No. 88-443 

IN THE STJPREME COURT OF THE STATE OF MONTANA 

1989 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsLESTER KILLS ON TOP, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Sixteenth Judicial District, 

In and for the County of Custer, 

The Honorable H. R. Obert, Judge presiding. 

COTJNSEL OF RECORD: 

For Appellant: 

Stephen C. Moses argued; Moses Law Firm, Billings, 

Montana 

For Respondent : 

Hon. Marc Racicot, Attorney General, Helena, Montana 

Clay R. Smith argued, Solicitor, Helena, Montana 

Keith D. Haker, County Attorney, Miles City, Montana 

Submitted: October 19, 1989 

Decided: February 15, 1990 
Justice Fred J. Weber delivered the Opinion of the Court. 

Lester Kills on Top was convicted by jury in the Sixteenth Judicial District Court, Custer County, Montana, of 

robbery, aggravated kidnapping and deliberate homicide. He 

was sentenced to 40 years for robbery. He received the death 

penalty for each of the latter two convictions. Defendant 

appeals both the convictions and the sentences. We affirm. 

The issues presented for our review are: 

1. Whether the District Court had jurisdiction over the 

crimes for which the defendant was convicted. 

2. Whether the District Court committed preiudicial 

error in ordering the defendant to disclose to the State any 

statements taken from individuals identified by the latter as 

possible witnesses. 

3. Whether the District Court committed prejudicial 

error by admitting into evidence various exhibits. 

4. Whether the District Court committed prejudicial 

error in refusing to give instructions offered by the defendant relating to lesser included offenses of aggravated 

kidnapping, in refusing to give defendant's instruction on 

accomplice testimony corroboration, and in giving an instruction relating to flight offered by the State. 

5. Whether certain factual findings in the District 

Court's sentencing order were supported by the evidence. 

6. Whether imposition of the death penalty is constitutional under the mandatory review criteria of S 46-18-310, 

MCA . 

7. Whether the sentencing court committed prejudicial 

error in its consideration of victim impact statements. 

8. Supreme Court sentence review pursuant to 

5 46-18-310, MCA. 
9. Whether the present death penalty constitutes cruel 

and unusual punishment prohibited by the United States and 

Montana Constitutions. 

The events leading to the death of John Martin 

Etchemendy, Jr., began in the early morning hours of October 

17, 1987. All offenses are alleged to have occurred on 

October 17. The trial in this case lasted two and one-half 

weeks. The State presented over fifty witnesses and the 

defense presented eight witnesses. Defendant did not testify. Over one hundred exhibits were entered into evidence. 

Defendant, Lester Kills on Top, and his brother, Vernon 

Kills on Top, entered the Golden West Bar in Miles City, 

Montana, some time after midnight on October 17, 1987. 

Accompanying them were Diane Bull Coming and Doretta Four 

Bear. Mr. Etchemendy, along with a friend, also went to that 

bar on that Friday evening. When Mr. Etchemendy was ready to 

leave the bar, he went out to the parking lot but was unable 

to locate his vehicle. At that point defendant, his brother, 

and the two women offered to help him. They all got in a 

black Dodge Duster. First the group turned on to Hiqhway 59 

and looked a few places for Mr. Etchemendyls car. Then, 

rather than proceeding north to Miles City, they went south 

toward Ashland. Diane Bull Coming testified that defendant 

said, in his native tongue of Northern Cheyenne, that they 

should "roll him and steal from him." Shortly after this 

statement, the car stopped so the men could urinate. Although Mr. Etchemendy and defendant began arguing, Mr. 

Etchemendy voluntarily got back in the car. 

The car continued to proceed south on Highway 59, then 

turned southwest onto Highway 332 toward Ashland and the 

Northern Cheyenne reservation. Defendant began assaulting 

Mr. Etchemendy in the back seat, both beating and choking 

him, and attempting to force some pills down his throat. 
Doretta Four Bear testified that during the assault, Diane 

Bull Coming took the wallet from Mr. Etchemendy's pocket and 

rifled through it. Mr. Etchemendy was also ordered to empty 

his pockets. From his wallet, the group obtained credit 

cards and two checks issued to Mr. Etchemendy from his employer. While the car was traveling over the unpaved portion 

of Highway 332, the driver, Diane Bull Coming, was told to 

stop the car. The brothers took Mr. Etchemendy out of the 

car and again assaulted him. After making him totally undress, they put him in the trunk of the car. All this occurred before they entered the reservation. 

Near Ashland, at about 5 a.m., they picked up Lavonne 

Quiroz. Vernon and Ms. Quiroz attempted to siphon gas from 

some local pickups. They then drove to Rabbit Town where 

they stole a tool box. Doretta Four Bear was frightened of 

the group's activities and took this opportunity to flee to a 

friend's house. The group used one of Mr. Etchemendy's 

credit cards to purchase gas in Ashland. They next drove to 

Broadus. 

At Broadus, which is off the reservation, defendant 

cashed one of Mr. Etchemendy's paychecks for $179.31. After 

sharing the money with Vernon, defendant used some of it to 

buy alcohol (called Ever-Clear) . At the suggestion of Diane 

Bull Coming, the group decided to drive south to Gillette, 

Wyoming. 

The car turned off on a side road from Highway 59 and 

stopped. Mr. Etchemendy was let out of the truck, but defendant held a metal pipe and warned him he would be beaten if 

he tried to flee. Mr. Etchemendy had been blindfolded but 

Vernon took the blindfold off at this point. Defendant then 

became concerned that Mr. Etchemendy could identify them. 

Defendant forced Mr. Etchemendy to drink a mixture of beer 

and Ever-Clear, evidently in an effort to make him pass out. 
He was then put back in the trunk. This occurred off the 

reservation. 

The group continued on to Biddle, Wyoming, and arrived 

there about 11 a.m. There they cashed Mr. Etchemendyls 

second paycheck. As they continued to travel south, the car 

stopped twice. During one stop defendant, while again holding the metal pipe, told Mr. Etchemendy he would die if he 

opened his eyes. Back in the car, defendant spoke to Mr. 

Etchemendy through the back seat. Mr. Etchemendy informed 

defendant that he was married and had two sons. 

At Gillette, Wyoming, Vernon used Mr. Etchemendyls 

credit card to buy gas. They gave Mr. Etchemendy another 

drink mixed with Ever-Clear. Diane Bull Coming testified 

that while in the town of Gillette, Mr. Etchemendy began 

pounding on the trunk and calling for help. Defendant spoke 

in his native language and told Vernon they would have to 

kill Mr. Etchemendy. Vernon and Ms. Quiroz remained in a bar 

while defendant and Diane Bull Coming left in the car. 

Defendant and Diane Bull Coming left Gillette, turned 

onto a side road, and stopped when they were not visible from 

the main road. Ms. Bull Coming testified that defendant took 

the pipe, opened the trunk, and began striking Mr. Etchemendy 

with the pipe, a tire iron, and finally a rock. He also 

kicked him with his boots. She testified that during this 

assault the victim cried out, "Oh God, no, God, no!" Ms. 

Bull Coming testified that after the beating defendant threw 

the pipe and tire iron into a field, got back into the car 

and they drove off. After driving a short distance, defendant told Ms. Bull Coming to stop the car so he could shoot 

Mr. Etchemendy. He then attempted to shoot the victim by 

placing a .22 caliber shell in a vise grip and hitting the 

shell with a hammer. 
Defendant and Ms. Rull Coming drove on but had two flat 

tires and were forced to stop at a lounge outside of 

Gillette, Wyoming. Here, Ms. Bull Coming testified that she 

saw defendant attempting to cut Mr. Etchemendy's throat with 

a small knife. She stated that she went into the lounge and 

defendant later came in and said the victim was dead. 

About 5 p.m. Vernon and Ms. Quiroz joined defendant and 

Ms. Bull Coming. They purchased new tires and then traveled 

toward Buffalo, Wyoming. Before leaving Campbell County, 

Wyoming, they left the body at an abandoned community hall 

approximately twenty miles south of Gillette. 

A rancher who lived in the area was driving by with his 

stepson and noticed the car parked by the community hall. He 

testified that he saw three people walk over to the car, shut 

the trunk, get in and drive off. He testified that they 

failed to shut a gate so he drove after them, blinking his 

lights, and finally stopping sideways in the road in front of 

them to force a stop. Noting that the car had a Montana 

license plate, he wrote down the license number. When he 

told the qroup to return and close the gate, he stated that 

they agreed to do so. LaVonne Quiroz testified that they 

drove back to the gate, whereupon she and defendant got out 

of the car and closed the gate. 

When the qroup stopped in Sheridan, Wyoming, to get a 

motel, Vernon and Ms. Quiroz took off in the car, leaving 

defendant and Ms. Rull Coming behind. Defendant and Ms. Bull 

Coming went to a store in Sheridan and purchased new clothes 

with one of the credit cards. Defendant also attempted to 

purchase new boots at a different store, but the salesperson 

could not accept the credit card. At a truck stop defendant 

and Diane Bull Coming changed their clothing and threw away 

the clothes they were wearing. They then hitchhiked to 

Billings, Montana, using fictitious names. 
On October 19, defendant was arrested in Billings at the 

home of Lorraine Four Colors. Prior to being arrested, 

defendant and Ms. Bull Coming related the incident to Lorraine Four Colors. When defendant learned that his brother, 

Vernon, had heen arrested he directed Ms. Bull Coming to 

destroy the credit cards. 

On October 19, the body of the victim was located by law 

enforcement officers in the community hall near Gillette, 

Wyoming. An autopsy established that the cause of death was 

impact trauma to the back and left side of the victim's head. 

I 

Whether the District Court had jurisdiction over the 

crimes for which the defendant was convicted. 

In a pretrial motion to dismiss, defendant contended 

that Montana lacked jurisdiction to prosecute these offenses. 

This motion was briefed and argued by the parties. The 

District Court denied this motion. 

On appeal, defendant contends that Montana lacks jurisdiction to prosecute these crimes for two reasons. First, he 

contends that jurisdiction to prosecute the deliberate homicide was properly in the State of Wyoming rather than Montana. Second, defendant contends that federal jurisdiction 

is exclusive pursuant to the Major Crimes Act, 18 U.S.C. $ 

1153, because defendant is a full-blooded, enrolled member of 

the Northern Cheyenne Tribe, and also the offenses occurred 

"within Indian Country." We will address each jurisdictional 

issue separately. 

The statute governing State jurisdiction for a criminal 

offense is 5 46-2-101, MCA, which provides in pertinent part: 

(1) A person is subject to prosecution in this 

state for an offense which he commits while either 

within or outside the state by his own conduct or 
that of another for which he is legally accountable 

if: 

(a) the offense is committed either wholly or 

partly within the state[.] 

(2) An offense is committed partly within this 

state if either the conduct which is an element of 

the offense or the result which is an element 

occurs within the state. 

Pursuant to 5 46-2-101, MCA, Montana has jurisdiction if 

the offense is committed "partly within" the state. This 

Court has previously construed this statute in State v. White 

(Mont. 1988), 750 P.2d 440, 441, 45 St.Rep. 270, 272-73, as a 

"broad assertion of jurisdiction." See also State v. Bush 

(1981), 195 Mont. 475, 477-78, 636 P.2d 849, 851. Analyzing 

the elements of each of the three offenses for which defendant was convicted, it is clear that an element of each 

offense occurred off the reservation, and was committed 

"partly within" Montana. 

Defendant was convicted of robbery, described in 5 

45-5-401, MCA, as follows: 

Robbery. (1) A person commits the offense of 

robbery if in the course of committing a theft he: 

(a) inflicts bodily in jury upon another [ .I 

Theft is defined in § 45-6-301, MCA, which provides: 

Theft. (1) A person commits the offense of 

theft when he purposely or knowingly obtains or 

exerts unauthorized control over property of the 

owner and: 

(a) has the purpose of depriving the owner of 

the property [ .I 

In the present case the testimony established that Diane 

Bull Coming took Mr. Etchemendy's wallet containing credit 
cards and two employment checks, while defendant inflicted 

bodily injury upon Mr. Etchemendy. Undisputed testimony 

demonstrated that this action occurred on the Tongue River 

Road, several miles before the group entered the reservation. 

While the testimony does establish that defendant did not 

initially take Mr. Etchemendy's wallet from him, the uncontradicted evidence establishes that the defendant exerted 

unauthorized control over the property of Mr. Etchemendy when 

he cashed the Etchemendy payroll check at a bar in Broadus, 

Montana. 

Additionally, one may be convicted of the offense of 

robbery even though he did not actually take the property 

himself, if he was a participant in the crime. - See State v. 

Ortega (1984), 209 Mont. 285, 290-91, 679 P.2d 793, 796; 

State v. Hart (Mont. 1981), 625 P.2d 21, 30, 38 St.Rep. 133, 

142. 

We conclude that the uncontradicted evidence established 

that elements of the crime of robbery were committed within 

the State of Montana and off the Indian Reservation. We 

affirm the District Court's denial of the motion to dismiss 

the robbery for lack of state jurisdiction. 

Defendant was convicted of aggravated kidnapping pursuant to 5 45-5-303(1) (c), MCA, which provides: 

Aggravated kidnapping. (1) A person commits 

the offense of aggravated kidnapping if he knowingly or purposely and 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 any of the 

following purposes: 

(c) to inflict bodily injury on or to terrorize the victim or another[.] 
Again, it is clear that Mr. Etchemendy was both restrained 

and beaten by defendant within Montana before the group 

entered the reservation. Defendant's physical restraint and 

infliction of bodily injury upon Mr. Etchemendy in the back 

seat of the car began well before the group entered the 

reservation. Diane Bull Coming and Doretta Four Bear both 

testified that shortly thereafter and before entering the 

reservation, the car stopped and defendant and his brother 

assaulted the victim outside the car. Then, rather than 

placing him back in the car, they ordered him to strip, and 

placed him in the trunk of the car. Boxer shorts, identified 

at trial as belonging to the victim, were found near Highway 

332 in Custer County, approximately two miles before the 

border of Rosebud County, and off the reservation. This 

evidence corroborates the testimony as to where the victim 

was placed in the trunk. The evidence clearly establishes 

that all elements of the aggravated kidnapping were satisfied 

in Montana, off the reservation. We affirm the District 

Court's denial of defendant's motion to dismiss the aggravated kidnapping for lack of state jurisdiction. 

Defendant was also convicted of deliherate homicide 

under the "felony murder rule." Section 45-5-102(1) (h), MCA, 

codifies the felony murder rule, providing: 

Deliberate homicide. (1) A person commits 

the offense of deliberate homicide if: 

(b) he attempts to commit, commits, or is 

legally accountable for the attempt or commission 

of robbery, sexual intercourse without consent, 

arson, burglary, kidnapping, aggravated kidnapping, 

felonious escape, felony assault, aggravated assault, or any other forcible felony and in the 

course of the forcible felony or flight thereafter, 
he or any person legally accountable for the crime 

causes the death of another human being. 

Under the "felony murder rule" it is not necessary to prove 

the "purposely or knowingly" element of the crime of deliberate homicide. State v. Nichols (1987), 225 Mont. 438, 

449-50, 734 P.2d 170, 176-77; State v. Sunday (1980), 187 

Mont. 292, 307, 609 P.2d 1188, 1197. Rather, the intent to 

commit the underlying felony replaces this element. 

In State ex rel. Murphy v. McKinnon (1976) , 1.71 Mont. 

120, 556 P.2d 906, we stated that "for the felony murder rule 

to apply a causal connection between the felonious act and 

the death must be present." McKinnon, 556 P.2d. at 910. 

Therefore, in the present case the elements the State had to 

prove were: 

1) the commission of the felony 

2) that a death occurred 

3) a causal connection between the first felony 

and the death. 

As previously established, the first element of the 

deliberate homicide, the commission of the underlying felony 

of aggravated kidnapping, occurred in Montana. The causal 

connection element was also satisfied by Montana-based conduct. Only the actual death occurred in Wyoming. 

Defendant however, urges that Wyoming has jurisdiction 

over the deliberate homicide since the decision to kill the 

victim occurred in Wyoming. Defendant presents a rather 

convoluted argument in support of this theory which we will 

attempt to summarize. Defendant was convicted of deliberate 

homicide under the felony murder rule, which does not require 

that the homicide be intentional. Defendant contends, however, that in reality the homicide was intentional and therefore did not flow from the kidnapping. He urges that the 
homicide was a distinct offense and that all elements of the 

homicide occurred in Wyoming. 

We reject this argument since defendant was charged with 

deliberate homicide under the felony murder rule, the jury 

was instructed on this offense, and the jury in fact found 

him guilty as charged. Defendant's attempt to re-define the 

requisite elements of the homicide in this case in order to 

support this jurisdictional contention has little merit. 

Additionally, defendant misconstrues the requirements of 

the offense of felony murder. It appears defendant is arguing he cannot be convicted of deliberate homicide under the 

felony murder rule if the killing was intentional. The 

felony murder statute only eliminates the necessity that the 

State prove the defendant knowingly or purposely killed Mr. 

Etchemendy. That statute does not suggest that if in fact 

the defendant knowingly or purposely killed Mr. Etchemendy, 

somehow the defendant cannot be found guilty of deliberate 

homicide under the felony murder rule. The evidence in this 

case clearly establishes the commission of aggravated kidnapping in Montana, the death in Wyoming, and a causal connection between the aggravated kidnapping and death. We 

conclude that the statutory requirements under $ 46-2-101, 

MCA, were met. We affirm the District Court's denial of 

defendant's motion to dismiss the deliberate homicide based 

on lack of State jurisdiction. 

As a second jurisdictional issue, defendant contends 

that pursuant to the Major Crimes Act, federal jurisdiction 

is exclusive. The Major Crimes Act, 18 U.S.C. 1153 

provides: 

Any Indian who commits against the person or property of another Indian or other person any of the 

following offenses, namely, murder, manslaughter, 

kidnapping, maiming, a felony under chapter 109A, 
incest, assault with intent to commit murder, 

assault with a dangerous weapon, assault resulting 

in serious bodily injury, arson, burglary, robbery, 

and a felony under section 661 of this title within 

the Indian country, shall be subject to the same 

laws and penalties as all other persons committing 

any of the above offenses, within the exclusive 

jurisdiction of the United States. 

In the present case the critical language of this statute is "within the Indian country." An Indian committing one 

of the enumerated crimes within Indian country is subject to 

federal jurisdiction. The issue of State jurisdiction over 

an Indian defendant is resolved factually in the present 

case. As previously established, elements of the crimes of 

robbery, aggravated kidnapping, and deliberate homicide were 

satisfied within Montana and outside of Indian country. 

Defendant seems to be claiming that if any part of an 

offense occurs within Indian country, the State has no jurisdiction. However, this is not the law. The State has jurisdiction for off-reservation offenses even though a connected 

offense may occur within Indian country. See, e.g., State 

v. Rossbach (Minn. 1980), 288 N.W.2d 714 (state had jurisdiction where Indian defendant, standing inside reservation, 

fired rifle across boundary of reservation at a deputy sheriff standing on Minnesota land) ; State v. Wickler (S.D. 

1977), 260 N.W.2d 356 (state had jurisdiction to prosecute 

seven Indian defendants who fired shots from reservation onto 

state land). See also 41 Am.Jr.2d Indians S 67 (1968), 

stating: ". . . Indians are amenable to state laws for 

offenses against such laws committed by them off the reservation within the limits of the state, . . .I1 While it is true 

that the victim was taken onto the reservation during the 

course of the kidnapping, in fact, crossing the reservation 

three times, this journey through the reservation does not 

deprive the State of its jurisdiction. 
Defendant relies on United States v. Torres (7th Cir. 

1984), 733 F.2d 449, cert. denied, 469 U.S. 864 (1984), as 

authority for his contention that federal jurisdiction is 

exclusive. In Torres, federal jurisdiction attached where 

the "major portion" of an ongoing conspiracy to "get rid of 

the victim" occurred on the reservation, even though defendants began to formulate the conspiracy, and abducted the 

victim outside the reservation. Torres, 733 F.2d at 460. 

The present case is factually distinguishable from Torres 

since only a minor portion of the crimes occurred on the 

reservation. Torres does not foreclose state jurisdiction. 

We conclude that Montana had jurisdiction to prosecute 

all three charged offenses as required under 5 46-2-101, MCA. 

We affirm the District Court's denial of the motion to dismiss based on lack of jurisdiction. 

I1 

Whether the District Court committed prejudicial error 

in ordering the defendant to disclose to the State any statements taken from individuals identified by the latter as 

possible witnesses. 

At an omnibus hearing on March 25, 1988, the court 

granted the State's request that defendant produce copies of 

statements made by individuals whom the defendant intended to 

call as witnesses at trial. At a pretrial hearing on May 31, 

1988, defendant refused to produce certain statements taken 

by his own investigator from witnesses for the State. On 

June 1, 1988, the State filed a motion to compel discovery of 

all witnesses defendant intended to call at trial. That 

motion was granted. The court ordered production pursuant to 

S 46-15-323(4), MCA, which provides: 

(4) Simultaneously with the notice of defenses submitted under subsection (3), the defendant 
shall make available to the prosecutor for testing, 

examination, or production: 

(a) the names and addresses of all persons, 

other than the accused, whom he will call as witnesses at trial, together with all statements made 

by them in connection with the particular case; 

(b) the names and addresses of experts whom 

he will call at trial, together with the results of 

their physical examinations, scientific tests, 

experiments, or comparisons, including all written 

reports and statements made by them in connection 

with the particular case; and 

(c) a list of all papers, documents, photographs, and other tangible objects that he will use 

at trial. 

Defendant challenges the court's order on two bases. He 

first makes a constitutional challenge to this statute, 

contending that the statute violates the Fifth Amendment in 

that it may require him to provide proof necessary to convict 

himself. He urges that statements he has taken from these 

witnesses may inadvertently supply corroborating testimony 

which the State is lacking. He also argues that he should 

not be required to produce these statements prior to trial 

since a criminal defendant is not required to produce any 

witnesses and because a criminal defendant may not make the 

decision of whether to call witnesses until after the State 

has presented its case. Defendant also claims this statute 

violates the work product rule. 

The same argument regarding this statute was addressed 

in State ex rel. Carkulis v. Dist. Ct. of Thirteenth Jud. D. 

(Mont. 1988), 746 P.2d 604, 44 St.Rep. 1954, wherein we 

upheld the validity of S 46-15-323, MCA, both against a 

constitutional challenge and a claim that it violated the 

work product doctrine. In Carkulis, we began by noting the 

rationale stated in Williams v. Florida (1970), 399 U.S. 78, 

90 S.Ct. 1893, 26 L.Ed.2d 446, as follows: 
The United States Supreme Court in Williams v. 

Florida (1970), 399 U.S. 78, 90 S.Ct. 1893, 26 

L.Ed.2d 446, upheld a state statute requiring the 

disclosure of an alibi defense and alibi witnesses 

to the state prior to trial as not violating the 

federal right against self-incrimination. Williams 

is essentially grounded on the "accelerated disclosure" theory, that is, that at trial, the defendant 

would have to reveal his alibi and his witnesses 

relating thereto, and that accelerating the disclosure does not affect his constitutional rights 

against self-incrimination. 

Carkulis, 746 P.2d at 608. 

In Carkulis, after approving the Williams rationale, we 

went on to apply the accelerated disclosure theory to the 

disclosure required in a defendant's general defense. We 

reasoned that if defendant intended to call certain witnesses 

at trial, requiring pretrial disclosure of the statement did 

not violate Fifth Amendment rights. We reaffirm the constitutionality of 5 46-15-323(4), MCA, as here applied. 

In the present case, defendant also predicates his claim 

of error on the fact that he was required to produce statements taken from witnesses for the State. Since the statute 

and our holding in Carkulis only require production of statements of witnesses which the defendant will call at trial, he 

claims this was error. 

Defendant's contentions fail for three reasons. First, 

defendant did not request a protective order for these statements, which he could have done pursuant to § 46-15-328, MCA. 

Second, although defendant emphasizes that these statements 

were taken from the State's witnesses, defendant listed all 

State witnesses on his own list of witnesses. Thus the 

statements are precisely those which are required to be 

produced pursuant to S 46-15-323 (4) , MCA. As a final comment, the record fails to demonstrate any manner in which 

defendant. was prejudiced by the production of these 
statements. The District Court record does not contain the 

statements at issue, and defendant made no offer of proof as 

to their alleged prejudicial nature. Defendant's argument in 

regard to the witness statements is thus only academic in 

nature, failing both factually and legally. We affirm the 

order by the District Court which required production of the 

witness statements. 

I11 

Whether the District Court committed prejudicial error 

by admitting into evidence various exhibits. 

Defendant objects to the introduction at trial of several pieces of evidence. Specifically, he objects to the 

introduction of the red tool box, three items of defendant's 

clothing, the pipe and photographs of it, the vice grip and 

an associated residue swab, and photographs of the victim's 

body where it was found in the abandoned community hall. He 

bases these alleged errors on arguments of relevance and 

prejudice. 

An exhibit must be relevant to be entered at trial, and 

a district court has broad discretion in determining relevance. State v. Oman (1985), 218 Mont. 260, 264, 707 P.2d 

1117, 1119. Relevance is defined in Rule 401, M.R.Evid., as 

follows: 

Relevant evidence means evidence having any 

tendency to make the existence of any fact that is 

of consequence to the determination of the action 

more probable or less probable than it would be 

without the evidence. Relevant evidence may include evidence bearing upon the credibility of a 

witness or hearsay declarant. 

In Oman, we discussed relevance as follows: 

The test of relevance is whether an item of evidence will have any value, as determined by logic 

and experience, in proving the proposition for 
which it is offered. Generally, whatever naturally 

and logically tends to establish a fact in issue is 

relevant, and that which fails to qualify in this 

respect is not relevant. (Citation omitted.) 

Oman, 707 P.2d at 1119. 

In the present case the State relied on accomplice 

testimony, which must be corroborated pursuant to 

5 46-16-213, MCA. In substance, this statute provides that 

accomplice testimony cannot sustain a conviction unless it is 

independently corroborated by other evidence which tends to 

connect the defendant to the crime. Having reviewed the 

evidence presented at trial, we conclude that the items of 

evidence to which defendant now objects were relevant in that 

each item independently corroborated the testimony of one of 

the accomplices. 

Defendant contends that the admission of the tool box 

was irrelevant and was prejudicial as evidence of another 

crime. The tool box was relevant however, as corroborating 

the testimony of Doretta Four Bear regarding the sequence of 

events in Ashland and Rabbit Town. Additionally, the State 

was entitled to introduce the tool box even though it disclosed a crime other than the crimes charged, since it was a 

part of the corpus delecti and was inextricably related to 

the entire transaction. State v. Riley (1982), 199 Mont. 

413, 425-26, 649 P.2d 1273, 1279. 

Defendant objected to the introduction of a pipe and 

photographs of it, claiming that there was insufficient 

foundation. He claims that testimony by Officer Steve Hamilton indicated that the pipe was not in the same condition at 

trial as when it was found. At trial, Officer Hamilton 

testified that on October 20, 1987, he and another officer 

went to the location where the homicide was alleged to have 

occurred. While searching the area they found a pipe which 
appeared to have blood on it. The officer acknowledged at 

trial that the pipe had been wiped clean, yet positively 

identified it as the one they had found. Diane Bull Coming 

testified that defendant hit the victim with a pipe, and 

LaVonne Quiroz testified that the pipe was similar to the one 

with which defendant threatened the victim at one of the 

stops. The pipe was certainly relevant evidence, and was 

identified through trial testimony as the one found by the 

officers. We conclude the court did not err in admitting the 

pipe and related photographs. 

Defendant contends that the vice grips and a related 

residue swab should not have been admitted since no evidence 

of a bullet discharge links these to the crime. However, the 

testimony of Diane Bull Coming linked these to the crime. 

Defendant also contends these created the impression of 

viciousness and were therefore prejudicial. We see little 

merit to this contention. Other evidence established the 

viciousness of the crimes. The vice grips added little to 

this. 

Defendant objects to the admission of the clothes he was 

wearing when he was arrested. The shirt and jeans were new, 

but the boots were not new, and had some blood stains on 

them. These items served to corroborate the testimony by 

Diane Bull Coming that defendant purchased new clothes in 

Wyoming and threw away the blood-stained clothes he was 

wearing. She also testified that he attempted to purchase 

new boots in Sheridan, Wyoming, but was unsuccessful. 

Photographs of the abandoned community hall were admitted, two of which were close-ups of the upper body of the 

victim, and a third photo showed the victim's upper body from 

a few feet away. Defendant claims that these were not necessary to prove any issue and were highly inflammatory. The 

photographs showed the upper body, head, and right arm of the 
victim. The photographs were relevant to corroborate the 

testimony regarding the assaults upon Mr. Etchemendy as well 

as the death. The photographs corroborated testimony of 

Diane Bull Coming as to where the body was left, and the 

testimony of the rancher, who saw the car parked at the 

community hall. Additionally, the photographs did not show 

the left side of the victim's head, which was the side sustaining the actual blows. We have previously held that if 

relevant, the inflammatory nature of a photograph of the 

victim does not necessarily outweigh the probative value. 

State v. Siglar (1981), 210 Mont. 248, 256, 688 P.2d 749, 753 

(holding that the jury was entitled to know the nature and 

extent of the injuries and no method other than the photographs would demonstrate this as graphically or as well); 

Riley, 649 P.2d at 1280-81 (holding that photos were reasonably necessary to depict the multiplicity and extent of 

injuries). We conclude the photographs were relevant and not 

unduly inflammatory. 

We conclude that none of defendant's evidentiary objections are meritorious. 

IV 

Whether the District Court committed preiudicial error 

in refusing to give instructions offered by the defendant 

relating to lesser included offenses of aggravated kidnapping, in refusing to give defendant's instruction on accomplice testimony corroboration, and in giving an instruction 

relating to flight offered by the State. 

The court instructed the jury on the elements of aggravated kidnapping. Defendant contends that he was entitled to 

instructions on the lesser included offenses of unlawful 

restraint and kidnapping. He urges that the jury must be 

instructed on lesser included offenses if there is "some 
evidence" to support the lesser offense, citing State v. 

Hamilton (1980), 185 Mont. 522, 605 P.2d 1121. 

We have previously stated the test regarding the court's 

duty to instruct the jury on lesser included offenses, as 

follows: 

It is a fundamental rule that the defendant is 

entitled to an instruction on a lesser included 

offense if the evidence would enable the jury 

rationally to find him guilty of a lesser offense 

and to acquit him of the greater. Keeble v. United 

States (1973), 412 U.S. 205, 208, 93 S.Ct. 1993, 

1995, 36 L.Ed.2d 844, 847. But this Court has held 

that the District Court will not be put in error 

for refusing to instruct as to the lesser included 

offense, if the evidence is such to show that the 

defendant is either guilty of the offense charged 

or entitled to an acquittal. (Citations omitted. ) 

State v. Kyle (Mont. 1980), 628 P.2d 260, 263, 37 St.Rep. 

1447, 1451. See also State v. Ballenger (1987), 227 Mont. 

308, 312, 738 P.2d 1291, 1294 (court properly refused instructions on aggravated assault and felony assault where 

evidence demonstrated calculated, relentless beatings of 

child, resulting in child's death) ; State v. Farrell (1984) , 

207 Mont. 483, 491, 676 P.2d 168, 172-73 (court properly 

refused instruction on misdemeanor theft where evidence 

showed that amounts received by defendant were over $150, and 

no rational trier of fact could have found defendant guilty 

of misdemeanor theft); State v. Radi (1978), 176 Mont. 451, 

464, 578 P.2d 1169, 1177 (court properly refused instruction 

on lesser included offense of criminal trespass where no 

evidence could lead a jury to believe defendant was in building for an innocent purpose). 

Unlawful restraint is committed when a person "knowingly 

or purposely and without lawful authority restrains another 

so as to interfere substantially with his liberty." Section 
45-5-301 (1) , MCA. Kidnapping is committed when unlawful 

restraint is effected "by either secreting or holding [the 

victim] in a place of isolation or by using or threatening to 

use physical force. " Section 45-5-302 (1) , MCA. Defendant 

was charged with aggravated kidnapping, committed with a 

purpose to inflict bodily injury or terrorize the victim. In 

the present case, defendant was not entitled to an instruction on unlawful restraint unless there was evidence that the 

victim was not restrained by secreting him or by using force. 

He would have been entitled to an instruction on kidnapping 

only if there was evidence that no purpose to inflict bodily 

injury or terrorize the victim existed. There is no evidence 

in the record that the restraint of the victim was not accompanied by the use of force. Neither is there evidence of a 

kidnapping without a purpose of inflicting bodily injury or 

terrorizing the victim. The evidence would not reasonably 

support the lesser included offenses. We conclude that 

defendant was not entitled to an instruction on these lesser 

included offenses. 

Defendant also contends that his instructions regarding 

accomplice testimony should have been given, rather than the 

instructions which were given. The court's Instruction No. 

1 23 instructed the jury on accomplice testimony. Defendant's 

1 Court's Instruction No. 23: 

Testimony has been presented that one or more witnesses 

may be accomplices in this case. In this respect you are to 

be guided by the following rules of law: 

1. An accomplice is one who knowingly and voluntarily, 

with common intent with the principal offender, unites in the 

commission of a crime. One may become an accomplice by being 

present and joining in the criminal act, by aiding and abetting, with criminal intent, another in its commission or in 

being present by advising and encouraging its commission, hut 
instructions, Numbers 13, 16, 17 and 31, which he contends 

should have been given, were either redundant or not relevant 

to accomplice testimony. Defendant's Instruction No. 13 

described mental state; Instruction No. 16 dealt with the 

concept of accountability; Instruction No. 17 explained 

accomplice testimony and the need for corr~boration;~and 

Instruction No. 31 also dealt with accountability. 

knowledge and voluntary action are essential in order to 

impute guilt. 

2. It is a question of fact for the jury to determine 

from the evidence and from the law as given you by the court 

whether or not in this particular case one or more witnesses 

were or were not accomplices within the meaning of the law. 

3. The testimony of an accomplice ought to be viewed 

with distrust. 

4. A conviction cannot he had on the testimony of an 

accomplice unless he/she is corroborated by other evidence 

which in itself, and without the aid of the testimony of the 

accomplice, tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient 

if it merely shows the commission of the offense or the 

circumstances thereof. 

2 

Defendant's Instruction No. 17: 

You are instructed a conviction cannot be had on the 

testimony of one responsible or legally accountable for the 

same offense, unless the testimony is corroborated by other 

evidence which in itself and without the aid of the testimony 

of the one responsible or legally accountable for the same 

offense tends to connect the defendant with the commission of 

the offense. The corroboration is not sufficient if it 

merely shows the commission of the offense or the circumstances thereof. 

To be sufficient, corroborating evidence must show more 

than that a crime was in fact committed or the circumstances 

of its commission. 

The corroborating evidence must show more than a mere 

opportunity to commit the crime. It must raise more than a 
The instructions given adequately stated the law in 

regard to accomplice testimony. We conclude there was no 

error regarding jury instruction on accomplice testimony. 

As a final argument regarding jury instructions, defendant claims that it was error for the court to instruct the 

jury that flight by the defendant may show consciousness of 

guilt. He contends there was no evidence that defendant ever 

attempted to flee. 

At trial defendant did not object to the giving of this 

instruction, but only that it did not adequately define 

"flight." The State correctly notes that defendant may not 

change the basis of his objection on appeal. Sunday, 609 

P.2d at 1195. We note, however, that defendant's objection 

to this instruction on appeal is meritless since at trial a 

substantial amount of evidence was presented from which the 

jury could infer defendant's consciousness of guilt and the 

possibility of flight. Defendant left the community hall 

immediately after leaving the body, failing to close the 

gate. He also proceeded to leave Campbell County, Wyoming, 

suspicion of the defendant's involvement in, or opportunity 

to commit, the crime charged. But corroborative evidence 

need not be sufficient, by itself, to support a defendant's 

conviction or even to make out a prima facie case against 

him. Corroborating evidence may be circumstantial and can 

come from the defendant or his witnesses. 

One accomplice cannot supply the independent evidence 

necessary to corroborate another accomplice. 

Where the alleged corroborative evidence is equally 

consonant with a reasonable explanation pointing toward 

innocent conduct on the part of defendant, then such evidence 

does not tend to connect him with the commission of the 

offense and is in the realm of speculation, not corroboration. Where the claimed corroboration shows no more than an 

opportunity to commit a crime and simply proves suspicion, it 

is not sufficient corroboration to justify a conviction upon 

the testimony of an accomplice. 
using a fictitious name while hitchhiking. Defendant purchased new clothes and threw away the old blood-spattered 

clothes in Sheridan, Wyoming. He attempted to destroy evidence in Billings, Montana, after he learned of his brother's 

arrest. The evidence provided an adequate basis for the 

flight instruction. We conclude there was no error in the 

giving of this instruction. 

v 

Whether certain factual findings in the District Court's 

sentencing order were supported by the evidence. 

Defendant challenges the following findings of fact made 

by the District Court in its sentencing order: 

10. That the victim suffered a subdural 

hematoma, as a result of the beatings in Custer 

County, prior to the final beatings which led to 

his death. 

13. That the defendant knew that the victim 

was married and had a family. 

15. That the defendant killed JOHN MARTIN 

ETCHEMENDY, JR. by beating him on the head with a 

tire iron, rock and pipe. That the defendant also 

cut the victim's throat with a small knife and shot 

at him with a .22 shell which was held in a vice 

grip. 

22. That two of the aggravating circumstances 

set forth in S46-18-303 of the Montana Code Annotated apply in this case: 

A. The offense was Deliberate Homicide 

and was committed by means of 

torture. 

B. The offense was Aggravated Kidnapping which resulted in the death of 

the victim. 

Defendant contends that the above quoted findings are 

not supported by substantial credible evidence. This contention has no merit whatsoever in regard to the first three 
findings of fact. These three findings are accurate summaries of trial testimony which the court obviously chose to 

believe. Dr. Robert Deters conducted the victim's autopsy. 

He stated there was a subdural hematoma on the right side of 

the head caused by a series of insults to the head. He 

testified that the hematoma must have occurred at least an 

hour prior to the injuries to the left side of the head. The 

only beatings Mr. Etchemendy received prior to being placed 

in the trunk occurred in Custer County. No testimony indicates that he was beaten again prior to the fatal blows. We 

conclude that finding number 10 is supported by substantial 

credible evidence. 

As to findings number 13 and 15, Diane Bull Coming 

testified that defendant knew the victim was married and had 

two children. She also testified that defendant beat the 

victim with a tire iron, rock, and pipe, attempted to shoot 

the victim by use of a vice grip, and that defendant attempted to cut the victim's throat with a knife. Photographs and 

physical evidence corroborated this testimony. We conclude 

that these findings by the court are supported by substantial 

credible evidence. 

Defendant contends that the court's finding that the 

offense of deliberate homicide was committed by means of 

torture is not supported by the evidence. The fatal blows in 

Wyoming were brutally accomplished by use of a pipe, a tire 

iron and a rock. During this beating the victim cried out, 

"Oh God, no, God, no." Additionally, we cannot rationally 

separate the final beating from the entire criminal transaction which demonstrated a course of conduct involving brutality and extending over several hours. Prior to delivery of 

the fatal blows in Wyoming the victim was brutally assaulted 

several times and confined nude in the small trunk of a car 

on a cool morning for a number of hours. The evidence 
established that these prior beatings in Montana were severe 

enough to be potentially fatal. Dr. Deters testified that 

the subdural hematoma was potentially fatal. It is not 

possible to determine from the medical evidence the extent to 

which the prior beatings contributed to the victim's death. 

The beatings and restraint, culminating in the bludqeoning to 

death of the victim, constitute substantial credible evidence 

that the homicide was committed by means of torture. 

The determination that these acts were torturous is 

consistent with this Court's previous holdings regarding 

torture in death penalty cases. See, e.g., State v. Dawson 

(Mont. 1988), 761 P.2d 352, 360, 45 St.Rep. 1542, 1551-52, 

cert. denied, 109 S.Ct. 3200. (1989); (evidence supported 

finding that deliberate homicide was committed by means of 

torture where victims were bound and gagged in each others' 

presence, injected with unknown drugs, and strangled); State 

v. McKenzie (1976), 171 Mont. 278, 557 P.2d 1023, vacated, 

433 U.S. 905 (1977), on remand, 177 Mont. 280, 581 P.2d 1205 

(1978), cert. denied, 443 U.S. 912 (1979), on remand, 186 

Mont. 481, 608 P.2d 428 (1980), cert. denied, 449 U.S. 1050 

(1980) (holding that deliberate homicide was committed by 

means of torture where victim was killed by a blow which laid 

open her head, prior to which she was nonfatally strangled). 

We conclude that there exists substantial credible evidence 

to support a finding that defendant caused the victim's death 

by torture. We affirm the sentencing court's finding on this 

issue. 

VI 

Whether imposition of the death penalty is constitutional under the mandatory review criteria of S 46-18-310, MCA. 

On appeal, defendant also challenges the constitutionality of Montana's sentencing statutes which govern imposition 

of the death penalty. Defendant relies on a recent Ninth 
Circuit case, Adamson v. Ricketts (9th Cir. 1988), 865 F.2d 

1011, petition for cert. filed, 57 U.S.L.W. 3739 (U.S. March 

20, 1989) (No. 88-1553). In Adamson, the Ninth Circuit 

declared unconstitutional Arizona's sentencing statutes which 

govern imposition of the death penalty. In comparing Arizona's statutes with those of Montana, we note that they are 

similar. 

Defendant did not raise this specific objection to 

Montana's sentencing statutes at District Court. Although 

defendant urges that he could not have raised this contention 

at District Court since the Adamson case had not yet been 

decided, nevertheless we decline to address this issue on 

appeal. First, the Adamson decision is not binding on Montana, and we note that the decision has been appealed to the 

United States Supreme Court. Second, this issue was not 

raised at District Court and was neither substantively 

briefed nor argued before this Court. Thus it is not appropriate for this Court to consider the issue. As a final 

comment, we note that this Court has previously held these 

statutes to be constitutional based on similar challenges in 

Dawson, 761 P.2d at 360, and State v. Smith (1985), 217 Mont. 

461, 490-91, 705 P.2d 1087, 1105-06, cert. denied, 474 U.S. 

1073 (1986). 

We conclude that the imposition of the death penalty was 

constitutional under the review criteria of S 46-18-310, MCA. 

VII 

Whether the sentencing court committed prejudicial error 

in its consideration of victim impact statements. 

Although defendant does not raise this issue on appeal, 

we note that in its sentencing order the District Court made 

a finding of fact regarding the impact the victim's death has 

had on family members. That finding of fact states: 
20. the victim's family has been deprived of 

a son, husband and brother and the parents of the 

victim have been for some time and now are undergoing psychiatric counselling as a result of their 

son's death. 

The United States Supreme Court, in Booth v. Maryland 

(1987), 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440, held 

that the jury's consideration of a victim impact statement in 

that case was error, requiring resentencing. We choose to 

discuss this issue in the present case. 

In Booth, the State of Maryland had a statute requiring 

consideration at sentencing of victim impact statements if 

the victim suffered injury or death. In Booth the sentencing 

was done by the jury. The defendant was convicted of the 

murder of an elderly couple. Before sentencing, a lengthy 

statement written by the Maryland Division of Parole and 

Probation was read to the jury. It contained statements made 

by several family members, including a son, daughter, and 

granddaughter. The statements described the good character 

and reputation of the victims, and the emotional distress 

suffered by the various family members. The statement was 

lengthy and poignant, containing many facts regarding the 

impact on the family. 

The court held that consideration of the statement 

violated the Eighth Amendment in that it could influence the 

jury to impose sentence in an arbitrary or capricious manner. 

The court stated that a victim impact statement is irrelevant, that it improperly diverts the jury's attention away 

from the defendant and the crime, and that it is inconsistent 

with the reasoned decision-making required in a capital case. 

Booth, 482 U.S. at 503-09. 

In the present case the record contains no written 

victim impact statements. The source of the information 

about the parents' counselling is from the father's testimony 
at the presentence hearing. At this hearing the father also 

testified that the victim graduated from Montana College of 

Mineral Science and Technology with honors, that he had a 

wife and two sons, and that the wife had moved in with her 

parents since her husband's death. The father stated his 

opinion that this was an appropriate case for the death 

penalty. 

In two recent Montana cases this Court discussed whether 

consideration of victim impact statements at sentencing 

constituted reversible error. In Dawson, the presentence 

investigation report contained a three paragraph victim 

impact statement, which stated that three members of a family 

had died as a result of the homicide, and that the teenage 

daughter was undergoing counseling but "not doing so well." 

This Court concluded that Booth was not controlling in that 

sentencing was by the court, not the jury, and because the 

victim impact statement was not as lengthy or poignant as the 

one in Booth. Dawson, 761 P.2d at 361. -- See also State v. 

Keith (Mont. 1988), 754 P.2d 474, 487-88, 45 St.Rep. 556, 

573-75. The present case is distinguishable from -- Booth in 

that sentencing was by a judge rather than a jury, and there 

was no written victim impact statement. The testimony by the 

father was neither lengthy nor emotional. It was clearly not 

as questionable as the information considered in Booth. We 

conclude there was no reversible error in the sentencing 

court's consideration of the statements. 

VIII 

Supreme Court sentence review pursuant to $ 46-18-310, 

MCA . 

In reviewing a death sentence pursuant to $ 46-18-310, 

MCA, this Court must determine 1) whether the sentence was 

imposed under the influence of passion, prejudice, or any 

other arbitrary factor; 2) whether the evidence supports the 
court's findings on any mitigating and aggravating circumstances; and 3) whether the sentence is excessive or disproportionate to the penalty imposed in similar cases, 

considering both the crime and the defendant. 

Appellant has not contended that the sentence was imposed under the influence of passion, prejudice, or any other 

arbitrary factor. In Issue VII we discussed the District 

Court's consideration of a victim impact statement and concluded that there was no indication that defendant was prejudiced by this. Additionally, we note that the findings of 

the sentencing court are lengthy and dispassionate. From our 

review of the entire record we conclude that there is no 

indication that the sentence was imposed under the influence 

of passion, prejudice, or any other arbitrary factor. 

The second determination requires this Court to consider 

whether the evidence supports the sentencing court's findings 

of aggravating and mitigating circumstances. The court found 

two aggravating circumstances. It determined that the offense was deliberate homicide committed by means of torture, 

and also that the offense was aggravated kidnapping which 

resulted in the death of the victim. In Issue V we discussed 

the court's finding that the deliberate homicide was committed by means of torture, concluding that substantial credible 

evidence supported this finding. In Issue I we discussed the 

elements of aggravated kidnapping and the elements of deliberate homicide under the felony murder rule. We determined 

that the elements of each offense were satisfied. From this 

previous determination, we conclude that the second aggravating circumstance was supported by substantial credible 

evidence. 

The sentencing court found that the only possible mitigating circumstance was that the defendant had no significant 

history of prior criminal activity. It went on to conclude 
that when compared to the enormity of the offenses committed 

and circumstances thereof, that the mitigating circumstance 

was not sufficiently substantial to call for leniency. This 

same mitigating circumstance was present in Dawson, wherein 

this Court affirmed the sentencing court's refusal of leniency in light of the offenses committed. Dawson, 761 P.2d at 

361-62. See also Smith, 705 P.2d at 1097; State v. Coleman 

(1979), 185 Mont. 299, 331-32, 605 P.2d 1000, 1019-20, cert. 

denied, 446 U.S. 970 (1980). In the present case, in view of 

the offenses committed, we conclude that the evidence supports the court's finding that the mitigating circumstance is 

not sufficiently substantial to call for leniency. 

Finally, this Court must determine whether the sentence 

is excessive or disproportionate to the penalty imposed in 

similar cases, considering both the crimes and the defendants. Defendant has presented no argument on this, however 

in accordance with our statutory duty, we have compared the 

following cases appealed to this Court which involved similar 

crimes for which the death penalty was or could have been 

imposed: Dawson; State v. Keefe (1988), 759 P.2d 128, 45 

St.Rep. 1034; Keith; Smith; State v. Fitzpatrick (1980), 186 

Mont. 187, 606 P.2d 1343, cert. denied, 449 U.S. 891 (1980), 

rev'd on other grounds, 869 F.2d 1217 (9th Cir. 1989), cert. 

denied, 110 S.Ct. 203 (1989); Coleman; and McKenzie. 

After examination of such factors as the gravity of the 

offenses, the brutality with which they were committed, and 

the existence of any factors meriting leniency, we hold that 

the sentence in the present case is not disproportionate or 

excessive to othexs imposed in similar cases. All the 

above-cited cases, except Keefe, involved a death penalty 

imposed for the aggravated kidnapping and subsequent homicide 

of a victim. So too does this case. The factor meriting 

leniency in Keefe, namely, the fact that Keefe was under the 
age of 18 at the time he committed the three homicides and 

thus given life rather than death sentences, does not exist 

in this case. Lester Kills on Top was 25 years of age at the 

time he committed the charged crimes. We conclude that the 

homicide in this case, as in the other above-mentioned cases, 

involved the vicious, senseless, and calculated killing of an 

innocent person. 

IX 

Whether the present death penalty constitutes cruel and 

unusual punishment prohibited by the United States and Montana Constitutions. 

We here respond in part to the dissent which contends 

that the death penalty in this case constitutes cruel and 

unusual punishment prohibited by the Constitutions. The 

Eighth Amendment to the United States Constitution and Montana Constitution Article 11, Section 22, prohibit punishment 

which is cruel and unusual. The death penalty is not in all 

circumstances cruel and unusual punishment, Gregg v. Georgia 

(1976), 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859, but it 

may not he imposed arbitrarily or capriciously, Furman v. 

Georgia (1972), 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346. 

Using the factors cited by Justice Brennan in Furman, 

the dissent concludes that the death penalty in this case 

constitutes cruel and unusual punishment because the death 

penalty is not acceptable to contemporary Montana society, 

and because the death penalty statutes of Montana allow for 

arbitrary conduct. 

In Montana we have a much clearer expression of the view 

of the citizens of the State than is present in many other 

states. In 1972 the people of Montana decisively voted to 

retain the death penalty. As stated in State v. McKenzie 

(1976), 171 Mont. 278, 294, 557 P.2d 1023, 1033: 
. . . The people of Montana 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. 

A statewide election less than 20 years ago, in which the 

majority vote approved the death penalty by approximately 

2-1, profoundly supports a conclusion that the death penalty 

is acceptable to the contemporary society of Montana. 

After the decision of the United States Supreme Court in 

Furman, as well as the cases decided by that court in 1976, 

the Montana Legislature in 1977 enacted the extensive provisions in death penalty sentencing which are set forth today 

in 5s 46-18-301 through 310, MCA. A brief summary of the key 

portions of those sections follows. Section 46-18-301, MCA, 

provides that the judge who presided at the trial shall 

conduct a separate sentencing hearing to determine the existence or nonexistence of the aggravating and mitigating 

circumstances set forth in 55 46-18-303 and 304, MCA. Section 46-18-302, MCA, provides in pertinent part as follows: 

In the sentencing hearing, evidence may be presented as to any matter the court considers relevant to 

the sentence, including but not limited to the 

nature and circumstances of the crime, the defendant's character, background, history, and mental 

and physical conditions and any other facts in 

aggravation or mitigation of the penalty . . . Evidence admitted at the trial relating to such 

aggravating or mitigating circumstances shall be 

considered without reintroducing it at the sentencing hearing. . . . 

Section 46-18-303, MCA, enumerates specific aggravating 

circumstances. The aggravating circumstances in this case 

were that the offense was deliberate homicide and was committed by means of torture, and that the offense was aggravated 

kidnapping which resulted in the death of the victim. Section 46-18-304, MCA, sets forth mitigating circumstances. 
The only one found by the District Court was that the defendant had no significant history of prior criminal activity. 

The most recent amendment to this part of the statutes included an aggravating circumstance added by the Legislature 

in 1989. While the view of the Montana Legislature does not 

necessarily establish the view of the people of Montana, it 

does indicate a continuing attempt on the part of the Montana 

Legislature to maintain the death penalty in Montana, while 

meeting the requirements set forth by the various decisions 

of the United States Supreme Court. We conclude that the 

death penalty is acceptable to the contemporary society of 

the State of Montana. 

The dissent concludes that Montana's statutes allow for 

arbitrary conduct on the part of the sentencing judge. In 

his special concurrence in McKenzie, Justice Haswell considered the issue of whether the Montana statutes governing 

imposition of the death penalty were arbitrary. He concluded 

they were not arbitrary and that they met the standards of 

Furman. McKenzie, 557 P.2d at 1045-46. Since the date of 

McKenzie, the Montana Legislature has added the statutory 

list of mitigating factors which must be considered, and has 

made other amendments as well. 

The dissent points out that under the provisions of 5 

46-18-302, MCA, the sentencing court may consider "any matter 

relevant to the sentence whether or not admissible under 

criminal rules." The dissent suggests that this giving of 

broad discretion allows consideration of additional aggravating factors which have no direct bearing on the criminal 

responsibility of the defendant. As previously quoted, S 

46-18-302, MCA, does allow consideration of other matters by 

the sentencing court. We further note that under that section, the sentencing court is allowed to consider evidence 

admitted at the trial relating to both aggravating and 
mitigating circumstances without any reintroduction of that 

evidence. We also note that the sentencing court is required 

to make specific written findings of fact. Section 

46-18-306, MCA. Further, it is appropriate that the sentencing court consider all evidence relevant to sentencing. This 

Court has previously concluded that the consideration of 

aggravating factors other than those statutorily enumerated 

was appropriate. In McKenzie v. Osborne (1982), 195 Mont. 

26, 640 P.2d 368, defendant attacked the sentence on the 

ground that the court had relied on aggravating factors other 

than those found in our statutes. This Court stated that the 

factors "properly relate to the propriety of the sentence of 

death." McKenzie, 640 P.2d at 382. 

The requirement that the sentencing court make these 

findings is significant when considering the issue raised by 

the dissent in regard to the jury verdict which found defendant guilty under the felony murder rule, and certain findings by the sentencing court indicating that defendant killed 

the victim. The dissent suggests the court's findings and 

the verdict are inconsistent and that the sentencing court 

became the fact-finder. We emphasize however, that these 

findings by the sentencing court were not improper. 

In Enmund v. Florida (1982), 458 U.S. 782, 102 S.Ct. 

3368, 73 L.Ed.2d 1140, the court held that the death penalty 

may be imposed if defendant killed, attempted to kill, or 

intended to kill or that lethal force be used. This determination as to defendant's culpability need not be made by a 

jury, but may be made at any point in the state criminal 

process. Cabana v. Bullock (1986), 474 U.S. 376, 106 S.Ct. 

689, 88 I,.Ed.2d 704, overruled in part on other grounds; 

Pope v. Illinois (1987), 481 U.S. 497, 504, 107 S.Ct. 1918, 

1922, 95 L.Ed.2d 439, 447. See also Tison v. Arizona (1987), 

481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127. 
Applying the rule of Enmund and Cabana, the sentencing 

court made the determination that defendant killed the victim. We conclude that the findings and conclusions by the 

sentencing court are properly within the provisions of the 

statutes and that there is no contradiction present casting 

doubt on the validity of the death penalty. Under our statutory provisions, the sentencing judge is clearly given the 

responsibility and power to make this determination. 

Our statutes now give adequate standards and guidelines 

to be applied by the sentencing court, yet allow for and 

encourage individualized sentencing. In Montana, sentence is 

imposed by the district court judge, whose background and 

experience is in comparing aggravating and mitigating 

factors. 

We conclude that in Montana the death penalty is acceptable to contemporary society, is not excessive for the crimes 

for which it may be imposed, and that our statutes guiding 

the sentencing process and our provisions for sentence review 

do not allow the prohibited arbitrary conduct on the part of 

the sentencing court. 

We hold that the death penalty here does not constitute 

cruel and unusual punishment prohibited by the United States 

and Montana Constitutions. 

Having reviewed the entire record in this case in affirming the determinations by the judge of the District 

Court, and in consideration of the Enmund and Cabana rules, 

this Court also independently finds and concludes that defendant killed Martin Etchemendy, Jr. We also find and conclude 

that two statutory aggravating circumstances were present in 

that the offense was deliberate homicide committed by means 

of torture and that the offense was aggravated kidnapping 

which resulted in the death of the victim. We therefore 

affirm both the convictions and the sentences. 
X 

This Court has reviewed the entire record and applicable 

law and hereby affirms the sentences of death imposed by the 

District Court. This case is remanded to the District Court 

which shall set a date for execution in accordance with the 

statutes. 

Affirmed . 

Fle Concur: ,/ 

Justices 
Mr. Justice John Conway Harrison specially concurring. 

I concur with the majority. I note with considerable interest 

the dissent of Mr. Justice Sheehy, and while I cannot concur in his 

dissent, I feel the time has come to note the frustrations of State 

Appellate Justices in capital cases. Like Justice Sheehy, I have 

authored three of some twelve cases that have been before this 

Court in the past twenty-nine years. In addition, I have read the 

briefs and voluminous transcripts of every case in which I upheld 

the death sentence. It was not a pleasant task to say the least, 

however, it comes with this office. 

I find myself disagreeing with some of Mr. Justice Sheehy's 

dissent and, in taking issue with his statements, I do not question 

either his integrity or his right to change his mind. First he 

notes that whether the death penalty is acceptable to contemporary 

Montana society is arguable. As he notes the last time it was 

submitted to the people of this State it was overwhelmingly 

approved. Yet as he says the last death penalty sentence that was 

carried out in this State was in 1944. What he fails to note is 

that in the past thirty years the United States Supreme Court has 

twice found State laws providing for the death sentence 

unconstitutional. This necessitated twenty-one States passing new 

laws in order to comply with the United States Supreme Court's 

opinions. Montana is one of those States. After each of the 
United States Supreme Court's opinions, a thousand or more persons 

sentenced to death had their sentences changed to life sentences 

and many of these people have since been paroled or have served the 

maximum time and returned to the various communities of this 

country. I find the fact that the States have redone their laws 

twice in this period indicative of strong support for the death 

sentence in those states. 

Likewise I disagree with his premise that the Montana 

experience since 1977, when the legislature put the sentencing in 

the hands of the trial judge, rather than the jury, cannot be said 

to represent the wide spectrum of public sentiment on social issues 

called for by the Supreme Court in Gregg v. Georgia (1976), 428 

U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859, reh. den. 429 U.S. 875, 

97 S.Ct. 197, 50 L.Ed.2d 158, (1976). Rather, I find that trial 

judges, like appellate judges, take great care and caution before 

ever sentencing a person to death. I believe this protection for 

a defendant prevents runaway jury passions. 

It is not the various State trial judges or justices of 

appellate courts who have delayed the carrying out of their laws 

on capital punishment. That obvious honor belongs in the Federal 

system. The worst example in this State is that of Duncan McKenzie 

who was convicted in 1975, and who has now spent some fourteen 

years on death row. There was a time in our history when people 

worried about the execution of Caryl Chessman, a murderer in 
~alifornia, who spent some seven years on californials death row. 

Chessman v. Teets (1957), 354 U.S. 156, 77 S.Ct. 1127, 1 L.Ed.2d 

1253. He was just a newcomer to death row compared to McKenzie, 

whose case has been like a yo-yo ever since it left this Court and 

went into the Federal system. It has been said of McKenziels case 

that he has a death sentence but "he will carry it out by dying of 

old age. l1 

There is no more difficult work, nor emotional task than that 

given jurors, trial judges and appellate justices in finding a 

human being guilty of murder, and sentencing, upholding or 

approving of a death sentence. In each of the cases heard and 

approved by this Court we have had twelve jurors find the defendant 

guilty, a trial judge both approve of their findings and give the 

sentence, followed by seven appellate justices carefully reading 

the record and finding that the defendant had a fair trial and was 

properly sentenced. Throughout the trial and appellate 

proceedings, competent trial lawyers plus judges and justices, many 

of whom have tried and defended capital cases in their practice, 

have been given the duty of administering justice. However, once 

it leaves the State jurisdiction and goes into the Federal system 

often times, due to the multiple cases before both the Circuit 

Courts and the Supreme Court, law clerks review the work of the 

State jurisdiction. While the United States Supreme Court can ask 

for transcripts of the cases I am informed that often they do not 
have them as did the State Supreme Courts in their review of the 

cases. As a result we have over 2,000 prisoners on death row in 

the various States having capital punishment statutes. The law 

should have some finality but as witnessed above in the McKenzie 

case, there seems to be none. Only the United States Supreme Court 

can provide the answer and that answer is long overdue. 
Justice William E. Hunt, Sr. specially concurs: 

I concur with the result reached by the majority 

opinion, but do not agree with all that is said in that 

opinion. 

/' 
Justice John C. Sheehy, dissenting: 

For a long time I have had the moral conviction that 

exacting the penalty of death in criminal cases was 

improper. I have come to the legal conviction that the 

death penalty is indeed cruel and unusual punishment and so 

prohibited by the Eighth Amendment to the United States 

Constitution. The Cruel and Unusual Punishment Clause is 

applicable to the states through the Due Process Clause of 

the Fourteenth Amendment. Robinson v. California (1962), 

370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758. 

This case comes to us on a direct appeal and also under 

the automatic review of death penalty sentences pursuant to 

5 46-18-307, MCA. Whether on appeal or under automatic 

review, this Court is required under 46-18-310, MCA, to 

determine whether or not the death sentence was properly 

imposed by the District Court. The automatic review 

provision was adopted by the legislature in 1977, as an 

obvious response to Furman v. ~eorgia (1972), 408 U.S. 238, 

92 S.Ct. 2726, 33 L.Ed.2d 346. The history of the action by 

the states following Furman is set out in Pulley v. Harris 

(1984), 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29. There 

the Supreme Court stated: 

Harris's submission is rooted in Furman v. 

Georgia, 408 U.S. 238 (1972). In Furman, the 

court concluded that capital punishment, as then 

administered under the statutes vesting unguided 

sentencing discretion in juries and trial judges, 

had become unconstitutionally cruel and unusual 

punishment. The death penalty was being imposed 

so discriminatorily (408 U.S. at 240) (Douglas, J. 

concurring) so wantonly and freakishly, id. at 

306, (Stewart, J. concurring) , and SO 

infrequently, id. at 370 (White, J. concurring), 
that any given death sentence was cruel and 

unusual. In response to that decision, roughly 

two-thirds of the States promptly redrafted their 

capital sentencing statutes in an effort to limit 

jury discretion and avoid arbitrary and 

inconsistent results. All of the new statutes 

provide for automatic appeal of death sentences. 

Most, such as Georgia's, require the reviewing 

court, to some extent at least, to determine 

whether, considering both the crime and the 

defendant, the sentence is disproportionate to 

that imposed in similar cases. Not every State 

has adopted such a procedure. In some States, 

such as Florida, the appellate court performs 

proportionality review despite the absence of the 

statutory requirement; in others, such as 

California and Texas, it does not. 

Pulley, 465 U.S. at 44. 

The appeal here and the automatic review provisions 

bring to this Court once again yet another death penalty 

case and brings me face to face with the ultimate question, 

is the imposition of the death as prescribed by Montana 

statutes in capital cases cruel and unusual punishment and 

so forbidden by the United States Constitution? Indeed, 

does the imposition of the death penalty also offend our 

state constitution which likewise prohibits cruel and 

unusual punishment (Art. 11, § 22, 1972 Mont. Const.)? I 

have firmly concluded that it does offend the federal and 

state constitutions to impose a death penalty and in that 

conclusion I align myself with the position taken by Mr. 

Justice William Brennan in Furman v. Georgia, supra. There, 

Justice Brennan discussed in full terms the background of 

the death penalty history, the reasons given for it and the 

reasons against it, and concluded finally that the death 

penalty was unconstitutional. 

Justice Brennan based his conclusion upon four 

principles: (1) the punishment must not be so severe as to 

be degrading to the dignity of human beings; (2) the 
imposition of the sentence must not be arbitrary; (3) the 

severe punishment must not be unacceptable to contemporary 

society; and, (4) the severe punishment must not be 

excessive. 

Whether the death penalty is acceptable to contemporary 

Montana society is arguable. When the state constitution 

was submitted to the voters in 1972, they were given a 

chance to vote on the acceptability of the death penalty. 

It was widely endorsed. Yet, the last death penalty imposed 

and carried out in Montana before the adoption of the 1972 

Montana Constitution was in 1944. For at least 30 years, 

until the adoption of the provisions of automatic review, 

the death penalty had not been imposed in the state. Until 

1966, the determination of whether the death penalty should 

be imposed was given first to the discretion of the jury, 

and, if the jury left the punishment to the court, then to 

the presiding judge. Section 94-2505, R.C.M. (1947). Thus, 

while the voters in 1972 as an abstract proposition accepted 

the death penalty, juries and after them the district 

judges, when faced with real cases, did not impose the death 

penalty. We frequently state in support of the jury system, 

that because of their very number, a jury represents the 

sense of community values in deciding cases. The U.S. 

Supreme Court once said that jury reluctance in death cases 

possibly reflected Inthe humane feeling that this most 

irrevocable sanction should be reserved for a small number 

of extreme cases. Gregg v. Georgia (1976), 428 U.S. 153, 

182, 96 S.Ct. 2909, 2929, 49 L.Ed.2d 859. The Montana 

experience since 1977 indicates that judges are far more 

likely than juries to impose the death sentence. A district 

judge acting singly cannot be said to represent the wide 

spectrum of public sentiment on social issues. 
Moreover, at the time of the state vote on the death 

penalty in 1972, the only mode of execution allowed by our 

law was hanging by the neck until dead. In 1983, (Ch. 411, 

Laws of Montana (1983)) the legislature amended the law of 5 

46-19-103, MCA, to permit the defendant to choose death by 

lethal injection of an 81ultra-fast-acting1r barbiturate 

instead of hanging. In itself, this amendment is an 

admission by the legislature that death by hanging is too 

horrible to contemplate. Whether death by lethal injection 

of a drug is less horrible, we do not know. None has 

experienced it yet in Montana as punishment for a crime. We 

have no reports from other states on the subject, largely 

because of "that undiscovered country from whose bourne no 

traveler returns to tell us of the way." What the change 

from hanging to lethal injection does tell us is that 

Montanans are seeking an easier way to end human life for 

crime. In truth, there is no easy way. 

Another of Justice Brennanls tests as to whether 

punishment is cruel and unusual is whether it is imposed 

arbitrarily. As I explain below, in this case the death 

penalty was imposed arbitrarily, and the present statutes 

adopted by Montana allow such arbitrary treatment. 

It was not easy for me to conclude on constitutional 

grounds that the death penalty was improper, even though I 

oppose it on moral grounds. When first I came to this 

Court, I was imbued with the responsibility of judges to 

uphold the constitution and thus subordinated my moral 

feelings to my thought that I should put those aside and 

decide this type of case solely on what I perceived to be 

legal grounds. In fact, I authored two opinions affirming 

death penalties. State v. Coleman (1979), 185 Mont. 299, 

605 P.2d 1000; State v. Fitzpatrick (1980), 186 Mont. 187, 

606 P.2d 1343. All through the 1980s, these cases have been 
grinding their way through the federal system and most 

recently, each has been reversed and remanded. Execution by 

death of several other defendants in Montana are on hold 

because of further proceedings, including the oldest case, 

where, even though the death penalty was affirmed in 1976, 

no execution date is now set as far as I know. State v. 

McKenzie (1976), 171 Mont. 278, 557 P.2d 1023. Thus, even 

though the death penalty has been on the books at all times 

no person has been executed in Montana in the last 45 years 

as punishment for crime. There has been no more than slight 

public reaction. That, too, tells us something about 

community standards and values. 

11. 

As is stated above, the Montana statutes permit the 

imposition of the death penalty arbitrarily. In this case, 

the court in fact acted arbitrarily in finding factors for 

the imposition of death. 

It is provided in 5 46-18-305, MCA, that the District 

Court in determining whether to impose a sentence of death 

or imprisonment "shall take into account the aggravating and 

mitigating circumstances enumerated in 5 46-18-303, MCA, and 

5 46-18-304, MCA, and shall impose a sentence of death if it 

finds one or more of the assravating circumstances and finds 

there are no mitisatinq circumstances sufficiently 

substantial to call for leniency." There are nine 

aggravating circumstances listed in 5 46-18-303, MCA, and 

eight mitigating circumstances listed in 5 46-18-304, MCA. 

When read in conjunction with 5 46-18-305, MCA, a proper 

interpretation would be that the District Court is limited 

in determining aggravating factors to 5 46-18-303, and in 

determining mitigating circumstances, to 5 46-18-304. 

Opposed to the concept that the court is limited under 

5 46-18-305 to the statutory aggravating circumstances and 
mitigating circumstances is the language of 5 46-18-302. 

That section provides that the District Court in sentencing 

may consider any matter relevant to the sentence whether or 

not admissible under criminal trial rules and the District 

Court is given broad discretion as to whether it may 

consider such evidence as probative. Thus, the door is wide 

open in the sentencing procedure for the District Court to 

consider not only the aggravating circumstances listed in 5 

46-18-303 but additional factors which would have no direct 

bearing on the criminal responsibility of the defendant. 

This case illustrates arbitrary findings by the 

District Court of circumstances other than those listed in 5 

46-18-303. Of the statutory aggravating circumstances, the 

only one picked up by the court and used to justify the 

death sentence is that the offense was deliberate homicide 

and was committed by means of torture. The only mitigating 

circumstance found by the court was the defendant had no 

significant history of prior criminal activity. If 5 46- 

18-305 is read properly, these are the only aggravating and 

mitigating circumstances which the court should have 

considered in sentencing the defendant. However, the 

District Court chose, apparently under the broad language of 

9 46-18-302 to add a number of aggravating factors, not 

statutory factors, including the following: that the 

defendant knew the victim was married and had a family (par. 

13) (this is disputed by the defendant); that the defendant 

had no real employment history, and never held a job for any 

appreciable length of time, and at the age of 26 years had 

children by three different women, none of whom he supported 

(par. 19); and that the victim's family had been deprived of 

a son, husband or brother and that the parents of the victim 

are now undergoing psychiatric counseling because of their 

son's death (par. 20) None of these is listed as a 
statutory aggravating circumstance and only the District 

Court judge knows what influence these additional factors 

had in bringing about the sentence of death. 

Thus, the Montana statutes on the subject permit 

arbitrary action by the District Court of the highest 

degree, since the result can be so drastic and irreversible. 

Now, it is true that in Lockett v. Ohio (1976), 438 

U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973, the United States 

Supreme Court held that because the death penalty is so 

profoundly different from all other penalties, 

individualized decision-making is essential in capital 

cases. To that end, the Supreme Court endorsed in Lockett 

that at the sentencing hearing, evidence outside the trial 

record relating to the defendant's character or the 

circumstances of the offense, but only as mitiqatins factors 

could be considered. The Court said: 

We are now faced with those questions and we 

conclude that the Eighth and Fourteenth Amendments 

require that the sentencer, in all but the rarest 

capital case, not be precluded from considering, 

as a mitisatins factor any aspect of a defendant's 

character or record and any of the circumstances 

of the offense that the defendant proffers as a 

basis for a sentence less than death . . . (Emphasis in original.) 

Lockett, 438 U.S. at 604. 

Thus, the provisions of 46-18-302, MCA, which open 

the door to extraneous evidence having to do with the 

sentence has judicial blessing only as to mitigating 

factors. The use of extraneous evidence to find aggravating 

factors, over and above those statutorily provided or 

implicit in the crime itself, have no such blessing. One of 

the important reasons is that if such aggravating factors 

are to be considered in connection with the fixing of death 

as punishment, the defendant ought to be entitled to a trial 
by jury as to those factors, and that brings me to a further 

problem with respect to the Montana statutes. 

In Adamson v. Ricketts (9th Cir. 1988), 865 F.2d 1011, 

the Circuit Court had before it a habeas action against the 

Arizona director of the Department of Corrections. The 

Federal District Court held, among other things, that 

Arizona's statutory scheme for the imposition of the death 

penalty unconstitutionally limited the court's consideration 

of mitigating circumstances and allowed an arbitrary 

imposition of the death penalty. 

The Circuit Court held that the Arizona statutes (which 

are much like Montana's) permitted elements of the offense 

to be determined by the sentencing judge, which deprived the 

defendant of the right to trial by jury as to all of the 

elements of the crime and thus violated the Sixth and 

Fourteenth Amendments. The Circuit Court also determined 

that the examination of death sentencing statutes required 

heightened scrutiny. It further held that there must be a 

strict separation between the determination of guilt and 

innocence (fact-finding) and the determination of an 

appropriate punishment (sentencing). The Adamson case is 

now on appeal to the United States Supreme Court. 

In the case we are now considering, the District Court 

engaged in extensive fact-finding relating to the 

defendant's guilt or innocence in imposing the death 

sentence. It found that the offense was deliberate homicide 

and was committed by means of torture; it found extraneous 

circumstances as are noted above. The greatest problem, 

however, is that the District Court in effect found that the 

defendant had committed the crime directly, although my 

interpretation of the charges against Lester Kills On Top 

and the verdicts found against him relate to accountability 
under the felony-murder rule. The District Court claimed 

that he was not convicted under the felony-murder rule. 

The majority had accepted the finding of the District 

Court that defendant committed the crime directly, and 

beyond that, the majority now declare also, after a review 

of the record, that the defendant did kill Mart'n 

Etchemendy, Jr. The jury found otherwise when it returned a 

verdict of not guilty on the deliberate homicide charge. in 

so acting, the majority have misinterpreted Enmund v. 

Florida (1982), 458 U.S. 782, and Cabana v. Bullock (1986), 

474 U.S. 497. Nothing in those cases gives a sentencing 

court, or an appellate court, the right to reverse a ju y F 

verdict to achieve a hanging or a lethal injection of the , 

defendant. (See Cabana, 474 U.S. at 386, fn. 5). 

Attached to this dissent as an exhibit are the five 

counts of the amended information under which the defendant 

was charged, and the jury verdict with respect to each 

count. It will be seen that the defendant was found suiltv 

under Count I of robbery in the course of committing, or 

aiding and abetting in the commission of, a theft from the 

victim while inflicting, or aiding and abetting bodily 

injury upon the victim. He was found not quiltv under Count 

I1 of aggravated kidnapping for the purpose of facilitating 

the commission of the crime of robbery. He was found suiltv 

in Count I11 of aggravated kidnapping with the purpose of 

inflicting bodily injury or terrorizing the victim. He was 

found not suiltv under Count IV of deliberate homicide. He 

was found guilty under Count V of deliberate homicide in 

that he was engaged in the commission of or legally 

accountable for the commission of aggravated kidnapping, 

resulting in the death of the victim which was caused by the 

defendant or another person legally accountable for the 

crime of aggravated kidnapping. 
It is clear to me that if the defendant here was not 

found guilty under the felony-murder rule on the basis of 

accountability, then the verdicts are inconsistent because 

the jury did not find him guilty of direct deliberate 

homicide or direct aggravated kidnapping. In fact, even his 

robbery conviction seems to be on the basis of 

accountability. 

The whole tenure of the District Court's findings with 

respect to the sentence of death is that the defendant 

committed the acts directly. No mention is made in the 

findings either of the felony-murder convictions or of 

accountability. Thus, the District Court has either ignored 

the jury verdict, and improperly sentenced the defendant for 

directly committing crimes for which he has not been 

convicted by the jury or the District Court has become the 

sole fact-finder in spite of the jury's verdict. In either 

event, the defendant has been deprived of his right to a 

jury trial. 

Fifteen states do not provide a death penalty in 

capital cases. Of the 35 states that do so provide, only 

four allow the judge, and not the jury, to determine the 

aggravating factors and mitigating circumstances for the 

imposition of the death penalty. Here, the District Court 

found that the defendant had committed deliberate homicide 

and caused the death of the victim by torture. While it may 

be a question of semantics, it is nonetheless true that no 

jury determined that the victim died by torture. The jury 

did determine that his death was caused by the infliction of 

bodily injury and by terror. 

Since the death penalty hinges in Montana on the 

statutory aggravating circumstances of 5 46-18-303, MCA, 

those aggravating circumstances are an element of the crime, 

and the defendant is entitled to a jury trial as to those 
elements. In Montana, the right to a jury trial is by our 

Constitution, secured to all and shall "remain inviolate.I1 

Art. 11, 8 26, 1972 Mont. Const. The Sixth Amendment to the 

United States Constitution guarantees an impartial jury 

trial in criminal prosecutions. Montana statutes deprive a 

defendant in a capital case of a jury trial on the most 

critical elements that relate to his sentence. 

In this case, therefore, I would uphold the conviction 

of the defendant for robbery, aggravated kidnapping, and 

deliberate homicide. I would remand the cause to the 

District Court for resentencing of the defendant but forbid 

the death penalty. 

EXHIBIT TO THE DISSENT JUSTICE JOHN C. SHEEHY 

The following are the charges against the defendant 

Lester Kills On Top, with the jury result as to each count: 

AMENDED INFORMATION 

COUNT I 

The Defendant, LESTER KILLS ON TOP, committed 

the offense of Robbery, a felony, as defined in 

845-5-401(1) (a) and 845-2-302 (3), MCA in that on 

or about October 17, 1987, in Custer County, 

Montana and Campbell County, Wyoming, LESTER KILLS 

ON TOP did, in the course of committing or aiding 

and abetting in the commission of a theft from 

JOHN MARTIN ETCHEMENDY, JR., inflict, or aided and 

abetted in inflicting, bodily injury upon JOHN 

MARTIN ETCHEMENDY, JR. , contrary to the f om, 

force and effect of the statutes in such cases 

made and provided, and against the peace and 

dignity of the State of Montana. 

JURY VERDICT: Guilty 
COUNT I1 

The Defendant LESTER KILLS ON TOP, committed 

the offense of Aggravated Kidnapping, a felony, as 

defined in 545-5-303 (1) (b) and 545-2-302 (3), MCA, 

in that on or about October 17, 1987, in Custer 

County, Montana and Campbell County, Wyoming, 

LESTER KILLS ON TOP did purposely or knowingly and 

without lawful authority restrain or aid and abet 

in restraining JOHN MARTIN ETCHEMENDY, JR. by 

holding or aiding and abetting in holding him in a 

place of isolation, or by using or aiding and 

abetting in the use of physical force against JOHN 

MARTIN ETCHEMENDY, JR. with the purpose of 

facilitating the commission of the crime of 

Robbery, a felony, or the flight thereafter, 

contrary to the form, force and effect of the 

statutes in such case made and provided, and 

against the peace and dignity of the State of 

Montana. 

JURY VERDICT: Not guilty 

COUNT I11 

(Alternative Count to Count 11) 

The Defendant, LESTER KILLS ON TOP, committed 

the offense of Aggravated Kidnapping, a felony, as 

defined in 5 45-5-303 (1) (c) and 945-2-302 (3), MCA, 

in that on or about October 17, 1987, in Custer 

County, Montana and Campbell County, Wyoming, 

LESTER KILLS ON TOP did purposely or knowingly and 

without lawful authority restrain or aid and abet 

in restraining JOHN MARTIN ETCHEMENDY, JR. by 

holding or aiding and abetting in holding him in a 

place of isolation or by using or aiding and 

abetting in the use of physical force against JOHN 

MARTIN ETCHEMENDY, JR. with the purpose of 

inflicting bodily injury on or terrorizing JOHN 

MARTIN ETCHEMENDY, JR., contrary to the form, 

force and effect of the statutes in such case made 

and provided, and against the peace and dignity of 

the State of Montana. 

JURY VERDICT: Guilty 
COUNT IV 

The Defendant, LESTER KILLS ON TOP, committed 

the offense of Deliberate Homicide, a felony, as 

defined in 545-5-102(1) (b), MCA, in that on or 

about October 17, 1987, in Custer County, Montana 

and Campbell County, Wyoming, while LESTER KILLS 

ON TOP was purposely or knowingly engaged in the 

commission of or legally accountable for the 

commission of Robbery, or flight after the 

commission of the crime of Robbery, a felony, 

which involved the use of physical force and 

violence against JOHN ETCHEMENDY, JR., the death 

of JOHN MARTIN ETCHEMENDY, JR. was caused by 

LESTER KILLS ON TOP or another person legally 

accountable for the crime of Robbery, contrary to 

the form, force and effect of the statutes in such 

case made and provided, and against the peace and 

dignity of the State of Montana. 

JURY VERDICT: Not Guilty 

COUNT V 

(~lternative County to Count IV) 

The Defendant, LESTER KILLS ON TOP, committed 

the offense of Deliberate Homicide, a felony, as 

defined in 5 45-5-102 (1) (b) , MCA, in that on or 

about October 17, 1987, in Custer County, Montana 

and Campbell County, Wyoming, while LESTER KILLS 

ON TOP was purposely or knowingly engaged in the 

commission of or legally accountable for the 

commission of Aggravated Kidnapping, or flight 

after the commission of the crime of Aggravated 

Kidnapping, or flight after the commission of the 

crime of Aggravated Kidnapping, a felony, which 

involved the use of physical force and violence 

against JOHN MARTIN ETCHEMENDY, JR. , the death of 

JOHN MARTIN ETCHEMENDY, JR. was caused by LESTER 

KILLS ON TOP or another person legally accountable 

for the crime of Aggravated Kidnapping contrary to 

the form, force and effect of the statutes in such 

case made and provided, and against the peace and 

dignity of the State of Montana. 

JURY VERDICT: Guilty