NO. 88-475 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vVERN KILLS ON TOP, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Sixteenth Judicial District, 

In and for the County of Custer, 

The Honorable C. B. Sande, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

John S. Forsythe, Forsyth, Montana 

For Respondent: 

Clay R. Smith, Asst. Attorney General, Helena, 

Montana 

Keith D. Haker, County Attorney, Miles City, Montana 

Submitted: March 13, 1990 

MAY 2 1 1990 Decided: May 21, 1990 

Filed: a 

CLERKOFSUBREMECOURT 

STATE OF M'~OI~'TANA 

Clerk 
Justice Fred J. Weber delivered the Opinion of the Court. 

This is an appeal from the District Court of the Sixteenth 

Judicial District, Custer County, Montana. Mr. Vern Kills on Top 

was convicted by jury of robbery, aggravated kidnapping and 

deliberate homicide. He was sentenced to 40 years for robbery, 

and sentenced to death for each of the latter two convictions. He 

appeals both the convictions and the sentences. We affirm. 

The issues presented for our review are: 

1. Whether the amended information sufficiently informed 

defendant of the offenses with which he was charged. 

2. Whether the District Court had jurisdiction over the 

crimes for which defendant was convicted. 

3. Whether defendant was denied the right to a speedy trial. 

4. Whether the District Court abused its discretion by 

denying defendant's motion to compel pretrial depositions of 

defendant's accomplices. 

5. Whether defendant was prejudiced by an order of the 

District Court in the companion case of Lester Kills on Top. 

6. Whether the District Court erred in denying defendant's 

motion to suppress. 

7. Whether the District Court erred in admitting certain 

evidence at trial. 

8. Whether accomplice testimony was sufficiently 

corroborated. 

9. Whether the District Court erred in instructing the jury. 

10. Whether there was prosecutorial misconduct at trial, and 

2 
if so, whether defendant was thereby prejudiced. 

11. Whether the District Court erred in denying defendant's 

motion for a mistrial. 

12. Whether the District Court abused its discretion by 

utilizing the verdict form offered by the State. 

13. Whether certain factual findings by the District Court 

were supported by substantial evidence. 

14. Whether imposition of the death penalty is constitutional under the mandatory review criteria of S 46-18-310, MCA. 

15. Mandatory Supreme Court sentence review pursuant to 5 46- 

18-310, MCA. 

On October 16, 1987, defendant, Vern Kills on Top, who will 

be referred to in this opinion as defendant, and his brother, 

Lester Kills on Top, were staying at the residence of George Bell 

in Miles City, Montana. Also staying at that residence were Diane 

Bull Coming and Doretta Four Bear. That evening defendant, Lester, 

and Diane went to a few local bars. A little after midnight, they 

went back to the house where they were staying and woke Doretta, 

requesting that she come with them. The four individuals then went 

to the Golden West Lounge in Miles City. Mr. John Martin 

Etchemendy, Jr. also went to the Golden West Lounge that evening. 

He was with a friend, Steve Hathaway, who drove Mr. Etchemendy's 

pickup to the lounge. When Mr. Etchemendy was ready to leave the 

lounge, at approximately 2:00 a.m., he could not locate his 

pickup. Diane Bull coming testified that defendant offered to help 

him find his pickup. Mr. Etchemendy got into the car with 
defendant, Lester, Diane and Doretta. The car was a black Dodge 

Duster, belonging to defendantls girlfriend, Cathy Meshnik. 

Defendant was driving the car. Mr. Etchemendy was in the back seat 

with Lester and Diane. Diane testified that Lester began speaking 

in his native tongue of Northern Cheyenne, saying the group should 

roll Etchemendy and steal from him. The group looked a few places 

for the pickup, then headed out of town and turned onto Cemetery 

Road. Mr. Etchemendy lives at the end of this road. Doretta 

testified that after Mr. Etchemendy indicated they were going the 

right way, defendant stopped the car and turned it around, heading 

out of Miles City and south toward Broadus. Outside of Miles City 

the car stopped and the men got out to urinate. Diane Bull Coming 

testified that Lester and Mr. Etchemendy began fighting; however 

Mr. Etchemendy voluntarily got back in the car. 

Doretta testified that shortly after this, Lester attempted 

to force Mr. Etchemendy to take some pills. Mr. Etchemendy 

resisted and a fight began in the back seat between Lester and Mr. 

Etchemendy. Doretta testified that during the fight Diane removed 

the wallet from Mr. Etchemendyls pocket. Diane testified that she 

handed it to defendant who took credit cards and employment checks 

from Colstrip Garbage Disposal out of the wallet. The fight 

continued and Diane and Doretta testified that defendant stopped 

the car saying that he '#wanted in on some of this." He stopped the 

car on Tongue River Road and defendant and Lester then took the 

victim outside the car and continued beating him. Doretta 

testified that she saw both defendant and Lester kicking the victim 
while he was lying on the ground. Both Doretta and Diane testified 

that the victim was screaming and pleading with defendant and his 

brother to stop. Doretta testified that defendant then got into 

the back seat with the victim and attempted to choke him. She 

testified that a short time later, defendant asked the driver to 

stop the car, whereupon defendant told the victim to get out and 

take his clothes off . Diane testified that at this point defendant 

and Lester placed the nude victim into the trunk of the car. 

The group traveled on to Ashland, Montana, where they picked 

up LaVonne Quiroz at about 5: 00 a.m. Defendant and LaVonne 

attempted to siphon some gas in Ashland, and they also stole a red 

tool box. Doretta testified that they then drove to Rabbit Town, 

where she fled from the group by running to a friend's house. 

Diane and LaVonne testified that they stopped the car at a water 

trough where defendant and Lester washed blood off their hands. 

The brothers also removed their shirts at this stop. Diane 

testified that the trunk was opened at this stop and she saw the 

victim. She stated that he was all beat up, bloody, that his eyes 

and mouth were swollen, and his hair was all matted down with 

blood. 

Diane testified that the group drove to Broadus, where Lester 

attempted to cash one of the checks taken from the victim. They 

were able to cash the check at a bar and Lester divided the money 

between himself and defendant. 

Diane testified that at her suggestion the group decided to 

drive to Gillette, Wyoming. After leaving Broadus, Lester passed 
a blindfold to the victim through an opening in the back seat, 

instructing him to tie it over his eyes. They then stopped the car 

so the victim could urinate. LaVonne Quiroz testified that before 

they got out of the car, defendant asked her to hand him a metal 

pipe which was in the car. She stated that Lester grabbed the pipe 

and while standing in the trunk holding the pipe up, told the 

victim he would hit him if he ran. Diane testified that at the 

stop, defendant took the blindfold off the victim, whereupon Lester 

became angry and told defendant they would now have to kill the 

victim. Diane testified that defendant agreed with Lester. She 

testified that defendant and Lester forced Mr. Etchemendy to get 

back into the trunk. Lester then attempted to force him to drink 

a mixture of beer and Ever-Clear in an attempt to make him pass 

out. 

Diane testified that while they were driving Lester spoke to 

the victim through the back seat. Mr. Etchemendy informed Lester 

that he was married and had two little boys. 

The group next stopped at Biddle, Montana, off the 

reservation, where Lester cashed the second check taken from Mr. 

Etchemendy. After purchasing food and drink the proceeds were 

shared with defendant. Diane testified that defendant purchased 

gasoline with one of the victim's credit cards. 

The group arrived in Gillette, Wyoming in the afternoon. 

Lester purchased a new shirt and jeans and changed clothes. He 

and Diane then went into the Lobby Bar. The car was parked on the 

street. At trial LaVonne testified that the victim began pounding 
on the trunk and hollering, "Help me." She testified that 

defendant instructed her to move the car into the alley at the side 

of the bar. Defendant and LaVonne then joined Lester and Diane in 

the Lobby Bar. 

Diane testified that while the four of them were in the bar 

Lester told defendant they had to Ifget rid of" the victim or they 

were going to get caught. She testified that defendant agreed with 

Lester, although defendant wanted to wait. She testified that 

Lester asked for the keys, that defendant gave him the keys, and 

that she and Lester left. 

Lester and Diane drove out of town, turned off on a gravel 

road and drove over a hill where they were not visible from the 

highway. Diane testified that Lester then opened the trunk and 

started hitting the victim with a pipe. She stated that Mr. 

Etchemendy said, I1Oh, God, no, God, no, don't do this to me," but 

that Lester kept hitting him, while blood spurted from his head. 

Lester continued to hit him in the head with a tire iron, and then 

a rock. Lester then closed the trunk, got in the car, and Diane 

drove away. Before reaching the main highway, they encountered a 

Blazer driven by a woman, who pulled over to let them pass. Diane 

testified that Lester stated he was going to shoot the victim. He 

put a bullet in a vise grip. When Diane stopped the car, Lester 

got out and attempted to shoot the victim by hitting the bullet 

with a hammer. Diane testified that she heard a sound similar to 

a firecracker. Diane and Lester continued to drive back towards 

Gillette, but they had two flat tires so they stopped at the Rustic 
Lounge. 

Here, Diane testified that Lester attempted to cut the 

victimts throat with a small knife. From the bar, Diane called 

defendant and LaVonne and told them to take a taxi and join them. 

She testified that Lester later came inside and said the victim 

was dead. 

LaVonne Quiroz testified that she and defendant purchased 

clothing at a store in Gillette while waiting for Lester and Diane 

to return. while at the bar, they received a phone call from Diane 

asking them to come to the Rustic Inn. She stated that they took 

a cab to the Rustic Inn. After the second flat tire was changed, 

the group of four got back in the car, with Quiroz driving, and 

traveled south. They passed an abandoned building approximately 

fifteen miles south of Gillette, and decided to stop there. She 

testified that the body of the victim was left at the community 

hall. LaVonne testified that both defendant and Lester said, 

I1Hurry up, letss go," after leaving the body. As they pulled away 

in the car, they left open a gate. A rancher in a pickup forced 

the car to stop and told them to return and close the gate. 

LaVonne stated that they went back to the gate, whereupon she and 

Lester got out and closed it. 

The group then drove to Sheridan, Wyoming, stopping at a 

motel. When Lester and Diane got out to get a room, defendant and 

LaVonne drove off, leaving them behind. LaVonne testified that 

while driving toward Billings, Montana, defendant disposed of the 

blanket which had been in the trunk covering the victim. 
LaVonne testified that she and defendant stopped at the home 

of ~ylvia Barrigan, where they washed their clothes and washed out 

the car, including the trunk. She stated that defendant threw a 

rock away at this location. They then drove to Billings, 

accompanied by a friend of defendant, Mr. Lyn Ros Bixby. In 

Billings, on October 18, 1987, the car was stopped by law 

enforcement officers and defendant was arrested. Lester and Diane 

hitchhiked to Billings, Montana, where they went to the home of a 

friend, Lorraine Four Colors. They were apprehended there on 

October 19, 1987. 

On October 19, 1987, law enforcement officers located the body 

of the victim at the abandoned community hall south of Gillette, 

Wyoming. An autopsy, performed on October 20, 1987, established 

that the cause of death was extensive blunt traumatic injuries to 

the left side of the head, which crushed the victim's skull. Dr. 

Deters, the pathologist performing the autopsy, testified at trial. 

He testified that the victim had been injured in the head at least 

forty-five minutes, and up to twelve hours prior to the fatal 

assault. This injury had resulted in a subdural hematoma, a 

collection of blood on the surface of the brain. He testified that 

the subdural hematoma injury alone was potentially fatal, exclusive 

of the injuries to the left side of the head. 

Defendant was charged with robbery, aggravated kidnapping, 

and deliberate homicide. His brother, Lester, was charged with 

the same offenses and his trial was held June 6-24, 1988, in Fallon 

County, Montana. Defendant's trial began July 26, 1988 in 
Yellowstone County. On August 6, 1988 the jury returned a verdict 

finding defendant guilty of robbery, aggravated kidnapping, and 

deliberate homicide. 

The facts will be discussed in greater detail as necessary 

under each issue. In presenting the issues in this opinion, we 

have followed the order of occurrence; however, issues XIII, XIV, 

and XV, are the critical issues relating to the death penalty. 

Whether the amended information sufficiently informed 

defendant of the offenses with which he was charged. 

On March 24, 1988, defendant moved to dismiss the amended 

information alleging that it did not sufficiently inform him of 

the charges against him. The District Court denied this motion. 

Section 46-11-401(1)(c), MCA, states: 

Form of Charge. (1) A charge shall: . . . 

(c) charge the commission of an offense by: 

(i) stating the name of the offense; 

(ii) citing in customary form the statute, 

rule, or other provision of law which the defendant 

is alleged to have violated; 

(iii) stating the facts constituting the 

offense in ordinary and concise language and in 

such manner as to enable a person of common understanding to know what is intended; 

(iv) stating the time and place of the offense as definitely as can be done; and 

(v) stating the name of the accused, if 

known, and, if not known, designating the accused 

by any name or description by which he can be 

identified with reasonable certainty. 

In the present case the amended information charged the 
defendant by name, with robbery in Count I, in violation of 

§ 45-5-401(1)(a), MCA; aggravated kidnapping charged 

alternatively in Counts I1 and 111, in violation of 5 45-5- 

303 (1) (b) and (c) , MCA; and deliberate homicide, charged 

alternatively in counts IV and V in violation of 45-5- 

102 (1) (b) , MCA. He was charged in each offense as a 

principal, or by accountability. The information stated that 

the offenses occurred on or about October 17, 1987, in Custer 

County, Montana, and in Campbell County, Wyoming, and that the 

victim was John Martin Etchemendy, Jr. Each offense was 

alleged in the language of the statute. The amended 

information was six pages in length and contained details to 

support the charges. 

Simultaneously with the motion for leave to file the 

information, the State filed a seven-page affidavit containing many factual details of the entire transaction, beginning 

with the events at the Golden West Bar in Miles City through 

the death of the victim in Wyoming. 

Standards for evaluating the sufficiency of an information include the following: 

The information must reasonably apprise the accused 

of the charges against him, so that he may have the 

opportunity to prepare and present his defense. 

This requirement is satisfied if the charges suf ficiently express the language of the statute which 

defines the offense. (Citations omitted.) 

State v. Matson (1987), 227 Mont. 36, 43, 736 P.2d 971, 975. 

"The test for the validity of a complaint is whether a 
person of common understanding would know what was intended 

to be charged." State v. Handy (1986), 221 Mont. 365, 368, 

719 P.2d 766, 768. ~dditionally, Itthe contents of the 

affidavit supporting a motion for leave to file an information 

may be considered in determining the meaning of the language 

contained in the information." State v. Longneck (1981), 196 

Mont. 151, 154, 640 P.2d 436, 438. As to a defendant charged 

by accountability we have stated that Ifan indictment need not 

distinguish an act performed by the accused himself and the 

act of another for which he is legally acc~untable.~~ State 

v. Murphy (1977), 174 Mont. 307, 310, 570 P.2d 1103, 1105. 

In the present case the information stated the date and 

location of the alleged offenses and the name of the victim. 

The crimes were alleged in the language of the statutes. The 

affidavit filed in support of the motion contained many 

additional specific details. We conclude the defendant was 

reasonably apprised of the charges against him, and there is 

no basis for defendant's contention that the information was 

insufficient. We affirm the denial of this motion by the 

District Court. 

I1 

Whether the District Court had jurisdiction over the 

crimes for which defendant was convicted. 

In a pretrial motion to dismiss, defendant contended that 

Montana lacked jurisdiction to prosecute these offenses. The 

District Court denied this motion. 
On appeal, defendant contends that Montana lacks jurisdiction to prosecute these crimes for two reasons. First, he 

contends that jurisdiction to prosecute the deliberate homicide was properly in the State of Wyoming rather than Montana. Second, defendant contends that federal jurisdiction 

is exclusive pursuant to the Major Crimes Act, 18 U.S. C. 5 

1153, because defendant is a full-blooded, enrolled member of 

the Northern Cheyenne Tribe, and the offenses occurred I1within 

the Indian Country.lV We will address each jurisdictional 

issue separately. 

The statute governing State jurisdiction for a criminal 

offense is 5 46-2-101, MCA, which provides in pertinent part: 

(1) A person is subject to prosecution in this 

state for an offense which he commits while either 

within or outside the state by his own conduct or 

that of another for which he is legally accountable 

if: 

(a) the offense is committed either wholly or 

partly within the state[.] 

(2) An offense is committed partly within this 

state if either the conduct which is an element of 

the offense or the result which is an element 

occurs within the state. 

Pursuant to 5 46-2-101, MCA, Montana has jurisdiction if 

the offense is committed "partly within" the state. This 

Court has previously construed this statute in State v. White, 

230 Mont. 356, 358, 750 P.2d 440, 441, as a "broad assertion 

of jurisdicti~n.~~ See also State v. Bush (1981), 195 Mont. 

475, 477-78, 636 P.2d 849, 851. Analyzing the elements of 
each of the three offenses for which defendant was convicted, 

it is clear that an element of each offense occurred off the 

reservation, and was committed partly within Montana. 

Defendant was charged with and convicted of robbery, 

described in § 45-5-401(1)(a), MCA, as follows: 

Robbery. (1) A person commits the offense of 

robbery if in the course of committing a theft he: 

(a) inflicts bodily injury upon another[.] 

Theft is defined in 5 45-6-301, MCA, which provides: 

Theft. (1) A person commits the offense of 

theft when he purposely or knowingly obtains or 

exerts unauthorized control over property of the 

owner and: 

(a) has the purpose of depriving the owner of 

the property[.] 

In the present case Doretta testified that Diane Bull 

Coming took Mr. Etchemendyts wallet containing credit cards 

and two employment checks, while Lester inflicted bodily 

injury upon Mr. Etchemendy. Undisputed testimony demonstrated 

that this action occurred on the Tongue River Road in Montana, 

several miles before the group enteredthe reservation. While 

the testimony does establish that defendant did not initially 

take Mr. Etchemendyts wallet from him, the uncontradicted 

evidence establishes that the defendant exerted unauthorized 

control over the property of Mr. Etchemendy when he used one 

of the victim's credit cards to purchase gas at Ashland, which 

is on the reservation, and at Biddle, which is in Montana and 

off the reservation. Defendant also shared the proceeds of the 
checks, and used the stolen credit cards to purchase clothing 

in Gillette, Wyoming. The testimony also established that 

defendant inflicted bodily injury upon the victim off the 

reservation and in Montana. 

We conclude that the uncontradicted evidence established 

that elements of the crime of robbery were committed within 

the State of Montana and off the Indian Reservation. We 

affirm the District Court's denial of the motion to dismiss 

the robbery for lack of state jurisdiction. 

Defendant was charged with aggravated kidnapping pursuant to 5 45-5-303 (1) (b) or (c) , MCA, which provides: 

Aggravated kidnapping. (1) A person commits 

the offense of aggravated kidnapping if he knowingly or purposely and without lawful authority restrains another person by either secreting or 

holding him in a place of isolation or by using or 

threatening to use physical force, with any of the 

following purposes: 

* * * 

(b) to facilitate commission of any felony or 

flight thereafter; 

(c) to infict bodily injury on or to 

terrorize the victim or another; 

Again, it is clear that Mr. Etchemendy was restrained within 

Montana before the group entered the reservation. The 

physical restraint and robbery of Mr. Etchemendy began in the 

back seat of the car well before the group entered the 

reservation. Diane Bull Coming and Doretta Four Bear both 

testified that shortly thereafter and before entering the 

reservation, the car stopped and defendant and Lester assaulted the victim outside the car. Then, rather than plac- 
ing him back in the car, they ordered him to strip, and placed 

him in the trunk of the car. Boxer shorts, identified at 

trial as belonging to the victim, were found near Highway 332 

in Custer County, Montana, off the reservation. This evidence 

corroborates the testimony as to where the victim was placed 

in the trunk. The evidence clearly establishes that elements 

of the aggravated kidnapping were satisfied in Montana, off 

the reservation. We affirm the District Courtvs denial of 

defendantls motion to dismiss the aggravated kidnapping for 

lack of state jurisdiction. 

Defendant was also charged with and convicted of 

deliberate homicide under the "felony murder rule.I1 Section 

45-5-102 (1) (b) , MCA, codifies the felony murder rule, 

providing: 

Deliberate homicide. (1) A person commits 

the offense of deliberate homicide if: 

(b) he attempts to commit, commits, or is 

legally accountable for the attempt or commission 

of robbery, sexual intercourse without consent, 

arson, burglary, kidnapping, aggravated kidnapping, 

felonious escape, felony assault, aggravated assault, or any other forcible felony and in the 

course of the forcible felony or flight thereafter, 

he or any person legally accountable for the crime 

causes the death of another human being. 

Under the "felony murder ruleu it is not necessary to prove 

the Itpurposely or knowinglyl1 element of the crime of deliberate homicide. State v. Nichols (1987), 225 Mont. 438, 449- 

50, 734 P.2d 170, 176-77; State v. Sunday (1980), 187 Mont. 
292, 307, 609 P.2d 1188, 1197. Rather, the purposely or 

knowingly element of the underlying felony replaces this 

element. 

In State ex rel. Murphy v. McKinnon (1976), 171 Mont. 

120, 556 P.2d 906, we stated that I'for the felony murder rule 

to apply a causal connection between the felonious act and the 

death must be present. It McKinnon, 556 P.2d at 910. 

Therefore, in the present case the elements the State had to 

prove were: 

1) the commission of the felony 

2) that a death occurred 

3) a causal connection between the underlying 

felony and the death. 

In the present case, the jury found the underlying felony 

to be aggravated kidnapping. As previously established, the 

first element of the deliberate homicide, the commission of 

the underlying felony of aggravated kidnapping, occurred in 

Montana. The causal connection element was also satisfied by 

Montana-based conduct. Only the actual death occurred in 

Wyoming. 

Defendant urges that Montana lacks jurisdiction over the 

deliberate homicide since the killing occurred in Wyoming. 

Defendant misconstrues the requirements of the offense of 

felony murder. The evidence in this case clearly establishes 

that two elements of the felony murder offense occurred in 

Montana, bringing this offense within the scope of state 

jurisdiction pursuant to 1 46-2-101, MCA. We affirm the 

17 
District Courtls denial of defendantls motion to dismiss the 

deliberate homicide based on lack of State jurisdiction. 

As a second jurisdictional issue, defendant contends that 

pursuant to the Major Crimes Act, federal jurisdiction is 

exclusive. The Major Crimes Act, 18 U.S.C. 5 1153(a), 

provides : 

Any Indian who commits against the person or property of another Indian or other person any of the 

following offenses, namely, murder, manslaughter, 

kidnapping, maiming, a felony under chapter 109A, 

incest, assault with intent to commit murder, 

assault with a dangerous weapon, assault resulting 

in serious bodily injury, arson, burglary, robbery, 

and a felony under section 661 of this title within 

the Indian country, shall be subject to the same 

laws and penalties as all other persons committing 

any of the above offenses, within the exclusive 

jurisdiction of the United States. (Emphasis 

added. ) 

In the present case the critical language of this statute is "within the Indian country." An Indian committing one 

of the enumerated crimes within Indian country is subject to 

federal jurisdiction. The issue of State jurisdiction over 

an Indian defendant is resolved factually in the present case. 

As previously established, elements of the crimes of robbery, 

aggravated kidnapping, and deliberate homicide were satisfied 

within Montana and outside of Indian country. 

Defendant contends that if any portion of an offense 

occurs within Indian country, the State has no jurisdiction. 

However, this is not the law. The State has jurisdiction for 

off-reservation offenses even though a connected offense may 

occur within Indian country. See, e.s., State v. Rossbach 
(Minn. 1980), 288 N.W.2d 714 (state had jurisdiction where 

Indian defendant, standing inside reservation, fired rifle 

across boundary of reservation at a deputy sheriff standing 

on Minnesota land) ; State v. Winckler (S. D. 1977) , 260 N.W. 2d 

356 (state had jurisdiction to prosecute seven Indian 

defendants who fired shots from reservation onto state land). 

See also 41 Am. Jur. 2d Indians § 67 (1968), stating: It. . . 

Indians are amenable to state laws for offenses against such 

laws, committed by them off the reservation and within the 

limits of the state, . . .Iv while it is true that the victim 

was taken onto the reservation during the course of the 

kidnapping, in fact, crossing the reservation three times, 

this journey through the reservation does not deprive the 

State of its jurisdiction. 

Defendant relies on United States v. Torres (7th Cir. 

1984), 733 F.2d 449, cert. denied, 469 U.S. 864, 105 S.Ct. 

204, 83 L.Ed.2d 135, (1984), as authority for his contention 

that federal jurisdiction is exclusive. In Torres, federal 

jurisdiction attached where the Itma j or portion" of an ongoing 

conspiracy to "get rid of the victim" occurred on the 

reservation, even though defendants began to formulate the 

conspiracy, and abducted the victim outside the reservation. 

Torres, 733 F.2d at 460. The present case is factually 

distinguishable from Torres since only a minor portion of the 

crimes occurred on the reservation. Further, the holding of 

Torres was that a major portion of a conspiracy occurred on 
the reservation, allowing federal jurisdiction. The issue of 

concurrent state jurisdiction was not decided. Torres does 

not foreclose state jurisdiction. We conclude that Montana 

had jurisdiction to prosecute all three charged offenses as 

required under 5 46-2-101, MCA. We affirm the District 

Court's denial of the motion to dismiss based on lack of 

jurisdiction. 

I11 

Whether defendant was denied the right to a speedy trial. 

On June 6, 1988, defendant moved to dismiss the charges 

against him for lack of a speedy trial. This motion was 

denied by the ~istrict Court. On appeal, defendant urges that 

the delay in his trial was presumptively prejudicial and that 

he was in fact prejudiced by the delay. 

The Sixth Amendment to the United States Constitution 

provides the basis for defendant's asserted right to a speedy 

trial. This right is made applicable to the states through 

the Fourteenth Amendment. State v. Wiman (Mont. 1989) , 769 

P.2d 1200, 1201, 46 St.Rep. 279, 280. In Barker v. Wingo 

(1972), 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 

101, 116-17, the United States Supreme Court articulated four 

factors to be considered in determining whether a defendant 

has been denied the right to a speedy trial. These factors 

are length of delay, the reason for the delay, the defendant's 

assertion of his right, and prejudice to the defendant. These 

factors are to be balanced, and each speedy trial case must 
be approached on an ad hoc basis. Barker, 514 U.S. at 530. 

In Wiman we stated: 

Length of delay is of primary importance. Unless 

it is sufficiently long to be deemed presumptively 

prejudicial to the defendant, there is no need to 

consider the other factors. What length will be 

deemed presumptively prejudicial depends on the 

facts in each individual case. State v. Robbins 

(1985), 218 Mont. 107, 708 P.2d 227, 42 St.Rep. 

1440; State v. Worden (1980), 188 Mont. 94, 611 

P.2d 185. There is no need to determine other 

factors unless there has been some delay which is 

deemed presumptively prejudicial. Armstrong, 616 

P.2d at 351. 

Wiman, 769 P.2d at 1201. 

In State v. Worden (1980), 188 Mont. 94, 96-7, 611 P.2d 

185, 186, we stated: 

What length will be deemed presumptively prejudicial 

depends on the facts of each individual case. A 

longer delay will be tolerated in a complex case 

than would be tolerated in one involving a simple 

fact situation. (Citation omitted.) 

In the present case defendant was arrested on October 

18, 1987, and trial began on July 25, 1988. Thus there was 

a delay of 281 days. This Court has held comparable delays 

to be presumptively prejudicial. See State v. Waters (1987) , 

228 Mont. 490, 493, 743 P.2d 617, 619 (277 days) ; State v. 

Cutner (1984), 214 Mont. 189, 192, 692 P.2d 466, 467 (286 

days). In the present case there is no dispute that defendant asserted this right in a timely manner. Thus the analysis in the present case focuses on the reasons for delay and 

the nature of prejudice to defendant. 

The events leading up to trial in the present case are 
summarized as follows: 

On October 23, 1987, the defendant requested recusal of 

Judge Martin, and on November 9, 1987, Judge Sande was 

directed to preside. In the interim, on November 2, 1987, the 

defendant gave notice of his intent to rely upon the defense 

of mental disease or defect and requested a psychiatric 

examination pursuant to § 46-14-202, MCA, and commitment for 

such purpose at a hospital or other suitable facility for a 

period not to exceed 60 days. His motion was granted on 

November 23, 1987, and he was ordered transported to the 

Montana State Hospital at the earliest practicable time. The 

defendant was hospitalized there between January 7, 1988 and 

February 13, 1988, and a report containing the evaluation was 

completed and forwarded to the District Court on February 8, 

1988. The defendant himself was accordingly unavailable for 

trial until early February. 

The defendant also requested dismissal of the proceeding 

on jurisdictional grounds on November 20, 1987. The State 

responded to that motion on November 27, 1987, and the defendant filed a reply brief six days later. By letter dated 

February 22, 1988, the county attorney summarized the motions 

pending in this case and related proceedings against Lester, 

Diane Bull Coming and Doretta Four Bear and requested their 

resolution as soon as possible to avoid I1a speedy trial 

problem.I1 He notified counsel for the defendant, Diane Bull 

Coming and Doretta Four Bear on February 29, 1989, that he and 
Lester's attorney had agreed to attempt preparation of a 

stipulated set of facts concerningthe jurisdictional question 

by March 8, 1988, and, if unsuccessful, to have a hearing on 

that and other motions. A stipulated set of facts was arrived 

at in Lester's case, and his motion to dismiss on 

jurisdictional grounds was denied by Judge Obert on April 8, 

1988. A hearing on the defendant's corresponding motion in 

regard to jurisdiction, occurred on June 30, 1988 and was 

denied during trial at the close of the State's case in chief. 

On March 11, 1988, defendant filed a consolidated motion 

for a change of place of trial, a poll of registered electors 

and suppression of evidence. At the omnibus hearing on March 

24, 1988, defendant filed three other motions. The latter 

pleadings included a motion to dismiss the amended information for failure to allege sufficiently the nature of the 

charges, a motion for an award of extraordinary attorney fees, 

and a motion to compel the grant of testimonial immunity to 

Lester Kills on Top, Diane Bull Coming, Doretta Four Bear and 

LaVonne Quiroz pursuant to 5 46-15-331, MCA. Defendant filed 

a brief in support of the venue motion on June 30, 1988. On 

July 6, 1988, the court conducted a hearing on the suppression 

motion, and defendant filed a brief in support of that motion 

on July 8, 1988. 

In analyzing speedy trial issues, this Court has stated: 

No one factor in the speedy trial analysis is 

necessary in all circumstances or sufficient alone 

to determine a deprivation of the speedy trial 
right. All factors must be considered together with 

such other factors as might be relevant. This Court 

must engage in a difficult and sensitive balancing 

process. (Citation omitted.) 

Worden, 611 P.2d at 187. 

This Court has recognized that, "[wlhile it is perfectly 

acceptable to make numerous motions, it is a simple fact that 

consideration of motions takes time and may delay a trial.'' 

State v. Pease (1987), 227 Mont. 424, 429, 740 P.2d 659, 662. 

In the present case the defendant filed numerous motions. 

Further, he delayed five months before filing the bulk of his 

pretrial motions. 

This case was very complex, involving over forty witnesses and 94 exhibits introduced by the State. The trial of 

defendant's brother, Lester Kills on Top, occurred a month 

earlier than the trial of defendant and involved the same 

witnesses and exhibits. Thus trial logistics were complex. 

However, our review of the record fails to demonstrate any 

dilatoriness on the part of the State. Although defendant 

urges that the State delayed his trial in order to plea 

bargain with accomplices, he fails to show how any delay was 

caused by plea bargains. 

Defendant has likewise failed to demonstrate that he was 

prejudiced by the delay of his trial. Three factors are 

considered in determining prejudice, as stated in Barker: 

Prejudice, of course, should be assessed in the 

light of the interests of defendants which the 

speedy trial right was designed to protect. This 
Court has identified three such interests: (i) to 

prevent oppressive pretrial incarceration; (ii) to 

minimize anxiety and concern of the accused; and 

(iii) to limit the possibility that the defense 

will be impaired. Of these, the most serious is 

the last, because the inability of a defendant 

adequately to prepare his case skews the fairness 

of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious. 

There is also prejudice if defense witnesses are 

unable to recall accurately events of the distant 

past. 

Barker, 407 U.S. at 532, 92 S.Ct. at 2193, 33 L.Ed.2d at 118. 

In the present case defendant has failed to present any 

facts indicating his defense was impaired. In fact, it may 

be that the opposite occurred, since defense counsel was able 

to be present at the trial of Lester, in which virtually the 

same evidence was admitted. Further, it appears from the 

record that defendant was actively preparing his defense 

during the entire delay. Although defendant asserts prejudice 

resulting from the State's ability to formulate certain plea 

bargains, this is not the type of prejudice prohibited by 

Barker. Defendant does not contend that his defense was 

impaired because he was unable to adequately prepare his case, 

or because the memories of defense witnesses were impaired. 

Defendant's failure to demonstrate prejudice supports the 

conclusion that his right to a speedy trial was not violated. 

- Cf. State v. Shurtliff (1980), 187 Mont. 235, 609 P.2d 303 

(defendant's speedy trial right was not violated by 382 day 

delay where no prejudice was shown and defendant was actively 

preparing his defense throughout the entire pretrial period) ; 

Worden, 611 P.2d at 187 (defendant's speedy trial right was 
not violated by 319 day delay where defendant demonstrated no 

prejudice) . 

In balancing and assessing the facts in light of the 

Barker factors, we must do so in the context of this case. 

Many issues were raised by motion in the pretrial proceedings, 

necessitating briefing and hearings. These motions were 

seriously made by defendant, opposed carefully by the State, 

and thoroughly considered by the judges. We are also mindful 

of the numerous witnesses and exhibits involved in the 

preparation for trial. 

Although we do not attempt to specify the number of days 

of delay attributable to each party, it is apparent that the 

delay is attributable in part to the State because of the 

necessity of adequate prosecution, in part to defendant who 

made many motions and requests, and in part to the court in 

considering the multitude of issues. It appears that the 

State diligently worked to bring this case to trial. 

Moreover, defendant has shown no prejudice. We conclude that 

the delay of 281 days, viewed against the complexity of the 

case and the relevant factors, did not deny defendant the 

right to a speedy trial. We affirm the District Court's 

denial of defendant's motion to dismiss based on lack of 

speedy trial. 

IV 

Whether the District Court abused its discretion by 

denying defendant's motion to compel pretrial depositions of 
defendant's accomplices. 

On March 30, 1988, defendant filed a motion requesting 

that the District Court grant immunity to Lester Kills on Top, 

Diane Bull Coming, Doretta Four Bear, and LaVonne Quiroz, and 

to grant an order compelling their testimony by deposition for 

use at defendant's trial. The District Court did not rule on 

this motion. On appeal, defendant claims he was denied 

effective discovery of possible exculpatory information 

relevant to his guilt. 

The District Court may compel testimony or production of 

evidence pursuant to 5 46-15-331, MCA, which provides: 

Compelling testimony or production of 

evidence--immunity. Before or during trial in any 

judicial proceeding, a justice of the supreme court 

or judge of the district court, upon request by the 

attorney prosecuting or counsel for the defense, 

may require a person to answer any question or 

produce any evidence that may incriminate him. If 

a person is required to give testimony or produce 

evidence in accordance with this section in any 

investigation or proceeding, no compelled testimony 

or evidence or any information directly or indirectly derived from such testimony or evidence may 

be used against the witness in any criminal prosecution. Nothing in this section prohibits a prosecutor from granting immunity from prosecution for 

or on account of any transaction, matter, or thing 

concerning which a witness is compelled to testify 

if the prosecutor determines, in his sole discretion, that the ends of justice would be served 

thereby. Immunity may not extend to prosecution or 

punishment for false statements given in any testimony required under this section. 

The statute provides that the District Court 88may88 compel 

testimony or production of evidence; thus an order pursuant 

to this statute is discretionary with the court. Montana 
statutes do not specifically authorize pretrial discovery 

depositions in criminal cases, in line with most 

jurisdictions. The rationale is that the prior recorded 

statements of prosecution witnesses afford an alternative 

discovery source. LaFave, W. and Israel, J, Criminal 

Procedure 5 19.3 (1985). In the present case, the accomplices 

gave multiple statements to various people, including both 

state and federal law enforcement officers. The State made 

all of these statements available to defendant. The trial of 

Lester Kills on Top occurred one month prior to defendant's 

trial, and defense counsel had the opportunity to attend that 

trial and hear the testimony of these accomplices. At 

District Court, and on appeal, defendant has failed to 

identify any information which he hoped to elicit, which was 

not available through prior statements by the accomplices. 

Defendant has failed to show any prejudice from the District 

Court's failure to grant his motion. We conclude that 

defendant has presented no basis for this alleged error, and 

that the District Court did not abuse its discretion in not 

allowing pretrial depositions of accomplices. 

v 

Whether defendant was prejudiced by an order of the 

District Court in the companion case of Lester Kills on Top. 

In the case involving defendant's brother, Lester Kills 

on Top, the District Court ordered, over objection by Lester 

Kills on Top, production of statements made by individuals 
whom Lester intended to call as witnesses at trial. This 

order was made pursuant to 5 46-15-323 (4) , MCA. Defendant 

made no objection to this order at District Court. On appeal, 

he claims he was prejudiced by this order. 

Defendant's contention fails on two bases. Pursuant to 

an order by the District Court in his own case, defendant was 

required to produce the same information produced in Lester's 

case. Defendant did not object to the order in his own case 

and is therefore precluded from raising the issue on appeal. 

section 46-20-104 (2) , 5 46-20-701 (2) , MCA. Further, defendant 

lacks standing to assert the privilege which was alleged by 

his brother. 98 C.J.S. Witnesses 1 451 (1957); Cf. State v. 

Gonzales (1988), 231 Mont. 242, 751 P.2d 1063, (defendant 

lacked standing to object to use of evidence allegedly seized 

unconstitutionally from his brother's car and residence). 

Finally, defendant has failed to demonstrate any prejudice to 

him as a result of the order in Lester's case. We conclude 

there is no merit to defendant's contention regarding this 

order. 

VI 

Did the District Court err in denying defendant's motion 

to suppress? 

Defendant moved to exclude from his trial all evidence 

seized from defendant at the time of his arrest, alleging an 

illegal arrest and an illegal search of his person. The 

evidence he sought to suppress was the driver's license of 
the victim found in defendant's pocket, the clothes he was 

wearing at the time of his arrest, and a statement made to 

special agents of the Federal Bureau of Investigation. The 

District Court held a hearing on this motion on July 6, 1988, 

and denied the motion on July 19, 1988. 

The evidence at the hearing on the motion included 

testimony by Yellowstone County law enforcement. In substance, this testimony revealed that at a briefing on the 

afternoon of October 18, 1987, Yellowstone County law 

enforcement officers were informed that a black Dodge 

automobile with a certain Montana license plate number and 

occupied by two male and two female Native Americans had 

possibly been involved in an assault and kidnapping and that 

the victim might still be in the vehicle. This information 

was based upon bulletins from the Miles City Police 

Department. 

That same afternoon, one of the officers observed the 

vehicle in Billings. He and two other officers stopped the 

vehicle. At the hearing Officer Dostel testified that this 

was considered a "felony stopw and the officers approached 

the car with weapons drawn. (See 5 46-5-402, MCA) . The 

vehicle's occupants were ordered out of the vehicle at gunpoint, one at a time. Each person was then frisked for 

weapons. The individuals were told that they would be detained no longer than thirty minutes and that they would 

either be arrested or released. Officer Dostel also testi- 
fied that he was attempting to identify the car's occupants. 

As he was frisking the defendant he felt a small square hard 

obj ect in defendant s pocket, which he removed, hoping that 

it would provide identification. The object was the victim's 

driver's license. 

The driver of the car, Mr. Lyn Ros Bixby, signed a 

consent to search form and the automobile was then searched, 

whereupon the officers discovered blood in the trunk of the 

car. The officers testified that during this time they were 

receiving additional messages from the dispatcher in regard 

to the vehicle and its occupants. The occupants of the car 

were arrested and were read their Miranda rights. 

On appeal defendant contends the officers lacked probable cause to arrest him. He contends he was illegally 

arrested and therefore the search of his person was also 

illegal. 

A law enforcement officer may make a vehicular stop if 

the officer has a "reasonable suspicion, grounded in specific 

and articulable facts, that a person they encounter was 

involved in or is wanted in connection with a completed 

felony[.]''. United States v. Hensley (1985), 469 U.S. 221, 

229, 105 S.Ct. 675, 680, 83 L.Ed. 2d 604, 612; State v. Gopher 

(Mont. 1981), 631 P.2d 293, 38 St.Rep. 1078; !j 46-5-401, MCA. 

Further, this suspicion may be based on information obtained 

from a flyer or bulletin if the bulletin is issued on the 

basis of articulable facts supporting a reasonable suspicion. 
Henslev, 469 U.S. at 235. In the present case the bulletin 

was issued based on an articulable and reasonable suspicion, 

and provided a reasonable and articulable suspicion for the 

Yellowstone County officers. The vehicular stop based upon 

this information, and the procedures employed by the officers 

were eminently reasonable under the circumstances. 

A peace officer may frisk an individual for weapons 

incident to making an investigatory stop. Terry v. Ohio 

(1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. 

Additionally, pursuant to 5 46-5-402(1)(a), MCA, the officer 

may "take other reasonably necessary steps for protection if 

he has reasonable cause to suspect that the person is armed 

and presently dangerous to him or another person present[.]'' 

A peace officer may arrest a person when he believes on 

reasonable grounds that the person is committing an offense 

or that the person has committed an offense and the existing 

circumstances require his immediate arrest. Section 46-6- 

401(d), MCA. See State v. Hammer (1988), 233 Mont. 101, 759 

P.2d 979; State v. Lee (1988), 232 Mont. 105, 754 P.2d 512; 

State v. Davis (1980), 190 Mont. 285, 620 P.2d 1209. In the 

present case the vehicle search was being conducted at essentially the same time as the frisking. The information from 

the bulletin combined with the discovery of the blood in the 

trunk constituted probable cause to arrest. A search of the 

person may be conducted as incident to an arrest. Section 46- 

5-101(1), MCA. Thus, there is no merit to defendant's con- 
tention that he was illegally arrested or illegally searched. 

At the hearing on the motion to suppress, Officer Best 

testified that after defendant was arrested, he was advised 

of his Miranda rights. Defendant signed a waiver of these 

rights. After his arrest, defendant was taken to Yellowstone 

County Detention Center where Mr. Traeger, a special agent of 

the Federal Bureau of Investigation interviewed him. Another 

special agent, Mr. Leavitt, took notes of the interview, which 

were later transcribed. During this interview defendant 

indicated that he remembered a fight in Miles City, Montana, 

that he remembered being in Ashland, Montana and that the 

group was also in Sheridan, Wyoming. The transcribed 

statement indicates that at some point in the interview 

defendant indicated that he did not want to give further 

information since he did not want to involve his little 

brother, Lester. 

On appeal defendant urges that any statements made after 

he expressed his unwillingness to divulge further information 

were not voluntary. Defendant's statement was not introduced 

into evidence during the State's case in chief. Defendant 

contends, however, that any evidence obtained as a result of 

his statements informing officials of the group's itinerary 

must be suppressed. Alternatively, defendant contends that 

the District Court should have held a hearing to determine 

which evidence was obtained as a result of the confession, and 

which evidence had an independent source. 
In our analysis we begin by recognizing that Miranda v. 

Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 

held that an individual subjected to custodial interrogation 

must be notified of his right of silence. In interpreting 

Miranda, the United States Supreme Court, in Michigan v. 

Mosley (1975), 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313, 

stated: 

A reasonable and faithful interpretation of 

the Miranda opinion must rest on the intention of 

the Court in that case to adopt Itfully effective 

means . . . to notify the person of his right of 

silence and to assure that the exercise of the 

right will be scrupulously honored . . . . I' 384 

U.S. at 479. The critical safeguard identified in 

the passage at issue is a person's "right to cut 

off questioning.I1 Id., at 474. Through the exercise of his option to terminate questioning he can 

control the time at which questioning occurs, the 

subjects discussed, and the duration of the interrogation. The requirement that law enforcement 

authorities must respect a person's exercise of 

that option counteracts the coercive pressures of 

the custodial setting. We therefore conclude that 

the admissibility of statements obtained after the 

person in custody has decided to remain silent 

depends under Miranda on whether his "right to cut 

off questioningl1 was wscrupulously honored.It 

Mosley, 423 U.S. at 103-04, 96 S.Ct. at 326, 46 L.Ed.2d at 

At the hearing on the motion to suppress, both of the 

special agents who interviewed defendant testified that any 

statements made by defendant after he expressed an unwillingness to talk were voluntary. Each officer testified that 

defendant continued to talk after questioning ceased and that 

any questions by the officers were only for clarification. 
Moreover, evidence discovered by means independent of a 

constitutional violation may be admissible. Nix v. Williams 

(1984), 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377. This 

is based on the rationale that the prosecution should not be 

placed in a worse position than it would be in if no police 

error or misconduct had occurred. (Emphasis in original.) 

Nix, 467 U.S. at 443. In the present case, defendant points 

to no evidence which did not have an independent source. The 

statement given to the special agents provided a very skeletal 

outline of the group's itinerary. The evidence obtained by 

the State came from many other sources, including searches by 

search and rescue units, and statements of the accomplices. 

We conclude the District Court did not err in failing to 

conduct a hearing on the issue, or in refusing to suppress 

evidence based on this alleged constitutional violation. We 

affirm the denial of the motion to suppress. 

VII 

Whether the District Court erred in admitting certain 

evidence at trial. 

Defendant contends that certain trial evidence was 

improperly admitted. Defendant challenges the admission of 

various exhibits including the tool box; the pipe; photographs 

of the pipe, and an associated residue swab; the vice-grip; 

photographs of the victim's body; items of defendant's 

clothing; beer cans; .22 shells; and several purchase receipts 

for food and clothing. Defendant bases these alleged errors 
on arguments of relevance and prejudice. 

Evidence must be relevant to be entered at trial, and a 

district court has broad discretion in determining relevance. 

State v. Oman (1985), 218 Mont. 260, 264, 707 P.2d 1117, 1119. 

Relevance is defined in Rule 401, M.R.Evid., as follows: 

Relevant evidence means evidence having any 

tendency to make the existence of any fact that is 

of consequence to the determination of the action 

more probable or less probable than it would be 

without the evidence. Relevant evidence may include evidence bearing upon the credibility of a 

witness or hearsay declarant. 

In Oman, we discussed relevance as follows: 

The test of relevance is whether an item of evidence will have any value, as determined by logic 

and experience, in proving the proposition for 

which it is offered. Generally, whatever naturally 

and logically tends to establish a fact in issue is 

relevant, and that which fails to qualify in this 

respect is not relevant. (Citation omitted.) 

Oman, 707 P.2d at 1119. 

In the present case the State relied on accomplice 

testimony, which must be corroborated pursuant to 5 46-16- 

213, MCA. In substance, this statute provides that accomplice 

testimony cannot sustain a conviction unless it is 

independently corroborated by other evidence which tends to 

connect the defendant to the crime. Having reviewed the 

evidence presented at trial, we conclude that the items of 

evidence to which defendant now objects were relevant in that 

each item independently corroborated the testimony of one of 

the accomplices. 
Defendant contends that the admission of the tool box 

was irrelevant and was prejudicial as evidence of another 

crime. The tool box was relevant however, as corroborating 

the testimony of Doretta Four Bear regarding the sequence of 

events in Ashland and Rabbit Town. ~dditionally, the State 

was entitled to introduce the tool box even though it disclosed a crime other than the crimes charged, since it was a 

part of the corpus delicti and was inextricably related to 

the entire transaction. State v. Riley (1982) , 199 Mont. 413, 

425-26, 649 P.2d 1273, 1279. 

Defendant objects to two photographs introduced by the 

State. One photograph, taken on October 19, 1987 at the 

abandoned community hall, shows the right side of the victim's 

head and his right shoulder. This photograph corroborated 

testimony about where the body was left, and was also 

corroborative of testimony that the victim had been beaten 

severely prior to receiving the final blows to the head. The 

second photograph was taken at the autopsy and shows the left 

side of the victim's head, the side sustaining the fatal blows 

in Wyoming. The photograph also showed the cut inflicted upon 

the victim's neck. This photograph was relevant to 

corroborate testimony about the type and extent of the 

victim's injuries. The pathologist who performed the autopsy 

testified at trial. He stated that the autopsy photograph was 

necessary to depict the severity and location of certain 

injuries. 
We have previously held that if relevant, the inflammatory nature of a photograph of the victim does not necessarily outweigh the probative value. State v. Siglar (1984), 

210 Mont. 248, 256, 688 P.2d 749, 753 (holding that the jury 

was entitled to know the nature and extent of the injuries 

and no method other than the photographs would demonstrate 

this as graphically or as well) ; Rilev, 649 P.2d at 1280-81 

(holding that photos of victim's appearance at autopsy were 

reasonably necessary to depict the multiplicity and extent of 

injuries). We conclude the photographs were relevant and not 

unduly inflammatory. 

VIII 

Whether accomplice testimony was sufficiently 

corroborated. 

Accomplices Lester Kills on Top, Diane Bull Coming, 

Lavonne Quiroz and Doretta Four Bear testified at defendant's 

trial. Defendant claims their testimony was not sufficiently 

corroborated. 

Section 46-16-213, MCA, provides that accomplice testimony must be corroborated: 

Testimony of person legally accountable. A conviction cannot be had on the testimony of one responsible or legally accountable for the same offense, 

as defined in 45-2-301, unless the testimony is 

corroborated by other evidence which in itself and 

without the aid of the testimony of the one responsible or legally accountable for the same offense 

tends to connect the defendant with the commission 

of the offense. The corroboration is not sufficient if it merely shows the commission of the 

offense or the circumstances thereof. 
In State v. Kemp (1979), 182 Mont. 383, 597 P.2d 96, we stated 

some general rules about the "quantum and character of proof 

required to corroborate accomplice testimony": 

To be sufficient, corroborating evidence must 

show more than that a crime was in fact committed 

or the circumstances of its commission. State v. 

Keckonen (1938), 107 Mont. 253, 263, 84 P.2d 341, 

345. It must raise more than a suspicion of the 

defendant's involvement in, or opportunity to 

commit, the crime charged. State v. Gangner 

(1957), 130 Mont. 533, 535, 305 P.2d 338, 339. But 

corroborative evidence need not be sufficient, by 

itself, to support a defendant's conviction or even 

to make out a prima facie case against him. State 

v. Ritz (1922), 65 Mont. 180, 186, 211 P.2d 298, 

300; State v. Stevenson (1902), 16 Mont. 332, 334, 

67 P. 1001, 1002. Corroborating evidence may be 

circumstantial (State v. Harmon (1959), 135 Mont. 

227, 233, 340 P.2d 128, 131) and can come from the 

defendant or his witnesses. State v. Phillips 

(1953), 127 Mont. 381, 387, 264 P.2d 1009, 1012. 

One accomplice cannot supply the independent 

evidence necessary to corroborate another 

accomplice. 

Kemp, 597 P.2d at 99. 

In the present case a wealth of evidence was presented 

at trial in corroboration of accomplice testimony, including 

testimony by nonaccomplice witnesses, and physical and documentary evidence. In fact, in this case there existed an 

exceptional amount of corroborating evidence, which we will 

set out in detail. 

Testimony received at trial included: 1) the testimony 

by the victim's friend, Steven Hathaway, establishing that 

they arrived at the Golden West Lounge near midnight and that 
Hathaway left without the victim when the bar closed; 2) the 

testimony of Janelle Eads, a waitress at the lounge, establishing that Diane Bull Coming and the others were there until 

closing; 3) the testimony of Georgia Graham, an Ashland 

resident, establishing that a red tool box, which she identified at trial, was discovered missing from her home on October 17; 4) the testimony of a liquor store clerk and a 

bartender from Broadus establishingthatthe defendant's group 

was in that town on the morning of October 17; 5) the 

testimony of a convenience store clerk in Biddle establishing 

that the defendant and his group were in that town on the 

morning of October 17; 6) the testimony of a service station 

attendant in Weston establishing that the defendant and his 

group were in that town on the morning of October 17; 7) the 

testimony of bartenders and clothing store employees establishing that the defendant and his group were in Gillette from 

early to late afternoon on October 17 and closely corresponding to Diane Bull Coming's and LaVonne Quirozts 

descriptions of what occurred in the Lobby Bar, Lipman's 

Clothing, Corral West Ranch Wear, and the Rustic Inn Lounge; 

8) the testimony of the woman who pulled over to allow Lester 

Kills on Top and Diane Bull Coming to pass on Pickerel Ranch 

Road; 9) the testimony of a Gillette taxi company 

representative concerning the defendant and LaVonne Quiroz's 

ride from the Lobby Bar to the Rustic Inn Lounge; 10) the 

testimony of the rancher residing near the abandoned community 
hall concerning the defendant's presence there, the failure 

to close the fence gate, the ensuing pursuit and stop, and the 

defendant's return to the hall where Lester Kills on Top and 

LaVonne Quiroz shut the gate; 11) the testimony of the 

Sheridan Super 8 Motel clerk, the Woolworth employee and the 

Corral West Ranch Wear employee concerning Lester and Diane 

Bull Coming's activities in that town on October 17 and 

October 18; and 12) the testimony of Sylvia Barrigan 

concerning the activities of the defendant and LaVonne Quiroz 

at her home in Busby on the morning of October 18. 

Additionally, Dr. Deters, the pathologist who performed 

the autopsy, testified at trial. He testified that the victim 

had a subdural hematoma, which is a collection of blood 

between the surface and the fibrous tissue of the brain. He 

said that the victim had a collection of twenty milliliters 

of blood, which is potentially fatal. The subdural hematoma 

was located on the right side of the head. The injuries 

causing the hematoma occurred within the State of Montana and 

were corroborated by the photograph described in the previous 

part, which showed the severe beating which had occurred to 

the right side of the victim's head. Dr. Deters testified 

that this hematoma resulted from beatings at least forty-five 

minutes and up to twelve hours prior to death. 

Dr. Deters testified that there was a cluster of five 

injuries to the left side of the victim's head, which crushed 

the skull and caused injury incompatible with life. He 
testified that these were delivered at the same time and with 

the same instrument. He testified that these injuries were 

consistent with a weapon such as a rock. Dr. Deters testified 

that the victim had other injuries to the head, caused by a 

round instrument such as a pipe. This testimony by Dr. Deters 

corroborates accomplice testimony about the first beatings, 

and also corroborates testimony by Diane Bull Coming about the 

final beating. 

Aside from these witnesses' testimony, there were numerous physical or documentary exhibits which corroborated 

various aspects of the accomplice testimony: 1) the bloodstained Milwaukee's Best carton with the M & H gas station 

price listing discovered near Highway 332; 2) the victim's 

blood-stained shorts discovered near Highway 332; 3) the 

defendant's and his brother's shirts discovered near the water 

trough on Highway 332 and bearing traces of blood consistent 

with the victim's; 4) the Colstrip Garbage Disposal checks, 

one of which bore Quiroz's fingerprint, negotiated on October 

17 in Broadus and Biddle; 5) the receipts for transactions 

involving use of the victim's credit card in Weston, Gillette 

and Sheridan; 6) the Rustic Inn Lounge receipts discovered at 

Four Colors' residence in Billings and bearing a telephone 

number supplied by the bartender to Bull Coming; 7) the pipe 

discovered at the location on Pickerel Ranch Road identified 

by Diane Bull Coming; 8) the rock discovered at the Barrigan 

residence containing blood and hair residue consistent with 
the victim's and the shirt left behind there by the defendant 

and Quiroz containing blood residue consistent with the 

victim's; 9) the extensive array of evidence in the form of 

blood stains and hair linking the victim to the trunk of the 

vehicle; and 10) the vise-grip found in the front seat area 

of the vehicle and the spent .22 caliber shell discovered in 

the trunk which had been fired in a llnonconventional*l method. 

Such testimony and physical or documentary evidence were 

clearly sufficient, as a matter of law, to satisfy the State's 

obligation under 5 46-16-213, MCA. That statute neither 

requires corroboration to "extend to every fact to which the 

accomplice testifies1' nor demands that it be sufficient Itto 

support a prima facie case against the defendant." State v. 

Ungaretti, (Mont. 1989), 779 P.2d 923, 925, 46 St.Rep. 1710, 

1713. Taken as a whole, nonaccomplice testimony and the 

various exhibits provided powerful support for the testimony 

of Diane Bull Coming, Doretta Four Bear and LaVonne Quiroz and 

permitted a properly-instructed jury to consider their 

testimony in its deliberations. We hold the accomplice 

testimony was sufficiently corroborated. 

Whether the District Court erred in instructing the jury. 

Defendant contends the District Court erred in giving 

certain instructions and in failing to give certain instructions offered by defendant. We will address each contention 

separately. 
The jury was instructed on the offenses of robbery, 

aggravated kidnapping, and deliberate homicide pursuant to 

the felony murder rule. Defendant contends the jury should 

have been instructed on the lesser included offenses of 

unlawful restraint and kidnapping. He contends the jury must 

be instructed on lesser included offenses if there is ffsome 

evidence" to support the lesser offense, citing State v. 

Hamilton (1980), 185 Mont. 522, 605 P.2d 1121, cert denied, 

447 U.S. 924 (1980). We have previously stated the test 

regarding the court's duty to instuct the jury on lesser 

included offenses, as follows: 

It is a fundamental rule that the defendant is 

entitled to an instruction on a lesser included 

offense if the evidence would enable the jury 

rationally to find him guilty of a lesser offense 

and to acquit him of the greater. Keeble v. United 

States (1973), 412 U.S. 205, 208, 93 S.Ct. 1993, 

1995, 36 L.Ed.2d 844, 847. Butthis Court has held 

that the District Court will not be put in error 

for refusing to instruct as to the lesser included 

offense, if the evidence is such to show that the 

defendant is either guilty of the offense charged 

or entitled to an acquittal. (Citations omitted.) 

State v. Kyle (Mont. 1980), 628 P.2d 260, 263, 37 St.Rep. 1447, 

Unlawful restraint is committed when a person Ifknowingly 

or purposely and without lawful authority restrains another so as 

to interfere substantially with his liberty. l1 Section 45-5- 

301(1), MCA. Kidnapping is committed when unlawful restraint is 

effected "by either secreting or holding [the victim] in a place 

of isolation or by using or threatening to use physical force." 

Section 45-5-302(1), MCA. Defendant was charged with aggravated 

44 
kidnapping, committed with a purpose to inflict bodily injury or 

terrorize the victim, or in the alternative, aggravated kidnapping 

with the purpose to facilitate commission of any felony or flight 

thereafter. In the present case, defendant was not entitled to an 

instruction on unlawful restraint unless there was evidence that 

the victim was not restrained by secreting him or by using force. 

He would have been entitled to an instruction on kidnapping only 

if there was evidence that no purpose to inflict bodily injury or 

terrorize the victim existed. There is no evidence in the record 

that the restraint of the victim was not accompanied by the use of 

force. Neither is there evidence of a kidnapping without a purpose 

of inflicting bodily injury or terrorizing the victim. The 

evidence would not reasonably support the lesser included offenses. 

See also State v. Ballenger (1987), 227 Mont. 308, 312, 738 P.2d 

1291, 1294 (court properly refused instructions on aggravated 

assault and felony assault where evidence demonstrated calculated, 

relentless beatings of child, resulting in child's death); State 

v. Farrell (1984), 207 Mont. 483, 491, 676 P.2d 168, 172-73 (court 

properly refused instruction on misdemeanor theft where evidence 

showed that amounts received by defendant were over $150, and no 

rational trier of fact could have found defendant guilty of misdemeanor theft); State v. Radi (1978), 176 Mont. 451, 464, 578 P.2d 

1169, 1177 (court properly refused instruction on lesser included 

offense of criminal trespass where no evidence could lead a jury 

to believe defendant was in building for an innocent purpose). We 

conclude that defendant was not entitled to an instruction on these 
lesser included offenses. 

Defendant also contends the jury should have been instructed on theft and assault, urging that these are lesser 

included offenses of robbery and deliberate homicide. Defendant's contention fails since these are not lesser included 

offenses of the crimes charged. 

The 

applied 

included 

analysis that this Court has consistently 

in determining whether one offense is 

within another offense is the test set 

forth in Blockburser v. United States (1932), 284 

U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 

309. In Blockburqer, the Court ruled: 

"The applicable rule is that where the same act or 

transaction constitutes a violation of two distinct 

statutory provisions, the test to be applied to 

determine whether there are two offenses or only 

one, is whether each provision requires proof of a 

fact which the other does not." 284 U.S. at 304, 

52 S.Ct. at 182, 76 L.Ed at 309. 

The Blockburqer test is codified in section 46-11- 

502, MCA. 

This Court has adopted the approach whereby 

the analysis is applied to the statutes in question 

rather than to the facts of the individual case. 

State v. Ritchson (1981), Mont., [sic] 630 P.2d 

234, 237, 38 St.Rep. 1015, 1018. 

State v. Wells (1983), 202 Mont. 337, 351, 658 P.2d 381, 388. 

The offense of robbery, pursuant to 5 45-5-401 (1) (a) , 

MCA, does not require the completed act of theft as an element of robbery. The offense of theft requires proof of an 

additional fact--that the offense was completed. Theft is 

thus not a lesser included offense of robbery. See State v. 

Albrecht (Mont. 1990), - P.2d, 47 St.Rep. 800. 

Defendant also contends that the jury should have been 
instructed on assault as a lesser included offense of 

deliberate homicide. This Court has concluded that the 

underlying felony in a deliberate homicide pursuant to 5 45- 

5-102(l)(b), MCA, is not a lesser included offense of felony 

murder. State v. Close (1981), 191 Mont. 229, 245-49, 623 

P.2d 940, 949-51. The offense of aggravated assault may 

constitute the underlying felony in a felony murder charge. 

Since aggravated assault cannot be a lesser included offense 

under 5 45-5-102 (1) (b) , MCA, neither can assault. We conclude 

that the District Court did not err in denying defendant's 

instructions on these offenses. 

Defendant contends the jury instruction on accomplice 

testimony was inadequate in that it did not identify by name 

the parties who were accomplices and whose testimony should 

be viewed with distrust. During settlement of instructions, 

defendant objected to this instruction but did not state the 

basis of his objection. Further, since the defendant withdrew 

his own instruction on accomplice testimony, which listed the 

names of three accomplices, he cannot now complain on appeal. 

State v. Bretz (1979), 185 Mont. 253, 296, 605 P.2d 974, 998, 

cert. denied, 444 U.S. 994, 100 S.Ct. 529, 62 L.Ed.2d 425 

(1979). 

However, we have found no requirement that an instruction 

on accomplice testimony refer by name to the accomplice 

witnesses. Further, as the given instruction stated, whether 

a witness is an accomplice within the meaning of the law may 
be a factual question for the jury. We conclude the District 

Court did not err in instructing the jury on accomplice 

testimony. 

The court gave four instructions on accountability to 

the jury.' Defendant concedes these are correct statements of 

the law, but contends these instructions did not adequately 

cover accountability. He contends his refused instructions 

should have been given. The given instructions correctly and 

adequately informed the jury of accountability principles. 

See § 45-2-301, MCA; 5 45-2-302, MCA; State v. Miller (Mont. 

Court's Instruction No. 19: 

Mere presence at the scene of the crime and knowledge that a 

crime is being committed are not sufficient to establish that the 

defendant was involved in the crime. To be responsible, you must 

find beyond reasonable doubt that the defendant was a participant 

and not merely a knowing spectator. 

Court's Instruction No. 20: 

A person is responsible for conduct which is an element of an 

offense if the conduct is either that of the person himself or that 

of another and he is legally accountable for such conduct. 

Court's Instruction No. 21: 

A person is legally accountable for the conduct of another when 

either before or during the commission of an offense, and with the 

purpose to promote or facilitate such commission, he solicits, 

aids, abets, agrees, or attempts to aid, such other person in the 

planning or commission of the offense. 

Court's Instruction No. 22: 

A person is not legally accountable for the conduct of another 

if: 

(1) before the commission of the offense, he terminates his 

effort to promote or facilitate such commission and does one of 

the following: 

(a) wholly deprives his prior efforts of effectiveness 

in such commission: 

(b) otherwise makes proper effort to prevent the 

commission of the offense. 
1988), 757 P.2d 1275, 1283-84, 45 St.Rep. 790, 798-800. We 

conclude the jury was properly informed on accountability. 

The court gave four instructions on flight. On appeal 

defendant objects to two of these instructions. He objects 

to Instruction No. 26 which informed the jury that it might 

consider any testimony tending to show flight by the defendant 

as tending to prove consciousness of guilt. Defendant 

contends there was no evidence that defendant attempted to 

flee. Defendant did not object to this instruction at trial 

and cannot now claim error. State v. Smith (1986), 220 Mont. 

364, 381-82, 715 P.2d 1301, 1311. We conclude, however, that 

trial evidence provided an adequate factual basis for the 

giving of a flight instruction. Defendant immediately left 

the community hall after helping to dispose of the body, he 

left Lester and Diane Bull Coming in Sheridan without 

informing them he was leaving, and he attempted to destroy 

evidence by washing the trunk of the car and throwing away the 

rock at the Barrigan residence. 

Defendant objected to court's Instruction No. 29 which 

stated: 

The ensuing flight is considered part and 

parcel of a Robbery until such time as the criminal 

purpose, including carrying away of the spoils of 

the crime, is completed. 

Although defendant s objection to this instruction at 

trial was nonspecific, on appeal he urges that the instruction is incorrect in that flight would be deemed to continue 

indefinitely under this instruction. We first note that this 

49 
instruction correctly states the law. State v. Case (1980), 

190 Mont. 450, 454-55, 621 P.2d 1066, 1069. In the present 

case, the trial evidence provided a factual basis to conclude 

that the criminal purpose of the robbery continued at least 

through the events in Gillette, Wyoming. Additionally, since 

defendant was not convicted of felony murder premised on 

robbery, any error in the giving of this instruction would be 

harmless. 

Finally, defendant contends the court improperly refused 

his offered instructions on alibi and justifiable use of 

force. He contends he was entitled to an alibi instruction 

since he was in a Gillette bar when the homicide occurred. 

Defendant also claims there was evidence presented indicating 

his actions against the victim were in self defense. 

The district court has a duty to instruct the 

jury on every issue or theory having support in the 

evidence. In determining whether to give an 

instruction, the inquiry of the court must only be 

whether any evidence exists in the record to warrant 

an instruction. State v. Sotelo (1984), 209 Mont. 

86, 89, 679 P.2d 779, 781. 

State v. DeMers (1988), 234 Mont. 273, 280, 762 P.2d 860, 864. 

However, defendant misapplies the availability of an 

alibi defense. Defendant was convicted of deliberate homicide 

under the felony murder rule. Defendant was charged as a 

principal and by accountability. Although defendant was not 

present at the scene of the homicide, evidence existed to 

50 
connect him to the offense under the felony murder rule and 

through accountability principles. His presence at the 

Gillette bar therefore does not provide a basis for an alibi 

defense. 

As to the justifiable use of force instruction, the State 

contends there is no factual or rational basis for submitting 

this issue to the jury, and we agree. In DeMers we listed the 

necessary findings in regard to a justifiable use of force 

defense as follows: 

In order to find justifiable use of force the 

jury must find that the defendant (1) was not the 

aggressor, (2) reasonably believed that he was in 

imminent danger of unlawful harm, and (3) that he 

used reasonable force necessary to defend himself. 

DeMers, 762 P.2d at 865. The trial evidence would not support 

this defense. We conclude the District Court did not err in 

refusing to give instructions on alibi and justifiable use of 

force. 

We conclude the District Court did not err in instructing the jury. 

X 

Whether there was prosecutorial misconduct at trial, and 

if so, whether defendant was thereby prejudiced. 

Defendant contends "prosecutorial misconductt1 occurred 

during his trial. He bases this assertion on certain questions asked of Lester by the county attorney on crossexamination. 

On cross-examination the county attorney asked Lester if 

51 
it was true that he and defendant ran after the victim and 

brought him back to the car at one of the stops. Later in the 

cross examination the county attorney asked Lester if it was 

defendant who wanted to go to Ashland, and he also asked 

Lester if it was defendant who practiced endorsing the checks 

taken from the victim. At trial defendant objected to each 

of these questions as having no factual basis in the record. 

His objections were overruled. 

On appeal, defendant characterizes these questions as 

prosecutorial misconduct. "It is clear that misconduct by a 

prosecutor may form the basis for granting a new trial where 

the prosecutorls actions have deprived defendant of a fair 

and impartial trial." State v. Gray (1983), 207 Mont. 261, 

266-67, 673 P.2d 1262, 1265-66. We conclude however, that in 

the present case the questions by the county attorney did not 

amount to misconduct, and did not deny defendant a fair and 

impartial trial. 

"It is unprofessional conduct for a prosecutor to ask a 

question which implies the existence of a factual predicate 

for which a good faith belief is lacking." ABA 

Standards for Criminal Justice 5 3-5.7(d) (1986). The 

questions asked by the county attorney were not without a good 

faith belief that a factual basis existed for these questions. 

Moreover, these questions were insignificant in view of the 

total evidence produced at trial. We conclude the court did 

not err in overruling defendant's objections, and that no 
prosecutorial misconduct has been shown. 

Defendant also objects on appeal to seven statements made 

by the prosecution in closing argument. However, no objection 

was made to these statements at trial. Any claim of 

prejudicial error has therefore been waived. See 88 46-20- 

104 (2), 46-20-701(2), MCA; State v. Smith , 232 Mont. 156, 

160, 755 P.2d 569, 571. In any event the statements are not 

significant, especially in view of the total evidence produced 

at trial. We conclude defendant has shown no prosecutorial 

misconduct and was not denied a fair and impartial trial. 

XI 

Whether the District Court erred in denying defendant's 

motion for a mistrial. 

On the ninth day of trial, defense counsel made a motion 

for a mistrial because the bailiff and a deputy clerk were 

wearing badges which stated, ''Take a Bite out of Crime." The 

District Court denied this motion but asked the court personnel to remove the badges. On appeal defendant contends the 

court should have granted a mistrial. 

A mistrial is an extreme remedy only to be granted for 

"manifest necessityw and as required by the 'lends of public 

justice.Ir State v. Brush (1987), 228 Mont. 247, 252-53, 741 

P.2d 1333, 1336. A motion for a mistrial is directed to the 

sound discretion of the trial court. The appellate court 

determines if the trial court abused its discretion in denying 

a mistrial. Brush, 741 P.2d at 1336. 
In the present case defendant has made no showing of 

prejudice and has demonstrated no basis for a mistrial. 

Although this Court expressly disapproves of such conduct, 

from the transcript it is apparent that the district court 

did not consider the situation serious. The jury was 

instructed to decide the case based on the evidence presented 

at trial. In view of the overwhelming evidence pointing to 

defendant's guilt, we conclude that beyond a reasonable doubt 

these badges were not significant and did not contribute to 

the verdict. Brush, 741 P.2d at 1336. We conclude the 

District Court properly denied defendant's motion. We affirm 

the District Court's denial of the motion for a mistrial. 

Whether the District Court abused its discretion by 

utilizing the verdict form offered by the State. 

The court utilized the verdict form offered by the State. 

This verdict form listed the five counts as charged in the 

amended information. The form indicated that Counts I1 and 

111, both dealing with aggravated kidnapping, were alternative findings. Similarly Counts IV and V, dealing with 

deliberate homicide, were listed alternatively. Defendant 

contends this form was confusing to the jury. 

The county attorney carefully explained the verdict form 

to the jury during closing argument, and Instruction No. 38 

also explained the form. The form was consistent with the 

amended information and clearly framed. We see no merit to 
defendant's contention. We conclude the District Court did 

not err in submitting the State's verdict form to the jury. 

XI11 

Whether certain factual findings in the District Court's 

sentencing order were supported by substantial evidence. 

Defendant challenges ten of the findings of fact in the 

sentencing order as not supported by the evidence. The 

challenged findings are: 

11. That the victim suffered a subdural 

hematoma, as a result of the beatings in Custer 

County, Montana prior to the final beatings which 

led to his death in Campbell County, Wyoming. 

14. That the Defendant knew that the victim 

was married and had a family. 

15. That the victim pleaded with this Defendant and his accomplices, for his life, to no 

avail. The victim was killed by Lester Kills On 

Top who beat the victim on the head with a tire 

iron, pipe and rock, cut the victim's throat with 

a small knife and shot at him with a .22 shell held 

in a vice grip. 

17. That since the Defendant did not testify 

at the trial or at the sentencing hearing, the 

Court has not heard anything from the Defendant. 

By his demeanor in Court at the trial and sentencing hearing, he has exhibited no remorse. 

20. That the Defendant could have removed 

himself from the entire episode and could have 

saved the life of the victim on more than one 

occasion, when he was left alone with the victim, 

but failed to do so. That the actions of this 

Defendant were so depraved as to reach a conclusion 

that any leniency would be an injustice. 

21. That two of the aggravating circumstances 
set forth in 846-18-303 of the Montana Code Annotated apply in this case: 

A. The offense was Deliberate Homicide 

and was committed by means of torture. 

B. The offense was Aggravated Kidnapping 

which resulted in the death of the victim. 

22. The only possible mitigating circumstance 

that appears pursuant to 846-18-304 of the Montana 

Code Annotated is that the Defendant has no significant history of prior criminal activity. In that 

regard, the Defendant, although he has no prior 

felony record, does have a substantial record of 

violent offenses on the Northern Cheyenne Indian 

Reservation including Assault and Assault and 

Battery, occurring over a period of several years. 

23. The mitigating circumstances that the 

Defendant acted under the substantial domination of 

another person does not apply in that it appears 

that this Defendant assisted in the decision to 

"rollI1 the victim initially and was driving the car 

which he turned around and away from Miles City. 

Further, on several occasions, the Defendant did 

have the opportunity to remove himself from the 

entire depraved scheme and to save the life of the 

victim. There is no evidence that the Defendant 

was dominated by anyone. 

24. The Defendant had been drinking, but 

there is no evidence to support quantitatively how 

much the Defendant had consumed or his condition. 

Furthermore, it appears that the Defendant acted 

rationally although in a depraved manner, by driving the car, washing the blood off his hands, 

disposing of his bloody shirt, using the gas credit 

card of the victim in Ashland and in advising 

Lavonne Quiroz to move the car from the street in 

Gillette to an alley location where the victim 

could not be heard calling for help. Clearly, he 

had the ability to make decisions and the fact that 

he was drinking is no defense to the crimes cornmitted as the intoxicants were voluntarily taken by 

the Defendant. Nor is there any evidence before 

the Court to show that the Defendant was substantially impaired by the drinking. 

25. That the Defendant was an accomplice in 

the Deliberate Homicide committed by another person. He was a direct participant in the Aggravated 

Kidnapping and Robbery and, further, his participation was not minor, but was substantial, in that 

he assisted in the planning of the abduction and 

robbery, assisted in the beatings and choking of 

the victim, helped strip and place the victim in 

the trunk, and used the proceeds of the robbery. 
He agreed that the victim had to die; and when he 

could have assisted the victim, told Lavonne Quiroz 

to move the car to the alley when the victim began 

making noise and pleading for help. He also assisted at the time the body was concealed. The 

only portion of the crime for which the Defendant 

had no involvement was the period of time when the 

victim was finally beaten and killed by Lester 

Kills On Top. 

In regard to finding number 11, Dr. Robert Deters, who 

conducted the victim's autopsy, testified at trial. He stated 

there was a subdural hematoma on the right side of the head 

caused by a series of insults to the head. He testified that 

the hematoma must have occurred at least 45 minutes and up to 

twelve hours prior to the injuries to the left side of the 

head. The only beatings Mr. Etchemendy received prior to 

being placed in the trunk occurred in Custer County. 

testimony indicates that he was beaten again prior to the 

fatal blows. We conclude that finding number 11 is supported 

by substantial evidence. 

As to findings number 14 and 15, Diane Bull Coming 

testified that while the victim was in the trunk he stated 

that he was married and had two children. Defendant was in 

the car at that time. She also testified that Lester beat 

the victim with a tire iron, pipe, and rock, attempted to 

shoot the victim by use of a vice grip, and that Lester 

attempted to cut the victim's throat with a knife. 

Photographs and physical evidence corroboratedthis testimony. 

There was testimony trial that the victim pleaded with 

defendant and Lester to stop beating him while outside the car 
in Custer County, that defendant pleaded through the back seat 

of the car while he was in the trunk as the group was 

traveling to ~illette, and that the victim pleaded for help 

and pounded on the trunk while the car was stopped in 

Gillette. The finding by the sentencing court that the victim 

pleaded with defendant for his life is supported by the 

evidence. We conclude that findings of fact numbers 14 and 

15 are supported by substantial evidence. 

In finding number 17 the court noted that defendant 

exhibited no remorse at trial. At the sentencing hearing two 

ministers testified that defendant was remorseful. The 

finding by the District Court is a proper response to this 

testimony. 

The court's finding of fact number 20, that defendant 

could have removed himself from the entire episode and could 

have saved the life of the victim on more than one occasion 

when he was left alone with him but failed to do so, and also 

that the actions were so depraved that leniency would be an 

injustice, are supported by substantial evidence. The 

testimony demonstrated that defendant was left alone with the 

keys to the car on more than one occasion, and that there were 

a number of opportunities where he could have saved the life 

of the victim had he chosen to do so. Our careful review of 

the extensive evidence demonstrates that the conclusion that 

the defendant was so depraved that leniency would be an 

injustice is an appropriate conclusion. We conclude finding 
number 20 is supported by substantial evidence. 

With regard to finding number 21, the defendant contends 

that the court's finding that the offense of deliberate 

homicide was committed by means of torture is not supported 

by the evidence. The fatal blows in Wyoming were brutally 

accomplished by use of a pipe, a tire iron and a rock. Diane 

Bull Coming testified that during this beating the victim 

cried out, "Oh God, no, God, no, while blood spurted from his 

head. Additionally, we cannot rationally separate the final 

beating from the entire criminal transaction which 

demonstrated a course of conduct involving brutality and 

extending over a number of hours. Prior to delivery of the 

fatal blows in Wyoming the victim was brutally assaulted 

several times and confined nude in the small trunk of a car 

on a cool morning for a number of hours. The evidence established that these prior beatings in Montana were severe enough 

to be potentially fatal. Dr. Deters testified that the 

subdural hematoma was potentially fatal. It is not possible 

to determine from the medical evidence the extent to which the 

prior beatings contributed to the victim's death. The 

beatings and restraint, culminating in the bludgeoning to 

death of the victim, constitute substantial evidence that the 

homicide was committed by means of torture. 

The determination that these acts were torturous is 

consistent with this Court's previous holdings regarding 

torture in death penalty cases. See, e.q., State v. Dawson, 
233 Mont. 345, 358, 761 P.2d 352, 360, cert. denied, - U. S. 

, 109 S.Ct. 3200, 105 L.Ed.2d 708, (1989); (evidence 

supported finding that deliberate homicide was committed by 

means of torture where victims were bound and gagged in each 

others presence, injected with unknown drugs, and strangled) ; 

State v. McKenzie (1976), 171 Mont. 278, 296, 557 P.2d 1023, 

1034, vacated, 433 U.S. 905, 97 S.Ct. 2968, 53 L.Ed.2d 1089 

(1977), on remand, 177 Mont. 280, 316, 581 P.2d 1205, 1226 

(1978), cert. denied, 443 U.S. 912, 99 S.Ct. 3103, 61 L.Ed.2d 

877 (1979), on remand, 186 Mont. 481, 513, 608 P.2d 428, 447- 

48 (1980), cert. denied, 449 U.S. 1050, 101 S.Ct. 626, 66 

L.Ed.2d 507, (1980) (evidence supported finding that 

deliberate homicide was committed by means of torture where 

victim was killed by a blow which laid open her head, prior 

to which she was nonfatally strangled) ; State v. Lester Kills 

on Top (Mont. 1990), 787 P.2d 336, 348-49, 47 St.Rep. 366, 382 

(evidence supported finding that deliberate homicide was 

committed by means of torture where severely beaten victim was 

placed nude in trunk of car, restrained there for twelve 

hours, then bludgeoned to death with a pipe, tire iron, and 

rock). We conclude that there exists substantial evidence to 

support a finding that defendant caused the victim's death by 

torture. The sentencing court also found as an aggravating 

circumstance, that the offense was aggravated kidnapping which 

resulted in the death of the victim. Defendant was convicted 

by jury of aggravated kidnapping with the purpose to 
facilitate commission of any felony or flight thereafter, 

pursuant to 45-5-303 (1) (b) , MCA. Substantial trial evidence 

supports this conviction. The testimony established that 

defendant restrained the victim with physical force, and by 

helping to place him in the trunk. At the same time defendant 

participated in the robbery of the victim. The aggravated 

kidnapping resulted in the death of the victim. We do note 

here although defendant contends that there was no causal 

connection between the aggravated kidnapping and the death, 

there is no merit to this contention. The kidnapping 

continued up to the point of death, and defendant did nothing 

to terminate it. We conclude that finding number 21 is 

supported by substantial evidence. We affirm the sentencing 

court's findings on this issue. 

As to finding number 22, at the presentence hearing 

evidence was presented that defendant had a record of assaultrelated and alcohol-related offenses on the reservation. 

Defendant contends the finding by the sentencing court that 

he had a substantial record of violent offenses is incorrect 

since some of these offenses may have been committed by his 

father but mistakenly attributed to defendant. Testimony at 

the hearing clarified which charges were attributed to 

defendant, and which charges had been dismissed. The 

presentence report and hearing testimony support the finding 

by the sentencing court as to defendant's prior offenses as 

contained in finding number 22. 
The courtls finding in No. 23, that defendant was not 

dominated by anyone, is supported by much evidence 

demonstrating his personal involvement in the offenses. 

Additionally, the court's finding No. 24, that defendant's 

consumption of alcohol did not impair his ability to act 

rationally, is supported by substantial evidence. The 

instances of defendant's rational behavior, enumerated by the 

court, are supported by the evidence. 

Finding of Fact No. 25 states that defendant was an 

accomplice to the homicide and that his participation in the 

aggravated kidnapping and robbery was substantial. The 

court's listing of defendantls specific involvements is 

supported by testimony from Doretta, Diane, and LaVonne. 

Further, many exhibits corroborated defendant's involvement, 

including his shirt with blood on it, found near the water 

trough; receipts for clothes and gas, signed by defendant; 

and the clothes he left at the Barrigan1s, which contained 

blood. At trial Diane Bull Coming testified that on two 

separate occasions defendant agreed with Lester that the 

victim had to die. Although defendant complains that this 

particular testimony, made by an accomplice, was not 

corroborated, corroboration of every fact is not necessary. 

''Where an accomplice has been corroborated as to part of his 

testimony and that testimony has been accepted as truthful, 

it is proper for the court to infer the accomplice spoke the 

truth as to all his testimony.I1 State v. Coleman (1979), 185 
Mont. 199, 332, 605 P.2d 1000, 1020, cert. denied, 446 U.S. 

970, 100 S.Ct. 2952, 64 L.Ed.2d 831 (1980), revfd on other 

srounds, 874 F.2d 1280 (9th Cir. 1989). See also, 23 C.J.S. 

Criminal Law 1 1015 (1989). We conclude that the above 

findings are supported by substantial evidence. 

XIV 

Whether imposition of the death penalty is constitutional under the mandatory review criteria of § 46-18-310, MCA. 

On appeal, defendant also challenges the constitutionality of Montana's sentencing statutes which govern imposition 

of the death penalty. Defendant relies on a recent Ninth 

Circuit case, Adamson v. Ricketts (9th Cir. 1988), 865 F.2d 

1011, petition for cert. filed, 57 U.S.L.W. 3739 (U.S. March 

20, 1989) (No. 88-1553). In Adamson, the Ninth Circuit 

declared unconstitutional Arizona's sentencing statutes which 

govern imposition of the death penalty. In comparing Arizona's statutes with those of Montana, we note that they are 

similar. 

Defendant did not raise this specific objection to 

Montana's sentencing statutes at District Court, and we 

decline to address this issue on appeal. First, the Adamson 

decision is not binding on Montana, and we note that the 

decision has been appealed to the United States Supreme Court. 

Second, this issue was not raised at District Court and was 

neither substantively briefed nor argued before this Court. 

Thus it is not appropriate for this Court to consider the 
issue. As a final comment, we note that this Court has 

previously held these statutes to be constitutional based on 

similar challenges in Dawson, 761 P.2d at 360, and State v. 

Smith (1985), 217 Mont. 461, 490-91, 705 P.2d 1087, 1105-06, 

cert. denied, 474 U.S. 1073, 106 S.Ct. 837, 88 L.Ed.2d 808 

(1986). 

We conclude that the imposition of the death penalty is 

constitutional under the review criteria of 5 46-18-310, MCA. 

xv 

Supreme Court sentence review pursuant to 46-18-310, 

MCA . 

In Montana, appellate review of a death sentence is 

prompt, 5 46-18-308, MCA, and automatic, 5 46-18-310, MCA. 

In reviewing a death sentence pursuant to 5 46-18-310, MCA, 

this Court must determine 1) whether the sentence was imposed 

under the influence of passion, prejudice, or any other 

arbitrary factor; 2) whether the evidence supports the court's 

findings on any mitigating and aggravating circumstances; and 

3) whether the sentence is excessive or disproportionate to 

the penalty imposed in similar cases, considering both the 

crime and the defendant. 

Defendant does not expressly contend that this sentence 

was imposed under the influence of passion, prejudice, or any 

other arbitrary factor. Defendant does, however, infer that 

defendant Is race of Native American may have been a factor in 

either the verdict or in sentencing. We therefore discuss 
this inference. We begin by concluding that nothing in the 

trial transcript, including the voir dire, provides a basis 

for allegations of bias based on race. The voir dire was 

conducted by interviewing prospective jurors in groups of six. 

Each group was specifically asked if defendant's race would 

be a factor in decision-making. No juror expressed bias 

because of race. The answers given in voir dire provide no 

basis for allegations of racial prejudice. Additionally, our 

review of the trial transcript provides no suggestion that 

race was improperly injected into this trial, either by the 

prosecution or by defense counsel. 

In its findings of fact the sentencing court notes defendant Is age, the date and place of his birth, and the fact that 

defendant is a Northern Cheyenne Indian. The sentencing court 

notes that defendant has a record of violent offenses on the 

Northern Cheyenne Reservation. These are the only references 

to defendant's race in the sentencing order. The record is 

devoid of any indication that race was a factor in sentencing. 

We further note that since Montana's death penalty 

statutes were revised in 1977 to conform to United States 

Supreme Court holdings in Furman v. Georgia (1972), 408 U.S. 

238, 92 S.Ct. 2726, 33 L.Ed.2d 346, defendant and his brother, 

Lester Kills on Top, are the only Native Americans to receive 

the death penalty in Montana. Only one other defendant from 

a minority race has been sentenced to death and that case 

involved a black defendant. See Coleman. We conclude that 
defendant's inferences that race was a factor in this case are 

unsubstantiated. 

We also choose to discuss the finding made by the 

sentencing court in finding No. 18: 

18. That the victim's family has been deprived of a son, a husband and brother, and the 

parents of the victim have been for some time, and 

now are, undergoing psychiatric counselling as a 

result of their son's death. 

The United States Supreme Court, in Booth v. Maryland 

(1987), 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440, held 

that the jury's consideration of a victim impact statement in 

that case was error, requiring resentencing. In Booth, the 

State of Maryland had a statute reauirinq consideration at 

sentencing of victim impact statements if the victim suffered 

injury or death. In Booth the sentencing was done by the 

jury. The defendant was convicted of the murder of an elderly 

couple. Before sentencing, a lengthy statement written by the 

Maryland Division of Parole and Probation was read to the 

jury. It contained statements made by several family members, 

including a son, daughter, and granddaughter. The statements 

described the good character and reputation of the victims, 

and the emotional distress suffered by the various family 

members. The statement was lengthy and poignant, containing 

many facts regarding the impact on the family. 

The court held that consideration of the statement 

violated the ~ighth Amendment in that it could influence the 

jury to impose sentence in an arbitrary or capricious manner. 
The court stated that a victim impact statement is irrelevant, that it improperly diverts the jury's attention away 

from the defendant and the crime, and that it is inconsistent 

with the reasoned decision-making required in a capital case. 

Booth, 482 U.S. at 503-09. 

In the present case the record contains no written victim 

impact statements. The source of the information about the 

parentsn counselling is from the father's testimony at the 

presentence hearing. At this hearing the father also 

testified that the victim graduated from Montana College of 

Mineral Science and Technology with honors, and that he had 

a wife and two sons. The father stated his opinion that this 

was an appropriate case for the death penalty. 

In two recent Montana cases this Court discussed whether 

consideration of victim impact statements at sentencing 

constituted reversible error. In Dawson, the presentence 

investigation report contained a three paragraph victim impact 

statement, which stated that three members of a family had 

died as a result of the homicide, and that the teenage 

daughter was undergoing counseling but "not doing so well.'1 

This Court concluded that Booth was not controlling in that 

sentencing was by the court, not the jury, and because the 

victim impact statement was not as lengthy or poignant as the 

one in Booth. Dawson, 761 P.2d at 361. See also State v. 

Keith, 231 Mont. 214, 235-37, 754 P.2d 474, 487-88. The 

present case is distinguishable from Booth in that sentencing 
was by a judge rather than a jury, and there was no written 

victim impact statement. The testimony by the father was 

neither lengthy nor emotional. It was clearly not as 

questionable as the information considered in Booth. We 

conclude there was no error in the sentencing court's consideration of the statements. 

The findings of the sentencing court are lengthy and 

dispassionate and afford no indication that the sentence was 

imposed under the influence of passion, prejudice, or any 

other arbitrary factor. We conclude that the sentence was 

not imposed under passion, prejudice, or any arbitrary factor. 

The second determination pursuant to B 46-18-310, MCA, 

requires this Court to consider whether the evidence supports 

the sentencing court's findings of aggravating and mitigating 

circumstances. In Montana, before imposing the sentence of 

death, the sentencing court must find at least one of the 

aggravating circumstances of 46-18-303, MCA. It then 

determines if any of the specific mitigating circumstances 

exist, as listed in 5 46-18-304, MCA, including "[alny other 

fact that exists in mitigation of the penalty.@I Section 46- 

18-304(8), MCA. In determining whether to impose the death 

penalty the sentencing court must take into account the 

aggravating and mitigating circumstances to determine if there 

are mitigating circumstances sufficiently substantial to call 

for leniency. Section 46-18-305, MCA. Thus our statues 

provide for sentencing that is guided yet individualized. 
In the present case, the court found two aggravating 

circumstances. It determined that the offense was deliberate 

homicide committed by means of torture, and also that the 

offense was aggravated kidnapping which resulted in the death 

of the victim. In Issue XI11 we discussed the court's finding 

that the deliberate homicide was committed by means of 

torture, concluding that substantial evidence supports this 

finding. Likewise, in Issue XI11 we discussed the sentencing 

court's finding that the offense was aggravated kidnapping 

which resulted in the death of the victim. We concluded that 

substantial evidence supports this finding. From this 

previous determination, we conclude that the sentencing 

court's findings of aggravating circumstances are supported 

by substantial evidence. 

The sentencing court found that the only possible mitigating circumstance was that the defendant had no significant 

history of prior criminal activity. The court did note that 

defendant had a substantial record of violent offenses on the 

Northern Cheyenne Indian Reservation. The court went on to 

conclude that when compared to the enormity of the offenses 

committed and circumstances thereof, there were no mitigating 

circumstances sufficiently substantial to call for leniency. 

The mitigating circumstance that defendant had no significant 

history of prior criminal activity, was present in Dawson, 

wherein this Court affirmed the sentencing court's refusal of 

leniency in light of the offenses committed. Dawson, 761 P.2d 
at 361-62. See also State v. Smith (1985), 217 Mont. 461, 

478, 705 P.2d 1087, 1097; Coleman, 605 P.2d at 1019-20. In 

the present case, in view of the offenses committed, we 

conclude that the evidence supports the court's finding that 

there were no mitigating circumstances sufficiently 

substantial to call for leniency. 

In this case the death sentence has been imposed on a 

defendant convicted of deliberate homicide, notwithstanding 

that the defendant did not inflict the final fatal blows and 

was not present at the infliction of such blows. We next 

address the issue of whether or not the sentence of death is 

excessive or constitutes cruel and unusual punishment under 

those circumstances. 

The United States Supreme Court addressed a similar issue 

and upheld the death penalty in the case of two nontriggermen 

in Tison v. Arizona (1987), 481 U.S. 137, 107 S.Ct. 1676, 95 

L.Ed.2d 127. In Tison, two brothers challenged their death 

sentences, claiming the Enmund rule was not satisfied. In 

Enmund v. Florida (1982), 458 U.S. 782, 102 S.Ct. 3368, 73 

L.Ed.2d 1140, the court held that the death penalty may be 

imposed on a defendant who killed, attempted to kill, or 

intended to kill or that lethal force be used. 

In Tison, Ricky and Raymond Tison planned and effected 

the escape of their father from prison by smuggling guns into 

the prison and helping him and another prisoner escape. 

Later, when their car had a flat tire, the brothers helped 
flag down a car with a family of four. They assisted in the 

abduction and robbery of the family, then watched while the 

father and another convict shot all four people. The United 

States Supreme Court held that imposition of the death penalty 

upon Ricky and Raymond Tison did not violate the ~ighth 

Amendment. The Court stated, "[Wle simply hold that major 

participation in the felony committed, combined with reckless 

indifference to human life, is sufficient to satisfy the 

Enmund culpability requirement." U.S. 

Thus in the present case, the fact that the defendant did not 

deliver the final fatal blows does not preclude imposition of 

the death penalty. 

Applying the Tison standard to the present case we begin 

by noting that the sentencing court, in its findings of fact, 

stated: 

25. That the Defendant was an accomplice in 

the Deliberate Homicide committed by another person. He was a direct participant in the Aggravated 

Kidnapping and Robbery and, further, his participation was not minor, but was substantial, in that 

he assisted in the planning of the abduction and 

robbery, assisted in the beatings and choking of 

the victim, helped strip and place the victim in 

the trunk, and used the proceeds of the robbery. 

He agreed that the victim had to die; and when he 

could have assisted the victim, told Lavonne Quiroz 

to move the car to the alley when the victim began 

making noise and pleading for help. He also assisted at the time the body was concealed. The 

only portion of the crime for which the Defendant 

had no involvement was the period of time when the 

victim was finally beaten and killed by Lester 

Kills On Top. 

Substantial trial evidence supports this finding. We 
conclude that the Tison requirement that defendant be a major 

participant in the felony, was clearly met in the present 

case. 

In Tison the court also determined that the Tison brothers had exhibited a reckless indifference to human life. The 

specific facts in Tison leading to the determination were as 

follows: 

1) Raymond and Ricky Tison brought the lethal 

weapons into the jail and gave them to two men 

already convicted of murder; 

2) Raymond acknowledged he had been prepared 

to kill, if necessary, during the prison escape; 

3) Raymond Tison flagged down the innocent 

family; 

4) Both brothers robbed the family and guarded them at gunpoint; 

5) They stood by and watched the killing; 

6) They made no effort to assist the victims 

after the shooting; and 

7) They chose to assist the killers in their 

continuing criminal acts following the killing. 

Comment, Tison v. Arizona: No Intent Required for Death 

Penalty of Accom~lice in Felony Murder, 10 Criminal Justice 

J. 167, 173-74 (1987). 

In the present case, the facts indicating a reckless 

indifference to human life are: 

1) Defendant participated in the restraint 

and beatings of the victim in the car, including 

choking the victim; 

2) Defendant participated in severe beatings 
of the victim outside the car, including kicking 

the victim in the head; 

3) Defendant participated in forcing the 

victim to strip and get in the trunk; 

4) Defendant did nothing to release or assist 

the victim during the approximate twelve hour 

period he was in the trunk, notwithstanding the 

visibly injured condition of the victim whose face 

was badly swollen and who was covered with blood; 

5) Defendant directed Quiroz to move the 

vehicle from the street to an alley in Gillette 

when the victim was calling for help; and 

6) Defendant helped dispose of the body. 

These facts are not only supported by the evidence, but 

are uncontradicted. These facts alone are sufficient to 

satisfy the Tison standard of reckless indifference to human 

life. We emphasize here that neither the felony murder rule, 

nor the Tison standard, requires a finding of purposely or 

knowingly in regard to the homicide. Defendant was directly 

involved in the serious beating of the victim. Testimony 

established that defendant kicked the victim in the head. The 

testimony of the pathologist, Dr. Deters, established that the 

victim had a subdural hematoma, most likely caused by being 

kicked in the head. He testified that this injury alone was 

potentially fatal and could have eventually caused the death 

of the victim, even without the final blows delivered in 

Wyoming. Defendant engaged in physical brutality so severe 

that it could have caused death without further infliction of 

physical violence. Defendant then participated in placing the 

nude victim in the trunk of the car on a cool October morning, 
after this severe and potentially fatal beating, and did 

nothing for the victim for a span of over twelve hours. 

Later, on two separate occasions, when Lester stated the 

victim would have to be killed, defendant agreed. Defendant 

was forewarned and agreed the victim had to die; nevertheless 

he failed to prevent the death. We hold that in the present 

case defendant was a major participant in the felony and 

exhibited a reckless indifference to human life. 

In Finding No. 25 the sentencing court found that 

''[defendant] agreed that the victim had to die." This finding is supported by the record from the testimony of accomplice, Diane Bull Coming. Although the present case is 

dissimilar to Tison, in that defendant was not physically 

present at the scene of the killing, we conclude that the 

finding by the sentencing court as to defendant's assent to 

the killing, reconfirms his culpability, even though he was 

absent when the final blows were struck. 

Moreover, in comparing the inhumane treatment of Mr. 

Etchemendy, which extended over a period of twelve hours, and 

the seriousness of the offenses committed with defendant's 

direct participation, we conclude that the culpability of 

defendant far exceeds that of the two brothers in Tison. 

There is no statement in Tison that the brothers agreed to the 

killings. In the present case, the court found based on the 

evidence, that defendant agreed to the killing. Defendant's 

physical absence during the fatal blows does not diminish the 
reckless indifference to human life which he exhibited. We 

conclude that defendant's culpability is established as 

required by Tison and Enmund. We hold that in the present 

case the death penalty does not constitute excessive or cruel 

and unusual punishment. 

Finally, this Court must determine whether the sentence 

is excessive or disproportionate to the penalty imposed in 

similar cases, considering both the crimes and the defendants. Defendant has presented no argument on this, however 

in accordance with our statutory duty, we have compared the 

following cases appealed to this Court which involved similar 

crimes for which the death penalty was or could have been 

imposed: Dawson; State v. Keefe (1988), 232 Mont 258, 759 

P.2d 128; Keith; Smith, 705 P.2d 1087; State v. Fitzpatrick 

(1980), 186 Mont. 187, 606 P.2d 1343, cert. denied, 449 U.S. 

891, 101 S.Ct. 252, 66 L.Ed.2d 118 (1980), revtd on other 

qrounds, 869 F.2d 1247 (9th Cir. 1989), cert. denied, - U.S. 

, 110 S.Ct. 203, 107 L.Ed.2d 156 (1989) ; Coleman; McKenzie; 

and Lester Kills on Top. We note that both Fitzpatrick and 

Coleman were reversed; however, these reversals were on 

grounds not relevant to our proportionality analysis. 

After examination of such factors as the gravity of the 

offenses, the brutality with which they were committed, and 

the existence of any factors meriting leniency, we hold that 

the sentence in the present case is not disproportionate or 

excessive to others imposed in similar cases. All the above- 
cited cases, except Keefe, involved a death penalty imposed 

for the aggravated kidnapping and subsequent death of a 

victim. The factor allowing leniency in Keefe, that the 

defendant was a minor, is not present in this case. Defendant 

was 29 when the offenses were committed. 

The present case involves a course of criminal conduct 

extending over twelve hours and demonstrating a total lack of 

compassion for another human being. The homicide was 

senseless, calculated and brutal. 

We have reviewed the entire record in this case in 

affirming the determinations of the District Court. In 

applying the Tison standard, this Court independently finds 

and concludes that Mr. Vern Kills on Top was a major 

participant in the crimes committed, and that he exhibited a 

reckless disregard for human life. See Cabana v. Bullock 

(1986), 474 U.S. 376, 106 S.Ct. 689, 88 L.Ed.2d 704, overruled 

in part on other grounds, Pope v. Illinois (1987), 481 U.S. 

497, 504, 107 S.Ct. 1918, 1922, 95 L.Ed.2d 439, 447 (stating 

that defendant's culpability in regard to the Enmund rule need 

not be made by a jury, but may be made at any point in the 

state criminal process ). 

Accordingly this Court hereby affirms the convictions 

and the sentences imposed by the District Court. This case 

is remanded to the District Court which shall set a date for 

execution in accordance with the statutes. 
We Concur: A 4 Af*T&+ C ief Justice 

Justices 
Justice John C. Sheehy, dissenting: 

I dissent to the imposition of the death penalty in this case 

as I did in the companion case of State v. Lester Kills On Top, - 

Mont . , 787 P.2d 336, 355 (1990), upon the grounds that the 

death penalty is cruel and unusual punishment and so prohibited by 

the Eighth Amendment of the United States Constitution, the Due 

Process Clause of the Fourteenth Amendment to that Constitution and 

Art. 11, 5 22 of the Montana Constitution. 

Montana is a "weighing statew in that the District Court, in 

determining whether to impose a death sentence, must find 

aggravating circumstances related to the death described in 5 46- 

18-303, MCA, and weigh against any one or more of those aggravating 

circumstances the mitigating circumstances described in 5 46-18- 

304, MCA. Even if no appeal is taken by a defendant, the judgment 

of conviction and sentence of death are subject to automatic review 

by this Supreme Court under 5 46-18-307, -308, -309, and -310, MCA. 

Particularly, in 5 46-18-310, this Court is given the authority 

when a death sentence has been imposed by the District Court to 

determine "whether the evidence supports the judge's finding of the 

existence or nonexistence of the aggravating and mitigating 

circumstances enumerated in 5 46-18-303 and 5 46-18-304." There 

is no provision in our statutes giving this Court the authority to 

reweigh the evidence to inflict the death sentence as though this 

were the original sentencing court. 

Under our state statutory system relating to death penalties, 

in the original trial in the District Court, the jury is given the 

function of determining from the facts whether a crime permitting 

the death penalty has been committed (the conviction phase). If 

the jury determines that such a crime has been committed, then it 

becomes the function of the district court judge to determine from 

the jury verdict whether an aggravating factor listed in the 

statute exists in the crime, and against that aggravating factor 

or factors, to weigh any mitigating evidence which would militate 

against the death penalty (the sentencing phase). It is only from 
these functions of the jury and the sentencing district court that 

this Court has any appellate authority or jurisdiction: it does 

not have authority or jurisdiction other than to review the 

sentence imposed by the District Court or to consider the 

conviction by way of appeal. For ease in handling either or both 

of the two appellate functions, 5 46-18-308, MCA, allows this Court 

to consolidate the appeal from any judgment of conviction with the 

automatic review by the Supreme Court of the death sentence. 

At foot in this case is the proper interpretation of the 

United States Supreme Court cases of Enmund v. Florida, 458 U.S. 

782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), and a successor case, 

Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 

(1987). 

Enmund held that the death penalty may be imposed on a 

defendant who killed, attempted to kill or intended to kill the 

victim or that lethal force was used. Tison expanded that concept 

to allow the death sentence where the defendant was a major 

participator in the felony committed, combined with his reckless 

indifference to human life. 

This case presents an anomaly in the two-pronged system, the 

jury as trier of the offense, and the judge as the sentencer. In 

the appeal phase of the case, we can uphold the judgment of 

conviction for the crime alleged if it is supported by substantial 

evidence in the cause. In the sentence appeal, however, this Court 

reviews a different function: the District Court may impose the 

death penalty in this case only if the defendant killed, attempted 

to kill or intended to kill the victim or if he was a major 

participant in the felony with a reckless indifference to human 

life. 

Thus, under the felony-murder rule, the required mental state 

of the defendant may be supplied for the conviction for murder 

because of the commission by the defendant of the accompanying 

crime. However, for the imposition of the death penalty, the 

mental state of the defendant who did not participate in the actual 

killing must be separately found, not in the felony-murder rule, 
but in a specific finding that he was a major participant, with 

reckless indifference to human life. Tison, supra. In a death 

penalty case, that element should appear beyond a reasonable doubt. 

Vernon Kills On Top was not present when John Etchemendy was 

killed. That killing took place when Diane Bull Coming and Lester 

Kills On Top drove off, apparently without telling Vernon Kills On 

Top or his companion what was up, and Diane Bull Coming and Lester 

Kills On Top went separately to consummate the foul deed. The only 

evidence of Vernon's mental state as to whether he was recklessly 

indifferent to the death of the victim comes from an accomplice, 

Diane Bull Cominq, and that particular point of evidence is 

uncorroborated. 

Thus, that Vernon Kills On Top was guilty of felony-murder 

under the statutes, is one matter upon which we can agree, because 

his mental state is supplied in the commission of the felonymurder. Whether, however, his mental state qualifies for the death 

penalty under Enmund and Tison, is quite another matter. It 

depends solely on the evidence of Diane Bull Coming, a not very 

savory participant or witness in this matter at best. 

The gist of Diane Bull Coming's testimony on this point is 

that on two occasions Vernon Kills On Top agreed with Lester Kills 

On Top, a dominant personality, that Etchemendy had to die. On 

each occasion, however, Vernon counseled Lester "to wait." That 

evidence is as amenable to a lack of mental state on the part of 

Vernon Kills On Top of a reckless indifference to human life, as 

the presence of such a mental state. Strongly bearing on this 

question is the fact that Diane and Lester drove off for the actual 

killing despite the counsel to wait of Vernon Kills On Top, and 

Diane and Lester proceeded at some distanct place to end the life 

of Etchemendy. 

There is a factor in the credibility of Diane Bull Coming that 

this Court's majority have not met or attempted to explain. Diane 

was charged upon her arrest with the crime of aggravated 

kidnapping, for which a death penalty is possible, and with 

robbery. After 279 days in the Miles City jail (described as a 
basement jail) she entered into a plea bargain with the State, 

whereby, in exchange for her testimony against Lester Kills On Top, 

Vernon Kills On Top and Doretta Four Bear, the charge of aggravated 

kidnapping against Diane was dropped. Diane pleaded guilty only 

to robbery, and was given a 40-year sentence, but as a nondangerous offender, she is eligible for parole in about eight 

years. Because of that background, when she testified in Vernon's 

case here her demeanor on the witness stand would be imperative 

for any trier of fact to judge of her credibility. 

Moreover, when the majority speak of proportionality in 

comparing Vernon's death sentence to other Montana cases, they 

overlook the complete lack of proportion in the sentence given 

Vernon, compared to the eight-year sentence given Diane, a fullyacting participant from beginning to end, including the actual 

killing of Etchemendy. 

There are other factors in Diane's testimony which shake me 

as to her credibility. She testified that Vernon and Lester stole 

the wallet from Etchemendy. The other woman in the automobile, 

Lavonne Quiroz, testified that it was Lester and Diane who stole 

the wallet and divided the proceeds, with Diane eventually giving 

a fifty dollar bill to Lester, a bill which he lost and Diane 

eventually got back. Lester Kills On Top testified that it was 

Diane herself who got the wallet from Etchemendy. Further, Diane 

pleaded guilty to robbery. 

On another point respecting reckless indifference for human 

life, Diane Bull Coming testified that when Etchemendy was in the 

trunk of the car, Vernon mixed a beverage of beer and EverClear 

(EverClear is 180 proof alcohol) and attempted to force it down 

Etchemendyls throat. Lavonne, however, testified that it was Diane 

who prepared the beverage and attempted to force the mixture into 

Etchemendy. Here again the testimony of Diane Bull Coming is 

uncorroborated. 

The majority sets out a number of factors which they say 

corroborate the testimony of Diane Bull Coming. All that those 

factors corroborate, however, is that Lester was present for a 
felony- murder offense. The essential point that relates to his 

state of mind for the imposition of the death penalty, as to his 

reckless indifference to the life of Etchemendy, comes from Diane's 

uncorroborated statements against which there is evidence 

otherwise, including the fact that it was Lester who placed a 

blanket over the body of Etchemendy when he was still alive and in 

the trunk. 

I will not belabor the other reasons I oppose the death 

penalty in this case. They are the same as for Lester Kills on Top 

as set forth in my dissenting opinion there and which apply equally 

here. 787 P.2d at 355-359. 

I would uphold the conviction of Vernon Kills On Top on the 

basis of felony-murder rule and reverse the imposition of the death 

penalty. 

Justlce 
A 

Justice William E. Hunt, Sr., dissenting: 

I concur with the majority opinion so far as it affirms the 

conviction of the defendant/appellant but because he was not 

present at the time of the victim's death, I would reverse the 

death sentence.