No. 90-213 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1991 

STATE OF MONTANA, 

Plaintiff and Respondent, 

FEB P 4 199% 

ROY LEE DUNCAN, 

OF SUPREME CQUm 

Defendant and Appellant. srAYi& W A4@4tam 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Broadwater, 

The Honorable Jeffrey M. Sherlock, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

J. Mayo Ashley, Esq., Helena, Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General; James 

Yellowtail, Assistant Attorney General, Helena, 

Montana 

John Flynn, County Attorney, Townsend, Montana 

Filed: 

Submitted on Briefs: December 20, 1990 

Decided: February 14, 1991 * 

Clerk 
Chief Justice J. A. Turnage delivered the Opinion of the Court. 

Roy Lee Duncan appeals his convictions of robbery and 

deliberate homicide through accountability following a jury trial 

in the First Judicial District, Broadwater County. We affirm. 

Duncan presents the following issues on appeal: 

1. Were Ursla Smith, Sherry Hendricks and Ginny Penn 

accomplices, and if so, did independent evidence sufficiently 

corroborate the accomplice testimony? 

2. Is the evidence in this case sufficient to support a 

conviction of deliberate homicide through accountability? 

3. Is the felony murder rule under 5 45-5-102 (1) (b) , MCA, 

constitutional? 

In July, 1989, Roy Lee Duncan, along with five other adults 

and three small children, traveled to Montana in a single car. The 

adults were members of a self-formed group. The children are 

incidental to this appeal, and as such, will not be further 

discussed. 

One of the adults, Ernest "Erniett Mazurkiewicz was considered 

by other group members as the leader of the group. On June 24, 

1989, Ernie instructedthe other adults, Roy, Joe Milinovich, Ursla 

Smith, Sherry Hendricks, and Virginia "Ginnytt Penn, to place their 

fingerprints, made from their own blood, on individual pieces of 

paper. Each person signed and dated the piece of paper containing 

their fingerprint. These pieces of paper signified comradery and 

loyalty to Ernie. Ernie also told the adults that these pieces of 

2 
paper meant that they were members with him forever, and the only 

way they could leave the group was "in a pine box." 

While in Big Timber, Montana, Ernie asked Ursla, the treasurer 

of the group, to give Roy some money to purchase a handgun. Ursla 

complied, but Roy was unable to purchase the handgun because he was 

an out-of-state resident. The group eventually drove to Billings, 

Montana, where Roy and Ursla went to the local driver's licensing 

bureau and attempted to obtain Montana driver's licenses for instate identification. Both Roy and Ursla paid $12.00 to a clerk 

at the driver's licensing bureau in order to apply for a driver's 

license, and both received a receipt from the clerk. Ursla passed 

the required written driver's license examination, and the clerk 

properly validated her receipt making it a learner's permit. Roy, 

however, failedthe written examination, and accordingly, the clerk 

did not validate his receipt as a learner's permit. Ursla, 

however, upon Ernie's request, falsified Roy's receipt to make it 

appear that Roy passed the test, and was a recipient of a learner's 

permit. 

The group then left Billings and Roy purchased two handguns 

by using his falsified learner's permit as identification; one of 

the handguns, a .22 caliber FIE revolver, was purchased in 

Columbus, Montana, and the other, a .25 caliber Loricin semiautomatic, was purchased in Big Timber, Montana. Ursla testified 

that following the purchases of the handguns, she overheard Ernie 

telling Roy how to commit robberies. Sherry and Ginny testified 

3 
that following the purchases of the handguns, they were aware that 

the handguns were going to be used to rob. 

The group proceeded west on Interstate 90 through Montana, and 

on the evening of July 24, 1989, stopped at a convenience store 

outside of Bozeman. Roy, Ernie, Ursla, and Joe went inside the 

convenience store; Sherry and Ginny remained in the car. While 

in the convenience store, Roy engaged in conversation with Larry 

Beckwith, who was en route to Alaska where he had an employment 

opportunity. Following his conversation with Larry, Roy informed 

Ernie that Larry could obtain employment for them in Alaska. 

Together with Ernie, Roy again talked with Larry to further 

pursue the notion of possible employment opportunities in Alaska. 

Apparently, after this conversation and a phone call placed by 

Larry to Alaska, Larry agreed to take Roy, Ernie, and Joe to Alaska 

and help them find jobs. 

Larry and the group left the convenience store simultaneously 

and headed north toward Townsend, Montana. Joe rode with Larry in 

his red pick-up truck and the rest of the group followed Larry's 

pick-up in their car. Shortly after leaving the convenience store, 

Larry's pick-up truck pulled off the highway; the group's car also 

stopped. Roy then joined Larry and Joe in the pick-up and the 

vehicles once again continued to drive down the highway with the 

pick-up leading the way. Later, the pick-up pulled off the highway 

again and the car likewise pulled over. A brief exchange occurred, 

but the riders in the vehicles remained the same: Larry, Roy, and 

4 
Joe rode in the pick-up and the rest of the group rode in the 

following car. 

Sometime later, Larryls pick-up began to swerve on the 

highway; Ernie, the driver of the groupts car, passed the pickup, drove through Townsend, and then pulled the car over to the 

side of the highway and waited for the pick-up. The pick-up 

eventually pulled up behind the group s car, whereby the pick-up 

then led the car down a secondary road off of the main highway. 

At this point Ernie asked Ursla to hand him Duncan1s handgun, 

the loaded .22 caliber FIE revolver, which was located in the 

passenger side panel of the car; Ursla complied. Both vehicles 

once again pulled off the road. Ernie got out of the car and 

joined Roy who was standing in the roadway. Joe was standing in 

a nearby ditch straightening his clothes. ~rnie handed Roy the 

handgun and told Roy that the group was going to spend the night 

at a rest area. Ernie then got back into the car, and the car 

drove off, leaving Roy, Joe, Larry and the pick-up behind. 

About forty-five minutes later, the car and the pick-up met 

at an exit ramp outside a nearby town. After both vehicles pulled 

over, Roy got out of the pick-up and handed Larryls wallet to 

Ernie; Ernie gave the wallet to Ursla for safe-keeping. The 

vehicles then proceeded to a gas station and later to a rest area. 

At the rest area, Ursla testified that after she inquired about 

what happened on the secondary road, Roy stated that he wovertookw 

Larry and lasent Mr. Beckwith to hell where he belonged.I1 Ginny 

5 
testified that Roy said "that he had got the guy, didn't know how 

many times he had shot him and that Joe had hit him with a rock 

but he wouldn't go down. " Additionally at the rest area, Ernie, 

who had regained possession of the .22 caliber FIE revolver, 

emptied the handgun and took out the shells. 

The car and pick-up proceeded on to a second rest area, and 

stayed a brief time. Upon leaving this second rest area, the car 

and pick-up truck headed south on Interstate 15. Ursla, Sherry, 

and Ginny testified that, at this point, they fell asleep in the 

car. The three testified that they were awakened when Roy and Joe, 

who had been riding in Larry's pick-up, entered the car with 

Larry's possessions. At this point, the three women became aware 

that the pick-up was ablaze. 

Larry's truck was later reported to be burning on Interstate 

15 approximately six miles north of Dillon, Montana, and authorities later identified that the pick-up belonged to Larry from the 

pick-up's license plate. 

At around noon on July 25, 1989, a detachment from the Montana 

National Guard discovered Larry's body on an abandoned portion of 

Highway 12 approximately 2.2 miles north of Townsend, Montana. An 

investigation revealed that Larry had been robbed due to the 

absence of his identification, wallet, or personal property, and 

the fact that Larry's rear pant's pockets were turned inside out. 

An autopsy revealed that Larry had died at around midnight on July 

25, 1989, from "internal bleeding and injuries of the spinal cord 

6 
and structures at the base of the skull due to the gunshot wound 

of the head." A firearms expert testified that the bullets 

recovered from Roy's body were .22 caliber and could only have been 

fired from one of "approximately eight different brands of 

firearmsw including an FIE revolver. 

The group, meanwhile, drove to Las Vegas, Nevada. Roy, Joe, 

and Ginny separated from the group in Las Vegas, and proceeded to 

Texas. Some time later, law enforcement officials in Las Vegas, 

determined that Ernie, Ursla, and Sherry may have been involved in 

the homicide of Larry in Montana. When questioned by the officials, all three discussed Larry's homicide and implicated various 

members of the group. Subsequently, Roy was also arrested in Las 

Vegas after he returned from Texas, and Ginny was arrested in 

Springfield, Missouri, where she had fled after leaving Texas. At 

the time Roy was arrested, he was wearing a belt owned by Larry, 

which had Larry's name printed on the back. Joe was arrested 

sometime later in New Jersey. 

Following his extradition to Montana, Ernie was charged with 

robbery and deliberate homicide through accountability. Alternatively, he was charged with deliberate homicide under the felony 

murder rule. Initially, Ernie pled not guilty to these charges, 

however, on December 19, 1989, he changed his pleas and pled guilty 

to robbery through accountability and deliberate homicide under the 

felony murder rule. He is currently serving sentences in prison 

for these offenses. Joe later pled to the same charges as Ernie, 

7 
and is also currently imprisoned. The original charges against 

Ursla were reduced to robbery. Ursla pled guilty to robbery and 

is currently imprisoned for this offense. The charges against 

Sherry and Ginny were dismissed. 

On October 13, 1989, following his extradition from Las Vegas, 

Roy was charged by information with the offense of Count I, 

deliberate homicide under 1 45-5-102 (1) (a), MCA, charged alternately as Count 11, deliberate homicide through accountability under 

55 45-5-102(1)(a), 45-2-301, and 45-2-302, MCA, and Count 111, 

deliberate homicide under the felony murder rule, 5 45-5-102 (1) (b) , 

MCA. Later, this information was amended to charge the offenses 

of Count I, robbery under 5 45-5-401, MCA, and Count 11, deliberate 

homicide through accountability under 5 5 45-5-102 (1) (a) , 45-2-301, 

and 45-2-302, MCA, charged alternatively as Count 111, deliberate 

homicide under the felony murder rule, 5 45-5-102 (1) (b) , MCA. 

From the record, testimony at trial established that while Roy was 

imprisoned at the Broadwater County jail awaiting trial, he 

admitted to a cell-mate that he shot Larry five times in the face. 

Following a jury trial on January 5, 1990, Roy was found 

guilty of Count I, robbery, and Count 11, deliberate homicide 

through accountability. On March 19, 1990, the District Court 

sentenced Roy to forty years imprisonment on Count I and 100 years 

imprisonment for Count 11, both sentences to run consecutively. 

The District Court additionally designated Roy a dangerous offender 

for parole purposes. From his convictions, Roy appeals. 

8 
1. Were Ursla Smith, Sherry Hendricks and Ginny Penn 

accomplices, and if so, did independent evidence sufficiently 

corroborate the accomplice testimony? 

First, appellant asserts that Ursla, Sherry and Ginny were 

accomplices with Roy because all three women were members of this 

self-formed group and actively participated in the group's 

activities. Moreover, the appellant asserts that these women were 

accomplices because they were present during the commission of the 

crimes, and knew what was unfolding. Second, appellant asserts 

that as accomplices, their testimony was not sufficiently corroborated by other witness testimony at trial as required under 5 

46-16-213, MCA. 

The State argues that Sherry and Ginny were not accomplices 

because they were not involved in the planning and commission of 

Roy's offenses, and therefore, their testimony is not subject to 

§ 46-16-213, MCA. The State further argues that although Ursla was 

an accomplice and was subject to corroboration under 5 46-16-213, 

MCA, independent evidence established a nexus between Roy and the 

robbery and homicide of Larry, which corroborated Ursla's testimony. We agree with the State's contentions. 

The definition of an accomplice is well-settled: 

This concept has been the subject of much 

attention in case law. We have emphasized 

that mere presence at the scene of a crime is 

not enough to charge one as an accomplice. 

[Citations omitted.] Moreover, the knowledge 

that a crime is about to be committed does not 
make one an accomplice. [Citations omitted.] 

A true accomplice is: 

l1 one who knowingly, voluntarily and with 

common intent with the principal offender 

unites in the commission of a crime . . . One 

may become an accomplice by being present and 

joining in the criminal act, by aiding and 

abetting another in its commission, or not 

being present, by advising and encouraging its 

commission; but knowledge and voluntary actions are essential in order to impute 

guilt.111 [Citations omitted.] 

State v. Nordahl (1984) , 208 Mont. 513, 517, 679 P. 2d 241, 243. 

Here, although group members Sherry and Ginny were at the scene of 

the crimes, and were aware that the handguns purchased by Roy were 

going to be used to rob, no evidence exists in the record to 

indicate that they knowingly or voluntarily and with common intent 

with Roy, united in the preparation, planning, or commission of the 

robbery and homicide of Larry. We therefore hold that Sherry and 

Ginny were not accomplices, and accordingly, their testimony was 

not subject to the corroboration requirements under 46-16-213, 

MCA . 

Ursla, however, was an accomplice to these crimes. The record 

clearly indicates that she knowingly and voluntarily participated 

in procuring the handgun used in the robbery and homicide of Larry 

by falsifying Royls Montana identification. Therefore, Urslals 

testimony is subject to 1 46-16-213, MCA, which provides: 

A conviction cannot be had on the testimony of 

one responsible or legally accountable for the 

same offense, as defined in 45-2-301, 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. 

(Emphasis added.) Here, because Sherry and Ginny were not 

accomplices, the matter of corroborating Ursla's testimony is 

clearly established by the record--virtually all of the aspects of 

Ursla's testimony appeared in either or both of Sherry's or Ginny Is 

testimony. Therefore, the testimony of Sherry and Ginny corroborated Ursla's testimony. 

2. Is the evidence in this case sufficient to support a 

conviction of deliberate homicide through accountability? 

The standard of review for sufficiency of the evidence is, 

"whether, after viewing the evidence in the light most favorable 

to the prosecution, anv rational trier of fact could have found the 

essential elements of the crime beyond a reasonable doubt.'' 

Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 

61 L.Ed.2d 560, 573; restated in State v. Wilson (Mont. 1981), 631 

P.2d 1273, 1278-79; State v. Geyman (1986), 224 Mont. 194, 195- 

96, 729 P.2d 475, 476; State v. Gilpin (1988), 232 Mont. 56, 68, 

756 P.2d 445, 451; State v. Kao (Mont. 1990), P.2d -, -1 

47 St.Rep. 2100, 2102; State v. Walters (Mont. 1991), - P.2d. 

-1 , 48 St.Rep. 102, 106. 

Appellant argues that the record does not contain sufficient 
evidence to prove that Roy actually shot and killed Larry. 

Appellant's argument lacks merit. The evidence did not have to 

prove that Roy actually shot and killed Larry as Roy was charged 

and convicted of deliberate homicide through accountability under 

§§ 45-5-102 (1) (a) , 45-2-301, and 45-2-302, MCA. The amended 

information, in Count 11, alleged that Roy, llpurposely or knowingly 

caused the death of Larry Beckwith by shooting him with a gun, or, 

with the purpose of promoting or facilitating the commission of 

such offense, aided or abetted Joseph Milinovich in the planning 

or commission of the offense of the deliberate homicide of Larry 

Beckwith . . . . II The record, through the testimony of Ursla, 

Sherry and Ginny, as well as other witnesses, overwhelmingly 

indicates that Roy either shot Larry, or aided or abetted Joe in 

doing so. Roy was the person who approached Larry at the convenience store near Bozeman, and gained Larry's trust. Roy was 

handed the .22 caliber FIE revolver shortly before Larry's death. 

Roy admitted that he shot Larry to other group members shortly 

after the shooting. Roy was arrested wearing Larry's belt, and 

while imprisoned and awaiting trial, Roy admitted to a cell-mate 

that he shot Larry in the face five times. Moreover, even if Roy 

did not actually shoot Larry, Roy aided and abetted Joe, the only 

other person, besides Larry present in Larry's pick-up that night, 

by giving Joe the .22 caliber FIE revolver. 

Appellant also argues that absent Ursla, Sherry, and Ginnyls 

testimony, the so-called accomplice testimony, the record contains 

12 
insufficient evidence to convict Roy of deliberate homicide. 

Because we have already held that Sherry and Ginny were not 

accomplices, and that their testimony properly corroborated Urslals 

testimony, no need exists to further discuss appellant's latter 

contention. We therefore hold that sufficient evidence existed in 

the record to support Roy's conviction of deliberate homicide 

through accountability. 

3. Is the felony murder rule under 45-5-102 (1) (b) , MCA, 

constitutional? 

Appellant moved to dismiss Count I11 of the amended information, deliberate homicide under the felony murder rule, on December 

28, 1989. The record does not indicate whether the District Court 

ruled on the appellant's motion. Because there is no record of the 

dismissal of Count 111, the appellant raises the issue of the 

constitutionality of the felony murder rule in this appeal. 

Appellant's argument is inappropriate with regard to this case. 

The jury did not convict Roy of the alternative charge of Count 

111. Accordingly, this issue is not ripe for determination. We 

therefore decline to discuss the constitutionality of the felony 

murder rule with regard to this case. 

Af f inned. -13

Chief Justice 
We concur: 

Justices