No. 95-161 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1995 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-VSDUNCAN PEDER MCKENZIE, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Thomas M. McKittrick, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Gregory A. Jackson, Jackson &Rice, Helena, Montana; 

Timothy K. Ford, MacDonald, 

Seattle, Washington 

Hoague & Bayless, 

For Respondent: 

Hon. Joseph P. Mazurek, Attorney General, Pamela P. 

Collins, Assistant Attorney General, Helena, Montana 

Filed: 

Submitted on Briefs: April 11, 1995 

Decided: AB!ril 20, 1995 

Cl&-k 
Justice James C. Nelson delivered the Opinion of the Court. 

Duncan Peder McKenzie, appeals from an order of the Eighth 

Judicial District Court, Cascade County, denying his request to 

consider his objections to the resetting of his execution date and 

issuing a death warrant. This Court granted the State's motion to 

dismiss McKenzie's appeal, in an order dated April 11, 1995. 

Pursuant to the April 11, 1995 order, this opinion follows. 

The issues before this Court are: 

1. Whether McKenzie has a right to appeal the District 

Court's resetting of the execution date? 

2. Whether the District Court has jurisdiction to set 

an execution date after an earlier execution date 

has expired? 

3. Whether the District Court had jurisdiction to hear 

McKenzie's substantive arguments regarding the 

resetting of the execution date? 

PROCEDURAL BACKGROUND 

In January, 1975, Duncan McKenzie was convicted of deliberate 

homicide and aggravated kidnapping in the Eighth Judicial District 

Court, Cascade County. McKenzie was sentenced to death for these 

convictions on March 3, 1975. The facts underlying McKenzie's 

conviction and sentencing are fully set forth in State v. McKenzie 

(1976), 171 Mont. 278, 577 P.2d 1023, and will not be repeated 

here. McKenzie has challenged his conviction and sentence in 

numerous state and federal proceedings, none of which has been 

ultimately successful on the merits. McKenzie's death sentence has 

been stayed at least eight times since its imposition. The most 

recent stay of execution entered in November of 1988, was dissolved 

by the United States District Court for the District of Montana on 

February 23, 1995. The following provides a brief review of the 

2 
procedural history,of this case. 

In McKenzie's first state proceeding, this Court affirmed 

McKenzie's direct appeal of his conviction. State v. McKenzie 

(1976), 171 Mont. 278, 577 P.2d 1023. In 1980, after two remands 

by the United States Supreme Court for reconsideration by this 

Court, we affirmed McKenzie's conviction. State v. McKenzie 

(1980), 186 Mont. 481, 608 P.2d 428. 

On January 5, 1981, McKenzie filed a petition for postconviction relief in state district court. The District Court 

denied the petition, and this Court affirmed that court's ruling. 

McKenzie v. Osborne (1981), 195 Mont. 26, 640 P.2d 368. McKenzie 

then filed a petition for writ of habeas corpus in federal district 

court, which was resolved against him seven years later. McKenzie 

v. Risley (9th Cir. 1988), 842 F.2d 1525, cert. denied, 488 U.S. 

901 (1988). McKenzie petitioned the United States Supreme Court 

for a writ of certiorari, which the Court denied on October 11, 

1988. McKenzie v. McCormick (1988), 488 U.S. 901. 

McKenzie then filed his second petition for writ of habeas 

corpus with this Court. We denied that petition on April 16, 1985, 

in an unpublished order. On June 27, 1985, McKenzie filed his 

second habeas petition in federal court which the federal district 

court denied. The Ninth Circuit affirmed the federal district 

court's denial, McKenzie v. McCormick (9th Cir. 1994), 27 F.3d 

1415, and also denied McKenzie's petition for rehearing en bane. 

On January 17, 1995, the United States Supreme Court denied 

McKenzie's petition for writ of certiorari. The Court also denied 

McKenzie's request for a rehearing of the denial of certiorari. 

On February 23, 1995, the United States District Court for the 

3 
District of Montana ordered‘that the stay of execution granted in 

1988, during the pendency of McKenzie's second petition for writ of 

habeas corpus, be vacated and dissolved. There being no stays of 

execution in effect, the State moved the Eighth Judicial District 

Court, Cascade County, for a hearing to reset the execution date. 

Prior to the hearing on this matter, McKenzie filed 

"Defendant's Objections to Request for Execution Date" and 

supporting memorandum. McKenzie raised several arguments in this 

document including the argument that the court did not have 

jurisdiction, and that the hearing to reset the execution date was 

a hearing to "reimpose the death sentence." The District Court 

held a hearing on March 27, 1995, and overruled all of the 

objections McKenzie raised in his "Memorandum Supporting Objections 

to Execution Setting." 

The District Court found that its act in resetting the 

execution date was merely a procedural and ministerial act, and 

proceeded with the hearing to set the execution date. The court 

set the execution date for May 10, 1995, and issued a death 

warrant. 

McKenzie filed a notice of appeal seeking to invoke this 

Court's appellate jurisdiction over the District Court's rulings. 

The State moved to dismiss the appeal on the grounds that McKenzie 

had no right of appeal because there is no appealable order which 

would give rise to this Court's appellate jurisdiction. We ordered 

that the matter be fully briefed and, after careful consideration 

of the parties' arguments, issued an order granting the State's 

motion to dismiss on April 11, 1995. 

DISCUSSION 

4 
1. RIGHT OF APPEAL 

The State contends that McKenzie has no right of appeal 

because under Montana law, U [aln appeal may be taken by the 

defendant only from a final judgment of conviction and orders after 

judgment which affect the substantial rights of the defendant." 

Section 46-20-104(l), MCA. The State argues that the order 

resetting the execution date did not affect McKenzie's substantial 

rights; rather, the court merely executed the March 3, 1975 

judgment. The State also maintains that the order resetting the 

execution date is not a judgment or sentence. We agree. 

Courts have long recognized that setting an execution date is 

a ministerial and not a judicial act. See, State v. Joubert (Neb. 

1994), 518 N.W.2d 887, 895; Pate v. State (Okla.Crim. 1964), 393 

P.2d 247; State v. Miller (Kan. 1950), 217 P.2d 287; Rose v. 

Commonwealth (Va. 1949), 55 S.E.2d 33. As stated by one court: 

The refixing or resetting of the time for execution, 

where for any reason the judgment of death has not been 

executed, is a merely ministerial act, which, at common 

law, as we have seen, generally devolved upon the 

sheriff, but which under our statute devolves upon the 

court in which the conviction was had. 

Pate -I 393 P.2d at 249. 

In resetting the execution date, the District Court was merely 

performing a ministerial function, i.e., carrying out the March 3, 

1975 judgment which sentenced McKenzie to death. McKenzie's 

substantial rights were not implicated by this proceeding, 

accordingly, the District Court's order resetting the execution 

date is not an appealable order. 

We also conclude that the District Court's order resetting the 

execution date cannot be defined as an appealable judgment. Under 

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Montana law, a judgment is defined as "an adjudication by a court 

that the defendant is guilty or not guilty, and if the adjudication 

is that the defendant is guilty, it includes the sentence 

pronounced by the court." Section 46-l-202(10), MCA. In 

addition, other courts have recognized that: "the order fixing or 

resetting the date of execution under the original judgment is not 

a new judgment, and from such order no appeal lies." -, Pate 393 

P.2d at 250. 

Here, the District Court did not "resentence" McKenzie nor 

did it "reimpose" the death penalty. It merely executed the 

judgment before it. McKenzie was "sentenced" and the death penalty 

WFlS "imposed" on March 3, 1975; that sentence has never been 

vacated by any court. 

Finally, we note that the District Court would not have 

jurisdiction to vacate the original judgment sentencing McKenzie to 

death, and grant his request for a sentence of life imprisonment, 

because, once a valid judgment and sentence has been signed, the 

court imposing the sentence lacks jurisdiction to vacate or modify 

it except as provided by law. State v. Hanners (19921, 254 Mont. 

524, 526, 839 P.2d 1267, 1268. We conclude that there is no 

provision in the law which would allow the District Court to amend, 

at the hearing resetting the execution date, the original judgment 

of 1975 sentencing McKenzie to death. 

2. JURISDICTIONAL ARGUMENT 

McKenzie argues that the District Court did not have 

jurisdiction to reset the execution date because the law in effect 

at the time he was sentenced had no provision for the resetting of 

the execution after the statutory time for execution had passed. 

6 
The law in effect at the time McKenzie was originally sentenced 

provided that: ' [iln pronouncing the sentence of death, the court 

shall set the date of execution which must not be less than thirty 

(30) days nor more than sixty (60) days from the date the sentence 

is pronounced." Section 95-2303(b), RCM (1947), as amended (later 

recodified as 5 46-19-103, MCA). Therefore, according to McKenzie, 

at the time he was sentenced, an execution had to be conducted 

within the sixty-day time frame, and the court had no power to 

reset the execution date if the sixty days elapsed. 

However, in 1981, s 46-19-103(l), MCA, was amended to provide 

that a court shall set a new execution date upon dissolution of a 

stay of execution. According to § 46-19-103(l), MCA, the District 

Court has a mandatory duty to set a new execution date, and has no 

discretion to do otherwise. 

Because we have previously concluded that the order resetting 

the execution date was merely a procedural or ministerial act and, 

thus, McKenzie's substantial rights were not thereby affected, the 

controlling law is that law in effect at the time of the court's 

resetting the execution date. See, State v. Coleman (1979), 185 

Mont. 299, 605 P.2d 1000. Therefore the District Court acted 

correctly in setting the execution date pursuant to s 46-19-103(l), 

MCA. 

In addition, we find no merit to McKenzie's argument that once 

the initial execution date has passed, the District Court has no 

authority to reset the date. Other courts have recognized that 

"the failure to execute a death warrant on the original date fixed 

does not result in the discharge of a prisoner sentenced to die, 

but requires the court to fix a new date for the execution." 

7 
Joubert, 518 N.W.2d at 891. 

As stated by the Kansas Supreme Court in Miller, 217 p.2d at 

290, "the authorities uniformly hold that failure to execute a 

death warrant on the date fixed does not result in immunity to or 

discharge of a person sentenced to die, but requires the fixing of 

a new date for his execution." 

McKenzie also claims that the District Court did not have 

jurisdiction to reset the execution date pursuant to 5 3-1-804(b), 

MCA, which provides in part: U [tlhe first district judge who has 

been substituted or disqualified for cause shall have the duty of 

calling in all subsequent district judges." McKenzie argues that 

Judge McKittrick did not have jurisdiction because the original 

presiding judge or his successor, did not enter an order conferring 

jurisdiction on Judge McKittrick. 

McKenzie also points to this Court's order of March 14, 1976, 

as authority for the proposition that McKittrick lacked 

jurisdiction to reset the execution date. McKenzie's argument is 

based on the following procedural background. 

This case arose in Pondera County, in the Ninth Judicial 

District before Judge R.D. McPhillips. McKenzie subsequently 

disqualified McPhillips by substitution. McPhillips called in 

Judge Robert J. Nelson of the Eighth Judicial District Court to 

assume jurisdiction of the case, and Judge Nelson moved the cause 

to Cascade County for the purposes of trial. Thereafter McKenzie 

was found guilty of deliberate homicide and aggravated kidnapping, 

and Judge Nelson imposed the death penalty. The execution date was 

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set for April 30, 1975, however it was stayed pending appeal to 

this Court. 

After remittitur, Judge Nelson's term had expired and Judge 

William H. Coder succeeded Judge Nelson as a judge in the Eighth 

Judicial District Court. Coder issued an order resetting the 

execution date on the basis of the sentence previously pronounced 

by Judge Nelson. 

In our March 14, 1976 order we concluded that Judge Coder did 

not have jurisdiction to reset the execution date. We held that 

before a district court judge could reset the execution date, the 

cause had to be returned to the original presiding judge in Ponder-a 

county. That judge was required to call in another district judge 

to continue with jurisdiction of the case. 

At the time we issued that order, however, § 46-19-103(l), MCA 

(1993), was not in effect. The relevant portion of that statute, 

which controls here, provides that "the court in which the 

defendant was previously sentenced shall, upon dissolution of the 

stay I set a new date of execution . _I' McKenzie was properly 

sentenced by Judge Nelson, a judge in the Eighth Judicial District 

court. Judge McKittrick is a judge in the Eighth Judicial District 

Court, the "court in which the defendant was previously sentenced." 

Accordingly, Judge McKittrick has the statutory authority under 5 

46-19-103(l) and (4), MCA, without more, (as would any other 

district judge in that District) to perform the ministerial act of 

setting an execution date and signing the death warrant. 

Moreover, we conclude that 5 3-l-804, MCA, which controls the 

substitution of district court judges, is not applicable. Rather, 

§ 46-19-103(l) and (4), MCA, governs, and it reposes the act of 

9 
setting the execution date and signing the death warrant in the 

court in which the defendant was sentenced--here the Eighth 

Judicial District Court. Therefore, our order indicating the 

original presiding judge in Pondera County must appoint another 

district court judge before the court may set a new execution date 

is not controlling. 

3. SUBSTANTIVE CLAIMS 

McKenzie's substantive claims are not properly before this 

Court on appeal. The District Court concluded that the hearing to 

reset the execution date was a procedural and ministerial act. The 

hearing was not a resentencing and Judge McKittrick had no 

jurisdiction to consider McKenzie's substantive claims relating to 

the death penalty sentence itself. Likewise, those claims are not 

properly before this Court on appeal. 

, Justices 

e 
Hon. E'd P. McLean, District Judge 

sitting for Justice Terry N. 

Trieweiler 
Justice W. William Leaphart, dissenting. 

I dissent from the Court's dismissal of this appeal. 

I would remand the case to the District Court for 

consideration of appellant's contention that 20 years on death row 

constitutes cruel and unusual punishment under the 8th Amendment to 

the United States Constitution and Article II, Section 22 of the 

Montana Constitution. This is an issue which at least two of the 

Justices on the United States Supreme Court recently indicated 

would "benefit from further study" by the lower state and federal 

courts. Lackey v. Texas, United States Supreme Court, No. 94-8262 

(March 27, 1995) (Justices Stevens and Breyer). While noting that 

such a claim is "novel," the two Justices commented that it is "not 

without foundation." They also noted that: 

Though the importance and novelty of the question 

presented by this certiorari petition are sufficient to 

warrant review by this Court, those factors also provide 

a principled basis for postponing consideration of the 

issue until after it has been addressed by other courts. 

[Emphasis added. 1 

The Lackey case involves a defendant who has been on death 

row for 17 years. Justices Stevens and Breyer suggest that, before 

the Court can properly determine the merits of this argument, the 

lower courts must first make a determination as to how much of that 

I7-year time period is attributable to petitioner's abuse of the 

judicial system through repetitive, frivolous filings and how much, 

if any, is attributable to prosecutorial or institutional delay. 

McKenzie, as of this date, has been under a death sentence since 

1975--some 20 years. During the course of that 20-year period, 

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McKenzie has pursued numerous appeals and petitions before this 

court, the Ninth Circuit Court of Appeals and the United States 

Supreme Court. At this juncture, we have no findings by the trial 

court as to which of these various filings were frivolous and which 

were meritorious. If it is assumed, arguendo, that Lackey may have 

an argument based upon his 17-year wait on death row, McKenzie has 

the potential for an even stronger argument. That argument, 

however, cannot be adequately addressed until the trial court makes 

some determinations as to which of McKenzie's numerous filings were 

a legitimate exercise of the right of appeal and which constitute 

frivolous filings. Obviously the Court cannot allow a defendant to 

bootstrap himself into a cruel and unusual punishment argument by 

abusing the system to his advantage through the repetitive filing 

of meritless appeals and petitions. 

While I do not necessarily agree that there is any merit to 

McKenzie's argument, it is apparent to me that consideration of the 

issue by the United States Supreme Court has presently been 

"postponed" only, and it is merely a matter of time before the 

federal courts are going to start subjecting death penalty cases to 

the analysis suggested by Justices Stevens and Breyer in the Lackey 

case. Accordingly, I would prefer that this issue be dealt with at 

the earliest possible date rather than waiting for a remand from 

the federal courts two years down the road--at which time McKenzie 

will be in a position to argue an additional two years of delay. 

The Court has taken the position that the substantive issues 

raised by McKenzie's "Objection to Request for Execution Date" 

13 
(including the cruel and unusual punishment claim), are not proper 

issues for appeal in the present context since the only issue 

legitimately before the trial court was the request for a setting 

of a date and time for execution--a purely ministerial (nonsubstantive) act. Technically this may be correct. However, given 

that this is a death penalty case and the condemned man is 

purporting to raise constitutional issues--we should look to the 

substance rather than the "technical" form of his pleading. For 

example, in State v. Perry (1988), 232 Mont. 455, 758 P.2d 268, 

Perry, who had been convicted of second-degree murder some 17 years 

earlier in 1971, moved for a new trial based upon the alleged 

recantation of an accomplice. The State contended that Perry's 

only means of redress was a petition for post-conviction review and 

that the statutory time limit on such petitions had expired as of 

1978. This Court declined to adopt the State's position. 

Whereas Perry's motion for a new trial cannot 

technically be denoted a petition for habeas corpus, nor 

do we treat it as such, the claim nevertheless sounds in 

the nature of a petition for habeas corpus. 

Perry, 750 P.2d at 273. 

Despite the incorrect form of the "motion" pleading, the 

Court addressed the substance of the motion and concluded that 

Perry had failed to prove that he was the victim of an unlawful 

conviction. Perry, 758 P.2d at 276. 

McKenzie, like Perry, is well beyond the 5-year statutory 

deadline for filing petitions for post-conviction review. Section 

46-21-102, MCA. However, the argument as to whether a lengthy 

delay before actual implementation of the death sentence 

14 
constitutes cruel and unusual punishment is a constitutional 

argument which, by its very nature, cannot be raised until the 

passage of a significant period of time. 

In dismissing this appeal, the courts of the State of Montana 

are sending this matter on to the federal courts without having 

addressed this constitutional issue. I fear that we will have to 

address it at some future point and that it will become all the 

more thorny for the delay. 

Justwe/ I