No. 89-073
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
LUCY MARIE REDCROW,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Douglas Harkin, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Margaret L. Borg, Public Defender, Missoula, Montana
For Respondent:
Hon. Marc Racicot, Attorney General, Helena, Montana
James Yellowtail, Asst. Attorney General, Helena
Robert L. Deschamps, County Attorney, Missoula,
Montana
t- -: Submitted on Briefs: Jan. 18, 1990
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( Decided: Mar. 29, 1990
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Justice Fred J. Weber delivered the Opinion of the Court.
Lucy Marie Redcrow was convicted of deliberate homicide
by a jury in the Fourth Judicial District, Missoula County,
Montana. Ms. Redcrow was sentenced to a term of fifty years,
with an additional ten years for the use of a weapon, the
sentences to run consecutively. She was designated a danger-
ous offender for purposes of parole. Ms. Redcrow appeals her
conviction. We affirm.
The issues presented for our review are:
1. Did the District Court err in denying a new trial to
Lucy Marie Redcrow?
2. Did the District Court err in denying separate
trials to Lucy Marie Redcrow and her co-defendant, Paul
Regudon?
In the early evening hours of August 26, 1987, the body
of Marie Richie was discovered by Missoula City Police Offi-
cers along the bank of the Clark Fork River in Missoula,
Montana. Paul Regudon was apprehended nearby. Lucy Marie
Redcrow was also discovered in the brush along the Clark Fork
River not far from the location of the victim's body.
Law enforcement officers determined that the homicide
had been committed at the nearby Sweetrest Motel, in Room 23.
In this room, which was registered to Paul Regudon, law
enforcement officers found large amounts of blood, and a
k n i f e l a t e r determined t o b e t h e one u s e d i n t h e s t a h b i n q o f
Ms. Richie.
In the months prior to August 26, 1987, Lucy Marie
Redcrow, P a u l Regudon, M a r i e R i c h i e , Kathy G l o v e r , and F r a n k
F r y s h a r e d t h e r e s i d e n c e o f Ronald F r y i n M i s s o u l a , Montana.
Kathy G l o v e r moved out, leaving a jacket a t t h e Fry resi-
dence. Ms. Glover heard t h a t M a r i e R i c h i e had d i s p o s e d o f
t h e jacket. Ms. G l o v e r and M s . Redcrow made s e v e r a l demands
upon M a r i e R i c h i e t o r e t u r n t h e j a c k e t . On A u g u s t 26, 1987,
Ms. Glover and Ms. Redcrow m e t at a Missoula bar called
Flippers, and a g r e e d t o " b e a t up" Marie R i c h i e . Ms. Redcrow
l e f t t h e b a r and r e t u r n e d l a t e r w i t h M s . R i c h i e accompanying
her. A t t h e b a r , b o t h women made t h r e a t s t o M s . Richie. Ms.
Redcrow t o o k a c l o s e d k n i f e from h e r p o c k e t and t h r e a t e n e d
Ms. Richie with it.
The t h r e e women l e f t t h e b a r and b e g a n w a l k i n g a l o n g t h e
s o u t h bank o f t h e C l a r k F o r k R i v e r . Ms. Glover t e s t i f i e d a t
trial that she hit Ms. Richie in the back several times
d u r i n g t h i s walk. She a l s o t e s t i f i e d t h a t s h e h i t M s . Richie
i n the face, possibly breaking M s . Richie's nose, while M s .
Redcrow restrained Ms. Richie. Ms. Glover also testified
that Ms. Redcrow r e p e a t e d l y h i t M s . R i c h i e i n t h e back o f t h e
head with a closed knife. Ms. Glover testified that Ms.
Redcrow r i p p e d M s . Richie's shirt off, and s t a b b e d h e r w i t h
t h e k n i f e i n t h e neck.
Several witnesses observed the women during this time.
The incident was reported and Missoula City Police Officer
Bill Olsen was dispatched to the area. He found Ms. Richie
and Ms. Redcrow at McCormick Park. Ms. Glover had returned
to the bar by that time. Officer Olsen observed that Ms.
Richie was bleeding from the back of the head and offered her
assistance. However, Ms. Richie refused assistance and
Officer Olsen left the area.
Bill Shorten testified at trial. He stated that he
observed two women crossing to the north side of the Clark
Fork River via a railroad bridge between 6 and 7 p.m. He
stated that the shirt of one of the women was ripped down the
front and had bloodstains on it.
Ken Thormuhlen also observed two women walking by his
barber shop at about the same time, one of whom had a ripped
shirt, and blood on the back of her shirt and neck. He
noticed that they were walking in the direction of the
Sweetrest Motel.
Another Missoula resident, Chester Field, gave one of
his employees, Charles Hoshaw, a ride home. Mr. Hoshaw
resided in Room 24 at the Sweetrest Motel. Mr. Field testi-
fied that as he started to drive away, a tall Indian girl
approached his truck and opened the door to the passenger
side. Mr. Field stated that she requested a ride to either
Flipper's or to the town of Ravalli; however, he d e n i e d her
request.
Mr. Hoshaw testified that shortly after Mr. Field
dropped him off Ms. Redcrow came to his room and asked for
two cigarettes. He observed that her hands and feet were
covered with blood.
Another resident of the Sweetrest Motel observed two
people carrying a body past his window. He called the
police.
On August 27, 1987 an autopsy was performed on Ms.
Richie. Dr. Kenneth Mueller found multiple injuries, includ-
ing five potentially fatal wounds. Four stab wounds had
penetrated Ms. Richie's chest cavity and lungs. A fifth
wound had severed the left carotid artery.
Although neither Ms. Redcrow nor Mr. Regudon testified
at trial, both gave separate video-taped statements to law
enforcement officers soon after the incident. On August 27,
1987, Ms. Redcrow gave a statement to law enforcement in
which she stated she had stabbed Ms. Richie three or four or
maybe more times in the motel room occupied by Paul Regudon
at the Sweetrest Motel. On August 27, 1987, Mr. Regudon told
law enforcement officers that both Ms. Redcrow and Ms. Richie
came to his room at the Sweetrest Motel. He stated that Ms.
Redcrow stabbed Ms. Rlchie to death while Ms. Richie cried
out, "Let me live. Let me live." Mr. Regudon stated that he
attempted to clean the knife and the shoes worn by Ms.
Redcrow, and that he helped Ms. Redcrow carry the body of the
victim down to the river. These video-taped statements were
introduced into evidence at trial, and heard by the jury.
Lucy Marie Redcrow was charged with deliberate homicide.
Paul Regudon was charged with deliberate homicide by account-
ability. The defendants were tried jointly by jury. Ms.
Redcrow was found guilty of deliberate homicide. Mr. Regudon
was acquitted.
I
Did the District Court err in denying a new trial to
Lucy Marie Redcrow?
Ms. Redcrow was convicted by jury of deliberate homicide
on February 19, 1988. The original sentencing date of March
21, 1988, was postponed until April 4, 1988. On April 3,
1988, Ms. Redcrow requested an interview with Dr. Shea, a
psychiatrist who had examined her prior to trial. During
this conversation, Dr. Shea began to suspect that Ms. Redcrow
suffered from "battered women's syndrome". He also concluded
that it was possible Ms. Redcrow had not actually committed
the homicide, but had confessed to the homicide as a result
of her battered woman syndrome. At the request of defense
counsel, the sentencing date was again postponed, and on
April 22, 1988, defendant moved the court for a new trial.
In the motion for a new trial, defendant urged that new
evidence had been discovered, as contained in an affidavit by
Dr. Robert Shea. Dr. Shea's affidavit in support of the
motion stated that he had administered tests to Ms. Redcrow
prior to trial and determined that she was not suffering from
a mental disease or defect which would constitute a defense
to the crime; that he was informed on April 1, 1988 that Ms.
Redcrow desired to see him; that he had interviewed Ms.
Redcrow on at least six occasions commencing with April 3,
1988; that since April 3, 1988, Ms. Redcrow had taken the
position that she did not cause the death of Marie Ritchie
(sic), but was previously covering for the person who did;
that Ms. Redcrow's prior willingness to assume responsibility
for another's actions is consistent with the battered women's
syndrome from which she suffers, and other aspects of her
psychological makeup; and that it had taken a unique set of
circumstances to allow Lucy Redcrow to reach this point of
disclosure, some of which were not in place prior to the
trial.
On May 23, 1988 the District Court heard testimony and
oral argument on the motion for a new trial. Dr. Shea testi-
fied at this hearing. In substance his testimony indicated
that prior to trial he had found Ms. Redcrow did not suffer
from mental disease or defect and could assist in her own
defense. He stated that after trial, on the evening of Good
Friday he was called by personnel from the county jail who
stated that Ms. Redcrow was terribly upset. Since Dr. Shea
was leaving town he did not see Ms. Redcrow until Sunday
morning. At that time she was very angry with him because
she had read copies of his presentence investigation reports
and the tribal reports. After talking for a while, Ms.
Redcrow related to Dr. Shea that she had been having night-
mares. Dr. Shea testified that basically the message of her
dream was that Ms. Redcrow was to be sentenced for something
she did not do.
Dr. Shea testified that he began therapeutic sessions
with Ms. Redcrow, during which he recognized the battered
women's syndrome. He explained that this syndrome produces
feelings of guilt even though one may be a victim. He then
stated his belief that Ms. Redcrow was being honest in her
present contention that she did not commit the homicide. He
stated that he would support her in this position.
Both parties briefed the motion. In a memorandum and
order, dated September 31, 1988, the District Court denied
the motion for a new trial. Ms. Redcrow contends the Dis-
trict Court abused its discretion in denying her a new trial.
A new trial may be qranted pursuant to $$ 46-16-702, MCA,
which provides:
Motion for a new trial. (1) Following a
verdict or finding of guilty, the court may grant
t h e d e f e n d a n t a new t r i a l i f r e q u i r e d i n t h e i n t e r -
est of justice.
( 2 ) The m o t i o n f o r a new t r i a l must b e i n
w r i t i n g and must s p e c i f y t h e g r o u n d s t h e r e f o r . It
must b e f i l e d by t h e d e f e n d a n t w i t h i n 30 d a y s
following a v e r d i c t o r finding of g u i l t y . Reason-
a b l e n o t i c e o f t h e m o t i o n must b e s e r v e d on t h e
state.
( 3 ) On h e a r i n g t h e m o t i o n f o r a new t r i a l , i f
j u s t i f i e d by law and t h e w e i g h t o f t h e e v i d e n c e ,
t h e c o u r t may:
( a ) deny t h e m o t i o n ;
( b ) q r a n t a new t r i a l ; o r
( c ) modify o r change t h e v e r d i c t o r f i n d i n g
by f i n d i n g t h e d e f e n d a n t g u i l t y o f a l e s s e r i n c l u d -
ed o f f e n s e o r f i n d i n g t h e d e f e n d a n t n o t g u i l t y .
I n i t i a l l y , we address t h e f a c t t h a t M s . Redcrow's m o t i o n
f o r a new t r i a l was n o t f i l e d within t h i r t y days following
t h e v e r d i c t , a s r e q u i r e d by t h e s t a t u t e . D e f e n d a n t was found
g u i l t y on F e b r u a r y 1 9 , 1988, and t h i s m o t i o n was n o t f i l e d
u n t i l A p r i l 22, 1988. The D i s t r i c t C o u r t n o t e d t h i s u n t i m e -
l i n e s s i n i t s o r d e r , y e t a d d r e s s e d t h e m o t i o n on i t s m e r i t s
since t h e motion was f i l e d within a "reasonable period of
t i m e " a f t e r t h e v e r d i c t , and b e c a u s e o f t h e s e r i o u s n a t u r e o f
the offense. W point out t h a t these factors did not require
e
t h e D i s t r i c t Court t o e n t e r t a i n t h i s motion. S t a t e v. Best
( 1 9 7 2 ) , 1 6 1 Mont. 20, 26, 503 P.2d 997, 1000. However, in
view of the extensive consideration of t h e motion by the
District Court, we consider it appropriate to review this
issue.
In reviewing the denial of a motion f o r a new t r i a l ,
t h i s Court's s t a n d a r d o f review i s t o determine whether t h e
District Court abused its discretion. State v. Perry ( ~ o n t .
Both parties agree that the factors to consider on a
motion for new trial were enumerated in State v. Greeno
(1959), 135 Mont. 580, 586, 342 P.2d 1052, 1055, as follows:
( 1 ) That the evidence must have come to the knowl-
edge of the applicant since the trial; (2) that it
was not through want of diligence that it was not
discovered earlier; (3) that it is so material that
it would probably produce a different result upon
another trial; (4) that it is not cumulative
merely--that is, does not speak as to facts in
relation to which there was evidence at the trial;
(5) that the application must be supported by the
affidavit of the witness whose evidence is alleged
to have been newly discovered, or its absence
accounted for; and (6) that the evidence must not
be such as will only tend to impeach the character
or credit of a witness.
In the present case, the arguments of the parties focus on
the first three of the above-mentioned factors.
Defendant contends the requisite factors are met in this
case. The new evidence Ms. Redcrow presents is her assertion
that she did not commit the homicide. This assertion contra-
dicts her previous statement that she stabbed Ms. Richie
several times in the motel room. Ms. Redcrow contends that
this constitutes new evidence because she did not understand
that she was not responsible for the homicide until after the
trial, through her interviews with Dr. Shea. Further, she
contends she could not, with due diligence, have discovered
this prior to trial since the battered women's syndrome had
distorted her mental state, and because only time, including
certain triggering events, could change her understanding.
Ms. Redcrow contends the syndrome is unique in that it pro-
duces "learned helplessness" which prevents the victim from
asserting her own rights, and that overcoming this syndrome
takes time. Ms. Redcrow asserts that because of this syn-
drome she was unable to disclose to her counsel the informa-
tion necessary to present a proper defense. Defendant
alleges that she has been a victim of battering since the age
of five; that this type of abuse placed her under the control
of her co-defendant Paul Regudon; and that her distorted
mental state led her to accept her own guilt for the offense
charged. Defendant contends the evidence is so material that
upon a new trial a different result is likely, since in a new
trial she would be able to assert her innocence.
The District Court found that defendant's arguments
failed on each of the first three factors of the Greeno test,
and we agree. Defendant has produced no new facts which were
unknown to her prior to trial. Rather, she is attempting to
use the syndrome to explain why she did not provide this
alleged new evidence prior to trial. Further, Dr. Shea had
conducted extensive testing of Ms. Redcrow prior to trial and
was aware of Ms. Redcrow's history and abusive relationships.
Thus, as to the first two factors, we conclude that Ms.
Redcrow's current assertion of innocence is not new evidence
unknown prior to trial, and that the battered women's syn-
drome could have been discovered with due diligence. We
agree with the District Court's conclusion that this syndrome
is not a proper basis to justify silence or a false version
of the homicide.
The District Court also found that the alleged new
evidence was not so material that it would produce a differ-
ent result at trial. Ms. Redcrow's conviction was based in
substantial part on testimony of eyewitnesses who saw her and
the victim just prior to the stabbing, as well as corroborat-
ing physical evidence. A summary of this evidence follows.
Ms. Glover testified that Ms. Redcrow threatened Ms.
Richie with her knife while the blade was opened when they
initially met at Flippers. She testified that Ms. Redcrow
assaulted Ms. Richie numerous times during the walk along the
river, hitting her with the closed knife on the back of the
head, stabbing her in the neck with the open knife, and
ripping Ms. Richie ' s shirt off .
Officer Olsen testified that Ms. Richie had blood on the
back of her head when he spoke to her at McCormick Park.
Numerous witnesses, including William Shorten, and Ken
Thormuhlen observed Ms. Redcrow and Ms. Richie walking across
the railroad bridge and along Broadway toward the Sweetrest
Motel. Both Mr. Shorten and Mr. Thormuhlen noticed that Ms.
Richie appeared to have difficulty walking.
Mr. Hoshaw, the resident of Room 24 of the Sweetrest
Motel, testified that when Ms. Redcrow came to his room
requesting cigarettes he noticed blood on her hands and feet.
At trial an inmate, Brenda Shoulders, testified that Ms.
Redcrow admitted killing Ms. Richie. Substantial trial
evidence, independent of Ms. Redcrow's pretrial confession,
supports the verdict of deliberate homicide.
At a new trial Ms. Redcrow's assertion of innocence
would only present conflicting or inconsistent evidence to be
weighed by the jury and as such is not so material as to
require a new trial. State v. Miller (Mont. 1988), 757 P.2d
1275, 1289-90, 45 St.Rep. 790, 807 (post trial letters from
accomplice exculpating defendant were not new evidence neces-
sitating a new trial but were merely an additional inconsis-
tency for consideration by the jury).
Defendant analogizes to Nagell v. United States (5th
Cir. 1 9 6 6 ) , 354 F.2d 441, where the denial of a motion for a
new trial based on newly discovered evidence was reversed on
appeal. In Nagell defendant had sustained brain damage in an
airplane accident in 1954. This occurred ten years prior to
the offense for which he was tried. Numerous doctors exam-
ined Nagell for mental competency prior to trial and all
concluded he was competent to stand trial. At trial, several
doctors testified that Nagell knew the difference between
right and wrong at the time of the offense. However, these
doctors were unaware of the brain injury and this evidence
was not presented at trial. Nagell was convicted. After
trial, Nagell began to talk freely with his counsel and
disclosed facts previously known only to defendant. In a
subsequent hearing, several doctors testified that based on
newly discovered evidence which defendant concealed because
of a brain injury, he was not able to distinguish between
right and wrong at the time the crime was committed. In the
present case, defendant analogizes to Naqell, claiming that
her syndrome caused her to conceal information prior to
trial.
The present case is distinguishable from Nagell. The
capacity of Ms. Redcrow to form the requisite intent, or to
know right from wrong, is not at issue. At the hearing on the
motion for a new trial, Dr. Shea testified that Ms. Redcrow's
syndrome would not have affected her ability to assist in
preparing her defense. This Court considered a post trial
claim of mental disease or defect in State v. Higley (1980),
190 Mont. 412, 621 P.2d 1043, and specifically held that this
type of claim may not serve as a basis for a new trial.
Higley, 621 P.2d at 1056. We conclude that Naqell is not
authority for a new trial in the present case.
The State also contends that the present case merely
involves a "recantation," which should be viewed with dis-
trust, citing Perry, ?58 P.2d at 275. Ms. Redcrow urges that
her present denial of guilt is not a "recantation" of previ-
ous testimony. She explains that her original acceptance of
guilt merely demonstrates her disturbed perceptions resulting
from the syndrome. It is not necessary to discuss whether
Ms. Redcrow's present assertion constitutes a recantation.
If evidence of Ms. Redcrow's battered women's syndrome and
assertions of innocence were presented at a new trial, this
would merely constitute additional evidence for the jury to
weigh in its deliberations. As noted previously, conflicting
or inconsistent evidence is not so material as to require a
new trial. Miller, 757 P.2d at 1289-90. Further, we again
emphasize the very extensive evidence pointing to Ms.
Redcrow's guilt, independent of any testimony on her part.
We affirm the conclusion of the District Court that the
asserted new evidence does not satisfy the level of material-
ity demanded by the Greeno test. Because our conclusions in
regard to the first three factors of the Greeno test are
dispositive, we need not address the final three factors. We
conclude that the District Court properly denied Ms.
Redcrow's motion for a new trial based on new evidence. We
affirm the order of the District Court.
Did the District Court err in denying separate trials to
Lucy Marie Redcrow, and her co-defendant, Paul Regudon?
On January 11, 3.988, counsel for Mr. Requdon moved to
sever Mr. Regudon's trial from that of co-defendant, Ms.
Redcrow. Ms. Redcrow did not make a similar motion. Howev-
er, she supported Mr. Regudon's motion to sever with an
affidavit stating she had no objection to the severance and
that trying the cases together would be prejudicial, espe-
cially to defendant Requdon. Ms. Redcrow now contends that
based on the asserted new evidence, she was prejudiced by
having the cases tried together. She claims prejudice in
that she was forced to sit near Mr. Requdon during trial.
She claims that the presence of Mr. Regudon, her batterer,
exercised control over her even during trial. She claims
this was prejudicial in that had he not been present she
might have felt free to assert her innocence.
Ms. Redcrow neither moved for a severance nor joined in
Mr. Regudon's motion for a severance. " [I]t is the general
rule that failure to object to an alleged error at trial
results in a waiver of the right to challenge the error on
appeal." State v. Howie (1987), 228 Mont. 497, 500, 744 P.2d
156, 158; State v. Long (1986), 223 Mont. 502, 505, 726 P.2d
1364, 1366. Further, Ms. Redcrow's attempt to base the
asserted prejudice upon post-trial discovery of new evidence
is unavailing. The disposition of a severance motion is
determined by the evidence presented at the time of the
motion and not upon subsequent developments. People v.
Gonzales (Cal.App. 1970), 84 Cal.Rptr. 863, 869-70. The
issue of the propriety of the joint trial was not preserved
for review by this Court and we will not address this issue.
Affirmed.
s Chief Justice
(A* d*
B% Justices