State v. Fitzpatrick
| Decision Date | 19 October 1977 |
| Docket Number | No. 13253,13253 |
| Citation | 34 St.Rep. 736,569 P.2d 383,174 Mont. 174 |
| Parties | , 178 Mont. 530 The STATE of Montana, Plaintiff and Respondent, v. Bernard James FITZPATRICK, Gary Radi, Travis Holliday, Paul Bad Horse, Jr., and Edwin R. Bushman, Defendants and Appellants. |
| Court | Montana Supreme Court |
John L. Adams, Jr., argued, Robert L. Stephens, Jr., argued, Reno and Dolve, James Reno argued, Chris J. Nelson argued, Billings, Clarence T. Belue, Hardin, Cate, Lynaugh, Fitzgerald & Huss, Billings, for defendants and appellants.
Michael T. Greely, Atty. Gen., argued, Helena, James E. Seykora, County Atty., argued, Hardin, James Sinclair, Sp. Deputy County Atty., argued, Billings, for plaintiff and respondent.
This is an appeal from the final judgment of the district court, Big Horn County, following a jury trial. Defendants Fitzpatrick and Radi appeal from judgments of conviction for deliberate homicide, aggravated kidnapping and robbery. Defendants Holliday and Bad Horse appeal from judgments of conviction for robbery.
On May 20, 1975, the State of Montana filed an Information charging defendants Fitzpatrick, Radi, Holliday, Bad Horse and Bushman with deliberate homicide, in violation of section 94-5-102(1)(a)(b), R.C.M.1947; aggravated kidnapping in violation of sections 94-5-303(1)(b)(c), 94-5-303(2) and 94-5-304, R.C.M.1947; and robbery, in violation of section 94-5-401(1)(b), R.C.M.1947. The affidavit of probable cause indicates these charges stem from the April 5, 1975 robbery of the Safeway store in Hardin, Montana and the murder of Monte Dyckman, a Safeway store employee. Following defense motions for severance of trial, change of venue and disqualification of judges, trial was held in Billings, Montana in October 1975. Defendant Bushman testified in behalf of the state and was granted immunity from prosecution. At the conclusion of the state's case-in-chief, all defendants rested without offering evidence. Defendants Fitzpatrick and Radi were found guilty of deliberate homicide, aggravated kidnapping, and robbery. Defendants Holliday and Bad Horse were found guilty only of robbery.
On October 29, 1975, defendants Fitzpatrick and Radi were each sentenced to 100 years imprisonment for the crime of deliberate homicide; 100 years imprisonment for the crime of robbery as persistent felony offenders pursuant to section 95-2206.5, R.C.M.1947; and death by hanging for the crime of aggravated kidnapping. Defendants Holliday and Bad Horse were each sentenced to 40 years imprisonment for the crime of robbery. Defendants Radi and Fitzpatrick's sentences of death were stayed by the district court pending appeal to this Court.
At trial the state offered evidence to prove that defendants met in Billings, Montana on April 5, 1975 and conspired to rob the Safeway grocery store in Hardin, a small community 50 miles south of Billings. The state offered direct and circumstantial evidence tending to prove that on the evening of April 5, 1975 defendants Fitzpatrick and Radi drove to Hardin in Radi's automobile, while Holliday, Bad Horse and Bushman together drove to Hardin in another automobile. Defendants parked in front of the Safeway store and waited until closing time when Everett Stoltz, the store manager, and Monte Dyckman, a store employee locked the store doors and drove away in different automobiles. Fitzpatrick and Radi followed the store manager. The remaining defendants purportedly followed Monte Dyckman but lost sight of him when he stopped at the post office to deposit mail. When the store manager drove to his home, Radi and Fitzpatrick realized the store receipts were carried by Dyckman and they proceeded to the bank where the deposit was to be dropped. It is alleged Fitzpatrick and Radi abducted Monte Dyckman at the bank, prior to his depositing the store's receipts, robbed him, and then killed him in the vicinity of the Toluca Interchange, 12 miles west of Hardin, within the boundaries of Big Horn County.
Defendants raise numerous issues on appeal. We hold the judgments of conviction must be reversed and the causes remanded for new trials. Therefore, we discuss only the following issues to insure that we do not comment on matters to come before the district court in a new trial:
I. Whether the Montana statutory provisions for jury selection are constitutionally valid and, if so, whether the jury in the instant case was selected and drawn in substantial compliance with the law?
II. Whether the defendants were prejudiced by the joinder of their trials?
III. Whether there was sufficient corroboration of defendant Bushman's testimony?
IV. Whether the convictions of defendants Holliday and Bad Horse should be reversed and the charges against them dismissed on the grounds the jury was inadequately instructed on the applicable law and returned inconsistent verdicts?
Issue I. Defendants initially contend their convictions should be reversed and the causes remanded on the grounds the Montana statutory provisions for selecting jurors is unconstitutional and, even if the statute is found to be constitutional, that the jury panels in the instant case were selected and drawn in total disregard of the applicable Montana law. Section 95-1908, R.C.M.1947, sets forth the procedure in challenging the selection of a jury panel:
At the outset we note defendants have failed to comply with section 95-1908. Defendants raised the issue of improper jury selection and drawing in a timely and specific manner, but the district court record fails to disclose the submission of any affidavit in support of the allegation. Defense counsel contend, on oral argument before this Court, that the timely submission of a supporting affidavit, required by section 95-1908, was prohibitive since counsel lacked the means of determining the manner in which the jury panel was selected and drawn. Absent such knowledge, defense counsel conclude the filing of affidavits before this Court at the time of appeal is sufficient. We disagree.
The district court file clearly reveals that at least one defense counsel was cognizant of the provisions of section 95-1908. The motion of defendant Bad Horse to discharge the jury panel states:
The district court file is deplete of any affidavit supporting this motion to discharge the jury panel. Absent such a showing of good cause to substantiate their motion, defendants cannot challenge the jury panel for the first time on appeal on the ground that the district court failed to select and draw jury panels in accordance with applicable Montana law. Ledger v. McKenzie, 107 Mont. 335, 85 P.2d 352; State v. Corliss,150 Mont. 40, 430 P.2d 632. The means of establishing good cause, specifically the sworn affidavits of the chief deputy clerk of the district court of Yellowstone County and the Yellowstone County registrar of voters, were as accessible at the time of trial as at the time of appeal.
Yet, defendants' failure to comply with section 95-1908, will not foreclose our consideration of whether the jury panel was properly selected and drawn where the fundamental constitutional rights of the defendants are at stake. State v. Porter, 125 Mont. 503, 242 P.2d 984; State ex rel. Henningsen v. District Court, 136 Mont. 354, 348 P.2d 143; State v. Chapman, 139 Mont. 98, 360 [178 Mont. 537] P.2d 703. Thus we consider the question of whether the selection of jurors and drawing of jury panels in the instant case infringed on defendants' fundamental constitutional rights.
This Court has long held the accused in a criminal prosecution is constitutionally guaranteed a trial by an impartial jury selected and drawn in accordance with the law. State ex rel. Henningsen v. District Court, supra; State v. Hay, 120 Mont. 573, 194 P.2d 232; Dupont v. McAdow, 6 Mont. 226, 9 P. 925. Any material deviation or departure in procuring a jury has been held to constitute a denial of fundamental constitutional rights. State v. Porter, supra; State v. Groom, 49 Mont. 354, 141 P. 858; State v. Tighe, 27 Mont. 327, 71 P. 3; reversed on other grounds 35 Mont. 512, 90 P. 981.
The Revised Codes of Montana are explicitly clear in defining the procedure to be followed in selecting jurors and drawing jury panels. Section 93-1301, R.C.M.1947, provides that registered electors whose names appear on the most recent list of all registered electors, as prepared by the county registrar, are competent to serve as jurors. Section 93-1401, R.C.M.1947, provides that a list of persons to serve as jurors must be prepared by the chairman of the county commissioners, or in his absence, any member of the board of county commissioners, the county treasurer and the county assessor or any two of such officers. Once the jury...
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State v. Fitzpatrick
...This Court reversed the judgment of conviction of the defendant on July 29, 1977. A new trial was ordered. See State v. Fitzpatrick (1977) Mont., 569 P.2d 383, 34 St.Rep. 736. Defendant was retried individually in February 1978. Again, defendant was found guilty of deliberate homicide, aggr......
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...substantial compliance has not been achieved.'" Dvorak, 196 Mont. at 171, 639 P.2d at 64 (quoting State v. Fitzpatrick (1977), 174 Mont. 174, 180-81, 569 P.2d 383, 389) (emphasis added); accord State v. Moran (1963), 142 Mont. 423, 447, 384 P.2d 777, 790 (quoting State v. Huffman (1931), 89......
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Fitzpatrick v. State, 81-74
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