State v. Perry, 87-469

• Decision Date: 30 June 1988
• Docket Number: No. 87-469,87-469
• Citation: 45 St.Rep. 1192,232 Mont. 455,758 P.2d 268
• Parties: STATE of Montana, Plaintiff and Respondent, v. Fred Lee PERRY, Defendant and Appellant.
• Court: Montana Supreme Court

Page 268

758 P.2d 268

232 Mont. 455

STATE of Montana, Plaintiff and Respondent, v. Fred Lee PERRY, Defendant and Appellant.

No. 87-469.

Supreme Court of Montana.

Submitted on Briefs May 10, 1988.

Decided June 30, 1988.

Bell & Marra, Antonia P. Marra and Barbara E. Bell, argued, Great Falls, for defendant and appellant.

Mike Greely, Atty. Gen., John Paulson, Asst. Atty. Gen., Helena, and Patrick L. Paul, County Atty., Stephen Hudspeth, Deputy County Atty., Great Falls, for plaintiff and respondent.

SHEEHY, Justice.

Following trial by jury in the District Court of the Eighth Judicial District, Cascade County, Perry was convicted of second degree murder in connection with the death of 14 year old Vicki Renville in 1971. Perry appealed his judgment of conviction to this Court alleging, inter alia, ineffective assistance of counsel, insufficient corroboration of accomplice testimony, and improper failure to grant a new trial. Justice John C. Harrison wrote the opinion which affirmed the conviction. See State v. Perry (1973), 161 Mont. 155, 505 P.2d 113.

On April 21, 1987, Perry moved for an indigency determination, appointment of The issues before this Court are:

counsel, and a new trial or other appropriate relief based on the alleged recantation of his accomplice, Michael Stillings. Perry later argued that the State had also failed to provide his counsel with exculpatory evidence during the initial trial. Following a [232 Mont. 458] hearing on the matter, the District Court of the Eighth Judicial District, Cascade County, entered findings of fact, conclusions of law and an order denying relief. Perry appeals from the District Court's judgment. We affirm.

1. Is the failure to provide Perry with exculpatory evidence res judicata?

2. Did the District Court correctly determine that Stillings' 1971 trial testimony was presumed truthful?

3. Did the District Court accord Perry a full and fair hearing?

FACTS

The body of Vicki Renville was discovered by a motorcyclist on a county road near Great Falls on February 24, 1971. Following an autopsy, Dr. Jack Henneford, the pathologist who examined the body, determined that Vicki Renville had died from multiple blows to the left side of the head, resulting in fractures of the skull and extensive bleeding within the cranial cavity. Dr. Henneford also ascertained two recent disruptions of the hymen; that Renville had been dead at least eight hours when discovered; and that she had lived an hour or more after the blows had been inflicted. He testified that the fatal injury could have been inflicted by a tire iron and that she had several wounds on her hands consistent with her possible attempt to block the blows.

When initially interviewed about his whereabouts on the night of the murder, Perry stated he had been at home all evening, watching television and had later gone to bed. However, he subsequently contacted the Cascade County Sheriff's Office from the Missoula County jail and indicated he had information concerning the death of Renville. Following his transfer to the Cascade County Jail, he informed Cascade County law enforcement officials that Michael Stillings might be responsible for the death.

Stillings was subsequently apprehended in Seattle, Washington. When questioned about the Renville murder by Cascade County Deputies, Stillings gave a confession in which he stated that he had accidentally struck the victim with a stick when Renville startled him. Stillings also indicated that he was under the influence of drugs at the time of the murder and was attempting to retrieve some cached drugs when Renville came upon him. The Stillings confession was used in support of leave to file an information against him.

Following his transportation to Great Falls, Stillings was placed in the Cascade County Jail. While incarcerated, Cascade County jailers intercepted four notes from Stillings to family and friends. The notes indicated that the death was an accident and requested that various people help him establish an alibi. However, the final letter, in essence, indicated that Stillings was not willing to keep quiet and take the fall for someone else "this time." Shortly thereafter, Stillings informed law enforcement officials that Perry had murdered Renville with a tire iron after both men had raped her.

At the initial trial of Perry, Stillings testified that he first encountered Renville at 9:00 p.m. on February 23, 1971. Following a brief conversation, Stillings and Renville went "cruising up and down the drag," and then to the Great Northern train depot where he bought two hits of LSD. At approximately 10:00 p.m., Renville was dropped off at Sandy's Drive-In. The testimony of Chris Shatto confirms that Renville was alive and with Stillings at this time.

Stillings then picked up Dick Maxwell and proceeded to Perry's residence, where a number of people were watching a movie entitled "The Eye of the Cat." Renville was not with them.

Following the movie, Perry, Stillings, Chris Shatto and Joanne Kimbell motored to a house located on the north side of Great Falls, where Shatto and Kimbell Stillings testified that he and Perry observed Renville walking about a block from Sandy's Drive-In. Following their offer of a ride, Renville entered the car with Perry and Stillings. The group then proceeded to an area known as Wadsworth Park.

were dropped off. Perry and Stillings then headed toward down-town Great Falls.

Upon reaching Wadsworth Park, Stillings informed Renville that he wanted to have intercourse. When Renville refused, Stillings testified that he placed a knife against her throat and said "or else." Both Stillings and Perry raped Renville. Following the attacks, Renville exited the car. When she threatened to "rat," Stillings witnessed Perry strike her on the head repeatedly with a tire iron. Perry and Stillings then fled the scene. Shortly thereafter (12:30 a.m.), they picked up Mike Baldwin and Jim Duvall in an attempt to establish an alibi. Stillings later changed his car tires and disposed of the tire iron.

The State at trial also presented evidence that the coat worn by Perry on the night of the murder was spotted with human blood. In addition, JoAnn Wittke testified that Perry had informed her that a big guy and a small guy had killed Renville and then had thrown some car tires in the river. Perry and Stillings could be described as a big guy and a small guy.

Although his counsel vigorously cross-examined Stillings concerning his confession, Perry did not take the stand during the 1971 trial, nor did he present evidence in support of his alibi defense. However, Perry had earlier given a statement to the officers in which he indicated that he was at home all evening and went to bed at midnight. He later gave a sworn statement, in the presence of counsel, in which he stated he was with Stillings and Renville just prior to the murder but had been dropped off at Debbie Phillip's house. Pursuant to this version of the night in question, Perry was alleged to have been making love during the time of the murder. He was then picked up by Stillings while walking home. They encountered Mike Baldwin and Jim Duvall shortly thereafter.

Neither Debbie Phillips nor her mother confirmed Perry's story nor testified at trial. They did, however, before Perry's trial, give sworn statements which apparently contradicted Perry's story. When informed of this state of affairs, and the fact that his counsel had a copy of the statements, Perry, surprised, responded "what?" Due to the passage of time, the original sworn statements by Debbie Phillips and her mother could not be found. However, Perry and his counsel acknowledged that the second explanation of the night of the murder was a fabrication.

Perry was subsequently convicted of second degree murder. He then moved for, and received, the appointment of new counsel immediately following the conviction.

Replacement counsel, Mr. Randono, thereafter moved for a new trial, alleging, inter alia, that the State failed to provide, pursuant to a discovery motion, the defense with exculpatory evidence, specifically, Stillings' Seattle confession and a letter from Stillings to Mona Brown which indicates the death was accidental. The motion was subsequently denied and the issue of exculpatory evidence was not raised on the initial appeal. The record is generally unclear as to which documents Perry received pursuant to the motion. However, Perry's trial counsel stipulated that the State had complied with the discovery request the day of trial and Stillings was cross-examined on the basis of his confession. In addition, Perry did not call his former attorneys to the witness stand during the 1987 hearing.

For a period of 15 years, Stillings was content to abide by his trial testimony. However, in 1986, Stillings learned that he and Perry would be incarcerated in the same prison for the first time. Shortly after Perry arrived, Stillings determined that his new found faith demanded that he come forward with the truth in order to relieve his conscience. Stillings contacted Perry through an intermediary and gave a sworn statement recanting his trial testimony shortly thereafter. Although Stillings indicated he originally confessed out of fear for his safety, he contends that his Following Stillings' recantation, Perry immediately filed a motion for an indigency determination, appointment of counsel, and a new trial or other appropriate relief. However, he did not raise the issue of the State's failure to provide exculpatory documents in his pleading nor was the pleading ever amended to include such a claim. Counsel indicates that the exculpatory documents were not discovered until shortly before the hearing.

recantation was not motivated by similar concerns.

Stillings' recantation testimony is that he encountered Renville between 6:00 and 9:00 p.m. as she was walking to a store. Shortly thereafter, she and Stillings drove...