NO. 82--366 INTHE SUPREME COURT OF THE STATE OFMONTANA 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 theCounty of Lincoln, The Honorable RobertM. 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 ChrisTweeten(argued),P,sst. Atty. General, Helena WilliamA. Douglas, County Attorney, Libby, Montana

Submitted: April 26, 1983 Decided: October 6, 1983

F'iled: gje

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-- ClerkMr. Justice Fred J. Weber delivered theOpinion of the Court. Defendant appeals from a conviction of attempted deliberate homicide following jury trial in the Nineteenth JudicialDistrict Court,LincolnCounty. We affirm. Defendant raises the following issues forreview:

(1) Did the District Court admit "other crimes" evidencewithout following requiredprocedures? (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 electricalblasting 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 implicatingGillham in the attemptedhomicide. The sameday, when a search pursuant to a warrant uncovered evidence in Gillham's home, he was arrested. On December 3, 1981, Gillhamwas 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 ofEureka, 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: "-theDefendant,Henry JamesGillham,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 thepurpose to kill JeanNordahl. [§§45-4-103;45-5-102,MCA, 19811" Gillhamwas tried before a juryApril 27 throughMay 1, 1982. The evidence presented at trial indicated thatGillham had made no secret of his plan to earn $5,000

## - $10,000 from JeanNordahl'swife,Carolyn,by blowingup JeanNordahlwith dynamite. LindaWeitz andMike Darbyboth 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 theman he intended toblow up. Weitz and Darby lived with Gillham during their first severalweeks in Montana. Weitz testified that "[tlhismess 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 onNovember 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 caliberRuger 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 triovisited 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 "upsetor angered." She "smackeda 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, asNordahl leaned

over a solvent tank. Gillham refused to do so. The three returned to their homes. About 10:30 that evening, Weitz and Darbywere 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 gowith him. Weitz and Darby testified they

were afraid of Gillhamand did not objectvery strenuously to his order thatDarby accompanyhim. 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 officewindow, whilefor about twenty minutes he busied himself by JeanNordahl'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 sountil he was outside of the shop. His wifewished to spare thebuilding. 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 droppedDarby off athis home. Weitz and Darby testified that when they sawGillham the next day, he told them "[tlhe damn thing didn't go off." According to Weitz, Gillham was extremely worried that his fingerprintson the tape holding thebomb 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 askedWeitz 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 thepistol and jacketbut the suitcase could not be found. Both Weitz and Darby feared that Gillham might harm them because they knew toomuch 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-voicedman" she identifiedbyvoice 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 amanila envelope intoa "gunky, green station wagon" behind the Eureka Cafe and Tavern. Gillham owned an old green Chevrolet stationwagon. Two acquaintancesof 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 1981CarolynNordahlhadwritten 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 Gillhamwaspresent, Sonja sawhermother carrying the Ruger Bearcat pistol, but Sonja did not see it thereafter. Finally,later thatnight she telephonedGillham 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 calledGillhamagain. The transcript contains her description of the conversation, as follows: "Q. What was themessage

## - orwhat 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 nothinghad 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 "apathetic formof comic relief." Marvin Miller, an employee and friend of Gillham who helped him cut Christmas trees early in the fall, testified that Gillham talked aboutplanning to killJean Nordahl "all the time,to everybody." Gillham toldMiller in lateOctober 

### "[i] t's all set,

### " and the same day while passing Nordahl

### 's house, he told Miller, 

### "[t] hat is the place.

### " Gillham also toldMiller inOctober thathe had already received $5,000 of $10,000 Carolyn Nordahl would pay him for killing Jean Nordahl. On November 13, 1981,after the bombing attemptwas 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 "newbusiness," and thathe could getpaid for "blowing someoneaway." He showed her dynamite in a suitcase. Lyons recalled Gillham leaving thehouse with the suitcase,saying he had a job todo. When he returned, Gillham told Lyons he had almost been caught; he "had thehood up and thewireswere 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 "othercrimes"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 grandfatherGillhamdiscussed thematterwithher: "He just told me that he did it and he didn'twant me to think bad about him 

### - about him doing it. And he toldme thathewas the one thatdid 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 sixtyyears for that crime and an additionaltenyears for theuse of adestructivedevice. He

was designated adangerousoffender. Gillhamappeals.

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 evidencewhich he argued could notbe admittedwithout the procedures mandated by Statev. 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 Justprocedures were followed. Itargues that they

were not required because the District Court properly characterized the disputed evidence as either (1) actswhich

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 crimesmay be admitted without the procedural safeguards of Just. It istrue 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 thathe followedNordahl'svehicle 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. Itmay, 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 'wrongsoracts' 

### --- -- 

## 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 guidelinesestablished inJust. 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 

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# . .." This rule overrides the requirements of Just. State v. Riley (1982), Mont

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, 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 abusebymembers of a communal group including defendant. Evidence was admitted at trial of a systematic pattern of brutal disciplinary punishmentextending 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 childrenof 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 inwhich the jurywas entitled to view defendant's actions. The evidence was closely related to the offenseand explanatory of it. Evidence that Gillham possessed dynamite and blasting equipment, that CarolynNordahl 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"orunrelated acts. See Statev. Trombley (1980), Mont. 

## , 620P.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 topresent 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 Statev. Gray (1982), Mont.



## , 643 P.2d 233, 39 St.Rep. 622. We do not agree. Thefacts 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 doesnot 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 procedureswould

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 theirverdict, defense counsel polled them regarding their exposure tomedia 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 reportwas 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. InPutro

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 thata juror could notpurge 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 itwas an accurateand factualreport, "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 itwas not and that it was no more than a factual account of the State's

case. Clearly therewas jurormisconductbut that in itselfdoes not necessitate reversal. As the Oklahoma court stated inTomlinsonv. State (Okla.Crim. App. 1976), 554 P.2d 798,



### "[Wlhere jury prejudice [bymedia report exposure] is alleged at any stage of trial or appeal the burden ofpersuasion ison the defendantto showby clear and convincing evidence that (1) the jurors were specifically exposed to media reports which

(2) were prejudicialto 

### -- the defendant. Mere proof that a juror or jurywas exposed 

### - to factualaccount 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 jurorwas exposed. The trial courtdid not err in denying Gillham's request for mistrial. While the trial courtwasperhaps unnecessarilybrusque 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 findno error on this issue.

The remaining three issues arewithoutmerit 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-oldwhen shewas 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 "themoonshine-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 Statesv. Hastings,No. 81-1463 (U.S. May 23, 1983); Brownv. United States (1973),411U.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'

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# .. [I]t is the duty of a reviewingcourt to consider the trial record as a whole and to ignore errors that are harmless, including most constitutional violations

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

## , 386 U.S. 18, 87 S.Ct. 824, 17L.Ed.2d 705. Defendant'sremaining 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.Weconcur: 

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Chief Justice

Justices

Mr. JusticeDaniel J. Shea, speciallyconcurring: I join themajority's result, but I donot agree with allthatis said.