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, Judge presiding. 

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 1 0 19! 
Mr. Justice Daniel J. Shea delivered the Opinion of the 

Court. 

The defendant, Frank A. Shurtliff, appeals a Jefferson 

County District Court conviction for deliberate homicide, 

robbery, and theft. The issues in this appeal are whether 

defendant was denied a speedy trial and whether the State's 

case was sufficiently corroborated. We affirm. 

On February 22, 1978, the State filed an information 

against the defendant charging him with deliberate homicide, 

robbery, and theft. The defendant's trial was set for June 

5, 1978, but by subsequent order of the court the date was 

vacated and twice reset. On January 17, 1979, the court set 

the trial date for March 5, 1979. Five days later the State 

filed an amended information which charged the defendant 

with deliberate homicide, aggravated kidnapping, robbery, 

and theft. Trial was held on March 5, 1979, and the jury 

returned a guilty verdict to the charges of deliberate 

homicide, robbery, and felony theft. On April 6, 1979, 

the court filed its judgment and order sentencing the defendant 

to concurrent terms of 75 years for deliberate homicide, 25 

years for robbery, and 10 years for felony theft. The 

defendant filed a motion for a new trial or other relief, all 

of which was denied. Defendant appeals from the underlying 

convictions and from the trial court's denial of his motion 

for a new trial. 

The scene for these crimes started in Butte 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 their partying and 

they then drove in the victim's automobile to a nearby house 

where they partied for about an hour. While at the house, 

defendant and witness Johnson discussed taking the victim's 

money. After leaving the house, the three people drove around 

town for a short time before departing for Elk Park. 

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On the way 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, "Take my car and my money. 

This is all I got, 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 in which 

the Barber was beaten across the face. Barber escaped 

from the car but his glasses, coat and one boot remained 

inside. Barber, who was nearly sightless without his 

glasses, ran blindly 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 little more 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 information which 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 defendant presented no witness 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 State v. Puzio (1979), 

Mont. , 595 P.2d 1163, 36 St.Rep. 1004. Barker v. Wingo 

(1972), 407 U.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 filing motions 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, 1978 was a suitable date for trial. However, this 

date became impracticable when the defendant filed a motion 
for substitution of the trial judge. On June 21, 1978, 

the court held the hearing on defendant's motion. However, 

at approximately the same time defendant's first court-appointed 

counsel resigned and another court-appointed counsel was 

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 resulted when 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 it was ready to go to trial and asked the court to set 

a firm date. Trial was reset for March 5, 1979, the date on 

which trial actually commenced. 

We do not believe the delays caused by defendant's 

substitution of counsel should be attributed to the State. 

There is no mechanical test for determining whether the 

State or the defendant should be charged with any given 

pretrial delay. State v. 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 not be weighed against the State. 

A major delay chargeable to the State occurred when 

Yvonne Johnson, the State's most important witness, left the 

United States in November 1978. On November 17, 1978, the 

State moved for a continuance and the court reset the trial 

date from November 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 

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in light of two delays resulting from substitution of defense 

counsel. 

The defendant argues that the State's filing of an 

amended information on January 22, 1979 indicates that the 

State was not ready to proceed to trial before March 5, 

1979. The State amended the information to comply with a 

decision we had later handed down. This argument clearly 

lacks merit. 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 suffered by 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 impairment of 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, defendant used the period to obtain a continuance to 

interview new 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 defendant was actively preparing his 

defense throughout the entire pretrial period. 

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The defendant contends that his defense was 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 little weight because there is 

no showing that in the months prior to Ms. Johnson's disappearance or in the months following her return that the 

defendant was prevented from deposing Johnson. Statements 

made to the police by Ms. Johnson were 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 depose Ms. 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 defendant was unable 

to depose Johnson prior to her disappearance from this country. 

The defendant presented no witnesses in his defense and 

provided this Court with no facts suggesting that his defense 

was weakened as a result of the delay. Defendant was not 

denied a speedy trial. 

The defendant next contends that the State's evidence 

corroborating that of his accomplice, Yvonne Johnson, is 

insufficient as 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 'testimony provides: 

"A conviction cannot be had on the testimony 

of one responsible or legally accountable for 

the same offense, as defined in 45-2-301, unless 

the testimony is corroborated by other evidence 

which 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. The 

corroboration is not sufficient if it merely shows 

the commission of the offense or the circumstances 

thereof. " 

The State is not required to corroborate every fact 

to which the accomplice testifies. It is sufficient if the 

corroborating evidence tends to connect the defendant with 

the commission of the crime. State v. Coleman (1978), 

Mon t . - , 579 P.2d 732, 748. However, independent evidence 

must show more 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. State v. Jones (1933), 95 Mont. 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 saw him 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 the morning of January 4. The victim's body was found 

at Elk Park, a community located between Butte and Boulder. 

The defendant was 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 a motel. He 

identified Ms. Johnson as the woman in the car. 

Later that morning, the defendant drove a car into 

the 0-Z Motel parking lot, and received a room from the clerk, 

Donna Axt. On the motel's register card, the defendant gave 
a fictitious name and did not fill in the blanks on the card 

concerning the make and license number of his car. At Mrs. 

Axt's request, the defendant informed her that he was driving 

a Pontiac, but he refused to give the license number on his 

car. The defendant parked his car in back of the motel 

where it was not visible from the highway. Mrs. Axt stated 

that the coat defendant was wearing when he came into the 

motel was very similar to Barber's coat, but she could not 

identify it with certainty. 

On the night of January 4, the defendant was arrested 

in Boulder for disorderly conduct. He gave a false name 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 in Butte, defendant was 

found hiding under a bed. The jury was not required to view 

this as the conduct of an innocent man. 

The physical evidence connects the defendant with the 

victim, with the victim's vehicle, and with the victim's 

coat. This, together with defendant's behavior at the 0-Z 

Motel and at the time of his arrest, is sufficient corroborating 

evidence. 

The defendant next contends that accomplice testimony 

cannot be used to prove either the corpus delecti of a crime 

or to prove criminal intent. To adopt this view would of 

necessity require us to rule that accomplice testimony can 

be used only as supporting or cumulative evidence. Defendant 

cites no authority, nor has this view been followed in any 

jurisdiction to which we have been referred. See State v. 

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 are inconsistent with the 

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defendant's argument. Corroborating testimony need not 

be sufficient to establish guilt or even a prima facie case. 

State v. 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. 

The defendant 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 "aiding and 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 "the corroboration of an 

accomplice need not be sufficient to justify a conviction 

and it need not be sufficient to connect the defendant with 

the commission of the crime. If [sic] is sufficient if it 

tends to do so." 

The defendant argues that the phrase "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 "tends to 

connect the defendant with the commission of the offense." 

Section 46-16-213, PICA. The defendant's argument is without 

merit. Furthermore, the jury was given a proper reasonable 

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doubt instruction. 

The defendant's objection to instructing the jury on 

the question of defendant's flight is baseless. He contends 

there was no evidence of flight, but Donna Axt's testimony 

concerning the defendant's use of a fictitious name, and 

his covert behavior concerning his car presented 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