# Petition — McKenzie v. Montana > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0452%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1979 - **Citation:** 443 U.S. 903 ## Text ll diel as 4, ‘iO caste { g Supreme Court, U. Se FILED OCT 23 1978 ee eed MIGHAEL M@DAK, JR., CLER | j IN THE | SUPREME COURT OF THE UNITED STATES | October Term, 1978 _ | No. 78- TR _ ) AY vw wy DUNCAN PEDER MCKENZIE, JR., Petitioner, an STATE OF MONTANA, Respondent. TICN FOR WRIT OF CERTIORARI RATION AM xe Tews we Ne mes a ‘ 2 r } i J ' ) to ~} 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 ii Page 53 65 la hb tu 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 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) oe ‘holding, stating that { { j | 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 at " . 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 i! | ! | 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.) y 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. i = 20-_> -~ . 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 = ys 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 a 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). be 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 9 Order," the trial court imposed the death penalty upon petitioner bye Saree >t LAH dante BL CS . 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 | =) a 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 ij Robert 0. Wolfe, Ct: File Item 30, at p.4. Insofar-as the evidence as the whereabouts of the said © 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 i uo 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 = 2 = @ @ © @ me we 10 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! y 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 | r im,or o peman-s. tatediad as ° eT SS AE a ea Ie : ‘ . ~~: . — Ay => © .%§.06,.@.8 @ 82. & 10 MIF20FRS910 2 t / 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 es ‘ 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. . ¥ ? 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 Spans cia’, *0, te see ae ~ ooh “ HARDING with a weapon, hamely: that you will reach a just verdict. (1) a rope, by placing said rope around the neck of the said LANA 6. : STATEMENT OF THE CASE . “HARDING; or , The defendant, DUNCAN PEDER McKENZIE, JR... iisyaccused| y:. bee fini, * (2) a Weavy object, by striking the ®”: I eS os eh ae |e cay an eae ‘4 Said LANA HARDING upon herthead:i* eS ef in. the Information filed against him of the following wish i: Sak with said heavy object; ons ste chKe oe & a. ere . ead eet a Sees ee Pave Rie ete we pe eee. - “ae wd d ¥ oo'« fete ete ° ? > a tt offenses: Deliberate Homicide - two counts; Aggravated : tial B3 cna ttca the erteapbeh gaugeztES ah YO Kidnapping - two counts; Sexual Intercourse Without » owas: HOMICIDE, a felony, as above alleged, by ~ Consent - one counts Aggravated Assault - two counts. | 7-% Sree ades Lunn waeduceesine the cach, | ‘The offenses are charged as. follows: "ar ahateapet ef Satta he Sigh wegen ited, ince re ta, : . . SEE | RSET se }.. by mean of torture; or ye EN a apatite i is, ye adinies e Pd A’ = ‘ "4 - 08 . ? . or 6 . “SP ale “dyate f et . Lg “ ge + "That Duncan Peder McKenzie,.Jr.:late of. th “Countysiall": ee. 1" oe, wt JAF ; 7: TE EPL oteibe | Saye ".0f Pondera, on or about the 21st day of January “A. D.we Raine a - 2. by lying in wait dp ambush;' Peri Sas aed | 1974 at the County of Pondera in the State of Montana,*=* | soak B ete | committed the crimes charged in the following counts, |+ | “ites pa-SoOe ane sac eeceuen, 94-§-101, Le Bie all at ‘locations in Pondera County Montana." .. oe fe yseehte wecer fur ecre-sees 6.08: a Ae ete i sere COUNT 3: That DUNCAN PEDER McKENZIE, UR. committed | Arindu ee Mbt nk ae the crime of AGGRAVATED KIDNAPPING, a vt foe . : os i ’ eh, es %° i : R BA Bad oe Fae Felony, by knowingly or purposely and,’ i °--i ssshtige + ‘COUNT I: - That DUNCAN PEDER MCKENZIE , JR. committed teers without lawful authority restraining 0 tc-1 “ftp ut ae a the crime of DELIBERATE HOMICIDE, a felony., fen" : ee ene Hh BESO eee, | by purposely or knowingly causing ‘the. fv. |) Sar LANA HARDING by either secreting’or =”. Seta ne death of LANA HARDING, a human being; -i.9°2- | “epee holding the said LANA HARDING in a place jj ‘sis! in violation of Section 94-5-101 and’ "0 '2- | uaa £0 Uae een tae ee eesing, oF threatening f -“7jr5i% are > GY to use physical force with the Purpose cf | oid he, ~-—- Section 94-5-102 R.C.H. 1947. rete! peyte facilitating the commission, or flight #-, “ty MMe COUNT IT: That DUNCAN PEDER McKENZIE, JR. committed | t.cteilis ore ee tee Nemes eee me: feel the crime of DELIBERATE HOHICIDE,.a ot SPN y aay the dante ce bie ee 4 4 hb year : oy Rewitagle tected seen inter- faa e death o RDING, a human be NOs. Ws ru : ; ' ome + ee while the said DUNCAN PEDER McKENZIE, JR. | --sfpe a! : a tuna uae ie said Pp eco ee : was engaged in the commission of, or in an |}. “rei... See ae ree eeeeet Veeweene tyes) 8 ge consent, the said DUNCAN PEDER aye te attempt to commit, or flight after commit- eo ~~» 2” F%S, 4 ting or attempting to commit: J ; SA sige ° McKENZIE JR. being a male person; eR oie ‘ : ° Ry - . verge As or a ~ . Pm eel +2 . o> : one oyteg pe he oe Phe Le Petey bubhe a4 . 1... SEXUAL INTERCOURSE WITHOUT CONSENT, Sell sole Ati. “¢ Monee a felony, by knowingly having sexual. Beton 2. oF kawulecto eemchigns Sree : fangs * ee intercourse with the said LANA: “or 2, fi ("Spe bp Fak Caled od atey i ee ss HARDING, a female not his’ Me ee a Ae fee’ 5 A gers | ” t,o re | et i a sar seer DUNCAN Reet PHAM (2) “serious bodily injuryitoxtha race . : ° 7 DUNC Ned + oo tne J ; ° t “7° A PEDER McKENZIE, JR. being a male'sts,* bids stra said LANA HARDING; or fe mea | person; or aa, eg Eb tad 2.° AGGRAVATED ASSAULT, a felony involy-: (b) Pea Manniury to the said =f pate, _.ing the use or threat of physical ’."= 2 Orne with -WESPOR, eae a oe ee ~ force or violence against thessaid@*: sesh He - 2. a ae as Fer gs srg LANA HARDING, b rposel st! oe LL ES H a G DY. bu »” S1Y, OF knows: 1. @ rope, by placing said * ngly causing: ee ed Pas ; round th k : ; vi ny Se eee “ x ; ry 32 LAMA Fy off A, wes ae a. Serious bodily injury to’ the **" 30 mh es RDING: | SUS . e Taaas 4 gous a heavy object, ‘by’ ‘strikin the said LANA HARDING upon her head with said shear object; 2. in violation of Sections 94-5-303, 94-5-503 and 94-5-202, R.Co M, 194,/, the said LANA HARDING having died as @ result of said criminal ie tcl That DUNCAN PEDER McCKINZIE, JR.* committed’ thew! og 323 286,28 toh teeta crime of AGGRAVATED KIONAPPING, a Felony, : by:4, 1 al.’ knowingly or purposely and without lawful «SY ‘tanta authority restraining LANA HARDING by either . > secreting or holding the said LANA HARDING jn a Ae) place of isolation, or by using or threatening Zee? to use physical force, with the Purpose of oe td hid 5 bodily injury on the said LANA HARDING ye: Orsterrorizing the said LANA HARDING, in .~ ede |e Ba a ial violation of Section 94-5. 303, R.C.M. 1947, the. AN trek ee .' said LANA HARDING neta died as a result, oft: WON Fa Ragen am Said criminal, ,conduct, ° tnt’ ek phe rey ss aetidehe| tae nf : , ° oe ae yee COUNT 5: That DUNCAN PEDER MCKINZIE, JR., a male person Mii. 6 committed the crime of SEXUAL INTERCOURSE WITH- eye OUT CONSENT, a felony, by knowingly having sexual pit ds intercourse. with LANA HARDING, @ female not his ‘mabetty, Spouse, without consent, in ae of *. Section: SpA Sa ee 94-5-503, R.C.M. 1947, a Be, hi ae err = ot ena ote COUNT 6: That DUNCAN PEDER’ McKENZIE, Jr. committed, che. tia ee crime of AGGRAVATED: ASSAULT, 2 felony, by pur- ‘i Phe posely or knowingly causingserious bodily injury wate: to LANA HARDING, in violation of Section, 94-5-2021 :Ri crats RCN. 1947, EEE UTM COUNT 7:~That DUNCAN PEDER MCKENZIE, JR. committed. the OH is. Crime of AGGRAVATED ASSAULT, a felony, -by 8h ap purposely or knowingly causing bodily dee as a to LANA HARDING with a weapon, namely Ac 4M , 1. awope, by placing said rope fmt a around the neck of the said LANA cb 54) HARDING: or eae Peet oe ~ i * SPA AT pee) 2. , a heavy object, by striking the we | wintiertides. said LANA HARDING upon her head — Os with said. heavy object; . z' ee opin ast se ie a in violation of Section 94-5-202, R.C.M. “V947Me P: has ihe ed it MR Ld abn ak ects se eee 2if A aida which he is charged in each of Said offenses to have ‘ been proved beyond a reasonable doubt. Sentencing, if any, will depend upon the verdict or’ _ to ae et seussed or considered by you and mt not; zi any ° ‘ re. bee. a werdicts which you may return, and under Montana Vaw, _the matter, of Sentencing.is vested Solely in, the. Court. SOL if. you are not to concern yourselves therewith. a ica * arriving at your’ verdict or verdicts? in: ‘this, £ase, the subject of penalties Or possible Punishment, is. not y 4 ‘ . orn the.. - innocence or guilt of the defendant of the. times way be allowed to affect your ‘detistens as. to Charged. ~ 4 G., , wks vy "er a . a ~ We. vaat Van Bn. el" 6 ieee 3 ee Although the Defendant is charged with two: counts “ing ats "each of the offenses Of Deliberate Homic} de, Aggravated," pals Kidnapping and Aggravated Assault, only one offense of wt Deliberate Homicide and one offense of Aggravated Kid- BF napping and one offense of ,Aggravated Assault. ABA RART ae : ‘involved .in this case. Leave was. granted the? ‘Stake, of ins Bat Montana to charge in this manner, and to also ‘charge re the offense of Sexyal Intercourse Without Consent, in orddr ot to meet the problems in proof that arise when an offense a or offenses can be committed in different ways, “or. by eit ee i.different means, or. for, different. purposes, meer Red ttn The Defendant can be convicted or acquitted On any ; dos Ee Or all of said offenses as you may find the a! Tegat{ons,, ae in each of said counts proved or not Proved,. but :in “noses Sa fooe event may be sentenced for more than one offense finan oberg Deliberate Homicide and more than one offense ‘of “aggras*? ANNA vated Kidnapping and more than one offense of: Aggravated te Assault even though you may find both of the counts with aie mas oese0negnagnees oe Ww ~ o — - - - , refused to plead to the counts contained in athe eel *¥ To each of the seven counts contained in. the ; Infor="* mation the Court, under the law of this State artieea ke plea of “thot Guilty" to be entered on behalf of the defendant, when under his legal right he stood mute and every material. allegas, ‘ a? P wre ‘tion contained in each of said seven counts is denied. ‘ Under such pleas of “Not Guilty” In order’ to convict the defendant of the offense charged in any of said counts all of the moterial 7 bo - Ome allegations contained in that particular count must bec ~ proved beyond a reasonable doubt., Al} of. the:allepatlons ned Tn “contained in each Count are materia! to the charge, “e me contained in that count. 7, | PRESUMPTION OF INNOCENCE - DEFINITION gated OF REASONABLE DOUST — etagt ' You are instructed that a defendant-in a, criminal giey action is presumed to be innocent until the contrary, is? proved, and in case of a reasonable doubt whether his: guilt is_satisfactorily shown, he is antitled to an acquittal. The effect of this presumption places upon the State the burden of proving the defendant guilty beyond a reasonable doubt. Reasonable doubt is defined as follows: 3.2. It is not 2 mere possidle doubt, because everything relating to human affairs and depending upon, Sys, evidence is open to some possible or instead doubt.» It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they -- re cannot say they feel an abiding conviction to’ i “moral” —_— oS a eee Gee ce: ce © © ame -~am com - -e —--.h -— a — ~— Te ee Oe ee a) wet Give rr | -a ; ¥* . ~ x tia nN o 4 iia : a 21 oe a2 bare} ee 23 '- ca | 3 24 i i } 26 ; oie 26 Ae 3 a 27 ‘ ‘28 ~ he i 29 ise, g demonstration or that degree of proof which * all Possibility of error, certainty of the truth of the charge, OSS nase ; el ce Oey ' i. MAY NOT CONVICT oN CONJECTURE OR SURMISE Bee , sah -* r, A person may not be convicted on possibilities or on mere conjecture or Surmises, however Shrewd, but mly on evidence establishing his guilt beyond a rea “doubt; Sonable.i i that is, on evidence which "eee Re establishes eo abi dingh conviction to a moral” Certainty of the’ ‘truth of” the’ ‘charg ® 9. EXCLUDING ALL pos SIBILITY or GSOCUTE CERTAINTY HOT-REG OT Reet PROOF AND PROOF You are instructed that the law does not, Fequire ty en Fexluding tt 4 * ¥5° " “produces absolute ‘ Certainty spare " a ." for such degree of proof is rarely possible.’ That Wake degree of proof is necessary which convinces the mind. B: Eg and directs and satisfies the conscience of ‘those’ whet ites are bound to act conscientiously upon it; that WZ i moral certainty of the truth of the Charge, no ae % no less, a Pe a aT? Pos Purposely Defined: 10. : be aa eee A person acts purposely with respect to a result Sal Ul ort i i © conduct described by a statute defining an offense |“: i f it is his conscious object to engage in that Conduct , * te “cause that result. When a Particular purpose is an ay Bes ’ giste Bac erement of an offense, the element is: establ ishedtSmiutih BE although such purpose is conditional, unless ae or. ie Condition negatives the harm or evil sought ea be te? Ba Pe . »? Prevented by the law defining the offense. Eeutvatene:¢ Say + ferms such as “purpose” and “with the Purpose" jh ‘ *, ot $a : , ® - wnat e,the; " fe. Me meaning. ‘teh ae $e oe Ee aft ; -- ot 8 £ Pie whey oie Nn. KNOWINGLY Defined: + etancigigd Bs 2 7 4 tee A person acts knowingly with respect to conduct or . Ra a8 -* - ry 4, Rea my © ‘ .* ° s ‘ ® ' ‘. 4, o- =e - tbs 4 c oye a rh os Rae 2 a Tate +m lage (a, ae ne F SeaeReaiaa asa ap sacl oe Ns ails ‘ > ei t 8 cal ‘ - o@ oo rT OT Bett 3 CACM sani RED bod to a circumstance described by a statute defining an rae. Syfinhrs 4 YL Voluntary Act Defined: bare ENA Oo . Ay *-* HM Ms . "oh ated: watt 4 a —— 8 ie tla, offense when he fs aware of his conduct or that the. S.s Pr z A voluntary act" is any act that is the a Pei circumstance exists. When knowledge of the existence of $a 3] product of the effort or determination of the actor, ; , * “ +. z a particular fact is an element of an offense, such hte 4) either conscious or habitual. ery : . » ook >. 2.0F home knowledge is established if a person is aware of.a. high.,, ‘ye gett GT 18. Bodily Injury Defined: ve har Ags Bias : tia TP ax ta”: Lt re Deru : EDs ie Pa th Fx eet ine Sa probability of its existence. Equivalent ‘terms Pusey RSs et eit ME ceo i's Bodily injury" means physical pain, illness = Anes ‘ . ~ +h, tre SPN bane f. = . “knowing” or “with knowledge” have the same meaning. by Pan | ‘} Or any impairment of Physical condition and includes , °°, 08 ; 12. Intent Defined: ae Bi mental illness or impairment. Intent is a state of the mind importing conséfous ot p | 19. Serious Bodily Injury Defined: ©. ete ovgpees E Cometite. eee ee ae Leesa | ® eet ee Dts purpose, aim or decision. eK se RAL ci Serious bodily injury" means bodily injuryesy wee Pt eG Vlatadon ' a1) & oe ess hoon oh oe tes ‘Se Felony Defined: . 2. Sater Seebets bien fog eta which creates a Substantial risk : av Pig a a : y : tome Fen sehen Daath Of death or which Causes a: Meike "Felony" means an offense in which the sentence ‘7: .' “phe Serious permanent disfigurement, or protracted loss.or.«" eee , Fhe os 3 OP eH. seat imposed upon conviction is death or imprisonment in. the. wefat ad) impairment of the function or process of any bodily.™..": s oy ME | ‘ ro el ea L ' J Tee eee tyr state prison for-any term exceeding one (1).year...s raptiyted cast atts member or organ and includes serious mentai {11ness, or fe: ee cane 14, Forcible Felony Defined: ease Ried eer f hp . impairment. og. ia ei) fT NEEE alee [ev aca Rd EL tie Hermie "Forcible felony” means any felony which involves *” Be Hi ott Sexual Intercourse Defined; es. Ae ee Lc ; me Ben i { : a ed ee In ‘ayo EE the use or threat of physical force or violence mate a ie | Sexua) intercourse" means penetration of . ea any individual, | | me IM | the vulva, anus or mouth of one person by the penis of - + ae . 7 tne: oe , " : ; a) 15. Threat Defined: “ett another person, or Penetration of the vulva Or anus of © ‘Hie "Threat means a menace, however communicated a | one person by any body member of another person or ° we i ef ; ° Ls ' F * oh. ° (a) inflict physical harm on the person. ee a Penetration of the vulva, or anus of one person by any 43 threatendd or any other person or on property; or mins, 4h + Tei foreign instrument or object manipulated by another ° rts, Ma LK, ae ee Py (b) Subject any person to physical confine-, alae | Person for the Purpose of arousing or gratifying the iGegist ewe cc *. = . rx ° eo tee he ment or restraint; or Se 7 Higies Sexual desire of either Party. Any penetration however ae j © pss es viteienone } , ; ¢ tte's Hire «ws ce “8 ” (c) commit any criminal offense, "3: 9 Kt: et Slight, is sufficient. Bae ‘ * atts i ae ea Boa ’ $4 16. Acts Defined: ae Meese | 21, Human Being Defined: fe "Acts" has its usual and Ordinary grammatical | me “Human being" means a person who has been: tye» “Meaning and includes any bodily movement, any form of :- born and is alive. oes A, t-? . *o’ 3 oere (Se Communication, and where relevant, includes.a failure | -22- " *E *8ded ning @ 4 ‘ wo Or omission to take action. ee Deliberate iomicide Defined: , £4 . °*. eo 2 Cc ad ll “ e 8.095 teint ‘ YOu are instructed: *" ** seiegattte | eis e % re Fy chy 4 ’ * . : - sal er on Cae ee . ° 3 a ee » ar 5 “ws, oe a : m+ pe oN. mle a” oe 24..; Pare, Meee gs aa - £8 ete BP Pll . vo ‘ p. ot al ast vthereof in this case is: CAPA en Wiis Kidnapping in this case you are Instructed: 5 putin ath Deliberate Homicide by Means of Lying tn “More Wait or Ambush Defined: ’ Deliberete Homicide by means of lying in Waft or “ — act bee of $39 : Ambush, insofar as we are concerned with the definitions “#.8 of 9 we * Qe “ee ew Whoever conceals himself, and watches and waits for another with the particular purpose of taking such person unawares, and killing him, and he does kil} him is Guilty. of Deliberate Homicide by means of lying in wait:or. ambush r 2 e Md a tt oe) , sd ae “eh sd "3 wt ° ‘ +e Py x Q tat ‘rite. ; . i ee an 25. te ans Ri Rint hy etiy . , ‘oh Fd at & : ee i Kidnapping and Aggravated Kidnapping " Defined. : ee its Insofar as we are concerned with the offense’ of... -: eS ef ‘et Kidnapping: ep oe. fx . A person commits the offense of kidnapping if hes either knowingly or purposely and without lawful. authority restrains another person by either secreting or holding | him in a place of isolation, or by either using or threalteting to use Physical force to hold said person, rs Aggravated Kidnapping: . . , ae a A person commits the offense of aggravated ‘kid~"*4" napping if he either knowingly or Purposely restrains: . o . "éee se “fe, énother person by either secreting or holding him infany Place of isolation or by using or threatening to use? of Physical force to hold said person for any of jthe followin particular purposes: ee “bSoe . é e & o- ° ft (a) to facilitate the commission of any (b) to inflict bodily injury on the victim, or’ Cc.» a3 ‘felony’to*: ee ie! © varie fet LB ee ta Ot S4R eke: Vrene OER 22 2a. - . . \ er © oe K vi ’ : ’ Se a a ain U \: “Lh Ce) to terrorize the victim, °° 1 8 hn, Ate » ps " A avis yt. Ke They ee meats Rae U4 Sexual Intercourse Without Consent Defined. A male person who knowingly has Sexual intercourse without consent, with a female, not his Spouse, commits +r: . 7 : a Fina ty the. offense Of sexual intercourse without consent z-.ity y A “ihe eats ; ° . ete "oe tek "Without Consent" means the victim is compeiled to submit by force, or by threat of imminent death, bodily injury or kidnapping, Or that the victim is incapable of consent because she is Physically helpless, st ate toed yoni geet" Physically helpless"’means. that.a Personuisvas 3: . ‘ . oe a Sake unconscious or otherwise Physically unable to commun os ted -t icate ‘an unwillingness to act e ¢ 27. Aggravated Assault Defined. certhind ty A person commits the offense of Aggravated. Assault 3% if he either Purposely or knowingly causes either: te. é . tn ’ (a) Serious bodily injury to another, or bras. (b) Bodily injury to another with a seapon. “ . te Weapon” means any instrument or article, or-sub- : Stance which, regardless of its primary function, fs |reaily capable of being used to produce death or serious bodily injury. 28. . ” Court Admonition to Jury. , It is your duty not to converse among yourselves or — with anyone else, or +o Suffer yourselves to be addressed. by any Person on any Subject connected with this trial, © or : ne a ° ot . “. et tah Mk f ef o% . - ae ' to form or express.any opinion thereon unti] the case is finally Submitted to you. I¢ anyone should attempt total tO you about the case, you will advise them that you have - . Selected as a juror in the case and that you are to talk about it. not permi If they continue to talk to you, it.will yOur duty to immediately report the same to the Court. alle Prag ay t =: cal reer Ceme, Vhetas tha nell Cre lb gate 0 cone acy 2 € ghd ¢ f° tA€ ee a ertleel Ogee «te CFE 4 : , 4 C- 14 Rca | "a x “Am a te He 7 4 i f Aarti ein ESS “— 7 « Maw POEs ae eri ee ea Lee ee haa hep * v ~sow® es tad + a0. dave ie BE BBS oo a, ee 4 s bad eS a) . St Fe ¢ Coeec, fer dep a af ot hte gay? w oo uw XN» i ee ae oe . a x > 7 ‘ Sst te - eae we? e@ «+ > - - — -——-— IN THE DISTRICT COURT OF THE EIGHTH JUDICIAL DISTRICT OF — A} THE STATE OF MONTANA, IN AND FOR THE COUNTY cP CASCADE ; 2.2.6.8 @ 2 @ & zs 2 THE STATE OF MONTANA, ) ‘ attics Criminal Case No. 6592-A i } | DUNCAN PEDER McKENZIE, JR., ADDITIONA | tliat} INSTRUCTIONS = TRY. : s— iS [5 ae: SS Ores 6 6 4 4 Ge Fes o “eet 2S Sy) L . 3 LADIES AND GENTLEMEN OF THE JURY: NO. 27 Requirement of Volunterv Act With a Mental State. A person to be guilty of any of the offenses charged in any of the seven counts charged in the Information must have committed the act or acts charged voluntarily, , While having with regard to each element contained in the law defining the offense one of the mental states con- tained in the said definition. I. The offense of Deliberate Homicide requires: thatthe - voluntary act (the Killing) have been committed by the defendant either knowingly or purposely or that it was committed in the comnission of a forcible felony. ba a ’ The offense of Deliberate liomicide by Means of Torty requires that the voluntary act (the physical infliction Of cruel suffering) be done purposely and in addition thereto that it was done for the particular. purpose of Cnabling the assailant either. Cc - 15 ze eee meee ew: ee ee eee ee a | ‘ (a) to extort something from the Person assailed; Or, | | 2, (b) to persuade the assailed against his or her will;| Vi _ VI. a : or 3 2" The Offense of Sexual Intercourse Without Consent 2 | ‘| (c) to satisfy some other untoward Propensity of the | | | requires that the voluntary act (sexual intercourse : 4 i se | de 8 | 4 without consent) be done knowingly. Be 0: > pian i \ | 5! : | at ; fense of Deliberate Homicide ini) Lying in f ‘ The Offense of Aggravated Assault requires that the ET 8. sale Pager erases ae Pees i (the Killing) . 7 voluntary act (the infliction.of serious bodily injury . ae ; be done purposely by > defendant who concealed himself ° ! 8 either with or without a Weapon, or the infliction of A ; 10! and watched waited for the Victim with the Particular ; . bodily injury with a weapon) be Gone either knowingly or E “" purpose of causing the death of the victs 10’ purposely. : 2; | , | 11. aoe | tee GI 9 NO. 22 | ag ;: The Offense of Kidnapping requires that the voluntary ' 3 I | 3 x act (the secreting or holding of a victin in a pinta ex’ : "i Mental State - Knowledge or Purpose — Manifested." bf 33 isolation without lawful authority, or the holding of } af The knowledge Or purpose with which an act is done is’ ia i said person by physical force oe threats thereof) be done H ey manifested by the circumstance connected with the offense : i He ? eicnal knowingly of purposely. ' a and the sound ae ee ee ead Persons are of J al ig : 7 v. 17. sound mind who are oe—insan $s in ag Tey Sept pitererdahp Z HHS I Fog, x re ae The Offense of a ted Kidnavoi Upon the trial of the issuee ta; feeee 7 i Ph aol ggravate Kidnapping requires that ; p © trial of the issues raised by the pleas of . i Be : the voluntary act (the Secreting or holding the victim oy “Not Guilty"to the Charges made in the Information, the | 7: r ile ie without lawful ity i ae ; a ie ee sit pote deagy anpelasahsps ariel | te i wful authority in a place of isolation, or the : : ‘dant is presumed to have been; sense at the time the ta tebes fe ae aN, holding of said person by physical force or threats thereof), | af orfenses are alleged to have been committed and to be a os fe 3 is, be done either knowingly or purposely, and in addition ! , Sane now. | ies } ee thereto that it be done for one of the following particu- : ' NO a — 3 aN lar Purposes: either : ‘ pas ; ; os (a) to facilitate the commission of any felony (in » Mental State - Methods of Proof j = a oe this case sexual intercourse without consent of the ! . The knowledge or purpose with which an act is i am Victim, or an aggravated assault upon the victim), or | " Committed being a.mental State, is incapable of being we (b) to inflict bodily injury on the victim, or wi Proved by direct evidence, and proof thereof is permitted (c) to. terrorize the victin. , Sp ‘ de by indirect or circumstantial evidence, which means proof ; , z ' by rules of law, denominated inferences and presumptions. . = | : | ; C=. me q ee 6 eae: ae ‘ cei — | = ——-—--- + - - ce) Cama ot ; as a means of proof. Neither is entitled to an reater Ls In considering the question of mental state (either ; . 7% ' P oe 2' weight than the other. i 2. knowledge or purpose) it is necessary that you understand f ! y ; ‘ 35 By way of example only, and to illustrate the | i the difference between direct and indirect or circumstan- es = ; 4 4 i a ‘ 4) difference between direct and indirect evieence and the $) tial evidence and the legal distinction between inferences i = " c ; : ‘ 5; difference between inferences and presu-stions of law, > and presumptions, so that you use and apply the correct. 3 : : ‘ ‘ , | E Oi you are instructed: \ G6 rule in evaluating the evidence, and in your determination c ‘ J ‘ 7! I 7. of the questions of knowledge or purpose. H y . 8, Proof by Direct Evidence (Testimony obtained through j 8 Direct evidence is evidence obtained through the use { ; 9. he use of any of the five sens S, and which 9 of any of the five senses, and which proves the fact in = of ¥ ‘ a ee 10: fact in question without the use of either inferences 2 10 question without the use of either inferences or presump- f ; be at ' : i ll. presumptions and which, if found true, conclusively eae Sot aes bee ak pay RE | ll: tions. 7 | ; | 12: such fact): 4 ad. 3 ! $ aa Direct evidence, if found to be true, is conclusive | re . : , The witness actually saw "A" pick up a board ana hit : si 1S, proof of the facts testified to. | | d . ; 7 te . . - ° “ ‘ ; P “ "B" over the head with it knocking "B" to the round with 33 14: Indirect evidence, also known as circ umstantial | 3 3 fF Bd. | 15 ' : é : ; | a bleeding head. He testified Only as to what he saw: | & evidence, does not prove the fact in question directly. i! -. ? : : r : 3 : . \ "A" picking up the board, hitting "B" “over the head with j; 3 we Rather the fact in question is deduced, that is reasoned, ; ° Rit : ’ H s > 4 ‘ : Ss 2. it and "B" being knocked to the ground with a bleedin t + 17 from a proved fact, or facts. Indirect evidence is of 1 3 g g : é ee hinds; necely grésenpttinds wad. deleceieue head. If the jury believes the witness it conclusively | : 7 ° . : —— > . - . . : . 4 19: A presumption is a deduction or reasoning which the proves without the use of inference or presumption only i 5 : \ "A" picked up a board and struck "B" over the f ; wig law expressly directs a jury make from proved fact or ‘ mpet Pp» P naad ; i j i a inju hereby. "A's" mental r z 21 facts; while an inference is a deduction or reasoning i with it and "B" was injured there Y 2 a i 3 : , _ 3 -- di it "B" over the } knowi: t 4 saat which the law permits or allows the jury to craw from the ° = Sed he Ait "B" over the head Misr, oO i { Pods : ¥ 23 i purposely to injure "B" -- has to be reasoned from the fact : ' fact or facts proved. : Sethe : : 3 24 Presumptions expressly direct you to reason fron A" picked up the board and from the manner an way he — . ’ \ 2 ‘ * th at 25 jatcniat della y L used it in striking "B", and from any other facts and “ : 28 Inferences permit you to reason from proved facts. ; circumstances proved in connection with the matter, erat; = i ; ‘ , , r 27 bs ¢ indir a Vv | £ It is not necessary that facts be proved by direct ! *S proved by indirect or circumstantial evidence | 5 23 yee | ion). | z evidence. They may be proved also by indirect evidence SARE ROR Oe Pian : i a 29 . Mee : 7 e j ¥ , Ot by a combination of both direct and indirect evidence. i . . | : AY) “ i i mS é ic rid ° : 3 . Both direct evidence and indirect evidence are acceptable . 8 sngizest or_tircunstantial Evidence | c -18 | | C = 19 ' ' ‘ ' (Deduction or reasoning which the jury makes from \ facts proved): i. Proof by Inference (Deduction which the reason i) h of the jury makes from facts Proved without an express direction of the law to that effect). The witness heard a cry for help, he immediately i looked out of the window and Saw only two men: "A" holding a board, was Standing over the bod of "B” who was unconscious on the ground bleeding from a wound in his head. He did not see "A" strike "B" and testified only as to what he saw and heard. Other evidence was ee introduced to show that the board then held by "A" had blood on it which was the Same type as "B's" blood, and that "A" had a motive for striking "B” and had made ' threats ec2inst "B", If the jury believes the witness and the other evidence which was introduced they are permitted to decuce; thzt is, reason therefron that "A" struck "B" with the board and that he dia so intentionally; that is. knowingly or purposely. 2. Proof by Presuzotion of Law (Deductions which the law expressly directs to be made from Particular facts He The witness heard a cry for help. He immedia+ sely : : looked out of a window and saw only two men; "A" holding a board and standing over the bocy of "B" who was Other evidence was introduced to show that the board then i! 4 ! unconscious on the ground and with his head bleeding. | held by "A" had blood on it which was the same type as ! "B's" bloc? and evidence was introduced that "B" had been. : Struck on the head three times by the board to show that ] JS Cc = 20 ds — ee ee teens sree i aes Sat inh i 2 i Re cs Rb ae ln an Bee Abe tay ol RAP eA Saag 4 ia oa uw S lod ee w - the striking was not accidental. No evidence was intro- duced as to a motive for "A's" Striking "B" and no evidence of threats by "A" against "B" was introduced. If the jury believes the witness and the other evidence introduced they are permitted to deduce or reason that "A" struck "B" over the head with the board intentionally and for the purpose of injuring him but in addition thereto the law presumes, that is, the law expressly directs the jury to reason: That an unlawful act was done with an unlawful intent and also that a person is presumed to intend the Ordinary consequences of his voluntary act. Having found that "A" struck "B" over the head with a board three tines, intentionally (absent any evidence that the act was in self defense by "A"), "A's" act was unlawful and the jury is expressly directed to reason that "A" struck "B" with an unlawful intent: that a8. knowingly or purposely and is further expressly directea ! to reason that he intended to inflict the injuries that Ordinarily result from such an act. There are other legal presumptions besides those referred to in the foregoing illustration and you will be instructed with particularity as to the use of inferences and presumptions as they may have Noni ip acna aaa to peers Count with which the defendant is charged. | FUR SHOE s unless you are otherwise instructed with regard to a particular presumption, all presumptions are rebuttable; that is, they may be éontroverted and over- come by other evidence. C.=- 21 — a Ss ee —— - : ! : — Se ARES, Bet SOARS 2 ey See, 5 pee ee ei RE To ee eee Be Pr SII FES FD Tre Ae Oh ee ee ao - & WN Sete REPT. eee te OP. Particular Purrose Never to Bo Presu-aa In offenses which require proof of a particular purpose the particular purpose required may never be proved by means of legal presumptions, but must be Proved by means of inferences only. In this case the offenses of: Deliberate Homicide by Means of Homicsde=S 7 orang th-Heit-omstmbesh and Aggravated Kidnapping all require Proof that the defendant committed the particular act cherged for a particular pursose, in acdition to proof that he comnitted said act either knowingly or purposely. NO. 22 of Proof Asplicabdle to the Offerse of The rental state acccmpanying the voluntery required for the offense of Celiberate homicide : either knowingly or purposely and not resuiring in addition thereto that the ect be comnitted for a pérticu- lar purpose, proof of the mental state may be made by the use of either inferences or presumptions, or by the use of both inferences and presuxptions. I. Proof of Mental State by Inference. If you find from the evidence beyond a reasonable doubt that the defendant, on or about January 21, 1974, in Poncera County, Montana, in the commission of a ' voluntary act, Caused the death of Lana Earding, you are permitted from that fact alone to deduce or reason that he did so either knowingly or purposely, if no circun- Stances of mitigation, excuse or justification appear in’ - C - 22 t ‘ ; Torture, Destaorsre. 4 a ee —ST oS oo tO, ee ee ee. a % : 92. ‘ = | therefroa that the defendant intended to cause said A NO. oe : s : j death regardless of whether or not he act ual P , ec ac a ee ee ' 5: Methogs of Proof Asslicable to Deliberate “onicicée an intent or purpose. ; , by “e2as Of Torture . ' 6] . This also is a rebuttable presumption capable of 2: The mental state of purposely ass2zulting another being controverted and overcome, but once it has come my physically to inflict cruel suffering uson that person i into effect it is for the jury to determine whether or g OF @ particular purpose cannot be proved by using the | not it has been rebutted. , - legal presumptions you have been directed to use in the i : 0 : H III. Proof of Deliberate Homicide by Comnission of , proof of deliberate homicide, and must be provea by the a Forcibdie Felony. il. } use of inferences alone. Under subdivision (b) in the definition of deliberate 12 $ ; a ‘ ‘ | i Therefore, if you find from the evidence seyond a “ homicide you have been instructed a homicide is deliberate sf : ~ : : Yreason2dle Goubt that the defendant, on or about January , homicide if it is committed while the offender is an ; " 21, 1974, in Pondera County, Montana, purcosely assaulte:. engaged in the commission of, or an atten ipt to comait iH 15 : i id 5 i, i ) ' Lana Earéing physically ané inflicted ervel suffering t J e ~ - © 6 - - - - te sexual intercourse without consent, kidnapping or an : : ; rin . ; 17” upon her ard in so doing caused her death, you are | . . I: ‘ other felony which involves the threat of any physical } I ; : s £ 4 ! ; 1 , permittecé to infer, that is, deduce or reason fron the . 2 : . . . : e ' force or violence against any individual. J ; ~~ ; : | S16 19. facts and circumstances wnich are proved in connection : Sexual Intercourse without consent, Kidnapping and : ; e+} . therewith, that he did so for one or more of the } Aggravated Kidnapping and Aggravated Assault heave been ~ : 3 i 2) particular purposes charged; either, r defined for you. All of these offenses are Felonies hi (a) to extort something from her, or which involve the threat of physical force or violenc ce , ° ° (5) to persuade her to co something asainst mez against an individual. i kt ees = ~ oF will, oF Therefore, if you find fron the evidence beyond a ohare (c) to satisfy some cther untoward propensity of reasonable doubt that the defendant, on or about January | w =ana - 23 the ceftendant. 21, 1974, in Pondera Count Montana, while engaced in: : : ' ’ Y, ’ 39S 27 And if you find one or more of said particular purposes --- = the offense of Sexual intercourse without co; : ¢ nsent, 2g. to have been proved beyond a reasonable doubt and that or in the offense of kidnapping, or in the éiténse of i ; c : 29 the cefendant killed her while purposely so inflicting epereretan kidnapping, or in the offense of aggravated " assault, ---- caused the Geath of Lana Warding, the sau $o crucl suffering upon her, he has comnitted the offense of has declared that he has committed the offense of C = 25 -_-——- a ee ee + mm + ——_— ee ee eee eee eee ee a ee Cc -"24 Deliberate Homicide by means of Torture, whether it was or was not his purpose or intention to kill her. NO. *. f; 3 Ont FOR BQ ef — My Ce 64 «... Method of Proof Advlicable to Deliberate sie Oy Sas Ser sy Lying in wait or sndush The&\mental state of purposely secreting oneself and watching ard waiting for a person’ 4 slling that person is a particular purpose when the particular purpose of,; offense and cannot be proved by proof of Deliberate iomicide, and must be proved by the use of inferences alone | from the evidence beyond a | ¢ Therefore, if you fin reasonable doubt that the Gefendant, on or about January } ‘ " s. | 21, 1974, in Pondera County, Montana, purposely secreted i x himself and watchea and waited for\Lana Harding and then ' killed her, you are permitted tc infe’ ig is; deduce } Or reason -therefrom ané fron @ll of the ha and vA ‘ circumstances proved in connection therewith that it was / his’ particular Purposé to kill ee, her, and to find\peyond ‘@ reasonable doubt that the Cefendant committed the offense as charged. am meee = = F Vay ig Method of Proof Acslicable - Kidnaocing — z —-— fee ee et eae ep acd te The offense of kidnapping is a lesser offense included in the charges of Aggravated Kidnapoing made in Counts * 3 and 4 of the Information. 1439 ’ t The charge of kidnapping requires that the defendant , C = 26 the use of the legal | ¢ , , : : I Presumpticns that x have been instructed to use in the : ee ee County, Montana, without lawful authority, voluntarily need only to have either knowingly or purposely, without unlawful authority, restrained Lana Harding by secreting or holding her in a place of isolation, or by using or | threatening to use physical force to hold her. It coes not require, as does the offense of Aggravated Kidnapping, that the defendant have had in addition to such unlawful restraing a particular purpose in mind, : . i Rt ele such as the pursose to comnit sexual intercourse without , : as 7a "i her consent, or to inflict bodily injury on her, or to t \ i terrorize her. | Therefore, the mental state of either knowincly or ° . ° 2 tenn yar purposely restraining Lana Harding may be proved by wes of inferences or presumptions of law or by the use o rh h ; ce ' both inferences and presumstions of law. | I Proof by Inference If you find beyond a reasonable doubt that the defendant, on or about January 21, 1974, in Pondéera restrained Lana Harding, either by secreting her 6 2 place of isolation, or by using physical force, or by threatening to use physical force to hold her, you are | permitted to reason therefrom and from all other facts i and circumstances connected therewith that he did so either knowingly or purposely. Il. Proof by Presuxmstion If you find beyond a reesoneble doubt that the defendant, on or about January 21, 1974, in Pondera County, Montana, without lawful authority, restrained 5 > - 2 2 s ’ Lana Harding, cither by secreting her in 2 place of isolation, or by using physical force, or by threatening C =27 . eee oe ac est sb reas | F re a 544 ‘, ™ 3 Fi $3 sah“ « }- , “ty? Awe #:° owe ee ee ee ee ee ee eee eee ; 5 ie , = 7 ee eee eee Ck - - : a. pe 1 to use physical force to hold her, the law presumes that j he acted therein with an unlawfu] intent, Purpose or i knowledge, and expressly directs you to so reason. This presumption in law that an unlawful act was done with an unlawfy) intent is as you have heretofore been instructed, a rebuttable Presumption subject to being controverted and Overcome by other evidence as you may find the evidence to be. Pe NO, * & Metho? of Proos - Accravated Kidnavosing The offense of Aggravated Kicnapping, in addition to : ¢ the proof required to prove the offense of kidnapping, | i ‘ requires proof that the kidnapping was committed for a 1 Particular pursose. | In this case Count 4 recuires Proof that the Kig- | napplng was for a pérticular pursose either to inflic+e bodily injury on Lana Harding, or to terrorize her ‘ang “A ae Count 3 requires that for the Particular, purpose of the commission of a r . ' to commit an Aggravated Assault on 4 i) | Therefore, if you find beyond a reasonable doubt that felony: either sexu2l] intercourse with Lana Harding without her consent, or her. the defendant, on Or about January 21, 1974, in Poncera County, Montana, die kidnap Lana Harding, DSefore he can be found guilty of the offense Of aggravated Kidnapping as charged in the Information, you must further find ~~ es eet - beyond a reasonable Coubt that he acted While having at least one of the Particular Purposes charged. C = 28 . ee ee —— ——~ Se oe | | — > SE doe a te aL ae Since a particular purpose may never be presumed in law, the mental state of cither kaowingly or purposely secreting or holding for a particular purrose must be Proved by inference oniy without the use of any presump- tions of law. This means if you find keyond a reasonable doubt that the defendant did kidnap Lana Harding, you are permitted facts and circun- - in connection therewith that he did sc with one or more of the particular purroses chargec in to deduce or reason fron any and all Stances proved tka ees NO. CO= RoDdlicable to Sexval Intercourse I. Proof bv Inference . You are permitted to deduce, that is reason, fron facts proved beyoné a reasonable Goubt: That the Gefendant on or about the 2lst day of January, 1974, in Pondera County, Montana, without the consent of Lana Harding, who was not his wife, knowingly had sexual intercourse with her, and to find beyond a reasonable doubt, that he committed the offense of sexual inter- course without consent as charged. II. Proof by Presumotion Since the offense of sexual intercourse without consent Cees not require that the act be done purposely or for a particular purpose and may be ‘proved by showing the act was knowingly Cone, proof of such mental state can be made by presumption. Cc .; 29 eet sebastien an — SSS. 9 SS SS, Pr em... © damn cane ceed Bue enotes ee @ s | ® ® _t__-—- -— - | | Seen oe i ete sre ec lee ; . = : : a si apbelemmmnetaniinosil : resun hat an unlawful 3 ; 7 * Therefore, since the law presuncs tha n 1; TI. Proof by Presunptions i act was done with an unlewful intent if you oe 3 | ‘ af Since the offense of aggravated assault may be } facts proved beyond a “eee eee it 3. comaitted either knowingly or purposely, the offense may 5 : os : 1a, ito ' ' St . ian i qe mie — | i sf be proved by showing the act was knowingly cone, and the P aa had sexual inte i eR 7 | @ S: legal presumptions that: “An unlawful act was done with e = ¢ wife, and ae her ee are canis irec mA i 6 an unlawful intent, and the betal scesweton char « E + ‘ be tenho thersteon, shan Re O50 ep Knowingty, ane you | ; ‘ ' 7° person is presumed to intend the Ordinary consecuences | HE 2 8 may find therefrom beyond a reasonable coubt that he | WE Wk Mebane ask Sac be Ghai Vie abe eda i = m committed said offense as charged. | F a state of knowingly. | : fa. ‘Ho a) re of & a : . : 10° This presumption that an unlawful ect se eens | 10: Therefore, if you reason from facts proved in the | & Bs ” ah SARANERE -SREanS ” pee adi nar ies = ii . \ a evicence beyond a reasonable doubt that the Cefendant on iz = 12. to being controvertec and overcome as you may find the i iF ; | 12 or about the 21st Gay of January, 1974, in Pongera County, > H t - ‘ aaa 13, idence to be. . i |: [en =| evide i 13 Montana, unlawfully caused Lana Herding bodily injury ; | iis a 5 ° & . $ (ae. = 14: i : i = ij Po | 2 > . . e rm “ Lie ay \ xO. “4 ) eh either with or without a weapon, the law expressly ; i oS : g . d j 4 H " : ; . , : : . | 20 | 20: proving that each link in a chain of evicence used to | 1 ; ; H 21 | NO. 4 / \ ! 21) show guilt is consistent Only with guilt. Any proved ; [.: i : i ) 1 gare dt | 22 : j 22! - fact or circumstence when considered by itself may give iat , a Procucticon OF All Evidence ‘ot Resuire2 “ oe 4 ; ’ ; i ; . : e . e-. . . ° : 4% i> ‘t | 23 P - * . o e ‘ H “y 23. rise to-an inference which is as equally consistent with al L 1 a Neither the prosecution nor the Cefense is recuired e° ; "ett, ie , . ° 4 24 ? 7 . . : . ‘ al ° | 24 . . . “ ‘ +e 4 ; ‘nnocence as it is with guilt, but all of the proved (." | to call es witnesses all persons who are shown to have: : re,’ : & Sab os Li : 25 2 = ‘ ie : : : 25. facts and circumstances when considered together-.must be ee : been cresent at any of the events involved in tre evidence, 23 : : : ;} 1 A sens’ 26 | 2 e { consistent only with a hypothesis or ‘inference of guilt ‘ ” Or WhO Mav arsear to have some knowledge of the matters ; 27 . ° P . : e.£ { Cnt 27 . . ° . * es | j ‘ and inconsistent with eny Otner rational inference or tt. in question in this trial; nor is the Prosecution or i 28 i : 28 . F > > J . ! ; deduction. } defense reguired to produce as exhibits 211 objects or ‘ 29 ; 2 ; 29 | ; , ments that have been referred to in the testimony, f | ; ocument Y SO t le Ate) ; ‘ ; or the existence of which may have been susyested by the. iv fA ; ; sale i } evidence. } : ‘ i | \. ! | ~ 7? t F ' ; Cc. - 32 jae | ie : - es a “ 6 . © samme os i ee : oo ° ae 7 ea bint Atlantis. Gataniiy aie naka wi ee een ea eee eS eee EES ——---- = te eee ee (Fi ‘ NO. Direct are Circumstantial Evidence Cuvally Entitled to Consiceration. Two classes of evidence are recognized and admitted in courts of justice, upon either or both of which, juries ' lawfully may base their findings, whether favorable to the State of Montana or to the defendant, provided, how- that to support a verdict of guilt the evidence, ever, whether of | one kind or the other or a combination of both, | must carry the convincing quality reguired by lew. One type of evidence is known as circumstantial. The law makes no dGistincticn between the two classes 2s to the decree of proof recuirec for conviction or as to their effectiveness in defendant's each for such convincing force as it favor, but res >ects - arse teed may. carry accepts each as a reasonable method oz proof. NO. a $ Erp ‘| Rezarcdincs Failure of Defendant to Test -\. It is a Constitutional right of'a Gefencgert ina criminal trial that a defendant may not be ecese.ied to testify. 2s direct asd the other: In @eciding whether or not to testify, the Cetendant . may ch the failure, if any, of the prosecution to prove every essential element of the particular charges asainst hin. No lack of testimony on the defendant's part will susp of croof by the prosecution so as to support by itself a finding against hin on any essential element C - 34 Loose to rely on the state of,the evicgence, end uson me ne — ee 1 uw | » Of a particular charge or charges. - If the defendant chooses not to testis to consider his choice in any ma i mann i y er as evidence against ; him nor to allow it to prejudice your celibcrations in : any way. NO. wit Crecibility of Witresses and Prosens tion of Truth. mo J The jury are the sole and exclusive judges of the effect and value of evidence addressed to th credibility of the witnesses who have testified in the y? Meas ; 3 case. The tern witness"includes every berson whose te mony ur t iv ! y under oath has been received as evicence, whether hy examination here in court or through derosition. The character of the witnesses, as shown by the evicence, should be taken into consideration for the purpose of determining their credibility, that is - eee tah 7 — ‘ ‘ whether or not they have scoken the truth. The scrutinize the ‘manner of witnesses while on the stand 7 ’ and may consider their relation to the case, if any, and hei a3 P ’ , also their degree of intelligence. A witness is ssosumes t+} kel eater fe —— to speak the truth. This brssisscten, h wever, may be repelled by the manner in which he testifies; his interest in the case, if any, or his bias or prejudice, if any, for or against one or any of the parties; by the character of his testimony, or by contradictory evidence. A witness may be impeached also by evidence that at Other times he has made statements inconsistent with his present testimony as to any matter material to the cause on trial. . ; @ = 35 nem ana of the ~ fo - “nee o-euiabt 6B Lodhi A . sti- — *Y you are not! ju v- .4y A YE AK ! 8 of i |: 1» A witness wilfully false in one material part of his 2° or her testimony is to be distrusted in others. The jury f ! 3. may reject the whole of the testimony of a witness who has | 4. wilfully sworn falsely es to a material point. If you ; : H 5, are convinced that a witness has stated what was untrue i 6 as to a material point, not as a result of mistake or 7, inadvertence, but wilfully and with the desicn to ; 8 deceive, then you may treat 211 of his or her testimony | ' 9 with distrust and suspicicn, ané reject all unless you i . j ‘ 10 shall be convinced that he or she hes in other particulars 11 = sworn to the truth. | | 12 of NO. —_ e 13 se | 140 impeachment Sv Contradcictery Statements. | ; |! : , : if r 15 In respect to eny attenst to impeach a witness by »* ‘ > 16 showing that on some former occasion he made a statemen+ fF ‘ 4 . “ . . . 17. or statements that are contredictor y Of his testimony i 18 here, you are instructed that the eviderce of any such | 19. contradictory statenent is not received for the pursose 1. i 20° of proving the truth of what then was said, but Only for the t 21° purpose of testing the credibility of the witness; you ‘ , ” . ee ; ! 22. are permitted to consider such ‘evidence only for that : 25° purpose, and you are the-exclusive jucges of the effect .- er of such evicence’ on the witness's credibility. : ’ 25 ; at : aS : ts XO. ae { At 26 { ALS | \e 27 Recarcins Excert Testizmonay i os i ' 1 28 eka A . -* —- +4 ; ; ; Lal ° ‘ Duly guaiificd experts may give their opinions on ' ' 29 questions in controversy at a trial. To assist you in ” deciding such guestions, you may consider the opinion ‘ ; : : | . ‘ C*= 36 2 ee oO ~~ lS a wu » SS rer tee, w 2 2se sres © oe o @ s i=] ~ °o - ll: with the reasons stated therefor, if any, by the expert who gives the Opinion. You are nor hound to accent the . rs ic Opinion of an expert as conclusive, but you should give to it the weight to which you shall find it to be entitl You may disregard eny such opinion, unreasonable. NO. ee . : Regerdinc Evidence Admittes FOr a Limiteg Pursose At times r ei hi throughout the trial of this case evidence was admittea mitted for a limited PUrpose or durposes, You are e 2ce - Su mee p > Or purposes for that purpose or those pur € Poses only. NO. Direct Evice The direct cue. to full credit is sufficien evidence = os ris tes : ; mee O. One witness who is entitled for proof of any — ae this case, Distrust of A wi 7 - : itness wilfully faise = One meterial part o¢ testimony is to be distrusted in Other parts thereof NO. “0 : . Regerding Court Rulinas on Evidence At times throughout the trial, the Court will be called ane to pass on the que stion whéth Or not certain IC} é offered evidence May preperly be admitted. yoy if you find it to be | / ba, i i ! ed. : : 7 5 F : ~ . Se ee © oe case oqcemsame commece are not to be concerned with the reason for the rulings 2nd are not to draw any inferences from then. Whether offered evidence is acmissible is purely a question of law. In admit*ing evidence to which an objection is made the Court does not Cetermine what weicht should ke given such evidence; nor does it Pess on the credibility of the witness. As to eny Offer of evidence that has been rejected, or an evicerce that has been ordered y Stricken out by the Court, you, Of course, must not con- sider the same; as to eny guestions as to which an objection was Sustained, you must not conjecture as to what the answer might have been, or as to the re2son for the objections, nor may you draw any inferences from the question itself. NO. AT Do Not Sceculate or Mate Unwarrantea Inferences Do not speculate, conjecture, or make unwarranted inferences as to what the facts might be, and do not assume the existence of any facts unless there is evidence to justify the conclusion. Nor c@n you act upon any information, other than the evidence given tec you in court; that is, Stipulations of counsel, exhibics admitted into evidence and witnesses whose sworn testimeny is given and admitte3 in court. You shoulc all of the evidence bearing consider either way on the guestion presented to you, regardless of which side has procuced it. You are not bound to decide in conformity with the cumemes + somes « ei . oS s+ ee emcee 2 ee ee ae eee ee” ——— tt me mnie tee ce 5 testimony of a number of witnesses which does not produce eee pees ee Aone ee conviction in your mind as against the Ceclarations of a lesser number, or a presunpti appeals to your mind with mor This rule of law does not liberty to Gisregard the test of witnesses merely fron capr desire to favor one side mean that you are not to Geci eS agéinst the other. on or other evidence which € convincing force. ‘Thean that you are at imony of the Greater nuxhber ice or orejudice, Or from a It does Ge an issue Sy the simple process of counting the nusber of witnesses who have testified on the Opposing sicges. It test is zorce s the relative convincing NO. not in the relative number of witnesses, but in of the evicence. S 2 in Wait or The charge of Deliberate Homicide By Lying in Wait or to Count II of the Information filed against NO. concern yourselves with this Cherge, contained AmDush has been dismissed by the Court and you are not: the defendant. t | | pa a Eee - ay aa ln as ae maS _ ’ ; i! Defense of | Vental Disease or Defect f Excludicg ® hG Resdonsibility. ; 2 pe ' 3: The defendant has served notice on the Court that i! af he suffers from a mental disease or defect which excludes ! i 5|| his responsibility for the acts charged against him by | \ | 6 | the State of Montana and that he intended to introduce i : ! | 7); evidence in support of this si aa y te NG epaeatace 8 j) By thisnotice and defensejdce’ not admit that he 1 ; |! 9|' committed the acts charged against him, but in effect says h ' 10" if you find beyond a reasonable doubt that I did do said |! , i! au! acts or any of them, that because of a disease or defect } } 12: of the mind fron which I suffered I was unable at that time 3 ‘ 1 i: | 13 | to appreciate that said acts were criminal, or fa the H oy alternative, if I did appreciate the criminality of the ; 15: acts I wes unable because of said mental disease or defect 74 fe ae 26! to avoid the connission Of said acts. H & yr 175 . il. Pu 18f} Mental Sisezse or Defect Excluding | Resdsonsisiiicy - Derinition. | 1S ji : eae ; A person is not responsible for crinina} conduct, i 20}: ; if at the tine of such conduct, as a result of a mental 2i |i q | disease or defect he is unable either tO appreciate the i 22! , . criminality of his conduct or to conform his conduct to 4 23, H requirenents of law. 7 24 | ‘A " The tern "mental disease or defect" does not include’ 25: { an abnornality or subnornality of the mind manifesteg 25 | Only by repeated crimina) Or otherwise antisocia] conduct, 27° | | but does include any mental abnormality or subnormality 28 } : that has reached: the degree that a person affected thereby; 29° ; 1S unable to spprectate that an act is criminal; that is, 30 2 | i 3 7 ; i i i 247 Cc = 40 4 Hi} ne ee ee —— a a rm eee Cas oe that the act is wrong and is punishable by the law, and | 1 it also includes such Persons who may know that acts are wrong and are subject to Punishnent, but ere unable to Fee eee avoid the commission of the prohibited acts, because <> os Fete Of some mental] abnormality or Subnormality, = = os In the degree of their individual Physical attributes and adilities people differ, and, likewise, they differ individually in their degrees of intellect, ett teat ietaa te wo tecs 7 their ability to understand and @éppreciate, their knowledge, their learning, their morality and in the ' degree that each is able to resist doing thet which he or i she knows to be wrong and punishable by law. ! The law in order to protect the individual person and his or her rights recognizes that these T2°° 0 cee wae ome. “aes “Saco aan mental differences exist, but in order to protect h society the law Coes not measure and it does not even attempt to measure mental differences in individuals) until and unless the differences jn Guestion have the point that the differences can he truly terned a ren disease Or defect which precludes the power of thoy ie and reason and either renders the afflicted person i incapable of appreciating that an act is Criminal, or. is unable to resist doing the crininal act because of saig:; i e ‘ . mentai disease or defect if he does apprecta te the i critiinality thereof. | Khen the defense of mental disease or defect excluding responsibility for crimina} conduct has been rf interposed the jury must deternine under the definition | thereof given by the Court and from all the evidence in ‘the case whether or not the defendant’ suffered fron P fed* Se Rtensemccee 5; reached 21 £ 7 =. = : : * 7 : ; a 4 : b 4 . . a : ‘ F , ‘ ) =. == —— SS ee vw = ~ tein ea ae a Ln oe ey —S ee tee =) ~ ne ————— SS wo KY —S— = “st ero such a disease or defect of the mind that it excludes his responsibility for the conduct Charged against hin. Fil ; ; Burden of Proof - Mental Disease or Defect | Excluding Responsibility For Concuct. i | Mental disease or defect exluding responsibility for criminal conduct is an affirmative defense, which means that the defendant must give advance notice thereof and prove this defense by a preponderance of the evidence. : By a preponderance of the evidence is meant such evidence as when weighed with that opposed to it has the more convincing force and the greater probability of truth. : The law has placed this burden on defendants in * criminal cases because in lew al} persons are presumed ““ “anes - ene tt AB ia cectia hivtan Cn Aer es 4 ee 625 Po 7. aa on Seles . {that is the law expressly directs the jury to so PAK Kees >. elec et ur This presumption that all parsons are ssane i i " reason). and are accountable for’ their conduct is a rebuttable : ' i presumption which the defendant has the burden of I controverting and overcoming. | to be s2ne and to be accountable for their conduct pe thlcece ts + S. Therefore, if you find beyond a reasonable doubt ' I! that ‘the Gcefendant did do the act or any of 'the ects i " charged against him you are expressly directed by the Taw to deduce or reason that at the time of such conduct he was able to appreciate the criminality of his conduct and to conform his conduct to the require- ments of law. . | To overcome this express ateeetion of the law the. — Ss or ee C = 42 249 a ae defendant must prove by a preponderance of the evidence, t that he suffered from such an abnormality or subnormality ; ; | of the mind at the time of such conduct that the jury can- mot say thet it does not have a reasonable doubt as to his responsibility for such conduct. | Since the defendant, by the interposing of the defense of disease or defect of the mind which excludes responsibility for conduct, does not adnit any of the acts charged against hin, and since the defense goes only to the mental responsibility end control of thewe efendant, I you should first determine from the evidence in the case: beyond a reasonable ccubt whether the defendant did do I the acts charged against hin in the Infornetion, If you | ' find beyond a reasonable doubt that the defendant did tot Said acts or any of them you must then consider whether it Or not the defendant has overcone the presumption of i accountability thd whether Or not he has created.a i reasonadle doubt in your minds as to his mental aegis bility end responsibility for any of the acts you nay find he. connitted, and Whether or not he could have had i the ‘requisite mental state for the act or acts which you ': have found he conmitted. Q i c= Ww % $2 SSS PSST o Ss | — o~—=. ame on. =o expe 2. ac amae.e © —- - | = _ St. If you adopt the Guilty of Aggravated Assault C = 49 "= at SS. S.S SS sTs , ~ + FH A ses Te a verdict form, have your foreman date and sign the form and return with it to the Courtroon. " verdict form, you are required to reach a verdict on j i. the remaining charge of kidnapping. i VI. f Verdict Forns - Kidnapping If you have adopted the verdict form Not Guiity of Deliberate Homicide and the verdict form not guilty q4 2S". of Aggravated Kidnapping and the verdict forn tot Guilty; of Sexual Intercourse Without Consent and the verdict form Not Guilty of Aggravated Assault, you have been furnished with a verdict form upon which to return é verdict of Guilty of Kidnapping and a verdict form upor’ which to return a verdict of Not Guilty of Kidnepoing. » ” ? " : If you adopt the Guilty of Kidnapping verdict form, have your foreman date end sign it and return with h " it to the Courtroon. " If you adopt the tot Guilty of Kidnapping verdict form you will have acquitted the defendant of all ; charges made against him, and rather than returning separate and multiple Not Guilty verdict forms, you heve been furnished with a verdict form for Hot Guilty - of Any of the Offenses charged against hin. Have your foreman date and sign this verdict and return with it to the Courtroom if this if your verdict. VII. 2 OS + errs reer se Verdict Form - Not Guilty of any of the Offenses China This form is for your use if you find that the defendant is not guilty of any of the offenses charged Cc - 48 jo against him, and have not adopted the verdict form of Kot Guilty of any of the Offenses charged because of a Mental Disease or Defect which exludes repsonsibility for conduct. —™ “ce @* we Da sincenind PA » PU ge b Pi bY : s | Se eS SE STM. A ET ee er emer ee ater. i le tied tee ee a i rt oe ee dt Le Sew te eT 2.3% 13 Se PFS SITET? PPS 2, 2 ? —— i { ; i CONSTITUTIONAL AND STATUTORY PROVISIONS —— 1. This case involves the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the Constitution of the United States. 2. This case also involves the following provisions of the Montana Revised Codes Annotated (1976 supp.) : §94-5-101: “Criminal homicide. (1) A person commits the offense of criminal homicide if he purposely, knowingly or negligently causes the death of another human being. (2) Criminal homicide is deliberate homicide, mitigated deliberate homicide, or negligent homicide." §94-5-102: "Deliberate homicide. (1) Except as provided © in section 94-5-103(1) (a), criminal homicide constitutes deliberate homicide if: (a) it is committed purposely or knowingly; or (b) it is committed while the offender is engaged in or is an accomplice in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, sexual intercourse with- out consent, arson, burglary, kidnaping, felonious escape or any other felony which invoives the use or threat of physical force or violence against any individual. (2) A person convicted of the offense of deliberate homicide shall be punished by death as provided in section 94-5-105, or by imprisonment in the state prison for any term not to exceed one hundred (100) years." .§94-5-105(1974 supp.): Geliberate homicide the courts shall impose a sentence of death in the following circumstances, unless there are mitigating circumstances: (a) The deliberate homicide was committed by a person serving a sentence of imprisonment in the state prison; or ' (b) The defendant was previously convicted of another deliberate homicide; or (c) The deliberate homicide was committed by means of torture; or (d) The deliberate homicide was committed by a person lying in wait or ambush; or Appendix D =- 1 ee cee ee a ao (e) The deliberate homicide was committed as a part of a scheme or operation which, if completed, would result in the death of more than one person, "—/ §94-5-303: "Agcravated kidnaping. (1) A person commits the offense of aggravated kidnaping if he knowingly or purposely and without lawful authority restrains another person by either secreting or holding him in a place of isolation, or by using or threatening to use physical force, with any of the following purposes: (a) to hold for ransom or reward, or as a shield or hostage; or . (b) to facilitate commission of any felony or flight thereafter; or (c) to inflict bodily injury or to terrorize the victim or another; or (d) to interfere with the performance of any governmental or political function; or (e) to hold another in a condition of involuntary servitude. (2) A person convicted of the offense of aggra- vated kidmaping shall be punished by death as provided in section 94-5-304, or he imprisoned in the state prison for any term not to exceed one hundred (100) years unless he has voluntarily released the victim, alive, in a safe place, and not suffering from serious bodily intury, in. which event he shall be imprisoned _/. Subsequent to January 21, 1974 (the date of the crimes peti- tioner was tried for), the Montana Legislature amended the 1973 Geath penalty statute. Montana Session Laws 1974, c. 126, effective March 11, 1974, amended Mont. Rev. Codes Ann. §94-5-304 to make the death penalty mandatory for aggravated kidnaping. Montana Session Laws 1974, c. 262, effective July l, 1974, amended Mont. Rev. Codes Ann. §94-5-105 to make the death penalty mandatory for deliberate homicide when the victim was "a peace officer killed while performing his duty." In 1977 the Montana capital sentencing system was again substantially overhauled, by privisions: requiring in all cases where “a defendant is found guilty or pleads guilty to an offense for which the sentence of death may be imposed" a "separate sentencing hearing" before the trial judge to determine the existence or nonexistence" of aggravating and mitigating circum- Stances, 2206.6, R.C.M. 1947 (1977 Supp.); declazing admissible in that proceeding “evidence . .. as to any matter the court considers relevant ... including .. . facts in mitigation or aggravation," Id. at §95.2206.7, Gefining what those circum- stances are, Id. at §95.2206 and §95.2206.9, and providing for expedited review of both sentence and trial errors by the Supreme Court of Montana. Id. at §95-2206.6 to 95-2206.15. As of the writing ¥5-5-304(1974 supp.): "Sentence of death for aggravated kidnaping. A court shall impose the sentence of death following conviction of aggravated kidnaping if it finds that the victim is dead as the result of the criminal conduct, unless there are mitigating circumstances." §95-501(1969) : “Mental disease or defect excluding responsibility. (a) A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he is unable either to appreciate the criminality of his conduct or to conform his conduct to the “requirements of Law. (b) As used in this chapter, the term ‘mental disease or defect' does not include an abnormality manifested only by [repeated] criminal or otherwise antisocial conduct." §95-701(1969) : "Searches and seizures -- when authorized. A search Of a person, object or place may made and instruments, articles or things may be seized in ae oe with the provisions of this chapter when the search is made: (a) As an incident to a lawful arrest. (b) With the consent of the accused or of any other person who is lawfully in possession of the object or place to be searched, or who is believed upon reasonable cause to be in such lawful possession by the person making the search. {c) By the authority of a valid search warrant. (a) Under the authority and within the scope of a right of lawful inspection granted by law." §95-703 (1969) : §95-502 (1969) : “Evidence of mental disease or defect admissibie when relevant to element of the offense. Evidence that the defendant suffered from a mental disease or @efect is admissible whenever it is relevant to prove that the defendant did or did not nave a state of mind which is an element of the offense." §95-503 (1969) : “Mental disease or defect excluding responsibility is affirmative defense -- requirement of notice e= form Qf verdict and judgement when finding of irresponsibility is made. (a) Mental disease or defect excluding responsibility is an affirmative defense which the defendant must establish by a preponderance of the evidence. r- (b) (1) Evidence ,of mental disease or defect excluding responsibility is not admissible unless the defendant, at the time of entering his plea of not guilty or within ten (10) days thereafter or at such later time as the court may, for good cause, permit, files a written notice of His purpose to rely on such defense. : (2) The defendant shall give similar notice when in a trial on the merits, he intends to rely on a mental disease or defect, to prove that he did not have a particular state of mind which is an essential ' element of the offense charged. Otherwise, except on good cause shown, he shail not introduce in his case in chief, expert testimony in support of that defense. (c) When the defendant is acquitted on the ground of mental disease or defect excluding responsibility, the verdict and the judgment shall so state." "Search warrant defined. A search warrant is an order in writing, in the name of the state, signed by a judge, particularly describing the thing or place to be searched and the instruments, articles or things to be seized, directed to a peace officer, commanding him to search for personal provcerty and bring it before the judge." §95-704(1969) : “a =~ v= WAennnaAc ee we eee ee search warran=. Any judge may issue a search warrant upon the written application of any person that an offense has been committed, made under cath or affirmation befor2 him which: (a) States facts sufficient to show probable cause for issuance of the warrant, (b) Particularly describes the place or things to be searched, and (c) Particularly describes the seized." things to be §95-705 (1969) :' search warrant Eollowing: "Scove of search with warrant. A may authorize the seizure of the (a) Contraband. (6) Any instruments, articles or things which are the fruits of, have been used in the commission of, or which may constitute evidence of, any offense. (c) Any person who has been kidnaped in violation of the laws of this state, or who has been kidnaped in another jurisdiction and is now concealed within this state." §95-708 (1969) : "Service and execution of search warrants. Service of a search warrant is made by exhibiting the original warrant at the place to be searched. If the warrant is executed, a duplicate copy, and a receipt for all articles taken shall be left wilh any person from whom any instruments, articles or things are seized, or, if no person is available, the copy and receipt shall be left at the place from which the instruments, articles or things were seized. Failure to give or leave such a receipt shall not render the evidence inadmissible in a trial." §95-712 (1969): “Return to court of things seized under search warrant. The return of the warrant and all instru- ments, articles and things seized shall be made promptly before the judge who issued the warrant, or if he is absent or unavailable, before the nearest available judge and shall be accompanied by a written inventory of any property taken, verified by the person executing the warrant. The judge shall, upon request, deliver a copy of the inventory to the person from whom or from whcse premises the property was taken and to the applicant for the warrant." §95-2206.1(1975 supp.) : "Sentence to death. When a person is convicted of an offense punishable by death or imprisonment, the court may sentence the offender to death or imprisonment." §95-2212 (1969) : "Sentence to be imposed by judge. All sentences under this-chapter shall be imposed exclusively by the judge of the court." §95-2301(1969) : "Commitment of defendant. Upon rendition of judgment after promouncement of a sentence imposing punishment of imprisonment or death the court shall commit the defendant to the custody of the sheriff who shall deliver the defendant to the place of his confinement or execution." : §95-2303 (1969) : "Execution of Geath. (a) The punishment of death must be inflicted by hanging the defendant by the neck until he is dead. (6) In promouncing the sentence of death, the court shall set the date of execution which must not be less than thirty (30) days nor more than sixty (60) days from the date the sentence is pronounced. (c) A sentence of death must be executed: within the walls or yard of a jail or some convenient private place in the county where the trial took place. (d) The sheriff of the county must be present and shall supervise such execution which shall be conducted in the presence of a physician, the county attorney of the county, and at least twelve (12) reputable citizens to be selected by the sheriff. The sheriff shall at the request of the defendant, permit such priests or ministers, not exceeding two (2), as the defendant may name and only persons, relativey or friends, not to exceed five (5), to be present at the execution. No other persons than those mentioned in this subsection can be present at the execu- tion, nor can any person under age be allowed to witness the same. (e) After the execution, the sheriff nust make a return upon the death warrant, showing time, mode and manner in which it was executed." §95-3004(1975 supp.) : "The burden in a homicide trial ... (b) In a deliberate homicide, knowledge or purpose may be inferred from the fact that the accused con- mitted a homicide and no circumstances of mitigation excuse or justification appear." --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0452%3A1. Public record. Not legal advice.