No. 14901 IN THE SUPREME COURT OF THE STATE OF P1lONTANA 1980

STATE OF MONTANA, Plaintiff and Respondent,

VS. FRANK ARTHUR SHURTLIFF, Defendant and Appellant.

Appeal from: District Court of the Fifth Judicial District, Honorable Frank 

### E. Blair, Judgepresiding. Counsel of Record: For Appellant: Jardine and McCarthy, Whitehall, Montana John Jardine argued,Whitehall, Montana For Respondent: Hon. Mike Greely,Attorney General,Helena, Montana Mike McGrath argued,Assistant Attorney General,

Helena, Montana Pat Flaherty, County Attorney, Boulder, Montana

Submitted: February 19, 1980 24?q Decided: - .

# . 'r%D Filed:

# APR 10 

### 19!Mr. JusticeDaniel J. Shea delivered the Opinion of the Court.

The defendant, Frank A. Shurtliff, appeals a Jefferson County District Court conviction for deliberatehomicide, robbery, and theft. The issues inthisappeal are whether defendant was denied a speedy trial and whether the State's

casewas sufficiently corroborated. We affirm. On February 22, 1978, the State filed an information against the defendant charging him with deliberatehomicide, robbery, and theft. The defendant's trialwas set forJune 5, 1978, butby subsequent order of the court the date was vacated and twicereset. On January 17, 1979, the court set the trialdate forMarch 5, 1979. Five days later the State filedan amended information which charged the defendant with deliberatehomicide, aggravated kidnapping, robbery, and theft. Trialwasheld on March 5, 1979, and thejury returned a guiltyverdict tothe charges of deliberate homicide, robbery, and felony theft. On April 6, 1979, the court fileditsjudgment and order sentencing the defendant toconcurrent terms of 75 years fordeliberatehomicide, 25 years forrobbery, and 10years for felony theft. The defendant filed a motion for a new trialorother relief, all of which was denied. Defendant appeals from theunderlying convictions and from the trialcourt's denial of hismotion for a new trial. The scene for these crimes started inButte at 2:00 a.m.

as the bars closed. The defendant and Yvonne Johnson met with the victim, Douglas Barber, outside the Keyboard Club. The victim suggested that they continue theirpartying and they then drove inthevictim's automobile toa nearby house where they partied forabout an hour. While atthehouse, defendant and witness Johnson discussed taking the victim's money. After leaving the house, the threepeople drove around town fora shorttimebefore departing forElk Park. -2-On theway to Elk Park, the defendant and Johnson revealed to Barber that they planned to take his car and money, and leave him to die in the cold. Barber became very frightened and begged the defendant not to let him die. He attempted to jump from the car, but the defendant grabbed him and prevented him from escaping. Then Barber began to cry and continued crying almost all the way to Elk Park. The defendant,who was driving Barber's car at the time, left the interstate and drove to a farm in the lowlands of Elk Park. He stopped the car. Barber handed his wallet to the defendant and stated, "Takemy car and my money. This is all Igot, but don't let me die." The defendant took Barber's wallet and told him to remove his clothes. The deceased refused, and the defendant and Johnson removed the deceased's coat and one boot. A struggle occurred inwhich the Barber was beaten across the face. Barber escaped from the carbut his glasses, coat and one boot remained inside. Barber,who was nearly sightless without his glasses, ranblindly across a snow-covered field. The defendant started the car and turned it around, and Johnson assumed the driver's position and drove away from Elk Park. Barber's body was recovered in Elk Park a littlemore than

one week later. He had frozen to death. The defendant was arrested in Butte, and placed in jail

on February 16, 1978. On February 22, 1978, the State filed

an informationwhich was subsequently amended to charge the defendant with deliberate homicide, aggravated kidnapping, robbery, and felony theft. Trial commenced on March 5, 1979. The State's case rested entirely on the testimony of Yvonne Johnson. The defendantpresented nowitness in his

own defense. The jury found him guilty of the crimes of deliberate homicide, robbery,and felony theft.Defendant contends first that he was denied his right to a speedy trial. Second,he contends that the State did not adequately corroborate the testimony of his accomplice, Yvonne Johnson. In this respect, defendant further argues that Yvonne Johnson's testimony, because it is accomplice testimony, cannot be used to establish either the corpus delecti of the crimes or his intent to commit the crime. His last assignment of error is a vague contention that the court erred in instructing the jury. A speedy trial question must, of course,be resolved by balancing the length of the delay, the reason for the delay, the defendant's assertion of his rights,and the degree of prejudice to the defendant. See Statev. Puzio (1979), Mont. 

## , 595 P.2d 1163, 36 St.Rep. 1004. Barker 

### v. Wingo

(1972),407U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101. The defendant was incarcerated on February 16, 1978,but he was not brought to trial for over a year. This interim is clearly long enough to require the State to explain the reason for the delay and to show the absence of prejudice to the defendant. See Puzio, supra. The defendant made a timely assertion of his right to a speedy trial by filingmotions to dismiss on December 5, 1978, and on the opening day of trial. Thus,

our analysis focuses on the reason for the delay and the degree of prejudice suffered by the defendant. The defendant's trial occurred 382 days after his arrest on February 16, 1978. The trial was initially set for June 5, 1978,but this date was vacated when the defendant moved for a continuance in order to interview new witnesses. The State sent a letter to the defendant asking him whether July 10, 1978was a suitable date for trial. However, this date became impracticablewhen the defendant filed a motionfor substitution of the trial judge. On June 21, 1978, the courtheld the hearing on defendant'smotion. However, at approximately the same time defendant's first court-appointed counsel resigned and another court-appointed counselwas assigned to the case. The trial court reset the trial date for September 20, 1978,which was apparently an attempt to give new defense counsel time to prepare for tirial. A further delay resultedwhen defendant's counsel was substituted a second time. Defendant's second counsel ran for and was elected county attorney. In January 1979, John Jardine and Jack McCarthy were appointed counsel. At a hearing on January 10, 1979, the State informed the court that itwas ready to go to trial and asked the court to set
a firmdate. Trialwas reset forMarch 5, 1979, the date on which trial actually commenced. We do not believe the delays causedby defendant's substitution of counsel should be attributed to the State. There isno mechanical test for determining whether the State or the defendant should be charged with any given pretrial delay. Statev. Carden (1977), -Mont

# . , 566 P.2d 780, 785, The delays here appear to be the result of personal actions taken on the part of defense counsel rather than result of the justice system's failure to provide the defendant with effective counsel. Under these circumstances, the delay should notbe weighed against the State. A major delay chargeable to the State occurred when Yvonne Johnson, the State's most importantwitness, left the United States inNovember 1978. On November 17, 1978, the Statemoved for a continuance and the court reset the trial date fromNovember 29, 1978 to January 15, 1979. Johnson's disappearance, however,was not a result of the State's lack of diligence, and the length of the delay was insignificant -5-in light of two delays resulting from substitutionof defense counsel. The defendant argues that the State's filing of an amended informationon January 22, 1979 indicates that the State was not ready to proceed to trial before March 5, 1979. The State amended the information to complywith a decision we had later handed down. This argument clearly lacksmerit. The State in a letter directed to the defendant on June 13, 1978 stated that it desired trial to be set on July 10, 1978. On January 10, 1979, after the defendant had acquired his third set of counsel, the State asked the court to set a firm date for trial. The record does not suggest that the prosecution took any action to stall for more time. On the contrary, the bulk of the pretrial delays were taken to accomodate the defense in its trial preparation. The last factor relating to the right to a speedy trial is the degree of prejudice sufferedby the defendant. The degree of prejudice is determined by considering the oppressiveness of the pretrial incarceration,the anxiety and concern of the defendant and the impairmentof the defense. See State

### v. Carden, supra. We do not find prejudice here. Although the defendant

was incarcerated for approximately eleven months, the defendant's activity pretrial indicates that the long pretrial period was actually to his benefit. In addition to allowing each set of defense counsel additional time to prepare for trial, defendantused the period to obtain a continuance to interviewnew witnesses, to present arguments at a hearing to substitute the trial judge and to obtain a psychiatric examination to support his insanity defense. The record indicates that the defendantwas actively preparing his defense throughout the entire pretrial period. -6-The defendant contends that his defensewas weakened by his inability to take the deposition of Yvonne Johnson prior to trial. Yvonne Johnson left the country in November 1978 and her whereabouts were unknown until December 1978. Defendant's argument carries littleweight because there is

no showing that in themonths prior to Ms. Johnson's disappearance or in the months following her return that the defendantwas prevented from deposing Johnson. Statements made to the police by Ms. Johnsonwere included in the State's affidavit for leave to file an information on February 22, 1978, and on October 20, 1978, the defendant filed a notice of intent to deposeMs. Johnson. Thus, it is clear that from the very beginning of the proceedings against him, the State had put defendant on notice that Johnson could be a witness. Nothing in the record suggests that the defendantwas unable to depose Johnsonprior to her disappearance from this country. The defendantpresented no witnesses in his defense and provided this Court with no facts suggesting that his defense

wasweakened as a result of the delay. Defendantwas not denied a speedy trial. The defendant next contends that the State's evidence corroborating that of his accomplice, Yvonne Johnson, is insufficientas a matter of law. There can be no question that defendant could not have been convicted without Johnson's testimony;but this fact does not establish that the corroborating proof was insufficient. Section 46-16-213,MCA, which governs the admissibility of accomplice 'testimonyprovides: "Aconviction cannotbe had on the testimony of one responsibleor legally accountable for the sameoffense, as defined in 45-2-301,unless the testimony is corroboratedby other evidence which in itself and without the aid of thetestimony of the one responsible or legally accountable for the same offense tends to connect the defendant with the commission of the offense. The corroboration is not sufficient if itmerely shows the commission of the offense or the circumstances thereof.

### " The State is not required to corroborateevery fact to which the accomplice testifies. It is sufficient if the corroborating evidence tends to connect the defendantwith the commission of the crime. Statev. Coleman (1978), Mon t

# . - 

## , 579 P.2d 732, 748. However, independent evidence must showmore than the mere opportunity to commit the crime. If the corroborating facts and circumstances are as consistent with innocence as guilt, the corroborating testimony must be set aside. Statev. Jones (1933),95Mont. 317, 26 P.2d 341. In the present case the following corroborating evidence was introduced. Lucille Hunt, an intimate friend of the victim, testified that she last sawhim on the night of January 3, and identified exhibit 4 as a picture of Barber's coat, and exhibits 2A and 2B as pictures of the victim's blue Pontiac automobile. Tommy Strictland, the owner of the Keyboard Club in Butte, testified that he saw the victim and the defendant with a girl outside of his club at approximately 2:30 a.m.
on themorning of January 4. The victim's body was found at Elk Park, a community located between Butte and Boulder. The defendantwas seen with a girl in Dot's Spot Cafe in Boulder at 6:00 a.m., January 4. A Boulder paperboy testified that on the morning of January 4, the driver of a car resembling Barber's vehicle asked him for directions to amotel. He identifiedMs. Johnson as the woman in the car. Later thatmorning, the defendant drove a car into the 0-ZMotel parking lot, and received a room from the clerk, DonnaAxt. On the motel's register card, the defendantgavea fictitiousname and didnot fillintheblanks on the card concerning themake and license number of hiscar. AtMrs. Axt's request, the defendant informed her thathe was driving

a Pontiac, but he refused togive the licensenumber on his

car. The defendant parked hiscar inback of the motel where it wasnot visible from the highway. Mrs. Axt stated that the coat defendant was wearing when he came intothe motel wasvery similartoBarber's coat, but she could not identify it with certainty. On the night of January 4, the defendantwas arrested inBoulder fordisorderly conduct. He gave a falsename to the arresting officer. A missing persons report was filed

on January 7 or 8, and the deceased's frozen body was found

on January 11. When he was arrested inButte, defendantwas found hiding under a bed. The jury was not required toview this asthe conduct of an innocent man. The physical evidence connects the defendant with the victim, with the victim's vehicle, and with thevictim's coat. This, together with defendant's behavior atthe 0-Z Motel and atthe timeof his arrest, is sufficient corroborating evidence. The defendant next contends that accomplice testimony cannot be used toprove eitherthe corpus delectiof a crime

ortoprove criminal intent. To adopt thisview would of necessity require us torulethat accomplice testimony can be used only as supporting orcumulative evidence. Defendant citesno authority, nor has thisview been followed inany jurisdiction towhich we have been referred. See Statev. Gambrel1 (C.A. 1977), 116 Ariz. 188, 586 P.2d 1086; Fortune

v. State (Okla. Criminal, 1976), 549 P.2d 380; People v. McLaughlin (1957), 156 Cal.App.2d 291, 319 P.2d 365. Our

own rules regarding corroboration areinconsistent with the -9-defendant's argument. Corroborating testimony need not be sufficient to establish guilt or even a prima facie case. Statev. Cobb (1926), 76 Mont. 89, 92, 245 P. 265. Section 46-16-213, P4CA, supra, does not expressly limit the use of corroborating testimony to that argued for by the defendant, and we decline to so construe the statute. Thedefendant has presented numerous arguments concerning the trial court's instructions. Ne asserts that the court's instruction on the felony murder rule was erroneous because

one sentence in the instruction used the word "crime" rather than felony. However, this statement of the law did not prejudice the defendant because other portions of the same instruction referred to actions in furtherance of a "felony" and each of the crimes which the defendant allegedly committed

were felonies. The defendant contends that two instructions place undue emphasis on the terms "aidingand abetting" and presupposes that there is corroboration of the accomplice's testimony. No undue emphasis is contained in these instructions and another instruction properly instructed on corroboration. This instruction states that "thecorroboration of an accomplice need not be sufficient to justify a conviction and itneed not be sufficient to connect thedefendant with the commissionof the crime. If [sic] is sufficient if it tends to do so." The defendant argues that thephrase "beyond a reasonable doubt" should be added to the end of the last sentence quoted above. However, this would be an incorrect statement of the law. Corroborative testimony is sufficient if it "tendsto connect the defendantwith the commission of the offense." Section 46-16-213, PICA. The defendant's argument is without merit. Furthermore, the jurywas given a proper reasonable -10-doubt instruction. The defendant's objection to instructing the jury on the question of defendant's flight is baseless. He contends therewas no evidence of flight,but DonnaAxt's testimony concerning the defendant's use 

### of a fictitiousname, and his covert behavior concerning his carpresented the jury with evidence suggesting flight. And the accomplice's testimony, furthermore,contains a detailed explanation of the defendant's flight from the scene of the crime. Judgment is affirmed.

Justi We Concur:

Chief Justice

Justices