*1 164 ON TOP,
VERNON KILLS Appellant, MONTANA, STATE OF Respondent. Respondent No. 98-492. April on Briefs 2000. Submitted Decided 2000. December MT 340. 2000 St.Rep. 1444. 164. *3 Stetler, Saor E. Appellant: For James S. Thomson and Criminal Holton, Attorneys, Berkeley, California; Wendy Attorney Defense Law, Helena. Mazurek, Joseph Attorney General;
For Hon. P. Respondent: Clay Smith, Solicitor; Attorney Murphy, R. Mark J. Assistant Gen- eral; Helena. opinion
JUSTICE REGNIER delivered the of the Court. (hereinafter “Petitioner”) Kills On Top Vernon referred to as ap- ¶1 Fact, peals Findings from the of of Law and Conclusions Order issued Court, County, the Sixteenth dismissing Judicial District Custer his petition postconviction relief, Findings Fact, amended for and the designating dangerous Conclusions of Law and Sentence him as a of- him eligibility fender for parole purposes sentencing to the follow- ing consecutively: years sentences run imprisonment robbery, for imprisonment life possibility parole aggravated without for kidnap- ing, and imprisonment life for deliberate homicide. We affirm. regard petition With to the denial of Kills On Top’s Vernon
¶2 relief, postconviction appeal following his raises the issues: 1. it Whether District Court erred when limited its decision to ¶3 Petitioner’s ineffective assistance of counsel claims? 2. Whether the District Court erred it when concluded Peti-
¶4 right tioner’s to effective assistance of counsel not violated? resentencing, With regard appeal Petitioner’s raises the fol- lowing issues: 3. Whether the District Court erred it when denied Petitioner’s change
motion for a of venue? Court it im- Whether District erred when admitted victim evidence?
pact 5.Whether the District erred it sentenced Petitioner? when
BACKGROUND robbery, of the aggravated kidnaping, Petitioner convicted Etchemendy, following homicide of Martin trial deliberate John Jr. Court, jury County, on Au- by the Sixteenth Judicial District Custer 6,1988. years September 8,1988, he in the gust On was sentenced to 40
168 aggra for to robbery, Montana State Prison sentenced death for conviction appealed vated and homicide convictions. He his kidnaping (Vern) Top State v. Kills to this Court and we affirmed. Vernon On (1991), 56, 793 U.S. P.2d cert. denied 501 (“Vernon I"). 2910, 115 On Top 111 S. L. Ed. 2d 1073 Kills Ct. 19,1992, for February Top petition On Vernon Kills On filed a Court, District Custer postconviction relief the Sixteenth Judicial County. grounds relief. The petition, separate In that he claimed for by summary judg- part District dismissed all but of claim one not part petition ment. The District Court denied the of his which was summary evidentiary In ad- judgment hearing. dismissed after an dition, to the District Court denied Petitioner’s combined motion 16-18, amend 2 and 11 of his and add claims his motion petition claims assistance, discovery, investigative for his motion for leave conduct his of a The District Court appointment psychiatrist. motion for also Petitioner’s motion for reconsideration. denied reversed District dismissal of appealed. Petitioner We Court’s evidentiary for petition postconviction his for relief and remanded as hearing. disproportion also vacated Petitioner’s death sentence We conduct, affirmed that if on stating ate to his actual his conviction was remand, possibil Court must him without the the District resentence ity Kills v.State of death. Vernon on (“Vernon II"). Kills On remand, to an pursuant On the District Court entered an order resolving parties for agreement regarding procedures between 13,1998, August claims. the Dis- postconviction Petitioner’s relief On Fact, of Order Findings trict its of Conclusions Law and Court issued Fol- petition relief. dismissing postconviction Petitioner’s amended for relief, Dis- of for lowing petition postconviction the dismissal ex- resentencing Petitioner moved to hearing. trict Court scheduled hearing and testimony resentencing clude from the impact victim The orally court denied both motions. change moved for a venue. The 10,1998, at the conclu- resentencing hearing court held a November for rob- 40-years’ imprisonment sion of which it sentenced Petitioner homicide, and life bery, imprisonment life deliberate imprisonment for kidnaping, with possibility parole aggravated without the parole eligibility consecutively. run The court denied sentences to aggravated kidnaping pursuant Petitioner’s conviction for respect (1987). as a 46-18-202(2), designated court MCA also § eligibility dangerous parole purposes. offender for
169 appeals Petitioner from ¶13 both District Court’s dismissal of his petition postconviction for relief and the District Court’s resentencing.
POSTCONVICTION RELIEF CLAIMS
STANDARD OF REVIEW We review a district court’s a petition postconviction ¶14 denial of for relief to determine whether the court’s findings clearly of fact are erro neous and whether the court’s conclusions of correct. State v. are law Wilson, 52, 11, 293 429, 11, 976 1999 MT Mont. ¶ P.2d 11. Peti ¶ ¶ tioner process claims that due requires that no deference given be the District findings Court’s of fact and conclusions of law because the District Court essentially adopted the State’s proposed Findings of Fact and Conclusions of Law. We have held that a district court does not commit error when it adopts party’s proposed findings and conclu sions where the adopted findings and “sufficiently conclusions are comprehensive and pertinent provide the issues to a basis for the de cision and are supported by the evidence.” Hans v. State 379, 393, 942 674, 683. Mont. P.2d We decline to rule that the court commit ted by reversible error adoption its proposed the State’s findings and con However, clusions. arewe mindful of the court’s verbatim adoption our analysis of whether the court’s findings clearly are erroneous and whether its conclusions are correct.
ISSUE ONE Whether the District Court erred when it limited its decision to Petitioner’s ineffective assistance of counsel claims? July 14,1992, On Petitioner moved the court peti to amend his
tion for postconviction relief, adding claims 16-18. The District Court denied Petitioner’s motion stating that proposed his amendments “would be futile.” appeal, On we held that the District Court erred when it denied Petitioner’s motion to II, amend. Vernon Kills on Top 393, 928 at remand, Mont. P.2d at 188. On the District Court lim ited its decision to Petitioner’s ineffective assistance of counsel claims and did not address the merits of proposed Petitioner’s claims 16-18. claims the District Court by failing erred to ad- proposed dress claims Findings Fact, 16-18 its Conclusions of Law and Order dismissing his amended petition postconviction relief. agree. We of our scope required remand the District Court to deter- mine whether Petitioner postconviction was entitled to relief on the ba- sis of proposed claims clearly 16-18. We stated that the District Court erred when it denied Petitioner’s motion to add claims proposed II, Kills on at 188. By
16-18. Vernon 279 Mont. P.2d re District manding proposed Court to allow Petitioner to add claims 16-18, necessarily we the District to address merits required of those claims. However, that the Court’s failure to ad we believe District proposed Petitioner’s amendments harmless. We have held
dress are attacks postconviction proceedings relief collateral that are nature and of the criminal independent underlying “civil” in cause. Garner, 295, 19, 297 89, 19, 990 State v. 1999 MT ¶ ¶ 428, 433, (citing Coleman State 633 P.2d 627). “no civil It is well established that case shall be reversed rea result; significant impact upon son of error which would have no if *6 showing injustice, there is no the error is harmless.” See substantial 115, 20, 482, Hinebauch, 20, v. MT 288 Mont. ¶ Newbauer 1998 958 ¶ 705, 20. We that the resolution of these claims depends P.2d note ¶ documentary already solely testimony evidence in the form of taken affidavit, by hearing. respect testimony, or at With to record deposition, this in sitting good position is in as a as the District Court review judge weight given testimony, distinguished to to such as from to be testimony actually oral where the trial court observes character Liberty and demeanor of the on the stand. See Northwest Ins. witness (1997), 76, 79, 945 433, 285 P.2d Corp. Champion Corp. Intern. Mont. Court). Fur (reviewing by Compensation 435 decision issued Workers’ thermore, requested petition Petitioner has not that we remand his claims, proceedings proposed the District Court for farther on these presents Accordingly, but instead these issues to us on the merits. we analyzed newly the merits of Petitioner’s discovered evidence have claim, claim, Brady and cumulative error claim to determine whether by the these he was harmed District Comb’s failure to address claims that Upon analysis, pro on remand. we have determined Petitioner’s Therefore, posed 16-18 merit. we conclude that the claims are without District failure to Petitioner was not harmed Court’s address his impact claims 16-18 this error would have no on the proposed because petition. District Corub’s denial of his Newly
A. Discovered Evidence newly In claim Petitioner claimed that discovered proposed Coming in the form affidavit of Diane Bull warranted evidence of an affidavit, Coming’s Bull she new trial. claimed may mistakenly misconstrued Petitioner’s non- admitted that she have we stated that Etchemendy. appeal, as an assent kill On grunts verbal partial murder served as a ba alleged “[s]ince his consent to the victim’s and since imposition penalty, for the District Court’s of the death sis relief, newly justification postconviction evidence is a this discovered futile.” Vernon true, allegation, hardly if could have been considered II, Kills on P.2d at 187. The State contends 279 Mont. at only relevant to the proposed that the issue Petitioner’s claim 16 was and, therefore, imposition penalty of the death rendered moot when we agree. vacated Petitioner’s sentence. We liability proposed phase Petitioner’s claim 16 is not relevant to the 1,1992, stated, May Coming
his trial. In an affidavit dated Bull ‘When [Etchemendy], got Vem took the blindfold off Lester mad and said Hnow I, he kill grunted him[’]. knows what we look like so we have to Vem time, interpreted agreement.... agree this as I that it is possible my amend, interpretation wrong.” could have been In his motion to Peti- newly tioner claimed plainly that this discovered evidence was material only to the outcome of his trial it because was evidence offered that he Etchemendy. had intent kill agreed Whether Petitioner Lester On Kills killed,
Etchemendy however, should be is immaterial to Petitioner’s trial, conviction for deliberate homicide. To serve as the basis for new must, newly discovered evidence among things, other be “so material probably that it would produce upon a different result another trial.” Hall, State v. 297, 54, 297 111, 54, 991 MT P.2d ¶ ¶ ¶ 1052). State v. Greeno (quoting Newly highly probative discovered evidence is “material” if it is “so of the de probably produce fendant’s innocence that its introduction would Hall, acquittal.” 55. Petitioner was convicted of deliberate homicide 45-5-102(l)(b), pursuant “felony MCA murder rule.” § *7 (1) felony The elements of murder are as follows: the commission of a (2) (3) felony; death; felony a causal connection between the Top death. State v.Kills on (1990), 378, 387, 787 336, the 241 Mont. (“Lester I”). Top Kills on rule, felony 342 to the Pursuant murder agree Top whether Petitioner did or did not Lester Kills On with irrelevant; Etchemendy proof ag should be killed is of intent to commit is sufficient for conviction. Lester Kills gravated robbery kidnaping or Top I, 387, Coming’s ambigu 241 Mont.at 787 P.2d at Bull 341-42. grunt probative ous of Petitioner’s is not at all of his in interpretation nocence. Petitioner is not entitled to a new trial based on this evidence. Brady B. Claim 17, asserted that he was entitled to a proposed In claim Petitioner duty pursuant violations of its prosecution’s
new trial due to the 83, 83 1194, 10 215, (1963), L. Ed. 2d Brady Maryland v. 373 U.S. S. Ct. the accused and material to the ac to disclose evidence favorable to prosecution or Petitioner asserted that the guilt punishment. cused’s been re Coming failed to disclose evidence that Bull claimed to have by Countyjailer a Custer and failed to discloseevidence peatedly raped Etchemendy. On stated Coming appeal, that Bull had mutilated we penalty. death Brady that “this violation was cause to set aside Lester’s A futile for Vernon when Diane Bull similar claim could not have been Etchemendy, Coming only the witness who even linked Vernon to 392, II, at P.2d at 187. Top Jr.’s death.” VernonKills on 279 Mont. that, Top in Kills on v. State The State contends as we held Lester 1376 ("Lester (1995), 32, 44-45, Top Kills on 901 P.2d II"), may regard with to infor any Brady violations it have committed sentence, Coming mation Bull are relevant to Petitioner’s but about not to his conviction. Process of the United States Pursuant to the Due Clause
Constitution,
the
must disclose all evidence favorable
prosecution
Brady,
guilt
punishment.
that material to either
or
accused
duty applies
proceedings
1196-97. This
U.S. at
83 S. Ct. at
II,
21, 1987, until she was County jail transferred to the Rosebud on April transfer, 1988. After her Bull Coming Bromley, told Ron County Sheriff, Deputy Rosebud had repeatedly she been sexu- ally assaulted a Custer County jailer. Bromley notified Bull Com- ing’s Bunke, attorney, Garry Coming’s allegations, about Bull who agent Traeger then called FBI Ed in Billings. The FBI conducted an investigation subsequently County the Custer notified Sheriff they pursuing would not be further action. The in- State never formed Coming’s allegations. Petitioner’s trial counsel about Bull Brady violation, In order to qualify suppressed as evidence Strickler, must be both favorable to the accused and material. 527 U.S. 281-82, 119 S. Ct. at 1948.Petitioner claims that this evidence is fa vorable because of its impeachment value. Petitioner contends that if true, Bull Coming’s allegation was this information could have been used to Coming testify falsely show that Bull had a motivation to get However, order “to her jail.” free of horrific situation in this claim factually impossible. By Coming the time Bull testified in either trials, July Lester Kills On or Petitioner’s held in June and already she County had been transferred out of the Custer jail-she 7,1988. County jail April was transferred to the Rosebud Furthermore, Coming Bull did of being not face threat returned County jail falsity the truth or of her testi-
to the Custer based on mony. impeachment purpose. information has no value for this This false, it Coming’s allegation Petitioner contends that if Bull (1) it would impeachment purposes: could have been used for three *9 ly- her routine Coming’s manipulative “demonstrate Bull nature and (2) wants”; Coming’s ing get to she it would contradict Bull testi- what she, mony Top, it Lester Kills On and not who taunted was (3) it Etchemendy raping girls”; as to “how he liked Indian and would “moving Bull force the crimes” be- Coming show that was behind cause she had a motive. false, allegation, may impeach Bull if had some Coming’s have falsely County a Custer Coming
ment value. Whether Bull accused that she had a mo jailer sexually assaulting her does not establish rob, alle Etchemendy. Similarly, Coming’s and kill Bull kidnap, tive to false, testimony if not contradict her that it was gation, proven does Etchemendy. taunted On the Top Lester Kills On and not she who in hand, it that had Petitioner’s trial counsel been other is conceivable information, developed this he could have facts which would formed of false, Coming’s allegation ques Bull was somehow have indicated that cross-examination, during facts his Coming tioned Bull about these credibility. See Kills on attempted and thus to undermine her Lester II, that Lester Kills on (observing 273 Mont. at P.2d at 1376 of sex Coming’s allegation could have used information about Bull veracity or to “attempt Coming’s ual assault to to cast doubt on Bull others”). manipulate Arguably, to this evidence propensity show her impeachment has some favorable value. History Coming’s
2. Bull Criminal Brady by pro- not Petitioner also contends that the State violated ar- attorney Coming’s history. Bull criminal State viding his with history impeachment has no value gues Coming’s that Bull criminal it was inadmissible. because history has value. As- Coming’s impeachment Bull criminal some forg- history, such as her conviction
pects Coming’s of Bull criminal truth- probative ofher character for ery,might have been admissible as 51, 55, Maier, MT See State v. ¶ fulness or untruthfulness. sur- 403, 55, (holding that circumstances 977 P.2d 55 ¶ pur- forgery conviction were admissible rounding previous a witness’s M.R.Evid.). Coming’s criminal his- 608(b), Although Bull suant to Rule value, exculpa- it no has tory may impeachment have some favorable history could Coming’s Bull criminal tory We do not believe that value. events to Petitioner in the that led disprove participated be used and Etchemendy’s kidnaping, robbery, death. to Background Bull Coming’s State Petitioner also contends that the failed to disclose informa- Coming’s violent regarding allegedly background, tion Bull false state- ments, her long standing prejudice, testimony, racial contradictions in conditions, plea agreement “deception failure to abide her and However, manipulation.” exception Bull Coming’s with the of Diane at- Roy Coming Coming passed Diane Bull tack Dean Bull a note Jail, while at Custer has not County Petitioner directed any our attention to evidence in the record which indicate would prior during of this the State aware information or trial and intentionally inadvertently Moreover, suppressed or it. this evidence no exculpatory regard guilt has favorable value to Petitioner’s instance, concerning Coming’s innocence. For information Bull back- ground disprove does not tend that Petitioner the car in drove which Etchemendy was held robbed. Petitioner not explained has also might ofthis how evidence have used at the time ofhis trial been impeach Coming. Bull
4. Conclusion *10 sum, In Petitioner did not ¶32 establish the State failed to dis- However, any exculpatory close evidence. Petitioner did establish that the State failed may to disclose some information which have been use- impeaching Coming’s ful in Bull testimony-namely, Coming’s Bull sex- Coming’s ual assault allegation previous history. Bull criminal Pe- the titioner contends that “evidence at trial was weak and circumstan- tial as it [his] related to involvement in the crimes” and that “the most damning the testimony Coming.” evidence was offered Bull Peti- tioner also states that this could “shredded [Bull information have Coming’s] in credibility jury.” front of the Petitioner’s assertion that the State’s failure to disclose Bull
¶33 Coming’s history allegation prejudicial criminal or was sexual assault completely merit. In could way without no the failure disclose this “reasonably in such a put information be taken to the whole case differ light Kyles Whitley as in the ent to undermine confidence verdict.” 419, 435, 115 1555, 1566, 131 514 U.S. S. Ct. L. Ed. 2d 490. No merely suppressed impeaching Coming’s of evidence Bull tes amount timony a probability could establish reasonable that the result of Peti Coming’s testimony trial tioner’s would have been different. Had Bull completely entirely, overwhelming been discredited or excluded
176
accomplice testimony
of
and corroborative evidence estab
abundance
in or aided and abetted
participated
lished
Petitioner
Etchemendy’s
or
aggravated kidnaping,
participated
a
Etchemendy’s robbery,
Etchemendy
for
died as result
accountable
thereby
liability
felony
for
episode
exposing
ofthis criminal
Petitioner to
Top II,
401-06,
murder. See Vernon Kills on
lative denial due to all circumstances “[cjumulative appeal, On stated that error can previous claims. we II, 392, as a basis reversal.” Kills on 279 Mont. at serve Vernon not, however, at 187. error doc apply 928 P.2d We do cumulative Beavers, 260, MT trine no have been State v. when errors shown. ¶ 340, 60, 371, 60, 296 Mont. 987 P.2d 60. ¶ TWO
ISSUE District Court erred when it concluded Peti- Whether the right to assistance of counsel was not violated? tioner’s effective guaranteed right are to the assistance Criminal defendants States pursuant to the Sixth Amendment the United Con of counsel II, and Article Section 24 of the Montana Constitution. State stitution right v. Jones guaranteed by to a fair trial protects right counsel the fundamental States Constitution. Strickland v. Due Process Clauses of United *11 2063, 684-85, 104 2052, 668, S. L. Washington 466 U.S. Ct. critical impor to the of counsel is of right Ed. 2d 674. assistance a fair access to right to a defendant’s to trial because tance criminal necessary to a defendant the knowledge skill is accord counsel’s system. case our adversarial opportunity prosecution’s test reason, Strickland, 685, 104 2063. the Su- at S. Ct. at For that U.S. right is preme recognized Court has that to assistance counsel Strickland, 686, right to effective assistance of counsel. U.S. at Ct. at 104 S. 2063. A convicted claim that counsel’s assistance was so defendant’s require components:
defective as to reversal of a conviction has two First, performance the defendant must show that counsels was defi- so requires showing cient. This that counsel made errors serious that functioning “counsel” guaranteed counsel was not as the the defen- Second, Amendment. by dant the Sixth the defendant must show that the deficient This performance prejudiced requires defense. showing deprive that counsel’s errors were so serious as to the defen- trial, of a fair a trial dant whose result rehable.
Strickland, 687, 104 Generally, at 466 U.S. at S. Ct. 2064. defendant Jones, parts prevail. must establish both the test to 278 Mont. at However, 923 P.2d 567. when a defendant establishes counsel’s performance was deficient in that counsel suffered from actual con adversely flict of interest which representa affected defendant’s State, tion, prejudice presumed. See Wilson to the defense is 1999 MT 17, 296 465, 17, 989 ¶ ¶ 17. Petitioner claims that counsel, purposes his of his direct appeal, prej trial and committed udicial errors and that his counsel suffered from actual conflicts which adversely representation. affected his
A. Prejudicial Ineffective Assistance Due to Errors Petitioner Forsythe, attorney contends that John S. for pur poses of his trial and direct appeal, prejudicial committed two errors right which denied him the assistance effective of counsel. Petitioner prejudiced Forsythe’s by maintains he was failure use available from impeachment Top’s evidence Lester Kills On trial which would have demonstrated that Bull controlled Coming participants the other in the crimes. prejudiced by Petitioner also insists he was Forsythe’s fully testimony. challenge Coming’s failure to Bull In order succeed, Forsythe must establish that made errors so seri functioning ous that he was guaranteed “not as the ‘counsel’ the defen by Amendment,” dant the Sixth he must establish that he was performance. See Strick prejudiced Forsythe’s allegedly deficient land, 466 U.S. at S. Ct. at 2064. Impeachment Evidence Forsythe Petitioner claims that failed to use the trial transcript Top’s challenge
from Lester Kills On trial to witnesses his trial. Peti- impeachment refers he following tioner us to the evidence which *12 Forsythe erroneously caused him claims failed to introduce and which (1) Coming’s testimony Top’s in Lester On trial prejudice: Bull Kills by Bar up impeached that Lester beat her at the Golden West was the that Bull testimony Hathaway Coming of who testified he saw Steve (2) in Lester Kills hitting Top; Coming Lester Kills On Bull testified On that of the door at the Golden West Top’s trial Lester shoved her out (3) face; Eads testified that she saw blood on Lester’s Bar while Jenelle Etchemendy Coming speaking at Petitioner’s trial Bull denied to be- Petitioner, Coming got by he into the driven while Bull told fore vehicle Etchemendy parking FBI had to in the Golden West Bar the she talked (4) lot; Quiroz Top’s at Lester trial that Lavonne testified Kills On away Coming running Bull mad at Doretta Bear for while in was Four Ashland, “impeachment Montana. Petitioner insists that this evidence Coming the defendants in- demonstrates that Bull controlled other cluding [himself].” agree the Court that Petitioner has failed to We with District that, omissions, Forsythe’s perfor by alleged reason of these
establish range so as to fall the “wide of reasonable mance was deficient outside Strickland, 689, 104 466 U.S. S. Ct. at professional assistance.” See observes, testimony to which has di 2065. As the State Petitioner regard to evidentiary significance our has no his rected attention hit in Coming or Bull Lester Kills On guilt innocence. Whether Kills out the Bar; West she Lester On door Golden whether shoved Bar; Etchemendy to whether first talked of the Golden West she vehicle; angry she was at Doretta Four parking lot or in the whether partici that running away disprove Bear for does not tend to Petitioner robbery aggravated kidnaping in or was accountable for the pated Moreover, Etchemendy in his death. this evidence of which resulted Coming tend to that Bull “controlled the other defen does not establish dants, including by failing to in proven Petitioner has not that [him].” that evidence, Forsythe’s was so deficient he performance troduce this by guaranteed the defendant functioning “not as ‘counsel’ Strickland, U.S. at S.Ct. at Sixth Amendment.” Challenge Coming’s Testimony Bull 2. Failure error Forsythe prejudicial committed contends Petitioner insists fully challenge Coming’s testimony. Bull failing the cir- Coming’s background, Bull Forsythe investigate failed to violence, acts of her criminal bargain, prior of her plea cumstances her history prostitu- her of background, history manipulation, her Forsythe’s investigation into The District Court concluded tion. and was ade- breadth was of reasonable Coming’s background Bull minimizing Peti- strategy Forsythe pursue to allow quate also noted that The court episode. in this criminal tioner’s involvement most, because, at regard prejudice this Petitioner did not establish Coming as portray Bull merely have tended such information would testified to at Peti- than she episode in the criminal greater actor in view of Peti- made no difference fact that would have tioner’s trial-a robbery, and death re- Etchemendy’s kidnaping, liability for tioner’s to the accomplice’s of each contribution gardless precise of the nature agree. episode. criminal We as Peti essentially is same This ineffective assistance claim under Strickland the same Brady prejudice claims. The test for
tioner’s
*13
Strickland,
1718,
Supreme
2d
64 L. Ed.
arising from
a conflict of interest
objection
raise an
at trial to
did not
actual conflict of
that an
must demonstrate
multiple representation
held
We have
adversely
lawyer’s performance.1
his
interest
affected
Cuyler
apply to
standards
decided whether the
Supreme Court has not
1. The
representation
multiple
context.
client
interest claims outside of
conflict of
(5th
1995), 65
Compare
v. Scott
Cir.
appellate
Beets
courts are divided.
Federal
(lim
1547, 134
2d 650
1258, 1265,
L. Ed.
517 U.S.
S. Ct.
cert. Denied
F.3d
claim,
order to succeed on a conflictofinterest
a defendant must
(1)
(2)
prove:
actively
interests;
counsel
represented conflicting
adversely
conflict
affected counsel’s performance. State v. Wereman
245, 249,
1009, 1011.
902 P.2d
If a defendant estab
elements,
presume
lishes both
we will
that the defendant
preju
was
Wereman,
diced
the conflict.
announcing candidacy judge his for district of the Sixteenth Judicial Forsythe’s campaign District. advertisements noted that he was County attorney years Rosebud for convictions in over “80% 3,000 book, cases” and that Death Sentence. he had authored the Forsythe lost judge position primary his bid for a district in a election held on June 1988. trial began July Petitioner’s on Forsythe Candidate, filed announcing candidacy a Statement of county attorney 9,1990. for County Rosebud on March Petitioner’s 13,1990, direct appeal was deemed submitted to this Court on March May 21,1990. petition rehearing decided on Petitioner’s for 15,1990. Forsythe denied on June county won the election for attor- ney County of Rosebud in November 1990. agreeWe with the District Court that Petitioner failed to es
tablish an actual conflict
Forsythe’s campaigns
public
based on
of
previously
fice.Wehave
stated that in order to establish a violation of
the right
interest,
to assistance ofcounsel based on a conflict of
the de
conflict,
just
fendant must establish the existence
anof
actual
not
conflict,
possibility
through
of a
showing
factual
on the record. Wil
son, 18. Other courts have addressed claims of conflict
based
sim
*14
ilar facts and have concluded that such claims fail to establish the ex
(9th
instance,
an
istence of
actual conflict. For
in Garcia v. Bunnell
1994),
1193,
Cir.
33 F.3d
the Ninth Circuit held that defense counsel’s
plan
attorney’s
to work for the district
officeat the end petitioner’s
of
trial did not create an actual conflict of
interest.
court concluded
(2d
Cuyler
iting
multiple representation),
to cases of
with
v. Moree
United States
Cir.
2000),
65,
(applying Cuyler
220 F.3d
69
claim that conflict
standards
defendant’s
perfor
arose between himself and his counsel after defendant criticized his counsel’s
(9th
1996),
mance),
(applying
and United States v. Del Muro
Cir.
87 F.3d
Cuyler
involving multiple representation).
ap
to conflict of interest claim not
We have
plied Cuyler to defendants’ claims of ineffective assistance of counsel due to conflicts of
See,
multiple representation.
e.g.,
interest which do not involve
State v. Wereman
245,
tion of the defense Bar from office. *15 Although we conclude that Petitioner’s claim of a conflict of in- Forsythe’s terest based on campaigns public for officefails because he conflict, did not establish the existence of an actual we also note that Petitioner failed to establish effect which resulted from this al- conflict, leged let alone an adverse effect. Once an actual conflict is shown, only the defendant need demonstrate effect some handling particular aspect likely. counsel’s of a of the trial was Wil- son, observes, Forsythe’s activity 18. As the State campaign during period of his representation of Petitioner was insubstantial. Forsythe position judge prior lost his bid for a as a district to Peti- only tioner’s trial. The by Forsythe respect actions undertaken to his representation filing county attorney of Petitioner after for the County position argument of Rosebud an oral di- were on Petitioner’s appeal petition rehearing. rect and a Death Sentence 2. Death Sentence: Forsythe in published book 1983 entitled
Murder on the Prairie. In Death Sentence. Forsythe describes the prosecution Dewey Coleman and kidnaping, Robert Nank for the rape, Peggy and murder of Harstad.3 The crimes occurred Rosebud County, Forsythe prosecution became involved in their upon as- suming position County Attorney January of Rosebud 1975. Sentence, of Death Petitioner directs our attention to the conclusion Forsythe in which wrote: prosecution struggle
Criminal at its best creates a naked be- good good tween and evil. The forces use their ofscientific weapons investigation, exposure public truth at trials and in the me- dia, against and the threat and use of punishment wicked. The lies, secrecy,delay every evil forces counter with distortion and goodweapons. device that diminishes the Can we doubt that Godis involved in these titanic clashes? succeed, frustrating apparently
It is to see the evil force as mur- go technical- derers and other criminals undetected or are freed on ities, big masquerade popularly lies as the truth. It is most un- system fortunate in to have the federal court capital dupli- cases redundant, already multiple cate the reviews of the state court. description prosecution, 3: For a of the Coleman see State v. Coleman courts, Since we have so little faith in our and since our courts have themselves, so little faith in it surprising is not that our courts are so ineffective. *16 that Peggy
What shame Harstad’s murderers could formulate carry hours, her death in system out a few but our court waits years ten or more respond equal justice. with But our dedi- efforts, Dewey cated I do hang. believe Coleman will (1983). Forsythe, John Death Sentence: Murder on the Prairie 89 agreeWe with the District Court that Petitioner failed to estab Forsythe lish that suffered from an actual conflict of interest based on Death Sentence. statements in the conclusion of Petitioner con Forsythe’s tends that hostile attitude toward the representation of defendants, criminal legal “technicalities,” and federal corpus habeas review, by as evidenced Death Sentence conclusion to quoted above, conflicted with his representation However, of Petitioner. Forsythe’s Death Sentence conclusion to simply not evidence that Forsythe “actively represented conflicting Wereman, interests.” See 273 Mont. at P.2d again, at 1011. Once Petitioner has estab lished possibility conflict, of a but completely has failed to estab lish the existence of an actual conflict “through a factual showing on Wilson, the record.” fact, See 18. In a review of the record leads us to exactly the opposite Forsythe’s conclusion. representation of Peti tioner manifests that he was neither against biased criminal defen dants as a class nor hostile to the use of “legal technicalities” in their defense. As the District Court noted:
Forsythe raised “technical” defenses on Petitioner’s behalf. He argued that the amended give information failed to Petitioner ade quate notice of the offenses charged; with which he was that the District jurisdiction court lacked offenses; over some or all of the trial; Petitioner was denied a speedy that the District im Court properly denied a suppress motion to physical evidence seized at the time ofPetitioner’s arrest in Billings; and that the District im properly denied a suppress motion to by statements made Peti tioner to Federal Investigation special agents Bureau of following I, 70-80, 82-85, 793 arrest. Vernon Kills on 243 Mont.at 1282-89, 1290-92. ofDeath Sen suggestion page that the last tence some fashion -unwillingness Forsythe’s reflects an on part advance defenses that might regarded by lay public be as techni cal cannot be reconciled with his actions in this matter. deny- sum, District Court did not err In conclude that the we to a trial. Petitioner is not entitled request for a new
ing Petitioner’s that evi- newly discovered evidence because new trial on the basis did not vio- or innocence. The State guilt dence immaterial to his information it failed to disclose Brady obligation because the late its Lastly, innocence. guilt Petitioner’s was immaterial counsel. assistance of right of his to effective deprived was not of interest nor was Forsythe did not suffer from an actual conflict range to fall outside the wide Forsythe’s performance so deficient as liability criminal assistance. Petitioner’s professional of reasonable trial, ap- on direct tested a district court charges for these has been the United States Court, for certiorari to peal application to this on relief in District Court, petition postconviction in a Supreme Court, to this on re- Court, petition denial of his appeal from the Court, Petitioner’s appeal. and in the instant mand to the District trial. stand; he is not entitled to a new convictions RESENTENCING CLAIMS ISSUE THREE *17 it Petitioner’s mo- Court erred when denied Whether the District ¶53 change a of venue? tion for erred when it denied that the District Court Petitioner contends
¶54 because, resentencing hearing change for the his motion for a of venue by emotionally influenced the “[a]lthough jury no to be there was case, danger there a serious surrounding this was charged atmosphere cli- by prevailing the influenced improperly that the District Court was mate.” venue, have stated that change a of we regard to a motion for With
¶55 appears it there are change of venue when is entitled to a an accused actually exists alleged prejudice that the grounds to believe reasonable apprehension there is a reasonable by prejudice reason of the and that Abe, v. trial. State impartial receive a fair and that the accused cannot 393, 34, 965 34. We review 206, 34, 290 P.2d ¶ Mont. ¶ 1998 MT ¶ deter change of venue to for a deny decision to motion district court’s Abe, 34. its discretion. ¶ the court abused mine whether in the record that any evidence not directed us to Petitioner has ¶56 resentencing hearing. He the actually existed at alleged he prejudice the air of the same hearing revisited with resentencing was claims that “the carried.” In sentencing proceedings trial and hostility original that the family contention, that the victim’s Petitioner observes this support of the local me- as was during proceedings present supporters and were family presence supporters dia. The of the the local me- victim’s grounds believing that in the form of prejudice dia are not reasonable hostility” actually presence an “air of existed. Nor we believe of do family Court to the victim’s and the media affected the District the extent apprehension Judge there was a reasonable Larson could not resentencing hearing. Petitioner with a provide impartial fair denying District Court did not abuse its discretion in Petitioner’s motion change of for a venue.
ISSUE FOUR erred impact Whether District Court when it admitted victim evidence? objections, Over Petitioner’s the District admitted Court three ex- by during
hibits offered the State resentencing. Petitioner’s The State’s A transcript Etchemendy’s testimony Exhibit consisted of a of father’s given during Top’s hearing. Lester resentencing Kills On The State’s Ex- showing hibit B a videotape Etchemendy was with his playing children. The State’s C a letter presentence Exhibit included in Petitioner’s Newton, widow, investigation report, Etchemendy’s in which Colleen ex- pressed thoughts how the about murder of her husband had affected her her her and children’s lives. impact contends that admission of victim evidence Maryland Booth v. sentencing prohibited by
at is 482 U.S. 2529, 96 107 S. Ct. 440. L. Ed. 2d Whether the admission of this evidence Booth is a question law violates of which we will review for correctness. Clemo, See State 323, 5, 297 316, 5, 992 1999 MT ¶ ¶ Petitioner’s claim impact that the admission of victim evidence vi Booth, olated Booth fails for a number of reasons. In Supreme Eighth that the pro held Amendment the United States Constitution jury from victim at considering impact sentencing hibits a evidence terms, trial. Booth is, phase a'Capital very only applicable its Booth, jury sentencing penalty a death case. 482 U.S. at S. (holding impact Ct. that victim evidence inadmissible in a capital constitutionally unacceptable case because it creates a risk that *18 may arbitrary and jury impose penalty capricious “the the death in an manner”). Langford (1991), See 420, 437, also State v. 813 P.2d 248 Mont. VernonKills on 936, 949; I, 103-04, 793 1305; Lesfer 243 Mont.at P.2d at (1988), State Dawson I, 400, 787 350; Kills on 241 Mont.at P.2d at 233 (1988), 352, 361; State v. 214, 237, Keith 345, 360, 761 231 Mont. P.2d 474, Furthermore, Booth expressly we note that has been 754 P.2d (1991), 808, 830, by Payne v. 111 S. overruled Tennessee U.S. Ct. 2611, 115 L. Ed. 2d 720. Petitioner also that admission of Colleen letter contends Newton’s videotape playing
and the of the victim with his children rendered the not resentencing hearing fundamentally unfair because he was to able right confront these Whether Petitioner’s to confront wit- witnesses. was violated is a oflaw which will review for correct- question nesses we Clemo, 5. ness. See admission previously upheld This claim fails. We have also victim impact Langford,
of nontestimonial
evidence. See
sentence is within the parameters). State Montoya, 1999 MT 180, 15, 295 288, 15, 983 937, Mont. ¶ P.2d ¶ 15. Petitioner claims that ¶ the application of this standard of review to him violates federal and state prohibitions against constitutional post ex laws because the facto standard of review at the time he committed the offenses was whether See, the court abused its discretion. e.g., Graveley (1996), State v. 519, 521, 915 Mont. 184, 186. disagree. We A only rule of decision is prohibited as post ex if it punishes as a crime an act which was not facto committed, unlawful when if it punishment makes the for a crime more burdensome, or if it deprives person charged any with a crime of de fense available under the law at the time the act was committed. State v. 32, 36, Leistiko 97, 844 P.2d (citing 99-100 Beazell v. 216). Ohio 68, 70 269 U.S. S. Ct. L. Ed. Application of our clarified standard of Montoya review in punish does not Petitioner for a crime which was not committed, unlawful when does not pun make his burdensome, ishment more and does not deprive him of a defense to the charged. crime
A. Presentence Investigation Report At the end of his resentencing hearing, objected to the
evaluation and recommendation contained in presentence investi- gation report that it was “not upon based the factual pro- information probation vided to the officer” “it’s State,” biased in favor of the “it’s hearsay based on and uninvestigated reports,” and that his criminal his- tory data was not verified. The District Court stated objec- “[a]s tion, I overrule Iit. will consider it argument.” as The court accepted the report. On appeal, Petitioner prejudiced by contends that he was a bi- ased and partial probation officer presentence who wrote his investiga- report. tion A convicted defendant has a due process guarantee against predicated Bauer,
sentence on misinformation. State v. 1999 MT ¶ 306, 21, 983 P.2d 21. Under the ¶ ¶ constitutional guarantee process, of due an offender given must be an opportunity to information, argue, including presentencing in
explain, rebut formation, may life, deprivation liberty, property. lead to a or See Bauer, However, all process protect against 22. due does not misinfor ¶ rather, on inquiry pre turns whether the sentence was mation — materially Bauer, on information. 22. An offender under mised false ¶ duty alleged that the is materi an affirmative to show misinformation ally prejudicial inaccurate or before sentence will be overturned Bauer, Furthermore, recognized this Court. we have “where a sentencing court is not to have relied in improper found erroneous defendant, ‘nothing formation in a criminal there is correct sentencing and, therefore, resentencing or rebut’ that the defendant is not entitled to *20 Bauer, grounds.” Risley process (quoting on due Coleman 1154, 1162). in 237, 250-51, 663 Accordingly, order to suc claim, ceed on his Petitioner must establish that the District Court relied materially in him. upon prejudicial sentencing inaccurate or information to on due resentencing process Petitioner is not entitled investigation Petitioner with grounds. provided presentence hearing to the him the report prior sentencing provided and the court explain, to and information opportunity argue, rebut the contained extensively the author therein. Petitioner’s counsel cross-examined Corbett, report, Margaret of the Probation and Parole Officer and his testimony support po- counsel offered and in of Petitioner’s evidence relied on any Petitioner not established that the court mis- sition. has him, sentencing any in let alone material misinforma- information Therefore, resentencing pro- not entitled on due tion. Petitioner is to nothing in the Court’s sentence to grounds cess is District —there correct or rebut4. Eligibility B. Parole when it Petitioner that the District Court erred denied insists aggravated to for parole respect
him for with his conviction eligibility eligibility parole Petitioner for because kidnaping. court denied integral of part in connection which such crime was “his conduct comply Corbett did not also note that Petitioner has not shown that Officer 4. We 46-18-112, MCA, 46-18-112, provides requirements MCA. Section § with the of promptly inquire investigation required, probation the officer shall “whenever an (a) circumstances, needs, characteristics, upon: and report into and the defendant’s (c) (b) history; the circum- potentialities; criminal record and social defendant’s (d) offense; for the offenses the time of the defendant’s detention stances of (e) victim, offense, caused, im- of the to the victim’s charged; the harm as a result (f) loss, any.” if family, community; pecuniary and the victim’s mediate the events leading [Etchemendy’s] to death and because [Petitioner] opportunity had the terminate take action to kidnaping thereby prevent [Etchemendy’s] brutal and needless death.” We conclude that the District Court did not err it when de nied eligibility Petitioner parole respect to his conviction for aggravated kidnaping. Pursuant 46-18-202(2), MCA a dis § trict may deny court eligibility defendant for parole whenever it im poses a sentence imprisonment prison the state for a term ex ceeding year. one If the district deny court chooses to eligibility, the court shall state writing. its reasons in The District Court abided the statutory requirements. The court imposed a sentence afor term of more year than one and stated its denying reasons for parole eligibility. Furthermore, the factual basis for the court’s reason clearly is not erroneous. Petitioner’s conduct in connection with the kidnaping was an integral part of the events leading up Etchemendy’s death and he did opportunity have the to take action to terminate the kidnaping prevent Etchemendy’s death. As the District Court noted in findings fact, its Petitioner drove the car in which Etchemendy was Montana, held from Miles City, Ashland, Montana; he Etchemendy heard pounding on the trunk of the car in Gillette, Wyoming, and Quiroz instructed Lavonne to move the vehi cle to an alley where noise by Etchemendy made would be less likely heard; to be and he took stop no action to Lester Kills On and Bull Coming they after left the bar Gillette with the disclosed purpose of murdering Etchemendy.
C. Dangerous Offender *21 Petitioner
¶71 contends that the District Court erred when it designated him dangerous a offender for purposes parole of eligibility designation because its was unsupported. The District Court desig- nated dangerous Petitioner a offender parole eligibility for purposes, stating that he “represents a danger substantial persons to other or so- ciety by reason of his participation in this brutal episode criminal for the reasons stated in 11 paragraph Findings ofthe para- ofFact.”In graph the court found that recovering Petitioner is a alcoholic and has been alcohol-free since his incarceration and that several certified chemical dependency they counselors testified that likely believe he is to remain noted, however, sober. The court that these counselors also testified that guarantee there can be no sobriety. of continued The court stated that “[i]nthe absence of assurance in this regard
190 for has [Petitioner] in view of the nature ofthe conduct which been con- victed, danger or represents persons society.” he a substantial to other dangerous the District We conclude that Court’s offender supported. a district designation adequately We review court’s to the dangerous designation offender determine whether court 332, 338, abused its discretion. State v.Eichenlaub P.2d, 90, represented 901 94. The court determined that Petitioner a danger making or thus him ineli persons society, substantial to other 46-18-404(l)(b), gible nondangerous pursuant for offender status to § (1987). The specific MCA court cited to facts taken from record giving why represented its reasons a substantial dan when 46, 58, 919 Mont. ger. See State v.Collier 277 384 (stating give specific that “a district court must facts taken from record decision”). making its The facts of the case as reasons for taken from designation clearly in support the record of the court’s are not errone Petitioner does not contest the fact that he a participated ous. brutal alcoholic, criminal episode, played that he is an that alcohol role offenses, and guarantee sobriety. that there is no ofhis continued Consecutively D. Maximum Sentences to be Served the princi- Petitioner contends that the District Court “violated him inter and intra it sentenced to ples proportionality” case when the maximum sentence for each conviction ordered the allowable run Peti- consecutively. sentences to District Court sentenced aggravated years robbery, imprisonment tioner to 40 for life for kid- homicide, imprisonment life naping, and deliberate the sen- consecutively. to run tences above, only.Montoya, legality As stated we review sentences for statutory authority 15. The District did not exceed its in sen-
¶ applicable tencing Petitioner. Petitioner’s sentences all fall within (1987) 45-5-401(2), statutory parameters. (robbery pun- See MCA § imprisonment); 45-5-303(2), MCA by up 40-year ishable term of § (1987) death, life punishable by (aggravated kidnaping imprison- (1987) 45-5-102(2), ment, MCA up years imprisonment); or § (deliberate by death, imprisonment, up murder life punishable Accordingly, lawfully that the court years imprisonment). we hold complaints Petitioner. To the extent Petitioner’s relate sentenced sentence, complaints properly are addressed to equity those Gordon, of this Court. See State v. Sentence Review Division 183, 54, 169, 54, 983 P.2d ¶ MT ¶ Affirmed. *22 TURNAGE, and JUSTICES NELSON CHIEF JUSTICE LEAPHART concur. dissenting. concurring
JUSTICE and TRIEWEILER of majority’s through I concur with the resolutions Issues ¶76 majority’s I the that there was dissent from conclusion substan- ¶77 support tial evidence to the District Court’s determination ineligible parole. Vernon Kills On should for be all, eligibility parole of not First it should be noted that for does ¶78 46-23-201(1), guarantee parole. pa- Section MCA conditions parole that, role is on the board’s determination “there reasonable probability prisoner that the can be without detriment to the released (2) Furthermore, prisoner or to of community....” subparagraph the prisoner “[a] the same statute shall on provides placed parole that: be only willing when the board believes that he is and to fulfill the able obligations of a law-abiding citizen.” The issue then is something whether there is about a defen- background
dant’s presents society which such a threat to that the parole precluded considering board should be from ever whether that person obligations can “fulfill the of law-abiding citizen.” In this case, the District long Court concluded that no matter how Vernon Top incarcerated, Kills On no great and matter how of degree rehabilitation, his parole should never board be allowed to even suitability reentry society consider his for ofthe of because nature crime the fact that one can guarantee no that he will never drink again. (1987) 46-18-202(2), provides Section MCA that the District may
Court eligibility “[i]f restrict a Defendant’s for parole the Court finds that the necessary protection restriction is for the ofsociety....” (1987) 46-18-404, Section MCA On provides Vernon Kills eligible designated nondangerous to be did offender if he “not represent danger persons a substantial to other society.” designated ineligible District Court in this pa- Defendant case role integral based its conclusion that his was an part conduct pre- the events to the he leading victim’s death and because did not designated vent the victim’s death. The District Defendant a dangerous participation offender because of his in the events lead- ing testimony the victim’s death because there was no sobriety Defendant’s could in the guaranteed be future. The District Court found as a fact that participated Defendant battering robbery ofthe victim and used the victim’s credit However, not purchase gas. findings supported
card to those are thorough review that re- the record of the Defendant’s trial. After *23 cord, only pointed this Court out that the State’s witness: Etchemendy no while was in the trunk the
[S]tated that at
time
him,
him,
any-
injure
group’svehicle did
ever strike
take
Vernon
monetary
agreed
from him. She
that he never initiated
thing of
value
in
to
then said ‘later.”
response
talk ofmurder other than
Lester and
406,
182, 196.
384,
Top
On
v. State
279 Mont.
928
Kills
Coming
only
that Diane Bull
confiscated
reliable evidence is
that Diane
cashed
Etchemendy’s credit card and
and Lester
money.
portion
While a
ofthe
Etchemendy’s checks and divided
Vernon,
it,
portion
to
that
money
given
misplaced
he
and even
was
cor-
retrieved
Diane. Neither is
dissent
subsequently
was
previous opin-
this Court’s
repeats
allegation
when it
from
rect
nothing
stages
pre-murder
prevent
that
did
in the
to
ion
Vernon
testimony,
repeat-
According to
Diane’s
Vernon
the homicide.
even
edly
suggestions
Etchemendy
stalled
be murdered.
408,
197.
Top,
Based even killed, Etchemendy participate and he did not present when was Etchemendy’s testify death. While she did any act which caused something he would separate agreed that on two occasions victim, sought that he to with the she also testified have to be done expres- harm the victim and that after his postpone any further to reluctance, loca- took the victim another sion of she Lester himself. performed the murderous act tion where Lester P.2d at 195. Top,279 Mont. at Kills On trunk, who However, Etchemendy in the it was Vernon while was bathroom; his condi- Vernon who checked on go him out to let by removing tion; incurred his brother’s wrath and Vernon who togo so that he could the bathroom Etchemendy’s blindfold Mont. at 928 P.2d at Top, Kills On matter concludes that no Therefore, the District Court when no imprisoned, and matter has been long how the Defendant rehabilitation, danger “a he still be substantial degree of his will necessary imprisonment “pro- and his lifetime is for the persons” other society” findings bases that the tection of then those conclusions victim, to pur- and robbed his used his credit card Defendant battered death, nothing did District con- gas, chase avoid his Court’s are findings clearly clusions were based on erroneous. Furthermore, the District that Defendant Court’s conclusion guarantee that eligible can never be for release because no one can he again completely arbitrary, ignores will never drink the best evi- regarding dence alcoholic’s rehabilitation and condemns available every who had drinking criminal defendant has ever an associated denial problem parole. to a stronger could be presented No court ever evidence of an than
alcoholic’s rehabilitation to the District presented dependency this case. Four different chemical or substance abuse sentencing counselors testified at the Defendant’s ex- hearing. None pressed the remotest concern that Vernon Kills On would resume drinking prison. if released from Finly, dependency Miles a certified chemical counselor
Montana State positive Prison described the Defendant as a role model for other who make a inmates would model citizen if released prison. from Faver, Ginger who is also a certified coun- dependency
¶89 chemical Prison, at inspi- selor Montana State described the Defendant as “an ration” to other inmates and she very stated that “would be comfort- neighbor.” able Vern a having be She said that trusted him and she qualms would have no his prison. about release from chemical William Martin a dependency is counselor at Montana ¶90 State He his Prison. described selection of the Defendant as an assis- tant to in the he help explained rehabilitation of others and that has help received treatment to avoid relapsing to alcohol abuse that was prison. unavailable outside the his He testified that rehabilitation as good anybody “[a]s was or as better as else I ever He de- have seen.” scribed the Defendant as “head and shoulder above inmate I know.” He that if prison stated released from the Defendant be a would I “model citizen. have no fear of He would a wonderful man to him. be society. in I be our believe this man would save lives for he what already just amazing.” has and can I gone through, what he do think Ingle Ken is the Abuse at Program Supervisor Substance ¶91 Prison, Montana State has conducted close to 2000 alcohol as- who parol sessments in and cases and 3500 alcohol assessments probation that, “ofthe men that I met since I have been at overall. He testified we, Prison, I hope Montana State Vern Kills On is what as bring through system.” can about our correctional taxpayers, drug of the alcohol or counselors to whom the Defendant None gave during years imprisonment has the ten ofhis exposed been over slightest suggestion consumption return to the he would alcohol prison. if he released from preceding para- in the In addition to the counselors referred to
graphs, bakery manager, whom Defendant has worked dur- with incarceration, ing housing manager his and his unit called as were prison employees part Other were interviewed as of the witnesses. All in their of the presentence investigation. praise were unanimous years in a inmate no infractions over ten Defendant as model by ap- at the and all performed prison who constructive role who has been rehabilitated from life set motion own pearances abuse, depend- and his adulthood neglect, poverty, childhood of ence on alcohol. sum, more not to demonstrate that at In could have been shown life, should be allowed point
least in his Kills On at some Vernon give them the to appear parole opportunity to before the board and rehabilitation, many years imprisonment, consider whether after administration and the reha- positive prison contributions he “without detriment to of other inmates could be released bilitation community’ willing and “that he is able and prisoner abiding obligations fulfill the of a law citizen.” ignored presented the evidence Defen- The District Court findings re- sentencing hearing and resurrected discredited dant’s led to his in the events which garding participation the Defendant’s its conclusion that he should be imprisonment support order Therefore, that that conclusion was ineligibile parole. I conclude evidence findings supported by are not substantial based which I in this dissent opinion, For the reasons set forth clearly are erroneous. I would reverse Dis- majoritys contrary. conclusion to the from the *25 during determination time the remainder that at no trict Court’s life, Vernon life, remainder ofhis should regardless ofhow he lives the rejoin society. eligible Kills On be