No. 12596 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1974 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

-vs - 

WALLACE LLOYD RHODES , JR . , 

Defendant and Appellant. 

Appeal from: District Court of the Sixteenth Judicial District, 

Honorable Alfred B. Coate, Judge presiding. 

Counsel of Record : 

For Appellant : 

Robert J. Campbell argued, Missoula , Montana 

For Respondent : 

Hon. Robert L. Woodahl, Attorney General, Helena, 

Montana 

Thomas J. Beers, Assistant Attorney General, argued, 

Helena, Montana 

J. C. Weingartner, Deputy Attorney General, appeared, 

He Lena, Montana 

William F. Meisburger, County Attorney, argued, Forsyth, 

Montana 

Submitted: April 23, 1974 

~ecided: JUL 1 9 1974 

Filed : JuL 19 1974 
No. 12597 

IN THE SUPRIWE COURT OF THE STATE OF MONTANA 

1974 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

-vs - 

JAMES MARCUS SHIELDS, 

Defendant and Appellant. 

Appeal from: District Court of the Sixteenth Judicial District, 

Honorable Alfred B. Coate, Judge presiding. 

Counsel of Record: 

For Appellant : 

Robert J. Campbell argued, Missoula, Montana 

For Respondent : 

Hon. Robert L. Woodahl, Attorney General, Helena, 

Montana 

Thomas J. Beers, Assistant Attorney General, argued, 

Helena, Montana 

J. C. Weingartner, Deputy Attorney General, Helena, 

Montana 

William F. Meisburger, County Attorney, argued, Forsyth, 

Montana 

Submitted: April 23, 1974 

~ecided : ~jU1- 1.9 19Pq 

Filed : Jul, 19 1974 
Mr. Justice Wesley Castles delivered the Opinion of the Court. 

This is an appeal from a judgment entered following a 

jury verdict of guilty of first degree murder, kidnapping and 

robbery. The trial judge imposed a sentence of death on the 

first degree murder count; a sentence of ten years on the kidnapping count; and a sentence of ten years on the robbery count; 

the latter two sentences to run consecutively. The judgment was 

the same for each of the two defendants, Shields and Rhodes, and 

both cases are included in this opinion. 

On September 17, 1972, Donald K. Kalberg, age 48, a 

resident of Hardin, Montana, left his home to drive his son to 

Missoula to attend the University of Montana. He left his son in 

Missoula, but never arrived home. At a lonely highway rest stop 

about 21 miles east of Forsyth, Montana, the body of Don Kalberg 

was found in a pool of blood. He had been shot several times. 

His car, credit cards, and wrist watch were gone. Don Kalberg was 

last seen alive in his car 21 miles west of the death scene while 

purchasing gas in a service station in Forsyth. The two defendants 

were with him in his car at that time. 

The two defendants, Shields and Rhodes, had escaped from 

jail in Mountain Home, Idaho, when they overpowered the sheriff 

at 9:15 a.m. on September 17, 1972, taking with them two revolvers, 

a .38 caliber S & W and a .357 S & W. They also took a police officer 

as hostage. On that same day the two defendants took by force an 

automobile belonging to Edward and Margaret Uffelman of Deyville, 

Oregon. The Uffelman automobile was found abandoned at a rest stop 

at Columbus, Montana. Don Kalberg's route of travel returning from 

Missoula to his home in Hardin would ordinarily have been through 

Columbus, where the Uffelman automobile was found abandoned. 

Don Kalberg's stolen automobile was f3und abandoned at a 

rest stop at Emmons, Minnesota. At that rest stop, defendants 
Shields and Rhodes kidnapped one Russell Batton and forced him 

to drive them south. Defendants were apprehended in Memphis, 

Tennessee. At the time of their apprehension, Shields and Rhodes 

had the two stolen revolvers from Mountain Home, Idaho in their 

possession. They also had the wrist watch, credit cards and other 

personal property belonging to Don Kalberg. The latent fingerprints of Shields and Rhodes were found in Kalberg's automobile 

at Ernrnons, Minnesota. The five bullets taken from the body of 

Don Kalberg had been discharged from the .38 S & W stolen in 

Mountain Home, Idaho and found in the possession of the two def endants in Memphis. 

Shields and Rhodes were charged in federal court with 

kidnapping in respect to their abduction of hostage Batton, they 

plead guilty and were each sentenced to 10 years. 

Shields and Rhodes had each been convicted of felonies 

previously; Shields of burglary and Rhodes of manslaughter. The 

evidence in this case is clear, convincing and beyond any doubt 

of a series of crimes and of a vicious, wanton, cold-blooded murder 

of Don Kalberg. 

The district court in pronouncing judgment stated: 

"Court: For the purposes of the record and before the 

pronouncement of sentence the court now finds that both defendants were brought to Montana for trial and under the Interstate 

Detainer Act by such act trial must be had within 120 days or the 

Information and charges must be dismissed. The defendants were 

brought to this court on the 2nd day of March, requested counsel, 

counsel was appointed. Both defendants requested that they be 

given a psychiatric examination. The court explained to both 

defendants that the 45 days for that examination would be added 

to the 120 days, therefore making a total time of 165 days. The 

trial was had, a verdict returned and this is the 211th day, with 
15 days remaining. The court further finds that at the request 

of the defendants this court excluded certain items of evidence 

in an attempt by the court to keep the jury from being inflamed. 

The jury verdict is guilty on all three counts. The court has 

reviewed U. S. Supreme Court decision of Furman vs. Georgia and 

it appears to the court that any capital punishment is unconstitutional if that capital punishment is based upon race, religion, 

wealth, social position, class. Further, that such punishment 

must be acceptable to society and further the punishment must not 

be excessive. Both defendants this court finds are white. Both 

defendants are Protestant although neither practices his religion. 

Both defendants are destitute, however, knowledge of economics 

ability was not permitted to go to the jury. Both defendants are 

unemployed laborers. Such knowledge was not permitted to go to 

the jury. Both defendants have normal I. Q.'s. This knowledge 

was not permitted to go to the jury. Both defendants were found 

to have been sane. Defendant Shields was twice so found by the 

State of Idaho and the State of Montana. The people of this State 

at an election held on June 6, 1972, overwhelmingly voted for the 

death penalty. Both defendants have been found guilty or have 

entered pleas of guilty to prior criminal charges. Defendant 

Rhodes, involuntary manslaughter, defendant Shields, burglary. 

Both defendants have entered a plea of guilty to the crime of 

Kidnapping, subsequent to the crime herein charged. The defendants will please stand and face the court. To the crime of Murder 

in the First Degree I find you guilty. I find the verdict just. 

I have denied a motion for a new trial. I sentence you to be 

remanded to the custody of the Sheriff and to be executed according to the laws of this State on or before the 13th day of September, 1973. To the crime of Kidnapping the maximum punishment is 

10 years. I sentence you to 10 years for that crime. To the 
crime of Robbery I sentence you to LO years for that crime. The 

sentences are to run consecutively and not concurrently. The 

County Attorney will prepare the sentence. When the sentence 

is prepared the court will sign it. Any other matters to come 

before the court?" 

The appeal is brought in both cases by a single counsel, 

different from the separate trial counsel. Two issues are presented for review. 

1. Whether or not defendants were denied fundamental due 

process under the Montana or United States Constitution when the 

district court denied their motion for a mistrial during the voir 

dire examination of prospective jurors. 

2. Whether or not discretionary death sentences imposed 

pursuant to section 94-2505, R.C.M. 1947, are unconstitutional 

under the rule of Furman v. Georgia, 408 U.S. 238, 33 L ed 2d 346, 

92 S.Ct. 2726, as the United States Supreme Court interpreted the 

Eighth Amendment to the United States Constitution. 

As to the first issue: appellants contend that a prospective juror, Florence Fisher, had previously discussed the case 

with the county sheriff and made some remarks during voir dire 

examination to the effect that as a result of the facts given to 

her by the sheriff she was convinced the accused men were guilty. 

These alleged remarks were made before the entire jury panel and, 

it is contended, severely prejudiced the case. An immediate motion 

for mistrial was made at the suggestion of the trial judge who 

denied it and the trial continued. 

The alleged remarks were not transcribed. But, the transcript does reveal the exchange between Court and counsel out of 

the presence of the jury. This exchange shows that the trial judge 

carefully considered the matter. In the closed hearing, out of 

the presence of the jury, Mrs. Fisher stated she had discussed the 
case with the sheriff at a time prior to when she was a prospective juror in the case. She stated the sheriff showed her 

some photographs and discussed some of the facts concerning the 

crime. Mrs. Fisher was challenged and did not sit on the jury. 

Appellants' counsel goes to some length to reason that a 

small Montana community is susceptible to high emotions and such 

a remark on voir dire would prejudice the entire jury. This is 

not a sufficient showing of prejudice. See State v. Lane, 161 

Mont. 369 , 506 P.2d 446, 30 St. Rep. 229; State v. Gallagher, 

151 Mont. 501, 445 P.2d 45. 

We find no error on the first issue. 

The second issue raises squarely under the Eighth and 

Fourteenth Amendments to the United States Constitution the constitutionality of the death penalty as provided in section 94-2505, 

R.C.M. 1947, which provides in pertinent part: 

"Every person guilty of murder in the first 

degree shall suffer death, or shall, in the 

discretion * * * of the court * * * be imprisoned in the state prison for the term of his natural 

life * * *.I' 

Until January 1, 1968, the jury had sentencing discretion. 

However in 1967, the legislature enacted into law the Criminal 

Procedure Act which in section 95-2212 provided that all sentences 

"shall be imposed exclusively by the judge of the court." 

The language of section 94-2505, R.C.M. 1947, is clearly 

discretional and this Court so held in State v. Palen, 120 Mont. 

434, 186 P.2d 223. 

Appellants contend that the United States Supreme Court 

decision in Furman v. Georgia, 408 U.S. 238, 33 L ed 2d 346, 92 

S.Ct. 2726, invalidates section 94-2505, R.C.M. 1947, as to the 

death penalty in Montana as being unconstitutional in violation of 

the Eighth and Fourteenth Amendments. The per curiam decision of 

the United States Supreme Court was entered in three cases, Furman 
v. Georgia, Jackson v. Georgia, and Branch v. Texas, all at 408 

U.S. 238, 33 L ed 2d 346, 92 S.Ct. 2726, rehearing denied, 409 U.S. 

902, 34 L ed 2d 163, 93 S.Ct. 89, and stated: "The judgment in 

each case is therefore reversed insofar as it leaves undisturbed 

the death sentence imposed, and the cases are remanded for further 

proceedings." 

As revealed by the previous quoted statement of the trial 

judge here in pronouncing sentence, the trial judge interpreted 

Furman as forbidding the death penalty only where "capital punishment is based upon race, religion, wealth, social position, class" 

and where the death penalty is not "acceptable to society and * * * 

is excessive. 'I 

This view of Furman is erroneous. Furman invalidates 

death sentences imposed under statutes such as our section 94-2505 

not because of race or economic status but because of the unfettered 

discretion lodged in the judge. 

We do not intend to fully analyze the Furman decision, and 

the many cases in other jurisdictions. We shall only briefly discuss Furman. 

Furman holds unconstitutional every death sentence imposed 

pursuant to a statutory scheme that allows the sentencer discretion 

whether or not to impose the death penalty upon conviction. This 

is plain for several reasons. 

First, the Furman opinions themselves are explicit on the 

point. Although the five separate opinions written by the majority 

differ in scope (for example, on the question whether the constitutionality of mandatory death penalties ought to be decided or 

reserved), all five justices plainly, uncontrovertibly and unmistakably agree that discretionary death penalties are unconstitutional. 

Second, Furman was explained and applied by a unanimous 

court in Moore v. Illinois, 408 U.S. 786, 33 L ed 2d 706, 716, 
92 S.Ct. 2562. In Moore, Mr. Justice Blackmun wrote for nine 

justices when he concluded that "the Court today has ruled that 

the imposition of the death penalty under statutes such those 

of Illinois is violative of the Eighth and Fourteenth Amendments, * * * 

Furman v. Georgia./ The sentence of death * * * may not now be 

imposed. " 

Third, the Moore opinion merely states explicitly what 

an inspection of the court's June 29, 1972, order list establishes 

beyond peradventure. For the court on that day, simultaneously 

with Furman and upon its authority, summarily vacated death sentences in 117 other capital cases, involving numerous differing 

death penalty statutes from 26 states. The court thus broadly 

overturned the death sentences in each and every case of discretionary capital punishment before it--whether death sentencing was 

dependent upon the discretion of judge or jury, and without regard 

to the form of the statutes conferring such discretion. The court 

vacated death sentences where a defendant had been sentenced to 

death by a jury which had a choice between death and prison confinement. See: Jackson v. Alabama, 408 U.S. 938, 33 L ed 2d 757, 

92 S.Ct. 2866; Morales v. Texas, 408 U.S. 938, 33 L ed 2d 758, 

92 S.Ct. 2868; where the death penalty was mandatory unless the 

jury recommended mercy, Johnson v. Florida, 408 U.S. 939, 33 L ed 2d 

762, 92 S.Ct. 2875; Eaton v. Ohio, 408 U.S. 935, 33 L ed 2d 750, 

92 S.Ct. 2857, where the sentence was life unless the jury recommended 

death, Canaday v. Washington, 408 U.S. 940, 33 L ed 2d 764, 92 S.Ct. 

2878; where the defendant was sentenced to death by a judge following a plea of guilty, Alvarez v. Nebraska, 408 U.S. 937, 33 L ed 2d 

756, 92 S.Ct. 2865; Fesmire v. Oklahoma, 408 U.S. 935, 33 L ed 2d 

749, 92 S.Ct. 2855; the defendant waived jury trial and was tried 

and sentenced by a judge, Delgado v. Connecticut, 408 U.S. 940, 33 

L ed 2d 764, 92 S.Ct. 2879; Miller v. Maryland, 408 U.S. 934, 33 

L ed 2d 747, 92 S.Ct. 2851; where the jury could make a binding 
recommendation of death, but where a recommendation of mercy could 

be overridden by a j'udge, Seeney v. Delaware, 408 U.S. 939, 33 L 

ed 2d 760, 92 S.Ct. 2871; Kelbach v. Utah, 408 U.S. 935, 33 L ed 2d 

751, 92 S.Ct. 2858; and where the jury could make a binding recommendation of mercy, but where a recommendation of death could be 

overridden by a judge, Hurst v. Illinois, 408 U.S. 935, 33 L ed 2d 

749, 92 S.Ct. 2854; Strong v. Maryland, 408 U.S. 939, 33 L ed 2d 

760, 92 S. Ct. 2872; Gilmore v. Maryland, 408 U.S. 940, 33 L ed 2d 

763, 92 S.Ct. 2876. And the court has continued to vacate death 

sentences whenever capital punishment is imposed at the discretion 

of the sentencer. See e.g., Jackson v. Georgia, supra. Cf. 

Pennsylvania v. Brown, 411 U.S. 917, 36 L ed 2d 308, 93 S.Ct. 1547; 

New York v. Fitzpatrick, 42 U.S. L.W. 3291 (Nov. 13, 1973). 

Fourth, both the majority and the minority opinions in 

Furman recognize that the rule of that case overturning discretionary 

capital punishment provisions is not limited to the statutes of the 

26 states that happened to be before the court on June 29, 1972. 

Fifth, the Furman decision has been widely and uniformly 

applied to invalidate death sentences in the lower federal courts, 

state trial courts, and state appellate courts. Every one of these 

federal and state decisions applies Furman without regard to whether 

the death penalty was imposed by a jury, by a judge, or by joint 

action of the two, and without regard to the form of the statutory 

authorization of death-sentencing discretion involved. All of the 

decisions reach basically the same conclusion: "the United States 

Supreme Court in Furman v. Georgia * * * has held that the carrying out of a death penalty imposed at the discretion of the trier 

of facts constitutes 'cruel and unusual punishment' in violation 

of the Eighth and Fourteenth Amendments to the United States Constitution." State v. Leigh, 31 Ohio St. 2d 97, 285 N.E.2d 333, 

334. In Bartholomey v. State, 267 Md. 175, 297 A.2d 696, 701, 
for example, the Court of Appeals of Maryland rejected the Attorney 

General's position that the Maryland statute could escape the rule 

of Furman, saying: 

"We entertain not the slightest doubt that the 

imposition of the death sentence under any of the 

presently existing discretionary statutes of Maryland which authorize, but do not require, that 

penalty is unconstitutional under Furman as violative 

of the Eighth and Fourteenth Amendments to the federal constitution. In other words, we think the 

net result of the holding in Furman is that the death 

penalty is unconstitutional when its imposition is 

not mandatory. See, s., State v. Martineau,N.H., 

293 A.2d 766 (1972); State v. Leigh, 31 Ohio St. 2d 

97, 285 N.E.2d 333 (1972); Commonwealth v. Bradley, 

Pa., 295 A.2d 842 (1972). Adams v. State, Ind., 284 

N.E.2d 757 (1972) ; State v. Dickerson, Del. (1972) ; 

Adderly v. Wainwright, F.R.D. (M.D. Fla. 1972); 

Johnson v. Warden, Md.App., 295 A.2d 820 (Post Conviction) September Term, 1972 (filed October 24, 1972). 

That Furman invalidates - all death penalties imposed 

pursuant to discretionary statutes is so, without , regard to the nature of the offense, the particular 

circumstances under which the crime was committed, 

or the particular procedure followed in imposing the 

death sentence. Indeed, included among the 120 cases 

which the Supreme Court remanded for further proceedings in light of Furman were cases involving murders 

of law enforcement officers (as in Bartholomey), mass 

killings, and aggravated rapes." 

It is true that no Montana cases involving a defendant 

sentenced to death were pending before the Supreme Court of the 

United States at the time of Furman. But the court's disposition 

of cases involving statutes similar to Montana's clearly controls 

the issue of the constitutionality of the death sentences imposed 

upon appellants in this case. 

The trial court theorized that Furman was inapplicable 

to these appellants because they were white, Protestant, and of 

average intelligence. However, nothing in the Furman decision 

or in the cases disposed of with or after Furman indicates that 

the particular circumstances of individual cases or defendants 

are relevant to the Eighth Amendment invalidity of a death sentence imposed under a statute providing for discretionary capital 

punishment. To the contrary, both majority and dissenting justices 

in Furman emphasized that the court's ruling was not premised on 
an evidentiary record which demonstrated a pattern of racial or 

economic or.religious discrimination. In Furman, Mr. Justice 

Stewart noted that "racial discrimination [in the imposition of 

capital punishment] has not been proved1' (408 U.S. at 310) I and 

pointed out that the court had rejected "claims under the Due 

Process and Equal Protection Clauses of the Fourteenth Amentment" 

in McGautha v. California, 402 U.S. 183, 28 L ed 2d 711, 91 S.Ct. 

1454 (408 U.S. at 310 n. 12.) Mr. Chief Justice Burger, dissenting, emphasized that "any equal protection claim is totally 

distinct from the Eighth Amendment question, to which our grant 

of certiorari was limited in these cases." (408 U.S. at 390 n. 

Some of the majority justices did comment upon apparent 

racial discrimination in capital sentencing patterns, but their 

primary emphasis was on the infrequent, arbitrary, and unpredictable nature of discretionary capital punishment. It was the 

freakish rarity of the death penalty, making it "discriminatory" 

when applied to either blacks or whites, rich or poor, that violated Eighth Amendment standards. See 408 U.S. at 251 (Douglas 

J. concurring); 408 U.S. at 293 (Brennan J. concurring); 408 U.S. 

at 309-310 (Stewart J. concurring); 408 U.S. at 313 (White J. 

concurring); 408 U.S. at 356 (Marshal1 J. concurring). Mr. 

Justice White commented that: 

" * * * I can do no more than state a conclusion 

based on 10 years of almost daily exposure to 

the facts and circumstances of hundreds and 

hundreds of federal and state criminal cases 

involving crimes for which death is the authorized penalty. That conclusion * * * is that 

the death penalty is exacted with great infrequency even for the most atrocious crimes and 

that there is no meaningful basis for distinguishing the few cases in which it is imposed from the 

many cases in which it is not." 

This Court must follow the law of the land. We have no 

choice but to declare the judgment of death under section 94-2505 
R.C.M. 1947, unconstitutional and thus the judgment of death 

invalid. The United States Constitution, as the United States 

Supreme Court interpreted it, gives us no latitude. 

Heretofore we quoted the trial judge on the overwhelming 

vote of the people of Montana to retain the death penalty. Subsequently the Legislature enacted into law a mandatory death 

penalty. We emphasize here that this holding does not in any 

way purport to rule on the validity of the new statute, passed 

as Sec. 2, Chapter 262, Laws of 1974 (section 94-5-105, R.C.M. 

1947 as amended). 

The judgments of conviction are affirmed, but the sentences of death are reversed. Because the two defendants are 

now serving time in federal prison, and by authority of section 

95-2404, R.C.M. 1947, this Court modifies the judgments by imposing 

sentences on each of the defendants of imprisonment in the Montana 

State Prison for the term of his natural life. This opinion shall 

constitute such judgments and verified copies shall be filed in 

the district court of Rosebud County. 

I 

" t 

..; Justice 

We concur: 

6.. \ %- I_. .. 'e- . '- & --,,----,-,--.-ll----------,---dChief Justice 

Justices