i No. 80-159 INTHE SUPREME COURT OF THE STATE OF MONTANA 1980

THE STATE OF MONTANA, Plaintiff and Respondent,

vs

# . CRISS ALLEN CASE, Defendant and Appellant.

Appeal from: DistrictCourt of the FirstJudicialDistrict, 

### InandfortheCounty of Lewis and Clark. Honorable PeterMeloy, Judge presiding. Counsel of Record: For Appellant: Hull and Sherlock, Helena, Montana Jeffrey Sherlock argued, Helena, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Charles Graveley, County Attorney, argued, Helena,

Montana

Submitted: November 18, 1980 Decided: 

## BEG29

## 5980 Filed:

# OEC29

## 1980Mr. Justice John C. Sheehy delivered the Opinion of the Court.

Defendant CrissAllen Case appeals from his conviction



# . in the District Court, First Judicial District, Lewis and Clark County, of one count of robbery. For reasons hereinafter 

### set forth, we reverse the conviction and dismiss the charge. Defendant raisesthe following issueson appeal: 1. Was defendantdenied hisright toa speedy trial where 340 days elapsedbetween the filingof the information and trial? 2. Was sufficient evidence presented at trial to support a conviction? 3. Was the accomplice testimony of Ron Worden sufficientlycorroborated? 4. Was evidence of other crimesproperly admitted? 5. Did jury instructions allowing permissive inferences shifttheburden of proof? Case and histhree codefendants Rick Worden, Ron Worden and Austin Metcalf drove toMontana together from California inNovember 1978. During the trip, themen discussed plans for robberiesof roadhouse saloons, purchased agun and tape for restraining victims, and cased a number of bars as potential robbery sitesbefore arriving inMontana. On November 7, 1978, the Worden Brothers robbed Mac's Bar inWolf Creek while Case and Metcalf remained outside in the car. The victims of the robbery, Charles and Carol Marcus presented no evidence concerning defendant, and neither could identify him as having participated in the crime. Emil Kersey, a patron who leftthe bar immediately preceding the robbery, saw the getaway car as he departed and noticed someone he identified asa blonde woman sittingin the driver's position. Other testimony concerning the Wolf Creek robbery was presented primarily by Ron Worden, who had turned State's evidence, and also by Deputy Richard Hammerbacker who had taken statements from Rick Worden and Metcalf. On the evening of November 8, 1978, the day following theMac's Bar robbery, defendant and hiscompanions robbed a bar in Loring, Montana. All four men participated in that robbery, which involved multiple kidnappings and homicides

as well as robbery. Defendant has already been tried and convicted for his participation in the Loring robbery. He has been sentenced to a total of 175 years in connection with that incident. That sentence 

### is unrelated to and not affected by this appeal. On November 30, 1978, Case was charged by information in Lewis and Clark County with robbery. He was tried for that offense under the accountability statute, section 45-2-302, MCA. Trial was eventually commenced on November 5, 1979, 340 days after the filing of the information. Defendant appeals from a verdict and judgment of guilty. The Attorney General did not participate in oral argument. The speedy trial issuehere is essentiallyidentical to the issue presented and discussed in detail in State v. Worden (1980), Mont. 

## , 611 P.2d 185, 37 St.Rep. 869. The only material distinction here from Worden is a delay of an additional 19 days before commencement of this trial. The relativelyminor additional delayhere under the

same facts asWorden is not so substantial astopursuade us toabandon theposition 

### we adopted inWorden. Defendant was not denied hisright toa speedy trial. Defendant questions the sufficiency of the evidence onthree separate bases: (1) the essential element of fear

was never directly established; (2) the testimony of Ron Worden indicated defendant's actions did not bring him within the accountability statute; and, (3)a fatalvariance existed between the matters alleged in the information and the proof adduced at trial. None of these arguments are persuasive. Defendant urges thatunder Statev. Merseal (1975), 167 Mont. 412, 538 P.2d 1366, the State's failure to elicit direct testimony from the Marcus' that they were placed in fear leaves that element unproven. The factual situation here is substantially different than that in Merseal, and the latter does not control. In Merseal, defendant was driving a car in which a police officer was a passenger. Defendant slowed the car, moved tojump out of the vehicle and alsoreached toward the floor of the auto, where it was suspectedhe had a concealed gun. The officer, who was armed, drew his weapon and restrained defendant. The officer, allegedly the victim of

an assault, did not testifythathe had experienced fear. Here the robbers were inmore complete control of the situation. Rick Worden inquired of Charles Marcus at gunpoint if he understood about robbery. Charles and Carol Marcus were placed face down on the floor, and bound with tape, while the robbers took the money in the till, whiskey and cigarettes. The victims were then admonished not tomove for a quarter hour after the thieves' departure. While the only testimony which served as an admission of fear was Carol Marcus' statement: "Well, I understood it that they meant they would killus if we didn't (remain on the floor)

## ,"actual fearmay be deduced by thejury when the victims are placed under such total domination by theoffenders. It is well within the province of the jury to determine that fear exists insuch a situation. Rick Worden's brandishing of the gun could hardly be anything less than sufficient circumstances to place the victims in fear. The Marcus' compliance with Worden's orders and their total submission indicated a fear of the consequences of failure to do so. It would be contrary to the common experience of all mankind to conclude that a person would experience no fear when confronted with a robber wielding a gun. Daellenbach v. State (Wyo. 1977), 562 P.2d 679. Defense counsel elicited undisputed testimony from Ron Worden that Case did not engage in any of the acts proscribed by section 45-2-302(3), MCA, either before the robbery or during the time the Wordens were actually in Mac's Bar. Defendant therefore argues that his complicity arose, if at all, only after the robbery had concluded 

### -- thus removing Case from any accountability for the robbery. Ron Worden alsotestified thatCrissCasedrove the car during the getaway fromMac's. Defendant's argument here 

### is dependent on thevalidityof hisconclusion thatthe robbery ended the moment the Worden brothers stepped outside the bar. However, inMontana, the ensuing flight is considered part and parcel of a robbery until such time asthe criminal purpose, including carrying away of the spoilsof thecrime, is completed. Statev. Jackson (1924),71Mont. 421, 230 P. 370. Here, defendant's involvement commenced before the robbers had reached a place of seeming security and before the proceeds had been divided. By serving as a getaway driver, defendant aided theWordens inthe commission of the robbery, and became liable for the robbery under section 45-2-302, MCA.

### Defendant's third assault on the evidence adduced at trial is that it failed to establish the robbery in themode specified in the information 

### -- purposely or knowingly put the bar owners in fear of immediate bodily injury. Defendant argues that the state's failure specifically to prove fear, where fear was specifically alleged, is fatal. This argument evaporates in light of our above ruling that the fear element was indeed sufficiently established. We turn now to the issue of corroboration of accomplice testimony. The state's major witness was Ron Worden, who testified regarding the events which occurred from the time the four men left California through the commission of the Loring robbery. Itwas Worden's testimony that placed Case behind the wheel in the getaway vehicle. The only other testimony regarding defendant's possible presence and participation was presented by Kersey, Hammerbacker and Officer Ralph Schmoldt, a jailer who overheard defendant express anger at Ron Worden because, "Ronny had turned State's evidence on some robberies and other things that had gone on.'' The District Court ruled Kersey's testimony sufficient to corroborate Worden. Section 46-16-213, MCA, mandates that accomplice testimony be corroborated by other independent evidence which tends to connect the defendant with the offense. The quantum and character of this requisite proof has been recently discussed in State v. Kemp (1979), Mont

# .

, 597 P.2d 96, 36 

### St.Rep. 1215: "To be sufficient, corroborating evidence must show more than that a crime was in fact committed or the circumstances of its commission. (Citation.) It must raise more than a suspicion of the defendant's involvement in, or opportunity to commit, the crime charged. (Citation.) 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.(Citations.) Corroborating evidence may be circumstantial (Citation.) and can come from the defendant or his witnesses. (Citation.)



### "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 supplythe independent evidence necessary to corroborate another accomplice. (Citations.)" 597 P.2d at 99, 36 St.Rep. at1217-1218. The corroborativeevidencemust clearly: (1) Be independent (2) Point toward defendant's guilt, and (3) Provide a legally sufficient connection between defendant and offense. See, Civil Procedure and Evidence, Montana Supreme Court Survey, 41Mont.L.Rev. 293, 319 (1980). Deputy Hammerbacker's testimony concerned statements he had taken from Rick Worden and Austin Metcalf in Las Vegas, Nevada. Coming from accomplices, the evidence cannot be considered independent. Kemp, supra. EmilKersey provided independent evidence insofar ashe

saw a person, a blonde female, in the driver's position of the getaway vehicle. Kersey could not identify the husky red-haired defendant asthatperson, however. The testimony thus implicates defendant only when viewed in conjunction with Ron Worden's and therefore is alsonot independent. Officer Schmoldt's testimony was fully independent, but vague. The Wolf Creek robbery was not mentioned by defendant, whose anger atWorden could just as easily be attributed to the Loring robbery or some other intervening incident. The expression of anger at Worden is not more consistent with complicity than noncomplicity in the Wolf 

### Creek robbery. It 

### is therefore insufficient as corroboration. State v. Keckonen (1938), 107 Mont. 253,264, 84 P.2d 341, 346. The State has clearly failed to present any evidence corroborative of accomplice testimony. This failure necessitates reversal. The State presented testimony at trial, through Ron Worden, of the planning and commission of the Loring robbery. The evidence was presented for the limitedpurpose of showing defendant's intent, preparation, plan and knowledge. The specific details of the Loring robbery, other than its commission, were not revealed. Defendant argues on appeal that all evidence relating to the Loring robbery was improperly admitted. We agree. 

### We have repeatedly expressed our concern over the widespread use of other crimes evidence. Our apprehension has led us toapply the general rule againstuse of evidence of other crimes, and to allow such evidence only under closely limited circumstances. Toward this end, we have established substantive and procedural guidelines for application of the exception, which we have set forth in State v. Just (1979), Mont. 

## , 602 P.2d 957, 36 St.Rep. 1649. In this instance, neither the substantivenor theprocedural requirementshave been fulfilled. Admissibility of evidence of other crimes is to be determined by the District Court pursuant to a four element test:(1) Similarityof crimes; (2) Nearness in

### time; (3) Tendency to establish a common scheme, plan or system, and; (4) The probative value of the evidence is not substantially outweighed by prejudice to the defendant. Just, supra, 602 P.2d at961, 36 St.Rep. at 1653. Only the timefactor has been methere. First, the Wolf Creek and Loring robberies 

### were too dissimilar to allow the State to invoke the other crimes exception. Where the alleged similarities between the crimes reveal littlein common other than a sequence of time from the crime charged, the acts are not unusual and distinctive enough to come within the purview of the similarity element of the exception. State v. Hansen (198o)t Mont

# . , 608 P.2d 1083, 1087, 37 St.Rep. 657, 661. In Wolf Creek, the Wordens robbed the bar using no force other than threats, while Case and Metcalf waited in the car. In Loring, allfour men entered the bar, each man assumed a predesignated duty station, and the ensuing violence resulted in multiple homicides. The two incidents

are similar only in that both involved barroom robberies. That sole similarity between the two is clearly not sufficienttotrigger the exception. Next, the crimes do not tend to establish a common scheme, plan or system. Again, the crimes were carried out in vastly dissimilar fashion within the pervasively common scenarioof the barroom holdup. Absent proof of any further distinguishing event peculiar to the commission of both crimes, no common scheme exists. Hansen, supra. Finally, the probative value of the evidence must be weighed against prejudice to the defendant. Evidence of other crimes invariably will result in prejudice to a defendant to a certain degree. The likelihood of such prejudice was compounded here, where the other crime had been highly publicized. The lack of probative value of the evidence of the other crime, coupled with the prejudice inherently connected with the admission of such evidence,compels our conclusion that the prejudicial effect outweighed itsprobative value. This case does not on its facts fall within the exception to the general rule barring evidence of other crimes. The improper admission of the evidence under the exception is reversible error. Once having determined that evidenceof other crimes is admissible, which we again emphasize should only occur under limited conditions justifying a departure from the general rule, the court must follow the procedural requirements set forth inJust, 602 P.2d at963-964, 36 St.Rep. at1657-1658. Failure to adhere to the procedural mandates of Just 

### -- constituteserror. ~his casewas tried two months after we handed down Just, yetnone of theprescribed procedures were met. First, the State must provide written notice to the defendant, before the case is called for trial, that the evidence is to be produced. The notice must include a statement of the purposes for which the evidence 

### is to be presented. Here, defendant received no written notice whatsoever; before trial the State had verbally indicated only that it might present such evidence; and the defendant

was finally apprised of the State's definite intention to present the evidence, and of the purpose for that presentation, only atthe conclusion of the firstdayof trial. Next, thetrialcourtmust, atthe timetheevidence 

### is introduced, explain to thejury thepurpose of the evidence and admonish thejury toweigh the evidence only for those purposes. The Court did not soinstructthejury. The finalprocedural steprequires: "In its final charge, the court should instruct the jury in unequivocal terms that such evidence was received only for the limited purposes earlier stated and that thedefendant is not being tried and may not be convicted for any offense except that charged, warning them that to convict for other offenses may result in unjust double punishment." 602 P.2d at964, 36 St.Rep. at 1658. The jury was instructed regarding such evidence as follows: "Evidence of other crimes, wrongs, or actsis not to be used by you toprove the character of the defendant to show that he acted in conformity therewith, nor is such evidence to be used by you asevidence that the defendant committed the act with which he 

### is charged. However, evidence of other crimes, wrongs or actsmay be considered by thejury for other purposes such as proof of intent, opportunity, maintenance, preparation, plan or knowledge.

### " The specifically required unequivocal warning of the possibility for unjust double punishment was not included. Hence, the jury was inadequately instructed in its final charge. Again, the failure to provide necessary procedural safeguards prejudiced defendant. This failure, of itself dictatesreversal. Finally, defendant argues certain jury instructions improperly shifted the burden of proof. The instructions complained of allowed thejury toinfer knowledge and intent

on the part of the defendant. Defendant submits the instructionsviolated the spiritand intent of Sandstrom v. Montana (1979), 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39. We disagree. We have previously considered the validity of similar instructions allowing permissive inferences, Statev. Sunday (1980)I Mont. 

## , 609 P.2d 1188, 37 St.Rep. 561; Statev. Wogamon (1980), Mont. 

## ,610 P.2d 1161, 37 St.Rep. 840, and have determined such instructions place no burden on defendants. We stated inSunday: "Since a permissive inference is involved,Sunday must show the invalidity of the inference as applied to him. Sunday must show there 

### is no rationalway under the facts of this cause for the jury to make the connection permitted by the inference. Only then 

### is there a risk 

### the presumptively rational jury willuse the inference tomake an erroneous factual determination. (Citation.) Sunday has not carried his burden upon appeal." 609 P.2d at 1196, 37 St.Rep. at569. The same reasoning applies here. Defendant was not prejudiced through the use of permissive inferences. Reversed and dismissed.

Justice

We Concur:



### ....................... Chief Justice



### ....................... JusticesMr. Chief JusticeFrank I. Haswell, speciallyconcurring: I concur in the result of the foregoing opinion but not with allthe statements and discussion contained therein.

Chief Justice

Mr. JusticeDaniel J. Sheaconcursand

### willfilea concurring opinion ata latertime.THE STATE OF MONTANA 

## vs

# . CRISSALLEN CASE No. 80-159

CONCURRING OPINION OF MR. JUSTICE DANIEL J. SHEA



# .......................................................

Dated: January 5, 1980

### Mr. Justice DanielJ. Shea concurring: Generally, Iconcur in themajority opinion. The evidence

was legally insufficient,and therefore a reversal and dismissal is required. Even if the evidencewas sufficientto convict,the failure of the State to comply with the mandate of Statev. Just, supra,as the opinion states,would requirea reversal and a new trial. Iwould like to commenton the State's failure to complywith Just. Idissented in Justbecause the defendant was not given the benefit of the ruling--which would have required a reversaland

a new trial. Ialso stressed the importance of the trial court to firstassess the State's need for the similar-crimesevidence, and then determine whether the evidence,if admitted,would be undulyprejudicial. Undoubtedly, the Stateneeded the evidence--withthe testimony from the accomplice about the other robbery, ittended to show that defendantand the accomplice

were involved ina common schemeorplan. Thiswas an attempt of the State topull accomplice testimonyup by its ownboot straps--clearly improper. Assuming the admissibilityof the accomplice testimony as to therobbery at Loring, the trial court withoutquestion failed to consider thepotential harmful effects that the testimony would have as to the Loring robbery. The so-called similar crime,was not only a robbery; it involved multiple brutal murders committedby the accomplice and the defendant. Idoubt that any juror could fairly state thathe had notheard nor read about the robbery andmurders atLoring. Therefore,even if therewas no direct reference to the murders committed in the process of the robbery at Loring,there isno doubt that the juryknew ithad a person on trialwhowas involved in the Loringmurders. Proper considerationof these factors before admitting the testimony,would have led to a decision -14-

### that the accomplice testimony as to the Loring robbery was loadedwithprejudice that couldnever be overcome. I stress that just because Statev. Just, supra, sets out theprocedural requirements foradmission of similar crimes, itdoesnotmean that the trial court should always admit suchevidence when it isoffered. The trial court should carefully scrutinize the attempted use of such evidence and the potential prejudice that will ensue,andwhere he has any doubt, it shouldbe resolved againstuse of suchevidence. Finally, the conviction of defendant in this case,has,

as its underlying cause,a manifest abuseofprosecutorial discretion. Wemust remember that at the timedefendantwas tried for theWolf Creek robbery, hewas already under sentence of 175 years inprison for the Loring robbery andmurders. It isperhaps understandable that the prosecutor first filed robbery charges againstdefendant arising from the Wolf Creek robbery, for then the prosecutorwas not confrontedwith the thin evidentiary caseand the legal requirementsas to corroboration of accomplice testimony. Maybe his initial charge

was supportedby legally sufficient probable cause, I don't know. But as the caseneared the trial stage,the prosecutor knewor should have knowthathe did nothave sufficientlegal evidence onwhich tobase a conviction thatwould withstand the legal requirements. Therefore,he had every reason tobelieve that a conviction would ultimately lead to a reversal and a dismissal. Also, assuming that the prosecutorwas unaware of the rigorous requirements foraccomplice testimony, it is sad 

### thathe succeeded in getting the Loring robbery evidence admitted when therewasnot even an attempt to comply with Statev. Just. It isnot unreasonable to conclude here that the Loring robbery evidence,coupledwith the widespread press coverage of the Loring murders,sealed the defendant's fatebefore the jury. 

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