No. 89-073 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsLUCY MARIE REDCROW, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable Douglas Harkin, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Margaret L. Borg, Public Defender, Missoula, Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General, Helena, Montana 

James Yellowtail, Asst. Attorney General, Helena 

Robert L. Deschamps, County Attorney, Missoula, 

Montana 

t- -: Submitted on Briefs: Jan. 18, 1990 LW 

( Decided: Mar. 29, 1990 

Filed: c " 

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Justice Fred J. Weber delivered the Opinion of the Court. 

Lucy Marie Redcrow was convicted of deliberate homicide 

by a jury in the Fourth Judicial District, Missoula County, 

Montana. Ms. Redcrow was sentenced to a term of fifty years, 

with an additional ten years for the use of a weapon, the 

sentences to run consecutively. She was designated a dangerous offender for purposes of parole. Ms. Redcrow appeals her 

conviction. We affirm. 

The issues presented for our review are: 

1. Did the District Court err in denying a new trial to 

Lucy Marie Redcrow? 

2. Did the District Court err in denying separate 

trials to Lucy Marie Redcrow and her co-defendant, Paul 

Regudon? 

In the early evening hours of August 26, 1987, the body 

of Marie Richie was discovered by Missoula City Police Officers along the bank of the Clark Fork River in Missoula, 

Montana. Paul Regudon was apprehended nearby. Lucy Marie 

Redcrow was also discovered in the brush along the Clark Fork 

River not far from the location of the victim's body. 

Law enforcement officers determined that the homicide 

had been committed at the nearby Sweetrest Motel, in Room 23. 

In this room, which was registered to Paul Regudon, law 

enforcement officers found large amounts of blood, and a 
knife later determined to be the one used in the stahbinq of 

Ms. Richie. 

In the months prior to August 26, 1987, Lucy Marie 

Redcrow, Paul Regudon, Marie Richie, Kathy Glover, and Frank 

Fry shared the residence of Ronald Fry in Missoula, Montana. 

Kathy Glover moved out, leaving a jacket at the Fry residence. Ms. Glover heard that Marie Richie had disposed of 

the jacket. Ms. Glover and Ms. Redcrow made several demands 

upon Marie Richie to return the jacket. On August 26, 1987, 

Ms. Glover and Ms. Redcrow met at a Missoula bar called 

Flippers, and agreed to "beat up" Marie Richie. Ms. Redcrow 

left the bar and returned later with Ms. Richie accompanying 

her. At the bar, both women made threats to Ms. Richie. Ms. 

Redcrow took a closed knife from her pocket and threatened 

Ms. Richie with it. 

The three women left the bar and began walking along the 

south bank of the Clark Fork River. Ms. Glover testified at 

trial that she hit Ms. Richie in the back several times 

during this walk. She also testified that she hit Ms. Richie 

in the face, possibly breaking Ms. Richie's nose, while Ms. 

Redcrow restrained Ms. Richie. Ms. Glover also testified 

that Ms. Redcrow repeatedly hit Ms. Richie in the back of the 

head with a closed knife. Ms. Glover testified that Ms. 

Redcrow ripped Ms. Richie's shirt off, and stabbed her with 

the knife in the neck. 
Several witnesses observed the women during this time. 

The incident was reported and Missoula City Police Officer 

Bill Olsen was dispatched to the area. He found Ms. Richie 

and Ms. Redcrow at McCormick Park. Ms. Glover had returned 

to the bar by that time. Officer Olsen observed that Ms. 

Richie was bleeding from the back of the head and offered her 

assistance. However, Ms. Richie refused assistance and 

Officer Olsen left the area. 

Bill Shorten testified at trial. He stated that he 

observed two women crossing to the north side of the Clark 

Fork River via a railroad bridge between 6 and 7 p.m. He 

stated that the shirt of one of the women was ripped down the 

front and had bloodstains on it. 

Ken Thormuhlen also observed two women walking by his 

barber shop at about the same time, one of whom had a ripped 

shirt, and blood on the back of her shirt and neck. He 

noticed that they were walking in the direction of the 

Sweetrest Motel. 

Another Missoula resident, Chester Field, gave one of 

his employees, Charles Hoshaw, a ride home. Mr. Hoshaw 

resided in Room 24 at the Sweetrest Motel. Mr. Field testified that as he started to drive away, a tall Indian girl 

approached his truck and opened the door to the passenger 

side. Mr. Field stated that she requested a ride to either 
Flipper's or to the town of Ravalli; however, he denied her 

request. 

Mr. Hoshaw testified that shortly after Mr. Field 

dropped him off Ms. Redcrow came to his room and asked for 

two cigarettes. He observed that her hands and feet were 

covered with blood. 

Another resident of the Sweetrest Motel observed two 

people carrying a body past his window. He called the 

police. 

On August 27, 1987 an autopsy was performed on Ms. 

Richie. Dr. Kenneth Mueller found multiple injuries, including five potentially fatal wounds. Four stab wounds had 

penetrated Ms. Richie's chest cavity and lungs. A fifth 

wound had severed the left carotid artery. 

Although neither Ms. Redcrow nor Mr. Regudon testified 

at trial, both gave separate video-taped statements to law 

enforcement officers soon after the incident. On August 27, 

1987, Ms. Redcrow gave a statement to law enforcement in 

which she stated she had stabbed Ms. Richie three or four or 

maybe more times in the motel room occupied by Paul Regudon 

at the Sweetrest Motel. On August 27, 1987, Mr. Regudon told 

law enforcement officers that both Ms. Redcrow and Ms. Richie 

came to his room at the Sweetrest Motel. He stated that Ms. 

Redcrow stabbed Ms. Rlchie to death while Ms. Richie cried 

out, "Let me live. Let me live." Mr. Regudon stated that he 
attempted to clean the knife and the shoes worn by Ms. 

Redcrow, and that he helped Ms. Redcrow carry the body of the 

victim down to the river. These video-taped statements were 

introduced into evidence at trial, and heard by the jury. 

Lucy Marie Redcrow was charged with deliberate homicide. 

Paul Regudon was charged with deliberate homicide by accountability. The defendants were tried jointly by jury. Ms. 

Redcrow was found guilty of deliberate homicide. Mr. Regudon 

was acquitted. 

I 

Did the District Court err in denying a new trial to 

Lucy Marie Redcrow? 

Ms. Redcrow was convicted by jury of deliberate homicide 

on February 19, 1988. The original sentencing date of March 

21, 1988, was postponed until April 4, 1988. On April 3, 

1988, Ms. Redcrow requested an interview with Dr. Shea, a 

psychiatrist who had examined her prior to trial. During 

this conversation, Dr. Shea began to suspect that Ms. Redcrow 

suffered from "battered women's syndrome". He also concluded 

that it was possible Ms. Redcrow had not actually committed 

the homicide, but had confessed to the homicide as a result 

of her battered woman syndrome. At the request of defense 

counsel, the sentencing date was again postponed, and on 

April 22, 1988, defendant moved the court for a new trial. 
In the motion for a new trial, defendant urged that new 

evidence had been discovered, as contained in an affidavit by 

Dr. Robert Shea. Dr. Shea's affidavit in support of the 

motion stated that he had administered tests to Ms. Redcrow 

prior to trial and determined that she was not suffering from 

a mental disease or defect which would constitute a defense 

to the crime; that he was informed on April 1, 1988 that Ms. 

Redcrow desired to see him; that he had interviewed Ms. 

Redcrow on at least six occasions commencing with April 3, 

1988; that since April 3, 1988, Ms. Redcrow had taken the 

position that she did not cause the death of Marie Ritchie 

(sic), but was previously covering for the person who did; 

that Ms. Redcrow's prior willingness to assume responsibility 

for another's actions is consistent with the battered women's 

syndrome from which she suffers, and other aspects of her 

psychological makeup; and that it had taken a unique set of 

circumstances to allow Lucy Redcrow to reach this point of 

disclosure, some of which were not in place prior to the 

trial. 

On May 23, 1988 the District Court heard testimony and 

oral argument on the motion for a new trial. Dr. Shea testified at this hearing. In substance his testimony indicated 

that prior to trial he had found Ms. Redcrow did not suffer 

from mental disease or defect and could assist in her own 

defense. He stated that after trial, on the evening of Good 
Friday he was called by personnel from the county jail who 

stated that Ms. Redcrow was terribly upset. Since Dr. Shea 

was leaving town he did not see Ms. Redcrow until Sunday 

morning. At that time she was very angry with him because 

she had read copies of his presentence investigation reports 

and the tribal reports. After talking for a while, Ms. 

Redcrow related to Dr. Shea that she had been having nightmares. Dr. Shea testified that basically the message of her 

dream was that Ms. Redcrow was to be sentenced for something 

she did not do. 

Dr. Shea testified that he began therapeutic sessions 

with Ms. Redcrow, during which he recognized the battered 

women's syndrome. He explained that this syndrome produces 

feelings of guilt even though one may be a victim. He then 

stated his belief that Ms. Redcrow was being honest in her 

present contention that she did not commit the homicide. He 

stated that he would support her in this position. 

Both parties briefed the motion. In a memorandum and 

order, dated September 31, 1988, the District Court denied 

the motion for a new trial. Ms. Redcrow contends the District Court abused its discretion in denying her a new trial. 

A new trial may be qranted pursuant to $$ 46-16-702, MCA, 

which provides: 

Motion for a new trial. (1) Following a 

verdict or finding of guilty, the court may grant 
the defendant a new trial if required in the interest of justice. 

(2) The motion for a new trial must be in 

writing and must specify the grounds therefor. It 

must be filed by the defendant within 30 days 

following a verdict or finding of guilty. Reasonable notice of the motion must be served on the 

state. 

(3) On hearing the motion for a new trial, if 

justified by law and the weight of the evidence, 

the court may: 

(a) deny the motion; 

(b) qrant a new trial; or 

(c) modify or change the verdict or finding 

by finding the defendant guilty of a lesser included offense or finding the defendant not guilty. 

Initially, we address the fact that Ms. Redcrow's motion 

for a new trial was not filed within thirty days following 

the verdict, as required by the statute. Defendant was found 

guilty on February 19, 1988, and this motion was not filed 

until April 22, 1988. The District Court noted this untimeliness in its order, yet addressed the motion on its merits 

since the motion was filed within a "reasonable period of 

time" after the verdict, and because of the serious nature of 

the offense. We point out that these factors did not require 

the District Court to entertain this motion. State v. Best 

(1972), 161 Mont. 20, 26, 503 P.2d 997, 1000. However, in 

view of the extensive consideration of the motion by the 

District Court, we consider it appropriate to review this 

issue. 

In reviewing the denial of a motion for a new trial, 

this Court's standard of review is to determine whether the 
District Court abused its discretion. State v. Perry (~ont. 

Both parties agree that the factors to consider on a 

motion for new trial were enumerated in State v. Greeno 

(1959), 135 Mont. 580, 586, 342 P.2d 1052, 1055, as follows: 

(1) That the evidence must have come to the knowledge of the applicant since the trial; (2) that it 

was not through want of diligence that it was not 

discovered earlier; (3) that it is so material that 

it would probably produce a different result upon 

another trial; (4) that it is not cumulative 

merely--that is, does not speak as to facts in 

relation to which there was evidence at the trial; 

(5) that the application must be supported by the 

affidavit of the witness whose evidence is alleged 

to have been newly discovered, or its absence 

accounted for; and (6) that the evidence must not 

be such as will only tend to impeach the character 

or credit of a witness. 

In the present case, the arguments of the parties focus on 

the first three of the above-mentioned factors. 

Defendant contends the requisite factors are met in this 

case. The new evidence Ms. Redcrow presents is her assertion 

that she did not commit the homicide. This assertion contradicts her previous statement that she stabbed Ms. Richie 

several times in the motel room. Ms. Redcrow contends that 

this constitutes new evidence because she did not understand 

that she was not responsible for the homicide until after the 

trial, through her interviews with Dr. Shea. Further, she 

contends she could not, with due diligence, have discovered 

this prior to trial since the battered women's syndrome had 
distorted her mental state, and because only time, including 

certain triggering events, could change her understanding. 

Ms. Redcrow contends the syndrome is unique in that it produces "learned helplessness" which prevents the victim from 

asserting her own rights, and that overcoming this syndrome 

takes time. Ms. Redcrow asserts that because of this syndrome she was unable to disclose to her counsel the information necessary to present a proper defense. Defendant 

alleges that she has been a victim of battering since the age 

of five; that this type of abuse placed her under the control 

of her co-defendant Paul Regudon; and that her distorted 

mental state led her to accept her own guilt for the offense 

charged. Defendant contends the evidence is so material that 

upon a new trial a different result is likely, since in a new 

trial she would be able to assert her innocence. 

The District Court found that defendant's arguments 

failed on each of the first three factors of the Greeno test, 

and we agree. Defendant has produced no new facts which were 

unknown to her prior to trial. Rather, she is attempting to 

use the syndrome to explain why she did not provide this 

alleged new evidence prior to trial. Further, Dr. Shea had 

conducted extensive testing of Ms. Redcrow prior to trial and 

was aware of Ms. Redcrow's history and abusive relationships. 

Thus, as to the first two factors, we conclude that Ms. 

Redcrow's current assertion of innocence is not new evidence 
unknown prior to trial, and that the battered women's syndrome could have been discovered with due diligence. We 

agree with the District Court's conclusion that this syndrome 

is not a proper basis to justify silence or a false version 

of the homicide. 

The District Court also found that the alleged new 

evidence was not so material that it would produce a different result at trial. Ms. Redcrow's conviction was based in 

substantial part on testimony of eyewitnesses who saw her and 

the victim just prior to the stabbing, as well as corroborating physical evidence. A summary of this evidence follows. 

Ms. Glover testified that Ms. Redcrow threatened Ms. 

Richie with her knife while the blade was opened when they 

initially met at Flippers. She testified that Ms. Redcrow 

assaulted Ms. Richie numerous times during the walk along the 

river, hitting her with the closed knife on the back of the 

head, stabbing her in the neck with the open knife, and 

ripping Ms. Richie ' s shirt off . 

Officer Olsen testified that Ms. Richie had blood on the 

back of her head when he spoke to her at McCormick Park. 

Numerous witnesses, including William Shorten, and Ken 

Thormuhlen observed Ms. Redcrow and Ms. Richie walking across 

the railroad bridge and along Broadway toward the Sweetrest 

Motel. Both Mr. Shorten and Mr. Thormuhlen noticed that Ms. 

Richie appeared to have difficulty walking. 
Mr. Hoshaw, the resident of Room 24 of the Sweetrest 

Motel, testified that when Ms. Redcrow came to his room 

requesting cigarettes he noticed blood on her hands and feet. 

At trial an inmate, Brenda Shoulders, testified that Ms. 

Redcrow admitted killing Ms. Richie. Substantial trial 

evidence, independent of Ms. Redcrow's pretrial confession, 

supports the verdict of deliberate homicide. 

At a new trial Ms. Redcrow's assertion of innocence 

would only present conflicting or inconsistent evidence to be 

weighed by the jury and as such is not so material as to 

require a new trial. State v. Miller (Mont. 1988), 757 P.2d 

1275, 1289-90, 45 St.Rep. 790, 807 (post trial letters from 

accomplice exculpating defendant were not new evidence necessitating a new trial but were merely an additional inconsistency for consideration by the jury). 

Defendant analogizes to Nagell v. United States (5th 

Cir. 1966), 354 F.2d 441, where the denial of a motion for a 

new trial based on newly discovered evidence was reversed on 

appeal. In Nagell defendant had sustained brain damage in an 

airplane accident in 1954. This occurred ten years prior to 

the offense for which he was tried. Numerous doctors examined Nagell for mental competency prior to trial and all 

concluded he was competent to stand trial. At trial, several 

doctors testified that Nagell knew the difference between 

right and wrong at the time of the offense. However, these 
doctors were unaware of the brain injury and this evidence 

was not presented at trial. Nagell was convicted. After 

trial, Nagell began to talk freely with his counsel and 

disclosed facts previously known only to defendant. In a 

subsequent hearing, several doctors testified that based on 

newly discovered evidence which defendant concealed because 

of a brain injury, he was not able to distinguish between 

right and wrong at the time the crime was committed. In the 

present case, defendant analogizes to Naqell, claiming that 

her syndrome caused her to conceal information prior to 

trial. 

The present case is distinguishable from Nagell. The 

capacity of Ms. Redcrow to form the requisite intent, or to 

know right from wrong, is not at issue. At the hearing on the 

motion for a new trial, Dr. Shea testified that Ms. Redcrow's 

syndrome would not have affected her ability to assist in 

preparing her defense. This Court considered a post trial 

claim of mental disease or defect in State v. Higley (1980), 

190 Mont. 412, 621 P.2d 1043, and specifically held that this 

type of claim may not serve as a basis for a new trial. 

Higley, 621 P.2d at 1056. We conclude that Naqell is not 

authority for a new trial in the present case. 

The State also contends that the present case merely 

involves a "recantation," which should be viewed with distrust, citing Perry, ?58 P.2d at 275. Ms. Redcrow urges that 
her present denial of guilt is not a "recantation" of previous testimony. She explains that her original acceptance of 

guilt merely demonstrates her disturbed perceptions resulting 

from the syndrome. It is not necessary to discuss whether 

Ms. Redcrow's present assertion constitutes a recantation. 

If evidence of Ms. Redcrow's battered women's syndrome and 

assertions of innocence were presented at a new trial, this 

would merely constitute additional evidence for the jury to 

weigh in its deliberations. As noted previously, conflicting 

or inconsistent evidence is not so material as to require a 

new trial. Miller, 757 P.2d at 1289-90. Further, we again 

emphasize the very extensive evidence pointing to Ms. 

Redcrow's guilt, independent of any testimony on her part. 

We affirm the conclusion of the District Court that the 

asserted new evidence does not satisfy the level of materiality demanded by the Greeno test. Because our conclusions in 

regard to the first three factors of the Greeno test are 

dispositive, we need not address the final three factors. We 

conclude that the District Court properly denied Ms. 

Redcrow's motion for a new trial based on new evidence. We 

affirm the order of the District Court. 

Did the District Court err in denying separate trials to 

Lucy Marie Redcrow, and her co-defendant, Paul Regudon? 
On January 11, 3.988, counsel for Mr. Requdon moved to 

sever Mr. Regudon's trial from that of co-defendant, Ms. 

Redcrow. Ms. Redcrow did not make a similar motion. However, she supported Mr. Regudon's motion to sever with an 

affidavit stating she had no objection to the severance and 

that trying the cases together would be prejudicial, especially to defendant Requdon. Ms. Redcrow now contends that 

based on the asserted new evidence, she was prejudiced by 

having the cases tried together. She claims prejudice in 

that she was forced to sit near Mr. Requdon during trial. 

She claims that the presence of Mr. Regudon, her batterer, 

exercised control over her even during trial. She claims 

this was prejudicial in that had he not been present she 

might have felt free to assert her innocence. 

Ms. Redcrow neither moved for a severance nor joined in 

Mr. Regudon's motion for a severance. " [I] t is the general 

rule that failure to object to an alleged error at trial 

results in a waiver of the right to challenge the error on 

appeal." State v. Howie (1987), 228 Mont. 497, 500, 744 P.2d 

156, 158; State v. Long (1986), 223 Mont. 502, 505, 726 P.2d 

1364, 1366. Further, Ms. Redcrow's attempt to base the 

asserted prejudice upon post-trial discovery of new evidence 

is unavailing. The disposition of a severance motion is 

determined by the evidence presented at the time of the 

motion and not upon subsequent developments. People v. 
Gonzales (Cal.App. 1970), 84 Cal.Rptr. 863, 869-70. The 

issue of the propriety of the joint trial was not preserved 

for review by this Court and we will not address this issue. 

Affirmed. 

s Chief Justice 

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Justices