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State v. McGarvey12/6/2005
son who has been referred to in these matters, . . . establish that the matter occurred in Flathead County; . . . establish or identify a weapon which caused the deaths." The court denied the motion without explanation. At the conclusion of the three-day trial, the jury convicted McGarvey of two counts of deliberate homicide. The court sentenced McGarvey to 100 years on each homicide count, with a consecutive additional ten years on each count for the use of a weapon. The sentences are to run concurrently with no parole restriction.
ISSUE
Whether the District Court properly denied McGarvey's motion for a directed verdict.
STANDARD OF REVIEW
"A district court's decision to grant or deny a motion for a directed verdict lies within its sound discretion and will not be overturned absent an abuse of that discretion." State v. Hayworth, 1998 MT 158, 50, 289 Mont. 433, 50, 964 P.2d 1, 50 (internal quotation omitted). "A directed verdict of acquittal is appropriate when the State fails to prove its case and there is no evidence upon which a jury could base a guilty verdict. No abuse of discretion occurs if, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." State v. Giant III, 2001 MT 245, 9, 307 Mont. 74, 9, 37 P.3d 49, 9 (citations omitted).
DISCUSSION
McGarvey argues on appeal that, as a matter of law, the evidence presented at trial did not sufficiently support the guilty verdict, and therefore, the District Court should have granted his motion for a directed verdict of acquittal. McGarvey's primary contention is that Armstrong and Edwardson, the two witnesses who testified to McGarvey's alleged extra-judicial confession, were patently unreliable and therefore corroboration should have been required in order to uphold their testimony.
At the outset, we note the State's argument that McGarvey failed to preserve this issue for appeal because he "never raised the claim that the two confession witnesses ought as a matter of law to be held unworthy of credit." We disagree with the State and conclude that McGarvey's appeal is appropriately before us. "In order to properly preserve an issue for appeal, a defendant must make a timely objection or motion to strike. For an objection to be timely, it must be made as soon as the grounds for the objection become apparent." State v. Whitlow (1997), 285 Mont. 430, 442, 949 P.2d 239, 247 (citations omitted). At the close of the State's case-in-chief, McGarvey's trial counsel moved for a directed verdict, arguing the following:
The State has failed in its efforts to establish or identify a weapon which caused the deaths of these individuals. There is no physical evidence which connects Mr. McGarvey in any respect to the events with which he is charged. The--frankly, the only evidence presented to this court is the testimony of two highly incredible individuals whom the State itself has impeached in regard to their credibility.
So, Your Honor, there is no evidence at this time that would warrant this matter being submitted to the jury for its consideration.
By moving for a directed verdict based on insufficiency of the evidence after the State concluded its case-in-chief, McGarvey preserved the issue for appeal.
Turning to McGarvey's argument, we begin by addressing the case law upon which McGarvey relies as a basis for his assertion that insufficient evidence existed to support his conviction-specifically, because Armstrong's and Edwardson's testimony was not corroborated by any independe
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