STATE v GONYEA
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Xo. 85-355 I N THE SUPREME COURT O F THE S T A T E O F MONTANA 1986 STATE O F MONTANA, P l a i n t i f f arid R e s p o n d e n t , -vsROBERT W I L L I A M GONYEA, D e f e n d a n t and A p p e l l a n t . D i s t r i c t C o u r t of t h e F o u r t h J u d i c i a l D i s t r i c t , I n and f o r t h e C o u n t y of M i s s o u l a , T h e H o n o r a b l e Jack L . G r e e n , Judge p r e s i d i n g . A P P E A L FROM: COUNSEL O F RECORD: For A p p e l l a n t : J a m e s P. O'Rrien, Missoula, Montana For R e s p o n d e n t : Mike G r e e l y , A t t o r n e y General-, H e l e n a , Montana Barbara Claassen, Asst. Atty. General, Helena R o b e r t L. D e s c h a m p s , 111, C o u n t y A t t o r n e y , M i s s o u l a Robert Terrazas, Deputy County Attorney, Missoula, Montana S u b m i t t e d on B r i e f s : Decided: 4- l ( ,i F i l e d :'-" - : Clerk Aug. 21, January 6 , 1987 1986 Mr. Justice John Conway Harrison delivered the Opinion of the Court. A jury found the defendant/appellant guilty of four counts of burglary. He was sentenced by the court of the Fourth Judicial District in Missoula County, Montana, to twenty-five years in the Montana State Prison. A ten year sentence was imposed in each of the burgl-ary counts, three counts to run concurrently, but consecutive to the sentence in Count I. the Five years were added to the sentence because defendant is a persistent felony offender. He is designated a non-dangerous offender for purposes of parole. Defendant appeals. We affirm. Appell-ant (Gonyea) presents two issues on appeal: (1) whether there was sufficient corroborating evidence to uphold his conviction; and (2) whether comments by the prosecution on voir dire and opening statement violated his constitutional right against self-incrimination. Gonyea first argues insufficient corroborating evidence to uphold his requirements conviction. for The corroborated statutes set testimony forth the and accountability : A conviction cannot be had on the testimony of one responsible or legally accountable for the same offense, unless the testimony is corroborated by other evidence which tends to connect the defendant with the commission of the offense ... ... ... Section 46-16-213, MCA. A person is legally accountable for the cond.uct of another when: 13) either before or during the commission of an offense with the purpose legal to promote or facilitate such cormission, he solicits, aids, abets, agrees, or attempts to aid such other person in the planning or commission of the offense ... Section 45-2-302, MCA. The question as to whether a witness for the State is an accomplice is--unless such fact is undisputed--for the jury, under proper instruction by the court. State v. Slothower (1919), 56 Mont. 230, 232, 182 P. 270, 271. he District Court instructed the jury: It is a question of fact for the jury to determine from the evidence and from the law as given you by the court whether or not any witness other than. Neil Vanderpan was or was not an accomplice within the meaning of the law. This is a proper instruction. The jury also was instructed as to what an accomplice is and when legal accountability exists. At the close of the State's case-in-chief, Gonyea moved for a directed verdict, alleging insufficient evidence to sustain a conviction for the burglaries. He argued the three key witnesses against him were accomplices as a matter of law and there was insufficient independent corroborative evidence tending to connect him with the commission of the crime. The State admitted Neil Vanderpan was an a-ccomplice as a matter of law, but contested Gonyea's claim that Neil's mother, Selah Vanderpan, and Kris Davis were accomplices as a matter of law. The concept of legal. accountability has been the subject of much attention in case law. ... is "one who An accomplice knowingly, voluntarily and with common intent with the principal offender unites One in the commission of a crime may become an accomplice by being present and ioining in the criminal act, by ... aiding and abetting another in its commission, o r , n o t b e i n g p r e s e n t , by a d v i s i n g and e n c o u r a g i n g i t s commission; b u t knowledge and v o l u n t a r y a c t i o n s a r e e s s e n t i a l i n o r d e r t o impute g u i l t . " S t a t e v. Harmon ( 1 9 5 9 ) , 135 Mont. 227, 236, 340 P.2d 128, 132, q u o t i n g S t a t e e x r e l . Webb v . D i s t r i c t C o u r t ( 1 9 0 8 ) , 37 Mont. 1 9 1 , 200-201, 95 P. 593, 597. N e i l Vanderpan night of t e s t i f i e d he l e f t work w i t h Gonyea t h e t h e b u r g l a r i e s and t h e y went t o A n n e t t e C l e a r y ' s trailer. trailer. Cleary, her son, and Davis Kris were T h e r e a f t e r Vanderpan and Gonyea l e f t , at the s p e n t about two h o u r s a t a S e e l y Lake b a r , t h e n r e t u r n e d t o t h e C l e a r y ' s trailer. again About left the half an trailer. hour later, Outside Gonyea the and Vanderpan trailer Gonyea told Vanderpan t h e y w e r e g o i n g t o t h e R u s t i c s t o b r e a k i n . They broke a l o c k o f f t h e d o o r t o t h e saw shop and t o o k money from d r a w e r s . Then t h e y broke t h e l o c k on t h e d o o r t o t h e warm-up and t o o k money trailer They proceeded to from t h e pop machines. t h e Swan V a l l e y C e n t e r open t h e back door. They t o o k a s a f e , store, and p r i e d a b l a c k box, and a bank hag behind a nearby b u i l d i n g , s t u f f e d t h e i r p o c k e t s w i t h money and h i d what t h e y d i d n o t t a k e . They r e - e n t e r e d s t o r e and t o o k c o f f e e c a n s c o n t a i n i n g c o i n s . back toward C l e a r y ' s trailer, the Then t h e y went h i d t h e c a n s by t h e s i d e o f C l e a r y l s g a r a g e , and went i n s i d e t h e t r a i l e r . There i s no e v i d e n c e t h a t K r i s Davis was i n v o l v e d i n the commission of the burglaries. She was present when Gonyea and N e i l Vanderpan r e t u r n e d t o C l e a r y ' s t r a i l e r a f t e r allegedly committing the burglaries. She saw them remove money from t h e i r p o c k e t s and saw Gonyea h i d e some o f i t i n a closet i n the trail-er. Gonyea t o l d h e r a b o u t t h e b u r g l a r i e s , and that she should tell anyone who asked that he was with her all that evening and night. About a week after the burglary, Davis went with Gonyea and Neil Vanderpan to Kalispell. and Davis rolled coins. Vanderpan drove and Gonyea Davis made two trips into Rosauer's with fifty dollars in coins, which she exchanged for paper money This trio made two more trips to Kalispell during the next few days. Selah Vanderpan drcve them both times. She testified she did not know before the first trip that Gonyea had committed the burglaries. There is no evidence to the contrary or to support the contention that she helped plan or commit the burglaries. Tr find sufficient evidence in the record tending to ie show neither Selah nor Kris were accomplices to make the question one for the jury. 467, 474, 239 P.2d State v. Searle (1952), 125 Mont. 995, 999. It is within the sound discretion of the District Court to decide whether a motion for directed verdict should be granted. Section 46-16-403, MCA; State v. Goltz (1982), 197 Mont. 361, 642 P.2d 1079; State v. Doney (Mont. 1981), 636 P.2d 1377, 38 St.Rep. 1707; State v. White Water (Mont. 1981), 634 P.2d 636, 38 St-Rep. 1664. The motion was properly denied. Thereafter, Gonyea introduced evidence to sustain his position. All evidence was considered by the jury, after proper instruction. "[Wlhere the evidence is conflicting or doubtful, either as to [whether the witness for the State is an accomplice] or as to corroboration, the court should not invade the province of the jury. " Mont. 22, 27, 241 P. 522, 523. State v. Smith (1925), 75 To constitute rone] an accomplice, he must have entertained a criminal intent common with that which moved the defendants and since [they were] not personally present joining in the [burglary, they] must also have advised and encouraged its commission. Whether [they] entertained the criminal intent, and whether [they] advised and encouraged the defendants, were questions properly for the determination of the jury under appropriate instructions. ... State v. Slothower, supra, 56 Mont. at 232, 182 P. at 271. The jury did not determine that Selah Vanderpan or Kris Davis had the requisite criminal intent (mental state) to commit burglary, or that they aided in any way the planning of the burglary. accomplices. Therefore it determined they were not We will not overturn a jury's decision when it was reached after proper instruction. Because neither Selah nor Kris was an accomplice their corroborative testimony is " [ T I he corroboration is sufficient if, 'unaided admissible. the testimony of an accomplice, tends to connect the defendant with the commission of the offense. I " omitted.) (Citations State v. Smith, supra, 75 Mont. at 27, 241 P. at 523. Gonyea did not testify in his own behalf. He argues the prosecutor's comments on voir dire and opening statement were highly improper mistrial was denied. and prejudicial. His motion for Gonyea also claims certain statements made by the prosecutor on opening statement were prejudicial. He argues these two incidents entitle him to a reversal of h.is conviction. We disagree. The right of an accused to remain silent is, of course, fundamental. It is well settled in this state that a comment so stating is not the same as a comment on the failure to exercise that right. Sta.te v. Gladue (~ont.19841, 677 P.2d 1028, 1032, defendant's 41 St.Rep. failure 249, to 254. testify comment A violates on the the self incrimination clause of the Fifth Amendment, applicable to the various states by way of the Fourteenth Amendment. Griffin v. California (1965), 380 U.S. S.Ct. 1229, 1231, n. 3, 14 L.Ed.2d 609, 611, n. 3, 85 106, 108, n. 3. The prosecutor or judge who makes such a comment "solemnizes the silence of the accused into evidence aga-inst himself." Griffin, supra, 380 U.S. at 614, 85 S.Ct. at 1233, 14 L.Ed.2d at 110. Such a comment results in reversible error. After careful consideration of the entire transcript, however, we are persuaded neither the prosecutor's comments on voir dire, nor opening statement can be held to have been such comments. reasonable doubt. We find them to be harmless beyond a State v. Gladue, supra, 677 P.2d at 1031, 41 St.Rep. at 253; Chapman v. California (1976), 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, 710. We do not find: [Tlhe language used was manifestly intended or was of such a character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify. 780, State v. Anderson (1976), 156 Mont. 122, 125, 476 ~ . 2 d 782, citing Knowles v. U.S. (10th Cir. 1955), 224 F.2d 168, Defendant's right not to testify is clearly protected. The prosecution should not refer to the right directly or indirectly at any stage of the trial. Failure to follow this rule of conduct is inviting a mistrial or reversal on appeal. We affirm. Pf / / i \ Justices
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