State v. Rose

• Citation: 187 Mont. 74,608 P.2d 1074,37 St.Rep. 642
• Decision Date: 02 April 1980
• Docket Number: No. 14704,14704
• Parties: STATE of Montana, Plaintiff and Respondent, v. William Newton ROSE, Defendant and Appellant.
• Court: United States State Supreme Court of Montana

Page 1074

608 P.2d 1074

187 Mont. 74

STATE of Montana, Plaintiff and Respondent, v. William Newton ROSE, Defendant and Appellant.

No. 14704.

Supreme Court of Montana.

Submitted March 24, 1980.

Decided April 2, 1980.

Hirst, Dostal & Withrow, John A. Dostal argued, Michael J. Sherwood, Missoula, for defendant and appellant.

Mike Greely, Atty. Gen., Chris Tweeten, Asst. Atty. Gen., argued, Helena, Robert L. Deschamps III, County Atty., Karen Townsend argued, and Tom Beers argued, Deputy County Attys., Missoula, for plaintiff and respondent.

HASWELL, Chief Justice.

Defendant appeals from a denial of his motion for a new trial following his conviction of burglary by a jury in the District Court of Missoula County.

Dr. John Opalka was on vacation in March 1978. A neighbor, Rae Dabbert, had been asked to watch the Opalka home, to water plants and pick up mail. On March 2, 1978, she was in the home and all was in order. On Sunday, March 5, Mrs. Dabbert noticed that a door into the garage was open and that a number of rooms were in disarray. She called the Missoula County sheriff's office and Deputy Willis Hintz arrived shortly thereafter.

Mrs. Dabbert and Officer Hintz searched the house and discovered that a television set was missing and that there were some tools on a couch. They also saw tracks in the snow behind the house. They could not tell whether the tracks had been made by one or by two people. Officer Hintz found pry marks on a door leading into the living room and on the garage door.

Dr. Opalka and his wife returned to Missoula on Monday March 6, 1978. Later that day Dr. Opalka spoke with Deputy Phil Nobis who was investigating the crime. A list of the missing property was prepared at that time. Dr. Opalka indicated that six guns were taken, two containers of coins with approximately $400 in each, a portable typewriter, a portable television and other miscellaneous items.

On February 27 or 28, the defendant had been at Dr. Opalka's clinic demanding a cash refund for some returned pills. The receptionist informed the defendant at that time that she could not refund the money until the doctor returned and that the doctor would not be back for a week. The defendant had left the clinic extremely upset.

In the early morning hours of March 5, 1978, a University of Montana security officer ticketed an illegally parked vehicle belonging to Richard Cory. The officer observed in the back seat of the car a portable typewriter and a 5 gallon green jar with coins in it. On Friday, March 10, Missoula police learned that these items had been seen in Cory's car. It was also learned that Cory and the defendant were associates and that the defendant had recently had some guns in his possession. The police found Cory and a voluntary statement was taken. In this statement Cory told the police that the defendant had been angry at Dr. Opalka because he could not get a refund on some pills and defendant had decided to "rip off" the doctor. Cory stated that the defendant had committed the burglary on his own and had taken some guns to the residence of Jane Gardiner. Cory denied any participation in the Opalka burglary.

After taking this statement police officers went to the Gardiner residence. Stan Gardiner was present and he voluntarily turned over four guns to the officers. A short time later his ex-wife Jane Gardiner returned to the residence. Two additional guns were recovered from her car. A receipt was prepared for the guns and they were returned to Dr. Opalka the next morning.

Early in the morning on March 11, 1978, the defendant was arrested in Darby, Montana, in a car belonging to Madeline Freeburg. The defendant was charged with burglary, or in the alternative, theft of the six guns. He pleaded not guilty and interposed a defense of alibi. Madeline Freeburg was listed as his alibi witness.

By the time of the trial Cory had changed his original version of the burglary. He testified that he and the defendant had committed the burglary together. In this testimony he outlined the details of the burglary. He stated that after the crime was committed the defendant had gone to Butte to try to sell the guns. Cory also testified that he and the defendant went to Polson the next Tuesday in an attempt to sell two guns. They had no success in their attempts at selling the guns. The prosecution introduced the testimony of several witnesses which tended to link Cory and the defendant together on the night the crime was committed.

The defendant testified on his own behalf at the trial. He testified that he had nothing to do with the burglary. He stated that he did tell Cory about the visit to the Opalka Clinic, but that the idea of burglarizing the Opalka residence was Cory's. The defendant stated that he had not seen Cory on the night of the burglary, but that he did drive to Polson with Cory in an attempt to sell the guns. He testified that he did not know at that time that the guns had been stolen. A few days later, according to the defendant, he loaned his landlady's car to Cory for two or three hours in the morning. In the afternoon, after he had gotten the car back, the defendant received a phone call from Cory. Cory told the defendant that he (Cory) had left something in the car trunk and for the defendant to "Get that out of there." As a result, the defendant drove to Lolo, Montana, and stashed the guns in a pasture. The defendant and Cory later recovered the guns.

Madeline Freeburg, who was the defendant's landlady, testified that defendant had been home studying all night on March 4, 1978, the night of the burglary. Shirley Marshall, an acquaintance of defendant's, stated that the defendant had been at her home on the evening of March 4, and that he had left at about 11:00 p. m. The defendant testified that he had been with Shirley Marshall that evening and that he had gone home at about midnight. He denied being with Cory that night and he denied being at any bars that night.

Craig Howard testified as a rebuttal witness for the State. Howard testified that the defendant had been in a Missoula bar at 10:30 or 11:00 p. m. on March 4, 1978.

The case was submitted to the jury on the alternative charges of theft and burglary. The jury was instructed that they could only find the defendant guilty of one of the two charges. The jury returned a verdict of guilty to the burglary count. The defendant filed a motion for a new trial which was denied. The defendant was sentenced to the State Prison for a period of 25 years. The District Court ordered that the defendant be declared ineligible for parole or furlough during the term of the sentence.

The following issues are raised on appeal:

1. Was there sufficient corroboration of the accomplice's testimony?

2. Was the motion for a new trial properly denied?

3. Was Instruction No. 20 properly given to the jury?

4. Did the defendant have effective assistance of counsel?

Under Montana law a defendant cannot be convicted of a crime solely upon the testimony of an accomplice. Section 46-16-213, MCA, provides:

"A conviction cannot be had on the testimony of one responsible or legally accountable for the same offense, as defined in 45-2-301, unless the testimony is corroborated by other evidence which in itself and without the aid of the testimony of the one responsible or legally accountable for the same offense tends to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof."

In the instant case the prosecution was largely based upon the testimony of Richard Cory, an admitted accomplice to the burglary. The defendant claims that, absent the testimony of Cory, there is not sufficient, independent evidence which "tends to connect" him with the burglary.

The reason for the rule on corroboration is firmly grounded in common-experience. "The testimony of an accomplice is apt to be highly colored and biased. Moreover, it is to be expected that an accomplice may, or has good reason to, place his own welfare and freedom above that of the defendant." 2 Wharton's Criminal Evidence § 445 (12th ed. 1955).

This Court has recently outlined the law of corroboration of accomplices as follows:

"The sufficiency of evidence necessary to corroborate accomplice testimony is a question of law. State v. Standley (1978), Mont., 586 P.2d 1075, 1078, 35 St.Rep. 1631, 1635; State v. Perry (1973), 161 Mont. 155, 161, 505 P.2d 113, 117. In defining the quantum and character of proof required to corroborate accomplice testimony, a substantial body of caselaw has evolved.

"To be sufficient, corroborating evidence must show more than that a crime was in fact committed or the circumstances of its commission. State v. Keckonen (1938), 107 Mont. 253, 263, 84 P.2d 341, 345. It must raise more than a suspicion of the defendant's involvement in, or opportunity to commit, the crime charged. State v. Gangner (1957), 130 Mont. 533, 535, 305 P.2d 338, 339. But corroborative evidence need not be sufficient, by itself, to support a defendant's conviction or even to make out a prima facie case against him. State v. Ritz (1922), 65 Mont. 180, 186, 211 P. 298, 300; State v. Stevenson (1902), 26 Mont. 332, 334, 67 P. 1001, 1002. Corroborating evidence may be circumstantial (State v. Harmon (1959), 135 Mont. 227, 233, 340 P.2d 128, 131) and can come from the defendant or his witnesses. State v. Phillips (1953), 127 Mont. 381, 387, 264 P.2d 1009, 1012.

"With these principles in mind, each case must be examined on its particular facts to determine if the evidence tends, in and of itself, to prove defendant's connection with the crime charged.

"One accomplice cannot supply the independent evidence necessary to corroborate another accomplice. State v. Bolton (1922), 65 Mont. 74, 88, 212 P. 504, 509; 30 Am.Jur.2d Evidence, Sec. 1156 . . ." State v. Kemp (1979), Mont., 597 P.2d 96, 99, 36...