Xo. 85-355
I N THE SUPREME COURT O F THE S T A T E O F MONTANA
1986
STATE O F MONTANA,
P l a i n t i f f arid R e s p o n d e n t ,
-vs-
ROBERT W I L L I A M GONYEA,
D e f e n d a n t and A p p e l l a n t .
A P P E A L FROM: D i s t r i c t C o u r t of t h e F o u r t h 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 C o u n t y of M i s s o u l a ,
T h e H o n o r a b l e Jack L . G r e e n , Judge p r e s i d i n g .
COUNSEL O F RECORD:
For A p p e l l a n t :
J a m e s P. O'Rrien, Missoula, Montana
For R e s p o n d e n t :
Mike G r e e l y , A t t o r n e y General-, H e l e n a , Montana
Barbara Claassen, Asst. Atty. General, Helena
R o b e r t L. D e s c h a m p s , 111, C o u n t y A t t o r n e y , M i s s o u l a
Robert Terrazas, Deputy County Attorney, Missoula,
Montana
S u b m i t t e d on B r i e f s : Aug. 21, 1986
Decided: January 6 , 1987
l ( ,i4-
- :
F i l e d :'-"
Clerk
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
A jury found the defendant/appellant guilty of four
counts of burglary. He was sentenced by the court of the
Fourth Judicial District in Missoula County, Montana, to
twenty-five years in the Montana State Prison. A ten year
sentence was imposed in each of the burgl-ary counts, three
counts to run concurrently, but consecutive to the sentence
in Count I. Five years were added to the sentence because
the defendant is a persistent felony offender. He is
designated a non-dangerous offender for purposes of parole.
Defendant appeals. We affirm.
Appell-ant (Gonyea) presents two issues on appeal:
(1) whether there was sufficient corroborating
evidence to uphold his conviction; and
(2) whether comments by the prosecution on voir dire
and opening statement violated his constitutional right
against self-incrimination.
Gonyea first argues insufficient corroborating evidence
to uphold his conviction. The statutes set forth the
requirements for corroborated testimony and legal
accountability :
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 tends ...
to
connect the defendant with the commission
of the offense ...
Section 46-16-213, MCA.
A person is legally accountable for the
cond.uct of another when:
13) either before or during the
commission of an offense with the purpose
to promote or facilitate such cormission,
he solicits, aids, abets, agrees, or
attempts to aid such other person in the
planning or commission of the
offense ...
Section 45-2-302, MCA.
The question as to whether a witness for the State is
an accomplice is--unless such fact is undisputed--for the
jury, under proper instruction by the court. State v.
Slothower (1919), 56 Mont. 230, 232, 182 P. 270, 271. he
District Court instructed the jury:
It is a question of fact for the jury to
determine from the evidence and from the
law as given you by the court whether or
not any witness other than. Neil Vanderpan
was or was not an accomplice within the
meaning of the law.
This is a proper instruction. The jury also was instructed
as to what an accomplice is and when legal accountability
exists.
At the close of the State's case-in-chief, Gonyea moved
for a directed verdict, alleging insufficient evidence to
sustain a conviction for the burglaries. He argued the three
key witnesses against him were accomplices as a matter of law
and there was insufficient independent corroborative evidence
tending to connect him with the commission of the crime. The
State admitted Neil Vanderpan was an a-ccomplice as a matter
of law, but contested Gonyea's claim that Neil's mother,
Selah Vanderpan, and Kris Davis were accomplices as a matter
of law.
The concept of legal. accountability has been the subject of
much attention in case law.
An accomplice is ..."one who
knowingly, voluntarily and with common
intent with the principal offender unites
in the commission of a crime ... One
may become an accomplice by being present
and ioining in the criminal act, by
aiding and abetting another in its
commission, o r , n o t b e i n g p r e s e n t , by
a d v i s i n g and e n c o u r a g i n g i t s commission;
b u t knowledge and v o l u n t a r y a c t i o n s a r e
e s s e n t i a l i n o r d e r t o impute g u i l t . "
S t a t e v. Harmon ( 1 9 5 9 ) , 135 Mont. 227, 236, 340 P.2d 128,
132, q u o t i n g S t a t e e x r e l . Webb v . D i s t r i c t C o u r t ( 1 9 0 8 ) , 37
Mont. 1 9 1 , 200-201, 95 P. 593, 597.
N e i l Vanderpan t e s t i f i e d he l e f t work w i t h Gonyea t h e
night of t h e b u r g l a r i e s and t h e y went t o A n n e t t e C l e a r y ' s
trailer. Cleary, her son, and Kris Davis were at the
trailer. T h e r e a f t e r Vanderpan and Gonyea l e f t , s p e n t about
two h o u r s a t a S e e l y Lake b a r , t h e n r e t u r n e d t o t h e C l e a r y ' s
trailer. About half an hour later, Gonyea and Vanderpan
again left the trailer. Outside the trailer Gonyea told
Vanderpan t h e y w e r e g o i n g t o t h e R u s t i c s t o b r e a k i n .
They broke a l o c k o f f t h e d o o r t o t h e saw shop and t o o k
money from d r a w e r s . Then t h e y broke t h e l o c k on t h e d o o r t o
t h e warm-up trailer and t o o k money from t h e pop machines.
They proceeded to t h e Swan V a l l e y C e n t e r store, and p r i e d
open t h e back door. They t o o k a s a f e , a b l a c k box, and a
bank hag behind a nearby b u i l d i n g , s t u f f e d t h e i r p o c k e t s w i t h
money and h i d what t h e y d i d n o t t a k e . They r e - e n t e r e d the
s t o r e and t o o k c o f f e e c a n s c o n t a i n i n g c o i n s . Then t h e y went
back toward C l e a r y ' s trailer, h i d t h e c a n s by t h e s i d e o f
C l e a r y l s g a r a g e , and went i n s i d e t h e t r a i l e r .
There i s no e v i d e n c e t h a t K r i s Davis was i n v o l v e d i n
the commission of the burglaries. She was present when
Gonyea and N e i l Vanderpan r e t u r n e d t o C l e a r y ' s t r a i l e r a f t e r
allegedly committing the burglaries. She saw them remove
money from t h e i r p o c k e t s and saw Gonyea h i d e some o f i t i n a
closet i n the trail-er. Gonyea t o l d h e r a b o u t t h e b u r g l a r i e s ,
and that she should tell anyone who asked that he was with
her all that evening and night.
About a week after the burglary, Davis went with Gonyea
and Neil Vanderpan to Kalispell. Vanderpan drove and Gonyea
and Davis rolled coins. Davis made two trips into Rosauer's
with fifty dollars in coins, which she exchanged for paper
money
This trio made two more trips to Kalispell during the
next few days. Selah Vanderpan drcve them both times. She
testified she did not know before the first trip that Gonyea
had committed the burglaries. There is no evidence to the
contrary or to support the contention that she helped plan or
commit the burglaries.
Tr find sufficient evidence in the record tending to
ie
show neither Selah nor Kris were accomplices to make the
question one for the jury. State v. Searle (1952), 125 Mont.
467, 474, 239 P.2d 995, 999. It is within the sound
discretion of the District Court to decide whether a motion
for directed verdict should be granted. Section 46-16-403,
MCA; State v. Goltz (1982), 197 Mont. 361, 642 P.2d 1079;
State v. Doney (Mont. 1981), 636 P.2d 1377, 38 St.Rep. 1707;
State v. White Water (Mont. 1981), 634 P.2d 636, 38 St-Rep.
1664. The motion was properly denied.
Thereafter, Gonyea introduced evidence to sustain his
position. All evidence was considered by the jury, after
proper instruction. "[Wlhere the evidence is conflicting or
doubtful, either as to [whether the witness for the State is
an accomplice] or as to corroboration, the court should not
invade the province of the jury. " State v. Smith (1925), 75
Mont. 22, 27, 241 P. 522, 523.
To constitute rone] an accomplice, he
must have entertained a criminal intent
common with that which moved the
defendants ...
and since [they were]
not personally present joining in the
[burglary, they] must also have advised
and encouraged its commission. Whether
[they] entertained the criminal intent,
and whether [they] advised and encouraged
the defendants, were questions properly
for the determination of the jury under
appropriate instructions.
State v. Slothower, supra, 56 Mont. at 232, 182 P. at 271.
The jury did not determine that Selah Vanderpan or Kris
Davis had the requisite criminal intent (mental state) to
commit burglary, or that they aided in any way the planning
of the burglary. Therefore it determined they were not
accomplices. We will not overturn a jury's decision when it
was reached after proper instruction. Because neither Selah
nor Kris was an accomplice their corroborative testimony is
admissible. " [ T I he corroboration is sufficient if, 'unaided
the testimony of an accomplice, tends to connect the
defendant with the commission of the offense. I " (Citations
omitted.) State v. Smith, supra, 75 Mont. at 27, 241 P. at
523.
Gonyea did not testify in his own behalf. He argues
the prosecutor's comments on voir dire and opening statement
were highly improper and prejudicial. His motion for
mistrial was denied. Gonyea also claims certain statements
made by the prosecutor on opening statement were prejudicial.
He argues these two incidents entitle him to a reversal of
h.is conviction. We disagree.
The right of an accused to remain silent is, of course,
fundamental. It is well settled in this state that a comment
so stating is not the same as a comment on the failure to
exercise that right. Sta.te v. Gladue (~ont.19841, 677 P.2d
1028, 1032, 41 St.Rep. 249, 254. A comment on the
defendant's failure to testify violates the self
incrimination clause of the Fifth Amendment, applicable to
the various states by way of the Fourteenth Amendment.
Griffin v. California (1965), 380 U.S. 609, 611, n. 3, 85
S.Ct. 1229, 1231, n. 3, 14 L.Ed.2d 106, 108, n. 3. The
prosecutor or judge who makes such a comment "solemnizes the
silence of the accused into evidence aga-inst himself."
Griffin, supra, 380 U.S. at 614, 85 S.Ct. at 1233, 14 L.Ed.2d
at 110. Such a comment results in reversible error.
After careful consideration of the entire transcript,
however, we are persuaded neither the prosecutor's comments
on voir dire, nor opening statement can be held to have been
such comments. We find them to be harmless beyond a
reasonable doubt. State v. Gladue, supra, 677 P.2d at 1031,
41 St.Rep. at 253; Chapman v. California (1976), 386 U.S. 18,
24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, 710. We do not find:
[Tlhe language used was manifestly
intended or was of such a character that
the jury would naturally and necessarily
take it to be a comment on the failure of
the accused to testify.
State v. Anderson (1976), 156 Mont. 122, 125, 476 ~ . 2 d780,
782, citing Knowles v. U.S. (10th Cir. 1955), 224 F.2d 168,
Defendant's right not to testify is clearly protected.
The prosecution should not refer to the right directly or
indirectly at any stage of the trial. Failure to follow this
rule of conduct is inviting a mistrial or reversal on appeal.
We affirm.
Pf / / i
Justices
\