No. 13253 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1977 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

BERNARD JAMES FITZPATRICK, 

GARY RADI, TRAVIS HOLLIDAY, 

PAUL BAD HORSE, JR., and 

EDWIN R. BUSHMAN, 

Defendants and Appellants. 

Appeal from: District Court of the Thirteenth Judicial 

District, 

Honorable Nat Allen, Judge presiding. 

Counsel of Record: 

For Appellants: 

John L. Adams, Jr. argued, Billings, Montana 

Robert L. Stephens, Jr. argued, Billings, Montana 

Reno and Dove, Billings, Montana 

James Reno argued, ~illings, Montana 

Chris J. Nelson argued, Billings, Montana 

Clarence T. Belue, Hardin, Montana 

Cate, Lynaugh, Fitzgerald & Huss, Billings, Montana 

For Respondent: 

Hon. Michael Greely argued, Attorney General, 

Helena, Montana 

James Seykora argued, County Attorney, Hardin, 

Montana 

James Sinclair argued, Special Deputy Co. Attorney, 

Billings, Montana 

.jf)t- Filed: - 

Submitted: January 28, 1977 

Decided: $!@i= &g j9;47 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

This is an appeal from the final judgment of the district 

court, Big Horn County, following a jury trial. Defendants 

Fitzpatrick and Radi appeal from judgments of conviction for 

deliberate homicide, aggravated kidnapping and robbery. Defendants Holliday and Bad Horse appeal from judgments of conviction 

for robbery. 

On May 20, 1975, the State of Montana filed an Information charging defendants Fitzpatrick, Radi, Holliday, Bad Horse 

and Bushman with deliberate homicide, in violation of section 

94-5-102 (1) (a) (b) , R.C .M. 1947; aggravated kidnapping in violation of sections 94-5-303 (1) (b) (c) , 94-5-303 (2) and 94-5-304, 

R.C.M. 1947; and robbery, in violation of section 94-5-401 (1) (b) , 

R.C.M. 1947. The affidavit of probable cause indicates these 

charges stem from the April 5, 1975 robbery of the Safeway store 

in Hardin, Montana and the murder of Monte Dyckman, a Safeway 

store employee. Following defense motions for severance of trial, 

change of venue and disqualification of judges, trial was held 

in Billings, Montana in October 1975. Defendant Bushman testified in behalf of the state and was granted immunity from prosecution. At the conclusion of the state's case-in-chief, all 

defendants rested without offering evidence. Defendants Fitzpatrick 

and Radi were found guilty of deliberate homicide, aggravated 

kidnapping, and robbery. Defendants Holliday and Bad Horse were 

found guilty only of robbery. 

On October 29, 1975, defendants Fitzpatrick and Radi were 

each sentenced to 100 years imprisonment for the crime of deliberate 

homicide; 100 years imprisonment for the crime of robbery as 

persistent felony offenders pursuant to section 95-2206.5, R.C.M. 

1947; and death by hanging for the crime of aggravated kidnapping. 

Defendants Holliday and Bad Horse were each sentenced to 40 
years imprisonment for the crime of robbery. Defendants Radi 

and Fitzpatrick's sentences of death were stayed by the district court pending appeal to this Court. 

At trial the state offered evidence to prove that defendants met in Billings, Montana on April 5, 1975 and conspired 

to rob the Safeway grocery store in Hardin, a small community 50 

miles south of Billings. The state offered direct and circumstantial evidence tending to prove that on the evening of April 

5, 1975 defendants Fitzpatrick and Radi drove to Hardin in Radi's 

automobile, while ~ollj.day,~ad Horse and Bushman together drove 

to ~ardin in another automobile. Defendants parked in front of 

the Safeway store and waited until closing time when Everett 

Stoltz, the store manager, and Monte Dyckman, a store employee 

locked the store doors and drove away in different automobiles. 

Fitzpatrick and Radi followed the store manager. The remaining 

defendants purportedly followed Monte Dyckman but lost sight of 

him when he stopped at the post office to deposit mail. When 

the store manager drove to his home, Radi and Fitzpatrick 

realized the store receipts were carried by Dyckman and they 

proceeded to the bank where the deposit was to be dropped. It is 

alleged Fitzpatrick and Radi abducted Monte Dyckman at the bank, 

prior to his depositing the store's receipts, robbed him, and 

then killed him in the vicinity of the Toluca Interchange, 12 

miles west of Hardin, within the boundaries of Big Horn County. 

Defendants raise numerous issues on appeal. We hold the 

judgments of conviction must be reversed and the causes remanded 

for new trials. Therefore, we discuss only the following issues 

to insure that we do not comment on matters to come before the 

district court in a new trial: 

I. Whether the Montana statutory provisions for jury 

selection are constitutionally valid and, if so, whether the jury 
in the instant case was selected and drawn in substantial 

compliance with the law? 

11. Whether the defendants were prejudiced by the 

joinder of their trials? 

111. Whether there was sufficient corroboration of defendant Bushman's testimony? 

IV. Whether the convictions of defendants Holliday and 

Bad Horse should be reversed and the charges against them dismissed on the grounds the jury was inadequately instructed on 

the applicable law and returned inconsistent verdicts? 

Issue I. Defendants initially contend their convictions 

should be reversed and the causes remanded on the grounds the 

Montana statutory provision for selecting jurors is unconstitutional and, even if the statute is found to be constitutional, 

that the jury panels in the instant case were selected and 

drawn in total disregard of the applicable Montana law. Section 

95-1908, R.C.M. 1947, sets forth the procedure in challenging 

the selection of a jury panel: 

"Motion to discharge jury panel. (a) Any objection 

to the manner in which a jury panel has been 

selected or drawn shall be raised by a motion to 

discharge the jury panel. The motion shall be 

made at least five (5) days prior to the term for 

which the jury is drawn. For good cause shown, the 

court may entertain the motion at any time thereafter. 

" (b) The motion shall be in writing supported by 

affidavit and shall state facts which show that the 

jury panel was improperly selected or drawn. 

"(c) If the motion states facts which show that the 

jury panel has been improperly selected or drawn, 

it shall be the duty of the court to conduct a hearing. The burden of proof shall be on the movant. 

"(d) If the court finds that the jury panel was 

improperly selected or drawn, the court shall order 

the jury panel discharged and the selection or 

drawing of a new panel in the manner provided by 

law. I' 

At the outset we note defendants have failed to comply 

with section 95-1908. Defendants raised the issue of improper 
jury selection and drawing in a timely and specific manner, 

but the district court record fails to disclose the submission 

of any affidavit in support of the allegation. Defense counsel 

contend, on oral argument before this Court, that the timely 

submission of a supporting affidavit, required by section 95-1908, 

was prohibitive since counsel lacked the means of determining 

the manner in which the jury panel was selected and drawn. Absent 

such knowledge, defense counsel conclude the filing of affidavits 

before this Court at the time of appeal is sufficient. We disagree. 

The district court file clearly reveals that at least one 

defense counsel was cognizant of the provisions of section 95- 

1908. The motion of defendant Bad Horse to discharge the jury 

panel states: 

"COMES NOW the Defendant, PAUL BAD HORSE, JR., 

and moves the Court to Discharge the Jury Panel 

herein pursuant to Section 95-1908, R.C.M. 1947. 

"Said motion will be supported by affidavit when 

the jury panel is selected and made known to this 

defendant. 

"Dated this 29th day of August, 1975." 

The district court file is deplete of any affidavit 

supporting this motion to discharge the jury panel. Absent such 

a showing of good cause to substantiate their motion, defendants 

cannot challenge the jury panel for the first time on appeal on 

the ground that the district court failed to select and draw jury 

panels in accordance with applicable Montana law. Ledger v. 

McKenzie, 107 Mont. 335, 85 P.2d 352; State v. Corliss, 150 Mont. 

40, 430 P.2d 632. The means of establishing good cause, specifically the sworn affidavits of the chief deputy clerk of the district court of Yellowstone County and the Yellowstone county 

registrar of voters, were as accessible at the time of trial as 

at the time of appeal. 

Yet, defendants' failure to comply with section 95-1908, 

will not foreclose our consideration of whether the jury panel 
was properly selected and drawn where the fundamental constitutional rights of the defendants are at stake. State v. Porter, 

125 Mont. 503, 242 P.2d 984; State ex rel. Henningsen v. ~istrict 

Court, 136 Mont. 354, 348 P.2d 143; State v. Chapman, 139 Mont. 

98, 360 P.2d 703. Thus we consider the question of whether the 

selection of jurors and drawing of jury panels in the instant 

case infringed on defendants' fundamental constitutional rights? 

This Court has long held the accused in a criminal prosecution is constitutionally guaranteed a trial by an impartial 

jury selected and drawn in accordance with the law. State ex 

rel. Henningson v. District Court, supra; State v. Hay, 120 Mont. 

573, 194 P.2d 232; Dupont v. McAdow, 6 Mont. 226, 9 P. 925. Any 

material deviation or departure in procuring a jury has been 

held to constitute a denial of fundamental constitutional rights. 

State v. Porter, supra; State v. Groom, 49 Mont. 354, 141 P. 858; 

State v. Tighe, 27 Mont. 327, 71 P. 3; reversed on other grounds 

35Mont. 512, 90 P. 981. 

The Revised Codes of Montana are explicitly clear in 

defining the procedure to be followed in selecting jurors and 

drawing jury panels. Section 93-1301, R.C.M. 1947, provides 

that registered electors whose names appear on the most recent 

list of all registered electors, as prepared by the county registrar, are competent to serve as jurors. Section 93-1401, R.C.M. 

1947, provides that a list of persons to serve as jurors must be 

prepared by the chairman of the county commissioners, or in his 

absence, any member of the board of county commissioners, the 

county treasurer and the county assessor or any two cf such 

officers. Once the jury list is composed, section 93-1402, 

R.C.M. 1947, requires that each name on the list be assigned a 

number and the list of the names of the persons be delivered by 

those officers to the clerk of the district court pursuant to 
section 93-1403, R.C.M. 1947. Section 93-1404, R.C.M. 1947, 

mandates that the clerk of court place the individual pieces of 

paper, embossed with the number assigned each juror, in a box 

and from this box the numbers are to be drawn by the district 

judge in the presence of the clerk of court pursuant to section 

93-1502, R.C.M. 1947. Section 93-1512, R.C.M. 1947, provides 

that in the event additional jurors are needed, their numbers 

must also be drawn by the district judge. 

Defendants contend section 93-1301, regarding the competency of jurors, is unconstitutional in that voter registration lists fail to provide a true cross-section of the community 

in violation of equal protection requirements of the state and 

federal constitutions. It is argued the voter registration 

system excludes residents who are qualified for jury service, but 

are not qualified to vote or do not choose to vote. The issue of 

whether voter registration lists are a proper instrument for 

selecting jurors was recently discussed in United States v. Ramos 

Colon, 415 F.Supp. 459, 464: 

"From a constitutional standpoint it is well 

settled that voting lists may be used as a basis 

for jury selection unless it appears that in the 

comm;nity there is systematic, intentional and 

deliberate exclusion from those lists of a particular economic, social, religious, racial, geographical or political group. [Citing cases.] 

From Colon and Foster v. Sparks, 506 F.2d 805, we glean 

the prima facie case for establishing a statutory challenge 

to a jury selection system on the ground of jury composition: 

1) Proof that the jury selection system is disadvantageous to a 

cognizable class, and 2) proof that the disadvantage is occasioned 

by discrimination in the selection process. 

Defendants bear the burden of establishing the cognizable 

class which is discriminated against by the jury selection process. 

Purposeful discrimination may not be assumed or merely asserted. 
Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L ed 2d 759; 

Smith v. Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L ed 84. Defendants' only allegation of discrimination was that the jury 

panel was composed of all whites, with the exception of two 

Indians, and that the convicting jury was exclusively white in 

composition. Such allegation falls short of establishing a 

prima facie case challenging the jury selection system on the 

ground of racial composition. Petition of Boe, 156 Mont. 303, 

481 P.2d 45; State v. Johnson, 149 Mont. 173, 424 P.2d 728. It 

is a well accepted proposition of law that the voter registration 

list, from which the jurors are selected, and the jury panel 

need not perfectly mirror the racial composition of the community. 

Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 69242 L ed 2d 690; 

Foster v. Sparks, supra; State v. Taylor, 168 Mont. 142, 542 P.2d 

100, 32 St.Rep. 993. 

Defendants further contend the jury panels in the instant 

case were selected and drawn in total disregard of the applicable 

Montana law. We find merit in defendants' claim that the manner 

in which jurors were selected and drawn substantially deviated 

from the procedures mandated in Title 93, Revised Codes of 

Montana, 1947. Specifically, all duties delegated to the jury 

commission and district court judge were performed by the clerk 

of court without any apparent overseeing. While we have no cause 

to question the good faith of the public officers involved, it 

is obvious the statutory scheme for selecting and drawing a jury 

was completely circumvented. The rule in Montana is that juries 

must be selected and drawn in substantial compliance with the 

law. Where the disregard for legislative mandates amounts to 

more than technical irregularity substantial compliance has not 

been achieved. State ex rel. Henningsen v. District Court, 

supra; State v. Porter, supra. We stated initially that this 
matter was not properly raised on appeal, but it is of sufficient import to warrant a full discussion for future 

guidance. 

Issue 11. Defendants contend that the joinder of 

their trials, after timely and specific filing of motions for 

severance, brought about these errors: 

1. The jury was allowed to consider hearsay evidence 

which was inadmissible against certain defendants, yet admissible 

against others. 

2. The admission of hearsay evidence denied individual 

defendants their fundamental constitutional right to confrontation under the Sixth Amendment of the United States Constitution. 

3. The joinder of defendants' trials denied defendants 

their right to effective assistance of counsel. 

The only specific example of the admission of extrajudicia1 hearsay cited to us is Bushman's testimony of statements 

allegedly made by defendant Radi. Bushman testified these statements were made at Radi's home in Billings on April 6, 1975, 

at approximately 2:30 a.m., several hours after the commission 

of the alleged crimes. All of defendants, with the exception 

of Fitzpatrick, were present when the statements were made. 

Bushman testified Radi stated: 

"A. 'Fitz didn't have to shoot the kid.' 

I!*** 

"A. And he said, 'Fitz shot him.' He said, 

'Boom, boom, he blew his head off.' 

"A. * * * he said, 'Fitzpatrick is pretty pissed 

off.' he said, 'He is uptown getting drunk because him having to shoot the kid for nothing 

because tlere was no money in the bag."' 

The court's Instruction No. 1, stated: 

"You are instructed that where one defendant 
testifies about what was said by a second defendant, it is ordinarily not admissible as 

evidence against any other defendant if that 

other defendant was not present at the time and 

place where it was said. 

"However, what is said is admissible against the 

defendants that are present when it is said. 

"In your deliberation, you are not to consider 

what was said against any defendant who was not 

present at the time and place where it was said. 

"You may consider what was said as evidence against 

those defendants present at the time and place it 

was said. 

"The reason for this is that a defendant who is 

not present when something was said about him, 

cannot, of course, deny that it was said because 

it is quite obvious he was not there to know the 

facts. Therefore, you will not use it as evidence 

against him." 

Defendants contend the instruction of the district court 

was insufficient and failed to erase from the minds of the jurors 

the crucial and devastating prejudice naturally flowing from the 

testimony. 

In support of their argument defendants cite Bruton v. 

United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L ed 2d 476. In 

Bruton the codefendants Bruton and Evans were tried jointly and 

convicted of armed postal robbery. During the trial a postal 

inspector testified Evans confessed that Bruton and Evans committed the robbery. Evans' conviction was later reversed because the oral admission had been elicited by police officers 

in disregard of Evans' Miranda rights. Bruton's conviction was 

upheld on the theory the trial court sufficiently instructed 

the jurors not to consider Evans' confession as evidence against 

Bruton. The United States Supreme Court disagreed and reversed 

Bruton's conviction stating: 

" * * * because of the substantial risk that the 

jury, despite instructions to the contrary, looked 

to the incriminating extrajudicial statements in 

determining petitioner's guilt, admission of Evans' 

confession in this joint trial violated petitioner's 
right of cross-examination secured by the Confrontation Clause of the Sixth Amendment." 

391 U.S. 126. 

In a footnote the Court said: 

"We emphasize that the hearsay statement inculpating petitioner was clearly inadmissible against 

him under traditional rules of evidence * * * the 

problem arising only because the statement was * * * 

admissible against the declarant Evans. * * * There 

is not before us, therefore, any recognized exception to the hearsay rule insofar as petitioner is 

concerned and we intimate no view whatever that such 

exceptions necessarily raise questions under the 

Confrontation Clause." 391 U.S. 128. 

The state argues Bruton is distinguishable from the instant case since the hearsay statements testified to by Bushman 

were admissible under the coconspirator exception to the hearsay 

rule. Section 93-401-27, R.C.M. 1947, provides in part: 

"Facts which may be proved on trial. In conformity 

with the preceding provisions, evidence may be given 

upon a trial of the following facts: 

"6. After proof of a conspiracy, the act or declaration of a conspirator against his coconspirator, and 

relating to the conspiracy." 

The state further argues even if Radi's declarations were 

not admissible under the coconspirator exception to the hearsay 

rule, they were admissible under section 93-401-7, R.C.M. 1947, 

which provides : 

"Declarations which are a part of the transaction. 

Where, also, the declaration, act, or omission 

forms part of a transaction, which is itself the 

fact in dispute, or evidence of that fact, such 

declaration, act, or omission is evidence, as part 

of the transaction. " 

The state contends the coconspirator exception to the 

hearsay rule is available in this case, since the state prosecuted the case on the theory there was a conspiracy to commit 

robbery. It is argued that, even though the crime of conspiracy 

was not charged as a separate offense in the Information, the 

state could properly present evidence to show there was a conspiracy. Defendants urge the state is barred from utilizing 
the coconspirator exception to the hearsay rule since the 

state did not charge defendants with the crime of conspiracy; 

that the state's evidence was insufficient to prove a conspiracy; 

and, that the hearsay statements testified to by Bushman were 

made after the conspiracy ended, if there was one, and were not 

made in furtherance of a conspiracy. We disagree with defendants' interpretation of the coconspirator exception to the 

hearsay rule. 

The state may present evidence establishing a conspiracy even though the crime of conspiracy was not charged as a 

separate offense in the Information. State v. Dennison, 94 Mont. 

159, 21 P.2d 63. Whether or not a conspiracy was proved for the 

purpose of permitting application of the coconspirator exception 

was a 

to the hearsay rulejquestion to be decided by the district court. 

The existence of a conspiracy can be shown by circumstantial evidence. To establish a conspiracy it is not necessary to prove 

by direct evidence an agreement to commit a crime. State v. 

Alton, 139 Mont. 479, 365 P.2d 527; State v. Collins, 88 Mont. 

514, 294 P. 957; State v. Hopkins, 68 Mont. 504, 219 P. 1106. 

An examination of the record discloses that the district 

court made a finding, without a disclosure of its grounds, concerning the admissibility of extrajudicial statements made by 

a defendant against a nonpresent codefendant, by another codefendant. The court admitted the testimony, then admonished 

the jury by its Instruction No. 1 (heretofore cited in full) 

that the statement could not be used against a codefendant not 

present when the statement was made. This procedure was approved 

by the United States Supreme Court in Paoli v. United States, 

352 U.S. 232, 77 S.Ct. 294, 1 L ed 2d 278. In Paoli a confession 

of one defendant was admitted inculpating the other defendants. 

A five-four Court approved the giving of a cautionary instruction, 

if sufficiently clear, and reasoned that it could be assumed 
the jury would follow the court's instruction. 

Yet, this started a series of cases based on the Sixth 

Amendment command that all defendants in a criminal prosecution 

shall enjoy the right to confront the witnesses against them. In 

1968, Bruton presented a fact situation where Bruton was jointly 

tried with a codefendant named Evans and convicted of robbery. 

A postal inspector testified at trial that Evans had orally 

confessed to him and also implicated Bruton. The United States 

Supreme Court held this added substantial weight to the case in 

a form not subject to cross-examination, since Evans did not 

take the stand. The Court of Appeals, Eighth Circuit, 375 F.2d 

355, set aside the Evans conviction for a "Miranda" violation 

but affirmed the conviction of the nonconfessor Bruton. The 

court relied on Paoli because the jury was instructed not to consider Evans1 confession in determining Bruton1s innocence or 

guilt. 

The Supreme Court in Bruton specifically overruled Paoli 

and challenged the naive assumption the prejudicial effect of 

such testimony could be overcome by jury instructions. The Court 

held that since substantial weight was added to the government's 

case by the testimony in a form not subject to cross-examination, 

Bruton's Sixth Amendment right to confront witnesses against him 

was violated, and the violation was not cured by the court's instruction to disregard the testimony of the postal inspector 

concerning Evans1 confession inculpating Bruton. For a case by 

case examination of the application of the "Bruton rule" see 

Harrington v. California (1969), 395 U.S. 250, 89 S.Ct. 1726, 

23 L ed 2d 284. In Harrington there are demonstrations of constitutional violations of the "Bruton rule", in Bruton type 

situations where it is not reversible error. We do not find 

these exceptions present in the fact situation in the instant 

case. 

- 13 - 
The United States Supreme Court has long recognized the 

right of the defendant to confront his witnesses at the time of 

trial. In Mattox v. United States, 156 U.S. 237, 242, 243, 15 

S.Ct. 337, 39 L ed 409, 411, the Court said: 

"The primary object of the constitutional provision 

in question was to prevent depositions or ex 

parte affidavits, such as were sometimes admitted 

in civil cases, being used against the prisoner in 

lieu of a personal examination and cross-examination 

of the witness in which the accused has an opportunity, 

not only of testing the recollection and sifting the 

conscience of the witness, but of compelling him 

to stand face to face with the jury in order that 

they may look at him, and judge by his demeanor upon 

the stand and the manner in which he gives his testimony whether he is worthy of belief. * * *" 

The United States Court of Appeals in United States v. 

Adams, 446 F.2d 681, 683, cert. den. 404 U.S. 943, found the 

relevant factual inquiry in determining whether the Confrontation Clause is violated to be: 

" * * * whether under the circumstances, the unavailability of the declarant for cross-examination deprived the jury of a satisfactory basis 

for evaluating the truth of the extrajudicial 

declaration." 

The criteria to be considered in making this factual 

inquiry are: (1) the declarant's knowledge of the identities 

and roles of the other coconspirators; (2) the possibility that 

declarant was relying on faulty recollection; (3) the circumstances 

under which the statements were made, indicating declarant might 

be lying about the codefendant's involvement in the crime; (4) 

the possibility defendants could have shown by cross-examination 

the declarant's statements were unreliable; and (5) whether the 

testimony is so "crucial" to the prosecution or "devastating" 

to the defense as to require reversal of the conviction. United 

States v. Snow, 521 F.2d 730; United States v. Baxter, 492 F.2d 

150, cert. den. 416 U.S. 940. Whether a defendant was denied 

the right to confront and cross-examine witnesses must be resolved 

case-by-case, based on an examination of all the circumstances 
and evidence. Arias v. United States, 388 F.Supp. 736. 

There is little doubt that declarant Radi clearly knew 

Fitzpatrick's role in the alleged crime and the identities and 

roles of the other conspirators. The events were fresh in his 

mind. Yet, without discussing the truth and veracity of the 

declarant, we recognize that Radi had good reason to lie about 

who shot the victim. Without Fitzpatrick present, Radi might 

easily persuade his coconspirators that all fatal shots were 

fired by Fitzpatrick and thus avoid some conceived criminal 

culpability. In any event, we recognize the devastating effect 

this testimony would have upon a jury and hold, at least as to 

Fitzpatrick, there was a denial of the right to confront the 

declarant on cross-examination before the trier of fact. The 

district court's instruction admonishing the jury was insufficient as far as offsetting any prejudice which resulted from 

the admission of the extrajudicial statements. Bruton v. United 

States, supra; Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 

We acknowledge the inherent discretion of the district 

court in determining whether defendants jointly charged with 

public offenses are to be provided separate trials or tried 

jointly. However, we recognize a need for judicial guidelines 

in the instance where the prosecution intends to introduce into 

evidence the extrajudicial statement of one defendant that implicates a codefendant. This issue was discussed in People v. 

Aranda, 63 C.2d 518, 47 Cal.Rptr. 353, 407 P.2d 265, 272: 

"When the prosecution proposes to introduce 

into evidence an extrajudicial statement of 

one defendant that implicates a codefendant, 

the trial court must adopt one of the following 

procedures: (1) It can permit a joint trial if 

all parts of the extrajudicial statements implicating any codefendants can be and are 

effectively deleted without prejudice to the 

declarant. By effective deletions, we mean 
not only direct and indirect identifications 

of codefendants but any statements that could 

be employed against nondeclarant codefendants 

once their identity is otherwise established. 

(2) It can grant a severance of trials if the 

prosecution insists that it must use the extrajudicial statements and it appears that effective deletions cannot be made. (3) If the 

prosecution has successfully resisted a motion 

for severance and thereafter offers an extrajudicial statement implicating a codefendant, 

the trial court must exclude it if effective 

deletions are not possible. Similar rules 

concerning joint trial have been adopted in 

other jurisdictions and have been found workable. [Citing cases.]" 407 P.2d 272. 

We are in agreement with the effect of these judicial guidelines. 

Our final inquiry in this area of joinder concerns defendants' contention the joinder of their trials denied them the 

effective assistance of counsel. Defendants claim: (1) The 

number of defendants and independent counsel m81.de it impossible 

to employ effective trial tactics; (2) one defendant or another 

disqualified a district judge or challenged a juror that another 

defendant would have allowed to remain in the case; (3) certain 

counsel delved into areas on cross-examination that merely repeated the state's case against particular defendants; and (4) 

all defendants, with the exception of Radi, elected to rest 

their cases following the state's case-in-chief, thus compelling 

Radi to rest. We note that most of these objections are of a 

general nature and could be raised in almost any multiple defendant-counsel proceeding. It would be most unusual, in our 

opinion, if four defense counsel representing individual clients 

did agree on every question of trial tactics. Further, a defendant has no right to have his case tried by a specific judge 

or have a particular person sit on his jury. State v. Moran, 

142 Mont. 423, 384 P.2d 777. 

In concluding discussion of the issue of joinder, we 

reiterate our position. Defendants incurred substantial prejudice through the joinder of their trials because of a failure 
to protect individual defendant's right to confrontation. We 

fully realize the benefits of joint trials, specifically, the 

conservation of state funds, diminished inconvenience to witnesses 

and public authorities, and the avoidance of delay in bringing 

those accused of crime to trial. Yet, where we obtain speed, 

economy and convenience in the administration of the law at the 

cost of fundamental constitutional rights, that price is too 

high. Trial courts must examine joinder of defendants' trials 

more closely, particularly where separate counsel is required 

because of potential conflicts of interest between the defendants. 

Issue 111. This issue attacks the sufficiency of evidence which the state presented to corroborate Bushman's testimony. Section 95-3012, R.C.M. 1947, provides: 

"Testimony of person legally accountable. A conviction cannot be had on the testimony of one 

responsible or legally accountable £0; the same 

offense, as defined in section 94-2-106, unless 

he 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; and the corroboration 

is not sufficient, it merely shows the commission 

of the offense, or the circumstances thereof." 

In State v. Orsborn, Mont . , 555 P.2d 509, 514, 

33 St.Rep. 935, 940, this Court said: 

"State v. Cobb, 76 Mont. 89, 92, 245 P.2d 265, has 

been cited many times as to the general guidelines 

for determining the sufficiency of evidence corroborating the testimony of one legally accountable. 

Though Cobb was decided under section 11988, R.C.M. 

1921, since repealed, the language of the old 

statute is nearly identical to that of section 95- 

3012, R.C.M. 1947, in pertinent part. * * *" 

State v. Cobb, 76 Mont. 89, 92, 245 P. 265, set out 

these general rules: 

"(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 pot be sufficient to justify a conviction or to establish a prima facie case of 

guilt. 

"(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. '' 

At trial the state presented two minor girls who testified they were with all five defendants on the day of the 

robbery and murder. The girls testified all five defendants 

planned to go to Hardin and the girls themselves accompanied 

Bushman, Bad Horse and Holliday on the trip to Hardin and the 

return trip to Billings, at about midnight on April 5, 1975; 

that Fitzpatrick and Radi were in Radils automobile at a service 

station in Billings just before Bushman, Holliday, Bad Horse 

and the two girls left for Hardin; that Radils automobile passed 

them on the highway to Hardin; and that two men, who the girls 

presumed to be Radi and Fitzpatrick, got out of Radils automobile 

in Hardin. Both girls testified they observed a hole in the 

windshield of Radi's automobile on the morning following the 

crimes. 

Carol Broach testified Bushman, Bad Horse and Holliday 

were in Hardin from approximately 10:45 p.m. to midnight on 

April 5, 1975; that she returned to Billings with these three 

defendants and the two minor girls; and, that this group arrived 

at Radi's house at approximately 2:00 a.m. on ~pril 6, 1975. 

Raleigh Kraft, Jr. testified he had discussed with 

Bushman and Bad Horse the possibility of robbing the Safeway 

store. 

- 18 - 
Ronald Potts and Lyle Doane testified they were customers at the Safeway store on the evening of April 5, 1975, 

and observed an automobile, blue or green in color,parked in 

front of the Safeway store, with two male occupants approximately the same ages as Radi and Fitzpatrick. Radi's automobile was metallic blue in color. 

Agent Dieckman of the Federal Bureau of Investigation 

testified Fitzpatrick was arrested in Spokane, Washington on 

June 3, 1975, and Fitzpatrick told him he had been drinking 

with Radi in Billings on the evening of April 5. The witness 

established that Fitzpatrick used a fictitious name while in 

Spokane and possessed a newspaper clipping stating Fitzpatrick 

was wanted by the police for the crimes committed in Hardin on 

April 5, 1975. 

Robert Balko, employed by Nyquist Financial Services 

in Billings, testified Radi indicated in a conversation with 

him that someone had shot a hole through his windshield. The 

testimony of Mary Jenkins and Helen Jones established that Radi 

had changed his Montana automobile license plates for Nevada 

license plates shortly after the crimes. 

Roger Asbury of the Federal Bureau of Investigation 

testified the bullet found in Radi's automobile was fired from 

the same gun as the slug found in the victim's automobile and 

the slug which killed the victim. 

This evidence sufficiently corroborates Bushman's testimony. 

Issue IV. The final issue we will consider is whether 

the convictions of defendants Holliday and Bad Horse should be 

reversed on the ground the jury was inadequately instructed on 

the applicable law and returned inconsistent verdicts. Holliday 

and Bad Horse contend that since the state prosecuted its case 
on the theory of conspiracy it is logically inconsistent to find 

them guilty of robbery, but not guilty of deliberate homicide 

and aggravated kidnapping. In support of this contention defendants direct our attention to the court's Instruction No. 28, 

an instruction on the felony-murder doctrine, which provided: 

"You are instructed that when two or more 

persons agree to commit a crime under such circumstances as may * * * result in the taking of 

human life, either in the furtherance of, or 

the resistance to their unlawful agreement, then 

each party * * * will be held responsible for 

the consequences which might reasonably be expected to flow * * * from carrying into effect 

their unlawful agreement * * *. 

"The law is that, if two or more persons agree 

to commit a felony and death happens in the furtherance of the common object, all are alike 

guilty of the homicide. The act of one of them 

done in the furtherance of the original design, 

in the contemplation of the law, is the act of 

all. And if such an agreement is to do or perform an unlawful act constituting a felony, and 

in the prosecution of such unlawful act constituting a felony, an individual is killed, such killing 

is deliberate homicide." 

A general principle of law is that consistency in criminal verdicts is unnecessary. Dunn v. United States, 284 U.S. 

390, 52 S.Ct. 189, 76 L ed 356. Where two or more defendants 

are tried together in a criminal case the verdicts need not 

demonstrate rational consistency. United States v. Anderson, 

509 F.2d 312, cert. den. 420 U.S. 991. The United States Supreme 

Court explained the rationale for the Dunn holding when it said: 

"That the verdict may have been the result 

of compromise, or of a mistake on the part of 

the jury, is possible. But verdicts cannot 

be upset by speculation or inquiry into such 

matters." 284 U.S. 394. 

Defendants Holliday and Bad Horse distinguish Dunn from 

the instant case. They contend the jury in Dunn correctly 

followed the instructions of law given to it in reaching that 

verdict, but the jury here when finding Holliday and Bad Horse 

not guilty on two counts and guilty on the other count, completely 
disregarded Instruction No. 28 and relied on Instruction No. 

36 which provided the jury might "find any one of the following verdicts" as to each defendant: 

"1. Guilty of Count One, deliberate homicide; 

"2. Not guilty of Count One, deliberate homicide; 

"3. Guilty of Count Two, aggravated kidnapping; 

"4. Not guilty of Count Two, aggravated kidnapping; 

"5. Guilty of Count Three, robbery; 

"6. Not guilty of Count Three, robbery." 

The jury verdicts returned in this case can be distinguished 

from the inconsistent verdicts which were the subject of the 

general rule announced in Dunn. These verdicts are not merely 

inconsistent, they are legally unsupportable. his case was 

prosecuted on a conspiracy to commit robbery theory and each defendant prosecuted under the felony murder rule or doctrine which 

contemplates, as set forth in the trial court's Instruction No. 

28, that each defendant is guilty of deliberate homicide or must 

be acquitted. 

This jury was improperly and inadequately instructed on 

that point of law and could not reach a proper verdict. State 

v. Bean, 135 Mont. 135, 337 P.2d 930; State v. Jackson, 88 Mont. 

420, 293 P. 309. 

The inconsistency between the court's Instruction No. 

28 and Instruction No. 36 is apparent and the resulting confusion 

in the minds of the jury is evidenced by its request for clarification of Instruction No. 28: 

"Question on Instruction #28 

"If we find one defendant guilty of robbery 

does Inst. No. 28 require guilty verdict on 

two remaining counts." 

The district court responded: 

"Instruction number 36 answers this question." 

No further clarification was provided, the jury completed 
deliberation and reached its verdict. 

This Court has held that the need for giving additional instructions to the jury is a matter of district 

court discretion. State v. Hawkins, 165 Mont. 456, 529 P.2d 

1377. However, here the jury was directed to examine Instruction No. 36, which is an improper instruction contrary to the 

law of the case. The court should have further instructed 

the jury in a manner that would sufficiently and clearly 

present the applicable law. Such failure is reversible error. 

The judgments of conviction of all defendants are reversed. 

The causes are remanded to the district court for new trials. 

Justice 

( Chief Justice A 

Justices 0 
Mr. Justice John Conway Harrison concurring in part and dissenting 

in part: 

I concur with the majority's opinion as to all defendants 

except Radi whose conviction I would affirm. By his own statements he was one of two men who kidnapped a young man (who unlike 

any of the defendants worked for a living), took him outside his 

hometown robbed and ruthlessly murdered him. In ~adi's case it 

makes little or no difference who fired the shots, for his very 

acts in participating in the kidnapping and robbery make him a 

principal to the murder. 

As to Fitzpatri'ck, who was not present at the time of Radi's 

statement on who fired the shots, this Court is compelled to 

follow the decision of the United States Supreme Court in Bruton 

v. United States, supra, and its progeny. To do otherwise would 

be to delay the ultimate decision on retrial. Bruton is based 

upon the right of defendant Fitzpatrick, guaranteed by the Sixth 

and Fourteenth Amendments, to cross-examine witnesses. Bruton thus 

held that, in a joint trial where one defendant did not take the 

stand the introduction of his extrajudicial confession which 

incriminated the second defendant, violated the second defendant's 

Sdxth and Fourteenth Amendment rights even though the jury was 

instructed the confession was not to be considered against him. 

Subsequent cases illustrate Bruton does not invalidate 

use of codefendant statements in all joint trial situations. 

When, for example, the declarant codefender takes the stand and 

subjects himself to cross-examination, there is no infringement 

of any constitutional right to cross-examine. Nelson v. O'Meil, 

402 U.S. 622, 91 S.Ct. 1723, 29 L ed 2d 222. The Bruton rule cannot 
be invoked by a defendant who insists upoi~ a join^ trial, 

knowing the prosecution intends to use codefendants' inculpatory 

scatements. United States v. Sullivan, 435 F.2d 650, cert. denied 

+d2 U.S. 912, 91 S.Ct. 1392, 28 L ed 2d 654. See also Anno. 29 

If the inculpatory codefendant's confession is admissible 

unde~ an exception to the hearsay rule, as for example an admission of a coconspirator, the Bruton rule will not be invoked. 

:~nited States v. Kelley, 526 F.2d 615,620. Also where extrajudicial statements of both defendants interlock, and do not 

conflict on vital points, courts have held that no reversal is 

required. United States ex rel. Stanbridge v. Zelker, 514 F.2d 45. 

For the above reasons I would confirm as to defendant Radi.