State v. Gillham

NO. 82--366

I N THE SUPREME COURT O F THE STATE O F M N A A
O T N

1983

THE STATE OF MONTANA,

P l a i n t i f f and Respondent,

-vs-

H N Y JAMES GILLHml,
E R

Defendant and A p p e l l a n t .

APPEAL FROM: D i s t r i c t C o u r t of t h e N i n e t e e n t h J u d i c i a l D i s t r i c t ,
I n a n d f o r t h e County o f L i n c o l n ,
The H o n o r a b l e R o b e r t M. H o l t e r , J u d g e p r e s i d i n g .

COUNSEL O F RECORD:

For Appellant:

K e r r y 1J. Newcomer, Iioundup, Montana (argued)
P u b l i c Defender

For 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 ) , P , s s t . A t t y . G e n e r a l , H e l e n a
W i l l i a m A. D o u g l a s , County A t t o r n e y , L i b b y , Montana

Submitted: A p r i l 26, 1983

Decided: O c t o b e r 6 , 1983

F ' i l e d : gje r (j - 983

--
Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
Defendant appeals from a conviction of attempted
deliberate homicide following jury trial in the Nineteenth
Judicial District Court, Lincoln County. We affirm.
Defendant raises the following issues for review:
(1) Did the District Court admit "other crimes"
evidence without following required procedures?
(2) Is defendant entitled to a new trial on the basis
of juror misconduct?
(3) Did the prosecutor's closing argument violate
defendant's right to a fair trial?
(4) Is the conviction based on insufficient evidence?
(5) Did cumulative error deny defendant a fair trial?
On the morning of November 13, 1981, Jean Nordahl
notified the Lincoln County Sheriff's Department that he had
found a bomb made of several sticks of dynamite and an
electrical blasting cap behind the seat of his logging truck
near Eureka, Montana. The bomb was removed by ordnance
experts from Fort Lewis, Washington, one of whom later
testified that had it been wired properly, it would have
exploded, destroying the cab of the truck and killing any
occupants.
On November 24, 1981, Gillham's daughter, Linda Weitz,
and her boyfriend, Michael Darby, contacted the Lincoln
County Sheriff's Department and submitted affidavits
implicating Gillham in the attempted homicide. The same day,
when a search pursuant to a warrant uncovered evidence in
Gillham's home, he was arrested. On December 3, 1981,
Gillham was charged by information with attempted deliberate
homicide, as follows:
"William A. Douglas, County Attorney of Lincoln
County, Montana charges that on the 13th day of
November, 1981, at off U.S. Highway #93, South of
 Eureka, Montana in Lincoln County, Montana the
above named Defendant committed the offense of:
Attempted Deliberate Homicide, a felony
"The facts constituting the offense are, to-wit:
"-the Defendant, Henry James Gillham, did purposely
or knowingly attempt to cause the death of another
human being; that is to say, the said Henry James
Gillham did purposely or knowingly wire explosives
into the truck owned and operated by Jean Nordahl
with the purpose to kill Jean Nordahl.
[§§45-4-103; 45-5-102, MCA, 19811"
Gillham was tried before a jury April 27 through May 1,
1982. The evidence presented at trial indicated that Gillham
had made no secret of his plan to earn $5,000 - $10,000 from
Jean Nordahl's wife, Carolyn, by blowing up Jean Nordahl with
dynamite.
Linda Weitz and Mike Darby both testified that when they
first arrived in Eureka from the west coast in September of
1981, Gillham showed them a blasting cap and wires and
claimed to have dynamite in his truck. Weitz testified that
Gillham told them "he'd gotten into a new business . . . He
was going to blow this guy up." Sometime later, after Weitz
met Carolyn Nordahl, Gillham identified Mrs. Nordahl as the
wife of the man he intended to blow up.
Weitz and Darby lived with Gillham during their first
several weeks in Montana. Weitz testified that "[tlhis mess
with Jean Nordahl, the bombing threats," became a constant
topic of conversation around the house. She and Darby feared
Gillham and moved into their own house about November 1,

Weitz and Darby testified that on November 12, 1981 they
accompanied Gillham to the Nordahl residence, ostensibly to
go "poaching" and deliver some moonshine. Darby and Weitz
remained in the car while Gillham went up to the Nordahl
house. Through a window, they saw Carolyn Nordahl pass an
object to Gillham. Gillham returned carrying a .22 caliber
Ruger pistol, which was later found in his home. He told
Weitz and Darby he was supposed to shoot Nordahl with the
pistol and bury him in a hole behind the house where Weitz
and Darby were living. Because Nordahl was not at home, the
trio visited elsewhere and returned to the Nordahl residence
later that afternoon. Nordahl's logging truck was there.
Again Weitz and Darby remained in the car while Gillham
entered the Nordahl house. He returned briefly to get the
pistol, which he stuck in the waist of his trouser and
covered with a jacket, and a jug of moonshine, which he
carried into the house. In a few minutes, Gillham, Jean
Nordahl and Carolyn Nordahl left the house, where there were
a number of guests, and walked into the new shop building.
After a few minutes, Carolyn Nordahl emerged from the shop
looking "upset or angered." She "smacked a tree" and entered
the house. A few minutes later, Jean Nordahl and Gillham
left the shop. When Gillham returned to the truck, he told
Weitz and Darby that Carolyn Nordahl had wanted him to shoot
Jean Nordahl while they were in the shop, as Nordahl leaned
over a solvent tank. Gillham refused to do so. The three
returned to their homes.
About 10 :30 that evening, Weitz and Darby were awakened
when Gillham, who was very excited, burst into their house
shouting "Get up! Get up! It's time to go!" Gillham
ordered Darby to go with him. Weitz and Darby testified they
were afraid of Gillham and did not object very strenuously to
his order that Darby accompany him.
Darby testified that Gillham drove them to the Nordahl
property and parked off the main road out of sight of the
house. Carrying a brown paper bag, he proceeded through the
woods and entered the back door of Nordahl's shop. Gillham
told Darby to stand guard at the front office window, while
for about twenty minutes he busied himself by Jean Nordahl's
logging truck. At one point, Gillham complained that the
bomb was too big and that he had to remove some sticks of
dynamite to place the bomb behind the driver's seat. He
indicated the wiring was tricky. The bomb was wired to
detonate a few seconds after Norda.hl turned on the truck
headlights. He usually waited to do so until he was outside
of the shop. His wife wished to spare the building. Gillham
also remarked that he had dropped a piece of wire. Darby
located it, tangled around Gillham's feet, and pocketed it.
Gillham finished his business with the logging truck and
dropped Darby off at his home.
Weitz and Darby testified that when they saw Gillham the
next day, he told them "[tlhe damn thing didn't go off."
According to Weitz, Gillham was extremely worried that his
fingerprints on the tape holding the bomb together would give
him away. He conducted a number of experiments with tape,
egg cartons and mirrors to determine whether he might have
left fingerprints. Gillham asked Weitz and Darby to hide the
Ruger pistol, a red suitcase containing "some other items,"
and the fluorescent orange jacket he had worn the night he
wired the Nordahl truck. They agreed to hide the items. On
November 23, Gillham took back the pistol and jacket but the
suitcase could not be found. Both Weitz and Darby feared
that Gillham might harm them because they knew too much and
were dispensable. At 6 : 0 0 a.m., November 24, 1981, they
contacted the Sheriff's office and prepared the affidavits
which led to Gillham's arrest.
Weitz's and Darby's testimony was far from the only
incriminating evidence against Gillham at trial. Jean
Nordahl's nineteen-year-old stepdaughter, Sonja, testified
that her mother and a "gravelly-voiced man" she identified by
voice as Gillham had numerous telephone conversations. They
occasionally used her as a telephone relay to transfer
details of Jean Nordahl's schedule. She recalled that on
September 9, 1981 her mother received a telephone call from
the "gravelly-voiced man." Shortly afterword, Sonja
accompanied her mother into Eureka, where Carolyn Nordahl
slipped a manila envelope into a "gunky, green station wagon"
behind the Eureka Cafe and Tavern. Gillham owned an old
green Chevrolet station wagon. Two acquaintances of Gillham
testified that in the fall of 1981 Gillham had shown them
money in a manila envelope. He told them it was $5,000 he
was being paid to make someone's husband "come up missing."
Jean Nordahl's accountant testified that in late August of
1981 Carolyn Nordahl had written two checks for cash totaling
$5,000.
Sonja Nordahl testified that although she had seen and
heard her mother, Gillham and a friend of Gillham's
discussing Jean Nordahl's murder in the Nordahl home, she
never believed they were serious about it. On November 12,
1981, when Gillham was present, Sonja saw her mother carrying
the Ruger Bearcat pistol, but Sonja did not see it
thereafter. Finally, later that night she telephoned Gillham
for her mother and told him "[hle was supposed to hurry up
and get this thing done." Gillham responded that "[Jean
Nordahl] wouldn't make it out of the driveway the next
morning." The next morning, Sonja called Gillham again. The
transcript contains her description of the conversation, as
follows :
"Q. What was the message - or what did you say to
him? A. I told him he had made it out of the
house fine . . .
I told him, '[hle had left for
work fine; that nothing had happened.'
 Q. What was his response to that? A. He said
something like, 'Oh, my God! It should have gone
off within fifteen seconds.' "
Sonja did not communicate any of the above information
to her stepfather. In fact, according to her testimony, she
"hated his guts." But she insisted that she believed the
discussions about killing Jean Nordahl were not serious, but
were "a pathetic form of comic relief."
Marvin Miller, an employee and friend of Gillham who
helped him cut Christmas trees early in the fall, testified
that Gillham talked about planning to kill Jean Nordahl "all
the time, to everybody." Gillham told Miller in late October
" [i]t's all set," and the same day while passing Nordahl ' s
house, he told Miller, " [t]hat is the place. " Gillham also
told Miller in October that he had already received $5,000 of
$10,000 Carolyn Nordahl would pay him for killing Jean
Nordahl. On November 13, 1981, after the bombing attempt was
discovered, Gillham told Miller, " [t]he bomb didn't go off,"
and "[ilt was all set." According to Miller, Gillham was
"scared to death. "
Another daughter of Gillham, Laurel Lyons, testified
that she had heard Gillham refer to his "new business," and
that he could get paid for "blowing someone away." He showed
her dynamite in a suitcase. Lyons recalled Gillham leaving
the house with the suitcase, saying he had a job to do. When
he returned, Gillham told Lyons he had almost been
caught; he "had the hood up and the wires were ready to hook
up" when a dog that "should have been penned up" alerted a
girl. Gillham said he nearly shot the girl. This evidence
was admitted over a continuing objection by defense counsel
concerning "other crimes" evidence.
 Lyons also testified that on November 13, 1981, after
the bomb was discovered, Gillham told her, "[ylour daddy
fucked up."
Linda Weitz's daughter, Tess Moore, testified that on
November 13, 1981, after the bomb was discovered, her
grandfather Gillham discussed the matter with her:
"He just told me that he did it and he didn't want
me to think bad about him - about him doing it.
And he told me that he was the one that did it - he
was the one that set it behind the seat and
everything. "
On May 1, 1982 the jury returned a verdict of guilty on
the charge of attempted deliberate homicide. The ~istrict
Court sentenced Gillham to sixty years for that crime and an
additional ten years for the use of a destructive device. He
was designated a dangerous offender. Gillham appeals.

The first issue is whether the District Court admitted
evidence of other crimes, acts, or wrongs of the defendant
without following required procedures. The trial transcript
reflects Gillham's continuous objections to the introduction
of evidence which he argued could not be admitted without the
procedures mandated by State v. Just (19791, Mont . 1

602 P.2d 957, 36 St.Rep. 1649. The record establishes that
the Just procedural requirements of notice, admonition and
instruction were not satisfied. The State does not argue
that the Just procedures were followed. It argues that they
were not required because the District Court properly
characterized the disputed evidence as either (1) acts which
were not criminal in nature or (2) acts which were so
inextricably related to the crime charged as to be part and
parcel of it.
The State argues that acts which are not crimes may be
admitted without the procedural safeguards of Just. It is
true that a substantial portion of the evidence was not
evidence of crimes. This includes evidence that defendant
acquainted a significant portion of Eureka's population with
his plan to kill Nordahl, that he called and visited the
Nordahl home and that he followed Nordahl's vehicle intending
to harm Nordahl. But whether the acts are criminal or not
does not resolve the issue of the applicability of Just. In
State v. Casagranda (19811, Mont . , 637 P.2d 826,
829, 38 St.Rep. 2122, 2127, we stated:
"This general rule, along with the exceptions, has
been codified in Rule 404 (b), Mont .R.Evid. , which
states:
'Evidence of other crimes, wrongs, or
acts is not admissible to prove the
character of a person in order to show
that he acted in conformity therewith.
It may, however, be admissible for other
purposes, such as proof of motive,
opportunity, intent, preparation, plan,
knowledge, identity, or absence of
mistake or accident.'
"The important language - - - rule overlooked
of this
the State - - -the- - is not limited to 'other
is that - rule - - -

crimes.' --- applies to 'wrongsor -
The rule also - acts'
- f defendant." (emphasis added)
o -
The fact that the evidence is of non-criminal acts of the
defendant does not exempt admission of the evidence from the
procedural guidelines established in Just.
This Court has recognized that the State is entitled to
"present the entire corpus delecti of the charged offense
including matters closely related to the offense and
explanatory of it . . . ." This rule overrides the
requirements of Just. State v. Riley (1982), Mont .
, 649 P.2d 1273, 1279, 39 St.Rep. 1491, 1499. Riley was
a deliberate homicide case where the death of a child
followed severe physical abuse by members of a communal group
including defendant. Evidence was admitted at trial of a
systematic pattern of brutal disciplinary punishment
extending over a period of many months before the victim's
death. Evidence was also admitted to show a pattern of
violence by defendant against other children of the group and
by other members of the group against the victim and other
children. We held that the evidence provided a context of a
continuous series of beatings in which the jury was entitled
to view defendant's actions. The evidence was closely
related to the offense and explanatory of it.
Evidence that Gillham possessed dynamite and blasting
equipment, that Carolyn Nordahl gave him a gun and urged him
to shoot Jean Nordahl the evening of November 12, 1981, and
that he made an earlier attempt to wire explosives to
Nordahl's vehicle fits squarely within the rule articulated
in Riley. Each act, whether criminal or not, is inseparably
related to the act charged. None of the acts can be
characterized as "wholly independent" or unrelated acts. See
State v. Trombley (1980), Mont. , 620 P.2d 367, 368,
37 St.Rep. 1871, 1873. Likewise, evidence that Gillham told
others of his plan to kill Nordahl, that he visited the
Nordahl home, and that he followed Nordahl's vehicle
intending to harm Nordahl is admissible under Riley as part
of the corpus delicti of the crime charged. All of this
evidence provides an explanatory context in which the jury
was entitled to view the actions of Gillham. The State was
entitled to present at trial the entire corpus delicti of the
crime charged, including this evidence of acts closely
related and explanatory of the crime charged. The District
Court did not admit evidence in violation of the Just
procedural requirements.
Gillham argues that reversal of his conviction is
required by our decision in State v. Gray (1982), Mont.
, 643 P.2d 233, 39 St.Rep. 622. We do not agree. The
facts of Gray are distinguishable from the facts of this
case. In Gray, the District Court admitted evidence of an
act committed five days after the crime charged. Here, none
of the disputed evidence is of subsequent acts. It is
evidence of acts inseparable from the crime charged. Gray
does not require reversal of Gillham's conviction.
Although the District Court did not violate Just, we
encourage trial courts to apply the safeguards of Just
liberally. Even though the procedures of Just may not be
required in a given case, their use may be proper and wise.
Especially in close cases, use of the Just procedures would
assure fairness to defendants. The procedural safeguards
were designed to protect those accused of crime from unfair
surprise or double punishment. They should be liberally
applied to that end.
11.
After the jurors returned their verdict, defense counsel
polled them regarding their exposure to media coverage of the
trial. One juror had merely glanced at some headlines, but
before the defendant's case had been presented, a second
juror had read an entire newspaper article which summarized
the State's case. She said she either had not heard or had
forgotten the judge's admonition to avoid reading reports of
the trial. The admonition was given the first day of the
trial, but not thereafter. She admitted her mistake in
reading the paper, but said the report was accurate and had
in no way reinforced her opinions or affected her
deliberations. Defense counsel asked that the jury be held
until the accuracy of the article could be verified or, in
the alternative, moved for mistrial. The court denied both
requests.
 Gillham now argues that he is entitled to a new trial
because of juror misconduct. He emphasizes that because a
unanimous verdict is required for a conviction, the vote of
this juror was so critical that the possibility she was
prejudiced is sufficient to warrant reversal and retrial.
We agree that where jurors have been exposed to
prejudicial and inadmissible outside information which may
have influenced their verdict, retrial is in order. In Putro
v. Baker (1966), 147 Mont. 139, 410 P.2d 717, we ordered a
new trial where, during deliberation in a negligence action
arising from an automobile accident, jurors were exposed to
inadmissible evidence that defendant had been convicted of
manslaughter for deaths arising out of the accident. We
stated that where prejudicial outside information was
improperly before the jury, prejudice would be rebuttably
presumed. We also stated that a juror could not purge himself
by merely declaring that such information did not affect his
judgment in forming the verdict. Putro, 147 Mont. at 147,
410 P.2d at 721-22. We noted, however, that " [tlhe
presumption may be rebutted by the use of testimony of the
jurors 'to show facts which prove that prejudice or injury
did not or could not occur.'" Putro, 147 Mont. at 147, 410
p.2d at 721, citing State v. Jackson (18901, 9 Monte 508,

In this case, the single juror who read the newspaper
article testified that it was an accurate and factual report,
"about the same" as the admissible testimony already before
the jury. As the State correctly observes, there was no
evidence before the trial court that the information was
prejudicial. Indeed the juror declared that it was not and
that it was no more than a factual account of the State's
case. Clearly there was juror misconduct but that in itself
does not necessitate reversal. As the Oklahoma court stated
in Tomlinson v. State (Okla. Crim. App. 1 9 7 6 ) , 554 P.2d 798,

" [Wlhere jury prejudice [by media report exposure]
is alleged at any stage of trial or appeal the
burden of persuasion is on the defendant to show by
clear and convincing evidence that (1) the jurors
were specifically exposed to media reports which
(2) were prejudicial t o - defendant. Mere proof
- the
that a juror or jury was exposed - factual account
to
of - triaT - n o t - - burden -
- txe w i l l - meet this of
persuasion." (emphasis added)
We hold that Gillham has not met his burden of
establishing the prejudicial nature of the information to
which the juror was exposed. The trial court did not err in
denying Gillham's request for mistrial. While the trial
court was perhaps unnecessarily brusque in releasing the jury
before the factual nature of the newspaper account could be
verified, it was 2:45 a.m. Defendant could have raised the
matter on a motion for new trial if the article had been
prejudicial.
We find no error on this issue.

The remaining three issues are without merit and may be
disposed of summarily.
First, in closing argument the prosecuting attorney
disparaged a witness whose testimony tended to link Linda
Weitz with a plan to kill Jean Nordahl. He referred to the
testimony of "a little tootie thirteen-year-old when she was
pregnant and coming from a shack with a stepdad with a name
of 'Hippie Dave'." He indicated this girl's testimony had
been introduced without "second pre-notice" to the State,
making it impossible for the State to investigate what
relationship existed between "her moonshine-drinking
stepdaddy" and "the moonshine-making defendant."
 Defendant now argues that his right to a fair trial
under the United States and Montana Constitutions was
jeopardized by these improper remarks of the prosecutor. He
argues they must be considered on appeal, pursuant to section
46-x-702, MCA, despite the absence of objection at trial.
A0
We hold that, in light of the entire trial and
considering the strength of the State's case, this single
statement, concededly outside the boundary of fair comment,
did not constitute such a gross abuse as to render the whole
trial unfair. Both this Court and the United States Supreme
Court have stated that while a defendant is entitled to a
fair trial, he is not entitled to a perfect one. United
States v. Hastings, No. 81-1463 (U.S. May 23, 1983); Brown v.
United States (1973), 411 U.S. 223, 93 S.Ct. 1565, 36 ~.Ed.2d
$ k ~ t e V,
208; Weinberger (1983),
A
Mont I .
P.2d I

40 St.Rep. 844; State v. Powers (1982), Mont . I

645 P.2d 1357, 1363, 39 St.Rep. 989, 996. In Hastings, the
Supreme Court noted that the harmless error rule "'block[s]
setting aside convictions for small errors or defects that
have little, if any, likelihood of having changed the result
of the trial' . . .. [I]t is the duty of a reviewing court to
consider the trial record as a whole and to ignore errors
that are harmless, including most constitutional violations .
. .." Slip op. at 9, quoting Chapman v. California (1967),
386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.
Defendant's remaining two arguments, that his conviction
must be reversed for insufficient evidence and because of
cumulative error, are likewise without merit. The case
against him is overwhelming and the alleged errors are
technical and insignificant. We find no error which compels
reversal.
Affirmed.
W e concur:

% # &
a *
Chief J u s t i c e

Justices

Mr. J u s t i c e Daniel J. Shea, s p e c i a l l y c o n c u r r i n g :

I join t h e majority's r e s u l t , but I do not agree

with a l l that is said.