No. 80-285
I N THE SUPREME COURT OF THE STATE O M N A A
F OTN
1981
THE STATE OF MONTANA,
P l a i n t i f f and R e s p o n d e n t ,
VS .
J E R R Y PAUL FORSYTH,
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 Eleventh J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f F l a t h e a d
Honorable Robert C. Sykes, Judge p r e s i d i n g .
C o u n s e l o f Record:
For A p p e l l a n t :
Keller and G i l m e r , K a l i s p e l l , Montana
R o b e r t Keller a r g u e d , K a l i s p e l l , Montana
F o r 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
C h r i s Tweeten 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
Ted 0 . Lympus a r g u e d , County A t t o r n e y , K a l i s p e l l , Montana
Submitted: October 2 1 , 1981
Decided: March 1 9 , 1982
Filed : MAR 19 1982
Mr. Justice John C. Sheehy delivered the Opinion of the Court.
Jerry Paul Forsyth appeals from a judgment of conviction
of deliberate homicide of his wife, Karen Forsyth, following
a jury trial in the District Court, Eleventh Judicial District,
Flathead County. Forsyth received a sentence of imprisonment
of 70 years and was designated a dangerous offender.
In this bizarre case, officers of the Kalispell police
department investigated a shooting report at the Skyline
Bowl in Kalispell about 2:30 a.m. on December 12, 1979. The
investigating officers were met at the front door of the
bowling alley by Douglas Richards. Inside, the officers
found Jerry Paul Forsyth apparently semi-conscious, lying on
the floor. Douglas Richards brought the attention of the
officers to the counter of the bowling alley, where they
found the body of defendant's wife, Karen Forsyth, dead of a
single gunshot wound to the head. A hand pistol, which had
not been fired, was lying near the victim's feet.
Richards and Forsyth were placed in separate squad
cars. The officers searched the building and found that no
one else was present. Forsyth was taken to a hospital
complaining of a head injury. He was found to be suffering
from a superficial bruise and laceration on the back of his
head but exhibited no serious symptoms.
The next morning two officers questioned Jerry Paul
Forsyth about the shooting incident. He stated that he and
his wife were closing the bowling alley for the night. As
he started to lock the front door, the door was jerked from his
hand from the outside. He turned to warn his wife and was
struck from behind and knocked unconscious. He testified to
the same story at trial.
Douglas Richards had been questioned in the squad car
at the scene of the crime. He stated that he had been in
t h e basement o f t h e bowling a l l e y and had h e a r d a "popping"
sound which h e t h o u g h t t o b e a b o i l e r n o i s e . L a t e r , when h e
came u p s t a i r s , he found Karen F o r s y t h dead and t h e d e f e n d a n t ,
J e r r y P a u l F o r s y t h unconscious. Richards then c a l l e d t h e
police.
O n J a n u a r y 2 5 , 1980, Douglas R i c h a r d s was a r r e s t e d on a
charge of sexual i n t e r c o u r s e without consent involving a
g i r l under t h e a g e of 16. Following h i s a r r e s t , h e w a s
f u r t h e r i n t e r r o g a t e d r e g a r d i n g t h e murder of Karen F o r s y t h .
When R i c h a r d s was g r a n t e d immunity i n exchange f o r h i s
cooperation respecting Karen's death, Richards recanted h i s
p r i o r s t o r y and i m p l i c a t e d t h e d e f e n d a n t J e r r y P a u l F o r s y t h
i n t h e murder of Karen F o r s y t h .
A t t h e t r i a l o f F o r s y t h , R i c h a r d s t e s t i f i e d under a
g r a n t o f immunity from p r o s e c u t i o n f o r t h e F o r s y t h murder,
t h e s t a t u t o r y r a p e c h a r g e f o r which h e had been a r r e s t e d ,
and a n a d d i t i o n a l c h a r g e of p o s s e s s i o n of dangerous d r u g s .
I n h i s t e s t i m o n y h e s t a t e d t h a t he had begun working f o r t h e
d e f e n d a n t J e r r y P a u l F o r s y t h a t S k y l i n e Bowl i n t h e summer
o f 1979 and t h a t h e and F o r s y t h had become w e l l a c q u a i n t e d .
F o r s y t h complained t o R i c h a r d s t h a t h e no l o n g e r l o v e d h i s
w i f e Karen, b u t c o u l d n o t s e e k a d i v o r c e b e c a u s e an i n t e r e s t
i n t h e bowling a l l e y w a s i n h e r name. F o r s y t h was h a v i n g an
a f f a i r w i t h a woman named Debby N e f f , and h e wanted t o move
i n w i t h h e r by C h r i s t m a s . Because o f h i s w i f e ' s i n t e r e s t i n
t h e f a m i l y p r o p e r t y , F o r s y t h t o l d R i c h a r d s t h a t he wanted t o k i l l
h i s w i f e and asked f o r a d v i c e on how t o do it. Richards,
who a p p e a r s t o have been a most o b l i g i n g p e r s o n i n t h e s e
r e s p e c t s , s u g g e s t e d s e v e r a l ways, i n c l u d i n g t h e s t a g i n g o f a
robbery. The d i s c u s s i o n s on ways t o k i l l Karen F o r s y t h
e x t e n d e d o v e r s e v e r a l months. According t o R i c h a r d s , h e
t o l d t h e d e f e n d a n t i t would t a k e $40,000 t o $50,000 f o r
Richards t o k i l l h e r himself. I n l a t e November, t h e y d e c i d e d
t o t r y an o v e r d o s e o f b a r b i t u r a t e s on Karen F o r s y t h . Richards
purchased t h e d r u g s , Seconal and p h e n o b a r b i t o l , from a
p h a r m a c i s t , u s i n g money f u r n i s h e d by t h e d e f e n d a n t . Forsyth
l a t e r t o l d Richards t h a t t h e attempt f a i l e d because t h e
d r u g s w e r e n o t powerful enough.
Thereupon R i c h a r d s s u g g e s t e d s e t t i n g up a f a k e r o b b e r y
i n which Karen F o r s y t h would be k i l l e d . Forsyth procured a
. 2 2 c a l i b e r snub-nosed r e v o l v e r . F o r s y t h and R i c h a r d s c h o s e
a l o c k e r i n t h e bowling a l l e y basement l o c k e r room i n which
t o h i d e t h e gun and t h e e x p e c t e d f r u i t s of t h e r o b b e r y . For
t h i s p u r p o s e , F o r s y t h f i l l e d o u t t h e l o c k e r key e n v e l o p e f o r
l o c k e r no. 1 9 1 i n t h e name of Greg P h i l l i p s , a bowler who
had bowled on a team a t S k y l i n e Bowl. Richards placed a
bowling bag and a p a i r o f bowling s h o e s i n t h e l o c k e r i n
o r d e r t o a v o i d s u s p i c i o n . O December 9, 1979, he p l a c e d t h e
n
gun i n t h e l o c k e r . When R i c h a r d s a r r i v e d a t work t h e n e x t
n i g h t , December 1 0 , t h e d e f e n d a n t t o l d him t h e crime would
b e committed t h a t n i g h t . R i c h a r d s t o o k t h e gun from t h e
l o c k e r , wrapped i t i n a r a g , and gave it t o F o r s y t h . Richards
was a n a l c o h o l i c and h e d r a n k s t e a d i l y t h r o u g h o u t t h e n i g h t
from a b o t t l e h i d d e n i n t h e basement a r e a o f t h e bowling
alley. Although t h e bowling a l l e y u s u a l l y c l o s e d e a r l i e r ,
F o r s y t h had been r e m a i n i n g u n t i l t h e a d j o i n i n g b a r c l o s e d a t
2 : 0 0 a.m. f o r s e v e r a l d a y s , p u r p o r t e d l y t o s t o p vandalism of
bowling a l l e y equipment. This routine served a s a p r e t e x t
t o g e t Karen F o r s y t h t o remain i n t h e bowling a l l e y s o t h e
"robbery" could t a k e place. On t h e f a t e f u l n i g h t , t h e
b a r t e n d e r s and l a s t p a t r o n s l e f t s e v e r a l m i n u t e s a f t e r 2 : 0 0
a.m. R i c h a r d s and F o r s y t h s t o o d a t t h e f r o n t window w a t c h i n g them
leave. R i c h a r d s ' g i r l f r i e n d made a b r i e f a p p e a r a n c e a b o u t
this time. R i c h a r d s gave h e r a key and t o l d h e r t o w a i t
f o r him a t h i s a p a r t m e n t . R i c h a r d s t h e n went t o t h e basement
l o c k e r room, opened t h e l o c k e r and p r e p a r e d i t t o r e c e i v e
t h e p r o c e e d s of t h e " r o b b e r y " and t h e gun. H e returned t o
t h e u p s t a i r s a r e a , set s e v e r a l alarm t r i p - w i r e s , and t u r n e d
off the lights. H e went d o w n s t a i r s t o h i d e h i s b o t t l e and
get h i s coat. H e t h e n h e a r d a s i n g l e g u n s h o t and r e t u r n e d
u p s t a i r s t o t h e bowling a l l e y where he found t h e d e f e n d a n t
p u t t i n g t h e gun down and removing h i s g l o v e s . Karen F o r s y t h
had f a l l e n t o a p o s i t i o n l e a n i n g a g a i n s t t h e c o u n t e r n e a r
t h e cash r e g i s t e r .
They w a i t e d u n t i l h e r body showed no s i g n s of l i f e . As
p a r t of t h e " r o b b e r y , " F o r s y t h i n s e r t e d a p e n c i l i n t o t h e
b a r r e l of a . 9 m i l l i m e t e r p i s t o l a n d , h o l d i n g t h e p i s t o l by
t h e p e n c i l , g o t Karen F o r s y t h ' s f i n g e r p r i n t s on t h e p i s t o l
and p l a c e d it n e a r body. R i c h a r d s donned t h e p a i r of g l o v e s ,
t o o k t h e p i s t o l t h a t F o r s y t h had used t o k i l l Karen F o r s y t h
and s t r u c k F o r s y t h i n t h e back of t h e head. R i c h a r d s pushed
F o r s y t h t o t h e f l o o r and t h e n c o l l e c t e d t h e money from t h e
c o u n t e r t o complete t h e " r o b b e r y . " H e took t h e money, the
g l o v e s , and t h e gun d o w n s t a i r s , and l o c k e d them i n l o c k e r
no. 191. Thereupon h e c a l l e d t h e t e l e p h o n e o p e r a t o r t o
r e p o r t t h e "robbery" t o t h e police.
There a r e a d d i t i o n a l f a c t s which w e w i l l d i s c u s s l a t e r
i n t h i s opinion i n connection with t h e i s s u e of corroboration
of a n accomplice.
The j u r y r e t u r n e d a v e r d i c t of g u i l t y and t h e D i s t r i c t
C o u r t imposed t h e judgment and s e n t e n c e from which t h i s
appeal a r i s e s .
There i s an o v e r r i d i n g i s s u e on which w e must r e v e r s e
t h e judgment and remand t h i s c a u s e t o t h e D i s t r i c t C o u r t f o r
a new trial. That issue involves the failure of the District
Court, probably accidental, to define the elements of the
crime of deliberate homicide in the instructions given to
the jury .
The State concedes error in that the jury was not
instructed as to the statutory elements of the crime. It
also concedes that under State v. Lundblade (1981),
,
Mont. - 625 P.2d 545, 38 St.Rep. 441, it is clear that
the trial court is obligated to give such an instruction
even if one is not offered by the defense. The State,
however, asks us to overlook the instructional error on the
ground that it was harmless.
The State contends that in this case both sides proceeded
on the premise that a deliberate homicide had been committed,
and that the essential fact question for the jury to decide
was the identity of the killer. All the jury had to decide,
contends the State, is whether the crime was committed by
the defendant as the State's evidence showed, or by an
unknown assailant.
Lundblade stands for the proposition that "at a minimum"
the District Court must explain or define the crime for the
jury. Lundblade, 625 P.2d at 548, 38 St.Rep. at 443. See
State v. Campbell (1972), 160 Mont. 111, 114, 500 P.2d 801,
803. We must agree with the rationale of the court in
Williams v. United States (1942), 131 F.2d 21, 22, where
the court said: "The average man has some idea of what
murder is, but we would not expect a judge to say, Jurors,
you know what murder is, go and decide if this man is guilty
of it." In view of the fact that every material fact necessary
to constitute a crime must be proved beyond a reasonable
doubt, we cannot ascribe the failure to define the elements
of the crime to the jury as harmless error.
Accordingly, our disposition of this case turns upon
the same point as the disposition by us in Lundblade. We
reverse the conviction and remand the cause for a new trial.
We decline to reverse and dismiss, however, because there
is evidence in the record to support the conviction. Lundblade,
supra, 625 P.2d at 549 and cases thereunder.
Because this case must be retried, we will discuss
other issues raised by the appellant Forsyth for the purpose
of guidance to the trial court.
Forsyth contends that there was insufficient corroborative
evidence in this case to support the testimony of Douglas
Richards, who except for the immunity given to him, was
otherwise accountable for this crime.
In State v. Kemp (1979), Mont. , 597 P.2d 96,
36 St.Rep. 1215, we discussed the sufficiency of evidence
necessary to corroborate accomplice testimony. First of
all, the sufficiency of such evidence is a question of law.
Kemp, 597 P.2d at 99 and cases cited thereunder. To be
sufficient, it must show more than that a crime was in fact
committed or the circumstances of its commission. It must
raise more than the suspicion of the defendant's involvement
or opportunity to commit the crime charged. But the evidence
need not be sufficient by itself to support the defendant's
conviction or even to make out a prima facie case against
him. It may be circumstantial and can come from the defendant
or his witnesses. Kemp, 597 P.2d at 99. Under section 46-
16-213, MCA, it must be 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.
Keeping in mind these principles, we examine the
corroborative evidence that supports Douglas Richards' testimony.
The Gun
--
Richards testified that, after the killing, he placed
the gun in locker no. 191 in the basement of the bowling
alley along with the money and gloves that had been used. He
testified that he burned the gloves in the boiler firebox,
and melted the gun down with an arc-welder kept in the
bowling alley for equipment repairs. The melting of the gun
generated smoke which was noticeable to bowling alley patrons.
Witness Lynn Norby went bowling at the Skyline Bowl on
January 5, 1980. While there, she said she saw the bowling
alley fill with smoke down on the lanes. She went to the
desk where Forsyth was standing because she thought the
place was on fire and talked to him. He reassured her,
telling her to go ahead and bowl because they were doing
some welding downstairs.
The Money
Richards had testified that the money taken in the
"robbery" had been deposited by him in locker no. 191. He
testified that ten days later he removed the money from the
locker and hid it in two other places in the basement,
behind a floor joist, and in an oil reservoir behind the pin
polishing machine. He spent the large denomination bills,
which had been hidden behind the floor joist, drinking and
gambling. The group of one dollar bills which had been
hidden in the oil reservoir became saturated with oil.
Richards testified that he gave these bills to Forsyth,
who told Richards that to avoid suspicion, he would send
them to the bank with the bowling alley receipts with a
cover story that his partner Jon Ball had spilled furniture
polish on them. Witness Jon Ball testified that he remembered
the one dollar bills which were oily, and that Forsyth had
told him that furniture polish had been spilled on them.
Defendant's Statements
When Richards was arrested on the statutory rape charge,
his first call was to Forsyth. Forsyth went to a Kalispell
attorney for the purpose of learning what to do about bailing
Richards out. Richards testified that when Forsyth failed to bail
him out in accordance with their previous agreement, he
decided to tell the truth about Karen Forsyth's murder and
make the best deal he could for himself. Both parents of
Douglas Richards testified regarding statements made by
defendant the morning following Richards' arrest. William
Richards testified that he received a telephone call from
Debby Neff, the defendant's girlfriend, asking if Forsyth
could come to talk to them. When he arrived, Forsyth told
the Richards' that Douglas Richards had been arrested for
statutory rape and that Forsyth could provide $1,000 of the
$2,500 necessary for bail. Forsyth then said, "If Doug
talks, we will both be in a lot more trouble than he is in
now." Doris Richards testified essentially the same but in
more detail. She stated that Forsyth was very nervous and
very concerned about getting Douglas out when he arrived
that morning. She testified that the defendant kept saying,
"We have got to get him out of there, we have got to get him
out of there because if he talks we are both going to be in
a lot more trouble than he is in now." Doris Richards also
testified that Forsyth stated, "I wish Doug when he gets
out he would get completely out of the country."
There was other evidence. A handwriting expert testified
that the printed name of Greg Phillips on the locker envelope,
when compared to an exemplar taken from Forsyth, could have
been that of Forsyth. Also Forsyth had a poor relationship
with his wife. She was 5'4 1/2" tall and weighed 280 pounds.
She had been emotionally disturbed and suicidal over a
period of years prior to her death. She was hostile to
Debby Neff and had threatened her and her children. Witness
Gary Red Elk testified that Forsyth once told him with
respect to Karen's suicide attempts: "If she's going to do
it I wish she would do it and get it over with." Forsyth
also told Red Elk that divorce was not acceptable because of
Karen's interest in the house, the bowling alley, and several
valuable purebred show dogs that they owned.
On the morning of the killing, the officers requested
of Forsyth his consent to search the bowling alley. Forsyth
gave consent on the condition the officers not search the
locker area where, according to Richards, the evidence of
the murder was hidden. Also on the morning following the
killing, the investigating officer began to suspect the
defendant because he seemed emotionally unaffected by his
wife's death.
In sum, and taken individually, these items of evidence
tend to connect Forsyth with the crime, and to corroborate
the testimony of Richards. Forsyth quarrels on appeal with
the effect of this evidence, and particularly with the
statements related by the parents of Douglas ~ichards.
However, his quarrel goes to the weight of the evidence and
not to its admissibility.
Forsyth also contends that the court erred in its
instruction to the jury on the credibility of an immunized
witness.
The court instructed the jury with respect to the
testimony of Richards as follows:
"The testimony of Douglas M. Richards ought to be
viewed with distrust because he is an accomplice
and in weighing his testimony, you are to further
consider that he has been granted immunity from
prosecution."
The court refused Forsyth's offered instruction which
would have told the jury:
"The testimony of Douglas M. Richards ought to
be viewed with distrust, and because he has given
evidence in exchange for immunity from prosecution,
evidence given by him and other evidence based
upon his testimony is particularly suspect."
The last portion of Forsyth's offered instruction is
taken from language found in our opinion of State v. Kemp,
supra, 597 P.2d at 98.
Under section 46-16-201, MCA, the rules of evidence in
civil actions are applicable to criminal actions, unless
otherwise provided in the criminal code. Under section 26-
1-303, MCA, relating to instructions to the jury on how to
evaluate evidence, it is required that the jury be instructed
by the court on all proper occasions "that the testimony of
an accomplice ought to be viewed with distrust."
find error in the instruction given by the court,
which is not substantially different from that proposed by
Forsyth, although counsel contends there is substantial
difference. The statutory obligation of the District Court
in this cause was to inform the jury that Richards' testimony
ought to be viewed with distrust. A simple statement to
that effect would probably best serve the statutory requirement.
In retrial, we would suggest the simple instruction that
"the testimony of a person accountable for the same crime ought
to be viewed with distrust." Any further embellishment may
tend to lead to confusion and obfuscation.
Forsyth also contended that the testimony of the handwriting
expert Jan Beck should be stricken from the record because
his procedures in examining the envelope were impermissibly
suggestive. We regard the objections made by Forsyth as
merely going to the weight of the testimony, however, and
see no need to exclude that evidence in any further trial.
Forsyth's counsel also contends he was not given enough
time to argue his case to the jury at the conclusion of the
case. This can be avoided in a future trial by an express
agreement arrived at between counsel and the court before
the argument begins as to the amount of time allotted for
making oral argument.
Since we are remanding for a new trial, the other
issues raised by Forsyth are not germane for discussion.
In accordance with this opinion, therefore, the judgment
of conviction for deliberate homicide against the defendant
is vacated, and this cause is remanded to the District Court
for a new trial.
Justice
C/I
We Concur:
Chief Justice
-
* L
& tices
C
JUS
Mr. Justice Daniel J. Shea will file a written dissent at a
later time.
-12-
No. 8 0 - 2 8 5
STATE OF MONTANA,
P l a i n t i f f and R e s p o n d e n t ,
VS .
JERRY PAUL FORSYTH ,
D e f e n d a n t and A p p e l l a n t .
-------------------
D I S S E N T
Mr, J u s t i c e D a n i e l J. S h e a
Dated:
March 29, 1982
Mr. Justice Daniel J. Shea dissenting:
I do not believe the accomplice testimony was sufficiently
corroborated as a matter of law, and therefore, I would
reverse and order the case dismissed. The so-called cor-
roborating evidence in this case falls far short of what the
California court has declared to be insufficient as a matter
of law. See People v. DfAllesandro (1958), 163 Cal.App.2d
559, 329 P.2d 616.
On the other hand, I disagree with the majority that
the defendant is entitled to a new trial solely because the
jury was not instructed on the elements of deliberate
homicide. The elements of this offense were not at issue in
this case, and the failure to instruct the jury on them was
therefore harmless error.
To prove deliberate homicide the State must prove that
the person charged "purposely or knowingly" killed another.
The issue in this case was not whether the defendant "purposely
or knowingly" killed his wife, and the issue was not whether
the defendant had legal excuse or justification to kill his
wife. The evidence was uncontroverted that someone "purposely
or knowingly" and without excuse or justification, killed
Karen Forsyth. The question at trial was whether this
defendant was in any way involved with that killing. The
accomplice testified that he and the defendant planned the
murder and that defendant actually fired the fatal shot.
The defendant, on the other hand, testified that he and his
wife were closing the bowling alley for the night. As he
started to lock the front door, the door was jerked from his
hand. He turned to warn his wife, was struck from behind,
and knocked unconscious. And, of course, he denied that he
and Douglas Richards had planned a murder.
At the conclusion of the trial, an instruction setting
forth the elements of deliberate homicide was accepted by
the trial court, but somehow this instruction was lost in
the paper shuffle and it was not given to the jury. The
defendant at no time brought this to the trial court's
attention, and both the State and the defendant argued the
case to the jury without any need to refer to the elements
of deliberate homicide, for the elements of the crime were not
at issue. The issue was simply whether defendant killed his
wife.
Several jury instructions were given on the charge of
deliberate homicide, although none of them set forth the
elements. Instruction no. 8 stated that the defendant was
accused of deliberate homicide and that the State must prove
every material fact. Instruction no. 9 stated that the State
must prove that each element of the offense was done purposely
or knowingly. Instruction no. 10 told the jury that a material
element of the offense is a voluntary act--that is, the act of
killing must have been voluntary. The term "voluntary act"
was defined for the jury. Further, this case was certainly
not defended on the ground that the killing was either an
accident or that the defendant somehow did not have the state
of mind to commit the offense. Instruction no. 11 told the
jury how the terms "purposely or knowingly" are proved:
"Purpose and knowledge are manifested by the cir-
cumstances connected with the offense. Purpose
and knowledge need not be proved by direct evidence,
but may be inferred from acts, conduct and circum-
stances appearing in the evidence."
This Court has long adhered to the rule that it will not
review a case for a new trial where the trial court failed to
instruct the jury on a matter of law unless that failure is
prejudicial to substantial rights of the appellant. Section
46-20-702, MCA; S t a t e v . Heiser ( 1 9 6 5 ) , 146 Mont. 413, 419,
407 P.2d 370, 373; S t a t e v. Bubnash ( 1 9 6 3 ) , 1 4 2 Mont. 377,
393, 382 P.2d 830, 838. S e e a l s o McGuinn v . C r i s t ( 9 t h C i r ,
1 9 8 1 ) , 657 F.2d 1107. I n McGuinn t h e d e f e n s e was a l i b i , and
t h e d e f e n d a n t a s s e r t e d t h a t b e c a u s e t h e t r i a l c o u r t gave t h e
j u r y t h e i m p e r m i s s i b l e Sandstrom i n s t r u c t i o n ( d e c l a r e d uncon-
s t i t u t i o n a l i n Sandstrom v . Montana ( 1 9 7 9 ) , 442 U.S. 510, 99
S.Ct. 2450, 6 1 L.Ed.2d 391, h e w a s e n t i t l e d t o a new t r i a l .
T h a t i n s t r u c t i o n s t a t e d t h a t " t h e law presumes t h a t a p e r s o n
i n t e n d s t h e o r d i n a r y consequences o f h i s v o l u n t a r y a c t s . " The
N i n t h C i r c u i t , however, h e l d t h i s i n s t r u c t i o n t o b e h a r m l e s s
e r r o r b e c a u s e it c o u l d n o t have had a n e f f e c t on t h e j u r y ' s
decision. The v i c t i m had been s h o t f o u r t i m e s i n t h head and
~
had b e e n v e r y o b v i o u s l y murdered. The C o u r t c o n c l u d e d t h a t a
r e a s o n a b l e j u r o r c o u l d n o t have found beyond a r e a s o n a b l e d o u b t
from t h e e v i d e n c e t h a t t h e d e f e n d a n t v o l u n t a r i l y committed t h e
a c t s c a u s i n g t h e v i c t i m ' s d e a t h w i t h o u t a l s o i n f e r r i n g beyond
a r e a s o n a b l e d o u b t t h a t h e a l s o committed t h e s e a c t s knowingly
o r purposely. The same t h i n g o c c u r r e d h e r e ; t h e o n l y q u e s t i o n
a t t r i a l was w h e t h e r J e r r y F o r s y t h k i l l e d h i s w i f e . An i n s t r u c t i o n
s e t t i n g f o r t h t h e e l e m e n t s o f d e l i b e r a t e homicide would n o t
have a f f e c t e d a r e a s o n a b l e j u r o r ' s d e l i b e r a t i o n s .
Although I have always been a s t i c k l e r f o r p r o p e r j u r y
i n s t r u c t i o n s , I f a i l t o see a b a s i s f o r r e v e r s a l on t h i s ground
where t h e o n l y i s s u e b e f o r e t h e j u r y was w h e t h e r t h e d e f e n d a n t
p a r t i c i p a t e d i n k i l l i n g h i s wife. The d e f e n d a n t wanted t h e
j u r y t o b e l i e v e t h a t someone c a m e i n t o t h e bowling a l l e y and
knocked him u n c o n s c i o u s and t h e n murdered h i s w i f e . Douglas
R i c h a r d s had a d i f f e r e n t s t o r y , and t h e j u r y c h o s e t o b e l i e v e
it. Under t h e s e c i r c u m s t a n c e s , t h e f a i l u r e t o i n s t r u c t t h e
j u r y on t h e e s s e n t i a l e l e m e n t s o f t h e crime, where t h e y w e r e
n o t i n issue,was harmless e r r o r .
-15-
Although I b e l i e v e t h e f a i l u r e t o g i v e a n e l e m e n t s
i n s t r u c t i o n was h a r m l e s s e r r o r h e r e , t h e f a c t t h a t t h e t r i a l
c o u r t f a i l e d t o follow t h e s t a t u t o r y procedure f o r settlement
of jury i n s t r u c t i o n s , cannot be ignored. S e c t i o n 46-16-401(4)
( d ) , MCA, r e q u i r e s a c o u r t r e p o r t e r ' s p r e s e n c e when i n s t r u c t i o n s
a r e s e t t l e d ; b u t a c o u r t r e p o r t e r w a s n o t p r e s e n t when t h e
instructions w e r e settled.
I n s t r u c t i o n s were s e t t l e d l a t e i n t h e e v e n i n g , b u t no
court reporter w a s present. It appears t h a t both p a r t i e s
had o f f e r e d i n s t r u c t i o n s s e t t i n g f o r t h t h e e l e m e n t s o f t h e
o f f e n s e , b u t t h e r e i s no r e c o r d o f what happened t o t h o s e
offered instructions. And, i n a t t e m p t i n g t o s e t t l e a b y s t a n d e r ' s
b i l l , t h e t r i a l c o u r t could not r e c a l l t h e circumstances r e l a t i n g
t o these offered instructions. H e stated that "at the t i m e
t h e s e d i s c u s s i o n s took p l a c e t h e c o u r t b e l i e v e s t h a t midnight
had p a s s e d and everyone was e x h a u s t e d . " The a t t o r n e y s c o u l d
n o t a g r e e on what had happened t o t h e o f f e r e d i n s t r u c t i o n s .
And, o f c o u r s e , b e c a u s e o f t h e f a i l u r e t o f o l l o w t h e s t a t u t e ,
t h e r e i s no r e c o r d of what happened.
B e f o r e t h e c a s e was a r g u e d t o t h e j u r y t h e f o l l o w i n g
morning, t h e p a r t i e s went on r e c o r d on t h e i n s t r u c t i o n s t h a t
had been s e t t l e d t h e n i g h t b e f o r e , and t h e i n s t r u c t i o n s d i d
n o t inciude an elements i n s t r u c t i o n . Neither t h e t r i a l c o u r t
n o r t h e a t t o r n e y s n o t i c e d t h a t a n e l e m e n t s i n s t r u c t i o n had
been o m i t t e d .
Had t h e r e been a r e c o r d o f t h e s e t t l i n g of t h e i n s t r u c t i o n s
t h e n i g h t b e f o r e , t h e C o u r t would have been a b l e , b e f o r e r e a d i n g
t h e i n s t r u c t i o n s t o t h e j u r y , t o d e t e r m i n e t h a t f o r some r e a s o n
t h e e l e m e n t s i n s t r u c t i o n had been o m i t t e d . The C o u r t c o u l d
t h e n have r e c t i f i e d t h e s i t u a t i o n by o r d e r i n g an e l e m e n t s
i n s t r u c t i o n t o be p r e p a r e d . The f a i l u r e o f t h e t r i a l c o u r t
to follow the statute certainly contributed to the failure
to discover the omission of the elements instruction, and
the omission of that elements instruction has ultimately
led to the reversal of the defendant's conviction. Section
46-16-401(4)(d) was meant to be followed. The trial courts
should do so if they want to avoid results such as have
occurred here.