No. 14421 INTHE SUPREMECOW OFTHE STATEOF M3N?1ANA 1979



### THE STATEOFMJNTANA, Plaintiff andRespondent,

-vsTRAVIS EEOLLIDAY, DefendantandAppellant.

Appeal froan: DistrictCourt of theThirteenthJudicialDistrict, Hon. CharlesLuedke, Judgepresiding. Counselof Record: ForAppellant: RenoandDolve, Billings, mntana James A. Reno argued,Billings, mntana For Respondent: IEon. Mike Greely, Attorney General, Helena, mntana Mary B. Troland, AssistantAttomeyGeneral, arguedand Marc Racicot, AssistantAttorney General, appeared,

Helena, mntana James Seykora, CountyAttorney, appeared, Hardin, mntana

Filed:

# WG2

## 01979 Submitted: April 30, 1979 Decided: 

# IUG20

### 1979Mr. Justice John C. Sheehy delivered the Opinion of the Court.

The defendant in this matter appeals from a judgment entered

on April 3, 1978 by the District Court,Thirteenth Judicial District, Big Horn County,upon a jury verdict of guilty of the crime of robbery. Defendantwas originally tried with three other defendants in October 1975 for the robbery and homicide of Monte Dyckman,

a Safeway store employee in Hardin,Montana. The facts surrounding those crimes have been recited in detail by this Court elsewhere. See, State v. Fitzpatrick (1977), Mont

# . , 569 P.2d 383, 34 St.Rep. 736. Therefore, for purposes of this appeal, they need not be exhaustively recounted here. Briefly, the evidence adduced at defendant's trial demonstrated he and four other individualsmet in a Billings bar on April 

### 5, 1975,and discussed robbing the Safeway store in Hardin,Montana. Defendant then accompanied the others to a home on the west side of Billings,where further plans for the robbery were developed. Defendant then requested a ride to Hardin with one of the participants for himself and two female companions. The other men drove to Hardin in a second car. Arriving in Hardin, the men left the girls at a local bar at defendant's request and then drove around the town to ascertain the location of the Safeway store and the drive-in bank where the store's receipts for that day would most likely be deposited. This accomplished, they returned to the bar, where one of the men, prompted by defendant's remark that they did not have tape to bind the hands or cover the mouths of the intended victim or victims, left to get some rope. When he returned, the group separated, the defendant and two others going in one car, and the remaining twomen going in the other. By this time, the evidence showed defendant had obtained a gun. -2-The two groups then proceeded tothe Safeway store where they intended towait until the store closed at 10:OO p.m. During thistimedefendant and one of the occupants of the car cut the rope intopieces which were given tothe two

men inthe other car. When the store closed, the store manager and Monte Dyckman each drove off inhis own car, defendant and his companions following Dyckman and the other

men following the storemanager. As soon as it became apparent the storemanager didnot have the deposit of theday's receipts, themen went tothe drive-in bank toawait the arrivalof Monte Dyckman. Defendant and his companions, seeing Dyckman turn intothebank, returned toBillings, defendant remarking themen inthe other carwould get Dyckman. Defendant and his companions arrived atthewest side Billings house atapproximately 2:00 a.m., April 6, 1975 and awaited the arrivalof the other two members of the group. Eventually only one returned and indicated the robbery had in factoccurred, but very littlemoney was taken. Xonte Dyckman was discovered later that day, shot to death. On May 20, 1975, the Stateof Montana filed an information charging the defendant and his four companions with deliberate homicide, aggravated kidnapping, and robbery. A joint trial

was held inOctober 1975, and two of the four defendants finally triedwere found guiltyof allthree counts, while defendant and the remaining participant were found g~ilty only of the robbery count. Upon appeal, thisCourt indicated the defendants suffered prejudice from being triedjointly and concluded that thejury had been improperly and inadequately instructed. State

v. Fitzpatrick, 569 P.2d at393, 395. We then reversed and remanded for a new trialastoalldefendants. 569 P.2d at 396.On November 21, 1977, an amended information was filed charging the defendant with the crime of robbery. A pretrial motion todismiss assertingdefendant was being subjected to double jeopardy was made and denied. Attrial, the following

was read tothejury prior tothe taking of any evidence: "Counsel of record stipulate and agree that the following factual situationmay be presented tothe jury without requiring further proof orfoundation: "On orabout the latenight hours of April 5, 1975, Monte Dyckman, who was then an employee of the Safeway Store of Hardin, Montana was robbed of that store's receipts. "During the course of saidrobbery, Monte Dyckman was killed by being shot intheback of the head by a .45 automatic handgun twice afterbeing bound with hishands behind hisback. "At the scene of the homicide approximately 12 mileswest of Hardin, Montana, inthe area generally known asToluca Interchange, therewere two spent .45 caliber shell casings found on the ground approximately 120 feettothe rear of the Dyckman vehicle, and two spent .45 caliber automatic shell casings found intheMonte Dyckman vehicle. "On June 27, 1975, a person by the name of Gary Eugene Radi was arrested inconnection with the robbery of Monte Dyckman inRawlins, Wyoming; upon a search of hisvehicle under the rear seatportion of saidmotor vehicle was found a spent .45 caliber shell casing. Upon examination by theFederal Bureau of Investigation Laboratory inWashington, D.C., it was found that the shell casing from the Radi vehicle had been fired by the same gun which fired the shellcasings found atthemurder scene. "There have been two previous trials, one against Gary Eugene Radi and another against Bernard James Fitzpatrick. Gary Eugene Radi was found not guilty although Bernard James Fitzpatrick was found guilty of Deliberate Homicide, Aggravated Kidnapping and Robbery. Atthe Radi trialthewitnesses, Cindy Morgan, Iva Lee Finch, Edwin Bushman and Christine Fetters did not testify, although theprior testimony of Finch and Bushman was read intothe record." During thepresentation of evidence atdefendant's trial, Christine Fetters did testify and related toa particular conversationwhich took place inher presence between the individuals involved inthe robbery/homicide. The conversation concerned the alleged events of April 5, 1975. She said, whenasked if one of the parties to the incidents of that date (Radi) said anything else about the alleged crime, "About the only other thing that I can really recallwas that he said, 'The crazy son-of-a-bitch [Fitzpatri~k] blew his [Dyckman'sl head off.'" Defense counsel immediately objected,whereupon the trial judge and counsel retired to chambers. In chambers, defense counselmoved for a mistrial and themotion was denied. Defense counsel renewed his objection at the close of the State's evidence and the motion was again denied. Defendant was subsequently convicted of robbery and sentenced to a term of forty years in the State Prison. The defendant makes three basic claims in this appeal. First, he argues that his retrial on the robbery count has placed him in double jeopardy contrary to federaland state constitutional inhibitions. Second,he argues the testimony of Christine Fetters regarding Gary Radi's statementwas so prejudicial that the District Court's denial of a mistrial

was reversible error. Finally,defendant contends the evidence does not sufficiently corroborate the testimony of

one of the participants in the activities of April 5, 1975, Edwin "Luke" Bushman. The question posed by defendant's first claim has been presented to this Court and answered in defendant's first appeal, State

### v. Fitzpatrick, 569 P.2d at 395. The issue as framed in that appealwas whether the conviction of defendant should be reversed and the charges against him dismissed on the grounds that the jury was inadequately instructed on the applicable law and returned inconsistent verdicts. 569 P.2d at 387. In arguing for dismissal,defendant in that appeal asserted the jury verdict that defendantwas not guilty of deliberate homicide, and aggravated kidnapping also meant the -5-jury was finding the defendant was not guilty of robbery. Defendant based this contention, there as here, upon the ground that the State had proceeded to prosecute under the felonymurder rule and under that theory, robbery was a necessary element of the other two crimes. We rejected defendant's requested relief of remand and dismissal and instead remanded for a new trial. 569 P.2d at 396. By asking, in this appeal, to construe the verdicts as acquittal on all counts, thus barring retrial on double jeopardy considerations,defendant is presenting in essence the same issuewe have previously decided. The difference in the two arguments is superficial,not substantive. It is well established in Montana that where a decision has been reached by this Court on a particular issuebetween the same parties in the same case such decision is binding on the parties and courts, and cannot be relitigated in a subsequent appeal, subject to certain exceptions not pertinent here. Belgrade State Bank v. Swainson (1978)

### , Mont

# . I 578 P.2d 1166, 1167, 35 St.Rep. 549; State

### v. Zimmerman (1977)

### , Mont

# . , 573 P.2d 174, 177, 34 St.Rep. 1561; see also State v. Coleman (1979), Mont

# . I P.2d 

### , 36 St.Rep. 1134, (No. 14448,decided June 20, 1979). The defendant is bound by our previous determination that defendant is not entitled to a dismissal of all charges. The defendant is thus in the position of a defendant in a criminal proceeding who has had a judgment of conviction reversed

on appeal for errors in the proceedings. In such a case, it is well established a retrial does not constitutedouble jeopardy. United Statesv. Ball (1896),163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed 300; Green v. United States (1957),355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199; State

### v. Ellsworth (1962),141Mont. -6-78, 375 P.2d 316. This includes a reversal for errors in the instructions. United Statesv. Tateo (1964), 377 U.S. 463, 84 S.Ct. 1587, 12 L.Ed.2d 448; Forman v. United States (1960), 361 U.S. 416, 80 S.Ct. 481, 4 L.Ed.2d 412. Defendant next claims the testimony of Christine Fetters, given the stipulation concerning the crime involved,was clearly irrelevant and prejudicial,and should have resulted in a mistrial. Defendantplaces reliance upon this Court's decision in Statev. Williams (1977), -Mont

# . , 570 P.2d 578, 34 St.Rep. 1116,declaring the admission of prejudicial and irrelevant evidence is a causeformistrial. In Williams, the admitted evidencewas clearly irrelevant--it indicated the defendant's involvement in a drug sale and resulting debt, such debt later giving rise to an altercation leading to defendant being charged with intimidation. 570 P.2d at 

### 579. Clearly, the fact of the drug sale had no probative value as to the fact of intimidation and thus was not relevant. In the present case the testimony of Christine Fetters concerning Gary Radi's statementwas relevant for impeachment purposes. Radi had testified in defendant's trial denying any involvement in the commission of the crime. Edwin Bushman, the prosecution's main witness, testified Radi was - a participant in the crime. Thus the credibility of both Radi and Bushman was at issue and Fetters' statement impeached the credibility of Radi. As such, the statement was relevant and therefore admissible. Rule 401,M0nt.R.Evi.d. Moreover, it does not appear to be so prejudicial as to warrant a new tr4al. The basis for determining whether an erroneous admission of testimony constitutes justification for reversal is a showing by defendant that prejudice resulted from the testimony and that his substantial rights were thereby -7-affected. State v. Bentley (1970), 155 Mont. 383, 472 P.2d 864, 875; State v. Hay (1948), 120Mont. 573, 194 P.2d 232, 237; section 46-20-702 MCA. In this case, a stipulation was read to the jury stating the nature of the crime committed and the disposition of other prosecutions stemming from that crime. It clearly indicated a murder had taken place and that Bernard James Fitzpatrickwas convicted of that crime. Following the motion for mistrial, the District Court ordered that no further references to themurder of Monte Dyckman should be made. No further testimony on that subject occurred. Finally Christine Fetterswas thoroughly cross-examined and indicated she had the impressiondefendant was not involved in themurder. Unlike the situation involved in Williams, supra,where the jury had no hint that a drug salewas involved until the offending testimony was uttered, here the jury knewmurder had been committed and who had been convicted for it. Defendant has not met his burden of affirmatively showing prejudice. State v. Walker (1966), 148Mont. 216, 419 P.2d 300, 304. Without such a showing,the denial of a mistrial does not constitute reversible error. See, Statev. Lave (19771, Mont

# . , 571 P.2d 97, 34 St.Rep. 1298. Defendant finally claims that there is absolutely no corroborating evidence of any nature of Bushman's testimony, meeting the standards set by this Court and the statutes. section 46-16-213 MCA provides: "A conviction cannot be had on the testimony of one responsible or legally accountable for the same offense,. 

# . . unless the testimony is corroboratedby 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 withthe commission of the offense. The corroboration is not sufficient if itmerely shows the commission of the offense or the circumstances thereof." This Court in State v. Cobb (1926),76 Mont. 89, 245 P. 265, 266, set forth the general rules for evaluating corroboration of accomplice testimony: "(a) The corroborating evidence may be supplied by the defendant or his witnesses. "(b) It need not be direct evidence--it may be circumstantial. "(c) It need not extend to every fact to which the accomplice testifies. "(d) It need not be sufficient to justify a conviction or to establish a prima facie case of guilty. "(e) It need not be sufficient to connect the defendant with the commission of the crime; it is sufficient if it tends to do so. "(f) Whether the corroborating evidence tends to connect the defendant with the commission of the offense is a question of law,but the weight of the evidence--its efficacy to fortify the testimony of the accomplice and render his story trustworthy--is a matter for the consideration of the jury." The corroborating evidencemust show more than a mere opportunity to commit the crime. State v. Coleman (1978), Mont

# . I

In his first appeal defendant also challenged the sufficiency of the corroborating evidence. State v. Fitzpatrick, 569 P.2d at 393. This Court held that the testimony of Iva Lee Finch, Cindy Morgan, Carol Braach, Raleigh Kraft, Jr., Ronald Potts, and Lyle Doane sufficiently corroborated the testimony of Edwin Bushman. 569 P.2d at 394. In defendant's retrial, the same individualsgave essentially the same testimony as in the first trial. In addition, Christine Fetters testified defendant had asked Fitzpatrick in early April if he would like to make some money. Fetters also testified to conversationbetween Gary Radi and defendant concerning the robbery.The total sum of the corroborating testimony does more than merely show an opportunity to commit the crime and satisfies the requirements of -- Cobb. The judgment 

### of the District Court is affirmed.

Justice

We Concur:

Chief Justice



## ............................... Justices