No. 88-443

INTHE STJPREME COURT OF THE STATE OFMONTANA
1989

STATE OFMONTANA,
Plaintiff and Respondent,-vsLESTER KILLS ON TOP,
Defendantand Appellant.

APPEAL FROM: DistrictCourtof the Sixteenth Judicial District, Inand for the Countyof Custer, TheHonorable H. R. Obert, Judge presiding.

COTJNSEL OF RECORD:
For Appellant: Stephen C. Moses argued; MosesLawFirm, Billings, Montana

For Respondent:
Hon. Marc Racicot, AttorneyGeneral, Helena, Montana ClayR. Smithargued, Solicitor, Helena, Montana KeithD. Haker, CountyAttorney, Miles City, Montana

Submitted: October 19, 1989

Decided: February 15, 1990Justice 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 40years 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 issuespresented for our review are: 1. Whether the District Courthad jurisdiction over the crimes for which the defendantwas convicted. 2. Whether the District Court committed preiudicial error in ordering the defendant to disclose to the State any statementstaken from individuals identifiedby 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 flightoffered by the State. 5. Whether certain factual findings in the District Court's sentencing order were supported by the evidence. 6. Whether imposition of thedeath 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 inthe earlymorning hours of October 17, 1987. All offenses are alleged to have occurred on October 17. The trial inthis 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 Killson Top, and hisbrother, 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, alsowent tothat bar on thatFriday evening. When Mr. Etchemendy was ready to leave thebar, he went out totheparking lotbut was unable tolocatehisvehicle. Atthatpoint defendant, hisbrother, and the two women offered tohelp him. They allgot in a black Dodge Duster. Firstthe group turned on toHiqhway 59 and looked a few places for Mr. Etchemendyls car. Then, rather than proceeding north toMilesCity, 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 gotback inthecar. The car continued toproceed 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 alsoordered toempty his pockets. From his wallet, the group obtained credit cards and two checks issued to Mr. Etchemendy from his employer. While the carwas traveling over theunpaved 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 occurredbefore theyentered thereservation. 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 thegroup's activities and took thisopportunity tofleetoa friend's house. The group used one of Mr. Etchemendy's credit cards topurchase gas inAshland. 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 (calledEver-Clear)

# . Atthe 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 letoutof 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 atthispoint. 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 efforttomake 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 totravel 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 thathe 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 forhelp. Defendant spoke in his native language and told Vernon they would have to killMr. Etchemendy. Vernon and Ms. Quirozremained ina bar while defendant and Diane Bull Coming left inthe car. Defendant and Diane Bull Coming left Gillette, turned onto a sideroad, and stopped when theywere not visible from themain road. Ms. Bull Coming testified thatdefendanttook thepipe, opened thetrunk, and began strikingMr. 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 afterthe 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 sohe could shoot Mr. Etchemendy. He then attempted to shoot the victim by placing a .22 caliber shell in a vise grip and hitting the shellwith 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 tocut Mr. Etchemendy's throat with

a small knife. She stated that shewent intothe lounge and defendant latercame inand saidthevictimwas 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 approximatelytwenty miles southof Gillette. A rancher who lived inthe areawas driving by with his stepson and noticed the carparked by the community hall. He testifiedthathe saw threepeople walk over tothe 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 intheroad infront 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 toreturn 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 toa store in Sheridan and purchased new clothes with one of the credit cards. Defendant also attempted to purchase new boots ata different store, but the salesperson could not accept the credit card. Ata 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 fictitiousnames.On October 19, defendantwas arrested inBillings atthe home of Lorraine Four Colors. Prior to being arrested, defendant and Ms. Bull Coming related the incident to Lorraine Four Colors. When defendant learned thathisbrother, Vernon, had heen arrested he directed Ms. Bull Coming to destroythe creditcards. On October 19, thebody of thevictimwas locatedby law enforcement officers in the community hall near Gillette, Wyoming. An autopsy established that the cause of deathwas impact trauma totheback and leftsideof thevictim's head. I Whether the District Court had jurisdiction over the crimes forwhich the defendant was convicted. In a pretrial motion to dismiss, defendant contended thatMontana lacked jurisdiction toprosecute these offenses. This motion was briefed and argued by the parties. The DistrictCourt denied thismotion. On appeal, defendant contends that Montana lacks jurisdiction toprosecute thesecrimes fortwo reasons. First, he contends that jurisdiction toprosecute the deliberatehomicide 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 isa full-blooded, enrolledmember of the Northern Cheyenne Tribe, and also the offenses occurred "within Indian Country." Wewilladdress eachjurisdictional issue separately. The statute governing State jurisdiction for a criminal offense is

### 5 46-2-101, MCA, which provides inpertinent 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 orthatof another for which he is legally accountable if: (a) the offense is committed eitherwholly or partly within the state[.]

(2) An offense is committed partly within this state if either the conductwhich 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 Courthaspreviously construed this statute in Statev. 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 "partlywithin" 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 isdefined 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 theproperty[

## .I

In thepresent case the testimonyestablished that Diane Bull Coming took Mr. Etchemendy's wallet containing creditcards 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 theproperty ofMr. Etchemendywhen 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 Statev. 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 ifhe 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 inflictbodily injury on or to terrorize thevictim 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 todismiss the aggravated kidnapping for lack of state jurisdiction. Defendant was also convicted of deliherate homicide under the "felonymurder rule." Section 45-5-102(1)(h),MCA, codifies the felonymurder 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 "felonymurder rule" it is not necessary to prove the "purposelyor 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 felonymurder 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 provewere:
1) the commissionof 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 inWyoming. 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. Defendantwas convicted of deliberate homicide under the felonymurder rule,which does not require that the homicidebe intentional. Defendant contends,however, that in reality the homicide was intentional and therefore did not flow from the kidnapping. He urges that thehomicide was a distinct offense and that all elements of the homicide occurred inWyoming. We reject this argument sincedefendantwas 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 requirementsof 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 felonymurder rule. The evidence in this case clearly establishes the commissionof 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 seriousbodily injury, arson, burglary, robbery, and a felony under section 661of this titlewithin 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 theUnited States.

In the present case the critical languageof this statute is "within the Indian country." An Indian committingone 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 satisfiedwithin Montana and outside of Indiancountry. Defendant seems to be claiming that if any part of an offense occurswithin Indian country,the Statehas no jurisdiction. However,this isnot the law. The Statehas jurisdiction for off-reservation offenses even though a connected offense may occur within Indian country. See,e.g., State

v. Rossbach (Minn.1980), 288N.W.2d 714 (statehad 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 (statehad jurisdiction to prosecute seven Indian defendantswho 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 limitsof 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 todisclose to the State any statements taken from individuals identified by the latter as possiblewitnesses. 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 aswitnesses at trial. At apretrial hearing onMay 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 amotion to compel discovery of all witnesses defendant intended to call at trial. That motion was granted. The courtordered production pursuant to S 46-15-323(4),MCA,which provides:
(4) Simultaneouslywith the notice ofdefenses submitted under subsection (3), the defendantshall make available to theprosecutor for testing, examination, orproduction: (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 hewill 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 thathe will use at trial. Defendant challenges the court's order on twobases. He first makes a constitutional challenge to this statute, contending that the statute violates the Fifth Amendment in that itmay requirehim toprovideproof 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 thework product rule. The same argument regarding this statute was addressed in State ex rel. Carkulisv. 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, 90S.Ct. 1893,26 L.Ed.2d 446,as follows:TheUnited States Supreme Court in Williamsv. 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 certainwitnesses at trial, requiring pretrial disclosure of the statementdid not violate Fifth Amendment rights. We reaffirm the constitutionality of 5 46-15-323(4),MCA, ashere applied. In the present case,defendant also predicateshis claim of error on the fact that he was required to produce statements taken fromwitnesses for the State. Since the statute and ourholding in Carkulis only require production of statements ofwitnesseswhich the defendantwill call at trial,he claims thiswas error. Defendant's contentions fail for three reasons. First, defendant did not request aprotective order for these statements,which he could havedone 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 thesestatements. The District Court record does not contain the statements at issue,and defendantmade no offer ofproof as to their allegedprejudicial 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 DistrictCourt which requiredproduction 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 exhibitmust 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 forwhich 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. (Citationomitted.) 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 sustaina 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 towhich 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 itwas 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 testimonyby 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 whichappeared 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 thatthepipewas similartothe 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 courtdidnot errinadmitting the pipe and relatedphotographs. Defendant contends that the vice grips and a related residue swab should not have been admitted since no evidence of a bulletdischarge linksthese tothe 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 objectstothe admission of the clotheshe 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 inSheridan, Wyoming, butwas unsuccessful. Photographs of the abandoned community hall were admitted, two of which were close-ups of the upper body of the victim, and a thirdphoto showed thevictim's upper body from

a few feet away. Defendant claims thatthesewere not necessary to prove any issue and were highly inflammatory. The photographs showed theupper body, head, and right arm of thevictim. 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. Statev. Siglar (1981),210 Mont. 248, 256, 688P.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 (holdingthat 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 aremeritorious. 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 flightoffered by the State. The court instructed the jury on the elements of aggravated kidnapping. Defendant contends thathe 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 "someevidence" to support the lesser offense, citing State v. Hamilton (1980), 185Mont. 522, 605 P.2d 1121. We have previously statedthe testregardingthe court's duty to instruct the jury on lesser included offenses, as follows:

Itisa fundamental rule that thedefendant 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 toacquithim of thegreater. Keeble v. United States (1973), 412 U.S. 205, 208, 93 S.Ct. 1993, 1995, 36 L.Ed.2d 844, 847. But thisCourt has held that the District Court will not be put in error for refusing toinstruct as tothe 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. (Citationsomitted.) 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); Statev. 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 (courtproperly refused instruction

on lesser included offense of criminal trespass where no evidence could lead a jury tobelieve defendant was inbuilding for an innocent purpose). Unlawful restraint iscommitted when a person "knowingly

or purposely and without lawful authority restrains another

so as to interfere substantiallywith his liberty." Section45-5-301(1)

## , MCA. Kidnapping is committed when unlawful restraint is effected "by either secreting or holding [the victim] in aplace 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 inflictbodily injury or terrorize the victim. In the present case, defendant was not entitled to an instruction onunlawful restraintunless there was evidence that the victimwas not restrained by secretinghim or by using force. He would have been entitled to an instruction on kidnapping only if therewas evidence that no purpose to inflictbodily injuryor terrorize thevictim existed. There isno evidence in the record that the restraintof thevictimwas 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 InstructionNo. 23: Testimony has been presented that one ormore witnesses may be accomplices in this case. In this respectyou are to be guided by the following rules of law:
1. An accomplice is one who knowingly and voluntarily, with common intentwith the principal offender,unites in the commission of a crime. Onemay become an accompliceby 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, hutinstructions, 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 InstructionNo. 31 also dealtwith accountability.

knowledge and voluntary action are essential in order to imputeguilt.
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 ormore 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 InstructionNo. 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 evidencewhich in itselfand without the aid of the testimony of the one responsible or legally accountable for the same offense tends to connect the defendantwith 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. Itmust raise more than aThe 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 therewas 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 ismeritless 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 orhiswitnesses. 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 simplyproves 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 inBillings, Montana, after he learned of hisbrother'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 DistrictCourt's sentencing orderwere supportedby the evidence. Defendant challenges the following findingsof factmade by theDistrict 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 wasmarried 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 thevictim's throatwith 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 thevictim.
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 threefindings 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 therewas a subduralhematoma 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 sideof thehead. 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 fatalblows. 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 avice 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 findingsby the court are supportedby substantial credible evidence. Defendant contends that the court's finding that the offense of deliberate homicide was committed by means of torture is not supportedby 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 transactionwhich demonstrated a courseof 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 evidenceestablished 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 todetermine from the medical evidence the extent to which the prior beatings contributed to the victim's death. Thebeatings and restraint,culminating in the bludqeoning to death of thevictim, constitute substantial credible evidence that the homicidewas committedbymeans 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 torturewherevictimwas killedby ablow which laid open her head, prior to which shewas nonfatally strangled). We conclude that there exists substantial credible evidence to support a finding thatdefendant caused the victim's death by torture. We affirm the sentencing court's finding on this issue. VI Whether impositionof thedeathpenalty is constitutional under the mandatory review criteria of S 46-18-310,MCA. On appeal,defendantalso challenges the constitutionality of Montana's sentencing statutes which govern imposition of the death penalty. Defendant relies on a recent NinthCircuit case,Adamson v. Ricketts (9thCir. 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 comparingArizona'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 constitutionalbased on similar challenges in Dawson, 761 P.2d at 360,and Statev. Smith (1985),217Mont. 461, 490-91, 705 P.2d 1087, 1105-06, cert. denied, 474 U.S. 1073 (1986). We conclude that the imposition of the deathpenalty was constitutional under the review criteria of S 46-18-310,MCA. VII Whether the sentencing court committed prejudicial error in its considerationofvictim impact statements. Although defendant does not raise this issue on appeal,

we note that in its sentencing order the DistrictCourt 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 victimhave been for some time and now are undergoing psychiatric counselling as a result of their son'sdeath.
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 considerationof avictim impact statement in that case was error, requiring resentencing. We choose to discuss this issue in the present case. In Booth, the State ofMaryland had a statute requiring consideration at sentencing of victim impact statements if the victim suffered injury or death. InBooth 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. Itcontained 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 capriciousmanner. 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-makingrequired in a capital case. Booth, 482U.S. at 503-09. In the present case the record contains no written victim impact statements. The source of the information about theparents' counselling is from the father's testimonyat the presentencehearing. 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 thisCourt 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 threemembers 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 statementwas not as lengthy orpoignant 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 nowritten victim impact statement. The testimonyby the fatherwas neither lengthy nor emotional. Itwas clearly not

as questionable as the information considered in Booth. We conclude there was no reversible error in the sentencing court's considerationof 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 thecourt's findings on any mitigating and aggravating circumstances; and 3) whether the sentence is excessive or disproportionate to the penalty imposed in similar cases, consideringboth the crime and the defendant. Appellant has not contended that the sentence was imposed under the influenceofpassion, prejudice,or any other arbitrary factor. In Issue VII we discussed the District Court's consideration of a victim impact statement and concluded that therewas 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 ofpassion, prejudice, or any other arbitrary factor. The seconddetermination requires this Court to consider whether the evidence supports the sentencingcourt's findings of aggravating andmitigating 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 thevictim. In IssueV we discussed the court's finding that the deliberate homicidewas committed by means of torture,concluding that substantial credible evidence supported this finding. In Issue Iwe 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 circumstancewas that thedefendanthad no significant history of prior criminal activity. It went on to concludethat 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 sentencingcourt's refusalof 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 themitigating circumstance is not sufficiently substantialto 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 Courtwhich 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; Statev. 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 (9thCir. 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 factorsmeriting 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 Keefewas under theage 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 innocentperson. 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. InMontana we have amuch clearer expressionof 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),171Mont. 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 ofdecency.

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 ofMontana. After the decision of theUnited States Supreme Court in Furman, as well as the cases decided by that court in 1976, the Montana Legislature in 1977 enacted the extensiveprovisions 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, evidencemay 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 itat the sentencing hearing.


# .

# .

# . Section 46-18-303, MCA, enumerates specific aggravating circumstances. The aggravating circumstances in this case were that the offensewas 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 DistrictCourt 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 Legislaturedoes not necessarily establish the view of the people of Montana, it does indicatea continuing attempt on thepart 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 ofMontana. 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 penaltywere 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 factorswhich must be considered, and has made other amendmentsaswell. The dissent points out that under the provisions of 5 46-18-302, MCA, the sentencing courtmay consider "anymatter relevant to the sentence whether or not admissible under criminal rules." The dissent suggests that this giving of broad discretion allows considerationof 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 considerationof 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 andmitigating 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 courthad 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, 640P.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 findingsby 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 findingsby the sentencing courtwere 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 culpabilityneed 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, 95L.Ed.2d 439, 447. See also Tisonv. Arizona (1987), 481U.S. 137, 107 S.Ct. 1676, 95L.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 thevalidity of thedeathpenalty. Under our statutory provisions, the sentencing judge is clearly given the responsibilityand power tomake this determination. Our statutes now give adequate standards and guidelines to be applied by the sentencing court, yet allow for and encourage individualized sentencing. InMontana, sentence is imposed by the district court judge, whose background and experience is in comparing aggravating and mitigating factors. We conclude that inMontana the deathpenalty is acceptable to contemporary society, is not excessive for the crimes for which it may be imposed, and that our statutes guiding the sentencingprocess and our provisions for sentence review do not allow the prohibited arbitrary conduct on the part of the sentencingcourt. We hold that the death penalty here doesnot 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 convictionsand 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: 

### ,/

JusticesMr. JusticeJohn ConwayHarrison speciallyconcurring.



### Iconcurwiththemajority. Inote with considerable interest
thedissentofMr. JusticeSheehy,andwhile Icannotconcur in his dissent,Ifeelthe timehascometonotethe frustrations ofState Appellate Justices in capital cases. Like Justice Sheehy,Ihave authored three of some twelve cases that have been before this
Court inthepast twenty-nineyears. Inaddition, I have read the briefs and voluminous transcripts of every case inwhich 

### Iupheld the death sentence. Itwasnot apleasant task to say the least, however, it comeswith this office.

I find myself disagreeing with some of Mr. Justice Sheehy's dissent and, intaking issuewithhis statements,Idonotquestion either his integrity or his right to change his mind. First he

notes thatwhether thedeathpenalty isacceptabletocontemporary Montana society is arguable. As he notes the last time it was submitted to the people of this State it was overwhelmingly approved. Yet ashe says the last deathpenalty sentence that was carried out in this Statewas in 1944. What he fails to note is
that in thepast thirtyyearstheUnited States SupremeCourthas twice found State laws providing for the death sentence unconstitutional. Thisnecessitatedtwenty-oneStatespassingnew laws in order to comply with the United States Supreme Court's opinions. Montana is one of those States. After each of theUnited StatesSupremeCourt's opinions,athousandor morepersons sentenced to deathhad their sentences changed to life sentences
andmany ofthesepeoplehave sincebeen paroled orhave 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
thehands of thetrial judge,rather thanthe jury, cannotbe said to represent the wide spectrumofpublic sentimentonsocial 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,
97S.Ct. 197, 50 L.Ed.2d 158, (1976). Rather, 

### I find that trial judges,likeappellate judges,take great careand caution before ever sentencing aperson todeath. Ibelieve thisprotection for

a defendant prevents runaway jurypassions.

It is not the various State trial judges or justices of appellate courts who have delayed the carrying out of their laws on capitalpunishment. That obvious honor belongs in the Federal system. Theworst example inthis State is thatofDuncanMcKenzie
who was convicted in 1975, and who has now spent some fourteen

years on death row. Therewas a time in our historywhen people worried about the execution of Caryl Chessman, a murderer in~alifornia, who spent some sevenyears on californials death row. Chessmanv. Teets (1957), 354 U.S. 156, 77 S.Ct. 1127, 1 L.Ed.2d 1253. Hewas just a newcomer to death row compared toMcKenzie,
whose case hasbeen likeayo-yo ever since it left thisCourtand

went intotheFederal system. It hasbeen said ofMcKenzielscase that hehas adeath sentencebut "hewill carry it outby dying of old age.l1 There isnomore difficultwork,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 approvedby thisCourtwehavehad twelve jurorsfindthedefendant guilty, a trial judgeboth approve of their findingsand give the sentence, followed by seven appellate justices carefully reading
therecord and findingthatthedefendanthad a fairtrial andwas properly sentenced. Throughout the trial and appellate proceedings, competent triallawyers plus judgesand justices,many of whom have tried and defended capital cases in their practice, have been given theduty of administering justice. However,once it leavesthe 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 theUnited StatesSupremeCourt canask for transcripts of the cases I am informed that often theydo nothave them as did the State Supreme Courts in their review of the

cases. As a resultwe have over 2,000prisoners on death row in
the various States having capital punishment statutes. The law should have some finality but as witnessed above in theMcKenzie

case,thereseemstobenone. OnlytheUnited States SupremeCourt

canprovide the answer and thatanswer 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.
/'JusticeJohnC. 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 deathpenalty 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), 370U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758. This case comes tous 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 Furmanv. ~eorgia(1972), 408 U.S. 238, 92S.Ct. 2726, 33 L.Ed.2d 346. Thehistory of the actionby 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 SupremeCourt 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 sodiscriminatorily (408U.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 Statespromptly 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, itdoesnot. Pulley, 465U.S. 

### at 44. 

### The appeal here and the automatic review provisions bring to this Court once again yet another death penalty

case and bringsme face to face with theultimate 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. JusticeWilliam Brennan inFurmanv. Georgia, supra. There, Justice Brennan discussed in full terms the background of the deathpenalty history, the reasonsgiven for it and the reasons against it, and concluded finally that the death penaltywasunconstitutional. Justice Brennan based his conclusion upon four principles: (1) 

### thepunishment must not be so severe as to be degrading to the dignity of human beings; (2) theimposition of the sentencemust not be arbitrary; (3) the

severe punishment must not be unacceptable to contemporary society; and, (4) the severe punishment must not be excessive. Whether thedeathpenalty isacceptable 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. Itwaswidely endorsed. Yet, the lastdeathpenalty 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 deathpenalty had not been imposed in the state. Until 1966, the determination of whether the deathpenalty should be imposed was given first to the discretion of the jury, and, if the jury left the punishment to the court, then to thepresiding judge. Section 94-2505,R.C.M. (1947). Thus, while thevoters in 1972 as an abstract proposition accepted the death penalty, juries and after them the district judges, when facedwith real cases,did not impose thedeath penalty. We frequentlystate 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 spectrumofpublic 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 lawwas hanging by the neck until dead. In 1983, (Ch. 411, Laws ofMontana (1983)) the legislatureamended the lawof 

### 5 46-19-103, MCA, to permit the defendant to choose death by lethal injection of an 81ultra-fast-acting1rbarbiturate 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 ityet inMontana aspunishment 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. Intruth, there is no easyway. 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 adoptedby Montana allow sucharbitrary 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 havebeen

### grinding their way through the federal system and most recently,eachhasbeen reversed and remanded. Executionby 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), 171Mont. 278, 557 P.2d 1023. Thus, even though thedeathpenalty hasbeen on thebooks at all times

no person has been executed inMontana in the last 45

### years aspunishment forcrime. Therehasbeen nomore than slight public reaction. That, too, tells us something about community standardsandvalues. 11. As is stated above, the Montana statutes permit the imposition of the deathpenalty 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 "shalltake into account theaggravating and mitigating circumstancesenumerated in 

### 5 46-18-303, MCA, and 5 

### 46-18-304, MCA, and shall impose

## a sentence

### of death

## ifit finds

## oneormore

### of

### theassravatingcircumstances

### 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 sectionprovides that the District Court in sentencing may consideranymatter 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 asprobative. Thus, thedoor 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 thedefendant. 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 committedby means of torture. The onlymitigating 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,apparentlyunder thebroad languageof 9 

### 46-18-302 to add a number of aggravating factors, not statutory factors, including the following: that the defendantknew thevictimwasmarried andhad a family (par. 13) (this is disputedby the defendant); that the defendant had no real employmenthistory,andneverheld a job for any appreciable length of time, and at the age of 26 years had childrenby threedifferent women, none ofwhomhe supported (par. 19); and that thevictim's familyhad been deprived of a son,husband orbrother and that theparents of thevictim

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, sincethe resultcanbe sodrastic 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 circumstancesof the offense, but only asmitiqatins factors couldbe considered. TheCourt said: We are now faced with those questions and we conclude that theEighthand Fourteenth Amendments require that the sentencer, in all but the rarest capital case, not be precluded from considering, as amitisatins factorany 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 

# . ..

(Emphasisin original.) Lockett, 438U.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. Theuse of extraneous evidence to find aggravating factors, over and above those statutorily provided or implicit in the crime itself,have no suchblessing. One of the important reasons is that if such aggravating factors

are to be considered in connection with the fixing of death

aspunishment,thedefendant ought tobe entitled to a trial

### by juryas to those factors,and thatbringsme to a further problemwith respect to theMontana statutes. InAdamson v. Ricketts (9thCir. 1988), 865 F.2d 1011, the Circuit Courthad 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 unconstitutionallylimited the court'sconsideration of 

### mitigating circumstances and allowed an arbitrary imposition of thedeathpenalty. TheCircuit Courtheld that theArizona statutes (which

are much like Montana's) permitted elements of the offense tobe determinedby 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 furtherheld 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 totheUnited States SupremeCourt. In the casewe 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 offensewasdeliberatehomicide and was committed by means of torture; it found extraneous circumstances as are noted above. The greatest problem, however, is that theDistrict 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 accountabilityunder the felony-murder rule. The District Court claimed thathe wasnot convicted under the felony-murderrule. 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 otherwisewhen it returned a verdict of not guilty on thedeliberate 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 juy 

# F verdict to achieve a hanging or a lethal injection of the , defendant. (SeeCabana, 474U.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. Itwill be seen that the defendantwas 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 injuryupon thevictim. Hewas found

## not quiltvunder Count I1 of aggravated kidnapping for thepurpose of facilitating the commission of the crime of robbery. Hewas found suiltv in Count I11 of aggravated kidnapping with the purpose of inflictingbodily 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 thedeath of thevictimwhichwas causedby the defendant or another person legally accountable for the crime of aggravatedkidnapping.

### 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 ordirect aggravated kidnapping. In fact, evenhis robbery conviction seems to be on the basis of accountability. Thewhole 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, theDistrict Courthas either ignored the juryverdict,and improperly sentenced thedefendant 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 thedeath of thevictimby torture. While itmay 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 causedby the inflictionof bodily injuryandby terror. Since the death penalty hinges in Montana on the statutory aggravating circumstances of 5 46-18-303, MCA, 

### those aggravating circumstancesarean element of the crime, and the defendant is entitled to a jury trial as to thoseelements. InMontana, the right to a jury trial is by our Constitution, secured to all and shall "remain inviolate.I1 Art. 11, 

### 8 26, 1972Mont. Const. The Sixth Amendment to the United States Constitution guarantees an impartial jury trial in criminalprosecutions. Montana statutes deprive a defendant in a capital case of a jury trial on the most critical elementsthat 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 thedeathpenalty.

EXHIBIT

### TO

## THE DISSENT JUSTICEJOHNC. 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 TheDefendant,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, LESTERKILLS ON TOP did, in the course of committing or aiding and abetting in the commission of a theft from JOHNMARTIN ETCHEMENDY,JR., inflict,or aided and abetted in inflicting, bodily injury upon JOHN MARTIN ETCHEMENDY, JR.

## , contrary to the fom, force and effect of the statutes in such cases made and provided, and against the peace and dignity of the State ofMontana.
JURYVERDICT: GuiltyCOUNT I1 The Defendant LESTER KILLS ON TOP, committed the offense ofAggravated 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 TOPdid purposely or knowinglyand without lawful authority restrain or aid and abet in restraining JOHN MARTIN ETCHEMENDY, JR. by holding or aiding and abetting inholding him in a place of isolation, 

## or by using or aiding and abetting in theuse of physical force againstJOHN 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.
JURYVERDICT: Not guilty
COUNT I11 (AlternativeCount to Count 11) The Defendant,LESTER KILLS ON TOP,committed the offense ofAggravated 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 TOPdidpurposely or knowinglyand without lawful authority restrain or aid and abet in restraining JOHN MARTIN ETCHEMENDY, JR. by holding or aiding and abetting inholdinghim in a place of isolation or by using or aiding and abetting in theuse ofphysical force againstJOHN 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 casemade andprovided, and against thepeace and dignity of the State ofMontana.
JURYVERDICT: GuiltyCOUNT IV TheDefendant,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 casemade and provided, and against the peace and dignity of the State ofMontana.
JURYVERDICT: Not Guilty
COUNTV (~lternative County to Count IV) TheDefendant,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 JOHNMARTIN ETCHEMENDY, JR.

## , the death of JOHN MARTIN ETCHEMENDY, JR. was caused by LESTER KILLS ON TOP or anotherperson legally accountable for the crime ofAggravated Kidnapping contrary to the form,forceand effect of the statutes in such casemade and provided, and against the peace and dignity of the State ofMontana.
JURYVERDICT: Guilty