No. 13011 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1979 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

VS . 

DUNCAN PEDER McKENZIE, JR., 

Defendant and Appellant. 

Appeal from: District Court of the Eighth Judicial District, 

Honorable R. J. Nelson, Judge presiding. 

Counsel of Record: 

For Appellant: 

Barney Reagan, Cut Bank, Montana 

Charles L. Jacobson argued, Conrad, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Chris Tweeten argued, Assistant Attorney, Helena, 

Montana 

Douglas Anderson, County Attorney, Conrad, Montana 

- 

Submitted: October 29, 1979 

Decided : Re 21: I@J 

Filed: 8' m$ 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of the 

Court. 

Following a jury trial, the defendant was convicted of 

deliberate homicide by means of torture and aggravated kidnapping. The defendant was sentenced to death. The judgment and 

sentence were affirmed by this Court in State v. McKenzie (1977), 

171 Mont. 278, 557 P.2d 1023. The United States Supreme Court 

granted certiorari and remanded the case for further consideration in the light of its decision in Patterson v, New York (1977), 

432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281. 

This Court then reconsidered the entire record and again 

affirmed. State v. McKenzie (1978), Mont. , 581 P,2d 1205, 

36 St.Rep. 759. The United States Supreme Court granted certiorari, 

vacated the judgment of this Court, and again remanded the case 

for further consideration in the light of Sandstrom v. Montana 

(1979), 442 U.S. , 99 S.Ct. 2450, 61 L.Ed.2d 39. McKenzie 

v. Montana (1979), U.S. , 99 S.Ct. 3094, 61 L.Ed.2d 871. 

This opinion constitutes our consideration of this case in the 

light of Sandstrom. 

The victim in this case was Lana Harding, a 23 year old 

rural school teacher in Pondera County, Montana. On Tuesday 

morning, January 22, 1974, she failed to appear at school. At 

the Pioneer School teacherage where she lived the bed was found 

in a disheveled condition. The sheriff of Pondera County was 

called and officers were dispatched to the school arriving there 

midmorning. 

Investigation that day revealed (1) a red tennis shoe belonging to Lana Harding just outside the school, (2) a drag trail 

from the teacherage to a nearby road, (3) blood near the end of 

the drag trail (later identified as Lana's type and RH factor) 

and (4) a wrist watch belonging to Lana in the same area as the 

blood. Lana Harding was last seen in Conrad, Montana, 13 miles 
from the teacherage on Monday, January 21, at about 5:00 p.m. 

Defendant had recently moved into the community and 

was working for the K & K Wholesale Seed Company, located 

approximately three miles from the Pioneer School teacherage. 

A day or so before January 21 he made arrangements to buy a 

1948 black Dodge pickup, recognizable to most inhabitants of 

the area because it had belonged to one local owner for a long 

period of time. On January 21 defendant had worked on the pickup after work. He was seen leaving K & K Wholesale Seed Company 

at approximately 6:45 p.m. in his black pickup headed toward his 

place of residence not far from the teacherage. The pickup was 

seen about 7:00 p.m. about a mile from the teacherage. 

Approximately an hour later, around 8:00 p.m., defendant 

knocked on the door of the Pearson farm residence located across 

the road from the teacherage. He asked for assistance in starting ]his pickup. It was later determined his pickup was parked 

in the road at a point where the drag trail ended and where the 

blood and watch were found the following day. At the Pearson 

residence defendant asked directions to his own residence and 

called his wife to say he was coming home. Don Pearson pulled 

the pickup, got it started and noted defendant did not drive on 

towards his place of residence. Shortly thereafter, the pickup 

was seen being driven toward the drill where Lana's body was 

found the following day. 

Her body was found clothed only in a shirt sweater and 

bra. It was draped over the tongue of a grain drill. She had 

been severely beaten about the head and body. The forensic pathologist who examined the body testified the death blow had been 

delivered to the head and laid open the right side. A rope was 

tied around her neck; there was evidence she had been strangled; 

however pressure had been released so she did not die of strangulation. A coil of wire was entangled in her hair, later shown 
to have come from a roll of wire found in the back of defendant's 

pickup. 

During the search for the body and the investigation of 

the homicide three additional items were found: (1) A pair of 

gloves worn by defendant at work were found in a field not far 

from where the body was discovered with human blood on them, (2) 

overshoes with Lana's type blood and brain tissue on them were 

found about a quarter of a mile away, and impressions from the 

soles matched the heels of boots later taken from defendant's 

home; and (3) ~ana's purse was found near the place where the 

overshoes were covered. 

As a result of the investigation by the sheriff and his 

deputies, the county attorney, on Tuesday afternoon, January 22, 

filed a complaint charging defendant with assault before the 

justice of the peace. The county attorney also obtained a warrant 

for the arrest of defendant and a search warrant. 

Defendant was thereafter arrested at his home. The black 

Dodge pickup was seized and impounded and blood was found in the 

bed of the pickup and on the springs; the back end of the pickup 

had been recently sprayed with black paint; the spray paint was 

later identified by FBI experts as identical to paint brand-named 

"Weekend" which was not available in the Conrad-Pondera County, 

Montana area. A can of the black spray paint was found in the 

cab of the pickup and another was later found at defendant's home. 

The following items were found in the back of the pickup: 

(1) a coil of wire later identified as having been the source of 

wire found in the victim's hair, (2) an exhaust manifold that 

had been painted black, and (3) human blood of the same kind and 

RH factor as Lana's and brain and corticle tissue were found on 

the manifold. Dr. John Pfaff, who examined the victim's body 

and the manifold, testified that the manifold could have inflicted 
the fatal blow. 

At the drill site where the body was located, a piece of 

brass from a water pump was found. The prior owner of the Dodge 

pickup testified this piece of brass was in back of the pickup 

when defendant took possession of the pickup on January 19. 

Several co-workers at the K & K Wholesale Seed Co. 

testified at trial that defendant had said on January 21 that 

he broke in every new vehicle by engaging in sexual intercourse 

in each newly acquired vehicle. Several days before defendant 

had remarked that he had had intercourse with country school 

teachers; and that they were naive, he could teach them, and they 

were easy to get. 

Subsequently defendant was charged with several crimes to 

which he entered pleas of not guilty. Following trial, he was 

convicted by a jury of the crimes of deliberate homicide by means 

of torture and aggravated kidnapping. Judgment was entered thereon and a death sentence imposed. Defendant appealed. 

We have reconsidered the entire case, not only in the 

light of Patterson and Sandstrom, but also on all issues raised 

in the original appeal. This opinion constitutes this Court's 

judgment in the entire case following remand. 

In the interest of an orderly presentation of the specof error 

ifications/raised by defendant, we reorganize and present them 

insofar as possible in chronological sequence. Although there 

is some overlap, the issues on appeal generally fall into four 

categories: (1) Those relating to pretrial proceedings, (2) those 

involving the trial itself, (3) issues involving post-trial proceedings, including but not limited to, imposition of the death 

sentence, and (4) issues for reconsideration upon remand from the 

United States Supreme Court. 

Defendant's specifications on appeal are: 

1. The issuance and execution of the arrest and search 
warrants without probable cause, including all claims of error 

flowing therefrom. 

2. Errors relating to the District Court's refusal to 

permit defendant to change his plea and enforce a plea bargain. 

3. Denial of defendant's motions for substitution of 

the trial judge. 

4. Permitting the filing of amended Informations against 

the defendant and matters relating thereto. 

5. Denial of a speedy trial to defendant. 

6. Denial of defendant's motions for a protective order 

and the constitutionality of Montana statutes relating thereto. 

7. Denying defendant the right to voir dire the jury 

on legal concepts relating to defendant's mental state. 

8. Permitting the State to endorse 58 additional witnesses on the amended Information on the first day of trial. 

9. Failure of the State to timely furnish defendant 

with statements of its witnesses. 

10. Improperly admitting in evidence numerous State's 

exhibits and denying admission in evidence certain proposed exhibits of defendant's. 

11. Improperly instructing the jury. 

12, Improper jury verdict forms. 

13. Permitting audience recording of the State's closing 

argument to the jury. 

14. Undue interference and partisan attitude by the trial 

court preventing an orderly and proper presentation of the case. 

15. Insufficiency of the evidence to support the verdict. 

16. Denial of defendant's motion for a new trial. 

17. Errors in the court's "findings, conclusions, sentence and order" resulting in the imposition of the death sentence. 

18. On remand from the United States Supreme Court, the 

issue of whether the trial court's instructions improperly shifted 
the burden of proof of defendant's state of mind, an essential 

element of the crimes of which he was convicted, onto the defendant in violation of due process under the federal and state 

constitutions in the light of Patterson and Sandstrom, including 

issues relating to harmless error. 

In connection with the first issue above, defendant contends that the arrest and search warrants were not issued on 

probable cause in violation of United States and Montana constitutional requirements; that the facts supporting probable cause 

were not made under oath or affirmation and reduced to writing 

in violation of the Montana Constitutional requirements; that the 

search warrant was either issued as or converted into a prohibited 

general search warrant; that section 95-1806(f), R.C.M. 1947, 

is unconstitutional under the United States and Montana Constitutions; that by reason thereof State's exhibits 17, 18, 20, 21, 22, 

26, 27, 31, 32, 33, 34, 35, 39 through 52, 83 through 100, and 

sublettered exhibits bearing any of these numbers are inadmissible 

of the products of an unlawful search and seizure; and that defendant's motions to suppress and objections to these exhibits 

should have been granted. 

We disagree with defendant's contention that there was 

no probable cause for the arrest or search warrant. This Court 

in State ex rel. Garris v. Wilson (1973), 162 Mont. 256, 511 P.2d 

15, considered federal case law and the long-standing rule in 

this jurisdiction on probable cause for arrest and search warrants 

noting: 

"'We reach this decision by application of the 

following standards: only a probability of 

criminal conduct need be shown.'" 

Far more was shown here. See: State v. ~roglia (1971), 157 Mont. 

22, 482 P.2d 143; Spinelli v. United States (1969), 393 U.S. 410, 

* ,/ 89 S.Ct. 584, 21 L.Ed,2d 637. 

Defendant argues the search warrants must fall on the basis 
of failure on the part of the county attorney to swear or affirm 

and reduce the testimony to writing. He relies on State ex rel. 

Townsend v, District Court (1975), 168 Mont. 357, 543 P.2d 193; 

and Petition of Gray (1970), 155 Mont. 510, 473 P.2d 532. We find 

neither case factually applicable here. 

Article 11, Section 11, 1972 Montana Constitution provides: 

" . . . No warrant to search any place, or seize 

any person or thing shall issue . . . without 

probable cause, supported by oath or affirmation 

reduced to writing." 

In Townsend nothing was reduced to writing. Here, there 

is an affidavit signed by the county attorney and made a part of 

both warrants, At a later date, defendant argues the justice of 

the peace failed to follow the rituals of the swearing, County 

Attorney Nelson later testified he asked the justice of the peace 

"if he was sworn." 

Defendant argues the county attorney made the affidavit 

only on facts obtained from Jerry Hoover, a deputy sheriff of 

Pondera County, who had been at the scene of the crime as part of 

the investigating team. This is not a true picture of what took 

place before Justice of the Peace Wolfe at the time the county 

attorney gave the affidavit and obtained the warrants. 

On September 30, 1974, a hearing on the defendant's motion 

to suppress was held before Judge Robert J. Nelson. Testifying 

were Sheriff Hammermeister, his deputy sheriff Jerry Hoover, Justice of the Peace Robert Wolfe and County Attorney David H. Nelson. 

The arguments of defendant's counsel were directed to the lack of 

probable cause for the issuance of the warrants. 

A summary of the testimony shows Justice of the Peace 

Wolfe testified he customarily swears all witnesses though he 

did not recall swearing in the county attorney, he considered him 

sworn. Deputy sheriff Hoover testified he came into town about 
4:30 p.m. on January 22, 1974, with directions to go to the 

county attorney's office; that he helped the county attorney prepare the affidavit and he then went before Justice of the Peace 

Wolfe and gave sworn testimony in support of the issuance of the 

warrants. County Attorney Nelson testified he had been at the 

scene with the sheriff and his deputies during the afternoon and 

just prior to his coming to town to get the warrants issued. At 

the hearing, he said in answer to a question as to what knowledge 

he had of the facts: 

"A. Well, without looking at the affidavit now--I 

think the first paragraph or two is my statement 

as to what I determined, that she was missing and 

may have been the victim of foul play but of what 

nature we didn't know at the particular time, and 

that she resided at the teacherage." 

In addition, the county attorney examined Deputy Hoover before 

the justice of the peace as to facts he learned during the investigation. Here, unlike Gray, there was, in effect, sworn testimony 

by the county attorney and deputy sheriff in addition to the affidavit, and the combination thereof established probable cause. 

The fact that defendant had been parked at the roadside near the 

school the night before had been established by the Pearsons, who 

assisted defendant in getting the truck moved. It was there the 

victim's watch was found in a pool of blood by the investigating 

officers before going to town to get the warrants. See: Lindley 

v. State (1956), Okl.Cr., 294 P.2d 851. 

This, in our opinion, is a sufficient showing of probable 

cause to issue the warrants. 

Defendant next attacks the specificity of the search warrant, alleging that under the search warrant issued, a blanket 

seizure resulted. Examination of the warrant indicates that both 

the house and the vehicle were to be searched. Though an error on 

the vintage of the black Dodge pickup (1950 instead of 1948) 

appeared, that is of little significance. State ex rel.~lournoy v. 
Wren (1972), 108 Ariz. 356, 498 P.2d 444. All parties knew the 

pickup involved. All that is needed to meet the requirements 

of specificity is that the officer with reasonable effort, can 

ascertain the automobile intended to be searched, and its owner, 

if possible. Wangrow v. United States (8th Cir. 1968), 399 F.2d 

106. Defendant cites case authority that some seven criteria 

are needed for identification of a motor vehicle--owner, make, 

model, year, color, motor number and license number. Here, the 

affidavit for the search warrant answers five of the seven listed 

criteria and it was sufficiently specific. Wilkerson v. Commonwealth (1923), 200 Ky. 399, 255 S.W. 76; Hatley v. State (1941), 

72 0kl.Cr. 69, 113 P.2d 396. 

Defendant's argument that the items seized were not covered by the language "any other contraband articles" is without 

merit. The language used comes within the rule of State v. Quigg 

(1970), 155 Mont. 119, 467 P.2d 692, where we held thht items 

other than those specifically described in the search warrant may 

be seized as long as a reasonable relationship is demonstrated 

between the search authorized in the warrant and seizure of the 

items not specifically described therein. 

Next we consider the constitutionality of section 95- 

1806 (f) , R.C.M. 1947, which states: 

"The burden of proving that the search and seizure 

were unlawful shall be on the defendant." 

We find no merit in defendant's contention this subsection is unconstitutional. We note defendant cites no authority 

for his position and therefore fails to overcome the presumption 

of constitutionality. United States v. Keleher (1924), 55 App. 

D.C. 132, 2 F.2d 934, relied upon by defendant, is not applicable 

to the facts here. We note that Montana's statute section 95- 

1806(f), R.C.M. 1947, is patterned after Chapter 38, S114-12(b), 

I11.Code of Criminal Procedure, which states in part: 
" . . . The judge shall receive evidence on any 

issue of fact necessary to determine the motion 

and the burden of proving that the search and 

seizure were unlawful shall be on the defendant I1 ... 

Here, such a hearing was held by the trial court, and defendant 

failed in his effort. People v. Normant (1975), 25 Ill.App.3d 

536, 323 N.E.2d 553; State v. Tritz (1974), 164 Mont. 344, 522 

P.2d 603. 

Defendant's next specifisreversible error arising out 

of an alleged "plea bargain", an alleged breach thereof by the 

State, a refusal by the District Court to specifically enforce 

the terms thereof, and a refusal by the District Court to permit 

the defendant to withdraw his prior plea and substitute a plea of 

guilty in conformity with the alleged plea bargain, 

In substance the defendant contends that a valid and binding agreement was made on December 22, 1974, between the prosecutor and defense counsel, subject to approval by the trial judge, 

that defendant would plead guilty to deliberate homicide and aggravated assault and would receive sentences of 50 years and 20 

years respectively to be served concurrently. Defendant claims 

that on the following day counsel met with the trial judge, who 

with some reluctance, agreed to all aspects thereof (except that 

he felt he could only give one 50 year sentence for both crimes) 

and set December 30 as the date for change of plea and entry of 

judgment in accordance with the agreement. As a result, according to defendant, defense counsel agreed to explain what problems 

they foresaw in the prosecution of the State's case and what the 

defense position would have been had the case gone to trial, all 

to counteract anticipated public reaction by the sheriff and the 

family of the victim. 

On December 28 the prosecutor advised defense counsel 

they would not perform their part of the plea bargain agreement, 

according to defense counsel. On December 30 the District Court 
denied defendant's motion to withdraw his plea and refused to 

enforce the alleged plea bargaining agreement. 

The State, on the other hand, denies that any plea bargaining agreement was entered into on December 22, or at any 

other time. The State contends the initiation and impetus for 

the plea bargaining discussions came from the defendant; that 

throughout the discussions the State consistently took the position that no plea bargain could be entered into without the consent of the victim's family and the sheriff; and that the only 

reason the State agreed to meet with the trial judge and defense 

counsel on December 23 was that the prosecution was unable to 

travel some 400 miles to see the victim's family until December 

26. Because no consent could be obtained from the victim's family, 

no further plea bargaining discussions were held. The State asserts 

any gratuitous information that defense counsel believed they had 

imparted to the State was either already known to the State or of 

no significance to the prosecution's case. 

This issue turns on the existence of the alleged plea 

bargaining agreement. The trial judge accepted the State's version of the situation and refused to enforce the Alleged agreement contended for by defendants. We likewise accept the State's 

version. We hold that where, as here, the existence of any plea 

bargaining agreement was disputed and there is substantial evidence that none was made, there is nothing to enforce and the 

trial court's actions in this regard were correct. 

As we understand it, there is neither contention nor 

proof of bad faith by the State in its discussions with defense 

counsel on a plea bargain or in its effort to secure the approval 

of the sheriff or the victim's parents. Under these circumstances any statements of defense counsel concerning weaknesses 

in the State's case or defense positions in connection therewith 

were gratuitous and premature. In any event, a trial is not a 
sporting contest in which the verdict turns on nondisclosure of 

such matters. Discovery procedures are designed and operated to 

remove this element and had been extensively and exhaustively 

utilized at the time in question. 

Santobello v. New York (1971), 404 U.S. 257, 92 S.Ct. 

495, 30 L.Ed.2d 427, does not aid the defendant here as that case 

is clearly distinguishable on the facts and on the law. 

Defendant's next specification of error concerns the denial 

of his motions for substitution of the trial judge. He argues 

that he attempted to disqualify the trial judge for cause by 

motion and hearing on September 30, 1974, on the basis that the 

trial judge was a member of the Criminal Law Revision Commission 

that drafted Montana's present Criminal Code and submitted it to 

the legislature for enactment. He argues that he again attempted 

to disqualify the trial judge for cause on December 30, 1974, 

first, because the trial judge had acquired information during 

the plea bargaining process making it impossible for him to sit 

in an impartial manner, and second, because he was attempting to 

force his own "Preliminary Instructions to the Jury" over both 

prosecution and defense objections which indicated he had assumed 

an adversary stance and taken over prosecution of the case. 

We hold that the trial judge's membership on the Criminal 

Law Revision Commission did not per se constitute grounds for 

disqualification for cause. Canon 4 of the American Bar Association Canons of Judicial Ethics specifically permits this: "A 

Judge may engage in activities to improve the law, the legal system, and the administration of justice." The draft of the revision 

of the Criminal Code by the Commission was presented to the legislature for its consideration, approval, rejection or modification. 

Nor do we find any ground for disqualification of the trial 

judge for cause in his acquisition of information during the plea 

bargaining process, his drafting of "Preliminary Instructions to 
the Jury", or any facts or proof that he had assumed an adversary position at trial in taking over the prosecution of the 

case. The rule of United States v. Grinnell Corp. (1966), 384 

U.S. 563, 86 S.Ct. 1698, 16 L.Ed.2d 778, is inapplicable to establish bias and prejudice. Here, whatever knowledge the trial 

judge obtained was during the course of legal proceedings in the 

case and not from any outside source. As long as the trial judge's 

"Preliminary Instructions to the Jury" are a correct statement 

of the law, it is immaterial whether they are drafted by the judge 

or given over the objections of one or both adversary counsel. 

Such is the case here for reasons hereafter discussed, Finally, 

we find the record does not support defendant's contention the 

trial judge assumed an adversary role and took over the prosecution of the case. 

Defendant argues as error the District Court's rulings 

permitting the State to file amended Informations against him. 

We need only concern ourselves with the filing of the third amended Information as it was this Information on which defendant was 

ultimately tried. The third amended Information conforms to our 

opinion and directions in State ex rel. McKenzie v. District 

Court (1974), 165 Mont. 54, 525 P.2d 1211. Thus, there is no 

error in the affidavit, the Information, or the District Court's 

rulings in permitting its filing. 

Defendant complains he was denied a speedy trial, emphasizing a lapse of 350 days between arrest and trial. This delay 

cannot be considered per se a violation of defendant's right to a 

speedy trial, However, the length of time between defendant's 

arrest and trial does shift the burden of explaining the reason 

for the delay and showing absence of prejudice to defendant upon 

the prosecution. Fitzpatrick v. Crist (1974), 165 Mont. 382, 

528 P.2d 1322; State v. Keller (1976), 170 Mont. 372, 553 P.2d 
1013. The State's explanation for the delay was defendant's 

several appearances in this Court, the difficulties arising 

from the defendant's refusal to plead, and the difficulties 

which arose because this was the first homicide prosecuted 

under the new Montana Criminal Code and under the new capital 

punishment scheme. Much of the time can in fairness be charged 

to neither party, but it is clear that it aided both parties to 

better prepare for trial, this being a complex circumstantial 

case. Under those circumstances, we cannot see that defendant 

was denied his right to a speedy trial. The State's explanation 

of the delay is satisfactory and shows that defendant was not 

prejudiced by the length of time between arrest and trial. 

Defendant contends the Montana provision for notice of 

mental defect or disease and the mental defect or disease provisions in the Code of Criminal Procedure, sections 95-501 through 

509 and section 95-1803(d), R.C.M. 1947, are unconstitutional. To 

challenge the constitutionality of these sections, defendant 

sought a protective order to protect himself from any waiver of 

rights were he to give the notice required by these sections. The 

court denied the relief sought and held these sections to be 

constitutional and not violative of the United States or Montana 

Constitutions. On appeal, defendant maintains the court erred 

in not holding these provisions unconstitutional. 

Defendant's constitutional arguments were previously answered by this Court in State ex rel. Sikoua v. District Court 

(1969), 154 Mont. 241, 462 P.2d 897. Defendant's attack on these 

statutes loses much of its force when it is recognized that the 

United States Supreme Court promulgated, and Congress, after careful consideration, approved Rule 12.2 Federal Rules of Criminal 

Procedure, Notice of Defense Based upon Mental Condition, 

- 15 - 

Next page 17 
which is nearly identical to the procedure attacked here. It 

should be emphasized that the purpose of the statute is for 

notice, to prevent surprise, and to eliminate the necessity for 

a continuance of a trial when the defense is raised. The fact 

of notice does not amount to a plea, and it could not be used in 

any way as evidence in a trial on the merits. The provisions 

merely provide for advance notice of the intent to rely on such 

defense so that the State may be prepared to meet this defense. 

Defendant claims prejudice because he was not allowed to 

voir dire the jury on the subject of mental disease or defect. 

This Court has previously said that where notice of a defense of 

mental disease or defect is given a refusal to allow defendant 

to voir dire the jury on this defense constitutes prejudicial 

error. State v. Olson (1971), 156 Mont. 339, 480 P.2d 822. Here, 

defendant did not give any notice. We believe defendant was 

properly not allowed to voir dire the jury on mental disease or 

defect as he did not give any notice of this defense. 

Defendant also alleges the addition of the names of 58 

new witnesses to the amended Information on the day of trial was 

error. 

The pertinent section of the code of Criminal Procedure 

is section 95-1803 (a) (1) , R.C.M. 1947, which reads: 

" (a) List of Witnesses: 

"(1) For the purpose of notice only and to prevent 

surprise, the prosecution shall furnish to the 

defendant and file with the clerk of court at the 

time of arraignment, a list of the witnesses intended to be called by the prosecution. The prosecution 

may, any time after arraignment, add to the list the 

names of any additional witnesses, upon a showing 

of good cause. The list shall include the names 

and addresses of the witnesses." 

The Revised Commission Comment on this section points out: 

"Section 95-1503(d) of Chapter 15 requires the 

State to endor~sthe names of the witnesses for 

the state on the indictment or information. The 

motion under this section permits the defendant 

to get a list at any time, probably after arraign- 
ment and before trial. Many times the state 

does not know before it files the indictment or 

information all the witnesses it may call. 

"Further, this provision allows the addition of 

names not only prior to trial, but after the trial 

has commenced. As the trial progresses, the showing which is necessary to establish 'good cause' 

should be more stringent. At any time, the judge 

may allow a continuance (section 95-1708) if it 

should appear necessary in the interest of justice." 

In State v. Campbell (1972), 160 Mont. 111, 500 P.2d 

801, the person whose name was added was the victim of the 

assault and the Court there found no serious claim of surprise 

and pointed out that while defendant objected, he made no effort 

to ask for a continuance. In State v. Rozzell (1971), 157 Mont. 

443, 486 P.2d 877, the District Court judge recognized the possibility that the witnesses added would surprise the defendant and 

offered to continue the trial until the defendant had had a chance 

to interview all the new witnesses, but this was refused. 

These cases clearly indicate that the proper procedure 

where surprise is claimed from the addition of new witnesses is 

to ask for a continuance so that defendant may prepare. In the 

present case, defendant objected to the addition of the witnesses 

based on surprise and inability to prepare his defense, but never 

requested a continuance. The District Court in granting the 

State's request for the addition of the new witnesses cautioned: 

" . . . and in granting this motion, it must be 

understood before any of these witnesses is 

allowed to testify, the defendant must be given 

an opportunity to have his counsel talk with them, 

examine them . . ." 

The witnesses added were not prejudicial to defendant. 

The addition of the names of the FBI agents did not surprise 

defendant, as he knew the content of their testimony from reports 

received several months earlier. The rest of the additional 

witnesses who were actually called to testify were employees of 

Wright Chevrolet. These persons' testimony was a part of the 

chain of possession of the evidence seized from the truck. The 
remainder of the witnesses whose names were added, but who were 

not called to testify, were named because they could, if need 

be, corroborate the testimony of the already listed witnesses, 

lay further foundation, or testify about the weather and temperature in the area on the dates in question. 

In its order the court was careful to provide defendant 

with protection against surprise and to ensure that defendant 

was able to prepare for the testimony. Defendant was in no way 

prejudiced by the addition of these witnesses. Before allowing 

the addition of the new witness names, the court examined the 

county attorney to determine the reason for the addition of each 

new witness and to find out the nature of each of the witness' 

testimony in the presence of defendant's counsel, so that defendant was apprised of the basic nature of the testimony. 

Defendant contends the State failed to timely furnish 

him with statements of its witnesses. He argues that this is 

reversible error. 

Sections 95-1801 (d) (1) , (d) (2) and 95-1804 (a) , R. C.M. 

1947, provide the basic discovery tools. Section 95-1804(a), 

R.C.M. 1947, provides: 

"On Motion of a defendant in any criminal case 

made prior to trial the court shall order the 

state to furnish the defendant with a copy of 

any written confession or admission and a list of 

the witnesses to its making. If the defendant 

has made an oral confession or admission a list 

of the witnesses to its making shall be furnished." 

This section by its mandatory language entitles defendant 

as a matter of right upon motion, to statements he made. It 

requires no showing of good cause. 

Section 95-1801 (d) (1) , provides : 

"Upon motion of either party and upon showing of 

good cause, the court may issue a subpoena prior 

to the trial directing any person other than the 

defendant to produce books, statements, papers 

and objects before the court at a time prior to 

the trial or prior to the time when they are to be 
offered in evidence and the court may, upon 

their production, permit the books, statements, 

papers or objects or portions thereof to be 

inspected, copied, or photographed by the parties 

and their attorneys. " 

The Revised Commission Comment discussing this section points 

out : 

"The discovery allowed under subsection (d) is a 

two-part mechanism for gathering information. Under 

paragraph (1) either party may require a third 

person, other than the defendant, through the use 

of a subpoena (section 93-1501-3), to produce certain articles. The only restriction is that good 

cause must be shown. This allows what is sometimes referred to as a 'fishing expedition1--but 

only where third parties are concerned." 

Section 95-1801 (d) (2) , provides: 

"Upon motion of the defendant, within a reasonable 

time before trial, the court may, upon a showing of 

good cause, at a time and place designated by the 

court, order the prosecution to produce prior to 

trial for inspection, photographing or copying by 

the defendant, designated books, statements, papers, 

or objects obtained from the defendant or others by 

the prosecution which are material, relevant and 

necessary to the preparation of the defendant's case." 

The Revised Commission Comment discussing this provision states: 

"The second paragraph permits discovery by the 

defendant or the prosecution with the additional 

requirement that the object desired must be 'material, 

relevant and necessary to the preparation of the 

case. ' " 

This comment indicates the showing necessary to get access to 

material in the hands of the prosecutor is greater than that 

required to get material in the hands of third parties. 

Against this background, and with the recognition that 

in most criminal cases in Montana discovery is conducted on a more 

informal basis without resort to the motion and hearing procedures 

outlines above, this Court finds the allegation of error based 

on a delay of approximately one week in complying with the demand 

made by defendant after trial had begun, to be without merit. 

Defendant claims he had made two prior demands upoxthe 

county attorney for this material. These demands were in the form 
of letters to the county attorney* Defendant made a number of 

specific requests and then made a general request for " . , . 

copies of any documentary or physical items which you will rely 

on for proof of any fact . . ." The second letter expressed 

defense counsel's opinion that the State was not going to provide the requested information. This letter was dated August 20, 

1974. On January 13, 1975, after trial began, defendant filed 

a demand and motion requesting that all statements taken by the 

prosecution from all witnesses be turned over to defendant and 

demanding immediate compliance. Any delay in the prosecution 

furnishing defendant with the material requested in his earlier 

letters was waived by defendant's failure to file a demand and 

motion for this material until after trial had begun. 

Even though the demand and motion was not made "within a 

reasonable time before trial", as required under section 95- 

1801 (d) (2) , the court granted the motion saying: 

"Before a witness takes the stand, other than your 

foundation witnesses, that you [the State] are 

proceeding with now, furnish them [defense counsel] 

with such copies as you have that are not your work 

product as such, and before they [the witness] take 

the stand, he is going to be given an opportunity 

to talk with each witness, particularly those that 

have been endorsed just the other day . . .." 

(Bracketed material added.) 

The time it took for the State to gather, sort, and copy 

the requested material during the presentation of the State's 

case-in-chief was reasonable. The court prevented any prejudice 

by allowing defendant to interview the witnesses prior to their 

taking the stand. We note the State complied with the specific 

requests made by defendant in the August letters, and the reports 

received from the FBI and the autopsy report were forwarded to 

defendant soon after they were received and prior to the August 

requests. 

Defendant objects to certain photographs which were introduced into evidence as being gruesome and inflammatory or 
otherwise prejudicial. 

The basic rule on photographic evidence in Montana as 

stated in State v. Campbell (1965), 146 Mont. 251, 261, 405 P.2d 

978, 984, is: 

" . . . Photographs are admissible for the purpose 

of explaining and applying the evidence and assisting the court and jury in understanding the case. 

Fulton v. Chouteau County Farmers' Co., 98 Mont. 48, 

37 P.2d 1025. When the purpose of an exhibit is to 

inflame the minds of the jury or excite the feelings 

rather than to enlighten the jury as to any fact, 

it should be excluded. State v. Bischert, 131 Mont. 

152, 308 P.2d 969 . . .." 

Here, the photographs in question fall into three categories: 

(1) Photographs of the body taken at the "drill site"; (2) 

autopsy photographs taken by the pathologist; and (3) a single 

photograph of a can of spray paint in a suitcase. 

In each instance these photographs meet the above test. 

They were relevant, useful, and necessary in explaining the evidence and assisting the court and jury in understanding the case. 

The photographs taken at the site where the body was found were 

used by the pathologist to show creases in the body which were 

not present after the body had been moved and which tended to 

show how long the body had been at the site. The autopsy photographs taken in color and then printed in black and white, were 

used by the pathologist to show the nature of the wounds and explain the evidence which formed the basis of his opinion as to the 

size and configuration of the weapon which was used to inflict 

the wounds. The photograph of the can of spray paint in the suitcase was used to show the defendant had in his possession a type 

of paint which was not available in local stores. Defendant finds 

prejudice from this photograph in the implication of flight that 

could arise from the fact the paint was in a suitcase. However, 

defendant had been in custody for some time prior to the time 

these photographs were taken. his alleged prejudice could have 

been easily explained away in cross-examination. There was no 
intent to excite feelings with this photograph which was in no 

way gruesome. It was properly admitted. 

Defendant also objects that certain expert opinion was 

allowed to be given prior to the completion of the chain of 

possession of the evidence upon which this opinion was based. 

This opinion evidence was given by FBI agents who were witnesses 

for the State. The judge allowed them to give their opinion as 

to the evidence they had examined, which had not as yet been 

admitted in evidence, because there was a portion of the chain 

of possession which had not been established. It is within the 

discretion of the court to allow opinion to be given, conditioned 

on the subsequent production and admission of the evidence which 

forms the basis of the opinion. isk ken v. Northern Pac. Ry. (1960), 

137 Mont. 57, 350 P.2d 831; Graham v. Rolandson (1967), 150 Mont. 

270, 435 P.2d 263. The chain of possession of the evidence was 

later supplied. Thus no error was committed. 

Next defendant complains that a number of his proposed 

exhibits were refused admission into evidence. Our examination 

of the record reveals that these exhibits were refused on the 

basis of a lack of a proper foundation. The rule is that the 

determination of whether a proper foundation has been laid for 

the introduction of exhibits into evidence rests with the trial 

court, and its determination will not be overturned on appeal 

unless there is a clear abuse of discretion. State v. Olsen 

(1968), 152 Mont. 1, 445 P.2d 926. In this case, we cannot say 

the trial court abused its discretion in not admitting defendant's 

exhibits into evidence. Defendant's argument is without merit. 

Defendant contends the extensive preliminary instructions 

given by the court were erroneous, that it was error to give them 

prior to the introduction of evidence, and that the remaining instructions given after the presentation- of evidence were wrong. 

 he preliminary instructions were the usual instructions 

given on the role of the jury. In addition, included were a number 

- 23 - 
of instructions which set out the elements of the various 

crimes of which defendant was accused, and set out statutory 

definitions of terms used. 

Montana's criminal code is written in clear plain language which serves well as the basis for instructions to the jury. 

There was no error in incorporating the entire ~nformation into 

the preliminary instructions, for it too is basically in statutory language merely inserting defendant's name and the victim's 

name in the proper places and enumerating the weapons used. The 

language is not inflammatory but is as neutral as language detailing the charges involved here can be. Examination of the 

instruction defining reasonable doubt and the burden of proof 

show proper statements of the law. 

Defendant asserts that language in the instruction which 

defines the degree of proof necessary as being that which convinces the mind "to a moral certainty of the truth of the charge, 

no more and no less" falls into the type of error found in State 

v. Taylor (1973), 163 Mont. 106, 515 P.2d 695. In Taylor, the 

State's burden was defined using the phrase "only such proof as 

may" which impliedly limits consideration of some of the evidence 

and which could be interpreted to limit the burden of proof. Here, 

the nature of the subjective judgment to be made by the jurors 

is set forth, and the language "no more and no less" merely emphasizes the nature of the judgment and in no way diminishes it. 

The Court finds no error to the prejudice of defendant 

from the fact that extensive preliminary instructions were given 

prior to the introduction of evidence in the case. Defendant concedes that section 95-1911, R.C.M. 1947, gives the court the power 

to vary the order of trial set out in section 95-1910, R.C.M. 1947, 

for good reasons. The present case was built entirely on circumstantial evidence. Some of the counts charged were complex and 

difficult to understand. For example, the second homicide count 
was a felony homicide which had as alternative felonies, sexual 

intercourse without consent and aggravated assault. The aggravated assault alternative had alternate aggravating factors, 

serious bodily injury or bodily injury with a weapon, and a 

listing of alternative weapons, a rope or a heavy object. It 

was for good reason that the judge instructed the jury as to the 

basic elements of all the offenses charged, so the jury could 

have some understanding of the complex circumstantial evidence 

to be presented. In a less complex case which was not based 

only on circumstantial evidence, such preliminary instructions 

might not be necessary and there would not be the required good 

reasons for varying the usual order of the trial, but here it was 

acceptable to do so. 

One of the preliminary instructions to which defendant 

objects is the one defining torture. The instruction states: 

"Whoever purposely assaults another physically 

for the purpose of inflicting cruel suffering 

upon the person so assaulted for the particular 

purpose of enabling the assailant to either: 

"(a) extort anything from such person; 

"(b) or to persuade such person against his or 

her will, or 

"(c) to satisfy some other untoward propensity of 

the assailant . . ." 

The term "untoward propensity" is defined in the same instruction as meaning "any perverse, wrong, bad or corrupt inclination 

or tendency." Defendant maintains that this instruction incorrectly defined torture. 

A number of California cases have adopted a similar definition of torture. People v. Daugherty (1953), 40 Cal.2d 876, 

256 P.2d 911, 917 states: 

"Murder is perpetrated by torture 'when "the 

assailant's intent was to cause cruel suffering on the part of the object of the attack, 

either for the purpose of revenge, extortion, 

persuasion, or to satisfy some other untoward 

propensity." People v. Tubby, 34 Cal.2d 72, 

77, 207 P.2d 51, 54; People v. Bender, 27 Cal.2d 
164, 177, 163 P.2d 8.' People v. Martinez, 38 

Cal.2d 556, 561, 241 P.2d 224, 227." 

The language of the instruction proposed by defendant 

is an exact quotation from the opinion of an earlier California 

case, People v. Heslen (1945), 163 P.2d 21, 27. See: 27 Cal.2d 

520, 165 P.2d 250. That case dealt with the sufficiency of the 

evidence to support a finding of murder by torture and while 

there is no real conflict between the two instructions, the one 

given by the court is in the general language which does not 

comment on the evidence, which breaks the elements down, and 

which sets the various purposes out in the alternative is a 

clearer and more understandable statement of the law. The instruction given is a proper one and certainly the better of the 

two proposed instructions. People v. Wiley (1976), 18 Cal.3d 

162, 133 Cal.Rptr. 135, 554 P.2d 881. 

The District Court gave "additional instructions" 

(instructions 29 through 53) to the jury at the conclusion of 

the evidence at the trial. These instructions will be discussed 

in the light of Patterson and Sandstrom under the last specification of error herein. 

Defendant goes on to claim error because his offered jury 

instructions were not given. This argument must fail. Defendant's instructions on mental state and mental disease and defect misstate the law, and the instructions on the elements of 

the crimes charged add an element that is not required. 

The next argument defendant raises is that the verdict 

forms provided to the jury did not cover all possible verdicts 

and that they amount to special verdicts. 

Defendant submitted instructions and verdict forms which 

covered the offenses of mitigated deliberate homicide and unlawful 

restraint. It is clear, as stated in State v. Gray (1968), 152 

Mont. 145, 153, 447 P.2d 475, 479: 

" . . . 'The submission of a lower offense is 
justified only when the evidence on some basis 

would support a finding that the defendant is 

innocent of the higher offense and guilty of the 

lower.' . . ." 

See also: State v. McDonald (1915), 51 Mont. 1, 149 P. 279; 

State v. Baugh (1977), Mon t . , 571 P.2d 779, 34 St.Rep. 

1315. In this case there was no such evidence and the instructions and verdict forms on the lesser offenses were properly 

not given. 

Defendant claims error in that the verdict forms submitted to the jury were special verdicts. He argues that Montana law 

does not allow for specific factual findings by the jury. 

The jury was given general verdicts asking for a finding 

of guilty or not guilty on each count. The jury was to make the 

additional finding that the element necessary for the imposition 

of the death penalty was present. Under those circumstances this 

additional factual finding does not fall into the vice of a 

special verdict. It does not require a fact determination which 

could be used to undermine the general verdict. Thus, the verdict forms were permissible. 

Defendant claims prejudicial error in the court's permitting the audience to tape record the State's closing argument 

to the jury. He contends this prejudiced his right to a fair 

trial. His argument is that the jury was influenced by the argument being recorded because the jury could believe, under those 

circumstances there was something worth preserving. 

In his brief, defendant admits that the court's failure 

to prohibit the recording of the argument violates no statute. 

He cites no case law that is violated. He admits the Canons of 

Judicial Ethics, which have been adopted by this Court, do not 

specifically deal with this question. He does say that the Code 

of Judicial Conduct prohibits such recording. However, that 

Code has not been adopted in Montana. Thus, no law or rule of 
this Court was violated by the audience's tape recording the 

argument. 

As to defendant's argument that it prejudiced his right 

to a fair trial, we find no merit in that claim. The rule is 

that before a judgment in a criminal case will be reversed, 

prejudice must be shown. State v. Totterdell (1959), 135 Mont. 

56, 336 P.2d 696. The defendant must demonstrate prejudice 

from the record. State v. Schleining (1965), 146 Mont. 1, 403 

P.2d 625. Defendant has not demonstrated he was prejudiced by 

the recordings of the closing argument. His right to a fair 

trial was neither denied nor invaded. 

Defendant alleges error because he had to make an outof-order presentation of his case-in-chief during the State's 

case-in-chief. The usual order of trial may be departed from 

in the proper case. Section 95-1911, R.C.M. 1947, states: 

"When the state of the pleading requires it, 

or in any other case, for good reasons, and in 

discretion of the court, the order prescribed 

in the last section may be departed from." 

We note that the artful phrase "good cause" is not used, rather 

there must be "good reasons" for the departure of the usual 

order of the trial. 

Defendant's difficulty arose from the fact the FBI 

agents who were to testify in this case were scheduled to testify in several other cases in other states and the judge would 

not require them to remain for the duration of the trial, nearly 

three weeks, unless there was good reason to keep them. The 

court requested defendant make an offer of proof to show why 

these persons should not be released from their subpoenas after 

defendant opened his case-in-chief. Defendant argued that no 

reasonable offer of proof could be made until the completion of 

the State's case-in-chief. This may well have been true prior 

to enactment of the liberal discovery procedures in the Code of 
Criminal Procedure. In the present case, however, defendant 

had examined the FBI reports; he had examined the physical 

evidence; and he had a list of the proposed exhibits that were 

to be put into evidence. If there was some reason to require 

the FBI agents to remain, defendant would know it at the time 

of trial. No showing of such need was made and the judge in a 

proper exercise of his discretion and for good reasons allowed 

the agents to leave after they had testified as part of the 

defendant's case-in-chief, in the middle of the State's casein-chief. 

Defendant further alleges error because his expert on 

mental defect or disease was not allowed to be present during 

the State's presentation of its rebuttal experts on this matter. 

Earlier in the trial, defendant sought a ruling from the court 

that all witnesses be excluded from the courtroom when other 

witnesses were testifying. The court granted this motion except 

the court said that the exclusionary rule did not extend to rebuttal witnesses. Defendant's expert was a witness in his casein-chief. After defendant rested, he sought permission from 

the court to have this expert present in the courtroom during 

the testimony of the State's rebuttal experts. The court refused to grant such permission. Defendant alleges this was an 

abuse of discretion which prejudiced defendant. 

We are unconvinced the court abused its discretion. Defendant's expert was a witness in his case to whom the exclusionary rule applied. The fact that defendant wanted to use him 

as a rebuttal witness did not except him from the exclusionary 

rule defendant had asked the court to invoke. Nor do we see 

that defendant was prejudiced by the court's action. The State's 

rebuttal experts' testimony concerned the report they had made on 

defendant's mental disease or defect. These were reports that 

the defense had been supplied with, as required by section 
95-505(5), R.C.M. 1947. The State's witnesses finished at 

the end of the day and defendant's rebuttal began the next day. 

There was time then to inform the defense expert of any additional information not in the report made by these experts, 

and to prepare rebuttal testimony. Under those circumstances, 

defendant was not prejudiced. 

Defendant argues the evidence is insufficient to justify 

the verdicts rendered against him. He specifically argues 

that the evidence is insufficient to support the verdicts that 

defendant committed deliberate homicide by torture and that as 

a result of her aggravated kidnapping, Lana Harding died. This 

borders on the frivolous. 

In State v. Fitzpatrick (1973), 163 Mont. 220, 226, 

516 P.2d 605, this Court set forth its position in determining 

questions of sufficiency of the evidence: 

"As this Court has held many times over, the 

jury is the fact finding body in our system 

of jurisprudence, and its decision is controlling. The jury is free to consider all the 

evidence presented and to pick and choose which 

of the witnesses it wishes to believe. If 

sufficient testimony was introduced, as well as 

exhibits to justify the jury's findings, then 

its conclusion will not be disturbed unless it 

is apparent there was a clear misunderstanding 

by the jury or that there was a misrepresentation 

made to the jury." 

In this case, the evidence presented to the jury did 

not mislead them, nor was any of it ever misrepresented to them. 

The evidence was sufficient to justify the jury's finding that 

Lana Harding was killed by means of torture and that she died 

as a result of her aggravated kidnapping by defendant. 

The rule is that if substantial evidence is found to 

support the verdict, it will stand. State v. White (1965), 

146 Mont. 226, 405 P.2d 761; State v. Stoddard (1966), 147 Mont. 

402, 412 P.2d 827. Such is the case here. 

Defendant alleges error in the trial court's denial of 
his motion for a new trial. He contends he was entitled to 

a new trial due to insufficiency of the evidence. He further 

argues that the cumulation of errors committed in his trial 

denied him a fair trial. 

As the evidence was sufficient to sustain defendant's 

conviction, the court did not err in denying the motion for 

new trial. 

We find no merit in defendant's argument on cumulative 

error. Since we have held that no substantial errors were 

committed, we fail to see how the doctrine of cumulative error 

applies. We are unconvinced that the concepts of "harmless 

error" and "cumulative error" are interrelated. "Harmless error" 

refers to technical errors, which do not require reversal. State 

v. Gallagher (1968), 151 Mont. 501, 445 P.2d 45. "Cumulative 

error" refers to a number of errors which prejudice defendant's 

right to a fair trial. State v. Meidinger (1972), 160 Mont. 310, 

502 P.2d 58. Having found that no substantial errors were committed by the trial court, we hold that the doctrine of cumulative error does not apply and a new trial will not be ordered. 

Defendant asserts that the trial court erred by basing 

its judgment and sentence upon erroneous findings, conclusions, 

sentence and order. He further argues the death penalty imposed 

as a sentence by the trial court is unconstitutional under the 

United States Constitution and the 1972 Montana Constitution. 

As to the errors in the court's findings, conclusion, 

sentence and order, the errors referred to are essentially clerical errors in the body of that document. A mistaken citation 

of subsection letter in section 94-5-105, R.C.M. 1947, which 

was caused by the amendment which numbered the section, is an 

example. This document is not in error with respect to the factual or legal basis of its findings. This Court finds no prejudice in the clerical errors. 
Defendant was sentenced to death for his conviction of 

the offenses of deliberate homicide by reasons of torture and 

aggravated kidnapping. This sentence was imposed by virtue 

of sections 94-5-105 and 94-5-304, R.C.M. 1947. At the time 

of the crimes, these statutes read: 

"94-5-105. Sentence Of Death For Deliberate 

Homicide. 

"(1) When a defendant is convicted of the offense 

of deliberate homicide the court shall impose a 

sentence of death in the following circumstances, 

unless there are mitigating circumstances: 

"(a) The deliberate homicide was committed by a 

person serving a sentence of imprisonment in the 

state prison; or 

"(b) The defendant was previously convicted of 

another deliberate homicide; or 

"(c) The victim of the deliberate homicide was a 

peace officer killed while performing his duty; or 

"(d) The deliberate homicide was committed by means 

of torture; or 

"(e) The deliberate homicide was committed by a person lying in wait or ambush; or 

"(f) The deliberate homicide was committed as a 

part of a scheme or operation which, if completed, 

would result in the death of more than one person." 

"94-5-304. Sentence Of Death For Aggravated 

Kidnapping. 

"A Court shall impose the sentence of death following conviction of aggravated kidnapping if it 

finds that the victim is dead as the result of 

the criminal conduct unless there are mitigating 

circumstances." 

These sections were enacted in 1973, and became effective on 

January 1, 1974. In 1974, section 94-5-304 was amended by Ch. 

126, 81, Laws of 1974, to read: 

"94-5-304. Sentence of death for aggravated 

kidnapping. A court shall impose the sentence 

of death following conviction of aggravated kidnapping if it finds that the victim is dead as 

the result of the criminal conduct." 

This amendment deleted the phrase: "unless there are mitigating circumstances." The amendment had an effective date of 
March 11, 1974. At the time of the death of Lana Harding, 

this amendment was not in effect. Therefore, our analysis 

of the constitutionality of these death penalty statutes will 

concern them as they existed at the time of the crimes involved in this case. 

The death penalty statutes in question here were adopted 

in response to Furman v. Georgia (1972), 408 U.S. 238, 92 S.Ct. 

2726, 33 L.Ed.2d 346. In Furman, the Supreme Court reversed 

and vacated death sentences imposed on three defendants. It 

was a per curiam opinion, with five separate concurrences and 

four separate dissents. The five concurring opinions each 

asserted different theories for finding the statutes in question 

unconstitutional. Essentially, the fatal flaw in the death penalty, under the concurring opinions of Furman, was the absence 

of consistent application of the sanction. 

The cumulation of majority opinions in Furman led to 

considerable confusion among the several states' legislatures 

which desired to retain a constitutionally viable death penalty, 

i.e., a death penalty that was being imposed consistently and 

not arbitrarily. In some jurisdictions Furman was read as requiring a strictly mandatory death sentence for certain classes 

of proven crimes. In other jurisdictions, Furman was read as 

attacking unbridled discretion rather than discretion per se. 

These states passed statutes to control the discretion of the 

sentencing authority. These statutes allowed the death penalty 

to be imposed only when unmitigated aggravating circumstances 

were present. 

In 1976, the United States Supreme Court considered the 

constitutionality of mandatory death penalty statutes. Woodson 

v. North Carolina (1976), 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 

944. The statute before the Court was North Carolina's death 

penalty statute. It provided a death sentence for all persons 
convicted of first degree murder. The Supreme Court held the 

statute unconstitutional as violative of the Eighth and Fourteenth Amendments. In two later cases, the Supreme Court also 

held mandatory death penalty statutes unconstitutional. Coker 

v. Georgia (1977), 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982; 

Harry Roberts v. Louisiana (1977), 431 U.S. 633, 97 S.Ct. 1993, 

52 L.Ed.2d 637. The problem with mandatory death penalty statutes, 

according to the Court, was: 

" . . . it is essential that the capital sentencing decision allow for consideration of 

whatever mitigating circumstances may be relevant to either the particular offender or particular offense. . ." Harry Roberts, 431 U.S. 

637. 

The death penalty statutes under attack in the instant 

case, sections 94-5-105 and 94-5-304, as they existed at the 

time of the crimes, are not mandatory death penalty statutes. 

Thus, they can withstand scrutiny under the decisions of Woodson, 

Coker, and Harry Roberts because they allow for consideration of 

mitigating circumstances. 

Also in 1976, the Supreme Court considered the constitutionality of those death penalty statutes that controlled the 

discretion of the sentencing authority. Unlike their mandatory 

counterparts, the Court upheld these statutes. Gregg v. Georgia 

(1976), 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859; Proffitt v. 

Florida (1976), 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913; 

and, Jurek v. Texas (1976), 428 U.S. 262, 96 S.Ct. 2950, 49 

L.Ed.2d 929. In Gregg the Supreme Court stated: 

"Furman mandates that where discretion is a£- 

forded a sentencing body on a matter so grave as 

the determination of whether a human life should 

be taken or spared, that discretion must be 

suitably directed and limited so as to minimize 

the risk of wholly arbitrary and capricious action." 

428 U.S. 189. 

The Montana statutes defendant challenges are designed 

to control the discretion of the sentencing authority. These 
statutes are in the constitutionally permissible ground between unbending mandatory death sentences and unbridled 

discretion in the imposition of the death penalty. 

In its decisions of Gregg, Jurek, and Proffitt, the 

United States Supreme Court seems to have established three 

general criteria which are requisite to a valid death penalty 

statutory scheme. 

First, there must be at least one statutory aggravating 

circumstance before a death sentence may be considered. Second, the defense must be afforded the opportunity to bring before the sentencing body at a separate sentencing hearing any 

mitigating circumstances relating to the individual defendant. 

Third, there must be available prompt judicial review of the 

sentencing decision by a court of state-wide jurisdiction, providing a means to promote the evenhanded, rational and consistent 

imposition of death sentences under the law. 

Sections 94-5-105 and 94-5-304 satisfy the first criterion set forth above. Under section 94-5-105, the death penalty 

cannot be imposed unless one of six aggravating circumstances is 

found by the trier of fact to exist. Here, it was found that 

defendant committed deliberate homicide by means of torture. 

Section 94-5-105(1)(d), R.C.M. 1947. Under 94-5-304, the death 

sentence cannot be imposed unless it is found the kidnap victim 

died as a result of the aggravated kidnapping. Such a finding 

was made in this case by the jury. 

The second criterion, that mitigating circumstances be 

reviewed at a separate sentencing hearing, is satisfied by two 

separate statutory provisions: First, both death penalty statutes provide that the court "shall" impose a sentence of death 

"unless there are mitigating circumstances". Defendant urges 

the "unless" clause may purport to circumscribe the sentencing 
judge's authority, but there are no guiding standards nor 

sources of information provided for. This argument ignores 

the second statutory provision relevant here--that is, the presentence investigation report to be delivered to and considered 

by the sentencing court in felony cases. Section 95-2204, 

R.C.M. 1947, provides the report shall contain information 

respecting "the characteristics, circumstances, needs, and 

potentialities of the defendant; his criminal record and social 

history; the circumstances of the offense; . . . and the harm 

to the victim, his immediate family, and the community." The 

report provides the sentencing authority with whatever circumstances may exist in mitigation of the defendant's conduct. 

Reading the two provisions together, the sentencing 

court is required to consider mitigating circumstances and is 

required to consider the presentence investigation report which 

must contain any matters relevant to mitigation. In addition, 

all sentencing courts are directed by section 95-2201, R.C.M. 

1947, to perform their sentencing functions "to the end that 

persons convicted of a crime shall be dealt with in accordance 

with their individual characteristics, circumstances, needs and 

potentialities." This mandates the imposition of sentences 

which are not disproportionate to the severity of the crime. 

Finally, the defendant is authorized to seek a hearing to present to the court his testimony and evidence in mitigation of 

punishment. 

Prompt judicial review of death sentences is provided 

for by appeal to this Court as well as review to the Sentence 

Review Division. This Court determines the legality of the 

sentence impos=lc., Stat,? v. Simtob (1969), 154 PIont. 286, 462 

P.2d 873, while the Sentence Review Division is designed to 

determine the appropriateness of the sentence with respect to 
the individual offender and particular offense. This satisfies the third criteria. 

Although Montana's statutory scheme is unlike those 

approved by the United States Supreme Court in Gregg, Proffitt, 

and Jurek, we see no substantive failure of Montana's statutory 

scheme to comply with constitutional standards. Our system 

is neither wholly mandatory nor wholly discretionary. There 

are precise statutory requirements for finding aggravating and 

mitigating circumstances, and a procedure for flushing out the 

facts with respect to such circumstances. There is appellate 

review at two levels, insuring that the sentence is both legal 

and proportional to the nature and class of crime. In short, we 

believe that the Montana statutory scheme in existence at the 

time of the crimes herein, affords defendant the procedural 

safeguards necessary to protect his substantive rights to be 

sentenced without arbitrariness or caprice, State v. Coleman (1979), 

Mont. -I - P.2d , 36 St.Rep. 1134 (decided June 20, 

1979). 

Therefore, we hold that the death penalty statutes in 

question in this case are constitutional under the United States 

constitutional requirements. They are constitutional on their 

face and as applied to this defendant. 

Defendant next contends that shifting the burden of 

proving insanity to the defendant offends the due process clause 

of the Montana Constitution. 

Defendant relies on the reasoning of a Colorado case, 

State ex rel. Juhan v. District Court (1968), 165 Colo. 253, 

439 P.2d 741. Prior to Juhan, the Colorado Supreme Court had 

always held the burden was on the state to disprove a properly 

raised defense of insanity beyond a reasonable doubt. The legislature subsequently passed a statute purporting to shift the 
burden to defendant. The Colorado Supreme Court in Juhan, in a 

3-2 decision, held its previous decisions were interpretations 

of the due process clause of the Colorado Constitution, and 

therefore the legislature was powerless to vary the constitutional ruling by legislative enactment. 

Defendant's reasoning is similar. In 1895, the United 

States Supreme Court held that in the federal system, the 

burden was on the state to disprove insanity beyond a reasonable doubt. Davis v. United States (1895), 160 U.S. 469, 16 

S.Ct. 353, 40 L.Ed 499. Three Montana cases decided shortly 

thereafter adopted the Davis rule for Montana. State v. Brooks 

(1899), 23 Mont. 146, 57 P. 1038; State v. Peel (1899), 23 Mont. 

358, 59 P. 169; State v. Felker (1903), 27 Mont. 451, 71 P. 668. 

The Montana Legislature in 1925 passed Ch. 87, Laws of 1925, imposing the burden on defendant to prove his insanity by a preponderance of the evidence. This became subsection 2 of former 

section 94-119, R.C.M. 1947. The present statute, passed in 1967, 

is section 95-503, R.C.M. 1947. Thus, the burden has remained 

on the defendant since 1925. Montana cases since 1925 have 

relied upon the statute and held the jury should be instructed 

that defendant must prove insanity by a preponderance of the 

evidence. State v. Vettere (1926), 76 Mont. 574, 248 P. 179. 

The main thrust of defendant's argument is that the old Montana 

cases were of constitutional significance and could not be varied 

by the legislature; thus Montana's statutes have violated the 

due process clause of the Montana Constitution since 1925. 

The problem with this argument is that it assumes Brooks, 

Peel, and Felker were based on the due process clause of the 

Montana Constitution. There is no mention of the Montana Constitution in any of them. They merely followed the rule announced 

by the Supreme Court in Davis. The Supreme Court in Leland v. 

Oregon (1952), 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed 1302, noted 
that Davis "obviously establishes no constitutional doctrine, 

but only the rule to be followed in federal courts." Similarly, 

it is apparent that Brooks, Peel and Felker were not establishing a constitutional doctrine for Montana. Just as Congress 

could conceivably change the federal rule set forth in Davis, the 

Montana Legislature clearly had the power to change the rule 

announced in the early Montana cases. 

On remand from the United States Supreme Court, the 

issue before this Court is whether the trial court's instruction on mental disease or defect unconstitutionally shifted the 

burden of proof of state of mind to defendant. The Supreme Court 

directed us to reconsider our early decision in this case in light 

of Patterson v. New York (1977), 432 U.S. 197, 97 S.Ct. 2319, 

53 L.Ed.2d 281. In doing so, we will examine the defense of 

mental disease or defect as it exists under Montana law and as 

applied in this case. 

Evidence of a defendant's mental disease or defect is 

admissible in Montana criminal trials for two statutory defenses. 

Section 95-501 (a), R.C.M. 1947, provides: 

"A person is not responsible for criminal conduct if at the time of such conduct as a result 

of mental disease or defect he is unable either 

to appreciate the criminality of his conduct or 

to conform his conduct to the requirements of 

law. " 

This section defines Montana's "legal insanity" defense. Section 95-503(a), R.C.M. 1947, places upon the defendant the burden of establishing his legal insanity by a preponderance of 

the evidence. Defendant concedes the State may allocate to the 

defendant the burden of proving his legal insanity without violating the United States Constitution. Patterson v. New York, 

supra; Rivera v. Delaware (1976), 429 U.S. 877, 97 S.Ct. 226, 

50 L.Ed.2d 160; Leland v. Oregon, supra. Defendant contends, 

however, that the second criminal defense involving mental disease 
or defect unconstitutionally shifted the burden to defendant 

to disprove intent, an essential element of the crime charged. 

In addition to the legal insanity defense which, if 

proven, excludes a defendant's responsibility for an otherwise criminal act, evidence of a defendant's mental disease 

or defect is also admissible in Montana criminal trials " . . . 

whenever it is relevant to prove that the defendant did or did 

not have a state of mind which is an element of the offense." 

Section 95-502, R.C.M. 1947. This section is a codification 

of the "diminished capacity" defense, under which a defendant 

may show that he suffered from a mental disease or defect which, 

although insufficient to establish legal insanity as a complete 

defense, made him incapable of forming the criminal intent defined by statute as an element of the crime charged. 

In 1967, when section 95-502, R.C.M. 1947, was enacted 

by the Montana legislature, homicide in Montana was divided into four classifications, each requiring a different and specific 

mental state. The intent element of first degree murder was 

deliberation, premeditation and malice aforethought, while that 

of second degree murder was malice aforethought, without deliberation or premeditation. Section 94-2503, R.C.M. 1947. State v. 

Brooks (1967), 150 Mont. 399, 436 P.2d 91. Voluntary manslaughter 

consisted of any unlawful killing, without malice, upon a sudden 

quarrel or heat of passion. Section 94-2507(1), R.C.M. 1947. 

Involuntary manslaughter, the fourth classification of homicide 

under Montana criminal law in 1967, did not have criminal intent 

as a statutory element of the crime; the issue, rather, was one 

of criminal negligence. Section 94-2507(2), R.C.M. 1947. State 

v. Souhrada (1949), 122 Mont. 377, 204 P.2d 792. 

The diminished capacity defense was traditionally used 

to show that, due to mental disease or defect, the defendant was 
unable to form the specific intent which was an element of a 

higher degree of an offense such as homicide, and that a lesser 

degree of criminal homicide, which lacked that specific intent 

as an element of the crime, was in fact committed. See, Anno. 

22 ALR3d 1228, 1238-43 (1968). Thus, under Montana law in 

effect when section 95-502, R.C.M. 1947, was enacted, evidence 

of a defendant's mental disease or defect was admissible to 

pxove or disprove, for example, that, although a defendant committed an unlawful killing with malice aforethought, he had not 

the capacity to form the specific intent--deliberation or premeditation--which was an element of first degree murder. 

By January 1974, when Lana Harding was kidnapped and 

murdered, Montana had adopted its present criminal code. The 

new code abolished all distinctions between first and second 

degree murder. Malice aforethought and premeditation are no 

longer elements of the criminal homicide offense. The intent 

element of the crime of homicide under present Montana law is 

merely "purposely, knowingly, or negligently" causing the death 

of another human being. Section 94-5-101, R.C.M. 1947. There 

are three types of criminal homicide. Defendant was charged 

with, and convicted of, deliberate homicide, a criminal homicide committed purposely or knowingly. Section 94-5-102(1)(a), 

R.C.M. 1947. Mitigated deliberate homicide, a lesser offense, 

also requires that the defendant commit the criminal homicide 

purposely or knowingly, but that the deliberate homicide be 

committed under the influence of extreme mental or emotional 

stress for which there is a reasonable excuse. Section 94-5- 

103(1), R.C.M. 1947. The third type of criminal homicide, negligent homicide, is inapplicable to the facts shown at trial. 

Because the statutory definitions of both deliberate 

homicide and mitigated deliberate homicide require proof by 
the State of the identical mental element--purposely or knowingly--there was no lesser degree of criminal homicide of 

which defendant could have been convicted upon proof that he 

was unable to form the mental state required in deliberate 

homicide. The State concludes that, because all of the charges 

required a showing of purposeful or knowing conduct, the section 

95-502 defense of mental disease or defect negating the ability 

to form a purposeful or knowing intent was a complete, rather 

than a partial, defense and as such merged with the insanity 

defense of section 95-501. 

We do not agree with the State that, in this case, the 

diminished capacity and insanity defenses were necessarily identical. The prescribed mental state of "purposely or knowingly" 

applies to each element of the crime of deliberate homicide. 

Section 94-2-103(1) and (2), R.C.M. 1947. To be guilty of deliberate homicide, therefore, one must either have the pur-pose 

to kill or know that it was highly probable that his actions 

would result in the death of another human being. While legal 

insanity would have completely exonerated defendant from responsibility for his criminal conduct, the diminished capacity defense could be used in a criminal homicide case to show, for 

example ". . . that although defendant knew the nature and quality 

of the act (the assault . . .) and knew that it was wrong" and so 

was not irresponsible under the legal insanity test, "he lacked 

mental capacity to form the intent to kill . . .". Weihofen 

and Overholser, Mental Disorder Affecting the Degree of a Crime, 

56 Yale L.J. 959, 979-80 (1948). A defendant then, due to mental 

disease or defect precluding him from forming the intent to commit criminal homicide, might be found guilty of the lesser included offense of aggravated assault. See, State v. Booth (1977), 

30 Or-App. 351, 567 P.2d 559, 561-62. 

Defendant maintains the State was required to prove 
" . . . that defendant had, and could have had, a particular 

state of mind which is an element of the offense," and that 

by making diminished capacity an affirmative defense, the 

trial judge unconstitutionally shifted to defendant the burden 

of disproving an essential element of the offenses charged. 

" . . . the Due Process Clause protects the 

accused against conviction except upon proof 

beyond a reasonable doubt of every fact necessary to constitute the crime with which he is 

charged." In re Winship (1970), 397 U.S. 358, 

364, 90 S.Ct. 1068, 25 L.Ed.2d 368. 

We must therefore analyze Montana's deliberate homicide 

statute to determine if a defendant's lack of mental disease or 

defect, and his resulting ability to purposely or knowingly 

cause the death of another person, is a fact necessary to constitute the crime charged. Patterson v. New York, supra. 

In Montana, a person commits the offense of deliberate 

homicide if he purposely or knowingly causes the death of another 

human being. Sections 94-5-102 (1) (a) , 94-5-101(1) , R.C.M. 1947. 

The statutorily defined elements of the offense, each of which 

the State must prove beyond a reasonable doubt, are therefore 

causing the death of another human being with the knowledge that 

you are causing or with the purpose to cause the death of that 

human being. A person acts "with knowledge" or "knowingly" " . . . 

with respect to the result of conduct described by a statute defining an offense when he is aware that it is highly probable that 

such result will be caused by his conduct . . ." Section 94- 

2-101(27), R.C.M. 1947. The statute does not require the State 

to prove the defendant does not suffer from mental disease or defect which would prevent the defendant from doing the act purposely 

or knowingly. 

Because sanity or lack of mental disease or defect is 

not an element included in the definitions of any of the crimes 

charged against defendant, the State may rely upon the rebuttable 

presumption that the defendant was sane when the offense was 
committed. Cf. Mullaney v. Wilbur (1975), 421 U.S. 684, 95 

S.Ct. 1881, 44 L.Ed.2d 508; see, Patterson v. New York, 432 

U.S. 212-216. The sanity presumption is a presumption which 

all the states employ in criminal trials. See, H. Weihofen, 

Mental Disorder as a Criminal Defense (1954), pp. 214-215, 

and cases collected therein; Leland v. Oregon, 343 U.S. at 799. 

Without a presumption that everyone is sane and capable of 

committing crimes, " . . . the government would always be under 

the necessity of adducing affirmative evidence of the sanity of 

the accused. But a requirement of that character would seriously delay and embarrass the enforcement of the laws against crime, 

and in most cases be unnecessary. . ." Davis v. United States 

(1895), 160 U.S. 469, 486, 16 S.Ct. 353, 40 L.Ed. 499. The 

trial court instructed the jury defendant was presumed to have 

been sane at the time the offenses were committed. Defendant 

himself in his requested instructions stated that "Every man is 

presumed to be sane, that is, to be without mental disease or 

defect . . ." The presumption of sanity did not shift to defendant the burden of disproving a fact necessary to constitute 

the crime charged. 

" . . . To recognize at all a mitigating circumstance does not require the State to prove its 

nonexistence in each case in which the fact is put 

in issue . . . 

" . . . Proof of the nonexistence of all affirmative defenses has never been constitutionally 

required . . ." Patterson v. New York, 432 U.S. 

209, 210. 

The section 95-502, diminished capacity defense, is an 

affirmative defense. Section 94-2-103 (6) , R.C.M. 1947. To rebut 

the presumptions of sanity and capability of forming a purposeful or knowing intent, a defendant may admit evidence relevant 

to " . . . prove that he did not have a particular state of mind 

which is an essential element of the offense charged." Section 

95-503 (b) (2), R.C.M. 1947. These sections do not define the 
standard of proof necessary to establish this affirmative defense, and neither section 95-502 nor section 95-503(b)(2) has 

been interpreted by this Court. We hold that, to prove a 

section 95-502 defense, a defendant must prove by a preponderance of the evidence that he lacked the ability, due to mental 

disease or defect, to form that criminal mental state which is 

defined by statute as an element of the crime with which he is 

charged. 

Placing on a defendant the burden of proving the diminished capacity defense does not offend " . . . 'some principle 

of justice so rooted in the traditions and conscience of our 

people as to be ranked as fundamental.' . . ." Speiser v. Randall (1958), 357 U.S. 513, 523, 78 S.Ct. 1332, 2 L.Ed.2d 1460. 

Several jurisdictions do not even allow diminished capacity as 

an affirmative defense. See, State v. Doss (1977), 116 Ariz. 

156, 568 P.2d 1054; Bethea v. United States (D.C.App. 1976), 365 

A.2d 64; cases collected in 22 ALR3d 1228, 1235-1238. Indeed, 

in an opinion in which the Supreme Court considered whether 

a trial court must instruct jurors that they should consider 

evidence of diminished capacity, the Court held that this was a 

matter of peculiarly local concern entrusted to the local courts. 

" . . . For this Court to force the District 

of Columbia to adopt such a [diminished capacity] 

requirement for criminal trials would involve a 

fundamental change in the common law theory of 

responsibility." Fisher v. United States (1946), 

328 U.S. 463, 476, 66 S.Ct. 1318, 90 L.Ed. 1382. 

(Bracketed material added.) 

Because psychiatric evaluation as to subtle gradations 

of mental impairment is highly subjective and not within the 

common experience of the layman juror, the State may in fairness 

require a defendant to convince the jury of his diminished capacity by a preponderance of the evidence. 

The fact that psychiatry is a developing and, at present, 
inexact science has long been noted by the courts. See, 

Greenwood v. United States (1956), 350 U.S. 366, 76 S.Ct. 410, 

100 L.Ed. 412; Warhlich v. Arizona (9th Cir. 1973), 479 F.2d 

1137; Bethea v. United States, supra. 

"The science of psychiatry is at most an 

educated guess as to the certainty of human 

behavior, which cannot be predicted with any 

absoluteness. . . " People v. Del Guidice 

(1973), 345 N.Y.S.2d 341, 344. 

In rejecting the diminished capacity defense, courts have also 

compared diminished capacity with other defenses and noted: 

" . . . unlike the notion of partial or relative 

insanity, conditions such as intoxication, medication, epilepsy, infancy, or senility are, in 

varying degrees, susceptible to quantification 

or objective demonstration, and to lay understanding. . ." Bethea v. United States, 365 A.2d 88. 

See, Wahlrich v. Arizona, supra; State v. Doss, supra. 

The myriad problems with allowing the introduction of 

psychiatric testimony to determine criminal responsibility are 

discussed in Ennis & Litwack, Psychiatry and the Presumption of 

Expertise: Flipping Coins in the Courtroom, 62 Cal. L.Rev. 693, 

737 (1974). 

Despite the potential problems of proof in allowing the 

diminished capacity affirmative defense, and despite the fact 

that a state very likely is not constitutionally required to even 

allow diminished capacity as an affirmative defense, Montana does 

allow the defense. While the Montana legislature was willing to 

recognize diminished capacity: 

" . . . as an exculpatory . . . circumstance 

affecting the degree of culpability . . . it 

was willing to do so only if the facts making 

out the defense were established by the defendant with sufficient certainty. The State was 

itself unwilling to undertake to establish the 

absence of those facts beyond reasonable doubt, 

perhaps fearing that proof would be too difficult and that too many persons deserving treatment as murderers would escape that punishment 

if the evidence need merely raise a reasonable 

doubt about the defendant's [diminished capacity]. . . ." Patterson v. New York, 432 U.S. 207. 
In this case, the State meticulously proved the facts 

constituting the deliberate homicide and aggravated kidnapping crimes beyond any reasonable doubt, based on all the 

evidence including the evidence of defendant's alleged mental 

disease or defect. The State, consistent with the Leland and 

Rivera cases, could then constitutionally refuse to sustain 

the affirmative defense of diminished capacity unless defendant 

proved that defense by a preponderance of the evidence. 

The instructions given by the court clearly required 

the State to prove every element of the offenses charged beyond 

a reasonable doubt and more than gave defendant the benefit of 

Montana law on the diminished capacity defense burden of proof. 

In Instruction 53 the jurors were told that, before considering 

the diminished capacity defense, they were to " . . . first 

determine from the evidence in the case beyond a reasonable doubt 

whether the defendant did do the acts charged against him in the 

Information." The court separately instructed the jury that to 

find defendant guilty of any of the offenses charged, they must 

first find that defendant ". . . committed the act or acts charged 

voluntarily, while having with regard to each element contained 

in the law defining the offense one of the mental states contained 

in the said definition." (Instruction 29.) The court instructed 

the jury that only if it found beyond a reasonable doubt that 

defendant did any of the acts charged against him in the Information should they then consider "whether or not he could have 

had the requisite mental state for the act or acts which you have 

found he committed." (Instruction 53.) 

Although the court in Instruction 53 instructed the jury 

as to defendant's burden of proof for his legal insanity defense, 

nowhere in the instruction itself did the court specifically instruct the jury as to what burden of proof defendant had to satisfy 
to establish that he could not form a mental state of "purposely" 

or "knowingly" due to mental disease or defect (the diminished 

capacity defense). It is well established, however, that ". . . 

a single instruction is not viewed in artificial isolation, but 

must be viewed in the context of the overall charge." Cupp v. 

Naughten (1973), 414 U.S. 141, 146-47, 94 S.Ct. 396, 38 L.Ed.2d 

368. If all the instructions considered as a whole fairly and 

accurately present the case to the jury, the fa3 that one 

instruction, standing alone, is not as full as it might have been 

is not reversible error. State v. Brooks (1967), 150 Mont. 399, 

436 P.2d 91. Instruction 1 in this case made the jury aware of 

this rule of law. " . . . you are to consider all of the instructions as a whole, and are to regard each in the light of all the 

others. " 

The instructions in this case, when considered as a whole, 

imposed a more lenient burden of proof on defendant than Montana 

law provided, because the instructions impressed upon the jury 

that defendant had successfully established his diminished capacity defense if, after considering all the evidence in the case, 

the jurors entertained a reasonable doubt as to whether defendant 

suffered from mental disease or defect which prevented him from 

forming a purposeful or knowing state of mind with respect to the 

offenses charged. 

"A person to be guilty of any of the offenses 

charged in any of the seven counts charged in 

the Information must have committed the act 

or acts charged voluntarily, while having with 

regard to each element contained in the law 

defining the offense one of the mental states 

contained in said definition." (Instruction 29). 

". . . In order to convict the defendant of 

the offense charged in any of said counts all of 

the material allegations contained in that particular count must be proved beyond a reasonable doubt . . ." (Instruction 6). 

"Reasonable doubt is . . . that state of the case 

which, after the entire comparison and consideration of all the evidence, leaves the minds of 
the jurors in that condition that they cannot 

say they feel an abiding conviction to a moral 

certainty of the truth of the charge." (Instruction 7). 

The instructions which were given to the jury in this 

case not only protected defendant within the ambit of Montana 

law, but indeed posited a more liberal burden of proof than 

that to which defendant was entitled. The instructions, when 

read together, also required defendant to establish his diminished capacity merely by raising a reasonable doubt, rather 

than by proof by a preponderance of the evidence. 

We now review defendant's conviction in the light of 

the decision of the United States Supreme Court in Sandstrom v. 

Montana (1979), 442 U.S. , 99 S.Ct. 2450, 61 L.Ed.2d 39. 

The jury instruction in that case was a naked instruction: "The 

law presumes that a person intends the ordinary consequences of 

his voluntary acts." This instruction was held unconstitutional 

under the Fourteenth Amendment to the United States Constitution 

because the jury might have interpreted it in one of two ways: 

(1) as a conclusive presumption, or (2) as shifting the burden 

of persuasion to the defendant to disprove an element of the 

crime, viz. that defendant "knowingly or purposely" killed the 

victim. As either interpretation would have rendered the instruction unconstitutional, defendant's conviction was reversed. 

The threshold inquiry in ascertaining the constitutional 

analysis applicable to this kind of jury instruction is to determine the nature of the presumption. Sandstrom, supra. Ulster 

County Court v. Allen (1979), U. S. , 99 S.Ct. 2213, 60 

L.Ed.2d 777. That determination requires careful attention to 

the words actually spoken to the jury, for whether a defendant 

has been accorded his constitutional rights depends upon the way 

in which a reasonable juror could have interpreted the instruction. Sandstrom, supra. 
In this case a reasonable juror could not have interpreted the instructions on intent as conclusive presumptions 

condemned in Sandstrom. The jury was told in instruction 31 

that "a presumption is a deduction or reasoning which the law 

expressly directs a jury make from proved fact or facts"; that 

"presumptions expressly direct you to reason from proved facts"; 

and that "the law expressly directs the jury to reason: that 

an unlawful act was done with an unlawful intent and also that 

a person is presumed to intend the ordinary consequences of his 

voluntary act." This instruction concludes "Further, unless 

you are otherwise instructed with regard to a particular presumption, all presumptions are rebuttable; that is, they may be controverted and overcome by other evidence." 

In instruction 33 describing the methods of proof applicable to the offenses of deliberate homicide, the jury was told 

that the mental state accompanying the voluntary act for the offense of deliberate homicide may be proved by either inferences 

or presumptions or a combination of the two; that "if you find 

beyond a reasonable doubt that the defendant, on or about January 

21, 1974, in Pondera County, Montana, voluntarily committed an 

illegal act on Lana Harding, such as assaulting or injuring her, 

the law presumes that an unlawful act was done with an unlawful 

intent; that is, the law expressly directs you to reason from 

such unlawful act that the defendant acted with an unlawful intent, 

or purpose"; and that "this is a rebuttable presumption, which 

means it may be controverted and overcome by other evidence, but 

whether or not a presumption, once it has come into effect is 

overcome, is for the jury to determine"; and a similar instruction that "the law presumes that a person intends the ordinary 

consequences of his voluntary act" and that this is a rebuttable 

presumption. 
~nstruction 34 described to the jury the methods of 

proof applicable to deliberate homicide by means of torture. 

This was one of the two crimes of which defendant was convicted. The jury was instructed that "the mental state of 

purposely assaulting another physically to inflict cruel suffering upon that person for a particular purpose cannot be proved 

by using the legal presumptions you have been directed to use 

in the proof of deliberate homicide, and must be proved by the 

use of inference alone." 

Similar instructions were given the jury in regard to 

kidnapping and aggravated kidnapping, viz. that the intent or 

mental state required to constitute the offense of kidnapping 

could be proved by a rebuttable presumption, but that the specific intent required to constitute aggravated kidnapping could 

not be proved by a presumption but must be proved by inference 

alone. 

We conclude from the foregoing that the instructions 

considered as a whole do not constitute conclusive presumptions 

that "the law presumes that a person intends the ordinary consequences of his voluntary acts" or that "an unlawful act was 

done with an unlawful intent" and that a reasonable juror could 

not so have interpreted them. Thus the first of the Sandstrom 

condemnations is inapplicable to this case. 

The jury was confronted with rebuttable presumptions that 

a person intends the ordinary consequences of his voluntary acts 

and that an unlawful act was done with an unlawful intent. A 

similar rebuttable presumption was found unconstitutional in 

Mullaney v. Wilbur (1975), 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 

508. The basis of that decision was that such presumption shifted 

the burden from the State to prove each element of the crime onto 

the defendant. 
Thus we are squarely faced with determining whether this 

federal constitutional error constitutes harmless or prejudicial 

error. The test of harmless constitutional error is whether the 

court can declare its belief that the error was harmless beyond 

a reasonable doubt. Chapman v. California (1967), 386 U.S. 18, 

87 S.Ct. 824, 17 L.Ed.2d 705. Chapman rejected a rule that all 

federal constitutional errors, regardless of the facts and circumstances, were harmful and required automatic reversal of a 

conviction. 

As far as we can determine, the United States Supreme 

Court has not yet fashioned a uniform standard for determining 

harmless federal constitutional error beyond Chapman. See Harmless Error: the Need for a Uniform Standard, St. John's Law Review, 

Vol. 53, Spring 1979, Number 3, page 541; Assessing the Harmlessness of Federal Constitutional Error--A Process in Need of a 

Rationale, University of Pennsylvania Law Review, December 1976, 

Vol. 125, No. 2, page 15. At least three definable approaches 

appear in United States Supreme Court cases: (1) Focusing on the 

erroneously admitted evidence or other constitutional error to 

determine whether it might have contributed to the conviction 

e.g., Fahy v. Connecticut (1963), 375 U.S. 85, 84 S.Ct. 229, 11 

L.Ed.2d 171; (2) excluding the constitutional infirmity where 

overwhelming evidence supports the conviction e.g., Milton v. 

Wainwright (1972), 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1; 

(3) determining whether the tainted evidence is merely cumulative 

or duplicates properly admitted evidence e.g., Harrington v. 

California (1969), 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284. 

Under such circumstances, we feel free to adopt any of 

the three standards in assessing federal constitutional harmless 

error within the confines of Chapman. It seems to us that the 

overwhelming weight of the evidence standard addresses the realities 
of jury trial to a greater degree than the others in the context 

of the McKenzie case despite criticism of this standard by text 

writers and legal commentators. It has been observed by at least 

one commentator that on the whole, the cases support the propriety of an overwhelming weight of the evidence test. Martha 

Field, University of Pennsylvania Law Review, Vol. 125, No. 1, 

p. 21. 

We choose to follow this standard in determining federal 

constitutional harmless error under Chapman because it seems to 

us that an appellate court should view the case as a whole in 

assessing harmless or prejudicial error and not confine itself 

to a review of only one component of the case in artificial 

isolation, in this case the jury instructions. To confine our 

review solely to the latter would, in our view, require us to 

take a lopsided view of the case on appeal and require us to 

overemphasize jury instructions in relation to the evidence, notwithstanding the dictum in Ulster County Court v. Allen (1979), 

442 U.S. , 99 S.Ct. 2213, 60 L.Ed.2d 777. 

We find nothing in Sandstrom inconsistent with adopting 

this approach to determining harmless error. In Sandstrom the 

United States Supreme Court expressly declined to reach the issue 

of harmless error as an initial matter as the Montana Supreme 

Court had not ruled on this issue. On remand, we granted a new 

trial to Sandstrom on grounds unrelated to the overwhelming evidence standard in assessing harmless error. 

We have also reviewed Bollenback v. United States (1946), 

326 U.S. 607, 66 S.Ct. 402, 90 L.Ed. 350, and Brotherhood of 

Carpenters v. United States (1947), 330 U.S. 395, 67 S.Ct. 775, 

91 L.Ed. 973. These cases indicate that where there is a jury 

instruction containing an unconstitutional presumption there can 

be no harmless error and automatic reversal is required. In our 

view the effect of this holding is ameliorated if not eliminated 
by the later Chapman case extending the scope of analysis of 

harmless constitutional error and declining to adopt any automatic reversal rule but analyzing each case on a case-to-case 

basis to determine harmless or prejudicial error. So viewed 

Bollenback - & Brotherhood of Carpenters would be limited to holding that under the particular facts and circumstances of those 

cases, the unconstitutional presumption was prejudicial error. 

McKenzie is a case where no inadmissible evidence was 

presented to the jury. The jury heard no tainted evidence. The 

proof presented by the state was essentially undisputed and uncontroverted. The sole exception was the conflicting testimony 

of psychiatrists called by the state and the defendant relating 

to the capacity of the defendant to form the intent required to 

constitute the crimes of which he was convicted. The verdict 

of the jury necessarily determined that defendant had the capacity 

to form the requisite intent. No unconstitutional presumptions 

were given the jury concerning defendants mental capacity. 

Given that mental capacity, the question remains whether 

defendant in fact had the requisite intent when he kidnapped and 

killed the victim. Here the evidence is undisputed and permits 

only one rational conclusion. 

From the beginning there was no real or genuine question 

regarding intent in this case. There was uncontroverted and 

compelling evidence of the vicious manner in which the crimes were 

committed from which no rational conclusion could be drawn that 

the defendant lacked the intent to kidnap and kill the victim. 

The pathologist who examined the body of the victim testified how 

the killing occurred. He stated that there was evidence of sexual 

intercourse in close proximity to the time of death and that a 

dry stain in the victim's pubic hair vaginal canal contained human 

male semen. He also testified that the evidence was consistent 

with the fact the victim had been dragged. Nine abraded bruises 
were found on the front part of the victim's chest in the area 

of her breasts. A segment of used clothesline rope had been 

found around the victim's neck which had been severely constricted about 45 minutes before her death causing injuries severe 

enough to completely compress the airway into her lungs. Finally, 

there was evidence of several blows to the victim's head. The 

death blow had left open the entire side of her head. Blood and 

brain tissue matching those of the victim were found on the exhaust manifold. 

There is no other evidence. The evidence on the issue 

of intent is overwhelming, uncontradicted, and permits but one 

rational conclusion--that defendant purposely and knowingly intended to kidnap and kill her. We conclude that a reasonable 

juror could not have found otherwise on the proof presented by 

the State, the instructions on rebuttable presumptions notwithstanding. See State v. Hamilton (1980), Mon t . -I - P. 2d 

, 37 St.Rep. 70. Regardless of the jury instructions on rebuttable presumptions, the verdict could not have been otherwise. 

We declare a belief that the unconstitutional jury instructions 

were harmless beyond a reasonable doubt in the context of the 

undisputed evidence in this case, that the assigned error could 

not have contributed to the verdict in this case. 

Af firmed. 

Chief Justice 

Justices 

Judge, sitting in place o 

n. Jack D. Shanstrom, District 

sitting in the vacant 

seat on the Court. 

- 55 - 

Mr. Justice Daniel J. Shea dissents and will file an opinion later.