NO. 13011 INTHE SUPREME COURT OF THE STATE OF MONTANA 1976

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 argued, Cut Bank, Montana Charles L. Jacobsen argued, Conrad, Montana For Respondent: Hon. Robert L. Woodahl, Attorney General, Helena, Montana John F. North, Assistant Attorney General, argued, Helena, Montana Douglas Anderson argued, County Attorney, Conrad, Montana

Submitted: September 

### 3, 1976

-- -'! 7 Decided: 3

## 16 

# -.

-. - Filed: \.Mr. JusticeJohn Conway Harrison delivered the Opinion of the Court. This appeal is from the district court, Cascade County, following a j&ryverdict of guilty to the crimes of deliberate homocide and aggravated kidnapping. Punishment under the codes of Montana for each crime: death. Lana Harding was a 23 year old rural school teacher in Pondera County. On the morning of Tuesday, January 22, 1974, she failed to appear at school. Atthe Pioneer School teacherage, where she lived, thebed was found ina disheveled condition. The sheriff of Pondera County was called and officers were dispatched to the school, arriving there mid-morning. Investigation that day revealed (1) a red tennis shoe belonging toLana 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 Lam's type and Rh factor), and 

### (4) a wristwatch belonging toLana was found in the same area as the blood. Lana Harding was last seen inConrad, some thirteen miles from the teacherage, on Monday, January 

### 21, 1974 atabout 5:00 p.m. Defendant had recently moved into the community and was working for the K & K Wholesale Seed Co. located approximately three miles from the Pioneer School teacherage. Within a day or so before January 

### 21, defendant made arrangements tobuy a 1948 black Dodge pickup, recognizable tomost inhabitants of the area due to the fact it had belonged to one owner for a long period of time. On January 21, 1974, defendant worked on the pickup after work. He was seen leaving the K & K Wholesale Seed Co. atapproximately 6:45 p.m., driving the black pickup and headed towards hisplace of residence, which was not far from the teacherage. The pickup was seen about 7:00 p.m. about a mile from the teacherage. Approximately an hour and twenty minutes later, at about 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 startinghis Dodge pickup. Itwas later determined the pickup was parked on the road where the drag trail ended and where the blood and watch were found on the following day, January 22. Atthe Pearson residence defendant asked directions to his own residence and from there calledhiswife to say he

was coming home. Don Pearson pulled the pickup and got it started and later noted defendant did not drive on tohis place of residence. Shortly thereafter the pickup 

### was seen being driven toward the drill sitewhere the body was later located. On the morning of January 23, Wednesday, the body of Lana Harding was found ata location called the "drill sitef'in the

area of K & K Wholesale Seed Co. The body was clothed only in

a shirt, sweater and bra and itwas draped over the tongue of a grain drill. She had been severely beaten about the head and body. The forensic pathologist who examined the body testified the death blow was one that was delivered to the head and laid open the right side. A rope was tied around her neck and there was evidence she had been strangledwith it but pressure had been released so she did not die of strangulation. Entangled inher hairwas a coil of wire, later shown tohave come from a roll of wire found in theback of the Dodge pickup. In the course of the search for thebody and the investigation of the murder a number of items were found and later received into evidence that were incriminating against defendant:1)A pair of gloves worn by defendant atwork on January 21 and found ina field not far from where the body was discovered, the gloves had human blood on them. 2) Overshoes found about a quarter mile away had type 0 human blood and brain tissue on them, impressions on the soles matched the heels of the boots later taken from defendant's home. 

### 3) Lana Harding's purse was found near where the overshoes

were recovered. As a result of the investigation by the sheriff and his deputies, late on the afternoon of Tuesday, January 22 the county attorney filed a complaint before thejustice of the peace and obtained a warrant for the arrest of defendant and a searchwarrant. Thereafter, defendant was arrested on an assault charge athishome. The Dodge pickup was seized and impounded. Human blood was found in thebed of the pickup and on the springs; the back end of the pickup had been recently sprayed with black paint; the spray paint was identifiedby 

### F.B.I. experts as identical to

a spray paint brand named "Weekend". This brand was not available in the Conrad area. A can of the black spray paint was found in the cab of the pickup and anotherwas later found atdefendant's home. After seizing the truck and taking it to Conrad, several items were found inthe back of the pickup. A coil of wire, later identifiedby 

### F.B.I. experts ashaving been connected to and broken away from the coilof wire found indeceased's hair; and an exhaust manifold that had been painted black. On the manifold was found human blood of the same type and Rh factor as Lana's along with brain and cortical tissue. Dr. John Phaff, whoexamined thebody and themanifold testified themanifold could have inflicted the fatalblow. Atthe drill site, where the body 

### was found, a piece of brass from a water pump was found. The prior owner of the Dodge pickup testified thispiece of brass was in the back of the pickup when defendant took possession of it on January 19, 1974. Several co-workers attheK & K Wholesale Seed Co. testified attrial that defendant on January 21had saidhebroke inevery

new vehicle by engaging in sexual intercourse in the newly acquired vehicle. Several days before he saidhe had intercourse with country school teachers; that they were naive, he could teach them, and they were easy toget. Defendant appeals his conviction of guiltyand presents 25 issues on appeal inan unprecedented brief of over 500 pages accompanied by two volumes of appendixes, plus a 75 page reply brief. Also filedwas an amicus curiaebrief from theNAACP on the death penalty. For thepurpose of clarityand brevity the 25 issues

### willnot necessarily be discussed inorder, some willbe consolidated, but allwillbe considered. The 25 specifications of

error listedby defendant are: 

### 1. The court erred indenying defendant's motion to suppress and inholding section 95-1806(f), R.C.M. 1947, constitutional. 2. The court erred inrefusing togrant defendant's motion towithdraw plea ordefendant's motion toenforce plea. bargaining agreement of December 23, 1974. 3. The court abused 

### its discretion inrequiring defendant toput witnesses on out of order and erred inrefusing defendant's proposed exhibits 1-12, 13A,13B, 14 -23, 24, 24A,25, 25A, 27, 28, 30 and 31.

### 4. The erred in admitting into evidence state's exhibits 

## {I 6

# - 11,whichwere postmortem photographs of the victim's body. 5. The trial court erred in admitting state's exhibit #97, over defendant's objection. 

### 6. The court erred in allowing persons in the audience to record the closing argument of counsel for the state, over objection. 

### 7. The court erred in granting the state's motion to endorse 58 additional witnesses on the amended information on the first day of trial. 

### 8. The court erred in not enforcing its own order requiring the state to furnish defendantwith the statements of its witnesses. 9. The court erred in allowing experts to testify as to results of tests run on items which were subsequently admitted into evidence, and erred in admitting opinion testimony concerning proposed exhibits not yet admitted into evidence. 10. The court erred by refusing to grant defendant's motions to disqualify district judges. 11. The court erred in allowing the state to file its amended informations and denied defendant a speedy trial. 12. The court erred in defining "torture", giving the question of torture to the jury;and defendants rightswere prejudiced by giving Instructions

## {I 23,29 and 54. 13. The court erred in giving preliminary instructions numbered 

### 1 through 28, over objection. 

### 14. The court erred in giving of additional instructions 29 through 54,over objection. The court erred in directing the use of statutory presumptions to supply proof ofmaterial elements of the offenses charged.

### 15. The court erred in submitting to the jury verdict forms not in accordancewith the requirements of the law. 16. The court erred in refusing defendant's proposed instructions. 17. The court erred in denying defendant the right to allow defendant to voir dire onmental disease or defect. 18. The court erred in refusing to allow the defendant's psychiatrist to be present in the courtroomduring the testimony of the state's rebuttalwitnesses. 19. The court erred in denying defendant's "Amended Motion for ProtectiveOrder and OtherAppropriate Relief" and inholding section 95-1803constitutional. 20. The evidence presented at trial does not support the verdicts. 21. The court erred by basing its judgment and sentence upon an erroneous "Findings, Conclusions, Sentence and Order". 22. The court erred by refusing to grant defendant's motion for a new trial. 23. The trial court erred in adopting or demonstrating

a partisan attitude toward defendant, thereby denying him a fair trial. 24. The doctrine of cumulative error constitutes reversible error,by denying defendant a fair trial. 25. 

### The court erred in imposing the sentence of death. At the outset,we consider the contention that the assessment of the death penalty violates the Sixth, Eighth and Fourteenth Amendments to the United States Constitution and the 1972Montana Constitution.While the originalbriefs of the stateand defendant relied on Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L ed 2d 346 (1972) arguments, laterbriefs received by this Court rely on fiveUnited States Supreme Court cases released on July 2, 1976, covering punishment statutes of five states: 1) Gregg v. Georgia, 44 U.S. L.W. 5230; 2) Proffitt v. Florida, 44 U.S.L.W. 5256; 

### 3) Jurek

### v. Texas, 44 U.S.L.W. 5262; 4) Woodson v. North Carolina, 44 U.S.L.W. 5267, and 5) Roberts v. Louisiana, 44 U.S.L.W. 5281. Therefore, we 

### willdiscuss Montana's statutes in light of the holdings inthe five listed United States Supreme Court cases. Following Furman Montana enacted 

### itsnew criminal code of 1973, which revised 

### its capital punishment statutes toprovide a mandatory death sentence for the crimes of "deliberate homocide" and "aggravated kidnapping", unless the trialcourt found "mitigating circumstances". These Montana statuteswere ineffect on January 21, 1974, the date of the kidnap murder of Lana Harding: "94-5-102. Deliberate homicide. (1) Except as provided in section 94-5-103 (1)(a)

## ,criminalhomicide constitutes deliberate homicide if: "(a) it 

### is committed purposely orknowingly; or "(b) it 

### is committed while the offender 

### is engaged inor 

### is an accomplice inthe commission of, or an attempt tocommit, or flight after committing or attempting to commit robbery, sexual intercoursewithout consent, arson, burglary, kidnaping, felonious escape or any other felony which involves the use or threat of physical force orviolence against any individual. "(2) A person convicted of the offense of deliberate homicide shallbe punished by death as provided in section 94-5-105, orby imprisonment in the stateprison for any term not to exceed one hundred (100) years." "94-5-103. Mitigated deliberatehomicide. (1) Criminal homicide constitutesmitigated deliberatehomocide when a homicide which would otherwise be deliberate homicide 

### is committed under the influence of extreme mental or emotional stress for which there 

### is reasonable explanation or excuse. The reasonableness of such explanation or

### or excuse shallbe determined from the viewpoint of a reasonableperson in the actor's situation. "(2) 

### A person convicted of mitigated deliberate homicide shallbe imprisoned in the stateprison for any termnot to exceed forty 

### (40) years." "94-5-104. Negligent homicide. (1) Criminal homicide constitutes negligent homicidewhen it is committed negligently. "(2) 

### A person convicted ofnegligent homicide shall be imprisoned in the stateprison for any termnot to exceed ten (10) years." "94-5-105. Sentence of death for deliberatehomicide. (1) When a defendant is convicted of the offense of deliberate homicide the court shall impose a sentence of death in the following circumstances, unless there are mitigating circumstances: "(a) The deliberate homicidewas committedby a person sewing a sentence of imprisonment in the state prison; or "(b) The defendantwas previously convicted of another deliberate homicide; 

### or "(c) The deliberate homicidewas committed by means of torture; or "(d) The deliberate homicide was committed by a person lying inwait or ambush; or "(e) The deliberate homicidewas committed as a part of a scheme or operationwhich, if completed,would result in the death of more than one person. "(2) Notwithstanding the provisions of subsection (1) and regardless of circumstances,when a defendant is convicted of the offense of deliberate homicide under subsection (1)(a) of section 94-5-102in which the victim was a peace officer killedwhile performing his duty the court shall impose a sentence of death." The provision of section 94-5-304,

### R.C.M. 1947,providing for the "mitigating circumstances" was amended out of the statute by Sec. 1,Ch. 

### 126,Laws of 1974. The amendment became effective March 11, 1974 and was 

# - not in effect at the time of the death of Lana Harding. Under Montana's capital punishment statutes the jury determines whether the defendant is guilty of a crime for which

### the deathpenalty may be imposed, leaving to the trial judge the impositionof the sentence after consideration of "mitigating circumstances"

# . Following the jury's verdict in the instant case, the trial judge ordered and received a presentence investigationreport and thereafter heard defendant's motion formitigation. The sentencing procedure in Title 95,Chapter 22, R.C.M. 1947, requires the individual characteristics of the person convicted be considered. Review of the sentence imposed is provided forby Title 95,Chapter 25,R.C.M. 1947. In the trial court's findings of fact regarding defendant's motion formitigation, the court held: "2. That both of the offenses of which the defendant has been found guilty are of equal gravity and seriousness under the law, both being mandatorily punishable by death,unless there are mitigating circumstances. "3. That there is nothing in the evidence of the case, nor in the presentence investigation,nor in the character, nature, or background of the defendant,nor in any other manner presented to the Court which mitigate his conduct or the sentence required by law.



### "8. That the prognosis for change in and rehabilitation of persons with anti-socialpersonality disorders such as defendant's is so unlikely and minimal as to be practically non-existent. "9. That the defendant must never be allowed to be free in and endanger society again

# **

# * [or]be turned loose to menace society again

# **

# *."

On appeal defendant argues that the death sentencehere imposed violates his constitutional rights because therewas no jury participation of any kind in the determination of the sentence. He cites in support the fiveUnited States Supreme Court cases decided July 2, 1976,heretofore listed,and Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2

### L ed 2d 630;Witherspoonv. Illinois, 391U.S. 510, 88 S.Ct. 1770, 20

### L ed 2d 776;Furmanv. Georgia, supra. 

# - 10

# -

### We turnnow to consideration of the above cited cases in applying them to Montana's statuteswith particular emphasis on the question of whether "jury participation in the sentence" is

a necessity for constitutionality. This Court has long held that the presumption of constitutionality attaches to all statutes coming before this Court. State v. Parker, 161Mont. 394, 506 P.2d 850;State v. Henrich, 162Mont. 114, 509 P.2d 288;Harrison v. City of Missoula, 146 Mont. 420, 407 P.2d 703. The United States Supreme Court inGregg v. 

### Georgia, 

### 44U.S.L.W. 5230, 5234, 5242,held "the punishment of death does not invariably violate the Constitution." It then said, referring to its decision in the early case of Furman:

I I

### In summary, the concerns expressed in Furman that the penalty of death not be imposed in an arbitrary or capricious manner canbe met by a carefullydrafted statute that ensures that the sentencing authority is given adequate information and guidance." Following the Furmandecision Montana revised its capital punishment statutes to be in compliancewith the holding in that case. Considering the three state statutes in the cases upheld by the United States Supreme Court,we find the provisions of the Texas statute come closest to sections 94-5-105and 94-5-303, R.C.M. 1947. Texas, as noted in Jurekv. Texas, 

### 44U.S.L.W. 5262, 5263, 5266,provides for a bifurcated sentencing procedure in which the jury is the sentencing authority and it must answer two (sometimes three) questionswhich in effect go to aggravation: 1. Whether the conduct of defendant that caused the death of the deceasedwas committed deliberately andwith the reasonable expectation that the death of the deceased or another would result; 2. Whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing

### threat to society;and 

### 3. If raisedby the evidence, whether the conduct of the defendant in killing the deceasedwas unreasonable in response to the provocation, if any,by the deceased. The Court in Jurek thenwent on to observe that any law allowing the sentencing authority to consider aggravation only would not meet constitutional standards. 

### It observed that in answering the second question the question of mitigation was presented and held: "We conclude that Texas' capital-sentencing procedures, like those of Georgia and Florida,do not violate the Eighth and FourteenthAmendments. By narrowing its definition of capitalmurder,Texas has essentially said that there must be at least one statutory aggravating circumstance in a first-degreemurder case before a death sentence may evenbe considered. By authorizing the defense to bring before the jury at the separate sentencing hearing whatevermitigating circumstances relating to the individual defendant can be adduced,Texas has ensured that the sentencing jury will have adequate guidance to enable it to perform its sentencing function. By providing prompt judicial review of the jury's decision in a court with statewide jurisdiction,Texas has provided a means to promote the evenhanded, rational, and consistent imposition of, death sentences under law.'I While the Montana statutes do not provide for the jury in the bifurcated sentencingprocedure,we find they are within the Greggand Jurek decisions. Under Montana statutes the sentence of death in the instant casewas rested to a narrowly defined type of murder or kidnapping. The statuteprovided the sentencing judge considermitigating circumstances. Inaddition,appellate judicial review is provided. We note further, in consideringmitigation, that Montana has the Sentence ReviewDivision which reviews all sentences at the request of the defendant. The Sentence Review Division of the Supreme Court is provided forby Chapter 

### 25 of the Code of

### Criminal Procedure and includes sections 95-2501through 95- 2504,R.C.M. 1947. Pursuant to the above this Court activated the SentenceReview Board on December 1, 1967. Since its inception it has been composed of three 

### (3) di~trict court judges and the statuteprovides that no judgemay sit on a case before the Board inwhich he was the sentencing judge. Under the provisions of Montana law a person convicted is immediately made aware of his right to appear before the Board and a schedule is set up for his appearance,with counsel if desired. The Board may affirm, decrease or increase the sentence. Also, Chapter 26, of Montana's Code of Criminal Procedure provides for post-convictionhearing. Section 95-2608,R.C.M. 1947,permits an appeal to this Court by either the petitioner or the state. See: State v. Simtob, 154 Mont. 286, 462 P.2d 873; Statev. Henrich, 162Mont. 114, 509 P.2d 288; Statev. Heyward, 152Conn. 426, 207A.2d 730;Anno. 168A.L.R. 706. Directing our attention to the judicial sentencing, and defendant's argument against it, we find that no prohibitions in any of the five cases appear against judicial sentencing. While the United States Supreme Court speaks to the desirability of a bifurcated jury sentencing, it speaks clearly in Proffitt v. Florida, 

### 44U.S.L.W. 5256, 5259 about judicial sentencing. It held: "The basic difference between the Florida systemand the Georgia system is that in Florida the sentence is determined by the trial judge rather thanby the jury. This Court has pointed out that jury sentencing in a capital case canperform an important societal function, Witherspoonv. Illinois, 391 U.S. 510, 519 n.15, but it has never suggested that jury sentencing is constitutionally required. And it would appear that judicial sentencing should lead, if anything, to even greater consistency in the imposition at the trial court level of capital punishment, since a trial judge is more experienced in

### sentencing than a jury,and, therefore is better able to impose sentences similar to those imposed in analogous cases.I I 

### Footnote 10,appended to the above quote reads: "See ABA Standards Relating to Sentencing Alternatives & 

### Procedures 51.1, Commentary,pp. 43-48;President's Comm'n on Law Enforcement &

### Administration of Justice: The Challenge of Crime in a Free Society,Task Force Report: The Courts 26 (1967). See also 

## -, ante,pp. 32-33. In thewords of the Florida Court, 'a trial judge with experience in the facts of criminality possesses the requisite knowledge to balance the facts of the case against the standard criminal activitywhich can only be developedby involvementwith the trials of numerous defendants.' Statev. Dixon, 283 So.2d, at 

### 8." Here,defendant argues that Article 11, Section 28, 1972 Montana Constitutionno longer expressly authorizes the legislature to provide for the death penalty as did Article 111,Section 24, 1889 Montana Constitution. The failure to reenact the authorizationmight have significancehad not the Constitutional Convention given the people of Montana the option of adopting into the 1972 Constitution language expresslyprohibiting the enactment of the death penalty. Thepeople ofMontana voted for 147,023 and against 77,733,to retain the death penalty. Such a vote, so recently, negates any argument the death penalty violates contemporary standards of decency. Defendant argues that even if a judicial sentence procedure is approved, that JudgeNelson failed to follow the criteria foundnecessary to consider before approving a death sentence. We do not agree. As previously noted, this casewas tried prior to the United States Supreme Court's latest considerations of the death penalty, and therefore before any set pattern of matters that a jury must consider in death cases, here JudgeNelson did, in his findings,consider in general those matters the Supreme Court found necessary.A reading of the findings clearly shows the conduct of the defendant that caused the deathwas done deliberately, with reasonable expectation that death would result. He used a rope around her neck that could have killed the victimhad he not crushed her head with instruments he had in the truck---all done ina sexual attack on the victim. Judge Nelson, prior to sentencing, had a thorough presentence report compiled on defendant which indicated thiswas not his firstencounter with the law. Defendant was a former parolee at the time of the murder having been convicted in 1970 of the crime of aggravated assault on another woman. That woman was found brutallybeaten, clad only ina blouse crawling alongside 

### a road. Defendant received a three year sentence for that crime, was paroled after some sixmonths in the prison, but returned to prison afternumerous parole violations. In 1972 he was again paroled as safe tobe atlarge in society. That parole had expired three months before the present crime. The findings and conclusions found no circumstances thatmitigated defendant's conduct. In addition, Judge Nelson found defendant should never be allowed tobe free inand endanger society again. While there 

### isno specific finding there was no provocation, none was ever alleged. The findings note that the conduct of defendant inkillingLana Harding was unreasonable, and without any mitigating circumstances. While we have referred solely to the holding inJurek v. Texas, 44 

### U.S.L.W. 5262, we callattention to the opinion inGregg

v. Georgia, 

### 44 U.S.L.W. 

### 5230, wherein the United States Supreme Court approved a bifurcated procedure inGeorgia. There the state supreme court approved the death penalty in an armed robbery and

### murder casewhere the trial judge,at the penalty stage, instructed the jury it could recommend either a death or life imprisonment sentence on each count. Further, the jury was free to considermitigating or aggravating circumstances, if any,

as presented by the parties, and that the jury could not impose

a death sentence unless it first found beyond a reasonable doubt

(1) that the murder was committedwhile the offenderwas engaged in the commission of other felonies (i.e. armed robbery); 

### (2) that he committed the murder for the purpose of receiving the victim's money, or (3) that the murder was "outrageously and wantonly vile,horrible and inhuman" in that it "involved the depravity of the mind of the defendant". InGregg the jury found the first and second of these aggravating circumstances and returned a sentence of death. Here, the trial judge found all three (1) that the murder was committed in the commission of a felony; 

### (2) a sexual attack on the victim, and (3) "it was a brutal, conscienceless, torture rape and deliberate killing of a humanbeing." We note too, that this Court looks at the total record during its review to determine whether the sentencewas influenced by passion, prejudice or any other arbitrary factor; whether the evidence supports the finding of a statutoryaggravating circumstance;and,whether the death sentence is excessive or disproportionate to the penalty imposed in similar cases,considering both the crime and the defendant. We affirm,as did the Supreme Courts of Georgia, Florida and Texas in themost recent United States Supreme Court cases. We find no merit to defendant's argument thatArticle 11, Section 22, 

### 1972Montana Constitutionprohibits the death penalty

as cruel and unusual punishment. First, the vote of the people of

### Montana indicated that they did not intend by ratifying the 1972Constitution, that any section thereofwould abolish the deathpenalty. In addition, a majority of the United States Supreme Court inGreggdid not find the impositionof the death penalty to be "cruel and unusual punishment1'. We next discuss defendant's issue on probable cause. This issue is broken down into six sub-issuesby defendant: 1. Was there probable cause for the arrest and search warrant to issue? 2. Were the facts supporting probable causemade under oath or affirmation and reduced to writing? 3. Was the search warrant a general warrant? 

### 4. Was there a consent search or a search incident to arrest?5. Is section 95-1806(f), R.C.M. 1947, constitutional? 6. Was defendant entitled to suppression? We find no merit in defendant's contention therewas no probable cause for the arrest or searchwarrant. This Court in State ex rel. Garris 

### v. Wilson, 162Mont. 256, 511 P.2d 15, considered federal case law and the long standing rule in this jurisdiction on probable cause for arrest and searchwarrants,noting: "IWe reach this decisionby application of the following standards: only a probability of criminal conduct need be shown."I 

### Farmore was shownhere! See: State v. 

### Troglia, 157Mont. 22, 482P.2d 143; Spinelliv. 

### United States, 393 U.S. 410, 89 S.Ct. 

### 584, 21 

### L ed 2d 637. Defendant argues the search warrants must fall on the basis of failure on the part of the county attorney to swear oraffirmand reduce the testimony towriting. He relies on State

ex rel. Townsend v. Dist. Ct., Mont

# . 543 P.2d 193, 32 St.Rep. 1163; and Petition of Gray, 155Mont. 510, 473 P.2d 532. We find neither case factuallyapplicablehere. Article 11, Section 

### 11, 

### 1972Montana Constitution, provides:

'I* 

# * *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." InTownsend nothing was reduced towriting. Here, there 

### is an affidavit signed by the county attorney and made a part of both warrants. At

### a later date, defendant argues thejustice of the peace failed to follow the rituals of the swearing. County Attorney Nelson later testifiedhe asked the Justice of the Peace "if he was sworn." Defendant argues the county attorneymade the affidavit only facts obtained from Jerry Hoover, a deputy sheriff of Pondera County, who had been atthe scene of the crime as part of the investigating team. This 

### isnot a true picture of what took place before Justice of the Peace Wolfe atthe time the county attorney gave the affidavit and obtained thewarrants. On September 30, 1974, a hearing on the defendant's motion to suppress was held before Judge Robert J. Nelson. Testifying

were Sheriff Hammermeister, his deputy, JerryHoover, Justice of the Peace Robert Wolfe and County Attorney David H. Nelson. The arguments of defendant's counsel were directed to the lack of probable cause for the issuance of thewarrants. A summary of the testimony shows Justice of the Peace Wolfe testified he customarily swears allwitnesses though he did not recall swearing inthe county attorney, he considered him sworn.Deputy Hoover testified he came into town about 4:30 p.m. on January 22, 1974, with directions togo to the county attorney's office; that he helped the county attorney prepare the affidavit and he then went before Justice of the Peace Wolfe and gave sworn testimony in support of the issuance of the warrants. County Attorney Nelson testified he had been at the scene with the sheriff and his deputies during the afternoon and just prior tohis coming town to get thewarrants issued. Atthe hearing, he said inanswer to a question of what knowledge he had of the facts: "A. Well, without looking atthe affidavit now ---I think the firstparagraph or two 

### ismy statement as towhat I determined, that she was missing and may have been the victim of foul play but of what naturewe didn't know atthe particular time, and that she resided atthe teacherage." In addition, the county attorney examined Deputy Hoover before the Justice of Peace as to facts he learned during the investigation. Here, unlike Gray there was sworn testimony by the county attorney and deputy sheriff inaddition tothe affidavit and the combination thereof established probable cause. The fact that defendant had been parked atthe roadside near the school the night before had been establishedby the Pearsons, who assisted defendant ingetting the truck moved. It was there that the victim's watch was found ina pool of blood by the investigating officers before going to town toget thewarrants. See: Lindley v. State, 0kl.Cr. (1956), 294 P.2d 851. This, inour opinion 

### is a sufficient showing of probable

cause to issue the warrants. Defendant next attacks the specificity of the search warrant, alleging that under the searchwarrant issued, a blanket seizure resulted. Examination of the warrant indicates thatboth thehouse and the vehicle were tobe searched. Though an error on the vintage of the black Dodge pickup (1950 instead of 1948) appeared, that 

### is of little significance. Stateex rel. Flournoy

v. Wren, 108Ariz. 356, 498 P.2d 444. Allparties knew the pickup involved. Allthat isneeded tomeet the requirements of specificity 

### is that the officerwith reasonable effort, can ascertain the automobile intended tobe searched, and 

### its owner, if possible. Wangrow v. United States, 399 F.2d 106. Defendant cites case authority that some seven criteria areneeded for identification of a motor vehicle--owner, make, model, year, color, motor number and licensenumber. Here the affidavit for the searchwarrant answers five of the seven listed criteria and it was sufficiently specific. Wilkerson v. Commonwealth, 200 Ky. 399, 255 S.W. 76; Hatley v. State, 72 Okla. Cr. 69, 113 P.2d 396. ~efendant's argument that the items seized were not covered by the language "any other contraband articles", 

### iswithout merit. The language used comes within theholding of this Court in State

v. Quigg, 155Mont. 119, 467 P.2d 692. Next we consider the constitutionality of section 95-1806(f), R.C.M. 1947, which states: "The burden of proving that the search and seizurewere unlawful shallbe on the defendant." We find no merit indefendant's contention this subsection is unconstitutional. We note defendant citesno authority forhis position and therefore fails to overcome the presumption of constitutionality. United States v. Keleher, 2 F.2d 934, relied upon by defendant, isnot applicable to the factshere, We note that Montana's statute section 95-1806(f), R.C.M. 1947, is patterned after Chapter 38, 

### 5 114-12(b), Ill. Code of Criminal Procedure, which states inpart:

## "*

# ** The judge shallreceive evidence on any issue of factnecessary to determine themotion and the burden of proving that the search and seizurewere unlawful shallbe on the defendant

# ***.If Here, such a hearing was held by the trialcourt and defendant failed inhis effort. People v. Normant, 25 Ill.App.3d 536, 323 N.E.2d 553; Statev. Tritz, 164Mont. 344, 522 P.2d 603. For the purpose of brevitywe willcombine and discuss defendands specifications of error 10 and 20 together, inview of the fact they are directed atthe alleged partiality of the trialcourt and its failure to grant a new trialdue to insufficiency of the evidence. This was a protracted pretrial case. The casebegan officially inthe districtcourt of the ninthjudicial district, county of Pondera, on January 24, 1974. Some 89 docket entries later, the casewas sent toCascade County on December 4, 1974 on a motion for change of venue. During this period Judge McPhillips presided until September 19, 1974when he was disqualified and Judge Nelson of the eighthjudicial district, Cascade County, assumed jurisdiction. The firstentry in the record of the eighth judicial district 

### isDecember 

### 6, 1974, the last 

### isnumbered 181 and datedDecember 

### 9, 1974. We callattention to this record inview of the attackmade on the partiality of Judge Nelson. Defendant used his only motion for substitution against the original trialjudge and now complains thathe got inthatjudge's place a judge whose "extrajudicial knowledge" made him biased and prejudiced. To this argument we find no merit. Judge R. J. Nelson was and is one of the senior trial judges of this state. He came to thebench in 1957 afteran active career as 

### a trialattorney. He 

### was one of three districtjudges chosen to serve on the legislative authorized committee that completely revised the substantive and procedural criminal law of this state, a task that took some ten years. He has been the seniorjudge inhis district formost of hisjudicial career and serves inone of Montana's busiestjudicial districts. Here, Judge Nelson, of necessity, had tohear and consider many motions and make rulings and the fact thathe did not please defendant does not indicate bias and prejudice against defendant. The presumption 

### is thathis rulings were correct or they would have come to this Court's attention. His membership on the Criminal Law Commission indicates a willingness toperform an affirmative obligation of judicial officers towork for the improvement of the lawandjudicial administration. Hisactivities

come within the Canons of judicial conduct. Defendant next argues Judge Nelson should have disqualified himself inthat he gained extrajudicialknowledge of the case from plea bargaining, citingUnited Statesv. Grinnell Corp., 

### 384 U.S. 563, 86 S.Ct. 1698, 16 L ed 2d 

### 778. That case 

### isnot applicable for toestablish bias orprejudice under theholding of Grinnell thejudge's opinion 

### as to the merits of the case had to come from

some source other than the knowledge obtained from thejudge's participation in the case. Here, whatever knowledge Judge Nelson gained was during the course of this case. We findJudge Nelson correctly construed the law and inthemotions where he ruled against defendant, there 

### isno bias indicated. We have held innumerous cases inweighing the sufficiency of the evidence that the court 

### is not the trierof the fact, the jury 

### is, and following conviction if there is substantial evidenceto support thejudgment the presumption is in favor of the judgment. State

### v. Stoddard, 147Mont. 402, 412 P.2d 827; State

v. White, 146Mont. 226, 405 P.2d 761; Statev. Gleim, 

### 17Mont. 17, 41P. 998. Here there isabundant evidence to support the verdict. Specifications of error 6 and 24 appear tobe a shotgun attempt in defendant's attack on Judge Nelson inhis effort to "cumulate" a record of alleged errors that would lead this Court to reverse and order a new trial. During closing arguments, in what defendant calls a "partisan audience", tape recordings were taken. Defendant objected but Judge Nelson didnothing to stop the recording. Defendant failsto convince this Court, and failed to convince the trialcourt, that such activities on the part of persons in the audience violate any canon of judicial conduct or merit further consideration of the matter by this Court. Defendant's specification of error 24 argues, inhiswords, whether alleged errorwhich might be termed "harmless error" cumulated intoprejudicial error? Defendant alleges the doctrine of cumulative errorwas established inChapman v. California, 386 U.S. 18, 21, 87 S. Ct. 824, 

### 17L ed 2d 705, 709; Krulewitch v. United States, 336 U.S. 440, 69 S.Ct.

# ?, 93 L ed 790; Kotteakos 

### v. United States, 328 

### U.S. 750, 66 S.Ct. 1239, 90 L ed 1557. He also argues the concepts of "harmless error" and "cumulative error" are interrelated and should be applied here. Defendant begins his argument on appeal noting that he has set forth 25 specifications of error, hisbrief 

### is 514 pages in length, with an appendix of some 800 pages. He then states if he had set forth allof the error, the brief would have been absurd. He then admits to "plowing ground" but argues such shouldnot detract from the thesis and legal effect. This argument 

### is without merit forwe findno reversible error. Defendant's specification of error 4 and 5 object to certain photographs which were introduced intoevidence asbeing gruesome and inflammatory or otherwise prejudicial. The basic rule on photographic evidence inMontana as stated in Statev. Campbell, 146Mont. 251, 261, 405 P.2d 978, 

### is:

'I* 

# ** Photographs are admissible for the purpose of explaining and applying the evidence and assisting the court and jury inunderstanding the case. Fulton v. Chouteau County Farmers' Co., 98 Mont. 48, 37 P.2d 1025. When the purpose of an exhibit 

### is to inflame the minds of thejury or excite the feelings rather than - - to enlighten the jury as to any fact, it should be excluded. Statev. Bischert, 131Mont. 152, 308 P.2d 969 

#  'I Here, the photographs inquestion fallinto three categories: 1) photographs of the body taken atthe "drill site"; 2) autopsy photographs taken by the pathologist; and 3) a single photograph of a can of spray paint ina suitcase. In each instance these photographs meet the above test, they were relevant and were useful and necessary in explaining the evidence and assisting the court and jury inunderstanding the

case. (1) The photographs taken atthe sitewhere thebody was found were used by the pathologist to show creases inthe body which were not present after thebody had been moved and which tended to show how long thebody had been atthe site. 

### 2) The autopsy photographs, taken incolor and then printed inblack and white, were used by the pathologist to show the nature of the wounds and explain the evidence which formed the basis of his opinion as to the sizeand configuration of theweapon which was used to inflict thewounds. 3) The photograph of the can of spraypaint inthe suitcasewas used to show the defendant had in his possession a type of paint which was not available in the

area stores. Defendant finds prejudice from this photograph in the implication of flight that could arise from the fact the paint was ina suitcase. Defendant had been incustody for some time prior tothe time these photographs were taken. This alleged prejudice could have been easily explained away incross-examination, and therewas no intent to excite feelings with this photograph which was inno way gruesome. It was properly admitted. Defendant argues in specification of error 2 that therewas

an enforceableplea bargain made and requests that it be specificallyperformed. As the factual basis of this argument defendant alleges counsel for the state and defendant met and concluded that a guiltyplea would be entered todeliberate homicide and aggravated assaultwith a 50 year and 20 year sentence tobe imposed respectively. The next day counsel met with the presiding judge and obtained his approval. A date, about a week later, was set for the entry of the plea of guilty. A few days prior to the day set for entry of the plea, defendant

was informed the dealwas off. The stateagrees with the basic factual description of the events, except that it states it was always 

### its intent toget the reaction of the victim's parents and the sheriff before making any finalagreement and no bargain would be completed without the approval of these parties. This approval was not obtained and defendant was notified the deal

was off. Defendant argues that Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L ed 2d 427, stands for the proposition that plea bargains are enforceable. There a plea had been entered.Santobello 

### isnot applicable, for the fact situation 

### is far different than here. Specification of error 2 

### iswithout merit. Defendant's specifications of error 

### 3, 7, 8 and 9 allege 1) the failure on the part of the court toenforce 

### its order relating to the giving of copies of witness' statements to the fendant, 2) prejudice arising from the addition of 58 new witness' names to the Information on the day of 

### trial, 

### 3) prejudLcia1,interferencewith the order of the presentation of defendant's case, 4) failure inthe chain of possession of evidence and prejudice arising from the presentation of expert opinion prior to the introduction intoevidence of the evidence which was thebasis for that expert opinion. These specifications

are factually interrelated and must be viewed against thebasic policies and the structureof theMontana Code of Criminal Procedure. That code in sections 95-1801(d)(1)

## , (d)(2) and 95-1804(a), R.C.M. 1947, provide thebasic discovery tools. Section 95-1804(a), provides: "On motion of a defendant inany criminal casemade prior to trialthe court shall order the state to furnish the defendant with a copy of any written confession or admission and 

### a list of the witnesses to 

### itsmaking. If the defendant has made an oralconfession oradmission a list of witnesses toitsmaking shallbe furnished.I' This provision by 

### itsmandatory language entitles the defendant

as a matter of right, upon motion, to statements he made. It requires no showing of good cause. Section 95-1801 (d)(l), provides: "Upon motion of eitherparty and upon showing of good cause, the court may issue a subpoena prior to the trial directing any person other than the defendant toproduce books, statements, papers and objectsbefore the court at a timeprior to the trialor prior to the time when they are tobe offered inevidence and the court may, upon their production, permit thebooks, statements, papers orobjects or portions thereof tobe inspected, copied, orphotographed by the parties and their attorneys." The Revised Commission Comment discussing this sectionpoints out: "The discovery allowed under subsection (d) 

### is a two-part mechanism for gathering information. Under paragraph (1) eitherparty may require a third person, other than the defendant, through the use of a subpoena (section 93-1501-3), toproduce certain articles. The only restriction 

### is that good cause must be shown. This allows what 

### is sometimes referred to as a "fishing expedition1'

# --- but only where third parties are concerned.

# ** *" Section 95-1801(d)

### (2)

## ,provides: "Upon motion of the defendant, within a reasonable time before trial, the court may, upon a showing of good cause, ata time and place designated by the court, order the prosecution toproduce prior to trial for inspection, photographing or copying by the defendant, designated books, statements, papers,or objects obtained from the defendant or others by the prosecution which arematerial, relevant and necessary tothe preparation of the defendant's case." The Revised Commission Comment as to this portion of the section states:"The second paragraph permits discoveryby 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 points out that the showing necessary to get access tomaterial inthe hands of the prosecutor 

### is greater than 

### is required toget atmaterial inthe hands of third parties. Against thisbackground, and with the recognition that inmost criminal cases inMontana discovery isconducted on a

more informal basis without resort to the motion and hearing procedures outlined above, this Court finds the allegation of error based on a delay of approximately a week in compliance with the demand made by defendant afterthe trialhad begun, tobe without merit.Defendant claims thathe had made two prior demands upon the county attorney for thismaterial. These demands were in the form of letters to the county attorney. They made 

### a number of specific requests and then made a general request for 

### "*

# ** copies of any documentary orphysical items which you 

### willrely

on for proof of any fact

# ** *.I1 The second letterexpressed the defense counsel's opinion that the statewas not going to provide this information as requested. This letterwas dated August 20, 1974. On January 13, 1975, after trialbegan, defendant filed a demand and motion requesting that allstatements taken by the prosecution from allwitnesses be turned over to defendant demanding immediate compliance. The court granted defendant's motion even it was not made "within a reasonable time before trial'' as required by section 95-1801(d)(2), and stated: "Before 

### a witness takes the stand, other than your foundation witnesses, that you [the state] are proceeding with now, furnish them [defense counsel] with such copies asyou have that arenot your work product as such, and before they [thewitnesses] take the stand, he 

### is going tobe given an opportunity to talkwith each witness, particularly those that have been endorsed just the other day 

# * *.I' (Bracketed material added). The time it took for the state togather, sort, and copy the requested material during the presentation of the state's

case inchief was reasonable. The court prevented any prejudice by allowing defendant to interview thewitnesses prior to their taking the stand. Wenote that the statecomplied with the specific requests made by defendant intheAugust letters, and that the reports received from the F.B.I. and the autopsy report were forwarded to the defendant soon after they were received and months prior to theAugust requests.

### Defendant also alleges the addition of the names of 58

newwitnesses to the Information on the day trial beganwas

error. The pertinent section of the Code of Criminal Procedure is section 95-1803(a) (I), 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 filewith the clerk of the court at the time of arraignment, a list of the witnesses intended to be calledby the prosecution. The prosecution may, any time after arraignment,add to the list the names of any additional witnesses, upon a showing of good cause. The list shall include the names and addresses of the witnesses.I1 

### The Revised CommissionComment on this sectionpoints out: "Section 95-1503 (d) of Chapter 15 requires the state to endorse the names of the witnesses for the state on the indictment or information. Themotion under this sectionpermits the defendant to get a list at any time,probably after arraignment and before trial. 

# i an^^times the state does not knowbefore it files the indictment or information all the witnesses it may call. "Further, this provision allows the addition of names not only prior to trial, but after the trialhas commenced. As the trial progresses, the showingwhich is necessary to establish 'good cause' should be more stringent. At any time, the judge may allow a continuance (section 95- 1708) it if should appear necessary in the interest of justice." In State

### v. Campbell, 160Mont. 111, 500 P.2d 801, the person whose name was addedwas the victim of the assault and the Court there found no serious claim of surprise and pointed out thatwhile defendant objectedhe made no effort to ask for a continuance, In State v. Rozzell, 157Mont. 443,486 P.2d 877, the district court judge recognized therewas the possibility thewitnesses that were added would surprise the defendant and offered to continue the trial until the defendant had had a chance to interviewall the new witnesses,but this was refused.These cases clearly indicate that the proper procedure where surprise 

### is claimed from the addition of the new witness

names 

### is toask 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 the defense but never requested 

### a continuance. The district court in granting the state's request for the addition of the new witness

names cautioned: 

# "*

# ** and ingranting this motion, it must be understood before any of these witnesses 

### is allowed to testify, the defendant must be given an opportunity tohave his counsel talkwith them, examine them

# **

# *." The witnesses added were not prejudicial todefendant. The addition of the names of the F.B.I. agents did not surprise defendant, he knew the content of their testimony from the reports he had received severalmonths earlier. Allof the rest of the additionalwitnesses who were actually called to testifywere employees of Wright Chevrolet. These persons' testimony was a part of the chain of possession of the evidence seized from the truck. The remainder of thewitnesses whose

names were added but who were not called to testify, were named because they could, ifneed be, corroborate the testimony of the already listedwitnesses, lay further foundation, or testify about theweather and temperature inthe area on the dates in question. In itsorder, the court was carefultoprovide defendant with the protection against surprise and to ensure the defendant

was able toprepare for the testimony. Defendant was inno way prejudiced by the addition of thesewitnesses. Before allowing the addition of the new witness names the court examined the county attorney to determine the reason for theaddition of each new witness and to find out the nature of each of the witness' testimony in the presence of defendant's counsel,

so that defendant was apprised of the basic nature of the testimony. Defendant alleges errorbecause he had tomake an outof-order presentation of his case-in-chief during the state's case-in-chief.There isno question that the usual order of trialmay be departed from in the proper case. Section 95-1911, R.C.M. 1947, states: "When the stateof the pleading requires it, or in any other case, for good reasons, and inthe discretion of the court, the order prescribed inthe last sectionmay be departed from." We note that the artfulphrase "good cause" isnot used, rather theremust be "good reasons" for the departure of the usual order of the trial. Defendant's difficulty arose from the fact the F.B.I. agents who were totestify in this casewere scheduled to testify in several other cases in other states and thejudge would not require them to remain for the duration of the trial, nearly threeweeks, unless there was good reason tokeep them. The court requested defendant make an offer of proof to show why these persons should not be relased from their subpoenas after defendant opened his case-in-chief and examined them during the state's case-in-chief. Defendant argued that no reasonable offer of proof could be made until the completion of the state's casein-chief. This may wellhave been true prior to enactment of the liberal discovery procedures inthe Code of Criminal Procedure. In the present case, however, defendant had examined the 

### F.B.I. reports; he had examined the physical evidence; and he had a 

### list of the proposed exhibits thatwere tobe put into evidence. 

### If there was some reason torequire the F.B.I. agentsto remain defendant would know it atthe time of trial. No showing of such need was made and thejudge ina proper exercise of his discretion and for good reasons allowed the agents to leave after they had testified as part of the defendant's casein-chief, inthe middle of the state's case-in-chief. Defendant alsoobjects that certain expert opinionwas permitted tobe given prior to the completion of the chain of possession of the evidence upon which this opinion was based. This again involves the F.B.I. agents. The judge allowed them to give their opinion as to the evidence they had examined, which had not asyet been admitted inevidence, because therewas a portion of the chain of possession which had not been established. It 

### iswithin the discretion of the court to allow pinion tobe given, conditioned on the subsequent production and admission of the evidence which forms thebasis of the opinion. Risken v. Northern Pac. Ry., 137Mont. 57, 350 P.2d 831; Graham v. Rolandson, 150Mont. 270, 

### 435 P.2d 263, It 

### is clear after a careful examination of the chain of possession of the evidence, that therewas a proper basis for the admission of the evidence in this case. The necessary evidence which served to complete the chain of possession was supplied, thus there

was no prejudice todefendant. Defendant's specifications of error 12, 13, 14, 15, and 16 concern instructions. Defendant objects that the extensive preliminary instructions given by the court were inerror, that it was error to give them prior to the introduction of evidence, that the remaining instructions given after the presentation of evidencewere in error, and the court failed togive thejury verdict forms which covered allpossible verdicts.The preliminary instructionswere the usual instructions given on the role of thejury. Inaddition, includedwere a number of instructionswhich set out the elements of the various crimes of which defendant was accused, and setout statutory definitions of terms used. ~ontana's criminal code 

### iswritten inclear plain language which serveswell as thebasis for instructions tothejury. There was no error in incorporating the entireInformation into thepreliminary instructions, for it too 

### isbasically in statutory language merely inserting the defendant's name and the victim's name inthe proper places and enumerating theweapons used. The language isnot inflammatory but isasneutral

as language detailing the charges involved here canbe. Examination of the instruction defining reasonable doubt and theburden of proof show proper statements of the law. Defendant asserts that language inthe instructionwhich defines the degree of proof necessary 

### as being thatwhich convinces themind "to a moral certainty of the truth of the charge,

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

v. Taylor, 163Mont. 106, 515 P.2d 695. InTaylor, the state's burden was defined using the phrase "only such proof asmay'' which impliedly limitsconsideration of some of the evidence and which could be interpreted tolimittheburden of proof. Here, thenature of the subjectivejudgment tobe made by the jurors isbeing set forth and the language "no more and no less'' merely emphasizes the nature of thejudgment and inno way diminishes it. The Court findsno error to the prejudice of defendant from the fact the extensive preliminary instructionswere given prior to the introduction of evidence inthe 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. The present casewas built entirely on circumstantial evidence. Some of the counts charged were complex and not easy tounderstand. For example, the second homicide count was a felony homicide which had as alternative felonies, sexual intercourse without consent and aggravated assault. The aggravated assault alternativehad

as alternate aggravating factors, serious bodily injury orbodily injurywith 

### a weapon, listing as alternativeweapons 

### a rope or

a heavy object. It was for good reasons that thejudge instructed thejury as to thebasic elements of allthe offenses charged,

so the jury could have some.understanding of the complex circumstantialevidence tobe presented. In a less complex casewhich

was not based only on circumstantial evidence, such preliminary instructions might not be necessary and therewould not be the required good reasons forvarying the usual order of the trial, but here itwas acceptable to do so. Defendant objects that the instruction defining torture incorrectly defines that term. The instruction states: "Whoever purposely assaults another physically for the purpose of inflicting cruel suffering upon the person so assaulted for the particular purpose of enabling the assailant to either: "(a) extort anything from such person; "(b) or to persuade such person against his or her will, or "(c) to satisfy some other untoward propensity of the assailant

# ** *.Ir The term "untoward propensity" is defined in the same instruction

asmeaning "any perverse, wrong, bad or corrupt inclination or tendency."A number of California cases have adopted a similar definition of torture. People v. Daugherty, 40 Cal.2d 876, 256 P.2d 911, 917, states: "Murder 

### is perpetrated by torture 'when "the assailant's intentwas to cause cruel suffering on the part of the object of the attack, either for the purpose of revenge, extortion, persuasion or to satisfy some other untoward propensity." People v. Tubby, 34 Cal.2d 72, 

### 77, 207 P.2d 51,54; People v. Bender, 27 Cal.2d 164, 177, 163 P.2d 8.' People v. Martinez, 38 Cal.2d 556, 561, 241 P. 2d 224, 227." The language of the instruction proposed by defendant 

### is an exact quotation from the opinion of an earlier California case, People



### v. Heslen, 163P.2d 21,27. See: 165 P.2d 250, 

### 27 Cal.2d 520. That case dealt with the sufficiency of the evidence to support a finding of murder by torture and while there 

### isno real conflict between the two instructions, the one given by the court 

### is in the general language which does not comment on the evidence and which breaks the elements down and sets the various purposes out inthe alternative for a clearer and more understandable statement of the law. The instruction given 

### is a proper one and certainly the better of the two proposed instructions. People v. Wiley, (Calif. Oct. 

### 4, 1976) 554 P.2d 881. Defendant objects tothe remaining instructions given after the presentation of evidence. Most of the objections are aimed atthe method of proof of the state of mind element of the charges against the defendant. It isclear that in the usual

case thejuror must rely on hisnormal mental processes to determine if the defendant did an act "purposely orknowingly". Here, the court in an extensive and thorough set of instructions outlined the normal course of the inferences that arise and how they arise and carefully defined the terms used inthese instructions.In this case, based as it was on circumstantial evidence entirely, itwas proper togive these instructions. Defendant argues the verdict forms provided thejury do not cover allthe possible verdicts and that they amount to special verdicts. Defendant submitted instructions and verdict forms which covered the offenses of mitigated deliberate homicide and unlawful restraint. It 

### isclear, as stated inStatev. Gray, 152Mont.

"'The submission of a lower offense 

### isjustified only when the evidence on some basis would support 

### a finding that the defendant 

### is innocent of thehigher offense and guilty of the lower."' See also: Statev. McDonald, 51Mont. 1, 149 P. 279. In this case therewas no such evidence and the instructions

on the lesser offenses were properly not given. The verdicts given thejury were generalverdicts asking fora finding of guilty ornot guilty and requesting thejury tomake the additional finding that the element necessary for the imposition of the death penalty was present. This factual finding does not fallinto the vice of a special verdict because it does not require a fact determination which could be used to undermine thejury determination. Defendant claims errorbecause his instructionswere not given. Careful examination indicates for themost part, the subjectmatter of these instructionswas covered by the court's instructions. ~efendant's instructions on mental state and mental disease and defect misstate the law and the instructions

on the elements of the crimes charged add an element that isnot required.In specifications of error 17 and 19, defendant makes

an extensive attack on theMontana provisions fornotice of mental defect or disease and themental defect or diseaseprovisions inthe Code of Criminal Procedure, sections 95-501 through 509 and section 95-1803(d). These arguments were an-. swered by this Court inStateex rel. Sikora v. District Court, 154Mont. 241, 462 P.2d 897. This general broadside attack loses much of itsforcewhen it 

### is recognized that the United States Supreme Court promulgated and Congress, aftercareful consideration, approved Rule 12.2, Notice of Defense Based on Mental Condition of the Federal Rules of Criminal Procedure which nearly 

### is identical tothe procedure attacked. It shouldbe again emphasized the purpose of the statute is fornotice and toprevent surprise and to eliminate thenecessity for a continuance of a trialwhen the defense 

### is raised. The fact of the notice does not amount to a plea and it could not be used in any way 

### as evidence inthe trialon themerits. The provisions merely provide for advance notice of the intent to rely on such defense so that the statemay prepare. Statev. Olson, 156Mont. 339, 480 P.2d 822, upheld the statutory section that places upon the defendant the burden to prove by a preponderance of the testimony the existence of mental defect ordisease. In the instant case defendant was inno way prejudiced because none of defendant's instructionswere refused based on a court finding that defendant could notmeet this burden. Statev. Bentley, 155Mont. 383, 472 P.2d 864, found the reciprocity required. Indeed, under theMontana procedure in section 95-505(5) that requires 

### a copy of thepsychiatric examinationbe sent to counsel for the defendant, it is impossible tohavea secret rebuttalwitness on this matter. Defendant knows who the state's witnesses are and through the report he knows the content of their testimony aswell. There is no need for fear of self-incrimination during the psychiatric examination, for section 

### 95-509 protects the defendant if incriminatory information isgained during the examination. Defendant refused to give the notice as required by the statute. He claims prejudice because he was not allowed tovoir dire on the subject of mental defect or disease. However, at the time he wished tovoir direhe had not complied with the notice and the issue could not atthat time be presented to thejury. The court was correct inrefusing to allow the voir dire. Defendant alleges errorbecause his expert on mental defect

ordiseasewas not allowed tobe present during the state's presentation of 

### its rebuttal experts on thismatter. Earlier inthe trial, defendant argued for a ruling from the court that rebuttalwitnesses should be excluded from the courtroom during the presentation of the case. The judge ruled against this request. Defendant alleges thiswas an abuse of discretion to the prejudice of defendant. However, the state's witnesses finished atthe end of the day and defendant's rebuttal began the next day. There was time to inform the defense expert of any additional information not in the report made by these experts, which the defense already had, and toprepare the rebuttal testimony. There was no prejudice from this minor inconsistency

on the part of thejudge. The alleged error infiling the fourth Information 

### is without merit. The filing follows the directions set out by thisCourt in State ex rel. McKenzie v. District Court, 165Mont. 54, 525 P.2d 1211, therefore therewas no error inthe Information

or 

### its filing. Defendant was not denied his right to a speedy trial. While it 

### is true that approximately 350 days elapsed between the filing of the charges and thebeginning of trial, 

### mas

a long enough period to shift to the statethe burden of explaining the delay and showing the the absence of prejudice. Fitzpatrick



### v. Crist, 165Mont. 382, 388, 528 P.2d 1322; Statev. Keller, Mont

# . ,=l?.2d 1013, 33 St.Rep. 795,798. The state's explanation for the delay, which included defendant's several appearances in this Court, the difficulties arising from the defendant's refusal toplead, the difficultieswhich arosebecause thiswas the firsthomicide committed under the new Montana Criminal Code and under the new capitalpunishment scheme, 

### is satisfactory to this Court. Much of the time can in fairness be charged toneither party, but it is clear that it aidedboth parties tobetter prepare for the trial, thisbeing a complex circumstantial case. This advantage outweighs any anxiety defendant might have suffered. Defendant asserts error inthe trialcourt's Findings, Conclusion, Sentence and Order. The errors referred to are essentially clerical errors inthe body of that document. A mistaken citation of the subsection letter in section 94-5-105, R.C.M. 1947, which was caused by the amendment which numbered the section isan example. This document isnot inerror in respect tothe factual or legalbasis of any of 

### its findings and this Court finds no prejudice in the clericalerrors.Finding no reversible error, thejudgment 

### is affirmed.

dge, sitting forJusticeGene B.

Mr. Justice Frank I. Haswell concurring: I concur inthe result reached by the majority. However, with respect to the issue of the constitutionality of the death penalty, the majority opinion relies too heavily on tenuous analogy to the statutory schemes of other states analyzed in Gregg v. Georgia, 44 U.S.L.W. 5230; Proffitt v. Florida, 44 U.S.L.W. 5256; and Jurek v. Texas, 44 U.S.L.W. 5262, alldecided July 

### 2, 1976. Inmy view the precise application of Montana statutes to the imposition of the death penalty is left ina dense fog. This concurring opinion attempts todescribe the constitutional application of theMontana statutes. The cumulation of majority opinions inFurman v. Georgia, 408 U.S. 238, 92 Sect.2726, 33 L ed 2d 346 (1972), led to considerable confusion among the several states' legislatures

### which desired to retain a constitutionallyviable death penalty. In some jurisdictionsFurmanwas read as requiring a strictly mandatory death sentence for certain classes of proven crimes. This viewwas laid to rest by the decisions in Roberts v. Louisiana, 

### 44U.S.L.W. 5281, and Woodson v. North Carolina, 

### 44U.S.L.W. 5267, (both decided July 2, 1976), and by this language in Gregg at pp. 5240and 5242,

### 44U.S. L.W.: "Furmanmandates thatwhere discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretionmust be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.

II

### In summary, the concerns expressed in Furman that the penalty of death not be imposed in an arbitrary or capriciousmanner can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance. As a general proposition these concerns are best met by a system that provides for a bifurcated proceeding at which the sentencing authority is apprised of the information relevant to the imposition of sentence and provided with standards to guide its use of the information." (Emphasis supplied). Thus, statutory schemeswhich impose the death penalty in a wholly mandatory orwholly discretionary fashion do not pass constitutionalmuster. 

### Ibelieve the Montana laws effective at the date of the crimes in the instant case are in that constitutionally permissible middle ground between unbending mandatory death sentences and unbridled discretion in the imposition of death sentences. To ensure that death sentences are not "wantonly" or "freakishly" imposed (Furman v. Georgia, 

### 408 U.

### S. 238,310) the United States Supreme Court in its most recent pronouncements on the subject, seems to have established three general criteria which are requisite to a valid death penalty statutory scheme. See e.g., Jurekv. Texas, 

### 44 U.S.L.W. 5262, 5266.

### First, there must be at least one statutory aggravating circumstance before a death sentencemay evenbe considered. Second, the defensemust be afforded the opportunity to bring before the sentencingbody at a separate sentencing hearing any mitigating circumstances relating to the individual defendant. Third, theremust be available prompt judicial review of the sentencing decisionby a court of statewide jurisdiction,providing

a means to promote the evenhanded, rational, and consistent imposition of death sentences under law. The death penalty statutesunder attack in the instant case, sections 94-5-105and-304, 

### R.C.M. 1947,as they existed at the time of the crimes, satisfy the first criterion set forth above. The death sentence cannotbe imposed unless one of six aggravating circumstances is found by the trier of fact to exist. Themajority opinion herein adequately shows that this condition

was found in the instant case. The second criterion, that mitigating circumstances be reviewed at a separate sentencinghearing, is satisfied by two separate statutory provisions: First,both death penalty statutes provide that the court "shall" impose a sentence of death "unless there aremitigating circumstances". Defendant urges that the "unless" clausemay purport to circumscribe the sentencing judge's authority,but that there are no guiding standardsnor sources of information provided for. This argument ignores the second statutory provision relevant here, that is, the presentence investigation and report provisions. Section 95-2203,

### R.C.M. 1947, requires a written presentence investigation report to be delivered to and considered by the sentencing court in felony cases. Section 95-2204,R.C.M. 1947,provides the report shall contain information

### respecting "the characteristics, circumstances,needs,and potentialities of the defendant;his criminal record and social history; the circumstances of the offense;

# *** and the harm to the victim,his immediate family,and the community." The report provides the sentencing authoritywith whatever circumstancesmay exist in mitigation of the defendant's conduct. Reading the two provisions together, the sentencing court is required to considermitigating circumstances,and is required to consider the presentence investigation reportwhichmust contain anymatters relevant to mitigation. In addition, all sentencing courts are directed by section 95-2201,R.C.M. 1947, to perform their sentencing functions "to the end that persons convicted of a crime shall be dealt with in accordancewith their individual characteristics, circumstances, needs and potentialities". This mandates the imposition of sentenceswhich 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 is provided for by appeal to this Court, as well as appeal to the Sentence Review Division. This Court determines the legality of the sentence imposed, Statev. Simtob, 154Mont. 286, 462P.2d 873,while the review division is designed to determine the appropriateness of the sentencewith respect to the individual offender and particular offense. In summary,althoughMontana's statutory scheme is unlike those approvedby the United States Supreme Court in Gregg, Proffitt and 

### Jurek,

### I can see no substantive failure of 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 factswith 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 the crime. In short, 

### Ibelieve that the statutory scheme in existence at the time of the crimes herein, affords defendant the procedural safeguards necessary to protect his substantive right to be sentenced without arbitrariness or caprice.

Justice.Honorable Robert J. Boyd, DistrictJudge, sitting for Justice Wesley Castles, dissenting:

While I concur with much that has been saidby the majority of the Court inaffirming the conviction of the defendant, I must respectfully dissent from themajority in sustaining the lower court inthematter of the admission into evidence of plaintiff's exhibitsnumbered 6 through 11which was specification of error number 4 inthe appellant's brief. Plaintiff's exhibit number 

### 6 was a colored photograph of the victim's body taken atthe place of discovery. Plaintiff's exhibitnumber 7was a colored enlarged close-up of thevictim's face. Plaintiff's exhibit number 8was a black and white autopsy photo of the victim's face. Plaintiff's exhibit number 

### 9 was an eightby ten autopsy photo of the victim's face showing the head partially shaved with gaping wounds. Exhibit number 10was a black and white autopsy photograph showing the shaved skulland gaping wounds. Plaintiff's exhibit number 

### 11was a black and white autopsy photo showing the bloody face of the victimwith brain tissue protruding from the wound. Atthe outset it isnoted that therewas no issue for the jury as to the fact of death or the identity of the victim for thishad been stipulatedby and between counsel. The majority recognizes the requirements laid down inFulton v. Chouteau County Farmers' Co., 98 Mont. 48, 37 P.2d 1025, and Statev. Bischert, 131Mont. 152, 308 P.2d 969, of "relevance" and "necessity", but then completely ignores the testimony of Dr. John Pfaff thathe could render his opinionwithout reference tothephotographs.The photographs were sdmlcredly gruesome and the court

was Chereiore placed into the unenviable position of weighing the probative value of the offered photographs with the affect that the photos were bound tohave on thejury. This is particularly so of exhibits 

### 9 and 10which were taken during the autopsy by Dr. John Pfaff and after the head of the victim had been shaved. These were admitted even though Dr. Pfaff had

"Q. (By Mr. Reagan) Dr. Pfaff, you did conduct this autopsy? A. Yes Sir. Q. And you arehere prepared to testify in this Court to thisjury as to the results of your autopsy? A. Yes.



# . And you are prepared torender certain opinions based upon your expertise, and your autopsy, as to the injuries suffered and the cause of death? A. I am. 'Q. And is it possible for you to so testify and render hose opinions inthis court today without these photographs? A. It 

### is possible for me to, yes 

### sir. Q. And you would be able to do so? A. To the best of my ability. "Q. And you would, without the photographs, be able to cestify and render an opinion as to the type and scope of the injuries and to the probable cause of death? A. 

### L can testify to the best of my ability inanswer to the questions that areput tome.



### 'Q. The point I am trying tomake, you have observed the wounds? A. Yes sir. Q. And based upon your observation of those wounds and other tests conducted by you, you are prepared torender an opinion as to the cause of death? A. I am. 'Q. And to do that, you could do that without the use 

### ~f those photographs? A. I could do thatwithout these photographs. 'MR. REAGAN: Objection to these photographs, not only based upon allof the objections he listed in P6, but further grounds these particular photographs are gruesome and not necessary for the purpose of eliciting the testimony from this particular witness. "'L'HE COURT: Overruled; he may answer. The exhibit may be admitted

# ."It is apparent from the holding of this Court inBischert that if the pictures of a homicide victimmade subsequent todeath

are gruesome or ghastly and carry danger of prejudice, they are inadmissible unless they are relevant to some material issue and wnuld reasonably assist thejury inthe determination of the defendant's guilt, and this relevancy must outweigh the danger that thejury would substitute emotion forreason for a basis of itsverdict. Inthe case atbar, therewas no reason for the introduction of the photos, therewas no issue or controversy as tothe cause of death. Additionally, the photographs taken during the autopsy reveal matters such as the shaved head of thevictimwhich were not thehandy work of the defendant, and could under the circumstances serve no other purpose than toarouse the emotions and passions of thejury. As stated inBischert 

## , 131Mont. 152, 160: "Here, where the pathologist was fully able to explain his findings without the use of the photographs, their purpose could only arouse thehuman feelings of thejury without aiding them in further understanding of the crime charged." I would hold that the trial court abused 

### its discretion in the admission of these photographs and by reason thereof prejudice resulted and a reversal should be had.

Judge, sitting for~ustice Wesley Castles.