,

No. 94-131

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

LESTER KILLS ON TOP,

Petitioner and Appellant,

-vsSTATE OF MONTANA,

Respondent and Respondent.

APPEAL FROM: District Court of the Sixteenth Judicial District,

In and for the County of Custer,

The Honorable Thomas A. Olson, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Richard J. Carstensen, Attorney at Law,

Billings, Montana

Stephanie Ross, Attorney at Law,

Point Roberts, Washington (argued)

For Respondent:

Hon. Joseph P. Mazurek, Attorney General;

Clay R. Smith, Solicitor, Helena, Montana

(argued)

Submitted: May 9, 1995

JUL171995 Decided: July 17, I995

Filed:
Justice W. William Leaphart delivered the Opinion of the Court.

Lester Kills On Top (Appellant) appeals from an order of the

Sixteenth Judicial District Court, Custer County, denying his

petition for postconviction relief and writ of habeas corpus. We

affirm in part, reverse in part, and remand for resentencing.

We restate the issues Appellant raises as follows:

1 . Must Appellant's convictions or sentences be reversed

because the State failed to disclose certain materials under the

commands of Brady v. Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194,

10 L.Ed.2d 215?

2 . Did an abuse of process or outrageous governmental conduct

occur which requires the granting of Appellant's petition?

3 . Did Appellant receive ineffective assistance of counsel

during his trial?

4 . Did Appellant receive ineffective assistance of counsel

during the penalty phase proceedings?

5 . Did Appellant receive ineffective assistance of counsel

during the course of his direct appeal to this Court?

6 . May Montana courts apply a procedural bar to

postconviction claims that could have been raised on direct appeal?

7 . Was Appellant denied the right to a fair trial?

8 . Was Appellant denied the right to a fair and impartial

jury?

9 . Did the prosecutor commit misconduct during Appellant's

trial?

10. Did the State fail to corroborate the testimony of an

2
I accomplice witness?

11. Was Appellant denied the right to confront the witnesses

against him?

12. Were Appellant's rights violated by the presence of armed

officers next to his counsel table during his trial?

13. Were Appellant's rights violated because he was not

convicted by a unanimous jury?

14. Did the jury instruction regarding voluntary intoxication

create a conclusive presumption of guilt?

15. Was the jury instruction regarding inference of criminal

mental state unconstitutional?

16. Does Montana's death penalty scheme unconstitutionally

prohibit the sentencer from considering a single mitigating factor

sufficient to merit leniency?

17. Was Appellant subjected to double jeopardy?

18. Did this Court and the sentencing court misapply the

statutory capital sentencing factors requiring leniency?

19. Did the trial court err in disclosing a psychological

report to the prosecution?

20. Did the District Court err in dismissing Appellant's

habeas corpus petition?

Background

At Appellant's trial, testimony was offered that Appellant,

his brother Vernon Kills On Top, Diane Bull Coming and Doretta Four

Bear encountered John Martin Etchemendy, Jr. sometime after

midnight on October 17, 1987, outside a of bar in Miles City,

3
Montana. One of the group offered Etchemendy a ride from the bar.

The group proceeded south towards Ashland, Montana. Testimony was

given that Appellant and his brother beat Etchemendy severely, that

Etchemendy's wallet and some checks were stolen, and that

Etchemendy was forced to strip and was placed in the trunk of the

car.

When the group arrived in Ashland, they picked up Lavonne

Quiroz, an acquaintance of Vernon Kills On Top. The group

proceeded to Rabbit Town, a community on the Northern Cheyenne

Reservation and stopped there. Four Bear testified that she

escaped from the group in Rabbit Town by running to a friend's

house. The remaining individuals (Appellant, Vernon Kills On Top,

Bull Coming, and Quiroz) drove south toward Gillette, Wyoming with

Etchemendy in the trunk of the car. Testimony was given at trial

that Appellant finally killed Etchemendy and dumped his body in an

abandoned building outside of Gillette. A more complete statement

of the facts regarding the criminal activity in this case may be

found in State v. Kills On Top (19901, 241 Mont. 378, 787 P.Zd 336

(Kills On Top I).

Appellant was tried before a jury and convicted of robbery,

aggravated kidnapping, and deliberate homicide. He received a 40-

year sentence for the robbery conviction and the death penalty for

each of the other two convictions. He appealed his convictions and

sentences to this Court, and they were affirmed in Kills On Tou I.

Appellant filed a petition for postconviction relief and then

filed an amended petition for postconviction relief and a petition

4
for a writ of habeas corpus on January 14, 1991. The District

Court dismissed his petition for a writ of habeas corpus and

granted the State summary judgment on the majority of his other

claims because they could have been raised on direct appeal. The

District Court ordered an evidentiary hearing on Appellant's

remaining claims which were: ineffective assistance of counsel,

outrageous governmental conduct, and failure to disclose Bradv

material. On May 3, 1993, the District Court entered its order

denying Appellant's remaining claims for postconviction relief.

This appeal followed. Additional facts appear in the remainder of

this opinion where necessary.

Issue 1

Must Appellant's convictions or sentences be reversed because

the State failed to disclose certain Bradv materials?

Bradv requires the prosecution to give the criminal defendant

all requested exculpatory information material either to the

defendant's guilt or to punishment. Brady, 373 U.S. at 87. The

prosecution also must deliver to the defendant all evidence

significant for impeachment purposes. United States v. Bagley

(1985), 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 48l.. In order to

require reversal of a defendant's conviction or sentence, the Bradv

violation must relate to material information. Recently in Kyles

v. Whitley (1995), 63 USLW 4303, the United States Supreme Court

reiterated the standard for determining materiality. The Court

held that the defendant must show that there is a reasonable

probability that had the information been provided, the result

5
would have been different or, stated another way, is it a trial

resulting in a "verdict worthy of confidence"? Kvles, 63 USLW at

4308. The Court stated that:

A "reasonable probability" of a different~ result is

accordingly shown when the Government's evidentiary

suppression "undermines confidence in the outcome of

trial." Bacrlev, 473 U.S., at 678.

Kvles, 63 USLW at 4308. The Court also emphasized that the effect

of the suppressed &s&y material must be considered collectively

rather than on an item-by-item basis. w, 63 USLW at 4308.

With these principles in mind, we examine Appellant's Brady error

claims to determine which claims demonstrate that information

should have been provided to Appellant before examining the Bradv

information which should have been provided as a whole to determine

whether Appellant meets the materiality test announced in Baqlev

and reaffirmed in Kales.

A. What information should have been urovided?

1. Diane Bull Comina's raoe alleuation

Appellant ,first claims that the State failed to produce an

allegation made by Diane Bull Coming that she was raped by a jailer

while in custody for charges related to this case. Bull. Coming

agreed to a plea bargain with the State prior to Appellant's trial

and testified for the State in Appellant's trial. Appellant argues

that Bull Coming's rape allegation could have been used to impeach

her by showing witness tampering or intimidation, by showing her

lack of credibility if the accusations were false, or by attacking

her credibility in reference to her plea agreement. The State

argues that it is questionable whether this information would have

6
been admissible at trial and argues that Appellant still fails to

meet the materiality requirement if the information is considered.

The State concedes that evidence tending to show witness bias may

be admissible. This information should have been furnished to the

Appellant pursuant to Bradv and Bacrley. Thus, we will consider it

in our discussion of materiality.

2. Bull Cornins's criminal record

Appellant contends that he should have been provided with

records of Bull Coming's prior convictions for misdemeanor assault,

misdemeanor theft, and other misdemeanors. The State argues that

this information does not meet the materiality requirement. This

information should have been furnished to the Appellant pursuant to

Bradv and Baslev. We will consider it in our discussion of

materiality.

3. Bull Cornins's arior phvsical altercations

Appellant argues that the State should have discovered and

provided him with information regarding Bull Coming's past physical

altercations. However, there has been no indication that the State

possessed such information and insufficient evidence that the State

could or should have obtained this information through a reasonably

diligent inVeStigatiOn. We will not consider this information in

our discussion of materiality.

4. Autonsv ohotosraohs and terminoloqv

Next, Appellant contends that the State failed to provide him

with autopsy photographs of Etchemendy showing his genital area.

Appellant argues that this evidence would be important to support
a defense theory that Bull Coming had castrated Etchemendy.

Appellant also contends that it was Bradv error for the State to

fail to explain what institicial edema, a term used in the autopsy

report, means. Appellant's argument fails since the autopsy report

disclosed that Etchemendy had normal genitalia. The autopsy report

stated that on microscopic examination, Etchemendy had institicial

edema or a swelling in the tubules of the testes. This swelling

would be consistent with an injury to the groin sustained during a

fight or a beating, such as the "fight" between Appellant and

Etchemendy and the beatings administered by Appellant and his

brother. An explanation of institicial edema would not have been

exculpatory. A photograph of Etchemendy's genital area would not

have been exculpatory nor would it have been useful for impeachment

purposes (a photograph would not have shown swelling detected only

upon microscopic examination). W e will not consider this

information in our discussion of materiality.

5. Metal wipe

Appellant argues that the State's introduction of a metal pipe

into evidence falls under a Bradv claim because the pipe should not

have been introduced and if it had not, then the lack of the pipe

would have been exculpatory. Appellant's argument is not properly

raised in a Brady context. Appellant makes no contention that the

State failed to inform him that the pipe would be introduced into

evidence. We will not consider this argument in our discussion of

materiality.
6. Jack Daniels bottle

Quiroz, another individual charged in connection with this

case, testified that she had seen a bottle of Jack Daniels with

blood on it. Appellant claims that the State violated Brady by

failing to introduce this bottle because Bull Coming drank Jack

Daniels. We find this argument unpersuasive as there is no

indication that the State ever found or had possession of this

bottle despite an extensive search for evidence. We wil.1 not

consider this argument in our discussion of materiality.

7. 131111 Coming‘s allesedlv perjured testimony

Appellant contends that the State knowingly relied on, and

emphasized, what he characterizes as Bull Coming's perjured

testimony. This argument is not properly raised in the Bradv

context since, prior to trial, Appellant had access to Bull

Coming‘s statements regarding the crime. We will not consider this

argument in our discussion of materiality.

B. Must Aooellant's convictions be reversed for material Brady

error?

Moving then to a discussion of materiality, we concluded above

that two items merit consideration: the failure to disclose Bull

Coming's rape allegation and the failure to disclose Bull Coming's

criminal history. Appellant could have used Bull Coming's rape

allegation to attempt to cast some doubt on Bull Coming's veracity

or to show her propensity to manipulate others. Appellant could

have used Bull Coming's assault and theft convictions to support

his argument that Bull Coming had a violent nature and was the

9
dominant force in the robbery and in Etchemendy's death.

When viewing this information as a whole, we hold that there

is not a reasonable probability that had this information been

introduced, the outcome (i.e., the verdict) would have been

different. Bull Coming was an important witness for the State, but

she was not alone. Four Bear testified to seeing Appellant and his

brother beat and kick Etchemendy at two different stops. Four Bear

also testified that Etchemendy was stripped and placed in the trunk

of the car. Quiroz testified to seeing Etchemendy in a battered

condition, seeing Appellant washing blood off oft his hands, and

seeing Appellant threaten Etchemendy with a metal pipe. Lorraine

Four Colors testified that Appellant told her that he had killed

Etchemendy and that he and his brother had beaten him. Despite the

State's failure to disclose Bull Coming's rape allegation and prior

criminal record, our confidence in the verdicts is not undermined.

Thus, we affirm the District Court's denial of Appellant's Bradv

claims in regard to his conviction.

C. Must Appellant's sentences be vacated for material Bradv error?

Next, the Bradv information must be analyzed for materiality

in considering the punishment levied. Brady, 373 U.S. at 87.

Focusing on Bull Coming's undisclosed rape allegation and on Bull

Coming's undisclosed criminal record, which included convictions

for misdemeanor assault and theft, we conclude that our confidence

in the sentence is undermined. The undisclosed information

regarding Bull Coming could have been used to support Appellant's

contention that he was manipulated by Bull Coming. Section 46-18-

10
304, MCA, sets forth the mitigating factors to be considered by a

court contemplating the imposition of a death sentence. One

enumerated factor is that the defendant acted under extreme duress

or under the substantial domination of another person. Section 46-

18-304(3), MCA.

We cannot say that it is more likely than not that the

undisclosed information would have changed the sentences imposed in

Appellant's case. However, the appropriate test is whether there

is a reasonable probability that the outcome of the sentencing

hearing (i.e., Appellant's sentences) would have been different.

We hold that there is a reasonable probability that, had Bull

Coming's rape allegation and criminal record been provided to

Appellant, the result of the sentencing proceeding could have been

different. Therefore, we vacate Appellant's sentences imposed for

robbery, aggravated assault, and deliberate homicide and remand to

the trial court for resentencing.

Issue 2

Did an abuse of process or outrageous governmental conduct

occur which requires the granting of Appellant's petition?

Appellant raises several claims of outrageous governmental

conduct or abuse of process which could have been addressed or

remedied at the trial court level. The State argues that since

these claims could have been raised at the trial level or on

appeal, they are barred from consideration in postconviction

proceedings pursuant to 5 46-21-105(2), MCA. However, the District

Court ruled that these claims were not procedurally barred, and the

11
State has not cross-appealed that ruling. Thus, we address the

merits of Appellant's contentions.

In his petition, Appellant alleged that his rights were

violated by outrageous governmental conduct and abuse of process.

He contends that: the State manipulated jurisdiction and witnesses

to ensure the possible application of the death penalty; the

Wyoming State Crime Lab handled the evidence; the State did not

discover a bloody Jack Daniels bottle and introduced a metal pipe

which was not in the same condition at trial as it was when found;

and the State relied on, and emphasized, the "facially invalid"

testimony of Bull Coming.

Appellant argues that the State conspired with Wyoming and

federal officials to ensure that his case would be tried in Montana

where the death penalty could be applied. Appellant was convicted

of robbery, aggravated kidnapping, and deliberate homicide under

the felony murder rule based on the underlying felony of aggravated

kidnapping. In Kills On Tou I, 787 P.2d at 343, we held that the

State of Montana had jurisdiction to try Appellant for the crimes

charged. As long as the State has jurisdiction over the crimes,

the decision to bring charges in state court rather than federal

court or one state's courts rather than another's should be left to

the discretion of the prosecutor. We hold that the decision to

bring charges in Montana does not constitute an abuse of process or

outrageous conduct.

Appellant also argues that the State manipulated witnesses by

allowing Four Bear and Quiroz to be charged in federal court and by

12
plea bargaining with Bull Coming. Four Bear and Quiroz were

substantially less culpable than the other participants and their

prosecution in the federal system was suited to their degree of

culpability. The prosecutor reasonably exercised his discretion in

offering Bull Coming her plea bargain in light of her testimony in

Appellant's trial and Vernon Kills On Top's trial. We hold that

the decisions to prosecute Four Bear, Quiroz, and Bull Coming in

the manner chosen, and to use their testimony, does not amount to

an abuse of process or outrageous governmental conduct.

Appellant next contends that the State relied on the "facially

perjured" testimony of Bull Coming. The United States Supreme

Court has held that introducing and relying on testimony which the

prosecutor knows is perjured requires the reversal of a conviction.

Napue v. Illinois (1959), 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d

1217. In Napue, the defendant was charged with murder in the

shooting death of an off-duty police officer during an attempted

robbery. One of defendant's co-conspirators, who had already been

sentenced to 199 years in prison for his part in the crime,

testified against the defendant. The prosecutor had promised the

co-conspirator that he would attempt to have the co-conspirator's

sentence reduced if he testified against the defendant. During the

trial, the prosecutor asked the co-conspirator if he had received

any promise of consideration from the prosecutor in return for his

testimony. The co-conspirator replied that he had not. Although

the prosecutor knew that this testimony was false, the prosecutor

did nothing to correct it. m, 360 U.S. at 268.

13
In the present case, Bull Coming testified that while in

Wyoming, Appellant beat Etchemendy with a rock, handed her the

rock, and that she then dropped the rock on the spot and returned

to the car. She testified that Appellant then returned to the car.

The rock, however, was later discovered at a Montana residence

where Appellant's brother and Quiroz had stopped after the murder.

Appellant argues that Bull Coming's testimony that she dropped the

rock in Wyoming is therefore perjury on its face. We disagree.

Bull Coming simply testified that she dropped the rock in

Wyoming. She did not attempt to explain what happened to the rock

after she dropped it. We cannot say that her testimony amounts to

perjury on its face. Further, there is no indication that the

prosecution knew that Bull Coming's testimony was false. The

prosecutor's reliance on Bull Coming's testimony is quite different

from the situation involved in Nanue. There is insufficient

evidence to consider Bull Coming's testimony perjurious. Thus, we

hold that the prosecution's use of her testimony regarding the rock

does not amount to outrageous governmental conduct or an abuse of

process.

Appellant further argues that it was an abuse of process or

outrageous governmental conduct for the Wyoming State Crime Lab to

analyze evidence used in Appellant's prosecution in Montana.

Appellant cites no authority, nor does our research reveal any,

which holds that the use of another state's investigative unit

amounts to an abuse of process or outrageous governmental conduct.

Sharing resources in this case was rational. Early in the

14
investigation Wyoming authorities had key physical evidence in

their possession, including Etchemendy's body. For the sake of

continuity, it made sense for the same lab to continue with the

investigation. We hold that the use of the Wyoming State Crime Lab

for Appellant's prosecution in Montana did not constitute an abuse

of process or outrageous governmental conduct.

Appellant next contends that the State failed to find a bloodstained bottle of Jack Daniels and that the State introduced the

metal pipe at trial in a different condition than that in which it

had been found. Appellant produced no evidence that the failure to

find the bottle was an intentional omission on the part of the

State. The State launched an exhaustive search for evidence in

this case; the failure to discover the bottle does not amount to

outrageous conduct or an abuse of process. Further, an officer

testified that when the metal pipe was found, it had some substance

on its surface. When the pipe was examined by the crime lab, an

investigator removed the residue with a swatch in order to test its

content. The residue was determined to be human blood. The

prosecution sufficiently established the chain of evidence

regarding the pipe and satisfactorily explained that the change in

the pipe (absence of the substance) was due to testing performed by

investigators. We hold that in this instance it was not an abuse

of process or outrageous governmental conduct to introduce the pipe

in a condition different than that in which it had been found.

Finally, Appellant raises four other theories under this

issue: that the trial judge failed to disqualify himself, that the

15
courtroom was racially segregated, and that the State failed to

reveal Bull Coming's criminal convictions and rape allegation.

However, Appellant did not raise these theories in his petition for

postconviction relief under his abuse of process/outrageous

governmental conduct claims and did not raise these theories under

his abuse of process/outrageous governmental conduct claims when he

submitted his proposed findings of .fact and conclusions of law to

the District Court. The District Court did not address these

theories in the context of an abuse of process or outrageous

governmental conduct claim. On appeal, an appellant may not change

the bases for his argument. State v. LaPier (1990), 242 Mont. 335,

345-46, 790 P.2d 983, 989. Thus, we will not address Appellant's

new theories under this issue on appeal. We note in passing that

three of these arguments (that the trial judge remained on the

case, the failure to disclose Bull Coming's criminal record and

rape allegation) are discussed under Appellant's Bradv and/or

ineffective assistance of counsel claims.

Issue 3

DidAppellant receive ineffective assistance of counsel during

his trial?

This Court reviews ineffective assistance of counsel claims

using the two prong test set forth in Strickland v. Washington

(1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v.

McLain (1991), 249 Mont. 242, 815 P.2d 147. An appellant must show

that counsel's performance was deficient and that the deficient

performance prejudiced the appellant. McLain, 815 P.2d at 149.

16
To demonstrate that counsel's performance was deficient, an

appellant must show that, considering all the circumstances

involved, counsel's performance fell below an objective standard of

reasonableness. Judicial scrutiny of counsel's actions must be

highly deferential and courts must indulge a strong presumption

that counsel's performance falls within the wide range of

reasonable professional assistance. Strickland, 466 U.S. at 688-

89. To demonstrate prejudice:

[tlhe defendant must show that there is a reasonable

probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been

different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.

Strickland, 466 U.S. at 694. With these standards in mind, we turn

to Appellant's claim that he received ineffective assistance at

trial.

Appellant makes numerous ineffective assistance claims

regarding his counsel's performance during trial. Appellant first

argues that trial counsel was ineffective for referring to

Appellant during closing arguments as "a drunk" and "drunk as a

skunk." However, the testimony introduced clearly indicated that

Appellant had been drinking during the time of the criminal

activity. A t the evidentiary hearing for Appellant's

postconviction claims, his trial counsel testified that he believed

there was substantial evidence regarding Appellant's drinking and

that it would have to be dealt with. Counsel attempted to use this

fact to minimize Appellant's conduct by stating that one of the

"fights" with Etchemendy commenced because both were drunk and

17
"drunks fight." Counsel also attempted to argue that Bull Coming

exploited Appellant's apparently intoxicated condition to

manipulate him to start a fight with Etchemendy so Bull Coming

could steal Etchemendy's wallet. The District Court concluded, and

we agree, that this tactic was consistent with counsel's strategy

to paint Bull Coming as the dominant actor and manipulator of

Appellant. We hold that trial counsel's argument was within the

wide range of reasonable representation.

Appellant further argues that trial counsel's failure to

object to the intoxication instruction amounted to ineffective

assistance of counsel. The trial court gave the following jury

instruction:

A person who is in an intoxicated condition is criminally

responsible for his conduct and an intoxicated condition

is not a defense to any offense and may not be taken into

consideration.in determining the existence of a mental

state which is an element of the offense unless the

defendant proves that he did not know that it was an

intoxicating substance when he consumed, smoked, sniffed,

injected, or otherwise ingested the substance causing the

condition.

Appellant emphasizes that the instruction stated that an

intoxicated person is criminally responsible for his conduct.

Appellant contends that this portion of the instruction mandates

that a jury find a defendant guilty of the charged crime if the

jury finds that the defendant was intoxicated.' This argument is

1 In contrast to our recent decision in State v. Egelhoff

(Cause No. 93-405, July 6, 1995), Appellant does not contend that

the intoxication instruction violated his due process rights by

prohibiting the jury from considering intoxication in determining

the existence of the requisite mental state. Appellant's challenge

to the instruction is limited to the first clause of the first

sentence.

18
without merit. Even if the jury found that Appellant was

intoxicated, under the instructions as a whole, the State still had

to prove each of the elements of the crime in order to establish

criminal responsibility. The intoxication instruction merely

advised the jury that intoxication does not excuse otherwise

criminal conduct.

In addition, the intoxication instruction given at trial comes

directly from § 45-z-203, MCA. Counsel has not cited, nor have we

found, authority holding that counsel's performance is deficient

for failing to object to an instruction directly quoting a statute

in effect at the time of trial. We hold that trial counsel's

performance was not deficient for failing to object to the

intoxication instruction.

Appellant next argues that his trial counsel was ineffective

for failing to object to the prosecutor's closing argument, during

which the prosecutor summarized the State's version of the evidence

by portraying himself as Etchemendy and narrating in the first

person. The Ninth Circuit Court of Appeals has stated that:

[blecause many lawyers refrain from objecting during

opening statement and closing argument, absent egregious

misstatements, the failure to object during closing

argument and opening statement is within the "wide range"

of permissible professional legal conduct.

United States v. Necoechea (9th Cir. 1993), 986 F.2d 1273, 1281

(citation omitted). Here, upon review of the record, it appears

that all material statements contained in the prosecutor's

narration from the standpoint of the victim were supported by

testimonial or other evidence admitted at trial. We hold that

19
Appellant's trial counsel was not deficient in failing to object to

the prosecutor's closing argument.

Appellant contends that his trial counsel was ineffective for

failing to object to the lack of corroborating evidence of Bull

Coming's testimony. Appellant notes that § 46-16-213, MCA,

provides that a person cannot be found guilty of an offense based

o n the testimony of an accomplice unless the testimony is

corroborated by other evidence that in itself tends to connect the

defendant with the commission of the offense.

Here, Bull Coming's testimony was not only corroborated by

Four Bear and Quiroz, who were both charged with offenses related

to the criminal episode at issue in this case, but also by Four

Colors. Four Colors was not involved with the criminal activity in

this case, nor was she charged with any crime. She testified that

Appellant told her that he had killed Etchemendy and that he and

his brother had beaten Etchemendy and taken some of his credit

cards. There was also physical evidence introduced which

corroborated Bull Coming's testimony. The failure to object does

not constitute ineffective assistance of counsel when the objection

lacks merit and would have been properly overruled. & State v.

Rodgers (1993), 257 Mont. 413, 421, 849 P.2d 1028, 1033. Here, an

objection that the State failed to corroborate Bull Coming's

testimony would have been without merit and properly overruled.

Thus, counsel's performance was not deficient in failing to object

to a lack of corroboration.

Appellant next contends that his trial counsel was ineffective

20
for failing to sufficiently investigate and pursue a mental defect

defense. Appellant's trial counsel did initially raise a mental

defect defense and requested a court-appointed clinical

psychologist to examine Appellant. The trial court appointed the

psychologist of Appellant's choice to examine him. The

psychologist examined Appellant and reviewed Appellant's hospital

records before preparing his report. The report concluded that

Appellant had the capacity to understand the proceedings against

him, to assist in hisown defense, and that he could appreciate the

criminality of his conduct. After viewing the report, trial

counsel withdrew notice of Appellant's intent to rely on a mental

defect defense.

We agree with the Ninth Circuit Court of Appeals' holding that

't[ilt is certainly within the 'wide range of professionally

competent assistance' for an attorney to rely on properly selected

experts." Harris v. Vasquez (9th Cir. 19901, 949 F.2d 1497, 1525.

We hold that AppeLlant's trial counsel was neither deficient in his

investigation of a mental defect defense, nor in his decision not

to rely on such a defense.

Appellant further argues that his trial counsel was

ineffective in the trial phase context for failing to move for a

substitute judge. Judge H. R. Obert, who presided over Appellant's

trial, informed the prosecutor and Appellant's attorneys that he

had been an acquaintance of Etchemendy. Judge Obert also told

counsel that he believed he could be impartial regardless of the

acquaintance. Appellant's trial counsel stated that he did not

21
move for a substitute judge because he believed that Judge Obert

might commit reversible error; because counsel was concerned that

a replacement judge might be more adverse to his client than Judge

Obert; and because Judge Obert's religious convictions may have

predisposed him against the death penalty.

In neither Kills On TOU I nor in this proceeding has it been

demonstrated that Judge Obert committed prejudicial error while

presiding over Appellant's trial. Although counsel's decision to

retain a judge who had been acquainted with the victim is

questionable, we hold that there is not a reasonable probability

that the outcome of the trial, the guilty verdicts, would have

differed had counsel moved for a substitute judge. Thus, Appellant

has failed to meet the second prong of the Strickland test.

Appellant next argues that his trial counsel was ineffective

in failing to move for a change of venue from Fallon County.

Appellant was charged in Custer County but, upon Appellant's

counsel's motion, venue was changed to Fallon County. Appellant

contends that counsel was ineffective in failing to move for a

second change of venue. Appellant argues that since Fallon County

is a "rural" county adjoining Custer County, he could not receive

a fair trial there.

Appellant's trial counsel testified that they believed a

second motion for change of venue would be useless unless they

could demonstrate that an impartial jury could not be impanelled in

Fallon County. Following extensive voir dire, counsel decided that

there was no basis to conclude that an impartial jury could not be

22
selected. There is no evidence of juror bias and insufficient

evidence to overcome the strong presumption that counsel's

performance fell within the wide range of competent assistance in

deciding not to move for a second change of venue.

Appellant further argues that his trial counsel was

ineffective in failing to adequately question prospective jurors

about any association they might have had with the victim. The

trial judge asked the entire panel of potential jurors if they had

any association with "any person who may have initiated this

complaint." Several eventual jurors were asked if they knew the

Etchemendys and others were shown a witness list containing the

names of some members of the Etchemendy family. None of the jurors

stated that they~ knew the Etchemendys, although one juror stated

that he had heard of Etchemendy's father. Two prospective jurors

were excused for cause after informing the trial court that they

knew the victim's family. Appellant has failed to demonstrate that

any of the jurors knew the Etchemendy family. While trial counsel

could have conducted a more thorough voir dire on this topic, we

hold that there is not a reasonable probability that the outcome of

Appellant's trial would have been different had his counsel more

thoroughly questioned the jury panel.

Appellant next argues that his trial counsel was ineffective

in failing to investigate and introduce evidence of Bull Coming's

prior bad acts and criminal record. Bull Coming's criminal record,

which included several misdemeanor convictions, was not released to

Appellant's trial counsel. It cannot be said that Appellant's

23
trial counsel was deficient for failing to introduce something that

he did not have in his possession. Appellant also argues that his

trial counsel should have more thoroughly investigated Bull

Coming's prior bad acts which demonstrate a "negative attitude"

toward men.

Appellant's trial counsel conducted a thorough investigation

into Bull Coning's role in the crimes. Appellant's postconviction

counsel have been able to discover more information regarding Bull

Coming's "negative attitude" toward men by interviewing Bull

Coming's former husband, who was in Oklahoma at or just prior to

the time of Appellant's trial. However, we will not appraise trial

counsel's effectiveness simply by comparing the amount of

information Appellant's postconviction counsel were able to compile

versus information gathered by Appellant's trial counsel. We hold

that trial counsel's investigation into Bull Coming's background

falls within the wide range of competent assistance.

Appellant next contends that his trial counsel was ineffective

for failing to investigate Appellant's "suicide attempt.?' In early

October of 1987, before the criminal activity in this case took

place, Miles City police officers took Appellant to Holy Rosary

Hospital because he had threatened to kill himself. The attending

physician observed that Appellant was acutely intoxicated and a

possible candidate for injuring himself. Appellant was released

from the hospital the following day after indicating no further

suicide ideation.

One of Appellant's sisters informed his trial counsel of this

24
incident. Counsel discussed this incident with Appellant and Holy

Rosary's records were supplied to Appellant's court-appointed

psychologist who examined Appellant pursuant to Appellant's notice

of intent to rely on a mental defect defense. We hold that

Appellant's trial counsel was not deficient in failing to

sufficiently investigate Appellant's "suicide attempt."

Appellant next contends that his trial counsel was ineffective

in failing to object to a jury instruction which stated, in

relevant part, that the jury could infer the existence of the

requisite mental state from the acts of the accused and the facts

and circumstances connected with the offense. The disputed portion

of the instruction is derived directly from 5 45-2-103(3), MCA.

Appellant argues that the instruction violates due process as

the United States Supreme Court reversed a conviction where the

court instructed the jury that it is presumed that a person intends

the ordinary consequences of his voluntary acts. Sandstrom v.

Montana (1979), 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39.

However, we have held that an instruction or statute allowing a

permissive inference does not violate the rule established in

Sandstrom. State v. Cowan (19931, 260 Mont. 510, 517, 861 P.2d

884, 888. In addition, Appellant's present counsel has not cited,

nor have we found, authority holding that counsel‘s performance is

deficient for failing to object to an instruction directly quoting

a statute in effect at the time of trial. We hold that Appellant's

trial counsel was not deficient for failing to object to the

instruction regarding the requisite mental state.

25
Appellant next argues that his trial counsel was ineffective

for failing to object to the trial court's instructions setting out

the elements of aggravated kidnapping. Appellant argues that the

multiple alternatives within the instruction infringed upon his

right to a unanimous jury verdict. He also contends that this

argument implicates his conviction for deliberate homicide since

the underlying felony in his

aggravated kidnapping. The

kidnapping read as follows:

A person commits

deliberate homicide conviction was

instruction setting out aggravated

the offense of aggravated

kidnapping if he knowingly or purposely ano Without

lawful authority restrains another person by either

secreting or holding him in a place of isolation or by

using or threatening to use physical force, with either

of the following purposes:

(a) to facilitate commission of robbery or flight

thereafter, or

vi;tlE) to infl ict bodily injury on or to terrorize the

This instruction was patterned after Montana's statute on

aggravated kidnapping. Appellant argues that the multiple

alternatives within the instruction infringed upon his right to a

unanimous jury verdict. He argues that his trial counsel should

have objected to the instruction because it is impossible to tell

which alternatives the jurors agreed on in finding him guilty. We

disagree.

Appellant cites SeVeral cases from CirCUit COUrtS of appeal

supporting his position. However, all of these cases are factually

distinguishable from this case and, more importantly, were decided

before Schad v. Arizona (19911, 501 U.S. 624, 111 S.Ct. 2491, 115

L.Ed.2d 555, a U.S. Supreme Court case which gives more guidance

26
here. In Schad, an Arizona jury was instructed that murder in the

first degree could be premeditated murder or murder committed in an

attempt to commit robbery. Schad contended that due to the

instruction, it was possible that the jury was not unanimous in

that six jurors could have agreed that he committed premeditated

murder while six could have agreed that he committed murder in an

attempt to commit robbery.

A plurality of the U.S. Supreme Court rejected the notion that

the jury must "indicate on which of the alternatives it has based

the defendant's guilt, . , . even where there is no indication that

the statute seeks to create separate crimes." Schad, 501 U.S. at

635-36. The Court stated.that it is:

erroneous [to] assum[el that any statutory alternatives

are ioso facto independent elements defining independent

crimes under state law, and therefore subject to the

axiomatic principle that the prosecution must prove

independently every element of the crime. [Citations

omitted.] In point of fact . . . legislatures frequently

enumerate alternative means of committing a crime without

intending to define separate elements of separate crimes.

. . .

In cases, like this one, involving state criminal

statutes, the dissent's "statutory alternatives" test

runs afoul of the fundamental principle that we are not

free to substitute our own interpretations of state

statutes for those of a State's courts.

Schad, 501 U.S. at 636 (footnote omitted).

In addition, while the Court noted that it was impossible to

produce a single analytical model for determining whether "two

means are so disparate as to exemplify two inherently separate

offenses," the Court stated that the two means must "reasonably

reflect notions of equivalent blameworthiness or culpability,

27
whereas a difference in their perceived degrees of culpability

would be a reason to conclude that they identified different

offenses altogether." ,Schad 501 U.S. at 643. The Court held that

Schad had failed to make out a case for such moral disparity and

denied his petition. Schad, 501 U.S. at 643.

Appellant has not specified which of the alternatives in the

aggravated kidnapping instruction he objects to, thus we assume

that he proposes that this Court adopt a test whereby every

alternative in an instruction must be separately and specifically

found by a jury. This approach was rejected by the Schad Court and

will not be adopted by this Court. We hold that the alternatives

set forth in the aggravated kidnapping instruction constitute

alternative means of committing the same offense. We also hold

that Appellant has failed to demonstrate that the alternatives are

so morally disparate as to represent inherently separate offenses.

Since the alternatives represent different means of committing the

same offense rather than separate offenses, under Schad, the jury

need not indicate upon which alternative it bases the defendant's

guilt. The trial court did not err in giving the disputed

instructions. An objection based on the disputed instructions

would have been properly denied, thus, Appellant's claim of

ineffective assistance of counsel must fail. See Rodsers, 849 P.2d

at 1033.

Appellant next contends that his trial counsel was ineffective

in failing to object to the absence of Native Americans from the

jury panel. In addition to two other factors, in order to

28
establish a prima facie case that his jury was not drawn from a

fair cross-section of the community, Appellant must show a

statistical discrepancy between the percentage of prospective

jurors and persons in the community from the allegedly excluded

class. State v. Bradley (1993), 262 Mont. 194, 200, 864 P.2d 787,

791 (citing Duren v. Missouri (1979), 439 U.S. 357, 364, 99 S.Ct.

664, 668, 58 L.Ed.2d 579, 587).

We take judicial notice of census data from 1980 and 1990 for

Fallon County which demonstrates that Native Americans made up

approximately .37 percent of the population in 1980 and .29 percent

of the population in 1990. Appellant's counsel could not have

demonstrated that Native Americans were underrepresented in the

makeup of the venire panel taken from Fallon County residents.

Failure to object does not constitute ineffective assistance of

counsel when the objection lacks merit and would have been properly

overruled. See Rodsers, 849 P.2d at 1033. Thus, we hold that

Appellant's trial counsel was not deficient in failing to object to

the jury panel on the basis of a racially unrepresentative crosssection of the community.

Appellant next argues that his trial counsel was ineffective

in failing to object to the presence of an armed officer in the

courtroom stationed near the Appellant during the trial. Appellant

argues that the presence of the officer abridged his right to a

fair trial and his trial counsel should have made an objection.

The U.S. Supreme Court has held that the presence of armed

officers in the courtroom is not inherently prejudicial.. Holbrook

29
v. Flynn (19861, 475 U.S. 560, 106 S.Ct. 1340, 89 L.Ed.2d 525.

Where a question of prejudice due to armed officers is raised, the

question must be answered on a case by case basis. Holbrook, 475

U.S. at 569. In Holbrook, four armed and uniformed state troopers

sat in the first row of the spectator's section behind the

defendants' seats during the trial of six men accused of armed

robbery. The Court distinguished the situation from that where the

accused was forced to wear a jail uniform or was bound and gagged

in the presence of the jury. Holbrook, 475 U.S. at 568. The Court

held that it was not an unacceptable risk of prejudice for the jury

to see four armed officers sitting in the first row of the

courtroom's spectator section. Holbrook, 475 U.S. at 571.

In the present case, we hold that the presence of an armed

officer in close proximity to Appellant during the trial

proceedings was not prejudicial. An objection to the presence of

the officer would have been properly denied, thus we hold that

Appellant's trial counsel was not deficient in failing to object to

the presence of armed officers. See Rodqers, 849 P.2d at 1033.

Appellant next contends that his trial counsel was ineffective

in failing to object to a manipulation of jurisdiction in order to

ensure that Appellant would be tried in a court where the death

penalty was a possibility. In Kills On TOP I, 787 P.2d at 343, we

held that Montana had jurisdiction to try Appellant for the crimes

with which he was charged. In our discussion under Issue 2 herein,

we held that the decision to prosecute Appellant in Montana did not

amount to an abuse of process or outrageous government conduct. An

30
abjection based on manipulation of jurisdiction would have been

properly denied, therefore we hold that Appellant's trial counsel

was not deficient in failing to object to the presence of armed

officers. See Rodqers, 849 P.Zd at 1033.

Issue 4

Did Appellant receive ineffective assistance of counsel during

the penalty phase proceedings?

Appellant raises numerous arguments in favor of his claim that

he received ineffective assistance of counsel during his

sentencing. However, given our holding under Issue 1 in which we

reverse Appellant's sentences, it is unnecessary for us to address

this issue.

Issue 5

Did Appellant receive ineffective assistance of counsel during

the course of his direct appeal to this Court?

Again, we review ineffective assistance of counsel claims

using the standards set forth in Strickland. McLain, 815 P.Zd at

149. Appellant's ineffective assistance of counsel claims based on

the performance of his counsel during appeal were raised in

catchall allegations. Under Appellant's guilt phase claims, the

allegation raised in paragraph B.5.h. of his petition was that

“[tlrial counsel failed to object to all errors raised in this

Petition which could have been, but were not, raised on direct

appeal."

The District Court refused to address this general claim as it

duplicated specific claims in the amended petition. Similarly, we

31
have addressed all of Appellant's specific claims of ineffective

assistance of counsel at the trial stage, which encompassed all of

Appellant's claims of error regarding the trial stage, thus we need

not repeat that analysis here. Having held that Appellant's

extensive ineffective assistance of counsel claims regarding the

trial stage are insufficient, we hold that Appellant's claim that

counsel was inadequate in failing to raise those same claims on

appeal is also insufficient.

Next, under Appellant's ineffective assistance of counsel

claims regarding the penalty phase, Appellant claimed, in paragraph

C.6.h., that "Counsel failed to raise on direct appeal all issues

in this Petition which could have been, but were not, raised."

Because this claim was raised under Appellant's penalty phase

claims and we have already held that Appellant's sentences must be

vacated, we need not address this claim on appeal.

Issue 6

May Montana courts apply a procedural bar to postconviction

claims that could have been raised on direct appeal?

The District Court ruled that several of Appellant's claims

raised in his petition for postconviction relief were procedurally

barred because they could have been raised on direct appeal.

Section 46-21-105(2), MCA, states:

When a petitioner has been afforded a direct appeal of

the petitioner's conviction, grounds for relief that

could reasonably have been raised on direct appeal may

not be raised in the original or amended petition.

Section 46-21-105(2), MCA, clearly establishes a procedural bar to

postconviction claims that could have been raised on direct appeal.

32
Appellant contends that the procedural bar cannot be applied

to his case because it has not been firmly established or

consistently applied. He bases his argument on a U.S. Supreme

Court pronouncement that only a firmly established and regularly

followed state practice may prevent subsequent federal court review

of a federal constitutional claim. James v. Kentucky (1984), 466

U.S. 341, 104 S.Ct. 1830, 80 L.Ed.Zd 346. We disagree with

Appellant's argument. Appellant's argument is misplaced in this

Court.

Appellant can raise his argument in federalhabeas proceedings

following the exhaustion of his state remedies. Appellant's

argument has been discussed in federal court cases dealing with

postconviction and habeas claims. The federal courts and the U.S.

Supreme Court:

will not consider an issue of federal law on direct

review from a judgment of a state court if that judgment

rests on a state-law ground that is both "independent" of

the merits of the federal claim and an "adequate" basis

for the court's decision.

Harris v. Reed (19891, 483 U.S. 255, 260, 109 S.Ct. 1038, 1042, 103

L.Ed.2d 308, 315.

The application of a state procedural bar is generally

considered an independent and adequate state ground precluding

federal habeas review. See Harris, 489 U.S. at 262. The bar to

federal review will apply:

unless the habeas petitioner can show "cause" for the

default and "prejudice attributable thereto," [citation

omitted], or demonstrate that failure to consider the

federal claim will result in a "fundamental miscarriage

of justice." [Citations omitted.]

33
Harris, 489 U.S. at 262.

Since Appellant's arguments regarding the procedural bar are

aimed at federal courts rather than this Court, we need not address

them. However, we note in passing that we recently held that:

We have applied that statutory bar [in § 46-21-105(2),

MCAI consistently. in order to prevent the abuse of

postconviction relief by criminal defendants who would

substitute those proceedings for direct appeal and in

order to preserve the integrity of the trial and direct

appeal. See‘ for example, In re the Petition of Evans

(1991), 250 Mont. 172, 819 P.2d 156; Tecca v. McCormick

(1990), 246 Mont. 317, 806 P.2d 11; State v. Gorder

(199O)I 243 Mont. 333, 792 P.2d 370; Duncan v. State

(1990), 243 Mont. 232, 794 P.2d 331; In re Petition of

Martin (19891, 240 Mont. 419, 707 P.2d 746.

In re the Petition of Manula (1993), 263 Mont. 166, 169, 866 P.2d

1127, 1129. A lack of absolute consistency in the application of

a state's procedural bar is not necessarily fatal to a

determination that a state's procedural bar is an adequate and

independent state ground precluding federal habeas review. The

U.S. Supreme Court, in reviewing the Florida Supreme Court's

application of a procedural bar, stated:

In the vast majority of cases, however, the Florida

Supreme Court has faithfully applied its rule that claims

not raised on direct appeal cannot be raised on

postconviction review. [Citations omitted.]

Moreover, the few cases that respondent and the

dissent cite as ignoring procedural defaults do not

convince us that the Florida Supreme Court fails to apply

its procedural rule regularly and consistently.

Dugger v. Adams (1989), 489 U.S. 401, 411, n.6, 109 S.Ct. 1211,

1217, 103 L.Ed.2d 435, 445.

Section 46-21-105(2), MCA, was added to Montana's code in

1981. In State v. Henricks (1983), 206 Mont. 469, 474, 672 P.2d

20, 23, we cited Fitzpatrick v. State (19831, 206 Mont. 205, 671

34
P.2d 1, a postconviction case instituted before the effective date

of § 46-21-105(2), MCA, in support of the proposition that we could

consider issues Henricks raised in postconviction proceedings which

could have been raised on his direct appeal.2 Since Henricks was

decided, we have not cited it for the proposition that this Court

can review issues in postconviction proceedings which could have

been raised on direct appeal. We now specifically overrule

Henricks to the extent that it stands for the proposition that this

Court can review issues in postconviction proceedings which could

have been raised on direct appeal.

Appellant further argues that the procedural bar should not be

applied in this case because there is no evidence that his counsel

intentionally reserved claims in order to extend proceedings. We

cannot agree that the procedural bar only applies when the State

can prove that defense and appellate counsel intentionally withheld

claims to cause delay. In accord with the plain language of § 46-

21-105(2), MCA, we hold that claims which could reasonably have

been raised on appeal are procedurally barred from consideration in

postconviction proceedings, regardless of whether or not the

failure to raise the claim was an intentional strategic decision of

counsel to cause delay. We hold that the procedural bar of § 46-

21-105(2), MCA, does apply to certain of Appellant's postconviction

claims as discussed below.

* We eventually concluded that Henricks' allegations were not

only untimely, but without merit. Henricks, 672 P.2d at 26.

35
Issue 7

Was Appellant denied the right to a fair trial?

Appellant argues that his right to a fair trial was violated

because: 1) trial was held in Fallon County which adjoins Custer

County, the county where the victim and his family resided; 2) an

officer stationed next to Appellant possessed a firearm which was

visible throughout the trial; 3) the courtroom was allegedly

segregated; and 4) there was extensive pretrial publicity and the

trial judge noted there was a carnival atmosphere during voir dire.

All of Appellant's fair trial claims reasonably could have

been raised during his direct appeal to this Court. Therefore, his

fair trial claims are procedurally barred from consideration in

this postconviction proceeding. Section 46-21-105(2), MCA.

Issue 8

Was Appellant denied the right to a fair and impartial jury?

Appellant argues that his right to an impartial jury was

violated because there were no Native Americans in the venire panel

or on the jury. He also argues that the absence of Native

Americans from the venire panel violated the equal protection

clause of the Fourteenth Amendment. In addition, he argues that

the jurors were not sufficiently questioned about any possible

connection with the victim's family or about possible racial bias.

The above claims reasonably could have been raised during his

direct appeal to this Court. Therefore, his claims are

procedurally barred from consideration in this postconviction

appeal. Section 46-21-105(Z), MCA.

3 6
Issue 9

Did the prosecutor commit misconduct during Appellant's trial?

Appellant contends that the prosecutor committed misconduct

during the trial by knowingly presenting facially perjured

testimony and emphasizing this testimony during closing argument.

Appellant further argues that it was misconduct for the prosecutor,

during closing argument, to portray a version of the events in the

form of a first person narrative as the victim of the crime.

Appellant's misconduct arguments reasonably could have been

raised during his direct appeal to this Court. Thus, his claims

are procedurally barred from consideration during this

postconviction proceeding. Section 46-21-105(2), MCA.

Issue 10

Did the State fail to corroborate the testimony of an

accomplice witness?

Appellant argues that the State failed to corroborate the

testimony of Diane Bull Coming. Because Bull Coming was an

accomplice, her testimony had to be corroborated or Appellant's

conviction cannot stand.

Appellant's argument reasonably could have been raised on

direct appeal to this Court. Thus, his argument is procedurally

barred from consideration during this postconviction proceeding.

Section 46-21-105(2), MCA.

Issue 11

Was Appellant denied the right to confront the witnesses

against him?
Appellant argues that because the State failed to disclose

Bull Coming's eight misdemeanor convictions until discovery was

conducted for his postconviction petition, his Sixth Amendment

right to confront the witnesses against him was violated. He also

argues that Rule 609, M.R.Evid., which prohibits impeachment of

witnesses by use of prior criminal convictions would violate his

right to cross-examine witnesses as contemplated in Davis v. Alaska

(1974), 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347. However, the

present case is analogous to U.S. v. Bagley (1985), 473 U.S. 667,

105 S.Ct. 3375, 87 L.Ed.2d 481.

In Baqley, Bagley was charged with 15 counts of violating

federal narcotics and firearms statutes. In his discovery requests

before trial, Bagley requested the names of the prosecution's

witnesses and any deals, promises, or inducements made in exchange

for testimony against him. Bagley was convicted on the narcotics

charges and acquitted on the firearms charges. A few years after

his conviction, Bagley discovered that two of the witnesses against

him had contracts with the Bureau of Alcohol, Tobacco and Firearms

which provided that each witness would receive $300 for gathering

evidence and testifying against Bagley. Bacrley, 473 U.S. at 669-

71.

The Ninth Circuit Court of Appeals reversed Bagley's

conviction holding that the failure to supply Bagley with this

information violated his rights to cross-examination, as envisioned

in Davis and this violation required automatic reversal, 719 F.2d

at 1462. The U.S. Supreme Court reversed the Ninth Circuit. The

38
Supreme Court held that the situation in Baalev was distinguishable

from Davis in that the trial court had not made a direct ruling

restricting Bagley's scope of cross-examination. Further, the

Supreme Court reasoned that:

The constitutional error, if any, in this case was the

Government's failure to assist the defense by disclosing

information that might have been helpful in conducting

the cross-examination.

Baqley, 473 U.S. at 678. The Supreme Court determined that

Bagley's claim had to be examined in the Brady context and remanded

the case for a determination of whether there was a reasonable

probability that the outcome of his case would have been different.

Baqley, 473 U.S. at 677-78.

Here, the trial court never made a direct ruling which limited

Appellant's scope of cross-examination in regard to Bull Coming.

She was extensively cross-examined as to her role in the crime, the

prior statements she had made to law enforcement officers, and her

plea bargain agreement. We hold that Appellant's argument in

regard to the State's failure to disclose Bull Coming's prior

misdemeanor convictions is properly analyzed in a Brady context

rather than in the context of a non-existent trial court ruling

limiting cross-examination.

Issue 12

Were Appellant's rights violated by the presence of armed

officers next to his counsel table during his trial?

Appellant argues that the presence of an armed officer next to

his counsel table throughout the trial violated his right to a fair

trial and negated the presumption of innocence

39
Appellant's argument reasonably could have been raised on

direct appeal to this Court. Therefore, his argument is

procedurally barred from consideration during this postconviction

proceeding. Section 46-21-105(2), MCA.

Issue 13

Were Appellant's rights violated because he was not convicted

by a unanimous jury?

Appellant argues that since the jury was instructed on certain

offenses with multiple alternatives (e.g., aggravated kidnapping),

it is impossible to determine if the jurors were unanimous in

finding the specific elements of the offenses for which Appellant

was convicted. Appellant argues that this abridges both his Sixth

Amendment right to a unanimous jury and his Eighth Amendment

rights.

Appellant's argument reasonably could have been raised on

direct appeal to this Court. Therefore, his argument is

procedurally barred from consideration in this postconviction

proceeding. Section 46-21-105(2), MCA. Appellant argues that it

was plain error to give the instructions containing several

alternatives. However, we addressed the merits of Appellant's

arguments under Issue 3 and concluded that it was not error to give

the disputed instructions. Obviously, the plain error doctrine

does not apply.

Issue 14

Did the jury instruction regarding voluntary intoxication

create a conclusive presumption of guilt?

40
The trial court instructed the jury on the law of voluntary

intoxication. Appellant argues that his rights were violated when

the trial court instructed the jury that a person who is in an

intoxicated condition is criminally responsible for his conduct.

Appellant contends that this portion of the instruction creates a

conclusive presumption which compels a finding of guilt simply as

a result of being intoxicated.

Appellant's arguments reasonably could have been raised on his

direct appeal to this Court. Thus, his arguments are procedurally

barred from consideration during this postconviction proceeding.

Section 46-21-105(2), MCA.

Issue 15

Was the jury instruction regarding inference of criminal

mental state unconstitutional?

The trial court instructed the jury that the existence of a

mental state may be inferred from the acts of the accused and the

facts and circumstances connected with the offense. Appellant

argues that this unconstitutionally allowed the jury to presume

that he had the requisite criminal mental state.

Appellant's argument reasonably could have been raised on

direct appeal to this Court. Thus, his argument is procedurally

barred from consideration during this postconviction proceeding.

Section 46-21-105(2), MCA.

Issue 16

Does Montana's death penalty scheme unconstitutionally

prohibit the sentencer from considering a single mitigating factor

4 1
sufficient to merit leniency?

Appellant contends that § 46-18-305, MCA, violates the Eighth

and Fourteenth Amendments' prohibitions against imposing arbitrary

and capricious death sentences. Section 46-18-305, MCA, provides

that the court shall impose a death sentence if the court "finds

one or more of the [statutorily enumerated] aggravating

circumstances and finds that there are no mitigating circumstances

sufficiently substantial to call for leniency." Appellant argues

that 5 46-18-305, MCA, operates to effect a scheme whereby a single

mitigating circumstance can never be sufficient to merit leniency.

Appellant's argument reasonably could have been raised on

direct appeal to this Court. Thus, his argument is procedurally

barred from consideration during this postconviction proceeding.

Section 46-21-105(2), MCA.

Issue 17

Was Appellant subjected to double jeopardy?

Appellant argues that he was subjected to double jeopardy.

Appellant was convicted of aggravated kidnapping and deliberate

homicide. He was convicted of deliberate homicide under Montana's

"felony murder rule," with the underlying felony being aggravated

kidnapping. Appellant also argues that he was subjected to double

jeopardy in that one of the aggravating circumstances enumerated by

§ 46-18-303, PICA, is that the offense was aggravated kidnapping

which resulted in the death of the victim.

Appellant's arguments reasonably could have been raised on

direct appeal to this Court. Therefore, his arguments are

42
procedurally barred from consideration during this postconviction

proceeding. Section 46-21-105(2), MCA.

Issue 18

Did this Court and the sentencing court misapply the statutory

capital sentencing factors requiring leniency?

Given our holding under Issue 1 (the Bradv issue)~in which we

reverse Appellant's sentences, we need not address this issue.

Issue 19

Did the trial court err in disclosing a psychological report

to the prosecution?

In preparation of a potential mental defect defense, Appellant

was examined by a clinical psychologist at his counsel's request.

The psychologist's report was then provided to the prosecutors and

the trial court as well as the Appellant. Appellant argues that

requiring disclosure of the report compromised his ability to

present his defense of mental defect and that the presentence

report impermissibly relied on portions of the psychological

report.

Appellant reasonably could have raised these arguments on

direct appeal to this Court. Therefore, his arguments are

procedurally barred from consideration during this postconviction

proceeding. Section 46-21-105(2), MCA.

Issue 20

Did the District Court err in dismissing Appellant's habeas

corpus petition?

The District Court dismissed Appellant's habeas corpus

43
petition relying on § 4622-101(2), MCA, which provides that habeas

corpus relief is not available to attack the validity of a

conviction or sentence of a person adjudged guilty in a court of

record who has exhausted the remedy of appeal. Appellant argues

that this statute affects a suspension of the writ of habeas

corpus.

Appellant argues that the statute violates Article II, Section

19, of the Montana Constitution which states "[tlhe privilege of

the writ of habeas corpus shall never be suspended." Appellant

cites cases from other state courts which hold that state

legislatures may not abolish habeas corpus. We find a U.S. Supreme

Court case more applicable to the present case.

In Swain v. Pressley (1977), 430 U.S. 372, 97 S.Ct. 1224, 51

L.Ed.2d 411, the U.S. Supreme Court held that other proceedings may

be substituted in lieu of habeas corpus. The Court held that "the

substitution of a collateral remedy which is neither inadequate nor

ineffective to test the legality of a person's detention does not

constitute a suspension of the writ of habeas corpus." Swain, 430

U.S. at 381.

We hold that the substitution of postconviction proceedings

for habeas corpus proceedings when a petitioner has exhausted his

right of appeal does not amount to a suspension of the writ of

habeas corpus. Thus, we hold that § 46-22-101(2), MCA, does not

affect a suspension of the writ in violation of Article II, Section

19, of the Montana Constitution. We hold that the District Court

did not err in dismissing Appellant's habeas corpus petition.

44
We affirm the denial of Appellant's petition to the extent it

sought reversal of his convictions. We reverse the denial of

Appellant's petition to the extent it sought to vacate his

sentences, and we remand to the trial court for resentencing.

W e

45