*1 MONTANA, STATE OF Respondent, Plaintiff Appellant. TOP, LESTER KILLS ON Defendant No. 88-443.
Submitted Oct. 1989. Feb. Decided P.2d 336. *2 38Ó
Stephen Firm, argued; Billings, C. Moses Moses Law for defendant appellant. Racicot, Atty. Gen., Solicitor, Helena, Clay argued, Marc R. Smith Haker, D. County Atty., City, plaintiff Keith Miles respondent. *3 Opinion
JUSTICE WEBER delivered the of the Court. Top by jury Lester Kills on in was convicted the Sixteenth Judicial Court, Montana, County, robbery, aggravated District Custer kid- naping years and deliberate homicide. He was sentenced to 40 for robbery. penalty He two received the death for each of the latter appeals convictions. Defendant both the convictions and sentences. We affirm. presented
The issues for our review are: jurisdiction 1. Whether the District Court had over the crimes which the defendant was convicted.
2. in prejudicial Whether the District Court error order- committed ing any from the defendant to disclose to the State statements taken possible individuals identified the latter as witnesses. by ad- prejudicial
3. Whether error the District Court committed mitting into evidence various exhibits. in refus- prejudicial
4. error Whether District Court committed relating lesser ing give to to instructions offered the defendant refusing give de- aggravated kidnaping, included to offenses of corroboration, testimony accomplice and in fendant’s instruction on giving relating flight the State. an instruction offered findings 5. sentenc- certain factual the District Court’s Whether ing supported by order were the evidence. imposition penalty
6. under Whether of the death constitutional 46-18-310, mandatory MCA. review criteria of § prejudicial 7. error in its Whether court committed impact consideration victim statements. Supreme pursuant
8. Court sentence review MCA. 9. Whether and un- death constitutes cruel punishment prohibited by usual the United States and Montana Constitutions. Jr., leading Etchemendy,
The events to the of John Martin began early morning All hours of 1987. offenses October alleged are to have occurred on October 17. The trial this case fifty lasted presented two one-half weeks. The State over wit- presented nesses eight defense witnesses. did Defendant testify. Over one hundred exhibits were entered into evidence.
Defendant, Kills Top, Lester and his brother Vernon Kills on Top, City, Montana, entered the Golden West Bar Miles some time midnight after Accompanying on October them were Coming Etchemendy, along Diane Bull Four Bear. Mr. Doretta friend, with a Friday also evening. went that bar on that When Mr. Etchemendy ready bar, leave he went out parking lot but point was unable to his At that locate vehicle. de- fendant, brother, his help They and the women him. two offered to got all Dodge black group High- Duster. First on to turned way Then, places and looked few Etchemendy’s for Mr. car. proceeding rather City, they than north to Miles went south toward said, Ashland. Diane Bull Coming in his na- testified that defendant tongue tive Cheyenne, they him Northern should “roll Shortly statement, steal him.” stopped from after this the car so the men Etchemendy Although began could urinate. Mr. and defendant arguing, Mr.Etchemendy voluntarily got in the car. back proceed Highway car continued to south on then turned Highway southwest onto Northern 332 toward Ashland and the *4 Cheyenne Etchemendy began assaulting reservation. Defendant Mr. seat, him, attempting beating choking back both pills force some his down throat. Doretta Four Bear testified during assault, from Coming Diane Bull the wallet Mr. took Etchemendy’s pocket Etchemendy was through it. Mr. rifled also empty ordered pockets. wallet, his group From his ob- tained credit cards and Etchemendy two checks issued to Mr. from employer. his While traveling unpaved the car was portion over the of Highway driver, Coming, Diane stop Bull was told to car. The brothers took Mr. Etchemendy again out of the car and assaulted making totally undress, him. After they put him him in the trunk of the All car. they occurred before entered the reservation. Ashland,
Near a.m., they at picked up Quiroz. about 5 Lavonne Quiroz Vernon and attempted Ms. siphon gas from some local pickups. They then drove they to Rabbit Town where stole a tool box. Doretta Four Bear frightened group’s activities and took this opportunity to flee to group a friend’s house. The used one Etchemendy’s Mr. purchase gas credit cards to They Ashland. next drove to Broadus. Broadus,
At reservation, which is off the defendant cashed one of Etchemendy’s Mr. paychecks money sharing $179.31. After Vernon, (called with buy defendant used some of it to alcohol Ever- Clear). suggestion At the Coming, group of Diane Bull decided Gillette, to drive south to Wyoming.
The car turned off Highway stopped. on a side road from 59 and Mr. Etchemendy truck, was let out of the but defendant held a pipe metal and warned him he would be beaten if he tried to flee. Mr. Etchemendy had been blindfolded but Vernon took the blind- point. fold off at this Defendant then became concerned that Mr. Etchemendy identify could them. Defendant forced Mr. Etch- emendy to drink Ever-Clear, evidently mixture of beer and in an pass effort to him make put out. He was then back in the trunk. This occurred off the reservation. group Biddle, Wyoming, continued on to and arrived there
about 11 they a.m. Etchemendy’s There Mr. cashed second paycheck. they south, As stopped continued to travel the car twice. During stop defendant, one again holding pipe, while the metal told Mr. Etchemendy car, opened eyes. he would die if he his Back spoke Etchemendy to Mr. Mr. through the back seat. Etchemendy informed defendant that he was and had two married sons. Gillette,
At Wyoming, Etchemendy’s, card Vernon used Mr. credit buy gas. They gave Etchemendy Mr. another drink mixed Ever-Clear. Coming Diane Bull town of testified that while Gillette, Etchemendy calling Mr. began pounding the trunk and *5 help. spoke language Vernon Defendant in his native and told
they Quiroz kill Etchemendy. would have to Mr. Vernon and Ms. Coming in left in remained a bar while and Diane Bull defendant the car. Gillette, Coming onto
Defendant and Diane Bull left turned a side road, stopped they and from the main road. when were visible pipe, opened Ms. Coming Bull testified that took the the defendant trunk, iron, began striking Etchemendy pipe, a tire and Mr. with the finally and a rock. He also him with his testified kicked boots. She God, no, God, during out, this assault the victim cried “Oh no!” Coming beating Ms. Bull testified that after the defendant threw field, pipe they the got and tire iron into a into the and back car distance, driving drove After off. a short told Ms. Bull defendant Coming stop Etchemendy. car so the he could shoot Mr. He then attempted to shoot the in placing victim a .22 caliber shell a vise grip hitting and shell with a hammer. Coming
Defendant and Ms. Bull drove on but had fiat tires two stop and lounge Gillette, were forced to Wyoming. at a outside Here, Coming Ms. Bull attempting testified that she saw defendant Etchemendy’s to cut Mr. with throat a small knife. She stated that lounge she went into the and defendant later came in and said the victim was dead. p.m. Quiroz joined
About Vernon and Ms. and Ms. Coming. purchased Bull They new tires then traveled toward Buffalo, Wyoming. leaving County, Campbell Wyoming, they Before body community left the approximately at an abandoned hall twenty miles south of Gillette.
A stepson rancher in driving who lived his area was with parked community noticed the car hall. He testified that people car, trunk, get he saw three walk over to shut drive off. He he they gate testified that failed to a so drove shut them, stopping sideways after blinking lights, finally his stop. Noting road in front of them to a car had a force that the plate, Montana license he down the When he wrote license number. group they told gate, to return and close the he stated that agreed to do Quiroz they so. LaVonne back to testified that drove gate, whereupon got she and closed and defendant out car gate. motel, group stopped
When the Sheridan, Wyoming, aget Quiroz car, Vernon and leaving Ms. took defendant and off Coming Coming Ms. Bull went to behind. Bull Defendant and Ms. purchased store Sheridan and new clothes one of the credit purchase attempted cards. also Defendant new boots at a differ- store, salesperson accept ent but the could not credit card. At stop truck Coming changed clothing defendant and Diane Bull their away they They threw were wearing. clothes then hitch- Montana, hiked to Billings, using fictitious names.
On October Billings defendant was arrested in at the home of being arrested, Lorraine Four Colors. Prior to defendant and Ms. Bull Coming related the to Lorraine Colors. When incident Four de- brother, Vernon, fendant learned that his had been arrested he di- Coming rected destroy Ms. Bull the credit cards.
On body October law the victim was located enforce- Gillette, ment community Wyoming. officers near An au- hall *6 topsy impact that the established cause of was trauma to the back and of left side the victim’s head.
I Whether jurisdiction the District the Court had over crimes for which the defendant was convicted. pretrial dismiss,
In a motion to defendant contended that Montana jurisdiction prosecute lacked This these offenses. motion was parties. argued briefed and the The District Court denied this motion. appeal,
On jurisdiction defendant contends that Montana lacks prosecute First, juris- these crimes for two he reasons. contends prosecute properly diction to the deliberate homicide the Second, of Wyoming State rather defendant con- than Montana. jurisdiction pursuant Major tends that federal is exclusive Act, full-blooded, Crimes is a U.S.C. because defendant § Cheyenne Tribe, enrolled member and also the of- Northern Country.” ju- fenses occurred “within address each Indian We will separately. risdictional issue governing criminal jurisdiction statute for a offense | MCA, 46-2-101, provides pertinent
is part: which “(1) person A subject prosecution is for an offense this state which he his own commits while either or outside the state within conduct or if: legally that of another for which he is accountable
“(a) wholly is partly offense within committed either statef.]
jfc ‡ “(2) partly An if offense is committed state either within this conduct which is an of the offense or is element the result which an element occurs within the state.” 46-2-101, MCA, jurisdiction
Pursuant if of- Montana has § previ- “partly fense committed within” the This state. Court has in State v. White ously construed this Mont. statute 357-59, 270, 272-73, St.Rep. 750 P.2d as a “broad asser- See also State v. Bush of jurisdiction.” tion Mont. 477-78, Analyzing 636 P.2d elements of each convicted, three offenses for which defendant was it is clear that an element reservation, of each offense off occurred com- and was “partly mitted within” Montana. robbery,
Defendant was convicted described in § MCA, as follows: (1)
“Robbery. person robbery A commits the if in offense committing course a theft he:
“(a) bodily injury upon inflicts another[.]” 45-6-301, MCA, Theft is defined in provides: which (1) person “Theft. A pur- commits the offense he of theft when posely knowingly obtains or exerts over unauthorized control property of the owner and:
“(a) has purpose depriving property[.]” the owner of the testimony case established that Diane Bull Coming took Mr. Etchemendy’s containing wallet credit cards and employment checks, two bodily injury while defendant inflicted upon Etchemendy. Mr. Undisputed testimony demonstrated Road, action Tongue occurred River several miles before group entered the testimony reservation. While the estab- does lish initially Etchemendy’s defendant did not take Mr. wallet *7 him, from the uncontradicted evidence establishes defend- ant exerted property unauthorized over Etch- control Mr. emendy Etchemendy payroll when he cashed the check at a bar Broadus, Montana.
Additionally, may robbery one even be convicted of offense of though actually himself, property he did if was take the he Ortega participant in the crime. See 209 Mont. 290-91, State v. Hart 796; 679 P.2d Mont. St.Rep. P.2d
We conclude that the that ele- uncontradicted evidence established robbery ments of the crime within the State of were committed Montana and off the affirm District Indian Reservation. We robbery Court’s denial of the motion to dismiss the for lack of state jurisdiction. pursuant aggravated kidnaping
Defendant was convicted of to § 45-5-303(l)(c), MCA, provides: which (1)
“Aggravated kidnaping. person aggra- A commits the offense kidnaping knowingly purposely vated if and without lawful au- he or thority person by secreting holding him restrains another either or place by using threatening physical in a of isolation or or to use force, any purposes: following
«* * *
“(c) bodily injury to inflict on or to terrorize the victim or another [.]”
Again, Etchemendy it is clear that Mr. was both restrained and group beaten entered the within Montana before bodily physical reservation. Defendant’s restraint and infliction injury upon Etchemendy began the car well Mr. the back seat of group Coming before the Bull entered the reservation. Diane shortly Doretta Bear and before Four both testified that thereafter reservation, entering stopped the car and defendant and his Then, plac- brother assaulted the victim outside the car. rather than car, ing they strip, placed him him back ordered him to shorts, belonging in the trunk of the car. Boxer identified at trial as victim, County, ap- Highway were found near 332 Custer proximately County, two before of Rosebud and off miles the border testimony the reservation. This corroborates the as to evidence clearly placed where the victim trunk. The evidence es- aggravated kidnaping tablishes that all were satis- elements of the Montana, fied in District Court’s off the reservation. We affirm the kidnaping aggravated denial of defendant’s motion to dismiss the jurisdiction. for lack of state under the Defendant was also convicted of deliberate homicide “ MCA,
“felony 45-5-102(l)(b), the fel- murder rule. codifies Section ony rule, providing: murder (1) of deliber- person
“Deliberate homicide. A commits the offense ate if: homicide
“(b) commit, commits, attempts legally accountable he or is robbery, without attempt sexual intercourse or commission of consent, arson, kidnaping, burglary, kidnaping, aggravated felonious assault, assault, any fel- escape, felony other forcible aggravated or thereafter, he ony felony flight the course of the forcible *8 any person legally the the of an- accountable for crime causes death being.” other human prove “felony necessary
Under the murder rule” it is not the “purposely or of homi- knowingly” element the crime deliberate cide. State v. Nichols (1987), 449-50, 170, 438, 225 Mont. 734 P.2d Sunday v. 176-77; State 187 Mont. P.2d Rather, felony underlying replaces the intent to commit the this element. Murphy
In rel.
ex
McKinnon
Mont.
felony
P.2d
we
apply
stated that “for
murder
the
rule
causal connection between the
the
must
felonious act and
be
present.” McKinnon,
Therefore,
1) felony the commission
2) that a death occurred
3) a felony causal connection between the first death. previously established, As the first element homi- deliberate cide, the underlying felony aggravated kidnap- commission of the ing, occurred Montana. The causal connection was element also Only satisfied Montana-based conduct. the actual death occurred in Wyoming. however, urges jurisdiction Wyoming
Defendant that has over the deliberate homicide since the kill the decision to victim occurred in Wyoming. presents argument sup- Defendant a rather convoluted port theory attempt this we which will to summarize. Defendant was rule, felony convicted deliberate homicide under the murder require which does not that the homicide be intentional. Defendant contends, however, in reality that the homicide was intentional and urges therefore did not from kidnaping. flow He the homi- cide was a distinct offense and that all elements of the homicide in Wyoming. occurred reject argument
We this charged since defendant was with deliber- rule, ate felony jury under homicide murder instructed offense, jury guilty charged. this fact found him attempt requisite Defendant’s to re-define the homi- elements of cide in support jurisdictional this case in contention order has little merit.
Additionally, requirements of the of- defendant misconstrues felony fense of appears arguing It he cannot be murder. defendant felony rule if convicted of deliberate homicide under murder killing felony only eliminates was intentional. The murder statute necessity prove knowingly pur- the State the defendant posely Etchemendy. killed Mr. suggest That statute does not if in fact knowingly purposely killed Mr. Etch- emendy, guilty somehow the defendant cannot be found of deliber- ate felony homicide under murder rule. The evidence in this *9 clearly case aggravated kidnaping establishes the commission of Montana, in Wyoming, the death and a causal connection between aggravated kidnaping statutory and death. We conclude requirements 46-2-101, MCA, under were met. We affirm the Dis- § trict Court’s denial of defendant’s motion to dismiss the deliberate homicide jurisdiction. based on lack of State issue, jurisdictional
As a pur second defendant contends that Act, suant Major jurisdiction Crimes federal is exclusive. The Act, Major provides: Crimes 18 U.S.C. § “Any against person property Indian who commits of an- person any offenses, other Indian or following namely, other of the murder, manslaughter, kidnaping, maiming, felony chapter under 109A, incest, murder, assault with intent to commit assault with a dangerous weapon, resulting bodily arson, assault injury, serious burglary, robbery, felony and a under section 661 of this title within country, subject penalties Indian shall be to the same laws and persons offenses, as all committing any other of the above within the jurisdiction exclusive of the United States.” In present case the language critical of this statute is “within country.” committing Indian An Indian one of the enumerated country crimes within subject jurisdiction. Indian is to federal jurisdiction issue of State over an Indian resolved fac- is tually present established, previously case. As elements of the robbery, crimes aggravated kidnaping, and deliberate homicide were country. satisfied within Montana outside of Indian claiming any part
Defendant seems to be
if
offense
of an
country,
occurs within
jurisdiction.
Indian
the State has no
How
ever,
jurisdiction
this is not the law. The State has
for off-reserva
tion
though
may
offenses even
In
a connected offense
occur within
See,
e.g.,
(Minn.
State v. Rossbach
country.
1980),
dian
288 N.W.2d
(state
jurisdiction
defendant,
standing
had
where
inside
Indian
reservation,
deputy
boundary
fired rifle across
at a
of reservation
(S.D. 1977),
State v. Wickler
standing
land);
sheriff
on
Minnesota
(state
jurisdiction
prosecute
Defendant relies denied, cert. F.2d 469 U.S. 105 S.Ct. 83 L.Ed.2d authority jurisdiction as is ex his that federal contention Torres, jurisdiction “major clusive. federal attached where the portion” ongoing conspiracy “get of an rid of the victim” occurred reservation, on though began even to formulate the defendants Torres, conspiracy, and abducted the victim outside the reservation. factually distinguishable 733 F.2d at 460. from case Torres since only portion a minor the crimes on the res occurred ervation. Torres does not foreclose state jurisdiction.
We jurisdiction prosecute conclude that Montana had all three charged required offenses affirm under MCA. We District denial Court’s motion dismiss based lack of jurisdiction.
II Whether the District prejudicial ordering Court committed error any defendant to disclose to the taken from State statements by individuals possible identified as latter witnesses. 25,
At hearing 1988, granted an omnibus on March court request produce State’s that copies of statements defendant by made individuals whom the to call as wit defendant intended pretrial 31, 1988, nesses May at trial. At a hearing on defendant re produce fused to investigator certain taken statements his own from witnesses filed for State. On June the State a mo tion compel discovery to intended to call all witnesses defendant at pur trial. granted. That motion was production The court order 46-15-323(4), MCA, suant provides: which “(4) Simultaneously with under the notice defenses submitted (3), prosecutor subsection the defendant make shall available to testing, examination, production: “(a) persons, the names and all than the ac- addresses of other cused, trial, whom all state- together he will call as witnesses at case; particular ments made them connection with the “(b) experts trial, the names and addresses of he will at whom call together examinations, physical with the results their scientific tests, experiments, comparisons, reports including all written case; particular statements made them in connection with “(c) documents, papers, a list of all photographs, tangi- other ble objects that he will use at trial.”
Defendant challenges the court’s order two He bases. first statute, makes challenge contending a constitutional to this that may statute violates the Fifth require Amendment that it him to provide proof necessary urges to convict himself. He that statements he may inadvertently supply has taken from these witnesses cor- roborating testimony lacking. argues which the State is He also he required produce prior should not be these statements to trial required produce since a any criminal defendant is not witnesses may because criminal make defendant not the decision presented whether call witnesses until has after State its case. product Defendant also claims this violates the work rule. statute in argument regarding The same this statute was addressed ex rel. Carkulis v. Ct. D. (1988), Dist. Thirteenth Jud. 229 Mont. 265, 604, validity 746 P.2d upheld wherein we of § MCA, against both challenge and a it constitutional claim that vio- Carkulis, product lated the work began noting In we doctrine. rationale stated in Williams Florida U.S. S.Ct. as L.Ed.2d follows: Supreme “The United States Court in Williams v. Florida 446, upheld U.S. 90 S.Ct. 26 L.Ed.2d a state statute requiring the disclosure of an alibi defense and alibi witnesses to the prior state violating right against to trial not self-in- federal crimination. Williams essentially grounded on the “accelerated theory, is, trial, disclosure” that at would have to thereto, reveal relating his alibi and his accelerat- witnesses ing rights against the disclosure his does affect constitutional ” self-incrimination. Carkulis, 746 P.2d at Carkulis, rationale, the Williams approving after went on to we
apply required in theory the accelerated disclosure to the disclosure general if in- defendant’s defense. reasoned that We trial, pretrial tended call disclosure requiring certain witnesses at We reaf- rights. the statement did not violate Fifth Amendment MCA, applied. constitutionality 46-15-323(4), firm the as here § case, predicates In the defendant also his claim of error on required produce the fact that he was statements taken from witnesses in Carku holding for the State. Since the statute and our only require production lis of statements of witnesses which the de trial, fendant will call at he claims this was error. First,
Defendant’s contentions fail for three reasons. defendant did request protective statements, order for these which he could pursuant Second, have done although MCA. defend- § emphasizes ant that these statements were from taken the State’s witnesses, defendant listed all State wit- witnesses his own list of precisely nesses. Thus required the statements are those which are produced pursuant 46-15-323(4), to be MCA. As a final com- ment, the any record fails to demonstrate manner in which defend- prejudiced by ant was production of these statements. The Dis- issue, trict Court record does not contain the statements at and proof defendant made no alleged prejudicial offer of as to their na- ture. argument Defendant’s in regard to the witness statements is only nature, thus academic in failing factually legally. both We affirm required order production District Court which the witness statements.
Ill Whether the District prejudicial Court committed error ad mitting into evidence various exhibits. objects
Defendant pieces introduction at trial of several Specifically, evidence. objects he to the introduction of the red tool box, three items clothing, pipe photographs of defendant’s it,of grip swab, the vice and an photographs associated residue body the victim’s where it in the was found abandoned commu- nity hall. alleged arguments He bases these errors on of relevance prejudice.
An trial, exhibit must be relevant to be at a district entered court has broad determining discretion in State v. Oman relevance. 218 Mont. is de- 707 P.2d 1119. Relevance 401, M.R.Evid., fined in Rule as follows: “Relevant any tendency evidence having means evidence to make any consequence existence of fact that is of to the determination probable action probable more with- or less than it would be out the bearing evidence. may Relevant include evidence evidence upon credibility hearsay of a witness or declarant.” *12 Oman,
In we as discussed relevance follows: “The test of any relevance whether an item of will evidence have value, logic as experience, proving proposi- determined and tion for Generally, which it naturally logi- is offered. whatever cally relevant, tends to establish a fact issue is and that which (Citation omitted.)” qualify respect fails to in this is not relevant. Oman, P.2d at 1119.
In accomplice testimony, case State relied on which substance, pursuant must be corroborated to MCA. provides accomplice this statute testimony a cannot sustain independently conviction unless it is corroborated other evidence which tends Having to connect the defendant to the crime. reviewed trial, presented the evidence at we conclude that of evi- the items objects dence which defendant now were that each relevant independently item testimony of corroborated the one of the accomplices.
Defendant contends that the admission box irrele- tool was prejudicial vant and was as evidence another crime. The tool box however, was corroborating testimony relevant as of Doretta sequence Four regarding Bear events Ashland and Rabbit Additionally, Town. the State box was entitled introduce the tool though even it charged, disclosed a crime other than the crimes corpus part inextricably since it was a of the delecti and was related Riley to the entire transaction. 199 Mont. 425- 649 P.2d objected Defendant pipe photographs a introduction of it,of claiming that there was insufficient He claims that foundation. testimony by pipe Officer Steve Hamilton that the was not indicated trial, in the same condition at trial as when it was found. At Officer Hamilton on testified that October he another officer went the location oc- alleged where the homicide was to have curred. searching they pipe appeared While which area found pipe have blood it. that the acknowledged The officer at trial they wiped clean, positively yet had been it one had identified as the Coming found. Diane Bull hit the victim testified that defendant pipe, Quiroz pipe with a and LaVonne testified that the was similar to the one with which the victim at one defendant threatened stops. evidence, pipe certainly was identified was relevant through con- testimony trial We the one found officers. admitting pipe clude the and related court did err in photographs.
Defendant grips contends that the vice related residue swab should not have been admitted no since evidence a bullet dis- However, charge testimony links these to the crime. Diane Coming Bull linked these to the crime. Defendant also contends impression these prej- created the of viciousness and were therefore udicial. We see to this little merit contention. Other evidence estab- grips lished the viciousness the crimes. vice added little to this. objects wearing
Defendant to the admission of the he clothes new, when he jeans was arrested. The shirt and were but boots new, were not and had some blood stains on them. These items testimony by served to Coming corroborate the Diane Bull that de- *13 purchased fendant Wyoming away new clothes and threw the wearing. blood-stained clothes he She was also testified that he at- tempted Sheridan, purchase to Wyoming, new boots but was unsuccessful.
Photographs community admitted, of the abandoned hall were two close-ups body victim, which were upper of the and a third photo upper showed the body away. victim’s from few feet De- fendant claims necessary prove any that these were not to issue and highly were inflammatory. photographs upper body, The showed head, right arm of the victim. photographs were to relevant testimony upon corroborate the regarding the assaults Mr. Etch- emendy as photographs well as the death. corroborated testi- mony Coming body left, of Diane Bull as to where the was and the testimony rancher, parked community who saw the car at Additionally, hall. photographs did not show the left side of the head, victim’s which sustaining was the side actual blows. We previously relevant, have if inflammatory held that nature of photograph outweigh proba- of the victim necessarily does not Sigler tive value. State v. 256, 749, (1984), 248, P.2d 210 Mont. 688 753 (holding jury to ex- entitled know the nature and injuries tent of the photographs and no method other than the Riley, graphically well); would P.2d at demonstrate this as or as 649 (holding photos reasonably necessary depict 1280-81 were to multiplicity injuries). photo- and extent of We conclude graphs were unduly inflammatory. relevant and not
We evidentiary objections conclude that none defendant’s are meritorious.
394
IV prejudicial refusing Whether the District error Court committed give relating in- to instructions to lesser offered defendant aggravated kidnapping, refusing give cluded offenses of defend- corroboration, accomplice testimony giv- ant’s instruction on ing relating flight an instruction offered the State. aggravated kid- jury The court instructed the on the elements of napping. on Defendant contends that he was entitled to instructions kidnapping. the lesser included offenses of unlawful restraint urges jury He on included offenses that the must be instructed lesser State offense, support citing if there is the lesser “some evidence” to (1980), v. Hamilton 185 P.2d 1121. Mont. 605 duty previously regarding We stated the test the court’s have offenses, jury to instruct on as follows: lesser included in- “It is a is entitled to an fundamental rule if enable struction on a lesser included offense the evidence would acquit jury rationally guilty to find him of a lesser offense and to Keeble v. United States him of the U.S. greater. 1993, 1995, has S.Ct. 36 L.Ed.2d But Court put refusing held that the District will error for Court not be offense, if is such to instruct to the lesser included the evidence guilty charged show that is either of the offense the defendant (Citations omitted.)” acquittal. entitled an Kyle [_Mont__,] (Mont. 1980), 260, 263, P.2d Ballenger St.Rep. 1447, 1451. See also State v. 227 Mont. (court properly 738 P.2d refused instructions aggravated felony demonstrated assault and assault where evidence *14 death); calculated, child, beatings resulting child’s relentless v. Farrell P.2d 172-73 207 Mont. (court properly where evi- refused instruction on misdemeanor theft $150, were over dence showed that amounts received defendant guilty of no trier of could found defendant rational fact have 451, 464, State v. Radi theft); Mont. misdemeanor (court in- on lesser properly P.2d refused instruction a lead trespass no evidence could cluded offense of criminal where purpose). building an innocent jury to for believe defendant was pur- “knowingly person or Unlawful is restraint committed when inter- authority so posely and lawful restrains another without 45-5-301(1), Kid- liberty.” MCA. substantially with fere his Section “by either napping is unlawful restraint is effected committed when secreting holding place by using or in a of isolation or or [the victim] threatening physical 45-5-302(1), to use force.” Section MCA. De- charged fendant aggravated kidnapping, was committed with a purpose bodily injury to inflict terrorize the victim. In the case, defendant was not entitled to an instruction on unlawful re- straint unless there was evidence that the victim not was restrained by secreting by using him or force. He would have been entitled to an kidnapping only instruction on pur- if there was evidence that no pose bodily injury to inflict or terrorize the victim existed. There is no evidence in the record that the restraint of the victim was not accompanied by the use of force. Neither is there evidence a kid- napping purpose bodily inflicting injury without terrorizing the victim. reasonably support evidence would not the lesser included offenses. We that conclude defendant was not entitled to an instruction on these lesser included offenses.
Defendant also contends that his regarding instructions accom plice testimony should given, have been rather than the instructions given. which were The court’s Instruction No. jury 23 instructed the on accomplice testimony.1 instructions, Defendant’s Numbers 17 and which he given, contends should have been were either accomplice redundant or not testimony. relevant In Defendant’s state; struction No. 13 described mental Instruction No. 16 dealt concept with the accountability; explained Instruction No. 17 ac complice testimony corroboration;2 and the need for and Instruction No. 31 accountability. also dealt with given instructions adequately regard stated the law in to ac- complice testimony. We jury conclude no regarding there was error instruction accomplice testimony. argument instructions,
As a regarding final jury defendant claims that it error flight was jury the court to instruct may the defendant show of guilt. consciousness He contends there was attempted no evidence that ever to flee.
At object instruction, trial giving defendant did not only but it adequately “flight.” did not cor- define The State rectly may objec- *15 Campbell County, while hitchhik- Wyoming, using a fictitious name away ing. purchased the old Defendant new clothes and threw Sheridan, attempted blood-spattered Wyoming. in He to de- clothes Montana, stroy Billings, in after he learned of his brother’s evidence in- provided adequate flight arrest. an basis for the The evidence giving of this was no error struction. We conclude there instruction.
V Court’s sen findings Whether certain factual the District tencing supported by evidence. order were by the challenges following findings of fact made
Defendant District Court its order: hematoma, as a result of
“10. That the victim suffered a subdural County, prior beatings which led beatings in Custer to the final to his death. was married and had
“13. That the defendant knew that the victim family. ETCHEMENDY, “15. That the defendant killed JOHN MARTIN iron, pipe. rock and That beating JR. him on the head with a tire knife and a small the defendant also cut the victim’s throat with grip. in vice shot at him a .22 shell which was held set forth 46- aggravating “22. circumstances That two apply in this case: 18-303 of the Montana Code Annotated committed “A. The Homicide and was offense was Deliberate means torture. in the Aggravated Kidnaping
“B. which resulted The offense was victim.” sup- quoted findings are not Defendant contends that the above no has ported by evidence. This contention substantial credible These findings of fact. regard merit to the first three whatsoever testimony which findings of trial three are accurate summaries conducted obviously Dr. Robert Deters court chose to believe. autopsy. a subdural hematoma victim’s He stated there was head. He to the of insults right side of the head caused a series hour least an occurred at testified that the hematoma must have only beatings prior head. The injuries to the to the left side of the oc- trunk being placed Etchemendy prior to Mr. received beaten testimony he was County. indicates that curred in Custer No again prior finding conclude fatal blows. We number supported substantial credible evidence. findings Coming
As to number 13 and Diane Bull testified that defendant knew the victim was married and had two children. She *16 rock, iron, also testified that defendant the victim with tire beat a pipe, attempted by grip, and to shoot the victim use of a vice attempted that defendant to cut the victim’s throat with a knife. Photographs physical testimony. evidence corroborated this We by findings supported by conclude that these court are substan- tial credible evidence. finding
Defendant contends that the court’s of de- offense by liberate sup- homicide was committed means of torture is not ported by Wyoming brutally the evidence. The fatal blows were accomplished by pipe, During use a tire iron rock. and a this a. out, beating God, no, God, Additionally, victim cried no.” “Oh rationally separate we cannot beating the final from the entire crim- inal transaction which demonstrated involving a course conduct brutality extending delivery over several hours. Prior to of the fatal Wyoming blows in brutally the victim was assaulted several times and confined nude in the small trunk a on morn- car a cool ing for a number of hours. prior The evidence established that these beatings in Montana were enough potentially severe to be Dr. fatal. Deters potentially testified that the subdural hematoma was fatal. It possible is not to determine from the medical evidence the extent prior which the beatings contributed victim’s death. The beatings restraint, culminating in bludgeoning to death victim, constitute substantial credible evidence that the homi- cide was committed means of torture.
The determination that these acts were torturous is consistent with
previous
Court’s
holdings regarding
torture in death
See,
e.g.,
(Mont.
State v.
1988),
cases.
Dawson
345,]
Mont.
761
[233
_
denied,
P.2d
cert.
St.Rep. 1542, 1551-52,
45
U.S.
_,
3200,
(1989); (evidence
109
supported
S.Ct.
VI under imposition penalty is constitutional Whether of the death 46-18-310, MCA. mandatory review criteria constitutionality of Mon appeal, challenges the On defendant also pen imposition death govern sentencing tana’s statutes which case, Adamson v. alty. recent Ninth Circuit Defendant relies on a (9th filed, 1988), petition cert. F.2d Ricketts Cir. 1989) (No. 88-1553). Adamson, (U.S. In U.S.L.W. 3739 March unconstitutional Arizona’s the Ninth Circuit declared penalty. comparing imposition govern statutes which Montana, they are we note that Arizona’s with those of statutes similar. *17 sen specific objection to Montana’s not raise this
Defendant did he urges that tencing Although defendant statutes at District Court. the District Court since this contention at could not have raised decided, yet nevertheless we decline Adamson not been case had First, Adamson decision is appeal. address this issue on ap Montana, has been the decision binding on and we note that Second, issue was Supreme this pealed Court. to the United States substantively briefed neither not raised at District Court and was for this appropriate argued Thus it is not nor before this Court. comment, this note that final we Court to consider the issue. As a based to be constitutional previously Court has held these statutes 360, State v. Dawson, and 761 P.2d at challenges in on similar 1087, 1105-06, cert. 461, 490-91, P.2d Mont. 705 Smith (1986). denied, 88 L.Ed.2d 106 S.Ct. U.S. constitu- imposition of the death We conclude that the 46-18-310, MCA. the review criteria tional under VII error prejudicial sentencing court committed Whether the impact victim statements. its consideration of Although appeal, on we defendant does not raise this issue note sentencing that in its finding order the Court made a of fact District regarding impact family the victim’s death has had members. finding That of fact states: family deprived son,
“20. the victim’s has been of a husband parents brother the victim have been for some tine and psychiatric undergoing now are counseling as a result of their son’s death.” Maryland Booth Court, Supreme United States jury’s U.S. 107 S.Ct. 96 L.Ed.2d held error, impact
consideration of a victim statement in that case was requiring resentencing. We pre- choose to this discuss issue sent case. Booth, requiring Maryland a had statute considera- impact
tion sentencing at of victim statements if the victim suffered In Booth injury or jury. death. was done elderly defendant was couple. convicted the murder of an Before sentencing, lengthy Maryland a statement written Division jury. Parole and Probation was read to the It contained statements family members, made including son, several daughter, a granddaughter. The good statements described the character reputation victims, and the emotional distress suffered family various lengthy poignant, members. The statement was containing many regarding impact family. facts on the
The court held that
consideration
the statement violated the
Eighth
jury
impose
Amendment
that it
influence
could
sen-
arbitrary
capricious
tence in an
manner. The court stated that
impact
irrelevant,
victim
is
improperly
statement
it
diverts the
jury’s
away
crime,
attention
it
from the defendant and the
and that
is
required
capi-
inconsistent with the
decision-making
reasoned
Booth,
503-09,
tal case.
In two
consid-
recent Montana cases this
whether
Court discussed
impact
eration of
sentencing
victim
re-
statements
at
constituted
Dawson,
presentence investigation report
con-
versible error.
statement,
impact
paragraph
three
stated
tained a
victim
which
that
homicide,
family
three members of a
had died as a result
teen-age daughter
that
“not
undergoing counseling
was
but
do-
Booth was
ing
controlling
so well.” This Court concluded
not
that
court,
sentencing
that
was
jury,
not the
and because
vic-
impact
poignant
tim
one in
lengthy
statement was not as
or
as the
Dawson,
Booth.
VIII Supreme pursuant Court sentence review to § MCA. 46-18-310, MCA,
In reviewing pursuant this death sentence to § 1) imposed Court must whether sentence under determine was factor; 2) passion, any arbitrary prejudice, the influence of other or findings any mitigating supports whether the evidence court’s 3) circumstances; aggravating is ex- whether the sentence cases, disproportionate penalty imposed cessive or in similar considering both and the the crime defendant.
Appellant imposed under has not contended that the sentence was passion, arbitrary factor. In prejudice, any other influence a victim Issue VII we discussed the District Court’s consideration impact that statement and concluded that there was no indication Additionally, prejudiced by note that defendant was this. we From dispassionate. findings sentencing lengthy court are no indica- our we that review of the entire record conclude there passion, imposed tion the influence of the sentence was under prejudice, any arbitrary other factor. whether requires Court to consider
The second determination aggravating supports findings of court’s evidence cir- aggravating mitigating found two circumstances. court homicide cumstances. It the offense was deliberate determined aggra- torture, committed offense means of and also
401 kidnaping vated in the In which resulted the death of victim. Issue V finding we discussed the court’s the deliberate homicide was torture, concluding committed means of that substantial credible supported I finding. evidence this In the ele- Issue we discussed aggravated kidnaping ments of of homi- elements deliberate felony cide under the murder rule. We determined that the elements of determination, previous each offense were From we satisfied. supported conclude that aggravating the second circumstance was by substantial credible evidence. sentencing possible cir only mitigating court found that significant prior
cumstance was that the history defendant had no activity. criminal compared It went on to conclude that when to the enormity thereof, offenses committed and circumstances mitigating sufficiently circumstance was not to call substantial leniency. for This mitigating present same circumstance was Dawson, wherein this Court affirmed the court’s refusal Dawson, leniency in light of the offenses at committed. 761 P.2d Smith, 361-62. See also v. 1097; (1979), State Coleman 705 P.2d at denied, 299, 331-32, cert. 1000, 1019-20, 185 Mont. 605 P.2d 446 970, 2952, (1980). U.S. case, 100 present S.Ct. 64 L.Ed.2d 831 committed, view of the offenses we conclude that the evidence supports the court’s finding mitigating circumstance is not sufficiently leniency. substantial to call for
Finally,
this Court must determine whether the sentence is exces
sive
disproportionate
cases,
or
penalty imposed
in similar
con
sidering both the crimes and the defendants. Defendant
has
presented
this,
no argument on
however
accordance with our stat
utory duty, we
compared
following
have
appealed
cases
to this
Court which
involved similar crimes
which
was
the death
Dawson;
(1988),
State v.
imposed:
could have been
232
Keefe
Keith; Smith;
258,
128,
Mont.
St.Rep. 1034;
759
45
P.2d
Fitzpatrick
denied,
cert.
186 Mont.
P.2d
449
other
U.S.
101 S.Ct.
rev’d on
L.Ed.2d 118
_
grounds,
denied,
(9th
1989),
cert.
869 F.2d Cir.
U.S.
_,
(1989); Coleman;
110 S.Ct.
After examination of such gravity factors as the brutality they committed, any with which were and the existence meriting leniency, factors we hold that the sentence disproportionate case is not imposed in similar excessive to others except Keefe, cases, pen- cases. All involved a death above-cited alty imposed subsequent aggravated kidnaping for the homicide leniency meriting a victim. So too this case. The factor does Keefe, namely, at age the fact that Keefe was under the of 18 given time he three homicides and thus life rather committed the sentences, Top than death in this case. Kills on does exist Lester years age charged at time he committed the crimes. case, We conclude that homicide in this the other above- cases, senseless, vicious, mentioned kill- involved and calculated ing person. of an innocent
IX *20 present penalty Whether the death constitutes cruel and un by punishment prohibited usual the United States Montana Constitutions. respond part here that
We in to the dissent which contends the penalty punishment death in this case constitutes cruel unusual prohibited by Eighth the Constitutions. Amendment the The II, Article United States Constitution Constitution Montana 22, prohibit punishment Section is cruel and unusual. The which punish- penalty death is in not all circumstances cruel and unusual Gregg Georgia (1976), ment, 153, 2909, U.S. 96 S.Ct. 49 859, arbitrarily capriciously, may imposed L.Ed.2d but it not he or Georgia Furman v. 92 S.Ct. 33 L.Ed.2d U.S. Furman, Using in the dissent the factors cited Justice Brennan penalty cruel and concludes that in this case constitutes death acceptable punishment penalty is unusual because the death not contemporary society, penalty stat- Montana and because death arbitrary utes of Montana conduct. allow of expression view the Montana we clearer of the have a much many In 1972 citizens of is in other states. the State than penalty. people decisively of to retain the death Montana voted in v. McKenzie As Mont. P.2d stated 1023, 1033: 77,733, 147,023 people against
“. . . The of Montana voted for vote, negates any recently, to retain the so penalty. death Such a argument contemporary standards penalty the death violates decency.” majority ago,
A in years statewide election than 20 which less 2-1, profoundly approved penalty by approximately vote the death supports penalty acceptable a conclusion to the that the death contemporary society of Montana. Furman,
After Supreme decision of the United States Court Leg- as well as the cases court in decided that the Montana provisions islature 1977 enacted the extensive death today which are set through forth in secs. 46-18-301 summary key MCA. A portions brief of those sections follows. 46-18-301, MCA, provides Section judge presided at who separate sentencing hearing trial shall conduct a to determine mitigating existence or aggravating nonexistence cir- cumstances set forth 46-18-303 and MCA. Section 46-18- §§ 302, MCA, provides pertinent part as follows:
“In sentencing hearing, may any presented evidence be toas sentence, matter including the court considers relevant but crime, limited to the nature and circumstances of the the de- character, history, fendant’s background, physical and mental and any conditions and in aggravation mitigation other facts penalty . . . Evidence relating aggra- admitted at the trial to such vating mitigating circumstances shall be considered without rein- troducing it at the sentencing hearing . . .” . 46-18-303, MCA,
Section specific aggravating enumerates circum- stances. aggravating circumstances in this were case offense was deliberate homicide and was committed means tor- ture, and aggravated offense kidnaping which resulted MCA, the victim. miti- Section sets forth gating only circumstances. one found the District Court was that the significant history defendant had no prior criminal activ- *21 ity. The most recent part amendment to of statutes in- this the aggravating cluded an by Legislature circumstance added the 1989. While the of Legislature view the Montana does not necessa- rily Montana, establish the people view the indicate a it does continuing attempt part Legislature on main- the the Montana to tain penalty Montana, requirements the death meeting while the set Supreme forth the various of the decisions United States Court. We penalty acceptable conclude that the death is to the con- temporary society of the State Montana. arbitrary
The dissent concludes that Montana’s statutes allow for
part
conduct on
special
the
sentencing judge.
of the
In
concur-
his
McKenzie,
rence in
Justice Haswell
of whether
considered the issue
governing
penalty
Montana
imposition
statutes
of the death
arbitrary.
they
were
they
arbitrary
He concluded
were
and that
not
404
McKenzie,
met the standards McKenzie, Legislature has added the stat- the date of the Montana considered, utory mitigating be has list of factors which must made other amendments as well. 46-18-302, points provisions of
The dissent out that under the § MCA, may to sentencing “any matter relevant court consider or not under rules.” the sentence whether admissible criminal suggests giving of allows dissent that broad discretion consider- aggravating bearing ation of factors which have no direct additional responsibility previously As on criminal the defendant. 46-18-302, MCA, quoted, matters does allow consideration of other section, sentencing court. We further note that under that sentencing is to admitted at the court allowed consider evidence with- relating mitigating trial to both circumstances aggravating any out that We note that the sen- reintroduction of evidence. also findings tencing required specific make of fact. court to written Further, appropriate Section MCA. it is that sentenc- ing sentencing. court all This Court consider evidence relevant previously aggravating fac- has concluded that the consideration of statutorily appropriate. tors other than those enumerated was 26, 368, McKenzie v. Osborne (1982), 195 Mont. 640 P.2d defendant ground had attacked the sentence on the that court relied aggravating in our statutes. This factors other than those found “properly propriety Court relate stated that the factors to the McKenzie, 640 at 382. sentence death.” P.2d requirement findings is sentencing that court make these regard significant considering dissent in when the issue raised felony jury guilty found under the verdict which defendant rule, indicating findings by sentencing murder certain court suggests the court’s defendant killed the victim. The dissent findings and that verdict are inconsistent however, these emphasize court became the fact-finder. We findings by improper. sentencing court were 3368, (1982), 782, 73
In Enmund v. Florida U.S. 102 S.Ct. may imposed 1140, L.Ed.2d court be held that the death killed, kill, kill or le- if attempted or intended culpability thal force be used. defendant’s This determination any point in the may jury, need not be made but be made at U.S. Cabana Bullock process. state criminal Pope grounds; part on overruled in other S.Ct. 88 L.Ed.2d L.Ed.2d v. Illinois 107 S.Ct. U.S. *22 See also Tison v. Arizona U.S. S.Ct. 1676, 95 L.Ed.2d 127. Cabana, Enmund sentencing
Applying the rule of and court made the determination that killed We the victim. con- findings clude sentencing and conclusions court are properly provisions within the of the is no statutes and there present casting validity pen- contradiction doubt of the death alty. statutory provisions, clearly Under our sentencing judge is given responsibility power to make this determination.
Our give adequate ap- statutes now guidelines standards and be plied by sentencing court, yet encourage allow for and individu- sentencing. Montana, alized imposed sentence is district court judge, background experience whose comparing ag- is in gravating mitigating factors.
We penalty conclude that acceptable Montana the death contemporary society, is not excessive for the crimes for which it may imposed, be guiding and that our sentencing pro- statutes provisions cess and our prohib- for sentence review do not allow the arbitrary ited part conduct on the court. We hold here does not constitute cruel and punishment prohibited unusual by the United States and Montana Constitutions.
Having reviewed the entire record in affirming this case in the de- judge Court, terminations of the District consideration the Enmund rules, Cabana independently this Court also finds and Etchemendy, concludes that defendant Martin Jr. killed We also find and statutory aggravating conclude that two circum- stances were in that the offense was deliberate homicide committed means of aggravated torture and that the offense was kidnaping which resulted in the death the victim. We therefore affirm both the convictions and the sentences.
X This Court has applicable reviewed law and the entire record and hereby imposed by affirms the Court. sentences of death the District This case is remanded to the set a date District Court which shall for execution in accordance with the statutes.
Affirmed. Mc- BARZ and and JUSTICES JUSTICE TURNAGE CHIEF concur. DONOUGH *23 HARRISON, concurring: specially
JUSTICE interest majority. I note with considerable I concur with in his dis- Sheehy, I cannot concur and while dissent of Mr. Justice Ap- sent, frustrations of to note the I feel the time has come Sheehy, I au- have capital Justice pellate in cases. Like Justices this Court have been before cases that thored three of some twelve addition, I have read the briefs past twenty-nine years. In in the upheld I the death transcripts every in case which voluminous however, least, say it pleasant task to sentence. It was not a comes with this office. Sheehy’s dissent myself Mr. Justice disagreeing
I find with some of his statements, question either and, I do not in his taking issue with whether First he notes that change his mind. integrity right or his to society is acceptable contemporary Montana penalty is the death people of it was submitted arguable. As he the last time *24 In sentence. each approved by of the cases heard and this Court we jurors have had twelve find guilty, judge the defendant a trial both approve of their findings sentence, give by and seven followed appellate justices carefully reading finding the record and that defendant had a properly Throughout fair trial and was sentenced. appellate the trial proceedings, competent lawyers plus and trial judges justices, many and capital of whom have tried defended and practice, cases in given duty their administering have been justice. However, goes once it jurisdiction leaves the State and into system times, the Federal multiple often to the due cases before Court, both the Supreme Circuit Courts and the law clerks review jurisdiction. Supreme work of the State While the United States transcripts Court can ask for I am that often cases informed they Supreme do not have their them as did the Courts in 2,000 prisoners review the cases. As a result we have over punishment death row in having capital the various States statutes. The finality law should in the have some but as witnessed above case, McKenzie Only Su- there seems to none. States be United preme long provide Court can is the answer and that answer overdue. HUNT,
JUSTICE specially concurring: 408 majority opinion, but do
I concur with the result reached agree opinion. with all is said SHEEHY, dissenting: JUSTICE
I. long exacting the For a I the moral conviction that time have had improper. I to the penalty of in criminal cases was have come penalty is cruel unusual legal conviction that the death indeed prohibited Eighth Amendment punishment and so Punishment United States Constitution. Cruel Unusual applicable through is the Due Process Clause Clause the states (1962), Robinson v. U.S. 370 the Fourteenth Amendment. California 660, 1417, 82 S.Ct. 8 L.Ed.2d appeal
This case
to us
direct
under the auto-
comes
on a
also
pursuant
penalty
matic review of death
sentences
review,
appeal
is
MCA. Whether on
or under automatic
this Court
46-18-310, MCA,
required
to determine whether or not
under §
properly imposed
The au-
death sentence was
District Court.
adopted by
as
provision
legislature
tomatic review
was
Georgia
v.
response to Furman
408 U.S.
an obvious
history
states
S.Ct.
Pulley, 465 U.S. at at 104 S.Ct. appeal provisions here bring and the automatic review to this again
Court yet penalty brings once another death case and me face to question, imposition face with the ultimate is the of the death as prescribed by capital Montana statutes cases cruel and unusual punishment and so the forbidden United States Constitution? Indeed, imposition penalty does the of the death also offend our prohibits pun- State constitution which likewise cruel and unusual (Art. Const.)? II, firmly ishment I 1972 Mont. have concluded that it impose does offend the to federal and state constitutions penalty align death I myself position conclusion Georgia, supra. taken Mr. Justice in Furman v. William Brennan There, background Justice Brennan full discussed terms penalty history, the death given it reasons and the reasons against it, finally penalty concluded death was unconstitutional. (1)
Justice Brennan upon principles: based his conclusion four punishment must not degrading dignity be so severe as to be (2) beings; imposition human sentence must not be (3) arbitrary; punishment unacceptable the severe be must not contemporary society; and, (4) punishment the severe must not be excessive. penalty acceptable
Whether the contemporary death is Montana society arguable. When the state was submitted to constitution 1972, they accepta- voters given were on the chance vote bility penalty. Yet, widely the death It was the last endorsed. penalty imposed death adop- and carried out in before the Montana tion the 1972 Montana Constitution 1944. For at least was years, review, adoption until the provisions of the of automatic penalty death imposed had not been in the state. Until imposed determination of whether the be death should given and, pun- jury, first to the jury discretion of if the left the court, 94-2505, ishment presiding judge. then to the Section R.C.M, (1947). Thus, pro- while the voters in 1972 as an abstract position accepted penalty, dis- juries after them the death judges, cases, impose trict when faced did with real penalty. frequently system, be- support jury We state *26 410 commu- number, represents the sense of very jury a
cause of their said Supreme Court once nity in.deciding The U.S. values cases. “the humane possibly reflected jury reluctance death cases be reserved for sanction should feeling that this most irrevocable Gregg Georgia (1976), v. U.S. 428 small number of extreme cases.” experi- 182, 153, L.Ed.2d 859. The Montana 96 S.Ct. 49 likely juries than judges are far more ence since indicates acting singly cannot judge A impose the sentence. district to death public on social represent spectrum of sentiment be to the wide said issues. penalty in
Moreover, vote on the death at the of the state time by hanging by was only our law mode of execution allowed (1983)) (Ch. 411, of Montana In Laws the neck until dead. MCA, permit the de- to legislature the law of amended “ultra-fast-acting” injection lethal an fendant to choose death itself, ad- is an hanging. In this amendment barbiturate instead of horrible to by hanging is too legislature that death mission hor- drug is less contemplate. injection lethal Whether death yet in as rible, experienced it Montana know. None has we do not other states on punishment reports no from for a crime. We have country from subject, largely “that because of undiscovered way.” What tell us of the bourne no traveler returns to whose tell us is that hanging injection lethal does change from crime. way human life for seeking an easier to end Montanans are truth, easy way. there is no punishment whether Brennan’s tests as to
Another of Justice explain arbitrarily. I imposed As it is cruel and unusual is whether arbitrarily, imposed below, penalty was this case the death arbitrary such adopted by Montana allow statutes treatment. grounds that easy me to conclude on constitutional
It was not
oppose
on moral
though I
it
penalty
improper, even
the death
was
Court,
I
imbued
I
to this
grounds. When first
came
subordi-
and thus
uphold
constitution
responsibility
judges
put those aside
I should
my
feelings my thought
nated
moral
legal
be
perceived
I
solely
what
type
of case
on
and decide
penalties.
affirming death
fact,
opinions
grounds. In
I
two
authored
State
1000;
(1979),
P.2d
State v. Coleman
185 Mont.
through the
All
187,
II. above, As is permit stated the imposition Montana statutes the of case, the arbitrarily. death in the court fact acted arbitrarily finding in imposition for factors the of death. provided 46-18-305,
It MCA, is in in the District Court de- § termining impose whether to imprisonment a sentence of death “shall take into aggravating mitigating account the and circum- 46-18-303, MCA, 46-18-304, stances MCA, enumerated and § § impose and shall a sentence it one or more of if finds aggravating circumstances and mitigating there are no cir- finds cumstances sufficiently leniency.” substantial call to for There are aggravating nine 46-18-303, MCA, circumstances listed and § eight mitigating 46-18-304, circumstances listed MCA. When § conjunction read in 46-18-305, MCA, proper interpretation § would be that determining aggravat- District Court is limited in ing factors to in determining mitigating circum- § stances, to 46-18-304. §
Opposed concept that the court is under 46-18-305 limited § statutory aggravating mitigating circum- circumstances stances is the language provides 46-18-302. That section § the District sentencing may any Court in consider matter relevant the sentence whether or rules not admissible under criminal trial given may the District it Court is broad discretion as whether Thus, such probative. open consider evidence is wide door the sentencing procedure only not for District Court consider the aggravating circumstances listed in but 46-18-303 additional § responsi- factors bearing which would have no direct on the criminal bility of the defendant. arbitrary
This case illustrates of cir- findings the District Court statutory cumstances other than those listed in Of the 46-18-303. § circumstances, up by court and aggravating only picked one justify was deliberate used to the death sentence is that the offense only mitigat- homicide of torture. committed means sig- had no ing court was the defendant circumstance found is read history prior activity. If 46-18-305 nificant criminal § mitigating properly, only circum- aggravating these are stances which the court should have considered chose, However, apparently under the defendant. the District Court aggravating fac- language broad to add a number 46-18-302 factors, tors, statutory following: the defend- including the 13) (this family (par. ant knew the victim was married and had disputed by defendant); employ- no real defendant had that the history, any appreciable length of job ment and never held a time, by three different age years and at the had children 19); women, supported (par. and that the victim’s none of whom he son, family deprived husband or brother and that the had been of a parents undergoing psychiatric counseling be- of the victim are now 20) (par. is listed as a statu- cause of their son’s death None of these tory aggravating only judge Court circumstance and District bringing knows what additional had about influence these factors the sentence of death.
Thus, arbitrary subject permit action the Montana statutes on the highest degree, since result can be so District Court of the drastic and irreversible.
Now, in Lockett v. Ohio 438 U.S. it is true that Supreme S.Ct. Court held L.Ed.2d the United States *28 profoundly from all penalty that because the death is so different capital penalties, decision-making other is essential individualized end, at Supreme in Lockett that cases. To that Court endorsed relating to sentencing hearing, record evidence outside the trial offense, but the defendant’s character or circumstances of the only mitigating said: could be considered. The Court factors that the questions
“We are now faced and we conclude with those sentencer, in Eighth require and Fourteenth Amendments that case, considering, as capital precluded all but the rarest not be from mitigating or record any aspect of character a defendant’s factor prof- any the defendant of the of the offense that circumstances (Emphasis . . .” fers as a basis for a sentence less than death original.)
Lockett, U.S. at S.Ct. at MCA,
Thus, open the door provisions which of § having extraneous evidence judicial to do with the sentence has blessing only mitigating as to factors. The use of extraneous evi- factors, aggravating statutorily dence to find over and those above provided implicit itself, in the blessing. crime have no such One important of the reasons is if aggravating that such factors are to be fixing considered connection with punishment, of death as ought factors, by jury defendant to be entitled to a trial as to those brings and that problem me to a respect further the Mon- tana statutes.
In Adamson v. (9th Ricketts 1988), Cir. 865 F.2d the Circuit Court had before it against a habeas action the Arizona director of Department held, of Corrections. The Federal District Court among things, other statutory imposi- Arizona’s scheme for the tion unconstitutionally death limited the court’s con- sideration of mitigating arbitrary circumstances and im- allowed an position of the penalty. (which Circuit Court held that the Arizona statutes are much Montana’s) permitted
like elements of the offense to be determined sentencing judge, deprived which right defendant of the by jury to trial as to all of the elements of the crime and thus vio- lated the Sixth and Fourteenth Amendments. The Circuit Court also determined that the examination of death statutes required heightened scrutiny. It further held that there must be a separation strict between guilt the determination and innocence (fact-finding) and the appropriate determination of an punishment (sentencing). The Adamson case appeal is now on to the United Supreme States Court.
In the case we are considering, now engaged the District Court extensive fact-finding relating to guilt the defendant’s or innocence in imposing the death sentence. It found that the offense was delib- erate homicide and torture; was committed means of it found extraneous circumstances greatest problem, as are noted above. The however, is that the District Court effect found the defend- ant had directly, committed the although my interpretation crime charges against Top Lester Kills On and the verdicts found against him accountability relate to felony-murder rule. under the The District Court claimed that he was not convicted under the fel- ony-murder rule. majority accepted had finding of the District Court that, directly, beyond committed the crime the ma-
jority also, now record, declare after a review of the that the defend-
ant
kill
Etchemendy,
did
jury
Martin
Jr. The
found otherwise when
it returned a
of
guilty
charge.
verdict
not
on the
homicide
deliberate
In
acting,
Enmund v. Florida
majority
misinterpreted
so
the
have
782, 102
3368,
458 U.S.
and Cabana v.
S.Ct.
73 L.Ed.2d
Bullock
474 U.S.
Nothing
S.Ct.
Attached to this dissent an exhibit are the five counts of the charged, amended information under which the defendant jury respect the verdict with to each be count. It will seen that guilty robbery defendant was under I found Count of in course of, of committing, aiding abetting or the commission theft from inflicting, bodily the victim aiding abetting injury while or guilty not upon the victim. aggra- He was Count II of found under vated kidnaping purpose for the facilitating the commission of guilty robbery. the crime of aggra- III of He was found Count kidnaping bodily vated purpose inflicting injury with the or ter- guilty rorizing the victim. He was found Count IV of de- under guilty liberate homicide. He was found under Count V of deliberate homicide that he was engaged legally the commission of or ac- countable for aggravated kidnaping, resulting the commission of death the victim which was caused the defendant or an- person other legally aggravated accountable for the crime of kidnaping.
It guilty is clear to if me the defendant here was not found felony-murder accountability, under the on then rule the basis of jury guilty verdicts are inconsistent because the did not find him fact, aggravated kidnaping. direct deliberate homicide direct even his robbery basis of conviction seems to be accountability. respect findings
The whole tenure of the District Court’s the sentence of acts death is that the defendant committed the di- rectly. felony-mur- findings No mention is in the made either Thus, der accountability. convictions or of District has ei- Court verdict, ignored jury ther improperly sentenced directly committing he not been crimes for which has sole fact- jury convicted District has Court become event, spite jury’s finder in In either the defendant verdict. deprived has been right jury his to a trial. capital cases. Of provide
Fifteen states do not provide, only judge, allow the and not 35 states that do so four mitigating cir- jury, aggravating to determine the factors *30 Here, imposition penalty. the Dis- cumstances for the of the death trict Court found had committed deliberate the defendant by While it homicide and caused the death the victim torture. of may semantics, jury question be true that no a it is nonetheless by jury determined that the victim torture. The did determine died by bodily injury and his death was caused the infliction of terror. statutory aggra- hinges
Since the death in Montana MCA, vating aggravating cir- circumstances of those § crime, cumstances defendant is enti- are an element of the and the Montana, jury right tled to a trial as elements. In to a to those Constitution, jury trial our secured to all and shall “remain II, 26,1972 inviolate.” Art. Mont. Const. The Sixth Amendment § impartial jury in guarantees United States Constitution trial an prosecutions. deprive criminal a Montana statutes a defendant in capital jury case of a trial on the most critical elements that relate to his sentence. case, therefore, uphold I would of the de- the conviction robbery, aggravated kidnaping,
fendant for and deliberate homicide. I would resentencing remand the cause to the District Court penalty. defendant but forbid the death EXHIBIT TO THE C. SHEEHY DISSENT OF JUSTICE JOHN following charges against are the Lester Kills Top, On jury with the result as to each count:
AMENDED INFORMATION I
COUNT TOP, offense Defendant LESTER committed the KILLS ON 45-5-401(1) (a) Robbery, 45-2- felony, a in and as defined § § 302(3), MCA, Custer in that on or about October LESTER County, Campbell County, Wyoming, Montana and aiding and did, committing KILLS or ON TOP in the course of ETCH- abetting in MARTIN of a theft from JOHN commission EMENDY, JR., bodily in- inflict, inflicting, or aided abetted and jury upon ETCHEMENDY, JR., JOHN MARTIN contrary to the form, force and effect of the statutes such pro- cases made and vided, against peace and dignity of the State of Montana. Guilty JURY VERDICT:
COUNT II The Defendant LESTER TOP, KILLS ON committed the offense Aggravated Kidnaping, felony, 45-5-303(l)(b) as defined in § 45-2-302(3), MCA, that on or about October County, Custer Montana Campbell County, Wyoming, LES- TER KILLS ON TOP purposely did knowingly or and without law- authority ful restrain or aid and abet in restraining JOHN MARTIN ETCHEMENDY, JR. holding aiding or abetting holding or place isolation, him in a using aiding abetting in the physical use of against force ETCHEMENDY, JOHN MARTIN JR. purpose with the facilitating the commission of the crime of Rob- bery, felony, flight thereafter, contrary form, force *31 and effect of the statutes provided, such case made and and against peace dignity and of the State of Montana.
JURY guilty VERDICT: Not III
COUNT (Alternative II) Count to Count Defendant, The TOP, LESTER KILLS ON committed the offense Aggravated Kidnaping, felony, 45-5-303(1)(c) a defined § 45-2-302(3), MCA, and 17, 1987, that on or about October County, Custer Campbell County, Montana and Wyoming, LES- TER KILLS ON TOP purposely did knowingly or and without law- authority ful restrain or aid in restraining and abet JOHN MARTIN ETCHEMENDY, by holding JR. aiding or abetting holding and place him in a of isolation using or aiding abetting or and in the physical use of against force ETCHEMENDY, JOHN MARTIN JR. purpose of inflicting bodily injury terrorizing on or JOHN ETCHEMENDY, JR., MARTIN contrary form, and ef- force fect of the statutes in provided, such case against made and and peace dignity and of the State of Montana. Guilty
JURY VERDICT:
COUNT IV Defendant, TOP, LESTER KILLS ON committed the offense Homicide, felony, 45-5-102(1)(b), Deliberate a as defined in § MCA, in that on or about County, October Custer Mon- Campbell County, tana and Wyoming, while LESTER ON KILLS TOP purposely knowingly engaged or in the commission or legally accountable Robbery, for the commission of flight after Robbery, commission of the felony, crime of a which involved physical the use of against force and violence JOHN ETCH- EMENDY, JR., ETCHEMENDY, the death of JOHN MARTIN JR. was caused person LESTER KILLS ON TOP or another le- gally Robbery, accountable for contrary form, the crime of to the force and effect of the statutes in such provided, case made and against peace dignity of the State of Montana.
JURY Guilty VERDICT: Not
COUNT V (Alternative IV) Count to Count Defendant, TOP, LESTER KILLS ON committed the offense Homicide, felony, Deliberate 45-5-102(1)(b), as defined in §
MCA, in that on or about County, October in Custer Mon- Campbell tana and County, Wyoming, while LESTER KILLS ON purposely TOP was knowingly engaged in the commission of or legally accountable for Aggravated the commission of Kidnaping, or flight after the commission Aggravated of the crime of Kidnaping, or flight after the commission of the Aggravated Kidnaping, crime of felony, which physical involved the use of against force and violence ETCHEMENDY, JR., JOHN MARTIN the death of JOHN MAR- ETCHEMENDY, TIN JR. was caused LESTER KILLS ON TOP person or another legally Aggra- accountable for the crime of vated Kidnaping contrary form, force and effect of the stat- utes in such provided, case made against peace dig- nity of the State of Montana.
JURY Guilty VERDICT:
FOOTNOTES 1. Court’s Instruction No. 23: Testimony presented accomplices may has been one or more witnesses be respect you guided by
this case. In following this are to be rules law: accomplice voluntarily, 1. An knowingly is one who intent with and with common offender, principal may unites the commission of a crime. One become an ac- complice by being present act, joining by aiding abetting, and in the and criminal intent, being present with by advising criminal another its commission or commission, encouraging voluntary knowledge its but action are essential in or- impute guilt. der to question jury 2. It is a of fact for the to determine from evidence and from the you given particular law as the court whether or not in one case or more accomplices meaning or witnesses were were not within the of the law. testimony accomplice ought 3. The of an to with be viewed distrust. testimony accomplice 4. A conviction cannot be had on the of an unless is he/she itself, testimony corroborated other evidence which in without aid of accomplice, offense, of the tends to connect the defendant with the commission merely and the corroboration is not sufficient if it shows commission of the of- fense or the circumstances thereof. 2. Defendant’s Instruction No. 17: testimony responsible You are instructed a conviction had on cannot be of one offense, legally testimony or accountable for the same unless the is corroborated testimony respon- other evidence which in itself without aid of the of the one legally sible or accountable for the same offense tends to connect the defendant with merely the commission of the offense. corroboration is not sufficient if it shows commission the offense or the circumstances thereof. sufficient, corroborating To be evidence must show crime was in more that a fact or committed the circumstances of its commission. corroborating opportunity evidence must show more than to a mere commit the in, suspicion op- crime. It must raise more than a of the defendant’s involvement portunity commit, charged. the crime But corroborative evidence need not be suffi- cient, itself, support prima a defendant’s conviction or even make out a facie against Corroborating may case him. evidence be circumstantial come and can from his witnesses. accomplice supply independent necessary One cannot evidence to corroborate accomplice. another alleged equally Where the corroborative evidence is a reasonable consonant with explanation defendant, pointing part innocent then toward conduct such evidence does not tend to him connect commission the offense speculation, the realm of not corroboration. Where the claimed corroboration shows opportunity proves simply suspicion, no more than an it is commit a crime and justify upon testimony accomplice. sufficient corroboration to a conviction of an notes change that defendant of his the basis appeal. Sunday, note, however, tion on at 1195. 609 P.2d We objection defendant’s appeal to this instruction on since meritless at trial a presented substantial amount of evidence from which jury could infer possi- guilt defendant’s consciousness of bility flight. immediately community Defendant left after hall leaving body, failing gate. proceeded to close to leave He also
Notes
notes says the last approved. Yet as he overwhelmingly this State it was in in State was out that was carried death sentence thirty years the past is that 1944. What he fails to note providing laws Supreme twice found State Court has United States twenty- This necessitated sentence unconstitutional. for the death comply with the United passing States new laws order one States. is of those Supreme Montana one opinions. States Court’s opinions, a thou- Supreme Court’s After each of the United States sentences had their persons to death sand or more sentenced been people have since many these changed to life sentences the vari- returned to paroled time and or have served the maximum have States country. I fact that the find the ous communities of this strong support period in this indicative redone their laws twice for the death sentence those states. experience premise the Montana disagree Likewise I with his hands 1977, sentencing in the put the legislature since when the represent the jury, cannot be said judge, the trial rather than the by the for issues called spectrum public on social wide sentiment 153, 96 S.Ct. Georgia 428 U.S. Gregg v. Supreme Court 197, 875, 2909, 97 S.Ct. 429 U.S. reh. den. 49 L.Ed.2d appellate (1976). Rather, judges, like I trial L.Ed.2d find that person sentencing a ever judges, great before take care and caution I protection prevents runaway to death. a believe this passions. jury It judges justices appellate is the various State trial courts delayed who carrying capital punish- have out of their laws on belongs system. ment. That obvious honor in the worst Federal example in this State is that of Duncan McKenzie who was con- spent victed in years and who has now on some fourteen death row. history There was a in our people time when worried about Caryl Chessman, California, spent execution of a murderer who v. Teets years some seven California’s death row. Chessman 354 U.S. 77 S.Ct. just L.Ed.2d He was compared McKenzie, newcomer to death row whose case has been yo-yo like a ever since it left this Court and went into Federal system. It has been said of McKenzie’s case he has a death sen- carry tence but will dying “he it out age.” of old work, There no given more difficult nor emotional task than that jurors, judges appellate justices trial finding being a human murder, guilty of sentencing, upholding approving of