State v. Close

• Decision Date: 09 February 1981
• Docket Number: No. 13522,13522
• Citation: 623 P.2d 940,191 Mont. 229,38 St.Rep. 177
• Parties: The STATE of Montana, Plaintiff and Respondent, v. Robert Dee CLOSE, a/k/a Bobby Dee Close, Defendant and Appellant.
• Court: Montana Supreme Court

Page 940

623 P.2d 940

191 Mont. 229

The STATE of Montana, Plaintiff and Respondent, v. Robert Dee CLOSE, a/k/a Bobby Dee Close, Defendant and Appellant.

No. 13522.

Supreme Court of Montana.

Submitted Nov. 26, 1980.

Decided Feb. 9, 1981.

Terence M. Swift argued, Billings, for defendant and appellant.

Mike Greely, Atty. Gen., Helena, Sheri Sprigg argued, Asst. Atty. Gen., Helena, Harold F. Hanser, County Atty., Billings, Charles Bradley argued, Deputy County Atty., Billings, for plaintiff and respondent.

HARRISON, Justice.

This is an appeal from a judgment entered on a jury verdict in the Thirteenth Judicial District, Yellowstone County, Montana. On June 3, 1976, the jury found defendant guilty of the following crimes, all arising out of one incident: Count I, deliberate homicide, section 45-5-102, MCA; Count II, aggravated kidnapping, section 45-5-303, MCA; and Count III, robbery, section 45-5-401, MCA. On June 10, 1976 the court sentenced defendant to one hundred years pursuant to the verdict in Count I; forty years pursuant to Count III; and death by hanging pursuant to Count II. In addition, the sentences pronounced on Counts I and III were ordered to be served consecutively.

In May 1979 this Court ordered the District Court to resentence defendant for his conviction of aggravated kidnapping (Count II) for the reason that the sentencing provision under that statute was found to be unconstitutional. The District Court complied and resentenced defendant, under Count II only, to the term of fifty years to be served concurrently with the previous sentences of forty years and one hundred years.

On July 7, 1974, a carnival promoter named Billy Joe Hill drove to Billings, Montana, in a 1968 white-colored, four-door Cadillac sedan. At the time he was carrying between $1200 and $1400 in cash.

Hill was observed in the Rainbow Bar from 9:30 a. m. until 7:00 p. m. on July 8, 1974, by Frank Pirtz, the owner of the bar. That afternoon he was observed with several Indians, a sheepherder and a younger, "cowboy-type" man. Hill kept flashing a large roll of money and did so to such an extent that Pirtz cautioned him to stop. Hill left the Rainbow Bar by himself at approximately 7:00 p. m. The "cowboy-type" young man with him apparently had left the saloon about 4:00 p. m.

Between 8:00 to 9:00 p. m. on July 8, two men came into the Silver Dollar Bar. The bartender testified that the older of the two men had on cranberry-colored trousers and a matching shirt. She identified a picture of Hill as this man. The younger man's shirt was hanging out, he looked like a cowboy and wore either a black or dark brown hat. The bartender identified defendant in the courtroom as the younger man. She testified that the two men remained in the bar for about two hours and then left together.

The bartender further testified that the younger man made two telephone calls while in the bar. The bartender later furnished a description of the younger man to the police from which a composite drawing of the suspected murderer was made by a police officer.

Hill's car was observed by Deputy Sheriff Dean Mahlum at about 9:45 p. m. near the Silver Dollar Bar with two occupants. Mahlum described the two occupants of the white Cadillac as follows:

"The driver of the vehicle was approximately 23 to 24 years of age, 5'10 to 5'11 tall, 165 to 170 pounds. He was wearing a felt type cowboy hat, either dark brown or black, the brim was rolled in on it. He had a light colored shirt which was unbuttoned down the front and also pulled out of his pants. I believe he had on blue jeans and boots. The other subject was an older gentleman. I didn't get as good a look at this gentleman. He had on a light colored shirt, maroon pants, boots, and also a white hat, western type."

According to the bartender, Hill returned to the Silver Dollar Bar alone at approximately 1:45 a. m. on July 9. He stood at the bar and ordered a can of beer. He took only about three drinks of the beer and walked out.

At about 7:30 a. m. on July 9, Randall Groom discovered the body of a man lying on the ground near a white Cadillac. He walked close to the body, then got back into his pickup and went home where he called the Yellowstone County sheriff's office at about 8:00 a. m. Groom waited a few minutes and then drove back to the scene. When he arrived, a deputy sheriff had already arrived.

The victim was later identified as Billy Joe Hill. No money was recovered from his personal possession.

Randall Groom testified that he discovered the body while exercising his dog. He stated that he went to this area quite often to exercise his dog, even though it is about three miles from his home. Randall Groom is the stepfather of Ed Close, the State's main witness. He adamantly denied, however, that his stepson had called him that morning, even though Ed Close lived just down the road from where the body was found. Groom stated that it was months after the murder that he first learned that his stepson knew anything about the crime. He testified that his stepson's knowledge of the facts surrounding this offense were first discovered by him about one month before trial.

An autopsy was performed by Dr. Gordon Cox, a Billings pathologist. Dr. Cox testified that the victim died from multiple severe blows to the head, both front and back, with resulting brain damage. He testified the wounds to the deceased's head were inflicted, in his opinion, by a long, relatively narrow, blunt object.

Dr. Cox further testified that from photographs, two of which were photographs of the deceased's car taken outside his presence, he concluded that the deceased was sitting in the passenger side of the automobile when the injuries to the front of the head were inflicted.

The thrust of the State's case was that Billy Joe Hill was robbed of the money he was carrying and later killed by defendant, Bobby Dee Close. The State's main witnesses were Ed Close and his wife, Joyce.

Ed Close is the stepson of Randall Groom and a cousin of defendant. The essence of his testimony was that he attended a family picnic near Big Timber, Montana, on July 4, 1974. This picnic was also attended by David Close, the second defendant in this matter and the uncle of Ed Close and the defendant. Ed testified that at this picnic, David Close used a pick to assist a vehicle across a dry creed bed and broke the handle near the pick head. After breaking the pick handle, David tossed it into the back of a pickup owned and driven by Ed. Defendant Bobby Close did not attend this picnic.

Upon returning to Billings after the picnic, Ed drove to David's house and unloaded David's belongings. Ed could not remember if the broken pick handle was unloaded at David's house; however, he found the metal pick head in his pickup when he got home. He removed it from the truck and put it in a box of junk in his garage. The pick head was later delivered to authorities in February 1976.

Ed Close testified that he had certain conversations with defendant regarding the death of Hill. The first such conversation occurred at his house when defendant told Ed and his wife Joyce as follows:

"A. Well, he told me that he run across this guy on the south side, he had a lot of money, throwing it around, buying everybody drinks, and that he had devised some kind of a plan with Uncle Dave to get his money. And they, Bobby and the man, went to different bars around town drinking and they wound up down by the river and that Uncle Dave was there and Uncle Dave give him this club and says, 'Here, Bobby, this is your trick, you do it.' Bobby told me he hit the man once and the man woke up and wanted to know what was going on and Bobby got scared, Uncle Dave took the club and finished it.

"Q. Did he, and referring to Mr. Hill, did he use any name or job occupation? A. I think he talked about him as a carnival worker."

Ed went on to testify that at a subsequent conversation defendant stated, "they would never find it," meaning the club which was used as a murder weapon.

A second conversation took place at David Close's birthday party on July 12, 1974. Ed testified that at the birthday party at David's home the club was mentioned again. According to Ed Close:

"A. Well, Bobby had quite a bit to drink and he had been outside and he come in with a, I don't know, a jug or a bottle of some kind and broke it over the table. Of course glass flew every direction and the wife and Sharon were trying to clean it up and Uncle Dave got mad and went in the bedroom and come out with this piece of a club and shook it at Bobby and asked him if he would like some of this?

"Q. He asked him if he would like some of that, and what did Bobby Dee say or do? A. I don't think Bobby said anything."

Ed Close testified that he managed to get the club from David and took it home with him. He burned it the next morning because he suspected that it was the club used in the murder. At trial he compared the club he took from David to two pick handles, introduced for demonstrative purposes only, and stated they were similar except the one taken from David was older and weatherbeaten.

On cross-examination, Ed Close admitted that he was first interrogated by law enforcement officers during the summer of 1974 and told Officer Skillen he knew nothing of the crime. Later, Ed was put under oath and sworn statements were given to the county attorney.

Joyce Close, Ed's wife, testified that she was first questioned by law enforcement personnel in February 1976. At first, Joyce denied she had any knowledge of the crime and she was questioned separately from her husband. She was later placed under oath and gave the statement incriminating defendant.

Joyce described the picnic on the 4th of July and her observation of a pick and pick handle. She also testified that she had attended the birthday party on July 12, and that a conversation, prior to the party, had occurred. She stated in detail what was said...