No. 14421 

IN THE SUPREME COW OF THE STATE OF M3N?1ANA 

1979 

THE STATE OF MJNTANA, 

Plaintiff and Respondent, 

-vsTRAVIS EEOLLIDAY, 

Defendant and Appellant. 

Appeal froan: District Court of the Thirteenth Judicial District, 

Hon. Charles Luedke, Judge presiding. 

Counsel of Record: 

For Appellant: 

Reno and Dolve, Billings, mntana 

James A. Reno argued, Billings, mntana 

For Respondent: 

IEon. Mike Greely, Attorney General, Helena, mntana 

Mary B. Troland, Assistant Attomey General, argued and 

Marc Racicot, Assistant Attorney General, appeared, 

Helena, mntana 

James Seykora, County Attorney, appeared, Hardin, mntana 

Filed: WG 2 0 1979 

Submitted: April 30, 1979 

Decided: IUG 20 1979 
Mr. 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. 

Defendant was 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 individuals met 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 two men going in the other. By this time, the evidence 

showed defendant had obtained a gun. 

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The two groups then proceeded to the Safeway store 

where they intended to wait until the store closed at 10:OO 

p.m. During this time defendant and one of the occupants of 

the car cut the rope into pieces which were given to the two 

men in the other car. When the store closed, the store 

manager and Monte Dyckman each drove off in his own car, 

defendant and his companions following Dyckman and the other 

men following the store manager. 

As soon as it became apparent the store manager did not 

have the deposit of the day's receipts, the men went to the 

drive-in bank to await the arrival of Monte Dyckman. Defendant 

and his companions, seeing Dyckman turn into the bank, 

returned to Billings, defendant remarking the men in the 

other car would get Dyckman. 

Defendant and his companions arrived at the west side 

Billings house at approximately 2:00 a.m., April 6, 1975 

and awaited the arrival of the other two members of the 

group. Eventually only one returned and indicated the 

robbery had in fact occurred, but very little money was 

taken. Xonte Dyckman was discovered later that day, shot to 

death. 

On May 20, 1975, the State of Montana filed an information 

charging the defendant and his four companions with deliberate 

homicide, aggravated kidnapping, and robbery. A joint trial 

was held in October 1975, and two of the four defendants finally 

tried were found guilty of all three counts, while defendant 

and the remaining participant were found g~ilty only of the 

robbery count. Upon appeal, this Court indicated the defendants 

suffered prejudice from being tried jointly and concluded that 

the jury had been improperly and inadequately instructed. State 

v. Fitzpatrick, 569 P.2d at 393, 395. We then reversed and 

remanded for a new trial as to all defendants. 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 to dismiss asserting defendant was being subjected to 

double jeopardy was made and denied. At trial, the following 

was read to the jury prior to the taking of any evidence: 

"Counsel of record stipulate and agree that the 

following factual situation may be presented to the 

jury without requiring further proof or foundation: 

"On or about the late night 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 said robbery, Monte Dyckman 

was killed by being shot in the back of the head by 

a .45 automatic handgun twice after being bound with 

his hands behind his back. 

"At the scene of the homicide approximately 12 

miles west of Hardin, Montana, in the area generally 

known as Toluca Interchange, there were two spent .45 

caliber shell casings found on the ground approximately 120 feet to the rear of the Dyckman vehicle, 

and two spent .45 caliber automatic shell casings 

found in the Monte Dyckman vehicle. 

"On June 27, 1975, a person by the name of Gary Eugene 

Radi was arrested in connection with the robbery of 

Monte Dyckman in Rawlins, Wyoming; upon a search of 

his vehicle under the rear seat portion of said motor 

vehicle was found a spent .45 caliber shell casing. 

Upon examination by the Federal Bureau of Investigation Laboratory in Washington, D.C., it was found 

that the shell casing from the Radi vehicle had been 

fired by the same gun which fired the shell casings 

found at the murder 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. At the Radi trial the witnesses, Cindy 

Morgan, Iva Lee Finch, Edwin Bushman and Christine 

Fetters did not testify, although the prior testimony 

of Finch and Bushman was read into the record." 

During the presentation of evidence at defendant's trial, 

Christine Fetters did testify and related to a particular 

conversation which took place in her presence between the individuals involved in the robbery/homicide. The conversation 

concerned the alleged events of April 5, 1975. She said, when 
asked 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 recall was 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 counsel moved for a mistrial and the motion 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 federal and state 

constitutional inhibitions. Second, he argues the testimony 

of Christine Fetters regarding Gary Radi's statement was 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 appeal was 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 defendant was not guilty of 

deliberate homicide, and aggravated kidnapping also meant the 

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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 

felony murder 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 issue we 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 issue between 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) , Mon t . , 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 constitute double jeopardy. 

United States v. 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), 141 Mont. 

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78, 375 P.2d 316. This includes a reversal for errors in 

the instructions. United States v. 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. Defendant places reliance upon this Court's 

decision in State v. Williams (1977), - Mont . , 570 

P.2d 578, 34 St.Rep. 1116, declaring the admission of prejudicial 

and irrelevant evidence is a causefor mistrial. In Williams, 

the admitted evidence was 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 statement was 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 

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affected. State v. Bentley (1970), 155 Mont. 383, 472 P.2d 

864, 875; State v. Hay (1948), 120 Mont. 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 Fitzpatrick was convicted of that crime. 

Following the motion for mistrial, the District Court ordered 

that no further references to the murder of Monte Dyckman 

should be made. No further testimony on that subject occurred. 

Finally Christine Fetters was thoroughly cross-examined and 

indicated she had the impression defendant was not involved 

in the murder. 

Unlike the situation involved in Williams, supra, where 

the jury had no hint that a drug sale was involved until the 

offending testimony was uttered, here the jury knew murder had 

been committed and who had been convicted for it. Defendant 

has not met his burden of affirmatively showing prejudice. 

State v. Walker (1966), 148 Mont. 216, 419 P.2d 300, 304. 

Without such a showing, the denial of a mistrial does not 

constitute reversible error. See, State v. 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 

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." 

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 evidence must 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 

individuals gave 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 conversation between 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