No. 14353 INTHE SUPREME COURT OF THE STATE OF MONTANA 1979

STATE OF MONTANA, Plaintiff and Respondent,

-vsPAUL BAD HORSE, JR., Defendant and Appellant.

Appeal from: DistrictCourt of theThirteenthJudicial District, Honorable Charles Luedke, Judge presiding. Counsel of Record: For Appellant: Stacey and Nye, Billings, Montana Calvin Stacey argued, Billings, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Mike McCarter argued, Assistant Attorney General,

Helena, Montana James Seykora argued, County Attorney, Hardin, Montana



### - Submitted: October 30, 1979 Decided:~ustice John C. Sheehy delivered the Opinion of the Court.

Paul Bad Horse, Jr. appeals from a conviction and judgment entered in the District Court,Thirteenth Judicial District, Big Horn County,againsthim for the crime of robbery. The charge against the defendant arose out of the April 5, 1975 abduction, robbery and murder of Monte Dyckman,a Safeway store employee in Hardin, Montana. The circumstances surrounding the death of Monte Dyckman have been before this Court on several occasions. Companion cases include Statev. Holliday (1979), Mont

# . , 598 P.2d 1132, 36 St-Rep.1535; Statev. Radi (1978), Mont

# .

, 578 P.2d 1169, 35 St.Rep. 489;and State

### v. Fitzpatrick (19771, Mont

# . , 569 P.2d 383, 34 St.Rep. 736. About April 5, 1975,Bad Horse met in a Billings bar with Travis Holliday,Edwin Bushman, Gary Radi and Bernard Fitzpatrick, where the group planned to rob the Safeway store in Hardin,Montana. Bad Horse told the others that bank deposits for the Safeway store were made daily at approximately 10:OO p.m. A roughmap of Hardin

was drawn on a napkin, and Bad Horse pointed out on themap the depositorybank for the Safeway store. Later all fivemen met again at Radi's house. Fitzpatrick and Radi left for Hardin in Radi's car,while Bad Horse, Holliday, Bushman and two young girlswent in another car. When the group met again in Hardin, they toured that city to survey the area. Bad Horse and Bushman pointed out the bank and the Safeway store to the others. Bushman produced some rope for use in the robbery, and Bad Horsewent into a Hardin bar and borrowed a knife to cut the rope in pieces. At approximately 10:OO p.m., the closing time of the Safeway store, the fivemen parked near the store. Radi and

### Fitzpatrickwere in one car,while Bad Horse, Holliday and Bushmanwere in another. Shortly after 10:OO p.m., aman came out of the Safeway store,got intohis vehicle and drove away. Fitzpatrick and Radi followedhim, telling their companions that if itdeveloped that theywere following the wrong employee, they would circle back to the drive-in bank to intercept the deposit there. Later Dyckman came out of the Safeway store. Dyckman's vehicle was followed by the vehicle inwhich Bad Horse, Holliday and Bushman were riding. When Dyckman turned into the drive-in bank, Bad Horse, Holliday and Bushman abandoned the pursuit knowing that Fitzpatrick and Radi would be therewaiting for Dyckman. Later Bad Horse, Holliday and Bushmanpicked up the twoyoung gir1.sand returned to Billings, arriving at Radi's house at approximately 2:00 a.m., April 6, 1975. Radi showed up shortly thereafter. He told them that he and Fitzpatrick had followed the firstvehiclewithout successbut had returned to the drivein bank in time to intercept Dyckmanwith the Safeway deposit. Bad Horse then claimed to Radi that he was entitled to at least half of theproceeds of the robbery since he had set up the job. Bad Horse left angrily after being told the robbery produced little or nomoney. On April 6, 1975,Dyckmanwas discovered dead in his own
car near the Toluca interchange in Big Horn County. His hands were tied behind his back, and he had been shot twice in the head. The Toluca interchange is immediately off Interstate 90between Hardin and 

### Billings, some 12miles west of Hardin. This is the second time the Bad Horse case has been before this Court. Hewas originally tried jointly with Fitzpatrick, Radi and Hoilit3ay on charges of deliberate homicide, aggravated, kidnapping,and robbery. Bushman was granted immunity from prosecution in exchange for his testimony at the trials of the other four defendants. -3-In the first trial,held in October 1975,Bad Horse was found not guilty of deliberate homicide and not guilty of aggravated kidnapping,but guilty of robbery. On appeal, this Court reversed and remanded his conviction for robbery because of errors in the instructions. Statev. Fitzpatrick



### -Mont. 

## , 569 P.2d 383, 34 St.Rep. 736. Upon remand, Bad Horse was retried only on the robbery charge and was again convicted. Bad Horse raises the following issueson appeal:

(1) Retrial on the charge of robbery is prohibited because of the double jeopardy clause and the doctrine of collateral estoppel. (2) The District Court h.adno jurisdiction because the crime occurred within "IndianCountry". (3) The District Court erred in determining that witness Raleigh Kra.ft,Jr., was not an acco~nplice. i4) The testimony of Edwin Bushman, an accomplice,was not sufficiently corroboratedby independent evidence. (5) Gary Radi, a former codefendant who had been in acquittedla separate trial, should not have been allowed to testify at Bad Horse's trial. (6) Bad Horse's second robbery conviction is not supportedby substantial evidence. (7) The instructions to the jury are in error under Sandstromv. Montana (1979), U.S. 

### , 99 S.Ct. 2450, 61L.Ed.2d 39. IssueNo. --1. Double Jeopardy -- and CollateralEstoppel. Bad Horse's contentions under this issue are that his conviction of guilty of the crime of robbery in the first trial, with an acquittal of the charge of deliberate homicide, where the second charge necessarily incorporates the first charge, !-s legally inconsistent and unsupportable; that-thelaw of the case on this point was established in the first appeal of his conviction; and that the State is collaterally estopped from retrying the robbery conviction. -4-A portion, but not all, of this issuewas answered in Statev. Fitzpatrick, supra, 569 P.2d at 395. Bad Horse claims that in Fitzpatrick,this Court held that "[tlhese verdicts are not merely inconsistent, they are legally unsupportable",and thereby the law of the casewas established as to inconsistency. On the other hand, the State claims that because this Court did not order dismissal of the robbery charge in Fitzpatrick,but instead remanded the robbery charge for retrial against Bad Horse that the law of the

case is on the side of the State. We therefore must examine Fitzpatrick to clarifyprecisely what this Court did hold in that

case.Theproblem addressed by thisCourt in Fitzpatrick, as it relates to Bad Horse,was the incongruityof instruction no. 28 used by the trial courtwhen connected with instructionno. 36. Instructionno. 28 told the jury in effect that if a conspiracy to commit a crime existed and a death happened in the furtherance of the conspiracy,all the conspirators were alike guilty of the homicide. 

### In conflict with that instruction,no. 36 told the jury that itmight find any 

### - one of four verdicts, including one of guilty of robbery. The jury in the first trial was obviously confused,because it sent out to the court a question asking 

# ".



# .. If we find one defendant guilty of robbery does Inst. No. 28 require [a] guilty verdict on the two remaining counts." Instead of clarifying for the jury, the court responded that instruction no. 36,which permitted any one of four verdicts, answered the question. Thus it appears that in the first trial, Bad Horse having been found guilty of the crime of robbery where his participation

was that of a conspirator,should also have been found guilty of the crime of deliberate homicide,because the death of Monte Dyckman arose in furtherance of the conspiracy to commit robbery.Fortunately for the defendant, the jury acquitted him on the charge of deliberate homicide. The State is now powerless to try him again on that chargebecause of the double jeopardy rule. That resultmay be laid, as itwere, to the fortunes of

war. That fortuitous resulthowever, cannot be bootstrapped to deliver Bad Horse from his conviction of the crime of robbery forwhich he has been convicted now by two juries. The remand of Bad Horse's robbery conviction for retrial under Fitzpatrick, is

a further by-product of the strategic error made by the State in the first Fitzpatrick trial, in joining at one trial four defendants wirh diverse roles in the incidents leading up to Monte Dyckman's death. In clarification, therefore, this Court did not establish

as the law of the case in Fitzpatrick that the verdicts relating to Bad Horsewere so inconsistent that he could never again be tried for the crime of robbery. Inpoint of fact, this Court did remand for retrial on that charge, His conviction of robbery could have been sustainedby this Court after the first trial, except that his convictionwas blemished by the errors that occurred to him and others joined as defendants in the trial. This Court did not find or believe that because he was not guilty under the jury verdict of deliberate homicide that he

was likewise guiltless of the underlying charge of robbery. Rather,

our remand was founded on the right of Bad Horse to receive

a trial with a properly instructed jury. - See, Section 46-16-401(5), MCA; Statev. Jackson (1930), 88Mont. 420, 435, 293 P. 309. With that clarification,we find Bad Horse to be in the same situation with respect to his retrial as any other criminal defendant whose conviction is reversed and remanded for retrial. A defendant is not subjected to double jeopardyby virtue of his retrial after reversal of his judgment of conviction. Statev. Ellsworth

(1962), 141Mont. 78, 81, 375 P.2d 316, 318. See also Statev. Sanders (1973), 163 Mont. 209, 216, 516 P.2d 372, 376. -6-Appellate courts are not inclined to reverse convictions in criminal cases ordinarily merely upon the ground of inconsistency of verdicts reached by a jury as to a defendant who has been charged in several counts. Dunn

### v. United States (1932), 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed.2d 356; Statev. Gone (1978), -Mont

# . , 587 P.2d 1291, 1296, 35 St.Rep. 1540, 1546. At the core of such reaction is the reverence that courts feel 

### for the part that juriesplay in the factfinding process in criminal trials, even though allowing inconsistentverdicts in criminal trials run$ the risk that an occasional convictionmay have been the result of compromise. United Statesv. Carbone (1967), 378 F.2d 420, 423. We determine therefore that the defendanthas not been subjected to double jeopardy. 

### In likemanner, his contention that collateral estoppel is applicable to void his conviction is also rejected by 

### us. "Collateralestoppel",as explained inAshe 

### v. Swenson (1970),397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469, 475,onwhich Bad Horse relies,

# ".



# . .means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the sameparties in any future lawsuit." It was determined in Benton v. Maryland (1969),395 U.S. 784, 89 S.Ct. 2056, 23 L.Td.2d 707, that collateral estoppel is a part of the FifthAmendment's guarantee against double jeopardy. We are cautioned by the United States Supreme Court that the inquiry as to whether collateralestoppel applies "mustbe set in apractical frame and viewed with an eye to all the circumstances of the proceedings." Sealfon

### v. United States (1948),332 U.S. 575, 579, 68S.Ct. 237, 240, 92L.Ed.2d 180;Ashe 

### v. Swenson, supra, 397 U.S. at 444, 90 S.Ct. at 1194,25 L.Ed.2d at 476. -7-It is again Bad Horse's position under his claim of collateral estoppel that the ultimate fact to be determined against him iswhether he was guilty of the crime of robbery; that his acquittal of deliberate homicide also constituted

an acquittal of the underlying felony,robbery; that therefore the underlying ultimate fact has been decided in his favor and he cannot again be retried. Were we to accede to Bad Horse's collateral estoppel claim,we had then pulled the teeth from our holding foregoing that verdicts can be inconsistent and yet binding upon defendants. His claim however failson two grounds: (1) his issue of ultimate fact had not been determined by a valid and final judgment in the first trial; and, (2)our inquiry, "set in a practical frame and viewed with an eye to all circumstancesof the proceedings", does not disclose that collateral estoppel is applicable here. Sinceverdicts may be inconsistent and yet legally supportable, 

### his conviction of robbery in the first trialwas not a final judgment, since defendant secured a reversal and remand from this Court; in facthis conviction for robbery will not be final until this Court's decision in this appeal. When we examine the record of theprior proceedings, and take into account the pleadings, evidence, charge and other relevant matters in the prior proceedings,we have no trouble in concluding that the first jury, acting rationally,could have grounded its verdict of guilty of robbery on issues other than those required for deliberate homicide. As we said, the retrialwas ordered by us in Fitzpatrick,because the first trial court erroneously instructed its jury that Bad Horse could be acquitted of deliberate homicide

even though he was guilty of the underlying felony,robbery. In that set of circumstances, collateral estoppel does not apply. We note that the United States Supreme Court said inAshe

v. Swenson, supra, that the defendant accused of participating



### -8-in a robberywith others was acquitted for lack of identification in his first trial. The State sought to retry him as to another victim of the same crime. Itwas to this fact situation that the United States Supreme Court found it proper to apply the doctrine of collateral estoppel as a species of the Fifth Amendment guarantee against double jeopardy. The holding inAshe v. Swenson, supra, is simply inapplicable to this case. IssueNo. 2. District Court Jurisdiction. 

## -- Bad Horse's claim under this issue takes two tacks: (1) jurisdiction in this case failsbecause the crime occurred in "Indian Country" and, (2)the State failed to prove the venue of the crime. This jurisdictional objection is raised for the first time on appeal, but that is acceptable. Statev. Akers (193d),106Mont. 43, 74 P.2d 1138. Propervenue was proved at the trial. There is no evidence whatever that the Dyckman killing occurred upon Indian lands. The undisputed evidence was that the Dyckman robbery occurred in Hardin, continued onto Interstate 90,a federal highway, and thence to the Toluca interchange off that highway. The District Court could take judicial notice that the City of Hardin and the federal highway are all outside the exterior boundaries of the Crow Indian Reservation, but well within both Big Horn County and the State of Montana. State

### v. Campbell (1972), 160Mont. 111, 118, 500 P.2d 801, 805. Moreover, Hardin is not "Indian Country" within the definition of 18 U.S.C. 1151. We said so in the Matter of Little Light 573, 1269, (19791,

### -Mont

# . , 598 P.2d 572, /36 St.RepJ 1271. In Little Light,we pointed to the decision of the United States District Court for Montana in Hawkins v. Crist (January27, 1978), CV-76-99-BLG. That decision held that the agreement between the



## -9-Crow Tribe and the United States ratified by Act of Congress of April 27, 1904, 33 Stat. 352,wherein the tribe agreed to "cede, grant and relinquish" the tract of land comprising Hardin, disestablished this tract as "Indian Country" and thereby rendered it subject to state criminal jurisdiction. Bad Horse contends that the landholdinqs between Indians and non-Indians in and around the City of Hardin make a "checkerboard" pattern identical to that in Seymour

v. Superintendent (1962), 368 U.S. 351, 82 S.Ct. 424, 7 L.Ed.2d 346. In Seymour, it was held that such checkerboarded areas are nevertheless "IndianCountry". However, the federal District Court, in Hawkins v. Crist, supra,distinguished Seymour,and found the controlling case to be Rosebud Sioux Tribe v. Kneip (1977), 430 U.S. 584, 97 S.Ct. 1361, 51 L.Ed.2d 660. In Rosebud Sioux, the United States Supreme Court distinguished Seymour,holding that the Rosebud Sioux statutes evidence a Congressional intent to "disestablish"the land in question

as IndianCountry and permit the exercise of State jurisdiction. We agreewith the author of Hawkins v. Crist, supra, that thiswas the Congressional intent when Hardin and its environs were disestablished. IssueNo. --3. Uncorroborated Testimony -- of - an ~ccomplice. Here Bad Horse claims thatwitness Raleigh Kraft, Jr., was an accomplice, and as such his testimony could not convict Bad Horse or support his conviction unless corroborated by independent evidence. Section 46-16-213,MCA. The evidence indicates that Kraft had previously told Edwin Bushman that he was going to rob the Safeway store himself or get someone else to help him. Also, witness Marla Fitzler testified that she had heard Kraft discuss robbing the Safeway storewith Bushman on several occasions. -10-Based on this evidence,Bad Horse contends that Kraft was an accomplicewith all the disabilities attaching to his testimony flowing from that relationship. The statementshowever, were made eightmonths to one year prior to the robbery. No connectionwas ever established in the evidence between those statements and the robbery, other than that they may have planted an idea in someone else's mind. 

### An accomplice is one who knowingly,voluntarily and with common intent with a principal offender unites in the commission of a crime. State v. Kerrigan (1930),87 Mont. 396, 401, 287 P. 942. In this case, Kraft is not an accomplice as defined in section 45-2-302,MCA. He did not solicit,advise or encourage anyone in the planning or commission of the Dyckman robbery. He did not ever agree to aid or attempt to aid anyone in such planning or commission. His statementswere made at a remote time and there is no concrete connection between those statements and the Dyckman robbery. Since Kraft was not an accomplice, his testimony standson the same basis as any other witness. He need not be corroborated, and his credibility is for the jury to decide. IssueNo. 

### -- 4. Sufficiency 

### -- of the Testimony of -- Edwin Bushman. Here Bad Horse claims that the testimony of Edwin Bushman,

an accomplice, was not sufficiently corroboratedby independent evidence. Bad Horse's contentions on this point are that Bushman was an accomplice as a matter of law; that his testimonywas not sufficiently corroborated; that the testimony of the other witnesses besides Bushmanmerely established that Bad Horse went to Hardin, drove around drinking beer with his companions, and returned to Billings that same night; that the evidence doesnot tend to connect Bad Horsewith the commission of the Dyckman robbery but only mere opportunity to commit that robbery. He also contends that the additional testimony points equally well toward innocent conduct as well as guilty conduct and thus does not qualify as corroboration. See State

v. Keckonen (1938), 107Mont. 253, 261, 84 P.2d 341, 346. This contention of Bad Horse borders on the frivolous. Bushman's testimony is sufficiently corroboratedby that of Ira Lee Finch,Cindy Morgan, Carol Branch, Ronald Potts,Lyle Doane, and Bad Horse himself. The most damaging corroborative testimony is that of Raleigh Kraft, Jr. who testified that Bad Horse told him that his friendswere planning to rob the Safeway store, and onApril 20, 1975,admitted to Kraft his participation in the robbery. The corroborative testimony iswell within the tests laid down in Statev. Cobb (19261, 76 Mont. 89, 245 

### P. 265. IssueNo. 5. Radi's Testimony. 

### -- Bad Horse here claims that itwas reversible error to allow the prosecution to call Gary Radi as a witness over Bad Horse's objections. He contends that Radi's testimonywas irrelevant and its only effect was to prejudice Bad Horse by casting suspicionon him. Radi had been acquitted of all charges against him prior to his testimony at the Bad Horse trial. However,his testimony

was relevantbecause he allegedlywas one of the two principals in the Dyckman robbery. The State's case rested upon proving that Bad Horse conspiredwith, aided and abetted both Radi and Fitzpatrick in their carrying out of the robbery. The State expected Radi to deny any participation in the robbery, but that denialprovided the foundation for the admission of Radi's prior and inconsistent statements where Radi had admitted his participation in the crime.As 

### amatter of fact, Radi's testimonymay be construed to help Bad Horse asmuch as it did the State. In testifying, Radi denied any participation in the crime and testified he firstmet Bad Horse athis house on the evening of April 5, 1975. This conflictswith the evidence of others tending to establish that Bad Horse, Radi and the othershad planned the robbery. The testimony of Radi was therefore relevant and clearly admissible. See, Statev. Bentley (1970), 155Mont. 383, 472 ~.2d 864, 875; Statev. Hay (1948), 120Mont. 573, 194 P.2d 232, 237. IssueNo. 

### -- 6. Sufficiency -- of - the Evidence. This issue ismeritless in light of the considerable testimony against Bad Horse in this case. The evidence is viewed in a lightmost favorable to the State. State v. Pascgo (1977), Mont

# . , 566 P.2d 802, 805, 34 St.Rep. 657. If there is sufficient credible evidence, the verdict will stand. Statev. Swazio (19771, Mont

# . , 568 P.2d 124, 126, 34 St.Rep. 676. As indicated in the discussion of issue no. 4 above, Bushman's testimonywas sufficiently corroboratedby independent evidence. His testimony and that of the otherwitnesses sufficiently established that Bad Horse acted "with a purpose to promote or facilitate" the commission of the crime. Section 45-2-302, MCA. IssueNo. 

### -- 7. Effect of 

### -- the Sandstrom Decision. This issue arose after the briefs in this case had been filed,but before the matter was set down for oral argument. When this Court received the decision from the United States SupremeCourt in Sandstromv. Montana (1979), U.S. I 99 S.Ct. 2450, 61L.Ed.2d 39,we requested argument in this case

as to whether therewas the possibility of error in light of the Sandstromdecision. -13-In Sandstrom, the United States Supreme Court found the trial court's instruction "[tlhe law presumes that a person intends the ordinary consequences of his voluntary acts"unconstitutional. U.S. at 

## , 99 S.Ct. at 2453, 61L.Ed.2d

The instruction given in the second Bad 

### -Horse trial,which he claims has a Sandstrom effect, is as follows: "Youare instructed that 'knowingly',or 'purposely'may be proved by circumstantial evidence. It rarely can be established by any othermeans. While witnesses may see and hear and thus be able to give direct evidence of what a defendant does or fails to do, there can be no eye witness account of the stateofmind with which the acts were done or omitted. But what a defendant does or fails to do may indicate that he 'knowingly' or 'purposely' committed the offense or offenses charged. "It is reasonable to infer that a person ordinarily intends the natural and probable consequencesof acts knowingly done, knowingly omitted,purposely done, or purposely omitted. So unless the contrary appears from the evidence, the jury may draw the inference that the defendant intended all of the consequenceswhich one standing in like circumstances and possessing like knowledge should reasonably have expected to result from any actknowingly done, knowingly omitted, purposely done, or purposely omitted. "Indetermining the issue as to 'Knowingly' or 'purposely'the jury is entitled to consider any statementsmade and acts done or omitted by the defendant,and all facts and circumstances in evidence whichmay aid in the determination of the state of mind of the defendant." It is obvious that the foregoing instruction is not mandatory as to intent, aswas the case in Sandstrom,and that the instruction does not contravene the holding of In Re Winship

(1970),397U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368. In other words,we do not determine from the foregoing instruction that the District Court has allocated a part of the burden of proof on the elements of the crime to the defendant by requiring him to come forwardwith evidence. We discussed this matter to some extentin Statev. Coleman (Decided December 19, 1979), Mont

# .

-I 

### -P.2d 

## , 36 St.Rep. 2237. In the Bad Horse instruction, the jury was not given amandatory presumption,

as occurred in the Sandstromcase; rather itwas told that it could reasonably infer intent on the part of Bad Horse for all the consequences which one acting in a like position would reasonably have expected. Nothing in the instruction lessens the duty of the State to prove every element of the crime charged beyond 

### a reasonable doubt,nor does it affect the defendant's presumption of innocencewhich attended him throughout the trial. As the instruction stated, and aswe discussed in Statev. Coleman, supra, since intent is a matter for circumstantial evidence usually, inferencemay be the onlymethod by which a jury can find intent. We also said in Statev. Coleman, supra: "Theholding in Sandstrom isnot to be construed tomean thatwhenever a trial court instructs the jury that itmay resort to inference to determine subjectivematters such as knowledge or purpose, that thereby the Statehas been relieved of its burden of proof. The United States Supreme Court did not intend such limitation, and we do not find any such intention in the language of Sandstrom, or its related cases. The jurywas not allowed to rest solely upon the permitted inference in the Coleman case,but under the instructionhad to require such an inference tomeet the standard as beyond a reasonable doubt." 36 St.Rep. at 2241. We therefore determine that the instruction given in Bad Horse passes muster under the Sandstrom test. CONCLUSION The judgment of conviction against the defendant Paul Bad Horse, 

### Jr. for the crime of robbery is affirmed.We Concur:

1 Chief Justice