NO. 82--366 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1983 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsHENRY JAMES GILLHml, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Nineteenth Judicial District, 

In and for the County of Lincoln, 

The Honorable Robert M. Holter, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Kerry 1J. Newcomer, Iioundup, Montana (argued) 

Public Defender 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Chris Tweeten (argued) ,P,sst. Atty. General, Helena 

William A. Douglas, County Attorney, Libby, Montana 

Submitted: April 26, 1983 

Decided: October 6, 1983 

F'iled: gje r (j - 983 

-- 

Clerk 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

Defendant appeals from a conviction of attempted 

deliberate homicide following jury trial in the Nineteenth 

Judicial District Court, Lincoln County. We affirm. 

Defendant raises the following issues for review: 

(1) Did the District Court admit "other crimes" 

evidence without following required procedures? 

(2) Is defendant entitled to a new trial on the basis 

of juror misconduct? 

(3) Did the prosecutor's closing argument violate 

defendant's right to a fair trial? 

(4) Is the conviction based on insufficient evidence? 

(5) Did cumulative error deny defendant a fair trial? 

On the morning of November 13, 1981, Jean Nordahl 

notified the Lincoln County Sheriff's Department that he had 

found a bomb made of several sticks of dynamite and an 

electrical blasting cap behind the seat of his logging truck 

near Eureka, Montana. The bomb was removed by ordnance 

experts from Fort Lewis, Washington, one of whom later 

testified that had it been wired properly, it would have 

exploded, destroying the cab of the truck and killing any 

occupants. 

On November 24, 1981, Gillham's daughter, Linda Weitz, 

and her boyfriend, Michael Darby, contacted the Lincoln 

County Sheriff's Department and submitted affidavits 

implicating Gillham in the attempted homicide. The same day, 

when a search pursuant to a warrant uncovered evidence in 

Gillham's home, he was arrested. On December 3, 1981, 

Gillham was charged by information with attempted deliberate 

homicide, as follows: 

"William A. Douglas, County Attorney of Lincoln 

County, Montana charges that on the 13th day of 

November, 1981, at off U.S. Highway #93, South of 
Eureka, Montana in Lincoln County, Montana the 

above named Defendant committed the offense of: 

Attempted Deliberate Homicide, a felony 

"The facts constituting the offense are, to-wit: 

"-the Defendant, Henry James Gillham, did purposely 

or knowingly attempt to cause the death of another 

human being; that is to say, the said Henry James 

Gillham did purposely or knowingly wire explosives 

into the truck owned and operated by Jean Nordahl 

with the purpose to kill Jean Nordahl. 

[§§45-4-103; 45-5-102, MCA, 19811" 

Gillham was tried before a jury April 27 through May 1, 

1982. The evidence presented at trial indicated that Gillham 

had made no secret of his plan to earn $5,000 - $10,000 from 

Jean Nordahl's wife, Carolyn, by blowing up Jean Nordahl with 

dynamite. 

Linda Weitz and Mike Darby both testified that when they 

first arrived in Eureka from the west coast in September of 

1981, Gillham showed them a blasting cap and wires and 

claimed to have dynamite in his truck. Weitz testified that 

Gillham told them "he'd gotten into a new business . . . He 

was going to blow this guy up." Sometime later, after Weitz 

met Carolyn Nordahl, Gillham identified Mrs. Nordahl as the 

wife of the man he intended to blow up. 

Weitz and Darby lived with Gillham during their first 

several weeks in Montana. Weitz testified that "[tlhis mess 

with Jean Nordahl, the bombing threats," became a constant 

topic of conversation around the house. She and Darby feared 

Gillham and moved into their own house about November 1, 

Weitz and Darby testified that on November 12, 1981 they 

accompanied Gillham to the Nordahl residence, ostensibly to 

go "poaching" and deliver some moonshine. Darby and Weitz 

remained in the car while Gillham went up to the Nordahl 

house. Through a window, they saw Carolyn Nordahl pass an 

object to Gillham. Gillham returned carrying a .22 caliber 
Ruger pistol, which was later found in his home. He told 

Weitz and Darby he was supposed to shoot Nordahl with the 

pistol and bury him in a hole behind the house where Weitz 

and Darby were living. Because Nordahl was not at home, the 

trio visited elsewhere and returned to the Nordahl residence 

later that afternoon. Nordahl's logging truck was there. 

Again Weitz and Darby remained in the car while Gillham 

entered the Nordahl house. He returned briefly to get the 

pistol, which he stuck in the waist of his trouser and 

covered with a jacket, and a jug of moonshine, which he 

carried into the house. In a few minutes, Gillham, Jean 

Nordahl and Carolyn Nordahl left the house, where there were 

a number of guests, and walked into the new shop building. 

After a few minutes, Carolyn Nordahl emerged from the shop 

looking "upset or angered." She "smacked a tree" and entered 

the house. A few minutes later, Jean Nordahl and Gillham 

left the shop. When Gillham returned to the truck, he told 

Weitz and Darby that Carolyn Nordahl had wanted him to shoot 

Jean Nordahl while they were in the shop, as Nordahl leaned 

over a solvent tank. Gillham refused to do so. The three 

returned to their homes. 

About 10 : 30 that evening, Weitz and Darby were awakened 

when Gillham, who was very excited, burst into their house 

shouting "Get up! Get up! It's time to go!" Gillham 

ordered Darby to go with him. Weitz and Darby testified they 

were afraid of Gillham and did not object very strenuously to 

his order that Darby accompany him. 

Darby testified that Gillham drove them to the Nordahl 

property and parked off the main road out of sight of the 

house. Carrying a brown paper bag, he proceeded through the 

woods and entered the back door of Nordahl's shop. Gillham 

told Darby to stand guard at the front office window, while 
for about twenty minutes he busied himself by Jean Nordahl's 

logging truck. At one point, Gillham complained that the 

bomb was too big and that he had to remove some sticks of 

dynamite to place the bomb behind the driver's seat. He 

indicated the wiring was tricky. The bomb was wired to 

detonate a few seconds after Norda.hl turned on the truck 

headlights. He usually waited to do so until he was outside 

of the shop. His wife wished to spare the building. Gillham 

also remarked that he had dropped a piece of wire. Darby 

located it, tangled around Gillham's feet, and pocketed it. 

Gillham finished his business with the logging truck and 

dropped Darby off at his home. 

Weitz and Darby testified that when they saw Gillham the 

next day, he told them "[tlhe damn thing didn't go off." 

According to Weitz, Gillham was extremely worried that his 

fingerprints on the tape holding the bomb together would give 

him away. He conducted a number of experiments with tape, 

egg cartons and mirrors to determine whether he might have 

left fingerprints. Gillham asked Weitz and Darby to hide the 

Ruger pistol, a red suitcase containing "some other items," 

and the fluorescent orange jacket he had worn the night he 

wired the Nordahl truck. They agreed to hide the items. On 

November 23, Gillham took back the pistol and jacket but the 

suitcase could not be found. Both Weitz and Darby feared 

that Gillham might harm them because they knew too much and 

were dispensable. At 6:00 a.m., November 24, 1981, they 

contacted the Sheriff's office and prepared the affidavits 

which led to Gillham's arrest. 

Weitz's and Darby's testimony was far from the only 

incriminating evidence against Gillham at trial. Jean 

Nordahl's nineteen-year-old stepdaughter, Sonja, testified 

that her mother and a "gravelly-voiced man" she identified by 
voice as Gillham had numerous telephone conversations. They 

occasionally used her as a telephone relay to transfer 

details of Jean Nordahl's schedule. She recalled that on 

September 9, 1981 her mother received a telephone call from 

the "gravelly-voiced man." Shortly afterword, Sonja 

accompanied her mother into Eureka, where Carolyn Nordahl 

slipped a manila envelope into a "gunky, green station wagon" 

behind the Eureka Cafe and Tavern. Gillham owned an old 

green Chevrolet station wagon. Two acquaintances of Gillham 

testified that in the fall of 1981 Gillham had shown them 

money in a manila envelope. He told them it was $5,000 he 

was being paid to make someone's husband "come up missing." 

Jean Nordahl's accountant testified that in late August of 

1981 Carolyn Nordahl had written two checks for cash totaling 

$5,000. 

Sonja Nordahl testified that although she had seen and 

heard her mother, Gillham and a friend of Gillham's 

discussing Jean Nordahl's murder in the Nordahl home, she 

never believed they were serious about it. On November 12, 

1981, when Gillham was present, Sonja saw her mother carrying 

the Ruger Bearcat pistol, but Sonja did not see it 

thereafter. Finally, later that night she telephoned Gillham 

for her mother and told him "[hle was supposed to hurry up 

and get this thing done." Gillham responded that "[Jean 

Nordahl] wouldn't make it out of the driveway the next 

morning." The next morning, Sonja called Gillham again. The 

transcript contains her description of the conversation, as 

follows : 

"Q. What was the message - or what did you say to 

him? A. I told him he had made it out of the 

house fine . . . I told him, '[hle had left for 

work fine; that nothing had happened.' 
Q. What was his response to that? A. He said 

something like, 'Oh, my God! It should have gone 

off within fifteen seconds.' " 

Sonja did not communicate any of the above information 

to her stepfather. In fact, according to her testimony, she 

"hated his guts." But she insisted that she believed the 

discussions about killing Jean Nordahl were not serious, but 

were "a pathetic form of comic relief." 

Marvin Miller, an employee and friend of Gillham who 

helped him cut Christmas trees early in the fall, testified 

that Gillham talked about planning to kill Jean Nordahl "all 

the time, to everybody." Gillham told Miller in late October 

" [i] t' s all set, " and the same day while passing Nordahl ' s 

house, he told Miller, " [t] hat is the place. " Gillham also 

told Miller in October that he had already received $5,000 of 

$10,000 Carolyn Nordahl would pay him for killing Jean 

Nordahl. On November 13, 1981, after the bombing attempt was 

discovered, Gillham told Miller, " [t] he bomb didn't go off," 

and "[ilt was all set." According to Miller, Gillham was 

"scared to death. " 

Another daughter of Gillham, Laurel Lyons, testified 

that she had heard Gillham refer to his "new business," and 

that he could get paid for "blowing someone away." He showed 

her dynamite in a suitcase. Lyons recalled Gillham leaving 

the house with the suitcase, saying he had a job to do. When 

he returned, Gillham told Lyons he had almost been 

caught; he "had the hood up and the wires were ready to hook 

up" when a dog that "should have been penned up" alerted a 

girl. Gillham said he nearly shot the girl. This evidence 

was admitted over a continuing objection by defense counsel 

concerning "other crimes" evidence. 
Lyons also testified that on November 13, 1981, after 

the bomb was discovered, Gillham told her, "[ylour daddy 

fucked up." 

Linda Weitz's daughter, Tess Moore, testified that on 

November 13, 1981, after the bomb was discovered, her 

grandfather Gillham discussed the matter with her: 

"He just told me that he did it and he didn't want 

me to think bad about him - about him doing it. 

And he told me that he was the one that did it - he 

was the one that set it behind the seat and 

everything. " 

On May 1, 1982 the jury returned a verdict of guilty on 

the charge of attempted deliberate homicide. The ~istrict 

Court sentenced Gillham to sixty years for that crime and an 

additional ten years for the use of a destructive device. He 

was designated a dangerous offender. Gillham appeals. 

The first issue is whether the District Court admitted 

evidence of other crimes, acts, or wrongs of the defendant 

without following required procedures. The trial transcript 

reflects Gillham's continuous objections to the introduction 

of evidence which he argued could not be admitted without the 

procedures mandated by State v. Just (19791, Mont . 1 

602 P.2d 957, 36 St.Rep. 1649. The record establishes that 

the Just procedural requirements of notice, admonition and 

instruction were not satisfied. The State does not argue 

that the Just procedures were followed. It argues that they 

were not required because the District Court properly 

characterized the disputed evidence as either (1) acts which 

were not criminal in nature or (2) acts which were so 

inextricably related to the crime charged as to be part and 

parcel of it. 

The State argues that acts which are not crimes may be 

admitted without the procedural safeguards of Just. It is 
true that a substantial portion of the evidence was not 

evidence of crimes. This includes evidence that defendant 

acquainted a significant portion of Eureka's population with 

his plan to kill Nordahl, that he called and visited the 

Nordahl home and that he followed Nordahl's vehicle intending 

to harm Nordahl. But whether the acts are criminal or not 

does not resolve the issue of the applicability of Just. In 

State v. Casagranda (19811, Mont . , 637 P.2d 826, 

829, 38 St.Rep. 2122, 2127, we stated: 

"This general rule, along with the exceptions, has 

been codified in Rule 404 (b) , Mont .R.Evid. , which 

states: 

'Evidence of other crimes, wrongs, or 

acts is not admissible to prove the 

character of a person in order to show 

that he acted in conformity therewith. 

It may, however, be admissible for other 

purposes, such as proof of motive, 

opportunity, intent, preparation, plan, 

knowledge, identity, or absence of 

mistake or accident.' 

"The important language --- of this rule overlooked 

the State is that the rule is not limited to ------ 'other -- - 

crimes.' --- The rule also applies to 'wrongsor -- acts' 

of -- defendant." (emphasis added) 

The fact that the evidence is of non-criminal acts of the 

defendant does not exempt admission of the evidence from the 

procedural guidelines established in Just. 

This Court has recognized that the State is entitled to 

"present the entire corpus delecti of the charged offense 

including matters closely related to the offense and 

explanatory of it . . . ." This rule overrides the 

requirements of Just. State v. Riley (1982), Mont . 

, 649 P.2d 1273, 1279, 39 St.Rep. 1491, 1499. Riley was 

a deliberate homicide case where the death of a child 

followed severe physical abuse by members of a communal group 

including defendant. Evidence was admitted at trial of a 

systematic pattern of brutal disciplinary punishment 
extending over a period of many months before the victim's 

death. Evidence was also admitted to show a pattern of 

violence by defendant against other children of the group and 

by other members of the group against the victim and other 

children. We held that the evidence provided a context of a 

continuous series of beatings in which the jury was entitled 

to view defendant's actions. The evidence was closely 

related to the offense and explanatory of it. 

Evidence that Gillham possessed dynamite and blasting 

equipment, that Carolyn Nordahl gave him a gun and urged him 

to shoot Jean Nordahl the evening of November 12, 1981, and 

that he made an earlier attempt to wire explosives to 

Nordahl's vehicle fits squarely within the rule articulated 

in Riley. Each act, whether criminal or not, is inseparably 

related to the act charged. None of the acts can be 

characterized as "wholly independent" or unrelated acts. See 

State v. Trombley (1980), Mont. , 620 P.2d 367, 368, 

37 St.Rep. 1871, 1873. Likewise, evidence that Gillham told 

others of his plan to kill Nordahl, that he visited the 

Nordahl home, and that he followed Nordahl's vehicle 

intending to harm Nordahl is admissible under Riley as part 

of the corpus delicti of the crime charged. All of this 

evidence provides an explanatory context in which the jury 

was entitled to view the actions of Gillham. The State was 

entitled to present at trial the entire corpus delicti of the 

crime charged, including this evidence of acts closely 

related and explanatory of the crime charged. The District 

Court did not admit evidence in violation of the Just 

procedural requirements. 

Gillham argues that reversal of his conviction is 

required by our decision in State v. Gray (1982), Mont. 

, 643 P.2d 233, 39 St.Rep. 622. We do not agree. The 
facts of Gray are distinguishable from the facts of this 

case. In Gray, the District Court admitted evidence of an 

act committed five days after the crime charged. Here, none 

of the disputed evidence is of subsequent acts. It is 

evidence of acts inseparable from the crime charged. Gray 

does not require reversal of Gillham's conviction. 

Although the District Court did not violate Just, we 

encourage trial courts to apply the safeguards of Just 

liberally. Even though the procedures of Just may not be 

required in a given case, their use may be proper and wise. 

Especially in close cases, use of the Just procedures would 

assure fairness to defendants. The procedural safeguards 

were designed to protect those accused of crime from unfair 

surprise or double punishment. They should be liberally 

applied to that end. 

11. 

After the jurors returned their verdict, defense counsel 

polled them regarding their exposure to media coverage of the 

trial. One juror had merely glanced at some headlines, but 

before the defendant's case had been presented, a second 

juror had read an entire newspaper article which summarized 

the State's case. She said she either had not heard or had 

forgotten the judge's admonition to avoid reading reports of 

the trial. The admonition was given the first day of the 

trial, but not thereafter. She admitted her mistake in 

reading the paper, but said the report was accurate and had 

in no way reinforced her opinions or affected her 

deliberations. Defense counsel asked that the jury be held 

until the accuracy of the article could be verified or, in 

the alternative, moved for mistrial. The court denied both 

requests. 
Gillham now argues that he is entitled to a new trial 

because of juror misconduct. He emphasizes that because a 

unanimous verdict is required for a conviction, the vote of 

this juror was so critical that the possibility she was 

prejudiced is sufficient to warrant reversal and retrial. 

We agree that where jurors have been exposed to 

prejudicial and inadmissible outside information which may 

have influenced their verdict, retrial is in order. In Putro 

v. Baker (1966), 147 Mont. 139, 410 P.2d 717, we ordered a 

new trial where, during deliberation in a negligence action 

arising from an automobile accident, jurors were exposed to 

inadmissible evidence that defendant had been convicted of 

manslaughter for deaths arising out of the accident. We 

stated that where prejudicial outside information was 

improperly before the jury, prejudice would be rebuttably 

presumed. We also stated that a juror could not purge himself 

by merely declaring that such information did not affect his 

judgment in forming the verdict. Putro, 147 Mont. at 147, 

410 P.2d at 721-22. We noted, however, that " [tlhe 

presumption may be rebutted by the use of testimony of the 

jurors 'to show facts which prove that prejudice or injury 

did not or could not occur.'" Putro, 147 Mont. at 147, 410 

p.2d at 721, citing State v. Jackson (18901, 9 Monte 508, 

In this case, the single juror who read the newspaper 

article testified that it was an accurate and factual report, 

"about the same" as the admissible testimony already before 

the jury. As the State correctly observes, there was no 

evidence before the trial court that the information was 

prejudicial. Indeed the juror declared that it was not and 

that it was no more than a factual account of the State's 

case. Clearly there was juror misconduct but that in itself 
does not necessitate reversal. As the Oklahoma court stated 

in Tomlinson v. State (Okla. Crim. App. 1976), 554 P.2d 798, 

" [Wlhere jury prejudice [by media report exposure] 

is alleged at any stage of trial or appeal the 

burden of persuasion is on the defendant to show by 

clear and convincing evidence that (1) the jurors 

were specifically exposed to media reports which 

(2) were prejudicial to -- the defendant. Mere proof 

that a juror or jury was exposed - to factual account 

- of - txe triaT - willnot - - meet this - burden - of 

persuasion." (emphasis added) 

We hold that Gillham has not met his burden of 

establishing the prejudicial nature of the information to 

which the juror was exposed. The trial court did not err in 

denying Gillham's request for mistrial. While the trial 

court was perhaps unnecessarily brusque in releasing the jury 

before the factual nature of the newspaper account could be 

verified, it was 2:45 a.m. Defendant could have raised the 

matter on a motion for new trial if the article had been 

prejudicial. 

We find no error on this issue. 

The remaining three issues are without merit and may be 

disposed of summarily. 

First, in closing argument the prosecuting attorney 

disparaged a witness whose testimony tended to link Linda 

Weitz with a plan to kill Jean Nordahl. He referred to the 

testimony of "a little tootie thirteen-year-old when she was 

pregnant and coming from a shack with a stepdad with a name 

of 'Hippie Dave'." He indicated this girl's testimony had 

been introduced without "second pre-notice" to the State, 

making it impossible for the State to investigate what 

relationship existed between "her moonshine-drinking 

stepdaddy" and "the moonshine-making defendant." 
Defendant now argues that his right to a fair trial 

under the United States and Montana Constitutions was 

jeopardized by these improper remarks of the prosecutor. He 

argues they must be considered on appeal, pursuant to section 

46-x-702, MCA, despite the absence of objection at trial. 

A0 

We hold that, in light of the entire trial and 

considering the strength of the State's case, this single 

statement, concededly outside the boundary of fair comment, 

did not constitute such a gross abuse as to render the whole 

trial unfair. Both this Court and the United States Supreme 

Court have stated that while a defendant is entitled to a 

fair trial, he is not entitled to a perfect one. United 

States v. Hastings, No. 81-1463 (U.S. May 23, 1983); Brown v. 

United States (1973), 411 U.S. 223, 93 S.Ct. 1565, 36 ~.Ed.2d 

$k~te V, 

208; Weinberger (1983), A Mont . I P.2d I 

40 St.Rep. 844; State v. Powers (1982), Mont . I 

645 P.2d 1357, 1363, 39 St.Rep. 989, 996. In Hastings, the 

Supreme Court noted that the harmless error rule "'block[s] 

setting aside convictions for small errors or defects that 

have little, if any, likelihood of having changed the result 

of the trial' . . .. [I]t is the duty of a reviewing court to 

consider the trial record as a whole and to ignore errors 

that are harmless, including most constitutional violations . 

. . . " Slip op. at 9, quoting Chapman v. California (1967) , 

386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705. 

Defendant's remaining two arguments, that his conviction 

must be reversed for insufficient evidence and because of 

cumulative error, are likewise without merit. The case 

against him is overwhelming and the alleged errors are 

technical and insignificant. We find no error which compels 

reversal. 

Affirmed. 
We concur: 

Chief 

%a#*& 

Justice 

Justices 

Mr. Justice Daniel J. Shea, specially concurring: 

I join the majority's result, but I do not agree 

with all that is said.