State v. Forsyth

• Citation: 197 Mont. 248,39 St.Rep. 540,642 P.2d 1035
• Decision Date: 02 April 1982
• Docket Number: No. 80-285,80-285
• Court: United States State Supreme Court of Montana
• Parties: The STATE of Montana, Plaintiff and Respondent, v. Jerry Paul FORSYTH, Defendant and Appellant.

Page 1035

642 P.2d 1035

197 Mont. 248

The STATE of Montana, Plaintiff and Respondent, v. Jerry Paul FORSYTH, Defendant and Appellant.

No. 80-285.

Supreme Court of Montana.

Submitted Oct. 21, 1981.

Decided March 19, 1982.

Rehearing Denied April 2, 1982.

Keller & Gilmer, Robert Keller argued, Kalispell, for defendant and appellant.

Mike Greely, Atty. Gen., Chris Tweeten argued, Asst. Atty. Gen., Helena, Ted O. Lympus argued, County Atty., Kalispell, for plaintiff and respondent.

SHEEHY, Justice.

Jerry Paul Forsyth appeals from a judgment of conviction of deliberate homicide of his wife, Karen Forsyth, following a jury trial in the District Court, Eleventh Judicial District, Flathead County. Forsyth received a sentence of imprisonment of 70 years and was designated a dangerous offender.

In this bizarre case, officers of the Kalispell police department investigated a shooting report at the Skyline Bowl in Kalispell about 2:30 a. m. on December 12, 1979. The investigating officers were met at the front door of the bowling alley by Douglas Richards. Inside, the officers found Jerry Paul Forsyth apparently semi-conscious, lying on the floor. Douglas Richards brought the attention of the officers to the counter of the bowling alley, where they found the body of defendant's wife, Karen Forsyth, dead of a single gunshot wound to the head. A hand pistol, which had not been fired, was lying near the victim's feet.

Richards and Forsyth were placed in separate squad cars. The officers searched the building and found that no one else was present. Forsyth was taken to a hospital complaining of a head injury. He was found to be suffering from a superficial bruise and laceration on the back of his head but exhibited no serious symptoms.

The next morning two officers questioned Jerry Paul Forsyth about the shooting incident. He stated that he and his wife were closing the bowling alley for the night. As he started to lock the front door, the door was jerked from his hand from the outside. He turned to warn his wife and was struck from behind and knocked unconscious. He testified to the same story at trial.

Douglas Richards had been questioned in the squad car at the scene of the crime. He stated that he had been in the basement of the bowling alley and had heard a "popping" sound which he thought to be a boiler noise. Later, when he came upstairs, he found Karen Forsyth dead and the defendant, Jerry Paul Forsyth unconscious. Richards then called the police.

On January 25, 1980, Douglas Richards was arrested on a charge of sexual intercourse without consent involving a girl under the age of 16. Following his arrest, he was further interrogated regarding the murder of Karen Forsyth. When Richards was granted immunity in exchange for his cooperation respecting Karen's death, Richards recanted his prior story and implicated the defendant Jerry Paul Forsyth in the murder of Karen Forsyth.

At the trial of Forsyth, Richards testified under a grant of immunity from prosecution for the Forsyth murder, the statutory rape charge for which he had been arrested, and an additional charge of possession of dangerous drugs. In his testimony he stated that he had begun working for the defendant Jerry Paul Forsyth at Skyline Bowl in the summer of 1979 and that he and Forsyth had become well acquainted. Forsyth complained to Richards that he no longer loved his wife Karen, but could not seek a divorce because an interest in the bowling alley was in her name. Forsyth was having an affair with a woman named Debby Neff, and he wanted to move in with her by Christmas. Because of his wife's interest in the family property, Forsyth told Richards that he wanted to kill his wife and asked for advice on how to do it. Richards, who appears to have been a most obliging person in these respects, suggested several ways, including the staging of a robbery. The discussions on ways to kill Karen Forsyth extended over several months. According to Richards, he told the defendant it would take $40,000 to $50,000 for Richards to kill her himself. In late November, they decided to try an overdose of barbiturates on Karen Forsyth. Richards purchased the drugs, Seconal and phenobarbitol, from a pharmacist, using money furnished by the defendant. Forsyth later told Richards that the attempt failed because the drugs were not powerful enough.

Thereupon Richards suggested setting up a fake robbery in which Karen Forsyth would be killed. Forsyth procured a .22 caliber snub-nosed revolver. Forsyth and Richards chose a locker in the bowling alley basement locker room in which to hide the gun and the expected fruits of the robbery. For this purpose, Forsyth filled out the locker key envelope for locker no. 191 in the name of Greg Phillips, a bowler who had bowled on a team at Skyline Bowl. Richards placed a bowling bag and a pair of bowling shoes in the locker in order to avoid suspicion. On December 9, 1979, he placed the gun in the locker. When Richards arrived at work the next night, December 10, the defendant told him the crime would be committed that night. Richards took the gun from the locker, wrapped it in a rag, and gave it to Forsyth. Richards was an alcoholic and he drank steadily throughout the night from a bottle hidden in the basement area of the bowling alley. Although the bowling alley usually closed earlier, Forsyth had been remaining until the adjoining bar closed at 2:00 a. m. for several days, purportedly to stop vandalism of bowling alley equipment. This routine served as a pretext to get Karen Forsyth to remain in the bowling alley so the "robbery" could take place. On the fateful night, the bartenders and last patrons left several minutes after 2:00 a. m. Richards and Forsyth stood at the front window watching them leave. Richards' girlfriend made a brief appearance about this time. Richards gave her a key and told her to wait for him at his apartment. Richards then went to the basement locker room, opened the locker and prepared it to receive the proceeds of the "robbery" and the gun. He returned to the upstairs area, set several alarm trip- wires, and turned off the lights. He went downstairs to hide his bottle and get his coat. He then heard a single gunshot and returned upstairs to the bowling alley where he found the defendant putting the gun down and removing his gloves. Karen Forsyth had fallen to a position leaning against the counter near the cash register.

They waited until her body showed no signs of life. As part of the "robbery," Forsyth inserted a pencil into the barrel of a .9 millimeter pistol and, holding the pistol by the pencil, got Karen Forsyth's fingerprints on the pistol and placed it near her body. Richards donned the pair of gloves, took the pistol that Forsyth had used to kill Karen Forsyth and struck Forsyth in the back of the head. Richards pushed Forsyth to the floor and then collected the money from the counter to complete the "robbery." He took the money, the gloves, and the gun downstairs, and locked them in locker no. 191. Thereupon he called the telephone operator to report the "robbery" to the police.

There are additional facts which we will discuss later in this opinion in connection with the issue of corroboration of an accomplice.

The jury returned a verdict of guilty and the District Court imposed the judgment and sentence from which this appeal arises.

There is an overriding issue on which we must reverse the judgment and remand this cause to the District Court for a new trial. That issue involves the failure of the District Court, probably accidental, to define the elements of the crime of deliberate homicide in the instructions given to the jury.

The State concedes error in that the jury was not instructed as to the statutory elements of the crime. It also concedes that under State v. Lundblade (1981), Mont. 625 P.2d 545, 38 St.Rep. 441, it is clear that the trial court is obligated to give such an instruction even if one is not offered by the defense. The State, however, asks us to overlook the instructional error on the ground that it was harmless.

The State contends that in this case both sides proceeded on the premise that a deliberate homicide had been committed, and that the essential fact question for the jury to decide was the identity of the killer. All the jury had to decide, contends the State, is whether the crime was committed by the defendant as the State's evidence showed, or by an unknown assailant.

Lundblade stands for the proposition that "at a minimum" the District Court must explain or define the crime for the jury. Lundblade, 625 P.2d at 548, 38 St.Rep. at 443. See State v. Campbell (1972), 160 Mont. 111, 114, 500 P.2d 801, 803. We must agree with the rationale of the court in Williams v. United States (D.C.Cir.1942), 131 F.2d 21, 22, where the court said: "The average man has some idea of what murder is, but we would not expect a judge to say, Jurors, you know what murder is, go and decide if this man is guilty of it." In view of the fact that every material fact necessary to constitute a crime must be proved beyond a reasonable doubt, we cannot ascribe the failure to define the elements of the crime to the jury as harmless error.

Accordingly, our disposition of this case turns upon the same point as the disposition by us in Lundblade. We reverse the conviction and remand the cause for a new trial. We decline to reverse and dismiss, however, because there is evidence in the record to support the conviction. Lundblade, supra, 625 P.2d at 549 and cases thereunder.

Because this case must be retried, we will discuss other issues raised by the appellant Forsyth for the purpose of guidance to the trial court.

Forsyth contends that there was insufficient corroborative evidence in this case to support the testimony of Douglas Richards, who except for the immunity given to him, was otherwise accountable for this crime.

In State v. Kemp (1979), Mont. 597 P.2d 96, 36...