Petition — McKenzie v. Montana

Supreme Court brief1979

Ask Donna

What actually matters in this document.

Text

ll diel as

‘iO caste

{ g Supreme Court, U. Se

FILED

OCT 23 1978

ee eed MIGHAEL M@DAK, JR., CLER

IN THE |

SUPREME COURT OF THE UNITED STATES

October Term, 1978

_ |

No. 78- TR _ ) AY vw wy

DUNCAN PEDER MCKENZIE, JR.,

Petitioner,

STATE OF MONTANA,

Respondent.

TICN FOR WRIT OF CERTIORARI

RATION AM xe Tews

we Ne mes a ‘ 2

}

)

CHARLES L. JACCESON

Post Office Box 933

Conrad, Montana 59425

TIMOTHY K. FORD

2101 Smith Tower

Seattle, Washingten 98104

JACK GREENBERG

JAMES M. NABRIT, III

: JOEL BERGER

JOHN CHARLES BOGER i

10 Columbus Circle

New York, New York 10019

ANTHONY G. AMSTERDAM

Stanford University Law School

Stanford, California 94305

ATTORNEYS FOR PETITIONER

INDEX

Page

Se: RO GCE GORI oc oie kd cccccmsun eben cckeehuns e

PRI ccc ut ciced ote eenw as Sane Bue we sae o> Zz

DE 6a wéee 6065 Sak whee Rak On oo 0s ke bho 15

I. THIS COURT SHOULD GRANT CERTIORARI TO

CONSIDER WHETHER THE IMPOSITION CF THE

SENTENCE CF DEATH BY HANGING FCR THE

CRIMES OF DELIBEPATE HOMICIDE AND AGGRA-

VATED KIDNAPPING UNDER THE LAW IN EFFECT

IN MONTANA AT THE TIME OF THE OFFENSE FOR

WHICH PETITIONER WAS CONVICTED COMPORTS

WITH THE STXTH, EIGHTH, AND FOURTEENTH

AMONDMENTS IG ONS CONSTITUTICN cr THE

RUE SEGTRRGS - Sa ara kg awh eRe week bel ee ee arene 18

II. THE COURT SHOULD GRANT CERTIORARI TO

DETERMINE WHETHER THE MONTANA SUPREME

COURT'S REAFFIRMANCE OF THE TRIAL COURT'S

INSTRUCTIONS REQUIRING PETITIONER TO DIS-

PROVE THROUGH EVIDENCE OF A “MENTAL DISEASE

OR DEFECT" THAT HE HAD A PARTICULAR STATE OF

MIND WHICH IS AN ESSENTIAL ELEMENT OF THE

CRIMES OF DELIBERATE HOMICIDE AND AGGRAVATED

KIDNAPPING CONSTITUTED A PROPER RECONSIDERA-

TION OF PETITIONER'S CASE IN LIGHT OF PATTERSON

on ae ie ae eee a hdiba aman dee . 36

III. THE COURT SHOULD GRANT CERTIORARI TO CONSIDER

WHETHER THE FAILURE OF THE COURTS BELOW TO

ENFORCE A PLEA BARGAINING AGREEMENT BETWEEN

PETITIONER, THE STATE AND THE TRIAL COURT,

WHICH PETITIONER'S COUNSEL HAD RELIED UPON

IN REVEALING TO THE STATE PRIOR TO TRIAL

PETITIONER'S TRIAL STRATEGY AND TACTICS,

DEPRIVED PETITIONER OF DUE PROCESS OF LAW

IN VIOLATION OF THE FOURTEENTH AMENDMENT

TO THE CONSTITUTION OF THE UNITED STATES...... 46

- ee

—

eo eee

Appendices:

IV. THE COURT SHOULD GRANT CERTIORARI TO

CONSIDER WHETHER THE INTRODUCTION AT

TRIAL OF EVIDENCE FROM PETITIONER'S

DWELLING PLACE AND TRUCK PARKED OUT-

SIDE HIS DWELLING PLACE PURSUANT TO

A SEARCH WARRANT VIOLATED HIS RIGHTS

UNDER THE FOURTH AND FOURTEENTH AMEND-

MENTS TO THE CONSTITUTION OF THE

UNITED STATES TO BE FREE FROM SEARCHES

AND SEIZURES UNDER WARRANTS WHICH ARE

NOT BASED ON PROBABLE CAUSE AND WHICH

DO NOT "PARTICULARLY DESCRIB{E] THE

- + » THINGS TO BE SEIZED"

eee ee 6 SSS 6 6 ee & 666 0:8 6 06.8.0

Appencix A, Opinicn of the Supreme Court of

Montana, March 13, 1978, State of

Montana v. Duncan Peder McKenzie, Jr...

Appendix 8, Findings, Conclusions, Sentence and

Order of Hon. R. J. Nelson, District

Judge, Ct. File Item 169, State of

Montana v. Duncan Peder McKenzie,Jr.,

Supreme Court No. 13011 ..............

Appendix C, Preliminary and Additional Instructions,

Ct. File Item 154, State of Montana v.

Duncan Peder McKenzie, Jr., Montana

Supreme Court No. 13011

Appendix D, Constitutional and Statutory Provisicns

Page

TABLE OF CASES

Page

Alvarez v. Nebraska, 408 U.S. 937 (1972) ............ 22

Andresen v. Maryland, 427 U.S. 463 (1977) ........... 59,63

Blackledge v. Allison, 431 U.S. 63 (1977) ........... 46

Bloom v. Illinois, 391 U.S. 194 (1968) .............. 27

Butler v. State, 228 So.2d 421 (Fla. App. 1969)...... 51

Chapman v. California, 386 U.S. 18 (1967)............ 38,45

Christofferson v. Washington, 393 U.S. 1090 (1969)... 55

Codispoti v. Pennsylvania, 418 U.S. 506 CRN PRR «ticle Ses 28

Coolidge v. New Hampshire, 403 U.S. 443 CRRA wh ods e S75. G3

Correale v. United States, 497 F.2d 944 (lst Cir.

TN tie lk SRE a 50M pielah ow Oo Ak wae Dw ka oka kA 52

Cunningham v. Maryland, 408 U.S. 938 (1972).......... 22,23

Cunningham v. State, 247 Md. 404, 231 A.2d 501

is rae TES AES ALERT ECDs bee AAD 1S 000 oa wr 22

Davis v. Georgia, 429 U.S. 122 (1976)... .ccccccccccce 45

Duling Vv. Ghio, 4068 U.S. 936 (1976) ...ccccccancccace > 22

Dumera v. United States, 268 U.S. 435 (1928)......... $9

Duncan v. Louisiana, 391 U.S. 145 (SOOO) Rie edeseuns’s ° 27

Dyke v. Taylor Implement Co., 391 U.S. 216 (1968).... 59

Edwards v. Commonwealth, 298 Ky. 366, 182 S.wW.2d

ee CRORE ee ch owsessbees TROL. ee eee ee . 21

Estelle v. Williams, 425 U.S. 501 (1976)............. 45

Furman v. Georgia, 408 U.S. 238 (1972)............... 18,24,28

Gardner v. Florida, 430 U.S. 349 (1977) ...... eccccee 20,22,26,

27,30,31,32,33,34

eee ee eee eae eeee 19,20,21,

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

: 22,24,26,28,29,35,51

iii

wb eich ape yi"

wi ln

eee

Page

Groppi v. Leslie, 404 u.s. 496 GT AD Whew clase wud O's as se 28

Hammers v. State, 550 S.W.2d 432 Geeta Betti coven tees 51 |

Harrington v. California, 395 u.s. 250 Ce eT 6s wie ee <A 38

Herron v. Tennessee, 408 U.S. 937 Seb a GW ak ak ow ke 21

Henderson v. Kibbe, 431 U.S. 145 (1977)............. ° 45

Jones v. People, 155 Colo. 148, 393 p.2a 366 (1964)... 21

Jones v. People, 146 Colo. 40, 360 P.2a 682 (1961)... 21

Kinsella v. Singleton, 361 U.S. 234 GRD kwisre We é0t-s oo 25

Lockett v. Ohio, _U.S.__, 57 L.Ed.2d 973 (A978 )ic aus 24,25,32,34

Lowery v. United States, 161 F.2d 30 (2d Cir. 1947).. 59

Lynch v. Overholser, 368 U.S. 705 (1962)............. 50

Malloy v. Hogan, 378 U.S. L CPE a tik os nh ec uod Seeisa 50

Marron v. United, 275 U.S. 192 (1927)................ 63

Mayberry v. Pennsylvania, 400 U.S. 455 CEPT a acela éu se 28

McElroy v. United States, 361 U.S. 249 CAOOOl ess esses 27

McGautha v. bbs eeeta. GOR Wihs 10S ALI) 6 sieves 25,26,27

Menthen v. Oklahoma, 408 U.S. 940 FIG 6 dew kee e eae 22

Menthen v. State, 492 P.2d 351 (Okla. Crim. App.

BOTD): ever TYretr, (fi eee gs ee eres ee ee ° 22

Mincey v. Arizona, __U.S.__, 57 L.Ed.2d 290 (1978)... 64

Miranda v. Arizona, 384 U.S. 436 SNE ada oe vad 0 eek 50,57

Mullaney v. Wilbur, 421 U.S. 684 (1974).............. 30,31,

38,42

Patterson v. New York, 432 U.S. 197 a) Ss Ga nen 14,37,38,43,

44,45

People v. Fitzpatrick, 32 N.vy.2d 346 N.y.S.24 763

COTS hs vans séateeveed Tiree cry Te hve ee ade ae seat 22

People v. Reagan, 397 Mich. 306, 235 N.W.2d 581 |

artdisho dei LT EE. TNT ee eC Ore 51

People ex rel. Rice v. Cunningham, 61 I11.2d 353, 336

B.B.2G (197S) 06. ctenecdencecucieus eocesecccccccece

People v. Shipp, 68 Mich. App. 452, 243 N.W.2d 18

(197G) . ocncccccccces e's wbuteWe « ocemeaalé ec cccccncecece

Pope v. Nebraska, 408 U.S. 933 (1972) ......ceeeeeees °

Proffitt v. Florida, 428 U.B. 242 (iS72) voceceececees

Roberts v. Louisiana, 428 U.S. 325 (1976)........ ecece

Rockwell v. Superior Court, _Cal.3d__, 134 Cal.

Retr. GSO (IFS) o. iacicunvewesveues eee e eee eeeeee

Sanchell v. Parratt, 530 F.2d 286 (8th Cir. 1970)....

Santobello v. New York, 404 U.S. 257 (1971)......... e

Sgro v. United States, 287 U.S. 206 (1932)...

Specht v. Patterson, 384 U.S. 605 (1967) ....ccccceees

Spinelli v. United States, 393 U.S. 410 (1969).......

Stanford v. Texas,

State v. Alvarez,

(1970)

State v. Brockman, 277 Md. 687 (1976)...... ere y rere

State v. Coleman, _ Mont. __, 579 P.2d 732 (1978).....

State v. Davis, 188 So.2d 24 (Fla. App. 1966)........

State v. Kuchenreuther, 218 S.W.2d 621 (Iowa 1974)...

State v. Palen, 120 Mont. 434, 186 P.2d 223 (1947)...

State v. Pope, 186 Neb. 489, 184 N.W.2d 395 (1971)...

State v. Rhodes, 164 Mont. 455, 524 P.2d 1095 (1974).

State v. Staton, 25 Ohio St.2d 107, 267 N.E.2d 122

CLOTL) cc cccccccccccccccccccccccccccce Trrrrrrre rs

Staton v. Ohio, 408 U.S. 938 (1972)..... ice

Stone v. Powell, 428 U.S. 465 (1976)....

Taylor v. Hayes, 418 U.S. 488 (1974)... cece ccccsecess

Page

22,23,26 |

21,22

22 |

51 i

16,46,50, 52

Taylor v. Kentucky, __U.S.__, 56 L.Ed.2d 462 (1978)...

Tilford v. Page, 408 U.S. 939 (1972)...... oP eccseceves

Townsend v. Burke, 334 U.S. 736 (1948)......cccccsece .

SSOP V. DULLOS, 356 U.B. G66 (1956) wrcccccccccccece oe

Tumey v. ohio, BPG Wee. SEG (RORT) ois vie kvicccees gapeve oe

United States v. Bailey, 458 F.2d 408 (9th Cir. 1972).

United States v. Carter, 454 F.2d 426 (4th Cir.1972)..

United States v. DeVall, 462 F.2d 137 (Sth Cir. 1972).

United States v. Hallam, 472 F.2d 168 (9th Cir.1973)..

United States v. Jackson, 390 U.S. 570 (1968).........

United States v. Kramer, 289 F.2d 909 (2d Cir. 1961)..

United States v. Lucarez, 430 F.2d 1051 (9th Cir.

ee oe ee An rh ear ree yee ree sare ee sae

United States. v. McClintic, 570 F.2d 685 (8th Cir.

rae a ated ee la card sis oie We a O alee ae Ra eee °

United States v. Nobles, 422 U.S. 225 (1975)........ éa

United States v. Paiva, 294 F.Supp. 742 (D.D.C. 1969).

United States v. Rabinowitz, 339 U.S. 56 (1950).......

United States v. Spearman, 532 F.2d 133 (9th Cir.

ica aes Sabie kw bn eh Cob bo Abas ae sw tedekeeoes

Vale .v. Louisiana, 399 U.S. 30 (1970).......... babes ea

, Ward v. City of Monroeville, 409 U.S. 57 (1972).......

Wardius v. Oregon, 412 U.S. 470 (1973) ...cccccccccece °

Williams v. Florida, 399 U.S. 78 (1970)........ rt ee

,. Williams v. Kentucky, 408 U.S. 938 (1972).............

Williams v. New York, 337 U.S. 241 (1949) .....

Williams v. Oklahoma, 358 U.S. 576 (1959)........e00e:

Winston v. United States, 172 U.S. 303 (1899).........

mee rm ye wr ns er enn

'| Witherspoon v. Illinois, 391 U.S. 510 (1968)......... 26,28 | Hogarth, Sentencing as a Human Process (1971) ....... 26

|| Woodruff v. State, 164 Tenn. 530, 51 S.W.2d 843 | || Kalven & Zeisel, The American JUSY (1966) oc cccccccee . 29 |

| (U9SZ)} cect otracoces pudebesesees Ome eenesteesonses os a1

; ' Koestler, Reflections on Hanging (Amer. ed. 1957).... 29

Woodson v. North Carolina, 428 U.S. 280 (1976)....... 21,25, .

27,28,29,32 ; Note, Montana's Death Penalty, 38 Mont. L. Rev. 217

CSPTT) 6 0'b sa eR Os Cepek see eek baewad ke eee ee seeeees 23

Zurcher v. The Stanford Daily, _U.S.__, 56 L.Ed.2d

S25 (1978)... ccccces Coe corcccccccccccccccceccoce . 59 Powell, Jury Trial of Crimes, 23 Wash. & Lee L. Rev.

& RSRPG sas, wi cwcuws a Cab wee eden Ree TTT ee ee 28

i §tatutes; | Twentieth Century Fund, Task Force on Criminal

i Sentencing, Report: Fair and Certain Punishment

| Ariz. Rev. Stat. §13-454(A) (1974 supp.) ............. 25 (AR POT A vonn> deena ae'xveus odwiee604b00 O4's kun eas 7 26

‘|

4} MUMS. REV. CoGSe AnM. SHG Se1Ol ..rcccscccccscccéccce 36 , United Nations, Department of Economic and Social

GRPPSTEOE Coe cedsesveduvccocees 36,43 Affairs, Capital Punishment (ST/SOA/SD/9-10)

NE beac bh bn a6 0: kb 00h ss & 8 30 (SPOR) < 6.9.0'd MrkwscaesVs vad be ope ari dus cele ena. 29

SPE “etcveWecbnece cbeeeeeceus 38,39 i

iw aha waa bok 6% #ece hee eae 39 ' Von Hirsch, Doing Justice: The Choice of Punishments

CPP EeT. £0 bh ecbeteenerecesewescer 39 OPED) oo ons 0.042 W446 enables B65 SOULE OLE 26

EEE. oA. ek pe 0 606A wale wh bcees 19 ‘

r GPSTSSESUE) cciccvcccccsvacecece 34 | Zumwatt, The Anarchy of Sentencing in the Federal

\ ‘| Courts, 57 J.Am. Jud. Soc. 96 (1973)..... ebeatd das ‘ 26

Neb. Rev. Stat. §29-2522 (1973 supp.) .....cccccccees 25

Ohio Rev. Code Ann. §29-2522 (1973 spec. supp.) ..... 22,25

(| Former Ohio Rev. Code Ann. §2910.04 (1953)........... 22 il

Tenn. Code ANN. §39-2406 (1955) ....ccccccccccccccccs : 21 \

Other Authorities:

ABA Standards Relating to the Prosecution Function,

Sad eee Cea GD BPA) bec sudctihescwessiekuerdecs 51

Cy Black, Capital Punishment: The Inevitability of

NWCAPELCS aNd Mistake (1974)... .ccccccccccccsvcccccces 52

Black, Due Process for Death: Jurek v. Texas and

Companion Cases, 26 Cath. U.L.Rev. 1 (Fall,1976).. 35

W. Bowers, Executions in America (1974).........e.e0: tals

L. Carroll, Alice's Adventures in Wonderland

PR is DEE eL ctedaaddaeeneanteebesanwve hes 3s 32

ee eee

| Criminal Code Comment to Mont. Rev. Codes Ann. |

Serer, CENte. Cee) asvaccdeoneunearsodedeiesceaete 46,240 | {}

Frankel, Criminal Sentences - Law Without Order

Sidhe baddies Reo dkehaeeeescnine re ee efeeneee#ee 26

viii

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1978

No. 78-

DUNCAN PEDER MCKENZIE, JR.,

Petitioner,

-V.-

STATE OF MONTANA,

Respondent.

FOR WRIT OF CERTIORARI

HE SUPREME COURT OF MONTANA

Petitioner prays that a writ of certiorari issue to review

the jucgment of the Supreme Court of snc entered June 7,

1978.

CITATION TO OPINION BELOW

The opinion of the Supreme Court of Montana, reported

at Mont. __, 581 P.2d 1205 (1978), is set out in Appendix

A, infra.

JURISDICTION

The judgment of the Supreme Court of Montana was entered

on June 7, 1978. On July 25, 1978, that court denied a timely

rehearing petition. Jurisdiction of this Court is invoked

under 28 U.S.C. §1257(3), petitioner having asserted below

and asserting here deprivation of rights secured by the

Constitution of the United States.

QUESTIONS PRESENTED

1. Whether the imposition and Carrying out of the

sentence of death by hanging for the crimes of deliberate

homicide and aggravated kidnapping under the law of Montana

violate petitioner's rights sinew the Sixth, Eighth and

“ourteenth Amendments to the Constitution of the united

States?

2. Whether the Montana Supreme Court's ruling on remand

from this Court that a Criminal defendant may be required to

prove by a preponderance of the evidence that he lacked the

Capacity to form a criminai mentai state that is an element

of an offense, and its consequent approval of the trial

court's instructions to the jury in this case, violated peti-

tioner's rights under the Due Process Clause of the Fourteenth

Amendment to the Constitution of the united States to require

the State to prove beyond a reasonable doubt every fact

necessary to constitute the crime’ charged?

3. Whether the failure of the courts below to enforce a

‘

plea bargaining agreement between petitioner, the State, and

the eas court, on which petiticner's counsel had relied in

revealing petitioner's trial strategy and tactics to the

State prior to trial, Ceprived petitioner of due Process of

law in violation of the Fourteenth Amendment to the Constitu-

tion of the United states?

4. Whether the introduction at trial of evidence seized

from petitioner's dwelling place and truck parked outside his

@ @ ;

—_ rs or

dwelling place pursuant to a search warrant violated his rights

under the Fourth and Fourteenth Amendments to the Constitution

of the United States?

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case involves the Fourth, Fifth, Sixth, Eighth and

Fourteenth Amendments to the Constitution of the United States

and various sections of the Montana Revised Codes Annotated as

set forth in Appendix D infra. |

STATEMENT OF THE CASE |

This is a petition for a writ of certiorari to review the

judgment of the Supreme Court of Montana, entered on June 7,

1978, reaffirming petitioner's conviction and death sentence.

Petitioner, Duncan Peder McKenzie, Jr., was convicted of deli-

berate homicide and aggravated kidnapping on February 1, 1975,

after a jury trial in the District Court of the Eighth Judicial

District in and for the County of Cascade, Montana, and was

The Montana Supreme

sentenced by the trial court to be hanged.

Court affirmed, State v. McKenzie (I), 557 P.2d 1023 (Mont. 1976)

and this Court remanded “for further consideration in light of

Patterson v. New York," 432 U.S. 197 (1977), 433 U.S. 905 (1977).

On remand, the Montana Supreme Court adhered to its original

decision, State v. McKenzie, (II), eae P.2d 1205 (1978).

Ms. Lana Harding, the victim of the kidnapping and murder,

was last seen alive about 5:00 p.m., January 21, 1974, in

Conrad, Montana, about 13 miles from the living unit (or

“teacherage") near the rural public schoolhouse where she

taught, T. 1630, 2156, 2158.° When she failed to appear at

1/ References to papges of the trial transcript will herein-

after be preceded by "T.", and references to documents contained

in the "Court File" record in the Montana Supreme Court will be

preceded by "Ct. File Item."

school the next morning the county sheriff was notified, T.

473; the sheriff and deputies came to the teacherage and

searched the premises. This search produced: a red tennis

shoe found outside the door of the teacherage, T. 1635; some

scuff marks, two mats out of place, and a pair of glasses

found inside the teacherage. Deposition of Deputy Jerry Hoover,

Ct. File Item 30, at p.6; what appeared to be a ‘drag trail" |

leading out of the teacherage, under a fence, up to the road

in front, ibid; T. 2125; anda spot of what appeared to be

blood near the end of the trail by the road, with a woman's |

watch nearby. T. 900-901, 2018. Officers spoke to a neighbor

of Ms. Harding's -- one Dan Pearson who lived across the road

from the teacherage. Mr. Pearson told the officers that the

previous evening, a man had come to his door and had asked

for help in starting his pick-up truck. This man, who

Pearson characterized as "nervous" and who identified himself

as Duncan McKenzie, had phoned his wife from Pearson‘s house.

T. 2010. The two men then had gone to the cenit: which was

parked near where the officers found the watch and apparent

blood stain, and had started the ede. T. 216-217; Deposition

of Justice cf the Peace Robert wolfe, Ct, File Item 30, at

Pp. 6-7.

Later during the day Ms. Harding was found to be missing,

Pondera County Attorney David Nelson visited the teacherage

and talked to Deputy Jerry Hoover, who had been involved in

the search, T. 2015. The two men returned to Conrad in the

late afternoon, T. 2016, where Nelson executed an "affidavit" |

reciting the facts then known to the investigators, and drafted

a criminal complaint charging petitioner with a misdemeanor

assault upon Lana Harding. Ct. File Item 60. Nelson explained

to Justice of the Peace Robert Wolfe what he tmd learned and

been told. The Justice of the Peace placed Deputy Hoover under

oath and asked him a few questions. No court reporter was

present, and-no contemporaneous record was made of Hoover's

testimony. Ibid.

At the conclusion of these proceedings, Justice of

the Peace Wolfe signed warrants for petitioner's arrest and for

the search of his "residence . . . and the surrounding [curtilage

area” and of "a 1950 black Dodge Pickup truck there." The searcn

warrant authorized seizure of several items of clothing "worn

by the Defendant," of several other items of woman's clothing,

“and any other controband [sic] articles." Ct. File Item 76,

Pursuant to these warrants, County Attorney Nelson, the

Sheriff, and several of his deputies went to the petitioner's

residence at around 7:00 p.m. the same evening, T. 2017-2018,

arrested petitioner, seized both his pick-up truck (which was

parked just in front of his house, T. 905) and its contents

(T. 2019); the officers searched his house, removing from it

several items of his clothing, T. 2022 and took clothing as

well as pubic and head hairs from petitioner. The pick-up was

taken to a garage in Conrad and searched the next day. T. 736, dao |

2/ This "Affidavit" is reproduced in the dissenting opinion of

Justice Shea in State v. McKenzie (II), supra, 581 P.2d at 1240-

3 / According to Wolfe's testimony, Hoover told him of Ms.

r41.

Ms. Harding's partially nude body was found on January

23 a few miles from the teacherage, T. 467-468, 1979, clothed |

in a blouse, sweater, and bra, with a number of severe head

wounds, T. 562, and a rope twisted about the neck, T. 553,

585-586.

On January 24, 1974, petitioner was charged by information

with the deliberate homicide of Lana Harding. Ct. File Item 4.

On December 3, 1974, venue of the trial was changed to Cascade!

County, Montana, T. 3, and several motions by appointed defense

counsel -- including a motion to suppress the evidence seized |

eee:

from petitioner's house and truck, T. 2 -- were denied. On

3/ (Cont'd.}

Harding's disappearance, the scuff marks on the floor of her |

house, the other items "out of place" there, the tennis shoe |

found outside her door, the “drag marks" leading up to the

road, the presence near the road of a woman's watch and some— |

thing that "looked like it was blood," and the encounter pan |

Pearson had had the night before with petiticner. Deposition

of Justice of the Peace Robert Wolfe, Ct. File Item 30, at

Pp. 5-8. See pp. 53-57, infra. |

4/ Other items ultimately introduced in evidence were dis-

covered in farm fields several miles from the teacherage or

at the site where the body was discovered: a pair of leather

work gloves with what appeared to be specks of blood on then,

fT. 897, a pair of rubber men's overshoes, T. 2140, and a

woman's purse, T. 2147. ,

S5/ During the next eight months, three "Amended Informations"

were filed by the State. Ct. File Items, 16, 33, 74.

6/ The order denying the motion to Suppress, Ct. File Item

90, contained no findings or conclusions and did not specify

the grounds on which the searches were sustained. Petitioner |

See could not obtain such findings from the court.

?. -14.

December 17, 1974, the trial court entered for petitioner a

plea of “not guilty”, T. 19, to two counts of deliberate

homicide, two counts of aggravated kidnapping, one count of

sexual intercourse without consent, and two counts of aggravated

assault charged in the third amended information.

Within a few “ays of the entry of petitioner's plea, counsel

for the defense and state engaged in plea bargaining discussions

which culminated in an agreement that petitioner would be

allowed to plead guilty to deliberate homicide and aggravated

assault and that the State would waive the death penalty. Affi-

davit of Barney Reagan, Esq., Ct. Pile Item 99, at p.2. On

December 23, the trial

judge, Hon. R. J. Nelson, agreed to

accept the pleas, with a slight modification in the sentencing

agreement. Ibid. But cn December 28, 1974, om after defense

counsel had disclosed his ones strategy in reliance on the

plea agreement in order to assist the prosecution in justifying

the plea to the community ae the victim's family, id. at 3-4 --

the State announced it was abrogating the agreement because of

objections voiced by Ms. Harding's family, id. at 3-4, see p.

infra. Over defense objections, the trial court ruled that

the case would proceed to trial, T. 6 (December 30, 1974), and

permitted the State to endorse fifty-eight new witnesses on the

7/ The two homicide and two kidnapping counts charged a single

instance of homicide and kidnapping respectively, but alleged

different methods of commission. see Ct. File Item 74.

Si ou eet Maes Bes

ar Ae Loewe ee

AO nae ne th OR Re ia EN I AR rte nS

day of trial. Ct. File Item 113; T. 80-81, 88, 91. The defense|

claimed these witnesses were called to counter the trial

strategy defense counsel had revealed in reliance on the

broken plea bargain agreement. Defendant's Objections, Ct. |

File Item 114, at p. 2.

Over defense objections, the jury selected on January 8,

1975 was not sequestered, T. 78, 233, 498. The trial judge

openeé the trial with extensive "preliminary instruct‘ sns"

cn matters of law. T. 453. The State established that Lana

Harding had died from multiple wounds to the head, T. 560,

inflicted by a large, heavy instrument, T. 565.

pathologist testified

The State's

that he could not determine the exact

time of @ath, T. 1424, but that the blows were all inflictee

. within thirty minutes of death, T. 563, and that the most

severe blow preceded death by only a few minutes, T. 564.

8/ Because the pathologist testified that it was possible tc

present his findings and render'‘his cpinion without photographs,

petitioner objected to the introduction of photographs the

pathologist had taken on the ground that they were inflammatory

and unnecessary. One Justice of the Montana Supreme Court

dissented from that court's original affirmance of petitioner's

conviction and death sentence on the gound that admission of

these photographs constituted reversible error. State v. ;

McKenzie (I) supra, 557 P.2da at 1046-1048 (Boyd, J., dissenting).

9/ The pathologist noted also that a clothesline rope found

around the neck of the body had been, tightly enough constricted

sometime before the blows were inflicted to the head and between

thirty and ninety minutes prior to death, T. 586-588, to cause

a loss of consciousness. The doctor also found a tear in the

tissue about Ms. Harding's vaginal orifice and a small amount

of blood, indicative of sexual intercourse somewhere around the

time of death, T. 601, and male seminal fluid in the pubic |

hair, ibid., but it was impossible to determine when the deposit

had been left, T. 602, 1455.

The State sought to link petitioner to Ms. Harding's

death primarily through the testimony of Dan Pearson, T. 2160-

2175, and Pearson's father, Gundar, T. 2148-2155, that peti- |

tioner had sought assistance in starting his stalled truck

near the teacherage the evening of January 21, and through

10/

the introduction of a mass of physical evidence -- much of

it seized from petitioner's truck and house -<-- which tended

to indicate petitioner's involvement in her abduction. The

10/ The order of the State's presentation was significantly

altered from the chronological sequence of events due to the

introduction of voluminous testimony concerning the chains of

custody over the various items introduced. See, e.g., 474-787,

521-527, 634-637, 646-657, 670-685, 699-717, 767-777, 205-825,

956-972, 1095-1108, 1469-1538, 1919-1955. Establishing the

chain of custody with respect to various evidentiary items

had been a primary weakness in the State's case perceived by

defense counsel and revealed sy them to the State in re viance

on the subsequently abrogated plea agreement.

il/ Two items taken from petitioner's House were introduced

into evidence against him, T, 1062, 2091: a pair cr boots,

T. 778-779, with a small trace of blood on one of them, T.10325

the soles of which were similar to prints inside cvershoes

found discarded in a farm field about two miles from the

teacherage, T. 897, with blood and brain tissue on them,

T. 1061-1062; and a shirt belonging to petiticner which also

had untypeable human blood on it, T. 1205. A number of objects

and samples taken from petitioner's truck were also introduced

into evidence: an exhaust manifold, T. 1949, similar to the

instrument which could have inflicted the fatal wounds on Ms.

.Harding, T. 1397, which had type O blood T. 1117, brain

tissue, T. 1395, and hair similar to Ms. Harding's T. 1298,

under fresh paint on it; a coil of wire, part of which matched|

a piece of wire found in Ms. Harding's hair, T. 1126; several |

scrapings from parts of the truck, T. 970, 976-979, which con-'!

tained type 0 blocd, T. 1188-1192, and sweepings which con-

tained hairs which were microscopically similar to Ms. Harding's,

T. 1294-1296, 1307, 1381, and a number of hardware items from

the bed of the truck, see, e.g.,Ts 1872, 1877, 1878, 1935, 1946,

with blood, sometimes identifiable as type 0, on them, see,

e.g., T. 1095-1097, 1103-1112, 1141.

12/ In addition to the items seized from petitioner pursuant |

to the warrants, the State offered several other items of

physical evidence and scientific testimony about them tending

to link petitioner to the crime. Most significantly, it showed

that petitioner's blood was "0" positive and that he was a

a =

State also offered testimony from two of petitioner's co-

workers that he had made statements indicating a sexual

interest in "country school teachers" in general, T. 2054, and

Ms. Harding in particular, T. 1897. !

Petitioner, who had a prior conviction for assaulting a

13/

woman, T. 2615, did not testify. While he challenged the

persuasiveness of the State's evidence to prove the elements

14/

of the offenses charged and also sought to demonstrate that

15/

some of this evidence may have been tampered with, most of

12/ (Cont'd.)

“secretor" (i.e., that his blood type could be determined from

his saliva or semen) T. 619. The semen found in Ms. Harding's.

pubic hair, T. 613, the tests revealed, had come from a wale

with "0" type bicod. A pair of gloves was found discarded

T. 897, in the same general area where Ms. Harding's purse.

and the pair cf overshces with human blood on them, T. 1032

were alsc found, T. 2140, 2147, and these gleves were sintiar

to work gloves petitioner haa been seen wearing T. 1749. The

gloves had stains on them Similar in color to the "Red Tos"

aia treat used at the seed sicre where petitioner worked, T.

13/ Petitioner initially refused to enter a plea of "not guilty

by reason cf mental disease or defect excluding responsibility”.

or to give the statutorily required notice of such a defense

He claimed that the 1973 Montana Criminal Code's "mental disease

or defect provisions were unconstitutional because (1) they i

Placed upon petitioner the burden of establishing the affirma-.

tive defense of mental incompetence by a preponderance of the

evidence, and (2) they placed upon petitioner the burden of

controverting the assumption that he possessed the requisite |

mental elements for deliberate homicide, once the State had

established an illegal killing. See pp.36-45, infra. Petitione

refused to give the statutorily required notice for fear of :

waiving his constitutional objection to the "mental disease

defect" rules. See Ct. File Items 24, 27, 28, 37, 40. a

14/ See, e.g., T. 593, 602, 1444, 1455, 1233-1276, 2338-2378.

15/ Defense witnesses testified that, after petitioner haq |

been taken into custody, Ms. Harding's purse had not been |

found on the night of January 22 in a careful search of the

area where it was subsequently found January 23, T. 2218, and

that the pickup truck from which so many crucial items of

- 10 «

petitioner's own evidence was addressed to the question of

whether he could have acted "knowingly" or “purposely” in the

commission of a homicide. The trial court construed petitioner's

defense as that of "mental disease or defect excluding respon-

sibility.” T. 1427-1435. A psychiatrist appointed to examine

petitioner, Dr. Robert Wetzler, testified that petitioner was

a “schizoid personality," T. 2248, who was unable to form the

requisite mental elements of deliberate homicide and aggravated

kidnapping, who was unable to appreciate the criminality of

his conduct, and who was unable tc conform his ccnduct to the

requirements of law, T. 2248, 2321.

In rebuttal, the State intreduced the testimony of another

psychiatrist who had examined petitioner, Dr. Meguel F. Gracia;

who testified that petitioner possessed a “passive-aggressive

personality" and "sccial maladjustments,” T. but that he

was not afflicted with a "mental disease" and could appreciate

16/

the criminality cf his conduct, T. 2397. A state psychologist

15/ (Cont'd.)

evidence had been taken had, for a time at least, been left

unguarded after it was seized and thus could have been tampered

with, T. 2231.

16/ Dr. Garcia based this conclusion partially on his cbserva-

tions of petitioner's "thought content” in refusing, on the

advice of his attorney, to discuss the crime with which he

was charged, T. 2400. Dr. Garcia concluded that this refusal

was "rationalization". Other "symptoms" which Dr. Garcia

cited in support of his diagnosis that petitioner possessed

merely a “personality disorder" were “insecurity,” T. 2409,

“hostility,” T. 2411, and suppressed anger, T. 2413-2414.

ee ES nn ee tien *

testified concerning his “diagnostic impression", on the

basis of testing, that petitioner had a “personality disorder",

T. 2559, but that he could appreciate the criminality of his

conduct and conform it to law, T. 2547.

Over petitioner's objection, the trial court instructed

the jury that “the defenéant must prove by a preponderance

cf the evidence that he suffered from such an abnormality

or subnormality of the mind at the time of such conduct that

the jury cannot say that it does not have a reasonable doubt

as te his responsibility

cx such conduct." Add. Instr. 53,

Ct. File Ttem 154. The trial ccurt also instructed, cver ob-

jection, that the jury could censider evidence cf "mental

disease or defect" which petitioner had introduced on the

questicn whether petitioner had the requisite mental elements

of the crimes charged, but that the burdén was on petitioner

to show the absence of those mental elements due to a “mental -

- disease or defect." See PP- 36-45,infra.

. . . i7/

Six possible verdicts were submitted to the jury, and

17/ These verdicts were: "Mental Disease or Defect Excluding

Responsibility for Conduct," "Deliberate Homicide" (with or

without torture), "Aggravated Kidnapping” (with or without

causing the death of the victim), "Sexual Intercourse Without

Consent,""Aggravated Assault," "Kidnapping," "Not Guilty of

Any of the Offenses Charged." Add. Instr. 54, Ct. Pile Item

154.

it found petitioner guilty of "Deliberate Homicide by Means

of Torture," and “Aggravated Kidnapping", accompanied by the

death of the victim. T. 2605. The trial court ordered the

preparation of a pre-sentence investigation report, which was

disclosed to petitioner, and a sentencing hearing was held on

March 3, 1975, before the trial court, sitting without a jury,

as required by Montana law. In written "Findings, Conclusions,

Sentence and Order," Ct. File Item 169; attached infra as :

Appendix B, the trial court stated that "(t]he evidence in the

case, and as icund by the jury discloses a brutal, ccnscience-

less, torture, rape and deliberate killing of a human being,"

id. at 7; that petitioner could distinguish right

rom wrong

but was "dangerous and potentially dangerous", ibid.; that

he had previously been convicted of an aggravated assault on

a woman and that the chances of his rehabilitation were

“practically nonexistent," id. at 8, and that under Montana

law "he would only be required to service [sic] approximately |

seven years .. . before he would be turned loose to menace

society again,” id. at 9. The trial court found that "there

are no circumstances which mitigate the defendant's conduct

or the sentence to be imposed," ibid., and sentenced petitioner

18/

to be hanged for deliberate homicide and aggravated kidnapping.

18/ Petitioner was not sentenced separately for these two

crimes. The trial court concluded that "(t]he offenses of

which the defendant had been found guilty are of equal gravity

before the law and result from the same transaction, and there-

fore only one sentence may be imposed though he was found guilty

of two offenses." Findings, Conclusions, Sentence and Order, |

Ct. File Item 169, at p.9.

| oe

Ne ee ee ee ee ee ee

On November 12, 1976, the Supreme Court of Montana affirmed

petitioner's conviction and sentence, with one Justice dissent-

ing. State v. McKenzie/r), supra.

On June 27, 1977 this Court granted certiorari, vacated :

petitioner's sentence and remanded the case for reconsideration |

in light of Patterson v. New York, supra,433 U.S. 905 ELST}.

19/

On remand a differently composed Montana Supreme Court pur-

ported to have "reconsidered the entire case, not only in the

light of Patterson, but also on all issues raised in the criginal

appeal to this Court," State v. McKenzie (iI), Supra,581 P.2d_

at 1210, and found "no reversible error," 581 P.2d at 1235.

One Justice dissented from the affirmance of the admission of

“evidence seized pursuant to a search warrant" and "the desing

upholding the death penalty," asserting that the court had |

"effectively ruled that a brutal, heinous murder justifies the

State of Montana in suspending the Operation and application of.

the Constitution ...." Ibid. (Shea, J., dissenting).

19/ Justice Boyd, who dissented from the Montana Supreme

Court's original affirmance of petitioner's conviction because

of the admission of photographic evidence that he found could

“serve no other purpose than to arouse the emoticns and passions

of the jury," State v. McKenzie (I), supra, 557 P.2d at 1048,

did not participate in the reconsideration on remand from this

Court.

HOW THE FEDERAL QUESTIONS WERE RAISED AND

DECIDED BELOW |

I. Petitioner filed a Petition and Motion in Mitigation,

in the trial court, Ct. Pile Item 162, urging that the 1973

Montana death penalty statute was unconstitutional under "the

rule expressed in Furman v. Georgia," and under the Eighth

Amendment to the Constitution of the United States, id. at

1, 4, and he moved the trial court "[t]o not impose a sentence

of death,” id. at 5. Petitioner's Specification of Error No.

25 alleged that petitioner's sentence cf death was imposed in

violation of the "Fifth, Sixth, Eichth, Ninth & Fourteenth"

Amendments to the Constitution of the United States, brief of

Appellant at 466, and the Montana Supreme Court twice rejected

this contention. State v. McKenzie (f), supra, 557 P.2d at

1028-1034; State v. McKenzie (II), supra, 581 P.2d at 1229.

II. During trial, petitioner filed a written "Motion

to Require Proof of Ability to Have a Particular Mental state,”

Ct. File Item 143, and submitted a proposed instructicn that

“the State must prove that Defendant had the necessary state

of mind to have acted . . . either ‘knowingly’ or ‘purposely’

beyond a reasonable doubt,” Defendant's Instruction No. 13, :

Ct. File Item 153. The trial court denied this Mction and

refused the instruction, T. 2208, 2598-2599. Petitioner's

Specification of Error No. 19 raised this issue in the Montana

Supreme Court, Brief of Appellant at 364-369. That court re-

jected this contention. On remand the Montana court reaffirmed

this holding, ruling that "[e]lements of the offense may still

be presumed . . . from proof of other facts," State v. nz

(II), supra, 581 P.2d at 1222, that “a defendant must prove

DiStig

Te ata Nate

imi

! i

by a preponderance of the evidence that he lacked the ability

- + « to form that criminal mental state which is defined by

statute as an element of the crime," id. at 1233; that the

trial court's instructions, “when read together, ... required

defendant to establish his diminished capacity merely by

raising a reasonable doubt," "a more liberal burden of par

than the Constitution requireg" id. at 1235, and that even

if not, since the court was "convinced beyond a reasonable

doubt that defendant acted "purposely' or ‘knowingly' .. .

if there was any error in the burden of proof, it was harm-

less." Id. at 1224.

IfI. On January 3, 1975, before trial, petitioner filed

a “Mction tc Enforce Agreement of December 23, a974,* Ct.

File Item 104, which contended that failure to enforce a Plea

bargaining agreement deprived petitioner of "due process of

the law under the United States ... Constitutio{[n],”" id.

at 3. This motion was denied, T. 60, and petitioner's Speci-

fication of Error No. 2 alleged this refusal to enforce the

agreement as error. The Montana Supreme Court held that

Santobello v. New york, 404 U.S. 257 (1971), was "not applica-.

ble",

McKenzie (TI), supra, 581 P.24a at 1214, and rejected the

claim.

State v. McKenzie (I), Supra, 557 P.2d at 1038, State Vv.

IV. Prior to trial, petitioner moved to suppress

items seized from his house and truck on the ground that

they had been seized in viclation of his rights umer the

Fourth Amendment to the Constitution of the United States,

Ct. File Item 50. The trial court entered an order denying

this motion, Ct. Pile Item 90, and petitioner's Specifica-

tion of Error No. 1 alleged the denial of this motion as

error. The Montana Supreme Court held that "‘only a prob-

ability of criminal conduct need be shown'" for a search

‘warrant and that “items cther than those specifically

described in [a] search warrant may be seized so long

as a reasonable relationship is demonstrated between the

search authorized ... and seizure of the items ....

State v. McKenzie (II), supra, 581 P.2d at 1211, 1213; see

also State v. McKenzie (I) supra, 557 P.2d at 1034.

eo 7 @

mt ak SOR a call

ates Ce ee 0 a

THIS COURT SHOULD GRANT CERTIORARI TO CONSIDER

WHETHER THE IMPOSITION OF THE SENTENCE OF DEATH

BY HANGING FOR THE CRIMES OF DELIBERATE HOMICIDE

| AND AGGRAVATED KIDNAPING UNDER THE LAW IN EFFECT

ii IN MONTANA AT THE TIME OF THE OFFENSE FOR WHICH

| PETITIONER WAS CONVICTED COMPORTS WITH THE SIXTH,

EIGHTH, AND FOURTEENTH AMENDMENTS TO THE

CONSTITUTION OF THE UNITED STATES.

This case involves the only death sentence imposed under the

1973 Montana capital punishment statute enacted in the wake of

| Furman v. Georgia, 408 U.S. 238 (1972),

first in 1974 and then again in 1977 -- to provide different pro- ,

which was amended --

cedures for imposition of death sentences for the crimes of

|| "deliberate homicide" and "aggravated kidnaping." Under this

2°/ In 1974, the Montana Supreme Court invalidated the State's

{previous Capital sentencing procedure: "Furman invalidates

il death sentences imposed under statutes such as our section

| 94-2505 - + - because of the unfettered discretion lodged in

| the judge... . that allows the sentencer discretion whether

||} Or not to impose the death penalty upon conviction." State v.

i Rhodes, 164 Mont. 455, 524 P.2d 1095, 1099 (1974). The

,Montana Criminal Code Commission thus explained the Montana

Legislature's reaction to Furman:

i "if any capital punishment statute is to

ij achieve constitutional approval it must

| be both mandatory and specific. Subsection

(1) purports to establish mandatory capital

punishment by use of the terms 'shall.' This

i} is followed by a humanistic escape valve in

I! the phrase, ‘unless there are mitigating cir-

cumstances.' The terms are apparently con-

tradictory -- but, in fact, the mandatory

ii language is subject to the exception and

ultimately only a test case in the United

States Supreme Court can ascertain the

| constitutionality of the provision."

i, Criminal Code Commission Comment to Mont. Rev. Codes Ann.

.§94-5-105 (1973 supp.). This Comment is appended to the

) provision of the new Criminal Code authorizing the death penaity

| £0r deliberate homicide. The Commission Comment to the

| aggravated kidnaping penalty provision states this explanation

jis “applicable to this section" as well. Criminal Code Commission

| Somes to Mont. Rev. Codes Ann. §94-5-304 (1973 Supp.).

o.18:«

statute, a death sentence is required to be imposed by the court

for six categories of "deliberate homicide" and the offense of

kidnaping unless the trial court, sitting without a jury, finds

|| that there are “mitigating circumstances." Mont. Rev. Codes Ann.

21/

| §94-5-304 (1974 supp-)— |

| The determination whether sufficient undefined "mitigating

prectangenere exist to justify the imposition of a sentence less

| than death under this statute is to be made "exclusively" by the

eee court. Mont. Rev. Cod@ Ann. §95-2212 (1969). No standards |

= procedures are provided to guide this sentencing discretion.

| When the Supreme Court of Montana vacated pre-Furman death

| sentencesin 1974, it commented that:

ii “Subsequently [to Furman], the Legislature

enacted into law a mandatory death penalty.

We emphasize here that our [present] holding

does not in any way purport to rule on the

validity of the new statute." State v.

il Rhodes, supra, note 22, 524 P.2d at 110l.

In its subsequent consideration of petitioner's appeal, the

Montana Supreme Court reviewed the 1973 death penalty statute in

: . . . -

, light of this Court's decisions in Gregg v. Georgia, 428 U.S. 153

| (1976), and companion cases. It upheld the constitutionality of

' the statute, noting that "[t]he sentencing procedure ...

igen the individual characteristics of the person convicted

| be considered," State v. McKenzie ‘I, supra, at 557 P.2d 1030,

N that “{r]eview of the sentence imposed is provided for," ibid.,

' ee ie

'| and that "'jury participation in the sentence’ is [not] a necessity

: ‘atl. ewamnan —_—sA _ te +ts

Zor constitutionality," id. at 1031. On remand from this Court's

i . .

| vacation of its previous ruling, the Montana Court reiterated its

i} > oe

‘holding, stating that

{

i21 / See note l, supra.

ii Ke : ee oe

22/ Whereas the Montana Court on petitioner's first appeal p

ported to review his sentence "to determine whether the sentence

was influenced by passion," “whether the evidence Supports...

the statutory aggravating circumstance," and "whether the death

- 19 -

ME ARAL i Ba cs alban Bes

di i tenia hasr btn

"Although Montana's statutory scheme is

unlike those approved by the United States

Supreme Court in Gregg, Proffitt and Jurek,

we see no substantive failure of Montana's

statutory scheme to comply with constitu-

tional standards."

| State v. McKenzie (II), Supra at 581 P.2d 1229. That determina-

‘tion and the consequent affirmance of petitioner's death sentences i

| present a number of questions invoking this Court's “obligation

" . P ° . °

| to re-examine capital sentencing procedures against evolving

/ Standards of procedural fairness in a civilized society." Gardner

lve Florida, 430 U.S. 349, 357 (1977).

to Meet the Procedural Requirements of Furman Vv. Georgia.

Petitioner has plainly been condemned under a Capital sen-

A. The Failure of Montana's 1973 Capital Sentencing Law

| tencing procedure that fails to “address the concerns expressed

‘by the Court in Furman," Gréeac v. Georgia, supra, 428 U.S. at 180.

‘Montana's 1973 statute consisted simply of a broad mandatory

‘| death penalty for five categories of “deliberate homicide" and

/ any "aggravated kidnaping" resulting in the death of the victim, }

‘subject to "a humanistic escape valve in the phrase ‘unless there

jj are mitigating circumstances, '" Criminal Code Commission Comment

| to Mont. Rev. Codes Ann. §94-5-105 (1973 Supp.). The “humanistic

| escape valve" is, of course, nothing new or local to Montana: it

resurrects an antiquated pre-Furman death-sentencing formula under

‘which the defendant is required to be haneed unless undefined

1) 00.

\ mitigating circumstances" are found. See, @.g., Winston v. United

States, 172 U.S. 303 (1899) (rejecting the "Mitigating circun-

stances" approach as a matter of federal practice). Judicial

' @iseretion to impose or not imnose the

| 22 / (Cont'd.)

sentence is excessive," State V. McKenzie (I), Supra, 557 P.2d at

1034, on remand it said "this Court determines the legality of the

sentence imposed . . . while the Sentence Review Division is

designed to determine the appropriateness of the sentence, "

State v. McKenzie (II), supra, 581 P.2a at 1229. Petitioner's

sentence has not been reviewed by the Sentence Review Division

of the Montana Court.

= 20-<

—

meaningfully circumscribed by such a formula. This Court squarely

so held in 1972 when, pursuant to Furman, it vacated death

sentences imposed under the laws of at least three States that

used the formula.

| pilford v. Page, 408 U.S. 939 (1972) (per curiam) (see, e.g.,

Jones v. People, 146 Colo. 40, 360 P.2d 686, 692 (1961); Jones

v. People, 155 Colo. 148, 393 P.2d 366, 367-368 (1964)); Williams

v. Kentucky, 408 U.S. 938 (1972) (per curiam) (see e.g., Edwards

|v. Commonwealth, 298 Ky. 366, 182 S.W.2d 948, 951 (1944)); Herron

| Zs Tennessee 408 U.S. 937 (1972) (per curiam) (see Tenn. Code

| Ann. §39-2406 (1955); e.g., Woodruff v. State, 164 Tenn. 530, 51

|S.W.2a 843, 848 (1932)).

“

The 1973 Montana statute “simply dapered over the problem of

il ; tees

| unguided and unchecked . . . discretion" in death sentencing.

Woodson v. North Carolina, 428 U.S. 280, 303 (1976) (plurality

Opinion) by combining the vices of the death-sentencing procedures

‘|

made a mandatory death penalty the presumptive sentence for a

| bread roster of criminal offenses, see Roberts v. Louisiana,

il :

(428 U.S. 325 (1976), and then allows the trial court to impose a

| lesser sentence in a manner that continues the ‘pre-Furman regime

| 23/ “Torture” is undefined in Montana law, but was defined by

|The Montana Courts below -- by reference to California case law

‘== as,assault "for the purpose of inflicting cruel suffering, *

| “extort anything," "to persuade [the victim] against his or her

jwill, or . . . to satisfy some other untoward propensity." State

Vi McKenzie (II), supra, 581 P.2da at 1220: see Add. easter. 34, Ct.

Pile Item 154, Appendix C, infra. ‘The Montaaa Supreme Court has

likened this provision to that of the Georgia law upheld in Gregg

v. Georgia which made murders "aggravated" if “cutrageously and

wantonly vile, horrible an@ inhuman" involving "depravity of the

mind." State v. McKenzie (I), supra, 557 P.2d at 1034. It is at

.least questionable whether such standards as these used alone can

bulwark a system capable “of imposing capital punishment other

than by arbitrariness or caprice." See Gregg v. Georgia, supra,

'428 U.S. at 201 n. 51 and 202 n. 54:

«= S32

that this Court found unconstitutional in 1972 anda 1976. . It first

«aia

wendy

A Lal AB at Dg ohn tt han oe a

of “complete judicial discretion," State v. Palen, 120 Mont. 434,

186 P. 2d 223, 224 (1947), unguided and uncontrolled by any stan-

dards that would "focus ... attention on the particularized

};mature of the crime and the individual defendant," Gregg v. aici

| supra, 4238 U.S. at 206 (plurality opinion). t

ae 24/

4 Simply narrowing slightly the range of capital crines or

Substituting standardless judicial discretion for standardless

‘jury discretion in capital sentencin#“sces not meet Eighth Amendment

| Fequirements. See People ex rel. Rice v. Cunningham, 61 111.24

{

j24/ In the aftermath of Furman, this Court and lower courts

| invalidated discretionary death sentences for crimes much more

|marrowly defined than those for which petitioner was condemned see,,

'E:G-, Duling v. Ohio, 408 U.S. 936 (1972) (see former Ohio Rev.

'|Code Ann. §2910.04 (1953); Ohio Acts 1925, (vol. CXI, p. 77));

jPeople v. Fitzpatrick, 32 N.¥.2d, 346 N.Y.S.2d 793, N.E.2a 13

| (1973); Pecple ex rel. Rice +, Cunningham, 51 111.24 333, 336 N.z.

[hn & seco - . oa Si .

4,24 1 (1575). See esnerally, Roberts v. Lcuisiana,supra, (pluralic:

‘ papenrat

}25/ Many discretionary death sentences reversed in the wake of |

Furman hed been impcsed by 2 judge after a bench trial, see, e.g.,

Cunningham v. Maryland, 408 U.S. 938 (1972) (see Cunningham v. Statd

| 247 Md. 404, 231 A.2d 501 (1967)); Pope v. Nebraska, 408 U.S 933

| (1972) (see State v. Pove, 186 Neb. 489, 184 N.W.2d 395 (1971);

Staton v. Ohio, 408 U.S. 938 (1972) (see State v. Staton, 25 Ohio |

WSt.2d 107, 267 N.B.2a 122 (1971)); or upon a cuilty plea, see, e.g.

Alvarez v. Nebraska, 408 U.S. 937 (1972) (see State v. Alvarez, les:

iNeb. 557, 177 N.W.2a 591 (1970)); Menthen v. Oklahoma, 408 U.S. 940

| (1972) (see Menthen v.:State, 492 p.2a 351 (Okla. Crim. App. (1971) ),

| in Proffitt v. Florida, Supra, 428 U.S. at 253 {plurality

| opinion) , the Court ruled that sentencing judgés must be "given

\| specific and detailed guidance to assist them in deciding whether

+ to impose a death penalty or imprisonment for life." The argument |

| that “trial judges can be trusted to exercise their discretion in

a responsible manner" and need no standards Or guidance "is incon-.

| sistent with the basis upon which the Florida capital sentencing |

‘procedure was upheld" in Proffitt. Gardner v. Florida, supra, 430

jU.S. at 360 n. li. This Court's Eighth Amendment capital punishment

decisions “require that the sentencing authority, be it judge or !

| jury, weigh the, aggravating and mitigating factors in light of

“Specific and detailed guidelines." Rockwell v. Superior Court,

Cal.3d__, 134 Cal.Rptr. 650, 556 P.24 1101, 1112 (1976). Ana

“they forbid death sentencing, though "the penalcy is limited" to

‘certain crimes, where the sentencing agency has the raw "discre-

| tion to decide, case by case, whether that ultimate punishment

“Should be inflicted." Pecple vy. Fitzpatrick, 32 N.y.2d 499, 346 |

UNY.S.2793, 802, 300 N.E.2da 139 (1973). Nothing in them validates |

@ ‘system which simply "permits reduction of an otherwise mandato

death penalty only if the sentencing authority finds mitigating et

cumstances sufficient to warrant mercy." Rockwell v. Superior Court}

supra, 556 P.2d at 1112.

= 22 «

26/

The Eighth Amendment requires an "in-

353, 336 N.E.2d 1 (1975).

formed, focused, guided and objective inquiry into the question

whether [a particular defendant] .. . should be sentenced to

death." Proffitt v. Florida, Supra, 428 U.S. at 259. The 1973

Montana statute provided none. Petitioner was sentenced to die

simply because the judge that sentenced him found that the death

penalty was "justified" in his case. Ct.File Item 169; Appendix B,

infra at 9. While the judge assigned variow reasons for his deci-

27/

———

sions, neither the aggravating nor the mitigating factors he cited

28/

nor the procedure by which he found them, had any statutory basis.

26 In Cunningham, the Illinois Supreme Court struck down a post-

Furman death penalty statute indistinguishable from Mcoatana's pri-

mariiy on the state constitutional ground that the three-judge

sentencing courts it created were unauthorized. But the court made

the “additional observation" that the statute -- which provided for

the death penalty for certain specified crimes unless “compelling

reasons for mercy" were found by the court -- was "defective be-

cause it dees not contain standards to be considered in determining

whether there are ‘compelling reasons for mercy' and the imposing

of a sentence other than death." 336 N.E.2d at 6. One Justice "ccn-

cur{red]) with the majority that "[t]Jhe ‘compelling: reasons for

. mMercy' test is too vague and indefinite and permits a degree of

arbitrariness in the imposition of the deah penalty not permissible

under Furman." Id.at 7. '

27/ At sentencing, petitioner's counsel protested that the deter-

mination of the presence or absence of statutorily undefined "miti-

gating circumstances" was the kind of amorphous and discretionary

standard condemned in Furman, Petition and Motian in Mitigation,

Ct. File Item 162, at pp. 1-2. Counsel asserted that they were un-

able tc determine exactly what “matters in mitigation", they could

legitimately present, id. at 2-3. The defense did offer several

considerations to the court as mitigating factors: petitioner's

youth, id. at 3, his deprived and rootless background, ibid.,his

"mental disease" or "personality disorder" found by psychiatrists

for both the defense and prosecution, ibid., and the court's pre-

vious agreement to sentence him to a term of imprisonment upon his

guilty plea, id. at 4. The Court's written Findings,Conclusions

and Sentence, Ct. File Item 169; Appendix B, infra,discusses pri-

marily nonstatutory factors in aggravation -- the seriousness of |

the crime, the "dangerousness" of the defendant, and his prior |

record, id. at 7-8, and the need to keep him from being ‘turned |

loose to menace society again,” id. at 9.

28/ The post-trial sentencing proceeding that was held in peti-

tioner's case “was not statutorily based." Note, Montana's Death

Penalty, 38 Mont. L.Rev. 217, 219 (1977). See State v. McKenzie

(II), supra, 581 P.2d 1269-73 (Shea, J., dissenting) .The Montana

» 23 @

Oi A ira or * i

{

In different cases under this law other courts may have analyzed

aggravation and mitigation in wholly contradiktory ways, and pro-

- Mounced sentences of less than death for indistinguishable crimes--

* . . 23

leaving petitioner alone to be struck By the "lightning bolt" of

30/

of the trial court's judgment here. Nothing about the statutory

and judicial process through which petitioner -- and only petitioner--

was selected to die under the former Montana death penalty law

meaningfully responded to Furman's mandate that "Giscretion ...

on a matter so grave as the determination of whether a human life

should be taken or spared . .. must be Suitably directed and

limited so as to minimize the risk of wholly arbitrary and capricious

action." Gregq v. Georcia, supr2, 428 U.S. at 189. This Court should

grant certiorari here because it "cannot tolerate the infliction cf

a8 sentence of ceath under legal systems that permit this unigue

penalty to he so wantonly and freakishly imposed." Ibid., queting

Purman v. Georgia, supra, 408 at 310 (concurring opinicn of Mr.

Justice Stewart). '

28/ (cont'd.) ' =

court in petitioner's case found them nonetheless authorized and

required by “[rleading . . . provisions together" which required

presentence investigations in all felony cases and mandated sentenc+

ing in all cases "in accordance with . . . [the] individual charac-

teristics, circumstances, needs and potentialities' of the defendant.

State v. McKenzie (II) supra, 581 P.2d at 1229. On their faces these

| provisions appeared neither to be mandatory ‘nor necessarily applic-

able to capital crimes. See id. at 1270-1271 (shea, J., dissenting).

29/ Zockett v. Ohio, _U.S.__, 57 L.Ed.2d 973, 999 (1978') (con-

curring opinion of Mr. Justice Marshall).

30/ In its initial affirmance of petitioner's sentence the Montana

Supreme Court acknowledged that "this case was tried... before

any set pattern of matters that a jury must consider in death cases"

was formed. State v. McKenzie (I),supra, 557 P.2d at 1033. Neither

in that decision nor in its later reconsideration of petitioner's

case did the Montana Court compare it to any other cases in which

death sentences were or were not pronounced.

- 24 «

B. The Total Lack Of Jury Participation In Capital

Sentencing.

This Court heretofore has reserved judgment cn whether

"the Constitution requires that the death sentence be imposed

by a jury". Lockett v. Ohio, U.S. , 57 L. Ed.2a 992 |

n.16. The decision that petitioner be sentenced to death was |

made solely by the trial judge. This case thus squarely presents;

that question. 31

In view of the “awesome finality of a capital case,

American jurisdictions had, prior to Furman v. Georgia, supra,

determined with near unanimity that infliction of the death

penalty should be put in the hands of the jury rather than the

judge. Indeed, "[e]xcept for four States that entirely abolished |

capital punishment in the middle of the last centurv, every |

American jurisdiction has at some time authorized jury sentencing,

in capital cases." McGautha v. California, 402 U.S. 183, 200 neil!

(1971). See Woodson v. North Carolina, supra, 428 U.S. at 291-

292. In the last ten years, only Montana and several other states

. |

have reversed this historical Greet sne By removing the jury

r /

altogether from the sentencing process. ‘

Kinsella v. Singleton, 361 U.S. 234, 249, 255 (1960)

(dissenting and concurring opinion of Mr. Justice Harlan).

32/ At least one of these States appears to have done so as |

part of "a direct response to Furman." Lockett v. Ohio, supra

at 57 L. Ed.2d 986 n. 7. See Ohio Rev. Code Ann. §29-2522 (1973

spec. supp.); and see Neb. Rev. Stat. §29-2522 (1973 Supp.);

Ariz. Rev. Stat. §13-454(A) (1974 Supp.). Only Colorado appears |

to have elected to place discretionary death sentencing solely

in the hands of the trial judge, after the national shift to jury'

adiscfetion or abolition and before Furman. BOWERS, EXECUTIONS

IN AMERICA 8 (1974).

- 25 - !

chon valigts Kee

i ee a ae ey

intteeds

Re SP rms Oe

Ser shen talins2 nee Aa tate

In its 1976 decisions holding that the death penalty could

be a constitutionally appropriate punishment for some crimes thi

Court reaffirmed the desirability of jury input in the capital

Gregg v. Georgia, Supra, 428 U.S. at 190; |

Proffitt v. Florida, Supra, 428 U.S. at 252.

sentencing process.

And while it has |

"never suggested that jury sentencing is constitutionally re-

quired," Proffitt v. Florida, supra, 428 U.S. at 252, neither has!

it considered nor approved a post-Furman death penalty statute

which exc} aged the jury totally from the process of determining |

sentence. It has approved only one encroachment upon the jury's |

traditiorial sentencing power in a capi-al case: the system |

whereby a Florida trial judge may impose a death sentence where

a jury's recommendation of life amped scnment is clearly unreason-.

able. See Proffitt v. Florida, suvora.

This precedent obviously

33 / See also Witherspoon v. Illinois, 391 U.S. 510, 520 n.15 |}

(1968); McGautha v. California, supra, 402 U.S. at 200 n. 11, 211

34 / The Court's conjecture that “judicial sentencing shoulda

lead, if anything, to even greater consistency in the imposition |

at the trial court level of capital punishment, since a trial

judge is more experienced in sentencing than a jury, and there-

fore is better able to impose sentences similar to those imposed

in analogous cases," id. at 252, must of course, be taken in the |

context in which it was issued--as a statement of the probable

result of a system in which an advisory jury sentence may be

mitigated at the discretion of the trial judge and may be increas

ed only where a life sentence would be clearly unreasonable, id.

at 249. Even so, it is not borne out by the record of extensive |

documentation of widely varying sentencing attitudes and practie

among judges. See, €.g-, TWENTIETH CENTURY FUND, TASK FORCE ON

CRIMINAL SENTENCING, REPORT: FAIR AND CERTAIN PUNISHMENT (1976);

VON HIRSCH, DOING JUSTICE: THE CHOICE OF PUNISHMENTS (1976);

FRANKEL, CRIMINAL SENTENCES -- LAW WITHOUT ORDER (1972); HOGARTH,

SENTENCING AS A HUMAN PROCESS (1971); Zumwatt, The Anarchy of |

Sentencing in the Federal Courts, 57 J. AM. JUD. soc. 96 (1973). |

~35/

The Court described Florida's sentencing system as follows:

"The jury's [sentencing] verdict is determined

by majority vote, It is only advisory; the

actual sentence is determined by the trial

- judge. The Florida Supreme Court has stated,

however, that ‘[{iJn order to sustain a sentence

of death following a jury recommendation of life,

the facts suggesting a sentence of death should

be so clear and convincing that virtually no

reasonable person could differ.' Tedder v. State,

322 So.2d 908, 910 (1975)."

, Supra, 428 U.S. at 248-249 (plurality

opinion). In Florida, therefore, there is substantial presump-

tion that the jury's advisory sentence will, in fact, be imposed.

See Gardner v. Florida, supra. In Montana, however, the jury

plays no role in sentencing whatsoever. _ 26 -

PALA D Cw

of this Court's multi-opinioned decision in" Furman, Woodson v.

da t resolve the constitutionality of Montana's procedure.

oes not re Y P North Carolina, supra, 428 U.S. at 299 (plurality opinion), rather

¢ t should review the question whether Montana's total

The Court shou q chan to a "sudden reversal of societal values regarding the

eT E i eae a Gial ohs

— exclusion of the jury from the capital sentencimg decision is

| imposition of capital punishment! id. at 298.

consistent with the "evolving standards of procedural fairness

Pee et

i Second, jury participation in sentencing has traditionally |

| in a civilized society," Gardner v. Florida, supra, 430 U.S. at 357.

| assured a" 'link between contemporary community values and the

| (plurality opinion), "employed by the State to select persons for |

Pet Bowe

penal system,'" Woodson v. North Carolina, supra, 428 U.S, at 295 '

the unique and irreversible penalty of death," Woodson v. North | 2 r

(plurality opinion), “without which the determinaton of punishment

rolina, 428 U.S. at 287 (plurality opinicn) (footnote

Carolina, supra, 7 oe could hardly reflect 'the evolving standards of decency that mark

| omitted) .

Several considerations cast the gravest constitutional

101," Witherspoon v. Illinois, 391 U.S, 510, 520 n.15 (1968).

Sentencing juries provided the most "direct source of information |

| doubt upon this procedure:

i the progress of a maturing society.' Trop v. Dulles, 356 U.S. 86,:

i} First, as part of the evolution of capital sentencing ‘ ; ; y ; .

a | “ertlecting the public's attitude toward capital punishment,"

i practice in this country, see Woodson v. North Carolina, supra,

| Furman v. Georgia, 408 U.S. 238, 430-440 (1972) (dissenting

ih , .

428 U.S. at 289-299 (plurality opinion), by the middle of the f ; ; 2 :

| i » Opinion of Mr. Justice Powell); and see Gregg v. Georgia, suprs

' twentieth century, every American jurisdiction electing the death

| 428 U.S. at 181-192 (plurality opinion); their judgments reveal

'| penalty had decided to "take from the judge the onus of inflicting |

that "under contemporary standards of @ecency death is viewed as

‘capital punishment,’ United States v. Jackson, 390 U.S. 570, 576

an inappropriate punishment for substantial portion of convicted .

In.12 (1968): Woodson v. North Carolina, supra, 428 U.S. at 291-292 4 Bal ,

} ; ; rirst-degree murderers,"Woodson v. North Carolina, supra, 428 U.S.

‘ P |

4 at 296 (plurality opinion). Trial judges, on the other’ hand--

| ferred the commonsense judgment of a jury to the more tutored but | ij ? . ahi : } . i

i i because of their education, training and relative insulation--are |

i (plurality Opinion) and decided that if a capital "a@efendant pre-

perheps less sympathetic reaction of the single judge, he was to

i particularly poor repositories of “contemporary community stan-

‘have it." Duncan v. Louisiana, 391 U.S, 145, 156 (1968). See

_—_— i

dards" and have historically been significantly more willing than |

'MeGautha v. California, supra, 402 U.S, at 200 n.11; McElroy v.

United States, 361 U.S. 249, 255 (1960) (dissenting and concurring

epareumeseeenemeies: 4 36 /(cont'd.)

" :

“opinion of Justice Harlan). That determination constitutes a H } ;

; | Sodispoti_s Banna rinia, 418 U.S. 506, 515 (1974): Mayberry v. |

{

| Pennsylvania, 400 U.S. 455, 463-466 (1971); Taylor v. Haves, 418 |

i | U.S. 488, 501-503 (1974). And see Groppi_ v. Leslie, 404 U.s. 496,

reflects “a reluctance to entrust plenary powers over ... life 304-506 (1971). When life is at stake, jury smtencing” 'places

the real direction of society in the hands of the governed ...

jt + + to one judge orto a group of judges." Duncan v. Louisiana, and not in. . .the government,' "Powell, Jury Trial of Crimes,

5 ¥ | 23 WASH. & LEE L. REV. 1, 5 (1966) (citing DE TOCQUEVILLE,

Supra, 391 U.S. at 156. The reversal of that decision by Montana | , DEMOCRACY IN AMERICA 282 (Reeve transl. 1948)).

fundamental decision about the exercise of official power," and

land a few other states is clearly “attributed to diverse readings

| é Se

/ See, e.g., Bloom v. Ilinois, 391 U.S. 194, 202 (1968);

o° 27 «

re — a ee ee ee

A ee ee ee, ee = ae.

37/

juries to impose the death penalty. The jury and the legislature

are the two crucial "indicators of evolving standards of decency

respecting the imposition of punishment in our society,"

Woodson vy, North Carolina, supra, 428 U.S, at 293 (plurality

Opinion), and only the jury is "directly involved," regg v.

Georgia, supra, 428 U.S, at 181 (plurality opinion), and able

to bring those standards tobear on the facts of a particular |

case. |

Its Eighth Amendment judging function is vitally necessary

inasmuch as its voice is uniquely "that of the society against

which the crime was committed,” Williams v. New York, 337 U.S.

241, 253 (1949) (dissenting opinion of Justice Murphy)

See KALVEN & ZEISEL, THE AMERICAN JURY 430, 306-312 (1966).

_37/

"{A]mong the leading authorities in penal

science, the supporters of abolition i 4

appreciably outnumber those who favour the

retention of capital punishment. The ae

specialists of the social sciences, crimi-

nology, sociologists, penalogists, psycho- |

logists, doctors and writers on social science

and criminology are, in their great majority,

abolitionists. The supporters of capital

punishment, apart from a number of political

figures and persons holding high public

office, are generally jurists with a tradi-

tional training and judges.”

UNITED NATIONS, DEPARTMENT OF ECONOMIC AND SOCIAL AFFAIRS,

CAPITAL PUNISHMENT (ST/SOA/SD/9-10) (1968) at 64. Ses a*so

KOESTLER, REFLECTIONS ON HANGING (Amer. ed. 1957) at 21-40.

- 29 «

anc nn 0 DB PELE NE NOES GS nat TO ae A I a

v. Florida, supra.

Finally, Montana's procedure of holding the mitigation

hearing before the trial court deprives a capital defendant

of his right _ a jury find facts which determine whether

he lives or dies. Constitutional protections apply not only

to procedures which determine “guilt or innocence but @180 . « «

[to those which affix] the degree of criminal culpability,“

Mullaney v. Wilbur, 421 U.S. 684, 697-698 (1974). See Gardner

Montana has determined that only some |

deliberate homicides are to be punished with death. It is the

wreteneetee” yr making new factual findings in aggravation and

mitigation which triggers petitioner's rights to a jury deter-

mination---at least of these factual questions if not of the

ultimate question of punishment---at this second stage of the

proceedings. For the Montane death penalty statutes do “not

make the commission of a specified crime the basis for sentencing

(They] . . .mak{e] ... icine} conviction the basis for commenc- |

ing another proceeding . . . to determine Whether a person

38 The verdicts returned by the jury found petitioner guilty

Or "deliberate homicde by means of torture” and “aggravated

kidnapping" which had caused the death of the victim. T. 2605.

The trial court referred the “aggravating circumstaaces" to <he

jury through the “statute was silent as to whether the juds<

Or jury makes the ‘finding of the aggravating circumstances.”

tate v. McKenzie (II), Supra, 581 P.2a@ at 1268, (Shea, J.,

dissenting); see §94-5-105 and 95-5-304, R.C.M. 01974 Supp.) pp.3~4

Supra. The consequences of these verdicts--unless the court

found "mitigating circumstances+-would be the execution of peti- |

tioner, and its factual determinations were not dispositive with

regard to the sentencing issues which the trial judge ultimately

resolved. The jury. made no findings whether the crimes for '

which it convicted petitioner wore sufficient to justify the

death penalty or whether there were countervailing "mitigating

circumstances" present, and it had no chance to evaluate the

contents of the presentence report and the testimony and argument

presented at the mitigation hearing.

_39/ Although the trial court's statutory directive was simply

to determine whether "mitigating circumstances" existed, the

bulk of Judge Nelson's findings in this case concerned the exist-

ence of aggravating factors other than the "torture" which the |

jury had found to accompany the deliberate homicide. See

Appendix B, infra.

constitutes a threat of bodily harm to the’ public" sufficient to

justify execution. Specht v. Patterson, 386 U.S. 605, 608 (1967).

Not all factors affecting criminal sentencing determinations must

be decided by a jury. but Mullaney v. Wilbur, supra, and Gardner}

v.Florica, supra, stand for the proposition that where the |

determination of certain factors is of crucial significance--

where they "may be of greater importance than the difference -

between guilt or innocence for many lesser crimes"--the State

may not lessen the standards by which those factors must be

Mullaney v. Wilbur,supra, 421 U.S.

proved by “characterizing them as factors that bear solely on |

the extent of punishment.” |

at 698. This Court should therefore determine whether petition-

er hac a constitutional right to a jury's factual evaluation of

the propriety of the death penalty belore the ultimate penalty

was imposed by the trial court.

‘

’

C. Unreliability of the Factual Predizate of Petitioner's

Death Sentence.

This Court has recognized that “[Wecause of [the]...

qualitative difference [between the death penalty and a sentence'

of imprisonment], there is a’ corresponding difference in the

need for reliability in the determination that death is the

40 / Cf. Specht v. Patterson, supra, and Townsend v. Burke,

334 U.S. 736 (1948), with,Williams v. Oklahoma, 358 U.S. 576

(1959); and Williams v. New York, 337 U.S. 241 (1949).

41 / Judge Friendly held in United States v. Kramer, 289 F.2d |

909 (CA2 1961), that where an aggravating circumstance is not

“an element of the crime but rather a fact going only to the _

degree of punishment," and where the presence of the aggravating

circumstances substantially increases the severity of possible

sentencing consequences, it must be assumed that “che Sixth |

Amendment entitles a defendant to have that fact Cetermined by

the jury rather than by the sentencing judge. Id. at 921. The

aggravating circumstance involved in Kramer (the fact that em=

bezzled commercial paper exceeded $100 in value) raised the

crime from a misdemeanor to a felony. Id. at 920. The Kramer

principle "is now well recognized." United States v. DeVall,

462 F.2d 137, 142 (CA5 1972).

;

= 3) «

he tine Sosy ik

ao NR a OD yt NOR Bk ng

Se net Oe eT

appropriate punishment in a specific case,” Woodson v. North

Carolina, supra, 428 U.S. at 305 (plurality opinion) (footnote

omitted) .

Because "the action of the sovereign in taking the

life of one of its citizens . .. differs dramatically from any |

other legitimate state action, [i]t is of vital importance to the

defendant and to the community that any decision to impose the

death sentence be, and appear to be, based on reason rather than

caprice and emotion.” Gardner v. Florida, supra, 430 U.S. at 359

(plurality opinion).

Yet the Montana procedures under which petitioner was sen-

tenced to die include none of the most basic safeguards against

errors of fact in criminal trials: notice of the precise issuss, |

procedures for the orderly presentation of evidence, limitations

on the scope of evidence to that properly worthy of reliance, or

placement of the burden of proof on the State to "reduce the risk

of convictions resting on factual error."

In re Winship, 397 U.S.

358, 363 (1970). Instead Montana utilized in petitioner's case

@ procedure which could hardly qualify as constitutional ir. a

= t4-7 7 ” + I " >_> -~ .

petty criminal trial, let alone meet the neca for a greater de-

gree of relianility when the death sentence is imposed," Lockett

v- Ohio, supra, at 53 L. Ed. 2d at 989; a procedure with Be SEROE |

to it, but simply a "' Sentence first, verdict afterwards’” bias

in favor of death.

The trial judge's deliberation on petitioner's sentence

began with a jury's Verdict being pronounced and publicized that }

42 / UL.CARROLL, ALICE'S ADVENTURES IN WONDERLAND (Collier ed.

1962) at 150.

43 / The Montana procedures utilized here unnecessarily subject

a judge to the public pressure attendant upon the reducing of a

jury-imposed sentence of death in order to assure the defendant

the kind of hearing that is his constitutional right. Such a |

procedure is- tantamount to the beginning of a criminal trial on

the issue of.guilt by a public proclamation that the defendant is!

guilty. The pressures upon a trial judge who must appear to

overrule the considered decision of twelve citizens who have sat

through the trial of:a case and rendered a capital verdict con-

stitute too great a threat to the judge's impartiality to be per-

mitted consistently with the Eighth and Fourteenth Amendments.

See generally Tumey v. Ohio, 273 U.S. 510 (1927); Ward v t

Monroeville, 409 U.S. 57 (1972); Connally v. Georgia (U.S., Jan.

10, 1977).

_é

required a death sentence unless the court interceded with a

finding of “mitigating circumstances”. The judge was given no

rules of procedure and no standards by which he was to make his

ruling on mitigation. No factual hearings were prescribed or

held; the judge simply read submitted reports and relied on his

hearing of the evidence at trial. The "debate between adversaris

{which] is often essential to the truth-seeking function" Gardner

v. Florida, supra, 430 U.S, at 360, was held only after the judge's

decision and petitioner's death sentence lad been written.

The possibility for error ‘in the determination that death

is the appropriate punishment" under such a process is obvious.

That possibility was realized in petitioner's case. The written

Findings of the trial court--which ranged over numerous matters

quite @istinct from ths question of "mitigation", see note P

Supra, --contained two significant factual errors. First, al-

though the trial court submitted to the jury a verdict of "Sexual

Intercourse Without Consent: Guilty", Add. Instr. 54, Ct. File

Item 154, the jury did not find petitioner guilty of this offense.

de ae : "

605. But in its "Findings, Conclusions, Sentence and

because "T t]he evidence in the case, and as found by the jury

rat

discloses a brutal, conscienceless, torture, rave and deliberat

killing of a human being," and because "of the rape torture, kid-

napping and killing of Lana Harding of which the defendant has

been found guilty," Ct. File Item 169, at pp. 7, 8; Appendix B,

44 /

infra (emphasis added).

Second, the trial court asserted that

"under existing Montana Statutes the defendant under a 100 year

imprisonment sentence would automaticaily be eligible for parole

in 123 years less good time allowance [and] .. . the 12% years

could and would be cut so that the defendant would only be re-

quired to service [sic] approximately seven years of the 100 year’

sentence he would be turned loose." Id. at 9. This is simply

44/ fhe assertion that the evidence "as found by the jury”

showed a "deliberate" killing was also inaccurate.

“— * ae

Order," the trial court imposed the death penalty upon petitioner

bye Saree >t

LAH dante BL CS

<tlat

ON a et Sa

oA OD tae cialhal Meetiary,

incorrect.

Petitioner's submission here is not that the trial court

was forbidden to make be nar «x Sil rape even though the jury

had not made such a finding, or that the trial judge was forbid -

den to evaluate the chances of petitioner's being paroled. But

in his finding of rape, the trial judge relied on a jury finding |

which was never in fact made; and in his estimation of petition-

er's chances for parole, the trial judge misunderstood the govern-

ing law. "When life itself is what hangs in the balance, a fine!

precision in the process must be insisted upon." Lockett v. Ohio

Supra, 57 L. Ed.2d at 999-1000 (concurring opinion of Mr. Justice

Marshall). This Court should grant certiorari to consider the

reliability of the “blunderbuss, virtualiy mandatory approach to

imposition of the death penalty,” ibid., used by Montana here.

For just as in Gardner v. Florida, Supra, it appears probable

ee +

that petitioner's "death sentence rests on an erroneous factual

predicate." 430 U.S. 262.

45/ The trial judge's assertion that petitioner: “would be

turned loose to menace society" after serving only seven vears of

a one hundrec vear sentence is erroneous. Under Mont. Rev. Codes

Ann. §95-3214 (1) (a) (1973 Supp.), a prisoner is eligible for pa-

role after “he has served at leastone-quarter (1/4) of his full

term, less good time allowances off, as provided in section 30-

1905." Under the la'tter section, it would be impossible to ac-

cumulate more than 124 years, which would reduce the twenty-five

years ("one quarter. . .of his full térm") to 12% years. And of

course--contrary to the judge's flat statement--there is no

guarantee that a prisoner who is eligible for parole at this_

point would be granted it.

46/ in affirming petitioner's death sentence, the Montana

Supreme Court also relied on the trial judge's erroneous finding

of rape, since it cited in support of its affirmance the trial

judge's findings "(1) tht the murder was committed in the

commission of a felony; (2) [that there was] a sexual attack on

the victim, and (3) [that] ‘it was brutal, conscienceless,

torture rape and deliberate killing of a human being." State v.

McKenzie, supra, 557 P.2d at 1034.

~ 34 «

D. The Constitutional Excessiveness of Capital

Punishment.

Petitioner respectfully urges reconsideration of Gregg

v. Georgia, 428 U.S. 153, 169 (1976). See Black, Due Process

for Death: Jurek v. Texas and Companion Cases, 26 CATH. U. L.

REV. 1 (Fall, 1976).

« 3% «

Saccae wisedset ee

Sts Hw wissen’

eats

II.

THE COURT SHOULD GRANT CERTIORARI TO

DETERMINE WHETHER THE MONTANA SUPREME

COURT'S REAFFIRMANCE OF THE TRIAL COURT 'S

INSTRUCTIONS REQUIRING PETITIONER TO DIS-

PROVE THROUGH EVIDENCE OF A "MENTAL

DISEASE OR DEFECT" THAT HE HAD A PARTICULAR

STATE OF MIND WHICH IS AN ESSENTIAL ELEMENT

OF THE CRIMES OF DELIBERATE HOMICIDE AND

AGGRAVATED KIDNAPPING CONSTITUTED A PROPER

RECONSIDERATION OF PETITIONER'S CASE IN

LIGHT OF PATTERSON V. NEW YORK.

The principal crimes with which petitioner was charged

were the "deliberate homicide" and “aggravated kidnaping" of

Lana Harding. The mental elements of both those crimes under

Montana law axe two: the acts must be done "purposely" or

"knowingly." _

47/ "The new code abolished all distinctions between firs+ ard

second degree murder. Malice aforethought and premeditation

are no longer elements of the criminal homicide offense. The

intent element of the crime of homicide Under present Montana

law is merely “purposely, knowingly, or neglisently" causin3; the

death of another human being. Section 94-5-191, R.c.M. 2947

Defendant was charged with, and convicted of, deliberate

homicide, a criminal homicide committed purposely or knowingly.

Section 94-5-192(1) (a), R.c.M. 1947." State v. McKenzie fe ds op ee

supra, 581P.2d at 1231.

"(28) ‘Knowingly’ --a person acts knowingly with respect

to conduct. or to a circumstance described by a statute defining

an offense when he is aware of his conduct or that the cir-

cumstance exists. When knowledge of the existence of a particul-

ar fact is an element of an offense, such knowledge is

established if a person is aware of a high probability of its

existence. Equivalent terms such as "*knewing' or ‘with

knowledge’ have the same meaning."

"(353) '‘Purposely' --A person acts purposely with respect

to a result or to conduct described by a statute definine an

offense if it is his conscious object to engage in that

conduct or to cause that result.. When a particular purpose

is an element of an offense, the element is established although

such purpose is conditional, unless the condition negatives the

harm or evil sought to be prevented by the law defining the

offense. Equivalent terms such as *purpose' and ‘with the

purpose’ have the same meaning."

- 36 -

| |

ee ee

| 49/ |

| (original emphasis). This Court should grant certiorari to deter

The critical issue in this case, from its inception, was

whether the State or the defense had the burden of proving mine whether these holdings comport with the Due Process standards

Fd |

48. ,

(or disproving) that petitioner had either "knowingly" or set by Mullaney v. Wilbur, 421 U.s. 684 (1975) and Patterson v.

wii ue has RE os a pain

“purposely” killed or kidnapped Lana Harding. This Court New York, 432 U.S. 197 (1976).

remanded this case "to the Supreme Court of Montana for further At issue here is not the question of whether the state may

consideration" of that question in light of Patterson v. New

RH A te

require a criminal defendant to prove an affirmative defense of

York, 432 U.S. 197 (1976). McKenzie v. Montana, 433 U.S. 905

gc e

insanity. Montana law explicitly recognizes the competence cof

(1977). On remand, the Montana Court “disagree[d]" with

rca ; evidence of "mental disease or defect excluding responsibility"

Petitioner's argument that "intent, as an element of the offense,

Ai Nae ead ahs

may never be established by the use of presumptions. " State | ; for two quite separate purposes: to establish the "affirmative ’

v. McKenzie II, supra, at 581 P.24 1222. It held that, though . defense" cf insanity, Mont. Rev. Codes Ann. §95-503(a) (1969); and

"an element of the offense may not be presumed merely by proof | “to prove that [the defendant] ... did not have a particular

2 My “ . a . . .

of the remaining elements, state cf mind which is an essential element cf the offenses charged,'

A 50

Elements of the offense may still be presumed 50/ aad

or inferred, however, from proof of ccher facts. Mont.Rev.Codes Ann.§95-503(b) (2) (1969). (95-502, p.41-42) .Petitione:

if the relationship between such proved facts

and the facts presumed comports with the due 49/ Alternatively, the Montana Court said:

process standards announced in Barnes v. United Par

States, (1973), 412 U.S. 837, 93 §.ct. 2351, We are convinced beyond a reasonable doubt

37 & £4. 24 300. that defendant acted "purposely" cr "knowingly"

| and therefore, even if there was error in the

Ibic. Particularly with regard to Petitioner's asserted burden of proof, it was harmless.

psychiatric defense necativin the intent elements of these ] : : F

palit, hagas ee ae st tate v. McKenzie,II, Supra, 581 P.2d at 1224. That dictum con-

crimes, it held that stituted a plain viclation of the settled rule that harmless error

should not be determined by "the Court's view cf ‘overwhelming evi-

a defendant must prove by a preponderance of | dence'" and can be found only where the court can “declare a belief

the evidence that he lacked the ability, due ; ' that it [the error] was harmless beyond a reasonable doubt." Chap-

to a mental Cisease or defect, to form that Man Vv. California, 386 U.S. 18, 23 (1967); see Harrington v. Calif-

criminal ager aged eat oe is rennin aR . ornia_, 395 U.S. 250, 259 (1969). The constitutional harmless error

Sota ace a emement of the crime with whic standard cannot conceivably be satisfied in this case, where peti-

7 tioner presented expert psychiatric testimony that he lacked capacity

Id. at 581 P.24 1233. ‘ It found the trial court's instruc to form the mental states defined as elements of a capital charge,

eae ; and the trial court's repeated instructions to the jury that those

tons "considered as a whole," required’ petitioner only to raise : elements could be proved by "Presumptions of Law." See Add. Instr.

31, 33, 35, 37, 38, Ct. File Item 154, were calculated to make

' petitioner's evidence worthless. Chapman v. California, supra,

386 U.S. at 25.

50/ The dichotomy is explicitly recognized in Mont. Rev. Codes

or knowing state of mind," and thus were Proper. Id.at 1235 Ann. §95-503(1969), which provides in subsec. (a) that "Mental

disease or defect" is an “affirmative defense," and in subsec.

(b) (2) that evidence of "mental disease or defect" may be intro-

- ; duced to prove that a defendant "did not have a particular state

TP not requited. Pees e eee tee eee prposely and knowingly of mind which is an essential element of the offense charged."

sufficient." Prelim. Instr. 22, Ct. File Item 154. | | Mont. Rev. Codes Ann. §95-505 (a) (1969)provides that the Court

| May appoint a psychiatrist to examine a defendant either when

i "the defendant has filed a notice of intention to rely on the

defense of mental disease or defect excluding responsibility"

-37- or when there is "reason to believe that mental disease or defect

of the defendant will otherwise become an issue in the cause."The

Montana criminal code requires two separate notices: one is to be

“a reasonable doubt as to whether {he] suffered from a mental

disease or defect which prevented him from forming a purposeful

= 38 «

52,

"purposely" committed the crimes with which he was charged.

at trial repeatedly attacked the constitutionality of the place- | Instead it charged the jury that--though petitioner was

ment of the burden of proof on him on the second of these questions, presumed innocent and the State was required to prove his

guilt beyond a reasonable doubt, Prelim. Instr. 7, ct. File

and sought a ruling from the trial court “advising and requiring

Item 154, and this burden could be satisfied by "Proof of

the State . . .that it has the burden of procf, at trial, to prove sf

et i ll lt it cents ea

Mental State by Presumptions." Add. Instr. 33, 34, 35, Ct.

beyond a reasonable doubt, that defendant had and could have had ; “4

f | Pile Item 154.

the requisite state of mind which are [sic] elements of the various ‘ sa

e requi a [ } 7 ainmtent in causing the death of Lana Harding, the jury was told

On the critical question of purposefulness or

crimes charged herein." Motion to Suppress, Ct. File Item 88. This

Sl/

motion was denied, Ct. File Item 90, as were several others to the

that if it found petitioner “voluntarily committed an illegal

same effect, T. 1371, 1322, 2208, and the trial court declined peti-

i ee a ee

52/ The trial court declined to give the following instructions

ti : ad inst ti that would have r ired the State to

1oner's proposed instructions at woul av equir Ss submitted by petitioner:

act on Lana Harding, such as assaulting or injuring her, ...

prove affirmatively that petitioner had "knowingly" and } “In each Count, or part of a Count, requiring proof

1 of'knowingly' or 'purposely', the State must prove

that Defendant had the necessary state cf mind to

have acted, and was capable of acting, either 'knowincly'

or ‘purposely’ beyond a reasonable doubt.

50/(cont'd.)

filed in the event a defendant intends to rely upon “mental disease

Se ee cee - ees

or defect excluding responsibility" as an affirmative defense, Mont.

Rev. Codes Ann. £95-503(b) (1) (1969) and "[t]he defendant shall give

similar notice when in a trial on the merits, he intends to rely cn

a mental disease or defect, to prove that he did not have a particu-

lar state of mind which is an essential element of the offense

charged," Mont. Rev. Codes Ann. §95-503(2) (1969). The report of the

court-appointed psychiatrist is to contain, inter alia, two separate

evaluations:

"When a notice of intention to rely on the defense of

irresponsibility has been filed, an opinion as to the

ability of the defendant to appreciate the criminality

of his conduct or to conform his conduct to the require-

ments of law at the time of the criminal conduct charged,

- Mont. Rev. Codes Ann. §95-50 5(c) (4) (1969), and

"When directed by the court, an opinion as to the

capacity of the defendant to have a particular state

of mind which is an element of the offense charged."

Mont, Rev. Codes Ann. §95-505(c) (5) (1969). When the court-appcinted

psychiatrist is called to testify at trial, he is permitted to

testify concerning "the mental condition of the defendant at the

time of the commission of the offense charged" and concerning the

ability of the defendant "to have a particular state of mind which is

an element of the offense charged. "Mont.Rev.Codes Ann .§95-507 (d) (196%

In each Count, or portion of a Count, requiring

such, the State must prove beyond a reasonable doubt,

that Defendant had the necessary state of mind to

have acted either 'knowingly' or ‘purposely.’ If

you find that you do not believe, beyond a reasonable

doubt, that Defendant had, or could have had, such a

state of mind you must find him Not Guilty." (Defendant's

No. 13, Ct. File Item 153.)

“[You must find] that the State has proved beyond a

reasonable doubt each essential element of the offense.

Two of these elements are the requirements of purposely

or knowingly . . . [committing homicide] on ‘hich you

have already been instructed. In determining whether

those requirements have been proved beyond a reasonable

doubt you may consider the testimony as to the defendant's

abnormal mental condition.

If you find that the State has failed to

prove beyond a reasonable doubt any one or more

of the essential elements of the offense, you must

find the defendant not guilty, and you should not

consider any possible verdict relating to mental

disease or defect excluding responsibility."

Defendant's No. 47, Ct. File Item 153.

SY The trial court's instructions to the jury are copied

n full in Appendix Cc, infra.

SI/ See, e.g., Notice, Ct. File Item 40; Motion for a Bifurcated

| Trial, Ct. File Item 134; Motion for Dismissal, Ct. File Item 135:

| Motion to Require Proof of Ability to Have a Particular Mental state,

|| Ct. File rtem 143.

- 39 - - 40 -

the law expressly directs you to reason" from such unlawful act

that the defendant acted with an unlawful intent, or purpose;"

and if it then found petitioner “voluntarily and unlawfully

assaulted or injured Lana Harding, and . . . death would result

as the ordinary consequence of such an assault or injury, the law

+ + + expressly directs you to reason that the defendant intended,

to cause said death regardless of whether or not he actually

had such an intent or purpose." Add. Instr. 33, ct. Pile Item

34/

154. Similarly, on the charge of kidnapping, the jury was told |

that if it found the defendant "without lawful authority, restrained

Lana Harding, either by secreting her . - or by using physical

force . . . the law presumes that he acted therein with an unlaw-|

ful intent, purpose cr knowledge, and expressly directs you to so:

reason." Add. Instr. 35, ct. File Item 154. It described each

of these presumptions as "a rebuttable presumption subject to i

being controverted and overcome by other evidence," but did not

Say how much evidence. Ibid. And as to the "particular purpcses"

which made kidnapping "aggravated" -- intent "to inflict bodily

injury" or “to terrorize" or “aid the commission of a felony” --

the jury was told that such purposes "must be proved by inference

54/ on the additional question of whether the “Deliberate Homicide

was done by means of Torture," which the trial court decided to

submit to the jury, it instructed that

“The mental state of purposely assaulting

another physically to inflict cruel suffering

- + + for a particular purpose {of extortion,

persuasion, or satisfaction of 'some untoward

propensity'] cannot be proved by using the legal

presumptions you have been directed to use in the

proof of deliberate homicide, and must be proved

by the use of inference alone."

Add. Instr. 34, Ct. Pile Item 154; see Appendix Cc, infre.

- 4) -

A RT LB th i ME UE SA Ban cet 5 dew an on oN eta

Se eee

A, in it We

only without the use of any presumptions of law." Ibid. Consis-

tent with all of this, in its instruction on "Mental Disease or

Defect", the court charged that the burden rested on petitioner

on the issue of "whether or not he could have had the requisite

mental state for the act or acts which you have found he committed."

55/

Add. Instr. 53, Ct. File Item 154; Appendix c, infra.

Thus on each of the mental elements underlying the principal |

| / |

crimes with which petitioner was charged, the trial court

instructed the jury that once it found the commission of an act

that was "voluntary" or “without lawful authority” petitioner was

required to “bear the laboring oar", Mullaney v. Wilbur, supra

at 421 U.S. 706 (concurring opinion of Mr. Justice Rehnquist) !

on the elements of "“knowingness" or “purposefulness."

23/ Instruction 53 left unclear exactly how onerous this '

burden was but implied it involved more than raising a “reason- ,

able doubt," which it said was all petitioner had to do on the

separate issue of "his responsibility for such conduct." Ibid. |

The jury was told simply it "must consider whether or not he ‘

created a reasonable doubt in your minds as to his mental

accountability and reliability for any of the acts you may find

he committed, and whether or not he could have had the requisite |

mental state for the act or acts which you have found he committed.”

Ibid. None of the other instructions regarding the burden of proof

on the elements of the offenses referred to petitioner raising

a reasonable doubt. See Appendix Cc, infra.

56/ The trial court instructions regarding "Proof by Presump- |

tions” of the mental elements of the lesser offenses or "Sexual

Intercourse Without Consent" and "Aggravated Assault", Add. Instr.

32, 38, Ct. File Item 154, on which no verdicts were returned,

see page 40, supra.

« 42 «

——_

FO RITE LO LTE LE ae

— <tr fe ey Cree

_ Creating a “diminished capacity defense,”

On remand from this Court, the Montana Supreme Court held all

this proper. It construed Rev. Code of Montana §95-503(b) (2) as

an “affirmative

defense" by which a defendant could “rebut the presumptions of

sanity and capability of forming a purposeful and knowing intent” .

by proving “'that he did not have a particular state of mind which

State v.

McKenzie (II), supra, 581 P.2d 1233. It specifically held that

is an essential element of the offense charged. '"

to establish such a defense,"a defendant must prove by a prepon-

derance of the evidence that he lacked the ability, due to mental

| disease or defect, to form that criminal mental state which is

' defined by statute as an element of the crime with which he is

charged."Ibid. And it found that, “when considered as a whole,”

the trial court's instructions required only that petitioner

establish “a reasonable doubt as to whether [he] ... suffered

| Supra, 432 U.S. at 202.

from mental disease or defect which prevented him from forming a

purposeful or knowing state of mind with respect to the offense |.

charged,” “a more liberal burden of proof than that to which

57/ The term “diminished capacity" appears nowhere in the laws

of Montana, and was used first in this case in the Montana Supreme

Court's opinion on remand from this Court. Another defense recocg-

nized by Montana law which might equally be termed as going to

“diminished capacity” is that provided by §94-5-102(1) (a), R.C.M.

1947, defining as “mitigated deliberate homicide” a crime “which

would otherwise be deliberate homicide . . . committed under the

influence of extreme mental or emotional distress for which there

is reasonable explanation or excuse." Cf. Patterson v. New York,

Petitioner requested that the jury be

charged on this lesser offense (Defs. Prop. Instr. No. 25, Ct.

File Item 153), but the trial court refused to do so (T. 2598-

2599). The Montana Supreme Court upheld that refusal without

discussion, stating only that “there was no... evidence” which |

would support a finding of guilt as to that offense and not of

the principal offense of deliberate homicide. State v. McKenzie,

(II), supra at 581 P.2d 1224.

defendant was entitled.” State v. McKenzie (II), Supra at 581

P.2d 1235.

That decision failed to apply properly the principles of

| Patterson v. New York. The Montana Supreme Court's assumption that

Patterson prohibited only presumption of an element of an offense

“mereiy by proof of the remaining elements,” State v. McKenzie,

\| 58

, an illegal act .

(II) supra, 581 P.2d at 1222, ignores Patterson's clear reaffirma-

tion of “the mandate of Winship that [the State] ... prove be-

yond a reasonable doubt ‘every fact necessary to constitute the

crime . . . charged' 397 U.S. at 364." Patterson v. New York,

432 U.S. at 206.

supra, Its implicit finding that in petitioner's

case elements were not presumed from other elements overlocks the

clear instruction of the trial court on the basic mental ingred- |

ients of each of the four crimes with which petitioner was charged.

- «the defendant ... voluntarily committed |

- « the law expressly directs you to reason from:

such unlawful act that the defendant acted with an unlawful intent,

or purpose." Add. Instr. 33, Ct. File Item 154. "I¢£ you find. .|.

the defendant . . . without lawful authority, restrained Lana

“If you find .

; Harding, either by secreting . . . or by using physical force...

the law presumes he acted therein with an unlawful intent, purpose

or knowledge.” Add. Instr. 35, Ct. File Item 154. "“[(I])f you reason

from facts proved . . .that the defendant + + »« had sexual inter-

course with . . . Lana Harding who was not his wife, and without .

her consent, you are expressly directed . . . that he did so

knowingly.” Add. Instr. 37, Ct. Pile Item 154. "[I]f you reason

- « « Gefendant ... unlawfully caused Lana Harding bodily injury

- + « the law expressly directs you to reason therefrom that he

acted with unlawful intent that is purposely.’ Add. Instr. 38,

, Ct. Pile Item 154. See Appendix c, infra.

—--— a

Its placid assumption that the instructions could be read “as

a whole” to say something other than what they clearly said

flouts the stricter standards this Court has set for measuring

"the duty of the court to safeguard [criminal defendants]...

rights” by correct and clear instructions on burdens of proof."

Tavlor v. Kentucky,

its alternative holding that any error here was "harmless" --

U.S... 56 L.Ed.2d 462, 477 (1978). Ani

even if it were tenable on this record, -- begs the question of

whether errors involving the “presumption of innocence ... a

basic component cf a fair trial under our system of criminal

justice,” Estelle v. Williams, 425 u.s. 501, 503 (1976), affect

“constitutional rights so basic to a fair trial that their in-

fraction can never be treated as harmless error." Chapman v.

59/

California, supra, 366 U.S. at 23.

The Courts' rulings in this case that "a defendant must

prove . . he lacked the ability .. . to form that criminal

mental state which is defined by statute as an element of the

crime" does nothing less than "to shift the burden of proving

traditional elements of the criminal offenses to the accused."

Patterson v. New York,supra, 432 U.S. at 2) n.12. This Court

should grant review here to. determine whether it has transgressed

the “constitutional limits beyond which the States may not go in

in this regard." Id.at 210.

5S9/ This Court's recent decisions have suggested that instruc-

tions violative of the Due Process requirement of proof by the

State of criminal offenses beyond a reasonable doubt are per se |

reversible error, Taylor v. Kentucky, supra, at least on direct

review, compare Henderson v » 431 U.S. 145, 154 (1977),

and that errors affecting the fairness of trials in which life isl

at stake may never be classifiable as constitutionally harmless,

See Davis v. Georgia, 429 U.S. 122 and 124 (1976) (dissenting

opinion of Mr. Justice Rehnquist).

eS «tah A el OOS PAD GIO OR

Itt.

THE COURT SHOULD GRANT CERTIORARI TO

CONSIDER WHETHER THE FAILURE OF THE

COURTS BELOW TO ENFORCE A PLEA BARGAIN-

ING AGREEMENT BETWEEN PETITIONER, THE

STATE, AND THE TRIAL COURT, WHICH

PETITIONER'S COUNSEL HAD RELIED UPON

IN REVEALING TO THE STATE PRIOR TO

TRIAL PETITIONER'S TRIAL STRATEGY AND

TACTICS, DEPRIVED PETITIONER OF DUE

PROCESS OF LAW IN VIOLATION OF THE

FOURTEENTH AMENDMENT TO THE CONSTITUTION

OF THE UNITED STATES,

This Court has recognized the "{t]he disposition of

criminal charges by agreement between the prosecutor and the

component of the administration of justice, Santobello v. New

' defensa.

York, 404 U.S. 257, 260 (1971). See also Blackledge v. Allison,

431 U.S. 63, 66 (1977). As a “phase in the process of criminal

justice," plea bargaining "must be attended by safeguards to

insure the defendant what is reasonably due in the circumstances, "

Ge« mlta .

sanscooei.o V.

Now York, supra, 404 U.S. at 262.

This case pre-

sents an instance where these “safeguards" broke down, and peti-

tioner was prejudiced by unfair plea bargaining practices. Like

Blactiledgs v. Allison, supra, petitioner's case presents a sig-

‘nificant question of the fairness of plea bargaining procedures

which should be resolved by this Court.

Petitioner was tried, convicted and sentenced to death after

the county attorney who prosecuted him and the judge who heard

“his case had agreed to permit him to plead guilty to deliberate

homicide and aggrevated assault and to receive a sentence of

imprisonment -- and after his counsel, in reliance on that agree-

ment, had revealed to the State the substance of his planned

60/ '

In a meeting on December 22, 1974, defense counsel,

'60/ The evidence on this matter which appears in the record

consists of defense counsel's affidavits and statements to the

trial court, and the trial judge's responses. Other than in its

unsworn Brief in the Montana Supreme Court -- where it “agree [dj

with the basic factual description of the events" given by defense

counsel, » Supra, 557 P.2d at 1038, see

Brief of the Vv Mont. Sup. Ct. No.

13011, at pp. ~~ there has never been any response to these

claims by counsel for the State of Montana. In its Brief, the

State claimed it “was well understood that the prosecution still

accused, sometimes loosely call ‘plea bargaining', is an essential

County Attorney Nelson, and Special Prosecutor Douglas Anderson

agreed that petitioner would plead guilty to two charges (deliber-

ate homicide and aggravated assault) and receive sentences of

50 and 20 years, respectively, on thos counts. Affidavit of

| Barney Reagan, Esq., Ct. File Item 99, at p.2. On December 23,

1974, that agreement was presented to the trial judge, R. J.

| Nelson, during a three hour meeting in chambers. Id. at 3.

Judge Nelson agreed to accept the proposed pleas, after a slight

| modification in sentence (which was agreed to by all parties).

“Ibid. The trial court set December 30, 1974, for the entry of

gui ty pleas pursuant to the agreement. Id. at 4. Also pur-

suant/to that understanding, counsel for both sides held a further

meeting on December 23, at which the defense presented to the

_ prosecution the tactics it envisioned using at trial and the

weaknesses it saw in the State's case, in order to assist tha

| prosecutors in explaining and justifying the plea eneeaer eae

él,

' the Sheriff's office, the victim's family and the public. Ibid.

On December 28, 1974, counsel for the State advised defense

counsel that they were abrogating the plea agreement, because of

objections voiced by Ms. Harding's family. Ibid. On December

,6U/ (cont'd) considered" Lana Harding's family's approval neces-

| sary the day before the meeting with Judge Nelson. Id. at 19. It

did not address what representations had been made in the meeting

itself. Though it acknowledged that information concerning the

defense's trial tactics had been revealed after the m2eting, it

denied that it had been "requested", and said that it all "was

either already known to the prosecution or of no significance to

' the prosecution's case." Id at pp. 20, 21.

‘| 61 The weaknesses the defense foresaw were due'primarily to

the manner in which the investigation had been conducted; the

. Gefense had concluded that some of the evidence obtained and

_ the evidence collected would be inadmissible at trial. Ibid.

SY In his Reply Brief in the Montana Supreme Court petitioner's

counsel contended that he was told by the prosecutors that Ms.

| Harding's family did more that "object": her father "threatened

, to kill the prosecutors if they went through with the bargain."

Reply Brief of Appellant, State of Montana v. McKenzie, Mont.

Sup. Ct. No. 13011, at p. 12.

- 47 - -

ARE Se Silo TS IOS eae Rte

|| wish to proceed with the agreement and understanding that we

30, 1974, the parties nonetheless appeared at the hearing that

had been set for entry of the pleas. T. 1-6 (Dec. 30, 1974).

Defense counsel advised the court that "the prosecution does not

reached here, with this court, on the 23rd day of December, 1974" |

T. 5 (Dec. 30, 1974); and see id. at 3-6, 12-16,and expressed

|, petitioner's willingness "to go ahead with that [December 23]

| The prosecutor responded that he did not. The trial judge denied

‘the defense motion (Ct. File Item 94) that he disqualify himself |

+1974),

agreement and understanding reached." Ibid. The court responded |

that “if [the prosecutors] .. . don't want to go through with

{

plea bargaining, I don't suppose they have to," and asked County

Attorney Nelson, "Do you want to proceed the way that you agreed |

with counsel last Monday, the 23rd of December . .. 2?" Ibid.

because of involvement in the bargaining orocess, T. 24 (Dec. 20, |

and ordered the case to trial over continuing defense

64 /

objection. On the first day of trial, the State was permitted

‘

-63/ The court did permit defense counsel to state for the record |

what had transpired with regard to the plea agreement, over the

' prosecutor's objcection that he didn't "feel that we should make |

| references to all of this." TT. 14 (Dec. 30, 1974).

Defense

counsel summarized the plea negotiations and stated that peti-

tioner had agreed to plead guilty in exchange for a sentence of

imprisonment, that this arrangement had been accepted by the

prosecution and the court (ibid.), and that the defense in reli-

ance on this agreement had informed the prosecution of its trial

strategy and tactics and of the weaknesses it perceived in the

State's case (id. at 15). The prosecutor did not respond to or

contest any of the representations, or those made in defense

counsel's affidavit filed later that day. Affidavit of Barney

Reagan, Esq., Ct. File Item 99,

| S4/ On January 3, 1975, a “Motion to Enforce Agreement of Decem- |

ber 23, 1974," was filed by the defense, again setting out the

| facts surrounding the plea agreement, Ct. File Item 104, and

this motion was denied that same day, Ct. File Item 105, when,

at trial, the state moved to endorse fifty-eight more witnesses

-- many of whom were to testify to matters as to which the defense

objected, claiming prejudice on account of the abrogated plea

agreement, but the objection was overruled. T. 80-96; Ct. File

Items 114, 115. Finally, at the close of trial, the defense

filed a "petition and Motion in Mitigation," ct. File Item 163,

a Motion for a New Trial, Ct. File Item 163, based, in part, on

the same grounds, but this motion was summarily denied by the

trial court.

w st «

to endorse fifty-eight more witnesses, Ct. File Item 113, many

of whom testified to the chain of custody of various evidentiary

items. T. 80-81, 88. Petitioner objected to the endorsement of

these witnesses on the ground that the State had discovered the

need for many of them only after the defense had revealed its |

intended trial tactics pursuant to the plea agreement, but the

objection was overruled. -T. 91; Ct. File Item 114. |

The Montana Supreme Court affirmed and reaffirmed these

trial court rulings. In its first decision, on petitioner's

direct appeal, it did so on the theory that the State's “intent

to get the reaction of the victim's parents and the sheriff"

' kept the agreement from becoming final and that Santobello was

‘| distinguishable because "(t]here a plea had been entered."

' State v. McKenzie (I), supra, 557 P.2d at 1038. After remand

; by this Court, however -- as part of its "reconsider/ation of/

the entire case," State v. McKenzie (II), supra, ay P.2d at 1210,

but without any new material of record before it ~~ ~- the court

recounted what it said was "the State's version" of the plea

bargaining process "that throughout the discussions the State

consistently took the position that no plea bargain could be

entered into without the consent of'the victim's Seite and the

£0/

Sheriff," and that "any gratuitous information that defense

- counsel believed they had imparted . .. was either already

| Known to the State or was of no significance .... " Id. at

65/ The State declined to discuss other than the Patterson

issues in its argument on remand from this Court. Respondent's

Brief on Remand, State v. McKenzie, Mont. Sus. Ct. No. LIVil at 3.

66/ The State's representations on the matter tq th Montana

court in its opening Brief there were limited to what was

“understood" the day before the meeting with Judge Nelson; it

never addresses what transpired in the actual plea discussions

themselves. Sea note 60, supra; Brief of the State of Mentana

v. McKenzie, supra at 19-20.

~—

crbanee

Oo EE cate Bed BRIA

Se VO BEA il tony en rie eT eth a a tw

1214. It then found that "the trial judge accepted the State's

version" and said it did "likewise", ibid. -- although that

“version” was never placed before the trial court, and the trial

| Cee" s own language was that the prosecuting attorney had

| agreed." See page 47, supra. Finally, the court on rehearing

|| Said “any statements of defense counsel concerning weaknesses in

te bs ' ;

i he State's case . .. were gratuitous and premature," and since

"a trial is not a sporting contest . . . in which the verdict

‘Spee On nondisclosure of such matters." Thid. |

| In Santobello v. New York, supra, this Court ruled squarely

that due process requires that “when a plea rests in any sig-

nificant degree on a promise or agreement of the prosecutor ...

j }

‘| such promise must be fulfilled." 404 U.S. at 262. In petitioner's

| case, no plea was accepted by the trial court, but petitioner

‘

| een made a "waiver of [his] constitutional rights" in

'| consideration of the bargain almost as serious as that “implicit

'!in [a guilty] plea." 404 uU.s. 268 (concurring and dissenting

Opinion of Mr. Justice ‘arshall). By revealing to the prosecu-

'| tion the strategies the defense had planned for trial, petitioner, |

| through his counsel, opened to the State the "privileged area"

| |

in which his attorney had analyzed and prepared his case. United |

States v. Nobles, 422 U.S. 225, 238 (1975). He abandoned his

right “to remain silent unless he [chose] to speak in the un-

| fettered exercise of his own will," Malloy v. Hogan, 378 U.S. l,

8 (1964), and to force the prosecution'to "'to shoulder the

‘entire load,'" Miranda v. Arizona, 384 U.S. 436, 460 (1966), "to

prove its case without any assistance of any kind from the

; defendant himself." Williams v. Florida, 399 U.S. 78, 108 (1970)

|| (dissenting opinion of Justice Black),

While a criminal defendant may have no absolute right’ to

have his guilty plea accepted by a court, Lynch v. Overholser, |

368 U.S. 705, 719 (1962), surely if a defendant has been pre- |

judiced by fulfilling the conditions precedent to a plea bargain-

= 80 «

| 68/ See note 60, supra.

ing agreement, and by agreeing to plead guilty with the judge

who will preside over a trial in which he is presumed innocent,

the prosecutor's subsequent unilateral abrogation of that agree-

ment violates fundamental fairness. The justifications offered

for the State's breach of its agreement here provide no adequate

basis for departure from Santobello's rule. Whether it was in

fact “always [the State's] .. . intent to get the reaction of

the victim's parents and the sheriff before ... [the] bargain

would be completed," or whether the prosecutor changed his mind

about the bargain because of the vehemence with which those

It is irrelevant

parties objected, the result is the same.

67/ ‘The lower federal courts have held that while the binding

nature of a plea agreement may be “a matter of state law...

where ... there is no showing that the accused was prejudiced

in preparing his defense," Sanchell v. Parratt, 530 F.2d 286,

291 n.3 (CA8 1970), where a defendant "to his prejudice, per-

formed his part of the agreement while the Government did not,"

United States v. 294 (DDC 1969), due

Paiva, 294 >. Supp. 742, 747

process requires that the bargain be enforced. See United States!

v. Carter, 454 F.2d 426 (CA4 1972). See also, e.g., United

States v. McClintic, 570 F.2d 685, 692 (CAS 1978 (dictum) ;

' Hammers v. State, 550 S.W.2da 432(Ark. 1977); State v. Davis,

88 So.2d 24 (Fla. App. 1966); Butler v. State, 228 So.2d 421

(Fla. App. 1969); State v. Kuchenreuther, 218 S.W.2d 621 (Iowa

1974); State v. Brockman, 277 Md. 687, 357 A.2d 76 (1976); ,

People v. Reagan, 397 Mich. 306, 235 N.W.2d 581 (1975); People v..

Shipp, 68 Mich. App. 452, 243 N.w.2d 18 (1976).

In other contexts, the Court has

warned that a criminal defendant may be deprived of due process

by "prejudicial influences outside the courtroom," Shepard v.

Florida, 341 U.S. 50, 51 (1951) (concurring opinion of Justice '

Jackson); cf. ABA STANDARDS RELATING TO THE PROSECUTION FUNCTION

§ 3.9(c) (prop. draft. 1971). In Gregg v. Georgia, supra,.the

Court emphasized that capital sentencing proceedings should

contain safeguards against "passion or prejudice," that "it

cannot be assumed that prosecutors will be motivated in their

charging decision by factors other than the strength of their

case and the likelihood that a jury would impose the deach

| penalty if it convicts," 428 U.S. at 225 (opinion of Mr. Justice

White), and that the prosecutor's decision

whether to seek 4

capital felony conviction "will be the same as those by which

the jury will decide the questions of guilt and sentence," ibid.

w Ot.

Se ae aS, Mone

5 aah a iy

whether or not there is “proof of bad faith." State v. McKenzie

(II), supra, 581 P,2d at 1214. "That the breach of the agree-

ment was inadvertent does not lessen its impact." Santobello v.

New York, supra, 404 U.S. at 262..

"Prosecutorial duties affecting the fairness of trials

_ have never been... restricted" ‘to good faith effort."

Correale v. United States, 497 F.2d 944, 947 (CAl 1973). The

meticulous standards of both promise and performance [required

by the Constitution from] .. . prosecutors engaging in plea

bargaining," ibid., are not met by permitting the State to back

out of a bargain which is relied upon by the defense to its

prejudice, merely because the prosecuting attorney may have had

a subjective intent to make the bargain conditional. cCertiorari

should be granted here to consider whether the State cained

a fundamentally unfair advantage, see Wardius v. Oregon, 412

U.S. 479 (1973), by abrogating its plea agreement in this capital |

case, and whether this is a situation where "once a defendant

has carried out his part of the bargain the Government must ful-

United States v. Nallam, 472 F.2d 168, 169

fiil its past, *

(CA9 1973).

69/ A prosecutor's decision to plea bargain in a capital

case is "probably the most widely significant choice separating

the doomed from those who . . . go to prison." BLACK, CAPITAL

PUNISHMENT: THE INEVITABILITY OF CAPRICE AND MISTAKE 43 (1974).

That observation appears to have held true'in Montana: two of

the three capital cases that have come to its Supreme Court

since 1974 have involved significant questions of fairness in

plea bargaining. See State v. Coleman, Mont. » SYD

P.2d 732, 744 (1978). es

- 52 - |

Iv.

THE COURT SHCULD GRANT CERTIORARI TO

CONSIDER WHETHER THE INTRODUCTION AT

TRIAL OF EVIDENCE FROM PETITIONER'S

DWELLING PLACE AND TRUCK PARKED OUT-

SIDE HIS DWELLING PLACE PURSUANT TO

A SEARCH WARRANT VIOLATED HIS RIGHTS

UNDER THE FOURTH AND FOURTEENTH

AMENDMENTS TO THE CONSTITUTION OF THE

UNITED STATES TO BE FREE FROM SEARCHES

AND SEIZURES UNDER WARRANTS WHICH ARE

NOT BASED ON PROBABLE CAUSE AND WHICH

DO NOT"PARTICULARLY DESCRIBTE] THE

+ «+ « THINGS TO BE SEIZED"

This case presents for review two important and recurrent

Fourth Amendment issues: the circumstances under which probable

cause to arrest may furnish prebable cause to search a dwell-

ing, and the permissidlity or seizures pursuant to a warrant

of undescribed items which are not patently "contraband" or

evidence of criminal conduct.

The relevant facts may be quickly limned. At about 6:00

P-m. on January 22, 1974, the day Ms. Lana Harding's dis-

appearance was reported, Pondera County Attcrney David Nelson

requested Justice of the Peace Robert Wolfe to issue warrants

for the arrest of petitioner (on a charge cf assault) and for

the search of “[ty}he residence of [{petiticner] and the surround-

ing — {sic] area known as the old Frank Jochem resi- —

dence." The County Attorney presented in support of these

70/ The Complaint (filed by County Attorney Nelson charging

petitioner with assault), the Warrant of Arrest (issued by

Justice of the Peace Wolfe for assault), the affidavit of

County Attorney Nelson in support of the issuance of a search |

warrant, the Search Warrant, and the Sheriff's Return on the —

Search Warrant, all contained in Ct. File Item 76, are repro-

duced in the dissenting opinion of Judge Shea, State v.

McKenzie (II), 581 P.2d at 1240-1243, attached as Appendix A.

» 23s

it we

Siena « ene Guam

requests his own affidavit and the sworn, unrecorded testimony |

‘

of Deputy Sheriff Jerry Hoover. This affidavit stated that

Lana Harding “is missing and may have been the victim of foul

play"; that there was evidence of "scuffling" in the teacherage

where she resided; that a tennis shoe, a trail "cf an object

being dragged from the teacherage," and "a woman's watch and

blood stains" were found outside the teacherage; that the

watch and blood stains were found "in the game area as the

pickup truck driven by [petitioner] . . . [which was] observed

on the evening of January 21, 1974, at approximately 8:00 tc

8:30 o'cleck P.M."; that the previous evening petiticner had

come to the house of one Dan Pearson who “resides next to the

teacherage directly north cf the [petitioner's] residence”

and had appeared “highly nervous and excited" and had requested

Pearson's assistance in getting his truck started; and that

Pearson had assisted petitioner to get his truck started,

whereupon petitioner Grove off in®. easterly direction. ct.

21/

File Item 76. Deputy Hoover told the Justice that at the

. teacherage he had "observed the eyeglasses on the floor- in

the bedroom and the throw rugs pushed up together against

each other, and then the scuff marks on the floor, . .. [and

71/ Although Deputy Hoover's January 22, 1974, testimony be-

fore the Justice of the Peace was not transcribed, he gave a

deposition on March 12, 1974, in the fresence of counsel for

petitioner and the State, which summarized his earlier testi-

ps Sag deposition appears.in the record below as Ct. File

Item 30.

a] tennis shoe being outside on the porch and the drag trail, |

| ’ r |

and the blood on the road and the watch." Ct. File Item 30, at!

On the basis of this evidence, Justice of the Peace

Wolfe issued a warrant for petitioner's arrest on a charge

13/

of misdemeanor assault and a search warrant for petitioner's

p.6. The deputy, who had interviewed Dan Pearson, also told

the Justice of petitioner's appearing at Pearson's house on

the previous night ("he [petitioner] had ran a long ways, on dwelling and pickup truck to seize three described items of

. . . he talked very rapidly and seemed awfully nervous," id. petitioner's clothing, five described items of women's clothing,

at 7), and of Pearson's helping petitioner start his pickup and “any other controband [sic] articles." Ct. File Item 76.

truck “in the approximate location of the blood and watch on

73/ The County Attorney's request for a warrant to search

the road there." Ibid. Hoover's oral testimony did not differ :

a had recited that:

in any significant respect from the information contained in 7 ,

r 72 / "the said Affiant, hereby prays for the

issuance of a Search Warrant for the search

of the said Defendant, DUNCAN MC KENZIE,

residence located in the Scuthwest Quarter

Northwest Quarter of Section Nine (9), Town-

ship Twenty-nine (29) North, Range Two (2)

West, and the surrounding buildings within

the curtlidge [sic], and for a sezrch cf a

1950 black Dodge pickup driven by the Defen-

dant on the night of January 21, 1974. That

the Nelson affidavit.

72/ The Montana Supreme Court stated that in support of the

issuance of the search warrant “there was sworn testimony by

i the ccunty attorney and deputy sheriff in addition to the

affidavit md the combination thereof established probable

cause." State v. McKenzie, (I) supra, 557 P.2d at 1035. The a oS

record does not reveal what this “swotn testimony by the ) the object of the search would be to seize the

county attorney” was, apart from the affidavit filed by . instruments of the assault of the said LANA »

County Attorney Nelson. Deposition of Justice of the Peace HARDING including, but not, limited te, the

Montana Supreme Court has relied upon unrecorded testimony ag LANA HARDING, to-wit: a brown long sleeve

a basis for issuing the search warrant, a significant Fourth shirt, jeans and rubber overshoe boots,, worn

Amendment question is presented “whether the Constitution re- by the Defendant; and black coat, purpie sweater,

quires that, at or before the time a warrant issues, the ju- |, woman's blouse with flower design, woman's pink

dicial officer make a permanent record of the evidentiary basis slacks and woman's red and white striped tennis

for its issuance." Christofferson v. Washington, 393 U.S. 1090 ‘ shoe, and any other controband [sic] articles."

(1969) (opinion of Mr. Justice'Brennan, dissenting from denial ‘

of certiorarl). .

ct. File'Item 76.

~* a Nl OI OP

rey)

ee ee oe

SS a ee .

P = OS wer rrr er er re rr rm ee ome

ew ar ee ER Ye

-_—--=-

———

The warrant concluded “that there is probable cause to believe |

that the property described is in or upon the said described

real property and 1950 black Dodge ho, “ Ibid.

The Sheriff executed these unsahi” a about 7:30 p.m.

that evening. He went to petitioner's residence, told petitioner

of Ms. Harding's disappearance, gave petitioner the warnings

required by Miranda v. Arizona, 384 U.S. 436 (1966), and described

the arrest and search warrants while petitioner was standing

cutside his house. Ct. File Item 30, Deposition of Sheriff

Hammermeister at 52-55. He next put petitioner into the patrol

car, “served the Search Warrant and then we eiceiead searching."

id. at 55. thercugh search of petitioner's pickup and dwell-

ing was conducted by the Sheriff's deputies, and the Sheriff's

Return noted the seizure of 10 items cf clothing, a "pen and

seals knife," “Pubic hairs of Suspect,” “head hairs of suspect,"

and “1, pickup and complete contents." Ct. Pile Item 76. C£

these items, only tro (the overshoes and the “blue jean type

pants") had been described in the warrant. Two of the undescribed

seized items were later introduced at petitioner's triad, with ;

74/ Neither the State nor the.courts below ever sought to

justify the search of petitioner's dwelling and ‘pickup as either

a consent search or as a search incident to a lawful arrest.

See Brief of the State, State v. McKenzie, Mont. Sup. Ct. No.

13011, at p. 15; Order Denying Motion to Suppress (Dec. 3, 1974),

Ct. File Item 90; State v. McKenzie (I), supra, 557 P.2d. at

1034-1036. The “plain view" exception is similarly not applicable

to the items seized, since without scientific analysis, it was

not apparent that these items were evidence.

Coolidge v. New Hampshire, 403 U.S.443, 466 (1971).

- S37 =<. .

devastating effect.

A. e ck of Pr arch |

e Cause to

Assuming that there was probable cause for a warrant to

arrest petitioner for assault on January 22, 1974, nothing

presented to the issuing magistrate furnished probable cause

to search petitggner's dwelling or truck. The Montana Supreme

Court's decision that once “'a probability of criminal conduct

+ + + [is] shown'", State v. McKenzie (II) Supra, 581 P.2d

at 1211 (emphasis omitted), a warrant for the search of a

suspect's dwelling is justified clearly presents a significant

question for review. For nothing indicated that any evidence

of Ms. Harding's disappearance was to be found within peti-

tioner's dwelling. The magistrate apparently reasoned that

because he found probable cause to believe petitioner assaulted

her, there was probable cause to believe that evidence of his

15/ These two items were a pair of “red wing boots", 7. 1062,

and a "plaid jacket," T. 2090-2091. The bocts were one cf the

most damning items of evidence which the State introduced,

since an expert testified that their soles matched the prints

found inside a pair of overshoes, T. 1061-1062, found abandoned

near where Ms. Harding's purse was found. These abandoned

overshoes had. blood and brain tissue on them similar to

samples taken from Ms. Harding's body, T. 2140, 2147.

Co., 391 U.S. 216, 228 (1968).

crime would be found in petitioner's dwelling. Such an

inference flies in the face of the Fourth Amendment's historic |

definition of “probable cause" as meaning reasonable grounus

to believe that criminally-related cbjects are in the place

to be searched at the time when the search is authorized to

be conducted. The facts presented to the magistrate to

authorize the issuance of a warrant to search a dwelling "must.

be facts so closely related in time to the issue of the warrant

as to justify a finding of probable cause at that time."

Sgro _v. United States, 287 U.S. 206,

Maryland, 427 U.S. 463, 4738 n.9 (1977) (dictum! .

210 (1932). See also

Andresen v.

As this Court recently noted in Zurcher v. The Stanford Daily,

U.Se, 56 L.Ed.2a 525, 537 (1978): “{Vjalid warrants to

search properly may be issued when it is satisfactorily

demonstrated to the magistrate that fruits, instrumentalities, ,

or evidence of crime is located on the premises." (emphasis

added). While ‘only the probability . - Cf criminal activity

is the standard cf probable cause" for a search warrant, Spin-

elli_ v. United States, 393 U.S. 410, 419 (1969), the officers

must demonstrate’ 4 connection between this criminal activity

and “the premises to be searched", Dumera v. United States,

268 U.S. 435, 441 (1928). What must appear is "“'reasonable

or probable cause' to believe that [the searching officers}

+ « « will find the instrumentality of a crime or evidence

pertaining to a crime" in the search, Dyke v. Taylor Implement

As this Court has recognized

16/ See Lowery v. United states, 161 F.2d 30, 33 (CA2 1947):

clieeiee ee e

grounds to arrest do not ‘hecessarily provide the basis for a |

Vale v. Louisiana, 399 U.S. |

30, 40 (1970) (Black, J., dissenting). The Magistrate, the

search of the arrestee's house."

Trial Judge and the Montana Supreme Court here all made "the

unsupportable assumption that if there is probable cause to

cbtain an arrest warrant the same set of facts also supports

probable cause to obtain a search warrant." State v. McKenzie,

(II), supra, 581 P.2d 1244 (Shea, J., dissenting).

76 /(cont'd.)

“orobable cause for the issuance of a

search-wWarrant necessarily implies, not

simply that there are reasonable grounds

to believe that some violation of law exists,

but that there is a violation in respect ts some

property located on some premises or on some

person -- each of which can be unmistakably

identified, so as to be capable of being particu-

larly described in the warrant, from the informa-_,

tion in the affidavit.”

77/ See United States v. Lycarz, 430 F.2d 1051, '°1055 (cA9

1970):

"({OJ}£ course it cannot follow in all cases,

simply from the existence of probable cause

to believe a suspect guilty, that there is

also probable cause to search his residence.

If that were so, there would be no reason

to distincuish search warrants from arrest

warrants and cases like Chimel v. California,

395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2da we

(1969), would make little sense."

See also United States v. Bailey, 458 F.2d 408 (CA9 1972);

United States v. Spearman, 532 F.2d 133 (CA9 1976).

= 6 <

B. The Generality of the Search Warrant |

Moreover, even if the search warrant were properly issued,

it improperly authorized an unconstitutional general search,

The Fourth Amendment's prohibition of warrants not "particularly

describing the .. . things to be seized," is directed in

"Precise and Clear" language against the “unbridled authority

of a general warrant." Stmford v. Texas, 379 U.S. 476, 481

(1965). A more general warrant than that issued in this case

can hardly be conceived. The warrant authorized the seizure

of “any . . . controband [sic] articles." That language

authorized the searching officers to seize whatever thev thought

might be relevant as evidence. Justice Wolfe stated that the

"contraband" catch-all was intended to allow the seizure of

any evidence "[(t]hat the Sheriff felt was pertinent in his

investigation and also pertinent to this specific: search" and

that it authorized him "to take anything he wanted.to take that

he thought might be related to this case." Deposition of

Justice Wolfe, Ct. File item 30, at p.17. The Sheriff testitfied

that "the wording {of the warrant] says ‘and any other contra-

band' and I figured that covered what we took in the way of

evidence and items that we took." Deposition of Sheriff Hammer-

| 78/

meister, Ct. File Item 30, at p.73. The items seized by

78 / "Q [Defense Counsel] [Could you seize] [aJnything

that you wanted to take?

A, [Sheriff Hammermeister] Well, if it was relevant

to the case.

Q But deemed in your own mind as to whether or not |

‘

= 61 «

ee ee ee

eeuenteete te GE ee ee ee

eee =

the officers were not "contraband" in any meaningful sense of

the term: they were simply items of clothing that caught the

eye of the searching part. The Sheriff was “not certain whaf

contraband means, but I felt it was evidence." has Bt: .66.

78/ (cont'd.)

it was relevant?

+ A Yes.

Q If you thought that the kitchen stove

was relevant you would have taken that?

A Yes, if I felt that the stove was --

well, if I felt that I could justify

the kitchen stove as relevant to the

case, yes,

Q You felt that this would have given you

authority to take that, or the radio or

TV?

A If it fell into either evidence or

contraband.

Q But as you saw it?

A Yes."

Ibid.

‘ M oe . 2 ' |

72 / ‘The bocts and shirt? constituted evidence against petitioner

only as the result of microscopic analysis of them which shewed

that the’ boots had a small trace of blood on them (T. 1035)

which had blood and brain tissue on them. (fT. 1062). These

abandoned overshoes were not found ‘until the day after the

seizure of the boots from petitioner's house. T. 2140. The

shirt similarly was found to have a trace of blood on it.

T. 1205. Sheriff Hammermeister testified that he seized the

boots because he thought they matched “footprints at the

teacherage on the northwest corner cf the school" and he "Just

had the strongest feeling about them," Depositica of Sheriff

Hammermeister, Ct. File Item 30, + pp. 67-68. Hea similarly

testified that he could not "recall" anything unusual about the

jacket, Id.at 39.

What this warrant specifically authorized and what the

police here deliberately engaged in and what the Montana

Supreme Court explicitly approved of in this case was exactly

the kind of "a general, exploratory rummaging in a person's

belongings" that was "the specific evil . . . [of] of the

‘general warrant' abhorred by the colonists." Coolidge v.

New Hampshire, 403 U.S. 443, 467 (1971) (plurality opinion),

see Andreson v. Maryland, supra, 427 U.S. at 480. Whereas

the Fourth Amendment requires that “[a]s to what is to be

taken, nothing is left to the discretion of the officer execu-'

ting the warrant," Marron v. United States, 275 U.S. 192, 196

(1927), here everything was left to the discretion of the

officers to determine cn the spot what they decided was “centra-

band" or “evidence” of the crime of "assault" petitioner had .

been charged with. Only once, in Andreson v. Maryland, Supra, |

has this court approved language in a warrant approaching the ’

generality of this, and there it did so only because the

warrant included a “lengthy list of specified and particular

items, all pertaining to" a specific criminal endeavor, 427

U.S. at 480, which made "it clear from the context" what evi-

dence was and insured the warrant "did not authorize ...a

‘search for evidence of other crimes ...." 427 U.S. 481-482.

Here the evidence sought was obviously that of a crime other

than “assault,” and the "context" of the warrant did not confine

the sheriff's search to "specified and particular items" but

— Si ae tee,

permitted him to range in a general exploration from petitioner's

closets to his clothes to the hairs on his body for anything

he and the magistrate classed as "contraband". That only two

of the thirteen items taken from petitioner's house and person

were ultimately used in evidence (see note Supra), testifies

tc the sweeping authcrity which the warrant gave the sheriff,

amwhich he actually exercised under it. That kind of unbridled

search power cannot be sustained so long as this "Court has |

not diene away with the prohibition against general exploratory |

searches," State v. McKenzie (II), supra, 581 P.2a at 1263

‘Shea, J., dissenting),' and so long as the principle that

""exploratory searches + « Cannot be undertaken by officers, |

with or without a warrant'" still stands, ibid., quoting

United States v. Rabinowitz, 339 U.S. 56, 70 (1950).

Because "(t]he entire record of this arrest and search

and seizure in this case is replete with errors of constitu-

tional dimension,” id. at 581 P.2d 1266, this Court should

grant certiorari to review it. Under Stone v. Powell, 428

U.S. 465 (1976), no other court will; and petitioner's life

will thus be taken on the basis of fundamental Fourth Amend-

ment errors which the Montana Supreme Court has not chosen

to correct. See Mincey v. Arizona, _U.S.__, 57 L.Ed.2d 290,

396-398 (1978). (Concurring opinion of Mr. Justice Marshall).

CONCLUSION

Petitioner prays that the petition for a writ of

certiorari. be granted.

= @8 =

Respectfully submitted,

Cn Ucanbe ag

otal eines

Post Office Box 342

Cut Bank, Montana 59427

CHARLES L. JACOBSON

Post Office Box 932

Conrad, Montana 59425

TIMOTHY K. FORD

2101 Smith Tower

Seattle, Washington 98104

JACK GREENBERG

JAMES M. NABRIT, III

JOEL BERGER

JCHN CHARLES BOGER

10 Columbus Circie

New York, New York 10019

ANTHONY G. AMSTERDAM

Stanford University Law School

Stanford, California 94305

Attorneys for Petitioner

APPENDIX A

The Opinion of the Supreme Court of Montana

has not been reproduced here but can be found

at 581P 2d 1205.

= : ‘ . . tis “ E aaa NR isis Mita SS Sinica tieeee. @_ 2 * saps Sadan 2 seb unahalals onde ealieds

‘ me eee |

MF2OFR5907 fee

2 IN THE DISTRICT COURT oF THE EIGHTH JUDICIAL OISTRICT OF

-4 2 THE ier) OF avenge IN ANDO FOR THE COUNTY OF CASCADE ;

enlist : THE STATE OF HONTAMA, ) Ba ipa pron

Findings, Conclusions, sentence and Order of Hon. R.J. . es tee Plaintiff, ) ee

Montana v, Duncan peser Mckenzie, Je, noateeee = : vs. 2) pr tigs tomer asi ass.

ptsiatestisicesi cl npc + 7} OUNCAM PEDER McKENZIE, UR., —) —— an aus

i. , a eon

; 8 Me bane fl

| 10 The defendant, Duncan Peder McKenzie, Jr., with |

il his counsel, Barney Regan and Charles L. Jacobson,

12 appeared in open Court this 3rd day of March 1975. The

1s State of Montana appeared by Douglas Anderson, County

14 Attorney, of Pondera County, Montana and David Nelson,

- 15 who assisted said County Attorney in the prosecution of |

; +6] = the action.

’ °

The defendant was duly arrested on the ind day |

| 18 of January 1974 in Pondera County, Mentana, in Connection

i9 with the disappearance of Lana Harding. On that day or |

20 the day following,counsel Charles L. Jacobson was

| 21" appointed to represent him by District Judge Ronald

22 McPhillips, and very soon thereafter said Judge appetates

2s counsel Barney Regan to also represent the defendant. "

24 On January 24, 1975 leave was duly granted the

| 25 State of Montana by said Judge to file an Information

26 charging the defendant with the deliberate homicide of

27 the said Lana Harding. Amended Informations were

we 28 thereafter duly filed in said cause, and finally pursuant

29 to the decision of the Montana Supreme Court, No. 12797,

SO] in cause The State of Montana ex rel Duncan Peder MeXenz e,

1d ebide &

+ ese US tt me . ‘hh

Oe ‘

\61 arte” Cte Bi2 “5

B-1l1

SP eer nee ee LT UE OP er Tee eee ee tees em eee ee ee ee eee Ce ee

os Pay bs

te ee ee et

p= dtrarwatdibs ath atid

ee i ;

MI20FRS908 “2 ae

27 Jr... vs. The District Court of the Ninth Judicial District

2] of the State of Montana, in and for the County of Pondera’,

a *" Si and the Honorable R. 0. McPhillips, Judge in said District,

- 47 the undersigned who was called in to preside when the

5 Hon. R. 0. McPhillips was disqualified by the defendant, |

Si on September 30, 1974 duly granted leave to the State of |

7] Montana to file the Amended Information, on which trial

Si was had. 7

9 Further, on September 30, 1974, because defendant

10 had filed On June 8, 1974 an instrument {in which the

121i defendant Sought an order of the Court requiring the |

12] State of Montana to prove beyond a reasonable doubt, not

is only that the defendant had the requisite mental states

147 - for the offenses then alleged against him, but to also prove

15 that he could have had said mental states and giving :

a 167 notice that he would introduce evidence at the trial of

a7 | thescase to the contrary, the undersigned ordered the |

4 defendant, under the provisions of Chapter V, Title 95,

19 RCM to the State Hospital for a Psychiatric evaluation,

20 deeming from said notice that the defendant intended to faise

21 the defense of disease or defect of the Mind excluding

22 responsibility for criminal conduct Provided for by said’

2s Chapter V, Title 95, RCM, though defendant specifically

“4 Genied in said notice that he was relying on the provisidns

26 of said chapter and title.

26 The defendant's counsel objected to said order

27 and in open Court advised defendant he was not to

aS 28 ‘perticipate fn said psychiatric evaluation and was not

7 29 to answer any questions therein or participate in any

sO tests, and by letter thereafter so advised the State

2. ?

~—~—<—S oo Tan REL tas Do

Ly: SON OD pee Ci APT

MIFRZ0F RSS09

Hospital.

The defendant on November 12, 1974 wes returned

to the Court from the State Hospital, with a report that.

from observation, and without the benefit of testing,

they could find no evidence that the defendant Suffered

from 2 menta) disease or defect and was able to under-

Stand the proceedings sata all shee and to assist in his

defense, Ry ate

That on December 3, 1974 the undersigned granted

@ pending motion of defendant’ S counsel to change the

place of trial from Pondera County Montana, and changed

the place of trial to the Eighth Judicial District,

Cascade County Montana; and by the order granting said

change notified the defendant to be prepared to plead to!

the charges made in the Information filed September 30, |

1974. |

That the Information filed September 30, 1974

—

charged the defendant with the following offenses:

A. Deliberate Homicide;

3. Committed knowingly or Purposely, or

2.° Committed in the commission of a

forcible felony, to wit:

a Kidnapping or,

| } Aggravated Assauie,narrout Consent,

3. Deliberate Homicide by Means of torture,

&. Deliberate Msp iinisie’ by lying in wait or

} ambush. |

8. Aggravated thieabin, to wit:

1. Committed for the purpose of inflicting

wri! injury on, Or to terrorize the vic

im,or

o peman-s. tatediad as

eT SS AE a ea Ie

: ‘ . ~~: .

—

MIF20FRS910 2

2. Committed for the purpose of facilitating

the conaission of a felony, to wit:

(a) Sexual Intercourse without consent, or

(b) Aggravated Assault.

C. Sexual Intercourse Without Consent. P

0. Aggravated Assault, to wit:

1. Infliction of serious bodily injury on

another, or

2. Infliction of bodily injury on another

with a weapon.

On December 17, 1974 defendant appeared in the

above entitled Court with his counsel for the entry of

pleas to the said charges. The State of Montana was

The |

represented by the aforesaid counsel for the State.

defendant was advsied by his counsel to stand mute, and to

refuse to plead and when the Court asked the defendant

1f this was his desire, he stated yes. {

Accordingly the Court thereupon entered a plea of |

not guilty for the defendant to each of said charges as

required by law.

Trial to a Jury of said defendant on said charge

was duly commenced in the above entitled Court on the 4

8th day of January, 1975.

On the 21st day of January 1975 the Court permit-

ted the defendant after motion by his counsel to add

and enter the affirmative defense of Mental Disease or

Defect which excludes Responsibility for criminal conduct,

and an examination of defendant was had under Court

order by a doctor from the State Hospital, a psychologis

and @ re-examination by defendant's psychiatrist in

‘

HF2GFR5914 bias

—8Ccordance with the provisions of said Chapter ¥, Title :

95, RCM. ?

On the 31st day of January 1975 evidence having

been completed, the Court duly instructed the jury and :

Submitted the case to the jury, less the Charge of |

Deliberate Homicide by lying in wait or enbuth, the

Court deeming the evidence insufficient to establish

that the defendant had Purposely concealed himself and F

lay in wait for the Particular purpose of Causing the

death of the victim,

On the Ist day of February 1975, the defendant I

and counsel] being present in open court, together with

the said counsel for the State of Mont j |

ana, the jury

Guly returned its verdicts to the Court, to wit: :

1. Guilty of Deliberate Homicide end found saig

homicide was by means of torture. *

2. Guilty of Aggravated Kidnapping and found .

Said aggravated kidnapping resulted in the |

death of the victim. |

Verdicts not being required under the law as to

the remaining Charges, the verdicts returned were

accepted by the Court and were duly read and filed in

open Court, and were duly affirmed by the jury in al}

respects when the jury was duly polled as to each verdict.

and each of said findings at the request of defendant's

counsel. :

The Court then ordered a pre-sentence investiga-

tion and set the sentencing date for March 3, 1975 at

2:00 o'clock Pp. Mm. in said Court.

The defendant was duly advised as to the purpose

- . ‘ ° “« ft .

° . 7 ‘ a» .: Leena

= a ae ae ee ss bi old

6 ey? Se Wi aeie es RUA.

< . . ne nes

ae ow ee Cee

‘

MFZOFRS5913 .

: two offenses,

! MFROFR5912 ‘ 2. That both Of the offenses of which the !

4 ofa Presentence Investigation and of his de vats : defendant has been found guilty are of equal gravity

*] participate therein nf Be So chose, and wes further ; and seriousness under the law, both being mandatorily ;

ie “i advised that the Court would grant him a hearing before pealinente ata: ‘aloe vice im atsigettng

4) Sentence was pronounced, if he so desired, as to miti- bidiieitibias. ;

a gating facts and circumstances. iy | 3. That there is nothing in the evidence of the '

| The defendant was then remanded to the custody 2 aa seid. haw sb aks seatiidiaiies lavestiphtton, iia aM sai f

+ 71 Sheriff of Pondera County, Montana, and the jury was i ale nature, or dactgroune of ie Nélaneied cae TF

§ discharged. a | 10 any other manner Presented to the Court which mitigate

"| i The presentence investigation report au as | | 11 Sts extinct the sentence required by law. |

rm been received and is Placed of record in the above 12 me oe ign okt an si Fak ‘

11 action. It has been duly read and considered by the ' 13 biases Dibataien’'s areal. conscienceless. Seleditieg

a Court. 14 rape and deliberate killing of @ human being. f

13 On this date, March 3, 1975, the Court heard the 15 i eae sbi abate eteneaige aah tdstitres !

” following motions made by defendant's Counsel: : 26 Im the case as to defendant's mental state and condition!

- Motion for a New Trial and Peeve Soe Stine 47 found the defendant had a Personality disorder, classi- i

es for Mitigation. The Court we SOne Sere BEEN Matinee 18 fied as anti-social, and that the conduct set forth in

” and does hereby deny the same. 1s Paragraph numbered 4 of these Findings is in keeping

- The Court then asked defendant if eeseatecns | <0 with such diagnosis. At} agreed that the defendant is

” other legal cause to show why places should not be 1 21 Middertus uns potentially dnteeraias Wea didekaee?

“e Pronounced and no sufficient Cause being shown or | 22 psychiatrist testified that the defendant knew right

aoe appearing to the Court, the Court makes eee eee ; | 23 from wrong, but despite this ability is unable to avoid

we: Findings, Conclusions, Judgment and Order: | 24 ‘Committing acts such as were Charged against him. The ||

” FINDINGS OF FACT experts that testified for the State of Montana agreed

” 1. That the a on which the defendant ss | 26; that the defendant was and is potentially dangerous and that

” found guilty; Deliberate 2 eh tale i aoe : 27 he could and can distinguish right from wrong, but testit

20) of Torturesand Aggravated Kidnapping which pte ath “SI ties that he could control his conduct if he-chose to

27 the death of the victim were 2 part of the same tran- ! 201 eck: though ‘hic Jueonent. bédauca of his an ticcectn’

“Ze Saction, and though the defendant is Se | aad Personality is somewhat impaired, and that the auveeiiakl

#91 could be found guitty of both offenses, under the law, 7

Or he can be sentenced for only the more serious of the 2.

a ne

: ¢ . * . ° . ‘ > . ¥ ? WZ

f : NF geteg & = ee ee ; cea ue ‘ ee ee eS ee en See ee oe

; : talnde Bisbee A e4. } eee et te athe te Sy a oe

° - “oat, J ai < 4* mr @__- cat lat tint ek) Sit nine eat .

J ew ot A we

on eb See!

. ss 7 « “

5 +e

’

<" .

| w @ Y

hFZGFR5914 oi | MEZOFRS915 :

2 chooses his anti-social, dangerous conduct: ; 9. That the defendant must never a i Liewde to :

2 6. That the jury rejected the verdict forms ! be free in and encanger society again. That under

3: finding the defendant not Quilty by reason of a mental. existing Montana Statutes on sentencing the maximum

4 disease or defect which excludes responsibility for Sentence other than death {s 100 Seite SaseReaeniak: i

ft 5 criminal conduct which was submitted to them end | Under existing Montana Statutes ‘the defendant under:

S| correctly found the defendant guilty of deliberate honi- 4 100 year imprisonment sentence would automatically be

7il cide which was by means of torture, and guilty of eligible for parole in 12, 1/2 years less good time

8 Aggravated Kidnapping which resulted in the death of allowances. Under existing Montana bate dns reguiating

: . ane Fret ie. ; 900d time allowances the 12 1/2 years could and would bel

10 |i 7. That the presentence investigation discloses | 104 cut so that the def enasae woule ib ue Pennies’ «a !

11| that the defendant in Blaine County, Montana in 1970 was | | oy Service approximately seven years of the 100 year sen- !

ey POETS OMe: AE 08 Aggravated ds teil a ee spice | nes tence before he would be turned loose to menace society |

15]| who was found brutally beaten, clad only in a blouse sao again, and this would be true even though his sentence wa's

14 Crawling alongside of a roadway in said County. On the 14 not reduced by the Sentence Review Board Or by future

1S} 29th day of December 1970 he was sentenced to three 15 executive clemency.

26 years in the State Prison for said assault. Early in July 26 CONCLUSIONS OF LAW

17 of 1971 after serving a few days over six months of his 17 te. The b0fedsks-ot GhEh the ‘SaPentait Aes es

18i' sentence he was paroled as safe to be at large in society 18 found guilty are of equal gravity before the law and

19]| He was returned to the State Prison in December of 1971 | 1$ result from the same transaction: end starghere say

z0 | : é

20), after numerous parole violations. In 1972 he was again one sentence may be imposed though he was PE.

#1]; paroled as being safe to be at large in society. That ! pe of two offenses. | |

2e his parole on the said three year sentence expired in 22 %:<- Thad “thers te AW circumstances wick cage.

23| October of 1973 approximately three short months before 23 Gib is: di Panbane® Uekdiee ac tks Te eta

24 January 21, 1974, the date of the rape torture, kidnapping | 24 imposed. !

25) and killing of Lana Harding of which the defendant has 5a 3. That sentences must be based on prevention |

i . 26 been found guilty. % ; yas and rehabilitation of offenders, That rehabilitation -

27 8. That the prognosis for change in and rehabtlic ee <3 Duncan Peder McKenzie, Jr. is not possible under existing

28i/ tation of persons with anti-social personal.ty disorders | af law and the protection of society and the law requires

29| such as defendant's is so untikely and minimal as to : it and justifies the imposition. of the death penalty in

SO| be practically non-existent. ; | 39 | this case. :

8. | 9.

aes Seen

+ 1G

eee SR Ss nm emer omen magyes oF PAIR HP en o

: 4 ; “* . . - . ®

penn wernt

La SL ee ee

o ov’ QeoQaekapn»w

wv be

_§...... A daed dimitie i Sate iol _ ®. - wane tbiiet ke, we ri Cy PN ih

- ll ;

KEZOER5S916 }

JUOGMENT AND ofcRce

In accordance with the foregoing Findings and

Conclusions it is hereby adjudged and decreed:

_ 1. That under the provisions of Section 94-5-105 |

Subsection @ and Section 94-5-304 R.c. M. the Meath |

penalty is hereby imposed on the defendant.

2. That under the provisions of Section 95-2303

RCM the defendant Duncan Peder McKenzie, Jr. be hanged

by the neck until he is dead, on the 30th day of April |

1975 in Pondera County, Montana, by the Sheriff of said

County in accordance with the provisions of said Section

95-2303 RCM and as provided by said section.

"ORDER

The defendant Ouncan Peder McKenzie, Jr., is here:

by remanded to the custody of the Sheriff of Pondera i

County, Montana to carry out the judgment of this Court }

as provided herein and by said Section 95-2303 RCM. ‘

DATED this 3rd day of March 1975 in open Court.

\ a

2 baat . } : !

} om ee ers

) strict Judge

cc:

10.

B - ll

- shies sted lean

Oe ee

ieee nae TEE CO OTN

ere

Appendix c:

Preliminary and Additional Instructions,

Ct. File Item 154, State of Montana v. Duncan

Peder McKenzie, Jr., Montana Supreme Court

Number 13011

ee ee ke be ee

Me 2 ol D4. Nee by

wre ee

IN THE DISTRICT COURT OF THE ELGHT JUDICIAL DISTRICT OF

THE STATE OF MONTANA, IN AND FOR THE COUNTY OF CASCADE’.

THE STATE OF MONTANA,

Criminal Case No.657 14

Plaintiff,

Vv.

PRELIMINARY

NSTRUCT } OAS

DUNCAN PEDER McKENZIE, JR.,

Defendant.

— ~— ~~ od ~~

any

"ia\

FEB 4. 1975

5 McGIR8ONE)

REY Coyst Chest

A a DEBUG

The following are preliminary written instructions

LADIES ANG GENTLEMEN OF THE JURY:

of the law in this case, and at the conclusion of

the trial additional instructions may be necessary, and,

if so, they will be given to you. These instructions

are. given to you at this time to assist you throughout

the trial of the case.

1. It is the duty of the Judge to instruct the jury

on the law applicable to this case, and it is your

duty as jurors to follow the law as | shall state it to

you. 3 |

2. The function of the jury is to try the issues of

“fact that are presented by the allegations in the

information’ filed in ane Court and the defendant'S

. pleas ef: "Not Guilty". This duty you should perform

uninfluenced by passion or prejudice. You must'not

suffer yourselves to be biased against a defendant

because of the fact that he has been arrested for

these offenses. or because an information has been files

against him, or because he has been brought before the

Court to stand trial. None of these facts is evidence

eo 2. oe Be OO. DR

;

neY Oo @N Oa & & WY fF CO

‘speculate from any or all of them that he is more likely:

by these instructions does,the Court, express any opinion,"

as to the facts in this: case or what, verdict. you, should 2%

‘upon the law as given in these instructions. If,

‘5. You are to be governed solely by ‘the evidences”?

of his guilt and you are not permitted to.infer or 09 a

to be guilty than innocent.

3. By no remark made by the Court during the trial nor

“ . . = _ edge ot spe - ot bs

return.

4. You should take the law in this case from the Court's

instructions alone. You should sot give any weight to

statements of counsel or of anyone else as to what sthe "2

law-yis,-nor should. : you. allow yourselves to decide, thisae cas

contrary to these instructions, even though you aight’ is

believe that the law ought to be otherwise. Counsel,

however, are privileged to comment and argue to the‘ jury

in these

instructions, any rule, direction or idea be ‘stated a). *y

varying ways, no emphasis thereon is intended by me, and.

none must be inferred by you; neither are you to oteuie

Out any certain sentence, or any individual pofnt or instric

tion, and ignore the others, but you are to consider all

of the. instructions.as a whole, and are to regard each

bn the light of all the others. The order in, which the

instructions are given has no significance as: to thei rir,

relative importance. aR 7 : shes vy

retie ts

introduced in this trial and the law as stated to you by«.

me. The law forbids you to be governed by mere sentiment,

conjecture, sympathy, passion, srejudtce; public sbatin

or pubiic feeling. Both the State and the defendant ,have.

a right to demand, and they do demand and expect that you

aay i! eet

i ehieg

‘*

| ee wats ‘ 5 Or ons oP eeeeae Tet h ae

“will conscientiously and dispassionately consider‘and ish'e* Hs —: s orn vm RORIARS or ee geen a a

i eS vi eae boos i Yee soattegt

Zi: weigh, the evidence and apply.the law to the casesand wsec ae.2) > Spans cia’, *0, te see ae

~ ooh “

HARDING with a weapon, hamely:

that you w

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.