No. 12213 INTHE 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: ForAppellant: 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

## 1973Mr. JusticeJohn 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 stateprison. He was triedby a jury inthe eighthjudicial 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 institutedby 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 thebody examined by Dr. Jack Henneford, a resident pathologi-st. As a result of his examination Dr, Henneford testified that she died from multipleblows to the left side of her head, fractures of the skull, and from extensive bleeding within the cranialcavity, He also testified thebody showed two small recent tears of thehymen; that in his opinion the girlhad been dead atleast eight hours; and, that she had lived an hour or more after theblows had been inflicted. During the investigation a deputy sheriff interviewed defendant the day after thebody was found, as tohiswhereabouts

on the night of the murder. Defendant informed the deputy he was at his trailer allevening, watched TV and went tobed. This statement was given inthe presence of two other deputies, On March 6, 1971, some two weeks after the murder, the sheriff received word from defendant, then confined inthe Missoula County jail

on an unrelated charge, thathe wanted to talk to the sheriff and givehim information concerning the death of Vicki Renville. He told the investigating officershe wanted tohelp them and they obtained hisrelease from the Missoula County jail in the custody of the Cascade Collnty sheriff. Although it isnot clearinthe record, it appears defendant implicatedMichael Stillings. Stillingswas arrested in Seattle, Washington, where he gave three deputy sheriffs a statement that he had killedVicki Renville. Arrangements were made toreturnhim 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 tothe scene of the killing. The storyrelating to the killing, as told tothejury by Stillings, was thathe and defendant picked Vicki up late in the evening of February 

### 23, 1971, and afterriding around town they took Vicki toan area known as theWadsworth Park. There Stillings suggested thatVickihave intercourse with him and when she refused he put a knife toher throat and forced her to have intercourse with him in the back seat of the car. Then, according to Stillings, defendant had intercourse withher. After these two actsVicki got out of the car and his story of what happened then is: "Q. What happened then? A. Vicki said shewas going torat. Q Vicki said she was going torat? 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 tireiron, and he startedhittingher.

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



# . Did ithave a lugwrench end on it? A. Yes. Q. Did ithave a pointed end on it? A. Yes. "Q. And could you seehim strikingher? A. Not at first. Q Did you ever seehim strikingher? A, Yes.'Q 'When did you seehim strikingher'? A, When she was laying on the ground.



# . And inwhac position was she in when she was lying Jn the ground? A. She was lying on her back. "Q. And inwhat position was Mr. Perry? A. He was standing over her.



# . How many times did you seehim strikeher, 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 ironwas found. kt the Lime he testified Stillingshad 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 inhis expert testimony described the kind 

### ~i weapon that could have inflicted theblows 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 inher 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 inactive practice for over ten years and is

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

co allegations made about his trialcounsel, the trialcourt appointed Ralph T, Randono, a former deputy county attorney, tohandle the appeal. He was assisted inhispreparation of the appellatebrief by the trialcounsel. Defendant sets forth seven issues on appeal for this Court's consideration: 1. Defendant was not provided counsel asrequired. 2. Defendant was questioned and harassed by sheriff's deputies afterhis counsel was appointed. 

### 3. Defendant when provided counsel, was given counsel without experience incriminal law. 4. Both defendant and counsel asked fornew counsel. 

### 5. There was a failure of corroboration. 

### 6, The court erred in accepting

### a verdict of second degree murder. 7. The court erred innot granting defendant's post trial motion tomodify the verdict in accordancewith 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

### willbe 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 officeswithout counsel. The facts as set forth in our statement of facts failto substantiate this charge. To the contrary, defendant volunteered toassist the Cascade County officials in clearing up the killing of Vicki Renville. He obtained release from the Missoula County jail and was allowed toreturn toGreat Falls to assist in the investigation. It was not until afterhe implicated Stillings and Stillingshad made the accusation involving defendant, that any focus was directed todefendant. The record reveals that afterreturning to Great Fallshe 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 itwas not untilAugust 17,1972, that a warrant forhis arrestwas issued. The record and transcript failto show any statements made by defendant during the investigativeperiod, and defendant didnot 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 attorneyswho were faithful to their professional ~bl~gations in his defense. Their thanks 

### isnow tobe charged with being "ineffective counsel". These days this isnot an unusual chargeby convicted defendants and as this Court said in Statev. Forsness, Mont

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

IISuccess 

### isnot the test of efficient counsel, frequentlyneithervigor, zeal, nor skillcan overcome truth," See also: Petition of Heiser, 148 Mont. 149, 418 P.2d 202. Here, the two trialcounsel 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 isrequired by section 94-7220, R.C.M. 1947, There was medical evidence givenby Dr. Henneford that Vicki had been raped. Two young gi-rls, Chris Shatto and Joan Icimbell, testified that theywere atdefendant's trailerwith defendant and Stillings from about 9 p.m. until after 11:30 p.m., when defendant and Stillings took them to thehome of Don Shingledecker. Both girls identified the coat defendant wore that night. The coat inquestionwa$ introduced in evidence and an FBI agent testified that ithad human blood spots. Mike Baldwin testified that defendant and Stillingshad 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 toldher 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." Inaddition, allwitnesses who testifiedcc~rroborated 

### she 3tiilings' restinlony concerning 'ihe events of ::he night of February 23-24, 

### 1971. It iswell established in Montana that the sufficiency of the corroboration necessary to sustain a conviction based on the ~estimony of an accomplice isa matter of law. Statev. Dess, 

### 1.54Mont. 231, 462 P.2d 186; Statev. Barick, 143 Hont. 273, 

### 389 P.2d 170; Statev. Moran, 142Mont. 

### 423, 384 P.2d 777, When the trialjudge is satisfied that th.e evidence iscorroborative, he must submit the case to thejury to determine what effect the corroboration has and whether it is sufficient towarrant a conviction. The weight given an accomplice's testimony isfor the jury to decide, Here, thejury was properly instructed as to the weight tobe given an accomplice's testimony. We find no merit to issue 

### 5. Defendant next argues the court erred inaccepting a second degree murder verdict. He contends in an instruction offered I~ur refused, that itwas either firstdegree or acquittal and ,:ites in support of the refused instruction Statev. Miller, 

### 91Nont. 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:

IIThe trial court isrequired to instruct the jury on lesser degrees of a crime charged, or included crimes, .mlywhen the evidence would warrant a conviction of such other crimes +; 

# * ;k consequently where, ashere, 3 defendant iseither shown tohave participated in a robbery, or attempted robbery, during which a homicide iscommitted, or the evidence fails to show that fact Seyond a reasonable doubt, the only permissible verdict iseither murder of the first degree or acquittal, and the trialcourt isnot required to instruct on murder 

### in the second degree. It fn Miller the court held that the trialcourt 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 trialcourt correctly found, in giving the instruction on second degree, that the Miller fact situationwas notcomparable tothe instant case. The homicide occurred after the allegedrape had been committed, it was not done during the perpetration of the rape. According to Stillings' testimony, Vi-ckiwas killed after shehad been raped because she said she

was going to rat (squeal). The trialcourt properly instructed an second degree, and thejury so found. The court also carefully instructed on all the elements of murder. It would appear from 

### itsverdict that thejury did not find allthe elements of firstdegree murder, but did find second degree and therewere sufficient facts to warrant itsverdict. ~efendant's final issue isdirected tothe court's denial of defendant's motion for a new trialand modification of the judgment, and again citesMiller. 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 trialcourt properly denied the motion for a new trial. Where there issubstantial evidence in the record to support the verdict, the action of the trialcourt 

### willnot be disturbed

on appeal. State

### v. Walker, 148 Mont. 

### 216, 419 P.2d 

### 300. The judgment of the district court 

### isaffirmed.



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