State v. Fitzpatrick

Decision Date21 February 1980
Docket NumberNo. 14422,14422
Citation606 P.2d 1343,37 St.Rep. 194,186 Mont. 187
PartiesThe STATE of Montana, Plaintiff and Respondent, v. Bernard James FITZPATRICK, Defendant and Appellant.
CourtMontana Supreme Court
John L. Adams, Billings (argued), for defendant and appellant

Mike Greely, Atty. Gen., Helena, Mike McCarter, Asst. Atty. Gen., Helena (argued), James Seykora, County Atty., Hardin, for plaintiff and respondent.

SHEEHY, Justice.

A jury sitting in District Court, Yellowstone County, found Bernard James Fitzpatrick guilty of deliberate homicide, aggravated kidnapping and robbery. Fitzpatrick was sentenced to death for the crimes of deliberate homicide and aggravated kidnapping and to 100 years imprisonment for robbery by the Honorable Charles Luedke, district judge. The case is before this Court pursuant to the automatic review provisions of section 95-2206.12, R.C.M.1947, now section 46-18-307 MCA, and the direct appeal of Fitzpatrick.

Before the homicide, Bernard James Fitzpatrick (defendant), had been imprisoned in the Montana State Prison until March 28, 1975. Upon his release, defendant was greeted by two companions, Christine Fetters and Paul Manning. They provided defendant with transportation to Butte, Montana. Manning gave defendant a handgun. A few days later, Christine Fetters and the defendant traveled by bus to Billings, Montana.

On the morning of April 5, 1975, defendant was playing pool with Travis Holliday in the Standard Bar in Billings, when two men, Paul Bad Horse Jr. and Edwin Bushman, entered the bar. Bad Horse recognized Holliday and the two men conversed After the discussion Bushman (who was driving his girlfriend's car) and Bad Horse agreed to take Holliday and defendant to a home on the west side of Billings. En route to the west side home, three teenage girls were picked up at Holliday's request. The defendant, gave directions to a residence on the south side of Billings, went into the residence and came out soon thereafter, placing what appeared to be a gun under his belt.

briefly. Shortly thereafter, introductions were made and the four men proceeded to play several games of pool. While playing pool, they [186 Mont. 191] discussed the feasibility of robbing the Safeway store in Hardin, Montana. Defendant picked up a napkin, drew lines on it to represent streets, and asked the others where the Safeway store and bank were located. "X's" were made in the appropriate places on the napkin. Bad Horse explained that an employee left the store at 10:00 p. m. each night and went to the local bank to make the night deposit.

The four men and three girls arrived at the west side home at approximately 6:00 p. m. Once inside, Holliday and the defendant introduced the others to Gary Radi. As additional plans for the robbery were being made, defendant revealed the handgun he had placed under his belt. While the others examined the .45 caliber automatic, the defendant cautioned them to be careful because it was loaded.

Holliday asked Bushman for a ride to Hardin and Bushman agreed to do so. It was planned that Radi and defendant would take Radi's car (a metallic blue 1971 Pontiac) to Hardin and Holliday would travel with Bushman and Bad Horse. With one of the teenage girls in Radi's car and the other two girls in Bushman's car, the five men met in front of the Standard Bar in Billings. Again Holliday asked Bushman to provide transportation for the girls and Bushman agreed to take them to Hardin. The girl in Radi's car left the group at the Standard Bar. The parties agreed to meet at a filling station near Billings near the entrance to the interstate highway before departing to Hardin.

They arrived in Hardin at approximately 8:00 p. m. The girls were taken to the Becker Bar at Holliday's request. The five men then toured the downtown area in Bushman's car. They drove past the drive-in bank and the Safeway store. When they returned to the Becker Bar, Holliday, Bad Horse, Radi and the defendant got into Radi's car and drove to the Safeway store while Bushman returned his girlfriend's car to his house in Hardin, and picked up his own car which contained a piece of rope in the trunk.

Bushman drove his car to the Safeway store. He cut the rope into two pieces approximately three and one-half feet in length and gave them to the defendant. The five men sat in the cars in front of the store until it closed at 10:00 p. m. When Everett Stoltz, the store manager, came out and drove away in a four wheel drive vehicle, Radi and defendant followed him. Monte Dyckman, the assistant store manager, came out of the store soon after and drove away in a pickup. Bushman, Bad Horse and Holliday followed him.

Everett Stoltz drove directly to his home, and Radi and defendant, realizing that Stoltz would not be making the night deposit, then drove to the drive-in bank located on the opposite corner from Stoltz's house. The men had agreed previously should either car follow the wrong employee, the occupants would go to the bank and wait for the deposit to be made.

Monte Dyckman stopped at the post office before turning onto the street to the bank. When the men in Bushman's car saw Dyckman turn into the drive-in bank, Holliday stated, "They've got him now." Bushman then drove to a filling station to prepare for the trip back to Billings.

At approximately 10:30 p. m., witnesses observed the Dyckman vehicle traveling at a high rate of speed down a major street in Hardin. Two persons were in the truck, a driver and a passenger slumped against the right-hand door. Following close behind Dyckman's vehicle was a dark blue car. Soon thereafter, a man driving on the interstate highway was passed by a truck (he In the early morning hours of April 6, 1975, Under Sheriff John Fergerson noticed the reflection of a taillight on a vehicle parked behind a gravel pile near the Toluca interchange. Fergerson approached the vehicle and recognized Monte Dyckman lying on the passenger seat with his hands tied behind his back. Monte Dyckman was dead. He had been shot twice with a gun held less than six inches from his head. Fergerson also noticed numerous footprints around Dyckman's truck and tiretracks leading into the area. A subsequent search of Dyckman's car revealed two .45 caliber brass shell casings.

recognized as belonging to Monte Dyckman) and a car following Dyckman's vehicle. The vehicles were moving at a high rate of speed. They turned off the highway and stopped near a section of the highway known as the Toluca interchange.

Bushman, Holliday and Bad Horse arrived at Radi's house in Billings at approximately 2:30 a. m., April 6, 1975. Eventually, Radi returned without the defendant and the four men went inside to discuss the robbery. Radi explained that defendant grew tired of waiting for the store employee at the drive-in bank and had stepped out of the car, pulling off his mask. About that time Dyckman turned into the drive-in bank, stepped out of his car, and was seized by Radi and defendant. When asked how much money was taken, Radi stated that the bag contained only $200 in cash and some food stamps and checks. Radi told the others, "Fitz didn't have to shoot the kid. Boom, boom, he shot his head off." "Fitz" is identified as the defendant.

In the meantime, the defendant telephoned Christine Fetters at the home of his sister. Defendant instructed Christine Fetters to purchase two bus tickets to Butte and meet him at the bus depot. While Christine Fetters was standing in line waiting to board the bus at 6:00 a. m., defendant walked into the depot. The couple boarded the bus and returned to Butte that morning. Defendant was apprehended two months later, on June 3, 1975, in Spokane, Washington, by a special agent of the Federal Bureau of Investigation.

The State of Montana filed an information charging Bushman, Bad Horse, Holliday, Radi and defendant with deliberate homicide, aggravated kidnapping and robbery. Trial was held in Billings, in October 1975. Bushman testified in behalf of the State and was granted immunity from prosecution. Radi and defendant were found guilty of all charges. Bad Horse and Holliday were found guilty of robbery.

On October 29, 1975, Radi and defendant were each sentenced to 100 years imprisonment for the crime of deliberate homicide; 100 years imprisonment for the crime of robbery; and death by hanging for the crime of aggravated kidnapping. Bad Horse and Holliday were each sentenced to 40 years for the crime of robbery.

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, aggravated kidnapping and robbery. On April 5, 1978, the District Court sentenced defendant to death for the crime of deliberate homicide, to death for the crime of aggravated kidnapping and to 100 years imprisonment for robbery.

Defendant's case was certified to this Court on July 31, 1978, pursuant to section 95-2206.12, R.C.M.1947, now section 46-18-307 MCA, which subjects the judgment of conviction and sentence of death to automatic review.

On direct appeal, defendant raises six issues, comprising four evidentiary questions and two questions concerning the death penalty. They are:

(1) Did the District Court err in permitting Bushman to repeat statements allegedly made by Radi on the night of the crime, when Fitzpatrick was not present?

(2) Did the District Court err in permitting Sheriff Robert Brown to give his opinion as to where a gun may have been buried?

(3) Did the District Court err in admitting into evidence the shell casing taken from Radi's vehicle some ten weeks after Dyckman's body was found, without requiring a foundation to connect defendant with the vehicle during the...

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