State v. Nordahl

No. 82-502
IN THE SUPREME COURT OF THE STATE OF MONTANA
1984

STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
CAROLYN JEAN NORDAHL,
Defendant and Appellant.

APPEAL FROM: District Court of the Nineteenth Judicial District,
In and for the County of Lincoln,
The Bonorable Robert M. Holter, Judge presiding.

COUNSEL OF RECORD:

For Appellant:
Oleson Law Firm; H. James Oleson, Kalispell,
Montana

For Respondent:

IIon. Mike Greely, Attorney General, Helena, Montana
William A. Douglas, County Attorney, Libby, Montana

Submitted on Briefs: January 5, 1984
Decided: March 29, 1984

Filed: MAR 2 4;r 'lqlb4

- -----
Clerk
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.
Carolyn Jean Nordahl appeals from her conviction in
the District Court of the Nineteenth Judicial District,
Lincoln County, for the crime of attempted deliberate
homicide. We affirm.
This is a companion case to State v. Gillham (Mont.
1983), 670 P.2d 544, 40 St.Rep. 1576. In that case, we
affirmed the conviction of Hank Gillham, who was found
guilty of attempted deliberate homicide by reason of his
unsuccessful attempt to murder Carolyn's husband, Jean
Nordahl, in November of 1981. Carolyn was implicated as the
instigator of the attempted homicide.
On several occasions prior to November, 1981, Carolyn
Nordahl had expressed hostility toward her husband and a
wish that he would die. The State maintained that she
eventually planned to kill her husband and that Hank Gillham
was employed to carry out the murder. Evidence was produced
showing that Carolyn had removed several thousand dollars
from a family bank account shortly before November, that she
had slipped a manila envelope into Hank Gillham's car while
it was parked in front of a cafe in Eureka, Montana, and
that Gillham had retrieved a manila envelope from that car
and had bragged to others about receiving a sizeable sum of
money. Witnesses testified as to occasions when Gillham had
shown them dynamite or other blasting materials, and these
individuals were under the impression that Gillham was
planning on murdering Jean Nordahl at the direction of
Carolyn Nordahl. Gillham was constantly informed of Jean
Nordahl's daily work schedule by Carolyn or her daughter,
Sonja.
 Witnesses testified that on November 12, Gillham and
Jean Nordahl entered the shop adjacent to the Nordahl home.
Gillham was armed with a pistol at the time. Carolyn
Nordahl followed the two men into the shop, but reportedly
exited in a foul mood sometime later. Gillham left shortly
thereafter, but returned later in the evening. It was at
this time that he planted a dynamite bomb on Jean Nordahl's
logging truck. At the time, Gillham was accompanied by Mike
Darby, the boyfriend of Gillham's daughter, Linda Weitz.
Gillham lost a piece of wire while preparing the bomb, but
Darby found it and placed it in his pocket. This wire was
introduced as evidence at Carolyn Wordahl's trial.
The bomb was wired improperly and did not go off as
planned. Jean Nordahl discovered the explosive device on
November 13 and notified authorities. It was not until
November 23, however, that Darby and Weitz came forward with
information that eventually led to the arrest and conviction
of Gillham and Carolyn Nordahl.
Gillham was tried first and found guilty of attempted
deliberate homicide. Carolyn's trial followed. She was
also found guilty of attempted deliberate homicide and
eventually was sentenced to thirty-five years in the Women's
Correctional Center.
The sole issue on appeal is whether there was
sufficient corroboration of testimony by four key witnesses
for the State: Sonja Nordahl, Linda Weitz, Mike Darby and
Marvin Miller. The appellant maintains that these four
individuals were accomplices in the murder plot. If these
individuals were indeed accomplices, then their testimony
cannot be used to convict Nordahl unless it is corroborated
by other evidence which in itself tends to connect her with
the offense. See Section 46-16-213, MCA. Appellant

contends that there is no e v i d e n c e c o n n e c t i n g h e r to the

charged crime o t h e r than t h e testimony of t h e s e above-named

witnesses.

The S t a t e f r e e l y a c k n o w l e d g e s t h a t S o n j a N o r d a h l was

a n a c c o m p l i c e , b u t d e n i e s t h a t W e i t z , D a r b y o r Miller a r e i n

a n y way l e g a l l y a c c o u n t a b l e f o r t h e c r i m e . The S t a t e a r g u e s

in the alternative that, even i f a l l of t h e f o u r w i t n e s s e s

a r e c o n s i d e r e d accomplices, t h e r e is s u f f i c i e n t e v i d e n c e i n

the trial record to corroborate key portions of their

testimony .
Section 45-2-302(3), MCA, defines the concept of

accomplice relevant here:

"When a c c o u n t a b i l i t y e x i s t s . A person is
l e g a l l y accountable f o r t h e conduct of
a n o t h e r when:

"(3) either before or during the
commission of an o f f e n s e w i t h t h e purpose
t o promote o r f a c i l i t a t e such commission,
he s o l i c i t s , a i d s , abets, agrees, o r
a t t e m p t s t o a i d such o t h e r person i n t h e
p l a n n i n g o r commission of t h e o f f e n s e
... II

T h i s c o n c e p t h a s b e e n t h e s u b j e c t o f much a t t e n t i o n i n c a s e

l a w . W e have emphasized t h a t mere p r e s e n c e a t t h e s c e n e o f a
c r i m e is n o t enough t o c h a r g e one a s a n accomplice. State

v. Fish (Mont. 1 9 8 0 ) , 6 2 1 P.2d 1 0 7 2 , 1 0 7 8 , 37 S t . R e p . 2065,

2071; S t a t e ex rel. Murphy v. EJlcKinnon (1976), 1 7 1 Mont.

120, 1 2 5 , 556 P.2d 906, 909. Moreover, t h e mere k n o w l e d g e

t h a t a crime i s a b o u t t o be c o m m i t t e d d o e s n o t make o n e a n

accomplice. S t a t e v. H a r v e y ( 1 9 7 9 ) , 1 8 4 Mont. 4 2 3 , 4 3 1 , 6 0 3

P.2d 661, 666; S t a t e v. Mercer ( 1 9 4 3 ) , 1 1 4 Mont. 142, 152,

1 3 3 P.2d 3 5 8 , 361. A t r u e a c c o m p l i c e is:

" ' o n e who k n o w i n g l y , v o l u n t a r i l y and w i t h
common i n t e n t w i t h t h e p r i n c i p a l o f f e n d e r
 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 actions are
essential in order to impute guilt.'"
State v. Harmon (1959), 135 Mont. 227,
236, 340 P.2d 128, 132, quoting State ex
rel. Webb v. District Court (1908), 37
Mont. 191, 200-201, 95 P. 593, 597.
See also State v. Bad Horse (Mont. 1980), 605 P.2d 1113,
1118, 37 St.Rep. 45, 51; Harvey, supra, 181 Mont at 431, 603
P.2d at 666; State v. Kerrigan (1930), 87 Mont. 396,
401-402, 287 P. 942, 943; State v. McComas (1929), 85 Mont.
428, 433, 278 P. 993, 995; State v. Smith (1925), 75 Mont.
22, 27, 241 P. 522, 523. Accord, People v. Coddington
(1970), 123 Ill.App.2d 351, 259 N.E.2d 382 (construing
111.Ann.Stat. ch. 38, sec. 5-2 (Smith-Hurd 1972), which is
identical to Section 45-2-302(3), MCA).
The following analysis of the testimony of Weitz and
Miller reveals nothing that would make them accomplices
under Montana law, such that their testimony requires
corroboration. Although we treat Darby and Sonja Nordahl as

accomplices, we find that their testimony is sufficiently
corroborated.
Linda Weitz
Linda Weitz is Hank Gillham's daughter. During trial,
she testified as to Gillham's and Nordahl's actions on the
night of November 12, when Gillham was allegedly planning to
shoot Jean Nordahl in his shop. Weitz had accompanied
Gillham to the Nordahl home in his car, and observed the
parties entering and leaving the shop. She testified that
Carolyn Nordahl was apparantly upset or angry after leaving
the shop. Weitz also testified as to the events that took
place later that evening, when Gillham arrived at Weitz's
and Darby's home and told Darby to accompany hiin to the
Nordahl's. Finally, she testified as to Gillham's furtive
activities over the next few days, including the stashing at
Weitz's and Darby's home of a satchel or suitcase full of
dynamite and an orange coat worn by Gillham on the night of
November 12.
Appellant maintains that Weitz was an accomplice in
Gillham's attempt to murder Jean Nordahl, because she
allegedly was aware that Gillham would plant the bomb, and
because she hid the suitcase and jacket. Appellant also
emphasizes that Weitz was for a time considered a suspect by
authorities during their investigation, and that Weitz
personally indicated on the stand that she viewed her
behavior as "abetting" her father's acts.
We reject appellant's attempt to brand Weitz as an
accomplice through this narrow and often slanted reading of
the trial transcript. The mere fact that Weitz suspected
her father might try to bomb someone does not make her an
accomplice. See, e.g., Harvey, supra (fact that witness saw
defendant illegally enter a truck and steal a rifle from
therein did not make witness an accomplice). Other portions
of Weitz's testimony not cited by appellant reveal that
Weitz did not participate in the planning or execution of
the crime. Weitz was afraid of her father and what he might
do to her if she ever approached the authorities concerning
his activities. Weitz did not display the knowing,
voluntary behavior necessary to make her an accomplice in
the attempted murder of Jean Nordahl.
We recognize that purposely concealing physical
evidence which may lead to the discovery or apprehension of
an offender is a crime in itself, see Section
45-7-303(2)(e), MCA (obstructing justice). However, the
uncontradicted evidence is that Weitz acted as she did out
of fear for what her father might do to her, not because she
had a purpose or conscious design to obstruct justice. Even
if she could be charged with the crime, this would not make
her an accomplice in the attempted homicide. One who "aids"
an offender after a crime has been committed would not be
punished for that crime. - State v. LaMere (Mont. 1983),
Cf.
658 P.2d 376, 40 St.Rep. 110 (defendant charged with theft
cannot claim that second party charged only with receiving
stolen property was his accomplice in the theft); Compiler's
Comments, Annotations, Section 45-2-302, MCA (one who aids
an offender after a crime has been committed can be punished
for compounding a felony, Section 45-7-305, MCA).
Mike Darby
Mike Darby was Linda Weitz's boyfriend. His testimony
was generally identical to that of Linda. Appellant's
principal objections to Darby's testimony are that he (1)
assisted in planting the bomb by acting as Gillham's
"lookout man" and helping Gillham find a lost wire necessary
for completing the bomb; and (2) that he concealed certain
evidence, thus making him a knowing accomplice.
There is some evidence in the trial transcript to
suggest that even the State may have viewed Darby as an
accomplice. During the rebuttal phase of closing arguments,
the county attorney did nothing to dispel defense counsel's
unequivocal assertion that Darby was an accomplice in light
of the law. Although the available evidence of Darby's
actions could lead one to the conclusion that he was not an
accomplice, we will not make this factual determination. We
will presume that the jury, having been instructed on the
law of complicity and having listened to the remarks of
counsel, treated Darby as an accomplice. Nevertheless,
making this presumption does not compel reversal of Carolyn
Nordahl's conviction. Mike Darby's testimony is
substantially corroborated by the remarks and observations
of witnesses not deemed accomplices. His recital of the
events prior to Gillham's return to the Nordahl garage is
supported by Linda Weitz's testimony. There is no question
that a bomb was planted on Jean Nordahl's truck. An
explosives expert confirmed that a wire Darby took with him
from the garage matched the wire wrapped around the bomb.
That the wires were of the same type was also supported in
testimony by an expert from the State Crime Laboratory.
This testimony sufficiently corroborates that of Mike Darby.
Marvin Miller
Miller, one of Gillham's employees, knew about some
dynamite that Gillham was planning to use, and apparantly
knew that Gillham was planning to murder Jean Nordahl.
Nevertheless, appellant's insistance that Miller was an
accomplice is not well-founded. At no time was Miller
involved in the planning or execution of the murder plot.
Like many other people in the Eureka community, Miller knew
of Gillham's loose talk about killing Jean Nordahl at
Carolyn Nordahl's request. This knowledge, however, does
not make Marvin an accomplice. Harvey, supra; Mercer,
supra.
Sonja Nordahl
Sonja Nordahl's actions arguably were those of an
accomplice, and the State freely acknowledges this point.
She apparantly knew about Gillham's plans, and her phone
calls to Gillham with information about her father's work
schedule permit an in£ erence that she knowingly and
voluntarily assisted Gillham and her mother in their plans.
Nevertheless her testimony was not crucial to reaching a
guilty verdict. In any event, we note that some portions of
her testimony, including the statements about the placement
of the envelope in Gillham's car, were corroborated by other
witnesses.

In summary, we find no credible evidence to suggest
that either Linda Weitz or Marvin Miller were accomplices in
the attempted murder of Jean Nordahl. Their testimony
stands on the same basis as that supplied by other
witnesses. Corroboration was unnecessary. Their
credibility was a matter for the jury to decide. See -
Bad
Horse, supra, 605 P.2d at 1118, 37 St.Rep. at 52. Although
we treat Mike Darby and Sonja Nordahl as accomplices, there
is sufficient evidence in the record to corroborate their
testimony.
The conviction of Carolyn Jean Nordahl is affirmed.

Justice
i
i
We concur:

Chief Justice