holding foregoing
that verdicts can be inconsistent and yet binding upon
defendants. His claim however fails on two grounds: (1) his
issue of ultimate fact had not been determined by a valid
and final judgment in the first trial; and, (2) our inquiry,
"set in a practical frame and viewed with an eye to all
circumstances of the proceedings", does not disclose that
collateral estoppel is applicable here. Since verdicts may
be inconsistent and yet legally supportable, his conviction of
robbery in the first trial was not a final judgment, since
defendant secured a reversal and remand from this Court; in

fact his conviction for robbery will not be final until this
Court's decision in this appeal. When we examine the record
of the prior proceedings, and take into account the pleadings,
evidence, charge and other relevant matters in the prior
proceedings, we have no trouble in concluding that the first
jury, acting rationally, could have grounded its verdict of
guilty of robbery on issues other than those required for
deliberate homicide. As we said, the retrial was ordered by us
in Fitzpatrick, because the first trial court erroneously instructed
its jury that Bad Horse could be acquitted of deliberate homicide
even though he was guilty of the underlying felony, robbery. In
that set of circumstances, collateral estoppel does not apply.

We note that the United States Supreme Court said in Ashe
v. Swenson, supra, that the defendant accused of participating
- 8-
in a robbery with others was acquitted for lack of identification
in his first trial. The State sought to retry him as to
another victim of the same crime. It was to this fact
situation that the United States Supreme Court found it
proper to apply the doctrine of collateral estoppel as a
species of the Fifth Amendment guarantee against double
jeopardy. The holding in Ashe v. Swenson, supra, is simply in-
applicable to this case.
Issue - -
No. 2. District Court Jurisdiction.
Bad Horse's claim under this issue takes two tacks:
(1) jurisdiction in this case fails because the crime occurred
in "Indian Country" and, (2) the State failed to prove the venue
of the crime. This jurisdictional objection is raised for the
first time on appeal, but that is acceptable. State v.
Akers (193d), 106 Mont. 43, 74 P.2d 1138.
Proper venue was proved at the trial. There is no
evidence whatever that the Dyckman killing occurred upon Indian
lands. The undisputed evidence was that the Dyckman robbery
occurred in Hardin, continued onto Interstate 90, a federal
highway, and thence to the Toluca interchange off that
highway. The District Court could take judicial notice that
the City of Hardin and the federal highway are all outside

the exterior boundaries of the Crow Indian Reservation, but
well within both Big Horn County and the State of Montana.
State v. Campbell (1972), 160 Mont. 111, 118, 500 P.2d 801, 805.
Moreover, Hardin is not "Indian Country" within the definition
of 18 U.S.C. 1151. We said so in the Matter of Little Light
573, 1269,
(19791, - Mont . , 598 P.2d 572, /36 St.RepJ 1271. In
Little Light, we pointed to the decision of the United States

District Court for Montana in Hawkins v. Crist (January 27, 1978),

CV-76-99-BLG. That decision held that the agreement between the
- 9-
Crow Tribe and the United States ratified by Act of Congress
of April 27, 1904, 33 Stat. 352, wherein the tribe agreed to
"cede, grant and relinquish" the tract of land comprising
Hardin, disestablished this tract as "Indian Country" and
thereby rendered it subject to state criminal jurisdiction.
Bad Horse contends that the landholdinqs between
Indians and non-Indians in and around the City of Hardin
make a "checkerboard" pattern identical to that in Seymour
v Superintendent (1962), 368 U.S. 351, 82 S.Ct. 424, 7 L.Ed.2d
.
346. In Seymour, it was held that such checkerboarded

areas are nevertheless "Indian Country". However, the federal
District Court, in Hawkins v. Crist, supra, distinguished
Seymour, and found the controlling case to be Rosebud Sioux

Tribe v. Kneip (1977), 430 U.S. 584, 97 S.Ct. 1361, 51 L.Ed.2d 660.
In Rosebud Sioux, the United States Supreme Court distinguished
Seymour, holding that the Rosebud Sioux statutes evidence a
Congressional intent to "disestablish" the land in question
as Indian Country and permit the exercise of State jurisdiction.
We agree with the author of Hawkins v. Crist, supra, that
this was the Congressional intent when Hardin and its environs were
disestablished.
Issue No. 3.
- - Uncorroborated Testimony -- - ~ccomplice.
of an
Here Bad Horse claims that witness Raleigh Kraft, Jr.,

was an accomplice, and as such his testimony could not
convict Bad Horse or support his conviction unless corroborated
by independent evidence. Section 46-16-213, MCA.
The evidence indicates that Kraft had previously told
Edwin Bushman that he was going to rob the Safeway store
himself or get someone else to help him. Also, witness
Marla Fitzler testified that she had heard Kraft discuss

robbing the Safeway store with Bushman on several occasions.
-10-
 Based on this evidence, Bad Horse contends that Kraft
was an accomplice with all the disabilities attaching to his
testimony flowing from that relationship.
The statements however, were made eight months to one year
prior to the robbery. No connection was ever established in
the evidence between those statements and the robbery, other than
that they may have planted an idea in someone else's mind.
An accomplice is one who knowingly, voluntarily and with
common intent with a principal offender unites in the commission
of a crime. State v. Kerrigan (1930), 87 Mont. 396, 401, 287 P.
942. In this case, Kraft is not an accomplice as defined in
section 45-2-302, MCA. He did not solicit, advise or encourage
anyone in the planning or commission of the Dyckman robbery.

He did not ever agree to aid or attempt to aid anyone in such
planning or commission. His statements were made at a remote time

and there is no concrete connection between those statements and the
Dyckman robbery. Since Kraft was not an accomplice, his
testimony stands on the same basis as any other witness. He
need not be corroborated, and his credibility is for the jury to
decide.
Issue No. - Sufficiency - - Testimony - -
- 4. of the of Edwin
Bushman.

Here Bad Horse claims that the testimony of Edwin Bushman,
an accomplice, was not sufficiently corroborated by independent
evidence.
Bad Horse's contentions on this point are that Bushman
was an accomplice as a matter of law; that his testimony was
not sufficiently corroborated; that the testimony of the other
witnesses besides Bushman merely established that Bad Horse
went to Hardin, drove around drinking beer with his companions,
and returned to Billings that same night; that the evidence does
not tend to connect Bad Horse with the commission of the
Dyckman robbery but only mere opportunity to commit that
robbery. He also contends that the additional testimony
points equally well toward innocent conduct as well as guilty
conduct and thus does not qualify as corroboration. See State
v. Keckonen (1938), 107 Mont. 253, 261, 84 P.2d 341, 346.
This contention of Bad Horse borders on the frivolous.
Bushman's testimony is sufficiently corroborated by that of
Ira Lee Finch, Cindy Morgan, Carol Branch, Ronald Potts, Lyle
Doane, and Bad Horse himself. The most damaging corroborative
testimony is that of Raleigh Kraft, Jr. who testified that
Bad Horse told him that his friends were planning to rob the
Safeway store, and on April 20, 1975, admitted to Kraft his
participation in the robbery. The corroborative testimony
is well within the tests laid down in State v. Cobb (19261,
76 Mont. 89, 245 P. 265.
Issue - - Radi's Testimony.
No. 5.
Bad Horse here claims that it was reversible error to
allow the prosecution to call Gary Radi as a witness over Bad
Horse's objections. He contends that Radi's testimony was

irrelevant and its only effect was to prejudice Bad Horse by
casting suspicion on him.
Radi had been acquitted of all charges against him prior
to his testimony at the Bad Horse trial. However, his testimony
was relevant because he allegedly was one of the two principals
in the Dyckman robbery. The State's case rested upon proving

that Bad Horse conspired with, aided and abetted both Radi and
Fitzpatrick in their carrying out of the robbery. The State
expected Radi to deny any participation in the robbery, but
that denial provided the foundation for the admission of
Radi's prior and inconsistent statements where Radi had admitted
his participation in the crime.
 As a matter of fact, Radi's testimony may be construed
to help Bad Horse as much as it did the State. In testifying,
Radi denied any participation in the crime and testified he
first met Bad Horse at his house on the evening of April 5,
1975. This conflicts with the evidence of others tending to establish
that Bad Horse, Radi and the others had planned the robbery.
The testimony of Radi was therefore relevant and clearly admissible.
See, State v. Bentley (1970), 155 Mont. 383, 472 ~ . 2 d864, 875;

State v. Hay (1948), 120 Mont. 573, 194 P.2d 232, 237.
Issue - -
No. 6. Sufficiency -- - Evidence.
of the
This issue is meritless in light of the considerable testimony
against Bad Horse in this case. The evidence is viewed in a
light most favorable to the State. State v. Pascgo (1977),
Mont . , 566 P.2d 802, 805, 34 St.Rep. 657. If
there is sufficient credible evidence, the verdict will
stand. State v. Swazio (19771, Mont . , 568 P.2d
124, 126, 34 St.Rep. 676.
As indicated in the discussion of issue no. 4 above,
Bushman's testimony was sufficiently corroborated by independent
evidence. His testimony and that of the other witnesses

sufficiently established that Bad Horse acted "with a purpose
to promote or facilitate" the commission of the crime. Section
45-2-302, MCA.
Issue No. -
- 7. Effect - - Sandstrom Decision.
of the
This issue arose after the briefs in this case had been
filed, but before the matter was set down for oral argument.
When this Court received the decision from the United States
Supreme Court in Sandstrom v. Montana (1979), U.S. I

99 S.Ct. 2450, 61 L.Ed.2d 39, we requested argument in this case
as to whether there was the possibility of error in light of the
Sandstrom decision.
-13-
 In Sandstrom, the United States Supreme Court found the
trial court's instruction "[tlhe law presumes that a person
intends the ordinary consequences of his voluntary acts" uncon-
stitutional. U.S. at , 99 S.Ct. at 2453, 61 L.Ed.2d

-
The instruction given in the second Bad Horse trial, which
he claims has a Sandstrom effect, is as follows:

"You are instructed that 'knowingly', or
'purposely' may be proved by circumstantial
evidence. It rarely can be established by
any other means. While witnesses may see
and hear and thus be able to give direct
evidence of what a defendant does or fails
to do, there can be no eye witness account
of the state of mind with which the acts were
done or omitted. But what a defendant does
or fails to do may indicate that he 'knowingly'
or 'purposely' committed the offense or offenses
charged.
"It is reasonable to infer that a person
ordinarily intends the natural and probable
consequences of acts knowingly done, knowingly
omitted, purposely done, or purposely omitted.
So unless the contrary appears from the evidence,
the jury may draw the inference that the defendant
intended all of the consequences which one
standing in like circumstances and possessing like
knowledge should reasonably have expected to result
from any act knowingly done, knowingly omitted,
purposely done, or purposely omitted.
"In determining the issue as to 'Knowingly' or
'purposely' the jury is entitled to consider
any statements made and acts done or omitted by
the defendant, and all facts and circumstances
in evidence which may aid in the determination
of the state of mind of the defendant."
It is obvious that the foregoing instruction is not
mandatory as to intent, as was the case in Sandstrom, and that
the instruction does not contravene the holding of In Re Winship
(1970), 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368. In other
words, we do not determine from the foregoing instruction that the
District Court has allocated a part of the burden of proof on the
elements of the crime to the defendant by requiring him to come
forward with evidence. We discussed this matter to some extent
in State v. Coleman (Decided December 19, 1979), Mont .
-I - P.2d , 36 St.Rep. 2237. In the Bad Horse
instruction, the jury was not given a mandatory presumption,
as occurred in the Sandstrom case; rather it was told that
it could reasonably infer intent on the part of Bad Horse
for all the consequences which one acting in a like position
would reasonably have expected. Nothing in the instruction
lessens the duty of the State to prove every element of the
crime charged beyond a reasonable doubt, nor does it affect
the defendant's presumption of innocence which attended him
throughout the trial. As the instruction stated, and as we
discussed in State v. Coleman, supra, since intent is a

matter for circumstantial evidence usually, inference may be
the only method by which a jury can find intent. We also said in

State v. Coleman, supra:
"The holding in Sandstrom is not to be construed
to mean that whenever a trial court instructs
the jury that it may resort to inference to
determine subjective matters such as knowledge
or purpose, that thereby the State has been
relieved of its burden of proof. The United
States Supreme Court did not intend such limitation,
and we do not find any such intention in the
language of Sandstrom, or its related cases.
The jury was not allowed to rest solely upon the
permitted inference in the Coleman case, but
under the instruction had to require such an
inference to meet the standard as beyond a
reasonable doubt." 36 St.Rep. at 2241.
We therefore determine that the instruction given in
Bad Horse passes muster under the Sandstrom test.
CONCLUSION

The judgment of conviction against the defendant Paul

Bad Horse, Jr. for the crime of robbery is affirmed.
We Concur:

1
Chief J u s t i c e