State v. Perry, 12213

• Decision Date: 10 January 1973
• Docket Number: No. 12213,12213
• Citation: 161 Mont. 155,505 P.2d 113
• Parties: The STATE of Montana, Plaintiff and Respondent, v. Fred Lee PERRY, Defendant and Appellant.
• Court: Montana Supreme Court

Page 113

505 P.2d 113

161 Mont. 155

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

No. 12213.

Supreme Court of Montana.

Jan. 10, 1973.

Ralph Randono, argued, Great Falls, for appellant.

Robert L. Woodahl, Atty. Gen., Helena, J. C. Weingartner, Asst. Atty. Gen., argued, Helena, J. Fred Bourdeau, County Atty., argued, Great Falls, Arthur G. Matteucci, Deputy County Atty., Great Falls, for respondent.

JOHN C. HARRISON, Justice.

Defendant Fred Lee Perry appeals from a judgment of conviction of second degree murder and life sentence in the state prison. He was tried by a jury in the eighth judicial district, county of Cascade, the Hon. Truman Bradford, judge presiding.

The body of Vicki Renville, a teenager, was discovered by a motorcyclist on a county road near Great Falls Montana on February 24, 1971. Immediate investigation instituted by the sheriff's office of Cascade County, led to the arrest and conviction in separate proceedings of two men, defendant and Michael Stillings.

After making an on-the-spot investigation of the murder site, the sheriff had the body examined by Dr. Jack Henneford, a resident pathologist. As a result of his examination Dr. Henneford testified that she died from multiple blows to the left side of her head, fractures of the skull and from extensive bleeding within the cranial cavity. He also testified the body showed two small recent tears of the hymen; that in his opinion the girl had been dead at least eight hours; and, that she had lived an hour or more after the blows had been inflicted.

During the investigation a deputy sheriff interviewed defendant the day after the body was found, as to his whereabouts on the night of the murder. Defendant informed the deputy he was at his trailer all evening, watched TV and went to bed. This statement was given in the presence of two other deputies. On March 6, 1971, some two weeks after the murder, the sheriff received word from defendant, then confined in the Missoula County jail on an unrelated charge, that he wanted to talk to the sheriff and give him information concerning the death of Vicki Renville. He told the investigating officers he wanted to help them and they obtained his release from the Missoula County jail in the custody of the Cascade County sheriff. Although it is not clear in the record, it appears defendant implicated Michael Stillings. Stillings was arrested in Seattle Washington, where he gave three deputy sheriffs a statement that he had killed Vicki Renville. Arrangements were made to return him to Great Falls, where he made another statement. Stillings told the officers that defendant had killed the girl. He told them the story of what happened the night of the killing, where he had defendant were, who they were with both before and after the killing. Accompanied by his attorney, the county attorney and three deputy sheriffs, he took them to the scene of the killing.

The story relating to the killing, as told to the jury by Stillings, was that he and defendant picked Vicki up late in the evening of February 23, 1971, and after riding around town they took Vicki to an area known as the Wadsworth Park. There Stillings suggested that Vicki have intercourse with him and when she refused he put a knifee to her throat and forced her to have intercourse with him in the back seat of the car. Then, according to Stillings, defendant had intercourse with her. After these two acts Vicki got out of the car and his story of what happened then is:

'Q. What happened them? A. Vicki said she was going to rat.

'Q. Vicki said she was going to rat? A. Yes.

'Q. And do you know what she meant by that? A. Yes.

'Q. What did she mean? A. She was going to squeal.

'Q. And what happened then, if anything? A. Fred ducked back into the car and he grabbed the tire iron, and he started hitting her.

'Q. What kind of the iron was it? A. It was a-just a single tire iron. It was a bar tire iron.

'Q. Did it have a lug wrench end on it? A. Yes.

'Q. Did it have a pointed end on it? A. Yes.

'Q. And could you see him striking her? A. Not at first.

'Q. Did you ever see him striking her? A. Yes.

'Q. When did you see him striking her? A. When she was laying on the ground.

'Q. And in what position was she in when she was lying on the ground? A. She was lying on her back.

Q. And in what position was Mr. Perry? A. He was standing over her.

'Q. How many times did you see him strike her, do you recall? A. Maybe half a dozen times.

'Q. And what did you do then, if anything? A. I jumped out of the car and grabbed his arm.

'Q. What happened after you grabbed his arm? A. He dropped the tire iron and backed off.'

Stillings testified that he picked Vicki up and thought she was dead. Then the two fled from the area returning to town where they picked up friends, so that they could establish an alibi. The next day Stillings changed the rear tires on his car, cleaned off the bloody tire iron, and soon thereafter left for Seattle. Stillings hold the deputies where he threw the tire iron in the state of Washington, but after a thorough search no tire iron was found.

At the time he testified Stillings had entered a plea to second degree murder, but sentence had not been imposed. The defense attorney thoroughly cross-examined him about making a deal with the state, but he said he 'expected no leniency'.

Dr. Henneford in his expert testimony described the kind of weapon that could have inflicted the blows on Vicki, and when shown a tire iron like that described by Stillings, he testified that such a weapon could have inflicted the injuries described by him which resulted in her death.

Defendant was defended by two able counsel for the Bar of Cascade County. John W. Lynch, Esq. before entering private practice served as a clerk to this Court and worked for over a year on the revision of Montana's criminal code. John D. Stephenson, Jr. has been in active practice for over ten yeara and is a skilled, competent, qualified trial lawyer. On appeal, due to allegations made about his trial counsel, the trial court appointed Ralph T. Randono, a former deputy county attoney, to handle the appeal. He was assisted in his preparation of the appellate brief by the trial counsel.

Defendant sets forth seven issues on appeal for this Court's consideration:

1. Defendant was not provided counsel as required.

2. Defendant was questioned and harassed by sheriff's deputies after his counsel was appointed.

3. Defendant when provided counsel, was given counsel withut experience in criminal law.

4. Both defendant and counsel asked for new counsel.

5. There was a failure of corroboration.

6. The court erred in accepting a verdict of second degree murder.

7. The court erred in not granting defendant's post trial motion to modify the verdict in accordance with section 95-2101(c), R.C.M.1947.

Issues 1, 3 and 4, concern trial counsel and as such the issue of competency of counsel will be discussed covering the three issues.

First, defendant alleges that between the time of his arrest and the appointment of counsel, he was subjected to examination by members of the sheriff's and county attorney's offices without counsel. The facts as set forth in our statement of facts fail to substantiate this charge. To the contrary, defendant volunteered to assist the Cascade County officials in clearing up the killing of Vicki Renville. He obtained release from the Missoula County jail and was allowed to return to Great Falls to assit in the investigation. It was not until after he implicated Stillings and Stillings had made the accusation involving defendant, that any focus was directed to defendant. The record reveals that after returning to Great Falls he again got into trouble and was put into the Cascade jail to serve out the Missoula County sentence. He was released, left the state, and it was not until August 17, 1972, that a warrant for hihs arrest was issued. The record and transcript fail to show any statements made by defendant during the investigative period, and defendant did not take the stand to explain anything that happened during that period. Miranda v. Arizona, 384 U.S. 436, 86 S.CT. 1602, 16 L.Ed.2d 694, has no application to this fact situation.

Defendant was served by not one, but two, court appointed attorneys who were faithful to their professional obligations in his defense. Their thanks is now to be charged with being 'ineffective counsel'. These days this is nt an unusual charge by convicted defendants and as this Court said in State v. Forsness, Mont., 495 P.2d 176, 179, 29 St.Rep. 232, 236:

'Success is nt the test of efficient counsel, frequently neither vigor, zeal nor skill can...