No. 81-110 IN THE SUPREME COURT OF THE STATE OF MONTANA 1981

DUNCAN PEDERMcKENZIE, JR., Petitioner and Appellant,

VS. GLENN OSBORNE, Sheriff of Cascade County, Montana, JAMES BLODGETT, Acting Warden, Montana State Prison et al., Respondent.

Appeal from: District Court of the Eighth Judicial ~istrict, In and for the County of Cascade. HonorableH. William Coder,Judgepresiding. Counsel of Record: For Appellant: Barney Reagan argued,Cut Bank,Montana Charles L. Jacobson, Conrad,Montana Timothy K. Ford, Seattle,Washington John C. Boger,New York,New York For Respondent: Hon. Mike Gzeely,Attorney General, argued, and

Chris Tweeten,Assistant Attorney General, argued,

Helena,Montana Douglas L. Anderson,CountyAttorney, Conrad,Montana

Submitted: June 8, 1981 Decided: October 29, 1981 ~iled: 

### OCT

## 29

## 198f 

# p. 7* ClerkMr. Justice John C. Sheehy delivered the Opinion of the Court. Appeal from an order of the District Court, Eighth Judicial District, Cascade County, denying the petition of Duncan Peder McKenzie, Jr. for relief under section 46-21- 101, et seq., MCA (post-convictionrelief) and section 46- 22-101, et seq., MCA (habeascorpus)

# . Defendant Duncan Peder McKenzie, Jr. was convicted of the crimes of deliberatehomicide and aggravated kidnapping by jury verdict in the District Court of Cascade County and thereafter was sentenced to death. The convictions and sentence were affirmed on appeal by this Court. State

### v. McKenzie (1977),171Mont. 278, 557 P.2d 1023 (hereafter McKenzie - I). Thereafter, the United States Supreme Court granted certiorari,vacated this court's judgment and remanded the cause to us for further consideration in light of Patterson

v. New York (1977),432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d

On remand to this Court,we gave consideration to the entire case, saying: "Wehave reconsidered the entire case, not only in the light of Patterson,but aiso on all issues raised in the original appeal to this Court. This opinion constitutes this 

## - Court's judgment in the entire case following remand." Statev. McKenzie (1978)

## , 177 Mont. 280, 288, 581 P.2d 1205, 1210 (McKenzie 11). - Following our affirmance of the conviction and sentence in McKenzie - 11, the defendant sought relief under the Sentence Review Division of this Court,under the provisions of section 46-18-901, et seq., MCA. His petition for review there was denied. His attempted appeal of that decision to this Court was also denied, since no appeal is provided in our statutes from decisions of the Sentence Review Division.Defendant again petitioned for certiorari to the United States Supreme Court, and itwas granted. The casewas again remanded to us for further consideration in the light of the United States Supreme Court decision in Sandstrornv. Montana (1979),442 U.S. 510, 99 S.Ct. 2450, 61L.Ed.2d 39. The remand citation is McKenzie v. Montana (1979),443 U.S. 903, 99 S.Ct. 3094, 61L.Ed.2d 871. When the case came to us on the second remand, this Court again gave full consideration to the case, again saying: "Wehave reconsidered the entire case,not only in the light of Patterson and Sandstrom,but also on all issues raised in the original appeal. This opinion constitutes this Court's judgment in the entire case following remand." 608 P.2d 428, 436, 37 St.Rep. 325, 328. The report of our third consideration is in State 

### v. McKenzie (1980),

### -Mont. 

## , 608 P.2d 428, 37 St.Rep. (hereafterMcKenzie 

## - 111). Following McKenzie 111,defendant again sought certiorari from the United States Supreme Court,but his petition was denied. McKenzie v. Montana (1980)

### , -U.S. 

## , 101 S.Ct. 626, 66 L.Ed.2d 507 (JusticesMarshall and Brennan dissenting). Having thus exhausted the appellate process, McKenzie

on January 5, 1981, filed in the District Court of the Eighth Judicial District,his petition for post-conviction relief or habeas corpus. That is the petition with which we

are now concerned. It is from the denial of that petition thatwe now enter upon McKenzie 

### - IV. Counting the defendant, there are presently in Montana three persons facing the sentenceof death following their criminal convictions by juries. All three cases have been before this Court on appeals from denials of post-conviction relief in recentmonths. Colemanv. Montana (1981),Mont

# . I 

### -P.2d 

### - 

## , 38 St-Rep.1352, and Fitzpatrick v. Montana (1981),

### - Mont. P.2d 

### , 38 St.Rep. -I 

### - - 1448 (Fitzpatrick

## - 1111, have already preceded this opinion. In the two other cases, some identical issueshave been decided. We will rely on and refer to them to some extent in this opinion, where the discussions are pertinent. One of the issues that has arisen in all three cases, and the first issuewe come to here, is the extent of review to which the defendant is entitled under post-conviction relief on matters that have been raised and litigated in the

course of the appellateprocess. We state that the extent of review is the first issue, although in the briefs of both McKenzie and the State, the first question raised iswhether this Court has jurisdiction of an appeal from a decision of the District Court in a post-conviction relief case, under section 46-21-101, et seq., MCA. Both parties concede that either party has a right to appeal from a district court order entered on such

a petition under section 46-21-203,MCA. We agree that an appeal lies in this case. With respect to the extent of our review,and indeed of the review of the District Court, McKenzie contends in this case that the ~istrict Court erred in refusing to review issues raised by McKenzie in his petition,by holding that the previous decisions of this Court in the McKenzie cases raised a "res judicata bar" and "that issuespreviously considered on direct appeal are not appropriately raised in this petition." McKenzie contends that the misapplication by the District Court of res judicata principles to the post-conviction action affected the entirety of the District Court's decision and for that reason should be reversed.The State responds that McKenzie is relying on dicta found in earlier cases in this Court and the true rule is that this Court will refuse to reconsider issues on which it has previously ruled; that the Post-Conviction Relief Act is intended only to assure that a convicted felon has an opportunity, one opportunity, to presentmaterial issues affecting his conviction. In the most recent Coleman case, supra, 38 St.Rep. at 1359, this Court held that res judicata cannot be applied to deprive a convicted defendant of his right to file a postconvictionpetition, but the rulemay be used to bar the rehearing of issues already litigated, citing Sanders v. United States (1963), 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148. Again, in themost recent Fitzpatrick case, this Court noted that the District Court had granted the State's motion to dismiss six of Fitzpatrick'sclaims on the ground that the claims had been previously decided on the merits and

were res judicata. In Fitzpatrick, 38 St.Rep. at 1451, this Court held that the decision of the district judge not to reviewpreviously litigated issues would not be disturbed absent a clear showing of abuse of discretion, again relying

on Sanders, supra. McKenzie relies here upon dicta contained in State v. Standley (1981),

### -Mont

# . , 626 P.2d 248, 38 St.Rep. 522, and In Re McNair (1980), Mont

# . , 615 P.2d 916, 37 St.Rep. 1487. In those cases,we stated that a petition for post-conviction relief under section 46-21-102,MCA, is not subject to objectionsbased on res judicata, laches, or the statutesof limitation. Nonetheless, in those two cases, post-conviction reliefwas denied, in McNair for a delay of 8 1/2 years in asking for the relief, and in Standleyfor a delay of 25 years. In McNair, we said such a delay raised the question of good faith on the part of the petitioner and in Standley,we pointed out the impracticability of retrial of Standley if his originalplea of guiltywere allowed to be withdrawn. Nonetheless, in Spurlockv. Crist (1980), Mont

# .

, 614 P.2d 498, 501, 37 St.Rep. 1146, 1149,we refused to consider in a habeas corpus proceedings in this Court issues that had been previously argued and decided on appeal. In In Re Quigg (1976),168Mont. 512, 544 P.2d 441, cert.denied 425 U.S. 994, 96 S.Ct. 2207, 48 L.Ed.2d 818

on a netition forpost-conviction relief,we.refused to consider issuespreviously ruled on in the appeal. The seeming double-mindedness of our stances on this point ismore illusory than real. We cannot fault counsel for the defendants, whose duties are to explore every nuance of legal defense on the part of their clients, consonant with ethics and the proprieties of law, in raising such issues. It should be clear, however, that the broad statements made inMcNair and Standley, supra, are not to be followed here. To be clear about it,we do not reject our statements in Standley and McNair, supra, that res judicata, laches and statutesof limitations are not a bar to post-conviction relief,or to habeas corpus, in a proper case. We do say that the concept of finality, when the appellate process has been exhausted, or the judgments of conviction have become final,must be respected as to issues which have been fully and finally litigated. Neither the district courts nor we are required to turn over ground already plowed, even in death penalty cases. Successivemotions and petitions directed again and again to the same issues serve no judicial, social or individual purpose.The problem of post-conviction relief as affected by the finalityof judgments has not escaped the attention of theAmerican Bar Association in its Standards for Criminal Justice (2ded.). Ithas adopted a standard that deals with post-conviction applications in the same judicial system that conducted the original prosecution, as for example,a state prisoner seekingpost-conviction relief in the state courts. Standard 22-6.1., ABA Standards for Criminal Justice

(2ded.)

# .We adopt from that standard, as rules to be followed by district courts in this and like cases, and by us for decision in this case, the following: (A) Any issue that has been fully and finally litigated in the proceedings leading to the judgment of the conviction should not be relitigated in post-convictionproceedings.

(B) An issue should be deemed fully and finally litigated when the highest court of the state to which a defendant could appeal his right has ruled on the merits of the question.

(C) Finality,when raised and shownby objection or affirmative defense on the part of the state is a bar to the relitigation of fully and finally litigated issues. We will further follow the sameABA Standard by determining that claims advanced in post-conviction applications shallbe decided on their merits, even though they might have been, but were not fully and finally litigated in the proceedings leading to judgments of conviction, unless barred because of abuse of process. Abuse of process occurs where an applicant raises in post-conviction proceedings a factualor legal contentionwhich the petitioner deliberately

or inexcusably failed to raise in the proceedings leading to conviction, or having raised the contention in the court, failed to pursue the matter on appeal. (ABAStandards for Criminal Justice (2ded.) Standard 22-6.1.) Having statedthose rules, which we considerwere implicit in our former rulings, it is clear that this Court should not and will not consider previously-litigated issues in this appeal and that

we will sustain the DistrictCourt for refusing to consider fully and finally litigated issues in the post-conviction proceedings before it. See our discussion on this point in Fitzpatrick 111, 38 St-Rep.at 1450-51. 

## - Having so determined,we proceed to examine the issues raised inMcKenzie's petition forpost-conviction relief. Itwill be noted that some of the issues have been considered by this Court not once but two and three times. In all the annals of criminal justice in this state,we find no case in which 

### a single defendant has received more tender legal care

(using "tender"in the sense of careful and sensitive handling). I. Search and Seizure Petitioner contends that the District Court, in considering his application for post-conviction relief,did not address his factual allegations respecting: (1) unwritten

sworn testimony purporting to support the issuance of search warrants; (2) the overbreadth or lack of specificity in the search warrant; and, (3) lack of probable cause for issuing the search warrants, and on those bases, contends he should have a hearing. The DistrictCourt refused to consider the issues further because of earlier decisionsby this Court. Firstwe note that at the District Court level, in the criminal proceedings against him, defendantwas granted a hearing on hismotion to suppress the evidence produced by the search warrants and the order of suppressionwas denied. That denial of suppressionwas before this Court at all times when the McKenzie cases were being considered. We further note: (a) issueno. 1 under this heading wasconsidered, fully litigated and decided by this Court in McKenzie I, 557 P.2d at 1034, 1035;McKenzie - 11, 581 P.2d at i211, 1212; and McKenzie 

## - 111, 608 P.2d at 437. (b) issue no. 2 above was considered, fully litigated and decided by this Court inMcKenzie - I, 557 P.2d at 1035;McKenzie - 11, 581 P.2d at 1212, 1213; McKenzie 111, 608 P.2d at 438. (c)issue no. 3 abovewas considered, fully litigated and decided by this Court inMcKenzie 

### - I, 557 P.2d at 1034;McKenzie - 11, 581 P.2d at 1212; and McKenzie 111, 608 P.2d at 437, 438, 439. The claims of the petitioner with respect to the search and seizure category have been fully and finally decided on themerits. The District Court was correct in refusing to grant further hearings relating to those issues. We will not consider the issues further because of the finality of those earlier decisions. The District Court noted in its order denying postconviction relief that counsel for the petitioner had conceded at oral argument that further factual developmentwas not required. Based on this concession,and the voluminous record in this case exploring these issues, the District Court found no denial of a full and fair hearing with respect to search and seizure. We agree. 11. Mental Defect--Trial Bifurcation--Instructions In his application t~ the District Court,petitioner claims unconstitutional error against him in (1)the trial court's refusal to grant a bifurcated trial on the issue of his insanity/diminished mental capacity to commit the crime;

(2)in refusing to appointpsychiatric experts to assist defense counsel and to testify for the defendant unless he submitted to an interviewwith an expert appointed by the court and unless reports of the interviewby the expertswere submitted to the court before the testimony was presented; and (3)in admitting the testimony of the prosecution's psychiatric expert relating to petitioner's exercise of his FifthAmendment rights to remain silent in such interview. Petitioner's brief in this Court expands those allegations to argue further (4)itwas error for this Court to rely on instructions given to the jury to cure the alleged error in permitting the prosecution's psychiatric expert to testify that defendanthad remained silent. (a) The petitioner offers no authority under our law that a defendant as amatter of constitutional law is entitled to a separate jury trial on the issue of insanity

or diminishedmental capacity to commit the crime charged. Section 95-507(c),R.C.M. 1947, in effect at the time of petitioner's trial (nowsection 46-14-213(1), MCA), contemplates the issue to be decided "upon the trial." This Court held in State v. Olsen (1971),156Mont. 339, 343, 480 P.2d 822, 824, that a defendant who gives notice of insanity as a defense is not entitled to a bifurcated trial. We hold the same rule applicable to a defense of mental disease or defect. (b) With respect to issue no. 2 in the above heading, there is a division of authority as to the right of an accused to expert investigation and psychiatric help under his Sixth Amendment rights, but the Ninth Circuit has held refusal of expert help does not violate due process through the Sixth and Fourteenth Amendments in stateproceedings absent a showing of prejudice. Mason v. State of Arizona

(9thCir. 1974), 504 F.2d 1345. Here, petitioner has not alleged or shown any prejudice that resulted to him from the denial by the District Court in the criminal proceedingsof themotion to appoint psychiatrists to aid counsel in the defense. (c) Under section 95-507, R.C.M. 1947, then in effect, (nowsection 46-14-213,MCA), it is provided that upon trial, any psychiatrist who reported under section 95-505, R.C.M. 1947, (nowsections 46-14-202 and 46-14-203, MCA) may be called by either party. The statuteprovides that the jurymay not be informed that the psychiatrist was designated by the court or by the superintendent of Warm Springs Hospital. In addition, both the prosecution and the defensemay summon any other qualified psychiatrist to testify who has examined the defendant. In this case, during the criminal proceedings, when the court ordered thepsychiatric interview, counsel for the defendant stated in open court that the defendant would exercise his right to remain silent as to any questions relating to the Lana Harding homicide. His silencewas testified to by psychiatrists at the time of their appearances in court. The District Court, in discussing this issue, in the application forpost-conviction relief, noted that the psychiatric witnesses drew no inference as to guilt or innocence,nor did they suggest such inference to the jury. The court noted that one of the psychiatric witnesses testified that since the petitioner would shed no light on the incident, he presumed the petitioner innocent. The District Court also pointed out that during the petitioner's trial, in court's instruction no. 43, the jury was told that itwas to draw no unfavorable inferences from the petitioner's silence. "In short,' said the District Court, "nothing in the record shows that the State exploited the psychiatric testimony so as to burden the petitioner's Fifth Amendment right to remain silent." We agree and find no prejudice. -11-(d) In connection with issue no. 4 in the above heading, itwas not error for the District Court to require the defendant to submit to a psychiatric interview in this case. Under section 95-505,R.C.M. 1947, then in effect, (now section 46-14-202,MCA) it is provided that the courtmay order such an examinationwhen a defendant has filed a notice of intention to rely on the defense of mental disease

or defect excluding responsibility, or if there is reason to doubt his fitness to proceed, or if there is reason to believe that mental disease or defect of the defendant will otherwise become an issue in the cause. In those circumstances, a courtmay order a psychiatric examination and, as the District Court noted,we stated in State ex rel. Sikora

v. DistrictCt. of 13th Jud. Dist. (1969),154 Mont. 241, 245, 462 P.2d 897, 899, that the constitution does not "assure (adefendant)a right to so defend as to deny the state a chance to check into the truth of his position." (e) Further,with respect to issue no. 4 under this heading,whether it is error to rely on the general jury instructionsto offset the effect of the psychiatrists testimony that the defendant remained silent during his examination,and the further contention that it is not sufficient to rely on such general instructions because there is an implied admission of guilt when a defendant relies on insanity/diminished mental capacity, in McKenzie 111, 608 P.2d 455, 456, 457, this Court discussed fully the - careful instructions given by the District Court in the criminal proceedings. We have already noted that the District Court specifically informed the jury that no inference was to be drawn from the defendant's remaining silentduring a psychiatric interview. We therefore confirmthe holding of the District Court with respect to the issues raised under this heading on petitioner's application forpost-conviction relief. Before leaving this set of issues, however,we point out that inMcKenzie - I, 557 P.2d at 1041, 1042, 1043, and again inMcKenzie - 11, 581 P.2d at 1215, this Court answered the petitioner's attacks on the constitutionality of our statutes relating to the notice requiredwhen a defendant intends to rely on an insanity/diminished mental capacity defense, and the procedures to be followed thereunder. 111. Admitted Exhibits--Conduct of Trial Petitioner's application forpost-conviction relief also contended that he was denied constitutional rights in

(1)the admission by the court into evidence in the criminal proceedings of inflammatory photographs of the victim, (2) in the DistrictCourt's changing of the order of trial and refusal to hold subpoenaed witnesses until the defendant's

case in chief, (3) inpermitting spectators to use recording devices in the courtroom, (4) in allowing an inflammatory and circus-like atmosphere to exist in the courtroom, and

(5)in allowing family and friends of the victim to make emotional expressions toward the petitioner in the presence of the jury. (a) The contentionwith respect to inflammatory photographs was considered, fully litigated and decided by this Court inMcKenzie 11, 581 P.2d at 1218, and inMcKenzie

(b) This Court found no error in allowing FBI agents to give expert opinion testimonyprior to the completion of the chain of evidence upon which the opinionwas based, in McKenzie - 11, 581 P.2d at 1219, and in McKenzie 111, 608 'P.2d at 444. Petitioner's contention that the trial court in the criminal proceedings erred in failing to hold FBI agents for the duration of the trial was treated in McKenzie 111, 608 P.2d at 446, 

### 447. These issues have therefore 

### - been considered, fully litigated and decided. (c) The tape-recording issue was considered, fully litigated and decided inMcKenzie - I, 557 P.2d at 1037; McKenzie 

### - 11, 581 P.2d at 1124, 1125, and McKenzie 111, 608 P.2d.at 446. (dand e) With respect to petitioner's contentions that a circus-like atmosphere prevailed in the criminal trial proceedings, and that the members of the familywere allowed to give expression to emotional feelings and comments in the presence of the jury,we need only say there is no record in all the voluminous transcripts here to support those contentions,nor was a single.objectionadvanced by the petitioner's counsel in the criminal proceedings on those points. The District Court, in considering the application for post-conviction relief,pointed out that the jury had been instructed to decide the case solely upon the evidence,without regard to sentiment, conjecture, sympathy

or compassion,and nothing in the record discloses the jury failed to follow that instruction due to the conduct of the trial spectators. We find no error therefore, on these points raised without support in the record. IV. Sandstrom Instructions The petitioner contends that he was denied due process in that (1)the trial court's instructions to the jury directed the jury to find elements of the offenses charged by the use of "presumptions"and "inferences"which shifted the burden of persuasion to the defendant and allowed the jury to adopt inferences which did not followbeyond areasonable doubt from the facts onwhich theywere based; (2)that the instructions contained numerous erroneous examples which (3)were designed to lead the jury to the inescapable conclusion of petitioner's guilt. In brief, petitioner contends that he has been treated inconsistently with our decision in Statev. Wogamon (1980),-Mont

# .

, 610 P.2d 1161, 1165, 37 St.Rep. 840, 846.

(a) InMcKenzie 111, 608 P.2d at 456, et seq., this Court fully reviewed petitioner's contentions that his conviction and sentence should be set aside in the light of Sandstrom v. Montana (1979),442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39. Thematter has been fully considered, litigated and decided by this Court. (b) Petitioner's contentions that the instructions contained erroneous examples and were designed to lead inescapably to defendant's guilt were part and parcel of our consideration under the Sandstrom case and McKenzie 111. Petitionerhas not attempted to show in any way how the examples led the jury inescapably to his guilt and we find

no such design, intentional or otherwise. (c) We do not agree that the holding inMcKenzie I11 is inconsistentwith our holding inWogamon. InWogamon, we pointed out that the United States Supreme Court decision in Sandstrom had resulted in a spate of appeals to this Court claiming instructional error. We further showed inWogamon that in all of the cases brought to us, except for the original Sandstromdecision and Wogamon, we had found no reason to set aside the convictions in those several cases
on the basis of the Sandstrom instruction. Wogamon, 610 P.2d at 1164. Nor can itbe said that we have given petitioner a differentkind of legal treatment than we providedWogamon. InWogamon,we applied the principles declared by the United States Supreme Court in-In Re Winship (1970),397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368, and in Mullaney v. Wilbur (1975),421U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508. We also declared that in finding harmless error in a Sandstrom instruction, "wemust be able to agree as a Court that the offensive instruction could not reasonably have contributed to the jury's verdict." Wogamon, 610 P.2d at 1165. In the petitioner's case, inMcKenzie 111,we found that the evidence of McKenzie's guilt was so overwhelming that the Sandstrom instructions could not possibly have contributed to petitioner's convictbnand that therefore the instructionswere harmless error. The position of this Court inMcKenzie I11was not disturbed when the United States Supreme Court refused certiorari from the decision in McKenzie 111 (1980),449 U.S. 1050, 101 S.Ct. 626, 66 L.Ed.2d 507. True, two United States SupremeCourt justices disagreed in a dissenting opinion. Nonetheless the majority of the Supreme Court found no reason when certiorariwas sought with respect to McKenzie 111 to disturb the reliance of this Court on Milton v. Wainwright (1972),407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1, to the effect that the constitutional infirmity is excluded where overwhelming evidence supports the conviction. Therefore, the DistrictCourt did not err in denying the petitioner's contentionsunder the Sandstrom instructions. V. Sufficiency of the Evidence Under this contention,petitioner claims that this court improperly rejected inMcKenzie 111, 608 P.2d at 447- i48,his claim that there was insufficientevidence that Lana Harding's death resulted from a kidnapping or that she

was tortured prior to her death. He further contends in brief that the standard applied by this Court inmaking that -16-determination has been repudiated as a matter of federal constitutional law in Jackson v. Virginia (1979),443 U.S. 307, 99 S.Ct. 2781, 61L.Ed.2d 560. (a) Of course, the issue of the sufficiency of the evidence to support the verdicts that the defendant committed deliberatehomicide by torture and that as a result of her aggravated kidnapping, Lana Harding died, has been fully considered, litigated and decided by this Court in McKenzie 111. 608 P.2d at 447-448. - In Jackson, it was stated that based on In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368, the critical inquiry on review of the sufficiency of evidence to support a criminal convictionmust be not simply to determine whether the jurywas properly instructed on reasonable doubt, but to determine whether record evidence could reasonably support a finding of guilt beyond a reasonabledoubt. Itwas stated that the relevant question is whether, after viewing the evidence in the lightmost favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond reasonable doubt, repudiating the "noevidence" rule. Jackson, 443 U.S. at 318-320. The contention that inMcKenzie 111, this Court applied

an incorrect standard in determining the sufficiency of the evidence isperhaps a new issue, though implicit in our earlier statements respecting the overwhelming evidence of criminal intent is a finding of the sufficiency of the evidence. It ispainful to repeat, that in the lightmost favorable to the State, the testimony of Dr. Pfaff was that Lana Harding was initially assaulted by means of attempted strangulationwith a rope. She lived from 30 to 90minutesthereafter, until she was struck on the head with a heavy object. The State contended the heavy objectwas the manifold thatwas found in the defendant's pickup. She died within 2 or 3minutes of that blow, which opened her skull and exposed her brain tissue. In addition, therewere five major and a number ofminor wounds to the head which may have been inflicted by the same heavy instrument or a lighter one. Other lightermetal objects were found in petitioner's pickup. Dr. Pfaff testified that Lana Harding may ormay not have been conscious after the initial attempted strangulation, but there aremultiple wounds which give evidence that she was in fact conscious. Shehad received blows to the top of the head, over the front part of her face and on the right side. The backs of both of her hands

were bruised which would indicate that she was attempting to ward off the blows of her assailant. These wounds, contusions and abrasions are evidence beyond a reasonable doubt to any rational trier of fact that shewas indeed tortured. That the aggravated kidnapping resulted in her death is equally evident from the testimony. Dr. Pfaff testified that the infliction of themajor wound to her head which caused her death would have resulted in extensive bleeding. He also stated that the absence of a large amount of blood in an areawould indicate that the largewound was not inflicted in that area. No appreciable amount of blood was found in the teacherage in which she resided. However, a large amount of her blood was found at a place near the teacherage where petitioner had parked his pickup on the night of January 21, 1974. Her blood and brain tissue were found in the back of the pickup. A drag trail led from the teacherage to the place where the pickup had been parked.This is evidence beyond a reasonable doubt that Lana Harding, while still alive,was dragged from the teacherage to the pickup and killed in that area. Again, to any rational trier of fact, the evidence is overwhelming that her aggravated kidnapping resulted in her death. We find no support forpetitioner's contention that this Courthas applied an insufficient constitutional standard under Jacksonv. Virginia, supra, or under any other case thatwe are aware of. VI. Unanimous Verdict 

### - Under this contention, petitioner argues he was denied the right to a unanimous verdict of the jury as to his guilt

or innocence as to each of the offenses charged; and, that the trial court, by instructionsof law submitted to the jury listing elements of the offenses in the alternative, permitted petitioner's conviction without unanimous agreement that he had committed any one of the specific acts which constituted the crimes with which he was charged. He contends that the trial court refused an offered instructionwhich would have required a unanimous finding of specific acts constituting a specific offensebefore a verdict of guilty could be rendered and that the trial court failed to submit proper verdict forms which would have allowed the jury to make a specific finding of guilt or innocence as to each of the specific crimes charged. The District Court, in disposing of this contention, found no federal constitutional right to a unanimous verdict in criminal jury trials, and under the state constitution, Mont. Const., art. 11, 5 26, found that the unanimous jury verdict provisionwas complied with since the trial court instructed the jury that all 12must agree to the "findings"and "decisions" which constituted their verdict. The District Court further determined that each theory presented to the jury

was supportedby substantial evidence, so that no possibility existed that the evidence was insufficient to support either verdict. Under these circumstances, the District Court concluded, the failure to require the jury to specify the theory onwhich it convicted did not deprive the petitioner of his right to a unanimous verdict. Here, the jury by itsverdict, found the petitioner guilty of deliberate homicide, and found that homicidewas by means of torture; in another verdict, it found petitioner guilty of aggravated kidnapping, and found that the aggravated kidnapping resulted in the death of the victim. The jury had been instructed that "all twelve jurors must agree to the decision, including the additional findingsyou are asked tomake on the Guilty of Deliberate ~omicide verdict form and on the Guilty ofAggravated Kidnapping verdict form." When the verdicts were returned, the jury was polled

as to each verdict and each of the said findings at the request of defendant's counsel and each of the verdicts and findings were affirmed. Theseverdicts and findings are not within the ambit of United States v. Gipson (5thCir. 1977), 553 F.2d 453, or State v. Green (19801,94Wash.2d 216, 616 P.2d 628, for the reason that in this case, as distinguished from the cases onwhich petitioner relies, the evidence is sufficient here to support the jury verdict under any and all possibilities under the instructions. It is idle to speculate in this case, under the instructions of the court and the overwhelming evidence, that there is any possibility that the verdicts or the findings in this case were less than unanimous.VII. Equal Protection Petitioner claims denial of equal protection under the FourteenthAmendment of the federal constitution,and like provisions of the state constitution, in that the trial court, the District Court on his application for postconviction relief, and this Court have denied him the benefit of established rules of state law afforded to other criminal defendants in our decisions on search and seizure. Petitioner also objects to our use of the harmless error rule on the Sandstrom instructions. In brief, he contends that he has been furtherdiscriminated against in that his is the only case of a sentence of death under a statute now repealed or superseded. Basically,petitioner is using the Fourteenth Amendment device to raise again issueswhich have otherwisebeen fully litigated in this cause and decided against him. We have upheld the validity of the arrest and searchwarrants,we have explained the application of the harmless error rule under the Sandstrom instructions and we have upheld the validity of the statuteswhich permitted the sentence imposed upon him. McKenzie 

### - 111, 608 P.2d at 450. His contentions that his rights have been discriminated against, when compared to other defendants,or that he has been discriminatorily "classed"are simplywithout merit. VIII. Legality of --- the Death Sentence Petitioner contends he was unconstitutionally sentenced to death in that: (a)his death sentenceswere imposed in violation of the Eighth and Fourteenth Amendments of the federal constitution, in that there were no standards to channel and guide the sentencing discretion of the trial court or to provide safeguards against arbitrary and dis- ' criminatory impositionsof the sentence of death; (b)hissentence was disproportionate to the sentence imposed in similar cases and he was given no opportunity to show the disproportionality of his death sentence; (c)his sentence of death for aggravated kidnapping which resulted in the death of the victim was constitutionally disproportionate because the jurywas not required to find that he deliberately took the life of another; (d)expert testimony agreed that petitioner suffered from a "psychiatricdisorder" which should have been amitigating circumstance; (e)the sentencing court's findings of aggravating factors are unconstitutionally vague and no standards existed by statute or case law to guide the sentencing discretion;and, (f)this Court improperly upheld his sentencebased on aggravating factorswhich were not listed by statute. Petitioner further contends that he should not be required to bear the burden of establishing mitigating circumstances; that he is entitled to a jury trial on themitigating facts and the sentences; that his sentenceswere based on erroneous factual findings drawn from incompetent, unreliable evidence, with no opportunity to rebut; that theplea agreement was breached to his disadvantage; that he is the only person sentenced to death under the 1974 Montana capitalpunishment law; and, that the death penalty is discriminatorily applied in Montana against impoverishedmale defendants accused of killing caucasians, solely upon the grounds of race,poverty and sex. He asserts

no legitimate state interest is served by the death sentence, thathanging is cruel and unusual punishment. InMcKenzie 111, 608 P.2d at 448-451,we held that the statuteunder which petitioner was sentenced to death was constitutionalwhen considered in the light of Furmanv. Georgia (1972),408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 

### 346,and Gregg 

### v. Georgia (1976),428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859. The constitutionality of the statute has been fully considered and decided by us. We turn now to consider the attacksmade by McKenzie with respect to the sentence imposed upon him, the death penalty. 

### (I) McKenzie states again that the death penalty laws applicable in his case are arbitrary and unconstitutional in that his sentencewas imposed under a statute which "explicitly permitted discretionary death sentencing, without standards to channel and guide sentencing discretion or any other safeguard against arbitrary and discriminatory imposition of the sentenceof death 

# . .

# ."

InMcKenzie 111, this Court discussed these claims by the petitioner, and we found that the Montana statutory scheme in existence at the time of the crimes herein afforded defendant the procedural safeguards necessary to protect his substantive rights to be sentencedwithout arbitrariness or caprice, and in accordance with the United States Supreme Court cases of Jurek 

### v. Texas (1976),428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929, Proffittv. Florida (1976),428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913;and Gregg v. Georgia, supra. The issue therefore of the constitutionality of the sentencing statutory schemehas been fully litigated and decided. McKenzie 111, 608 P.2d at 448-451. (2) McKenzie claims there is no meaningful review provided in the Montana statutory scheme to guard against passion and prejudice, arbitrariness,or disproportionality in his sentencing. In McKenzie 111,we pointed out that prompt judicial review of his death sentencewas provided both by appeal tothis Court and by review in the sentence review division of this Court. This issue has been fully considered, litigated and decided. McKenzie 111, 608 P.2d at 450. 

## - (3) McKenzie claims that in his review before the Sentence Zeview Division, he was given no opportunity to offer evidence and the Sentence Review had no standards to make such a review. It is clear from the record that when he was before the sentence review division,McKenzie presented no evidence, nor offered to present any evidence with respect to the proportionality or arbitrariness of his sentence. Instead, he attacked the legality,rather than the appropriateness of his sentence. The functionof the Sentence SeviewDivision

was to consider the appropriateness of his sentencewith respect to him as an individual offender, and as to the particular offense involved. McKenzie 111, 608 P.2d at 450. Under section 46-18-904,MCA, the sentence review division is given full authority to review the judgment so far as it relates to the sentence imposed, to either increase

or decrease the penalty. In reviewing the judgment, the division may consider other records, documents or exhibits relevant to such reviewproceedings. When McKenzie appeared before the Sentence Review Livision,he requested only that the division obtain from all 56 District Court clerks the records of sentencing in every deliberatehomicide and aggravated kidnapping case since 1972. The Sentence ~eview Divisiondenied this request. The ~istrict Court, in considering the application for post-conviction review, held that a proportionality review is sufficient if the Sentence Review Division considers the records of appealed cases. The reviewdivision did so consider and we agree with the District Court's conclusion.(4) McKenzie attacks his sentence on the ground that it is disproportionate to the crimes for which he was convicted and upon the further ground that the jury did not find that he had deliberately caused the death of another. McKenzie contends that the death penalty is disproportionate to the offense of aggravated kidnapping. In State

v. Coleman (1979), Mont. 

### , 605 P.2d 1000, 1017, 36 

### - St-Rep.1134, 1150, cert.denied, 446 U.S. 970, 100 S.Ct. 2952, 64 L.Ed.2d 831,we pointed out that the United States Supreme Court in Gregg, made it clear that "when a life has been taken by an offender [itcannot be said] the punishment

[ofdeath] is invariably disproportionate to the crime." 428 U.S. at 187, 96 S.Ct. at 2932, 49 L.Ed.2d at 882. We distinguished Coker v. Georgia (1977), 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982, as being relevant only to crimes for which the penalty has been imposed which did not result in the loss of a life. InMcKenzie 111, 608 P.2d at 459, as the District Court noted in considering petitioner's application for post-conviction relief,we found the evidence on the issue of intent to be overwhelming, uncontradicted, and permitting of but one rational conclusion-that McKenzie intended to kidnap and kill the victim. (5) McKenzie claims that his sentence of death is disproportionate to sentences imposed in similar cases. In Coleman, 605 P.2d at 1021,we noted that the crime of aggravated kidnapping has been a part of our statutory law only since 1973 and that we were necessarily confined to a review of cases since that time, which we found sufficient, though not large in number. This casewas used in Coleman

as a comparative case and we look to Coleman in this case as

a comparative case. We also find State v. Fitzpatrick(1980) 

### -Mont. 

## , 606 P.2d 1343, 37 St.Rep. 194, cert.denied, 449 U.S. 891, 101 S.Ct. 252, 66 L.Ed.2d 118, to be suitable for comparison. Again, in Fitzpatrick, 606 P.2d at 1361, this casewas used as a comparative case in discussing the Fitzpatrick sentence of death. Our discussions of the similarity of these cases and the proportionality of the death sentence imposed as to Coleman and Fitzpatrick, as well as to McKenzie, and our discussion of State v. Buckley

(1976),171Mont. 238, 557 P.2d 283, appearing in Fitzpatrick, 606 P.2d at 1362, indicate that McKenzie is under a sentence that is notdisproportionate to sentences that have been imposed in similar cases. (6)McKenzie attacks his death sentenceon the ground that he was suffering from amental disease or defect denominated a "psychiatricdisorder" which he claims to be a mitigating circumstance. The District Court in considering the post-conviction application, stated: "Thepresence of a personality disorder does not automatically immunize a defendant from the death penalty.

### " The overweighing factor against the petitioner on this contention is that the jury did not find that he had suffered from a mental disease which prevented him from forming the specific intentnecessary for the charged offenses. Even the District Court's sentencing order in the criminal proceedings shows that the factorwas considered and found to be insufficient. (7) McKenzie attacks his death sentence upon the ground that it is based on findings of aggravating factors which are unconstitutionallyvague and open-ended with no channel or guide to the sentencing discretion.This is simply anotherway of attacking the constitutionality of the Montana sentencing statutory scheme which

aswe have indicated above is constitutionality sound. The crime of "homicideby torture" as defined by the court's instructions and approved by us in McKenzie 111, 608 P.2d at 445, is sufficiently definite to prevent an overbroad application of the factors. Substantial evidence showed that the victim died as a result of an aggravated kidnapping. McKenzie 111, 608 P.2d at 447-48. There is no merit in this contention. (8) McKenzie attacks the sentence upon the ground that the sentencing judge relied on the aggravating factors other than those found in our statutes. The District Court, in considering the post-conviction application, stated that the jury had found two specific statutory aggravating factors and saw no reasonwhy the sentencing court is required not to consider a wide range of factors in determining whether the aggravating circumstances

are outweighed by mitigating factors. For this reason, the District Court determined, in denying McKenzielsapplication for post-conviction relief, that itwas not improper for the District Court to consider: (1)the petitioner's failure to present evidence to "mitigatehis conduct," (2)his conviction for rape, (3)his purported "dangerousness," (4)his antisocial behavior, (5)the small number of years he would be required to serve if a 100 year sentencewere given, (6) whether rehabilitation of petitioner was not possible; and,

(7)whether he must be executed for the protection of society. We agreewith the DistrictCourt. All of these factors considered by the sentencing court bear on the aggravating factors found by the jury and properly relate to the propriety of the sentence of death.(9) McKenzie claims that his sentence of death is based on findings from incompetent evidence, some of which

was not revealed to him before trial, and against which he had no opportunity for rebuttal. InMcKenzie 111, 608 P.2d at 441, 442,we rejected these contentions as to the validity of his conviction. We similarly reject these contentionswith respect to the validity of his sentence. (10) McKenzie attacks his sentence upon the ground that the District Court ignored or violated a plea agreement for a lesser sentence. In McKenzie 111, 608 P.2d at 439,we found that no plea bargain or agreement existed. This issue has been fully litigated and decided and is not a bar to the sentence imposed upon McKenzie. (11) McKenzie attacks his death sentence because of his claim that he will be the only person executed under the 1974 capitalpunishment law, and that there is no rational basis to distinguish his case from others. Again we have repeatedly stated that the statutory scheme for capitalpunishment as applied to McKenzie was valid, and that his sentence is not disproportionateas to the facts, the crime or his character,and we therefore reject this contention. (12) McKenzie's contention that the Montana legislature has subsequently amended the capitalpunishment provision so

as to provide considerationof both aggravating and mitigating circumstances,and that no such provisions existed for his benefit, is again an attack upon the constitutionality of the statutory sentencing scheme in effect with respect to him which we have previously rejected.(13) McKenzie attacks the death sentence upon the ground that it isbeing imposed both inMontana and the United States against impoverished male defendants accused of killing caucasians upon the grounds of race,poverty and sex, in a discriminatory pattern and practice. In Fitzpatrick 111, 38 St.Rep. 1448, 1454,

### we discussed this issue. We find no basis for this contention and petitioner has alleged none. Nor has petitioner offered any proof of such contention. (14) McKenzie further attacks his sentence upon the ground that no valid state purpose is served in imposing the penalty upon him. In Gregg, 428 U.S. at 183, two justifications for capital punishmentwere noted: retribution and deterrence. The applicabilityof these as justifications present complex issues,properly left for legislativedetermination,and it is with the legislature that this Courtwill leave that determination. There is no basis on that ground forpostconviction relief. (15) McKenzie attacks the imposition of a death penalty by hanging as cruel and unusual punishment. We discussed this issue in Coleman - 11, 605 P.2d at 1058-59. The issue has been fully decided by this Court. We come finally to conclude in this case thatpetitioner's application for post-conviction relief in the District Court

was properly denied, and that on appeal to this Court, the decision of the DistrictCourt ishereby affirmed. We remand this cause to the District Court in which the sentence upon the defendantwas imposed, for such further proceedings

as are necessary to execute the sentence imposed upon the petitioner. -29-Justice

WeConcur:

Chief Justice

-7 

### A

~on.\-PlarkSullivan, District Judge, SittingforMr. Justice John C. Harrison

Mr. JusticeDaniel J. Shea and Mr. JusticeFrank B. Morrison, Jr., willfilewritten dissents ata later time.Yr. Justice Frank B. Morrison, Jr., dissent.Mr. Justice B. Morrison, Jr., dissenting: I respectfully dissent from themajority opinion. Numerous issues have been raised inthispost conviction review proceeding. One issue isdispositive. The application for a search warrant did not satisfy constitutional requirements. Therefore, the fruits of the search should have been suppressed. The Montana Constitution, Article 11, Section 11, governs the issuance of a search warrant. That section provides: "The people shall be secure intheir persons, papers, homes and effects from unreasonable searches and seizures. No warrant to search any place, or seize any person or thing shall issuewithout describing the place tobe searched or theperson or thing tobe seized, orwithout probable cause, supported by oath or affirmation reduced 

### - towriting.

### " (Emphasis supplied.) The constitution specificallyprohibits the consideration of oral testimony inestablishing probable cause necessary for the issuance of a searchwarrant. The probable cause must be establishedby a statement under oath and inwriting. The constitutional mandate isclear. There areno exceptions. The magistrate who issued the search warrant inthis

case stated thathe found probable cause based upon the county attorney's affidavitand the testimony of a deputy sheriff. The affidavitof the county attorney is questionable because the county attorneymerely acknowledged thathe signed the instrument. The acknowledgement fails to state that any of the facts statedinthe instrument are true. Nevertheless, this discussionwillproceed assuming that the county attorney didpresent an affidavit to the issuing magistrate.The affidavitof the county attorney did not establish probable cause and itwas necessary for themagistrate to consider the deputy's testimony. The magistrate conceded that the deputy's testimony was the basis for the search warrant. The Supreme Court of Montana concurred. I here offer an excerpt from themajority opinion in Statev. McKenzie (1978), 177Mont. 280, p.2d 

### , for thepurpose of showing factual considerations relevant to the issuance of a searchwarrant: "A summary of the testimony shows Justice of thePeaceWolf testified he customarily swears allwitnesses

## -- though he did not recall swearing the county attorney, he considered him sworn. Deputy Hoover testified he came into town about 4:30 P.M. on January 22, 1974, with directions togo to the county attorney's office; thathe helped the county prepare the affidavitand he then went before Justice of thePeace Wolf and gave sworn testimony in support of the issuance of thewarrants. County Attorney Nelson testified he had been atthe scene with the sheriff and hisdeputies during the afternoon and just prior to his coming to town to getwarrants issued. Atthe hearing, he said inanswer to a question as towhat knowledge he had of the facts: 'Answer. Well, without looking atthe affidavitnow 

## -- I think the firstparagraph or two ismy statement as towhat I determined, that shewas missing and may have been thevictim of foul play but of what naturewedidn't know atthe particular time, and that she resided atthe teacherage.

### ' I' The basis formagistrate Wolf issuing the search warrant is found inthe testimony he gave by deposition asfollows: "Q. Based upon the testimony of Mr. Hoover and this affidavit, you issued a warrant of arrest; A. This iscorrect. "Q. And you issued a searchwarrant? A. That is correct. "Q. Was there any other testimony or informationbrought toyour attention thatwas not included inthe sworn statement of Mr. Jerry Hoover, theDeputy Sheriff, or inthis affidavit? Was there any other evidence brought toyour attention atthat time? A. Not asfar as I can remember."The Supreme Court of Montana inStatev. McKenzie, supra, found that the search warrant was properly issued and in support of this finding said: "Inaddition, the county attorney examined Deputy Hoover before the justice of thepeace as to facts he learned during the investigation. Here, unlike Gray, therewas, in effect, sworn testimony by the county attorney and deputy sheriff inaddition to the affidavit, and the combination thereof established probable 

## -- cause." (Emphasis supplied.) Both the magistrate who issued the search warrant and themembers of the Supreme Court majority who affirmed the issuance of the warrant did so based upon oral testimony. This is specificallyprohibited by the constitution. The only evidence which can be considered toestablishprobable

cause is that evidence which isunder oath and "reduced to writing.

### " There are numerous issues inthis case. One can debate themerits of those issues endlessly. Itisquestionable that therewas an affidavit submitted by the county attorney. Itisdoubtful that a combination of affidavit and oral testimony established probable cause. Itisdoubtful that the items seized during the searchwere adequately described inthe searchwarrant. Atleast these issues arejusticiable controversies about which reasonable people can disagree. I would observe that the statemust be liberally indulged if a reviewing court istofind there was probable cause and that the items seized were sufficientlydescribed inthewarrant. The affirmance of these two aspects of the warrant stretches the law butperhaps not to the breaking point. A finding of probable cause based upon oral testimony cannot be sustainedwithout violating the constitution. This case presents a very clear and trying test for the judicial conscience. The illegally seized evidence showsthat the defendant committed this act. The act, as illustrated by the photographs inevidence, is so debased that any degree of judicial objectivity isdifficult tomaintain. I approach this decisionrealizing that the suppression of the illegally seized evidence may wellresult infreeing

a very dangerous individual. I must confess that the human temptation is to adopt the course taken by themajority. PostMcKenzie I and McKenzie 11, lawyers, inanalyzing the two opinions, have determined that the cases enunciate a new legal principle known as the "clearlyguiltyrule." In other words, the Courtwas countenancing a constitutional violation because the defendant was "clearly guilty." When I took this oath of office I swore to uphold the constitution. To sustaina finding of probable cause based upon evidence which violates a clear constitutionalmandate would violatemy oath of office and would placeme, asa Justice of theMontana Supreme Court, above the law. What I have herein saidisnotmeant aspersonal criticism of my brethren. I know them tobe honorable men 

### -- deeply committed toprinciples of justice. However, inmy judgment, inthis case, they failed tofollow the law. With deep regret, knowing the defendant likely committed thismost heinous actand knowing that this decision, if upheld by the federal courts, cou1.d result inthe defendant going free, I nevertheless must follow the clear constitutional directive. Therefore, I would reverse and remand with directions to the trial court toproceed inconformity with this dissent.STATE V. McKENZIE

No. 81-110

DISSENT OF MR. JUSTICE DANIEL J. SHEA

Dated: January 26, 1982



## $AN2

## 61982 0 

## if @ o/8Ei.,f%~lit 81 SUPFSEi;'lECOURT

## 4, $3F_ jX,".OKIANA fa*.Mr. Justice Daniel J. Shea dissenting:

I dissent. However heinous, however barbarous the actions of the defendant in this case, this Court is still obligated to give full and fair review to all issues raised on appeal. We have failed miserably in that obligation. I. INTRODUCTION Once again I findmyself dissenting to a McKenzie decision. Since the present appeal was filed, I have carefully studied other issues that either I didn't know had been raised before,

or that I didn't have time to closely study due to arbitrary time limits for issuing opinions. Iwas not amember of this Court when McKenzie - I was decided. InMcKenzie - I1my dissent was devoted to the search and seizure issues and the death penalty issues that had been raised. InMcKenzie 111, although I touched on other issues, I concentrated primarily onwhat I considered the failure of this Court to properly apply the harmless error rule to eight unconstitutional Sandstrom-type jury instructions--instructions which had been expressly declared unconstitutional by the United States Supreme Court. I still admit that I have not thoroughly studied all the issues raised in the first and subsequent appeals,but I have concentrated on those issues in which I believe serious, reversible error to have occurred. Ihave also focused on those issues the majority has either omitted entirely from discussion or dealt with in amost perfunctory and unsatisfactorymanner, in essence misstating the issues. I have also devoted a good part of this dissent to the deathpenalty issues raised by McKenzie in his petition for post-conviction relief and which had not been raised in previous appeals to this Court. Most of those issues center

on the death penalty question. In addition to this Introduction, I divide this dissent into 9parts. In Part 11, I disapprove of this Court'sadoption inmidstream of an entirely different rule for consideration of res judicata issues than was adopted and applied in Coleman 111, infra, and Fitzpatrick 111, infra. In Part 111, I develop the evidentiary record for the plea bargain issue, and this record convincesme beyond any doubt that an enforceableplea bargain existed, and that the State and the trial court violated that agreement. In Part IV, 

### --- I discuss the charges filed and the instructions given on homicide. I am convinced that McKenziewas convicted and sentenced to death for the commission of an offense not defined by Montana statutes--deliberate homicide by means of torture. There is a high probability that the jury in fact convicted McKenzie of this nonexistent offense. In PartV, I discuss the statutory language "deliberatehomicide by means of torture." I conclude that this language is unconstitutionally vague, especially since it involves an aggravating circumstance which can trigger impositionof the death penalty. I further conclude, in any event, that strict constructionof this phrase requires the conclusion that the jury's finding that the deliberate homicide was committed by means of torturewas - - not proved, and therefore, this finding cannot be the basis for imposing the death penalty. In Part VI, I discuss three areas raised by McKenzie, in which he argues that this Court has denied him equal protection of the laws: the search and seizure, the lesserincluded offense instructions,and the application of the overwhelming evidence standard in declaring the eight unconstitutional Sandstrom-type instructions to be harmless error. In PartVII, I focus on several issues at trial which convinceme that McKenziewas denied a fair trial. The cumulative effect of these errors requires that a new trial be ordered.In PartVIII, I focus on the jury instructionsand the multiple alternative charges--the resultbeing that McKenziemay well have been denied his constitutional right to a unanimous jury verdict. The reasonablepossibility that he was denied a unanimous jury verdict in this, a death penalty case, requires that the convictionsbe reversed. In Part IX, I focus on the death penalty issues raised by McKenzie, several of which were raised inprevious appeals, but most of which were raised for the first time in his petition for post-conviction relief. Theway this Court has disposed of these death penalty issues convincesme that a death penalty scheme cannot be fairly and rationally administered in this state. All that is needed for a death penalty to be imposed in this state is the right combinationof prosecutor and trial judge. And once the decision is made to impose the death penalty, this Court will close its eyes to the issues raised on appeal. The United States Supreme Court has imposed

amandatory duty on the highest appellate court of each state to carefully review the trial record as well as the basis for the impositionof the death penalty. Yet,we have failed miserably in undertaking this obligation. In Part X, I simply concludeby summarizing the issues this Court either ignored or stated to be different than what McKenzie actually raised in his appeal. This is the longest dissent Ihave ever written, and doubtless it could be both shorter and better written. I could not begin to estimate the hours that I have devoted to studying this case and writing this dissent, but Inonetheless apologize for taking all the space that necessarily must be devoted to this dissent. This dissent, in which I have distilled the trial record onmany important issues,will demonstrate the majority opinion to be manifestly in errorwhere it is stated that in all the annals of criminal law history in this State,no defendant has ever been givenmore "tender legal care." The care given on appeal cannot be measured by the number of appeals taken nor by the number of issuesdisposed of. Rather, the caremust be measured by whether we, as the Court, have fairly discussed each issue raised, and whether we have given McKenzie a fair and evenhanded application of the law thatmust be given to all defendants in the courts of this State. Measured by that standard, our review of these fourMcKenzie appeals has been

an abysmal failure. It is the most telling proof that a death penalty defendant cannot receive thorough and even-handed consideration of his case by the judiciary of this state.11. DENIAL OF EQUAL PROTECTION: INCONSISTENT APPLICATION OF RES JUDICATA PRINCIPLESAS THEY RELATE TO POST-CONVICTION RELIEF In his appeal,McKenzie raised three equal protection arguments which have been ignored in the majority opinion. He claims that in ruling in three areas of the law--search and seizure, lesser included offense instructions,and the application of a harmless error rule to the Sandstrom-type instructions--we have created special rules for McKenzie, denying him equal protection of the laws. Now, in addition to these issues, the majority here has added yet another denial of equal protection of the laws by adopting American Bar Association standards for determining whether issues raised in a post-conviction reliefpetition are res judicata. The fact is that just a short time ago this Court adopted standards which are designed to more effectivelymeet the issues on the merits. Just recently this Court adopted the framework of Sandersv. United States (1963),373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148, to determine whether an issue in a postconviction relief petition is res judicata. See Coleman v. State (1981),

## -Mont. - 

## , 633 P.2d at 629-31, 38 St.Rep. at 1357-59; and Pitzpatrick 

### v. State (1981), -Mont

# . I - P.2d 

## , 38 St.Rep. at 1450-52. Becausewe adopted the 

### - - three part analysis of Sanders to apply to Coleman and Fitzpatrick, it seemed logical to me that we would also apply it to McKenzie. Instead, the majority adopted the more restrictive rule promulgated by theAmerican Bar Association, and.used it as the analytical frameworkwithin which to assess whether most of the issues are res judicata. Themajority has denied review of many of McKenzie's claims on that ground that they have already been "fullyand finally decided." (See the AmericanBarAssociation rulequoted by themajority, 38 St.Rep. at 1749.) Strangelyenough, themajority opinion does not

ever statewhy therecently adopted rules of Sanderswere forgotten inthis case. Although themajority opinion would have one believe that theAmerican BarAssociation standards forres judicata implicitly always have been therule inthis state, the fact is thatinColeman 111 and Fitzpatrick 111we adopted the less restrictiverules set forthinSanders. Under the ABA standards for res judicata, the final inquiry iswhether the issuehas been fullyand finallydecided. On the other hand, under the Sanders rules, the final inquiry iswhether the ends of justice would be served by again considering the issueon itsmerits. This Sanders rulepermits the appellate court to again consider the issue toseenot only if it wasdecided, but tosee if itwas correctly decided. Obviously, if itwas not correctlydecided the ends of justice would be served by correcting themistake and deciding the issueproperly. But that isprecisely what themajority didnotwant todo inthis

case.If, as themajority states, the ABA standards impliedly always have been therule inthis state, why didwe adopt and apply the Sanders rules inColeman I11 and Fitzpatrick III? And why, if the rules always have been the same, didn't the majority simply apply the Sanders analysis instead of the ABA analysis. The answer isthat a Sanders analysis would requireus tochange our decisions on several of the issues, and themajorityhas no intention of doing that. The majorityhas interpreted the ABA standards tomean that the end of review comes by a bland statement thatthe issuehasbeen "fullyand finallydecided." The effect, asapplied here, is that even if a previously decided issue

was decided incorrectly, the issue is, insofar as the majority is concerned,res judicata. Of course, themerits of the Sanders rules over the ABA rules canbe debated. But we have no right to change the rules in midstream in order to provide an excuse for again not reaching the issues on themerits. It is simply another demonstration that this Court cannot be consistentwhen applying the laws to McKenzie. The result is thatwe again have denied McKenzie equal protection of the laws. See the dissenting opinion of Justices Marshall and Brennan in McKenzie v. Montana (1980), 

### -U.S. 

### - 

## , 101 S.Ct. 626, 627, 66 L.Ed.2d 507, 508,where they strongly chastised this Court for its uneven application of the law to McKenzie. Ihave always felt that death penalty cases require the closest scrutiny on appeal. I think it especially sad that in selectively applying the more restrictiveABA standards for considering res judicata claims in McKenzie's final appeal before this Court,we have excused ourselves from determining whetherwe have correctly applied the law to his case. We have simply buried the constitutions a little deeper than they were in the former McKenzie appeals.111. PLEA BARGAIN: THE STATE AND THE TRIAL COURT BREACHED AN ENFORCEABLE PLEA BARGAIN The unrefuted record demonstrates that an enforceable plea bargain existed and that the State, with the aid of the trial court,breached that agreement. Proper resolution of this issue requires that the death sentencesbe vacated and that on remand the trial court be instructed to enforce the plea bargain. I must admit that I ammore than a little shocked by how the majority has changed the basis of itsdecision in McKenzie - I, 557 P.2d at 1038, to that inMcKenzie 111, 608 P.2d at 438-39, even thoughboth decisions are based on the

same record. InMcKenzie - I, this Court clearly recognized that a plea bargain existed, and, in fact, stated that the Statehad acknowledged it. 557 P.2d at 1038. This Court, however, declared that the plea bargain was unenforceable either because the agreementwas subject to a condition that the sheriff and the victim's parents consent to the plea bargain

or because the prosecutor called the deal off before McKenzie had entered his plea. However, inMcKenzie 111, 608 P.2d at 439, in an obvious acknowledgment that this holding in McKenzie - I could not withstand careful scrutiny, this Court apparently changed its mind, stating that a plea bargain never did exist because McKenzie was aware of an express condition that before he could enter a guilty plea, the prosecutor firsthad to obtain the consent of the victim's parents and the local sheriff. And then themajority adds that the trial judge resolved the factualdispute of whether this express condition existed by declaring that it did not exist. Because therewas never

a hearing before the trial court on this issue, I fail 

### toSee how the trial court could resolve it. Furthermore, the unrefuted record supportsMcKenzie's contention that an -- enforceable plea bargain existed and must be specifically 

### --- en£orced. The majority opinion leaves the impression that all the facts relating to the State's position were set forth in the record, that evidencewas taken, and that the trial court resolved the factual issue in favor of the State. Nothing could be further from the truth. The State's position

as stated in the majority opinionwas taken entirely from the State's briefs, and possibly bolstered by statementsmade by counsel for the State during argument of McKenzie - I before this Court. Because themajority opinion has not set forth facts the record, and because it is only from that record thatwe

can determinewhat happened, it is necessary to explain what the record does state in regard to the plea bargain negotiations and the ultimate agreement reached by the parties which although approved by the trial court,was later repudiated when the prosecutor announced that the "dealwas off." 557 -

### ---

A. THE FACTS IN THE RECORD SUPPORT ONLY THE CONCLUSION THAT THEREWAS AN ENFORCEABLE PLEA BARGAIN On Sunday,December 22, 1974, counsel for both sides met in Conrad, in the law office of defense counsel Charles Jacobson. At this time, the trial judge gave counsel for both sides the preliminary instructions. All attorneys saw problems with those instructions--including the fact thatmany of them were unconstitutional. The attorneysmet for an extended period of time and arrived at a plea bargain agreement to be presented the next day to the trial judge for his approval.The plea bargain was thatMcKenzie would withdraw his pleas of not guilty and plead guilty to the offense of deliberate homicide committed in the course of committing felony aggravated assault with a heavy weapon, in exchange for a 50-year prison sentence. McKenzie would also plead guilty to another charge of felony aggravated assault committedwith a weapon, and for this crimewas to receive 20 years in prison. The sentenceswere to run concurrently. All counsel met in Great Falls the next day, December 23, 1974, in the chambers of the trial judge. This meeting lasted for more than three hours. The judge expressed a certain displeasure with the agreement, especiallywith regard to the length of the prison sentences, but nonetheless he went alongwith the plea bargain. The judge and counsel all agreed that on December 30, 1974,McKenzie would withdraw his not guilty pleas and plead guilty to the two charges. After the trial judge approved the agreement, defense counsel and the prosecutors proceeded to the O'Haire Manor in Great Falls. There, acting in reliance on the approved agreement, defense counsel divulged their theories of defense to the State, and further revealed all they knew concerning the weaknesses in the State's case, so that the prosecutors would be better able to explain to the press, the public, the victim's parents, and the local sheriff why the plea bargain agreementhad been made. But, suddenly, the "dealwas off." On December 28, 1974, two days before McKenzie was to appear in court and change his pleas, the prosecutor contacted defense counsel and told them that he could not perform the plea bargain agreement. He told defense counsel that the victim's father had threatenedbodily harm toMcKenzie, defense counsel, and the prosecutors if the plea bargain was carried out. McKenzie, defense counsel, and the prosecutors allmet

as agreed with the trialjudge on December 30, 1974. Defense counsel movedthe trialcourt to acceptwithdrawal of the not guiltypleas and substituteguiltypleas to the two agreedupon charges and moved thatMcKenzie receive the sentences agreed toby the State and the trialcourt. The prosecutor objected, but atno timestated that the parties had not made

a plea bargain agreement. Nor did he ever statethat the agreement was subject tothe consent of the victim's parents

or the sheriff

# . Defense counsel filed an extensive affidavit setting forth the termsof theplea bargain, and made this statement for the record, the facts of which were never refuted or denied by the State: "They [theprosecutors] had originally advised us that it was their desire togo tothe parents of this deceased girl, and togo tothe sheriff, and trytomake theirpeace with them, with sort of the understanding that if they could not, why then allof thismatter would come tonaught. "Of course, this leftus ina position of having someone make a decision, prior, or after, we had presented thismatter incourt. As long as it was prior topresenting thismatter in court, why we feltthat therewas no real damage done; however, attherequest of theprosecution, we came down here, with them, with the understanding, thatwe would present thismatter tothe court, and see whether or notwe couldn't resolve the entire situation. Wow, asthe courtwell knows what the decisionwas, - -- 

### ---- and the court decided togo along with our bargain, -- 

### -- 

### -- and the bargain had been fullyacceptableby the -- 

### --- -- prosecution." (Emphasis added.)The defense's affidavit which was filed on December 30, 1974, and served on the prosecutors,more explicitly detailed the circumstances leading to the plea bargain and its approval: "It was the Special Prosecutor's avowed initial intention to present this [theplea bargain] to the said Sheriff and family of the deceased before making our mutual presentation to the Court; it was the apparent understanding of all concerned,and especially this affiant, that if the Prosecution could not secure the approval of said Sheriff and the family of the deceased, that there would probably not be any necessity of presenting the situation to the Court;

"TheProsecution then deemed -- itmore expedient to approach the Court with this situation prior to any other consultation; that itwas never the intention of your affiant, or his co-counsel, to ever allow the Sheriff of Pondera County or the family of the deceased, to have the power to 'veto'over the negotiations then taking place, but that since contactwith them would be made prior to our mutual approach to the Court, no harm to~efendant would be done; however, your affianvs- attitude as it related to their being consulted after the mutual contactwith the Court was opposite 

# . . . if the Court refused to accept the plea bargain, the matter would be halted, or if the court accepted the offer, the Prosecution's contact with the Sheriff and family of the deceased would be for the purpose of pro forma consultation for the purpose of courtesy and to attempt to reduce the possibility of theseparties causing adverse public opinionwithin Pondera County against either the County Attorney or the Special Prosecutor. "Thatyour affiant and co-counsel left this meeting [with the trial judge] with the complete and unequivocal understanding that a final and complete bargain had been struck by all parties including the Court; that counsel for the Prosecutionwere then going to apprise the family of the deceased and the Sheriff of Pondera County of this agreed upon situation;" (Emphasisin original.) The affidavit further explained why the prosecutors decided to call off the plea bargain--the prosecutors had told defense counsel that they and others had heen threatened with physical harm if they followed throughwith the agreement, and implied that they had been in contact with other district court judgeswho had advised them not to follow throughwiththe agreement. The Stateatno time filed a counteraffidavit

ormade any statement intothe record refuting or denying the facts set forth indefense counsel's affidavit. The State's only response atthistime was that it did not have tofollow through with theplea bargain, ineffect, that it had the unilateral right to abrogate that agreement. The trialcourt atno time entered findings or conclusions

on this issue, even though it had previously approved the plea bargain aftermore than a three hour session inchambers

on December 23, 1974. The trialjudge's only response to McKenzie's contentions was: "Well, of course, this isplea bargaining, and if they [the State] don't want togo through with plea bargaining, I don't suppose they have to." Supplemental Transcript of December 30, 1974 Hearing, p. 5. See Appendix toAppellant's Brief, Vol. I, Specification of Error No. 2. After stating that the prosecutor was under no duty to proceed with the plea bargain, the trialjudge confirmed the existence of theplea bargain when he specifically asked the prosecutor: "Do you want toproceed the way thatyou agreed ---- with counsel lastMonday, the 23rd of December 

# . .

# ." (Emphasis added.) Supplemental Transcript of December 30, 1974 Hearing, p. 5. See Appendix toAppellant's Brief, Vol. I, Specification of Error No. 2. The prosecutor responded that he did not, and the court, without any further inquiry announced that the case would go totrial. Supp. Transcript of December 30, 1974 Hearing, p. 6. See Appendix toApp. Brief, Vol. I, Specification of Error No. 2. Therefore, the majority's conclusion that a plea bargain didnot exist flies directly inthe face of the unrefuted record. On January 3, 1975, fivedays before the trial, McKenzie again filed a motion tocompel the Statetohonor theplea bargain. Asof thisdate, however, there is absolutely no evidence inthe record that the Stateeven contended that ithad given veto power of the plea bargain to the victim's parents or the sheriff. Yet, the trial court summarily denied the motion, stating in a written order: "OnJanuary 3, 1975 defendant, through his counsel, made, filed, served and presented his 'Motionto Enforce Agreement of December 23, 1975' to the Court; "TheCourthaving fully considered the matter upon themerits and deeming there to be no good reason for delay in the issuance of its decision upon the Motion, finds said motion to be without merit and denies the request contained in the prayer; "Therefore,it is hereby ORDERED that said Motion is denied. "DATED this 3rd day of January, 1975." Order Denying Motion to Enforce Agreement of December 23, 1974. See Appendix toAppellant's Brief,Vol. I, Specification of ErrorNo. 2. The order, although claiming to deny the motion on the merits, fails to statewhat those merits were. Did the trial court decide that an enforceable plea bargain did not exist because it was expressly conditioned on the veto power of the victim's parents or the local sheriff, or did it decide that although a plea bargain existed, itwas nonetheless unenforceable because there are no Montana laws recognizing

a plea bargain? Before the start of trial, defense counselmoved unsuccessfully to disqualify the trial judge. It was urged, among other grounds, that the trial judge had already demonstrated bias and prejudice toward McKenzie by the unconstitutional instructions he had prepared, that the instructionscreated the nonexistent offenses of deliberate homicide by means of torture and deliberate homicide by lying in wait or ambush. On January 8, 1974, the morning the trial began, the prosecutors asked the trial judge for permission to add 58 more witnesses to the Information. McKenzie opposed this motion, arguing that itwas prejudicial to him because,among other reasons, the defense, in relying on the plea bargain agreement, had revealed its defense and the State's weaknesses. True to form, the trial judge permitted the additional 58 witnesses. Order Granting Motion for Endorsement of Names of Witnesses on Amended Information. See Appendix to Appellant's Brief,Vol. I, Specification of Error No. 

### 7. After McKenzie was convicted,but before his sentencing, defense counsel filedmotions for a hearing onmitigation, and for a new trial. The motion for mitigation again requested the benefit of the abrogated plea bargain by asking the court in effect, to enforce the plea bargain by not sentencing McKenzie to any more than 50 years in prison. That motion was summarily denied. In the motion for a new trial,McKenzie alleged prejudice by the addition of 58 additional witnesses on the firstday of trial, and that this prejudice resulted from the prosecutor's abrogation of the plea bargain. This motion was also summarily denied. At sentencing McKenzie again asserted that he should receive the benefit of the plea bargain by receiving no more than 50 years in prison and his motion was also summarily denied. That is the extent of the record on the plea bargain issue, and that is the record this Court should have relied upon in deciding the plea bargain issue. But to do sowould mean that McKenzie would be given affirmative relief, a result that this Court did notwant. Instead,this Court chose to ignore the record. Although the State had ample opportunity to do so, it at no time during these proceedings made a record either refuting or denying McKenzietsdetailed assertions that the State unilaterally abrogated an enforceable plea bargain. I am at 

### a loss,then, to understand how this Court was able toreach its decisions on this issue inMcKenzie 

### - I, 557 P.2d at1038; (theissuewas omitted from the McKenzie 

## - I1 opinion) McKenzie 111, 608 P.2d at438-39; and now inMcKenzie -- IV, 38 St.Rep. at 1761 (which expressly relies on the McKenzie I11 holding). The record isbarren of even the suggestion - by the prosecutors that an enforceable plea bargain did not exist,just asthe record is alsobarren of any suggestion by the State that the plea bargain was expressly subject to veto power by the victim's parents or the sheriff. The only conclusion supported -- by the record is that an enforceable plea bargain existed and that the State unilaterally breached that agreement. If, inthe face of the actual record, thisCourt desired to fashion a remedy toenable the Statetoback away from an enforceable plea bargain, and therefore not interfere with McKenzie's appointment with death, itwas firstincumbent

on thisCourt to statethe facts asthey appear -- inthe record, and then somehow decide that PJcKenzie is not entitled tothe benefit of the plea bargain. We have denied McKenzie even themost rudimentary appellate review, let alone the meticulous appellate review mandated by the United States Supreme Court for 

### - alldeath penalty cases.

B. THIS COURT'S DECISION IS NOT BASED ON THE TRIAL RECORD, BUT INSTEAD IS BASED ON UNSUBSTANTIATED STATEMENTS MADE FOR THE FIRST TIME INTHE STATE'S APPELLATE BRIEFS As already stated, this Court, inMcKenzie - I, clearly recognized that a plea bargain existed. But, although the opinion is as vague asvague can be, it appears that the Court either held that theplea bargain was subject toan express condition thatthe Stateprosecutors obtain the consent of the victim's father and of the sheriff, or that the plea bargain was unenforceable because McKenzie had notentered his plea when the prosecutor surprised defense counsel by announcing that the "dealwas off." 557 P.2d at 

### --- 1038.Either holding is indefensible. A holding based on recognition of an express condition of third party consent to the plea bargain is contrary to the record in this case. And a holding that a plea bargain can be unilaterally cancelled by the prosecutor before the plea is entered ignores both the essential basis of a plea bargain and the fact that here McKenzie detrimentally relied on the plea bargain. The opinion expressed in McKenzie 111 and - IV is indefensible because it is based not on the record, but on contentions announced for the first time in the State's appellate briefs. The opinion is further indefensible because it states that the -- trial court found --- the issue of consent - in favor -- of the State. This ignores the fact that there was neither a hearing nor findings on this issue. This Court has in effect,manufactured a casebased on a record that does not exist. The first two paragraphs of McKenzie 111, 608 P.2d at 438-39, recite what this Court considered to be McKenzie's contentions, stating several times that the events were alleged to occur "according to the defendant." Yes, indeed, even though they did occur according to the defendant, the undeniable fact is that the record was absolutely unrefuted by the State. The next two paragraphs of McKenzie 111, 608 P.2d 438- 39,are devoted to discussion of the State's contentions that: the plea bargain was initiated by the defendant; the State had always maintained that any plea bargain was conditioned 

### upon

a veto by the victim's parents and the sheriff; the Statecould not meet with the victim's parents until December 26; because the State could not obtain consent from the victim's parents there was no further plea bargaining; and finally, the State's assertion thatMcKenzie did not detrimentally rely on the plea bargain because the information given the Stateby the defendantwas either worthless or already known. Itmay well be that these truly are the State's contentions--in their appellatebriefs. But if so, the record is absolutely barren of these contentions. The State raised these contentions for the first timewhen it filed its brief responding to McKenzie's assertion that the State and the trial courthad violated the plea bargain. The next paragraph of the Court's opinion in McKenzie 111, 608 P.2d at 439,disposes of the issue, stating: - "This issue turns on the existence of the alleged plea bargaining agreement. The trial iudse acce~ted the State's version ofhr

# 

# - - - -- situationHnd refused to enforce the alleged agreement contended for by defendants. We hold -- that where, as here, the existence of any plea 

### -- --- bargaining agreementwas disputed and there is 

## - substantial evidence that none was made, there is 

### ---- nothing to enforce and the trial court's actions 

## --- in this regard were correct." (Emphasisadded.) 

### -- This language is entirely contrary to the record-- upon which an appellate court is to base its rulings. The only evidence in the record does supportMcKenzie's contention that an enforceable plea bargain existed; the only evidence in the record is that the prosecutor unilaterally abrogated that agreement; and, the only evidence in the record is that the trial courtnever ruled on any disputed versions--for McKenzie's version was not disputed. The trial court simply 

### -- refused to enforce the plea bargain. It is sad indeed that this Court decided this issue solely

on representations made by the State in its appellate briefs.A plea bargain, in a case such as thiswhere the death penalty is the real issue, certainly deserves more reliable consideration than this. Finally, inan effort toundermine McKenzie's claim thathe detrimentally relied on the plea bargain, the majority again absolutely misstates the record by concluding that there was neither the contention nor proof by defense counsel thattheprosecution abrogated theplea bargain in bad faith. The opinion states: "As we understand it, there isneither contention nor proof of bad faithby the Stateinits discussion with defense counsel on a plea bargain or in its effort to secure the approval of the sheriff orthe victim's parents 

# .

# .." 608 P.2d at439. This statement absolutely flaunts the record. Atthe January 3, 1975meeting with the trialcourt and prosecutor, defense counsel stated: 

# ".

. .We dealtwith them [theprosecutors] in good faith, and now we do feel that they have not dealtwith us ingood faith. Wedo feel that thisis a violation of the canons of ethics, specifically as it relates tocandor, and specifically asit relatestoletting someone else, some outside layperson, make decisions, ormake legal decisions, asit relates totheir conduct of this trial." (Tr. of January 3, at16.) The affidavitdefense counsel filed and served on the prosecution before thishearing stated loudly and clearly that the prosecution had violated the Canons of Professional Ethics by acting inbad faith: 

# ".

. . your affiantbelieves, and has reason to believe, that the counsel for the State, both the County Attorney and Special Prosecutor, have misled counsel forDefendant, violated, or are attempting toviolate, the rights of Defendant, and have engaged inunethical conduct inviolation of the Canons of Professional Ethics and theCode of Professional Responsibility (SeeCanons, 5, 6, 7, 8, 9, 15, 16, 22, 24, 25, 31, 3:,, 35, and 41of theCanons of Professional Ethics.) (Defense counsel's affidavit at 5.)Themajority has simplymisstated the record in order to justify its next statement that defense counsel's detrimental reliance argument is unfounded. The majority states: 

# ".

. .Under these circumstances any statements of defense counsel concernina weaknesses in the - -- state's& -- or defpositimnection therewithwere gratuitous and premature. In any event, a trial is not a sporting contest inwhich the verdict turns on nondisclosure of suchmatters. Discovery procedures are designed and operated to remove this element and had been extensively and exhaustively utilized at the time in question."

(Emphasisadded.) 608 P.2d at 439. Again, the unrefuted record demonstrates that after

a 3-hour long meeting with the trial court on December 23, 1974, and after -- a plea bargain had been made, defense counsel --- met with the prosecutors at the O'Haire Manor in Great Falls and revealed their defense and the weaknesses in the State's

case. This was done specifically in reliance on the plea bargain in an effort to permit the prosecution to better explain to the public, including the victim's parents and the sheriff,why the plea bargain was necessary. The details of this meeting and the relianceplaced on the agreement

are stated again in the unrefuted affidavit of defense counsel: "Subsequentto this meeting with the Court, counsel for the Prosecution and the Defendant met in the O'Haire Manor;pursuant to the tacit agreement to aid the Prosecution control the lsicl influencing of public opinion by the Sheriff of Pondera County, your affiant outlined the strategy and those facts thatwould have been emphasized by the defense had thismatter gone to trial; that your affiant explained to the Prosecution its problem areas of proof as visualized by counsel for the defense; that this informationwas provided to justify the agreement heretofore entered into and to explain to the Sheriff that it was through his own ineptitude thatput the Prosecution to the problem of possibly not being able to get certain pertinent evidence before the jury, and where certain assumptions being made by the Sheriff and Prosecutionwere fallacious; "Thatyour affiant and co-counsel left this meeting with the complete and unequivocal understanding that a final and completebargain had been struck by all parties including the Court; that counsel for the Prosecutionwere then going to apprise the family of the deceased and the Sheriff of Pondera County of this agreed upon situation;

# .

# . ." (Emphasisadded.)Beyond these unrefuted allegations of detrimental reliance and good faith, I also find themajority's statement ridiculous thatwhat the defensehad revealed to the Statewas gratuitous,worthless, or already known. If the State had already known theweaknesses in its case, it would not have moved the court to add 58more witnesses to the Information

on themorning of trial. Ihave never heard of granting such amotion under such circumstances. "Anagreement between the parties which is approved by the trial judge cannotbe turned aside simply because of the exigencies of the moment. Publicpressure and publicity certainly cannot justify the breach of an agreement, no matter how ill-considered the agreementmay appear to have been 

# . . . No attorney in the state could in good conscience advise his client to plead guilty and strike a bargain if that attorney cannotbe assured that the prosecution must keep the bargain and not subvert the judicial process through external pressure whenever the occasion arises. "Aplea bargain is a binding agreement between the defendant and the statewhich is subject to the approval of the court. When the prosecutor breaks the plea bargain, he undercuts the basis for the waiver of constitutional rights implicit in the plea. In Santobello - v. New 

### -York, -- supra, 404 U.S. at 263. 92 S.Ct. 495, the United States Supreme Court noted that there are two alternative-forms of relief available to the defendant under these circumstances. The court can permit the accused to withdraw his plea and be tried anew on the original charges, or grant specific performance of the agreement

# . . . In a concurring opinion, Justice Douglas emphasized that 'a court ought to accord a defendant's preference considerable, if not controlling,weight inasmuch as the fundamental rights flouted by a prosecutor's breach of a plea bargain are those of the defendant,not of the State.' Santobello 

### v. New York, supra at 267, 92 

### --- S.Ct. at 501.

### " State v. Tourtellotte (1977)

## , 88 Wash.2d 579, 564 P.2d 799, 802-03. I can only conclude that this Court's holding contrary to the undisputed record that there was noplea bargain is but another example of the arbitrary manner in which this Statehandles those cases where the underlying issue is whether a person is going to live or die. If this had beena run of themillcase, I have no doubt that thisCourt would have given thisissuemore careful consideration and concluded that therewas an enforceable plea bargain. But somehow, thisCourt has adopted the policy thatupholding

a death sentence ismore important than carefully scrutinizing the record todetermine whether the defendant's rightswere protected. What we have done toMcKenzie by misstating the record on thisplea bargain issue isabsolutely indefensible. I cannot believe that a federal court willagree thatwe have givenMcKenzie themeaningful, mandatory appellate review which wehave been ordered togive toalldeath penalty cases.IV. PkKENZIE WAS CONVICTED OF DELIBERATE HOMICIDE BY MEANS OF TORTURE--A CRIME NOT DEFINED INMONTANA LAW McKenzie claimed in his first appeal to this Court (App.Brief, issue no. 12,Val. 11, at 178-92) and in each of his subsequent appeals that he was convicted of "deliberate homicide by means of torturew--acrime which is not defined by statute inMontana. This Court,however, has failed to address that issue in any of its opinions. Perhaps the McKenzie - IV opinion can be excepted from this statement in the sense that it does not appear thatMcKenzie again raised the issue before the District Court in his petition for post-conviction relief that he was convicted of a nonexistent crime. Nonetheless, this issue is so important, so fundamental, that this Court cannot be excused from mentioning and deciding the issue in either McKenzie - I,McKenzie - 11, or McKenzie 

### - 111. This Court had an unequivocal duty to declare either that McKenzie was not convicted of a separately defined offense of deliberate homicide by means of torture,

or that deliberate homicide by means of torture is a crime expressly defined by statute in Montana. This Court did neither, but left the issue undecided. Itwould appear, however, that the Court, in writing the opinion,proceeded

on the assumption that it is a substantive offense defined by statute. On at least four occasions themajority opinion states thatMcKenzie was convicted of the offense of deliberate homicide by means of torture. See 608 P.2d at 434, 436, 438 and 457. When I dissented to McKenzie -- I1 and - 111, Iwas unaware thatMcKenzie had previously raised the issue that he had been convicted of a nonexisteng crime. However, in reviewing the instructions in preparing a dissent to the majority's handlinqof the unconstitutional Sandstrom-type instructions in P1ci:enzie 111, itbecame clear to me that McKenzie may well have been - convicted of a nonexistent crime which added even more to the specter of unfairnesswhich has permeated the handling of this cause at trial and on appeal. During the present appeal, I have taken the time to examine the record more thoroughly and I am now convinced thatMcKenzie was convicted of and has been sentenced to hang for the crime of deliberate homicide by means of torture--a nonexistentoffense in this state. Section 94-5-101, R.C.M. 1947 (nowsection 45-5-101, MCA), states that "[a] person commits the offense of deliberate homicide if he purposely, knowingly or negligently causes the death of another human being." That statute then classifies criminal homicide into three categories--deliberate homicide,mitigated deliberate homicide, or negligent homicide. Section 94-5-102(I),R.C.M. 1947 (now section 45-5-102(1)

### , MCA) states that

# ".

. . criminal homicide constitutes deliberate homicide if (a) it is committed purposely or knowingly;or (b)it is committedwhile the offender is engaged in or is an accomplice in the commission of, an attempt to commit, or flight after committing or attempting to commit robbery, sexual intercoursewithout consent, arson,burglary, kidnapping, felonious escape or any other felonywhich involves the use or threat of physical forceor violence against any individual." It is obvious that neither statutementions a substantive offense called deliberate homicide by means of torture. Subsection (2)of section 94-5-102,R.C.M. 1947 (nowsection 45-5-102(I)),MCA, provides that 

### " [a]personconvicted of the offense of deliberate homicide shall be punished by death or life imprisonmentas provided in section 95-2206.6 through 95-2206.15, R.C.M. 1947 [now sections 46-18-301 through 46-18-310,MCA].. 

# .

# ." The only statutory reference to "deliberatehomicide by means of torture" is found in a sentencing statute (section94-5- 105(1)(d)

## , R.C.M. 1947, now section 46-18-303(a)

## ,MCA) which, at the time of McKenzie's trial,provided: "(1) When a defendant is convicted of the -- oifense of deliberate homicide, the court shall impose asentence of death in the following circumstances,unless there aremitigating circumstances: "(a) The deliberate homicidewas committed by a person serving a sentenceof imprisonment in the stateprison; or "(b) The defendant was previously convicted of another deliberate homicide; or "(c) The victim of the deliberate homicide was a peace officer killed while performing his duty; or "(d) The deliberate homicide was committed bv means of torture: or "(e) The deliberatehomicide was committed by a person lying in wait or ambush; or "(f) The deliberate homicidewas committed as a part of a scheme or operation which, if completed,would result in the death of more than one person." (Emphasisadded.) The emphasized aggravating circumstance contained in subsection (d)is thatwhich the trial judge changed into a substantiveoffense. The Information in this case charged McKenzie with

seven counts of deliberate homicide. The first count charged thatMcKenzie purposely and knowingly caused the death of the victim. The second count charged that he purposely and knowingly caused the death of the victim by

means of torture. The third count charges.that he purposelyand knowingly caused the victim's death while committing the crimes of sexual intercourse without consent (count4), aggravated assault causing serious bodily injury (count5), aggravated assault causing bodily injury by use of a weapon, namely a rope (count 6), and aggravated assault causing bodily injury by use of a weapon, namely a heavy object (count7). The issue of whether the prosecution could charge McKenzie with one count of deliberate homicide by means of torture, and another count (amongothers) of deliberate homicide by means of lying in wait or ambush, was raised in this Court for the first time before McKenzie ever went to trial. See, State ex rel. McKenzie v. District Court (1974), 165Mont. 54, 525 P.2d 1211. This case involved a petition for a writ of supervisory control,requesting that the trial court limit the charges to only those charges in which probable cause had been shown. This Court expressly ruled that the charges of deliberate homicide by means of torture and deliberate homicide by lying in wait or ambush do not constitute substantive offenses. This Court stated: "Webelieve these seven counts of deliberate homicide should be reduced to two, in accordance with the alleged facts and the statutory definition of the crime. The statute tells us there are two kinds of unmitigated deliberate homicide 

# . . . The first kind is committed when the offense is committed 'purposelyor knowingly.' The second kind is committed when the offense is committed



## . 

# . .while the offender is engaged in or is an accomplice in the commission of, or an attempt to commit,or flight after committing or attempting to commit robbery, sexual intercourse without consent, arson,burglary, kidnapping, felonious escape or any other felonywhich involves the use or threat of physical force or violence against any individual.' The first count should be similar to the first count in the present information;i.e. it should simply allege that the crimewas committed 'purposely and knowingly.' The second count should allege alternatively that the crime was committedwhile the relator was engaged in other felonies. These could include aggravated assault, sexual intercourse without consent and aggravated kidnapping."It isneither appropriate nor necessary to 

### -- base separate counts on torture or lying 

### in - - wait, counts 2 and 3. Section 94-5-105. criminal ~ode-o?-i913, 

### --- deals with sentencing -- and does not define a specific crime. If 

### --- torture or lying in wait, or both, are alleged aspart of the second count, the defendant is sufficientlynotified of what the prosecution intends to prove. If justified by the evidence, the courtmay instruct on these two features and ask for a special verdict on them to assist in fixing the penalty." State ex rel. McKenzie v. DistrictCourt (1974),165 Mont. 54, 64-65, 525 P.2d 1211, 1217. (Emphasisadded.) It appears that the prosecutor dismissed counts 2 and 3 after that ruling,but then amended the Information so thatMcKenzie was chargedwith: 

# ".

.

# .DELIBERATEHOMICIDE, a felony,. 

# .

# .by purposely or knowingly causing the death of the said LANA HARDING: "1. by means of torture; or "2. by lying in wait or ambush;. 

# .

# ."

I think it is fair to assume that the prosecutor intended to charge McKenzie with deliberate homicide and then additionally alleged his theories relating to themethods by which that homicide occurred. The trial judge, however, ignored this Court's ruling in State ex rel. McKenzie v. District Court, supra,and in fact, instructed the jury at both the beginning and the end of the trial that McKenzie

was chargedwith the crimes of deliberate homicide by means of torture and deliberate homicide by lying in wait or ambush. Both the defense counsel and the prosecutors objected to these instructions before the trial began, and they filed written objections to the instructions. The prosecutors' written objections stated: "That said PRELIMINARY INSTRUCTIONS include misstatements of the law, and are confusing and redundant. "That said Preliminary Instructions give no citation as to source or authorities."[Instruction no. 231 That the title 'Deliberate Homicide by Means of Torture' incorrectly states - the crimecharged, which is 'Deliberate Homicide' Section 94-5-102. Thematter of torture arises - under the punishment statute, Section 94-5-105

(1) (d).~hat the use of the title 'Ueliberate Homicide By Means of Torture' ismisleading. "[Instruction no. 241 That the title 'Deliberate -- Homicide By Means of Lying in Wait or Ambush' incorrectly statesthemcharged,which is

'Deliberate Homicide,' Section 94-5-105(1)(e). That the use of the title 'Deliberate Homicide by Means of Lying in Wait or Ambush' ismisleading. That the use of the terms 'killing' and 'kill' is improper. Such terms are not found in any applicable statute. That the proper term is

'causesof death of,' as cited in Section 94-5- 101." (Emphasisadded.) Notwithstanding the prosecutors' and defense counsel's objections to the court's proposed 'Preliminary Instructions,' the trial court determined nonetheless to give them exactly

as proposed. At the beginning of the trial, just before the trial started and the court was to give its 'Preliminary Instructions,' defense counsel again objected to the instructions creating the offense of deliberate homicide by means of torture and deliberate homicide by means of lying in wait or ambush. The following exchange took place between court and defense counsel: "Defensecounsel: Will you give us the statutory-place that you find deliberatehomicide by means of torture offense? "TheCourt: This ispunishable by death,period. They said it is a punishment offense. -- If they say it is a punishment offense --- it is an offense. In the statuteyouwill find in the common law and in the case law, that is the only place you are going to find it." (Tr. at 183; emphasis added.) Defense counsel lodged the following objection: "At this point may the record indicatewe object to all the instructionswhich any place indicate that there is an offense named deliberate homicide by means of torture, deliberatehomicideby lying in wait, -- sincewe find no statutewhich says that such a thing -- - exists." (Tr. at 183; emphasis added.)The pertinent instructionswhich were read tothe jury before the presentation of the evidence, and then taken by the jury to the jury room at the time the case was submitted to the jury, read as follows: Instruction - No. - 22. Deliberate Homicide Defined. "In this case, insofar as we are concernedwith the offense of deliberate homicide,you are instructed: "Deliberate homicide is one kind of criminal homicide. Homicide is deliberate homicide if: "(a) it is committed either purposely or knowingly; "(b) it is committed while the offender is engaged in or is an accomplice in the commission of, or an attempt to commit kidnapping,or any other felonywhich involves the use or threat of physical force or violence against the individual. "Proof that the defendant acted both purposely and knowingly is not required. Proof of either of said mental states is sufficient." InstructionNo. 

### --- 23. Deliberate Homicide by Means of Torture Defined. "Deliberatehomicide by means of torture insofar aswe are concerned with the definition thereof in this case is: "Whoever purposely assaults another physically for the purpose of inflicting cruel suffering upon the person so assaulted for the particular purpose of enabling the assailant to either: "(a) extort anything from suchperson; "(b) or to persuade such person against his or her will, or "(c) to satisfy some untoward propensity of the assailant, "and in so doing the assailant causes the death of theperson he assaults, in the law is guilty of the offense of Deliberate Homicide by Means of Torture,whether or not it was the purpose or intention of the assailant to cause such death. "'Untoward propensity' means any perverse,wrong, bad or corrupt inclination or tendency." InstructionNo. 24. Deliberate Homicide by Means 

### -- of Lying inWait orAmbush Defined:"~eliberate Homicide by means of lying in wait or ambush, insofar as we are concerned with the definition thereof in this case is: "Whoever conceals himself, and watches and waits for anotherwith the particular purpose of taking suchperson unawares, and killing him, and he does killhim is Guilty of Deliberate Homicide by means of lying inwait or ambush." By these instructions, the trial court unequivocally told the jury that McKenzie was chargedwith three substantive homicide offenses--deliberate homicide (instructionno. 22); deliberate homicide by means of torture (instruction no. 23); and deliberate homicide by means of lyirig inwait or ambush

(instructionno. 24). I note, however, that the charge of deliberate homicide by means of lying in wait or ambush is not a direct factor in the error committed in this case, because that chargewas dismissed at the conclusion of the trial because of insufficient evidence to support it. In instructionno. 29, the trial judge distinguished themental states that the jurymust find to have accompanied the charged acts of deliberate homicide and deliberate homicide by means of torture. That instruction stated:

"Theoffense of Deliberate Homicide requires that the voluntary act (the Killing) have been committed by the defendant either knowingly or purposely or that it was committed in the commission of a forcible felony.

"Theoffense of Deliberate Homicide by Means of - Torture requires that the voluntary act (the physical infliction of cruel suffering)be done purposely and in addition thereto that it was done for theparticular purpose of enabling the ,assailanteither:

"(a) to extort something from the person assailed; or 

### "(b) to persuade the assailed against his or her will;

"(c) to satisfy some other untoward propensity of the assailant.

# . . ." (Emphasisadded.)The lastsentence of paragraph I1 told the jury that it need not find thatMcKenzie intended t o k i l lthe victim of torture. inorder tofindhim guilty of deliberatehomicide by means/ Paragraph I11 of this instruction sets forth the mental state the trialjudge decided was necessary for a conviction of deliberatehomicide while lying inwait or ambush. However, the trialjudge crossed out paragraph I11 with a largeX and wrote "Dismissed-Disregard" near it. One of the final instructionstothejury (instruction

no. 54) directed thejury to firstconsider the charge of deliberatehomicide by means of torturebefore deciding any of theremaining charges. It states inpertinent part: "If you adopt the Guilty of Deliberate Homicide verdict form you are asked tofind on that form whether the ~eliberate Homicide was by Means of Torture as this is themost serious of the remainina ., 

### ----- -- charges of deliberatehomicide made against the defendant," (Emphasis added.) Notwithstanding the fact that the trialcourt instructed thejury that the charge of deliberatehomicide by means of torturewas themost serious of the remaining charges (the charge of deliberatehomicide by means of lying inwaitor ambush had been dismissed), the trialcourt also instructed thejury thatMcKenzie need not have the intent tokillhis victim inorder tobe convicted of the offense of deliberate homicide by means of torture: Instruction No. 34. Methods of Proof Applicable to~eliberate~omicide by Means of Torture: "The mental stateof purposely assaulting another physically toinflict cruel sufferingupon that person for a particular purpose cannot be proved by using the legal presumptions you have been directed touse in theproof of deliberate homicide, and must be proved by the use of inferences alone. "Therefore, if you find from the evidence beyond a reasonable doubt that the defendant, on or about January 21, 1974, inPondera County, Montana,purposely assaulted Lana Harding physically and inflicted cruel suffering upon her and in so doing caused her death,you are permitted to infer, that is,deduce or reason from the facts and circumstanceswhich are proved in connection therewith, that he did so for one ormore of the particular purposes; either, 

### " (a) to extort something from her, or "(b) to persuade her to do something against her will, or "(c) to satisfy some other untoward propensity of the defendant. "And if you find one ormore of said particular purposes to have been proved beyond a reasonable doubt and that the defendant killed her while purposely so inflicting cruel suffering upon her, 

### -- he has committed the offense of Deliberate Homicide by Means of Torture, whether -- it was or was nothis intention to kill her." (Emphasis 

### ---- added.) Theproblem with these confusing instructions becomes abundantly clear when the verdict forms are considered. The trial judgeprovided the jury with only one guilty verdict form for deliberate homicide. That verdict form provided: "A. We the jury in the above-entitled cause find the defendant guilty of the offense of DeliberateHomicide as charged. "B. We further find that the Deliberate Homicide (was) (was not) by Means of Torture. "(Strike out the bracketed word orwords which do not apply." In order to complete this verdict form, itwas necessary for the jury to refer to instruction no. 23 (defining deliberate homicide by means of torture), instructionno. 29 (definingrequisite mental state for deliberatehomicide by means of torture), and instructionno. 34 (methodsof proof applicable to deliberate homicide by means of torture). Reference to these instructions established that (1)McKenzie could be convicted of a separate offense called dkliberate homicide by means of torture, and (2)the jury could convictfor this dffense whether or not it was McKenziersintent ---- to kill the victim. --- The homicide conviction can be upheld against an attack that the jury convicted him of a nonexistent crime, only by a declaration of an appellate court that the erroneous jury instructionswere harmless error. To reach that judgment here an appellate court would have to conclude beyond a reasonable doubt that the jury,despite the erroneous instructions, nonetheless found all of the elements to exist 

### - to sustain a conviction for deliberate homicide. The essential facts are not the same,however, and there is no basis to determine this question. Contrary to the deliberate homicide instructions,which require that the jury find an intent to kill the victim, the deliberate homicide by means of torture instructions permitted the jury to convictMcKenzie of this offense "whether it was or was not his intention to killher." 

### ------ Under even themost lenient test of appellatereview,

an appellate court would be compelled to declare that the instructions creating and defining a nonexistent crime of deliberate homicide by means of torture were not harmless error, and in fact, that the probability is that the jury convictedMcKenzie of this nonexistent crime. Because, however, this is a death penalty case, Ibelieve that the stringent test for harmless error, as set out in Chapman v. California (1967),386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, must be applied. Under this test, an appellate courtmust be prepared to declare beyond a reasonabledoubt that the jury verdict was correct despite the erroneous instructions. in this case Tomake that declaration/an appellate courtwould have to bury its head in the sand.The jury verdict, insofar asthe deathpenalty is concerned, isdefectivebecause a death sentence must be based on a jury decision that the defendant possessed the purpose of killing the victim. I agreewith JusticeWhite that it isviolativeof the Eighth Amendment toimpose the death penalty without such a jury finding. Lockett v. Ohio (1978), 438 U.S. 586, 624, 98 S.Ct. 2954, 2983, 57 L.Ed.2d 973, 1002, (White, J., concurring). Instructions expressly permitted the jury tofindMcKenzie guilty of that offense "whether itwas orwasnot hisintention tokill" thevictim. 

### ------ -- Because of these instructions, inorder touphold the death penalty, an appellate courtwould have to state that despite the instructions, thejury found thatMcKenzie did intend to 

### - killthe victim. The record inthiscase forecloses such a declaration. The United States Supreme Court has made abundantly clear that any procedures attrial which diminish the reliability of the guiltdetermination can invalidate the imposition of

a death penalty. In Beck v. Alabama (1980), 447 U.S. 625, 638, 100 S.Ct. 2382, 2389-2390, 65 L.Ed.2d 392, 403, that Court stated: "To insure that thedeathpenalty is

# . . . imposed on thebasis of 'reason rather than caprice or emotion,' [thecourts] have invalidated procedural rules that tended todiminish the reliability of the sentencing determination. The same reasoning -- must apply torules thatdiminish the reliability of the guiltdetermination." (Emphasis added.) -- What can be a better case toapply thisrule than here where the trialjudge created and instructed thejury on a substantiveoffense not defined by statute, where there is the highest of probabilities that thejury convicted McKenzie of that offense--deliberate homicide by means of torture, and where thejury was also told todecide the question ofintent by the use of eight unconstitutional Sandstrom-type instructions? The jury's verdict, and the sentencing court's death sentence based on that verdict, is so unreliable that due process requires not only that the death penalty be vacated but that the conviction be reversed.V. THE EVIDENCE IS INSUFFICIENTTO SUPPORT A FINDING THAT THEVICTIM DIED BY MEANS OF TORTURE An issue raised in all of McKenzie's appeals, and which goes to the heart ofwhether a death sentence can be imposed, is his contention that there is not substantial evidence to support the jury's finding that the victim met her death by

means of torture. Nowhere in any of the four opinions issued in this case has this Court set forth the evidencewhich would support this finding. .The evidence discloses that the victim had been choked with a rope around her neck,and that at some point the pressure of the rope around the neck was somewhat released. The evidence establishes that the victim's death

was caused by a brutal beating with a heavy instrumentwhich laid open the right side of her head. However appalling the circumstances are, these factsdo not establish that the victimmet her death "bymeans of torture." Before discussing this issue as it relates to the imposition of the death penalty, Imust firstpreface my remarkswith the horrible, procedural problems which have followed this case frombeginning to end--procedural problems that belie even the suggestion that McKenzie received a fair trial. Ihave already concluded in part IV of this dissent, that the jurymost likely convicted McKenzie of a nonexistent crime--deliberate homicide by means of torture. Assuming this to be the case, itmatters littlewhether substantial evidence supports the jury's finding that the victim met her death "by

means of torture." Tf McKenzie was convicted of a nonexistent crime, he cannot be punished for that crime, and therefore, that conviction must be reversed and dismissed. Assuming that the jury did convictMcKenzie of deliberate homicide under either section 94-5-102(a)or (b)

### ,R.C.M. 1947

(theonly permissiblemethods by which a deliberate homicide could be charged and a conviction upheld), and further assumingthat the trial court properly instructed the jury on the definition of deliberate homicide "bymeans of torture," the question becomes: was 

### -- the victim tortured? If substantial evidence supports the jury's finding, then the sentencing court did have a legal basis for imposing the death penalty, but if there is not substantial evidence, then the sentencing court had 

### - no legal basis for imposing the death penalty. McKenzie raised this issue in his first appeal,but it

was notmentioned inMcKenzie - I nor specifically discussed in eitherMcKenzie 

### - I1 or 

### - 111. Undoubtedly, the author of McKenzie I1 and I11 relied on the issues as they were stated in McKenzie - -

The only facts concerning the manner inwhich the death occurred were set forth in a general factual statement in McKenzie - I, 557 P.2d at 1027, and repeated in McKenzie - 11, 587 P.2d at 1-10,and in McKenzie 111, 608 P.2d at 435: "On the morning of January 23,Wednesday, the body of Lana Harding was found at a location called the 'drill site' in the area of K & K Wholesale Seed & Co. The body was clothed only in a shirt, sweater and bra and itwas draped over the tongue of a grain drill. She had been severely beaten about the head and body. The forensic pathologistwho examined the body testified the death blow was one that was delivered to the head and laid open the right side. A ropewas tied around her neck and therewas evidence shehad been strangledwith itbut pressure had been released so she did not die of strangulation. Entangled in her hair was a coil of wire, later shown to have come from a roll of wire found in the back of the Dodge pickup." 557 P.2d at 1027. The Court,however, states no factswhich actually support the finding that the deliberate homicide occurred by means of torture. The Court did not elaborate in McKenzie - 11. The same essential factswere stated and the substantial evidence question

was decided later in the opinion. The Court stated the issue

as follows:"Defendantargues the evidence is insufficient to justify the verdicts againsthim. He specifically argues that the evidence is insufficientto support the verdicts that defendant committed deliberate homicide by torture and that as a result of her aggravated kidnapping,Lana Harding died." 581 P.2d at 1226. The Court did not bother to discuss the evidence supposedly supporting each of these findings. Instead, it lumped the issues together and concluded that substantial evidence did indeed exist. The Court held: "In this case, the evidence presented to the jury did notmislead them,nor was any of it ever misrepresented to them. The evidencewas sufficient to justify the jury's finding that Lana ~ardingwas killed by means of torture and that shediedmlrof her aggravated -------- kidnappingby defendant." (Emphasisadded.) 581 P.2d at 1226. This constitutes the Court's entire analysis of the evidence and law on two issues absolutelyvital to imposition of the deathpenalty. Finally, in McKenzie 111, 608 P.2d at 447-48, this Court again relied on the same statement of facts used inMcKenzie I and 11. Then, in another part of the opinion, the substantial - - evidence issues are again decided. In reviewing these two jury findings that are absolutely vital if a death sentence is to be upheld, the Court states: "Defendantargues the evidence is insufficient to justify the verdicts rendered againsthim. He specifically argues that the evidence is insufficientto support 

### - the verdicts thatdefendant cornim tted deliberate homicide by means of torture and that as a result ofher ---- -- aggravated kidnapping,Lana Harding died. This borders on the frivolous.. 

# . . -- "In this case, the evidence presented to the jury did notmislead them, nor was any of it

- - ever misrepresented to them. The evidence was sufficient to justify the jury's finding that Lana ~ardins was killed bv means of torture 

### -- 

# ----- and that shedied as a result of her aGravated -- a a kidnapping 

### - by defendant."Therule is that if substantial evidence is 

### ----- found to support the verdict, itmnd. 

### - -- (citationsomitted.) ----- Such is the casehere." (Emphasisadded.) 608 P.2d 447-448. This again constitutes the Court's entire review of the jury

## 's two findings

# . This review of thesevital questions falls far short of the careful scrutiny mandated by the United States Supreme Court in all death penalty cases. Deliberatehomicide "bymeans of torture" is not a selfdefining term. Iam uncertainwhether this requires that the death actually be caused "by means of torture" orwhether it is sufficient that the victim was tortured at some time before death, even though the torture did not cause the death. This language, then, fails to contain the explicit guidelines necessary tomeet the exactitude required of a death penalty statute. Especially because this is a death penalty statute, Iwould declare it unconstitutional for vagueness. I find it strange indeed that themajority opinion has ignored the clear ambiguity of the statute. Itwould seem that this statute, to be constitutional,must have either one meaning or the other,but here its meaning has stillbeen left in doubt. A necessary corollary to the ambiguity of this statute, assuming that the statute isnot unconstitutional, is that it is at least ambiguous on its face and therefore requires judicial construction to give meaning to the statute. This judicial construction, because it is a death penalty case,must be based

on the premise that the statute is to be strictly construed against the State. Applied here, the State must prove not only that the victim was tortured, but also that the victim's death

was caused by that torture. The evidence falls far short of this requirement.The jury's verdict fails to disclose the basis for its decision--that is, what acts constituted the torture, and what conduct was relied on in inferring thatMcKenzie had the intent to torture the victim. The sentencing court's findings (based primarily on the jury's verdict) are equally vague. The only two findings on this issue state: 

### "4. The evidence in the case, and as found by the jury,discloses a brutal, conscienceless, torture, rape and deliberate killing of a human being.

"6. That the jury rejected the verdict form finding the defendantnot guilty by reason of a mental disease or defect which excludes responsibility for criminal conductwhichwas submitted to them 

### - and correctly found the defendantguilty of deliberate homicide which -- was 

### ---- by meansttorture, and guilty ofAggravated Kidnapping which resulted in the death of the victim." (Emphasisadded.) These findings reflect that the trial court relied on the jury'sverdict. The findings are devoid of any evidence fromwhich the trial court could conclude that the victim was in fact tortured. The jury's verdict, the trial court's findings, and this Court's three opinions fail to set forth evidence supporting a finding of deliberate homicide "bymeans of torture." What acts show that McKenzie intended to torture? What evidence shows that the victim suffered extreme pain? In fact, what evidence shows that the victimwas conscious when any of the injuries were inflicted? As I stated before, the term "deliberate homicide by

means of torture" is not self-defining. Nor do any Montana

cases or statutes define "torture." Two factors, however, are essential to "torture,"and this is particularly so where the "torture" is considered to be an aggravating circumstance which may trigger imposition of the death penalty. First, the essential question is whether the defendant intended thevictim to suffer extreme pain before death. I find absolutely

no evidence inthe record thatMcKenzie intended totorture his victim. Second, the deathpenalty statute is silenton whether it requires the Statetoprove that thevictimdid in fact suffer extreme pain before death. Torture obviously implies extreme pain, and therefore I believe that, inthe absence of legislative direction, strictconstruction of the statute against the State requires the Statetoprove that thevictim suffered extremepain as a resultof the torture. The legislaturehad the right toexplicitlydefine the term "deliberatehomicide by means of torture," but instead left the statuteambiguous. Because of the ambiguity of this statute,

a doubt arises, and an appellate courtmust, inconstruing the statute in a death penalty case, give thebenefit of that doubt tothe accused. Beck v. Alabama (1980), 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392; Andres v. United States (1948), L.Ed. 1055. 333 U.S. 740, 68 S.Ct. 880, 92/ Strictconstruction demands thatwe requireproof that the victim suffered extreme pain

asa direct result of torture before her death. As I have already stated, the record does not support such a determination. Another requirement isthat the torturemust have caused the victim's death. A pathologist testified that deathwas caused by massive blows tothehead. These blows cannot be called torture, nor can it be inferred that by these blows thatMcKenzie intended totorture hisvictim. The only possible evidence of torture is the fact that a rope was wrapped around the victim's neck and atone timethepressure of the rope on the neck was somewhat released. The pathologist, however, could not establish that thevictimwas conscious atthe time thiswas done, and, more importantrl.1,lie testified thatdeath

was not caused by st;ranguhthn, but by massive blows tothe victim'shead. This evidence clearly does not support a finding that death was caused "by means of torture." Nor does the evidence establish thatMcKenzie - intended to torture thevictim. The only evidence is indirect evidence-- the conditionof the victim's body and the manner in which the assault took place. It cannotbe doubted that the body was savagely beaten, but murder by torture cannotbe inferred either from the condition of the body or from the manner in which the assault took place. In Peoplev. Wiley (1976),ln3Cal.Rep. 135, 18 Cal.3d 161, 554 P.2d 881, the State of California, in seeking to uphold a murder by torture conviction,argued that torture could be inferred from the condition of the victim's body and from the manner of the assault. In rejecting this argument, the California Supreme Court stated: 

# ".

. . She [the appellant] correctly notes that murder by torture cannot be inferred solely from the condition of thevictim's body. (People

## v. Bevea (1974), 38 CaLApp.3d 176, 201, 113 Cal.Rptr. 254), or from themode of assault or injury suffered

(Peoplev. Tubby (1949) 34 Cal.2d 72, 77, 207 P.2d 51), but other evidence of intent to cause suffering is also reauired. r~itazons omitted.]" (Emphasis -- -- added.) 5<4 P.2d at 884. That situation applieshere. Evidence established that the victim had been savagely beaten, but the condition of her body did not establish that shewas tortured. Nor can the fact that shewas choked affirmatively establish thatMcKenzie intended to torture her. In People v. Bender (1945), 163 P.2d 8, 16, the California SupremeCourt, in reviewing a contention that strangulation establishes the fact of torture, stated: "The evidence does not, as the People contend, compel the inference that the killingwas murder of the fiwtdegree perpetrated by means of torture. [Citationsomitted.] Whether or not the two wounds on deceased's head, the immediate cause of death,were the result of defendant's striking her with a blunt instrument, the evidence, as a matter of law is insufficient to prove torture.The killerwho, heedless of the suffering of his victim, in hot anger and with the specific intent of killing, inflicts the severepain which may be assumed to attend strangulation,has not in contemplation of the law the same intent as one who strangleswith the intention that thevictim shall suffer.. 

# . ." The Court also expressly rejected any implication in People

v. Duggan (1943), 61Cal.App.2d 379, 143 P.Zd 88, that. choking constitutes torture as a matter of law. 163 P.2d at 16. The holding in Bender is especially applicable here because we are interpreting a death penalty statutewhich must be strictly construed against the State. Strict construction of the statutory language--"deliberate homicide by means of torturev--requiresan appellate court to hold that choking does not, as a matter of law, establish torture. Even a disagreement as to whether the statute is unconstitutionally vague on its facemust give way at least to a conclusion that itmust be strictly construed against the State. Here the evidence is insufficient to support the jury's finding, no matter which interpretation is used. The evidence does not establish thatMcKenzie intended to cause and did in fact cause the victim's death by means of torture. Nor does the evidence establish thatMcKenzie tortured the victim before he caused her death by means other than torture. Nonetheless, strict construction requires the statute be interpreted to mean that the death was caused by "meansof torture." The torture must cause the death. Here there is no evidence that any of McKenzielsactions which might be characterized as torture by

even themost liberal interpretation of the evidence, caused the death of thevictim. The blows to the head which caused death are not the kind of blows which can be characterized as torture. Clearly, then, the finding of "deliberatehomicide by

means of torture" is not supported by substantial evidence, and therefore, a necessary prerequisite to the imposition of the death penalty has failed.VI. DENIAL OF EQUAL PROTECTION OF THE LAW: SEARCHAND SEIZURE, LESSER-INCLUDED OFFENSE INSTRUCTIONS,AND SANDSTROM INSTRUCTIONS Because this Court has so inadequatelydealt with the issues raised, and has glossed over the real issue, I quote fromMcKenzielsbrief where he argues he has been denied--by this Court--equal protection of the laws: "Asdiscussed above, the law this Court applied in Petitioner's case at trial and on appealwas wholly inconsistentwith established Montana authority: on the tests and procedure for obtaining warrants, on submission to the jury of lesser included offenses clearly supportedby the evidence, and on the harmless error test in Sandstromviolations, amons other issues. From the outset of this case, petitioner has been placed in a class by himself on thesepoints,while he has been tried under an outdated and unconstitutional statute applicable only to one case, his. "Withall respect, Petitioner submits this Court has shifted the grounds for its decisions, acting consistently only in affirming Petitioner's conviction and death sentences. Petitioner and Petitioner alone has been permitted to (be) [sic] tried by a jury instructed on the law so erroneous under Sandstrom that both he and the prosecution objected--through application of a 'harmlesserror' test uniquely used in this case. Only in his case has a search warrant been allowed to be based on unrecorded

'testimony.' Only in his casehas a judge been allowed to refuse to instruct on a lesser included offense clearly warranted by the evidence submitted in his defense, the offense of mitigated deliberate homicide (seeDefendant's Proposed InstructionNo. 21, 25--an error of constitutional dimension affecting the reliability of his conviction. Cf., Beck v. Alabama, 48 U.S.L.W. 4801 (June 20, 1980). Only in his case has the repealed Montana Death Penalty Law been allowed to remain in force after a new law, with different protections,was enacted. "Thisallegation is not based on Petitioner's observation alone. Cf., State v. McKenzie, supra, 608 P.2d at 459-488 (Shea,J., dissenting). Petitioner has not been fairly and equally treated in this case. He is entitled to the same rights afforded any other criminal defendant tried in this State. The failure to afford him those rights, and this death sentence imposed under this one-case set of legal rules, constitutes a fundamentaldenial of equal protection of the law." Petitioner's Brief, pp. 20-21. In congratulating itself on the review given to McKenzie, the majority opinion states:

# ".

.

# . Itwillhe noted that some of the issues have been considered by thisCourt not once but two and three times. In allthe annals of criminal justice inthis state, we find no case inwhich a single defendant has received more tender legal care (using 'tender' inthe sense of careful and sensitivehandling)." 38 St.Rep. at 1749. If what has happened in this case isthe majority's idea of tender legal care, I doubt that anyone inthis statewould liketohave his case similarlyconsidered. To an offerof thisCourt of such "careful," and "sensitive" treatment, any person inhis rightmind would unhesitatingly respond: "Thanks, but no thanks." A. SEARCH AND SEIZURE McKenzie's allegationson the search and seizure issues

are simple, direct, and correct. He argues that rules on search and seizuremust be applied uniformly. But he contends that instead he has been isolated and special rules on search and seizurehave been applied tohim that have not applied to other defendants. I must agree. I statefirstthat I adhere tomy dissent inStatev. McKenzie (1978), 177 Mont. at 333, 581 P.2d 2.t1235,on the search and seizure questions. There, I set outjust how we had violated theMontana and United StatesConstitutions inholding the search and seizure to be valid. But McKenzie now raises the same issues ina different context. Hecontends, of course, that his constitutional rights wereviolated. But his claim now is that inaddition toviolating his rights directly, we have alsoviolated his rights because wehave denied him equal protection of the law by selecting him astheonly person who does not have constitutional rights. (McKenzie's brief on appeal, pages 5-7, 20-22.) The majority has ignored this issue exceptto say that the issues are res judicata. The issue of denial of equal protection isnot res judicata, however, and the majority has failed to answer it. McKenzie first contends that the majority violated the four-corners rule, contrary to all previous and all later decisions of this Court, by permitting unwritten (and possibly even unsworn) testimony in support of an application for a searchwarrant. McKenzie is absolutely correct. I dissented on this issue in McKenzie 11, 177 Mont. at 337, - 581 P.2d at 1237,and I need not repeat that dissent here. The facts speak for themselves. Inote, furthermore, that Justice Morrison, not on this Court in any of the previous McKenzie appeals,has also decided that the search warrant application violated the constitution. But now the majority has relied on a new res judicata rule to deny each of McKenzie's claims relating to illegal search and seizure. In denying review of these issues,we have effectively denied him equal protection of the law. The facts are irrefutable that we have applied different constitutional standards to McKenzie than to any other criminal defendant. McKenzie's second argument contends that the application for the searchwarrant, and the search warrant itselfwere overbroad, lacking the specificity required and consequently that the searchwas converted into an unconstitutional general search--a dragnet operation. Again, I agree. I dissented on this issue in McKenzie 11, 177Mont. at 333, - 581 P.2d at 1236, and Ineed not repeat that dissent here. And just as surely, the majority cannot take refuge in the special McKenzie res judicata rule applied here.Never has this Court permitted a searchwarrant, and never has this Courtpermitted a search as broad and general aswas undertaken in this case. We have sillq.led8 outMcKenzie as one who cannot assert that the searchwas converted into a general dragnet operationdevoid of any constitutional restraints. Third, McKenzie argues that even assuming probable

cause evidence could be received beyond the confines of the searchwarrant application, probable cause stilldid not exist for the issuance of a searchwarrant. Again, I agree. I dissented on this issue in McKenzie 11, 177Mont. - at 382, 581 P.2d at 1263,and I need not repeat that dissent here. This issue has never been fully and finally decided because the majority never set forth the evidence contained in the application for a search warrant. A general conclusion

as to sufficiency cannot be substituted for a factual statement setting forth the evidence contained in the application. In failing to set forth this evidence, themajority has again applied different constitutional standards to McKenzie than to any other criminal defendant, and he has been denied equalprotection of the law. Fourth and finally,McKenzie has raised a search and seizure issue which this Court has steadfastly refused to mention in its opinions. Even assuming that the four-corners rule did not apply to searchwarrant applications, McKenzie argues that all of the evidence or testimonypresented to the justice of thepeace still did not establish that there

were seizable items at the places to be searched. McKenzie is again correct. The application for searchwarrant onlydescribes the places to be searched, it does not state any evidentiary basis by which it can be concluded that the seizable itemswould be found there. Nor do any of the unrecorded statementsestablish a basis to conclude that seizable itemswould be found at the places described in the searchwarrant application. In fact, there is not

even an attempt to establish this necessary constitutional

nexus. Idissented on this issue in McKenzie 11, 177Mont. - at 378, 581 P.2d at 1260, and again I need not repeat that dissent here. Because themajority has never decided McKenzie's claim that in applying for the searchwarrant the State made absolutely no showing that seizable itemswould be found at the places to be searched, I fail to see that this issue is precluded even by this Court's application of its specialMcKenzie res judicata rule. How can an issue be fully and finally decided if it has been entirely ignored? Ithas always been fundamental and axiomatic to constitutional law that probable cause to obtain a search warrant must includeprobable cause to search the place

or places described in the application for the search warrant. If a reasonablebasis is not provided for tile magistrate to believe that seizable items are located at the place to be searched, there cannot be a search, it is

as simple as that. Zurcher v. Stanford Daily (1978), 436 U.S. 547, 98 S.Ct. 1970, 56 L.Ed.2d 525. See also Carroll

v. United States (1925), 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed 543; and Brinegar v. United States (1949), 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879.But here the searchwarrant applications made absolutely

no attempt to show a reasonable basis to believe that seizable items would be found at the places to be searched. Even this Court has recognized this axiomatic principle of search and seizure law. In Statev. DistrictCourt (1921), 59 Mont. 600, 198 P. 362, this Court quoted some fundamental principles of search and seizure law from Cooley on Constitutional Limitations: 

# ".



# . . But as search warrants are a species of process exceedingly arbitrary in character,and which ought not to be resorted to except for very urgent and satisfactoryreasons, the rules of lawwhich pertain to them are of more than ordinary strictness;and if a party acting under them expects legal protection, it is essential that the rules be carefully observed. In the first place, they are only to be granted in the cases expressly authorized by law, and not generally in such cases until after a showingmade before a judicial officer, under oath, that a crime has been committed and that the party complaining has reasonable cause to suspect 

### -- that the offender, - or the property whichwas -- the subject or -- the instrument of the crime, is concealed in some -- - -- specified house -- or place. And the law, in requiring 

### --- a showing of reasonable cause for suspicion, intends 

### - -- that evidence shall be given of such facts as shall ------ satisfy 

## - the magistrate -- that the suspicion - iswell -- founded; for the suspicion itself is no ground 

### -- --- for thewarrant except as the facts justify it." 

### -- 

### -- (Emphasisadded.) 198 P. at 365. The situation before us is not a question of determining how much evidence is sufficia-ktoprovide the magistrate with reasonable grounds; rather,the situation here is that the searchwarrant applicationsprovided absolutely no basis for the magistrate to independently determine that seizable items

were located on the premises to be searched. Because of this major defect in the searchwarrant application, all items seized pursuant to the execution of that searchwarrant were illegally seized. I have no hesitation in stating that this Court, by denying McKenzie the fundamental constitutional protectionsguaranteed by the state and federal constitutions,by its selective application of search and seizure law, has added another constitutional violation to the long list already existing--we have denied him equal protection of the laws. B. SANDSTROM-TYPE INSTRUCTIONS Although the Sandstrom-type instruction issue has been previously litigated,McKenzie's contention in this appeal is that in the manner we have applied the harmless error rule to the instructions,we have denied him equal protection of the laws. He sayswe have chosen a standard of harmless

error to apply to him that we have never applied to any other defendant. To that Imust agree. Not only did the majority in McKenzie I11 adopt a harmless error test that should never be applied to instructions,but it is true that we have never applied that test to any other defendant. That, call it by whatever other name you like, is a denial of equal protection of the laws. Intentwas an issue at the trial of this case. In Sandstromv. Montana (1979),442U.S. 510, 99 S.Ct. 2450, 61L.Ed.2d 39, the United States Supreme Court held that an instruction stating that "aperson is presumed to intend the consequences of his voluntary act" is unconstitutional because it shifts the burden to the defendant on an essential element of the crime--intent. The Supreme Court remanded Sandstrom to this Court to determine whether the unconstitutional instructionmay have been harmless. We promptly ruled that the error was not harmless, and that Sandstrom was entitled to a new trial because we could not say beyond a reasonable doubt that the instruction had no effect on the jury's decision. Statev. Sandstrom (1979), 

### -Mont

# . - 

### , 603 P.2d 244, 35 St. Rep. 744. -84-Although the United States Supreme Court decided the issue in Sandstrom, the issuehad been raised by McKenzie athis trial in January 1975 and in all of his appeals since then. It just so happened that because of the procedural

morass that the McKenzie case has been involved in, the United States Supreme Court first directly decided the constitutionality of the instruction Sandstrom. After the Sandstrom decision, the United States Supreme Court (even though McKenzie had raisedmany meritorious constitutional issues other than the Sandstrom instruction issue) remanded the McKenzie case back to this Court to determinewhether the Sandstrom-type instructions given at the McKenzie trial were harmless error. Oddly enough, only one unconstitutional instructionwas given in the Sandstrom case. But in the McKenzie case eight of these unconstitutional jury instructionswere given to the jury. Notwithstanding this situation, this Court, in deciding McKenzie 111,held that the unconstitutional instructions

were harmless error because of the overwhelming evidence of guilt. State v. McKenzie (1980), Mont

# . - 

## , 608 P.2d at 457, cert.den. -U.S. 

## , 101 S.Ct. 626, 66 L.Ed.2d 507 (1980). Inmy dissent to McKenzie 111, I concluded that the eight unconstitutional instructions could not be harmless

error. Intentwas an issue in the case and McKenziepresented evidence that he did not have the required mental state to

issue in the case, it cannotbe stated beyond a reasonable doubt that eight unconstitutional instructions stacing that a person is presumed to intend the consequences of his voluntary act are harmless error. I further stated thatthe overwhelming evidence test for harmless error cannot legitimately apply to jury instructions which have been declared unconstitutional. And finally, I pointed out that on previous occasions, in assessing the impact of the unconstitutional Sandstrom-type instruction,we had never applied the overwhelming evidence test. After our decision in McKenzie 111,McKenzie then for the third time petitioned the United States Supreme Court for a writ of certiorari--raisingmany important constitutional issues that this Court erroneously decided. Without comment,

a majority of themembers of the United States Supreme Court denied his petition for certiorari, stating only that "[tlhe petition for awrit of certiorari is denied." But Justices Marshall and Brennan dissented. In an opinion statingwhy they would grant certiorari, they strongly criticized this Court for theway we had treated the McKenzie case. 449 U.S. 1050, 1056, 101 S.Ct. 626, 630, 66 L.Ed.2d 507, 510. In particular, they were highly critical of the method by which this Court had decided the Sandstrom issue. In statingwhy certiorari should be granted on the Sandstrom issue, the dissent stated: 

# ".



# . .A state court's analysis of harmless error in a typical casemay notpresent a question worthy of full reviewby this Court, yet,where, as here, the death penalty is the result, close scrutiny is required. Because I find the court's analysis of harmless error lacking of even-handed treatment, I dissent from this Court's denial of certiorari." 449 U.S. at 1051. In describing the effect of this Court's use of this erroneous overwhelming evidence harmless error test as applied to unconstitutional jury instructions, the dissent stated: "Theresult [reachedby the Montana Court] was perhaps inevitable once the state court selected the 'overwhelming evidence' of guiltstandard to analyze whether the constitutional error was harmless. For whatever value that standard may have in reviewing a verdict following introduction of evidence in violation of constitutional guarantees, see, e.g., Milton v. Wainwright, 407 U.S. 371 (1972),use of the standard actually precludes effective review of the prejudicial impact of unconstitutional jury instructions. Where isolated, tainted evidence is at issue, the reviewing courtmay exclude that evidence from its assessment of whether the remaining evidence supports the conviction. But where the constitutionalerror occurred in the jury instructions,no isolated portion of the record can be eliminated from the judicial assessment. Nor can the effect of the instructionsbe evaluated by examining the evidence alone,and ignoring the unconstitutional instructions. For the precise issue in such cases is the manner inwhich the jury could have assessed the evidence as a whole, not the importanceof any particular piece of evidence to sustain the verdict. In selecting the 'overwhelmingevidence' standard on the theory that 'an appellate court should review the case as a whole in assessing harmless or prejudicial error,

### ' Mont. at 

### , 608 P.2d at 458, the state courtneglected to review the possible effect of the unconstitutional instructions on the jury's verdict."

(Emphasisadded.) 449 U.S. at 1054. The dissent then described how this Court had selectively treated the McKenzie case in applying the overwhelming evidence test to the unconstitutional Sandstrom-type instructions, and then summed up its criticism of this Court's majority opinion inMcKenzie 111: "Itappears that only in petitioner's case is the Montana court unwilling to apply this analysis. This seems to be yet another case in which a court sanctions 'egregious violations of the constitutional rights of criminal defendants by blandly reciting the formula 'harmlesserror.' Briggs v. Connecticut, 447 U.S. 912, 915 (1980),



## (MARSHAEL and BRENNAN, JJ., dissenting). However unpleasant the facts of this or other casesmay be, the courts are obligated to protect the constitutional rights of the defendant. Due to concern that petitioner's rights have not been preserved, this Court has already remanded this case twice. I can understand the Court's reluctance to entertain this case yet again, forwe presume that lower courts adhere to the purposes of remands from this Court. Yet the Montana court has failed to fulfill its obligation to carry out the mandate of our decisions. Therefore, 

### Iwould grant certiorari and set the case for plenary consideration." 449 U.S. at 1056-7. ,Themessage of this dissent is crystal clear. This Court adopted an erroneous standard of harmless error in deciding the impact of the Sandstrom-type instructions. And this Court denied McKenzie equal protection of the laws by selecting him as the only recipient of the "overwhelming evidence" test as applied to unconstitutional instructions. It is in the light of how this Court applied the harmless error analysis to one unconstitutional instruction in other cases, and how this Court then applied the harmless error analysis to eight unconstitutional Sandstrom-type instructions inhis case, that McKenzie now claims this Court has denied him equal protection of the law. McKenzie bases his equal protection argument on precisely what JusticesMarshall and Brennan stated in their dissent. When McKenzie later filed his petition for post-conviction relief,he raised the equal protection argument, but the District Court totally failed to answer that argument, and

now this Courthas also failed to meet that issue. The assumption of the majority is simply that the United States Supreme Court, implicitly at least, approved of this Court's application, of the overwhelming evidence test to apply to unconstitutional instructions. Although the opinion mentions that "twoUnited States Supreme Court justices disagreed in a dissenting opinion," the opinion fails to mention that the issue raised by JusticesMarshall and Brennan in their dissent isprecisely the issue now raised here by McKenzie. Themajority would have the denial of certiorari to be

apronouncement on themerits. Themajority states:

# ".

.

# . The position of this Court in McKenzie I11was not disturbed when the United States - Supreme Court refused certiorari from the decision in McKenzie I11 (1980),449 U.S. 1050, 101 S.Ct. 626, 66 L.~d.2d507. True, two United States Supreme Court justices disagreed in a dissenting opinion. Nonetheless themajority of the Supreme Court found no reasonwhen certiorari was soughtwith respect to McKenzie I11 to disturb the reliance of this Court on Milton v. Wainwright

(1972), 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1, to the effect that the constitutional infirmity is excludedwhere overwhelming evidence supports the conviction." 38 St.Rep. at 1754. Themajority position is wholly unsupported by the law. I have no ideawhy the United States Supreme Court denied the petition for certiorari. The petition raised many valid constitutional issues other than the Sandstrom-type instruction. The order denying certiorari states only that, "[tlhe petition for a writ of certiorari is denied." By this ruling, I cannot fathomhow this Court can state that the United States Supreme Court has ruled favorably on our adoption of the "overwhelmingevidence" test of harmless error to be applied to unconstitutional instructions. If it has, that Court has descended to a real low in constitutional interpretation, for it then has abandoned any meaningful test of harmless error. I am aware of no United States Supreme Court decision which holds that a denial of certiorari is an affirmative ruling on themerits in favor of resolving all issues the

sameway the lower court decided them. If this were so, a denial of certiorari would also have the effect of creating

a res judicata defense to any petition brought in federal court for a writ of habeas corpus or other post-conviction relief. Furthermore, language of Supreme Court decisions indicates that a denial of certiorari is not a ruling on the merits. In 1950, in State v. Baltimore ~adio Show (1950),338 U.S. 912, 70 S.Ct. 252, 94 L.Ed. 562, Justice Frankfurterstated that a denial of certiorari is not a determination

on themerits. Whether he was truly speaking for the Court when he made this statement, Ido not know. But if he was not, the United States Supreme Courthas never, to my knowledge, made any pronouncements contrary to whatwas stated by Justice Frankfurter. And the general assumption is,based

on Justice Frankfurter's statement, that a denial of certiorari is not a ruling on the merits. In the February 1971 issue of Judicature, The Journal of theAmerican Judicature Society,Vol. 64,No. 

### 7,page 326, citing as authority Justice Frankfurter's statement in 

### Stet- 

### v. Baltimore Radio ,Show,speaks to the effect of

a denial of certiorari by the United States SupremeCourt: "The Court has consistently articulated one such self-imposed rule: That the Justices decide whether a case should be reviewed not on the basis of their agreement or disagreement with the outcome between the parties in the lower court,but on the basis of their assessment of the intrinsic importance of the issues in controversy. A denial of review, therefore, does not mean that the Court agrees with the outcome of the case in the lower court,and a denial carries no significance as a legalprecedent. As Frankfurter explained: 'It simply means that fewer than fourmembers of the Court deemed it desirable to review a decision of the lower court as a matter of "sound judicialdiscretion."'"

(Emphasisadded.) See also, SupremeCourt Practice, Stern and Gressman (1978),pages 353-360,where the authors state that the denial of certiorari is not an affirmative statement that the lower appellate courtwas right. For my part, I am sure Iwill always remain mystified

as to why, when the United States Supreme Court states no

reasons for denial, a petition for certiorariwas denied. In fact,more than any case in which I have been involved

or have become aware of, I am totally mystified as to why, long ago, the United States Supreme Court did not grant fullreview to McKenzie on all the constitutional issues he has raised. Never have I seen a case, in all its aspects,

so lacking in fundamental due process. C. FAILURETO GIVE LESSER-INCLUDED OFFENSE INSTRUCTION ON THE

## CHARGEOFLIBERATE HOMICIDE 

## -- - An issue in each of McKenzie's appeals is his claim that the trial court erred in refusing to give a lesserincluded offense instruction to the charge of deliberate homicide. Specifically,he alleged that psychiatric testimony

was introducedwhich, if believed, would support a conviction ofmitigated deliberatehomicide rather than deliberate homicide. The psychiatrist testified that McKenzie was incapable of forming the requisite criminal intent or conforming his conduct to the requirementsof the law. If the jury accepted his testimony, it could have foundMcKenzie guilty of the lesser-included offense. But the trial court refused to give the instructionoffered by McKenzie's counsel. The majority, for totally unfounded reasons, decided against him

on this issue in McKenzie 

### - I, 557 P.2d at 1043;McKenzie -- 11, 581 P.2d at 1224; and McKenzie 111, 608 P.2d at 446. Although Idid not dissent on this issue in any previous decision because I concentrated on other issues and I did not have the time to sufficiently study all claimed errors, I have now studied this issue and am convinced that McKenzie is right. In his petition for post-conviction relief, McKenzie alleged not only that the trial court and this Court had already erred in not recognizing that a lesser-included offense instruction should have been given,McKenzie also alleged that this Court, in holding against him, deprived him of equal protection of the law. He alleges, and with good cause, thatwe have setMcKenzie up as the lone defendant whowould not be entitled to such an instruction under the factual issue presented to the jury. He alleges we have set.upspecial rules to apply to him in order to uphold the conviction. McKenzie is right. It has long been the law of this state,and I am sure it is the law of most states, that a defendant charged with a crime is entitled to an instructionon any theory of defense

as long as there is support in the evidence for his theory. This same law applies to a defendant's right to a lesserincluded offense instructions. For example, see State

### v. Bouslaugh (1978),176 Mont. 78, 576 P.2d 261, State v. Buckley

(1976),171Mont. 238, 557 P.2d 283; and Keeble 

### v. U.S. (1973), 412 U.S. 205, 93 S.Ct. 1993, 36 L.Ed.2d 844. McKenzie presented evidence through a psychiatrist that McKenzie was incapable of forming the intent necessary to commit the crimes charged. Based on this testimony he was certainly entitled to a lesser-included offense instruction. Unfortunately, the majority, in each of the decisions

on this issue, never mentioned the evidence existing in support of a lesser-included offense instruction. The majority's decision, in stating that no such evidence existed to justify

a lesser-included offense instruction, ignores the testimony of the psychiatrist who testified forMcKenzie. In effect, themajority became the finder of fact, rather than the jury. See McKenzie - I, 557 P.2d at 1043;McKenzie 

### - 11, 581 P.2d at 1224;McKenzie 111, 608 P.2d at 446. The jury was entitled to believe the psychiatrist if it chose to do so,but it

was prevented from even considering a lesser-included offense because of the trial court's failure to give appropriate instructions. 

### In taking the position that the evidence justified the giving of a lesser-included offense instruction, I amfully aware thatmy conclusion that the jury convicted McKenzie of deliberatehomicide by means of torture--a nonexistent offense--may appear to be inconsistent. Obviously,

a lesser-included offense instruction could be given only in relation to the deliberate homicide charge, that is, the jury would be instructed that it could convictMcKenzie of the lesser-included offense of mitigated deliberate homicide (section 94-5-103,R.C.M. 1947). The deliberate homicide by

means of torture offense, however,being a creation of the trial judge,has no lesser-included offense for the jury to refer to. I emphasize this fact only to show how horribly wrong the jury instructionsare in this case--they are an absolute nightmare.VII. McKENZIE WAS DENIED A FAIR TRIAL McKenzie raised many issues relating to the conduct of the trial and the instructions given to the jury. He argues that if none of the errors are sufficient themselves to grant a new trial, the doctrine of cumulative error certainly requires that there be a new trial. I have no doubt that McKenzie should have been given a new trial even without the benefit of the cumulative error doctrine. On the other hand, if ever there was a case inwhich to apply the doctrine of cumulative error in granting a new trial, this is it-- this case is full of error. A. INFLAMMATORY AND GRUESOME PICTURES The trial court permitted the State to introduce the most gruesome and inflammatory pictures that can be conceived. McKenzie contends that the pictures were not needed to establish any fact, and that in any event, they were so inflammatory and prejudicial they outweighed any possible probative value they may have had. I agree. In McKenzie - I, 171Mont. at 320, 557 P.2d at 1046, (Iwas not then a member of this Court), Judge Boyd, sitting for Justice Castles, dissented on this issue and concluded that this evidentiary error by itself entitled McKenzie to a new trial. Judge Boyd stressed that the pathologist testified he did not need the pictures to explain his opinion on any matter onwhich he testified, including the cause of death. Nonetheless, the trial court admitted the pictures, despite the fact that it and the prosecutor had agreed that the pictures were gruesome and inflammatory,and despite the fact that the trial court had previously instructed the prosecutor not to offer the pictures if the pathologist did not need them to explainhis testimony.Before the pictures weremarked in front of the jury and offered as evidence, defense counselmoved in chambers to exclude the pictures. The trial court agreed that the colored picture of the victim's body at the place it was found was "gruesome"and "inflammatory." (Tr. at 519.) The prosecutors also admitted that the pictures were gruesome.

(Tr. at 510-511.) The trial court specifically directed the prosecutors to ask the pathologist if he needed the pictures to explain his testimony. The court concluded by stating: "Ifhe doesn't need it, don't offer it." (Tr.at 520.) The pathologist, being questioned by defense counsel on preliminary examination, stated in no uncertain terms that he did not need the pictures to explain his testimony. Notwithstanding this testimony and the directive of the trial court, the prosecutor nonetheless offered the gruesome pictures into evidence despite the defense counsel's objections, and the trial court admitted them. The State made absolutely no showing that the pictures

were probative or that the prejudice inherent in showing these pictures to the jury far outweighed any possible probative value. I agree with Judge Boyd, especially because this is a death penalty case, that the pictures were so inflammatory that a new trial is required. B. ERRORS IN INSTRUCTIONS DEMAND A NEW TRIAL The trial court, in an unusual action, gavemany preliminary instructions to the jury before testimony started. McKenzie argues that it was improper in any case to give preliminary instructions,but more importantly, that these preliminary instructionswere gross misstatements of the law. He also contends that many of the instructions given to the jury at the conclusion 

### of the trial were also gross misstatements of the law, and that many were unconstitutional.In a proper case I seeno harm, and perhaps even good, in giving some preliminary instructions to the jury,particularly instructions relating to the evaluation of testimony and evidence. But here the instructionswent far beyond this purpose. In fact they were so bad that the prosecutors,

aswell as defense counsel, objected to them. On January 3, 1975, the prosecutors filed general written objections which canbe summarized as follows: "The instructions aremisleading and would tend to deny defendant his right to a fair trial. "The instructions place undue emphasis on presumptions and inference and therefore would detract the jury from properly listening to testimony and observing the exhibits admitted into evidence (these presumptionswere later declared unconstitutionalby the United States SupremeCourt in Sandstromv. Montana (1979), 442U.S. 510, 99 S.Ct. 2450, 61L.Ed. 39). "The instructions are redundant and confusing to the jury, as well as being misstatements of the law. "The instructions fail to disclose the trial court's source for this instruction. In addition, therewere further specific objections to the instructionswhich can be summarized as follows: "There is no statutory authority for reading to the jury the Counts in the Information as part of the statementof the case. "The title on the chargedenominated as 'Deliberate Homicide By Means of Torture" incorrectly stated the crime charged (deliberate homicide), and that the considerations of torture arises only under a punishment statute, and that this title ismisleading. "Thecharge denominated as 'Deliberate Homicide By Means of Lying inWait orAmbush' incorrectly - --- stated thecrime charged and that the consideration ofwhether the defendant was lying inwait or ambush arises only under a punishment statute, and that the use of this title ismisleading." The State's written objections containedmany more than those Ihave summarized,but what Ihave set forth sufficiently illustrates that the State had serious,meritorious objectionsto the instructions given. Notwithstanding the State's and McKenzie's objections, the trial court proceeded to give 29 preliminary instructions, including definitions for its two newly-created capital offenses: deliberatehomicide by means of torture and deliberate homicide by means of lying in wait

or ambush. The majority's analysis of the issues raised concerning the preliminary instructions omits even a reference to the new capital crimes created by the trial court: "Defendantcontends the extensive preliminary instructions given by the court were erroneous, that itwas error to give them prior to the introduction of evidence, and that the remaining instructions given after the presentation of evidencewere wrong. "Thepreliminary instructionswere the usual instructions given on the role of the jury. In addition, included were -- a nurhber of instructions which set out the elements of thevarious crimes 

### --- -- of which defendantwas accused, and set out - --- statutory definitions of -terms used. "Montana's criminal code is written in clear plain languagewhich serveswell as the basis for instructions to the jury." (Emphasisadded.) 608 P.2d at 444. Had the majority properly studied the issues raised and the instructions given, itwould have realized that several instructionswere not only misstatements of the law, but that the instructions defined two deliberate homicide charges not defined as substantive offenses by Montana law--deliberate homicide by means of torture and deliberate homicide by means of lying in wait or ambush. Furthermore,had the majority bothered to read its own earlier case of State ex rel. McKenzie v. District Court, supra, itwould have realized that the trial court instructed the jury precisely in the manner in which it was told not to do. The trial court instructed on deliberate homicide by means of torture and deliberate homicide by means of lying in wait or ambush even though this Court stated in State ex rel. McKenzie v. District Court of Ninth J.D.:"It isneither appropriate nor necessary to base separate counts on torture or lying in wait 

# . . . Section 94-5-105, Criminal Code of 1973, deals with sentencing and does not define a specific crime." 525 P.2d at 1217. And this Court further stated that references to the penalty provisions of the Code are "unnecessary, redundant and inflammatory." 525 P.2d at 1218. In facing these clearly erroneous instructions, this Courthad three choices: First, this Court could have refused to recognize the issues raised and therefore leave them undecided,but create the appearance that they had been decided. Second, this Court could have recognized the issue and then engaged in an extensive analysis of whether the instructions,although clearly erroneous,were harmless error. Third, this Court could have donewhat it should have done and granted a new trial because of the instructionsdefining nonexistent capital crimes. Sadly, this Court made the first choice and avoided the issue. Add to this the fact that eight of the instructions were, in one fashion or another, carbon copies of the instructionsheld unconstitutional by the United States in Sandstromv. Montana, supra. And aside from this, the instructionsas a whole are beyond any doubt the most confusing and inconsistent set of instructions Ihave ever

seen.Errors in instructionsalone require that McKenzie have a new trial. C. VII. THE TRIAL COURT ERRED IN REFUSING DEFENSE COUNSEL THE RIGHT TO VOIR DIRE THE JURY ON THE ISSUE OF MENTAL DISEASE OR DEFECT The trial courtwas unjustified in refusing defense counsel the right to questionprospective jurors concerning their attitudes on the defense of mental disease or defect.Defense counseldid not refuse to give notice of this intent merely out of obstinacy; but refused to do so in order to preserve the issue for appeal. He had already challenged the constitutionality of the statute requiring that he give suchnotice, and the trial court had already ruled against him. He did not later give a formal, written notice because he wanted to, and in fact,did present the issue to this Court in an appeal. Because McKenzie dared to challenge the constitutionalityof the statute,he was denied the basic right to questionprospective jurors on the basic issue of the trial. The trial court's ruling can be viewed only as the punishment for challenging the constitutionality of the statute requiring that a defendant give such notice. I cannot imagine any rulingmore prejudicial to a defendant at that stage of the trial. The fact that this is a capital

case only adds to the error and prejudice. Themajority ruling upholding the trial court's decision ignores the facts. At no time did the State assert it was surprised by defense counsel's request to question jurors on their attitudes toward the defense ofmental disease or defect; the record shows thatvirtually from the inception of his case, the State and trial court knew that McKenzie would be asserting this defense. In fact, several issues raised and decided in McKenzie's appeals directly relate to the issue ofmental disease or defect. First,McKenzie claimed that the State cannot constitutionally require him to give notice that he will rely

on the defense of mental disease or defect, but the majority held against him. 608 P.2d at 440-441. This issue alone should have foreclosed the majority from relying on the trial court's ruling that this voir dire was not allowed due toMcKenzie's refusal togive notice. Second, McKenzie claimed that the trial court erred inrefusing defense counsel's request that a psychiatrist be permitted tosit with and aid defense counsel while the State's psychiatrists

were testifying, but themajority decided against him. 608 P.2d at440. Third, McKenzie claimed that the trial court, by making his alleged diminished capacity an affirmative defense, shifted the burden toMcKenzie todisprove an essential element of the offenses charged. On this issue, the United States Supreme Court vacated the judgment of thisCourt and remanded for a determination of whether theprocedures and burdens of proof violated the principles of Patterson v. New York (1977), 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281. The majority again held againstMcKenzie. 608 P.2d at452- 456. And fourth, McKenzie claimed that the trialcourt erred by refusing certain instructionshe offered relating tomental disease or defect, and themajority again held against him. 608 P.2d at440. The situation attrialthen, is that the State and the trialcourtwere fully aware thatMcKenzie would rely on the defense of mental disease or defect, even though he had not given - formal, written notice. And theywere fullyaware that McKenzie would rely on the defense of diminished capacity by contending he could not have formed the intent tocommit the crimes charged. McKenzie did, inone form or another, relyon both these defenses. Surely, the trial court knew it would be error torefuse McKenzie the righttopresent evidence on these issues, yet it refused McKenzie's counsel the righttoquestion prospective jurors concerning their attitudes tothese defenses. Jurors could have saton this case with a fixed belief thatmental disease or defect isan illusory and much used technical defense designed only toprotect the guilty. I would presume prejudice inany

casewhere such a fundamental right is denied, and because thisis a capitalcase, I would consider theprejudice to be conclusive. Therefore, I would reverse and grant a new trial. D. THE TRIAL COURT ERRED BY GRANTING THE STATE'S MOTION ON THE FIRST DAY OF TRIAL TO ADD 58 MORE WITNESSES In my dissent, I have explained the background of the plea bargain issue (Part 111),after suddenly realizing the weaknesses that defense counsel exposed inthe State's case, the Stateknew it had toadd 58 more witnesses. In any major case, it must be presumed prejudicialwhere defense counsel is suddenly confronted with the need toprepare for the testimony of 58 more witnesses, but certainly, a presumption of prejudicemust attach ina death penalty case. Nonetheless, themajority rationalizes itsholding by

a four-part analysis: First, therewas no plea bargain and thereforeMcKenzie was not justified inrelying on a plea bargain; second, through discovery and its own investigation and preparation, the Stateknew that it had toadd the additionalwitnesses; third, in any event, not allof the witnesses testified and the prejudice was thereby minimized; and fourth, defense counsel waived any right tocomplain by not requesting a continuance inorder tobetter prepare for allof thesewitnesses. I have no doubt that a plea bargain existed, and so I must disagreewith the firstreason. Clearly, the defendant relied on the plea bargain indisclosing his own strategy and inrevealing theweaknesses inthe State's case. As to the second rationalization, there isnot a scrapof evidencein the record indicating that the Statehad obtained discovery from the defendant, and there is no evidence inthe record that the Statehad independently determined thatit had to add 58 more witnesses--on the firstmorning of trial. I also find it difficult tobelieve that if the Stateknew beforehand of the need to add 58 more witnesses, it would have waited until the startof trialbefore moving todo so. In fact, if thiswere the case, due tothe State's lack of diligence, the trial court should have denied the motion. The majority's third rationalization that not allof the 58 witnesses testified, although true, ignores the impact

on defense counsel of suddenly having toprepare for the testimony of 58 more witnesses. The addition of 58 witnesses certainlymust have had an impact on defense counsel's trial strategy, and certainlymust have meant long hours of preparation for the testimony of these witnesses, even though they may not actuallyhave testified. Adding thesewitnesses on the firstday of trialundoubtedly impaired the defense counsel's abilitytoconduct a proper defense. And while it istrue that defense counsel didnot ask for a continuance even though it could have done so, a request for a continuance would have been meaningless. The trial court, by thistime, had amply demonstrated prejudice againstMcKenzie and his counsel, and undoubtedly would have denied a motion for a continuance. Assuming furthermore, that defense counsel had moved for a continuance, and that ithad been denied, the sad record of thisCourt inconducting fairreview in this case convincesme that the majority of thisCourt would have held nonetheless that McKenzie was neither prejudiced by the addition of the 58

more witnesses nor by the trialcourt's refusal togrant a continuance.Nor does an order granting defense counsel the right to interviewa witness immediatelybefore that witness testifies cure any prejudice arising because of the eleventh hour addition of witnesses to the trialwitness list. An interview conducted under the hectic circumstances of a trial already in progress does not give defense counsel sufficient time to prepare for either direct examination or cross-examination of the witnesses. The majority again has been caught up in one of its many inconsistencies. If, as the majority states, the State knew from its investigation and preparation of the need to add 58witnesses, then the Statewas in bad faith waiting until the firstday of trial to request to add them to the list of trialwitnesses and the trial court should have denied the State'smotion. On the other hand itwas defense counsel who, in relying on the plea bargain agreement,apprised the State of theweaknesses in its case necessitating the addition of witnesses, this situation supports a finding that McKenzie detrimentally relied on the plea bargain and had a justifiable expectation that itwould be enforced. I am convinced that a plea bargain existed and that the need to add most or all these witnesses was disclosed to the State by defense counsel in reliance on a plea bargain agreement. The errors in this case are only compoundedwhere the State can breach a plea bargain agreement and then obtain the added benefit of bolstering its case for trial based on the disclosures of defense counselwho acted in reliance that plea bargain agreement. For these reasons, itwas reversible error for the trial court to permit addition of 58more witnesses on the first day of trial.E. THE TRIAL COURT ERRED BY REFUSING TOALLOWA PSYCHIATRISTTO SITWITH DEFENSE COUNSEL WHILE THE STATE'S MEDICAL EXPERTS WERE GIVING THEIR TESTIMONY In holding that the trial courtproperly denied defense counsel's request that a psychiatrist be allowed to sit at counsel tablewhile the State'smedical experts were testifying

(608P.2d at 447), the majority has omitted an important fact. One of the reasons that defense counsel made this request

was because one of the State's psychiatrists had a pronounced Cuban-Spanish accent which made it exceedingly difficult to understand him. He was the key psychiatric witness for the State. For this reason, defense counsel thought it imperative to have the aid of a psychiatrist when this witness testified. McKenzie's defense rested on mental disease or defect

or diminished capacity, that is,whether he had the capacity to form the intent required to commit the crimes charged. Obviously, itwas vital that defense counsel understand the nature of the examinations conducted by the State's psychiatrists and the opinions given by these psychiatrists. Although in a normal case this might not be error, the error is manifest where, as here, the defendant is on trial for his life. The trial court's ruling also was unfair because it did not confine the rule of exclusion of witnesses to rebuttal witnesses. The defendant was compe?lledto go firstby putting

on its expert testimony relating to McKenzie's mental condition. Because the State's psychiatrists were rebuttal witnesses, the trial court's ruling did not prevent them from listening to the testimony of McKenzie's expert witnesses. And even if they did not do so, the State surely had the

means to convey the essence of this testimony to the State's experts before theywere called to testify.Under the circumstances, I would hold it was error to refuse defense counsel's request. Especially sincehis clientwas on trialforhis life, thereq~stwas a reasonable one and should have been granted. F. THE CUMULATIVE ERROR DOCTRINE HAS NO BASIS FOR EXISTENCE IF IT IS NOT INVOKED INTHIS CASE TO REVERSE THE CONVICTIONS Throughout thisdissent and my lasttwo dissents, I demonstrated thatMcKenzie's trialswere riddled with error, not merely technical error, but error affecting his substantialrights. I need not again detail that error in concluding that the cumulative error doctrine has no basis forexistence if it isnot invoked here toreverse the convictions. The majority could reach a contrary conclusion onlyby closing their eyes tothe errors committed and apparently, that iswhat they have chosen todo.VIII. UNANIMOUS VERDICT REQUIREMENT McKenzie claims that the jury's failure to disclose the basis of itsverdict, since the casewas based on multiple and alternative theories of criminal responsibility,denied him of the unanimous jury verdict as guaranteed by the United States and Montana Constitutions. The majority has concluded that this rightwas not violated under the Montana Constitution and that there is no such right under the United States Constitution. Ibelieve, however, that McKenzie

was denied this fundamental right under both constitutions. I fully recognize that the United States Constitution does not guarantee a unanimous verdict in a state criminal prosecution,but because this is a death penalty case I believe the United States Supreme Court would impose such a requirement in all state criminal prosecutions--it is the only way of assuring the necessary certainty before a death penalty can be imposed and upheld. Because I do not believe that this Court can state beyond a reasonable doubt that the jury reached a unanimous verdict on any one or more the alternative theories of criminal responsibility,under the harmless error rule set forth in Chapman v. California, supra, the convictionsmust be reversed. I first raised the possibility of a non-unanimous jury verdict when I dissented to McKenzie I11 on the issue of the unconstitutional Sandstrom-type instructions. See 608 P.2d at 463, 474 and 482. Similar unanimous jury verdict issues were raised in both Coleman I11 and Fitzpatrick 111, 

### - and I filed dissents in both cases, concluding that they

were denied a unanimous jury verdict. The basis for myconclusions is equally applicable here and therefore I shall not repeat that reasoning nor case analysis here. It is sufficient to say that the majority here has not fairly distinguished United States v. Gipson (5thCir. 1977), 553 F.2d 453,or State v. Green (Wash. 1980), 616 P.2d 628. Further, the majority apparently has now abandoned any reliance on our own case of State v. Souhrada (1949), 122Mont. 377, 204 P.2d 792. See Fitzpatrick 111, 38 St.Rep. 1465D-65M. A. THE HOMICIDE CONVICTION--UNANIMOUS VERDICT REQUIREMENT Because I have concluded that the jury convicted McKenzie of deliberate homicide by means of torture--a nonexistent offense,my analysis of the unanimous jury verdict requirement must first take this conviction into account. Assuming that the jury convicted McKenzie of this offense, the conviction must nonethelessbe reversed,even if the jury

was unanimous. Obviously, a conviction for a crime that does not exist cannot be affirmed, regardless of whether the jury was unanimous in reaching its verdict. On the other hand, if it canbe concluded that the jury did not convict McKenzie of deliberate homicide by means of torture,but rather,of deliberate homicide, then a unanimous verdict problem is triggered. McKenzie was accused under section 94-5-102(a),R.C.M. 1947, of "purposelyor knowingly" causing the death of Lana Harding, but he was also charged in the alternativeunder subsection 94-5-102!b),K.C.11. 1947, with causing the death of Lana Harding while committing, engaging in, or withdrawing from the commission of either sexual intercoursewithout consent or aggravated assault. The problem is that the jury verdict fails to reveal under which subsectionof that statute it convicted McKenzie.Furthermore, if thejury applied subsection (b),which felony did thejury find he was committing? The underlying certainty required for any conviction thatmay result ina death penalty requires that the sentencing authority know preciselywhich theory thejury used inreaching itsverdict. But here that isimpossible. Neither the sentencing judge, or thejudge who presided

over the petition forpost-conviction relief, or thisCourt,

can determine from the record which theory of homicide the jury convicted on. The jury was not instructed that if it applied subsection (a)or that if it applied subsection (b) (and one ormore of its subtheories) it must be unanimous in doing so. Alldoubts astounanimity must be resolved in favor of the accused. Beck, supra; Andres, supra. The doubt here was createdby the Statedue tothemanner in which it charged McKenzie, and it was also caused by the trialcourt due tothemanner inwhich it instructed the jury. McKenzie's counsel offeredjury instructions and verdict forms which weremore explicit, but the trialjudge insisted on giving thejury theones he had prepared. The verdict (assuming again thatthejury did not convict McKenzie of deliberate homicide by means of torture) must be reversed under the harmless error test of Chapman v. California, supra. One effect of thejury's failure to specify thebasis for itsverdict isthat the death penalty cannot be imposed. ~ot only a13. doubts as tounanimity, but alldoubts affecting the substantialrights of the accused ina death Sjuor

### 0-F penalty case, must be resolved the accused. It must be assumed therefore that thejury applied the felonymurder rule infindingMcKenzie guilty. Such a finding does not carrywith it a finding thatMcKenzie had thepurpose to kill the victim. Such a finding isnecessary to the impositionof the death penalty. Lockett, supra. ~ccordingly, the death penalty cannot be imposed because of the absence of an essential jury finding. 

### B. THEAGGRAVATED KIDNAPPING CONVICTION--UNANIMOUS VERDICT REQUIREMENT McKenzie was also chargedwith multiple, alternative theories of criminal responsibility on the aggravated kidnapping charge. The instructions given and the verdict formwhich the jury was required to use do not reveal, however, the basis itused to determine which theory it applied in reaching its guilty verdict. The jurywas provided with only one guilty verdict form and one not guilty verdict form. The guilty verdict formprovided that the jurymake two findings: first,was ~cKenzie guilty of the crime of aggravated kidnapping (inessence a general verdict) and, second,did the aggravated kidnapping result in the victim's death. The jurywas instructed only that itsverdict and findings must be unanimous. It can be assumed that the jurywas unanimous. The jurywas instructed that its findings must be unanimous and there is no basis in the record to determine otherwise. However, the validity of this finding rests in turn on the validity of the underlying aggravated kidnapping conviction. There is absolutely no basis in the record to determine which theory or theories the jury applied in convicting McKenzie of aggravated kidnapping,nor is there any basis in the record to determinewhether the jury was unanimous

on one or more of the theories it applied in finding McKenzie guilty. McKenzie was chargedwith two counts of aggravated kidnapping, and each of these had two subcounts of criminalresponsibility. It is clear, therefore, that the jury could have split in two ormore ways on the theories of criminal responsibility it applied. For example, in Count 3,McKenzie was chargedwith kidnapping for the specific purpose of committing sexual intercoursewithout consent or for the specific purpose of committing aggravated assault. He was also separately charged with the distinct crimes of sexual intercourse without consent and with aggravated assault. However, the trial court also instructed the jury that if it convicted McKenzie of aggravated kidnapping, the jury did not have to reach a verdict on whether he was guilty of sexual intercourse without consent or guilty of aggravated assault. The jury

was instructed that thesewere included offenses. Because, however, the jury did not reachverdicts on these separate charges, it can only be speculated whether the jury applied either the first or second theory of Count 3 in reaching its guilty verdict. And it is equally speculative as to whether the jurywas unanimous on one or both the alternative charges contained in Count 3. The same situation exists with relation to the aggravated kidnapping charge contained in Count 4. Under the third theory the jurywas required to find thatMcKenzie knowingly or purposely restricted or secreted the victim for the specific purpose -- of inflicting bodily --- harm or of terrorizingher. Under the fourth theory, the jurywas required to find thatMcKenzie knowingly or purposely used

or threatened the use of physical force on the victim for the specific purpose - of inflicting bodily injury -- or for terrorizingher. Again, the record is silent on whether the jury applied the third or fourth theories in Count 4,or whether it applied both in finding McKenzie guilty ofaggravated kidnapping. Nor can it be determined as to whether the jury was unanimous in applying one or both the alternative charges contained in Count 4. The net result is that nobody can tell whether the jury found McKenzie guilty by applying the first or second theory in Count 3, or the first or second theory in Count 4. Nor can it be determined if the jury was unanimous

on any one theory it may have applied in reaching its verdict. Where the overriding effect results in the death penalty, this is not an acceptable result--the certainty required in death penalty cases by the United States Supreme Court requiresmore than this. See Beck, supra; and Andres, supra. -- I next discuss the substantial evidence question as it relates to the multiple alternative charges on which the jury was to base its verdict. I state from the outset that I have not reviewed the record--because the record was not before this Court for review. C. THE SUBSTANTIAL EVIDENCE QUESTION An assumption commonly made by appellate courts is that it does not matter which theory the jury used as a basis to convict as long as it can be determined from the record that substantial evidence existed on each of the theories presented to the jury. The unstated basis for these decisions seems to be that a defendant should not worry whether the jury unanimously agreed in fact upon a single theory of criminal responsibility as long as the jury unanimously agreed that the defendant was guilty of the general crime. That is the approach taken by the majority of this Court in Coleman 111, and - Fitzpatrick 111, to which I dissented.In one broad statement, themajority has, without indicatingwhat the theories are or what the evidence is, stated that substantial evidence supportseach of the theories charged for each of the crimes charged. The court disposes of the issue by stating: 

# ".

. . These verdicts and findings are not within the ambit of United States v. Gipson

(5thCir. 1977), 553 F.2d 453, or Statev. Green (1980), 94Wash.2d 216, 616 P.2d 628, for the reason that in this case, as distinguished from the cases onwhich petitioner relies, 

### - the evidence is sufficient 

### -- hereto support -- the jury verdict under 

### - any 

### - and -- all possibilities under the instructions. ---- It is idle to speculate -- in this case,under the instructions -- of the court -- and the overwhelming evidence, that there -- is any possibility -- that the verdicts or -- the findings in this case were less than unanimous." 38 St.~eg 

### ----- at 1756. I admit that I have not reviewed the trial record to determine whether substantial evidence exists for each of thealternatively charged theories of aggravated kidnapping and for each of the alternatively charged theories of homicide. When McKenzie's appeal of the denial of postconvictionrelief was heard and decided,we did not have before us the transcripts of the trial record. The reason is that a petition forpost-conviction relief is an entirely

newproceeding and therefore only the transcript pertaining to thatproceeding for post-conviction relief was sent to this Court. Neither the DistrictCourt nor the counsel for either side thought to have the trial transcripts sent to this Court. A transcript of the trial does exist, however, in the State Historical Society's archives. But I have no knowledge that any member of this Court inpreparation for the writing of this opinion went to the Historical Society to comb the trial transcript in an effort to determine whether there is substantial evidence to support all the theories charged.Because this Court did not have a transcript during the consideration of McKenzie IV, I am reasonably confid~nt - that the record was not specifically reviewed to determihe whether each of the theories of criminal responsibility was supported by substantial evidence. A death penalty case deserves better appellate review than this.IX. DEATH PENALTY ISSUES A. UNCONSTITUTIONALITY OF STATUTORY DEATH PENALTY SCHErn When McKenzie was charged, convicted, and sentenced, only two statuteswere ineffectwhich had a directbearing

on the death penalty--sections 94-5-105 and -304, R.C.M. 1947, enacted in 1973. There wereno statutes setting forth what were considered tobe either aggravating factors or mitigating factors. There wereno statuteswhich provided formandatory, expedited review of a death penalty sentence. In fact, therewere no statuteswhich expressly provided for any kind of review of a death sentence. Needless to say, then, neitherwere there any statuteswhich provided the method by which proportional review was tobe conducted by the state's highest appellate court. As I stated inmy dissent toMcKenzie - 11, 581 P.2d at 1266 to 1277, I read the following cases torequire that these statutoryprocedures be followed before a death penalty scheme can be declared constitutional on its face. Gregg v. Georgia (1976), 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859; Proffitt v. Florida (1976), 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913; Jurek v. Texas (1976), 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929; and Furman v. Georgia (1972), 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346. Because Montana did not have these statutoryprocedural protections, I concluded that the statutory scheme for imposition of the death penalty inthis statewas unconstitutional. Despite these defects inthe Montana statutory scheme, themajority inMcKenzie - I, - 11, and - 111, consistently refused togive effect tothemandates of the United States Supreme Court. By the strangest logic and by the most tortured statutory interpretation, the majority has papered-over severalnon-death penalty statutory schemes, and out of them created by judicial fiat, a new statutory scheme for capital crimes. In this appeal, the majority has avoided reviewingwhat the sentencing court did, and what the majority did in McKenzie - I, - 11, and 

### - 111,by invoking the specialMcKenzie post-conviction relief rule that the issues have already been decided. The opinion simply states: "[tlhe constitutionalityof the statute has been fully considered and decided by us." 38 St.Rep. at 1758. The constitutionalityof the statuteshas certainly been decided,but the constitutionality of the statute has never been fully considered. InMcKenzie - I1 (Iwas not a member of this Court when McKenzie - Iwas decided), I dissented to the majority's gymnastics in making McKenzie subject to a hanging edict. See 581 P.2d 1266 to 1277. I adhere to those views today. I summarize here my dissent in McKenzie - 11, and also comment here on the effect of an order handed down by this Court in the Coleman case,declaring that sentence review before the Sentence Review Board was never contemplatedby the sentence review statutes. Themajority holding in McKenzie - I, - 11, and - 111, that McKenzie could avail himself of the sentence review statutes and ask the Sentence Review Board to review his death sentence, is a papered-over attempt to save an obviously unconstitutional review system. (Iwill havemore to say in partIX of this dissent on justwhat transpired at the hearing before the Sentence Review Board.) I quoted and analyzed the sentence review statutes in McKenzie - I, and concluded that they were

never intended to apply to a defendant seeking review of a death sentence. The sentence review scheme is devoid oflanguage indicating that a death penalty defendant can obtain review of that sentence before the Sentence Review Board. In fact, the statutes do not even refer to the death penalty or to a death sentence, and it ismanifest that the legislature did not contemplate that the Sentence Review Board would be reviewing death sentences. (Seemy dissent in McKenzie - 11, 581 P.2d at 1273.) Assuming, furthermore, that the Sentence Review Board had the statutory authority to review and therefore to change

a death sentence to one less than death, the statutory scheme is still constitutionally deficient because this Court is not permitted to review a decision of the Sentence Review Board. The United States Supreme Court held in Gregg, Proffitt, and Jurek, supra, that a death sentence must be reviewed by the state's highest appellate court. The Sentence Review Board is not even an appellate courtmuch less the state's highest appellate court. The majority opinion in McKenzie I11 states that the Sentence Review Board is a branch of this Court. That is not true at all. We did not create the Sentence Review Board, it was created by the legislature, and just as it was created by the legislature so can it be abolished by the legislature. On the other hand, this Court is one of the three branches of government established by the Montana Constitution and, at tj-mesI am sure itwould like to do so, the legislature cannot. abolish this Court as it can abolish the Sentence Review Board. I engage in this analysis only to demonstrate the undeniable fact that the Sentence Review Board is not the highest appellate court in this state, that its actions arenot reviewable by this Court, and, therefore, that the statutory scheme createdby themajority opinion solely to uphold the constitutionality of the sentencingcourt's death edict cannot possibly comply with the United States Supreme Court mandate that the state's highest appellate court must finallypass on theproportionality of the sentence. I furthernote that thisCourt finallywas caught inthe web of its own logicwhen it was asked todetermine whether Coleman was aLsoentitled tohave his death sentence reviewed by the Sentence Review Board. After thisCourt affirmed in Coleman 

### - 11, 605 P.2d 1000, Coleman, relying on themajority decision inMcKenzie - I, - 11, and - I11 thatMcKenzie could have his death sentence reviewed by the Sentence Review Board, Coleman also applied tothe Sentence Review Board for review of his death sentence. The Board turned him down, and properly so, stating inits order of denial that it had no jurisdiction toreview a death sentence. After the Sentence Review Board denied Coleman's request, Coleman then applied to thisCourt for an order tocompel the Sentence Review Board toreview his death sentence. Asauthority, he citedMcKenzie 

## - 111. But this Court, in an unpublished opinion and order, upheld the Sentence Review Board, and held that the Sentence Review Board had no jurisdiction toreview a death sentence. I agreed with thisholding and signed the order because it affirmed exactlywhat I have always been contending-- that the Sentence Review Board has no authority toreview a death sentence. That order inColeman was handed down before McKenzie I11 was handed down. Inmy dissent toMcKenzie 111, I cited - and quoted from theColeman order in support of my position that the Sentence Review Board had no jurisdiction toreviewa death sentence and therefore that those statutes could not be relied on as being part of the constitutional statutory scheme relating to the death penalty. Of particular interest in the Coleman order is the statement quoted in the McKenzie I11dissent and repeated here, that: - 

# ".

. . Itwould not only be extra-statutory but an anomalywere we to hold that the conclusions of this Court on review of death sentenceswere subject to later reviewby the SentenceReview ~ivision of this Court." 608 P.2d at 487. With that I wholeheartedly agree. That ismy position

now and it has alwaysbeen my position. And it isprecisely why this Court should now review its holding that the Sentence Review Board can review the McKenzie death sentences. Sentence reviewbefore the Sentence Review Board was as anomalous for McKenzie as itwas for Coleman. Yet themajority has avoided a reconsideration of this issue, even though it is demonstrably wrong, by the use of its special McKenzie post-conviction rule. To review this Court's erroneous decision would mean a favorable decision for McKenzie, and that is precisely what this Court does not want. I have again emphasized this matter here because it vividly demonstrates the way inwhich the majority has twisted the law to uphold whatwould otherwisebe a constitutionally infirm death sentence. A federal courtwould have to be blind and utterly insensitive to the law if it did not see throughwhat the majority has done to McKenzie in each of his appeals. The death penalty statutory scheme is, on its face,patently unconstitutional. And the special creation of the death penalty schemeby the majority is also patently unconstitutional as applied. B. UNCONSTITUTIONALITY OF DEATH PENALTY STATUTES MANDATING DEATH "UNLESSTHERE ARE MITIGATING CIRCUMSTANCES"Sections 94-5-105, R.C.M. 1947 (deliberate homicide) and 94-5-304,R.C.M. 1947 (aggravatedkidnapping where the kidnapping results in the death of the victim) both mandated the death penalty "unless there aremitigating circumstances."

pIt appears,however, that the trial court concluded that since therewas only one victim involved it could not impose two separate death sentences. (Conclusionno. 1.) Nonetheless, the sentencing court found that therewere no mitigating circumstances and therefore imposed the death penalty. McKenzie argues that the language "unless there are mitigating circumstances,"gives the sentencing court unbridled discretion to determinewhether there are mitigating circumstances, and that the United States Supreme Court has invalidated statuteswhich give this uncontrolled discretion to the sentencing authority. I believe that this wording does precisely that. It is also an abrogation of legislative responsibility to fail to set guidelines for both themitigating factors that must be considered by the sentencing court and the weight to be given these mitigating factors. The deliberatehomicide statute, section 94-5-105, R.C.M. 1947 (1973Supp.) sets forth a list of six aggravating circumstances. The finding that one ormore of these circumstances existed mandates the death penalty "unlessthere aremitigating circumstances." (SeeI4cKenzie 111, 581 P.2d at 1227,where this statute is set out in its entirety.) The sentencing court found that an aggravating circumstancewas fulfilled, that is, that "thedeliberate homicide was committed by means of torture." In sentencingMcKenzie to death, it appears that the court relied on the jury's special interrogatory finding that the victim was dead as a result of the torture. The court then concluded that nomitigating circumstances existed, and therefore sentenced McKenzie to hang.The aggravated kidnapping statute, section 94-5-304, R.C.M. 1947, contained a similar "unless there are mitigating circumstances"clause. That statuteprovided: "A £01 if res mi tcourt shall impose the sentenceof death lowing conviction of aggravated kidnapping it finds that the victim is dead as the ult of the criminal conduct unless there are .igatingcircumstances." Yet, there was no statute which enumeratedwhat the legislatureconsidered "mitigating circumstances" to be. In Godfrey

### v. Georgia (1980),446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398, the United States Supreme Courtheld that a death penalty statutemust contain "clearand objective standards" and "specificand detailed guidance" for the sentencing authority. Measured by this declaration, the language of both statutes--

"unless there aremitigating circumstances"--has neither clear and objective standards nor specific and detailed guidelines. The judge's discretion to findmitigating circumstances is absolute. The United States Supreme Court has vacated death sentences imposed under statugeswhich provide the sentencing court with the same unbridled discretion as do the Montana statutes. See Tilford v. Page (1972),408 U.S. 939, 92 S.Ct. 2873, 33 L.Ed.2d 761;Williams v. Kentucky (1972),408 U.S. 938, 92 S.Ct. 2870, 33 L.Ed.2d 759; and Herron v. Tennessee (1922), 408 U.S. 937, 92 S.Ct. 2865, 33 L.Ed.2d 756. These decisions

were essentially based on the holdings of Furman, supra and Gregg, supra. The Montana statutes are in effect no different. They enumerate no mitigating circumstancesand thus give the sentencing judge unguided discretion to impose or to withhold the death penalty according to his own whims. Discretion cannot be broader than that. Under the Montana statutes, if the judge chooses to recognize a mitigating circumstance,he can do so,and therebywithhold a death sentence,but, aswas done here, if he choosesnot to recognize amitigating circumstance, he can thereby assure that the defendantwill receive a death sentence. The United States Supreme Court has found similar statutes to be unconstitutional since they give the sentencing judge uncontrolled discretion to impose the death penalty according to his own whims. Assuming, then, thatMcKenzie was not entitled to a new trial (minimumdueprocess standards dictate that he

# - is entitled to a new trial), Iwould vacate the death sentences thatwere imposed for deliberate homicide and aggravated kidnapping and direct that on resentencing the death penalty is not to be considered. C. FAILURE TO ACCEPT MENTAL DISEASE OR PSYCHIATRIC DISORDERASA MITIGATING FACTOR UNDER SECTIONS 95-5-501(1), AND 95-5-304, R.C.M. 1947 Still another argument is that even though the statutes set forth no mitigating circumstances, a mental disease or psychiatric disorderwas proved at the trial and as a matter of law itmust be accepted as a mitigating circumstance,thereby precluding the death penalty for either conviction. McKenzie also attacks the sentencing court's order which balanced the mitigating factors against the aggravating factors,and determined that the aggravating factors clearly outweighed any mitigating factors. McKenzie claims, and correctly so, that section 95-5-304, R.C.M. 1947,does not permit a weighing of aggravating factors against mitigating factors. Rather, he argues that if a mitigating factor is found to exist as a matter of lay then a death sentence cannot be imposed. The trial court sidestepped the issue and so did this Court. In ruling onMcKenzie's petition for post-conviction relief, the trial court held that the sentencing court hadfound McKenzielsmental disease to be "insufficient

### - to outweigh the aggravating circumstances found by --- the jury." And themajority here, in seizing on this ruling, agreed with the trial court that the existence of amental disease or psychiatric disorder "does not automatically immunize a defendant from the death penalty." 38 St.Rep. at 1760. Both decisions evaded the issue raised by McKenzie. Neither statute says anything about the sufficiency of

amitigating circumstance; neither statute requires balancing the aggravating factors against mitigating factors. Each statute clearly mandates the death penalty "unless there are mitigating circumstances." Here we have a situationwhere the sentencing court found that amental disease or psychiatric disorder did exist as amitigating factor,but nonetheless it rewrote them and declared that the aggravating factors outweighed the existence of any mitigating factors. This is a patently unconstitutional construction of a deathpenalty statute, for all death penalty statutes must be strictly construed against the statewith the benefit of all doubts going to the defendant. Beck, supra; Andres, supra. Here the sentencing court improperly - expanded the death penalty statute in order to impose the death penalty. McKenzie further supports his argumentby contending that the existence of amental disease or psychiatric disorder is universally recognized by the courts as amitigating factor. Lockett, supra. In this case, the State has not disputed that a mental disease or psychiatric disorder was proved at trial. The dispute goes only to the nature of that disease or disorder, rather than to its existence. McKenzie argues that the sentencing courtwas not only required to recognize this as

a mitigating factor,but that once it did so, the plain statutorylanguage of sections 94-5-304 and -501(1), R.C.M. 1947,-- "unless there aremitigating circumstances"--mandated that the death penalty not be imposed. The question is not, as the trial court and the majority have stated, whether such a condition "automatically immunizes a defendant from the death penalty,''but whether the statutes involved permit the sentencing court to nonetheless impose the death penalty once a mental disease or psychiatric disorder is found to exist. Since death penalty statutesmust be strictly construed against the State, this Court must hold that the sentencing court had no statutory right to impose the death penalty. The sentencing judge clearly went beyond his statutory powers by weighing the aggravating factors against the mitigating factors. This is still another reason for vacating the death sentence and remanding this case for resentencing with directions that the sentencing court not consider the death penalty. D. SECTIONS 94-5-304 and -501(1), R.C.M. 1947,UNCONSTITUTIONALLY SHIFTED THE BURDEN TO DEFENDANT TO PERSUADE THE SENTENCING COURT TO SPARE HIS LIFE McKenzie alleged in section 10(g) of his petition for post-conviction relief that sections 95-5-304 and -501(1), R.C.M. 1947,unconstitutionally shifted the burden to him to dissuade the sentencing court from imposing the death penalty. Themajority's failure to mention this as one of the issues undermines stillmore its statement that in all of the annals of criminal case history in the state,never has there been

a case treated with more "tender legal care." The United States Supreme Court has not yet decided the issue raised by McKenzie. In Lockett, supra, the Court expressly declined to rule on this issuebecause it chose to vacate the death sentence for other reasons.In both Coleman I11 and Fitzpatrick 111, I dissented

on this issue, stating that this burden of persuasion should never, in a capital case,be shifted to the defendant. The burden of proving why a defendant's life should be taken should always restwith the State. The reasons given in Coleman 111 and Fitzpatrick 111 also apply here--the statute isworded - -- differently,but the effect is precisely the same. Themajority has evaded this issue altogether. The trial court,however, considered this issue, but decided it improperly. The trial court held that the sentencing order did not on -- its face indicate that the sentencing court had placed the burden

onMcKenzie to dissuade the court from imposing the death sentence. Yet, that is precisely the effect given to the statute by the sentencing court. In holding that any mitigating factorsdid not operate to offset the aggravating factor~~the sentencing court impliedly ruled that it was McKenzie's burden to convince him to the contrary. Furthermore, the statutory language "unless there are mitigating circumstances," imposed

an impossibleburden onMcKenzie. He not only had to persuade the sentencing court that mitigating factors offset any aggravating factors,but he also had to be a mindreader to determine what the sentencing courtwould consider as a mitigating factor and what effect the courtwould give it. That is an unacceptable situationat any sentencing hearing and it is intolerable where a death sentencemay result. In Fitzpatrick 

### - 111, 38 St.Rep. at 1460 (and impliedly in Coleman 

## - III),themajority held that the statutewas not unconstitutional, even though it did indeed shift the burden of persuasion to the defendant. I dissented to both cases. See Coleman 111, 633 P.2d at 659; Fitzpatrick 

## - 111, 38 St.Rep. at 1464NK. The statute challenged by both Coleman and Fitzpatrick, section 46-18-305, MCA, provides in part that

# ".

. . the court

# . .. shall impose a sentence of death if it finds one or more of the aggravating circumstances and finds that there are no mitigating circumstances sufficiently substantial to call for leniency." Insofar as the burden of persuasion is concerned, this statute is no different in effect than the statutes challenged here by McKenzie. In each instance, the burden is shifted to the defendant facing a possible death sentence to dissuade the sentencing court from i~~posing it. In fact, the statutes applied to McKenzie are worse because they further impose on the defendant theburden to read themind of the sentencing judge in order to determine what that judgemay consider as mitigating circumstances and what weight he will give to them. Assuming again that the issues raised in this appeal do not require a reversal of the convictions and a new trial, the unconstitutional statutes applied to McKenzie require that the death sentencesbe vacated and that the

casebe remanded for resentencingwith instructions that the death penalty is not to be considered. E. IMPROPER EXPANSION OF DEATH PENALTY STATUTES TO INCLUDE NONSTATUTORY AGGRAVATING FACTORS TO BE WEIGHED AGAINST MITIGATING FACTORS--FAILURE TO GIVE NOTICE TO DEFENDANT In imposing the death penalty, the sentencing judgedid not confinehimself to the aggravating circumstance of torture that was found to apply to McKenzie,but he also added

sevennonstatutory aggravating factors and then weighed the aggravating factors against the mitigating factors. McKenzie argues that the sentencing court impermissibly expanded the scope of the sentencing inquiry and that he was prejudiced because the courthad not given him notice that it would do so. McKenzie irrefutably claims that hedid not know the sentencing courtwas going to consider nonstatutory aggravating factors. McKenzie further claims that the sentencing judge came to the sentencing hearing with his findings, conclusions,and order of death already prepared and ready to be filed at the conclusion of the hearing. It

was only when this order was filed that McKenzie learned that the court expanded the scope of the aggravating circumstances statute (section 94-5-105,R.C.M. 1947) and had added seven nonstatutory aggravating circumstances as reasons for imposing the death penalty. McKenzie argues that this expansion violated his Eighth Amendment rights, and that the court's failure to give notice of what itwould consider violated his due process rights under the Montana and United States Constitutions.

(Strangely enough, the sentencing judge in Coleman also arrived at the sentencing hearing with his findings, conclusionsand order of death already prepared.) The sentencing court had no right to expand the scope of the inquiryby adding nonstatutory aggravating factors. The death penalty statutes must be self-contained if they are to have any meaning at all, and the judge's conduct is therefore impermissible. But assuming that the court had the right to consider these nonstatutory aggravating factors, it had the duty of notifying McKenzie in advance of the hearing that it would be expanding the scope of the inquiry, and had a further duty to tellMcKenzie exactly what additional factors would be considered. Only by this procedure could McKenzie receive a meaningful opportunity to present evidence on each of the nonstatutory aggravating factors. The fact that the court came to the sentencing hearing armed with a sentence of death is clear evidence of an intent to deny McKenzie even a semblance of dueprocess.Imust state again that themajority opinion has failed to address the fundamental and underlying issues raised. Themajority,with no statement of its reasoning, held it was proper for the sentencing court to consider the

sevennonstatutory aggravating factors,but the majority fails to mention that McKenzie nonetheless argues hewas entitled to notice so thathe could present evidence on the factors the sentencing court would consider. The majority's self-laudatory statement that McKenzie has been given the most "tender legal care" in all the annals of Montana criminal justice again becomesmeaningiess in this case. On this issue also Iwould vacate the death sentence and remandwith instructions that the death penalty is not to be considered as one of the optionsfar the sentencing court. F. IMPROPER EXPANSION OF DEATH PENALTY STATUTES TO INCLUDE NONSTATUTORYAGGRAVATING FACTORS TO BE WEIGHED AGAINST MITIGATING FACTORS--FAILURE TO GIVE NOTICE TO DEFENDANT The jurymade no findings thatMcKenzie deliberately took the victim's life, and McKenzie therefore argues that the impositionof the death penalty violates the Eighth and FourteenthAmendments. He argues against the homicide conviction on the assumption that the jury found him guilty of deliberate homicide, rather than the trial court's offense of "deliberate homicide by means of torture." With this assumption, however,McKenzie argues that the jurymay have applied the felonymurder rule in finding him guilty of deliberatehomicide (seesection 94-5-102,MCA) and therefore it did notmake the finding that he deliberately took the victim's life. As to the aggravated kidnapping conviction, the jury also found that the kidnapping resulted in the victim's death,but the jurymade no finding that McKenzie deliberately took her life.On the day set for sentencing,the trial court came to court with its findings and conclusions and death sentence already prepared. The trial court expressly relied on the jury's findings in imposing the death sentence. The court referred twice to what it considered the jury's findings to be. Finding no. 

### 4 stated: "Theevidence in the case, 

### - as found 

### --- by the jury discloses a brutal, conscienceless, torture, rape and deliberatekilling of a human being." (Emphasisadded.) Finding no. 6 stated: "Thatthe jury rejected the verdict form finding the defendant not guilty by reason of a mental disease or defect which excludes responsibility for criminal conductwhich was submitted to them and correctly 

### -- found the defendant guilty of deliberate homicide which was bv means ~£-torture. - - - -- and guilty of ~~gravated ~idna~pin~ whiz -- resulted in the deathof the victim." (Emphasisadded.) But the jury did not expressly find that McKenzie deliberately took the victim's life--this is true in relation to both convictions. To assume that the jury imnliedly found that McKenzie deliberately took the victim's life itmust be assumed further that the jury convicted McKenzie of "purposely

or knowingly" causing Lana Harding's death rather than causing it in a felony-murder situation. The jurywas instructed alternatively on the deliberate homicide charges, and thus, there is no basis to determine from the record which theory the jury used in convicting McKenzie. The aggravated kidnapping conviction is similarly defective. The instructions did not require the jury to find thatMcKenzie, in committing the aggravated kidnapping, deliberately took the victim's life. And the returnedverdict reveals only that the victim died as a result of the kidnapping-- the jurymade no finding that McKenzie deliberately took her life.Unfortunately, the majority opinion omitted any reference to the homicide conviction and deals only with the aggravated kidnapping conviction. AGGRAVATED KIDNAPPING: ABSENCE OF A JURY FINDING THAT McKENZIE DELIBERATELYTOOK THEVICTIM'S LIFE The jury returned the following aggravated kidnapping verdict: "A. We, the jury, in the above-entitled cause, find the defendant Guilty of the offense of Aggravated Kidnapping as charged.

"B. We further find that Lana Harding (did)(d*d 

### not) die as a result of saidAggravated Kidnapping. "(Strikeout bracketed word orwords that do not apply. 

### " This verdict shows that the jurywas not asked to find that McKenzie deliberately took the victim's life. This returned verdict cannot support the conclusion that the jury made that determination. Whether the jury believed that McKenzie deliberately took the victim's life is another question altogether. It is sufficient to say that no such finding appears in the record. The finding that the aggravated kidnapping resulted 

### - in 

### - the -- death of the victim is not equivalent to a finding that McKenzie deliberately took the victim's life.Nor did the trial court make independent findingson this question. Rather, in imposing the death penalty, it expressly relied onwhat itbelieved the jury had found.

(Findingno. 

### 4, supra.) But in denying post-conviction relief to McKenzie, both the trial court and this Court have ignored the issues, and instead simply imposed their own views of what the evidence disclosed, rather than relying onwhat was actually found or not found. Without reaching the issues raised by McKenzie, themajority states:"InMcKenzie 111, 608 P.2d at 459, as the District Court noted in consideringpetitioner's application for post-conviction relief,we found the evidence on the issue of intent to be overwhelming,uncontradicted and permitting of but one rational conclusion--that McKenzie intended to kidnap and kill thevictim." 38 St.Rep. at 1759. The trial record does not support this statement. First, this statement assumes that the jury or judgemade these necessary findings. That is not the case. Second, this statement does not accurately reflect the evidence. The evidence on the question of intentwas not uncontradicted. A psychiatrist testified that McKenzie could neither appreciate the criminality of his acts nor conformhis conduct to the requirementsof law. This question surely goes to the issue of criminal intent--and criminal responsibility. Criminal responsibility can arise only if criminal intent exists. Third, the majority's statement ignores the fact that the State's

case was aided mightily by a barrage of unconstitutional Sandstrom-type instructions which allowed the jury to presume criminal intent. Regardless of what themajority perceived the evidence to be, the simple fact is that the majority is not the fact-finder. That is the function of the jury. And regardless of what the evidence shows, the fact is that the record does not demonstrate that the jury in fact found that McKenzie possessed the intent to kill. The faultmay liewith the jury instructions orwith the verdict forms,but that does not alter the situation. The jury did not make the findings necessary for the imposition of the death sentence. In criticizing this Court for usurping the power of the jury and serving as a fact-finder, JusticesMarshall and Brennan stated:"Butwhat evidence did the court [the Montana Supreme Court] find sufficient to overcome the constitutional error of directing the jury to presume the presence of the requisite criminal intent from the nature of the acts committed? TheMontana court itself relied solely on 'the vicious manner inwhich the crimes were committed' in concluding that petitioner 'purposely and knowingly intended' to commit the crimes. Id., at 450, 459. I cannothelp but be shocked that in taking 

### --- -- this approach, the Montana court simply applied the forbiddenpresumption. In so doing,the court 

## - neqlected to perform its task on review: it failed to examine whether the disapproved instructions could have infected the jury verdict. Instead, the court served as another factfinder,again impermissiblyplacing the burden on petitioner to disprove that the nature of his acts established the-requisitecriminal intent. It surely cannot be that a verdict followinsan unconstitutional instruction permitting the jury to presume --- criminal intent-canbe immunized from reversalTbecause the reviewlns court also impermissibly

d 

## - 

# - - presumes criminal intent." -U.S. 

## , 101 S.Ct. 626, at 628-29, 66 L.Ed.2d 507,at 509.

(Emphasisadded.) Not only did this Court erroneously apply the forbidden presumption in reaching the conclusion that proof on the question of intentwas overwhelming, but it again has overlooked the even more important fact that the jurywas never directly told to determine as part of its verdict the question of whether McKenzie deliberately took thevictim's life. The jury found only that the aggravated kidnappingresulted in the victim's death. Nor canwe read into the jury's verdict an implied finding that McKenzie deliberately took the victim's life in the course of committing the aggravated kidnapping. None of the instructions on aggravated kidnapping (instructions

no. 25, 29-V and 36)required the jury to find that ~c~enzie deliberately took the victim's life. The only other instruction involved concerns the special finding the jurywas to make if it found McKenzie guilty of aggravated kidnapping--the jury was then to determine if the aggravating kidnapping resulted in the victim's death. (Instructionno. 54-111.)This instruction does not tell the jury that it must, beforemaking that finding,determine that McKenzie deliberately took the victim's life. The next question iswhether the sentencing judge, in the absence of a jury finding that McKenzie deliberately took the victim's life, couldmake that finding himself as part of the sentencing process. In this case, finding

no. 4, supra, is so vague that I cannot determine whether the sentencing judgemade that independent determination or not. But if I had to interpret this finding, Iwould say that the sentencing judge simply relied on what he considered to be the jury's finding--a totally misplaced reliance because the jury did not make the findings that tI:e Court.said it did. Assuming arguendo, however, that the sentencing judge did make independent findings that McKenzie deliberately took the victim's life, it ismy position that this function,

as a prelude to imposing a sentence of death, can only be made by a jury, and that such a findingby the sentencing judge is constitutionally prohibited. Seemy dissents in Coleman - 11, 605 P.2d at 1045; Coleman 111, 633 P.2d at 660- 61; and Fitzpatrick 

## - 111, 38 St.Rep. at 1465F~-65GG. Iwould adhere to the trial record's showing of what the jury found, as opposed to the majority's conclusion of what the evidence shows. Based on the absence of a finding that McKenzie deliberately took the victim's life, I would vacate the death sentence since it is based in part on the jury's finding that the aggravated kidnapping "resulted in the death of thevictim." DELIBERATEHOMICIDE: ABSENCE OF A JURY FINDING THAT MCKENZIE DELIBERATELY TOOK THEVICTIM'S LIFE Although the jurymade no finding thatMcKenzie intended to killhis victim, the real problemwith this conviction isthatMcKenzie has been convicted of a nonexistent offense (seepart of this dissent)

# . Beyond this, however, the majority has failed to mention this issue in its opinion-- anothen example sf the "tender legal carew--thatthe majority claims it has givenMcKenzie in reviewing his convictions and death sentences. Since the jury convicted McKenzie of deliberate homicide by means of torture, the only result is that the conviction must be reversed with directions to dismiss that charge since no such offense exists. But if the jury did convictMcKenzie of deliberatehomicide based on either subsections 94-5-102(a)

or (b)

## ,R.C.M. 1947, the question then arises as to which subsection the jury convicted him of. Lf the juryused subsection (a),and therefore decided that McKenzie "purposely or knowingly" took the victim's life, its decision would be constitutionally sufficient. On the other hand, if the jury applied the felony-murder rule of subsection (b), there would be no finding thatMcKenzie deliberately took the victim's life and therefore its decision would be unconstitutional. Assuming that the jury did convict McKenzie under either subsections 94-5-102 (a)or (b),R.C.M. 1947,McKenzie argues that the record fails to reveal which theory of criminal responsibility the jury applied, and therefore the death penalty cannotbe imposed. The certainty required in death penalty cases means that the defendantmust be given the benefit of any doubt arising from the proceedings. Since it cannotbe determined whether the jury used subsection (a)or subsection (b)in reaching its conviction, this doubt, McKenzie argues, means that he cannot constitutionallybe sentenced to death.Unfortunately, themajority opinion is silenton this issue. I assume, however, that had the opinion dealtwith the issue, itwould have done so inthe same way that it Zcalt with the aggravated kidnapping issue--that is, that the evidence was overwhelming and uncontradicted. And, of course, my arguments would be the same here as they are on the aggravated kidnapping issue. The evidence on the question of intent is certainly contradicted by the psychiatrist testifying on behalf of McKenzie, and was impacted by the

use of the unconstitutional Sandstrom-type instructions. The majorityhad no right todetermine the facts itself. The jury either found thatMcKenzie deliberately took the victim's lifeor it did not. McKenzie relies again on Lockett, supra, and the concurring opinions of Justices White and Marshall inarguing that, miniminally, the EighthAmendment requires a jury finding that the defendant had thepurpose totake thevictim's life. If this isthe law, thenMcKenzie cannot be executed. The homicide conviction iscomplicated by several factors. As I have already explained, thejury verdict cannot be read inisolation from the instructions, but rather, can only be understood inrelation tothem. The verdict returned by the jury stated: "A. We, thejury in the above entitledcause find the defendant guilty of the offense of Deliberate Homicide as Charged. "B. We further find that theDeliberate Homicide (was) (wes ~et) by Means of Torture. "(Strikeout thebracketed word orwords which do not apply.) In part IV, of this dissent, I have explained how thisreturned verdict was tieddirectly intothe explanation and definition of the nonexistent offense of deliberatehomicide by means of torture,and that the jury had no choicebut to use this guilty verdict form, for itwas provided with no others. But to set aside the conviction of a nonexistent offense, the findings in this verdict must still be explained by the instructions. Finding A says that the jury found McKenzie guilty of "DeliberateHomicide as Charged." The fact is thatMcKenzie was chargedwith deliberate homicide under the two theories contained in section 94-5-202, R.C.M. 1947. The first theory, subsection (a),requires that the jury find thedefendant "purposely or knowingly"killed the victim. The second theory, subsection (b), is a statement of the felony-murder rule and does not require finding that thedefendant "purposelyor knowingly"killed the victim or thathe intended to do so. The jury was instructed alternatively

on these theories and its verdict does not statewhich theory it applied in reaching its decision. Nor can Finding B support an implication that the jury foundMcKenzie intended to take the victim's life. The only instructions defining the word "torture"or "bymeans of torture" are contained in the instructions defining the nonexistentoffense of "deliberate homicideby means of torture." In each of these instructions the jury was expressly told that in order to find McKenzie guilty of deliberate homicide by means of torture, it did not have to find that he intended to kill the victim. (Instructionsno. 23, 29-11 and 34.) Specifically, instruction no. 23 stated in part: 

# ".



# . . is guilty of the offense of Deliberate Homicide by Means of Torture,whether or 

### -- not itwas thepurpose or intention of the assailant --- 

### -- to cause such death." (Emphasisadded.) 

### - -- And instructionno. 34 repeated this same language:"And ifyou find one ormore of saidparticular purposes tohave been proved beyond a reasonable doubt and that the defendant killed her while purposely so inflictingcruel sufferingupon her, he has committed the offense of Deliberate Homicide by means of Torture, whether itwas or --- wasnot hispurpose or intention tokillher." 

### --- 

### - --- (Emphasis added.) Surely it cannot be determined from these instructions --the only ones defining "by means of torturem--that the jury found McKenzie intended tokillhis victim. The most that

can be said is that the jury was free toreach a verdict without ever considering whether McKenzie intended tokill. It ispossible, of course, that thejury subjectively decided thatMcKenzie didpossess the intent tokill, but nowhere is thatdecision revealed orimplied. If, before a deathpenalty

canbe constitutionallyimposed, the jury must find and the record must reveal that the defendant intended tokillthe victim, it ismanifestly clear thathere the death sentence cannot constitutionallybe imposed. Neither the returned verdicts nor the instructionsrequired thejury tomake this

/ decision. Whether the jury subjectively reached thisdecision is another question, but obviously a death penalty cannot be imposed based on what a jury subjectively thought. I believe that only a jury can make the decision of --- whether a person can live ordie, and --- only a jury can make the underlying decisions aswell. Accordingly, if the sentencing judge made the findings himself, thiswould amount toa usurpation of the function of the jury, and thejudge's findings could not constitutionally stand. But I am not certain that the sentencingjudge himself made an independent finding concerning an intentional taking of life. Rather, it appears thathe relied on the jury's determination, yet realized that the jury had not made that determination. Again, the only finding on this issue stated:"4. The evidence inthe case, and as found by the jury discloses a brutal, conscienceless, torture, rape and deliberatekilling of a human being." (Emphasis added.) This finding, if it can be called that, isambiguous atbest. Did the sentencingcourt make its own findings on the facts stated, ordid it rely on the jury's decision on these issues? By eliminating the words--"and -- as found by - thejuryn--it would appear that the sentencing courtmade 

### -- itsown findings. On the other hand, with the words--"and -- as found by thejuryw--it would appear that the sentencing court 

### --- was merely repeating the factswhich i.t believed the jury to have found. This being a capital case, I believe that findingno. 4 is so ambiguous that it cannot stand as one of the founda.tions on which the deathpenalty can be imposed. Nonetheless, the finding is filledwith error. Firstassuming that the sentencing courtwasmerely relying on the jury's ckcis3-on, findingno. 4 isflatlywrong in several respects. First, thejury did not expressly or impliedly find thatMcKenzie intended tokillthe victim. If the sentencingcourt used this finding as foundation on which toimpose the death penalty, then the death sentence cannot stand

# . Second, although the jury did determine that thehomicide occurred "bymeans of torture," the jury only could have decided this issueby using the deliberatehomicide by means - of torture instructions (instructionsno. 23, 29-11 and 34). - This againmeans that the jury found McKenzie guiltyof a nonexistent offense. Third, thejury didnot find thatMcKenzie had raped the victim. Although McKenzie was charged with rape and evidence

was presented that the victim had been raped, the jury, becauseof the trial court's instructions,did not reach that charge. The trial court expressly told the jury that if it found McKenzie guilty of aggravated kidnapping or deliberate homicide by means of torture,or both, itwould not have to consider the lesser charges because theywere classified as lesser-includedoffenses (See instruction no. 54,part 111). That is precisely what happened and the trial court accepted the jury's verdicts. Obviously,because of the alternative charges, an implied finding of rapewas not necessary to either an aggravated kidnapping or deliberate homicide conviction. Fourth, there is a real question concerning whether the victim was tortured within tlie definition of torture given to the jury. This is also an issue that McKenzie has continually raised but this Court has consistently avoided. There is no doubt that the victim was brutallymurdered, but a brutal murder does not mean that itwas a murder by torture. McKenzie argues that there is not substantial evidence to support a finding that the victim was tortured. (See part V of this dissent.) Because Ibelieve that the jury in fact convicted McKenzie of the nonexistent offense of deliberate homicide by

means of torture, much ofmy discussion is unnecessary. On the other hand, because themajority has not only ignored this issue but also the issue relating to whether the jury found thatMcKenzie deliberately took thevictim's life, I feel compelled to express my views. Clearly, the jury did not expressly or impliedly find that McKenzie deliberatelykilled his victim. This being so, the death penalty cannotbe imposed. Even assuming that the deliberate homicide by means of torture conviction does not have to be reversed and dismissedbecause there isno such crime, Iwould in any event, because of my views expressed here, remand the case for resentencing with instructions that the death penalty is not to be considered. G. AN EVIDENTIARY HEARING IS REQUIRED TO DETERMINE WHETHER THE DEATH PENALTY IN MONTANA IS IMPOSEDARBITRARILY, WANTONLY, FREAKISHLYAND DISCRIMINATORILY In upholding the death penalty as an abstract principle, the United States Supreme Court left the door open for the factual claim that the death penalty may be imposed arbitrarily, wantonly, freakishly,and discriminatorily. llcKenzie has attacked the Montana death penalty on precisely this ground and has set forth in a supporting affidavit factswhich he claims an evidentiary hearing will prove. He alleges that

no person has been executed in this state since 1943, and that now the only persons on death row are himself, Coleman and Fitzpatrick. He claims that he and the other defendants have been arbitrarily selected to receive the death penalty, and that scores of defendantsbefore and since have been convicted of capital crimes but have not received the death penalty. In Gregg, supra, the United States SupremeCourt, extremely conscious that its holding in Furman, supra,had been misinterpreted, attempted to distillwhat it considered to be the essence of Furman. In Gregg, the Court explained that part of its Furman holding invalidating Georgia's death penalty,was that the death penalty was being imposed discriminatorily,wantonly and freakishly, and so infrequently that any given death sentence was cruel and unusual. Gregg

(WhiteJ., concurring), 428 U.S. 220-221. This conclusion in Furmanwas reached after considering the result of capital sentencing practices -- in fact,rather than by simply examiningthe abstract statutes on the books. Furman, 408 U.S. at 256-257 (Douglas,J., concurring); 408 U.S. 293-295

(Brennan,J., concurring); 408 U.S. at 309-310 (Stewart, J., concurring); 408 U.S. at 311-314 (White,J., concurring). The Furman holding is simply an application of the long-established rule that a statutevalid on its face

can be administered in a manner violative of the Constitution: "Thegenerality of a law inflicting capital punishment is one thing. What may be said of the validity of a law on the books and what may be donewith the law in its application do, ormay, lead to quite different conclusions." 408U.S. at 242 (Douglas,J., concurring). InGregg, then, once having set forth what it considered its holding in Furman to be, the SupremeCourt upheld the deathpenalty statutes then on the books in Georgia. The Court expressly recognized that the allegation that the new deatH penalty statuteswere still imposed arbitrarily and discriminatorilywas "unsupportedby any facts." (~mphasis -- added.) 428 U.S. at 225 (White,J., concurring). In the absence of supporting facts, the Supreme Court declined to

assume that the kind of arbitrary and discriminatory sentencing found in Furman had carried over to the new Georgia statutes and their application. But a different situation exists here. McKenzie alleged facts in his petition and supporting affidavit that directly challenged the assumption onwhich Gregg was based, and he offered to prove these facts at an evidentiary hearing. If proved, these facts would establish that the deathpenalty schemewas not just arbitrary and discriminatory

on its face, but just as important, that itwas arbitrary and discriminatory as applied. These allegations are clearly sufficient to require an evidentiaryhearing.In refusing to order an evidentiary hearing on these claimed constitutional violations, the trial court and this Courthave subverted the purpose of the postconviction relief statutes and have taken fromMcKenzie any opportunity to show in our state court system that the applicationof these statutes is unconstitutional. McKenzie has been deprived of a state remedy and a state forum to present his constitutional claims. H. AN EVIDENTIARY HEARING IS REQUIRED TO DETERMINE THE CLAIM THAT THE DEATH PENALTY INMONTANA IS SO INFREQUENTLY IMPOSED THAT ITNO LONGER SERVES A VALID STATE INTERESTAND THEREFORE CONSTITUTES CRUELAND UNUSUAL PUNISHMENT Closely connected to McKenzie's claim of the arbitrary, wanton, freakish,and discriminatory application of Montana's death penalty is his claim that its infrequentuse leads to the conclusion that it no longer serves a valid state interest, and is therefore cruel and unusual pu.nishment. Again, neither the District Court nor this Court ruled directly on this claim despite the fact that McKenzie has alleged evidentiary facts in support of his contention. In Furman, supra, the United States Supreme Courtmerely held that the death penalty is not per se unconstitutional, but the Court recognized certain limitations. Those limitations have been raised in this case,yet this Court has refused to permit an evidentiary hearing on the claim. In Furman, Justice White clearly pointed out in his concurring opinion that

# ".

.. as the statutes before us are now administered, the penalty is so infrequently imposed that the threat of execution is too attentuated to be of substantial service to criminal justice." 408 U.S. at 313. Justice White also stated: 

# ".



# ..At the momei~tthat [thedeatllpenalty] ceases realistically to further these purposes, however, the emerging question is whether its impositionin such circumstanceswould violate the Eighth Amendment. It ismy view that itwould, for its impositionwould then be the pointless and needless extinction of life with onlymarginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the Statewould be patently excessive and cruel and unusual punishment violative of the EighthAmendment." 408 U.S. at 312. McKenzie alleged in his petition for post-conviction relief, and more particularly in his supporting affidavit, that just that point has been reached in Montana--that the deathpenalty, because of the infrequency of its imposition

over the years, serves no valid state interest,and therefore constitutes cruel and unusual punishment violative of the EighthAmendment. He has alleged the irrefutable facts thatno one has been executed in Montana since 1943,despite the fact that scores of persons have been convicted of crimes where

a death penalty could have been imposed. (The period in which the status of the death penalty's constitutionality

was held in limbo by the United States Supreme Court is excluded.) But now, in the early 19701s,McKenzie argues that three defendants (McKenzie,Coleman, and Fitzpatrick) have been selected to receive the deathpenalty, despite the fact that during this same time period many other persons

were convicted of capital crimes but not given the death penalty. He alleges thatbecause the death penalty is infrequently imposed inMontana, the threat of execution is too remote to be of any value to the criminal justice system. Lacking this valid state interest,he claims that the death penalty inMontana has, in thewords of Justice White, become 

# ".



# ..patently excessive and cruel and unusual punishment violative of the EighthAmendment." Furman, 408 U.S.at 312.Both the trial court and this Court have ignored this challenge to the application of Montana's death penalty statutes. As justification for its decisioq the majority has seized on the language in Gregg, supra, that the death penalty, as an abstract principle, can be justified on principles of retribution and deterrence. But the majority has subverted Gregg by converting it into a general holding that if death penalty statutes are constitutional on their face, their application is permissible under principles of retribution and deterrence. The question the majority evades is whether one is entitled to an evidentiary hearing to prove his claim that the death penalty is imposed so infrequently that it no longer serves as either retribution or deterrence, and therefore results in

# ".

. . the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes." Furman, 408 U.S. at 312. Obviously, these questions cannot be decided in a factual vacuum, and that is precisely why an evidentiary hearing is required. Retribution and deterrencemay indeed be justificationswhich canwithstand an EighthAmendment challenge, but any statutory system of capital punishment can still be unconstitutional in its application. Themajority's holding here has foreclosed any attempt to prove this claim in our state court system. This Court cannot delegate to the legislature the responsibility of ensuring that a system of capital punishment is constitutionally applied. The question of whether in -- fact a certainpunishment violates the Eighth Amendment is a question solely for the courts. McKenzie has alleged facts, that, if proved,would fall clearly within Furman's restraining language. He is entitledto a hearing to present his proof supporting his allegations. The question of whether the death penalty has been unconstitutionally applied to him is not a question for the legislature,but clearly a judicial duty to see that the law is not only constitutionalon its face,but that it is also constitutionally applied. I. AN EVIDENTIARY HEARING ISNECESSARY TO DETERMINE WHETHER THE DELAY BETWEEN THE SENTENCINGAND THE EXECUTION CONSTITUTESCRUELAND UNUSUAL PUNISHMENT VIOLATIVE OF THE EIGHTH AMENDMENT Inparagraph 10(n)of McKenzie's petition for postconviction relief, McKenzie alleged that "his death sentence

was unconstitutional because 

# .

# . . the excessive cruelty involved in the extinction of a defendant's life after a prolonged period of waiting did not serve any valid state interest -- in fact." (Emphasisadded.) McKenzielsAppellate Brief at pp. 39-42. Somehow themajority, in rendering "tender legal care" to McKenzie, omitted any discussion of this issue. The trial court,however, did rule on the question, but missed the point. Itmerely relied on the general holding in Gregg, supra, that the death penalty is not cruel and unusual punishment, and it therefore concluded that McKenzie does not have a right to claim that the death penalty

as in fact applied to him is unconstitutional. 

### --- -- McKenzie again relies on language in Furman, supra, and inGregg, supra, in which the SupremeCourt left open the right to contend that the death penalty as applied is unconstitutional. McKenzie alleges that delay and infrequency in carrying out a death penalty deprive it from serving

as a deterrent,and he also claims that this delay and infrequency add an element of mental anguish not presentwith other forms of punishment. Heprimarily relies on DistrictAtty. for Suffolk Dist. v. Watson (Mass. 1980), 411N.E.2d 1274, which held inpart that a death penalty defendant's ~rdeal between sentencingand death converts the deathpenalty into a form of cruel and unusual punishment. McKenzie claims thathe should be allowed topresent themore persuasive evidence which would demonstrate that excessivelycruel capitalpunishment inreality servesno valid state interest. This argument, by itself, does not carrymuch intrinsic meritbecause almost invariably it is the defendant who is seeking topostpone his own death, and because the United States Supreme Court has mandated expedited appellate review before theexecution can take place. Nonetheless, this argument, when combined with the claims of arbitrary imposition of the deathpenalty, certainly requires thatthe trialcourt hold an evidentiary hearing. A death penalty defendant who raises these constitutionalclaims must struggle against the judicial system tostay aliveuntil they have been answered. J. AN EVIDENTIARY HEARING IS REQUIRED TO DETERMINE WHETHER DEATH BY HANGING CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT McKenzie's lastclaim directly attacking the death penalty is the allegation that deathby hanging constitutes cruel and unusual punishment violativeof the EighthAmendment. Hepleaded factswhich stated the nature of the sufferingby one who must hang by the neck until dead, and sought an evidentiary hearing in support of these allegations. He again relies on restraining language inFurman, supra, and Gregg, supra, stating thatdeath penalty statutes,although constitutionalon their face, may, as applied, constitute cruel and unusual punishment. He relies directly on State

v. Frampton (1981), 95 Wash.2d 469, 627 P.2d 922, inwhichthe Washington Supreme Court expressly ruled that death by hanging constitutes cruel and unusual punishment. In omitting this as an issue on appeal, themajority has once again undermined its gratuitous statement that in all of the annals of criminal law history in the State of Montana, no defendant has ever received more "tender legal care" than McKenzie. Ibelieve thatMcKenzie is entitled to an evidentiary hearing topresent evidence of this claimed violation of his constitutionalrights.X. CONCLUSION In summarizing those issueswhere themajority has either ignored the issueentirelyormisstated the issueor thenature of theproblem presented, I againmust emphasize thatthisisa death penalty case thatrequires the closest appellate court scrutiny. The United States Supreme Court hasmandated thisof allappellate courts, but even if it didnot, our own senseof duty should compel the most carefuland painstaking review. We have failed miserably inthatobligation. To begin, inColeman I11 and Fitzpatrick 111, this Court adopted one standard todetermine whether issues raised is a post-conviction relief petition areres judicata. But here themajority has adopted a differentand more restrictive standard than was applied inColeman I11 and Fitzpatrick 111. The differenceismore than cosmetic; the different test applied toMcKenzie meant thatthemajority could avoid determining whether any issuedecided on themeritswas correctly decided on themerits. (Seepart I1 of thisdissent.) McKenzie made threeequal protection arguments concerning thisCourt's uneven application of the law toMcKenzie's previous appeals: (1)thatwe applied search and seizure standards contrary tothe law and applied them only inhis case; (2) that thisCourtlsholding thathe was not entitled toa lesser-included offense instruction on mitigated deliberate homicide was based on an application of the law which ignored the evidence and which was applied only inhis case; (3) that thisCourt adopted an impermissible harmless error test (theoverwhelming evidence test) todetermine the impact of the eightunconstitutional Sandstrom-type instructions. The majority opinion ignored allthree of these issues. (See part VIof this dissent.)McKenzie again claims that thisCourt has consistently failed tomeet the issue of whether the Stateestablished probable cause that seizable itemswere located atMcKenzie's home. This Court again has ignored thisissue. (Seepart VIof thisdissent.) On the plea bargain issue, McKenzie has always maintained that thisCourt ignored the trialrecord and instead relied solelyon the State's appellatebriefs, where, for the first time, the State asserted thatno plea bargain existed. This Court has never addressed hiscontention inlater appeals thatwe ignored the trialrecord. Further, the opinions have misstated therecord. The majority held that the trialcourt found againstMcKenzie on the factual questionof whether a plea bargain existedbut the record is devoid of any such finding by the trialcourt, and, infact, no evidentiary hearing

on this issuewas ever held. In fact, the trial court was a party totheplea bargain agreement. The majority stated that McKenzie had not alleged that the prosecutors had acted in bad faithwhen they backed outof theplea bargain agreement. But the record shows thatMcKenzie has consistently alleged that the prosecutors acted inbad faith. Finally, themajority misstated the record inconcluding thatMcKenzie's claimof detrimental reliance was unfounded. (Seepart I11 of this dissent.) The opinions have consistentlyignored the deliberate homicide - by means of torture issues raised by McKenzie. They 

### - have ignored the claims that the jury was 5nstructed that McKenzie was charged with the substantive offense of deliberate homicide by means of torture, that the jury was instructed on the elements of deliberatehomicide by means of torture as a substantiveoffense, and that deliberate homicide by means oftorture isnot an offense definedby Montana law. In fact, not onlywas the jury erroneously instructed on these matters, but the probability isgreat that thejury did convict McKenzie of thisnonexistent offense. (See part IVof thisdissent.) Furthermore, the opinions, inconcluding that the victimwas tortured, fail to set forththe evidence which would support a jury finding that the victim mether death by means of torture. (Seepart IVof thisdissent.) This Court alsoignored the issueof whether the victimwas tortured, within themeaning of the statute settingout the aggravated circumstance of "deliberatehomicide by means of torture," and within the meaning of thejury instructions defining torture. This Court infact failed togive any substantivemeaning tothephrase "deliberatehomicide by

means of torture." (Seepart V of this dissent.) The majority's rulings on the death penalty issues are similarlydeficient. This Court ignored the issues of whether it can be determined from the record whether the jury found thatMcKenzie deliberately took the victim's life. (Seepart IVof bhis dissent), whether from the instructions

an appellate court could determine that the jury was required tofind thatMcKenzie deliberately took the lifeof the victim. (Seepart VI of thisdissent.) Further, thisCourt ignored the related issueof whether thejury convicted McKenzie of deliberatehomicide by applying sections 94-5-102(a) or (b), R.C.M. 1947--each subsection creates a different theory of criminal responsibility forhomicide. Under subsection (a) the jury must determine that a defendant purposely orknowingly took the victim's life. Under subsection (b)

## , the felony-murder rule, thejury isnot required tomake such a determination before finding a defendant guilty of deliberate homicide. (See part IVof this dissent.) In fact, themajority has misstated the records on a nonrelated issue in concluding thatMcKenzie was convicted of "purposely orknowingly" causing the death of Lana Harding. At 608 P.2d at452-53, themajority states: "There arethree types of criminal homicide. Defendant was charged with, -- 

### - and convicted of, deliberate homicide, a criminal homicide committed purposely orknowingly. Section 95-5-102(1) (a), R.C.M. 1947.

# .." (Emphasis added.) As I have shown inparts IV and V of this dissent, McKenzie

was charged alsowith felony-murder, a theory which does not require that a jury findhe purposely orknowingly took the victim's life; it isimpossible totell from the record which theory the jury applied infinding McKenzie guilty. The majority's unsupported assumption reflects the inadequate review thathas characterized each of the McKenzie appeals. This Court ignored the issue of whether sections 94-5-501(1) and 94-5-403, R.C.M. 1947, impermissibly shift the burden tothe defendant todissuade the sentencing court from imposing a death sentence. (Seepart IXof this dissent.) This Court ignored the issueof whether the sentencing court should have notified McKenzie before the sentencing hearing that it intended torely on nonstatutory aggravating factors. (Seepart IXof thisdissent.) Further, on a related issue, this Court side-stepped the issue of whether section 94-5-105, R.C.M. 1947 permits theweighing of aggravating factors against mitigating factors. (Seepart IXof thisdissent.) This Court failed todirectly rule on the claim that the deathpenalty is imposed so infrequently and imposed so arbitrarily and discriminatorily, it no longer serves any valid statepurpose and istherefore cruel and unusualpunishment violative of theEighthAmendment. (Seepart IXof thisdissent.) This Court further ignored a claim that the lapseof time between the sentence and the actual execution causes extrememental agony and thatno valid stateinterestis served by thedeathpenalty, amounts to cruel and unusual punishment violative of theEighth Amendment. (Seepart IXof thisdissent.) And thisCourt ignored the claim that death by hanging constitutes cruel and unusual punishment. (Seepart IXof thisdissent.) Finally, one issue demonstrates aswellas any the quality of review we have givenMcKenzie. InMcKenzie I1 - and 111, themajority held that afterwe decided his appeal, - he could stillhave his death sentence reviewed by the Sentence Review Board. But then Dewey Coleman asked the Sentence Review Board toreview his death sentence and that board turned him down. Coleman then asked this Court to compel the Sentence Review Board toreview hisdeath sentence. Coleman reliedon theMcKenzie decision for authority, but thisCourt turned him down and agreed with the Sentence Review Board that it had no authority toreview a death sentence. In his appeal from the DistrictCourt's denial of post-conviction relief, McKenzie asked thisCourt toreconsider itsMcKenzie I1 and 111rulings that the Sentence Review Board - 

## - could review his death sentence. Had we ruled on this issue, and properly ruled, our decisionwould be that the Sentence Review Board couldnot reviewMcKenzie's death sentence. Such a decision would mean, however, thatMcKenzie's death sentencecould not stand, because theprocedural safeguards afterconviction did not contain sufficientprotection to meetthemandates of United States Supreme Court decisions. In regard tothese obviously inconsistentholdings inMcKenzieand Colemanwith regard to the Sentence Review Board's authority to review death sentences, this Court chose to ignore the issue. By ignoring the issue,McKenzie still stands sentenced to death. (See part IX of this dissent.) This concludesmy third dissent to this Court's McKenzie opinion. United States Supreme Court Justices Marshall and Brennan have already strongly criticized this Court for its uneven treatment of McKenzie and for its failure to complywith the mandates of the United States Supreme Court. In fact, both Justices felt so strongly that McKenzie's rights had been violated that they recommended that McKenzie seek federal habeas corpus relief. 449 U.S. at 1056, 101 S.Ct. at 630, 66 L.Ed.2d at 510. It is not often that dissenting justices of,theUnited States Supreme Court go so far as to suggest that a defendant continue to press his case by seeking federal habeas corpus relief. Such a recommendation

can only arise because the dissenting justices have an abiding believe that this Court has utterly failed to recognize and protect McKenzie's constitutional rights. Now we can add yet another chapter to what I stated in McKenzie I11which would be a fitting title for a story on McKenzie's appeals: The McKenzie Rules: Not For General -- Application--Apply Sparingly. The theme has not changed;my review of this appeal has convinced me beyond any doubt that a defendant sentenced to death in this state has no chance to obtain fair, adequate, and meaningful review. Imust again allude to the statement in the majority opinion that in all the annals of criminal law history in this State, no defendant has been givenmore "tender legal care." I believe that my dissent demonstrates precisely the contrary. Never in the annals of criminal law historyin this State has a defendant ever been the victim of such a consistent and wholesale denial of fundamental rights. Only a federal court can now give the fairand even-handed review that theCourt has so consistently refused togive.Mr. Justice Frank B. Morrison, Jr., concurring:

Thepurpose of this comment is to fulfill a commitment made to my brother, JusticeDaniel J. Shea. Iwas to review his dissent at its conclusion and add my judicial blessing to any portions with which I could agree. The review is complete. My comments follow. Justice Shea's dissent is one of the most scholarly and lucid professionalworks Ihave ever read. With keen analysis he has laid bare the travesty known as State v. McKenzie. The investigationwas bungled; the plea bargain was broken; the trialwas a mockery; the sentencewas predetermined; the appellate review was more illusory than real. Justice Shea sounds an alarmwhich rings loudly in the citizen ear. We must act to preserve our constitutional system and that action rightfullypreempts any compulsion to punish,

nomatter how heinous the crime. Every citizenmust receive equal justice before the law. There are no exceptions. In this case, our system of justice has been twisted, torn, and at times, ground asunder. An appellate court must vigilantly protect the structure frommob assault. This Court, inMcKenzie, has failed miserably. I concur in Justice Shea's dissent.C.r

## -- 1%

### T!!E 1.1.

### <!CT C3URT 

### OF 

### T?E E!tHTH 23?!t!AL ?!STRICT 

### Y FEE S??,TE OF !!C:ITX!iA, 12 AX!) FC!? 

### THE COU:dTY OF CASCADE



### THE STATE 

### OFf.:O!ITkt'IA, 

### ) Criminal Action No. 6593A ) 0BJECTIO;iS TO PRELI!IIEARY

DU:iCA:i PEDE? !<c%EIiZIE,

, Plaintiff herein, The State of !:ontasa, through its

13 

### evidence forthe following reasons: That sai

### a PRELI:<I:iARY 1iiSTRUiTIO:iS arenot within 

### the 15: intent of Section 95-i91C, R.C.?I. 

### 1947, ORDER OF 

### TRIAL; and that 16 

### sail P2E?i!+I!iARY 1:iITRUCTIO;iS go beyond the instructing of the

That seid PRELI:*II:IARY 1IISTRilCTIO:IS aremisl.eading and 19: would 

### tend toprejudice the Defendant's right to

### a fairtrial. That said PRELiK16ARY 1SSTSUCTIOi;S 

### place undue e~phasis 

### 21 on presur.p:ions and inferences and would tend todirect thejury to



### That said 

### ?RELI:s!I:;ARY 1fiSTRUCTIO:IS would confuse the 25' jury and instlll inthejureri minds facts not yet presented to 

### the

That said PRELIXICARY IESTRUCTIOSS include rnis-stateoents of the law, 2nd Pre confusing and redundant. 

### That said Preliminary Instructions give 

### no citation

### as

Plaintiff specifically objects 

### to the follo~ing numbered 

### 2i Preiininzry !ns:r;ctions: inat Fre? ir::inary Instruction refers APPENDIX -154- 

### -- 

# 0fendz~t'spiea 

### of "tiot 

### Guilty"." 

### As iscorrectly stated in inary 

### instruction :lo. 6 

### the Court entered 

### a plea of 

### "Not " on behalf 

### of the Defendant when he stood mute and refused to

That 

### pursuant to Section 95-1910(b), R.C.M. 

### 1947, a ent of the 

### case is to be made by the County Attorney. See S 7: State \is. 

### Gzll, 135

### Mont. 131,337 P2d. 932. However, there appears

)I tI I 8,;

### to be 

### no statutory authority for counts of the Information to be 9" iead

### to thejury by 

### the District Judge, as 

### a part of Preliminary

8 0: 

### Instructions under "Statement of the Case". 1.: 23. Thzt 

### the title "Deliberate Homicide by Heans of Torture" 12 

### ir.correctly 

### states the crine charged, which is "Deliberate Homicide".

. # +'-+ 13 $A$-

, 

### 'ection 94-5-102. The matter of torture arises under the punish- 

### -

.- 

## -,.

"'

e.* 2% 9 -. ::,.-lb ' 14 , - <"2* 

## z-~~z: *cntstztute, Section 94-5-105 (1) (d). That the use of the title 2 -* 

### 15 :fi < c -- i d-.4 5-+LA %

### ,. 721i

### berzte Honicide By Mezns of Torture" 

### is misleading. I 2%- .%-: I s;:g.. 16 .? i 24. That

### the title "Deliberate iionicide by Means of Lying in 

### 1

3's 

# -1- 

### -*, : -,g * a,,,# 4-:a . 

### l7 :,it orA~btish'incorrectly states the crime charged, which is I 

### ~~ii~ 5, ; 18



### -*.

. 

### "liberzte Eczicide", Sectjon 94-5-102. The matter of lying 

### in

, 19 *. :?. 

### sitoraabusn arises under the punish~ent statute, Section 94- & .:- 

# I I 

# '* -l()

### [e). Thet the use of the title "Deliberare Homicide by

hT

### . :.ans of 

### Lying in

### H~it 

### or E.nbush" is misleading. That the use of 22

.. the 

### terns "killing" and :'killu is improper. Such terms are not 23,:

### found in any 

### applicable statute. That the proper 

### :ern 

### is "causes 

# 24j the 

### delth ofn,as stated in Section 94-5-101. , 1: 25

### :i 28. 

### That the use of the term "the killing" 

### is improper, as 2e 

### stated in ;laintiff's oGj?ction 

### toNo. 24. i 

### 27 i z 29. 

### That the 

### statenent "All persons areof sound mind who 

# a; f 

### are not inszne," isnot supported by legal authority. 29'; 

## 1 30. 

### That the use of exanples of "A" 

### and 

### "5" involving violence, 36 I 

# I 1 

### injury and 

### Stood are improper, inflanmatory,and confusing and 

### would 31, I j 

### "inna 

### to obsc~re 

### or color facts ~ot 

### yet inevidence. i ! 

### 32

# ; i 32

# - 38 

### That the 

### repeated restateaent of 

### situations involving

APPENDIX -155-the a1;e;2:isr4s 

### against the defendant are infiar,matory and prejudici' 34. 

### Sane objection as 

### to 

### No. 28. 

### concerning the terms "killinc Nkilled"2nd 

### "kill". That 

### such ?relininary Instructions are contrary 

### to accepted practice zzd 

### procedure and in their total effectwould be pr?.judici! to 

### Defendant.



### - rhat there appears 

### tobe 

### no sound reason why such insirgcticns need be given in this case prior to the submission of evidence, juries for the centuries having been able to properly weigh evi.(ence 

### without the use of such-Preliminary Instructions. That althouoh various of the instruction

### s proposed would 2:' be 

### :ro;?r as instructions to be submitted to the jury after the iJ. 

### ;ii:e.ce has been subxitted the Plaintiff believes that 

### itwould be 7L:,

### ieversible error

### to give such instructions prior to 

### the subrfiission



### ,. 151 cf2ny 

### evidence. Respectfully subnitted,

i 

### 1.2. 

# -- \ 

## . .' -'--J

. . ,,.f-~,2,-~- 

### David 

### ki. /,elson Ponder2 County Attorney

--. -- - \ 

### Douglas Anderson Special Prosecutor for Pondera County

APPENDIX -156-