No. 13253 INTHE 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: DistrictCourt 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;47Mr. Justice Gene B. Daly delivered the Opinion of theCourt. This 

### is an appeal from the finaljudgment 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 Stateof Montana filed an Information charging defendants Fitzpatrick, Radi, Holliday, Bad Horse and Bushman with deliberate homicide, inviolation of section 94-5-102 

### (1) (a)(b)

## , R.C .M. 1947; aggravated kidnapping inviolationof sections 94-5-303 

### (1) (b)

### (c)

## , 94-5-303 (2) and 94-5-304, R.C.M. 1947; and robbery, inviolation of section 94-5-401 (1) (b)

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

### stemfrom the April 5, 1975robbery of the Safeway store inHardin, Montana and themurder of Monte Dyckman, a Safeway store employee. Following defensemotions for severance of 

### trial, change of venue and disqualification of judges, trialwas held inBillings, Montana inOctober 1975. Defendant Bushman 

### testified inbehalf of the stateand was granted immunity from prosecution. Atthe 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 guiltyonly 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 

### crimeof robbery as persistent felony offenders pursuant to section 95-2206.5, R.C.M. 1947; and death by hanging for the 

### crimeof aggravated kidnapping. Defendants Holliday and Bad Horse 

### were each sentenced to40years imprisonment for the crime of robbery. Defendants Radi and Fitzpatrick's sentences of death were stayed by the dis

### trict court pending appeal tothis Court. Attrialthe 

### stateoffered evidence toprove that defendants

### met inBillings, Montana on April 5, 1975 and conspired torob the Safeway grocery store inHardin, 

### a small community 50 miles south of Billings. The 

### state offered direct and circumstantial evidence tending toprove that on the evening of April 

### 5, 1975 defendants Fitzpatrick and Radi drove toHardin inRadi's automobile, while ~ollj.day,~ad Horse and Bushman together drove to~ardin inanother automobile. Defendants parked in front of the Safeway storeand waited until closing 

### timewhen Everett Stoltz, the storemanager, and Monte Dyckman, a store employee locked the storedoors and drove away indifferent automobiles. Fitzpatrick and Radi followed the storemanager. The remaining defendants purportedly followed Monte Dyckman but lost sight of him when he stopped 

### atthe post officetodeposit mail. When the storemanager drove tohis home, Radi and Fitzpatrick realized the storereceipts were carried by Dyckman and they proceeded tothe bank where the deposit 

### was tobe dropped. It 

### is alleged Fitzpatrick and Radi abducted Monte Dyckman atthe bank, prior tohis depositing the store's receipts, robbed him, and then killed him inthe vicinityof the Toluca Interchange, 12 

### miles

### west of Hardin, within the boundaries of Big Horn County. Defendants raise numerous issueson appeal. Wehold 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 tocome before the district court in a new trial: I. Whether the Montana statutory provisions forjury selection 

### are constitutionallyvalid and, if so, whether thejuryinthe 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 therewas 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 

### isunconstitutional and, even if the statute

### is found tobe constitutional, that thejury panels in the instant case

### were selected and drawn intotaldisregard 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 todischargejury panel. (a)Any objection to themanner inwhich a jury panel has been selected or drawn shallbe raised by a motion to discharge thejury panel. The motion shallbe made atleast five (5) days prior tothe 

### termfor which the jury isdrawn. For good cause shown, the court may entertain themotion atany 

### timethereafter. 

### "(b) The motion shallbe inwriting supported by affidavit and shall state factswhich show that the jury panel was improperly selected ordrawn. "(c) If themotion states factswhich show that the jury panel has been improperly selected or drawn, it shallbe the duty of the court toconduct a hearing. The burden of proof shallbe on themovant. "(d) If the court finds that the jury panel was improperly selected ordrawn, the court shall order the jury panel discharged and the selection or drawing of a new panel inthemanner provided by law. I' Atthe outset

### we note defendants have failed tocomply with section 95-1908. Defendants raised the issue of improperjury selection and drawing ina timely and specific manner, but the district court record failstodisclosethe 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 themeans of determining themanner inwhich the jury panel was selected and drawn. Absent such knowledge, defense counsel conclude the filing of affidavits before this Court atthe 

### timeof appeal is sufficient. We disagree. The district court fileclearly reveals that atleast one defense counsel was cognizant of the provisions of section 95- 1908. The motion of defendant Bad Horse todischarge thejury panel states: "COMES NOW the Defendant, PAUL BAD HORSE, JR., and moves the Court toDischarge theJury Panel herein pursuant toSection 95-1908, R.C.M. 1947. "Said motion willbe supported by affidavit when the jury panel is selected and made known tothis defendant. "Dated this 29th day of August, 1975." The district court fileisdeplete of any affidavit supporting thismotion todischarge thejury panel. Absent such

a showing of good cause to substantiate their motion, defendants cannot challenge thejury panel for the first

### timeon appeal on the ground that the district court failed to select and draw jury panels inaccordance 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 theYellowstone county registrar of voters, were asaccessible atthe 

### timeof trial as atthe timeof appeal. Yet, defendants' failure tocomply with section 95-1908, willnot foreclose our consideration of whether the jury panelwas properly selected and drawn where the fundamental constitutional rights of the defendants are

### at stake. Statev. Porter, 125Mont. 503, 242 P.2d 984; Stateex 

### rel. Henningsen v. 

### ~istrict Court, 136 Mont. 354, 348 P.2d 143; Statev. Chapman, 139 Mont. 98, 360 P.2d 703. Thus 

### we consider the question of whether the selectionof jurors and drawing of jury panels inthe instant case infringed on defendants' fundamental constitutional rights? This Court has long held the accused in a criminal prosecution 

### is constitutionallyguaranteed a trialby an impartial jury selected and drawn inaccordance with the law. State ex 

### rel. Henningson v. District Court, supra; Statev. Hay, 120 Mont. 573, 194 P.2d 232; Dupont 

### v. McAdow, 6 Mont. 226, 9 P. 925. Any material deviation ordeparture inprocuring a jury has been held toconstitutea denial of fundamental constitutional rights. Statev. Porter, supra; Statev. Groom, 49 Mont. 354, 

### 141P. 858; Statev. Tighe, 27 Mont. 327, 71P. 3; reversed on other grounds 35Mont. 512, 90 P. 981. The Revised Codes of Montana 

### are explicitly clear in defining the procedure tobe followed in selecting jurors and drawing jury panels. Section 93-1301, R.C.M. 1947, provides that registered electorswhose names appear on themost recent 

### list of allregistered electors, asprepared by the county regis

### trar, arecompetent to serve asjurors. Section 93-1401, R.C.M. 1947, provides that a 

### list of persons to serve asjurors must be prepared by the chairman of the county commissioners, or inhis absence, any member of the board of county commissioners, the county treasurer and the county assessor or any two cf such officers. Once thejury list 

### iscomposed, section 93-1402, R.C.M. 1947, requires that each name on the listbe assigned 

### a number and the 

### listof the names of the persons be delivered by those officers tothe clerkof 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-sectionof 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 jurorswas recently discussed in United States v. Ramos Colon, 415 F.Supp. 459, 464: "Froma constitutional standpoint it is well settled that voting listsmay 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. Purposefuldiscrimination 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 discriminationwas that the jury panel was composed of all whites, with the exception of two Indians,and that the convicting jurywas 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. 69242L 

### 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

casewere selected and drawn in total disregard of the applicable Montana law. We find merit in defendants' claim that the manner in which jurorswere 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 legislativemandates amounts to

more than technical irregularity substantial compliance has not been achieved. State ex rel. Henningsenv. District Court, supra; State v. Porter, supra. We stated initially that this

### matter was not properly raised on appeal, but it is

### of suf

### ficient import towarrant a fulldiscussion for future guidance. Issue 11. 

### Defendants contend that thejoinder of their trials, after timely and specific filingof motions for severance, brought about these errors: 1. 

### The jury was allowed toconsider hearsay evidence which was inadmissible against certaindefendants, yet admissible against others. 2. The admission of hearsay evidence denied individual defendants their fundamental constitutional right toconfrontation under the SixthAmendment of the United StatesConstitution. 3. 

### The joinder of defendants' trialsdenied defendants their right toeffective assistance of counsel. The only specific example of the admission of extrajudicia1hearsay cited tous 

### isBushman's testimony of statements allegedlymade by defendant Radi. Bushman testified these 

### statements 

### weremade atRadi's home inBillings on April 6, 

### 1975, atapproximately 2:30 

### a.m., several hours afterthe commission of the alleged crimes. All

### of defendants, with the exception of Fitzpatrick, 

### werepresent when the statements 

### weremade. 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 hishead off.'

"A. 

## * 

## * * he said, 'Fitzpatrick 

### ispretty pissed off.' he said, 'He 

### isuptown gettingdrunk because him having to shoot the kid for nothing becausetlere 

### was no money inthe bag."' The court's Instruction No. 1, stated: "You are instructed thatwhere 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. "Inyour 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. "Youmay consider what was said as evidence against those defendants present at the time and place it was said.

"Thereason 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 convictionwas 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'sright of cross-examination secured by the Confrontation Clause of the SixthAmendment." 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 isnot before us, therefore, any recognized exception tothe hearsay rule insofar aspetitioner 

### is concerned and we intimate no view whatever that such exceptions necessarily 

### raise questions under the Confrontation Clause." 391 U.S. 128. The stateargues Bruton 

### is distinguishable from the instant case since the hearsay statements testified toby Bushman



### were admissible under the coconspirator exception tothe 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 actor declaration of a conspirator against his coconspirator, and relating tothe conspiracy." The statefurther argues even if Radi's declarations

### were not admissible under the coconspirator exception tothe hearsay rule, they were admissibleunder section 93-401-7, R.C.M. 1947, which provides: "Declarationswhich area part of the transaction. Where, also, the declaration, act, or omission forms part of 

### a transaction, which 

### is itself the fact indispute, or evidence of that fact, such declaration, act, or omission 

### is evidence, aspart of the transaction.

### " The statecontends the coconspirator exception tothe hearsay rule is available inthis case, since the stateprosecuted the case on the theory therewas a conspiracy tocommit robbery. It is argued that, even though the crime of conspiracy

was not charged asa separate offense inthe Information, the statecould properly present evidence to show there

### was a conspiracy. Defendants urge the state 

### isbarred from utilizingthe coconspirator exception tothe hearsay rule since the statedid not charge defendants with the 

### crimeof conspiracy; that the state's evidence was insufficient toprove a conspiracy; and, that the hearsay statements testified toby Bushman were made afterthe conspiracy ended, if there was one, and 

### werenot made in furtherance of a conspiracy. Wedisagreewith defendants' interpretation of the coconspirator exception tothe hearsay rule. The statemay present evidence establishing 

### a conspiracy even though the 

### crime of conspiracy was not charged 

### as a separate offense in the Information. Statev. Dennison, 94 Mont. 159, 21P.2d 63. Whether or not a conspiracy was proved for the purpose of permitting application of the coconspirator exception was a tothe hearsay rulejquestion tobe decided by the district court. The existence of a conspiracy can be shown by circumstantial evidence. To establish a conspiracy 

### it 

### isnot necessary toprove by direct evidence an agreement tocommit a crime. Statev. 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 courtmade a finding, without a disclosure of itsgrounds, concerning the admissibility of extrajudicial statementsmade by

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

### its Instruction No. 1 (heretoforecited 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 inPaoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1L 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

### thejury would follow the court's instruction. Yet, 

### this started a 

### series of cases based on the Sixth Amendment command that alldefendants ina criminal prosecution shall enjoy theright toconfront the witnesses against them. In 1968, 

### Bruton presented a fact situationwhere Bruton was jointly tried with a codefendant named Evans and convicted of robbery. A 

### postal inspector testified attrial 

### thatEvans had orally confessed tohim and also implicated Bruton. The United States Supreme Court held this added substantial weight to the case in

a form not subject tocross-examination, sinceEvans 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 toconsider Evans1confession indetermining Bruton1sinnocence or guilt. The Supreme Court inBruton 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 tothe government's

case by the testimony ina form not subject tocross-examination, Bruton's SixthAmendment right toconfront witnesses against him

was violated, and theviolationwas not cured by the court's instructiontodisregard the testimony of the postal inspector concerning Evans1confession inculpating Bruton. For a caseby

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. 

### InHarrington there aredemonstrations of constitutional violations of the "Bruton rule", inBruton type situationswhere it 

### is

### not reversible error. We do not find these exceptions present in the fact situation inthe 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: "Theprimary object of the constitutionalprovision in question was to prevent depositions or ex parte affidavits, such as were sometimesadmitted 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 facewith the jury in order that they may look at him, and judge by his demeanor upon the stand and themanner in which he gives his testimony whether he isworthy of belief. 

## * * *" The United States Court of Appeals in United Statesv. Adams, 446 F.2d 681, 683,cert. den. 404 U.S. 943, found the relevant factual inquiry in determining whether the Confrontation Clause isviolated 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 inmaking this factual inquiry are: (1) the declarant's knowledge of the identities and roles of the other coconspirators; (2) the possibility that declarantwas 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 Statesv. Snow, 521 F.2d 730;United States v. Baxter, 492 F.2d 150, cert. den. 416 U.S. 940. Whether a defendantwas denied the right to confront and cross-examine witnesses must be resolved case-by-case,based on an examination of all the circumstancesand evidence. Arias v. United States, 388 F.Supp. 736. There 

### is littledoubt thatdeclarant Radi clearlyknew Fitzpatrick's role inthe alleged 

### crime and the identitiesand roles of the other conspirators. The events

### were fresh inhis mind. Yet, without discussing the truth and veracity of the declarant, 

### we recognize that Radi had good reason to

### lieabout who shot the victim. Without Fitzpatrick present, Radi might easilypersuade hiscoconspirators 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 toconfront the declarant on cross-examination before the 

### trier of fact. The district court's instruction admonishing thejury was insufficient as far asoffsetting any prejudice which resulted from theadmission 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 thedistrict court indetermining whether defendants jointly charged with public offenses aretobe provided separate trialsor tried jointly. However, 

### we recognize a need forjudicial guidelines inthe instancewhere theprosecution intends tointroduce into evidence the extrajudicial statement of one defendant that 

### implicates a codefendant. This issuewas discussed inPeople 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 allparts of the extrajudicial statements 

### implicating any codefendants can be and are effectively deleted without prejudice tothe declarant. By effectivedeletions, 

### we meannot only direct and indirect identifications of codefendants but any statements that could be employed against nondeclarant codefendants once their identity 

### isotherwise established. (2) It can grant 

### a severance of 

### trials if the prosecution insists that it must use the extrajudicial statements and it appears that effectivedeletions cannot be made. (3) If the prosecution has successfullyresisted a motion for severance and thereafter offers an extrajudicial statement implicating a codefendant, the trial court must exclude 

### it if effective deletions arenot 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 inthis 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.deit impossible toemploy effective trialtactics; (2) one defendant or another disqualified 

### a districtjudge or challenged a juror that another defendant would have allowed toremain in the case; (3) certain counsel delved into areas on cross-examination thatmerely 

### repeated the state's case against particular defendants; and 

### (4) alldefendants, with the exception of Radi, elected to

### rest their 

### cases following the 

### state's case-in-chief, thus compelling Radi to

### rest. We note thatmost of these objections areof a general nature and could be raised inalmost any multiple defendant-counsel proceeding. It would be most unusual, inour opinion, if four defense counsel representing individual clients did agree on every question of trialtactics. Further, 

### a defendant has no right tohave his case tried by a specific judge

or have a particular person siton hisjury. Statev. Moran, 142Mont. 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,particularlywhere 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 corroborateBushman'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, itmerely 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: "Statev. 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--itmay be circumstantial. "(c) It need not extend to every fact to whichthe accomplice testifies. "(d) It need pot be sufficient tojustify a conviction or to establish a prima faciecase of guilt. "(e) It need not be sufficient toconnect the defendant with the commission of the crime; 

### it is sufficient if 

### it tends todo so. "(f)Whether the corroborating evidence tends to connect the defendant with the commission of the offense 

### is a question of 

### law, but theweight 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.

### '' Attrialthe statepresented two minor girlswho testified they were with allfivedefendants on the day of the robbery and murder. The girlstestified 

### all fivedefendants planned togo toHardin and the girlsthemselves accompanied Bushman, Bad Horse and Holliday on the triptoHardin and the return triptoBillings, atabout midnight on April 5, 1975; that Fitzpatrick and Radi were inRadilsautomobile ata service stationinBillings just before Bushman, Holliday, Bad Horse and the two girls left for Hardin; that Radilsautomobile passed them on the highway toHardin; and that two men, who the girls presumed tobe Radi and Fitzpatrick, got out of Radils automobile inHardin. Both girlstestified they observed a hole in the windshield of Radi's automobile on themorning following the crimes. Carol Broach testified Bushman, Bad Horse and Holliday

were inHardin from approximately 10:45 p.m. tomidnight on April 5, 1975; that she returned toBillings with these three defendants and the two minor girls; and, that this group arrived atRadi's house atapproximately 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 corroboratesBushman's testimony. Issue IV. The final issuewe will consider is whether the convictionsof defendants Holliday and Bad Horse should be reversed on the ground the jury was inadequately instructed on the applicable law and returned inconsistentverdicts. 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 deliberatehomicide and aggravated kidnapping. In support of this contentiondefendantsdirect our attention to the court's InstructionNo. 28,

an instruction on the felony-murderdoctrine, which provided: "Youare instructed that when two or more persons agree to commit a crime under such circumstances asmay 

## * 

## * * 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 furtheranceof the originaldesign, 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 InstructionNo. 28 and relied on Instruction No. 36 which provided the jurymight "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 notmerely 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 doctrinewhich 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, 135Mont. 135, 337 P.2d 930; State v. Jackson, 88 Mont. 420, 293 P. 309. 

### The inconsistency between the court's InstructionNo. 28 and InstructionNo. 36 is apparent and the resulting confusion in the minds of the jury is evidenced by its request for clarification of InstructionNo. 28: "Questionon Instruction #28 "Ifwe 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 clarificationwas provided, the jury completeddeliberation and reached itsverdict. This Court has held that the need for giving additional instructions tothe jury 

### is a matter of district court discretion. Statev. Hawkins, 165Mont. 456, 529 P.2d 1377. However, here thejury was directed toexamine Instruction No. 36, which is an improper instruction contrary tothe 

### lawof the case. The court should have further instructed thejury ina manner thatwould sufficientlyand clearly present the applicable law. Such failure is reversible error. The judgments of conviction of alldefendants arereversed. The causes areremanded tothe districtcourt for new trials.

Justice



### (Chief Justice 

# A

Justices 

# 0

### Mr. 

### Justice John Conway Harrison concurring inpart and dissenting inpart: I 

### concur with the majority's opinion as to alldefendants 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 fora living), took him outside his hometown robbed and ruthlesslymurdered him. In ~adi's case it 

### makes littleorno difference who fired the shots, forhisvery acts inparticipating inthe kidnapping and robbery make him a principal to the murder. As 

### to Fitzpatri'ck, who was not present atthe time of Radi's statement on who fired the shots, this Court 

### iscompelled to follow the decision of the United States Supreme Court inBruton

v. United States, supra, and itsprogeny. To do otherwise would be todelay theultimate decisionon retrial. Bruton isbased upon the right of defendant Fitzpatrick, guaranteed by the Sixth and Fourteenth Amendments, tocross-examine witnesses. Bruton thus held that, in a joint trialwhere one defendant did not take the stand the introduction of his extrajudicialconfessionwhich incriminated the second defendant, violated the second defendant's Sdxth and Fourteenth Amendment rights even though thejury was instructed the confession was not tobe considered against him. Subsequent cases illustrateBruton does not invalidate

use of codefendant statements in alljoint trial situations. When, forexample, the declarant codefender takes the stand and subjectshimself to cross-examination, there is

### no infringement of any constitutionalright 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, 

### 91S.Ct. 1392, 28 

### L ed 2d 654. See alsoAnno. 29

If the inculpatory codefendant's confession isadmissible unde~ 

### an exception to the hearsay rule, as for example an admission of a coconspirator, the Bruton rule

### willnotbe invoked. :~nited Statesv. 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.