No. 80-285 INTHE SUPREME COURT OF THE STATE OF MONTANA 1981

THE STATE OF MONTANA, Plaintiff and Respondent,

VS

# . JERRY PAUL FORSYTH, Defendant and Appellant.

Appeal from: DistrictCourt of the Eleventh Judicial District, In and for the County of Flathead Honorable Robert C. Sykes, Judge presiding. Counsel of Record: For Appellant: Keller and Gilmer, Kalispell, Montana Robert Keller argued, Kalispell, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Chris Tweeten argued, Assistant Attorney General,

Helena, Montana Ted 0. Lympus argued, County Attorney, Kalispell, Montana

Submitted: October 21, 1981 Decided: March 19, 1982 Filed:

## MAR1 9

## 1982Mr. Justice John C. Sheehy delivered the Opinion of the Court.
Jerry Paul Forsyth appeals from a judgment of conviction of deliberate homicide of his wife, Karen Forsyth, following

a jury trial in the District Court, Eleventh Judicial District, Flathead County. Forsyth received a sentence of imprisonment of 70 years and was designated a dangerous offender. In this bizarre case, officers of the Kalispell police department investigated a shooting report at the Skyline Bowl in Kalispell about 2:30 a.m. on December 12, 1979. The investigating officers were met at the front door of the bowling alley by Douglas Richards. Inside, the officers found Jerry Paul Forsyth apparently semi-conscious, lying on the floor. Douglas Richards brought the attention of the officers to the counter of the bowling alley,where they found the body of defendant'swife, Karen Forsyth,dead of a single gunshot wound to the head. A hand pistol, which had not been fired,was lying near the victim's feet. Richards and Forsythwere placed in separate squad

cars. The officers searched the building and found that no

one else was present. Forsyth was taken to a hospital complaining of a head injury. He was found to be suffering from a superficial bruise and laceration on the back of his head but exhibited no serious symptoms. The nextmorning two officers questioned Jerry Paul Forsyth about the shooting incident. He stated that he and his wife were closing the bowling alley for the night. As he started to lock the front door, the door was jerked from his hand from the outside. He turned to warn his wife and was struck frombehind and knocked unconscious. He testified to the same story at trial. Douglas Richards had been questioned in the squad car at the scene of the crime. He stated that he had been inthe basement of the bowling alley and had heard a "popping" sound which he thought tobe a boiler noise. Later, when he

came upstairs, he found Karen Forsyth dead and the defendant, Jerry Paul Forsyth unconscious. Richards then called the police. On January 25, 1980, Douglas Richards was arrested on a charge of sexual intercourse without consent involving a girlunder the age of 16. Following his arrest, hewas further interrogated regarding themurder of Karen Forsyth. When Richards was granted immunity inexchange for his cooperation respecting Karen's death, Richards recanted his prior story and implicated the defendant Jerry Paul Forsyth inthemurder of Karen Forsyth. Atthe trialof Forsyth, Richards testified under a grant of immunity from prosecution for the Forsyth murder, the statutory rape charge forwhich he had been arrested, and an additional charge of possession of dangerous drugs. Inhis testimony he stated thathe had begun working for the defendant JerryPaul Forsyth at Skyline Bowl inthe summer of 1979 and thathe and Forsyth had become well acquainted. Forsyth complained toRichards thathe no longer loved his wife Karen, but could not seek a divorce because an interest inthe bowling alleywas inher name. Forsyth was having an affairwith a woman named Debby Neff, and he wanted tomove inwith her by Christmas. Because of hiswife's interest in the family property, Forsyth told Richards thathe wanted tokill hiswife and asked foradvice on how todo it. Richards, who appears tohave been a most obliging person inthese respects, suggested severalways, including the stagingof a robbery. The discussions on ways tokillKaren Forsyth extended over severalmonths. According toRichards, hetold the defendant it would take $40,000 to $50,000 for Richards tokillher himself. In late November, they decided totry an overdose of barbiturates on Karen Forsyth. Richards purchased the drugs, Seconal and phenobarbitol, from a pharmacist, using money furnished by the defendant. Forsyth latertold Richards that the attempt failedbecause the drugs were not powerful enough. Thereupon Richards suggested settingup a fake robbery inwhich Karen Forsyth would be killed. Forsyth procured a .22 caliber snub-nosed revolver. Forsyth and Richards chose

a locker inthebowling alleybasement locker room inwhich tohide the gun and the expected fruitsof the robbery. For thispurpose, Forsyth filledoutthe locker key envelope for locker no. 191inthe name of Greg Phillips, a bowler who had bowled on a team atSkyline Bowl. Richards placed a bowling bag and a pair of bowling shoes inthe locker in order toavoid suspicion. On December 9, 1979, he placed the gun inthe locker. When Richards arrived atwork the next night, December 10, the defendant told him the crime would be committed that night. Richards took the gun from the locker, wrapped it ina rag, and gave it toForsyth. Richards

was an alcoholic and he drank steadily throughout the night from a bottle hidden inthe basement area of thebowling alley. Although thebowling alley usually closed earlier, Forsyth had been remaining until the adjoining bar closed at 2:00 a.m. for several days, purportedly to stopvandalism of bowling alleyequipment. This routine served as a pretext toget Karen Forsyth toremain inthebowling alley so the "robbery" could take place. On the fateful night, the bartenders and last patrons left several minutes after 2:00

a.m. Richards and Forsyth stood atthe frontwindow watching themleave. Richards' girlfriend made a brief appearance about this time. Richards gave her a key and told her towait forhim athis apartment. Richards then went tothe basement locker room, opened the locker and prepared it toreceive the proceeds of the "robbery" and the gun. He returned to the upstairs area, set several alarm trip-wires, and turned off the lights. Hewent downstairs tohide his bottle and gethis coat. He then heard a single gunshot and returned upstairs tothebowling alleywhere he found the defendant putting the gun down and removing his gloves. Karen Forsyth had fallentoa position leaning against the counter near the cash register. They waited until her body showed no signs of life. As part of the "robbery," Forsyth inserted a pencil intothe barrel of a .9 millimeterpistol and, holding the pistol by the pencil, got Karen Forsyth's fingerprints on the pistol and placed it near body. Richards donned the pair of gloves, took the pistol thatForsyth had used tokill Karen Forsyth and struck Forsyth intheback of the head. Richards pushed Forsyth tothe floor and then collected themoney from the counter tocomplete the "robbery." He took the money, the gloves, and the gun downstairs, and locked them in locker

no. 191. Thereupon he called the telephone operator to report the "robbery" tothe police. There areadditional factswhich wewilldiscuss later inthisopinion inconnection with the issue of corroboration of an accomplice. The jury returned a verdict of guilty and the District Court imposed thejudgment and sentence from which this appeal arises. There isan overriding issue on which we must reverse the judgment and remand this cause tothe District Court fora new trial. That issue involves the failure of the District Court,probably accidental, to define the elements of the crime of deliberate homicide in the instructions given to the jury

# . The State concedes error in that the jurywas not instructed as to the statutory elements of the crime. It also concedes that under State v. Lundblade (1981), Mont. - 

### , 625 P.2d 545, 38 St.Rep. 441, it is clear that the trial court is obligated to give such an instruction even if one is not offered by the defense. The State, however, asks us to overlook the instructional error on the ground that itwas harmless. The State contends that in this case both sides proceeded

on the premise that a deliberate homicide had been committed, and that the essential factquestion for the jury to decide

was the identity of the killer. All the jury had to decide, contends the State, iswhether the crime was committed by the defendant as the State's evidence showed, or by an unknown assailant. Lundblade stands for the proposition that "ata minimum" the District Court must explain or define the crime for the jury. Lundblade, 625 P.2d at 548, 38 St.Rep. at 443. See Statev. Campbell (1972), 160Mont. 111, 114, 500 P.2d 801, 803. We must agree with the rationale of the court in Williams v. United States (1942),131F.2d 21, 22, where the court said: "Theaverage man has some idea of what murder is, but we would not expect a judge to say, Jurors, you know whatmurder is, go and decide if this man is guilty of it." In view of the fact that every material fact necessary to constitute a crime must be proved beyond a reasonable doubt,we cannot ascribe the failure to define the elementsof the crime to the jury as harmless error. Accordingly, our disposition of this case turns upon the samepoint as the dispositionby us in Lundblade. We

reverse the conviction and remand the cause for a new trial. We decline to reverse and dismiss, however, because there is evidence in the record to support the conviction. Lundblade, supra, 625 P.2d at 549 and cases thereunder. Because this case must be retried,we will discuss other issues raised by the appellant Forsyth for the purpose of guidance to the trial court. Forsyth contends that therewas insufficient corroborative evidence in this case to support the testimony of Douglas Richards,who except for the immunity given to him,was otherwise accountable for this crime. In Statev. Kemp (1979), Mont. 

### , 597 P.2d 96, 36 St.Rep. 1215,we discussed the sufficiency of evidence necessary to corroborate accomplice testimony. First of all, the sufficiency of such evidence is a question of law. Kemp, 597 P.2d at 99 and cases cited thereunder. To be sufficient, itmust show more than that a crimewas in fact committed or the circumstances of its commission. Itmust raise more than the suspicion of the defendant's involvement

or opportunity to commit the crime charged. But the evidence need not be sufficientby itself to support the defendant's conviction or even to make out a prima facie case against him. Itmay be circumstantial and can come from the defendant

or his witnesses. Kemp, 597 P.2d at 99. Under section 46- 16-213,MCA, itmust be evidencewhich 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.Keeping inmind these principles,we examine the corroborative evidence that supportsDouglas Richards' testimony. The Gun -- Richards testified that, after the killing, he placed the gun in locker no. 191 in the basement of the bowling alley along with the money and gloves that had been used. He testified that he burned the gloves in the boiler firebox, and melted the gun downwith an arc-welder kept in the bowling alley for equipment repairs. Themelting of the gun generated smoke which was noticeable to bowling alley patrons. Witness Lynn Norby went bowling at the Skyline Bowl on January 5, 1980. While there, she said she saw the bowling alley fillwith smoke down on the lanes. Shewent to the desk where Forsythwas standing because she thought the place was on fire and talked to him. He reassured her, telling her to go ahead and bowl because they were doing

somewelding downstairs. The Money Richards had testified that themoney taken in the "robbery"had been deposited by him in locker no. 191. He testified that ten days later he removed the money from the locker and hid it in two other places in the basement, behind a floor joist, and in an oil reservoir behind the pin polishing machine. He spent the largedenomination bills, which had been hidden behind the floor joist,drinking and gambling. The group of one dollar bills which had been hidden in the oil reservoir became saturated with oil. Richards testified that he gave these bills to Forsyth, who told Richards that to avoid suspicion,he would send them to the bank with the bowling alley receiptswith acover story that his partner Jon Ball had spilled furniture polish on them. Witness Jon Ball testified that he remembered the one dollar bills whichwere oily, and that Forsyth had told him that furniture polish had been spilled on them. Defendant's Statements When Richardswas arrested on the statutory rape charge, his first call was to Forsyth. Forsythwent to a Kalispell attorney for the purpose of learning what to do about bailing Richards out. Richards testified that when Forsyth failed to bail him out in accordancewith their previous agreement, he decided to tell the truth about Karen Forsyth's murder and make the best deal he could for himself. Both parents of Douglas Richards testified regarding statements made by defendant themorning following Richards' arrest. William Richards testified that he received a telephone call from Debby Neff, the defendant's girlfriend, asking if Forsyth could come to talk to them. When he arrived, Forsyth told the Richards' that Douglas Richards had been arrested for statutory rape and that Forsyth could provide $1,000 of the $2,500 necessary for bail. Forsyth then said, "IfDoug talks,wewill both be in a lotmore trouble than he is in now." Doris Richards testified essentially the same but in

more detail. She stated that Forsythwas very nervous and very concerned about getting Douglas outwhen he arrived thatmorning. She testified that the defendantkept saying, "Wehave got to get him out of there,we have got to get him out of there because if he talkswe are both going to be in

a lotmore trouble than he is in now." Doris Richards also testified that Forsyth stated, "Iwish Doug when he gets outhe would get completely out of the country." Therewas other evidence. A handwriting expert testified that the printed name of Greg Phillips on the locker envelope,when compared to an exemplar taken from Forsyth, could have been that of Forsyth. Also Forsyth had a poor relationship with his wife. Shewas 5'4 1/2" tall and weighed 280 pounds. She had been emotionally disturbed and suicidal over a period of yearsprior to her death. She was hostile to Debby Neff and had threatened her and her children. Witness Gary Red Elk testified that Forsyth once told him with respect to Karen's suicide attempts: "If she's going to do it Iwish shewould do it and get it over with." Forsyth also told Red Elk that divorce was not acceptable because of Karen's interest in the house, the bowling alley, and several valuable purebred show dogs that they owned. On the morning of the killing, the officers requested of Forsythhis consent to search the bowling alley. Forsyth gave consent on the condition the officers not search the locker areawhere, according to Richards, the evidence of the murder was hidden. Also on the morning following the killing, the investigating officer began to suspect the defendantbecause he seemed emotionally unaffected by his wife's death. In sum, and taken individually, these items of evidence tend to connect Forsythwith the crime, and to corroborate the testimony of Richards. Forsyth quarrels on appealwith the effect of this evidence, and particularly with the statements related by the parents of Douglas ~ichards. However, his quarrel goes to the weight of the evidence and not to its admissibility. Forsyth also contends that the court erred in its instruction to the jury on the credibility of an immunized witness.The court instructed the jury with respect to the testimony of Richards as follows: "The testimony of DouglasM. Richards ought to be viewed with distrustbecause he is an accomplice and inweighing his testimony,you are to further consider that he has been granted immunity from prosecution." The court refused Forsyth's offered instructionwhich would have told the jury: "Thetestimony of DouglasM. Richards ought to be viewed with distrust, and because he has given evidence in exchange for immunity from prosecution, evidence given by him and other evidence based upon his testimony isparticularly suspect." The last portion of Forsyth's offered instruction is taken from language found in our opinion of State 

### v. Kemp, supra, 597 P.2d at 98. Under section 46-16-201,MCA, the rules of evidence in civil actions are applicable to criminal actions,unless otherwise provided in the criminal code. Under section 26- 1-303,MCA, relating to instructions to the jury on how to evaluate evidence, it is required that the jury be instructed by the courton all proper occasions "that the testimony of an accomplice ought to be viewed with distrust." find error in the instruction given by the court, which is not substantially different from thatproposed by Forsyth, although counsel contends there is substantial difference. The statutory obligation of the DistrictCourt in this causewas to inform the jury that Richards' testimony ought to be viewed with distrust. A simple statement to that effectwould probably best serve the statutory requirement. In retrial,wewould suggest the simple instruction that "thetestimony of a person accountable for the same crime ought to be viewed with distrust." Any further embellishmentmay tend to lead to confusion and obfuscation.Forsyth also contended that the testimony of the handwriting expert Jan Beck should be stricken from the record because his procedures in examining the envelopewere impermissibly suggestive. We regard the objectionsmade by Forsyth as merely going to the weight of the testimony, however, and

see no need to exclude that evidence in any further trial. Forsyth's counsel also contends he was not given enough time to argue his case to the jury at the conclusion of the

case. This can be avoided in a future trial by an express agreement arrived atbetween counsel and the courtbefore the argument begins as to the amount of time allotted for making oral argument. Sincewe are remanding for a new trial, the other issues raised by Forsyth are not germane for discussion. In accordancewith this opinion, therefore, the judgment of conviction for deliberatehomicide against the defendant is vacated, and this cause is remanded to the District Court for a new trial.

Justice

C/I We Concur:

Chief Justice



# -*&LC JUStices Mr. Justice Daniel J. Sheawill file a written dissent at a later time. -12-No. 80-285

STATE OF MONTANA, Plaintiff and Respondent, VS

# . JERRY PAUL FORSYTH

## , Defendant and Appellant.



## ------------------- DISSENT



### Mr, Justice Daniel J. Shea

Dated: March 29, 1982Mr. Justice Daniel J. Shea dissenting:

I do not believe the accomplice testimonywas sufficiently corroborated as a matter of law, and therefore, Iwould

reverse and order the case dismissed. The so-called corroborating evidence in this case falls far short of what the California court has declared to be insufficient as a matter of law. See Peoplev. DfAllesandro (1958),163 Cal.App.2d 559, 329 P.2d 616. On the other hand, Idisagree with the majority that the defendant is entitled to a new trial solely because the jury was not instructed on the elements of deliberate homicide. The elements of this offense were not at issue in this case, and the failure to instruct the jury on them was therefore harmless error. To prove deliberate homicide the Statemust prove that the person charged "purposelyor knowingly"killed another. The issue in this casewas not whether the defendant "purposely

or knowingly" killed his wife, and the issuewas notwhether the defendant had legal excuse or justification to kill his wife. The evidence was uncontroverted that someone "purposely

or knowingly"and without excuse or justification, killed Karen Forsyth. The question at trial was whether this defendant was in any way involved with that killing. The accomplice testified that he and the defendantplanned the murder and that defendant actually fired the fatal shot. The defendant, on the other hand, testified that he and his wife were closing the bowling alley for the night. As he started to lock the front door, the door was jerked from his hand. He turned to warn his wife, was struck from behind, and knocked unconscious. And, of course, he denied that he and Douglas Richards had planned a murder.At the conclusion of the trial, an instruction setting forth the elements of deliberate homicide was accepted by the trial court, but somehow this instructionwas lost in the paper shuffle and itwas not given to the jury. The defendant at no time brought this to the trial court's attention, and both the State and the defendant argued the

case to the jurywithout any need to refer to the elements of deliberatehomicide, for the elements of the crimewere not at issue. The issue was simply whether defendantkilled his wife.Several jury instructionswere given on the charge of deliberate homicide, although none of them set forth the elements. Instructionno. 8 stated that the defendantwas accused of deliberate homicide and that the State must prove every material fact. Instruction no. 9 stated that the State must prove that each element of the offense was done purposely

or knowingly. Instructionno. 10 told the jury that a material element of the offense is a voluntary act--that is, the act of killingmust have been voluntary. The term "voluntaryact"

was defined for the jury. Further, this casewas certainly not defended on the ground that the killingwas either an accident or that the defendant somehowdid not have the state of mind to commit the offense. Instruction no. 11 told the jury how the terms "purposelyor knowingly" are proved: "Purposeand knowledge aremanifested by the circumstances connectedwith the offense. Purpose and knowledgeneed not be proved by direct evidence, but may be inferred from acts, conduct and circumstances appearing in the evidence." This Court has long adhered to the rule that it will not review a case for a new trial where the trial court failed to instruct the jury on a matter of law unless that failure is prejudicial to substantial rights of the appellant. Section46-20-702, MCA; Statev. Heiser (1965), 146 Mont. 413, 419, 407 P.2d 370, 373; Statev. Bubnash (1963), 142Mont. 377, 393, 382 P.2d 830, 838. See alsoMcGuinn v. Crist (9thCir, 1981), 657 F.2d 1107. InMcGuinn the defense was alibi, and the defendant asserted thatbecause the trialcourt gave the jury the impermissible Sandstrom instruction (declaredunconstitutional inSandstrom v. Montana (1979), 442 U.S. 510, 99 S.Ct. 2450, 61L.Ed.2d 391, he was entitled to a new trial. That instruction stated that "the law presumes that a person intends the ordinary consequences of his voluntary acts." The Ninth Circuit, however, held this instruction tobe harmless

error because it could not have had an effecton the jury's decision. The victimhad been shot four timesinth~ head and had been very obviously murdered. The Court concluded that a reasonable juror could not have found beyond a reasonable doubt from the evidence that the defendant voluntarily committed the acts causing the victim's deathwithout also inferringbeyond

a reasonable doubt that he alsocommitted these actsknowingly

or purposely. The same thing occurred here; the only question attrialwas whether Jerry Forsyth killed hiswife. An instruction setting forththe elements of deliberatehomicide would not have affected a reasonable juror's deliberations. Although I have always been a stickler forproper jury instructions, I failto see a basis for reversal on thisground where the only issuebefore thejury was whether the defendant participated inkillinghis wife. The defendantwanted the jury tobelieve that someone came into the bowling alley and knocked him unconscious and then murdered hiswife. Douglas Richards had a different story, and thejury chose tobelieve it. Under these circumstances, the failure toinstruct the jury on the essential elements of the crime, where they were not inissue,was harmless error. -15-Although I believe the failure togive an elements instructionwas harmless errorhere, the fact that the trial court failed to follow the statutoryprocedure for settlement of jury instructions, cannot be ignored. Section 46-16-401(4) (d),MCA, requires a court reporter's presencewhen instructions

are settled; but a court reporter was not present when the instructionswere settled. Instructionswere settled late in the evening, but no court reporterwaspresent. It appears thatboth parties had offered instructions setting forththe elements of the offense, but there is no record of what happened tothose offered instructions. And, inattempting to settlea bystander's bill, the trialcourt could not recall the circumstances relating tothese offered instructions. He stated that "atthe time these discussions took place the court believes thatmidnight had passed and everyone was exhausted." The attorneys could not agree on what had happened tothe offered instructions. And, of course, because of the failure tofollow the statute, there isno record of what happened. Before the casewas argued tothejury the following morning, the parties went on record on the instructions that had been settled the night before, and the instructionsdid not inciude an elements instruction. Neither the trialcourt

nor the attorneys noticed thatan elements instruction had been omitted. Had there been a record of the settlingof the instructions the night before, theCourt would have been able, before reading the instructions tothe jury, todetermine that for some reason the elements instruction had been omitted. The Court could then have rectified the situationby ordering an elements instruction tobe prepared. The failure of the trial courtto follow the statute certainly contributed to the failure to discover the omission of the elements instruction,and the omission of that elements instruction has ultimately led to the reversal of the defendant's conviction. Section 46-16-401(4)(d) wasmeant to be followed. The trial courts should do so if theywant to avoid results such as have occurred here.