No. 14416 

## m THESPREME

### mum'OF

### THE STmOF M3m"ANA 1979

THE 

### ST- OFPDYI'ANA, Plaintiff and Fkspondent,

ALFREDVERNm CPENS, a/k/a AZ; OWENS, Defendant and Appellant.

Appeal fran: DistrictCourt of theThirteenthJudicialDistrict, HonorableC. B. Sande, Judgepresiding. 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,AssistantAttomey General, Helena,

Mntana Harold

### Hanser, CountyAttorney, Billings, Mntana

Submitted: June 

### 5, 1979 Decided: Filed: 

## JUN ?

## 9

## 1979

.- 

## JUN 

## 2

## 3Mr. 

### Chief Justice Frank I. Haswell 

### delivered the Opinion of the Court.

Defendant Alfred Owens was 

### convicted of the 

### crimesfof mitigated deliberatehomicide and robbery inthe ~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 deliberatehomicide while engaged inthe commission of

a felony. Count I11 

### charged the codefendants with robbery. Count IV

### charged the codefendants with aggravated kidnapping.L. D. 

### Owens pleaded guilty toCounts I1 

### and 111. 

### Counts I 

### and IV

### were dismissed 

### as tohim. Commencing May 8, 1978, defendantAlfred 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 courtminutes statedefendant was sentenced to 40 

### years on each count torun consecutively, while the judgment states the sentences are torun 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 hisbrother's girlfriend, Betty Shipes, leftCalifornia heading for Texas. By a 

### circuitous route,

### the trioarrived inLaurel, 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 todo some bird hunting and target shooting. Neither defendant nor his brother purchased a hunting license. After dropping Shipes off ata laundromat near themotel, defendant and L. D. 

### went totown where they started drinking invarious bars. About midnight, defendant, who estimated he had drunk a case of beer during the day, returned to themotel room togo to bed. L. D., 

### after accompanying defendant back to the room, leftagain togo eat

### breakfast. While out this second time, L. D. 

### metKenneth Olson and subsequently invited him back to themotel. Once there, after a shortconversation, L. D. 

### decided torob Olson, and drew the shotgun on him. Apparently, it

### was 

### the sound of L. D. 

### loading the gun thatwoke defendant. During the robbery Shipes, who was feigning sleep, heard defendant 

### tell Olson thathe had better do what L. D. 

### said. After emptying Olson's pockets, L. D., 

### defendant, and Olson leftthemotel room. There is 

### some dispute over whether L. D. 

### ordered defendant toaccompany him or threatened him inany manner. According toShipes, however, L. D. 

### did not threaten defendant inany manner and merely said "let's go" before allthree left. The three leftthemotel room and got into Shipes' car. Defendant was driving with Olson on the front seatnext to him and L. D. 

### inthe back holding the shotgun. ~lthough L. D. 

### initially indicated thathe intended only to take Olson out somewhere and tiehim up, defendant conceded that

\ 

### it 

### soon became clear that L. D. 

### intended tokillOlson.

### ~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 shortdistance, still

### holding the shotgun on Olson inthe front seat next tohim. L. D. 

### then ordered Olson to getout of the car and to lie

### face down on the ground, and then shothim atleast twice. Olson, shot inthe back of the head and lower back, died within minutes. 

### L. D. 

### turned the car around and on hisway 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 tobe sure. It 

### is 

### alsodisputed as towhat happened next. Both defendant's and L. D.'s 

### testimony at

### trial was internally contradictory and tended tobe illogical inpositing the next sequence of events. According tothe reading of that testimony most favorable todefendant, he dropped L. D. 

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

### tothe Yellowstone River. After ransacking the vehicle and stashing the stolengoods under some bushes, L. D. 

### then drove it 

### into the river and walked back to themotel. Upon arriving at

### themotel, L. D. 

### got Shipes' car, drove back to the river alone, and packed the stolen goods inthe trunk. He 

### then returned to themotel where he met defendant who had been outwalking to clear his head. According to the testimony of thepolice officer arresting defendant, however, defendant told him thathe had followed L. D. 

### out to the river where they had both ransacked Olson's truck and then returned tothemotel. LoD. 

### too testified attrial (and inan earlier statement) that defendant helped ransack Olson's vehicle. As 

### noted, both

### L. D.'S 

### and defendant's testimony attrial tended tobe unclear as todefendant's role inransacking Olson's truck, especially on such points as L. D. 

### walking the one and onehalf or two milesback totown from the sitewhere he drove thevehicle into the river, and how L. D. 

### managed todrive Shipes' car back topick up the goods when apparently defendant had one set of keys with him and Shipes had the other set inher purse. In any event, both L. D. 

### and defendant returned atthe

same 

### timeto themotel where they and Shipes packed up and lefttown, headed for Texas. En route, according to Shipes, defendant dictated toher a list 

### of the rifles taken from Olson's truck which she took down on her Californiamotor vehicle code book. This book 

### was eventually introduced into evidence. Shipes further testified thatdefendant and L. D. 

### periodically discussed the incident 

### after they had left Montana. Along the way the parties apparentlypawned or sold various rifles and other 

### itemstaken from Olson's truck. Although defendant denied thathe received any money from the 

### sale of these 

### items, he did concede "themoney 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 LoD. 

### and Shipes. Significantly, Shipes testified that the reason defendant gave her for leaving was thathe (defendant) was afraid he would hurt L. D. 

### Eventually L. D. 

### was arrested inTexas and gave a 

### statement implicating defendant, inorder, he said attrial, tokeep Shipes from incarceration. In this statement, which

### was 

### used at

### trialtoimpeach his testimony, L. D. 

### stated that defendant had, infact, accompanied L. D. 

### and Olson to the spotwhere the latter 

### was shot and had ordered Olson to lie

### down just before L. D. 

### shothim. L. D. 

### further stated thatwhile 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 inthismatter. Defendant was subsequently arrested inTucson, Arizona, where he too gave a statement to authorities asnoted above. Upon their return toMontana, L. D. 

### Owens pleaded guilty tocharges of deliberate homicide and robbery and received a sentence of 140 years. Defendant Alfred Owens

was tried and found guiltyof mitigated deliberate homicide and robbery and received a sentence of 40 years on each count. Because of a conflictbetween the courtminute entry and the judgment, it is

### unclear as towhether these sentences are torun consecutively or concurrently. Defendant appeals. The issuespresented forreview are: 1. 

### Was 

### there sufficientcorroboration of the testimony of L. D. 

### Owens toconnect defendant tothe commission of the crimes? 2. 

### Did the District

### Court admit improper hearsay testimony? 3. Was 

### theDistrictCourt'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 totwo forty-year 

### terms torun consecutively or concurrently? ~efendant's firstissue concerns the requirement that the testimony of an accomplice ina criminal actmust 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 

### sameoffense tends toconnect the defendant with the commission of the offense. The corroboration 

### isnot 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 tothe commission of the offenses for which he was convicted. We disagree. We discussed the nature and quality of the required corroborative evidence inStatev. Coleman (1978)

## , Mont. 

## , 579 P.2d 732, 748, 35 St.Rep. 560, 576-77: "The rule on corroboration 

### is stated inState v. Cobb (1926), 76 Mont. 89, 245 P. 265. In that case, 

### we held that the corroborating evidence may be supplied by the defendant orhis 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 toconnect the defendant with the crime but must tend toconnect him with the crime. In Statev. Keckonen (1938), 107 Mont. 253, 84 P.2d 341, we held thatwhere 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 inthe realm

### of speculation, not corroboration. Where the claimed corroboration shows no more than an opportunity tocommit a 

### crime and simply proves suspicion, it 

### is

### not sufficient corroboration to justify a conviction upon the testimony of an accomplice. Statev. Jones (1933), 95

### Mont. 317, 26 P.2d 341." Applying theserules, 

### we conclude that the corroborating evidence presented attrial 

### is sufficient to sustain defendant's conviction. From Brenda Dennis, a clerk ina store inLaurel, 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 tokillOlson. Defendant's argument that the lack of defendant's fingerprints on the shells found atthe murder scene eliminates any corroborative value is 

### completely unpersuasive. L. D.'s 

### fingerprints 

### were not found on these shells either, yet he admitted thathe had used them tokillOlson. From Betty Shipes, who was not an accomplice to the crimes, the jury heard that the defendant instructed Olson todo asL. D. 

### directed during the robbery inthe motel room; that defendant made no attempt to stop L. D. 

### from robbing Olson; and that L. D. 

### never threatened or ordered defendant toassist him inthe 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 thatupon their return, theparty hastily packed up and lefttown. She further testified that, after the group had lefttown, defendant dictated to her a list 

### of weapons thathad been taken from Olson's vehicle. From Robert Lough, the police officer who arrested defendant inArizona, the jury heard during the State's 

### re-buttal that defendant had admitted that he had aided L. D. inrobbing the victim inthemotel 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 tohim thathe 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 shellsused tokillOlson. Defendant also admitted that during the robbery of Olson in themotel room, he had told Olson todo 

### as L. D. directed. Defendant testified that he drove L. D. and Olson outinto the country almost tothe 

### sitewhere 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 lefttown. 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 leftMontana, he 

### was given Olson's wristwatch by L. D. A person may be convicted of deliberate homicide if such homicide "iscommitted while the offender 

### is 

# . . 

# . an accomplice inthe commission of 

# . . . or flight after committing 

# . . 

# . any other felony which involves the use or threat of physical force orviolence 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 statementmade by another witness. The State correctly states that, as defendantmade 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.; Statev. 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 statementnor 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), 168Mont. 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 seriousbodily harm will be inflicted upon him if he does not perform such conduct."Defendant 

### is correct in stating thatwhere there 

### is evidence insupport of any defense offered by an accused which raises an issue of fact favorable tohim, the trial court should present the issueby an affirmative instruction which explains thepertinent law. Statev. Azure (1977), Mont. 573 P.2d 179, 182, 34 St.Rep. 1569, 1573. However, "[wlhere there 

### isno evidence inthe record supporting each element of the [compulsion] defense, the court may properly refuse toinstruct thejury on thedefense." Statev. 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 toavail himself of the defense of compulsion, he must show that: 

### (1)he was compelled toperform the offensive conduct (2) by the threat

ormenace (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) hisbelief was reasonable. We have examined the trial transcript and conclude that defendant failed toproduce evidence insupport of several of these elements. There was absolutely no testimony that L. D. Owens threatened defendant atany 

### timewith 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 tocomply with hisdirections. L. D.'s statement when he, defendant, and Olson leftthe motel room, according toBetty Shipes, was simply "let's go." Prior tothat 

### time, defendant himself had directed Olson tocomply with L. 

### D.'s orders, doing so under absolutely no threat from L. D.Although defendant contends that during the drive out toOlson's execution siteL. D. repeatedly told defendant to be quiet and keep driving, he admitted that L. D. never pointed the shotgun athim. Defendant eventually got out of the 

### car and started walking back totown, apparently without fear of any physical harm. Shortly thereafter, he voluntarily got back into the 

### car and drove L. D. back toLaurel where he allegedly dropped him off topick up Olson's vehicle. After thispoint, defendant had the shotgun inhis possession inShipes' car and L. D. 

### was not around. Yet defendant failed toinform any authorities as tothe incident involving Olson and infactvoluntarily 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 toperform an odious criminal 

### act by the threat of imminent inflictionof serious bodily harm or death. In fact, it appears from defendant's testimony that he 

### wasmore frightened of the situationbecause he had never participated inanything like it before rather than of anything L. D. might have done. Indeed, it appears that defendant 

### was not afraid of L. D. atall--the reason he left L. D. and Shipes inKansas 

### was thathe was afraid thathe 

### - might end up hurting L. D. The compulsion defense 

### isa narrow defense. As the Commission Comment to section 94-3-110 states: "The justification does not extend to action under threat of damage toproperty, 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, iswithin the principle. (See 1Bishop on Criminal Law (9th ed.) 1111346 to 348.)"This established type of formulation has been criticized. However, tobroaden the defense to accord completely with the 'free 

### will' theory would be toinviteroutine 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.' (1Wharton's Criminal Law (19thed.), 11384.)" Defendant failed tointroduce any evidence that he feared the imminent inflictionof death or seriousbodily 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 instructionwas properly refused. The fourth issue for review concerns the District Court's refusal togive 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 considerationof allthe evidence, there remains in your minds 

### a reasonable doubt as towho 

### isresponsible for the 

### crimes, then 

### it isyour 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 topromote or facilitate such commission, he solicits, aids, abets, agrees or attempts toaid such person inthe 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 inpertinent part: "94-2-106. Accountability

## for conduct of another. A person 

### isresponsible for conduct whiz

### is an element of an offense, if the conduct is eitherthat of the person himself, or that of another and he 

### is legally accountable for such conduct 

### as provided in section 94-2-107, orboth. "94-2-107. When accountability exists. A person 

### is legally accountable for the conduct of another when:



### "(3) either before orduring the commission of an offense, and with the purpose topromote or faci

### litate such commission, he solicits, aids, abets, agrees or attempts toaid, such other person in theplanning or commission of the offense." From a comparison of the statuteswith 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 atleast since 1914. Statev. Chevigny (1914), 48 Mont. 382, 385-86, 138 P. 257, 258. The law on accountability was correctly presented inthegiven instruction. Defendant's proposed instruction was properly refused. The lastissuepresented for review 

### is not really an issue atall. The State concedes that the two forty-year sentences given defendant are torun concurrently as specified inthe judgment rather than consecutively as stated in theminute book entry. Absent special circumstances indicating otherwise, the final formal judgment asentered by the trial court controls over an inconsistent minute entry. See, section 95-2404, R.C.M. 1947, now section 46-20-104 MCA; Statev. Herndon (1965), 1Ariz.App. 180, 400 P.2d 851, 852. The judgment of theDistrictCourt 

### is affirmed. 

# %AS@-

Chief Justice

### We 

### concur: