No. 12213 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1972 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

-VS - 

FRED LEE PERRY, 

Defendant and Appellant. 

Appeal from: District Court of the Eighth Judicial District, 

Honorable Truman G. Bradford, Judge presiding. 

Counsel of Record: 

For Appellant : 

Ralph Randono argued, Great Falls, Montana. 

For Respondent: 

Hon. Robert L, Woodahl, Attorney General, Helena, 

Montana. 

J. C. Weingartner, Deputy Attorney General, argued, 

Helena, Montana. 

J. Fred Bourdeau, County Attorney, argued, Great Falls, 

Montana. 

Arthur G. Matteucci, Deputy County Attorney, Great 

Falls, Montana, 

Submitted: November 28, 1972 

Decided: JISN 1 (J 1973 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

Defendant Fred Lee Perry appeals from a judgment of conviction 

of second degree murder and life sentence in the state prison. 

He was tried by a jury in the eighth judicial district, county 

of Cascade, the Hon. Truman Bradford, judge presiding. 

The body of Vicki R.enville, a teenager, was discovered by 

a motorcyclist on a county road near Great Falls, Montana on 

February 24, 1971. Immediate investigation instituted by the 

sheriff's office of Cascade County lead to the arrest and conviction in separate proceedings of two men, defendant and Michael 

Stillings. 

After making an on-the-spot investigation of the murder 

site, the sheriff had the body examined by Dr. Jack Henneford, a 

resident pathologi-st. As a result of his examination Dr, Henneford testified that she died from multiple blows to the left 

side of her head, fractures of the skull, and from extensive 

bleeding within the cranial cavity, He also testified the body 

showed two small recent tears of the hymen; that in his opinion 

the girl had been dead at least eight hours; and, that she had 

lived an hour or more after the blows had been inflicted. 

During the investigation a deputy sheriff interviewed 

defendant the day after the body was found, as to his whereabouts 

on the night of the murder. Defendant informed the deputy he was at 

his trailer all evening, watched TV and went to bed. This statement was given in the presence of two other deputies, On March 

6, 1971, some two weeks after the murder, the sheriff received 

word from defendant, then confined in the Missoula County jail 

on an unrelated charge, that he wanted to talk to the sheriff 

and give him information concerning the death of Vicki Renville. 

He told the investigating officers he wanted to help them and 

they obtained his release from the Missoula County jail in the 

custody of the Cascade Collnty sheriff. Although it is not clear 
in the record, it appears defendant implicated Michael Stillings. 

Stillings was arrested in Seattle, Washington, where he gave 

three deputy sheriffs a statement that he had killed Vicki Renville. Arrangements were made to return him to Great Falls, 

where he made another statement. Stillings told the officers 

that defendant had killed the girl. He told them the story of 

what happened the night of the killing, where he and defendant 

were, who they were with both before and after the killing. 

Accompanied by his attorney, the county attorney and three deputy 

sheriffs, he took them to the scene of the killing. 

The story relating to the killing, as told to the jury by 

Stillings, was that he and defendant picked Vicki up late in the 

evening of February 23, 1971, and after riding around town they 

took Vicki to an area known as the Wadsworth Park. There 

Stillings suggested that Vicki have intercourse with him and 

when she refused he put a knife to her throat and forced her to 

have intercourse with him in the back seat of the car. Then, 

according to Stillings, defendant had intercourse with her. 

After these two acts Vicki got out of the car and his story of 

what happened then is: 

"Q. What happened then? A. Vicki said she was going 

to rat. 

Q Vicki said she was going to rat? A. Yes. 

"Q. And do you know what she meant by that? A. Yes. 

"Q. What did she mean? A. She was going to squeal. 

"Q. And what happened then, if anything? A. Fred 

ducked back into the car and he grabbed the tire iron, 

and he started hitting her. 

11 Q, What kind of tire iron was it? A, It was a --just 

a single tire iron. It was a bar tire iron. 

. Did it have a lug wrench end on it? A. Yes. 

Q. Did it have a pointed end on it? A. Yes. 

"Q. And could you see him striking her? A. Not at first. 

Q Did you ever see him striking her? A, Yes. 
'Q 'When did you see him striking her'? A, When she 

was laying on the ground. 

. And in whac position was she in when she was lying 

Jn the ground? A. She was lying on her back. 

"Q. And in what position was Mr. Perry? A. He was 

standing over her. 

. How many times did you see him strike her, do you 

recall? A. Maybe half a dozen times. 

"Q, And what did you do then, if anything? A. I 

jumped out of the car and grabbed his arm. 

'iQ. tJhat happened after you grabbed his arm? A,. He 

dropped the tire iron and backed off. I1 

Stillings testified that he picked Vicki up and thought she 

was dead. Then the two fled from the area returning to town 

where they picked up friends, so that they could establish an 

alibi, The next day Stillings changed the rear tires on his car, 

cleaned off the bloody tire iron, and soon thereafter left for 

ieattle. Stillings told the deputies where he threw the tire 

i-ron in the state of Washington, but after a thorough search 

iio tire iron was found. 

kt the Lime he testified Stillings had entered a plea to 

second degree murder, but sentence had not been imposed. The 

defense attorney thoroughly cross-examined him about making a 

deal with the state, but he said he "expected no leniency". 

Dr. Henneford in his expert testimony described the kind 

~i weapon that could have inflicted the blows on Vicki, and when 

shown a tire iron like that described by Stillings, he testified 

;hat such a weapon could have inflicted the injuries described 

by him which resulted in her death. 

Defendant was defended by two able counsel of the Bar of 

Cascade County. John F. Lynch, Esq. before entering private 

practice served as a clerk to this Court and worked for over a 

year on the revision of Montana's criminal code. John D. Stephen- 

;on, Jr, has been in active practice for over ten years and is 

a skilled, competent,qualified trial lawyer. On appeal, due 

co allegations made about his trial counsel, the trial court appointed Ralph T, Randono, a former deputy county attorney, to 
handle the appeal. He was assisted in his preparation of the 

appellate brief by the trial counsel. 

Defendant sets forth seven issues on appeal for this Court's 

consideration : 

1. Defendant was not provided counsel as required. 

2. Defendant was questioned and harassed by sheriff's 

deputies after his counsel was appointed. 

3. Defendant when provided counsel, was given counsel 

without experience in criminal law. 

4. Both defendant and counsel asked for new counsel. 

5. There was a failure of corroboration. 

6, The court erred in accepting a verdict of second degree 

murder. 

7. The court erred in not granting defendant's post trial 

motion to modify the verdict in accordance with section 95-2101(c), 

R.C.M. 1947. 

Issues 1, 3 and 4, concern trial counsel and as such the 

issue of competency of counsel will be discussed covering the 

three issues. 

First, defendant alleges that between the time of his arrest 

and the appointment of counsel, he was subjected to examination 

by members of the sheriff's and county attorney's offices without 

counsel. The facts as set forth in our statement of facts fail to 

substantiate this charge. To the contrary, defendant volunteered 

to assist the Cascade County officials in clearing up the killing 

of Vicki Renville. He obtained release from the Missoula County 

jail and was allowed to return to Great Falls to assist in the 

investigation. It was not until after he implicated Stillings 

and Stillings had made the accusation involving defendant, that 

any focus was directed to defendant. The record reveals that 

after returning to Great Falls he again got into trouble and was 

put into the Cascade jail to serve out the Missoula County sentence. 

He was released, left the state, and it was not until August 17, 
1972, that a warrant for his arrest was issued. The record and 

transcript fail to show any statements made by defendant during 

the investigative period, and defendant did not take the stand 

to explain anything that happened during that period. Miranda v. 

Arizona, 384 U.S. 436, 86 S,Ct. 1602, 16 L ed 2d 694, has no 

application to this fact situation. 

Defendant was served by not one, but two, court appointed 

attorneys who were faithful to their professional ~bl~gations in

his defense. Their thanks is now to be charged with being "ineffective counsel". These days this is not an unusual charge by 

convicted defendants and as this Court said in State v. Forsness, 

Mont . , 495 P.2d 176, 179, 29 St.Rep. 232, 236: 

I I Success is not the test of efficient counsel, 

frequently neither vigor, zeal, nor skill can 

overcome truth," See also: Petition of Heiser, 

148 Mont. 149, 418 P.2d 202. 

Here, the two trial counsel adequately represented defendant. 

We have scrutinized the record with care and find defendant was 

a.dequately, effectively, fairly, and competently represented. 

We next consider issue 5 directed to an alleged failure of 

corroboration. The record supplies corroborative evidence, over 

and above the testimony of accomplice Stillings, as is required 

by section 94-7220, R.C.M. 1947, 

There was medical evidence given by Dr. Henneford that 

Vicki had been raped. Two young gi-rls, Chris Shatto and Joan 

Icimbell, testified that they were at defendant's trailer with 

defendant and Stillings from about 9 p.m. until after 11:30 p.m., 

when defendant and Stillings took them to the home of Don Shingledecker. Both girls identified the coat defendant wore that night. 

The coat in question wa$ introduced in evidence and an FBI agent 

testified that it had human blood spots. Mike Baldwin testified 

that defendant and Stillings had picked him up about 12:30 a.m. 

and took him to a Mona ~rown's residence where they stayed until 

after 1:30 a.m. Baldwin also identified the coat defendant wore 

that night. Joan Wittke, a friend of defendant, testified that 

defendant told her in the presence of one Randy Braden that a 

big guy and a small guy had killed Vicki, and "that they threw 

the tires in the river." In addition, all witnesses who testified 
cc~rroborated she 3tiilings' restinlony concerning 'ihe events of 

::he night of February 23-24, 1971. 

It is well established in Montana that the sufficiency of 

the corroboration necessary to sustain a conviction based on the 

~estimony of an accomplice is a matter of law. State v. Dess, 

1.54 Mont. 231, 462 P.2d 186; State v. Barick, 143 Hont. 273, 389 

P.2d 170; State v. Moran, 142 Mont. 423, 384 P.2d 777, When the 

trial judge is satisfied that th.e evidence is corroborative, he 

must submit the case to the jury to determine what effect the 

corroboration has and whether it is sufficient to warrant a conviction. The weight given an accomplice's testimony is for the 

jury to decide, Here, the jury was properly instructed as to 

the weight to be given an accomplice's testimony. We find no 

merit to issue 5. 

Defendant next argues the court erred in accepting a second 

degree murder verdict. He contends in an instruction offered 

I~ur refused, that it was either first degree or acquittal and 

,:ites in support of the refused instruction State v. Miller, 

91 Nont. 596, 595, 9 P. 2d 474, as establishing the law on the 

felony-murder rule. There, the murder was committed during a 

rubbery and this Court said: 

I I The trial court is required to instruct the jury on 

lesser degrees of a crime charged, or included crimes, 

.mly when the evidence would warrant a conviction of 

such other crimes +; * ;k consequently where, as here, 

3 defendant is either shown to have participated in a 

robbery, or attempted robbery, during which a homicide 

is committed, or the evidence fails to show that fact 

Seyond a reasonable doubt, the only permissible verdict 

is either murder of the first degree or acquittal, and 

the trial court is not required to instruct on murder 

in the second degree. It 

fn Miller the court held that the trial court did not err 

i-n failing to instruct the jury it could find the defendant guilty 

of murder in the second degree, because the evidence could not 

support that verdict. 

Here, the trial court correctly found, in giving the instruction on second degree, that the Miller fact situation was not 
comparable to the instant case. The homicide occurred after 

the alleged rape had been committed, it was not done during the 

perpetration of the rape. According to Stillings' testimony, 

Vi-cki was killed after she had been raped because she said she 

was going to rat (squeal). 

The trial court properly instructed an second degree, and 

the jury so found. The court also carefully instructed on all 

the elements of murder. It would appear from its verdict that 

the jury did not find all the elements of first degree murder, 

but did find second degree and there were sufficient facts to 

warrant its verdict. 

~efendant's final issue is directed to the court's denial of 

defendant's motion for a new trial and modification of the 

judgment, and again cites Miller. Having heretofore ruled on 

Miller, we find no merit to this issue. As previously noted, 

there was suhstantial evidence to support the verdict and we 

find the trial court properly denied the motion for a new trial. 

Where there is substantial evidence in the record to support 

the verdict, the action of the trial court will not be disturbed 

on appeal. State v. Walker, 148 Mont. 216, 419 P.2d 300. 

The judgment of the district court is affirmed. 

v- &d - - -czm-- - - ... - - .. - - 

ociate Justice 

~ssociute Justices.