No. 13550 IN THE SUPREME COURT OF THE STATE OF MONTANA

STATE OF MONTANA, Plaintiff and Respondent,

L. R. BRETZ AND MERREL J. CLINE, Defendants and Appellants.

Appeal from: District Court of the Third Judicial District, Honorable Jack Green, Judge presiding. Counsel of Record: For Appellants: Frank B. Morrison, Sr. argued,Whitefish, Montana Donald E. Hedman argued, Whitefish,Montana Richard Anderson argued, Billings, Montana For Respondent: Hon. Mike Greely,Attorney General, Helena,Montana Robert Keller, Special Assistant Attorney General,

argued,Kalispell, Montana James Masar, County Attorney, Deer Lodge,Montana

Submitted: June 16, 1978 Decided:FEB

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Filed:

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# 19EMr. Justice John C. Sheehy delivered the Opinion of the Court.

Defendants L. R. Bretz and Merrel J. Cline each appeal from judgments of conviction against them on June 18, 1976, based on verdicts of guilty for certain criminal offenses after jury trial. On August 27, 1975,L. R. Bretz and Merrel J. Cline

were charged in a five-count informationwith criminal acts alleged to have occurred while the two were serving time on prior convictions within the prison at Deer Lodge. The original information charged conspiracy and solicitation to assassinate the then attorney general,Robert L. Woodahl and his special assistant, Richard Dzivi. After the original informationwas filed,both defendants

were transferred to theMissoula County jail to await trial

on the assassination charges. While in the Missoula County jail,Bretz and Cline were alleged to have committed certain actswhich resulted in the filing of an amended information in Powell County District Court, adding fivenew counts. The new counts again charged conspiracy and solicitation against defendants,alleging efforts on the part of defendants to secureperjured testimony from twoMissoula County jail inmates,Walter Lee Fox and John Eugene Hendricks,regarding the character of prosecution witnesses in the original conspiracy and assassination counts. The District Court granted defendants' motion for a change of venue as to the last five counts from Deer Lodge County to Missoula County. The State appealed and the grant of change of venue was reversed by this Court in a divided opinion. (Statev. Bretz and Cline (1976),169 Mont. 505, 548 P.2d 949.) The casewas tried before a jury in Powell County and verdicts were returned. Defendant Bretz was found guilty on count

### VI, conspiracy to commit the crime of perjury byencouraging Walter Lee Fox and John Eugene Hendricks to make false statements under oath; countVII, solicitation of Walter Lee Fox to commit the crime of perjury; count IX, tampering with witnesses by attempting to induce John Eugene Hendricks and Walter Lee Fox to testify falsely during the trial of the case; and count XIfabricating physical evidence, relating to statements of Walter Lee Fox and John Eugene Hendricks, for the purpose of discrediting the credibility of Jack LaMere as a witness in the case. Defendant Bretz

was found not guilty on all other counts. Defendant Cline was found guilty of countVI and was found not guilty on all other counts. Thus all the countsupon which convictionswere obtained relate to actions alleged to have occurred in Missoula County, and not in Powell County, the place of trial. After the jury verdicts, judgmentswere entered against each of the defendants. Clinewas sentenced to six years in prison. Bretz was sentenced to a six-year term on his conviction under countVI; imposition of sentence on his convictions on the other counts was deferred. Both defendants

were then serving prison terms for prior convictions and these sentenceswere imposed to run consecutively to those received for the prior convictions. This Court ultimately reversed Cline's prior conviction,and affirmed Bretz's, in State v. Cline and Bretz (1976),170Mont. 520, 555 P.2d 724. Appeals were duly taken by both defendants to this Court. Out of the welter of issues raised by appellants in this Court,we find merit in two and reverse the convictions

on those grounds.The first issue relates to the amendmentby the trial judge,while the jurywas deliberating, of instructionNo. 6. Itwas given without objection by either defendants or the State and in part instructed the jury: "Said defendants are also charged in the same informationwith the following crimes alleged to have committed in Missoula County, Montana, between August 25, 1975, and October 22, 1975: "Count Six: Conspiracy to commit the crime of perjury by encouraging Walter Lee FoxandJohn Eugene Hendricks to make 

# - false statements under oath or equivalent affirmation." (Emphasissupplied.)

(Theother countswere also charged conjointly.) The jury deliberated for two days after the case was submitted to it, and on the second day,before the jury had arrived at a verdict, the court informed counsel that the preceeding evening, a Friday night, the bailiff had received a question from the jury as to the interpretation of instructionNo. 6. The transcript reveals that the court advised the parties respecting the amendments on the following morning as follows: "THE COURT: Iwish to advise counsel that last night, thatwould be Friday night, the bailiff had a question from the jury as to the interpretation of instructionno. 6,where the word

'and'was used between Fox and Hendricks. 

### I advised the jury in connection to those paragraphs, startingwith no. 6, that it should be amended to read 'or', does the Statehave any objections with that? "MR. GILBERT: No objections. "THE COURT: Does the defendant Bretz have any objection? "MR. TRIEWEILER: No objections. "MR. MATTHEWS: No objection."Both Bretz and Cline contend that the court's action in amending instructionNo. 6 constituted an amendment of the information under which the defendants were charged, that the amendmentwas material and substantiallyprejudiced the rights of the defendants. The State contends that the amendment did not constitute a change of the offense charged; that had the State moved to amend the information at that time, the motion would undoubtedly have been granted; and that the defendants

were each fullyprepared to defend as to Walter Lee Fox or - John Eugene Hendricks so the change did not increase or lessen the defense burden. The State contends that the recitation by the court to counsel later about the amendment was also without objection. The State however, concedes this is raising a technicality to meet a technicality,and that the real concern facing this Court iswhether or not the amendmentwas one of substance. The statutewhichmandates procedure when the jury is deliberating in such cases is section 95-1913(d), R.C.M. 1947. It states: 

### " (d)After Retirement,May Return into Court for Information. After the jury has retired for deliberation, if there be any disagreement among them as to the testimony,or if they desire to be informed on any point of law arising in the cause, theymust require the officer to conduct them into court. Upon being brought into court, the information requestedmay be given in the discretion of the court; if such information is given it must be given in the presence of the county attorney and the defendant and his counsel.

### " Obviously the statutewas not followed in this case.In Statev. Herron (1975),169 Mont. 193, 198, 545 P.2d 678,we held that as a general rule additional instructions to the jurymust comply with the law and failure to follow the law constitutes reversible error. The instruction as amended constituted a substantial departure from the crime that had been charged. The information and the instructions

as argued by counselby both defendants had required proof of the involvement of Hendricks and Fox. Hendricks did not - testify. The jurywas obviously at seawith respect to the

use of the conjunctiveand so asked further instructions. When the court communicated to the jury neither counsel for the State nor the defendantswere present. The amendment of the instructionpermitted the jury to convict the defendants if they found that one only of the two persons named were involved. Thus,a material variance occurred which requires reversal. The second issue on which we reverse brings us back to the question of venue of countsVI through X of the amended information, all of which were alleged to have occurred in Missoula County. In the prior decision of this Court, with respect to the venue question (169Mont. 505, 548 P.2d 949), the majority felt that the additional counts arising out of the alleged acts in Missoula County could not stand independently of the alleged acts in Powell County and therefore that

venue in Powell County must be sustained since the first informationwas filed there. The anomaly now is that as a result of the acquittals,the convictions relate only to alleged acts in Missoula County, and on retrialwould concern only allegations arising out of Missoula County. In State v. Zimrnerman (1977), Mont

# . , 573 P.2d 174, 34 St.Rep. 1561,we held that an earlier erroneousdecision of this Court is not necessarily binding as the law of the case in a subsequent appeal. The exception to the general rule of law of the case arises where the cause on appeal must be remanded to the District Court for further proceedings because of reversal on an unrelated issue. When that occurs, this Courtmay correct "amanifest error in its former opinion" and announce a different ruling to be applied prospectively to the futureproceedings in the case.

(573P.2d 178, 34 St.Rep. 1566). We also noted that the exception ismore readily applied where the prior decision is by a divided court. Perkinsv. Kramer (1948), 121Mont. 595, 198 P.2d 475. We hold therefore that, especially in the light of subsequent events, the decision respecting venue in our prior opinion is in fact erroneous,and now this cause fits within the general exception to the rule on law of the case; that is,we find that the proper venue for this cause is in the District Court in Missoula County. Defendants raised a number of other issues on their appeals,but there is no need for this Court now to examine those issues criticallybecause of our decision here. Essentially those issuesrelate to the sufficiency of the evidence to support the convictionswhich were obtained, or to whether the testimony of an accomplice had been corroborated. Since the countsupon which convictionswere obtainedmust now be retried, it would be bootless to search themore than three thousand pages of transcript to determine whether the corroborating evidencewas sufficient under State v. Cobb (1926),76 Mont. 89, 92, 245 P. 265, or whether otherwise the evidence was sufficient to sustain the convictions. On one issue,raised by defendant Cline, however,we do wish to make comment. He contends that the District Court erred in denying hismotion for a separate trial from his codefendant Bretz. He points out that the defendant Bretz -7-exercised the right of peremptory disqualification of the trial judge,and when the second judge assumed jurisdiction, Cline had no similar right to disqualify that judge,because under section 95-1709, R.C.M. 1947,defendants may not peremptorily disqualifymore than one judge. Cline contends that because Bretz exercised the disqualification first,he

was not given a like opportunity and thereforewas not accorded equalprotection of the law under 1972Mont. Const. Art. 11, S4. This contention is nowmoot because under the order of this Court dated December 26, 1976,entitled Disqualification and substitution of judges (34St.Rep. 26), each defendant in a criminalproceedings isnow entitled to one substitution of a judge. Section 95-1709,R.C.M. 1947,has been superseded by this order. The convictions of each of the defendants are vacated and the cause is remanded to the District Court for further proceedings in accordancewith this opinion.

Justice

We Concur:

Justices



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Hon. LeRoy L. McKinnon, District Court Judge, sitting in for Mr. Justice Daniel J. SheaSTATE -VS- BRETZ & CLINE

I respectfully dissent from the foregoingopinion. Themajority opinion has foundmerit in two of the issues raised on appeal. The first of said issues relates to a charge in the information,and to instruction number 6, covering said charge. The charges: "Count Six: Conspiracy to commit the crime of perjury by encouraging Walter Lee Fox and John Eugene Hendricks tomake false statementsunder oath or equivalent affirmation", emphasis added. No proof was offered as to John Eugene Hendricks. No motion was made to conform the pleading to the proof. Instruction number six used the same conjunctive form "and", and was given without objection. Looking back itwould seem that the charge should have used the "and/oruform,a motion to conform should have been made, and the instruction should have been worded in the singular. The ultimate fact is that when the prosecution rested, the defendantsknew that the part of the charge pertaining to Hendrickswas dropped, and that they need not defend against it. This in no way changed the burden of defense unless to lighten it slightly, and certainly the defendantswere in no way mis-led

or prejudiced in their defense. The jurywas confused by the conjunctive form of the instruction when therewas proof as to cons@ringwith one person only. They raised the question to the bailiff. The judge then advised them that instruction six should be amended to read "or". Itwas such a simple little thing, and therewas only

oneway to correct it, and this led the trial judge into technical error. -9-The judge promptly advised counsel on both sides of what had transpired, and both sides affirmatively stated they had no objection. At that point, no verdict had been reached. Upon objection from either side the judge could have convened the court and straightened out the whole matter, and the net resultwould have been the same. "Although communications between judge and jury outside of the presence of party on trial are frowned upon, prejudice is not to be presumed therefrom, but rathermust be established before any verdict of guilty can be reversed on such ground. (Citing cases) Donald Wiseman v The People of the State of Colorado, t-h"t&e+&4%krade7 179 Col. 101, 498 P 2d 930." Quoted in People v Lovato, Col. 

### , 507 P2d 860. Ballantine's Law Dictionary Third Edition at page 1334 definesvariance, and the last paragraph thereof is as follows: "In a criminal case, a variance is an essential difference between the accusation and the proof, and the variance is notmaterial unless it is such as to mislead the defense, or expose the defendant to the injury of being put twice in jeopardy for the same offense. Brashears v State, 38 Okla Crim 175, 259 P 665." Black's Law Dictionary, Third Edition, at page 1800 is to the same effect with some additional citations. In this case, there was no variance which would lead to any different defense, if anything, it would reduce the necessary defense. Neither would it lead to a possibility of either defendant being put twice in jeopardy. All alleged conspirators were identified, and there could be no further prosecution on the facts giving rise to this case. As to the question of venue, that same questionwas before this court in this same case,and was ruled upon. SeeStatev Bretz and Cline, 169'~ont.505, 548 P2d 949. "The general rule in Montana is that where a decision has been rendered by the Supreme Court on a particular rb issue between the sameparties in the same case,whether that decision is right orwrong, such decision is binding on the parties and the courts and cannot be relitigated in a subsequentappeal.

(Citingcases)

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## * * * * "The sole exception to the 'rightor wrong' rule recognized by this court was articultated in Statev Zimmerman

(1977) Mont

# . ,573 P2d 174, 178, 34 St. Rep. 1561, 1566: 'In any event, an exception to this general rule exists where the case must be remanded to the district court for furtherproceedings because of reversal on an unrelated issue. In such cases this Courtmay correct amanifest error in its former opinion and announce a different ruling to be applied prospectively to future proceedings in the case. 

# .

# .. Belgrade State Bank

### v Swainson, Mont

# . , 35 St. Rep. 549, 549B.'" Since I find no reversible error, Iwould not reach the question ofvenue. As far as fundamental fairness,I doubt there ismuch to choosebetween an impartial jury,duly selected, in Missoula County, as compared to its counterpart in Powell County. Iwould affirm the judgment.

LeRoy 

### L.p~innon, ~ist;ict Judge, sitting in forMr. Justice Daniel J. Shea.