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 DouglasAnderson, CountyAttorney, Conrad,Montana

- Submitted: October 29, 1979 Decided: 

## Re21:I@J Filed: 

## 8'

# m$Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. Following a jury trial, the defendantwas 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), 171Mont. 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. Statev. 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 Sandstromv. Montana (1979), 442 U.S. 

## , 99 S.Ct. 2450, 61L.Ed.2d 39. McKenzie

v. Montana (1979), U.S. 

## , 99 S.Ct. 3094, 61L.Ed.2d 871. This opinion constitutesour considerationof this case in the light of Sandstrom. The victim in this case was Lana Harding,a 23 year old rural school teacher in PonderaCounty,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 milesfrom the teacherage on Monday, January 21, at about 5:00 p.m. Defendant had recentlymoved 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 1948black Dodge pickup, recognizable to most inhabitantsof the area because it had belonged to one local owner for a long period of time. On January 21 defendanthad worked on the pickup after work. Hewas 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 ]hispickup. 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 Pearsonpulled 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 drillwhere Lana's body was found the following day. Her body was found clothed only in a shirt sweater and bra. Itwas draped over the tongue of a grain drill. She had been severely beaten about the head and body. The forensic pathologistwho examined the body testified the death blow had been delivered to the head and laid open the right side. A rope was tied around her neck; therewas evidence she had been strangled; however pressure had been released so shedid not die of strangulation. A coil of wire was entangled in her hair, later shownto 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 itemswere found: (1)A pair of glovesworn by defendant atwork were found in a field not far fromwhere the body was discoveredwith human blood on them, (2) overshoes with Lana's type blood and brain tissue on them were found about a quarter of amile away,and impressions from the solesmatched the heels of boots later taken from defendant's home; and (3)~ana's purse was found near the place where the overshoeswere 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 assaultbefore the justice of the peace. The county attorney also obtained a warrant for the arrest of defendant and a searchwarrant. Defendantwas thereafter arrested at his home. The black Dodge pickup was seized and impounded and blood was found in the bed of thepickup and on the springs; the back end of the pickup had been recently sprayed with black paint; the spraypaint 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 spraypaint was found in the cab of the pickup and another was later found at defendant's home. The following itemswere 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 exhaustmanifold 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 themanifold. Dr. John Pfaff,who examined the victim's body and themanifold, testified that the manifold could have inflictedthe fatalblow. At the drill sitewhere 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 newvehicle by engaging in sexual intercourse in each newly acquired vehicle. Several days before defendant had remarked that he had had intercoursewith country school teachers; and that they were naive,he could teach them, and they

were easy to get. Subsequentlydefendant 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 deliberatehomicide by means of torture and aggravated kidnapping. Judgmentwas 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 aspossible 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, includingbut 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 searchwarrants 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'smotions for a protective order and the constitutionality of Montana statutesrelating thereto. 7. Denying defendant the right to voir dire the jury

on legal conceptsrelating to defendant's mental state. 8. Permitting the State to endorse 58 additionalwitnesses on the amended Information on the first day of trial. 9. Failure of the State to timely furnishdefendant with statements of its witnesses. 10. Improperly admitting in evidence numerous State's exhibits and denying admission in evidence certainproposed exhibits of defendant's. 11. Improperly instructing the jury. 12, Improper juryverdict forms. 13. Permitting audience recording of the State's closing argument to the jury. 14. Undue interference and partisan attitudeby the trial courtpreventing an orderly and proper presentation of the case. 15. Insufficiencyof 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 thedeath sentence. 18. On remand from theUnited States Supreme Court, the issue of whether the trial court's instructions improperly shiftedthe burden of proof of defendant's state of mind, an essential element of the crimes of which he was convicted, onto the defendant inviolation of due process under the federaland 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 searchwarrants were not issued on probable cause in violation of United States and Montana constitutional requirements; that the facts supporting probable cause were notmade 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 therewas

no probable cause for the arrest or searchwarrant. This Court in State ex rel. Garris

### v. Wilson (1973), 162Mont. 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.'" Farmore was shown here. See: Statev. ~roglia(1971), 157Mont. 22, 482 P.2d 143; Spinelli

### v. United States (1969), 393U.S. 410,

* ,/ 89 S.Ct. 584, 21 L.Ed,2d637. Defendant argues the searchwarrantsmust fall on the basisof 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),168Mont. 357, 543 P.2d 193; and Petition of Gray (1970),155Mont. 510, 473 P.2d 532. We find neither case factually applicable here. Article 11,Section 11, 1972Montana Constitutionprovides: 

### " 

# ..

# .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

"ifhe was sworn." Defendant argues the county attorneymade 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 PeaceWolfe 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 suppresswas held before Judge Robert J. Nelson. Testifying

were Sheriff Hammermeister, his deputy sheriff Jerry Hoover,Justice of the Peace RobertWolfe and County Attorney David H. Nelson. The argumentsof 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 allwitnesses though he did not recall swearing in the county attorney,he considered him

sworn. Deputy sheriff Hoover testified he came into town about4:30 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

scenewith the sheriff and his deputies during the afternoon and justprior 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 firstparagraph or two ismy 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 factshe learned during the investigation. Here, unlike Gray, therewas, 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 thewarrants. 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. Defendantnext attacks the specificity of the search warrant,alleging that under the searchwarrant 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 (1950instead of 1948) appeared, that is of little significance. State ex rel.~lournoyv.Wren (1972),108Ariz. 356, 498 P.2d 444. All parties knew the pickup involved. All that is needed to meet the requirements of specificity is that the officerwith reasonable effort, can ascertain the automobile intended to be searched,and its owner, if possible. Wangrow v. United States (8thCir. 1968), 399 F.2d 106. Defendant cites case authority that some seven criteria

are needed for identificationof 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 itwas 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 "anyother contraband articles" is without merit. The language used comes within the rule of Statev. Quigg

(1970),155Mont. 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 constitutionalityof section 95- 1806(f)

## ,R.C.M. 1947,which states: "Theburden of proving that the search and seizure were unlawful shallbe on the defendant." We find nomerit 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 seizurewere unlawful shallbe 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; Statev. Tritz (1974), 164Mont. 344, 522 P.2d 603. Defendant's next specifisreversibleerror arising out of an alleged "plea bargain", an alleged breach thereof by the State,a refusalby 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 conformitywith 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 defendantwould 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 followingday counselmet with the trial judge,who with some reluctance, agreed to all aspects thereof (exceptthat 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 accordancewith the agreement. As a result, according to defendant, defense counsel agreed to explainwhat problems they foresaw in theprosecution 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 Courtdenied 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 theplea 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 tomeet with the trial judge and defense counsel on December 23 was that the prosecution was unable to travel some 400miles 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 counselbelieved they had imparted to the Statewas 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 isneither contentionnor 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 concerningweaknesses in the State's case or defensepositions in connection therewith

were gratuitous and premature. In any event,a trial is not asporting contest in which the verdict turns on nondisclosure of suchmatters. Discoveryprocedures are designed and operated to remove this element and had been extensively and exhaustively utilized at the time in question. Santobellov. 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 distinguishableon 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 causeby 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 impartialmanner, 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 constitutegrounds for disqualification for cause. Canon 4 of the American Bar Association Canons of Judicial Ethics specificallypermits this: "A Judgemay engage in activities to improve the law, the legal system, and the administrationof justice." The draft of the revision of the Criminal Code by the Commissionwas presented to the legislature for its consideration, approval, rejection ormodification. Nor do we find any ground for disqualificationof the trial judge for cause in his acquisition of information during the plea bargaining process, his drafting of "Preliminary Instructions tothe 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 Statesv. 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 supportdefendant'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 ourselveswith the filing of the third amended Information as it was this Informationonwhich defendantwas ultimately tried. The third amended Information conforms to our opinion and directions in State ex rel. McKenzie v. District Court (1974),165Mont. 54, 525 P.2d 1211. Thus, there isno

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), 165Mont. 382, 528 P.2d 1322; Statev. Keller (1976),170Mont. 372, 553 P.2d1013. 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 thiswas 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 defendantwas 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 diseaseprovisions 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 soughta 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,defendantmaintains the court erred in not holding these provisions unconstitutional. Defendant's constitutional argumentswere previously answered by this Court in State ex rel. Sikouav. District Court (1969), 154Mont. 241, 462 P.2d 897. Defendant'sattack on these statutes losesmuch 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 17which 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 themerits. Theprovisions merely provide for advance notice of the intent to rely on such defense so that the Statemay be prepared to meet this defense. Defendant claims prejudice because he was not allowed to voir dire the jury on the subject ofmental disease or defect. This Court has previously said thatwhere 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. Statev. Olson (1971), 156 Mont. 339, 480 P.2d 822. Here, defendantdid not give any notice. We believe defendantwas properly not allowed to voir dire the jury onmental disease or defect as he did not give any notice of this defense. Defendant also alleges the addition of the names of 58

newwitnesses to the amended Information on the day of trialwas

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. Theprosecution may, any time after arraignment,add to the list the names of any additionalwitnesses, upon a showing of good cause. The list shall include the names and addresses of the witnesses." The Revised Commission Comment on this sectionpoints 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 sectionpermits the defendant to get a list at any time,probably after arraign-ment and before trial. Many times the state does not knowbefore it files the indictment or information all the witnesses itmay 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 isnecessary 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 interestof justice." In Statev. Campbell (1972), 160Mont. 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 thatwhile defendant objected,he made no effort to ask for a continuance. In Statev. Rozzell (1971),157Mont. 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 defendanthad had a chance to interview all the newwitnesses,but thiswas 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 newwitnesses cautioned: 

### " 

# . .. and in granting thismotion, itmust be understood before any of these witnesses is allowed to testify, the defendantmust be given an opportunity to have his counsel talk with them, examine them

# ..." Thewitnesses 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. Theremainderof 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 courtwas careful to provide defendant with protection against surprise and to ensure that defendant

was able to prepare for the testimony. Defendantwas in no way prejudiced by the addition of these witnesses. Before allowing the addition of the newwitness names, the court examined the county attorney to determine the reason for the additionof each

newwitness and to find out the nature of each of the witness' testimony in the presence of defendant's counsel, so thatdefendant was apprised of the basic nature of the testimony. Defendant contends the State failed to timely furnish him with statements of itswitnesses. 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: "OnMotion 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 thewitnesses to itsmaking. If the defendant has made an oral confession or admission a list of thewitnesses to itsmaking shall be furnished." This sectionby its mandatory language entitles defendant

as a matter of right uponmotion, to statements he made. It requires no showing of good cause. Section 95-1801(d)(1) 

### ,provides: "Uponmotion of either party and upon showing of good cause, the courtmay 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 orprior to the timewhen they are to beoffered in evidence and the courtmay, 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: "Thediscovery 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 causemust be shown. This allowswhat is sometimes referred to as a 'fishingexpedition1--but only where third parties are concerned." Section 95-1801(d)(2)

## ,provides: "Uponmotion of the defendant, within a reasonable time before trial, the courtmay, 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 prosecutionwhich arematerial, relevant and necessary to the preparation of the defendant's case." The Revised Commission Commentdiscussing 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 inmost 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 oneweek 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 thismaterial. These demandswere in the formof letters to the county attorney* Defendant made a number of specific requests and thenmade a general request for 

### "

# . ,

# . copies of any documentary or physical items which youwill rely

on for proof of any fact

# . .." The second letter expressed defense counsel's opinion that the Statewas 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 allwitnesses be turned over to defendant and demanding immediate compliance. Any delay in the prosecution furnishing defendant with thematerial 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 "withina reasonable time before trial",as required under section 95- 1801(d)(2)

## ,the court granted the motion saying: "Beforeawitness takes the stand,other than your foundationwitnesses, that you [theState] are proceeding with now, furnish them [defense counsel] with such copies as youhave 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-chiefwas reasonable. The courtprevented any prejudice by allowing defendant to interview the witnessesprior 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 theAugust requests. Defendant objects to certain photographs which were introduced into evidence as being gruesome and inflammatory orotherwiseprejudicial. The basic rule onphotographic evidence in Montana as stated in Statev. 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., 98Mont. 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, 131Mont. 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) autopsyphotographs 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 evidencewhich 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 implicationof 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. Therewas nointent to excite feelingswith this photograph which was in no way gruesome. Itwas properly admitted. Defendant also objects that certain expert opinionwas allowed to be given prior to the completion of the chain of possession of the evidence upon which this opinionwas 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 subsequentproduction and admission of the evidence which forms the basis of the opinion. 

### isk ken v. Northern Pac. Ry. (1960), 137Mont. 57, 350 P.2d 831;Graham v. Rolandson (1967),150Mont. 270, 435 P.2d 263. The chain of possession of the evidence was later supplied. Thus no errorwas committed. Next defendant complains that a number of his proposed exhibits were refused admission into evidence. Our examination of the record reveals that these exhibitswere 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 determinationwill not be overturned on appeal unless there is a clear abuse of discretion. State v. Olsen

(1968),152Mont. 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 iswithout merit. Defendant contends the extensive preliminary instructions given by the courtwere erroneous, that itwas 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 termsused. Montana's criminal code iswritten in clear plain language which serveswell as the basis for instructions to the jury. Therewas no error in incorporating the entire ~nformationinto the preliminary instructions, for it too isbasically 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 inflammatorybut is as neutral as language detailing the charges involved here can be. Examination of the instruction defining reasonable doubt and the burden of proof showproper statements of the law. Defendantasserts that language in the instructionwhich defines the degree of proof necessary as being that which convinces themind "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 suchproof 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 "nomore 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 instructionswere 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 tovary the order of trial set out in section 95-1910,R.C.M. 1947, for good reasons. Thepresent case was built entirely on circumstantial evidence. 

### Some of the counts charged were complex and difficult to understand. For example, the second homicide countwas a felony homicidewhich had as alternative felonies, sexual intercoursewithout 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 alternativeweapons,a rope or a heavy object. It

was for good reason that the judge instructed the jury as to the basic elementsof 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, suchpreliminary instructions might not be necessary and there would not be the required good reasons forvarying the usual order of the trial,but here itwas acceptable to do so. One of thepreliminary 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 suchperson; "(b) or topersuade 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 asmeaning "any perverse, wrong, bad or corrupt inclination

or tendency." Defendantmaintains that this instruction incorrectly defined torture. A number of California cases have adopted a similar definitionof torture. People v. Daugherty (1953), 40 Cal.2d 876, 256 P.2d 911, 917 states: "Murder isperpetrated by torture 'when "the assailant's intent was to cause cruel suffering on the part of the object of the attack, either for thepurpose of revenge,extortion, persuasion, or to satisfy some other untoward propensity." People

### v. Tubby, 34 Cal.2d 72, 77, 207 P.2d 51, 54; Peoplev. Bender, 27 Cal.2d164, 177, 163 P.2d 8.' Peoplev. 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 conflictbetween 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 thevarious purposes out in the alternative is a clearer and more understandable statementof the law. The instructiongiven 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" (instructions29 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 instructionswere not given. This argumentmust fail. Defendant's instructionson 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 formsprovided to the jury did not cover all possible verdicts and that they amount to specialverdicts. Defendant submitted instructionsand verdict forms which covered the offenses of mitigated deliberate homicide and unlawful restraint. It is clear,as stated in Statev. Gray (1968), 152 Mont. 145, 153, 447 P.2d 475, 479: 

### " 

# . . . 'The submissionof a lower offense isjustified 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: Statev. McDonald (1915), 51Mont. 1, 149 P. 279; Statev. 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 offenseswere properly not given. Defendant claims error in that the verdict forms submitted to the jury were specialverdicts. He argues that Montana law does not allow for specific factual findingsby 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 specialverdict. Itdoes not require a fact determination which could be used to undermine the general verdict. Thus, the verdict formswere permissible. Defendant claimsprejudicial 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 argumentviolates no statute. He cites no case law that isviolated. He admits the Canons of Judicial Ethics, which have been adopted by this Court, do not specifically dealwith 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 ofthis Courtwasviolated by the audience's tape recording the argument. As to defendant's argument that itprejudiced 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. Statev. Totterdell (1959), 135Mont. 56, 336 P.2d 696. The defendant must demonstrate prejudice from the record. Statev. Schleining (1965), 146 Mont. 1, 403 P.2d 625. Defendanthas not demonstrated he was prejudiced by the recordingsof the closing argument. His right to a fair trial was neither denied nor invaded. Defendantalleges 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 trialmay 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 sectionmay 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 agentswho were to testify in this case were scheduled to testify in severalother cases in other states and the judgewould not require them to remain for the duration of the trial,nearly three weeks, unless therewas good reason to keep them. The court requested defendantmake an offer of proof to showwhy 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. Thismay well have been true prior to enactment of the liberal discovery procedures in the Code ofCriminal Procedure. In the present case,however, defendant had examined the FBI reports;he had examined the physical evidence; and he had a list of theproposed exhibits that were to be put into evidence. If there was some reason to require the FBI agents to remain, defendantwould 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 aspart of the defendant's case-in-chief, in themiddle 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 thismatter. 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 thismotion 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 soughtpermission 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 suchpermission. Defendant alleges thiswas an abuse of discretion which prejudiced defendant. We are unconvinced the court abused itsdiscretion. Defendant's expert was a witness in his case to whom the exclusionary rule applied. The fact that defendantwanted to use him

as a rebuttalwitness did not except him from the exclusionary rule defendanthad asked the court to invoke. Nor do we see that defendantwas 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 defensehad been suppliedwith, as required by section95-505(5), R.C.M. 1947. The State's witnesses finished at the end of the day and defendant's rebuttalbegan the next day. Therewas time then to inform the defense expert of any additional informationnot in the report made by these experts, and to prepare rebuttal testimony. Under those circumstances, defendantwas not prejudiced. Defendant argues the evidence is insufficient to justify the verdicts rendered againsthim. He specifically argues that the evidence is insufficient to support the verdicts that defendant committed deliberatehomicide by torture and that as

a result of her aggravated kidnapping, Lana Harding died. This borders on the frivolous. In Statev. Fitzpatrick (1973),163 Mont. 220, 226, 516 P.2d 605,this Court set forth its position in determining questions of sufficiencyof the evidence: "Asthis 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 thewitnesses itwishes to believe. If sufficient testimonywas introduced,aswell as exhibits to justify the jury's findings, then its conclusionwill not be disturbed unless it is apparent there was a clearmisunderstanding by the jury or that there was a misrepresentation made to the jury." In this case, the evidence presented to the jury did notmislead them,nor was any of it ever misrepresented to them. The evidence was sufficient to justify the jury's finding that Lana 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, itwill stand. Statev. White (1965), 146 Mont. 226, 405 P.2d 761; State

### v. Stoddard (1966), 147Mont. 402, 412 P.2d 827. Such is the case 

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

a new trial due to insufficiencyof 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 sustaindefendant'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. Sincewe 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 "cumulativeerror" are interrelated. "Harmless error" refers to technical errors,which do not require reversal. State

v. Gallagher (1968), 151Mont. 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), 160Mont. 310, 502 P.2d 58. Having found thatno substantialerrors 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 deathpenalty imposed

as a sentenceby the trial court is unconstitutional under the United States Constitution and the 1972Montana 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 findsno 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 sentencewas imposed by virtue of sections 94-5-105 and 94-5-304,R.C.M. 1947. At the time of the crimes,these statutesread: "94-5-105. SentenceOf 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 aremitigating 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 deliberatehomicide; or "(c) The victim of the deliberate homicide was a peace officer killed while performing his duty; or "(d) The deliberatehomicide 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 ofmore than oneperson."

"94-5-304. SentenceOf Death For Aggravated Kidnapping. "ACourt 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 conductunless there aremitigating circumstances." These sectionswere enacted in 1973,and became effective on January 1, 1974. In 1974, section 94-5-304was 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 isdead as the result of the criminal conduct." This amendment deleted the phrase: "unless there aremitigating circumstances." The amendment had an effective date ofMarch 11, 1974. At the time of the death of Lana Harding, this amendmentwas not in effect. Therefore, our analysis of the constitutionality of these death penalty statuteswill

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 consistentapplication of the sanction. The cumulation of majority opinions in Furman led to considerableconfusion among the several states' legislatures which desired to retain a constitutionally viable death penalty, i.e., a death penalty thatwas being imposed consistently and not arbitrarily. In some jurisdictions Furmanwas read as requiring a strictly mandatory death sentence for certain classes of proven crimes. In other jurisdictions,Furmanwas read as attacking unbridled discretion rather than discretionper se. These statespassed statutes to control the discretion of the sentencing authority. These statutesallowed 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 Courtwas North Carolina's death penalty statute. Itprovided a death sentence for all personsconvicted of first degreemurder. The Supreme Court held the statuteunconstitutional as violative of the Eighth and Fourteenth Amendments. In two later cases, the Supreme Court also held mandatory deathpenalty statutesunconstitutional. Coker

v. Georgia (1977), 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982; Harry Roberts v. Louisiana (1977),431U.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 considerationof whatever mitigating circumstancesmay be relevant to either the particular offender or particular offense. 

# . ." Harry Roberts, 431 U.S. 637. Thedeath penalty statutesunder 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 canwithstand 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 deathpenalty statutes that controlled the discretion of the sentencing authority. Unlike theirmandatory 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: "Furmanmandates 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. Thesestatutes are in the constitutionally permissible ground between unbending mandatory death sentences and unbridled discretion in the imposition of the death penalty. In itsdecisions 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 circumstancebefore a death sentencemay 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 individualdefendant. Third, there must be availableprompt 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 sentencesunder 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 cannotbe imposed unless it is found the kidnapvictim died as a result of the aggravated kidnapping. Such a finding was made in this case by the jury. The second criterion, that mitigating circumstancesbe reviewed at a separate sentencing hearing, is satisfied by two separate statutory provisions: First,both deathpenalty statutes provide that the court "shall"impose a sentence of death "unlessthere are mitigating circumstances". Defendant urges the "unless"clausemay purport to circumscribe the sentencingjudge's authority, but there are no guiding standards nor

sourcesof informationprovided 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 reportprovides the sentencing authoritywith whatever circumstances may exist inmitigation 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 shallbe dealt with in accordance with their individual characteristics, circumstances, needs and potentialities." Thismandates 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 inmitigation of punishment. Prompt judicial review of death sentences isprovided 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 SentenceReview Division is designed to determine the appropriateness of the sentencewith respect tothe individual offender and particular offense. This satisfies the third criteria. Although Montana's statutory scheme isunlike those approved by the United States Supreme Court in Gregg, Proffitt, and Jurek,we see no substantive failureof Montana's statutory scheme to complywith 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 arbitrarinessor caprice,Statev. Coleman (1979), Mont.-I 

### - P.2d 

### , 36 St.Rep. 1134 (decidedJune 20, 1979). Therefore,we hold that the death penalty statutes in question in this case are constitutional under the United States constitutionalrequirements. 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 insanitybeyond a reasonabledoubt. The legislature subsequentlypassed a statute purporting to shift theburden to defendant. The Colorado Supreme Court in Juhan, in a 3-2 decision, held its previous decisionswere interpretations of the due process clause of the Colorado Constitution, and therefore the legislaturewas 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), 160U.S. 469, 16 S.Ct. 353, 40 L.Ed 499. Three Montana cases decided shortly thereafter adopted the Davis rule forMontana. State v. Brooks

(1899), 23 Mont. 146, 57 P. 1038; Statev. Peel (1899), 23 Mont. 358, 59 P. 169; State v. Felker (1903), 27 Mont. 451, 71 P. 668. The Montana Legislature in 1925passed 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. Thepresent 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 defendantmust prove insanity by a preponderance of the evidence. Statev. Vettere (1926),76 Mont. 574, 248 P. 179. Themain thrust of defendant's argument is that the old Montana

cases were of constitutional significanceand 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. Theymerely 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,notedthat Davis "obviously establishesno constitutionaldoctrine, 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 onmental 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'smental 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 ofmental 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 "legalinsanity"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 Statemay allocate to the defendant the burden of proving his legal insanitywithout violating the United States Constitution. Pattersonv. 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 involvingmental diseaseor defect unconstitutionally shifted the burden to defendant to disprove intent, an essential element of the crime charged. In addition to the legal insanity defensewhich, 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 ofmind 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 amental disease or defectwhich, although insufficientto establish legal insanity as a complete defense, made him incapable of forming the criminal intentdefined 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 degreemurder 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),150Mont. 399, 436 P.2d 91. Voluntary manslaughter consisted of any unlawful killing,withoutmalice, upon a sudden quarrel or heat of passion. Section 94-2507(1), R.C.M. 1947. Involuntarymanslaughter, the fourth classificationof 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 criminalnegligence. Section 94-2507(2), R.C.M. 1947. State

v. Souhrada (1949),122Mont. 377, 204 P.2d 792. The diminished capacity defense was traditionally used to show that,due to mental disease or defect, the defendant wasunable 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. 22ALR3d 1228, 1238-43 (1968). Thus,under Montana law in effectwhen section 95-502,R.C.M. 1947,was enacted, evidence of a defendant's mental disease or defectwas admissible to pxove or disprove, for example, that, although a defendant committed an unlawful killing withmalice aforethought, he had not the capacity to form the specific intent--deliberationor premeditation--which was an element of first degreemurder. 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 degreemurder. Malice aforethought and premeditation are no longer elements of the criminalhomicide 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 criminalhomicide 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 deliberatehomicide be committed under the influence of extreme mental or emotional stress forwhich 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 deliberatehomicide require proof bythe State of the identical mental element--purposely or knowingly--therewas no lesser degree of criminal homicide of which defendant could have been convicted upon proof that he

was unable to form themental 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 ofmental disease or defect negating the ability to form a purposeful or knowing intentwas a complete, rather than a partial, defense and as such merged with the insanity defense of section 95-501. We do not agreewith the State that, in this case, the diminished capacity and insanity defenses were necessarily identical. The prescribed mental state of "purposelyor knowingly" applies to each element of the crime of deliberatehomicide. Section 94-2-103(1) and (2), R.C.M. 1947. To be guilty of deliberatehomicide, therefore,onemust 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 insanitywould have completely exonerated defendant from responsibility for his criminal conduct, the diminished capacity defense could be used in a criminalhomicide case to show, for example

# ".



# .. that although defendant knew the nature and quality of the act (the assault

# .. .) and knew that itwas 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 criminalhomicide,might be found guilty of the lesser included offense of aggravated assault. See, Statev. Booth (1977), 30 Or-App.351, 567 P.2d 559, 561-62. Defendant maintains the Statewas required to prove

### " 

# .. . that defendant had, and could have had, a particular state ofmind 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 ProcessClause 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 reWinship (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 ofmental 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. Pattersonv. 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 Statemust prove beyond a reasonable doubt, are therefore causing the death of another human being with the knowledge that you are causing orwith the purpose to cause the death of that human being. A person acts "withknowledge" or "knowingly"

### " 

# ... with respect to the result of conduct described by a statute defining an offense when he is aware that it ishighly 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 defectwhich 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 offensewascommitted. Cf. Mullaney v. Wilbur (1975),421U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508; see, Pattersonv. 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 governmentwould always be under the necessity of adducing affirmative evidence of the sanity of the accused. But a requirementof that characterwould seriously delay and embarrass the enforcement of the laws against crime, and inmost cases be unnecessary. 

# . ." Davisv. United States

(1895),160U.S. 469, 486, 16 S.Ct. 353, 40 L.Ed. 499. The trial court instructed the jury defendantwas 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 circumstancedoes 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 

# . .." Pattersonv. New York, 432U.S. 209, 210. The section 95-502,diminished capacity defense, is an affirmativedefense. 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 defendantmay 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 sectionsdo not define thestandard of proof necessary to establish this affirmativedefense,and neither section 95-502nor section 95-503(b)(2) has been interpreted by this Court. We hold that, to prove a section 95-502defense,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 statewhich is defined by statute as an element of the crimewith which he is charged.Placing on a defendant the burden of proving the diminished capacity defense does not offend 

### " 

# .

# . . 'someprinciple 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 allowdiminished capacity as

an affirmativedefense. See, Statev. Doss (1977),116Ariz. 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 thiswas 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 trialswould 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. (Bracketedmaterial added.) Because psychiatric evaluation as to subtle gradations of mental impairment is highly subjectiveand not within the

common experience of the layman juror, the Statemay 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 (9thCir. 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 capacitywith 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, 365A.2d 88. See,Wahlrich v. Arizona, supra; State v. Doss, supra. Themyriad problems with allowing the introductionof psychiatric testimony to determine criminal responsibility are discussed in Ennis & Litwack, Psychiatry and the Presumption of Expertise: Flipping Coins in the Courtroom, 62Cal. L.Rev. 693, 737 (1974). Despite the potential problems of proof in allowing the diminished capacity affirmativedefense,and despite the fact that a statevery likely is not constitutionallyrequired to even allow diminished capacity as an affirmativedefense,Montana does allow the defense. While the Montana legislaturewas willing to recognize diminished capacity: 

### " 

# .

# . . as an exculpatory

# . . . circumstance affecting the degree of culpability

# . .. it was willing to do so only if the factsmaking out the defense were established by the defendantwith sufficient certainty. The State was itself unwilling to undertake to establish the absence of those facts beyond reasonabledoubt, perhaps fearing that proof would be too difficult and that toomany persons deserving treatment asmurderers would escape that punishment if the evidence need merely raise a reasonable doubt about the defendant's [diminishedcapacity].



# ..." Patterson v. New York, 432 U.S. 207.In this case, the Statemeticulously 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,consistentwith 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 casebeyond 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 defendantguilty of any of the offenses charged, theymust first find that defendant

# ".

.. committed the act or acts charged voluntarily,while having with regard to each element contained in the lawdefining the offense one of the mental states contained in the said definition." (Instruction29.) The court instructed the jury that only if it found beyond a reasonable doubt that defendantdid any of the acts charged against him in the Information should they then consider "whetheror 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 satisfyto establish that he could not form a mental state of "purposely"

or "knowingly"due to mental disease or defect (thediminished capacity defense). It iswell 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 fa3that one instruction, standing alone, is not as full as itmight have been isnot reversible error. Statev. Brooks (1967),150Mont. 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 lawprovided,because the instructions impressed upon the jury that defendanthad 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 ofmind with respect to the offenses charged. "Aperson 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." (Instruction29). 

# ".

.. In order to convict the defendantof the offense charged in any of said counts all of thematerial allegations contained in that particular countmust be proved beyond a reasonable doubt



# .

# . ." (Instruction6). "Reasonable doubt is

# ... that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds ofthe jurors in that condition that they cannot say they feel an abiding conviction to amoral certainty of the truth of the charge." (Instruction 7). The instructionswhich were given to the jury in this

case not only protected defendantwithin 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 reasonabledoubt, rather than by proof by a preponderance of the evidence. We now reviewdefendant's conviction in the light of the decision of the United States SupremeCourt in Sandstromv. Montana (1979),442U.S. 

## , 99 S.Ct. 2450, 61L.Ed.2d 39. The jury instruction in that casewas a naked instruction: "The lawpresumes that a person intends the ordinary consequencesof his voluntary acts." This instructionwas held unconstitutional under the Fourteenth Amendment to the United States Constitution because the jurymight have interpreted it in one of twoways:

(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 interpretationwould have rendered the instruction unconstitutional, defendant's convictionwas 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, forwhether 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 conclusivepresumptions condemned in Sandstrom. The jury was told in instruction 31 that "apresumption is a deduction or reasoning which the law expressly directs a jurymake from proved fact or facts";that "presumptionsexpressly direct you to reason fromproved facts"; and that "the law expressly directs the jury to reason: that

an unlawful act was donewith an unlawful intent and also that a person ispresumed to intend the ordinary consequences of his voluntary act." This instruction concludes "Further,unless you are otherwise instructedwith regard to a particular presumption,all presumptions are rebuttable; that is, theymay be controverted and overcomeby 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 homicidemay 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 PonderaCounty,Montana,voluntarily committed an illegal act on Lana Harding, such as assaulting or injuring her, the law presumes that an unlawful act was donewith an unlawful intent; that is, the law expressly directsyou 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 itmay be controverted and overcomeby 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 lawpresumes that a person intends the ordinary consequencesof his voluntary act" and that this is a rebuttable presumption.~nstruction34 described to the jury themethods 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 "themental 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 deliberatehomicide, 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 conclusivepresumptions that "the lawpresumes that a person intends the ordinary consequencesof 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 confrontedwith rebuttablepresumptions that a person intends the ordinary consequences of his voluntary acts and that an unlawful actwas done with an unlawful intent. A similar rebuttable presumption was found unconstitutional in Mullaney v. Wilbur (1975), 421U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508. The basis of that decision was that suchpresumption shifted the burden from the State to prove each element of the crime onto the defendant.Thus we are squarely facedwith determining whether this federal constitutionalerror constitutesharmless or prejudicial

error. The test of harmless constitutional error is whether the court can declare itsbelief that the error was harmless beyond

a reasonabledoubt. Chapman v. California (1967),386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705. Chapman rejected a rule that all federal constitutionalerrors, 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: theNeed 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 inNeed 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 constitutionalerror to determinewhether itmight 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 infirmitywhere 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 ismerely cumulative

or duplicatesproperly 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 overwhelmingweight of the evidence standard addresses the realitiesof jury trial to a greater degree than the others in the context of the McKenzie case despite criticismof this standard by text writers and legal commentators. Ithas 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 shouldview 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 lopsidedview of the case on appeal and require us to overemphasize jury instructions in relation to the evidence,notwithstanding the dictum in Ulster County Courtv. Allen (1979), 442U.S. 

### , 99 S.Ct. 2213, 60L.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 initialmatter as the Montana Supreme Court had not ruled on this issue. On remand,we granted a new trial to Sandstromon 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 Carpentersv. United States (1947),330 U.S. 395, 67 S.Ct. 775, 91L.Ed. 973. These cases indicate that where there is a jury instruction containing an unconstitutionalpresumption there can be no harmless error and automatic reversal is required. In our view the effect of this holding is ameliorated if not eliminatedby 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 determineharmless or prejudicial error. So viewed Bollenback - & Brotherhood of Carpenterswould 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 exceptionwas 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 defendanthad the capacity to form the requisite intent. No unconstitutional presumptions were given the jury concerning defendants mental capacity. Given thatmental capacity, the question remainswhether defendant in fact had the requisite intentwhen he kidnapped and killed the victim. Here the evidence is undisputed and permits only one rational conclusion. From the beginning therewas no real or genuine question regarding intent in this case. There was uncontroverted and compelling evidence of the viciousmanner inwhich the crimes were committed fromwhich 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 therewas 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 bruiseswere found on the frontpart 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 45minutes 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 exhaustmanifold. There is no other evidence. The evidence on the issue of intent is overwhelming, uncontradicted,and permits but one rational conclusion--thatdefendantpurposely 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 notwithMont

# . standing. See Statev. Hamilton (1980), P.2d -I 

## -

, 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. Affirmed. 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.