*1 DUNCAN PEDER MCKENZIE, JR., Petitioner Ap v. GLENN OSBORNE, SHERIFF OF CASCADE pellant, COUNTY, MONTANA, BLODGETT, JAMES ACTING WARDEN, AL., MONTANA STATE PRISON ET Respondent. No. 81-110. 8, Submitted June 1981. 29, Decided Oct. 1981. Rehearing Denied Nov. 1981.
Dissenting Opinion Jan.
1982.
MR. JUSTICE SHEEHY delivered the the Court. of Appeal Eighth from an Court, order of the District Judicial County, denying petition District, Cascade of Duncan seq., McKenzie, Peder Jr. for relief 46-21-101, under section et 30 relief) seq., 46-22-101, (post section et and
MCA conviction (habeas corpus). MCA McKenzie, was Jr. convicted of Peder Duncan
Defendant
aggravated kidnapping
homicide and
deliberate
crimes of
the
by jury
County
Cascade
Court of
in the District
verdict
The convictions and
death.
was sentenced to
thereafter
appeal
v.
Court. State
affirmed
were
sentence
(hereafter
(1977),
278,
“We the entire have reconsidered appeal original all issues raised in Patterson, but also on judgment opinion Court’s This constitutes this Court. to this following v. McKenzie remand.” State case in the entire (1978), (McKenzie II). 1205,1210 280, 288, 581 P.2d 177Mont. Following conviction sentence affirmance of the our sought relief under the Sentence II, defendant provisions section Court, under the of this Review Division petition seq., was review MCA. His for there 46-18-901,et attempted appeal decision to this Court of that denied. His provided appeal our statutes denied, since no was also Review Division. Sentence decisions of the from petitioned again United certiorari to the for Defendant granted. case was Supreme The Court, and it States light again us further consideration remanded to Supreme v. in Sandstrom Court decision United States (1979), 2450, 39. 61 L.Ed.2d 510, 442 U.S. S.Ct. Montana (1979), 443 U.S. v. Montana is McKenzie remand citation L.Ed.2d 871. S.Ct. remand, this Court us second came on the case When the saying: again case, gave again full consideration light only in case, not entire “We have reconsidered raised in all issues Sandstrom, also on but Patterson judg- opinion appeal. this Court’s original constitutes This
31 following 428, 436, 608 P.2d case remand.” in the entire ment St.Rep. 325, 328. 37 report v. is in State McKenzie third consideration of our (hereafter
(1980), St.Rep. 37 325 McKen- Mont., 428, 608 P.2d III). zie again sought
Following certiorari III, McKenzie defendant petition Supreme Court, his but the United States from (1980), 626, 1050, 101 449 S.Ct. v. Montana U.S. denied. (Justices dissenting). Brennan Marshall and 66 507 L.Ed.2d appellate process, Having McKenzie on exhausted thus Eighth January 1981, filed in District Court of the 5, post-conviction petition relief District, his Judicial petition corpus. which we are is with now con- habeas That petition we cerned. is denial of that now enter It from the upon McKenzie IV. presently
Counting in Montana are defendant, there following facing their persons sentence of death three by juries. been All three cases have convictions criminal post-conviction appeals from denials this Court on before (1981),Mont., v. Montana in recent months. Coleman relief Fitzpatrick St.Rep. v. Montana 1352, and 633 P.2d III), (Fitzpatrick (1981), St.Rep. 1448 P.2d Mont., 638 opinion. cases, already preceded two In the other this have rely on and decided. We will issues have been some identical opinion, discus where the in this to them to some extent refer pertinent. sions are cases,
One issues has arisen in all three of the which here, issue we is extent of review to first come post-conviction relief on mat- defendant entitled under ap- litigated have been raised and in course of the ters that pellate process. issue, the first extent of review is that the
We state although State, briefs McKenzie and the of both jurisdiction question raised is has first whether this Court post- appeal a an from decision of the District Court seq., 46-21-101, MCA. case, relief et conviction under section right appeal parties party ahas Both concede either petition under from district court order entered on such agree appeal lies in 46-21-203, section MCA. We case. review, and indeed
With to the extent of our respect Court, review case of the District contends erred in review issues rais- that the District Court refusing ed McKenzie in by holding petition, previous McKenzie cases raised “res decisions of this Court bar” and issues considered judicata previously “that on direct are raised McKen- in this appeal appropriately petition”. zie misapplication by contends that the the District Court of res judicata action affected principles post-conviction *6 entirety of the District Court’s decision and for that be reason should reversed.
The
McKenzie is
responds
State
that
on dicta found
relying
in earlier cases in
and
rule is
this Court
the true
that
this
will refuse
Court
reconsider issues on which has
to
previous-
ruled; that the
Relief
is
ly
Post-Conviction
Act
intended
a
to assure
convicted
has an
that
felon
one
opportunity,
oppor-
to
material
issues
tunity,
present
affecting
conviction.
the most recent Coleman
case,
In
1359,
38
supra,
at
St.Rep.
held
res
be
a
judicata
this Court
cannot
applied
deprive
to
a
convicted defendant of his
to file
right
post-conviction peti-
tion,
may
but the rule
be used
bar
of issues
rehearing
to
Sanders v. United
States
(1963),
373
already litigated, citing
1,
1068,
U.S.
83
McKenzie relies here dicta upon contained Standley In 248, 522, 626 38 and (1981), Mont., P.2d St.Rep. Re McNair (1980), Mont., 916, 615 P.2d 37 1487. In St.Rep. cases, a relief we petition post-conviction those stated that for MCA, bas 46-21-102, subject objections under section not laches, ed res of limitation. judicata, on or the statutes relief was Nonetheless, cases, in post-conviction those two in McNair a 8 1/2 denied, years asking of for the delay for
33 delay years. Standley McNair, we relief, and in for of part delay question good faith raised the on said such Standley, imprac- pointed petitioner and in out the we Standley original plea guilty ticability if his of retrial of were be withdrawn. allowed to (1980), Spurlock Mont., 614 P.2d
Nonetheless, in
v. Crist
St.Rep.
1146, 1149, we refused
498, 501, 37
to consider
corpus proceedings
habeas
Court issues
had been
argued
appeal.
previously
Quigg
and decided on
In In Re
(1976),
441,
994,
544 P.2d
425 U.S.
Mont.
cert.denied
petition
post-conviction
is more real. We than cannot fault counsel for the explore every legal defendants, are whose nuance duties part clients, defense of their consonant with ethics proprieties raising law, such issues. It be should clear, however, that the broad statements made in McNair Standley, supra, are not followed here. be clear To reject Standley it, we about do not our statements in judicata, supra, McNair, res laches and statutes of limita- post-conviction are a bar relief, tions or to habeas cor- *7 pus, proper say concept finality, in a case. We do of appellate process when been exhausted, has or the judgments respected final, of have conviction become must be fully finally litigated. as to issues which have been and required Neither are the district courts nor we to turn over ground already plowed, even in cases. Suc- death again petitions again cessive motions and and directed to the judicial, purpose. same issues serve no social or individual problem post-conviction by relief as affected finality judgments escaped has not attention American Bar Association in its Standards Criminal for (2d ed.). adopted a Justice It has deals with standard that postconviction judicial system applications in same original prosecution, example, conducted the for state prisoner seeking post-conviction relief in courts. the state (2d 22-6.1, ABA Standard Standards Criminal Justice for ed.). adopt by We standard, from that as rules be followed in cases, district courts this and like and us for decision following: case, (A) Any fully finally litigated issue has been and in the proceedings leading judgment of the conviction should relitigated post-conviction proceedings. be not (B) fully finally litigated issue An should be deemed and highest when the court of the state to which defendant could appeal right question. has ruled on the merits of the
(C) Finality, by objection when raised and shown or affir- part relitiga- mative defense on the of the state is bar to the fully finally litigated and tion of issues.
We will further follow same ABA Standard determining post-conviction applica that claims advanced in though they might tions shall decided merits, on their even fully finally litigated pro been, have were but in the ceedings leading judgments conviction, unless barred process. process because abuse Abuse of occurs where an applicant post-conviction proceedings raises in a factual or legal petitioner deliberately contention which the inex or cusably proceedings leading failed raise in conviction, having pursue raised court, contention failed to (ABA appeal. the matter on Standards Criminal Justice for (2d ed.) 22-6.1.) Having Standard rules, stated those which we implicit rulings, were consider in our former is clear previously- this Court should not and will not consider litigated appeal issues in this we will sustain the refusing fully finally District Court for to consider litigated post-conviction proceedings issues in the before it. point Fitzpatrick Rep. See our discussion on this III, 38 St. at 1450-51,638 P.2d 1002.
Having proceed determined, so we to examine issues petition post-conviction raised in McKenzie’s relief. It will be noted that some of issues have been considered Court not once but two and In all three times. the annals of justice single state, criminal in this we find case in no which legal (using defendant has received more tender care *8 handling). “tender” in the sense of careful and sensitive
35 I. Search and Seizure Court, in considering District
Petitioner contends that the
relief,
not address his
did
for
application
post-conviction
(1)
testimony
sworn
unwritten
allegations respecting:
factual
(2)
warrants;
issuance
search
support
purporting
warrant; and,
lack of
in the search
specificity
overbreadth
(3)
and
warrants,
cause
the search
issuing
lack of
probable
bases,
he should have
hearing.
on those
contends
issues
refused to consider the
further because
District Court
by
earlier
this Court.
decisions
level,
we
in the criminal
First
note that at the District Court
him,
was
on
hearing
defendant
against
granted
proceedings
evidence
search
produced
his motion
suppress
was denied.
denial
warrants and the order
That
suppression
was
all
before this Court at
times when the
suppression
(a)
McKenzie cases
were
considered. We further note:
being
1
considered, fully
issue no.
under
was
heading
litigated
this
McKenzie
I,
1034,
557 P.2d
and decided
this Court in
at
II,
III,
McKenzie
McKenzie
1035;
1211, 1212;
581 P.2d
and
at
(b)
2
608
considered,
fully
P.2d
437.
issue no.
above was
at
I,
Court McKenzie
557 P.2d
and decided
at
litigated
this
II,
III,
McKenzie
1035;
608
McKenzie
1212, 1213;
P.2d
at
(c)
considered,
438.
issue
was
fully
P.2d at
no. above
litigated
I,
in McKenzie
1034;
557 P.2d
and decided
at
by this Court
III,
II,
1212;
581 P.2d
and
The District Court noted had conceded petitioner relief that counsel for conviction re was not development factual argument at oral further record concession, and the voluminous Based quired. no issues, District found case these exploring fair to search with hearing respect denial of full seizure. We agree.
II. Mental Bifurcation —Instructions Defect—Trial Court, the claims un- petitioner In Ms to District application (1) him error in the trial court’s refusal against constitutional a insanity/diminish- issue of his to bifurcated trial the grant (2) crime; commit the in capacity refusing ed mental to to ap- defense to assist counsel to point psychiatric experts for the defendant unless he submitted an interview testify to and unless by reports with an the court of expert appointed were experts the interview the submitted to the court (3) was in before the testimony presented; admitting testimony of the prosecution’s psychiatric expert relating to his exercise Fifth to remain petitioner’s rights of Amendment brief in such interview. in ex- silent Petitioner’s this Court (4) to further pands allegations argue those it was error for cure rely this Court to on instructions to the to given ex- error in alleged permitting prosecution’s psychiatric testify defendant had remained silent. pert to (a) The offers law petitioner authority no under our that a as a defendant law is a matter constitutional entitled to jury trial on the issue diminished separate insanity men tal to crime capacity 95-507(c), commit the charged. Section (now 1947, R.C.M. in at the time sec effect of petitioner’s trial 46-14-213(1), MCA), tion the issue be decided to contemplates v. in State Olsen the trial”. This Court held “upon (1971), 156 339, 343, P.2d 822, 824, Mont. defendant who gives notice of as a defense is insanity entitled not to bifurcated trial. We rule hold the same ato defense of mental applicable disease or defect.
(b) With to issue in respect no. heading, above there is authority division of to of an accused right expert investigation his psychiatric under help Sixth Amendment rights, but the Ninth Circuit has held refusal of expert does help not violate due process Sixth through and Fourteenth Amendments proceedings state absent v. prejudice. Mason State Arizona (9th showing Cir. 1974), 504 Here, F.2d 1345. has petitioner not or shown alleged any prejudice that resulted to him from denial by District Court in criminal proceedings of the motion to ap point psychiatrists aid counsel defense. (now effect, R.C.M. then
(c) 95-507, section Under trial, MCA), any 46-14-213, upon provided section 95-505, R.C.M. under section who reported psychiatrist MCA) 46-14-203, be called (now may 46-14-202 and sections be in- jury may The statute provides either party. court or designated the psychiatrist formed that addition, Warm Springs Hospital. by the superintendent defense summon other may any and the both the prosecution defen- has examined the testify who qualified psychiatrist case, criminal when the during proceedings, dant. In this interview, defen- counsel for the court ordered the psychiatric exercise court that the defendant would open dant stated relating remain silent as to right questions *10 His silence was Harding Lana homicide. testified to in at the time of their court. psychiatrists appearances Court, issue, in discussing applica- The District in this the relief, noted that the psychiatric tion for post-conviction innocence, as nor did guilt witnesses drew no inference to or inference noted that they jury. such court suggest since peti- one of witnesses testified that the psychiatric the incident, shed he the light tioner would no on the presumed innocent. The District Court also out that pointed petitioner 43, trial, in no. the during the court’s instruction petitioner’s inferences was it was draw no unfavorable jury told that to short”, “In said from silence. the District petitioner’s the Court, in shows the State “nothing exploited the record as the so to burden the psychiatric testimony petitioner’s remain We and find agree Fifth Amendment to silent.” right no prejudice.
(d) issue in it heading, In connection with no. the above defendant require was not error for the District Court to the case. a in Under section to submit to interview this psychiatric (now 46-14-202, effect, R.C.M. section 95-505, then ex MCA) such an may court order it provided a to when a has filed notice of intention amination defendant excluding disease or defect defense of mental rely on the his fitness to pro if is reason to doubt or there responsibility, disease or believe that mental ceed, if is reason to there an issue in the will become defendant otherwise defect of the a a circumstances, may psychiatric court order cause. those we noted, stated Court and, as District examination (1969), Jud. Dist. v. District Ct. 13th rel. ex Sikora State does 897, 899, the constitution 462 P.2d 241, 245, Mont. defendant) deny (a a defend to to so right “assure his position.” truth of check into the chance to state 4 under (e) issue no. this Further, respect with in jury general on the rely is error to whether heading, testimony effect of psychiatrists to offset structions examination, silent during remained defendant on rely is not sufficient to that it further contention admis is an implied because there instructions such general relies insanity/diminished on when defendant sion of guilt 455, 456, 457, this III, 608 P.2d capacity, mental given careful instructions fully discussed Court already We have criminal in the proceedings. District Court informed specifically District noted that re defendant’s be drawn from the inference that no We therefore interview. psychiatric maining during silent respect District Court with holding of the confirm the heading petitioner’s application raised under issues relief. post-conviction however, we out that issues, point set of leaving
Before
1041, 1042, 1043, and again
557 P.2d
I,
in McKenzie
at
answered the
II,
peti-
581 P.2d
this Court
statutes
of our
constitutionality
on the
tioner’s attacks
re-
when defendant intends
required
the notice
relating to
*11
defense, and the
mental
insanity/diminished
capacity
on an
ly
be followed thereunder.
to
procedures
Trial
III. Admitted Exhibits —Conduct of
Petitioner’s,
relief also con-
for post-conviction
application
(1)
ad-
in
denied
rights
he was
constitutional
tended that
criminal proceedings
evidence in the
court into
mission
(2)
victim,
in
District
of the
inflammatory photographs
sub-
and refusal to hold
of trial
of the order
changing
Court’s
(3)
chief,
in
case in
defendant’s
until the
witnesses
poenaed
in the cour-
use
devices
recording
to
permitting spectators
(4)
circus-like at-
and
troom,
inflammatory
allowing
int
(5)
courtroom,
allowing family
and
in
in the
to exist
mosphere
expressions
make emotional
victim to
and friends
jury.
of the
in the presence
the petitioner
toward
(a)
inflammatory
to
respect
The
with
contention
considered,
and decided
fully litigated
was
photographs
in McKenzie
II, 581 P.2d
McKenzie
at
Court in
III,
(b)
to
allowing
agents
give
in
This Court found no error
chain
of the
testimony prior
completion
expert opinion
based, in McKenzie
was
which the opinion
of evidence upon
III,
IV. Sandstrom Instructions he was denied due process contends petitioner (1) directed the instructions to the the trial court’s use charged by offenses find elements of the jury to burden of which shifted the and “inferences” “presumptions” *12 40
persuasion jury adopt to the defendant allowed the to in- beyond ferences which did not follow a reasonable doubt from (2) they based; which were facts on that the instructions (3) examples contained numerous erroneous which were designed inescapable peti- to lead the conclusionof guilt. petitioner brief, tioner’s In contends that he has been inconsistently Wogamon treated with our decision in v. State (1980), St.Rep. Mont., 610 1161, P.2d 1165,37 846. 840,
(a)
seq.,
fully
In
III,
456,
McKenzie
608P.2d at
et
this Court
petitioner’s
reviewed
contentions
his
conviction and
light
sentence should be set aside in the
v.
Sandstrom Mon-
(1979),442
510,
tana
U.S.
2450,
99 S.Ct.
(b) Petitioner’s contentions that the instructions con examples designed tained erroneous and were lead in escapably guilt part parcel to defendant’s were of our con sideration under the Sandstrom case and III. McKenzie Peti attempted way tioner has not to show in how ex amples jury inescapably guilt led the and we find no design, such intentional or otherwise.
(c) agree holding We do not in III is in- holding Wogamon. Wogamon, consistent with our in In we pointed Supreme out that the United States Court in decision spate appeals Sandstrom had resulted in a to this Court claiming Wogamon instructional error. We further in showed brought except in all original us, the cases for the Wogamon, Sandstrom decision we had found no reason aside set the convictions in those several cases on the basis Wogamon, the Sandstrom instruction. 610 P.2d 1164. at Nor given can be petitioner said that we have kind different legal provided Wogamon. Wogamon, treatment we than applied principles we declared the United States Supreme Winship (1970), In Re 397 238, U.S. 90 Mullaney (1975), S.Ct. 25 368, and L.Ed. v. Wilbur U.S. 1881,44 S.Ct. L.Ed.2d 508.We also declared finding harmless in a instruction, error Sandstrom “we agree must able to as a Court that the offensive instruction reasonably jury’s could not have contributed to the verdict.” Wogamon, 610 P.2d 1165. III, case, we found that
In the petitioner’s was so guilt overwhelming McKenzie’s evidence of Sandstrom have could not con possibly instructions *13 in and that the to conviction therefore petitioner’s tributed in error. Court were harmless The of this position structions III was McKenzie when United States disturbed the not decision McKen in refused certiorari from the Court Supreme III 1050, 626, zie 101 66 507. 449 S.Ct. L.Ed.2d (1980), U.S. in justices disagreed States Court True, Supreme two United majority a of the dissenting Supreme Nonetheless the opinion. sought when certiorari was with found no reason McKenzie III disturb the reliance of this Court to respect Wainwright (1972), v. Milton 371, 92 2174, 33 407 U.S. S.Ct. on 1, infirmity the is ex L.Ed.2d to the effect that constitutional cluded where evidence the conviction. overwhelming supports err
Therefore, Court did in the denying the District not peti- Sandstrom under tioner’s contentions the instructions. Sufficiency V. the Evidence contention,
Under
petitioner
claims that
court
III,
447-448,
608
rejected in
P.2d at
improperly
claim that
was
Lana
there
insufficient
evidence
a
was
Harding’s death resulted from
or that she
kidnapping
her
He
in
prior
tortured
death.
further contends
brief that
standard
applied by
the
this Court
that determina
making
has
as a
tion
been
of federal
repudiated
matter
constitutional
Virginia (1979), 443
v.
Jackson
99
307,
2781,
law in
U.S.
S.Ct.
(a) course, Of issue sufficiency of the of the evidence to the verdicts that the defendant support committed deliberate a homicide torture and that result of her kid- aggravated died, Lana considered, been napping, Harding fully has III, by this Court litigated decided 608 P.2d 447-448. at Winship, Jackson, that based on Re In was 397 stated 358,
U.S. 90 S.Ct. 25 L.Ed.2d inquiry critical review of a of evidence criminal sufficiency support con- viction must to determine was whether simply doubt, on reasonable determine properly instructed but to 42 reasonably support finding evidence could
whether record guilt beyond rele- doubt. It was stated that the reasonable viewing question whether, the evidence vant is after prosecution, light trier of rational most favorable of the crime could have found the essential elements fact beyond repudiating doubt, reasonable rule. “no evidence” Jackson, 318-320, 443 U.S. at S.Ct. 2789-90. applied III,
The in McKenzie this Court contention that sufficiency determining standard in of the incorrect implicit perhaps though earlier issue, is a new in our evidence respecting overwhelming criminal evidence of statements finding sufficiency pain- is a evidence. It intent of the light repeat, State, ful testimony most favorable to Harding initially Pfaff was was Dr. that Lana strangulation rope. attempted means with assaulted thereafter, she was She lived from to minutes until heavy object. head with State contended struck on the heavy object was in the defen- the manifoldthat found *14 pickup. blow, She died or minutes of that dant’s within opened exposed skull and her brain tissue. In addi- which her major a number tion, were five of minor wounds to there heavy may head which have been inflicted the same in- objects lighter lighter were a Other metal strument or one. petitioner’s pickup. Har- Dr. Pfaff Lana found in testified that may may ding have been after the initial at- or conscious multiple tempted strangulation, are wounds which but there give received she was in She had evidence that fact conscious. part top face and head, the front of her blows to the ofthe over right backs her hands were bruised side. The of both of on the attempting ward she was to off the which would indicate that abra- wounds, blows her assailant. These contusions of any beyond a rational sions are evidence reasonable doubt to she was indeed tortured. trier of fact that aggravated kidnapping in her resulted death That the testimony. equally Pfaff Dr. testified that evident from the major caused her her head which to the inflictionof the wound bleeding. He also in extensive death would have resulted large an a absence amount of blood stated area large inflicted in that was not would indicate that the wound appreciable was in the found amount blood area. No large a teacherage However, amount of she resided. in which teacherage peti- place a near where blood was found her January night parked pickup 21,1974. his on the had tioner back brain were found in the of the Her blood and tissue drag teacherage place pickup. A trail led from the beyond pickup parked. had been This is evidence a where the Harding, alive, Lana while still reasonable doubt that dragged teacherage pickup and killed in from Again, any fact, area. the evidence is rational trier of over- whelming aggravated kidnapping that her in her resulted death. support petitioner’s
We find no contention that applied has insufficient constitutional standard Virginia, supra, any under v. under case Jackson or other we are aware of. VI. Unanimous Verdict petitioner argues contention,
Under this he was denied right jury guilt to unanimous verdict of the as charged; as and, innocence to each of the offenses that the trial jury listing court, law instructions of submitted to the peti permitted alternative, elements of the offenses in the agreement tioner’s conviction without unanimous that he had specific committed one of which acts constituted the charged. crimes with which he was He contends the trial court refused an offered re instruction which would have quired finding specific constituting a unanimous' acts specific guilty offense before verdict of could be rendered proper the trial court failed to submit verdict forms specific finding which have would allowed the to make guilt charged. specific each crimes or innocence disposing Court, contention, The District of this found no *15 right federal in criminal constitutional to unanimous verdict jury trials, constitution, Const., and under the state Mont. art. § jury provision 26, II, was found that the unanimous verdict complied jury all with since the trial the that court instructed agree “findings” 12 must the and “decisions” which con- to stituted their The determined verdict. District Court further jury theory presented supported that each was to the possibility evidence, existed so no that the substantial that support Under either verdict. evidence was insufficient to concluded, failure circumstances, the the District Court these theory jury specify require which convicted to on it to petitioner right deprive of his to unanimous did verdict. guilty jury by petitioner verdict, found the
Here, the its bywas means homicide, and found that homicide deliberate guilty ag- petitioner verdict, found torture; in another aggravated kidnapp- gravated kidnapping, and found jury ing been had in- in the death of the victim. resulted jurors agree decision,in- “all must structed that twelve findings you cluding are asked make on the additional Guilty Guilty and verdict form on the of Deliberate Homicide Aggravated Kidnapping When verdicts verdict form”. jury polled each returned, as each verdict and were findings request and defendant’s counsel said at the of the findings were affirmed. These ver- verdicts and each of the findings United States v. are the ambit of and not within dicts (5th (1980), 1977), Gipson 453, 553 F.2d State v. Green Cir. or case, in this 616P.2d reason that Wash.2d for the petitioner distinguished relies, cases on which from the support verdict under is sufficient here to evidence any possibilities is idle all under instructions. It and speculate case, under instructions of the court this overwhelming possibility evidence, there that findings less case were than the verdicts or the unanimous. Equal
VII. Protection protection equal under the denial of claims
Petitioner constitution, like federal of the Amendment Fourteenth court, the trial constitution, in provisions state of the relief, and post-conviction application for on his Court District rules of of established benefit him the denied have deci in our defendants criminal to other law afforded state objects use our also Petitioner seizure. search sions instructions. Sandstrom rule on the error harmless discriminated further been he has brief, he contends under of death sentence case of against is the superseded. repealed now a statute *16 using Basically, petitioner Fourteenth Amendment is the fully again been issues have otherwise raise which device to against litigated We have cause decided him. and validity upheld warrants, we have search of and the arrest explained application rule under the the harmless error of validity upheld we of the have Sandstrom instructions and upon permitted imposed him. which the sentence statutes rights 450. His his III, 608P.2d at contentions that against, compared discriminated when to other have been discriminatorily are defendants, he has “classed” or that been simply without merit. Legality
VIII. the Death Sentence of unconstitutionally he was sentenced contends Petitioner (a) imposed were in violation his death sentences death that: Eighth federal con- and Fourteenth Amendments ofthe of the guide were no to channel stitution, in that there standards provide sentencing court discretion of the trial or to discriminatory arbitrary impositions safeguards against (b) disproportionate was death; his the sentence of sentence given imposed he was similar cases and no the sentence to opportunity disproportionality his death to show the (c) aggravated kidnapping sentence; sentence death for his constitutionally was victim which resulted in the death required jury disproportionate was find because not (d) expert deliberately another; life of he took the that “psychiatric agreed petitioner testimony suffered from mitigating circumstance; should have been disorder” which (e) findings aggravating sentencing are factors court’s unconstitutionally vague statute and no standards existed (f) sentencing guide discretion; and, case law to aggravating upheld improperly sentence based on his further Petitioner were listed statute. which not factors required bear burden of he should contends that establishing mitigating circumstances; is entitled to that he mitigating sentences; that facts trial on the findings drawn factual were based on erroneous sentences opportunity incompetent, evidence, with no unreliable from plea agreement his disadvan- was breached to rebut; only person tage; under the death is sentenced to he capital punishment law; and, 1974 Montana death discriminatorily against applied in Montana im- poverished killing male accused of Caucasians, defendants solely upon ground poverty race, and sex. He asserts no legitimate sentence, state interest is served the death hanging punishment. is cruel and unusual III, 448-451,
In McKenzie 608 P.2d we held that the petitioner under statute which was sentenced to death *17 light constitutional when considered of Furman v. (1972), Georgia 2726, 408 U.S. 92 238, 346, S.Ct. 33 L.Ed.2d (1976), Gregg Georgia 153, and v. 428 96 2909, U.S. S.Ct. 49 constitutionality L.Ed.2d 859. The has been ful- of the statute ly by considered and decided us.
We turn now to consider attacks made McKenzie respect imposed upon with him, to the sentence the death penalty.
(1) again McKenzie states that the death laws applicable arbitrary case are and unconstitutional in his imposed “explicit that his sentence was under statute which ly permitted discretionary sentencing, death without stan guide any sentencing dards to channel and discretion or other safeguard against arbitrary discriminatory imposition of the sentence . . .: death of III,
In McKenzie this Court discussed these claims petitioner, statutory and we found that Montana scheme in existence at the time crimes of the herein afforded defen- procedural safeguards necessary protect dant the to his rights substantive to be sentenced without arbitrariness or caprice, Supreme and in accordance with the United States (1976), cases 262, Court Jurek v. Texas 428 96 U.S. S.Ct. (1976), 2950, 929, 49 L.Ed.2d v. Florida 428 U.S. Proffitt Gregg supra. Georgia, 913; 96 49 L.Ed.2d v. S.Ct. constitutionality sentencing The issue therefore statutory fully litigated scheme been has and decided. McKen- zie 608 III, P.2d 448-451. at
(2) meaningful pro McKenzie claims is review there no statutory guard against pas vided in the Montana scheme to prejudice, disproportionality arbitrariness, sion and in his sentencing. judicial prompt pointed review III, we out
In McKenzie by appeal provided to was sentence both death of his review division review the sentence fully litigated and considered, issue has been Court. This III, P.2d at 450. decided. McKenzie (3) review in his before McKenzie claims that given opportunity of Division, Review he was no Sentence Review had no standards fer and the Sentence evidence make such review. when he was before the is clear from the record
It presented evidence, no division, review sentence pro- respect present evidence with nor offered to portionality Instead, he at- his sentence. or arbitrariness of legality, appropriateness of his rather than the tacked the Sentence Review Division The function sentence. respect to with appropriateness sentence consider the particular offender, and as to offense him as an individual III, P.2d 450. involved. McKenzie review division 46-18-904,MCA, the sentence Under section authority judgment given far as it so full to review the imposed, decrease sentence to either increase or relates to the *18 may judgment, penalty. reviewing division con- In the the such records, or exhibits relevant to sider other documents appeared proceedings. McKenzie before review When requested only Division,he the division Review that Sentence 56 clerks sentenc- all District Court the records of obtain from every aggravated kidnapping ing and in deliberate homicide re- Review Division denied this case since 1972.The Sentence application quest. considering for Court, in District post-conviction proportionality is review, review a held that considers the if Sentence Review Division sufficient appealed did so consider cases. The review division records of agree Court’s we with District conclusion. and (4) ground McKenzie attacks his sentence on the that disproportionate he was convicted is the crimes which to for ground upon he did not find that further that deliberately caused had the death of another. dispropor- penalty is contends death kidnapping. aggravated v. In State
tionate to offense 48
Coleman Mont., 1000, 1017, P.2d 36 (1979), 1134, 605 St.Rep. denied, 970, 446 100 64 1150, 2952, cert. U.S. S.Ct. L.Ed.2d 831, pointed we out that the United States Court in Supreme Gregg, made life has been it clear that “when taken of- [it fender in- punishment said] [of death] cannot 187, the crime”. 428 U.S. variably at 96 disproportionate Coker v. 2932, at 49 L.Ed.2d 882. We distinguished S.Ct. at Georgia 2861, 97 (1977), 584, 982, 433 U.S. 53 S.Ct. L.Ed.2d as only relevant to crimes for which the has been being In which did in life. imposed not result the loss III, 459, 608 P.2d as at the District in Court noted considering petitioner’s relief, we found application post-conviction evidence on the issue to be of intent uncon- overwhelming, tradicted, and one of but rational conclusion— permitting McKenzie intended to and kill the victim. kidnap
(5) McKenzie claims that his sentence of death is dispropor- tionate sentences similar cases. imposed Coleman, 1021, 605 P.2d we at noted that the crime of ag has been law gravated statutory of our kidnapping part since 1973 and we were necessarily confined to review time, we of cases since which sufficient, found though not Coleman This case in number. was used in as a large com to Coleman we case and look as a parative this case com Fitzpatrick We also find State v. case. parative (1980), Mont., 606 1343, 194, P.2d cert.denied, 891, 449 U.S. St.Rep. 252, 66 118, S.Ct. L.Ed.2d to be for comparison. suitable Fitzpatrick, 606 P.2d Again, 1361, this case was used as a Fitzpatrick case in comparative discussing sentence of death. Our discussions of the similarity of these cases and the to Coleman proportionality of death sentence imposed Fitzpatrick, as well as McKenzie, our discussion of Buckley(1976), v. State 238, 557 Mont. P.2d appearing Fitzpatrick, 606 P.2d at indicate McKenzie is under a sentence that is not sentences disproportionate that have been in similar cases. imposed
(6) McKenzie attacks ground his death sentence on the that he was a disease or suffering from mental defect denominated a a disorder” which he claims be “psychiatric mitigating circumstance. ap- considering post-conviction the in Court
The District personality does presence disorder plication “The stated: automatically from the death a defendant immunize not penalty.” petitioner against this overweighing con- the factor
The jury suffered from he had find that is did not tention forming specific prevented from the which him disease mental necessary charged so, Even the offenses. for the intent proceedings sentencing in criminal order District Court’s be and found to was considered the factor shows that „ insufficient.
(7) upon the his death sentence McKenzie attacks aggravating findings ground factors is based on that it open-ended unconstitutionally vague no with are which sentencing guide discretion. channel constitutionality attacking way simply This is another statutory sentencing as we have scheme which of the Montana constitutionally is sound. above indicated court’s defined The crime of “homicide torture” approved III, us P.2d in McKenzie at instructions and sufficiently prevent applica- overbroad is definite to vic- evidence showed that the Substantial tion of the factors. aggravated kidnapping. McKenzie of an tim died as result 447-48. is no merit contention. ground III, 608 P.2d There (8) upon sentence McKenzie attacks judge aggravating sentencing relied factors other on the than found in our statutes. those post-conviction ap- considering Court, District statutory
plication, specific had found two stated that why sentencing aggravating factors and saw no reason range required wide factors not to consider court determining aggravating are circumstances whether outweighed by mitigating reason, factors. For application denying determined, McKenzie’s District Court improper postconviction for the relief, that (1) pre- petitioner’s failure to District to consider: (2) “mitigate conduct”, conviction for his sent evidence his (4) (3) “dangerousness”, rape, purported his anti-social (5) required years he behavior, the small number of would *20 50 (6) year given, if a
to serve 100 sentence were whether (7) petitioner possible; and, of rehabilitation not whether protection society. he must executed for the of agree We with District All the Court. of these factors con- sentencing aggravating sidered the bear court the fac- on properly propriety tors found the and relate to the of the sentence death.
(9)McKenzie claims his sentence is of death based findings incompetent evidence, from some of which was not against op trial, revealed to him before and which he had no portunity for rebuttal. rejected III,
In McKenzie 608P.2d 441, 442, at we these con validity similarly reject as tentions the ofhis to conviction.We respect validity these contentions with of his sentence. (10) upon ground his attacks sentence ignored plea agreement that the District or violated for lesser sentence. plea III,
In McKenzie 608 P.2d at we found that no bargain agreement fully This existed. issue has been litigated imposed and decided and is anot bar sentence upon McKenzie.
(11) McKenzie his attacks sentence because death of his only person claim that he will be the under executed capital punishment law, and that there is basis no rational distinguish his case from others.
Again repeatedly statutory we have stated that the scheme capital punishment applied for as valid, to McKenzie was and disproportionate his sentence is facts, as to the reject character, crime or his and we therefore contention.
(12) legislature McKenzie’s contention that the Montana has subsequently capital punishment provision amended the so provide aggravating mitigating consideration both and provisions circumstances, and such that no existed for his again upon constitutionality benefit, is an attack sentencing statutory respect scheme in effect with to him previously rejected. which we have
(13) upon sentence attacks death ground being imposed is that it and both Montana accused impoverished defendants against male United States poverty grounds race, upon killing Caucasians practice. discriminatory pattern sex, ain St.Rep. 1448, 1454,we discussed Fitzpatrick III, 38 In petitioner has this contention no basis for issue. We find any proof such petitioner alleged has offered none. Nor contention. upon ground
(14) McKenziefurther attacks sentence imposing purpose served in valid state that no upon him. justifications capital Gregg, two U.S. *21 ap- The
punishment and deterrence. retribution were noted: present complex issues, justifications plicability of these legislative determination, is and it with the properly left for legislature determination. will leave that this Court ground post-conviction relief. basis for is no on There by (15) penalty imposition aof death McKenzie attacks punishment. hanging as cruel and unusual 1058-59. 605P.2d at II, in Coleman We discussed this issue fully this Court. issue been decided has ap- petitioner’s finally in this case that We conclude come to plication post-conviction District was relief in Court for appeal Court, properly decision denied, to this and that on hereby We remand this affirmed. is District Court upon in which the sentence cause the District Court to proceedings imposed, as are such was for further defendant upon imposed necessary execute the sentence to petitioner. DA- JUSTICES and HASWELL
MR. CHIEF JUSTICE Judge SULLIVAN, District WEBER, MARK LY and sitting HARRISON, concur. JUSTICE for dissenting: Mr. Justice Shea
I heinous, dissent. However however barbarous the actions obligated case, still to the defendant in this this Court give appeal. full and fair We have review all issues raised on miserably obligation. failed in that
I. INTRODUCTION again myself dissenting
Once I find ato McKenzie decision. present appeal carefully filed, I Since the have studied I issues other that either didn’t know had been before, raised closely study arbitrary I didn’t have due time to issuing opinions. time limits for
I was a member of this I Court when McKenzie was my decided. In McKenzie II dissent was devoted to the search penalty seizure issues and the death issues that had been although raised. In McKenzie I III, issues, touched on other I primarily I concentrated on what considered the failure of this properly apply eight the harmless rule error un- Sandstrom-type jury
constitutional instructions—instructions expressly which had been declared unconstitutional Supreme United States I still I Court. admit that have not thoroughly studied all the issues raised in the first and subse- quent appeals, I but have concentrated those issues in on I serious, which believe reversible have error to occurred. majority have also focused on those issues the has either omit- entirely perfunc- ted from discussion or dealt with in most tory unsatisfactory misstating manner, in essence good part issues. I have also devoted of this dissent petition death issues raised McKenzie in his post-conviction relief and had which not been raised in previous appeals to this Court. Most of those issues center *22 penalty question. the death
In I addition this Introduction, divide dissent this into parts. disapprove I adoption II, In Part of this Court’s in entirely midstream anof rule res different for consideration judicata adopted applied III, issues than was and in Coleman Fitzpatrick develop infra, III, III, and infra. In I Part the evidentiary plea bargain issue, record for the and record this beyond any plea convinces me that an enforceable doubt bargain existed, and and that State court violated trial agreement. charges IV, I that In discuss and Part filed given I instructions on homicide. am convincedthat McKenzie
was convicted sentenced to death for of an the commission — by offense not defined Montana statutes deliberate by high probability means is a homicide of torture. There that jury in fact McKenzie of nonexistent of- convicted this statutory language V, I “deliberate fense. In Part discuss the by language I conclude this homicide means of torture”. that unconstitutionally vague, especially ag- since is it involves trigger imposition gravating which can of the circumstance penalty. I conclude, event, in strict death further that con- phrase requires jury’s of this conclusionthat the struction finding was that deliberate homicide committed means finding proved, therefore, was torture this cannot penalty. imposing be basis for death IVI, McKenzie, In areas raised Part discuss three argues equal protec- which he denied that this Court has him seizure, tion laws: the search and the lesser-included of the of- overwhelming application instructions, fense and the declaring eight evidence standard in unconstitutional Sandstrom-type to be instructions harmless error. IVII, several issues
In Part on at trial which convince focus me McKenzie was denied a fair ef- that trial. The cumulative requires a these errors new trial be fect of ordered. jury IVIII, In instructions and the Part focus on the multi- ple being may charges alternative result —the right been a unanimous well have denied his constitutional jury possibility verdict. The that he denied reasonable requires penalty this, case, a death unanimous verdict be reversed. that the convictions penalty raised IX, issues Part focus on death appeals, previous which were raised in
McKenzie, several of petition in his raised first time but which were for the most of disposed way post-conviction has relief. Court penalty penalty me death these issues convinces death rationally fairly in this administered be scheme cannot imposed is All needed for death state. prosecutor right and trial this state combination impose judge. the death And decision is made to once the eyes penalty, raised the issues will close this Court its imposed Supreme appeal. man- has The United States datory duty highest appellate each state to court of on the carefully the im- as well as the basis for review record the trial miserably position penalty. failed Yet, we have of the death undertaking obligation. *23 simply by summarizing X, I
In Part conclude issues ignored Court either or stated to be different than what actually appeal. raised in his longest is I written, This dissent have ever it be I doubtless could both shorter and better written. could begin study- I not ing to estimate the hours have that devoted to writing dissent,
this case and I but nonetheless apologize taking space necessarily all that be must dissent, devoted to this dissent. This in which have distilled many important the trial issues, record on will demonstrate majority opinion manifestly be in where is error history stated that all the annals of criminal law in this given legal State, no has ever defendant been more “tender given appeal by care”. The care be cannot measured appeals by number disposed taken nor the number issues by Rather, of. care be we, must measured whether fairly Court, have discussed raised, each issue and whether given we application have McKenziea fair and even-handed given law that must all defendants in the courts of this State. Measured standard, our review of these appeals abysmal four McKenzie has been an failure. isIt telling proof most death defendant cannot thorough receive and even-handed case consideration of his judiciary of this state. II. DENIAL EQUAL OF PROTECTION: INCONSISTENT APPLICATION OF RES JUDICATA PRINCIPLES AS THEY RELATE TO RELIEF POST-CONVICTION appeal, equal protection
In his McKenzie raised three arguments ignored majority opinion. which have been in the ruling He claims three areas of the law—search and applica- seizure, instructions, lesser included offense and the Sandstrom-type tion harmless rule error instruc- special denying McKenzie, have tions—we created rules for equal protection Now, him laws. of the addition to these majority yet equal issues, the here has added denial of another protection adopting laws American Bar Association determining post- issues raised in standards for whether petition just judicata. are relief res The fact conviction ago adopted are which standards this Court short time *24 effectively designed issues meet the the merits. more on to recently adopted of Sanders this the framework Just (1963), 1068, 10L.ED.2d 373 U.S. 83 S.Ct. States v. United post-conviction relief an issue in whether to determine (1981), judicata. petition Mont., v. See Coleman State is res Fitzpatrick St.Rep. 1357-59; v. 38 and 629-31, P.2d at at (1981), St.Rep. we , P.2d 38 1450-52.Because Mont., at State adopted apply analysis part Sanders Col- to to
the three Fitzpatrick, logical me we it seemed to that would eman and majority adopted apply Instead, McKenzie. the also it to the promulgated Bar the American rule more restrictive analytical Association, and used as framework it the within judicata. assess the issues are res which to whether most of majority many has of McKenzie’sclaims The denied review of finally they already “fully ground have been and on (See quoted by Bar rule decided”. the American Association 1749.)Strangely majority, St.Rep. enough, ma- the the why recently jority opinion adopted ever does not state the forgotten were case. rules of Sanders majority Although opinion would have believe the one judicata American Bar Association standards for res im- the always plicitly state, been rule in is that have the the fact adopted Fitzpatrick III III we and the less in Coleman ABA Sanders. Under stan- rules set forth in the restrictive judicata, inquiry is issue res final the dards for the whether finally fully hand, under has been and decided. On the other inquiry rules, is whether the ends of the Sanders the final justice again considering issue its be served the would appellate again permits Sanders rule the court to merits. This if decided, see if was but see issue it to consider the not correctly correctly Obviously, if it was not decided. by correcting justice ends be served the decided would the precisely deciding properly. is mistake and the issue But that majority in this case. what the did not want to do impliedly majority ABA If, states, as standards the why always adopt we state, rule have been the in this did Fitzpatrick apply IIP III and the Sanders rules in Coleman why, always same, And if have didn’t the rules been analysis majority simply apply the Sanders instead of analysis analysis. ABA answer The is that Sanders would require change issues, us our decisions on several majority doing has no intention that. majority interpreted has ABA
The standards to mean by a end review bland comes statement that the “fully finally applied effect, issue has been decided. as previously here, if a is even decided issue was decided in- correctly, majority is, issue concerned, insofar res judicata. course,
Of
merits
Sanders rules over
ABA
right
change
rules can be debated.
we
But
have no
the rules
provide
again
midstream order
excuse for
reaching
simply
issues
on the merits. It is
another
ap-
demonstration that this
Court cannot
consistent when
plying
again
the laws to McKenzie.The
we
result is that
have
*25
equal protection
denied McKenzie
of the laws. See the dissen-
ting opinion Justices
Marshall
Brennan McKenzie v.
(1980),U.S.,
Montana
101
626, 627,
S.Ct.
I have felt death that cases the scrutiny appeal. especially I closest think it sad that in selectively applying ABA the more restrictive standards for considering judicata appeal res claims McKenzie’s final Court, before this ing we have excused ourselves from determin- correctly applied have whether we law his case. the We simply deeper they have buried a the constitutions little than appeals. were in the former III. PLEA BARGAIN: THE STATE THE AND TRIAL COURT BREACHED AN ENFORCEABLE PLEA BARGAIN plea
The record an enforceable unrefuted demonstrates that bargain State, aid existed that the with the of the trial agreement. Proper court, breached that resolution of this requires issue sentence be vacated and death that on plea remand bargain. be enforce the trial court instructed to the
57 by how a shocked the I am more than little I must admit that changed I, in McKenzie majority basis of its decision has 438-39, P.2d III, at in McKenzie P.2d to that at though same record. are based on the decisions even both plea clearly recognized I, this Court In McKenzie bargain the State had existed, and, fact, stated acknowledged Court, however, P.2d 1038. This at it. bargain plea either was unenforceable declared that subject agreement a condition that the because plea bargain parents consent to the victim’s sheriff and the prosecutor before McKenzie called deal off because the plea. entered his had an 608 P.2d III, in McKenzie obvious
However, holding acknowledgement I in McKenzie could that this changed scrutiny, apparently its careful this Court withstand plea bargain stating exist because never did mind, express aware that before he McKenzie was condition guilty plea, prosecutor first had to obtain enter could parents and the local sheriff. And then victim’s consent majority judge resolved factual adds that the trial by declaring express dispute condition existed of whether this hearing Because was never before did not exist. there that it issue, trial trial fail to see how the court court on supports Furthermore, resolve record could it. unrefuted bargain plea ex- McKenzie’s contention that an enforceable specifically isted and must enforced. majority opinion impression all leaves the the facts relating position record, were in the set forth State’s *26 and resolved taken, evidence was that the trial court the Nothing be could factual issue in favor of the State. further majority position The as stated in the from the truth. State’s entirely opinion briefs, and the was taken from State’s by possibly counsel for the made bolstered statements argument during McKenzie before this Court. State of majority opinion in has the Because not set forth facts we can record, and because it is that record that from necessary explain happened, what the determine what to bargain negotiations regard plea record does in state parties agreement which and reached the ultimate although approved repudiated court, was the trial later prosecutor when the announced “deal was that the off’. P.2d at 1038.
A. THE FACTS IN THE RECORD ONLY SUPPORT THE THAT CONCLUSION THERE AN WAS EN- PLEA FORCEABLE BARGAIN Sunday, 22,1974,
On December counsel both sides for met in Conrad, law in the office defense counsel Charles Jacobson. judge gave time, At this the trial counsel both sides for preliminary attorneys problems instructions. All saw with many including those fact them were instructions— attorneys period The unconstitutional. met for extended bargain plea agreement presented time and arrived at day judge approval. plea the next to the his trial for The bargain pleas was that McKenzie would withdraw his of not guilty plead guilty and offense of to the deliberate homicide felony aggravated committing committed in the course of heavy weapon, exchange 50-year prison assault with in afor plead guilty charge sentence. McKenziewould also another felony aggravated weapon, assault committed with years prison. for this crime to receive The sentences concurrently. were to run day,
All Falls counsel met the next December Great judge. meeting 1974,in the chambers of the trial This lasted judge expressed three The more than hours. certain displeasure agreement, regard especially with with to the length prison along sentences, he but nonetheless went bargain. judge agreed plea all with the and counsel guil- 30,1974, December McKenziewould withdraw ty pleas guilty plead charges. two to the judge approved agreement,
After defense trial prosecutors proceeded O’Haire counsel and to the Manor approved acting There, Falls. reliance on the Great agreement, divulged defense defense counsel their theories they concerning State, to the revealed all knew further prosecutors case, in the so weaknesses State’s explain press, public, able would be better *27 bargain why plea parents, local sheriff and the victim’s agreement made. had been 28, 1974, suddenly, December was On “deal off’.
But, change appear days in court was to before two prosecutor counsel and told pleas, defense contacted agreement. bargain plea perform the he could them threaten- father had that the victim’s He defense counsel told pro- bodily counsel, McKenzie, and the defense ed harm to bargain plea was carried if out. secutors prosecutors as counsel, all met McKenzie, and the defense judge agreed 30, 1974. Defense on December with the trial accept of the not trial court to withdrawal counsel moved the guilty agreed upon guilty pleas pleas and substitute to two charges and that McKenzie receive the sentences moved prosecutor agreed the State and ob- the trial court. parties jected, had not made but at no time stated that agree- agreement. plea bargain ever Nor did he state subject parents ment was to the consent of the victim’s or the sheriff. setting filed
Defense counsel an extensive affidavit forth the plea bargain, and made statement for the terms of the this which were or record, facts of never refuted denied State: originally [the
“They prosecutors] us advised it had go parents girl, was desire deceased their to the this try go peace them, sheriff, and to make their with to the why understanding they not, if could then with sort of naught. all would of this matter come to having position course, make “Of left us in someone prior, presented we decision, after, had this matter presenting long prior as was matter court. As damage why done; court, we was real felt that there no request prosecution, we came however, down at the understanding, pre- we here, them, would with the with we and see whether or not court, to the sent this matter well Now, court resolve situation. couldn’t the entire go was, and the court decided to knows what the decision fully accep- bargain along bargain, had been and the with our ” added.) prosecution. (Emphasis by the table The defense’s affidavit which was filed on December prosecutors, explicitly 1974,and served on the more detailed leading plea bargain approval: the circumstances its Special “It avowed initial Prosecutor’s intention to present bargain] plea family [the *28 this said Sheriff and to the of making presentation the deceased before our mutual to the apparent understanding Court; it was concerned, of all the especially affiant, and this if the that Prosecution could not approval family secure the said Sheriff of and of the the probably any necessity deceased, there that be would presenting Court; the situation to the
" expedient ap-
“The Prosecution then deemed it more to proach prior any the Court with this situation to other con- your sultation; was affiant, that it never the intention of or his County co-counsel,to ever allow Sheriff of the Pondera or the family power of the deceased, to have the to ‘veto’ over the negotiations taking place, then but since that contact witn prior approach them would be made to our mutual your Court, done; be however, no harm to Defendant would being related affiant’s attitude it to their consulted after opposite the mutual the contact with was ... if the accept plea bargain, Court refused to the matter would be the accepted if halted, offer, or court the the the Prosecution’s family and contact with Sheriff of the deceased would purpose pro purpose for forma consultation courtesy attempt possibility par- reduce and to to of these causing public opinion County ties adverse within Pondera against County Attorney Special either the or the Prosecutor. your meeting [with
“That affiant and co-counselleft this judge] unequivocal complete understanding trial with the and complete bargain par- a final that and had been all struck including Court; ties that counsel for the were Prosecution going apprise family then to the deceased and the County agreed upon Sheriff situation;” of Pondera of this (Emphasis original.) why explained prosecutors
The affidavit further decided bargain plea prosecutors to call off the had told defense —the they counsel that had been others threatened with they physical through agreement, harm if followed with the they implied with other district had been contact through judges with advised not to follow who had them court agreement. or no time filed counteraffidavit The State at denying refuting record into the made statement affidavit. The State’s in defense counsel’s set forth facts have response it did not to follow time plea bargain, through effect, had the with right abrogate agreement. unilateral findings or The trial court at no time entered conclusions though previously approved plea issue, even it had this bargain hour after more than three session chambers on judge’s only response The trial McKen- 23,1974. December plea bargaining, course, “Well, zie’s was: contentions they go through plea State] [the if want to with don’t they bargaining, suppose Supplemental have to.” don’t Transcript Hearing, p.5. Appendix of December See Appellant’s Specification Brief, I, 2. Vol. of Error No. stating prosecutor duty pro-
After was under no bargain, plea judge ex- ceed with the the trial confirmed the *29 bargain specifically pro- plea of the when he asked istence the you way you proceed agreed “Do want the secutor: to that (Em- Monday, December...” 23rd of the with counsel last added.) phasis Supplemental Transcript 30,1974 December of Hearing, p. Appendix Appellant’s Brief, I, 5. See to Vol. Specification 2. Error No. of prosecutor responded not, court, he did the go inquiry
without further announced that the case would Hearing, p. Supp. Transcript 6. 30, to trial. December Specification Appendix App. I, Brief, See No. to Vol. Error 2. majority’s plea bargain Therefore, did the conclusion that directly in face unrefuted not exist flies of the record. January days trial, 3, 1975, On five before the plea again compel filed a honor to the State to motion absolutely bargain. is date, however, As no of this there that it evidence the State even contended the record that plea bargain given power victim’s had veto of the summarily parents denied Yet, trial or the sheriff. court stating motion, order: written January through 3, counsel, “On 1975 defendant, made, presented Agreement filed, served and his ‘Motionto Enforce Court; of December 1975’to the fully having upon “The considered the matter deeming good delay merits and there to reason no for upon issuance Motion, of its decision finds said motion to request be without merit and denies contained prayer; hereby
“Therefore, it is ORDERED that said Motion denied. day January, Denying
“DATED 3rd 1975.” Order Agreement Ap- Motion to Enforce December 1974. See pendix Appellant’s Specification Brief, I,Vol. of Error No. 2. although claiming deny
The order, the motion merits, fails state what those merits were. Did the trial plea bargain court decide an enforceable did not exist expressly power because it was conditioned on the veto parents sheriff, victim’s although or the local did decide plea bargain existed, it was nonetheless unen- recognizing forceable because there are no Montana laws plea bargain? trial, Before the start of defense counsel moved unsuccessfully disqualify judge. urged, the trial It was among grounds, judge already other the trial had prejudice demonstrated bias and toward McKenzie the un- prepared, he constitutional instructions had that the instruc- tions created the nonexistent offenses of deliberate homicide by lying means torture deliberate homicide in wait or ambush. January began, morning pro- 8, 1974,
On the trial judge permission secutors asked the trial to add more *30 opposed motion, witnesses to the McKenzie Information. arguing prejudicial among was because, that it to him other relying plea bargain agree- reasons, defense, on ment, had revealed its defense and the weaknesses. State’s judge permitted True form, the trial 58 the additional Granting witnesses. Order for Names Motion Endorsement of
63 See to Ap- Appendix Amended Information. Witnesses on 7. I, Error No. Brief, Specification Vol. pellant’s convicted, sentencing, was but before McKenzie After a on hearing mitigation, filed motions for defense counsel requested mitigation again The motion for new trial. in ef- the court bargain by asking abrogated plea benefit of the McKenzie sentencing not fect, plea bargain enforce the was summari- 50 That motion years prison. than anymore trial, McKenzie alleged pre- new denied. In the motion for ly the first additional witnesses on the addition of judice by trial, and resulted from the prejudice pro- that day of This was also bargain. motion abrogation plea secutor’s denied. summarily he McKenzie asserted that should sentencing again
At plea bargain by receiving receive the benefit of the no more was summarily than 50 and his motion also years prison denied. issue, is bargain
That the extent of the record the plea is and that the record this Court should have relied upon issue. mean But to do so would deciding plea bargain relief, McKenzie would affirmative result that this given Instead, did not want. ignore this Court chose to record. so, the State had it at no
Although
ample opportunity to do
during
time
these
made
record either
proceedings
refuting
McKenzie’s detailed
the State
denying
assertions
unilaterally
an
am a
abrogated
plea bargain.
enforceable
loss, then,
was able
to understand how this Court
to reach its
I,
(the
McKenzie
1038;
issue in
decisions on this
P.2d at
II
omitted from the McKenzie
McKenzie
issue was
opinion)
III,
IV,
and now in 438-39;
If, record, in the face of the actual this desired Court remedy away a enable fashion the State to back an en- from plea bargain, forceable therefore interfere with appointment McKenzie’s death, with it was first incumbent on they appear as this Court to state the facts record, in the then decide McKenzie somehow is not entitled to the plea bargain. benefit of the We have McKenzie denied even rudimentary appellate review, the most let alone the appellate by meticulous review mandated the United States Supreme Court all death cases.
B. THIS COURT’S DECISION IS NOT BASED ON THE RECORD, TRIAL BUT INSTEAD IS BASED ON UN- SUBSTANTIATED STATEMENTS MADE FOR THE FIRST TIME IN THE STATE’S APPELLATE BRIEFS already clearly
As
stated,
Court,
I,
in McKenzie
recognized
plea bargain
although
opi-
But,
existed.
vague
vague
appears
is as
nion
can be, it
that the Court
plea bargain
subject
express
either held that the
was
prosecutors
condition that the State
obtain the consent of the
plea bargain
sheriff,
victim’s
father
was
or that the
plea
unenforceable because McKenzie had
not entered
prosecutor
surprised
announcing
when defense counsel
that the “deal was off.”
Either is A indefensible. based on express party plea tion of an condition of third consent to the bargain contrary holding case. record And a bargain plea unilaterally pro- can be cancelled plea ignores secutor before the is entered both the essential plea bargain basis of and the fact that here McKenzie detrimentally plea bargain. relied on the opinion expressed
The III McKenzie and IV is indefensi- ble because record, it is based not on the but on contentions appellate announced for the first time the State’s briefs. opinion is indefensible because further it states that the issue trial court consent in the State. found favor of hearing ignores This fin- the fact that there neither nor dings effect, issue. This has in manufactured a on this case based a on record that does not exist. paragraphs III, 608 P.2d at
The first two be McKenzie’s considered to 438-39,recite what this Court alleg- stating were several the events contentions, times that “according Yes, indeed, even to defendant.” to occur ed according though they „to defendant, did occur absolutely unrefuted fact is that the record was undeniable the State. paragraphs III, 438-39, 608 P.2d
The next two are discussion of the State’s contentions that: devoted to *32 by bargain plea defendant; was had initiated the the State always any plea bargain was that conditioned maintained by upon parents sheriff; and veto the victim’s the the State parents 26; until December could not meet with the victim’s because State could not obtain consent from the victim’s the finally, parents plea bargaining; was and there no further the detrimentally rely McKenzie did State’s assertion that on bargain given by plea because information the State the the alredy may defendant was either the worthless or known. It truly well be are that these the State’s contentions—in their absolutely appellate so, briefs. if is barren But the record these The raised these the contentions. State contentions for responding brief first time when it filed its to McKenzie’s had assertion that the State the trial court violated the bargain. plea paragraph opinion III,
The in McKenzie next of the court’s disposes stating: issue, 608 P.2d at of the alleged plea “This issue turns on the existence of the bargaining agreement. judge accepted The trial the State’s alleged version and refused enforce the situation by agreement where, contended for defendants. Wehold that any plea bargaining agreement here, was the existence of disputed is and there substantial evidence that none nothing made, actions there is and the trial court’s enforce added.) regard (Emphasis were in this correct.” contrary upon language entirely This is to the record— rulings. only appellate The which an is to base its court support in McKenzie’s contention evidence the record does only bargain plea existed; evidence enforceable unilaterally abrogated prosecutor is record that the is evidence in the record and, agreement; McKen- any disputed never ruled on versions —for court trial refused The trial court disputed. simply version was not zie’s bargain. enforce plea issue solely decided this is sad indeed that this Court It A in its briefs. made appellate State representations a case such as where the death penalty bargain, plea issue, deserves more reliable consideration certainly real than this. undermine McKenzie’s claim that he in an effort to
Finally, majority again detrimentally plea bargain, relied on there was the record absolutely by concluding misstates defense nor counsel proof the contention neither in bad bargain opi- faith. abrogated plea prosecution states: nion it, proof
“As we there is neither contention nor understand defense counsel bad in its discussion with faith the State secure the bargain approval or its effort to on plea 439. . . .” 608 P.2d sheriff the victim’s parents flaunts the record. At absolutely This statement with the trial court January meeting prosecutor, defense counsel stated: faith,
“... We good [the them prosecutors] dealt with *33 have dealt with us in faith. they good now we do feel not that ethics, feel is a of We do of the canons that this violation as relates candor, as and it specifically it relates to specifically else, make deci- lay person, some letting to someone outside sions, decisions, make as relates conduct of or to their legal (Tr. 16.) January this trial.” of at filed and the pro- The defense counsel served on affidavit loudly clearly before and that the hearing secution this stated had Ethics by violated the Canons of Professional prosecution in bad faith: acting believes, believe,
“... and has reason your affiant to State, and County Attorney Special counsel for both the Prosecutor, Defendant, violated, have misled counsel or violate, Defendant, are and have of attempting rights in unethical conduct in of the Canons Pro- engaged violation Responsibility fessional Ethics and the Code of Professional (See 5, 6, 7, 8, 9,15,16, 22, 24, 25, 31, 32, 35, and Canons Ethics.)” (Defense af- counsel’s Professional Canons of 5.) fidavit at in
The has misstated the record order to majority simply defense counsel’s detrimental justify its next statement that reliance is argument majority unfounded. states:
“. . . any Under these circumstances statements of defense in case counsel weaknesses the State’s concerning defense were and positions gratuitous connection therewith premature. event, trial contest sporting which the turns such verdict on nondisclosure of matters. are Discovery and remove procedures designed operated to and had been extensively exhaustively element utiliz- added.) ed at the time 608 P.2d 439. question.” (Emphasis Again, unrefuted record demonstrates that after 3-hour long meeting 23,1974, with the trial court on December made, had been plea bargain defense counsel met after with the O’Haire prosecutors at the Manor in Great Falls and revealed their defense and the weaknesses in case. the State’s This was in reliance specifically done plea bargain effort to permit prosecution to better explain to the public, including sheriff, victim’s and the parents why the plea was bargain necessary. The details of this and the meeting reliance on the are placed agreement stated in the again unrefuted affidavit defense counsel: Court, to this
“Subsequent with the counsel for the meeting Manor; Prosecution and the Defendant met in the O’Haire pursuant to the tacit aid agreement the Prosecution control the [sic] Sheriff influencing public opinion by the of Pondera County, your affiant outlined strategy those facts that would have been emphasized by the defense had this matter trial; gone your affiant to the its explained Prosecution areas problem visualized proof counsel for the defense; provided justify information agreement heretofore entered into and to explain Sheriff it was through his own ineptitude put *34 able being get Prosecution to the not problem possibly certain evidence the and where certain pertinent jury, before made Sheriff and were assumptions being by the Prosecution fallacious; meeting your with the and left this affiant unequivocal co-counsel
“That understanding a complete final and com- and including parties bargain all the plete been had struck going ap- were then Court; for the Prosecution that counsel family Sheriff prise deceased and the of Pondera of the added.) situation;..(Emphasis agreed upon County of this allegations Beyond reliance of detrimental unrefuted these majority’s good I find statement ridiculous faith, also revealed defense had to the State that what gratuitous, already If had worthless, known. the State or already case, have weaknesses in it would not its known add 58 to the Information more witnesses moved the court granting morning a such never heard of of trial. have on the such circumstances. under motion parties approved agreement which simply between the
“An judge aside because of the be turned cannot the trial pressure publicity exigencies cer- Public moment. of the agreement, justify tainly breach no matter cannot may agreement appear ... been to have how ill-considered attorney good conscience advise his could in No the state attorney bargain plead guilty a if can- and strike client keep bargain prosecution assured not be must judicial through pressure process external not subvert the whenever arises. the occasion bargain binding agreement plea
“A is a the defen- between subject approval of the dant and the state which is bargain, prosecutor plea under- breaks he court. When the rights implicit basis waiver cuts the for the of constitutional plea. supra, York, 404 U.S. In v. New Santobello Supreme there S.Ct. the United States Court noted that are two alternative forms of relief available to the defendant permit under can accused these circumstances. The court original plea to withdraw his and be anew on the tried charges, grant performance agreement... specific concurring opinion. Douglas emphasized ‘a Justice ought preference considerable, if court to accord defendant’s controlling, weight rights inasmuch as fundamental by prosecutor’s plea bargain are flouted breach of those defendant, York, v. New not of Santobello the State’. *35 v. Tourtellotte State (1977), 267, 501.” at S.Ct. at supra 799, 802-03. Wash.2d 564 P.2d contrary
I can conclude this Court’s holding that is but there was no undisputed plea bargain record that another manner in which this State example arbitrary a handles cases issue is underlying those where the whether If is live a run mill or die. had been of the person going this case, I have this would have given no doubt that Court this issue more careful was consideration and concluded that there somehow, an enforceable has plea bargain. But this Court a is adopted the that death sentence more im- policy upholding portant carefully than the record to determine scrutinizing whether the defendant’s were What we have rights protected. done to McKenzie this by misstating plea record I issue is bargain absolutely indefensible. believe cannot that federal will that we McKenzie the given court have agree meaningful, mandatory review which we have been appellate ordered to all death cases. to give OF DELIBERATE IV. MCKENZIE WAS CONVICTED BY MEANS OF TORTURE-A CRIME NOT HOMICIDE DEFINED IN MONTANA LAW (App.
McKenzie claimed in his first this Court appeal 178-92) II, and in each his subse- Brief, issue no. Vol. was of “deliberate homicide that he convicted quent appeals by crime is means which not defined statute by of torture” —a address Court, however, has failed to that in Montana. This IV the McKenzie opinions. opinion issue of its Perhaps in the sense that it does can be from statement excepted before McKenzie raised the issue again appear that relief that he in his District petition post-conviction Court crime. was convicted of nonexistent fundamental, so that
Nonetheless, issue so important, and deciding mentioning cannot be excused from this Court III. McKenzie I, II, McKenzie issue in either McKenzie or declare either that duty an unequivocal This Court had offense of defined of a separately McKenzie was not convicted torture, deliberate means of by deliberate homicide by defined is a crime expressly means of torture homicide neither, issue but left the This did statute Montana. however, Court, appear, It would undecided. is a that it assumption on the writing proceeded the opinion, On at least four occa- defined statute. substantive offense convicted states majority opinion sions the See means of torture. deliberate homicide offense of 457. 434, 436, 438 and 608 P.2d at III, II I was unaware
When dissented to had issue that he raised the McKenzie had previously However, in reviewing crime. been convicted of nonexistent handl- majority’s dissent to the in preparing the instructions instructions Sandstrom-type unconstitutional ing *36 III, well McKenzie may clear me became even crime which added a been nonexistent have convicted of which has permeated unfairness more to the specter During pre- appeal. cause at trial of this handling more I examine the record have the time to sent taken appeal, con- am now convinced thoroughly crime of for the hang and has been sentenced to victed of of- means torture —a nonexistent by homicide deliberate fense in this state. (now MCA), 45-5-101, 94-5-101, R.C.M. section
Section of deliberate commits the offense person “[a] states that causes the negligently if he or knowingly homicide purposely, classifies then human That statute being.” death of another homicide, criminal categories homicide into three —deliberate homicide, homicide. Section negligent deliberate or mitigated MCA) (now 45-5-102(1), states 94-5-102(1),R.C.M. 1947 section if “. . deliberate homicide . criminal constitutes homicide (b) (a) isit commit- it is or or purposely knowingly; committed is an in the accomplice while is in or engaged ted the offender commit, after commit- of, flight or attempt commission sexual intercourse ting robbery, or to commit attempting consent, felonious arson, kidnapping, burglary, without use threat of which involves the or escape any felony or other is individual.” It obvious force or violence physical against called a offense mentions substantive that neither statute means of torture. deliberate homicide (now (2) 94-5-102, R.C.M. 1947 section Subsection of section MCA), convicted 45-5-102(1), person “[a] provides punished by offense of deliberate homicide shall be death or imprisonment provided through life 95-2206.6 section [now through 95-2206.15, R.C.M. 1947 sections 46-18-301 MCA] only statutory 46-18-310, . . .” The reference to “deliberate homicide means of torture” is a found in (section sentencing 94-5105(l)(d), statute R.C.M. 1947, now MCA) 46-18-303(a), section which, at the time of McKenzie’s provided: trial, “(1) aWhen is defendant convicted offense of impose homicide,
deliberate the court shall a sentence of death following mitigating circumstances, unless there are circumstances:
“(a) by person The deliberate homicidewas committed ser- ving imprisonment prison; sentence of in the state or
“(b) previously The defendant was convicted of another homicide; deliberate or
“(c) peace The victim of the deliberate homicidewas a officer performing duty; killed while or
“(d) The deliberate homicide was committed means of torture-, or
“(e) by person ly- The deliberate homicide was committed ing in ambush; wait or
“(f) part The deliberate homicide was committed as a aof operation completed, scheme or which, if would result added.) person.” (Emphasis death of more than one The em- phasized (d) aggravating circumstance contained in subsection judge changed that which the trial into substantive *37 offense. charged
The Information in case seven with charged counts of deliberate homicide. The first count purposely knowingly and caused the death of the charged purposely victim. The second count he and know- ingly by caused the death of victim means of torture. The charged purposely knowingly third count he and caused committing the victim’s death while the crimes of sexual inter- (count 4), aggravated course causing without consent assault (count bodily 5), injury aggravated causing serious assault bodily (count injury by weapon, 6), namely rope use a of a aggravated causing bodily injury weapon, assault use aof (count 7). namely heavy object McKen- charge could of whether the prosecution
The issue torture, by means of deliberate homicide zie count of with one others) homicide deliberate count (among and another for ambush, in this Court or was raised in wait lying means of See, State McKenzie ever went to trial. first time before 54, 525 ex McKenzie v. District Court (1974), 165 Mont. rel. a writ of super- petition P.2d 1211. This case involved control, charges limit the that the trial court requesting visory been which cause had in charges probable those charges ruled that shown. This Court expressly and deliberate means torture deliberate homicide substan- in wait or ambush do constitute by lying homicide This Court stated: tive offenses. deliberate believe homicide
“We these seven counts facts two, in accordance with the alleged should be reduced to us statute of the crime. The tells statutory definition . . . deliberate homicide are two kinds of unmitigated there is committed kind is when offense The first committed or ‘puposely The knowingly.’ second kind is when committed the offense is committed ‘...while the offender is engaged of, to com- attempt is an in the or accomplice or commission mit, to commit rob- committing attempting or flight or after arson, consent, burglary, bery, sexual intercourse without in- felony or which felonious other kidnapping, escape against use force or violence physical volves the or threat of first The similar any individual.’ first count should information; simply allege i.e. it in the should present count and knowingly.’ that the crime was committed ‘purposely was crime alternatively that second count should allege in other felonies. while engaged committed the relator intercourse sexual These could include aggravated.assault, consent and aggravated kidnapping. without base separate is neither nor necessary “It appropriate 3. Section wait, 2 and counts lying counts on torture or sentencing with deals code 91-5-105, Criminal wait, crime. lying If specific does not define torture or count, defendant both, alleged are of the second part prove. intends to prosecution of what the sufficiently notified these evidence, instruct on may If the court justified by the assist verdict on them and ask for special two features *38 fixing penalty.” ex v. State rel. McKenzie District Court (1974), (Emphasis 1217. 54, 64-65, 525 P.2d Mont. added.) appears prosecutor 2 and 3
It dismissed counts ruling, then amended the Information so that after that but charged with: by felony,... purpose- HOMICIDE, .. DELIBERATE ly knowingly causing LANA or the death of the said HARDING: by
“1. torture; means of by lying “2. ambush; wait or ...” I think is fair prosecutor charge assume that the intended with additionally alleged deliberate homicide and then his theories relating by to the methods which that homicide occured. The judge, ignored ruling however,
trial this Court’s in State ex supra, rel. Court, McKenzie v. District fact, and instructed beginning at both the and the end of the trial that charged McKenziewas with the crimes of deliberate homicide by by lying means of torture and deliberate homicide in wait or ambush. prosecutors objected
Both the defense counsel and the they began, these instructions before the trial filed objections prosecutor’s written to the instructions. The writ- objections ten stated:
“That said PRELIMINARY include INSTRUCTIONS confusing misstatements of the law, are and redundant. Preliminary give “That said Instructions no citation as to source or authorities.
“[Instruction 23] no. That the title ‘Deliberate Homicide incorrectly charged, Means Torture’ states the crime which is ‘Deliberate Homicide’ Section 94-5-102.The matter tor- punishment ture arises under statute, Section 94-5-105(lXd). That the use of the title ‘Deliberate Homicide misleading. Means of Torture’ is
“[Instruction 24] No. That the title ‘Deliberate Homicide Dying incorrectly Means in Wait or Ambush’ states the charged, crime which is ‘Deliberate Homicide,’ Section 94-5-105(l)(e). That the use of the title ‘Deliberate Homicide Lying misleading. Means of in Wait or Ambush’ is That the ‘killing’ improper. use of the terms ‘kill’ terms are Such term is not found statute. That any applicable proper of, ‘causes 94-5-101.” of death cited Section (Emphasis added.) *39 counsel’s ob- and defense
Notwithstanding prosecutors’ Instructions,’ ‘Preliminary court’s to the proposed jections them exactly nonetheless to give court the trial determined proposed. the trial started trial, before
At the of the beginning just Instructions,’ ‘Preliminary was to its give and the court creating to the instructions counsel again objected defense means of torture by of homicide offense deliberate ambush. The in wait or lying means of by deliberate homicide court and defense between took following exchange place counsel: counsel: Will us the you give statutory place
“Defense means of torture offense? by find deliberate homicide you “ The Court: This is death, said it punishable by period. They say they punishment it is a is offense. punishment If offense is an will in the law the statute find common you offense. in are law, the case that is the to find only place you going (Tr. added.) 183; it.” at Defense counsel lodged emphasis following objection:
“At this the record indicate we to all the in- may object point which indicate that there is an offense any structions place torture, named homicide means of deliberate by deliberate says since we no statute which wait, by lying homicide find thing that such a exists”. (Tr. added.) 183; emphasis instructions which were read to the pertinent jury then taken evidence, before the presentation by at the time case was room submitted jury read as follows: jury, Instruction No. 22. Deliberate Homicide Defined. case,
“In this insofar as we are concerned with the offense of homicide, deliberate are instructed: you “Deliberate homicide is one kind of criminal homicide. Homicide is deliberate homicide if:
“(a) either or it is committed purposely knowingly; “(b) is in or is an engaged it is committed while offender of, or an to commit kid- the commission accomplice attempt involves the use or threat or other which felony napping, the individual. against force or violence physical purposely and know- “Proof that the defendant acted both ingly required. is Proof of either of said mental states sufficient.” 23. Deliberate Homicide Means of Tor-
Instruction No. ture Defined. are
“Deliberate homicide means of torture insofar as we concerned with the definition thereof this case is: purposely physically pur- “Whoever assaults another pose inflicting suffering upon person cruel so assaulted particular purpose enabling for the the assailant to either: “(a) anything person; extort from such “(b) persuade person against will, or to her such or “(c) satisfy propensity assailant, some untoward doing person “and so the assailant causes the death of guilty assaults, he in the law is Deliberate offense of pur- Homicide Torture, Means of whether or not it was the pose or intention of the assailant to cause such death. *40 wrong, any perverse, or bad propensity’ means
“Untoward corrupt tendency.” inclination or by Lying
Instruction No. Deliberate Homicide Means of 2k. in Wait or Ambush Defined: by lying
“Deliberate ambush, Homicide means of wait or as we are insofar concerned with the definition thereof in this case is: and waits watches himself, conceals
“Whoever taking person purpose particular such of with the another Guilty of killing kill him is him, and he does unawares, lying by ambush.” in wait or means of Deliberate Homicide unequivocally the told By court instructions, the trial these charged three substantive jury with (instruction 22); no. homicide homicide offenses—deliberate 23); (instruction no. by means of torture homicide deliberate lying by ambush in wait or means of homicide and deliberate 24). charge (instruction of the however, that note, no. lying is not by ambush wait or means of deliberate homicide case, because in this committed in the error factor direct the trial of charge at the conclusion was dismissed support it. to evidence because of insufficient distinguished judge men- trial no. In instruction accompanied the jury to have must find tal states that charged homicide acts of deliberate homicide and deliberate by That means of torture. instruction stated:
"
“I. requires
“The offense Deliberate Homicide of (the voluntary Killing) by the defen- act has been committed knowingly purposely either or or that it was committed dant felony. the commissionof forcible “II. “The Deliberate Means Torture Homicide offense of of (the voluntary
requires physical infliction of cruel act suffering) purposely be done in addition thereto that it particular purpose enabling was done for the assailant of either:
“(a) something person assailed; extort from “(b) persuade against will; or her assailed “(c) satisfy propensity of the some other untoward added.) (Emphasis . of assailant . .” last sentence paragraph jury II told the that it need not find that guilty of intended to kill the victim in order to find him deliberate means torture. homicide of Paragraph III forth the mental state instruction sets necessary judge trial for a conviction decided was lying However, deliberate while in wait or ambush. homicide judge paragraph the trial crossed III with a out large “Dismissed-Disregard” X and wrote it. near (instruction 54) jury no. instructions to the of the final
One charge deliberate first consider directed deciding re- of torture before means homicide part: pertinent maining charges. It states in Guilty you verdict adopt Homicide Deliberate “If *41 you form whether that asked to find on are form by as this was Means Deliberate Homicide of Torture^ remaining charges homicide deliberate most serious of of added.) (Emphasis against the made defendant. Notwithstanding court instructed fact that the trial by tor- of charge means jury homicide of deliberate that the (the charges remaining serious of the was the most ture lying or am- by in wait charge means homicide of deliberate dismissed), instructed court also trial had been bush victim to kill his intent jury not have the need deliberate homicide the offense to be convicted order by means of torture. Applicable to of Proof Methods No.
Instruction 3k- Torture. Means Deliberate Homicide assaulting physical- purposely another state of “The mental particular upon person suffering ly cruel to inflict legal using presumptions proved purpose cannot be proof you of deliberate to use in the have been directed proved by of inferences alone. the use homicide, and must be beyond you from the evidence if find “Therefore, January 21, or about defendant, reasonable doubt County, purposely Lana assaulted Montana, 1974,in Pondera suffering upon Harding physically her and and inflicted cruel doing you permitted infer, death, her are so caused which reason from the facts and circumstances is, deduce or proved he did one or therewith, so for are connection particular purposes; either, of the more “(a) something her, to extort from or “(b) against something persuade will, her to do her “(c) propensity satisfy some untoward other defendant. you particular purposes if
“And find one or more of said beyond proved have been reasonable doubt and that the purposely inflicting her cruel suffer- defendant killed while so ing upon her, Deliberate he has committed offense of not his Torture, Means it was or was Homicide whether of ” added.) (Emphasis her. intention to kill confusing problem
The with instructions becomes these abundantly clear when the verdict forms are considered. jury guilty judge provided form trial with one verdict provided: for deliberate homicide. That verdict form defen- cause find the “A. in the above-entitled We charged. guilty Homicide as dant the offense of Deliberate (was)(was the Deliberate Homicide “B. We further find that not) by Means of Torture.
“(Strike do not or words which out bracketed word complete apply.)” it was form, this verdict order to *42 78
necessary jury (defining for the to refer to instruction no. 28 torture), by deliberate homicide means of instruction 29 no. (defining requisite by mental for state deliberate homicide (methods torture), proof ap- means of plicable and instruction no. 34 of torture). by to deliberate homicide means of (1) Reference to these instructions established that McKenzie separate be a could convicted of offense called deliberate (2) by jury torture, homicide means could convict for this offense whether or it was McKenzie’sintent kill the victim. upheld against
The homicide conviction can be an attack jury convicted him of a crime, nonexistent appellate jury declaration of an court that the erroneous in- judgment structions were harmless error. To reach that here appellate beyond an court would have to conclude jury, despite reasonable doubt that the the erroneous instruc- tions, nonetheless found all elements to exist to sustain a conviction for deliberate homicide. The essential facts are same, however, not the and there is no basis determine question. Contrary to the instructions, deliberate homicide require jury which find an to kill the victim, intent permit- deliberate homicide means of torture instructions jury ted the to convict this offense “whether was or was not his intention to her.” kill appellate ap- even
Under the most lenient review, test an pellate compelled court would be to declare that the instruc- creating defining tions a nonexistent crime of deliberate homicide means of error, torture were not harmless probability jury fact, that the is that the convicted McKenzie of this Because, nonexistent crime. however, this is a death penalty stringent case, I believe that the er- test harmless Chapman (1967), ror, as set out v. 18, 87 386U.S. California applied. 824, 17 705, S.Ct. must test, L.Ed.2d an Under appellate prepared beyond court must be declare jury despite reasonable doubt that the verdict was correct erroneous instructions. To make that declaration in this case appellate bury court would have to its in the sand. head jury penalty verdict, insofar concerned, death jury is defective because a death sentence must be on a based killing purpose possessed that the defendant decision agree it is violative Justice White with the victim. impose without such
Eighth the death Amendment (1978), U.S. jury finding. v. Ohio Lockett concurring). (White, J., 973, 1002. 57 L.Ed.2d 2954, 2983, S.Ct. expressly permitted to find McKenzie Instructions *43 his intention it was was not guilty or offense “whether of that instructions, in order Because of these kill” victim. the appellate have to penalty, uphold court would the death jury McKen- despite found that instructions, the that the state case The record kill the victim. zie did intend to forecloses such declaration. abundantly Supreme made has
The States United any procedures the reliabili- which diminish clear at trial imposition a ty guilt the determination can invalidate of the (1980), 638, penalty. 447 U.S. In Beck v. Alabama death 392, 403, that Court 2389-2390, L.Ed.2d 100 S.Ct. stated: imposed basis penalty is on the ... death
“To insure that the courts] [the in- caprice have emotion’, rather than of ‘reason the procedural to diminish tended rules validated reliability sentencing reason- The same determination. of the reliability ing apply rules that diminish must added.) (Emphasis guilt determination.” apply What can be better case to this rule than here where judge jury the trial created and instructed on a substan- by highest tive offense not statute, defined where there is the probabilities jury that the convicted of that of- by fense— deliberate torture, homicide means of and where question also was told to decide the of intent eight Sandstrom-type use of unconstitutional instructions? jury’s sentencing The verdict, and court’s sentence death process verdict, based on that unreliable that due re- so quires death vacated but that conviction be reversed.
V. THE IS A EVIDENCE INSUFFICIENT TO SUPPORT THAT THE DIED BY FINDING VICTIM MEANS OF TORTURE appeals, goes
An in all of and which issue raised McKenzie’s imposed, to the heart of whether death can be is his sentence support that there is not substantial contention evidence jury’s finding the victim her met death means of opinions Nowhere torture. of the four issued in this sup- case has this Court forth the evidence would set which port finding. The evidence victim discloses that the had rope been neck, choked with a around her that at some point pressure rope around the neck was somewhat released. evidence establishes death victim’s beating heavy caused open brutal with a instrument which laid right appalling her side of head. However the cir- are, cumstances these facts do not establish that the victim “by met her death means of torture”. discussing imposition
Before this issue as it relates to the penalty, preface my the death I must first with remarks *44 procedural problems horrible, which have followed case beginning procedural problems from belie even end— suggestion the that McKenzie received a I fair trial. have already part jury concluded in dissent, IV of this that the most likely convicted McKenzie of a nonexistent crime-deliberate by Assuming homicide means torture. the case, to be it of supports matters little whether substantial evidence the jury’s finding “by that the victim met her death means of tor- ture”. If McKenzie was a crime, convicted of nonexistent he punished cannot be that crime, for and therefore, convic- tion be must reversed and dismissed.
Assuming
jury
that the
did convict McKenzie of deliberate
94-5-102(a)
(b),
homicide under either section
R.C.M. 1947
(the only permissible
methods
a
which deliberate homicide
charged
upheld),
could
and a conviction
and further assum-
ing
properly
the trial
court
instructed the
on the
“by
definition of deliberate homicide
means
torture”,
of
question becomes: was the victim torturedl If substantial
supports
jury’s finding,
sentencing
evidence
then the
death
for
imposing
penalty,
basis
legal
court did have
evidence,
sentencing
then the
if
is
substantial
but
there
not
had no
the death
legal
imposing
penalty.
basis
court
was not
in
but it
issue
his first appeal,
McKenzie raised this
in McKenzie nor
in either
discussed
specifically
mentioned
II
the author McKenzie
II or III. Undoubtedly,
McKenzie
McKenzie I.
III
were stated in
on the issues as they
and
relied
in which the death oc-
facts
the manner
only
concerning
in
set
in a
factual statement
general
curred were
forth
II,
McKenzie
I,
McKenzie 557
in
P.2d at
and
repeated
III,
issue is insufficient to justify “Defendant the evidence argues evidence him. He against argues verdicts specifically commit- insufficient the verdicts that defendant support her that as a result of torture and ted deliberate homicide Lana 581 P.2d Harding died.” kidnapping, *45 aggravated 1226. the evidence supposedly
The did not bother to discuss Court Instead, it lumped each of findings. these supporting in- did that substantial evidence and concluded together issues The Court held: deed exist. presented jury case,
“In this the evidence to the did not any misrepresented them, mislead nor was of it ever to them. justify jury’s finding evidence sufficient by Harding Lana was killed means torture she and that of aggravated kidnapping by died as a result her of defendant.” added.) (Emphasis P.2d at 1226. This constitutes analysis Court’s entire of the evidence and law on two issues absolutely imposition penalty. vital to of the death
Finally, in
III,
“Defendant the evidence is insufficient to against specificallyargues verdicts rendered him. He that the support evidence is the verdicts that insufficient defendant committed deliberate homicide means torture and that of aggravated kidnapping, Harding a result her Lana died. borders This on the . . . frivolous presented
“In
case,
the evidence
not
did
misrepresented
mislead them, nor was
itof ever
to them.
justify
jury’s finding
The evidence was
sufficient
Harding
Lana
was killed means
torture and that she
aggravated kidnapping by
died as a
her
result defendant.
“
support
The rule is substantial evidence is
if
found
(Citations omitted.)
verdict,
it will stand.
Such
the case
added.)
(Emphasis
here.”
This constitutes the Court’s entire review of the jury’s findings. two questions
This review of these vital falls far short scrutiny Supreme careful mandated the United States all death cases. “by Deliberate homicide means torture” is self- defining requires term. am uncertain whether this actually “by death be caused means of torture” or whether is sufficient that the victim was tortured some time before though death, even the torture did not cause the death. This language, explicit guidelines then, fails to contain the *46 penalty required necessary a death exactitude to meet the statute, Especially a death this is because statute. vagueness. I find it for it unconstitutional would declare ignored majority opinion strange the clear has the indeed that ambiguity statute, to be It seem that this the statute. would meaning other, but or the constitutional, have either one must meaning left in has still been doubt. here its ambiguity necessary corollary statute, the of this A to assuming unconstitutional, is that it is statute is not judicial requires ambiguous on its face and therefore at least judicial give meaning con- to statute. This construction penalty case, on must be based struction, it is a death because strictly against premise construed statute only prove Applied not here, the State must the State. was that the victim’s death tortured, but also victim by falls far evidence short of this
caused that torture. The requirement. jury’s basis its deci- verdict fails to disclose the
The torture, and what con- is, what acts constituted the sion—that inferring had intent to was relied that McKenzie duct on (based sentencing findings The court’s torture the victim. verdict) vague. jury’s equally primarily The are on findings state: two on this issue by jury, and as found case,
“4. The evidence in the rape deliberate conscienceless, torture, brutal, discloses being. killing of a human
" finding rejected the verdict form
“6. That the guilty a mental disease defect reason of defendant responsibility which was for criminal conduct which excludes guilty correctly them and submitted to defendant found guilty torture, homicide which was means deliberate Aggravated Kidnapping which resulted in the death of added.) (Emphasis victim.” jury’s findings relied reflect that the trial court
These findings any from which are devoid of evidence verdict. The tor- in fact conclude that the victim was the trial court could findings, jury’s verdict, trial court’s tured. supporting opinions fail set forth evidence
Court’s three finding “by of deliberate homicide means of torture”. What acts show McKenzie intended to torture? What evidence pain? shows that the victim fact, suffered extreme what any evidence shows that the victim was when conscious injuries were inflicted?
As I before, stated the term “deliberate homicide means self-defining. of torture” is not doNor Montana cases or statutes define factors, “torture”. however, Two are essential particularly “torture”, and this is so where the “torture” is aggravating may trig- considered to be an circumstance which *47 ger imposition penalty. ques- of the the First, death essential tion is whether the defendant intended the victim to suffer ex- pain absolutely treme I before death. find no evidence in the record that McKenzie intended to torture his victim. penalty
Second, the death statute is on silent whether re- quires prove the State to that the victim did in fact suffer ex- pain obviously implies treme before death. Torture extreme pain, legislative and therefore I that, believe in the absence of against direction, strict construction of the statute the State requires prove the State to that the victim suffered extreme pain legislature right as a of result the torture. The the had explicitly by define the term “deliberate homicide means of ambiguous. but torture”, instead left the statute Because of ambiguity the appellate statute, arises, doubt and an construing must, court the in a statute death case, give the benefit doubt Beck v. accused. Alabama (1980), 447 625, 100 392; U.S. S.Ct. 2382, 65 L.Ed.2d Andres v. (1948), United 740, 68 880, 92 States 333U.S. S.Ct. L.Ed. 1055. require proof Strict construction demands that we pain victim suffered extreme as a direct result of torture already before her stated, death. As have the record does support not such a determination. requirement
Another is that the torture must have caused pathologist A victim’s death. testified that death was caus- by massive ed blows to head. These be blows cannot called by nor torture, can it be inferred that these blows that only possible McKenzie intended to torture The his victim. rope wrapped evidence torture the fact that a was around pressure rope the victim’s neck and at one time the
85 pathologist, however, neck released. The was somewhat time at the could not establish the victim was conscious importantly, done, and, this was more he testified that death strangulation, by by but massive was caused blows finding clearly support a victim’s head. This evidence does not “by means of that death was caused torture”. intended that McKenzie the evidence establish
Nor does is indirect evidence—the evidence the victim. torture body and the manner which victim’s condition body place. It cannot be doubted assault took savagely cannot inferred torture beaten, but murder body from the manner from condition of the or either place. took which assault (1976), Cal.Rep. People Wiley 161, 135, 18 Cal.3d
In 133 v. seeking uphold a California, in P.2d State 881, argued in- that torture could be conviction, murder torture body victim’s and from ferred from the condition of the rejecting argument, manner of the assault. the Califor- Supreme nia Court stated: correctly [the appellant] tor-
“... that murder *48 suffering required. is other evidence intent to cause also of added.) (Emphasis [Citations omitted.]” P.2d 554 at 884. applies the That here. Evidence established that situation body savagely her beaten, had but the conditionof victim been can the fact that not establish that she was tortured. Nor did affirmatively McKenzieintend- she was choked establish that (1945), People 8, 16, v. Bender P.2d ed to torture her. reviewing Supreme that contention Court, the California strangulation torture, fact the of stated: establishes compel People contend, the not,
“The evidence as the does degree killing murder of the first inference that the [Citations omitted.] by perpetrated means of Whether torture. head, the immediate not the wounds on deceased’s two striking her of death, cause of were the result defendant’s is in- instrument, as a matter of law evidence, a blunt with prove sufficient to torture. The who, killer heedless of the suf- fering anger specific of his victim, in hot with intent of killing, pain may inflicts the severe which be assumed to at- strangulation, tend contemplation has not in of the law strangles same intent as one who with intention expressly victim shall rejected any suffer ...” The Court also implication People Duggan (1943), Cal.App.2d v. 379, 143 choking P.2d constitutes torture as a matter law. holding especially 163 P.2d at applicable 16. The in Bender is interpreting here penalty because we are a death statute strictly against which must be construed the State. Strict con- — statutory language struction of by “deliberate homicide requires appellate means of torture”— court to hold that choking does not, as matter law, establish torture. disagreement un- whether statute is
Even a give way constitutionally vague its face at least to must against strictly be construed State. that it must conclusion finding, jury’s support the the evidence is insufficient to Here interpretation The evidence matter which is used. does no cause and did in fact that McKenzie intended to establish by torture. Nor does the victim’s means of cause death the victim establish that tortured evidence before by other than her means torture. he caused death requires the statute be inter- Nonetheless, construction strict preted “means tor- to mean the death was caused Here there no cause the torture must death. ture”. might which of McKenzie’s actions evidence interpreta- liberal even the most characterized as torture caused the victim. The blows evidence, death of tion the kind of blows caused death are not the head which can be as torture. which characterized Clearly, finding then, the of “deliberate homicide means supported by torture” is not substantial evidence, and necessary prerequisite imposition therefore, a death has failed. *49 THE LAW: OF PROTECTION EQUAL OF
VI. DENIAL OF- SEIZURE, LESSER-INCLUDED AND SEARCH SANDSTROM INSTRUCTIONS, AND FENSE INSTRUCTIONS inadequately the issues dealt with has so
Because this quote glossed issue, I from the real has over raised, by argues he been he has brief where McKenzie’s denied— protection equal laws: Court— applied.in Peti- above, law this Court “As discussed wholly appeal inconsistent at trial and on tioner’s case authority: pro- on the tests Montana with established jury obtaining warrants, on cedure submission by clearly supported evidence, lesser included offenses violations, test and on the harmless error Sandstrom among case, issues. From the outset of Petitioner other points, placed while he has been in a class himself on these unconstitutional statute has been tried under outdated and only applicable his. case, to one respect, this Court has shifted
“With all Petitioner submits grounds acting consistently in affir- decisions, for its ming conviction and death sentences. Petitioner Petitioner’s (be) permitted [sic] a has tried and Petitioner alone been law under instructed on the so erroneous Sandstrom objected through application prosecution a both he and the — Only uniquely error’ used in this case. in his ‘harmless test case been to be based on has search warrant allowed ‘testimony’. Only judge been his case has unrecorded clear- allowedto refuse to instruct on lesser included offense ly defense, warranted in his submitted evidence (see mitigated the offense homicide deliberate Proposed 21,25 Defendant’s Instruction No. error con- —an affecting reliability dimension of his conviction. stitutional (June 1980).Only Alabama, v. U.S.L.W. 4801 Cf. Beck Penalty repealed Law in his case has the Montana Death been pro- law, to remain in force after new with different allowed tections, was enacted. allegation
“This based Petitioner’s observation (Shea, supra, alone. 608P.2d at 459-488 Cf., McKenzie, State v. *50 dissenting). fairly J., equally Petitioner has not been rights treated in this case. He is entitled to the same afforded any other criminal defendant tried in this State. The failure to rights, afford him imposed those and this death sentence legal under this one-case rules, set of constitutes a fundamen- equal protction tal denial of pp. of the law.” Brief, Petitioner’s 20-21. congratulating given itself on the review to McKenzie, majority opinion states:
“. . . It will be noted that some of the issues have been con- sidered this Court not once but two and three times. In all justice the annals of criminal in this state, we find no case in single legal which a (using defendant has received more tender care handling).” ‘tender’ in the sense of careful and sensitive St.Rep. 38 at 1749. happened
If majority’s what has in this case is the idea of legal anyone tender I care, doubt that in this state would like similarly to have his case considered. anTo offer of this Court of such person “careful”, and “sensitive” treatment, in right unhesitatingly respond: his mind would “Thanks, but no thanks.”
A. SEARCH AND SEIZURE allegations
McKenzie’s on the search and seizure issues are simple, argues direct, and correct. He that rules on search and applied uniformly. seizure must be But he contends that in special he stead has been isolated and rules on search applied seizure applied have been to him that have not agree. other defendants. I must I state first that I adhere to my (1978), dissent State v. McKenzie 177 at 333, Mont. questions. 1235, P.2d at on the search and seizure I There, set just out we how had violated the Montana and United States holding
Constitutions the search and seizure to be valid. But McKenzienow raises the same issues in a different con- text. He rights contends, of course, that his constitutional were violated. violating But his claimnow is that in addition to rights directly, rights we have also violated his because we equal protection have selecting denied him of the law him rights. only person does not have constitutional who 20-22.) (McKenzie’s majority appeal, pages 5-7, brief except say ignored that the issues are res this issue has equal protection judicata. is not res of denial of The issue majority it. judicata, to answer has failed however, and the majority the four- violated first contends contrary previous all all later decisions rule, corners (and permitting possibly even Court, unwritten unsworn) testimony support application for search absolutely I on this McKenzie is correct. dissented warrant. P.2d at and I II, 177Mont. issue McKenzie speak repeat that dissent here. The facts need not themselves. Morrison, furthermore, that Justice not on this Court note, *51 any appeals, previous has also of the McKenzie decided that application
the search warrant violated the constitution. majority judicata rule But has relied on new res to now illegal deny relating.to of McKenzie’s claims search and each effectively denying issues, In review of these we have seizure. equal protection ir- law. The facts are denied him of the applied different constitutional stan- refutable that we have any other defendant. dards McKenzie than to criminal argument application McKenzie’s second contends warrant were warrant, for the search and the search itself required consequently lacking specificity and overbroad, general into an that the search was converted unconstitutional Again, agree. dragnet operation. I I on dissented search—a 333, 1236, at II, 177Mont. 581 P.2d at this issue McKenzie repeat I here. and need not dissent refuge surely, majority just in the cannot take And as judicata special applied Never has res rule here. McKenzie permitted never has this warrant, a search and this Court general permitted as was under- a search broad singled one who out McKenzie as taken this case. We have general into the search was converted 'cannot assert that any dragnet operation constitutional restraints. devoid of assuming probable argues cause even McKenzie Third, beyond of the search the confines could be received evidence application, probable still did not exist for cause warrant agree. Again, of a I I issuance search warrant. dissented on II, 382, in McKenzie 177Mont. at at 1263, issue P.2d repeat and I need not that dissent here. fully finally issue
This has never been decided because majority ap- never set in the forth the evidence contained plication general A for a search warrant. conclusionas to suffi- ciency setting cannot be for a substituted factual statement failing application. in the forth the evidence contained majority again applied set this evidence, forth has dif- any ferent constitutional standards McKenziethan to other equal protection defendant, criminal and he been has denied the law. finally,
Fourth McKenzie has raised search and steadfastly issue seizure which this Court has refused men opinions. assuming tion in its Even that the four-corners rule apply applications, argues did not to search warrant McKenzie testimony justice presented that all of the evidence or peace still not there did establish that were seizable places again items at to be searched. correct. application places search warrant describes the any evidentiary to be searched, it does state basis which it can be concluded that seizable items would be found there. do Nor unrecorded statements establish basis to conclude seizable items would be places applica found at in the described search warrant attempt fact, tion. In there is not even to establish this necessary I constitutional nexus. dissented this issue in again II, 177 Mont. P.2d at *52 and repeat need not that dissent here. majority
Because the has never decided McKenzie’s claim applying that in the for search warrant the State ab- made solutely showing no that seizable items be would found the places precluded searched, to be I fail see that issue is application special even this Court’s of its McKenzie res judicata fully finally rule. How can an be issue if it and decided entirely ignored? has been always
It has been fundamental and axiomatic to constitu- probable tional law that cause to obtain a search warrant must probable place places include cause to search the or described
91 application reasonable basis If a for the search warrant. in the magistrate provided seizable to believe that for the not is place be a searched, there cannot are at the to be located items Daily simple Zurcher v. as that. search, is as Stanford (1978), also 56 525. See 547, 1970, S.Ct. L.Ed.2d 436 U.S. 98 (1925), 280, 132, 267 U.S. S.Ct. v. States United Carroll (1949), Brinegar v. 160, 338 U.S. United States 543; L.ED. and ap- 1879.But here the search warrant 1302,93 L.Ed. 69 S.Ct. absolutely attempt a plications no to show reasonable made be at the items would found to believe that seizable basis places to be searched. principle recognized of this axiomatic
Even this Court has (1921),59 In State v. District Court seizure law. search and quoted fundamental P. this Court some Mont. Cooley principles on Constitu- seizure law from of search and tional Limitations: “ process species ex- a of . . are . But as search warrants ought ceedingly arbitrary and not to be character, very which satisfactory except urgent reasons, and resorted to for pertain more than or- rules law which to them are of the acting expects dinary party strictness; if a under them carefully legal protection, it that the rules be is essential granted they place, are the In the first observed. expressly generally in such law, cases authorized judicial showing officer, a cases until after made before par- crime has been committed oath, under ty complaining suspect has reasonable cause of- property subject or instru- or which was fender, specified crime, concealed in some house ment place. is requiring showing reasonable law, And the given suspicion, evidence shall be cause intends that for suspicion satisfy magistrate is such as shall facts ground suspicion is the war- no well founded; for for itself added.) ’’(Emphasis except justify P. 198 at it. rant facts 365. determining question how
The situation before us not magistrate provide with much is sufficient to evidence grounds; rather, here is that reasonable the situation absolutely applications provided no basis search warrant *53 92 magistrate independently items that seizable determine premises Because of to be searched. located on the
were application, major seiz- all items in search warrant defect il- pursuant were execution of that search warrant ed legally seized. by denying stating Court, in that this
I have no hesitation protections fundamental constitutional McKenzie the guaranteed by the state constitutions, and federal its selec- application tive of search and seizure law, has added another — long already existing constitutionál -violationto the list we equal protection have denied him laws.
B. SANDSTROM-TYPE INSTRUCTIONS
Although Sandstrom-type instruction issue has been previously litigated, appeal McKenzie’s in contention is applied the manner we have the harmless error rule to equal protection the instructions, we have denied him says laws. He we have chosen a standard of harmless error to apply applied any himto that we have never other defen- agree. majority dant. To that must Not did adopt McKenzie III a harmless error test that should never be applied ap- instructions, but it is true that we have never plied test That, other defendant. call it you equal protection like, whatever other name is a denial of the laws.
Intent was an issue at trial of this case. Sandstrom v. (1979), Montana 2450, 39, U.S. 99 S.Ct. 61 L.Ed.2d Supreme the United States Court held that an instruction stating person presumed consequences that “a to intend voluntary of his act” is unconstitutional because it shifts the burden to the defendant on essential element of the Supreme crime—intent. Court remanded Sandstrom to this Court to determine whether the unconstitutional instruc- may promptly tion have been harmless. We ruled that the er- harmless, ror was not and that Sandstrom was entitled to say beyond trial doubt new because we couldnot reasonable jury’s decision. State that the instruction had no effect on the (1979), St.Rep. 744. Mont., v. Sandstrom 603 P.2d decided Supreme United States Although Sandstrom, McKenzie at been had raised issue issue since It all of then. 1975 and in his January appeals trial *54 morass that because of procedural so happened just the McKenzie in, been involved the United States case has constitutionality first decided the directly Court Supreme in Sandstrom. decision, After the Sandstrom the instruction (even McKenzie had though the United Court Supreme States other than the issues many raised meritorious constitutional the McKenzie case Sandstrom instruction issue) remanded Sandstrom-type to determine whether the back to this Court McKenzie error. at the trial were harmless instructions given one unconstitutional instruction Oddly enough, the McKenzie case eight the Sandstrom case. But given given were of these unconstitutional instructions jury situation, Court, deciding Notwithstanding this jury. III, McKenzie instructions held that the unconstitutional evidence of overwhelming error because of were harmless McKenzie State v. 457, (1980), Mont., 608 P.2d at guilt. (1980). In 507 dis cert.den.U.S., 626, my S.Ct. L.Ed.2d III, I unconstitu concluded that the eight sent to an could be harmless error. Intent was tional instructions not in the case and McKenzie evidence that he did issue presented held for responsible not have the mental state be required can- case, crime. where is issue in the Surely, intent a doubt that unconstitu- beyond eight not stated reasonable intend stating tional instructions is person presumed I are error. voluntary of his act harmless consequences test for further stated that evidence overwhelming instructions harmless cannot legitimately apply error I have And finally, which been declared unconstitutional. occasions, in assessing impact out on previous pointed had instruction, we of the unconstitutional Sandstrom-type evidence test. overwhelming never applied III, in McKenzie then for the After our decision for a Court Supreme third time United States petitioned constitutional many writ of raising important certiorari — comment, Without erroneously issues that decided. the United States Supreme the memebers of majority of petition stating only “[t]he certiorari, Court denied his petition for writ of certiorari is denied.” But Justices Mar- opinion stating why they shall and Brennan In an dissented. grant they strongly certiorari, would criticized this Court for way we had treated the McKenzie case. 449 U.S. particular, 1056, 101 626, 630, S.Ct. 66 L.Ed.2d 510. In they highly were critical of the method which this Court had decided the Sandstrom issue. stating why granted
In certiorari should be on the Sand- issue, strom the dissent stated: analysis typical
A state court’s
of harmless
in a
error
may
present question worthy
case
of full review this
yet,
Court,
where,
here,
the death
result,
is the
scrutiny
required.
analysis
close
Because I find the court’s
lacking
of harmless error
of even-handed
treatment, dissent
from this Court’s denial of certiorari.” 449
1051.
U.S. at
describing
the effect of this Court’s use of this erroneous
overwhelming
applied
evidence harmless error test as
to un-
*55
jury
constitutional
instructions, the dissent stated:
[reached
perhaps
Court]
“The result
the Montana
in
‘overwhelming
evitable once the state court selected the
guilt
analyze
evidence’ of
standard to
whether the constitu
tional error was harmless. For whatever value that standard
may
reviewing
following
in
have
a verdict
introduction of
guarantees,
e.g.,
evidence in violation of constitutional
see,
(1972),
Wainwright,
Milton v.
95 theory appellate court that ‘an on the evidence’ standard assessing harmless or case a whole should review the state court prejudicial P.2d error’, at, Mont. 608 possible neglected unconstitutional effect review added.) (Emphasis jury’s 449 verdict.” instructions on U.S. at 1054. selectively this had
The then described how Court dissent overwhelming applying McKenzie case treated the Sandstrom-type instruc- the unconstitutional evidence test to majori- up tions, summed its criticism this Court’s and then ty opinion III: in McKenzie appears petitioner’s the Montana
“It case is apply analysis. yet unwilling court This seems to this ‘egregious case in which a sanctions violations another court rights by blandly of the criminal constitutional defendants reciting Briggs Connecticut, ‘harmless error.’ v. the formula (MARSHALL (1980), BRENNAN, JJ., U.S. dissenting). unpleasant the facts of this or other However obligated may protect be, cases the courts are the constitu- rights petitioner’s tional Due to concern that defendant. rights preserved, alredy not been this has remand- have Court I ed this case twice. can the Court’s reluctance to understand yet again, presume entertain case we lower purposes courts remands Court. Yet adhere from this carry obligation court has fulfill Montana failed to its grant out Therefore, the mandate of our decisions. would plenary certiorari and set case for consideration.” U.S. at 1056-7. message crystal This of this clear. Court dissent
adopted deciding an erroneous standard of harmless error Sandstrom-type impact And instructions. equal protection selec- denied McKenzie of the laws *56 ting only “overwhelming recipient evidence” him as the applied test as to unconstitutional instructions. light applied
It is the harmless error in the of how this Court analysis cases, instruction in other to one unconstitutional analysis applied how then harmless error this Court eight Sandstrom-type instructions unconstitutional has denied him case, that McKenzie claims this Court now equal protection of the law. argument equal protection precisely
McKenziebases his Marshall Brennan stated in their what Justices dissent. petition post-conviction later filed his for When McKenzie argument, equal protection but relief, he raised totally argument, failed to answer that and now District Court meet that issue. has also failed to this Court simply assumption majority that the United The of the is approved Supreme implicitly Court, least, at of this States app- overwhelming application, test to evidence Court’s Although opinion ly men- instructions. to unconstitutional justices Supreme Court United States tions that “two dissenting opinion disagreed opinion”, the fails to mention in a and Brennan raised Justices Marshall that the issue precisely issue now raised here is their dissent McKenzie. pro- majority certiorari to be a would have the denial of
The majority The states: nouncement on the merits. position in McKenzie III was not
“. The of this Court . . Supreme refused Court when the United States disturbed (1980), III 449 U.S. in McKenzie from the decision certiorari True, 507. two United States 626, 101 S.Ct. 66 L.Ed.2d 1050, dissenting opinion. justices disagreed Supreme in a Court Supreme majority found no of the Court Nonetheless the sought respect with reason when certiorari was on Milton v. Wain- the reliance of this Court III to disturb (1972), wright 1, 33 L.Ed.2d 407 U.S. 92 S.Ct. infirmity where over- is excluded effect that the constitutional St.Rep. supports whelming the conviction.” 38 evidence 1754. wholly unsupported majority position law. is Supreme why denied States Court
have no idea the United many petition petition con- raised valid for certiorari. The Sandstrom-type instruction. than the stitutional issues other petition “[t]he denying that, states The order certiorari ruling, By I cannot a writ of certiorari denied.” United States can fathom how Court state adoption favorably Supreme has ruled on our applied “overwhelming to be test of harmless error evidence” has If that Court has, unconstitutional instructions. *57 interpretation, it low in constitutional to a real descended any meaningful error. harmless test of has abandoned then Supreme decision Court United States aware of no I am ruling is an affirmative certiorari a that denial which holds way resolving same all issues the in favor of the merits on certiorari so, a denial of If this were them. lower court decided judicata creating defense a res effect of have the would also brought habeas cor- any a writ of petition court for in federal language of pus post-conviction Furthermore, relief. or other certiorari is Supreme that a denial of indicates Court decisions ruling a the merits. (1950),338 U.S. Radio Show in v. Baltimore 1950, In State 562, Frankfurter stated 252, 94 L.Ed. Justice 912, 70 S.Ct. merits. is not a determination on the a certiorari that denial of truly speaking when he made for the Court Whether he was not, United I But if he was statement, do not know. any my knowledge, Supreme never, to made States Court has contrary pronouncements Justice to what was stated general assumption is, based on Justice Frankfurter. And the not a rul- of certiorari is statement, Frankfurter’s that denial ing on the merits. February Judicature, The Journal
In the 1971issue of citing page Society, 7, No. American Vol. Judicature authority v. State Frankfurter’s statement Justice speaks of cer- the effect of denial Show, Radio Baltimore Supreme Court: tiorari the United States consistently such self- articulated one “The has Court imposed a case should whether rule: That the Justices decide agreement disagree- not on the basis of their reviewed parties court, lower ment with the outcome between impor- of the intrinsic of their assessment but on the basis controversy. review, A denial tance of the issues agrees with the out- Court therefore, not mean that the does carries no court, and denial of the case in the lower come explained: significance legal precedent. Frankfurter As as a simply the Court members of four means that fewer than Tt as a desirable, court of the lower a decision to review deemed ” added). (Emphasis judicial matter of “sound discretion.” Gressman Supreme Practice, Stem also, See (1978), the denial pages state that authors 353-360,where the ap- statement that the lower certiorari is not affirmative right.
pellate court was always mystified my part, I I remain as to am sure will For Supreme why, United Court states no when the States petition fact, denial, for certiorari was denied. reasons for been have than case which have involved or more totally mystified why, long ago, Iof, am as to become aware grant Supreme Court did not full review to the United States *58 all the constitutional issues he has raised. Never McKenzie on aspects, lacking I in all in fundamental case, have seen a its so process. due OFFENSE
C. FAILURE TO GIVE LESSER-INCLUDED THE DELIBERATE INSTRUCTION ON CHARGE OF HOMICIDE appeals
An
in each McKenzie’s
is his claim that the
issue
of
refusing
give
trial court
to
a lesser-included offense
erred
charge
Specifically,
homicide.
instruction to
deliberate
alleged
testimony
psychiatric
if
which,
he
that
was introduced
support
mitigated
believed,
a
would
conviction of
deliberate
psychiatrist
than
homicide. The
homicide rather
deliberate
forming
incapable
requisite
testified that Mckenzie was
conforming
requirements
criminal intent
his conduct to
testimony,
jury accepted
the law. If the
his
have
could
guilty
found McKenzie
of the lesser-included offense. But
give
trial court refused to
the instruction offered McKen-
majority,
totally
zie’s
reasons,
counsel.
for
unfounded
against him
I,
decided
on this issue in McKenzie
In his relief, McKenzie already erred not that the trial court and this Court had recognizing in that a lesser-included offense instruction given, alleged should have been McKenzie also
99 him of him, protec- Court, deprived equal against in holding cause, we have good He and with alleges, of the law. tion not be en- defendant who would as the lone set up issue under the factual presented titled such an instruction to to to apply we have set rules up special He jury. alleges to is right. the conviction. McKenzie him uphold order it is state, I am sure been the law of this It has long with a crime is states, charged defendant law most as long of defense any theory an instruction on entitled to law This same theory. in the evidence for there is support offense in- a lesser-included right defendant’s applies Bouslaugh (1978), 176 see State v. For example, struction. Buckley v. State (1976), 238, Mont. 261, 576 P.2d 78, Mont. Keeble v. U.S. (1973), U.S. 93 S.Ct. 283; P.2d 844. 36 L.Ed.2d through evidence psychiatrist McKenzie presented necessary the intent forming McKenzie was incapable he on this testimony commit the crimes Based charged. offense instruction. entitled to lesser-included
certainly in each of the decisions on this Unfortunately, majority, of a issue, the evidence existing support never mentioned decision, instruction. The majority’s lesser-included offense *59 a lesser- no existed justify that such evidence stating instruction, testimony ignores included offense effect, majori- In for McKenzie. who testified psychiatrist McKen- fact, of rather than the See jury. became the finder ty I, II, 581 P.2d at McKen- zie 557 P.2d at McKenzie 1224; 1043; III, zie 446. The was entitled believe the 608 P.2d at jury so, if it from chose to do but was prevented psychiatrist trial because of the even a lesser-included offense considering failure instructions. court’s to give appropriate the evidence justified the giving In that taking position I aware that instruction, fully a am lesser-included offense of deliberate conclusion that the convicted my jury may ap- means of torture —a nonexistent homicide offense — a offense lesser-included to be inconsistent. Obviously, pear to the deliberate in relation only instruction could be given that it instructed would be charge, is, jury homicide offeree the lesser-included could McKenzie of convict (section 1947). R.C.M. 94-5-103, deliberate homicide mitigated offense, means of deliberate homicide torture however, a creation of the trial has no lesser- being judge, offense to. I included for the to refer this fact jury emphasize horribly to show how instructions are in wrong this case— are an absolute they nightmare.
vil denied Mckenzie fair trial many
McKenzie raised issues to the conduct of the relating trial the instructions He given jury. argues that if none the errors are sufficient themselves to new grant doctrine trial, the of cumulative error certainly requires that I there be new trial. have no doubt McKenzie should have trial given been a new even without the benefit of the cumulative error doctrine. On other if ever hand, there was a case which to apply doctrine cumulative error trial, new this is granting it—this case is full of error.
A. INFLAMMATORY AND GRUESOME PICTURES The trial court State introduce most permitted gruesome that can be inflammatory pictures conceived. McKenzie contends that were not needed to pictures fact, any event, establish and that so inflam any they were matory prejudicial they outweighed any pro possible I, bative value have they may agree. had. (I Mont. at member P.2d was not then a Court), Castles, for Justice Judge Boyd, sitting dissented on this issue and concluded that error evidentiary itself entitled McKenzie to a new Boyd trial. stressed Judge testified he pathologist pictures did need the on which testified, matter he in explain opinion the cause of death. cluding
Nonetheless, the trial court admitted the pictures, despite the fact that it and the had prosecutor agreed pic- *60 tures were and and gruesome inflammatory, fact despite trial court had instructed the prosecutor previously if them not to offer did not need to pictures pathologist his explain testimony. jury pictures were
Before the marked front and of- evidence, fered as defense counsel moved in chambers to ex- agreed pictures. pic- clude the The trial court that the colored body place ture of the victim’s at the it was found was 519). (Tr. “inflammatory” “gruesome” The at and pictures prosecutors also admitted 410-511) (Tr. gruesome. The trial were at specifically prosecutors court directed the to ask the pathologist pictures explain testimony. if he needed the his by stating: The court “If concluded he it, doesn’t need don’t (Tr. 520.) pathologist, being questioned by offer it.” preliminary defense counsel on examination, stated in no pictures explain uncertain terms that he did not need the testimony. Notwithstanding testimony and the direc- prosecutor tive of the court, trial nonetheless offered the gruesome pictures despite into evidence the defense counsel’s objections, the trial court admitted them. absolutely showing pictures
The State made no probative prejudice were showing or that the inherent pictures jury outweighed any possible pro- these far agree Judge Boyd, especially bative value. I with because this pictures is a case, death were so inflam- matory required. that a new trial is
B. IN ERRORS A INSTRUCTIONS DEMAND NEW TRIAL gave preliminary many court,
The trial in an unusual action, jury testimony instructions to the before started.
argues improper give preliminary that it was case in- importantly, prehminary structions, but more that these in- gross structions were misstatements of He the law. also con- many given tends that at the instructions gross conclusion of the trial were also misstatements of the many law, and that were unconstitutional. proper good, perhaps
In a I see harm, case no even giving preliminary jury, particularly some instructins to the relating testimony instructions to the evaluation of pur- beyond evidence. But here the far instructions went pose. they prosecutors, In fact were as well as so bad that objected defense counsel, to them. *61 general January prosecutors ob- filed written 3,1975, the
On jections can be summarized as follows: which deny misleading tend to are and would
“The instructions right to a fair trial. defendant his emphasis presumptions place
“The undue on instructions jury pro- would detract the from and inference and therefore listening testimony observing perly the exhibits admit- and (these presumptions un- were later declared ted into evidence by Supreme Court in Sand constitutional the United States (1979), L.ED. 2450, 61 510, 99 v. Montana U.S. S.Ct. strom 39). confusing jury, to the
“The instructions are redundant and being law. as well as misstatements of the fail trial court’s source for “The instructions to disclose the this instruction.” specific objections to the in- addition,
In were further there structions which can be summarized as follows: reading statutory authority
“There is no part case. Counts in the Information as of the statement charge ‘Deliberate denominated as “The title on the incorrectly by crime stated the of Torture’ Homicide Means (deliberate homicide), charged of and that the consideration only punishment statute, and that this under torture arises misleading. title is by charge Homicide as ‘Deliberate
“The denominated incorrectly Hying Ambush’ stated Means in Wait or charged of whether crime the consideration lying arises under in wait or ambush defendant was punishment this title- is statute, the use of misleading.” many objections than more
The written contained State’s sufficient- summarized, but what I have set forth those have objec- ly serious, meritorious that the State had illustrates Notwithstanding given. the State’s tions to the instructions give proceeded objections, the trial court and McKenzie’s including preliminary for its two instructions, definitions by neMy-created capital means offenses: deliberate homicide lying means of in wait of torture and deliberate homicide analysis majority’s raised concern- of the issues ambush. ing preliminary even a reference to the instructions omits capital court: crimes created the trial new preliminary the extensive instructions “Defendant contends give given erroneous, that it was error to the court were prior the re- evidence, to the introduction of and that them maining given presentation after the of evidence instructions wrong. were preliminary
“The instructions were usual instructions jury. given addition, the role of the included were a which set out the number instructions elements accused, which various crimes set out defendant statutory terms used. definitions *62 language plain “Montana’s criminal code is written in clear jury.” which well as the basis instructions to the serves added.) (Emphasis at 444. P.2d majority properly
Had studied issues raised and given, instructions it would have realized that several instruc- were in- law, tions not misstatements of the but that the charges structions defined two deliberate homicide not defin- by ed as substantive offenses Montana law—deliberate by by homicide means of torture and deliberate homicide lying means of or ambush. ma- Furthermore, wait had the jority bothered to read its own earlier case of State ex rel. supra, Court, McKenzie v. District have realized that would jury precisely the trial court instructed the in the manner in which it was told not to do. The trial court instructed on deliberate homicide means of torture and deliberate lying though homicide means of in wait or ambush even this Court stated in State ex rel. McKenzie v. District Court of Ninth J.D.: appropriate necessary separate
“It base is neither nor lying 94-5-105, . . counts on torture or in wait . Section sentencing Criminal with and does Code deals specific fur- crime.” at 1217.And this Court define 525 P.2d penalty provisions ther stated that references to the inflammatory.” “unnecessary, áre Code redundant and P.2d at 1218. facing clearly instructions, this Court these erroneous refused to have First,
had three choices: could leave them undecid- recognize and therefore raised the issues they appearance been decided. Se- had create the ed, but recognized then the issue and have Court could cond, this analysis instructions, engaged whether the in an extensive clearly although Third, error. erroneous, were harmless granted a what it should have done have done Court could defining nonexistent of the instructions because new trial Sadly, capital made the first choice this Court crimes. the issue. avoided eight were, of the instructions fact that to this the
Add copies held of the instructions anothercarbon fashion or one v. Mon- in Sandstrom the United States unconstitutional supra. as a whole this, from the instructions And aside tana, confusing beyond inconsistent set the most are doubt I have ever seen. instructions require McKenzie have in instructions alone Errors new trial. IN REFUSING ERRED THE TRIAL COURT
C. VII. DIRE THE THE RIGHT TO VOIR DEFENSE COUNSEL OR OF MENTAL DISEASE THE ISSUE JURY ON DEFECT refusing unjustified counsel defense
The trial court was concerning jurors right question prospective their at- Defense or defect. of mental disease titudes on the defense *63 merely give intent out notice of this did not refuse to counsel preserve obstinacy; so in order to but refused to do of challenged already appeal. the constitu- He had for issue give tionality requiring notice, that he such statute already against later him. He did not ruled the trial court had give fact, to, he notice because wanted formal, written appeal. present in an Because to this Court did the issue constitutionality challenge McKenzie dared right question prospective he was the basic statute, denied ruling jurors The court’s the trial. trial on the basic issue of challenging only punishment con- can be as the viewed give stitutionality requiring that a defendant of the statute any ruling prejudicial imagine ato more such notice. cannot
105 the trial. The fact that this is at that stage defendant adds to the error and prejudice. case capital the trial court’s decision ruling ig- The majority upholding facts. At no time did the State assert it was surpris- nores the on their at- jurors ed defense counsel’s request question defect; mental disease titudes toward the defense of case, his record shows that from the virtually inception be State and trial court knew that would asserting fact, this defense. several issues raised and decided in McKenzie’s relate to the issue of mental appeals directly disease or defect.
First, McKenzie claimed
State cannot constitu-
tionally
him to
notice that he will
require
give
rely on the
defense
mental
defect,
disease or
but
the majority held
him.
United States Supreme Court vacated of this judgment and remanded for determination of whether the pro- of Patter- cedures and burdens violated the proof principles son v. New York (1977), U.S. S.Ct.
L.Ed.2d 281. held McKenzie. 608 majority again against fourth, P.2d 452-456. And McKenzie claimed that the trial court erred cer- by refusing tain instructions he offered to mental disease or relating defect, and the held him. 608 P.2d at majority again against 440. then,
The situation at trial is that the State and the trial court were aware that McKenzie would on the fully rely defect, defense of mental disease or even he had not though written notice. And were aware that given they fully formal *64 capacity by rely the defense of diminished McKenziewould on contending intent to commit the have he couldnot formed rely charged. another, on did, in one form crimes Surely, it be trial court knew would defenses. both these right present on to evidence error refuse McKenzie to right yet issues, McKenzie’s counsel it refused these jurors concerning question prospective their attitudes to case with a fixed could have sat on this these defenses. Jurors illusory and much mental or defect is belief that disease designed only guilty. protect I defense used technical any presume prejudice in case such fundamen- where would capital right case, I would denied, and because this is tal prejudice Therefore, I would to be conclusive. consider the grant a trial. reverse and new THE
D. BY GRANTING THE TRIAL COURT ERRED TRIAL TO THE FIRST DAY OF STATE’S MOTION ON ADD 58 MORE WITNESSES background explained plea my I dissent,
In have (Part III), suddenly bargain realizing after issue exposed in case, the State’s weaknesses that defense counsel major any the State knew it had to add 58 more witnesses. presumed prejudicial case, must where defense counsel is it suddenly prepare for the confronted with the need certainly, testimony presumption witnesses, of more but prejudice in must a death case. attach holding majority its a four- Nonetheless, rationalizes analysis: plea bargain part First, was no therefore there justified relying plea bargain; in se- McKenzie was not discovery investigation through cond, and its own preparation, State knew that had to add the additional any all witnesses; third, event, not of the witnesses testified prejudice thereby fourth, minimized; defense and the requesting right complain a con- counsel waived prepare all of these witnesses. order to better tinuance plea bargain I must existed, no that a and so have doubt Clearly, disagree the defendant relied on with the first reason. bargain disclosing strategy plea his own and in reveal- ing the weaknesses the State’s case. As to ra- second scrap tionalization, there is not a evidence in the in- record *65 dicating discovery that the State had from obtained the defen- dant, there no and evidence the record that the State had independently that determined it had to add 58 more morning witnesses—on the first I of trial. also find it difficult to if believe that the State knew beforehand of need add witnesses, 58more have would waited until the trial start of moving fact, before to do so. In if were case, due to the diligence, State’s lack of trial court should have denied the motion. majority’s
The third rationalization not all of although ignores impact testified, witnesses true, on suddenly having prepare defense counsel of for the' testimony of 58 more witnesses. The addition 58 witnesses certainly impact must have had an on defense counsel’s trial strategy, certainly long and must have meant hours of preparation testimony though for the witnesses, these even they may actually Adding have testified. these witnesses day undoubtedly impaired on the first of trial the defense ability proper counsel’s a to conduct defense.
And while it is true that defense counsel did not ask for a though request continuance even it could have done a so, for a meaningless. continuance have would been court, The trial amply prejudice against this time, had demonstrated McKen- undoubtedly zie counsel, and his and would have denied mo- Assuming tion for a continuance. furthermore, that defense counsel had continuance, moved and that it been had conducting denied, the sad record this Court in fair review majority in this case me convinces ofthis Court would prejudiced have held nonetheless that neither the addition 58 more witnesses nor the trial grant court’s refusal continuance. granting right
Nor does order defense counsel the to in- immediately terview a witness before that witness testifies any prejudice arising cure because of eleventh hour addi- tion of witnesses trial list. witness An con- interview already pro- ducted under the hectic of a circumstances trial gress give prepare does not defense counsel sufficient time to of the cross-examination examination or direct
for either witnesses. many caught up majority again of its in- one has been majority knew from states, the State as the If,
consistencies. investigation preparation to add 58 of the need its waiting until the faith was in bad witnesses, then the State request trial day the list of to add them to trial to first the State’s have denied trial court should and the witnesses rely- who, in hand it was defense counsel On the motion. ing other agreement, bargain apprised plea State necessitating witnesses, the addition of case weaknesses its detrimentally finding supports a this situation justifiable expectation plea bargain had a relied on the that it would enforced. plea bargain existed need am convinced to the State these witnesses was disclosed most or all
to add *66 agreement. bargain plea in reliance counsel on defense only compounded the State are where The errors in this case agreement plea bargain then obtain the add- can breach bolstering based the its case trial ed benefit plea that in reliance of defense counsel who acted disclosures bargain agreement. trial court reasons, reversible error for the
For these it was day permit of 58 more witnesses on first addition trial. ERRED BY REFUSING TO
E. THE TRIAL COURT DEFENSE A TO SIT WITH ALLOW PSYCHIATRIST EXPERTS THE STATE’S MEDICAL COUNSEL WHILE THEIR TESTIMONY WERE GIVING holding properly trial court denied defense request psychiatrist be allowed to sit counsel’s testify- experts were medical counsel table while the State’s (608 447), majority important ing has omitted P.2d at counsel made this re- that defense fact. One of the reasons pro- psychiatrists quest had one of the State’s was because exceedingly CubanSpanish dif- made it accent which nounced key psychiatric witness him. He was the to understand ficult thought it im- defense counsel reason, For for the State. psychiatrist this witness when perative the aid of a to have testified. or disease defect on mental rested
McKenzie’s defense capacity to capacity, he had the is, whether diminished charged. required Ob- crimes to commit the intent form the viously, understand counsel it was vital defense State’s examinations conducted nature of the psychiatrists. given opinions psychiatrists these might Although error, error is not be in a case this normal his life. here, on trial for where, manifest defendant ruling it did not was unfair because The trial court’s also to rebuttal of witnesses the rule of exclusion confine by putting compelled goto first The defendant was witnesses. testimony relating expert mental condi- McKenzie’s on its psychiatrists rebuttal were tion. Because State’s ruling prevent them from witnesses, the trial court’s did listening testimony expert witnesses. of McKenzie’s surely they had means so, if did not do the State And even experts convey testimony to the the essence of this State’s they testify. before were called circumstances, I error to refuse would hold was
Under request. Especially client was on since his defense counsel’s request a reasonable one and should life, trial for his granted. have been HAS NO
F. THE ERROR DOCTRINE CUMULATIVE IF IT NOT IN BASIS FOR EXISTENCE IS INVOKED THE CASE TO REVERSE CONVICTIONS THIS *67 Throughout my dissents, I and last this dissent two error, trials were riddled with demonstrated that McKenzie’s merely affecting error, error substantial not technical but again concluding rights. that the I that error need detail for existence if it not cumulative error doctrine has no basis majority could invoked here to reverse the convictions. by closing eyes contrary their reach a conclusion they apparently, have is what errors committed and chosen to do.
VIII. UNANIMOUS VERDICT REQUIREMENT jury’s
McKenzie claims that the failure to disclose the basis multiple verdict, of its since the case was based on and alter- responsibility, native theories of criminal denied him of the jury guaranteed by unanimous verdict as the United States majority and Montana Constitutions. The has concluded that right was not violated under the Montana Constitution right and that there is no such under the United States Con- I stitution. believe, however, that McKenzie was denied this right fully recognize
fundamental under both constitutions. I guarantee United States Constitution does not prosecution, unanimous in a verdict state criminal but because penalty this is a death case I believe the United States Supreme impose requirement Court would such a in all state prosecutions only way assuring criminal is the —it necessary certainty imposed before a death can be upheld. Because I beyond do not believe that this Court can state jury reasonable doubt that the reached unanimous verdict any one or more of the alternative theories of criminal responsibility, under the harmless error rule set forth in Chapman supra, v. California, the convictions must be reversed. possibility
I
jury
first raised the
of a non-unanimous
verdict
when I dissented to McKenzie III on the issue of the un-
Sandstrom-type
constitutional
instructions. See 608 P.2d at
jury
463, 474 and 482. Similar unanimous
verdict issues were
Fitzpatrick
raised
both Coleman III
III,
I
and filed
concluding
they
dissents in
cases,
both
were denied a
my
equal-
unanimous
verdict. The basis for
conclusionsis
ly applicable
repeat
here therefore shall not
that reason-
ing
analysis
say
nor case
here. It is sufficient to
that the ma-
jority
fairly distinguished
here
Gip-
has not
United States v.
(5th
1977),
(Wash.
son
Cir.
F.2d
v.
State Green
1980),
majority apparently
616P.2d 628.Further, the
has now
abandoned
reliance on our own case of State v. Souhrada
(1949),
Fitzpatrick
122 Mont. 377,
A. REQUIREMENT VERDICT jury convicted have concluded that
Because I of- nonexistent means torture —a homicide of deliberate requirement jury my analysis verdict unanimous fense, Assuming into account. first this conviction must take jury must offense, the conviction McKenzie of this convicted jury Ob- reversed, if the was unanimous. even nonetheless viously, not cannot be a crime that exist for does conviction jury regardless in unanimous whether the was affirmed, reaching its verdict. jury if it that the did hand, can be concluded
On other by means of tor- convict McKenzie of deliberate homicide not then unanimous ver- ture, rather, homicide, but of deliberate problem triggered. under sec- McKenzie was accused dict 94-5-102(lXa), “purposely knowingly” tion R.C.M. or causing Harding, charged of Lana death he was but also 94-5-102(lXb), the alternative under subsection R.C.M. committing, Harding causing the of Lana while with death engaging withdrawing from the commission either in, or aggravated The or assault. sexual intercourse without consent problem jury reveal under which fails to is that the verdict McKenzie. Further- that statute it convicted subsection of (b), felony jury applied which did the more, if the subsection jury committing? find he was certainty underlying required conviction that for sentencing requires
may that the result in death theory jury authority precisely used know which reaching impossible. But here that is Neither its verdict. petition presided judge, judge sentencing over the or the who postconviction relief, Court, or this can determine from theory jury on. The convicted record which of homicide (a) applied jury if it subsection was instructed that subtheories) (b)(and applied or more of its if subsection one it unanimity doing so. All as to must be unanimous doubts supra; Andres, Beck, favor of accused. must be resolved in supra. due to was created State The ‘doubt here charged also and it caused McKenzie, manner in which it by the trial court due manner which it instructed the jury. jury McKenzie’scounsel offered instructions and verdict explicit, judge which were forms more but the trial insisted on (assum- giving jury prepared. the ones he had The verdict ing again did not convict McKenzie of deliberate torture) homicide means of must be reversed under the *69 Chapman supra. harmless error test of California, v. jury’s specify One effect of the failure to the basis for its ver- penalty imposed. only dict is that death cannot be Not all unanimity, affecting doubts as to but all doubts the substantial rights penalty in a case, of accused death must be resolved against the accused. It must be assumed therefore that the jury applied felony-murder finding guil- in rule McKenzie ty. finding carry finding Such a does with it a that McKen- purpose finding zie had the to kill the victim. Such is necessary imposition penalty. of death Lockett, supra. Accordingly, imposed the death be cannot finding. jury because of absence of essential B. THE AGGRAVATED KIDNAPPING CONVIC- TION-UNANIMOUS VERDICT REQUIREMENT charged multiple,
McKenzie was also with alternative responsibility aggravated kidnapp- theories of criminal ing charge. given The instructions and the form verdict which jury required was to use reveal, do not however, the basis theory applied it reaching used determine which it in its guilty jury provided only guilty verdict. The was with one ver- guilty guilty dict form and one not verdict form. The verdict provided jury findings: form that the make two first, was (in guilty aggravated kidnapping McKenzie of the crime of verdict) general aggravated and, essence a second, did the kid- napping jury result in the victim’s death. was instructed findings that its verdict and must be unanimous. jury jury
It can be that the assumed was unanimous. The findings was instructed that its must unanimous and there is in no basis the record to determine However, otherwise. validity finding validity of this rests in turn on the of underlying aggravated kidnapping There ab- conviction. theory solutely or to determine which basis in the record no ag- convicting applied jury McKenzie theories the gravated kidnapping, basis in the record nor is there jury more of on one or was unanimous determine whether the guilty. finding applied theories it aggravated charged kid- with two counts McKenzie was napping, subcounts of criminal and each of these had two jury responsibility. have could clear, therefore, It is ways respon- split criminal or more on the theories of two sibility applied. example, charged McKenzie was with kid-
For Count specific committing napping purpose for the sexual inter- specific purpose of commit- course without consent or for the ting aggravated separately charged He with assault. was also the distinct crimes of sexual intercourse without consent aggravated the trial also in- However, with assault. court aggravated jury if structed the kidnapping, it convicted jury have to reach a verdict on did not guilty whether he of sexual intercourse without consent was jury guilty aggravated assault. The instructed that *70 Because, however, these were offenses. did included charges, separate it can be not reach verdicts on these speculated jury applied either the first whether the or second theory reaching guilty its And is Count in verdict. it of jury equally speculative as to whether the was unanimous on charges contained in Count 3. one or the alternative both aggravated same exists with relation to the situation kidnapping charge in Count 4. Under the third contained knowingly theory jury required that McKenzie was to find specific purposely or secreted the victim for the restricted or bodily terrorizing purpose inflicting Under harm or her. of of theory, jury required find that McKenzie the fourth was physical knowingly purposely of threatened the use used or bodily specific purpose inflicting force on the victim for the Again, injury terrorizing silent on her. record or for jury applied in Count fourth theories the third or whether the guilty ag- finding applied it both in or whether gravated kidnapping. as whether can it determined Nor applying jury alter- one or both the unanimous in charges 4. in Count native contained jury nobody can tell whether the found
The net result is that theory guilty by applying in first or second theory in Count 4. Nor can it be 3, or the first or second Count theory jury if the was unanimous on one determined reaching may applied the over- in its verdict. Where have accep- riding penalty, this is not an effect results the death by certainty required cases table result—the death Supreme requires more than this. the United States supra; supra. Beck, Andres, See question relates I next discuss the substantial evidence as it multiple charges jury alternative on which the was to I I base its verdict. state from the outset that have not review- the record—because the record was not before this Court ed for review. THE EVIDENCE QUESTION
C. SUBSTANTIAL commonly assumption appellate An made courts is that it theory jury does not matter which used as basis to con- long can vict as as it be determined from the record that presented evidence existed each of the theories substantial jury. The unstated basis for these decisions seems to be worry a defendant should not whether that unanimously agreed upon single theory criminal fact long jury unanimously agreed responsibility as the guilty general ap- defendant was crime. That is the proach majority III, taken of this Court Coleman Fitzpatrick III, to which dissented. majority indicating statement, has, broad without one is, what the theories are or what the evidence stated charged supports each the theories substantial evidence disposes charged. each the crimes The court of the issue stating: findings ambit of
“... These verdicts and are not within the *71 (5th 1977), Gipson 453, 553F.2d or State United States v. Cir. (1980), 628, the reason v. 94 Wash. 2d 616 P.2d for Green distinguished peti- which case, that in this from the cases on support here relies, tioner the evidence is sufficient any possibilities the instruc- verdict under and all under speculate in this under the instructions case, It is idle to tions. overwhelming evidence, that there is of the court and the findings possibility in this case were that the verdicts or St.Rep. at less unanimous.” 38 1756. than I I not reviewed the trial record to deter- admit that have each mine whether substantial evidence exists for of the alter- natively charged aggravated kidnapping theories of and for alternatively charged each theories of homicide. When of the appeal post-conviction relief McKenzie’s of the denial of was transcripts decided, us the heard and we did not have before petition 'post- of the trial record. The reason is that a for entirely proceeding relief conviction new and therefore transcript pertaining proceeding post- to that conviction relief was sent to this Court. Neither the District thought Court nor the counsel for either side to have the trial transcripts sent to this Court. transcript
A trial exist, however, does the State Society’s knowledge Historical any archives. But have no writing preparation member of this Court in for the of this opinion Society went to the Historical to comb the trial transcript in an effort to there is determine whether substan- support charged. tial all evidence to the theories transcript during Because this Court did not have the con- reasonably IV, sideration McKenzie I am confident that the specifically record was not reviewed to determine whether responsibility supported each criminal theories of was penalty A substantial evidence. death case deserves better appellate review than this.
IX. DEATH PENALTY ISSUES
A. UNCONSTITUTIONALITY OF STATUTORY DEATH PENALTY SCHEME charged, convicted, sentenced,
When McKenzie on- ly bearing two statutes were in effect a direct which had -304, the death 94-5-105and R.C.M. —sections setting what enacted 1973. There were no statutes forth mitigating aggravating were be either factors or considered to *72 116 provided for man- which There were no statutes
factors. penalty fact, In datory, expedited sentence. review of death any provided expressly kind for which no statutes there were say, then, neither Needless to sentence. review of death by provided which method which statutes were there by the state’s proportional was to be conducted review highest appellate court. my P.2d at 1266to II, McKenzie 581 I dissent to
As stated statutory following require that these cases to 1277, Iread penalty can be procedures scheme before death followed (1976), Georgia Gregg 428 face. v. on its declared constitutional v. Florida 859; 49 L.Ed.2d 153, 2909, 96 S.Ct. U.S. (1976), Proffitt 913; Jurek v. 2960, S.Ct. 49 L.Ed.2d 428 U.S. (1976), L.Ed.2d; and Fur 2950, 49 S.Ct. 262, 96 428 U.S. Texas (1972), Georgia 2726,33 L.Ed.2d 408 U.S. 92 S.Ct. man v. statutory procedural not have these 346.Because Montana did statutory imposi- protections, for I scheme concluded that penalty was unconstitutional. of the death in this state tion statutory Despite scheme, the in the Montana these defects consistently majority refused I, II, III, in McKenzie and Supreme give States effect to the mandates of the United by By strangest logic the most tortured Court. statutory interpretation, papered-over majority has statutory out of them schemes, several non-death capital statutory by judicial fiat, a new scheme created reviewing majority appeal, has avoided In crimes. majority sentencing did did, and what what the court by invoking special McKenzie III, I, II, and McKenzie already post-conviction been issues have relief rule that the decided. constitutionality “[t]he opinion simply states:
The fully us.” and decided has been considered statute constitutionality cer- has St.Rep. of the statutes 1758.The constitutionality tainly the statute decided, but the been fully considered. has never been (I when of this Court II not a member gym- majority’s decided), I I dissented
McKenzie was hanging subject making edict. See to a nastics today. views I to those 1266to 1277. adhere 581 P.2d my com- II, and also in McKenzie dissent here summarize an order handed down on the effect of ment here declaring review before sentence case, in the Coleman contemplated never Review Board was the Sentence statutes. review sentence holding majority II, III, I, in McKenzie sentence review statutes himself of the
McKenzie could avail review his death Board to Review and ask Sentence obviously attempt paperedover un- to save is a sentence, (I say system. in Part have more review will constitutional *73 transpired hearing just at the IX of on what this dissent Board.) analyzed quoted I and Review before the Sentence I, concluded statutes in McKenzie and the sentence review seeking they apply to a were never intended to defendant is a The sentence review scheme of death sentence. review indicating language penalty that a death defendant devoid of sentence before the Sentence can review of that obtain even refer to the fact, Board. In the statutes do not Review sentence, is manifest that death to death and it contemplate legislature Sentence Review the not did (See reviewing my death sentences. dissent Board would 1273.) P.2d II, McKenzie at
Assuming, that the Sentence Review Board furthermore, change statutory authority therefore to had the review and statutory death, than the scheme death sentence to one less constitutionally per- not is still because this Court is deficient of the Sentence Review Board. mitted to review decision Supreme Gregg,Proffitt, The States Court held in United by supra, sentence must be reviewed the Jurek, that death highest appellate The Sentence Review Board is state’s court. ap- highest appellate less not court much the state’s even pellate court. majority opinion III states that a branch of Court. This
Sentence Review Board is Board, it true all. We not create the Sentence Review at did by by legislature, just it was created was created as by legislature. legislature it On the so can be abolished govern- hand, other one of the three branches this Court is although by Constitution and ment established the Montana legislature I so, times am sure it would like cannot to do abolish it can abolish the Sentence Review Board. engage analysis only in this to demonstrate undeniable highest ap-
fact that the Sentence pellate Review Board is not state, court in this that its actions are not reviewable statutory this Court, and, therefore, scheme by majority opinion solely uphold created the constitu- tionality sentencing possibly court’s death edict cannot comply Supreme with United States Court mandate that highest appellate finally pass the state’s court must proportionality of the sentence. finally caught
I further note that this in the web itsof logic own it when was asked to whether determine Coleman was also entitled have his death sentence reviewed Sentence Review Board. After this Court affirmed in Coleman II, relying majority P.2d 1000,Coleman, on the deci sion in McKenzie III I, II, and could have his death sentence reviewed the Sentence Board, Review Col- applied eman also to the Sentence Review Board for review properly his death sentence. The down, Board turned him stating jurisdiction so, in its order of denial had no review a death sentence.
After the Sentence Review Board re- denied Coleman’s *74 quest, applied then Coleman to this Court an order for to com- pel the Sentence Review Board to review sentence. his death authority, As he Court, cited McKenzie III. But in an un- published opinion upheld order, and the Sentence Review Board, held and that the Sentence Review Board had no jurisdiction agreed to review a death sentence. I with this holding signed exactly and the order becaused it affirmed always contending what I have been the Sentence —that authority Review Board has no to review a death sentence. That order Coleman was handed down before McKenzie my III was handed down. In I III, dissent McKenzie cited quoted my position support and from the Coleman order jurisdiction that the Sentence Review had no Board to review a death sentence and those not therefore that statutes could part statutory being be relied on as of the constitutional interest Of particular to the death penalty. relating scheme in the McKenzie the Coleman the statement quoted is order here, that: III dissent and repeated anomaly but an extra-statutory be . would
“. . It review of on this Court that the conclusions we hold were the Sentence to later review subject were sentences death 487. 608 P.2d at of this Court.” Division Review now That my is wholeheartedly agree. position With why And is precisely been it my position. it has always and the Sentence holding its should now review this Court 'the McKenzie death sentences. Board can review Review as Sentence Review Board was review before the Sentence ma- for Coleman. Yet the for as it was McKenzie anomalous issue, of this even though reconsideration has avoided jority its the use of wrong, special demonstrably To this Court’s erroneous deci- rule. review post-conviction McKenzie, decision that is sion would mean favorable not want. what this Court does precisely here it vividly I have this matter because again emphasized has in which the twisted majority demonstrates the way what otherwise be in- constitutionally law to would uphold A firm death sentence. federal court would have to blind through law if it not see what insensitive did utterly done, has in each of majority appeals. face, its un- is, death scheme penalty statutory patently death penalty constitutional. And the creation special scheme also unconstitutional majority is patently applied.
B. OF DEATH PENALTY UNCONSTITUTIONALITY THERE DEATH STATUTES MANDATING “UNLESS ARE MITIGATING CIRCUMSTANCES’ (deliberate homicide) 94-5-105,
Sections R.C.M. 94-5-304, (aggravated where the kid- R.C.M. 1947 kidnapping victim) mandated the results the death of the both napping mitigating “unless there are It death circumstances.” since trial court concluded that however, appears, *75 there was it could not two impose one victim involved
120 (Conclusion 1.)
separate Nonetheless, death sentences. no. sentencing mitigating court that there no cir- found were imposed penalty. cumstances and therefore the death argues language McKenzie that “unless are there mitigating gives sentencing circumstances,” un- court mitigating there bridled discretion to determine whether are Supreme circumstances, and that the United States Court has give invalidated statutes which this uncontrolled discretion sentencing authority. wording I believe that this does precisely legislative respon- abrogation that. It also an is sibility guidelines mitigating to fail to set for both factors sentencing that must be considered court and weight given mitigating to be these factors.
The statute, 94-5-105, deliberate homicide section R.C.M. (1973 Supp.) aggravating 1947 sets forth a six cir- list of finding cumstances. The that or more of cir- one these penalty cumstances existed mandates the death “unless there (See mitigating III, are circumstances”. 581P.2d at entirety.) 1227,where this statute is set out in its The sentenc- ing aggravating court found that circumstance fulfill- ed, is, “the deliberate homicide was sentencing committed means of torture.” In appears death, it jury’s special interrogatory finding court relied on the the victim as a result torture. then was dead The court mitigating concluded that no circumstances existed, hang. therefore sentenced McKenzie to aggravated kidnapping statute, 94-5-304, section mitigating 1947, R.C.M. contained similar “unless there are provided: circumstances” clause. That statute impose following “A court shall of death con- sentence aggravated kidnapping viction of if finds that the victim dead the criminal are result of conduct unless there mitigating circumstances.”
Yet, there was no statute which enumerated what legislature “mitigating considered circumstances” to be. Godfrey (1980), Georgia v. 1759, 64 U.S. S.Ct. Supreme L.Ed.2d United States Court held that objective death statute must contain “clear stan- *76 the sentenc- for and guidance” detailed and “specific dards” declaration, language Measured ing authority. — are mitigating there “unless statutes both “— objec- and clear neither has circumstances detailed and specific nor tive standards cir- find mitigating to The discretion judge’s guidelines. is absolute. cumstances has vacated death
The United States Supreme the sentenc- which provide under statutes sentences imposed do discretion as the Mon- with the same unbridled court ing Page v. 939, 92 (1972), 408 U.S. S.Ct. See tana statutes. Tilford Kentucky (1972), 408 v. Williams 761; U.S. 2873, 33 L.Ed.2d Herron v. Tennessee 759; 938, 33 L.Ed.2d and 92 S.Ct. These deci- 2865, 33 756. 937, 92 S.Ct. L.Ed.2d (1972), U.S. Furman, on the holdings supra sions were based essentially Gregg, are in effect no dif- and The Montana statutes supra. thus circumstances and ferent. enumerate no They mitigating unguided discretion give sentencing judge impose whims. to his own according withhold the death penalty than that. Discretion cannot be broader if chooses to statutes, Under the Montana the judge circumstance, so, a he can do thereby mitigating recognize if he chooses sentence, but, here, a was done withhold death circumstance, can thereby he mitigating to recognize will receive a death sentence. assure that the defendant statutes Court has found similar Supreme United States uncon- since they give sentencing judge unconstitutional to his according the death impose trolled discretion to own whims. a new was not entitled to then,
Assuming, is entitl- (minimum that he trial due standards dictate process sentences trial), ed I would vacate death new kidnap- homicide and aggravated were for deliberate imposed is not the death penalty that on resentencing and direct ping to be considered. MENTAL DISEASE OR
C. FAILURE TO ACCEPT AS A MITIGATING FAC- PSYCHIATRIC DISORDER 94-5-501(1), 94-5-304, SECTIONS TOR UNDER R.C.M. set statutes though another even Still is that argument mitigating circumstances, no a mental disease or forth psychiatric proved at the trial and as a matter of disorder accepted mitigating thereby circumstance, law it must be as a precluding penalty for conviction. McKenzie the death either sentencing which also attacks the court’s order balanced against mitigating aggravating and deter- factors, factors clearly outweighed any aggravating factors mined correctly mitigating so, claims, factors. permit 94-5-304, section weighing R.C.M. does not aggravating against mitigating Rather, he factors. factors mitigating argues that if a factor is found to exist as matter imposed. then a law, death sentence cannot be sidestepped the and so this Court. The trial court issue did ruling post-conviction petition relief, on McKenzie’s *77 sentencing trial had found court held that the court outweigh McKenzie’smental disease be to the to “insufficient jury.” aggravating And the ma- circumstances the found seizing jority ruling, agreed the trial here, in on this with court the existence of a psy- mental disease or chiatric automatically disorder “does not im- munize a defendant penal- from the death ty”. St.Rep. at 1760.Both decisions the evaded issue raised by McKenzie. says anything sufficiency
Neither statute about the of a mitigating requires balancing circumstance; neither statute aggravating against mitigating the factors factors. Each clearly statute penalty mandates the death there “unless are mitigating circumstances”. Here we have a situation where sentencing the court found that a mental disease or psychiatric mitigating disorder did as exist factor, but ag- nonetheless it rewrote them and declared the gravating outweighed any mitigating factors the existence of factors. patently
This is unconstitutional construction of a death penalty penalty strictly statute, all for death statutes must be against going construed the state with benefit of all doubts supra; supra. to the defendant. Beck, Andres, Here the sentencing improperly expanded penalty court the death impose penalty. statute in order to the death contending argument by supports his McKenziefurther psychiatric is disorder a mental disease or the existence of mitigating universally recognized by a as factor. the courts disputed supra. that a case, has not In this the State Lockett, proved psychiatric at trial. was disorder mental or disease dispute goes nature of that disease The argues that than its existence. disorder, rather recognize only required sentencing this as court not statutory plain mitigating so, factor, but that once did -501(1), language R.C.M. 94-5-304 sections — — mau- mitigating circumstances” “unless there are imposed. penalty not be dated that the death majority question court and have not, trial “automatically immunizes stated, whether such a condition penalty”, the statutes from the death but whether defendant sentencing impose permit the court to nonetheless involved penalty psychiatric a mental disease or the death once Since statutes must disorder is found exist. death strictly against State, hold construed this Court must sentencing statutory right impose no court had beyond sentencing judge clearly penalty. The death went against by weighing aggravating statutory powers factors vacating mitigating This another reason for factors. is still remanding resentencing case the death sentence and sentencing with directions that court consider penalty. death -501(1),
D. 94-5-304and R.C.M. UN- SECTIONS *78 SHIFTED THE BURDEN TO CONSTITUTIONALLY THE TO PERSUADE SENTENCING DEFENDANT HIS LIFE COURT TO SPARE 10(g) post- petition alleged for in section of his -501(1),R.C.M. sections 95-5-304and
conviction relief that unconstitutionally him dissuade to shifted burden penalty. imposing sentencing The the death court from the majority’s of the issues under- failure to mention this as one annals of in all of the its mines still more statement history a case there been state, never has criminal case legal care”. more “tender treated with yet Supreme The United States Court has not decided supra, Lockett, issue In ex- raised McKenzie. the Court pressly declined rule on issue because it chose to vacate the death sentence for other reasons. Fitzpatrick
In both Coleman III and I III, dissented on this stating persuasion issue, that this burden of should in a never, capital prov- case, shifted to the The burden of defendant. why ing always a defendant’s life should be taken should rest given with the State. The III reasons Coleman and Fitz- patrick apply differently, III also here-the is statute worded precisely but the effect is the same. majority altogether. has evaded issue The trial improper-
court, however, issue, considered this but decided it ly. sentencing The trial court held that the did not its order on sentencing placed indicate that the court had the burden face imposing dissuade the court from death precisely given Yet, sentence. to the statute effect sentencing holding any mitigating court. In factors operate aggravating did not factors, offset the the sentenc- ing impliedly court that it ruled was McKenzie’s burden to contrary. statutory convince him to Furthermore, language mitigating impos- “unless there are circumstances”, impossible per- ed an burden on McKenzie.He not had to sentencing mitigating any suade the court that factors offset aggravating factors, he but also had to be a mindreader to sentencing determine what the court would consider as mitigating give factor and what effect court would it. That unacceptable hearing sentencing is an situation at and it is may intolerable where a death sentence result. (and Fitzpatrick St.Rep. impliedly III, 38 at 1460 in Col III), majority
eman held that the statute was not un though constitutional, even it did indeed shift the burden persuasion to the defendant. dissented to both cases. See Fitzpatrick St.Rep. Coleman III, 659; III, 633 P.2d at challenged by 1464NN. The statute both Coleman and Fitz patrick, provides part 46-18-305,MCA, section that “... the impose . . . court shall a sentence of if it finds death one aggravating more of the circumstances and finds that there mitigating sufficiently are no circumstances substantial to call leniency.” *79 persuasion concerned, this as the burden of Insofar challenged in effect than the statutes statute is no different to instance, In each the burden is shifted here McKenzie. facing possible death sentence to dissuade defendant applied sentencing imposing In the statutes fact, court from it. they impose further on the to are worse because McKenzie sentencing judge the burden to read the mind of the defendant may judge what that consider order to determine weight give mitigating what he will to circumstances and them.
Assuming again appeal that the issues raised in this do not require un- trial, and a new a reversal of the convictions applied require that the constitutional statutes to McKenzie be vacated and that the case be remanded for death sentences resentencing penalty is not to with instructions that the death be considered. DEATH
E. OF PENALTY IMPROPER EXPANSION NON-STATUTORY AG- STATUTES TO INCLUDE GRAVATING FACTORS TO BE WEIGHED AGAINST LURE TO GIVE NOTICE MITIGATING FACTORS—FAI TO DEFENDANT sentencing judge imposing penalty, not the death did aggravating himself circumstance of torture
confine to apply McKenzie, that was to but he also added seven found weighed ag- nonstatutory aggravating factors and then against mitigating gravating factors factors. sentencing argues impermissibly court sentencing
expanded scope inquiry he of the and that was given prejudiced him notice that it because court had irrefutably claims that he not know would do so. McKenzie did nonstatutory ag- sentencing going consider court was gravating sentenc- factors. McKenzie further claims that the findings, sentencing hearing ing judge came to the with already ready prepared and conclusions, and order of death hearing. It when this conclusionof the filed the expand- learned that the court was filed that McKenzie order (section scope aggravating statute circumstances ed the 1947) nonstatutory ag- 94-5-105,R.C.M. and had added seven gravating imposing circumstances as reasons death penalty. argues expansion that this violated his Eighth rights, give Amendment and that the failure court’s *80 process notice of what it would consider violated due rights under the Montana Constitution and the (Strangely enough, United States Constitution. sentencing judge in Coleman also arrived at the sentenc- ing hearing findings, with his conclusions.and order of death already prepared.) sentencing right expand scope
The court had no to of the inquiry adding nonstatutory aggravating factors. The penalty they death statutes must be self-contained if are to any meaning judge’s all, have and the conduct is therefore impermissible. assuming right But that the court had nonstatutory aggravating consider these factors, it had the duty notifying hearing McKenzie in advance of the that it expanding scope inquiry, would of the a fur- had duty exactly ther tell McKenzie what additional factors Only by procedure would be considered. could McKenzie meaningful opportunity present receive a evidence on each nonstatutory aggravating The fact that factors. hearing sentencing came court to the a sentence armed with deny is clear an intent death evidence of McKenzie even a process. semblance of due again majority opinion
I must state that the has failed to ad- underlying dress the fundamental and issues raised. The ma- jority, reasoning, proper with no statement of its held it was sentencing nonstatutory for the court to consider the seven aggravating majority factors, but the fails to mention that argues McKenzienonetheless he was entitled to notice so that present sentencing he evidence on the could factors court majority’s self-laudatory would The statement that consider. given legal has been the most care” in all “tender justice again mean- the annals of Montana criminal becomes ingless in this case. re- vacate the sentence and
On this issue also would death penalty is not to be con- mand with instructions that death sentencing options for the court. sidered as one of the DEATH F. IMPROPER EXPANSION OF PENALTY STATUTES TO INCLUDE NON-STATUTORY AG- TO BE GRAVATING FACTORS WEIGHED AGAINST TO GIVE NOTICE FACTORS—FAILURE MITIGATING TO DEFENDANT findings jury deliberately made no that McKenzie took argues life,
the victim’s and McKenzie therefore that the im- position Eighth death violates the and Four- argues against teenth He Amendments. the homicide convic- assumption jury guilty tion on the found him homicide, deliberate than trial rather court’s offense of assump- “deliberate homicide means of torture”. With this argues jury may ap- tion, however, McKenzie have plied felony finding guilty murder rule in him of deliberate (see MCA) homicide section 94-5-102, therefore did not finding deliberately make the that he took the victim’s life. As aggravated kidnapping *81 conviction, the also found kidnapping that the resulted in death, the victim’s but the jury finding deliberately no made that McKenzie her took life. day sentencing,
On the set for the trial court came to court findings with already its and conclusions and death sentence prepared. expressly jury’s The trial court relied on the fin- dings imposing in the death sentence. The court referred jury’s findings Finding twice to what it considered the to be. jury no. stated: “The case, evidence as the found rape a brutal, discloses conscienceless, torture, and deliberate added..) killing being.” (Emphasis Finding of a human no. 6 stated: jury rejected finding
“That the form verdict defen- guilty by dant not reason of mental disease or which defect responsibility excludes for criminal conduct which was sub- correctly guilty mitted to them and found defendant guil- deliberate homicide which was torture, means ty Aggravated Kidnapping which resulted in the death added.) (Emphasis the victim.” jury expressly But did not find that McKenzie deliberately took the victim’s life—this is true in relation to jury impliedly both convictions. To assume found deliberately that McKenzie took the victim’s life it must jury “pur- assumed further that the convicted posely knowingly” causing Harding’s Lana death rather causing felony-murder jury than in a situation. The was in- alternatively charges, structed on the deliberate homicide thus, there is no basis to determine from the record which theory jury convicting used McKenzie. aggravated kidnapping similarly
The convictionis defective. require jury The instructions did not to find that McKen- committing aggravated kidnapping, deliberately zie, only took the victim’s life. And returned verdict reveals kidnapping jury that the victim died as a result of the —the finding deliberately made no that McKenzie took her life. Unfortunately, majority opinion omitted reference aggravated to the homicide conviction and deals with the kidnapping conviction.
AGGRAVATED KIDNAPPING: ABSENCE OF A JURY FINDING THAT MCKENZIE DELIBERATELY TOOK THE LIFE VICTIM’S jury following aggravated kidnapping returned the
verdict: jury,
“A. We, cause, the above-entitled find defen- Guilty Aggravated Kidnapping dant offense of as charged. (did)(did net) Harding
“B. We further find that Lana die Aggravated Kidnapping. a result of said “(Strike apply.)” out bracketed word or words that do not jury This verdict shows that the was not asked to find deliberately the victim’s life. took This returned support verdict cannot the conclusionthat the made that *82 jury Whether the believed that McKenzie determination. deliberately question took the victim’s life is another altogether. say finding appears It is sufficient to that no such finding aggravated kidnapping in the record. The equivalent finding resulted in the death of the victim not to a deliberately took the victim’s life. that McKenzie independent findings make on this Nor trial court did the expressly imposing penalty, question. the death Rather, jury (Finding what it believed the found. no. relied on had denying supra.) post-conviction McKenzie, But in relief to ignored issues, both the trial court and this Court have simply imposed and instead their own views of what actually relying disclosed, evidence rather than on what was reaching found or not found. Without the issues raised majority McKenzie, the states:
“In III, P.2d at as the District Court considering petitioner’s application post- noted in for relief, conviction we found the evidence on the issue of intent overwhelming, permitting to be uncontradicted and of but one kidnap rational conclusion—that McKenzie kill intended St.Rep. the victim.” 38 at 1759. support
The trial record does not First, this statement. jury judge statement assumes that made these necessary findings. That is not the Second, case. this state- accurately ment does not reflect the evidence. The evidence question on the of intent was not A uncontradicted. psychiatrist appreciate testified that McKenzie could neither criminality acts nor conform his conduct to the re- quirements question surely goes of law. This to the issue of criminal responsibility. respon- intent—and criminal Criminal sibility can arise if criminal intent exists. Third, the ma- jority’s ignores statement the fact that the State’s case was mightily by barrage aided of unconstitutional Sandstrom- type jury presume instructions which allowed the criminal intent.
Regardless majority perceived of what the the evidence to simple majority be, fact is that the is not the fact-finder. jury. regardless That is the function of the And of what the shows, evidence the fact is that the record does not jury demonstrate in fact found that McKenzie possessed may jury the intent to kill. The fault lie with the in- forms, structions or with the verdict but that does not alter jury findings necessary the situation. The did not make the imposition of the death sentence. criticizing usurping power this Court for serving a fact-finder, Justices Marshall and Brennan stated:
130 what evidence did the court Montana Supreme [the
“But error of to overcome the constitutional find sufficient Court] the presence requisite the directing jury presume the the acts committed? criminal intent from nature of manner in relied on ‘the vicious solely Montana court itself committed’ concluding peti- which the crimes were the intended’ to commit knowingly tioner ‘purposely help I cannot but be shocked that 450, Id., crimes. at 459. simply applied approach, taking the court the Montana presumption. neglected so the court doing, forbidden the it failed to examine whether its task on review: perform the verdict. instructions could have infected jury disapproved finder, as another fact Instead, again imper- the court served the burden on missibly petitioner disprove placing It the criminal intent. nature of his acts established requisite following surely be that a Verdict an unconstitutional cannot jury presume permitting intent instruction the criminal reviewing court can be immunized reversal because the from impermissibly presumes also criminal intent." U.S. , added.) 507, at 509. 628-29, S.Ct. L.Ed.2d (Emphasis Not did this Court the forbidden only erroneously apply on the conclusion presumption reaching proof ques- tion of intent was but it has overlooked overwhelming, again directly the even more fact that the was never jury important told to as of its verdict the of whether question determine part took victim’s life. The found jury deliberately resulted in the victim’s only that aggravated kidnapping death. can finding
Nor we read into the verdict jury’s implied life in the course that McKenzie took victim’s deliberately in- None of the committing aggravated kidnapping. (instructions 25,29-V no. structions on aggravated kidnapping 36) to find that McKenzie deliberately required jury life. The instruction involved con- took victim’s other make if it cerns the was to found special finding jury then guilty kidnapping jury aggravated —the if in the to determine resulted vic- aggravated kidnapping 54-III.) (Instruction tim’s no. This instruction does not death. deter- must, finding, tell the that it before making life. mine that McKenzie took the victim’s deliberately sentencing judge, question The next is whether the jury finding deliberately absence of a that McKenzie took the finding part life, victim’s could make that himself sentencing finding process. supra, case, In this no. is so vague sentencing judge that I cannot determine whether the independent made that determination or But if I not. had to finding, say interpret sentencing judge would simply jury’s finding relied what he considered to be the —a *84 totally misplaced jury reliance because the did not make the findings that the Court said it did.
Assuming arguendo, sentencing judge however, that the did independent findings make deliberately that McKenzie took my position life, victim’s it is that function, as a prelude imposing only a sentence of death, can be made jury, finding sentencing such judge that is con- stitutionally prohibited. my See dissents in II, Coleman 1045; P.2d Fitzpatrick III, Coleman 633P.2d at 660-61;and St.Rep. III, 38 at 1465FF-65GG. showing would adhere jury to the trial record’s of what the opposed majority’s
found, conclusion of what the evidence finding shows. Based on the absence of a that deliberately McKenzie took life, the victim’s I would vacate part the death ding jury’s sentence since it is based in on the fin- aggravated kidnapping “resulted in the death of the victim”.
DELIBERATE HOMICIDE; ABSENCE OF A JURY FINDING THAT MCKENZIE DELIBERATELY TOOK THE VICTIM’S LIFE
Although jury finding made no that McKenzieintended problem to kill victim, the real with this conviction is that (see McKenzie has been of a convicted nonexistent offense dissent). part Beyond majority IV this this, however, the opinion has failed to mention this issue its exam- —another — ple legal majority care” it has “tender claims given reviewing McKenzie in and death his convictions sentences. jury
Since convicted McKenzieof deliberate homicide torture, means result is that the be convictionmust since no such reversed with directions to dismiss charge if McKenzie of exists. But did convict jury offense 94-5-102(a) on either or deliberate homicide based subsections then arises as to which subsec- (b), R.C.M. the question (a), convicted him of. If the used subsection jury tion jury that McKenzie or knowing- and therefore decided “purposely life, the victim’s its decision would be constitutionally took ly” hand, if the the felony- sufficient. On the other jury applied be no (b), finding murder rule of subsection there would life its deliberately McKenzie took the victim’s and therefore decision would be unconstitutional. either did convict under
Assuming jury (a) (b), 94-5-102 or R.C.M. McKenzie argues subsections that the record fails to reveal which of criminal theory respon- can- and therefore death sibility jury penalty applied, not be cases certainty death imposed. required means that the defendant must be the benefit of given doubt from the Since it cannot be deter- arising proceedings. (a) (b) whether the subsection mined used subsection conviction, doubt, its means reaching argues, that he cannot sentenced death. constitutionally is silent on this issue. I
Unfortunately, majority opinion *85 however, issue, the it assume, that had the dealt with opinion would have done so in the same that it dealt with the way ag- is, issue—that evidence was gravated kidnapping And, course, overwhelming my and uncontradicted. be here are would the same on arguments they ag- issue. The evidence on the of in- gravated kidnapping question contradicted tent is certainly on by psychiatrist testifying un- McKenzie, behalf of and was the use of the by impacted The Sandstrom-type constitutional instructions. had majority facts The either jury no determine the itself. found right life it not. that McKenzie took the victim’s or did deliberately Lockett, McKenzie relies on and the again supra, concurring that, of Justices White and Marshall in arguing opinions Amendment minimally, Eighth requires jury finding life. If that the had the to take the victim’s purpose defendant be law, this is the then McKenzie cannot executed.
The several factors. by homicide conviction complicated cannot be read As have verdict already explained, jury instructions, rather, but can be in isolation from the them. The by in relation to verdict returned understood stated: jury in the above cause the defen- We,
“A. entitled find jury Deliberate Homicide as Charged. dant offense of guilty (was) Homicide (was “B. We further find that Deliberate not) Means of Torture. by
“(Strike the bracketed word or words which do not out apply.)” I have this return- IV, dissent,
In of this how explained part into the and definition directly ed verdict was tied explanation of the nonexistent offense of deliberate homicide means of torture, and that the had no choice but use jury guilty form, verdict for it was with no others. provided offense, of a nonexistent But to set aside conviction still the instruc- in this verdict must findings explained by tions. A that the found McKenzie Finding says jury guilty “Deliberate Homicide as The fact is that McKenzie Charged”. was with deliberate homicide under the two theories charged 94-5-102, contained section R.C.M. 1947. The first theory, (a), subsection find the defendant jury requires The or killed the victim. second knowingly” “purposely is a statement of the rule theory, (b), subsection felony-murder and does not that the defendant finding “purposely require he intended to do so. killed the victim or that knowingly” its these theories and was instructed jury alternatively its in reaching not state which theory applied verdict does decision. the jury can B an implication
Nor Finding support in- life. The only to take the victim’s found McKenzie intended means of tor- “torture” or “by structions the word defining the nonexis- defining are in the instructions ture” contained means of torture.” tent offense of “deliberate homicide told that expressly each of these instructions the means homicide of deliberate guilty order to find kill that he intended torture, it did not have to find *86 34.) (Instructions 29-11 and no. victim. in part: no. 23 stated instruction
Specifically, “ Deliberate Homicide the offense of ... is guilty purpose Torture, Means of whether or not it was the or inten- added.) (Emphasis tion the assailant to cause such death.” repeated language: instruction no. 34 same And you particular purposes if “And find one or more of said beyond proved been a have reasonable doubt and that the purposely inflicting defendant her killed while so cruel suffer- ing upon her, he has committed the offense of Deliberate Homicide means of it Torture, whether was or was not his added.) purpose (Emphasis or to kill her.” intention Surely it cannot be determined from these instructions—the defining “by jury ones means of torture” —that the found kill intended to his victim. The most that can be said jury is that the was free to reach a verdict without ever con- sidering possible, whether McKenzie intended to kill. It is jury subjectively course that the decided that McKenzie did possess the kill, intent to but nowhere is that decision reveal- implied. penalty If, ed before death can be constitutional- ly imposed, jury must find and the record must reveal that manifestly kill defendant intended to it victim, clear constitutionally impos- that here the death sentence cannot ed. Neither the returned verdicts nor the re- instructions quired jury jury to make this decision. Whether the sub- jectively question, reached this decision is another but ob- viously imposed a death cannot be based on what a jury subjectively thought. only jury
I believe that can make the decisionof whether a person only jury underly- can die, live or can make the ing Accordingly, sentencing judge if decisions as well. findings usurpation himself, made the this would amount to a jury, judge’s findings of the function of the and the could not constitutionally stand. sentencing judge I am
But not certain that the himself made independent finding concerning taking an intentional appears jury’s Rather, life. that he relied on determina- yet jury tion, realized that the had not made that determina- Again, only finding tion. on this issue stated: “4. The in the found case, evidence and as rape and deliberate brutal, conscienceless, torture, discloses being.” added.) killing (Emphasis of a human *87 ambiguous finding, is that, if it best. This can called findings sentencing facts make its own on the the court Did rely By jury’s or the on these issues? stated, did it decision — jury” by would it eliminating the “and as words the found findings. sentencing appear made own On that the court its — by hand, with the words “and as the other the found merely appear jury” sentencing that the court was would —it jury repeating it the to have found. the facts which believed finding capital being am- I no. is so case, This biguous believe that as one of the on which that it cannot stand foundations imposed. finding the is Nonetheless, can be the death filled with error. sentencing merely rely- assuming court was
First flatly wrong ing jury’s finding no. decision, on the is jury expressly impliedly respects. or the First, several did If the that McKenzie intended kill victim. sentenc- find impose ing finding court as which used foundation on penalty, cannot the death then the death sentence stand. although jury Second, did that homicide determine jury only “by have could torture,” occurred means of by by using the means decided this issue deliberate homicide (instructions 34). no. This torture instructions 29-11 of guilty again jury found of nonexis- means that McKenzie tent offense. jury raped the
Third, the did not find that McKenziehad vic- rape Although charged with and evidence tim. was jury, presented raped, the victim had been instructions, trial not reach that because of the court’s did jury charge. expressly if it found The trial court told guilty aggravated kidnapping or deliberate torture, both, means not have homicide or would they charges consider the lesser because were classified III). (See part That no. lesser-included offenses instruction accepted precisely happened trial what court charges, Obviously, jury’s because of alternative verdicts. ag- implied finding necessary rape to either an was not gravated kidnapping homicide conviction. or deliberate concerning question vic-
Fourth, is a whether the there real given tim definition torture was tortured within the jury. continually also an This is issue that McKenziehas raised consistently but this Court has There avoided. is no doubt that brutally murdered, the victim was but a brutal murder does argues not mean that it was a murder torture. McKenzie support finding that there is not substantial evidence to (See dissent.) part the victim was tortured. V of this jury I Because believe that the in fact convicted McKenzie of the nonexistent offense of deliberate homicide means of my unnecessary. much torture, discussion is theOn other majority only ignored hand, because the has not this issue but relating jury also the issue to whether the found McKen- deliberately compelled zie took the life, victim’s feel to ex- press my Clearly, expressly implied- views. did not *88 ly deliberately being find that McKenzie killed his victim. This penalty imposed. so, the death cannot be assuming Even that the deliberate homicide means of torture conviction does not have to be reversed and dismissed because crime, there is no such event, would in because my expressed resentencing here, views remand the case for penalty with instructions that the death is not to be considered.
G. AN EVIDENTIARY REQUIRED HEARING IS TO DETERMINE THE WHETHER DEATH PENALTY IN MONTANA IS IMPOSED ARBITRARILY, WANTONLY, FREAKISHLY AND DISCRIMINATORY upholding penalty principle,
In the death as an abstract Supreme open United States Court left the door for the fac- penalty may imposed arbitrarily, tual claim that the death wantonly, freakishly, discriminatorily. McKenzie has at- penalty precisely ground tacked the Montana death on supporting and has set forth in a facts affidavit which he evidentiary hearing prove. alleges claims an will He that no person has been executed in this state since and that only persons now the on death are himself, row Coleman and Fitzpatrick. He claims that he and the other defendants have arbitrarily penalty, been selected to receive the death that scores of since defendants before and have been con- capital victed of crimes but have not received death penalty.
In
the United States
ex-
Gregg, supra,
Supreme Court,
tremely
Furman,
conscious that its
holding
had been
supra,
to distill what it
misinterpreted,
attempted
considered to be
the essence
Furman.
In
the Court
Gregg,
explained
of its Furman
part
holding
death
invalidating Georgia’s
penal-
was
ty,
the death
penalty
being imposed
discriminatorily, wantonly and
and so
freakishly,
infrequently
that any given death sentence was cruel and unusual. Gregg
(White J.,
concurring),
U.S. 220-221. This conclusion in
Furman was reached after
the result
considering
of capital
sentencing
practices
fact, rather than by simply examining
the abstract
statutes on the
Furman,
books.
“The aof law is one generality inflicting punishment capital What be said thing. may law on the books validity and what do, be done with the law in its may application lead to may, different conclusions.” 408 U.S. a 242 quite J., (Douglas, concurring). then, Gregg, once set forth what it considered its having be, in Furman to
holding
Court
the death
Supreme
upheld
statutes then
ex-
books
Georgia.
*89
recognized that
the allegation that
the new death
pressly
and
penalty
arbitrarily
statutes were
still
imposed
was
discriminatorily
by any
“unsupported
(Emphasis
facts.”
added.)
(White, J.,
But a facts different situation exists here. McKenzie alleged directly challeng- his and affidavit that petition supporting based, on which was and he offered ed assumption Gregg If these facts at an evidentiary hearing. proved, to prove these facts that the death scheme would establish penalty arbitrary discriminatory just just face, on its but as not important, arbitrary discriminatory applied. it was allegations clearly require These are sufficient to an eviden- hearing. tiary refusing evidentiary hearing to order an on these claimed violations, the court have
constitutional trial purpose post-conviction subverted the relief statutes any opportunity and have taken from McKenzie to show our system application state court these un- statutes is deprived remedy constitutional. McKenziehas been of a state present and a state forum his claims. constitutional H. AN TO REQUIRED EVIDENTIARY HEARING IS DETERMINE THE CLAIM THAT THE DEATH PENAL- TY IN INFREQUENTLY MONTANA IS SO IMPOSED THAT IT A NO LONGER SERVES VALID STATE IN- TEREST AND THEREFORE CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT
Closely arbitrary, to McKenzie’s claim of the connected discriminatory application wanton, freakish, and Montana’s penalty infrequent claim death is his that its use leads longer interest, conclusionthat it no serves a valid state and is punishment. therefore cruel and unusual Again, neither the District this Court ruled Court nor directly despite alleg- claim on this the fact that McKenziehas evidentiary support ed facts in contention. supra, Supreme
In Furman, the United Court mere- States ly penalty per unconstitutional, held that the is not se death recognized but the Court certain limitations. Those limitations yet case, have been raised in this this Court has refused to evidentiary hearing permit Furman, on the claim. In clearly pointed concurring opinion in his Justice White out administered, that “... as the statutes us are now before infrequently imposed execution is so that the threat of too attenuated to be substantial service criminal justice.” 408 at 313. Justice White also stated: U.S. penalty] [the
“. . . At moment ceases death realistically emerging purposes, however, to further these
139 in is whether its such circumstances question imposition is it my Amendment. It view Eighth would violate then and would, its would be imposition pointless for life extinction of with contributions marginal needless social or A with such public penalty discernible any purposes. returns State would be excessive patently negligible and cruel and unusual violative of the punishment Eighth at 312. Amendment.” U.S. in relief, his alleged petition post-conviction in particularly affidavit, more supporting just has been in reached Montana —that the point penal- death
ty, because of the its over infrequency years, of imposition interest, serves no valid state and therefore constitutes cruel of punishment unusual the Eighth violative Amendment. He the irrefutable alleged has facts that no one has been executed in Montana since the fact despite that scores of persons have been convicted of crimes where a death could penalty (The have been in imposed. which the period status death penalty’s in constitutionality held limbo excluded.) United States Court is Supreme But now, 1970’s, early (McKen- that three argues defendants zie, Coleman, and have been Fitzpatrick) selected to receive the death the fact penalty, despite that during this same time other period many were persons convicted capital crimes but not the death given He penalty. alleges because the death penalty infrequently imposed in Montana, the threat of execution is too remote to value to the criminal justice system. Lacking valid state interest, he claims has, death Montana penalty the words of Justice White, “. become . cruel excessive and patently and unusual punishment violative of the Amendment.” Eighth Furman, U.S. 312.
Both trial court and this Court have ignored challenge Montana’s death application statutes. As justification decision, for its has seiz- majority ed on the that the death language Gregg, supra, penalty, an abstract can be retribu- principle, justified principles tion But and deterrence. has subverted majority Gregg by converting general into if' holding that death penalty application is face, on their their are constitutional statutes principles permissible of retribution deterrence. under majority question one is entitled to is whether evades *91 penal- evidentiary hearing prove his claimthat death an to longer infrequently ty imposed as either that it no serves is so “. . . the marginal deterrence, results in and therefore retribution pointless only of life with and needless extinction public purposes.” any to discernible social or contributions 408 U.S. 312. Furman,
Obviously, questions a factual cannot be in these decided evidentiary hearing why precisely an is and that is vacuum, justifica- may required. indeed be and deterrence Retribution challenge, Eighth Amendment can tions which withstand statutory punishment any system capital un- can of still but holding application. majority’s here The in its constitutional any attempt prove claim in our state has foreclosed delegate legislature system. Court cannot court This ensuring system capital punish- responsibility a applied. question constitutionally in is The whether ment punishment Eighth is a Amendment a certain violates fact solely question for the courts. proved, alleged that, if fall clear- facts, has would restraining language. ly He is entitled to a within Furman’s allegations. hearing proof present supporting his penalty question whether the death has been unconstitu- legislature, tionally question applied but to him is not a for clearly duty judicial to see that the is not constitu- law constitutionally applied. it face, is also tional on its but TO HEARING NECESSARY I. AN EVIDENTIARY IS THE DELAY BETWEEN WHETHER DETERMINE AND THE CON- THE EXECUTION SENTENCING AND PUNISHMENT CRUEL UNUSUAL STITUTES EIGHTH AMENDMENT OF THE VIOLATIVE 10(n) post- petition paragraph of McKenzie’s alleged that “his death sentence relief, McKenzie conviction cruelty involv- ... the excessive because was unconstitutional prolonged life after a in the extinction of defendant’s ed any waiting period state in not valid interest did serve added.) Appellate pp. (Emphasis Brief at McKenzie’s fact” majority, rendering legal in “tender care” 39-42.Somehow of this issue. McKenzie, omitted discussion question, but miss- court, however, did rule on the The trial general holding Gregg, merely point. in relied on the It ed the punish- penalty supra, cruel and unusual the death not not have concludedthat McKenziedoes ment, and it therefore penalty applied right as in to claim that the death fact unconstitutional. him is again language supra, Furman, and relies on Supreme open right supra,
Gregg, left which applied is unconstitu- that the death as to contend carry- alleges delay infrequency tional. McKenzie penalty deprive serving ing deterrent, out a death from delay infrequency ele- he also claims that this add an anguish present ment of mental with other forms of punishment. Atty. primarily He relies on District for Suffolk *92 (Mass. 1980), 1274, 411 N.E.2d which held in Dist. v. Watson part penalty sentenc- that death defendant’s ordeal between ing penalty into a cruel and death converts death form of punishment. and unusual McKenzie claims that he should present persuasive allowed to the more evidence which would excessively capital punishment in demonstrate that cruel reality no serves valid state interest. argument, by carry itself,
This does not much intrinsic merit invariably seeking who because almost it is defendant postpone death, his own and because the United States appellate Supreme expedited Court has mandated review argu- place. can take Nonetheless, before execution arbitrary imposition when with the claims of ment, combined certainly penalty, requires court of the death that the trial evidentiary hearing. penalty A death defendant who hold struggle against these must raises constitutional claims judicial system stay they alive until have been answered. REQUIRED
J. AN HEARING IS TO EVIDENTIARY DETERMINE DEATH BY CON- WHETHER HANGING AND PUNISHMENT STITUTES CRUEL UNUSUAL directly attacking penalty is McKenzie’slast claim the death allegation by hanging that death constitutes cruel and punishment Eighth unusual violative of the He Amendment. pleaded suffering by facts which stated the nature of the one hang by sought dead, who must the neck until an eviden- tiary hearing support allegations. of these again restraining language supra,
He relies on Furman, Gregg, supra, stating penalty statutes, that death although may, applied, face, constitutional on their con- punishment. directly stitute cruel and unusual He relies (1981), Frampton State v. 95 Wash.2d 627 P.2d Washington Supreme expressly which the ruled that by hanging punishment. death constitutes cruel and unusual omitting appeal, majority In this as an issue on has once again gratuitous undermined its statement that in all of the history annals of criminal law in the of Montana, State no legal defendant ever has received more “tender care” than McKenzie. evidentiary hearing
I believe that McKenzieis entitled to an present evidence of this claimed violation his constitu- rights. tional
X. CONCLUSION summarizing majority those issues where the either has ignored entirely the issue or misstated the issue or the nature problem presented, again emphasize must that this is requires appellate a death case that the closest court scrutiny. Supreme The United States Court has mandated appellate this of all if courts, not, but even it did our own sense duty compel painstaking should the most careful and miserably obligation. review. We have failed in *93 begin, Fitzpatrick To in Coleman III III, this Court adopted one standard to determine whether issues raised post-conviction petition judicata. relief are res here the B.ut majority adopted has a different and more restrictive stan- applied Fitzpatrick dard than was in Coleman III and III. ap- cosmetic; The difference is more than the different test plied majority to McKenzie meant that the could avoid deter- mining any correctly whether issue on the was decided merits dissent.) (See part decided on the II of this merits. protection arguments equal concern- made three McKenzie application ing the law to McKenzie’s of Court’s uneven this (1) applied appeals: seizure stan- previous search and that we (2) applied contrary case; in his them to the law and dards holding he to lesser- not entitled that was that this Court’s mitigated homicide deliberate offense instruction included ignored application the law which an the based on was (3) applied only case; in his that this which was evidence (the impermissible adopted over- eight harmless error test Court test) whelming impact to determine evidence majority Sandstrom-type The instructions. unconstitutional (See part ignored opinion VI this all three of these issues. dissent.) again consistently fail- claims that this Court has probable meet established
ed to the issue whether the State cause that seizable items were McKenzie’s home. located (See part again ignored This Court has this issue. VI of this dissent.) bargain always plea issue, McKenzie has maintained
On ignored trial record and sole- that ly instead relied appellate briefs, where, first time, on the State’s for the plea bargain This Court has State asserted no existed. ig- appeals never addressed contention in later we opinions Further, have nored trial record. misstated majority the record. The held that the trial court found against question plea McKenzie on factual of whether a bargain finding existed but the record devoid such hearing evidentiary court, and, fact, the trial no on this party was court fact, issue ever held. trial was bargain agreement. majority plea The stated that alleged prosecutors had not had faith acted bad they plea bargain agreement. when backed out of the But alleged consistently record shows that McKenzie has Finally, majority prosecutors acted bad faith. misstated concluding the record in that McKenzie’sclaim of detrimental dissent.) (See part III of reliance was unfounded. ignored opinions consistently the deliberate have McKenzie. homicide means torture issues raised
They ignored instructed have the claims that the *94 charged was with the substantive offense of that McKenzie jury by torture, that the was in- deliberate homicide means of by on the elements of deliberate homicide means of structed offense, and that deliberate homicide torture as substantive by by is not an Montana means of torture offense defined law. jury erroneously fact, In was the instructed on these great jury probability matters, but the that the did convict (See part McKenzie of this nonexistent offense. IV of this dissent.) concluding opinions,
Furthermore,, the that the victim sup- tortured, was fail to set forth the evidence which would port jury finding met her means of victim death (See dissent.) ignored part torture. of this This also IV Court mean- tortured, the issue of whether the victim was ing within the setting aggravated of the statute out the circumstance of torture”, “deliberate homicide means of and within the meaning jury defining instructions torture. This Court give any meaning phrase in fact failed to substantive (See part “deliberate homicide means of torture”. V of this dissent.) rulings majority’s on the issues are death
similarly ignored deficient. This Court the issues of whether it jury can be from the record whether the found determined (See deliberately part life. McKenzie took the victim’s IV dissent), appellate of this whether from instructions jury required court would was to find that determine (See deliberately part life took the of the victim. VI dissent.) ignored Further, the related issue of whether by applying jury convicted McKenzie of deliberate homicide 94-5-102(a) (b), or 1947—each subsection sections R.C.M. theory responsibility creates a of criminal different (a) must determine that homicide. Under subsection knowingly purposely victim’s life. defendant or took the (b), felony-murder jury is not rule, Under subsection finding required a defen- to make such determination before (See part guilty of this deliberate homicide. IV dant dissent.) majority misstated the records on a fact, has concluding issue in that McKenziewas convicted
nonrelated Harding. causing knowingly” Lana the death “purposely or majority states: 452-53, 608 P.2d At types of criminal homicide. three are “There Defendant a criminal charged homicide, deliberate of, and convicted with, knowingly. purposely Section homicide committed added.) “(Emphasis 95-5-102(lXa), 1947... R.C.M. parts dissent, of this IV and V
As I have shown *95 theory felony-murder, charged which does also with knowingly purposely the require took he that a find impossible the record which to tell from life; it is victim’s theory finding guilty. jury applied The ma- McKenzie the inadequate assumption jority’s unsupported reflects the appeals. of the McKenzie characterized each review that has 94-5-501(1) ignored sections the issue of whether This Court impermissibly the burden shift R.C.M. 94-5-304, and imposing sentencing the court from the defendant to dissuade dissent.) (See ig- part This IX this Court of death sentence. sentencing court have of the should nored issue whether sentencing hearing that it in- notified McKenzie before the (See nonstatutory aggravating part rely factors. tended to dissent.) issue, Further, Court side- IX of on a related this stepped R.C.M. 1947 94-5-105, issue whether section of against aggravating permits weighing factors dissent.) (See part mitigating factors. IX of this directly claimthat the death failed rule on the This Court arbitrarily infrequently imposed imposed so so and discriminatorily, any pur- longer valid state and no serves punishment pose cruel unusual violative and is therefore and dissent.) (See part Eighth IX of this This Amendment. lapse ignored a claim of time between Court further extreme mental the sentence the actual execution causes and agony the death no state interest is served and that valid penalty, punishment to cruel and unusual violative amounts dissent.) (See part Eighth And IX of this Amendment. by hanging ignored constitutes claim that death dissent.) (See part punishment. IX this cruel and unusual quality Finally, well as one issue demonstrates given III, II review we have McKenzie. appeal, majority he could still that after we decided his held have his death sentence reviewed Sentence Review Dewey But Board. then Coleman asked the Sentence Review Board to review his death sentence him board turned compel down. Coleman then asked this Court to the Sentence Review Board to review his death sentence. Coleman relied on the McKenzie authority, decision for but this Court turned agreed him down and with Sentence Review Board that it authority had no to review a death sentence. appeal post-
In his from District Court’s denial relief, conviction McKenzie asked this Court to reconsider its rulings II and III Sentence Review Board could review his death sentence. issue, Had we ruled on this properly ruled, our decision would be that the Sentence Review Board could not review McKenzie’s death sentence. mean, Such a however, decision would that McKenzie’sdeath procedural safeguards stand, sentence could not because the protection after conviction did not contain sufficient to meet Supreme the mandates of United States Court decisions. In regard obviously holdings to these inconsistent in McKenzie regard and Coleman with to the Sentence Review Board’s *96 authority ig- to review sentences, death this Court chose to By ignoring nore the issue. the issue, McKenzie still stands (See dissent.) part sentenced to death. IX of this my This concludes third dissent to this Court’s McKenzie opinion. Supreme United States Court Justices Marshall and already strongly Brennan have criticized this Court for its comply uneven treatment of McKenzie for its failure to Supreme with the mandates of the United States Court. In strongly rights fact, both Justices felt so that McKenzie’s had they been violated that recommended that McKenzie seek federal corpus habeas relief. 1056, 101 449 U.S. at at 630 S.Ct. dissenting justices 510. L.Ed.2d at It is not often that Supreme go suggest United States Court far so as to that a press by seeking defendant continue to corpus his case federal habeas relief. Such recommendation can arise because dissenting justices abiding have belief that this Court utterly recognize protect has failed to McKenzie’s con- rights. stitutional yet chapter
Now can I we add another to what stated fitting story McKenzie III which be a title for a would Rules: Not For General The McKenzie’s appeals: has changed; theme Sparingly. Application Apply— doubt beyond any me has convinced of this my appeal review has no chance in this state sentenced death a defendant review. fair, meaningful obtain adequate, the statement the majority opinion must allude to again no State, criminal law history in all the annals of more care”. I believe legal has been “tender given defendant Never contrary. demonstrates precisely dissent my law in this has defen- the annals of criminal State history dant been of such a consistent and wholesale ever the victim now a federal can denial of fundamental court rights. Only has so the fair and even-handed review that give refused to consistently give.
APPENDIX JU- THE EIGHTH OF COURT IN THE DISTRICT MONTANA, OF THE STATE OF DISTRICT DICIAL OF CASCADE THE COUNTY AND FOR IN ) Action MONTANA, Criminal THE OF STATE ) 6593A No. Plaintiff, ) TO OBJECTIONS vs. ) PRELIMINARY McKENZIE, PEDER
DUNCAN INSTRUCTIONS Defendant.) herein, Plaintiff Montana, The State of its at- through to the torneys, objects PRELIMINARY INSTRUCTIONS submitted Court and to be proposed given prior of any submission evidence the following reasons: That said PRELIMINARY are not INSTRUCTIONS within the intent of Section 95-1910, R.C.M. OF 1947, ORDER *97 TRIAL; and that said PRELIMINARY INSTRUCTIONS go beyond the as to as instructing jury duties pro- it’s[sic] 95-1910(a). for in Section vided
That said PRELIMINARY are INSTRUCTIONS and tend to misleading would Defendant’s prejudice right a to fair trial. undue place PRELIMINARY INSTRUCTIONS
That said inferences and would tend and on presumptions emphasis for such presumptions out and search direct to seek jury observing and listening testimony inferences while and exhibits. would con- PRELIMINARY INSTRUCTIONS
That said facts not yet instill in the minds juror’s fuse the jury not yet proven. presented include mis- INSTRUCTIONS That PRELIMINARY said are and redundant. law, confusing statements of no citation Instructions Preliminary give That said or authorities. source numbered to the following
Plaintiff objects specifically Instructions: Preliminary refers to incorrectly Instruction No.
2. That Preliminary stated correctly “Not As is Guilty”.” plea “defendant’s entered a plea No. 6 the Court Instruction Preliminary he stood mute the Defendant when “Not on behalf of Guilty” and refused to plead. 1947, a state- 95-1910(b), That to Section R.C.M.
6. pursuant See Attorney. the case is to made County ment of be Gall, State vs. there 131, 337 However, P.2d 932. ap 135 Mont. the Informa- for counts of no statutory authority pears as a the District Judge, part tion to be read to the jury by of the Case”. under “Statement Instructions Preliminary Means of Tor- title “Deliberate Homicide by 23. That crime which is ture” states incorrectly charged, The matter of tor- “Deliberate Section 94-5-102. Homicide” statute, Section ture arises under punishment 94-5-105(l)(d). Homicide That the use of the title “Deliberate is misleading. Means of Torture” of Lying
24. Title “Deliberate Homicide Means That the crime charged, Ambush” states incorrectly in Wait or The matter of Homicide,” which is “Deliberate 945-102. lying Section statute, in wait or ambush Section arises under the punishment 94-5-105(l)(e). “Deliberate That use' title Ambush” Means of Wait or Lying Homicide by *98 149 “killing” and “kill” is misleading. terms use That the any applicable improper. statute. are not found terms Such as stated proper of’, is the death term “causes That the 94-5-101. Section killing” improper, as the term “the is
28. the use of That objection 24. to No. in Plaintiffs stated persons who “All are of sound mind statement 29. That the by legal authority. supported insane”, are not involving injury violence, “A” “B” and 30. That use inflammatory, confusing improper, and are and and blood yet facts not in evidence. tend to obscure color would - involving repeated of situations That the restatement inflammatory allegations against are and the defendant prejudicial. objection concerning as to No. the terms
34. Same “killing”, and ’’kill”. “killed” Preliminary contrary accepted
That are to such Instructions procedure pre- practice in their effect would be total judicial to Defendant. why appears
That to be no sound reason such instruc- there given prior case to the submission of tions be need having properly juries been able to for the centuries evidence, Preliminary weigh of such without the use evidence Instructions. although proposed be would
That of the instructions various proper to the after the to be submitted as instructions the Plaintiff believes evidence has been submitted prior give error such instructions would reversible submission of evidence.
Respectfully submitted,
(s)David H. Nelson H. Nelson
David Attorney County
Pondera
(s)Douglas Anderson
Douglas Anderson
Special Prosecutor County
for Pondera concurring: MR. JUSTICE MORRISON purpose fulfilla of this comment is to commitment made my I was review his dis- brother, Justice Daniel J. Shea. blessing any por- my judicial sent at its conclusion and add complete. My agree. The review is tions with which could comments follow: scholarly of the most
Justice Shea’s dissent is one lucid analysis professional I have With keen he works ever read. travesty bare the known as State v. McKenzie. The in- has laid vestigation bungled; bargain plea broken; the was *99 mockery; ap- predetermined; trial was a the sentence was pellate illusory real. review was more than rings loudly
Justice Shea sounds alarm which system preserve citizen ear. act We must our constitutional rightfully preempts any compulsion punish, action Every no matter the crime. citizen must receive how heinous justice equal exceptions. There are no In this before law. system justice case, twisted, tom, our has been and at ground times, asunder. appellate vigilantly protect
An court must the structure Court, McKenzie, from mob This has failed assault. miserably.
I concur in Justice Shea’s dissent. She notes solely cannot from the condition of ture be inferred (1974), Ca.App.3d body. (People Beyea v. victim’s 254), injury Cal.Rptr. suf- or from the mode of assault (1949) 51), Tubby (People but 72, 77, 207 v. 34 Cal.2d P.2d fered