No. 90-213
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
STATE OF MONTANA,
Plaintiff and Respondent,
FEB P 4 199%
ROY LEE DUNCAN,
OF SUPREME C Q U m
Defendant and Appellant. srAYi&W A4@4tam
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Broadwater,
The Honorable Jeffrey M. Sherlock, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
J. Mayo Ashley, Esq., Helena, Montana
For Respondent:
Hon. Marc Racicot, Attorney General; James
Yellowtail, Assistant Attorney General, Helena,
Montana
John Flynn, County Attorney, Townsend, Montana
Submitted on Briefs: December 20, 1990
Decided: February 14, 1991
Filed: *
Clerk
Chief Justice J. A. Turnage delivered the Opinion of the Court.
Roy Lee Duncan appeals his convictions of robbery and
deliberate homicide through accountability following a jury trial
in the First Judicial District, Broadwater County. We affirm.
Duncan presents the following issues on appeal:
1. Were Ursla Smith, Sherry Hendricks and Ginny Penn
accomplices, and if so, did independent evidence sufficiently
corroborate the accomplice testimony?
2. Is the evidence in this case sufficient to support a
conviction of deliberate homicide through accountability?
3. Is the felony murder rule under 5 45-5-102 (1)(b), MCA,
constitutional?
In July, 1989, Roy Lee Duncan, along with five other adults
and three small children, traveled to Montana in a single car. The
adults were members of a self-formed group. The children are
incidental to this appeal, and as such, will not be further
discussed.
One of the adults, Ernest "Erniett
Mazurkiewicz was considered
by other group members as the leader of the group. On June 24,
1989, Ernie instructedthe other adults, Roy, Joe Milinovich, Ursla
Smith, Sherry Hendricks, and Virginia "Ginnytt
Penn, to place their
fingerprints, made from their own blood, on individual pieces of
paper. Each person signed and dated the piece of paper containing
their fingerprint. These pieces of paper signified comradery and
loyalty to Ernie. Ernie also told the adults that these pieces of
2
paper meant that they were members with him forever, and the only
way they could leave the group was "in a pine box."
While in Big Timber, Montana, Ernie asked Ursla, the treasurer
of the group, to give Roy some money to purchase a handgun. Ursla
complied, but Roy was unable to purchase the handgun because he was
an out-of-state resident. The group eventually drove to Billings,
Montana, where Roy and Ursla went to the local driver's licensing
bureau and attempted to obtain Montana driver's licenses for in-
state identification. Both Roy and Ursla paid $12.00 to a clerk
at the driver's licensing bureau in order to apply for a driver's
license, and both received a receipt from the clerk. Ursla passed
the required written driver's license examination, and the clerk
properly validated her receipt making it a learner's permit. Roy,
however, failedthe written examination, and accordingly, the clerk
did not validate his receipt as a learner's permit. Ursla,
however, upon Ernie's request, falsified Roy's receipt to make it
appear that Roy passed the test, and was a recipient of a learner's
permit.
The group then left Billings and Roy purchased two handguns
by using his falsified learner's permit as identification; one of
the handguns, a .22 caliber FIE revolver, was purchased in
Columbus, Montana, and the other, a .25 caliber Loricin semi-
automatic, was purchased in Big Timber, Montana. Ursla testified
that following the purchases of the handguns, she overheard Ernie
telling Roy how to commit robberies. Sherry and Ginny testified
3
that following the purchases of the handguns, they were aware that
the handguns were going to be used to rob.
The group proceeded west on Interstate 90 through Montana, and
on the evening of July 24, 1989, stopped at a convenience store
outside of Bozeman. Roy, Ernie, Ursla, and Joe went inside the
convenience store; Sherry and Ginny remained in the car. While
in the convenience store, Roy engaged in conversation with Larry
Beckwith, who was en route to Alaska where he had an employment
opportunity. Following his conversation with Larry, Roy informed
Ernie that Larry could obtain employment for them in Alaska.
Together with Ernie, Roy again talked with Larry to further
pursue the notion of possible employment opportunities in Alaska.
Apparently, after this conversation and a phone call placed by
Larry to Alaska, Larry agreed to take Roy, Ernie, and Joe to Alaska
and help them find jobs.
Larry and the group left the convenience store simultaneously
and headed north toward Townsend, Montana. Joe rode with Larry in
his red pick-up truck and the rest of the group followed Larry's
pick-up in their car. Shortly after leaving the convenience store,
Larry's pick-up truck pulled off the highway; the group's car also
stopped. Roy then joined Larry and Joe in the pick-up and the
vehicles once again continued to drive down the highway with the
pick-up leading the way. Later, the pick-up pulled off the highway
again and the car likewise pulled over. A brief exchange occurred,
but the riders in the vehicles remained the same: Larry, Roy, and
4
Joe rode in the pick-up and the rest of the group rode in the
following car.
Sometime later, Larryls pick-up began to swerve on the
highway; Ernie, the driver of the groupts car, passed the pick-
up, drove through Townsend, and then pulled the car over to the
side of the highway and waited for the pick-up. The pick-up
eventually pulled up behind the group s car, whereby the pick-up
then led the car down a secondary road off of the main highway.
At this point Ernie asked Ursla to hand him Duncan1s handgun,
the loaded .22 caliber FIE revolver, which was located in the
passenger side panel of the car; Ursla complied. Both vehicles
once again pulled off the road. Ernie got out of the car and
joined Roy who was standing in the roadway. Joe was standing in
a nearby ditch straightening his clothes. ~rniehanded Roy the
handgun and told Roy that the group was going to spend the night
at a rest area. Ernie then got back into the car, and the car
drove off, leaving Roy, Joe, Larry and the pick-up behind.
About forty-five minutes later, the car and the pick-up met
at an exit ramp outside a nearby town. After both vehicles pulled
over, Roy got out of the pick-up and handed Larryls wallet to
Ernie; Ernie gave the wallet to Ursla for safe-keeping. The
vehicles then proceeded to a gas station and later to a rest area.
At the rest area, Ursla testified that after she inquired about
what happened on the secondary road, Roy stated that he wovertookw
Larry and lasent Mr. Beckwith to hell where he belonged.I1 Ginny
5
testified that Roy said "that he had got the guy, didn't know how
many times he had shot him and that Joe had hit him with a rock
but he wouldn't go down. " Additionally at the rest area, Ernie,
who had regained possession of the .22 caliber FIE revolver,
emptied the handgun and took out the shells.
The car and pick-up proceeded on to a second rest area, and
stayed a brief time. Upon leaving this second rest area, the car
and pick-up truck headed south on Interstate 15. Ursla, Sherry,
and Ginny testified that, at this point, they fell asleep in the
car. The three testified that they were awakened when Roy and Joe,
who had been riding in Larry's pick-up, entered the car with
Larry's possessions. At this point, the three women became aware
that the pick-up was ablaze.
Larry's truck was later reported to be burning on Interstate
15 approximately six miles north of Dillon, Montana, and authori-
ties later identified that the pick-up belonged to Larry from the
pick-up's license plate.
At around noon on July 25, 1989, a detachment from the Montana
National Guard discovered Larry's body on an abandoned portion of
Highway 12 approximately 2.2 miles north of Townsend, Montana. An
investigation revealed that Larry had been robbed due to the
absence of his identification, wallet, or personal property, and
the fact that Larry's rear pant's pockets were turned inside out.
An autopsy revealed that Larry had died at around midnight on July
25, 1989, from "internal bleeding and injuries of the spinal cord
6
and structures at the base of the skull due to the gunshot wound
of the head." A firearms expert testified that the bullets
recovered from Roy's body were .22 caliber and could only have been
fired from one of "approximately eight different brands of
firearmsw including an FIE revolver.
The group, meanwhile, drove to Las Vegas, Nevada. Roy, Joe,
and Ginny separated from the group in Las Vegas, and proceeded to
Texas. Some time later, law enforcement officials in Las Vegas,
determined that Ernie, Ursla, and Sherry may have been involved in
the homicide of Larry in Montana. When questioned by the offi-
cials, all three discussed Larry's homicide and implicated various
members of the group. Subsequently, Roy was also arrested in Las
Vegas after he returned from Texas, and Ginny was arrested in
Springfield, Missouri, where she had fled after leaving Texas. At
the time Roy was arrested, he was wearing a belt owned by Larry,
which had Larry's name printed on the back. Joe was arrested
sometime later in New Jersey.
Following his extradition to Montana, Ernie was charged with
robbery and deliberate homicide through accountability. Alterna-
tively, he was charged with deliberate homicide under the felony
murder rule. Initially, Ernie pled not guilty to these charges,
however, on December 19, 1989, he changed his pleas and pled guilty
to robbery through accountability and deliberate homicide under the
felony murder rule. He is currently serving sentences in prison
for these offenses. Joe later pled to the same charges as Ernie,
7
and is also currently imprisoned. The original charges against
Ursla were reduced to robbery. Ursla pled guilty to robbery and
is currently imprisoned for this offense. The charges against
Sherry and Ginny were dismissed.
On October 13, 1989, following his extradition from Las Vegas,
Roy was charged by information with the offense of Count I,
deliberate homicide under 1 45-5-102 (1)(a), MCA, charged alternate-
ly as Count 11, deliberate homicide through accountability under
5 5 45-5-102(1)(a), 45-2-301, and 45-2-302, MCA, and Count 111,
deliberate homicide under the felony murder rule, 5 45-5-102 (1)(b),
MCA. Later, this information was amended to charge the offenses
of Count I, robbery under 5 45-5-401, MCA, and Count 11, deliberate
homicide through accountability under 5 5 45-5-102 (1)(a), 45-2-301,
and 45-2-302, MCA, charged alternatively as Count 111, deliberate
homicide under the felony murder rule, 5 45-5-102 (1)(b), MCA.
From the record, testimony at trial established that while Roy was
imprisoned at the Broadwater County jail awaiting trial, he
admitted to a cell-mate that he shot Larry five times in the face.
Following a jury trial on January 5, 1990, Roy was found
guilty of Count I, robbery, and Count 11, deliberate homicide
through accountability. On March 19, 1990, the District Court
sentenced Roy to forty years imprisonment on Count I and 100 years
imprisonment for Count 11, both sentences to run consecutively.
The District Court additionally designated Roy a dangerous offender
for parole purposes. From his convictions, Roy appeals.
8
1. Were Ursla Smith, Sherry Hendricks and Ginny Penn
accomplices, and if so, did independent evidence sufficiently
corroborate the accomplice testimony?
First, appellant asserts that Ursla, Sherry and Ginny were
accomplices with Roy because all three women were members of this
self-formed group and actively participated in the group's
activities. Moreover, the appellant asserts that these women were
accomplices because they were present during the commission of the
crimes, and knew what was unfolding. Second, appellant asserts
that as accomplices, their testimony was not sufficiently cor-
roborated by other witness testimony at trial as required under 5
46-16-213, MCA.
The State argues that Sherry and Ginny were not accomplices
because they were not involved in the planning and commission of
Roy's offenses, and therefore, their testimony is not subject to
§ 46-16-213, MCA. The State further argues that although Ursla was
an accomplice and was subject to corroboration under 5 46-16-213,
MCA, independent evidence established a nexus between Roy and the
robbery and homicide of Larry, which corroborated Ursla's tes-
timony. We agree with the State's contentions.
The definition of an accomplice is well-settled:
This concept has been the subject of much
attention in case law. We have emphasized
that mere presence at the scene of a crime is
not enough to charge one as an accomplice.
[Citations omitted.] Moreover, the knowledge
that a crime is about to be committed does not
make one an accomplice. [Citations omitted.]
A true accomplice is:
l1 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
joining in the criminal act, by aiding and
abetting another in its commission, or not
being present, by advising and encouraging its
commission; but knowledge and voluntary ac-
tions are essential in order to impute
guilt.111 [Citations omitted.]
State v. Nordahl (1984), 208 Mont. 513, 517, 679 P.2d 241, 243.
Here, although group members Sherry and Ginny were at the scene of
the crimes, and were aware that the handguns purchased by Roy were
going to be used to rob, no evidence exists in the record to
indicate that they knowingly or voluntarily and with common intent
with Roy, united in the preparation, planning, or commission of the
robbery and homicide of Larry. We therefore hold that Sherry and
Ginny were not accomplices, and accordingly, their testimony was
not subject to the corroboration requirements under 46-16-213,
MCA .
Ursla, however, was an accomplice to these crimes. The record
clearly indicates that she knowingly and voluntarily participated
in procuring the handgun used in the robbery and homicide of Larry
by falsifying Royls Montana identification. Therefore, Urslals
testimony is subject to 1 46-16-213, MCA, which 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 evi-
dence which in itself and without the aid of
the testimony of the one responsible or legal-
ly accountable for the same offense tends to
connect the defendant with the commission of
the offense. The corroboration is not suffi-
cient if it merely shows the commission of the
offense or the circumstances thereof.
(Emphasis added.) Here, because Sherry and Ginny were not
accomplices, the matter of corroborating Ursla's testimony is
clearly established by the record--virtually all of the aspects of
Ursla's testimony appeared in either or both of Sherry's or Ginny Is
testimony. Therefore, the testimony of Sherry and Ginny cor-
roborated Ursla's testimony.
2. Is the evidence in this case sufficient to support a
conviction of deliberate homicide through accountability?
The standard of review for sufficiency of the evidence is,
"whether, after viewing the evidence in the light most favorable
to the prosecution, anv rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.''
Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 2789,
61 L.Ed.2d 560, 573; restated in State v. Wilson (Mont. 1981), 631
P.2d 1273, 1278-79; State v. Geyman (1986), 224 Mont. 194, 195-
96, 729 P.2d 475, 476; State v. Gilpin (1988), 232 Mont. 56, 68,
756 P.2d 445, 451; State v. Kao (Mont. 1990), P.2d -, -1
47 St.Rep. 2100, 2102; State v. Walters (Mont. 1991), - P.2d.
-1 , 48 St.Rep. 102, 106.
Appellant argues that the record does not contain sufficient
evidence to prove that Roy actually shot and killed Larry.
Appellant's argument lacks merit. The evidence did not have to
prove that Roy actually shot and killed Larry as Roy was charged
and convicted of deliberate homicide through accountability under
§§ 45-5-102 (1)(a), 45-2-301, and 45-2-302, MCA. The amended
information, in Count 11, alleged that Roy, llpurposely knowingly
or
caused the death of Larry Beckwith by shooting him with a gun, or,
with the purpose of promoting or facilitating the commission of
such offense, aided or abetted Joseph Milinovich in the planning
or commission of the offense of the deliberate homicide of Larry
Beckwith . . . .
II The record, through the testimony of Ursla,
Sherry and Ginny, as well as other witnesses, overwhelmingly
indicates that Roy either shot Larry, or aided or abetted Joe in
doing so. Roy was the person who approached Larry at the con-
venience store near Bozeman, and gained Larry's trust. Roy was
handed the .22 caliber FIE revolver shortly before Larry's death.
Roy admitted that he shot Larry to other group members shortly
after the shooting. Roy was arrested wearing Larry's belt, and
while imprisoned and awaiting trial, Roy admitted to a cell-mate
that he shot Larry in the face five times. Moreover, even if Roy
did not actually shoot Larry, Roy aided and abetted Joe, the only
other person, besides Larry present in Larry's pick-up that night,
by giving Joe the .22 caliber FIE revolver.
Appellant also argues that absent Ursla, Sherry, and Ginnyls
testimony, the so-called accomplice testimony, the record contains
12
insufficient evidence to convict Roy of deliberate homicide.
Because we have already held that Sherry and Ginny were not
accomplices, and that their testimony properly corroborated Urslals
testimony, no need exists to further discuss appellant's latter
contention. We therefore hold that sufficient evidence existed in
the record to support Roy's conviction of deliberate homicide
through accountability.
3. Is the felony murder rule under 45-5-102 (1)(b), MCA,
constitutional?
Appellant moved to dismiss Count I11 of the amended informa-
tion, deliberate homicide under the felony murder rule, on December
28, 1989. The record does not indicate whether the District Court
ruled on the appellant's motion. Because there is no record of the
dismissal of Count 111, the appellant raises the issue of the
constitutionality of the felony murder rule in this appeal.
Appellant's argument is inappropriate with regard to this case.
The jury did not convict Roy of the alternative charge of Count
111. Accordingly, this issue is not ripe for determination. We
therefore decline to discuss the constitutionality of the felony
murder rule with regard to this case.
Af finned.
- 3
1 Chief Justice
We concur:
Justices