No. 12597 INTHE SUPRIWE COURT OF THE STATE OF MONTANA 1974

THE STATE OF MONTANA, Plaintiff and Respondent,

-vs

# - JAMES MARCUS SHIELDS, Defendant and Appellant.

Appeal from: DistrictCourt 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, AssistantAttorney 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, 191974No. 12596 INTHE 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: ForAppellant: Robert J. Campbell argued, Missoula

## ,Montana ForRespondent: Hon. Robert L. Woodahl, Attorney General, Helena,

Montana Thomas J. Beers, AssistantAttorney General, argued,

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

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

Montana

Submitted: April 23, 1974 ~ecided: 

### JUL 

### 1 9

### 1974 Filed: 

## JuL 

## 19

## 1974Mr. JusticeWesley 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 firstdegree 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 21miles west of the death scenewhile 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

ashostage. 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 automobilewas f3und abandoned at a rest stop at Emmons, Minnesota. At that rest stop, defendantsShields and Rhodes kidnapped one Russell Batton and forced him todrive them south. Defendants were apprehended inMemphis, Tennessee. Atthe time of their apprehension, Shields and Rhodes had the two stolenrevolvers from Mountain Home, Idaho intheir possession. They alsohad thewristwatch, credit cards and other personal property belonging toDon Kalberg. The latent fingerprints of Shields and Rhodes were found inKalberg's automobile atErnrnons, Minnesota. The fivebullets taken from the body of Don Kalberg had been discharged from the .38 S & W stolen in Mountain Home, Idaho and found inthe possession of the two defendants inMemphis. Shields and Rhodes were charged in federal court with kidnapping inrespect totheir abduction of hostage Batton, they plead guiltyand were each sentenced to 10years. Shields and Rhodes had each been convicted of felonies previously; Shields of burglary and Rhodes of manslaughter. The evidence inthiscase is clear, convincing and beyond any doubt of a seriesof crimes and of a vicious, wanton, cold-blooded murder of Don Kalberg. The districtcourt inpronouncing judgment stated: "Court: For the purposes of therecord and before the pronouncement of sentence the court now finds that both defendantswere brought toMontana for trial and under the Interstate Detainer Actby such acttrialmust be had within 120 days orthe Information and charges must be dismissed. The defendants were brought to thiscourt on the 2nd day of March, requested counsel, counsel was appointed. Both defendants requested that they be given a psychiatric examination. The court explained toboth defendants that the 45 days for that examination would be added tothe 120days, therefore making a total timeof 165 days. The trialwas had, a verdict returned and thisisthe 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 capitalpunishment is unconstitutional if that capitalpunishment isbased upon race, religion, wealth, social position, class. Further, that suchpunishment 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 notpermitted to go to the jury. Both defendants are unemployed laborers. Suchknowledgewas not permitted to go to the jury. Both defendantshave normal I. Q.'s. 

### This knowledge

was not permitted to go to the jury. Both defendants were found to have been sane. Defendant Shieldswas 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 defendantshave 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, subsequentto 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 sentenceyou 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 10years. I 

### sentenceyou to 10years for that crime. To thecrime of Robbery I sentence you toLO years for that crime. The sentences are torun consecutively and not concurrently. The County Attorneywillprepare the sentence. When the sentence isprepared the courtwillsign it. Any othermatters tocome before the court?" The appeal isbrought inboth cases by a single counsel, different from the separate trialcounsel. Two issues arepresented forreview. 1. Whether ornot defendants were denied fundamental due process under theMontana orUnited StatesConstitution when the districtcourt denied theirmotion for a mistrial during the voir direexamination of prospective jurors. 2. Whether ornot discretionarydeath sentences imposed pursuant tosection 94-2505, R.C.M. 1947, areunconstitutional under the rule of Furman v. Georgia, 408 U.S. 238, 33 L ed 2d 346, 92 S.Ct. 2726, asthe United States Supreme Court interpreted the Eighth Amendment totheUnited StatesConstitution. As tothe firstissue: appellants contend that a prospectivejuror, Florence Fisher, had previously discussed thecase with the county sheriff and made some remarks during voir dire examination tothe effectthat as a result of the factsgiven to her by the sheriff she was convinced the accused men were guilty. These alleged remarks were made before the entirejury panel and, it iscontended, severely prejudiced the case. An immediate motion formistrial was made atthe suggestion of the trialjudge who denied it and the trial continued. The alleged remarks were not transcribed. But, the transcriptdoes reveal the exchange between Court and counsel out of thepresence of thejury. This exchange shows that the trialjudge carefullyconsidered thematter. In the closed hearing, out of thepresence of thejury, Mrs. Fisher stated she had discussed thecase 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. Fisherwas 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 onvoir 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; Statev. Gallagher, 151Mont. 501, 445 P.2d 45. We find no error on the first issue. The second issue raises squarely under the Eighth and FourteenthAmendments 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: "Everyperson 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 95-2212provided that all sentences "shallbe 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, 120Mont. 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 deathpenalty in Montana as being unconstitutional in violation of the Eighth and FourteenthAmendments. The per curiam decision of the United States Supreme Courtwas entered in three cases, Furmanv. Georgia, Jackson v. Georgia, and Branch v. Texas, allat408 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 asit leaves undisturbed the death sentence imposed, and the cases areremanded for further proceedings." Asrevealed by the previous quoted statement of the trial judge here inpronouncing sentence, the trialjudge interpreted Furman asforbidding the death penalty only where "capitalpunishment isbased upon race, religion, wealth, social position, class" and where the deathpenalty isnot "acceptable to society and 

## * 

## * * is excessive. 'I This view of Furman iserroneous. Furman invalidates death sentences imposed under statutes such asour section 94-2505 not because of race or economic statusbut because of the unfettered discretion lodged inthejudge. We do not intend tofullyanalyze theFurman decision, and themany cases inother jurisdictions. We shallonly briefly discussFurman. Furman holds unconstitutional every death sentence imposed pursuant toa statutory scheme that allows the sentencer discretion whether or not toimpose the death penalty upon conviction. This isplain for several reasons. First, the Furman opinions themselves are explicit on the point. Although the five separateopinions written by themajority differ inscope (forexample, on the question whether theconstitutionalityof mandatory deathpenalties ought tobe decided or reserved), allfivejustices plainly, uncontrovertibly and unmistakably agree that discretionarydeathpenalties areunconstitutional. Second, Furman was explained and applied by a unanimous court inMoore v. Illinois, 408 U.S. 786, 33 L ed 2d 706, 716,92 S.Ct. 2562. InMoore, Mr. Justice Blackmun wrote for nine justiceswhen he concluded that "the Court today has ruled that the imposition of the death penalty under statutes such those of Illinois isviolative 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 recommendedmercy, Johnsonv. 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 sentencewas 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 bindingrecommendationof death, but where a recommendationof 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 sentenceswhenever capital punishment is imposed at the discretion of the sentencer. See e.g., Jackson v. Georgia, supra. Cf. Pennsylvaniav. Brown, 411U.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: "theUnited 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 'crueland unusual punishment' in violation of the Eighth and FourteenthAmendments 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 theAttorney General's position that the Maryland statute could escape the rule of Furman, saying: "Weentertain not the slightest doubt that the imposition of the death sentence under any of the presently existing discretionary statutesof Maryland which authorize,but do not require, that penalty is unconstitutional under Furman as violative of the Eighth and FourteenthAmendments 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 notmandatory. 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); Commonwealthv. Bradley, Pa., 

### 295 A.2d 842 (1972). Adams v. State, Ind., 284 N.E.2d 757 (1972); 

### Statev. Dickerson,Del. (1972); 

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

### v. Warden, Md.App., 295A.2d 820 (Post Conviction) September Term, 1972 (filedOctober 24, 1972). That Furman invalidates 

## - all deathpenalties 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 Furmanwere cases involvingmurders 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 casesdisposed of with or after Furman indicates that the particular circumstances of individual cases or defendants

are relevant to the EighthAmendment 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 onan evidentiary record which demonstrated a pattern of racial or economic or.religiousdiscrimination. In Furman,Mr. Justice Stewart noted that "racialdiscrimination [in the imposition of capitalpunishment] has not been proved1' (408 U.S. at 310)I and pointed out that the courthad rejected "claims under the Due Process and Equal Protection Clauses of the FourteenthAmentment" in McGautha 

### v. California, 402 U.S. 183, 28 L ed 2d 711, 91 S.Ct. 1454 (408U.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 certiorariwas limited in these cases." (408U.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 (BrennanJ. concurring); 408 U.S. at 309-310 (StewartJ. concurring); 408 U.S. at 313 (WhiteJ. concurring); 408 U.S. at 356 (Marshal1J. concurring). Mr. JusticeWhite commented that: 

### " 

## * 

## * * I can do no more than state a conclusion based on 10years 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 isno meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not." This Courtmust follow the law of the land. We have no choice but to declare the judgment of death under section 94-2505R.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 federalprison, 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:

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### .. 'e-

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--,,----,-,--.-ll----------,---dChief Justice

Justices