No. 14416 

m THE SPREME mum' OF THE STm OF M3m"ANA 

1979 

THE ST- OF PDYI'ANA, 

Plaintiff and Fkspondent, 

ALFRED VERNm CPENS, 

a/k/a AZ; OWENS, 

Defendant and Appellant. 

Appeal fran: District Court of the Thirteenth Judicial District, 

Honorable C. B. Sande, Judge presiding. 

Counsel of Record: 

For Appellant: 

John L. Adams, Billings, Mntana 

Leonard Haxby argued, Butte, Mntana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, PJbntana 

Sheri Sprigg argued, Assistant Attomey General, Helena, 

Mntana 

Harold Hanser, County Attorney, Billings, Mntana 

Submitted: June 5, 1979 

Decided: 

Filed : 

JUN ? 9 1979 . - 

JUN 2 3 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of 

the Court. 

Defendant Alfred Owens was convicted of the crimesf of 

mitigated deliberate homicide and robbery in the ~istrict 

Court of Yellowstone County following a jury trial. Defendant appeals. 

The information charged defendant Alfred Owens and his 

brother, L. D. Owens, with four counts: Count I charged the 

codefendants with deliberate homicide committed purposely or 

knowingly. Alternatively, Count I1 charged the codefendants 

with deliberate homicide while engaged in the commission of 

a felony. Count I11 charged the codefendants with robbery. 

Count IV charged the codefendants with aggravated kidnapping. 

L. D. Owens pleaded guilty to Counts I1 and 111. 

Counts I and IV were dismissed as to him. 

Commencing May 8, 1978, defendant Alfred Owens was 

tried. The jury found him guilty of mitigated deliberate 

homicide, a lesser included offense of Counts I and 11, and 

of robbery. It found him not guilty of aggravated kidnapping. 

On June 14, 1978, defendant was sentenced. Some confusion resulted, as the court minutes state defendant was 

sentenced to 40 years on each count to run consecutively, 

while the judgment states the sentences are to run concurrently. 

Defendant Alfred Owens appeals. 

The facts leading to this appeal are as follows. 

In late 1977 defendant Alfred Owens, his older brother, 

L. D. Owens, and his brother's girlfriend, Betty Shipes, 

left California heading for Texas. By a circuitous route, 
the trio arrived in Laurel, Montana, in the afternoon of 

November 27, 1977, and rented a motel room. 

Sometime during the afternoon of their arrival, defendant, accompanied by his brother, purchased and signed for a 

box of .410 shotgun shells, ostensibly to do some bird 

hunting and target shooting. Neither defendant nor his 

brother purchased a hunting license. After dropping Shipes 

off at a laundromat near the motel, defendant and L. D. went 

to town where they started drinking in various bars. About 

midnight, defendant, who estimated he had drunk a case of 

beer during the day, returned to the motel room to go to 

bed. L. D., after accompanying defendant back to the room, 

left again to go eat breakfast. 

While out this second time, L. D. met Kenneth Olson and 

subsequently invited him back to the motel. Once there, 

after a short conversation, L. D. decided to rob Olson, and 

drew the shotgun on him. Apparently, it was the sound of 

L. D. loading the gun that woke defendant. 

During the robbery Shipes, who was feigning sleep, 

heard defendant tell Olson that he had better do what L. D. 

said. After emptying Olson's pockets, L. D., defendant, and 

Olson left the motel room. There is some dispute over 

whether L. D. ordered defendant to accompany him or 

threatened him in any manner. According to Shipes, however, 

L. D. did not threaten defendant in any manner and merely 

said "let's go" before all three left. 

The three left the motel room and got into Shipes' car. 

Defendant was driving with Olson on the front seat next to 

him and L. D. in the back holding the shotgun. ~lthough 

L. D. initially indicated that he intended only to take 

Olson out somewhere and tie him up, defendant conceded that \ 

it soon became clear that L. D. intended to kill Olson. 
~fter a running argument between defendant and L. D. 

while driving into the country, defendant stopped the car, 

got out, and began walking back to town. L. D. then drove 

the car a short distance, still holding the shotgun on Olson 

in the front seat next to him. L. D. then ordered Olson to 

get out of the car and to lie face down on the ground, and 

then shot him at least twice. Olson, shot in the back of 

the head and lower back, died within minutes. 

L. D. turned the car around and on his way back into 

town picked up defendant. It is disputed whether, after 

L. D. had picked him up, defendant handed L. D. another 

shell, saying that they should shoot Olson again to be sure. 

It is also disputed as to what happened next. Both 

defendant's and L. D.'s testimony at trial was internally 

contradictory and tended to be illogical in positing the 

next sequence of events. According to the reading of that 

testimony most favorable to defendant, he dropped L. D. off 

downtown where the latter got Olson's vehicle and drove it 

to the Yellowstone River. After ransacking the vehicle and 

stashing the stolen goods under some bushes, L. D. then 

drove it into the river and walked back to the motel. Upon 

arriving at the motel, L. D. got Shipes' car, drove back to 

the river alone, and packed the stolen goods in the trunk. 

He then returned to the motel where he met defendant who had 

been out walking to clear his head. 

According to the testimony of the police officer arresting defendant, however, defendant told him that he had 

followed L. D. out to the river where they had both ransacked Olson's truck and then returned to the motel. Lo D. 

too testified at trial (and in an earlier statement) that 

defendant helped ransack Olson's vehicle. As noted, both 
L. D.'S and defendant's testimony at trial tended to be 

unclear as to defendant's role in ransacking Olson's truck, 

especially on such points as L. D. walking the one and onehalf or two miles back to town from the site where he drove 

the vehicle into the river, and how L. D. managed to drive 

Shipes' car back to pick up the goods when apparently defendant had one set of keys with him and Shipes had the 

other set in her purse. 

In any event, both L. D. and defendant returned at the 

same time to the motel where they and Shipes packed up and 

left town, headed for Texas. En route, according to Shipes, 

defendant dictated to her a list of the rifles taken from 

Olson's truck which she took down on her California motor 

vehicle code book. This book was eventually introduced into 

evidence. Shipes further testified that defendant and L. D. 

periodically discussed the incident after they had left 

Montana. 

Along the way the parties apparently pawned or sold 

various rifles and other items taken from Olson's truck. 

Although defendant denied that he received any money from 

the sale of these items, he did concede "the money went into 

the gas tank and such as that." Defendant also admitted he 

wore Olson's wristwatch which L. D. had given him. The 

three stayed together until Kansas where, after L. D. and 

defendant had an argument, defendant separated from Lo D. 

and Shipes. Significantly, Shipes testified that the reason 

defendant gave her for leaving was that he (defendant) was 

afraid he would hurt L. D. 

Eventually L. D. was arrested in Texas and gave a 

statement implicating defendant, in order, he said at trial, 

to keep Shipes from incarceration. In this statement, which 
was used at trial to impeach his testimony, L. D. stated 

that defendant had, in fact, accompanied L. D. and Olson to 

the spot where the latter was shot and had ordered Olson to 

lie down just before L. D. shot him. L. D. further stated 

that while he, defendant, and Olson were driving out to the 

country, he and defendant had robbed Olson again, apparently 

getting his rings and watch. Shipes, incidentally, was 

never charged in this matter. 

Defendant was subsequently arrested in Tucson, Arizona, 

where he too gave a statement to authorities as noted above. 

Upon their return to Montana, L. D. Owens pleaded 

guilty to charges of deliberate homicide and robbery and 

received a sentence of 140 years. Defendant Alfred Owens 

was tried and found guilty of mitigated deliberate homicide 

and robbery and received a sentence of 40 years on each 

count. Because of a conflict between the court minute entry 

and the judgment, it is unclear as to whether these sentences are to run consecutively or concurrently. 

Defendant appeals. 

The issues presented for review are: 

1. Was there sufficient corroboration of the testimony 

of L. D. Owens to connect defendant to the commission of the 

crimes? 

2. Did the District Court admit improper hearsay 

testimony? 

3. Was the District Court's refusal of defendant's 

offered instruction concerning compulsion reversible error? 

4. Was the District Court's refusal of defendant's 

offered instruction concerning accountability reversible 

error? 
5. Did the District Court sentence defendant to two 

forty-year terms to run consecutively or concurrently? 

~efendant's first issue concerns the requirement that 

the testimony of an accomplice in a criminal act must be 

corroborated by other independent testimony or evidence 

which connects the defendant to the commission of the crime 

before the defendant can be convicted of the crime. This 

requirement is codified as section 95-3012, R.C.M. 1947, now 

section 46-16-213 MCA: 

"A conviction cannot be had on the testimony of 

one responsible or legally accountable for the 

same offense, as defined in 94-2-106, 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. " 

Defendant's argument basically is that there was no 

evidence, other than the testimony of L. D. Owens, his 

convicted accomplice, to connect him to the commission of 

the offenses for which he was convicted. We disagree. 

We discussed the nature and quality of the required 

corroborative evidence in State v. Coleman (1978) , 

Mont. , 579 P.2d 732, 748, 35 St.Rep. 560, 576-77: 

"The rule on corroboration is stated in State 

v. Cobb (1926), 76 Mont. 89, 245 P. 265. In 

that case, we held that the corroborating evidence may be supplied by the defendant or his 

witnesses; it may be circumstantial evidence; it 

need not be sufficient to sustain a conviction 

or establish a prima facie case of guilt; and it 

need not be sufficient to connect the defendant 

with the crime but must tend to connect him with 

the crime. In State v. Keckonen (1938), 107 

Mont. 253, 84 P.2d 341, we held that where the 

alleged corrobative evidence is equally consonant 

with a reasonable explanation pointing toward innocent conduct on the part of defendant, then 

such evidence does not tend to connect him with 

the commission of the offense and is in the realm 
of speculation, not corroboration. Where the 

claimed corroboration shows no more than an opportunity to commit a crime and simply proves suspicion, it is not sufficient corroboration to 

justify a conviction upon the testimony of an accomplice. State v. Jones (1933), 95 Mont. 317, 

26 P.2d 341." 

Applying these rules, we conclude that the corroborating 

evidence presented at trial is sufficient to sustain defendant's conviction. 

From Brenda Dennis, a clerk in a store in Laurel, the 

jury heard that on the afternoon before Olson was killed, 

defendant purchased and signed for a box of .410 shotgun 

shells of the type used to kill Olson. Defendant's argument 

that the lack of defendant's fingerprints on the shells 

found at the murder scene eliminates any corroborative value 

is completely unpersuasive. L. D.'s fingerprints were not 

found on these shells either, yet he admitted that he had 

used them to kill Olson. 

From Betty Shipes, who was not an accomplice to the 

crimes, the jury heard that the defendant instructed Olson 

to do as L. D. directed during the robbery in the motel 

room; that defendant made no attempt to stop L. D. from 

robbing Olson; and that L. D. never threatened or ordered 

defendant to assist him in the robbery. Shipes also testified that she heard defendant, L. D., and Olson leave the 

motel together; that only L. D. and defendant returned, 

again together; and that upon their return, the party 

hastily packed up and left town. She further testified 

that, after the group had left town, defendant dictated to 

her a list of weapons that had been taken from Olson's 

vehicle. 

From Robert Lough, the police officer who arrested 

defendant in Arizona, the jury heard during the State's re- 
buttal that defendant had admitted that he had aided L. D. 

in robbing the victim in the motel room and that he had left 

the scene of the homicide only because he believed it was an 

inappropriate place as he thought they had stopped in someone's driveway, not because he necessarily believed the act 

itself was wrong. Lough further testified that defendant 

stated to him that he had helped ransack and dispose of 

Olson's vehicle and that he had himself sold one of the 

shotguns taken from Olson's vehicle. 

Finally, from defendant himself, the jury heard that he 

did purchase the shotgun shells used to kill Olson. Defendant also admitted that during the robbery of Olson in 

the motel room, he had told Olson to do as L. D. directed. 

Defendant testified that he drove L. D. and Olson out into 

the country almost to the site where Olson was killed; that 

after hearing Olson being shot, he drove L. D. back into 

town; and that later he, L. D. and Shipes packed up hurriedly and left town. Although defendant denied receiving 

any spoils from the robbery, he did concede that the money 

received from the sale of the stolen items financed the 

group's journey toward Texas and that, after the group had 

left Montana, he was given Olson's wristwatch by L. D. 

A person may be convicted of deliberate homicide if 

such homicide "is committed while the offender is . . . an 

accomplice in the commission of . . . or flight after committing . . . any other felony which involves the use or 

threat of physical force or violence against any individual." Section 94-5-102 (1) (b) , R.C.M. 1947, now section 45- 

5-102 MCA. 

Clearly, this evidence tends to connect defendant with 

the of the offenses of robbery and homicide as a 
participant in the actual robbery and as an accomplice in 

the commission of and flight after the deliberate homicide 

of Kenneth Olson after the robbery. 

The second issue presented for review concerns the 

introduction through the testimony of one witness of a prior 

inconsistent statement made by another witness. The State 

correctly states that, as defendant made no objection at 

trial to the introduction of any of the testimony he now 

claims was improperly admitted hearsay, he is barred from 

predicating error on its admission on appeal, and therefore 

this Court need not consider the issue. Rule 103 (a) (1) , 

Mont.R.Evid.; State v. Armstrong (1977), Mont . I 

562 P.2d 1129, 1132, 34 St.Rep. 213, 216. In a recent case 

presenting very similar circumstances, we stated: 

" . . . At any rate, defendants never objected to 

Wicks' testifying to the Peterson statement nor 

did they move to strike it from the record. They 

may not now object to its introduction." State 

v. Cripps (1978), Mont . , 582 P.2d 312, 

317, 35 St.Rep. 967, 972. 

The same rule applies to the instant case. In any 

event, were we to examine defendant's contention on the 

merits, our ultimate conclusion would be unchanged. See 

State v. Longacre (1975), 168 Mont. 311, 312, 542 P.2d 1221, 

1222; State v. Mally (1961), 139 Mont. 599, 609, 366 P.2d 

The third issue presented for review concerns the refusal of the District Court to give defendant's requested 

instruction on the defense of compulsion which read: 

"You are instructed that a person is not guilty 

of an offense, other than an offense punishable 

with death, by reason of conduct which he performs under the compulsion of threat or menace 

of the imminent infliction of death or serious 

bodily harm, if he reasonably believes that 

death or serious bodily harm will be inflicted 

upon him if he does not perform such conduct." 
Defendant is correct in stating that where there is 

evidence in support of any defense offered by an accused 

which raises an issue of fact favorable to him, the trial 

court should present the issue by an affirmative instruction 

which explains the pertinent law. State v. Azure (1977), 

Mont. 573 P.2d 179, 182, 34 St.Rep. 1569, 1573. 

However, "[wlhere there is no evidence in the record supporting each element of the [compulsion] defense, the court 

may properly refuse to instruct the jury on the defense." 

State v. GallaNher (1978), Mont . , 580 P.2d 930, 

935, 35 St.Rep. 848, 855. (Emphasis added.) 

The elements of the compulsion defense are found in 

section 94-3-110, R.C.M. 1947, now section 45-2-212 MCA. 

Under that statute, for a defendant to avail himself of the 

defense of compulsion, he must show that: (1) he was 

compelled to perform the offensive conduct (2) by the threat 

or menace (3) of the imminent infliction (4) of death or 

serious bodily harm, and that (5) he believed that death or 

serious bodily harm would be inflicted upon him if he did 

not perform such conduct, and (6) his belief was reasonable. 

We have examined the trial transcript and conclude that 

defendant failed to produce evidence in support of several 

of these elements. There was absolutely no testimony that 

L. D. Owens threatened defendant at any time with the imminent infliction of death or serious bodily harm; defendant 

did not testify he believed his older brother would have 

shot him had he refused to comply with his directions. 

L. D.'s statement when he, defendant, and Olson left the 

motel room, according to Betty Shipes, was simply "let's 

go." Prior to that time, defendant himself had directed 

Olson to comply with L. D.'s orders, doing so under absolutely no threat from L. D. 
Although defendant contends that during the drive out 

to Olson's execution site L. D. repeatedly told defendant to 

be quiet and keep driving, he admitted that L. D. never 

pointed the shotgun at him. Defendant eventually got out of 

the car and started walking back to town, apparently without 

fear of any physical harm. Shortly thereafter, he voluntarily got back into the car and drove L. D. back to Laurel 

where he allegedly dropped him off to pick up Olson's vehicle. After this point, defendant had the shotgun in his 

possession in Shipes' car and L. D. was not around. Yet defendant failed to inform any authorities as to the incident 

involving Olson and in fact voluntarily continued his association with L. D. by helping him pack up and then leaving 

town with him. These are hardly the actions of a person who 

has just been compelled to perform an odious criminal act by 

the threat of imminent infliction of serious bodily harm or 

death. In fact, it appears from defendant's testimony that 

he was more frightened of the situation because he had never 

participated in anything like it before rather than of 

anything L. D. might have done. Indeed, it appears that 

defendant was not afraid of L. D. at all--the reason he left 

L. D. and Shipes in Kansas was that he was afraid that he - 

might end up hurting L. D. 

The compulsion defense is a narrow defense. As the 

Commission Comment to section 94-3-110 states: 

"The justification does not extend to action 

under threat of damage to property, or of injury 

less than serious bodily harm or even of death 

or serious bodily harm which is not imminent; but 

the person's reasonable fear of imminent death or 

serious bodily harm if mistaken, is within the 

principle. (See 1 Bishop on Criminal Law (9th 

ed.) 1111346 to 348.) 
"This established type of formulation has been 

criticized. However, to broaden the defense to 

accord completely with the 'free will' theory 

would be to invite routine contentions of some 

kind of pressure, such as 'threats of harm to 

property, reputation, health, general safety, 

and to acts done under the orders,' with accompanying assertion of individual personality weakness. (Newman and Weitzer, supra, at 334.) 

Prof. Wharton, after stating the established 

restrictions upon the defense, comments: 'It 

would be a most dangerous rule if a defendant 

could shield himself from prosecution for crime 

by merely setting up a fear from or because of 

threat of a third person.' (1 Wharton's Criminal Law (19th ed.), 11384.)" 

Defendant failed to introduce any evidence that he 

feared the imminent infliction of death or serious bodily 

injury or that he reasonably believed that, if he failed to 

do as L. D. directed, such injury or death would be inflicted. 

The proposed instruction was properly refused. 

The fourth issue for review concerns the District 

Court's refusal to give defendant's proposed instruction on 

accountability which stated: 

"You are instructed that some evidence has been 

introduced tending to show that a person other 

than the defendant, Alfred Owens, is responsible 

for the crimes here charged. If, after a consideration of all the evidence, there remains in 

your minds a reasonable doubt as to who is responsible for the crimes, then it is your duty to acquit." 

The trial court did give the following instruction: 

"You are instructed that a person is legally accountable for the conduct of another when either 

before or during the commission of an offense, 

and with the purpose to promote or facilitate 

such commission, he solicits, aids, abets, agrees 

or attempts to aid such person in the planning or 

commission of the offense." 

Sections 94-2-106 and 94-2-107, R.C.M. 1947, now sections 45-2-301 and 45-2-302 MCA, the statutes on accountability, state in pertinent part: 

"94-2-106. Accountability for conduct of another. 

A person is responsible for conduct whiz is an 

element of an offense, if the conduct is either 
that of the person himself, or that of another 

and he is legally accountable for such conduct as 

provided in section 94-2-107, or both. 

"94-2-107. When accountability exists. A person 

is legally accountable for the conduct of another 

when: 

"(3) either before or during the commission of an 

offense, and with the purpose to promote or facilitate such commission, he solicits, aids, abets, 

agrees or attempts to aid, such other person in 

the planning or commission of the offense." 

From a comparison of the statutes with defendant's 

proposed instruction, it is clear that the proposed instruction is an incorrect statement of the law. It creates the 

distinct impression that the defendant could not be held 

responsible for the crimes charged if somebody else actually 

performed the offensive conduct. This is contrary to the 

statute and has been rejected by this Court at least since 

1914. State v. Chevigny (1914), 48 Mont. 382, 385-86, 138 

P. 257, 258. The law on accountability was correctly presented in the given instruction. Defendant's proposed 

instruction was properly refused. 

The last issue presented for review is not really an 

issue at all. The State concedes that the two forty-year 

sentences given defendant are to run concurrently as specified in the judgment rather than consecutively as stated in 

the minute book entry. Absent special circumstances indicating otherwise, the final formal judgment as entered by 

the trial court controls over an inconsistent minute entry. 

See, section 95-2404, R.C.M. 1947, now section 46-20-104 

MCA; State v. Herndon (1965), 1 Ariz.App. 180, 400 P.2d 851, 

852. 

The judgment of the District Court is affirmed. 

%AS@- 

Chief Justice 
We concur: