State v. Collins

• Citation: 178 Mont. 36,582 P.2d 1179,35 St.Rep. 993
• Decision Date: 21 August 1978
• Docket Number: No. 13804,13804
• Parties: STATE of Montana, Plaintiff and Respondent, v. William John COLLINS, Defendant and Appellant.
• Court: United States State Supreme Court of Montana

Page 1179

582 P.2d 1179

178 Mont. 36

STATE of Montana, Plaintiff and Respondent, v. William John COLLINS, Defendant and Appellant.

No. 13804.

Supreme Court of Montana.

Submitted April 20, 1978.

Decided July 14, 1978.

Rehearing Denied Aug. 21, 1978.

Smith, Emmons, Baillie & Walsh, Great Falls, Robert J. Emmons, argued, Great Falls, for defendant and appellant.

Mike Greely, Atty. Gen., Helena, Allen B. Chronister, Asst. Atty. Gen., argued, Helena, J. Fred Bourdeau, County Atty., Great Falls, Nicholas Browning, III, Deputy Co. Atty., appeared, Great Falls, for plaintiff and respondent.

SHEEHY, Justice.

Defendant William John Collins was charged in the District Court, Cascade County, with the offense of deliberate homicide. Upon his plea of not guilty, after trial, the jury returned a verdict of guilty of mitigated deliberate homicide. Judgment of conviction was entered, and defendant was sentenced to imprisonment for a term of forty years. From judgment and denial of a new trial, defendant appeals.

Without question, on April 23, 1973, defendant shot Darrell David Gardipee, who died as a result. The shooting occurred on Wire Mill Road, north of Great Falls. The only witnesses to the events prior to the shooting were the defendant and Carla Brave. Two others, Robert M. Bretz and his wife, drove upon the scene very shortly after the shooting. The only witness to the actual shooting was defendant.

From the evidence it appears defendant, a 48 year old unemployed painter, at and prior to the time of the shooting was living in a camper mounted on his pickup truck. He had been in Great Falls 4 or 5 days, with no definite location, parking his pickup and camper unit in various places from time to time. Before returning to Great Falls, he had been in Arizona since the previous September doing some prospecting there.

Carla Brave, then in her twenties, a singer with a band that played in local night spots in Great Falls, met Gardipee, then 21, about six months before the incident. They became good friends. In the afternoon preceding the shooting, Gardipee went to the place where Carla was rehearsing. After the practice session, he invited Carla to accompany him to the Brass Rail, a local bar. There they had some drinks and played pool at a table at the rear of the premises.

While Carla and Gardipee were at the Brass Rail, about 6:30 or so in the evening, defendant entered the bar. He had been drinking before he arrived, and upon entering he ordered a round of drinks for the house. He noted Gardipee and Carla playing pool and fell into conversation with them, although he did not know them. He bought a round or two of drinks. They all talked and played some pool and continued to consume liquor.

Finally they decided to go to another place. Defendant had the transportation facilities so he drove them to the City Bar, where Gardipee went in and returned with a bottle of wine.

Carla testified that all three inspected the inside of the camper while they were stopped at the City Bar; defendant remembers the location as at the Brass Rail. At any rate, the camper was inspected and admired by Carla and Gardipee. Carla particularly testified that at the time of the inspection, she saw no rifle lying on a bed in the camper, nor indeed did she observe one in the camper otherwise.

When they left the City Bar, Carla wanted to go to her place, but Gardipee wanted to ride around. Defendant drove the unit out of the city on the Havre highway, and then turned off that highway to the Wire Mill Road, thence to a place not far from the Missouri River, where he parked. All three were sitting in the cab of the pickup.

When they stopped, Carla and Gardipee got out and wandered towards the river. The night was cold, but they talked and kissed about an hour before she returned to the cab, where defendant had remained. He had continued to drink, consuming beer they had brought from the Brass Rail, and some whiskey he had procured from the camper. Gardipee was drinking from the wine bottle.

Carla and defendant talked in the cab for a time, while Gardipee remained outside. Defendant told Carla that he thought "everybody should make love to everybody". The remark "kind of spooked" her. Then he asked her if she would like to go to the camper in back and drink whiskey with him. Carla also testified about another matter he discussed, to which we will allude more fully latter in this opinion.

Carla left the cab, and defendant remained inside. She rejoined Gardipee, but did not tell him of the conversation in the cab.

Meanwhile, Gardipee was acting strangely. He was raising the wine bottle to the sky, jumping up and down, and he appeared to defendant to be "flipping out."

Finally, near midnight, they decided to leave. All three got in the cab, Carla sitting in the middle. Defendant drove up to the point of again entering Wire Mill Road. Here Gardipee grabbed the steering wheel and wanted to turn right. Defendant, however, wanted to go back to Great Falls, which was to the left. Meanwhile Gardipee was complaining how the white man had messed up the Indian land, and said "This is our land." Then he slammed his fist on the dash of the cab and said "Even this belongs to me." Defendant testified that at that point, Gardipee started punching him in the head while he was driving.

Defendant stopped the truck in the lane of traffic of the roadway. Gardipee got out on his side of the pickup. Defendant testified he jumped out of the truck on the driver's side and ran back to the rear of the camper. He opened the rear door and got into the camper, and attempted to lock the camper door behind him.

Defendant testified that then the door of the camper was jerked open by Gardipee, who said "I've got you now" or words to that effect. Defendant was inside the camper, possibly in the middle of the camper. Gardipee was at the door with one hand on a handle to help himself in and defendant said he saw something "bright colored" in his other hand. Defendant did not know what it was, nor was it ever further identified at the trial.

The interior of the cab was dark. Defendant had not turned on the interior camper lights. The outside lights of the camper unit were on, including the clearance lights. Defendant testified that it was dark enough however that he could not have identified the person as Gardipee coming into the truck, nor could he see Gardipee's eyes.

Defendant had in the camper a bolt-action .22 caliber rifle he had purchased in Great Falls, prior to going to Arizona for prospecting. Defendant testified that after Gardipee jerked the camper door open, defendant ran a step or two to the front of the camper and picked up the rifle from the bed where it was lying. He turned without raising the gun to his shoulder, keeping it in his right hand, and fired. He stated he did not intend to shoot Gardipee at the time; that he thought it would scare him off; and, that the gun went off accidentally.

Because of the make and type of rifle involved, the gun must have been ready to fire, with a bullet in position in the chamber. Defendant said nothing and gave no warning before he fired the shot.

The bullet entered the body of Gardipee nearly in the middle front at the level of the seventh rib and traveled downward at an approximate forty-five degree angle through his diaphragm, the posterior of his liver, through his vena cava and lodged next to his spine in the abdomen. Gardipee fell back from the camper to the ground. He was in a doubled-up position on the ground when Carla came from the cab, where she had remained after the men got out, until she heard the shot which sounded like an "explosion".

Defendant was getting down from the camper when Carla came to the scene. He still had the rifle in his hand. At that moment another car drove up, driven by Robert Bretz, with his wife as a passenger. Defendant placed the rifle on the floor of the camper, went around to the cab of the pickup, got in, and drove off, leaving Gardipee on the roadway, with Carla bending over him. Defendant drove to the Cascade County sheriff's office, where he turned himself in.

Meanwhile Robert Bretz, his wife and Carla put the bleeding Gardipee into the Bretz car and went to the hospital, where he expired of his wounds at approximately 12:55 a.m. An autopsy was later performed which established the cause of death.

The foregoing outline of facts is taken mainly from defendant's testimony. There are certain discrepancies between his testimony and other witnesses in other matters, but the story of the events surrounding the actual shooting came mainly from defendant.

The jury listened to the testimony, considered the relevant facts proven, and brought in its verdict of guilty of mitigated deliberate homicide against defendant.

Defendant's appeal concerns mainly five issues which attack the verdict and subsequent judgment:

1. Whether the District properly admitted testimony of an alleged statement of defendant that he had been imprisoned for rape.

2. Whether the District Court properly instructed the jury.

3. Whether defendant was denied a speedy trial.

4. Whether the District Court erred in admitting certain photographs in evidence.

5. Whether the evidence supports the jury verdict.

The first issue, the alleged statement of defendant that he had been imprisoned for rape, arose during the testimony of Carla Brave about her conversation in the cab of the pickup with defendant while Gardipee was outside. In addition to the subjects outlined above, Carla was permitted to testify, over objection, that defendant told her during the conversation that defendant knew Merle Gardipee, the brother of Darrell Gardipee; that he had met him in prison. She asked defendant "what were you in there for?" and he "said he was in for rape."

The state contended the evidence was relevant to the events and to the attitude and intent of the defendant that evening. Defendant's counsel objected...