STATE v NORDAHL
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No. 82-502 IN THE SUPREME COURT OF THE STATE OF MONTANA 1984 STATE OF MONTANA, Plaintiff and Respondent, -vsCAROLYN JEAN NORDAHL, Defendant and Appellant. APPEAL FROM: District Court of the Nineteenth Judicial District, In and for the County of Lincoln, The Bonorable Robert M. Holter, Judge presiding. COUNSEL OF RECORD: For Appellant: Oleson Law Firm; H. James Oleson, Kalispell, Montana For Respondent: IIon. Mike Greely, Attorney General, Helena, Montana William A. Douglas, County Attorney, Libby, Montana Submitted on Briefs: January 5, 1984 Decided: March 29, 1984 Filed: MAR 2 4;r 'lqlb4 - Clerk ----- Mr. Justice L. C. Gulbrandson delivered the Opinion of the Court. Carolyn Jean Nordahl appeals from her conviction in the District Court of the Nineteenth Judicial District, Lincoln County, for the crime of attempted deliberate homicide. We affirm. This is a companion case to State v. Gillham (Mont. 1983), 670 P.2d affirmed the 544, 40 St.Rep. conviction of Hank 1576. In that case, we Gillham, who was found guilty of attempted deliberate homicide by reason of his unsuccessful attempt to murder Carolyn's husband, Jean Nordahl, in November of 1981. Carolyn was implicated as the instigator of the attempted homicide. On several occasions prior to November, 1981, Carolyn Nordahl had expressed hostility toward her husband and a wish that he would die. The State maintained that she eventually planned to kill her husband and that Hank Gillham was employed to carry out the murder. Evidence was produced showing that Carolyn had removed several thousand dollars from a family bank account shortly before November, that she had slipped a manila envelope into Hank Gillham's car while it was parked in front of a cafe in Eureka, Montana, and that Gillham had retrieved a manila envelope from that car and had bragged to others about receiving a sizeable sum of money. Witnesses testified as to occasions when Gillham had shown them dynamite or other blasting materials, and these individuals were planning under on murdering Carolyn Nordahl. the impression Jean Nordahl at that Gillham the direction was of Gillham was constantly informed of Jean Nordahl's daily work schedule by Carolyn or her daughter, Sonja. Witnesses testified that on November 12, Gillham and Jean Nordahl entered the shop adjacent to the Nordahl home. Gillham was armed with a pistol at the time. Carolyn Nordahl followed the two men into the shop, but reportedly exited in a foul mood sometime later. Gillham left shortly thereafter, but returned later in the evening. It was at this time that he planted a dynamite bomb on Jean Nordahl's logging truck. At the time, Gillham was accompanied by Mike Darby, the boyfriend of Gillham's daughter, Linda Weitz. Gillham lost a piece of wire while preparing the bomb, but Darby found it and placed it in his pocket. This wire was introduced as evidence at Carolyn Wordahl's trial. The bomb was wired improperly and did not go off as planned. Jean Nordahl discovered the explosive device on November 13 and notified authorities. It was not until November 23, however, that Darby and Weitz came forward with information that eventually led to the arrest and conviction of Gillham and Carolyn Nordahl. Gillham was tried first and found guilty of attempted deliberate homicide. also found guilty Carolyn's trial followed. of attempted deliberate She was homicide and eventually was sentenced to thirty-five years in the Women's Correctional Center. The sole issue on appeal is whether there was sufficient corroboration of testimony by four key witnesses for the State: Sonja Nordahl, Linda Weitz, Mike Darby and Marvin Miller. The appellant maintains that these four individuals were accomplices in the murder plot. If these individuals were indeed accomplices, then their testimony cannot be used to convict Nordahl unless it is corroborated by other evidence which in itself tends to connect her with the offense. contends See that Section 46-16-213, Appellant MCA. is no e v i d e n c e c o n n e c t i n g h e r there charged crime o t h e r than t h e testimony of to the t h e s e above-named witnesses. The S t a t e f r e e l y a c k n o w l e d g e s t h a t S o n j a N o r d a h l was a n a c c o m p l i c e , b u t d e n i e s t h a t W e i t z , D a r b y o r Miller a r e i n a n y way l e g a l l y a c c o u n t a b l e f o r t h e c r i m e . in the alternative that, The S t a t e a r g u e s even i f a l l of t h e f o u r w i t n e s s e s a r e c o n s i d e r e d accomplices, t h e r e is s u f f i c i e n t e v i d e n c e i n the trial testimony record to corroborate key portions of their . Section 45-2-302(3), MCA, defines the concept of accomplice relevant here: "When a c c o u n t a b i l i t y e x i s t s . A person is l e g a l l y accountable f o r t h e conduct of a n o t h e r when: "(3) either before or during the commission of an o f f e n s e w i t h t h e purpose t o promote o r f a c i l i t a t e such commission, he s o l i c i t s , a i d s , abets, agrees, o r a t t e m p t s t o a i d such o t h e r person i n t h e p l a n n i n g o r commission of t h e o f f e n s e ... II T h i s c o n c e p t h a s b e e n t h e s u b j e c t o f much a t t e n t i o n i n c a s e l a w . W e have emphasized t h a t mere p r e s e n c e a t t h e s c e n e o f a c r i m e is n o t enough t o c h a r g e one a s a n accomplice. v. Fish 2071; 120, (Mont. 1 9 8 0 ) , 6 2 1 P.2d S t a t e ex rel. 1 2 5 , 556 P.2d Murphy v. 906, 909. 1 0 7 2 , 1 0 7 8 , 37 S t . R e p . EJlcKinnon Moreover, (1976), State 2065, 1 7 1 Mont. t h e mere k n o w l e d g e t h a t a crime i s a b o u t t o be c o m m i t t e d d o e s n o t make o n e a n accomplice. P.2d 661, 1 3 3 P.2d S t a t e v. H a r v e y ( 1 9 7 9 ) , 1 8 4 Mont. 4 2 3 , 4 3 1 , 6 0 3 666; S t a t e v. 3 5 8 , 361. Mercer ( 1 9 4 3 ) , 1 1 4 Mont. 142, 152, A t r u e a c c o m p l i c e is: " ' o n e who k n o w i n g l y , v o l u n t a r i l y and w i t h common i n t e n t w i t h t h e p r i n c i p a l o f f e n d e r . . unites in the commission of a crime. One may become an accomplice by being present and joining in the criminal act, by aiding and abetting another in its commission, or not being present, by advising and encouraging its commission; but knowledge and voluntary actions are essential in order to impute guilt.'" State v. Harmon (1959), 135 Mont. 227, 236, 340 P.2d 128, 132, quoting State ex rel. Webb v. District Court (1908), 37 Mont. 191, 200-201, 95 P. 593, 597. See also State v. Bad Horse (Mont. 1980), 605 P.2d 1113, 1118, 37 St.Rep. 45, 51; Harvey, supra, 181 Mont at 431, 603 P.2d at 666; State v. Kerrigan (1930), 87 Mont. 396, 401-402, 287 P. 942, 943; State v. McComas (1929), 85 Mont. 428, 433, 278 P. 993, 995; State v. Smith (1925), 75 Mont. 22, 27, 241 P. 522, 523. 351, Accord, People v. 259 N.E.2d 382 Coddington (1970), 123 Ill.App.2d (construing 111.Ann.Stat. ch. 38, sec. 5-2 (Smith-Hurd 1972), which is identical to Section 45-2-302(3), MCA). The following analysis of the testimony of Weitz and Miller reveals nothing that would make them accomplices under Montana law, such that their testimony requires corroboration. Although we treat Darby and Sonja Nordahl as accomplices, we find that their testimony is sufficiently corroborated. Linda Weitz Linda Weitz is Hank Gillham's daughter. During trial, she testified as to Gillham's and Nordahl's actions on the night of November 12, when Gillham was allegedly planning to shoot Jean Nordahl in his shop. Weitz had accompanied Gillham to the Nordahl home in his car, and observed the parties entering and leaving the shop. She testified that Carolyn Nordahl was apparantly upset or angry after leaving the shop. Weitz also testified as to the events that took place later that evening, when Gillham arrived at Weitz's and Darby's home and told Darby to accompany hiin to the Nordahl's. Finally, she testified as to Gillham's furtive activities over the next few days, including the stashing at Weitz's and Darby's home of a satchel or suitcase full of dynamite and an orange coat worn by Gillham on the night of November 12. Appellant maintains that Weitz was an accomplice in Gillham's attempt to murder Jean Nordahl, because she allegedly was aware that Gillham would plant the bomb, and because she hid the suitcase and jacket. Appellant also emphasizes that Weitz was for a time considered a suspect by authorities during their investigation, and that Weitz personally indicated on the stand that she viewed her behavior as "abetting" her father's acts. We reject appellant's attempt to brand Weitz as an accomplice through this narrow and often slanted reading of the trial transcript. The mere fact that Weitz suspected her father might try to bomb someone does not make her an accomplice. See, e.g., Harvey, supra (fact that witness saw defendant illegally enter a truck and steal a rifle from therein did not make witness an accomplice). of Weitz's Other portions testimony not cited by appellant reveal that Weitz did not participate in the planning or execution of the crime. Weitz was afraid of her father and what he might do to her if she ever approached the authorities concerning his activities. Weitz did not display the knowing, voluntary behavior necessary to make her an accomplice in the attempted murder of Jean Nordahl. We recognize that purposely concealing physical evidence which may lead to the discovery or apprehension of an offender is a crime in itself, see Section 45-7-303(2)(e), MCA (obstructing justice). However, the uncontradicted evidence is that Weitz acted as she did out of fear for what her father might do to her, not because she had a purpose or conscious design to obstruct justice. Even if she could be charged with the crime, this would not make her an accomplice in the attempted homicide. One who "aids" an offender after a crime has been committed would not be punished for that crime. - State v. LaMere (Mont. 1983), Cf. 658 P.2d 376, 40 St.Rep. 110 (defendant charged with theft cannot claim that second party charged only with receiving stolen property was his accomplice in the theft); Compiler's Comments, Annotations, Section 45-2-302, MCA (one who aids an offender after a crime has been committed can be punished for compounding a felony, Section 45-7-305, MCA). Mike Darby Mike Darby was Linda Weitz's boyfriend. was generally identical to that of Linda. His testimony Appellant's principal objections to Darby's testimony are that he (1) assisted in planting the bomb by acting as Gillham's "lookout man" and helping Gillham find a lost wire necessary for completing the bomb; and (2) that he concealed certain evidence, thus making him a knowing accomplice. There is some evidence in the trial transcript to suggest that even the State may have viewed Darby as an accomplice. During the rebuttal phase of closing arguments, the county attorney did nothing to dispel defense counsel's unequivocal assertion that Darby was an accomplice in light of the law. Although the available evidence of Darby's actions could lead one to the conclusion that he was not an accomplice, we will not make this factual determination. We will presume that the jury, having been instructed on the law of complicity and having listened to the remarks of counsel, treated Darby as an accomplice. Nevertheless, making this presumption does not compel reversal of Carolyn Nordahl's conviction. Mike Darby's testimony is substantially corroborated by the remarks and observations of witnesses not deemed accomplices. His recital of the events prior to Gillham's return to the Nordahl garage is supported by Linda Weitz's testimony. that a bomb was planted on Jean There is no question Nordahl's truck. An explosives expert confirmed that a wire Darby took with him from the garage matched the wire wrapped around the bomb. That the wires were of the same type was also supported in testimony by an expert from the State Crime Laboratory. This testimony sufficiently corroborates that of Mike Darby. Marvin Miller Miller, one of Gillham's employees, knew about some dynamite that Gillham was planning to use, and apparantly knew that Gillham Nevertheless, accomplice was planning appellant's to murder insistance is not well-founded. Jean Nordahl. that Miller was an At no time was Miller involved in the planning or execution of the murder plot. Like many other people in the Eureka community, Miller knew of Gillham's loose talk Carolyn Nordahl's request. not make Marvin an about killing Jean Nordahl at This knowledge, however, does accomplice. Harvey, supra; Mercer, supra. Sonja Nordahl Sonja Nordahl's actions arguably were those of an accomplice, and the State freely acknowledges this point. She apparantly knew about Gillham's plans, and her phone calls to Gillham with information about her father's work schedule permit an in£ erence that she knowingly and voluntarily assisted Gillham and her mother in their plans. Nevertheless her testimony was not crucial to reaching a guilty verdict. In any event, we note that some portions of her testimony, including the statements about the placement of the envelope in Gillham's car, were corroborated by other witnesses. In summary, we find no credible evidence to suggest that either Linda Weitz or Marvin Miller were accomplices in the attempted murder of Jean Nordahl. stands basis on the witnesses. same Corroboration as that was Their supplied unnecessary. credibility was a matter for the jury to decide. Horse, supra, 605 P.2d at 1118, 37 St.Rep. at 52. testimony by other Their Bad See - Although we treat Mike Darby and Sonja Nordahl as accomplices, there is sufficient evidence in the record to corroborate their testimony. The conviction of Carolyn Jean Nordahl is affirmed. Justice i i We concur: Chief Justice
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