Petition — Duncan Peder McKenzie Jr. v. State of Montana

Supreme Court brief1980

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IN THE

October Term, 1980

no. $9 - 5129

DUNCAN PEDER MCKENZIE, JR.,

Petitioner,

-against-

STATE OF MONTANA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF MONTANA

BARNEY REAGAN

Post Office Box 342

Cut Bank, Montana 59427

CHARLES L. JACOBSON

Post office Box 932

Conrad, Montana 59425

TIMOTHY K. FORD

2101 Smith Tower

Seattle, Washington 98104

JACK GREENBERG

JAMES M. NABRIT, III

JOEL BERGER

JOHN CHARLES BOGER

DEBORAH FINS

10 Columbus Circle

New York, New York 10019

ANTHONY G. AMSTERDAM

Stanford University Law School

Stanford, California 94305

ATTORNEYS FOR PETITIONER

QUESTIONS PRESENTED

i. Whether a jury instruction which unconstitutionally

shifted to petitioner the burden of proof on an element of the

crime could ever be deemed “harmless error" in a capital case?

2. Whether the court below employed the proper standard

in determining that the jury instructionsgiven in this case were |

harmless?

3. Whether the imposition and carrying out of the

sentence of death by hanging for the crimes of deliberate homi-

cide and aggravated kidnaping under the law of Montana in force

at the time of petitioner's trial violate petitioner's rights

under the Sixth, Eighth and Fourteenth Amendments to the Consti-

tution of the United States?

4. Whether the failure of the courts below to enforce

a plea bargaining agreement between petitioner, the State and the

trial court, on which petitioner's trial counsel had relied in

revealing petitioner's trial strategy and tactics to the State

prior to trial, deprived petitioner of due process of law in

violation of the Fourteenth Amendment to the Constitution of the

United States?

5. Whether the introduction at trial of evidence seized

from petitioner's dwelling place and truck parked outside his |

dwelling place pursuant to a search warrant violated his rights

under the Fourth and Fourteenth Amendments to the Constitution

of the United States?

TABLE OF CONTENTS

Page

ES oa ED pn

Citation to Opinion Below ........... ere ye ee 4

IS Sia hs giktee Dies ae er ek i z

Constitutional and Statutory Provisions

RE Rae bwesehadwn sd cebere se0%s ecese 2

PROUOGGMEL BOONE ov voc cececccssesssec 2

The Crime and the Investigation ....... 3

The Plea Bargain ......... eaten eae s.s ° 6

Sr EE Anubas wie A.6 oe dk aed aad Bawa ee eee 7

How the Federal Questions Were Raised and

DOE ONE bik sks vee wededccdecas er 13

Reasons for Granting the Writ ..... ..... pbeee 17

II.

Itt.

The Court Should Grant Certiorari

To Consider Whether A Jury Instruction

Which Shifts To Petitioner The Burden

Of Proof On A Disputed Element Of The

Crime In Violation Of Sandstrom v.

Montana, 442 U.S. 510 .(1979), Can Ever

Be Deemed “Harmless Error" In A Capital

Case eoenreeneneeeeneneeeeneee eeeeevee oe ee @P eee © 17

The Court Should Grant Certiorari To

Consider Whether The Court Below

Employed The Proper Standard In

Determining That The Jury Instructions

Given In This Case Were Harmless Beyond

A RORSCREDLS DOUG cc cccccpovececces ° 24

This Court Should Grant Certiorari To

Consider Whether The Imposition Of The

Sentence Of Death By Hanging For The

Crimes Of Deliberate Homicide And

Aggravated Kidnaping Under The Law In

Effect In Montana At The Time Of The

Offense For Which Petitioner Was Con-

victed Comports With The Sixth, Eighth,

And Fourteenth Amendments To The Con-

stitution Of The United States ..... 3i

AO eee Re Se PNAS et Rg ey ee nee woe a achieiienediienes doen a

Page

A. The Failure Of Montana's 1973

Capital Sentencing Law To Meet

The Procedural Requirements Of

TREE ST , GOBGRED occ ticsoccsers saenies 33

B. The Total Lack Of Jury Participa-

tion In Capital Sentencing .......... 37

C. The Unreliability Of The Factual

Foundation Of Petitioner's Death

BOCRNGS 6 n0s:i wes css te Teee bes 6 ans 39

IV. The Court Should Grant Certiorari To

Consider Whether The Failure Of The

Courts Below To Enforce A Plea Bargain-

ing Agreement Between Petitioner, The

State, And The Trial Court, Which Peti-

tioner'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 ............ eR VAdindedus 43

Vv. 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

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 Describ [e]

The . . . Things To Be Seized"........ és 50

A. The Lack of Probable Cause To

BOGUOGN écavawet so ks wines dale ee aes 54

B. The Generality Of The Search

es vk ce eas ea Seeua ae ae 56

COMUSUSIMN 5 56. oso a's bolts eee eck inh 664600 ben Ee ‘ 60

osete eee on one te Re ee tn mn n-ne

TABLE OF AUTHORITIES

Cases

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

Andres v. United States, 333 U.S. 740 (1948) ..ccccccccccee

Andresen v. Maryland, 427 U.S. 463 (1977) ......... 55, 58,

Beck v. Alabama, U.S. , 48 U.S.L.W. 4801 re

Bis GON esteus ¥e beeen wWaeek 6a pik ebinunencn ak Vers ye

Blackburn v. Cross, 510 F.2d 1014 (5th. aes 1975) pik aleve eine

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

Bollenbach v. United States, 326 U.S. 607 (1943). cunwe wR

Bond v. Oklahoma, 546 F.2d 1369 (10th Cir. 1976) .........

Briggs v. Connecticut, U.S. , 48 U.S.L.W. 3801

(June 10, 1980) (Brennan and Marshall, JJ. dissenting

from Gemiai Of Gertiorari) .ccccccccccscecce ere re .

Brown v. United States, 411 U.S. 223 (1973) ........ eececes

Bruton v. United States, 391 U.S. 123 (1968) ...... + G0e.ee

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

Canzcon v. Weak, 130 0.8. BS. TABOS) cckiccccaciace eee ere

Chapman v. California, 386 U.S. 18 (1967) ..... aie 2Gy Bee

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

Coffin v. United States, 156 U.S. 432 (1895) ...rcccceces a

Coolidge v. New Hampshire, 403 U.S. 443 (1971) ........ S34

Correale v. United States, 497 F.2d 944 (lst Cir. 1973) .,

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

Cunningham v. State, 247 Md. 404, 231 A.2a 501 (1967) ....

Davis v. Georgia, 429 U.S. 122 (1976) ...... ee eccece eccces

Duling v. Ohio, 408 U.S. 936 (1972) ..........4. ae Ge Be alee

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

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

Batelile v. Williams, 425 U.S. S01 (1976) ccccccoccccvecece

Edwards v. Commonwealth, 298 Ky. 366, 182 S.W.2da 948

(1944) eee eevee eee eoeevreeeenene oer ee eo ee eee eee ee ee @ @ seer er @

Faby v. Connecticut, 375. 0.8. OS CiSES) co cccccvccevecceces

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

Gardner v. Florida, 430 U.S. 349 (1977) ....... 35, 39, 40,

Gibson v. United States, 424 F.2d 491 (3rd Cir. RETO? ei we

Gideon v. Wainwright, 372 U.S. 335 (1963) ...seccccccceces

Glasser v. United States, 315 U.S, 60 (1942) ...... ce weeee

Godfrey v. Georgia, u.8. » 48 U.S.L.W. 4541 licen teh

See SFEG) sescess Tal wath ei eee cele paRRSs 20 d0000'%

Hammers v. State, 550 S.W.2d 432 (Ark. 1977) ...ccececeoes

Hammontree v. Phelps, 605 F.2d 1371 (Sth Cir. 1979) ......

Haney v. State, 588 S.W.2d 913 (Tex. 1979) ...cccceseccces

Harrington v. California, 395 U.S. 250 (1969) ......... Ava

Herron v. Tennessee, 408 U.S. 937 (1972) ........e0. oeeue

Holloway v. Arkansas, 435 U.S. 475 (1978) ......... 17, 18,

Hoover v. Beto, 467 F.2d 516 (5th Cir. 1972) ..cccccccccee

2h CO Winship, 397 Vuh. BSS CASTS) .acccsceacces eerece cece

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

Jones v. People 155 Colo. 148, 393 P.2d 366 (1964) .......

Cases Page

Kelly v. State, 366 So.2d 1145 (Ala. 1979) ....cccccces pcatk

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

Lakes v. State, 261 S.E.2d 744 (Ga. 1979) ............ = a

Lockett v. Ohio, 438 U.S. 586 (1978) ....cccccccee ror 2 re >

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

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

Malloy WV. Boge, BFE Wale BG eames be scctccccccccccce

Mann v. United States, 319 F.2d 404 (5th Cir. 1963) ee

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

Martone v. United States, 435 F.2d 609 (lst Cir. 1970) ....

Massiah v. United States, 377 U.S. 201 (1964) ........ aa~ne

McCroskey v. State, 586 S.W.2d 1 (Ark. 1979) .....ccccccces

McGautha v. California, 402 U.S. 183 (1971) .-.--......- 37,

McKenzie v. Montana, 433 U.S. 905 (1977) .........e.. bie a nie

McKenzie v. Montana, 443 U.S. 903 (1979) ....ccccccccccce aise

Menthen v. Oklahoma, 408 U.S. 940 (1972) ....cccvcccccccccee

Menthen v. State, 492 P.2d 351 (Okla. Crim. App. 1971) .....

Meyer v. State, 406 A.2d 427 (Md. 1979) .......... saeeseees

Milton v. Wainwright, 407 U.S. 371 (1972) ............. esce

Miranda v. Arizona, 384 U.S. 436 (1966) ...... ccc ccc ceee 48,

Morisette v. United States, 342 U.S. 246 (1952) ...........

Mullaney v. Wilbur, 421 U.S. 684 (1975) .....cccccccccacccce

Mulry v. State, 399 N.E.2d 413 (Ind. App. 1980) ...........

Nelson v. Wyoming, 599 P,.2d 1326 (Wyo. 1979) ...... TerTrre

Parker v. Randolnh, 442 U.S. 62 (1979) ......cecceae pate o%

Patterson v. New York, 432 U.S. 197 (1977) cm.ccecccccccces

Payne v. Arkansas, 356 U.S. 560 (1958) .......... Deeeeee nee

People v. Bascomb, 392 N.E.2d 1130 (Ill. 1979) ...,....20..

People v. Fitzpatrick, 32 N.Y.2d 499, 346 N.Y.S.2d 793,

W.B.28 139. C2975) ics csvcteusaan Dn we OS eee e660 0.0 oe

People v. Reagan, 397 Mich. 306, 235 N.W.2d 581 (1975) ....

People ex rel. Rice v. Cunningham, ~ Ill. 2d 353, 336 N,B.

24 2 (1973S) cccecccesesces -06eee DPR AeREeR OS bee ceccee °

People v. Shipp, 68 Mich, App. 452, 243 N.W.2d 18 (1976) ..

Pope Vv. Mebomelte, G00 GiGi Dee Cees aasccccccccccccccccce

Proffitt v. Florida, 428 U.S. 242 (1976)

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

Sanchell v. Parrat, 530 F.2d 286 (8th Cir. | ae

Sandstrom v. Montana, 442 U.S. 510 a Se bP

Santobello v. New York, 404 U.S. 257 (1971) bewe@e, 46, 47,

Schneble v. Florida, 405 U.S. 427 (1972) .....ccccccccccccee

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

Smith v. Illinois, 390 U.S. 129 (1968) ........... Sea ee 0%

Spinelli v. United States, 393 U.S. 410 he aah one o-0 0 0

Stanford v. Texas, 379 U.S. 476 (1965) ...ccccccccccccccece

State v. Alvarez, 185 Neb. 557, 177 N.W. 2d 591 og ae

State v. Barkdale, 590 S.W.2d 931 DPTMMEEIE seséccccecces

State v. Brockman, 277 Md. 687, 357 A.2d 76 (Md. BPG? séce

State v. Brown, 606 P.2d 678 (Ore. Be S606 ee ee

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

State v. Hamilton, 605 P.2d 1121 (Mont. 1980) .............

State v. Hassapelis, 404 A.2d 232 (Me. 1979) ........ccuccce

State v. Henderson, 603 P.2d 613 (Kan. 1979) ........ ee

State v. Jones, 377 So.2d 1163 (Fla. 1979) ..... {ye re

State v. Kuchenreuther, 218 S,W.2d 621 (Iowa 1971) ........

State v. Martinez, _ P.2d (Mont. June 13, 1980)

(ie. 10638) sacsivecns PREP CC han eeneeccececes

State v. McKenzie (I), 557 P.2d 1023 (Mont. 1976) ae: es

32, G8, Dae “We See eee eae O eee cecccececes

susie oe. Vokeraie (II), 581 P.2d 1205 (Mont. 1978) 2; °4,°i3,

16, 32, Me B. BO. Soa Be oecuseas i MwheCweweneeeee 660

15,

Cases

State v.

State v. Pope,

State v.

State v. Rich,

State v.

State

(1971)

Palen,

186 Neb. 489,

Rhodes,

120 Mont.

434, 186 P.2d 223 (Mont.

Parraro, 404 A.2d 465 (R.IT. 2979) sues

184 N.W.2d 395 (1971) ..

1947) ..

3924 P.2d 1095 (Mont. 1974) ...ecerceceedly

305 A.2G 2123 (Me. 1979) ccosceccscscvees eeee

State v. Wogamon, 610 P.2d 1161 (Mont. 1960) ..

v. Ohio,

Staton

Stone v.

Powell,

408 U.S. 938 (1972) ......... oe

S28. Us8. 965 (2976) wsrccveces

Street v. New York, 394 U.S. 576 (1969) .......

Stcromerg v. California, 26s 0.8, BSS CASSL) wccccsscvstees

Taylor

Tedder

Thomas

Ti lford yv.

Sandstrom II, 603 P.2d 244 (Mont. 1979) ....

Stanton, 25 Ohio St. 2d 107, 267 N.E.

2d 122

eee ee

oreeee

7. ERORCeeny, S26 Bibs. SIG (APTS) odcccee cd cvvzuseseve

v. State,

Tumey v- Ohio,

Turner

United

330

United

(2d

United

(3264 Cir.

United

Cir.

United

Vale v.

Page,

322 80.20 S9G6 CASTS) accscccs (sexebaa tea ca

Terminiello v. Chicago, 337 U.S. 1 (1949) .....

v. Onstad, 36 St. Rep. 910, 594 P.2d 1137 (Mont.

vee) svewsivard Lin ek ue te teaee ¢aeesseces rere

408 U.8. 939 (1972) wcccceceves

272 UsBi SIS CSR occoee steht aA

v. United States, 396 U.S. 398 (1970) ..

eer eee

eee eee

Brotherhood of Carpenters & Joiners v, United States,

U8. 395 (1947) cecgeoressevesegenvereveccecesvecsay

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

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

States v. Casale Car Leasing Co., 385 F.2d 707

1972)

Cats 1967) eee e eee eee eer ee eer ewer eer ee eee eee eaeeeee

States

States v. Christian,

States

Vv.

Charlton, 565 F.2d 86 (6th Cir.

S71 *.24 64 (let Cir.

Crouse, 432 7.26 34326 (3,.¢. Cir.

1977) eee

1978) ...

1970) ....

States ex rel. Dorey v. New Jersey, 560 F.2d 584

States

1973)

States

Vv.

Grant, 494 F.2d 120 (2d Cir. 1974) .

Hallam,

lee, 489 ¥.24 i262 (D.C. Cir,

Lonjee, 603 F.2d 1342 (9th Cir.

Lucarz, 430 F.2d 1051 (9th Cir.

472 F.2d 168 (9th Cir.

1973)

1977) ee eeee ee ey

Fueston, 426 F.2d 785 (9th Cir. 1970) ,....

re eee

1973) wee

1979) eee

3970) cece

ex rel, Macon v. Yeager, 476 F,2d 613 (3rd

Vv.

eeererewevweereeeer eee eoener eee eereereer eee aereeaeeeeeneeeee

Mancillas, 580 F.2d 1301 (7th Cir.

Mancino, 468 F.2d 1350 (8th Cir.

Martin, 475 F.2d 943 (D.C, Cir.

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

Nobles, 422 U.S. 225 (1973) ..

1978) .

1972) ...

1973) «eee

1978) ..

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

Rabinowitz, 339 U.S. 56 (1950)

Shay, 426 F.2d 287 (2d Cir. 1970) ..

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

Turner, 423 F.2d 481 (7th Cir.

States v. Vigo, 435 F.2d 1347 (5th Cir.

1970)

1976) ...

Louissane, 300 G:0. BO CAPO) wrcbe bees cane ceesics

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

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

iii

er eee eee epee eeeeneeee

Cases

Page

Watson v. Foster, 570 F.2d 501 (4th Sens SOOO) ce cebbsaeawe 26

Williams Vv. Florida, 399 U8. 78 (1970) eeeeeecegqgeeseagaqgqgeee 48

Williams v. Kentucky, 408 U.S, 938 CSETOL wpcosresceggeceee 99

Winston v. United States, 172 UB. 303 GCABO9) ccvcscesccsee 2

Witherspoon Vv. Illinois, 391 U8, 510 (1968) ee 38

Woodruff v, State, 164 Tenn. 530, 51 S,W.2d 843 (1932) ,.,. 34

Woodson v. North Carolina, 428 U.S, 280 ROPPOD events B0x ae

Zurcher v. The Stanford Daily, 436 U.S, 547 (1978) ........ 55

Statutes

Mont. Rev. Codes Ann, §94-5-304 iaeee MOOG.) iste iadecewas 31

Mont. Rev. Codes Ann. §95-2212 UE ct heek bu ek bd cde ae ical 32

Mont. Rev. Codes Ann, §95-3214 (1) (a) (1973 Supp.) eecceccess $2

ee DORR SPeny VOR MERE, OB. FE) oc ees vce sncceessevinenc cca tM

Ohio Rev. Code Ann, §-2910.04 (1953) Ceri Tree ee eee

28 U.S.C. § 1257(3) eee LTE TT TET Te Pete Te eT Ce

Other Authorities

Comment, "Harmless Error: The Need for A Uniform Standard,"

53 St. John's Law Rev. 541 (1979) PPVIERCHAPSEVAPIASCEVOBSE HA

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

§ 94-5-105 (1973 Supp. ) i Det ee ee oe ee 21,33

Field, "Harmless Error: A Process in Need of A Rationale,"

125 ae Pa. be Rev. 15 (1976) Toe) OF OOO 8806 O58 6.68 6 060 6 62 25

Mause, "Harmless Constitutional Error: The Implication of

Chapman v. California," 53 Minn. L. Rev. 519 (1969) ..., 25

Note, “Harmless Constitutional Error: A Reappraisal," 83

Harv. L. Rev. 814 (1970) Ce0 OS ws 6606066065230860 soeesececs 25

Note, "Harmless Constitutional Error," 20 Stan. L. Rev. 83

967) ee ee eR EER LO PE COCCEL SPINS BEERS SHE Cobban cent 25

Note, "Montana's Death Penalty,” 38 Mont. L. Rev. 217

1977) ia Rae ae aD ee oe a. A Gea a) eo i ea ae ee 36

- a Eee

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

No . 80-

DUNCAN PEDER MCKENZIE, JR.,

petitioner,

~against-

STATE OF MONTANA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF MONTANA

Petitioner prays that a writ of certiorari issue to

review the judgment of the Supreme Court of Montana entered

February 26, 1980.

CITATION TO OPINION BELOW

The opinion of the Supreme Court of Montana, which is

reported at 608 P.2d 428 (Mont. 1980), is annexed as Appendix

A. The two prior opinions of the Supreme Court of Montana,

reported at 581 P.2d 1205 (Mont. 1978) and 557 P.2d 1023

(Mont. 1976), are annexed as Appendices B and C, respectively.

JURISDICTION

The judgment of the Supreme Court of Montana, which is

annexed as Appendix D, was entered February 26, 1980. On March

31, 1980, that court denied a timely rehearing petition in an

order annexed as Appendix E. On June ll, 1980, this Court

granted a timely application to extend the time for filing this

—

petition to and including July 28, 1980. Jurisdiction of this

Court is invoked under 28 U.S.C. §1257(3), petitioner having

asserted below and asserting here deprivation of rights secured

by the Constitution of the United States.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

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

Fourteenth Amendments to the Constitution of the United states

and various sections of the Montana Revised Code Annotated as

set forth in Appendix F.

STATEMENT OF THE CASE

Procedural History

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

judgment of the Supreme Court of Montana, entered on February 26,

1980. Petitioner, Duncan Peder McKenzie, Jr., was convicted on

February 1, 1975, of deliberate homicide and aggravated kidnaping

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

Circuit in and for the County of Cascade, Montana. He was sen-

tenced by the trial court to be hanged. The Montana Supreme

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

and on petition for certiorari, this Court vacated the judgment

and remanded "for further consideration in light of Patterson v.

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

(1977).

On remand, the Montana Supreme Court adhered to its

original decision, State v. McKenzie II , 581 P.2da 1205 (Mont.

1978).

iit caepciaieintitormen

Following the filing of a second petition for certiorari, ,

this Court again vacated the judgment and remanded "for further

consideration in light of Sandstrom v. Montana, 442 U.S. 510

(1979)," 443 U.S. 903 (1979). On remand; the Montana Supreme

Court once again affirmed. State v. McKenzie III, 608 P.2d4 428

(Mont. 1980).

The Crime and the Investigation

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

SE Se eee

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

Montana, 13 miles from the living unit (or “teacherage") near the

rural public schoolhouse where she taught, T. 1630, 2156, ms

When she failed to appear ac school the next morning the county

sheriff was notified, T. 473. The sheriff and deputies came to

the teacherage and searched the premises. This search produced:

a red tennis shoe found outside the door of the teacherage,

T. 1635; some scuff marks, two mats out of place, and a pair of |

glasses found inside the teacherage, Deposition of Deputy Jerry

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

trail" leading out of the teacherage, under a fence, up to the

road in front, ibid., T. 2125; and a spot of what appeared to be

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

nearby. T. 900-901, 2018. Officers spoke to Dan Pearson, a

1/ References to pages of the trial transcript will hereinafter

be preceded by "T.", and references to documents contained in the |

"Court File” record in the Montana Supreme Court will be preceded |

by "Ct. File Item." |

neighbor of Ms. Harding's who lived across the road from the

teacherage. Mr. Pearson told the officers that the previous

evening, a man had come to his door and had asked for help in

starting his pick-up truck. This man, who Pearson characterized

as "nervous" and who identified himself as Duncan McKenzie, had

phoned his wife from Pearson's house. T. 2010. The two men then

had gone to the truck, which was parked near where the officers

later found the watch and apparent blood stain, and had started

the truck. T. 216-217; Deposition of Justice of the peace Robert

Wolfe, Ct. File Item 30, at pp. 6-7.

Pondera County Attorney David Nelson came out to the

teacherage later during that afternoon and talked to law enforce

ment officers including Deputy Jerry Hoover, who had been involv-

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

in the afternoon, T. 2016, where Nelson executed an natn

reciting the facts then known to the investigators, and drafted

a criminal complaint charging petitioner with a misdemeanor

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

to Justice of the Peace Robert Wolfe what he had learned. The

Justice of the Peace placed Deputy Hoover under oath and asked

him a few questions. No court reporter was present, and no con-

temporaneous record was made of Hoover's testimony. Ibid.

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

Justice Shea in State v. McKenzie II , supra, 581 P.2d at

1240-41.

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

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

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

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

road, the presence near the road of a woman's watch and something

(cont'd. )

At the conclusion of these proceedings, Justice of the

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

search of his “residence . .. and the surrounding [curtilage]

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

warrant authorized seizure of several items of clothing “worn by

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

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

Pursuant to these warrants, County Attorney Nelson, the

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

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

arrested pecitioner, and began a four hour search. The officers

searched petitioner's house, confiscating several items of cloth-

ing, T. 2022, and they took pubic and head hairs from petiti»s .--.

The pick-up was seized with all its contents, taken to a garage

in Conrad and searched the next day. T. 736, 740.

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

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

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

wounds, T. 562, and a rope twisted about the neck, T.553,585-586.

3/ cont'd.

that “looked like it was blood,” and the encounter pan Pearson

had had the night before with petitioner. Deposition of Justice

of the Peace Robert Wolfe, Ct. File Item 30, at pp. 5-8. See

pp. 49-53, infra.

4/ Other items ultimately introduced in evidence were discovered

in farm fields several miles from the teacherage or at the site

where the body was discovered: a pair of leather work gloves with

what appeared to be specks of blood on them, T. 897, a pair of

rubber men's overshoes, T. 2140, and a woman's purse, T. 2147.

—_— ~~ --- —— -- oe - _—+--- + Se . LcSsts

On January 24, 1974, petitioner was charged by information

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

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

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

counsel -- including a motion to suppress the evidence seized

from petitioner's house and truck, T.2 -- were ick te

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

of "not guilty", T. 19, to two counts of deliberate homicide,

two counts of aggravated kidnaping, one count of sexual inter-

course without consent, and two counts of aggravated assault

charged in the third amended PPE

The Plea Bargain

Within a few days of the entry of petitioner's plea,

counsel for the defense and state engaged in plea bargaining dis-

cussions which culminated in an agreement that petitioner would be

allowed to plead guilty to deliberate homicide and aggravated

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

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

5/ During the next eight months, three "Amended Informations" were

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

6/ The order denying the motion ‘to suppress, Ct. File Item 90,

contained no findings or conclusions and did not specify the

grounds on which the searches were sustained. Petitioner sought

but could not obtain such findings from the court. T. 13-14.

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

instance of homicide and kidnaping respectively, but alleged

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

December 23, the trial judge, Hon. R. J. Nelson, agreed to accept ©

the pleas, with a slight modification in the sentencing agreement.

Ibid. But on December 28, 1974, -- after defense counsel had

\ disclosed his trial strategy in reliance on the plea agreement

in order to assist the prosecution in justifying the plea to the

community and the victim's family, id. at 3-4 -- the State

|| announced it was abrogating the agreement because of objections

; voiced by Ms. Harding's family, id. at 3-4.

Over defense opjections,the trial court ruled that the

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

| mitted the State to endorse fifty-eight new witnesses on the day |

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

claimed these witnesses were called to counter the trial strategy

defense counsel had revealed in reliance on the broken plea bar-

gain agreement. Defendant's Objections, Ct. File Item 114, at

p.2.

The Trial

The trial judge opened the trial with extensive "“prelim- |

inary instructions" on matters of law. T. 453. These instructions

included a recitation of “at least seventeen alternative ways”

State v. McKenzie III, supra, 608 P.2d at 470 (Shea, J. dissenting)

in which the State had charged that the crimes might be proven. |

During the trial which followed, the State sought to link

petitioner to Ms. Harding's death primarily through (i) the testi~

mony of Dan Pearson, T. 2160-2175, and Pearson's father, Gundar,

T. 2148-2155, that petitioner had sought assistance in starting

his stalled truck near the teacherage the evening of January 21,

and (ii) through the introduction of physical evidence -- much

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

10/

to indicate petitioner's involvement in her abduction. The

8/ The order of the State's presentation was significantly alter-

ed from the chronological sequence of events due to the introduc-|

tion of voluminous testimony concerning the chains of custody over

the var*sus items introduced. See,e.g., 474-487, 521-527, 634-

637, 646-657, 670-685, 699-717, 767-777, 805-825, 956-972, 1095-

1108, 1469-1538, 1919-1955. Establishing the chain of custody

with respect to various evidentiary items had been a primary

weakness in the State's case perceived by defense counsel and re-

vealed by them to the State in reliance on the subsequently abro-

gated plea agreement.

9/ Two items taken from petitioner's house were introduced into

evidence against him, T. 1062, 2091: a pair of boots, T. 778-779,

with a small trace of blood on one of them, T. 1035, the soles of!

which were similar to prints inside overshoes found discarded in |

a farm field about two miles from the teacherage, T. 897, with

blood and brain tissue on them, T. 1061-1062; and a shirt belo .

ing to petitioner which also had untypeable human blood on it,

T. 1205. A number of objects and samples taken from petitioner's

truck were also introduced into evidence: an exhaust manifold,

T. 1949, similar to the instrument which could have inflicted the’

fatal wounds on Ms. Harding, T. 1397, which had type 0 blood, T.

1117, brain tissue, T. 1395, and hair similar to Ms. Harding's,

T. 1298, under fresh paint on it; a coil of wire, part of which

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

eral scrapings from parts of the truck, T. 970, 976-979, which

contained type O blood, T. 1188-1192, and sweepings which con-

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

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

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

blood,sometimes identifiable as type 0, on them, see, e.g., T.

1095-1097, 1103-1112, 1141.

—-—~-- J-- --- ~~ —

‘

10/ In addition to the items seized from petitioner pursuant to

the warrants, the State offered several other items of physical

evidence and scientific testimony about them tending to link peti-

tioner to the crime. Most significantly, it showed that petition-+

er's blood was "0" positive and that he was a “secretor" (i.e.,

that his blood type could be determined from his saliva or semen)

T. 619. The semen found in Ms. Harding's pubic hair, T. 613, the

tests revealed, had come from a male with "0" type blood. A pair!

of gloves was found discarded, T. 897, in the same general area '

where Ms. Harding's purse and the pair of overshoes with human

blood on them, T. 1032, were alsa found, T. 2140, 2147, and these!

gloves were similar to work gloves petitioner had been seen wear-_

ing, T. 1749. The gloves had stains on them similar in color to

the "Red Top" seed treat used at the seed store where petitioner

worked, T. 1155. |

we ++ + ee eee —-- - — — en ee — —

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

that he had made statements indicating a sexual interest in

"country school teachers" in general, T. 2054, and Ms. Harding

in particular, T. 1897.

Petitioner, who had a prior conviction for assaulting a

11/

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

suasiveness of the State's evidence to prove the elements of the

12/

offenses charged and also sought to demonstrate that some of

13/

this evidence may have been tampered with, most of petitioner's

1l/ petitioner initially refused to enter a plea of "not guilty

by reason of mental disease or defect excluding responsibility"

or to give the statutorily required notice of such a defense. He

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

defect" provisions were unconstitutional because (1) they placed ::

petitioner the burden of establishing the affirmative defense an

mental incompetence by a preponderance of the evidence, and (2)

they placed upon petitioner the burden of controverting the

assumption that he possessed the requisite mental elements for

deliberate homicide, once the State had established an illegal

killing had been committed. Petitioner refused to give the

statutorily required notice for fear of waiving his constitutional

objection to the "mental disease or defect" rules. See Ct. File

Items 24, 27, 28, 37, 40.

13/ Defense witnesses testified that, after petitioner had been

taken into custody, Ms. Harding's purse had not been found on the

night of January 22 in a careful search of the area where it was

subsequently found January 23, T. 2218, and that the pickup truck

from which sn many crucial items of evidence had been taken had,

for a time at least, been left unguarded after it was seized and

thus could have been tampered with, T. 2231.

a a 4

own evidence was addressed to the question of whether he could

have acted "knowingly" or "purposely" in the commission of a

| homicide. The trial court construed petitioner's defense as

that of "mental disease or defect excluding responsibility.”

T. 1427-1435. A psychiatrist appointed to examine petitioner,

Dr. Robert Wetzler, testified that petitioner was a "schizoid

personality," T. 2248, who @as unable to form the requisite

mental elements of deliberate homicide and aggravated kidnaping,

who was unable to appreciate the criminality of his conduct, and

who was unable to conform his conduct to the requirements of law,)

T. 2248, 2321.

—EE

In rebuttal, the State introduced the testimony of anothe -

psychiatrist who had examined petitioner, Dr. Miguel F. Gracia,

who testified that petitioner possessed a "passive-aggressive

personality” and "social maladjustments," T.2396, but that he

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

14/ |

the criminality of his conduct, T. 2397. A state psychologist |

testified concerning his "diagnostic impression”, on the basis

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

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

conduct and conform it to law, T. 2547.

14/ Dx. Gracia based this conclusion partially on his observa-

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

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

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

“rationalization.” Other "symptoms" which Dr. Gracia cited in

support of his diagnosis that petitioner possessed merely a

"personality disorder" were “insecurity,” T. 2409, “hostility,”

T. 2411, and suppressed anger, T. 2413-2414.

« 30 =

Over petitioner's repeated objections, the trial court

gave numerous instructions to the jury at the close of the evi-

dence which permitted or directed them to presume intent from

other elements. "The unconstitutional Sandstrom-type presump-

tions permeate the instructions given to the jury in this case.”

McKenzie III, 608 P.2d at 470 (Shea, J.,dissenting) .See Add.Instr.

31, 33, 37, 38, Ct. File Item 154. For example, the jury was

instructed concerning deliberate homicide as follows: "(T]he

law presumes that an unlawful act was done with an unlawful in-

tent; that is, the law expressly directs you to reason from such|

unlawful act that the defendant acted with an unlawful intent

or purpose. This is a rebuttable presumption, which means it

may be controverted and overcome by other evidence, but whether

or not apresumption, once it has come into effect,is overcome,

is for the jury to determine." Add. Instr. 33, Ct. File Item

15/

154.

Six possible verdicts were submitted to the jury on)

at least seventeen alternative theories. The jury found peti-

tioner guilty of "Deliberate Homicide by Means of Torture,” and

"Aggravated Kidnaping", accompanied by the death of the victim,

without specifying which of the alternative theories charged

it relied upon. T. 2605.

15/ The entire set of preliminary and post-trial instructions

submitted to petitioner's trial jury is annexed as Appendix G.

~~:

The trial court ordered the preparation of a pre-sentence

investigation report and held a sentencing hearing on March 3,

1975, sitting without a jury, as required by Montana law. In

written "Findings, Conclusions, Sentence and Order," Ct. File

Item 169; attached infra as Appendix H, the trial court stated

that "(t]he evidence in the case, and as found by the jury dis-

closes a brutal, conscienceless torture, rape and deliberate

killing of a human being," id. at 7; that petitioner could dis- |

tinguish right from wrong but was "dangerous and potentially |

dangerous",ibid.; that he had previously been convicted of an |

aggravated assault on a woman and that the chances of his rehab- |

iltation were "practically nonexistent," id. at 8, and that

under Montana law “he would only be required to service {sic} |

approximately seven years . . . before he would be turned loose

to menace society again," id. at 9. The trial court found that

“there are no circumstances which mitigate the defendant's con-

duct or the sentence to be imposed,” ibid., and sentenced peti-

tioner to be hanged for deliberate homicide and aggravated kid-

16/

naping.

16/ petitioner was not sentenced separately for these two erined

The trial court concluded that "[t]he offenses of which the de-

fendant had been found guilty are of equal gravity before the

law and result from the same transaction, and therefore only

one sentence may be imposed though he was found guilty of two

offenses." Findings, Conclusions, Sentence and Order, Ct. File

Item 169, at p.9.

- 22 «

HOW THE FEDERAL QUESTIONS WERE RAISED

AND DECIDED BELOW |

I. & II. During trial, petitioner filed a written

"Motion to Require Proof of Ability to Have a Particular Mental

State" Ct. File Item 143 and submitted a proposed instruction

that "the State must prove that Defendant had the necessary

state of mind to have acted... either ‘'knowingly' or 'pur-

posely' beyond a reasonable doubt," Defendant's Instruction No.

13, Ct. File Item 153. The trial court denied this Motion and

refused the instruction. T. 2208, 2595-2599.

Petitioner also expressly objected to “the proposition

that presumption can furnish intent or proof of intent or take

the place of proof of intent. Object to them being included in

these Instructions, in these two instances or any place else in |

the Instructions, in that they permit specific intent in such

a case as this to be proved whole . . . rely on presumption, [sic]

and this is violative of the defendant's due process ...

rights, as provided by Federal and State Constitutions.” T. 2599-

2600. The trial court overruled the objection and gave the

instructions. On appeal, petitioner's Specification of Error

No. 19 raised this issue in the Montana Supreme Court, Brief of

Appellant at 364-369, which twice rejected the contention.

State v. McKenzie I, supra, 557 P.2d at 1043; State v. McKenzie

II, supra, 581 P.2d at 1222.

a 23

On his second remand to the Montana Supreme Court from

this Court, petitioner contended that the presumptions on which

his jury was instructed were unconstitutional, that "“faJny con- |

stitutional error that effects the ‘substantial rights’ of a

defendant can never be harmless beyond a reasonable doubt,”

Appellant's Brief, September 13, 1979, at 14, and that "[t]he

supplying of proof of an element of an offense, by use of a

presumption, must absolutely [affect] the substantial rights of

a defendant" id. On the question of the proper harmless error

standard, petitioner contended that under this Court's prior

rulings, "the question [is] ' . . . whether there is a reasonable

possibility that the evidence complained of might have contribut-

ed to the conviction," id. at 1l.

The Montana court did not expressly consider whether the

constitutional error in instructing petitioner's trial jury might

require automatic reversal. Concerning harmless error, the court

stated that "[a]s far as we can determine, the United States has

not yet fashioned a uniform standard for determining harmless

federal constitutional error," and that consequently "we feel

free to adopt any of the three standards" derived .rom prior

cases. State v. McKenzie III, supra, 608 P.2d at 458. Apply-

ing an “overwhelming weight of the evidence standard,” the

court held that the "evidence on the issue of intent is over-

whelming," id. at 459. The Montana Court made no effort to

determine whether the unconstitutional instruction may have

contributed to the verdict.

~ 2 «

III. Petitioner filed a Petition and Motion in Mitiga-

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

Montana death penalty statute was unconstitutional under "the

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

ment to the Constitution of the United States, id. at 1, 4, and

he moved the trial court "[t]o not impose a sentence of death,”

id. at 5.

On appeal, petitioner's Specification of Error No. 25

alleged that petitioner's sentence of death was imposed in viola-

tion of the "Fifth, Sixth, Eighth, Ninth & Fourteenth" Amendments

to the Constitution of the United States, Brief of Appellant at

466, and the Montana Supreme Court twice rejected this contention.

State v. McKenzie I, supra, 557 P.2d at 1028-1034; State v.

McKenzie II, supra, 581 P.2d at 1229. In its third affirmance

of his convictions and sentences, the Montana court expressly

held after a brief analysis "that the death penalty statutes

in question in this case are constitutional under the united

States constitutional requirements." State v. McKenzie III,

608 P.2d 428, 451 (Mont. 1979).

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

a "Motion to Enforce Agreement of December 23, 1974," ct. File

Item 104, which contended that failure to enforce a plea bargain-

ing agreement deprived petitioner of "due process of the law

under the United States . . . Constitutio[n]," id. at 3. This

motion was denied, T. 60.

On appeal, petitioner's Specification of Error No. 2

alleged this refusal to enforce the agreement as error. The

oe 35 «=

}

Montana Supreme Court twice rejected this contention. State v.

McKenzie I, supra, 557 P.2d at 1038; State v. McKenzie II, supra,

581 P.2d at 1214. In its third affirmance, the Montana court,

;

after reconsidering the claim, held that that “Santobello v.

New York, (1971), 404 U.S. 257, . . . is clearly distinguishable

on the facts and on the law." State v. McKenzie III, supra, 608

P.2d at 439.

Vv. Prior to trial, petitioner moved to suppress items

seized from his house and truck on the ground that they had been

seized in violation of his rights under the Fourth Amendment to

the Constitution of the United States, ct. File Item 50. The

ee cee ~~

trial court entered an order denying this motion, Ct. File Item

90.

On appeal, petitioner's Specification of Error No. l

alleged the denial of this motion as error. The Montana Supreme

Court twice rejected petitioner's claim. State v. McKenzie I,

Supra, 557 P.2d at 1034; see also State v. McKenzie II,

Supra, 581 P.2d at 1211, 1213. In its third affirmance, the

Montana court held that ""only a probability of criminal conduct

need be shown'" for a search warrant and that “items other than

those specifically described in [a] search warrant may be seized

so long as a reasonable relationship is demonstrated between

the search authorized . . . and seizure of the items not speci-

fically described therein." State v. McKenzie III, supra, 608

P.2d at 437-38.

= 36 «

REASONS FOR GRANTING THE WRIT

THE COURT SHOULD GRANT CERTIORARI TO

CONSIDER WHETHER A JURY INSTRUCTION

WHICH SHIFTS TO PETITIONER THE BURDEN

OF PROOF ON AN ELEMENT OF THE CRIME, |

IN VIOLATION OF SANDSTROM v. MONTANA, |

442 U.S. 510 (1979), CAN EVER BE DEEMED

“HARMLESS ERROR" IN A CAPITAL CASE.

In Chapman v. California, 386 U.S. 18 (1967), the case

in which it first accepted the doctrine of harmless constitu-

tional error, this Court carefully emphasized its intention "not

to treat as harmless those constitutional errors that ‘affect

substantial rights' of a party," Chapman v. California, supra, |

386 U.S. at 23. The Court expressly noted that “our prior cases

have indicated that there are some constitutional rights so basic

to a fair trial that their infraction can never be treated as

harmless error," id., citing Payne v. Arkansas, 356 U.S. 560

(1958) (coerced confession); Gideon v. Wainwright, 372 U.S. 335

(1963) (right to counsel); Tumey v. Ohio, 273 U.S. 510 (1927)

(impartial judge).

Subsequently, the Court has reaffirmed its recognition

in Chapman that since certain constitutional rights are "too

fundamental and absolute to allow courts to indulge in nice cal-

culations as to the amount of prejudice arising from [their]

denial," Glasser v. United States, 315 U.S. 60, 75-76 (1942) and

that the doctrine of harmless constitutional error therefore is

inapplicable to errors which infringe upon those rights. See,

e.g., Harrington v. California, 395 U.S. 250, 251-52 (1969);

Holloway_v. Arkansas, 435 U.S. 475, 488-89 (1978); cf. Smith v.

Illinois, 390 U.S. 129, 131 (1968); Davis v. Georgia, 429 U.S.

122 (1976).

» 19 «

In Chapman itself, the Court's designation of the rights

(i) to an impartial judge (ii) to the assistance of counsel and

(iii) to a trial free from use by the State of involuntary con-

fessions as among those “so basic to a fair trial” that they

may never be treated as harmless suggested a standard for iden- |

tification of those errors requiring automatic reversal which em-

phasized, not the likely impairment of the factfinding process,

but rather the damage to the integrity of the proceedings. on

the other hand, the discussion in Holloway on why conflicts of

counsel can never be deemed harmless dwelt upon the virtual im-

possibility of “assess(ing] the impact of a conflict of interests

on the atto~ney's options, tactics, and decisions" on behalf of |

his client, Holloway v. Arkansas, supra, 435 U.S. at 491, —

ing that the application of the automatic reversal rule may be

governed by the difficulty of ascertaining the prejudicial seme i:

of certain kinds of constitutional error. The Court in fact has!

never Clearly articulated the principles for determining whether,

a particular constitutional error requires automatic reversal,

nor has the Court offered a complete roster of such errors.

Whether an unconstitutional jury instruction on a dis-

puted element of the crime is among those fundamental errors

which may never be treated as harmless is a question reserved

in Sandstrom v. Montana, 442 U.S. 510, 526-27 (1979). The

Court in Sandstrom held that to have instructed the petitioner's

jury that “the law presumes that a person intends the ordinary

consequences of his voluntary acts," in a case where intent was

a disputed element of the crime, “'conflict[ed] with the over-

riding presumption of innocence with which the law endows the

» 8 «

— a cma

Tre

accused and which extends to every element of the crime’

Sandstrom v. Montana, supra, 442 U.S. at 523, and “had the

effect of relieving the State of the burden of proof... on

the critical question of petitioner's state of mind,” id. at 521,

This case poses directly the question reserved in .

Sandstrom, for petitioner's trial jury here was repeatedly |

given instructions virtually identical to those condemned in

17/

that case despite the fact that his principal defense to the

charges against him on which he offered significant evidence,

17/ The instruction identified as unconstitutional in Sandstrom

stated "that ‘(t]he law presumes that a person intends the

Ordinary consequences of his voluntary acts,'”

Montana, supra, 442 U.S. at 513. In petitioner's case, the jury

was repeatedly instructed on the mental element necessary to

constitute deliberate homicide, in the following terms:

"[T]he law presumes that an unlawful

act was done with an unlawful intent;

that is, the law expressly directs you

to reason from such unlawful act that

the defendant acted with an unlawful

intent, or purpose.

- * *

The law also presumes that a person

intends the ordinary consequences of

his voluntary act.

Therefore, if you find beyond a

reasonable doubt that the defendant ...

voluntarily and unlawfully assaulted or

injured Laura Harding, and if you further

find beyond a reasonable doubt that the

death would result as the ordinary con-

sequence of such an assault or injury, the

law presumes that, and expressly directs

you to reason therefrom that the defendant

intended to cause said death regardless of

whether or not he actually had such an

intent or purpose.”

Add. Instr. 37; Ct. File Item No. 154. See also Add. Instr. 31,

35; Ct. File Item No. 154, all in Appendix G annexed. i

o Dea

18/

was his lack of intent.

The constitutional violation in petitioner's case is

therefore clear, and the right infringed is basic. This Court

has described the presumption of innocence as “that bedrock

‘axiomatic and elementary' principle whose ‘enforcement lies

at the very foundation of the administration of our criminal

law,'" In re Winship, 397 U.S. 358, 363 (1970), citing Coffin

v. United States, 156 U.S. 432, 453 (1895); see Taylor v.

Kentucky, 436 U.S. 478 (1978); Estelle v. Williams, 425 U.S.

501, 503 (1976) ("The presumption of innocence . .. is a basic

{

component of a fair trial under our system of criminal justice.")

The presumption "extends to every element of the crime,”

Morisette v. United States, 342 U.S. 246, 275 (1952), and the

fact that a defendant may have committed the act alleged does

not deprive him of the presumption of innocence on the mental

states which affect the degree of his culpability. See, e.g.,

Mullaney v. Wilbur, 421 U.S. 684, 698-99 (1975). Whether viewed

in terms of possible injury to the integrity of the factfinding

process or in terms of the difficulty of discerning the possible

effects on the outcome of a trial, constitutional errors in

18/ Like David Sandstrom, petitioner insisted that he did not

have the mental capacity to form the requisite intent, and he

offered in support of that contention the testimony of Dr.

Robert Wetzler, a psychiatrist who testified that petitioner

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

the requisite mental elements of deliberate homicide and

aggravated kidnaping, was unable to appreciate the criminality

of his conduct, and was unable to conform his conduct to the

requirements of law. T. 2248, 2321.

- 20 -

instructing the jury on critical elements of a crime

can only be seen as "fundamental" errors.

This Court has implied that instructions

misdirecting the jury on issues central to guilt or

innocence can never be harmless. For example, in Bollenbach

v. United States, 326 U.S. 607, 613 (1946), a federal prosecu-

tion in which the jury had been instructed on an unwarranted

presumption, the Court stated that “[a] conviction ought not

to rest on an equivocal direction to the jury on a basic issue.”

Rejecting the Government's argument in Bollenbach that "the

sting of error [was] extracted because there was proof, other

than the erroneous ‘presumption’ on the issue” in question, the

Court insisted: °

“[T]he question is not whether guilt

may be spelt out of a record, but whether

guilt has been found by a jury according

to the procedure and standards appropriate

for criminal trial in the federal courts.

ms * 7

From presuming too often all errors to be

‘prejudicial,' the judicial pendulum need

not swing to presuming all errors to be

‘harmless' if only the appellate court is

left without doubt that the one who claims

its corrective process is, after all, guilty.

Bollenbach v. United States, supra, 326 U.S. at 614-15. See

United Brotherhood of Carpenters & Joiners v. United States,

330 U.S. 395, 408-08 (1947) ("No matter how strong the evidence

may be . . . there must be a charge to the jury setting out

correctly the limited liability . . . .A failure to charge

correctly is not harmless, since the verdict might have resulted |

from the incorrect instruction."); Jackson v. Virginia, 443 U.S.

307, 320 n.14 (1979) ("Our cases have indicated that failure to

instruct a jury on the necessity of proof of guilt beyond a

= Si «

reasonable doubt can never be harmless error. .. . Thus, a

defendant whose guilt was actually proved by overwhelming evi-

dence would be denied due process if the jury was instructed that

he could be found guilty on a mere preponderance of the evidence.)

On remand in petitioner's case, the Montana Supreme cues

acknowledged Sandstrom error and admitted that Bollenbach and

United Brotherhood of Carpenters "indicate that where there is

a jury instruction containing an unconstitutional presumption

there can be no harmless error and automatic reversal is required"

State v. McKenzie III, supra, 608 P.2d at 458. Yet the Montana

court reasoned that "this holding is ameliorated if not eliminat-

ed by the later Chapman case . . . declining to adopt any auto-

matic reversal rule but analyzing each case on a case-to-case

basis." Id. The Montana court's resolution of the issue, is ob-

viously inadequate, for as demonstrated supra, Chapman itself

states that some constitutional errors require automatic reversal.

Whether constitutional errors in instructing a criminal

jury may ever be deemed harmless has sharply divided the circuits

that have addressed the question, some suggesting that -eversal

is automatic, see, e.g., United States v. Casaie Car Leasing Co.,

385 F.2d 707 (2d Cir. 1967); Hammontree v. Phelps, 605 F.2d 1371

(Sth Cir. 1979); Mann v. United States, 319 F.2d 404 (Sth Cir.

1963) cert. denied, 375 U.S. 986 (1964) with sthers contending

that evaluation under the harmless error standard is appropriate,

see, e.g., United States ex rel. Dorey v. New Jersey, 560 F.2d

584 (3rd Cir. 1977); United States v. Martin, 475 F.2d 943 (D.c.

= 2

19/

Cir. 1973). State appellate courts also differ on the question.

Compare State v. Jones, 377 So.2d 1163 (Fla. 1979) with State

v. Rich, 305 A.2d 1123 (Me. 1978).

In light of the absence of a clear standard for deter-

mining what constitutionai errors are to be subject to the harm-

less error rule, the unresolved question as to whether this

Court's prior decisions permit an unconstitutional jury instruc-

tion on a disputed element of the crime ever to be held harmless,

and the split among the circuits and among state courts, the

Court should grant certiorari to hear and determine this sub-

stantial unresolved question.

19/ In the analogous area of instructions on Ulster County/Leary:

type presumptions, the circuits also split on whether automatic

reversal was required after this Court declared certain pre-

sumptions unconstitutional in Turner v. United States, 396 U.S. |

398 (1970). Compare United States v. Shay, 426 F.2d 287 (2d

Cir. 1970); Gibson v. United States, 424 F.2d 491 (3d Cir. 1970);

United States v. Vigo, 435 F.2d 1347 (5th Cir. 1970); United

States v. Turner, 423 F.2d 481 (7th Cir. 1970); and United States

v. Cross, 432 F.2d 1326 (D.C. Cir. 1970) with Martone v. United

States, 435 F.2d 609 (lst Cir. 1970); United States v. Fueston,

426 F.2d 785 (9th Cir. 1970).

— > 2

Il.

THE COURT SHOULD GRANT CERTIORARI TO

CONSIDER WHETHER THE COURT BELOW

EMPLOYED THE PROPER STANDARD IN DETER-

MINING THAT THE JURY INSTRUCTIONS GIVEN

IN THIS CASE WERE HARMLESS BEYOND A

REASONABLE DOUBT.

Even if unconstitutional jury instructions may under

some circumstances be held harmless, the question as to the

proper means to identify harmless error is unsettled. In

Chapman v. California, supra, 386 U.S. at 23, the Court criti-

cized an "overemphasis upon [a standard] of ‘overwhelming

evidence,'" and embraced instead an approach which asked whether

“the error complained of . .. contribute[d] to the verdict

obtained," id. at 24. The Court cited with approval in Chapman

its earlier opinion in Fahy v. Connecticut, 375 U.S. 85, 86-87

(1963), in which it had defined the inquiry to be “whether there |

is a reasonable possibility that the evidence complained of

might have contributed to the conviction.” Id.

Yet in Harrington v. California, 395 U.S. 250, 254

(1969), while insisting that "[w]Je do not depart from Chapman;

nor do we dilute it by inference," the Court nevertheless

affirmed a conviction, despite the admission of several con-

fessions in violation of Bruton v. United States, 391 U.S. 123

(1968), on the ground that "the case against Harrington was so

overwhelming that we conclude that this violation of Bruton was

harmless beyond a reasonable doubt. . . ." Id.

Subsequently, in Milton v. Wainwright, 407 U.S. 371, 377

(1972), the Court again affirmed a conviction, despite the use

at trial of a statement taken in violation of Massiah v. United

« 28 «

+ ~~ ee a ceee eee ensee}

States, 377 U.S. 201 (1964), on the ground that, in light of

three other confessions lawfully admitted against the petitioner,

this Court was left "with no reasonable doubt that the jury at

petitioner's 1958 trial would have reached the same verdict"

irrespective of the unlawful evidence.

In subsequent cases, the Court has alternatively employed

the Chapman test of whether there exists "a reasonable possibil-

ity that the improperly admitted evidence contributed to the

conviction," see, e.g., Schneble v. Florida, 405 U.S. 427, 432

(1972), and the Harrington-Milton test of whether "the independ- |

ent evidence 'is . . . overwhelming'" and the unconstitutionally

admitted evidence "merely cumulative," see, e-.g-, Brown v. Unit.

States, 411 U.S. 223, 231 (1973). |

Commentators have accurately observed that the focii of

the two tests are differents: the former emphasizes the probable

taint of the effect of the constitutional error on the delibera-

tions of the jury, while the latter focuses on the quantum of the

20/

untainted evidence.

2Y See generally, Comment, Harmless Error: The Need for a Uniform .

Standard,"53 Stgohn's L.Réev.541(1979) ;Fields,"Harmless Error: A

Process in Need of a Rationale," 125 U.Pa.L.Rev.15(1976);-Note,

“Harmless Constitutional Error: A Reappraisal," 83 Harv. L. Rev.

814 (1970); Mause, “Harmless Constitutional Error: The Implica-

tions of Chapman v. California," 53 Minn. L. Rev. 519 (1969);

Note, "Harmless Constitutional Error," 20 Stan. L. Rev. 83 (1967).

= 28 «

In their review of federal constitutional errors, the

circuit courts have demonstrated confusion on the proper test to

employ; compare United States v. Christia, 571 F.2d 64 (lst Cir.

1978); United States ex rel. Macon v. Yeager, 476 F.2d 613 (3rd |

Cir. 1973); Watson v. Foster, 570 F.2d 501 (4th Cir. 1979);

Blackburn v. Cross, 510 F.2d 1014 (Sth Cir. 1975); united States

Vv. Mancillas, 580 F.2d 1301 (7th cir. 1978); united States v.

Lonjee, 603 F.2d 1342 (9th Cir: 1979) with United States v. Grant,

494 F.2d 120 (2d Cir. 1974); United States v. Charlton, 565 F.2d |

86 (6th Cir. 1977); United States v. Mancino, 468 F.2d 1350 (8th

Cir. 1972); Bond v. Oklahoma, 546 F.2d 1369 (10th Cir. 1976);

United States v. Lee, 489 F.2d 1242 (D.C. Cir. 1973).

Different tests are also employed by different panels

with the same circuit. Compare Blackburn Vv. Cross, supra, with

Hoover _v. Beto, 467 F.2d 516 (5th Cir. 1972).

State courts have also settled upon different tests.

Compare McCroskey v. State, 586 S.W.2d 1 (Ark. 1979); People v.

Bascomb, 392 N.E.2d 1130 (Ill. 1979); Meyer v. State, 406 A.2d

427 (Md. 1979); State v. Porraro, 404 A.2d 465 (R.I. 1979); State

v._Barkdale, 590 S.W.2d 931 (Tenn. 1979) with Kelly v. State, 366

So.2d 1145 (Ala. 1979); Lakes v. State, 261 S.E.2a 744 (Ga. 1979);

Mulry v. State, 399 N.E.2d 413 (Ind. App. 1980); State v. Hendersor

603 P.2d 613 (Kan. 1979); State v. Hassapelis, 404 A.2d 232 (Me.

1979); State v. Brown. 606 P.2d 678 (Ore. 1980); Haney v. State,

588 S.W.2d 913 (Tex. 1979); Nelson v. Wyoming, 599 P.2d 1326

(Wyo. 1979).

2)/ As Justice Shea points out in his dissent in McKenzie, supra,

Sandstrom II, 603 P.2d 244, 245 (Mont. 1979). Accord: State v.

In this case, the Montana Supreme Court discerned three

different standards in this Court's prior decisions and stated

frankly that

"[a]s far as we can determine, the

United States. Supreme Court has not

yet fashioned a uniform standard for

determining harmless federal constitu-

tional error . . . Under such circum-

stances, we feel free to adopt any of

the three standards in assessing federal

,constitutional harmless error within the

confines of Chapman. It seems to us that

the overwhelming weight of the evidence

standard addresses the realities of jury

trial to a greater degree than the others

in the context of the McKenzie case despite

criticism off this standard by text writers

and local commentators." (Emphasis added) 21/

State v. McKenzie III, supra, 608 P.2d at 458.

}

608 P.2d at 463-64, the absence of a uniform standard has given the

McKenzie majority an extraordinary sense of freedom, for in Sand-_

strom, and every other Montana case containing a Sandstrom error,

except McKenzie, the Montana court has employed not the "over- |

whelming evidence test"but instead the Chapman test; State v.

Hamilton, 605 P.2d 1121, 1131 (Mont. 1980); State v. Wogaman,

610 P.2d 1161 (Mont. 1980); State v. Martinez, w Pe-2d_s (Mont.

June 13, 1980) (No. 14630).

« 29 a

Perhaps different tests are constitutionally warranted

' depending upon the nature of the constitutional error that has

_ occurred; some courts have suggested such an approach. See, O.@e51

United States v. Fueston, 426 F.2d 785 (9th Cir. 1970). If

differences are warranted, however, errors which "bias the machin-

ery for bringing evidence before the jury," Note, "Harmless Con-

stitutional Error: A Reappraisal, 83 Harv. L.Rev. 814, 820 (1970),

must surely be held to the stricter standards. And errors in

the instructions given a jury on how to evaluate trial evidence

directly involve "the machinery" of a criminal trial; inevitably |

such errors “materially affec[t] the deliberation of the jury,” |

Holloway v. Arkansas, supra, 435 U.S. at 490, for they structure

those deliberations. "A crucizl assumption underlying [the jury] |

system is that juries will follow the instructions given them by |

the trial judge. Were this not so, it would be pointless for an |

appellate court to reverse a criminal conviction because the jury |

was improperly instructed." Parker v. Randolph, 442 U.S. 62, 73

(1979).

Yet the Montana court turned to the least demanding test

to evaluate the error here. Moreover, although it "omitted en-

tirely any analysis of the unconstitutional instructions," State

v. McKenzie ITI, supra, 608 P.2d at 474 (Shea, Jr. dissenting)

and although it acknowledged the presence of "conflicting testi-

mony of psychiatrists" on the disputed element of intent, State v.

McKenzie III, supra, 608 P.2d at 459, the Montana court neverthe-

less found the error to be harmless because of its own view of the

"overwhelming" evidence of intent. Id. at 459.

« 20 =

In his careful analysis of the jury instructions, Justice.

Shea, dissenting in McKenzie III, demonstrated that due to the

| mumerous and confusing counts on which the jury was instructed,

“it is impossible to determine which path or paths the jury took

to each of the convictions." State v. McKenzie III, supra, 608

P.2d at 470 (Shea, J. dissenting). Yet he found it clear that "(t]he

unconstitutional Sandstrom-type presumptions permeate the in-

structions given to the jury in this case," id. and could well i

have affected the jury's deliberations on many possible paths

to a conviction. (

In Gregg v. Georgia, 428 U.S. 153, 193 (1976), this Court

indulged the assumption that "[j]Juries are invariably given care-

ful instructions on the law and how to apply it before they are

authorized to decide the merits of a lawsuit," deeming it “quite

simply a hallmark of our legal system that juries be carefully }

and adequately guided in their deliberations.” In other cases,

especially those involving a capital crime, the Court has in-

sisted instructions be accurate, and that doubts concerning the

adequacy of jury instructions "be resolved in favor of the

accused." Andres v. United States, 333 U.S. 740, 752 (1948);

accord Carlton v. Utah, 130 U.S. 83 (1889); Stromberg v.

California, 283 U.S. 359, 367-68 (1931); Terminiello v. Chicago,

337 U.S. 1, 5 (1949); Street v. New York, 394 U.S. 576, 585-86

(1969).

a 29 «

ett

In light of widespread confusion on the proper standard |

for judging harmless error and the serious tendency of some lower!

courts "to sanction egregious violations of the constitutional

rights of criminal defendants by blandly reciting the formula

‘harmless error’ whenever it appears that the accused was

factually guilty,” Briggs v. Connecticut, _U.S.__, 48 U.S.L.W.

3801 (U.S., June 10, 1980) (Brennan and Marshall, JJ., dissenting

from denial of certiorari), petitioner urges the Court to grant

this petition in this case and address the merits of this issue.

—

— ee ee eee.

Ift.

THIS COURT SHOULD GRANT CERTIORARI

TO CONSIDER WHETHER THE IMPOSITION

OF THE SENTENCE OF DEATH BY HANGING

FOR THE CRIMES OF DELIBERATE HOMICIDE

AND AGGRAVATED KIDNAPING UNDER THE LAW

IN EFFECT IN MONTANA AT THE TIME OF THE

OFFENSE FOR WHICH PETITIONER WAS CON-

VICTED COMPORTS WITH THE SIXTH, EIGHTH,

AND FOURTEENTH AMENDMENTS TO THE CON-

STITUTION OF THE UNITED STATES.

‘

This case involves the only death sentence imposed under

a Montana capital punishment statute enacted in 1973 in the wake

22/

of Furman v. Georgia, 408 U.S. 238 (1972), which was thereafter

amended -- first in 1974 and then again in 1977 -- to provide

different procedures for imposition of death sentences for the

crimes of “deliberate homicide" and “aggravated kidnaping." Under

the 1973 statute, the trial court was required to impose a death

sentence for six categories of "deliberate homicide" and the

one eae > ees eee

offense of kidnaping unless the trial court, sitting without a

jury, found that there were "mitigating circumstances." Mont.

Rev. Codes Ann. §94-5-304 (1974 supp.).

22/ The Montana Supreme Court invalidated the State's pre-Furman

capital sentencing procedure in State v. Rhodes, 524 P.2d 1095,

1099 (1974). The Montana Criminal Code Commission explained the

Montana Legislature's post-Furman statute applicable in petition-

er's case as follows:

“if any capital punishment statute is to

achieve constitutional approval it must

be both mandatory and specific. Subsection

(1) purports to establish mandatory capital

punishment by use of the terms ‘shall.' This

is followed by a humanistic escape valve in

the phrase, ‘unless there are mitigating cir-

cumstances.' The terms are apparently con-

tradictory -- but, in fact, the mandatory

language is subject to the exception and

ultimately only a test case in the United

States Supreme Court can ascertain the

constitutionality of the provision."

Criminal Code Commission Comment to Mont. Rev. Codes Ann. §94-5-

105 (1973 supp.).

- 31 -

The determination whether sufficient undefined “mitigating

circumstances" exist to justify the imposition of a sentence less

' than death under this statute was to be made “exclusively” by the

| trial court. Mont. Rev. Codes Ann. §95-2212 (1969). No standards

or procedures were provided to guide this sentencing discretion.

When the Supreme Court of Montana vacated pre-Furman

death sentences in 1974, it commented that:

“Subsequently [to Furman], the Legislature

enacted into law a mandatory death penalty.

We emphasize here that our [present] holding

does not in any way purport to rule on the

validity of the new statute." State v. Rhodes

Supra, note 22, 524 P.2d at 1101.

In its consideration of petitioner's appeal, the Montana |

Supreme Court reviewed the 1973 death penalty statute in light of

this Court's decisions in Gregg v. Georgia, 428 U.S. 153 (1976),

and companion cases. It upheld the constitutionality of the stat- |

ute, noting that "(t]he sentencing procedure ... requires the |

individual characteristics of the person convicted be considered," |

State v. McKenzie I, supra, at 557 P.2d 1030, that “[rleview of

the sentence imposed is provided for," ibid., and that "'jury

participation in the sentence' is [not] a necessity for constitu-

tionality," id. at 1031. On initial remand from this Court, the

Montana Court reiterated its holding, stating:

“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 constitution-

al standards."

State v. McKenzie II, supra, at 581 P.2d 1229. That determina-

tion was readopted by the Montana Supreme Court in State v.

McKenzie III, supra, 608 Pp.2d at 450-51 and the consequent affirm-

ance of petitioner's death sentences presentsa number of questions

—— eeeEEeEeEEeEeEeEe—eeEeEE EEE

——— nn eee ——— i §«-_e ll ——

invoking this Court's "oblig ion to re-examine capital sentenc-

ing procedures against evolving standards of procedural fairness

in a civilized society." Gardner v. Florida, 430 U.S. 349, 357

(1977).

A. The Failure of Montani's 1973 Capital

Sentencing Law to Meet the Procedural

Requirements of Furman v. Georgia.

Petitioner has plainly been condemned under a capital

sentencing procedure that fails to “address the concerns expressed

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

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

penalty for five categories of "deliberate homicide" and any

Ee & ooo

“aggravated kidnaping” resulting in the death of the victin. sub-

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

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 hanged unless undefined

-—-e2--— +

“mitigating circumstances" are found. See, e.g., Winston v.

United States, 172 U.s. 303 (1899) (rejecting the “mitigating

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

discretion to impose or not impose the death penalty is not mean-

ingfully circumscribed by such a formula. This Court squarely so

held in 1972 when, pursuant to Purman, it vacated death sentences

imposed under the laws of at least three States that used the

formula. Tilford v. Page, 408 U.s. 939 (1972) (per curiam) (see,

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

Williams v. Kentucky, 408 U.s. 938 (1972) (per curiam) (see, Sed-+

@ 99 «

}

Edwards v. Commonwealth, 298 Ky. 366, 182 S.W.2da 948, 951 (1944) );

Herron v. Tennessee, 408 U.S. 937 (1972) (per curiam) (see Tenn.

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

51 S.W.2d 843, 848 (1932)).

The 1973 Montana statute “simply papered over the =a

of unguided and unchecked . . . discretion" in death sentencing,

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

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

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

made a mandatory death penalty the presumptive sentence for a

broad roster of criminal offenses, see Roberts v. Louisiana, 428

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

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

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

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

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

nature of the crime and the individual defendant," Gregg v. Georgia,

Supra, 428 U.S. at 206 (plurality opinion).

Simply narrowing slightly the range of capital crimes

or substituting standardless judicial discretion for standardless

23/ In the aftermath of Furman, this Court and lower courts in-

validated discretionary death sentences for crimes much more

narrowly defined than those for which petitioner was condemned

see, @-g-, Duling v. Ohio, 408 U.S. 936 (1972) (see former Ohio

Rev. Code Ann. §2910.04 (1953); Ohio Acts 1925, (Vol. CXI, p.77));

People v. Fitzpatrick, 32 N.y.2d, 499, 346 N.Y.S.2d 793, N.E.24 13

(1973); People ex rel. Rice v. Cunningham, 61 I11.2d 353, 336 N.E.

2d 1 (1975). See generally, Roberts v. Louisiana, supra, (plural-

ity opinion).

a SS

24/

jury discretion in capital sentencing does not meet Eighth

Amendment requirements. See People ex rel. Rice v. Cunningham,

61 Ill. 2d 353, 336 N.E.2d 1 (1975). A state “must channel the

sentencer's discretion by 'clear and objective standards’ that |

provide ‘specific and detailed guidance’ and that make ‘'rational-

ly reviewable the process for imposing a sentence of death.'"

Godfrey v. Georgia, _U.S.__, 48 U.S.L.W. 4541, 4543 (U.S., May

20, 1980) (citations omitted). At the heart of this Eighth Amend-

ment requirement is an "informed, focused, guided and objective

inquiry into the question whether [a particular defendant] ...

should be sentenced to death." Proffitt v. Florida, 428

U.S. 242, 259 (1976).

The 1973 Montana statute provided no such inquiry. In- ,

stead petitioner was sentenced to die simply because the judge '

that sentenced him found that the death penalty was "justified"

in his case. Ct. File Item 169; Appendix H, infra at 9. While

24/ Many discretionary death sentences reversed in the wake of

Furman had been imposed by a judge after a bench trial, see, e.g.,

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

State, 247 Md. 404, 231 A.2d 501 (1967); Pope v. Nebraska, 408

U.S. 933 (1972) see State v. Pope, 186 Neb. 489, 184 N.W.2d 395

(1971); Staton v. Ohio, 408 U.S. 938 (1972) see State v. Staton,

25 Ohio St.2d 107, 267 N.E.2d 122 (1971); or upon a guilty plea,

see, €.g., Alvarez v. Nebraska, 408 U.S. 937 (1972) see State v.

Alvarez, 185 Neb. 557, 177 N.W.2d 591 (1970) Menthen v. Okla-

homa, 408 U.S. 940 (1972) see Menthen v. State, 492 P.2d 351

(Okla. Crim. App. (1971).

In Proffitt v. Florida, supra, 428 U.S. at 253 (plurality

opinion), the Court ruled that sentencing judges must be “given

specific and detailed guidance to assist them in deciding whether

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

that "trial judges can be trusted to exercise their discretion in

a responsible manner" and need no standards or guidance “is incon-

sistent with the basis upon which the Florida capital sentencing

procedure was upheld” in Proffitt. Gardner v. Florida, 430

}

U.S. 349, 360 n.1l (1977). |

the judge assigned various reasons for his decisions, neither

the aggravating nor the mitigating factors he POOR nor the

procedure by which he found them had any statutory basis.

In short, nothing about the statutory and judicial pro-

cess through which petitioner -- and only petitioner -- was se-

lected to die under the former Montana death penalty law meaning-

fully responded to Furman's mandate that "discretion . .. ona

matter so grave as the determination of whether a human life

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

limited so as to minimize the risk of wholly arbitrary and capri-

cious action." Gregg v. Georgia, supra, 428 U.S. at 189. This

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

mination of the presence or absence of statutorily undefined

“mitigating circumstances" was the kind of amorphous and discre-

tionary standard condemned in Furman, Petition and Motion in Miti-

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

were unable to determine exactly what "matters in mitigation" “a

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

several considerations to the court as mitigating factors: peti-

tioner's youth, id. at 3, his deprived and rootless background,

ibid., his "mental disease" or "personality disorder” found by

psychiatrists for both the defense and prosecution, ibid., and

the court's previous agreement to sentence him to a term of im-

prisonment upon his guilty plea, id. at 4. The Court's written

Findings, Conclusions and Sentence, Ct. File Item 169; Appendix

H, infra, discusses primarily nonstatutory factors in aggrava-

tion -- the seriousness of the crime, the “dangerousness" of the

defendant, and his prior record, id. at 7-8, and the need to keep

him from being “turned loose to menace society again," id. at 9.

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

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

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

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

court in petitioner's case found them nonetheless authorized and

required by "[rjeading . . . provisions together” which required

presentence investigations in all felony cases and mandated sen-

tencing in all cases "in accordance with ... (the) individual

characteristics, circumstances, needs and potentialities" of the |

defendant. State v. McKenzie II, supra, 581 P.2d at 1229. In

actuality, such provisions were not required, but were discretion-

ary proceedings not directly applicable to capital cases. See id.

at 1260-1271 (Shea, J., dissenting).

Court should grant certiorari because it "cannot tolerate the

infliction of a sentence of death under legal systems that permit |

this unique penalty to be wantonly and freakishly imposed." Ibid.,

quoting Furman v. Georgia, supra, 408 U.S. at 310 (concurring op inion|

| Of Mr.Justice Stewart).

B. The Total Lack Of Jury Participation

In Capital Sentencing.

This Court heretofore has reserved judgment on whether

"the Constitution requires that the death sentence be imposed

bya jury." Lockett v. Ohio, 438 U.S. 586, 609 n.16. The decision

that petitioner be sentenced to death was made solely by the trial

judge. This case thus squarely presents that question.

27/

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

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

determined with near unanimity that infliction of the death connie

should be put in the hands of the jury rather than the judge. In-

deed, "[e]xcept for four States that entirely abolished capital

punishment in the middle of the last century, every American jur-

isdiction has at some time authorized jury sentencing in capital

cases." McGautha v. California, 402 U.S. 183, 200 n.1l (1971).

See Woodson v. North Carolina, supra, 428 U.S. at 291-292. In the

last ten years, only Montana and a few other states have reversed

this historical evolution by removing the jury altogether from the

sentencing process.

In its 1976 decisions holding that the death penalty

could be a constitutionally appropriate punishment for some crimes

this Court reaffirmed the desirability of jury input in the capital

27/ Kinsella v. Singleton, 361 U.S. 234, 249, 255 (1960) (dissent-

ing and concurring opinion of Mr. Justice Harlan).

sentencing process. Gregg v. Georgia, supra, 428 U.S. at 190;

Proffitt v. Florida, supra, 428 U.S. at 252. And while it has

“never suggested that jury sentencing is constitutionally requir-

ed," Proffitt v. Florida, supra, 428 U.S. at 252, neither has it

considered nor approved a post-Furman death penalty statute which

excluded the jury totally from the process of determining exavelt

It has approved only one encroachment upon the jury's traditional

sentencing power in a capital case: the system whereby a Florida

trial judge may impose a death sentence where a jury's recommenda-

tion of life imprisonment is clearly unreasonable. See Proffitt

20/

v. Florida, supra.

28/ See also Witherspoon v. Illinois, 391 U.S. 510, 520 n.15

(1968); McGautha v. California, supra, 402 U.S. at 200 n.11,21i.

29/ The Court's conjecture that "judicial sentencing should lead,

if anything, to even greater consistency in the imposition at

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

is more experienced in sentencing than a jury, and therefore is

better able to irnose sentences similar to those imposed in anal-

ogous cases," id. at 252, must of course, be taken in the context

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

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

at the discretion of the trial judge and may be increased only

where a life sentence would be clearly unreasonable, id.at 249.

Even so, it is not borne out by the record of extensive documenta-

tion of widely varying sentencing attitudes and practices among

judges. See, e.g., TWENTIETH CENTURY FUND, TASK FORCE ON CRIMINAL

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

DOING JUSTICE: THE CHOICE OF PUNISHMENTS (1976); FRANKEL, CRIMINAL

SENTENCES -- LAW WITHOUT ORDER (1972); HOGARTH, SENTENCING AS A

HUMAN PROCESS (1971); Zumwatt, The Anarchy of Sentencing in the

Federal Courts, 57 J. AM. JUD. SOC. 96 (1973).

39 The Court described Florida's sentencing system as follows:

"The jury's [sentencing] verdict is determined

by majority vote. It is only advisory; the

actual sentence is determined by the trial

judge. The Florida Supreme Court has stated,

however, that '[i]n order to sustain a sentence

of death following a jury recommendation of life,

the facts suggesting a sentence of death should

This precedent obviously does not resolve the constitu-

tionality of Montana's procedure. The Court should review the

question whether the statutory exclusion of the jury from the |

capital sentencing decision is consistent with the "evolving

standards of procedural fairness in a civilized society,"

Gardner v. Florida, supra, 430 U.S. at 357 (plurality Opinion),

“employed by the State to select persons for the unique and

irreversible penalty of death," Woodson v. North Carolina,

Supra, 428 U.S. at 287 (plurality opinion) (footnote omitted).

C. Unreliability of the Factual Foundation

of Petitioner's Death Sentence.

This Court has recognized that "(bJecause of [the] ...

qualitative difference [between the death penalty and a sentence

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

for reliability in the determination that death is the appropriate |

punishment in a specific case," Woodson v. North Carolina, supra,

428 U.S. at 305 (plurality opinion) (footnote omitted). Because

“the action of the sovereign in taking the life of one of its

citizens . . . differs dramatically from any other legitimate

state action, [i]t is of vital importance to the defendant and

to the community that any decsion to impose the death sentence

be, and appear to be, based on reason rather than caprice and

emotion.” Gardner v. Florida, supra, 430 U.S. at 359 (plurality

opinion).

30/ cont'd.

be so clear and convincing that virtually no

reasonable person could differ.' Tedder v. State,

322 So.2d 908, 910 (1975).”"

Proffitt v. Florida, supra, 428 U.S. at 248-249 (plurality opin- |

ion ). In Florida, therefore, there is substantial presumption |

that the jury's iso sentence will, in, fact, be sed.

See Gardner ¥. Plor da “Lupra. In Montana, however, thePgsed

plays no role in sentencing whatsoever. :

Yet the trial judge's deliberation on petitioner's

sentence began with a jury's verdict being pronounced and publi-

31/

cized that required a death sentence unless the court interceded

with a finding of “mitigating circumstances." The judge was eavedl

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

1 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 adversar-

ies [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 had been

written.

Moreover, the written Findings of the trial court --

which ranged over numerous matters quite distinct from the ques- |

tion of "mitigation", contained two significant factual errors. |

First,although 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. See T. 2605. But in its "Findings, Conclusions, Sen-

tence and Order,” the trial court imposed the death penalty upon

petitioner .because "[{t]he evidence in the case, and as found by

the jury discloses a brutal, conscienceless, torture, rape and

31/ The Montana procedures utilized here unnecessarily subject

a judge to the public pressures 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 over-

rule the considered decision of twelve citizens who have sat

through the trial of a case and rendered a capital verdict consti-

tute too great a threat to the judge's impartiality to be permitted

consistently with the Eighth and Fourteenth Amendments. See

generally Beck v. Alabama, _U.S.__, 48 U.S.L.W. 4801,4806 n.22

(U.S. June 17, 1980); Tumey v. Ohio,273 U.S. 510 (1927); Ward v.

v eo o% — _—

deliberate killing of a human being,” and because "of the rape

torture, kidnapping and killing of Lana Harding of which the

defendant has been found guilty," Ct. File Item 169, at pp. 7, 87)

Appendix H, infra (emphasis added).

Second, the trial court asserted that “under existing

Montana Statutes the defendant under a 100 year imprisonment

sentence would automatically be eligible for parole in 12 1/2 years

less good time allowance [and] .. . the 12 1/2 years could and

would be cut so that the defendant would only be required to

service [sic] approximately seven years of the 100 year rer

33/!

fore he would be turned loose." Td. at9. This is simply incorrect:

31/ cont'd.

City of Monroeville, 409 U.S. 57 (1972); Connally v. Georgia, 429

U.S. 245 (1977).

32/ The assertion that the evidence "as found by the jury” sui

a "deliberate" killing was also inaccurate.

33/ The trial judge's assertion that petitioner "would be turned

loose to menace society" after serving only seven years of a one

hundred year sentence is erroneous. Under Mont. Rev. Codes Ann.

§95-3214(1) (a) (1973 Supp.), a prisoner is eligible for parole

after “he has served at least one-quarter (1/4) of his full tern,

less good time allowances off, as provided in section 80-1905."

Under the latter section, it would be impossible to accumulate

more than 12 1/2 years, which would reduce the twenty-five years

("one quarter . . . of his full term") to 12 1/2 years. and of

course ~~ contrary to the judge's flat statement -- there is no

guarantee that a prisoner who is eligible for parole at this

point would be granted it.

o 2 =

Petitioner's submission here is not that the trial court

was forbidden to make a finding of rape even though the jury had

34/

not made such a finding, or that the trial judge was forbidden

to evaluate the chances of petitioner's being paroled. But in

his finding of rape, the trial judge relied on a jury finding

which was never in fact made; and in his estimation of petition-

er's chances for parole, the trial judge misunderstoud the govern-

ing law. “When life itself is what hangs in the balance, a fine

precision in the process must be insisted upon." Lockett v. Ohio,

Supra, 438 U.S. at 620 (concurring opinion of Mr. Justice

Marshall). This Court should grant certiorari to consider the

reliability of the "blunderbuss, virtually mandatory approach to

imposition of the death penalty," ibid., used by Montana here.

For just as in Gardner v. Florida, supra, it appears probable

that petitioner's "death sentence rests on an erroneous factual

predicate." 430 U.S. 262.

3Y In affirming petitioner's death seritence, the Montana Supreme

Court also relied on the trial judge's erroneous finding of rape,

since it cited in support of its affirmance the trial judge's find-

ings "(1) that the murder was committed in the commission of a

felony; (2) [that there was] a sexual attack on the victim, and

(3) [that] ‘it was brutal, conscienceless, torture rape and

deliberate killing of a human being." State v. McKenzie I, supra,

557 P.2d at 1034.

IV.

THE COURT SHOULD GRANT CERTIORARI TO

CONSIDER WHETHER THE FAILURE OF THE

COURTS BELOW TO ENFORCE A PLEA BARGAIN-

ING AGREEMENT BETWEEN PETITIONER, THE

STATE, AND THE TRIAL COURT, WHICH PETI- ;

TIONER'S COUNSEL HAD RELIED UPON IN

REVEALING TO THE STATE PRIOR TO TRIAL

PETITIONER'S TRIAL STRATEGY AND TACTICS,

DEPRIVED PETITIONER OF DUE PROCESS OF

LAW IN VIOLATION OF THE FOURTEENTH

AMENDMENT TO THE CONSTITUTION OF THE

UNITED STATES.

This Court has recognized the "[t]he disposition of

criminal charges by agreement between the prosecutor and the

accused, sometimes loosely called 'plea bargaining', is an-essen-

tial component of the administration of justice," Santobello v.

New York, 404 U.S. 257, 260 (1971). See also Blackledge v. f

Allison, 431 U.S. 63, 66 (1977). As a “phase in the process of

criminal justice," plea bargaining "must be attended by safe-

guards to insure the defendant what is reasonably due in the

circumstances," Santobello v. New York, supra, 404 U.S. at 262.

This case presents an instance where these "safeguards"

broke down, and petitioner was prejudiced by unfair plea bargain-

ing practices. Like Blackledge v. Allison, supra, petitioner's

case presents a significant question of the fairness of plea

bargaining procedures which should be resolved by this Court.

Petitioner was tried, convicted and sentenced to death

after the county attorney who prosecuted him, and the judge who

heard his case, had agreed to permit him to plead guilty and to

receive a sentence of imprisonment -- and after his counsel, in

reliance on that agreement, had revealed to the State the substance

‘

mead

35/

of his planned defense. In a meeting on December 22, 1974, |

defense counsel, County Attorney Nelson, and Special Prosecutor

Douglas Anderson agreed that petitioner would plead guilty to bss,

charges (deliberate homicide and aggravated assault) and receive

sentences of 50 and 20 years, respectively, on those counts.

Affidavit of Barney Reagan, Esq., Ct. File Item 99, at p.2.

On December 23, 1974, that agreement was presented to

the trial judge, R.J. Nelson, during a three hour meeting in

chambers. Id. at 3. Judge Nelson agreed to accept the proposed

pleas after a slight modification in sentence (which was agreed

to by all parties). Ibid. The trial court set December 30, 1974,

for the entry of guilty pleas pursuant to the agreement. Id. at

4. Also pursuant to that understanding, counsel for both sides

held a further meeting on December 23, at which the defense pre-

sented to the prosecution the tactics it envisioned using at

eee ee ee ce ane

trial and the weaknesses it saw in the State's case, in order to

assist the prosecutors in explaining and justifying the plea

agreement to the Sheriff's office, the victim's family and the

35/ The evidence on this matter which appears in the record

consists of defense counsel's affidavits and statements to the

trial court, and the trial judge's responses. Other than in its

unsworn Brief in the Montana Supreme Court ~~ where it "agree[d]

with the basic factual description of the events" given by defense

counsel, State v. McKenzie I, supra, 557 P.2d at 1038, see Brief

of the State of Montana v. McKenzie, Mont. Sup. Ct. No. 13011, at

pp. 17-21 -- there has never been any response to these claims by

counsel for the State of Montana. In its Brief, the State claimed

that it “was well understood that the prosecution still consider-

ed" Lana Harding's family's approval necessary the day before the

meeting with J&dge Nelson. Id. at 19. It did not address wha ‘what

representations had been made in the meeting itself. Though it |

acknowledged that information concerning the defense's trial

tactics had been revealed after the meeting, it denied that it

had been "requested", and said that it all “was either already

known to the prosecution or of no signicance to the prosecution's

case." “Id. at pp. 20, 21.

- 442.

36/

public. Ibid.

On December 28, 1974, counsel for the State advised defense

counsel that they were abrogating the plea agreement because of

objections voiced by Ms. Harding's family. POP aad On December

30, 1974, the parties nonetheless appeared at the hearing that

had been set for entry of the pleas. T. 1-6 (Dec. 30, 1974).

Defense counsel advised the court that "the prosecution does

not wish to proceed with the agreement and understanding that we

reached here, with this court, on the 23rd day of December, 1974"

T. 5 (Dec. 30, 1974); and see id. at 3-6, 12-16, and expressed

petitioner's willingness "to go ahead with that [December 23)

agreement and understanding reached." Ibid. The court responded

that "if [the prosecutors] ... don't want to go through with

plea bargaining, I don't suppose they have to," and asked County

Attorney Nelson, "Do you want to proceed the way that you agreed

with counsel last Monday, the 23rd of December . . . ?" Ibid. The

prosecutor responded that he did not. The trial judge denied the

defense motion (Ct. File Item 94) that he disqualify himself be-

cause of involvement in the bargaining process, T. 24 (Dec. 20,

38/

1974, and ordered the case to trial over continuing defense

36/ The weaknesses the defense foresaw were due primarily to the

manner in which the investigation had been conducted; the defense

had concluded that some of the evidence obtained and the evidence

collected would be inadmissible at trial. fbid.

37/ In his Reply Brief in the Montana Supreme Court petitioner's

counsel contended that he was told by the prosecutors that Ms.

Harding's family did more than "object": her father "threatened

to kill the prosecutors if they went through with the bargain."

Reply Brief of Appellant, State of Montana v. McKenzie, Mont.

Sup. Ct. No. 13011, at p. 12.

38/ The court did permit defense counsel to state for the record

what had transpired with regard to the plea agreement, over the

prosecutor's objection that he didn't “feel that we should make

references to all of this." TT. 14 (pec. 30, 1974). Defense coun-

sel summarized the plea negotiations and stated that petitioner

had agreed to plead guilty in exchange for a sentence of imprison-

= 48 «-

39/

objection.

On the first day of trial, the State was permitted to endorse

fifty-eight more witnesses, Ct. File Item 113, many of whom testi-

fied to the chain of custody of various evidentiary items. T. 80-

81, 88. Petitioner objected to the endorsement of these witnesses

on the ground that the State had discovered the need for many of

them only after the defense had revealed its intended trial tac-

tics pursuant to the plea agreement, but the objection was over-

ruled. T. 91; Ct. File Item 114.

The Montana Supreme Court has affirmed these trial court rul-

ings on three occasions. In its first decision, on petitioner's

direct appeal, it did so on the theory that the State's “intent to

get the reaction of the victim's parents and the sheriff" kept the

agreement from becoming final and that Santobello was distinguish-

able because "[t]here a plea had been entered." State v. McKenzie!

i, supra, 557 P.2d at 1038. After remand by this Court, however

-- as part of its “reconsider[ation of]the entire case," State v.

McKenzie II, supra, 581 P.2d at 1210, but without any new material

3Y (cont'd)

ment, that this arrangement had been accepted by the prosecution

and the court (ibid.), and that the defense in reliance on this

agreement had informed the prosecution of its trial strategy and

tactics and of the weaknesses it perceived in the State's case (id.

at 15). The prosecutor did not respond to or contest any of the

representations, or those made in defense counsel's affidavit filed|

later that day. Affidavit of Barney Reagan, Esq., Ct. File Item

99.

3Y On January 3, 1975, a "Motion to Enforce Agreement of Decem-

ber 23, 1974," was filed by the defense, again setting out the

facts surrounding the plea agreement, Ct. File Item 104, and this

motion was denied that same day, Ct. File Item 105. When, at trial

the State moved to endorse fifty-eight more witnesses -- many of

whom were to testify on chain of custody, the defense objected,

claiming prejudice on account of the abrogated plea agreement, but

the objection was overruled. T. 80-96; Ct. File Items 114, 115.

Finally, at the close of trial, the defense filed a "petition and

Motion in Mitigation," Ct. File Item 163, and a Motion for a New Trial,

Ct. File Item 163, based, in part, on the same grounds, but this

motion was summarily denied by the trial court.

- 46 -

40/

of record before it -- the court recounted what it said was “the

State's version" of the plea bargaining process “that throughout

the discussions the State consistently took the position that no

plea bargain could be entered into without the consent of the —

tim's family and the Sheriff,” and that “any gratuitous informa-

tion that defense counsel believed they had imparted . .. was

either already known to the State or was of no significance. .. .”

Id. at 1214. It then found that “the trial judge accepted the

State's version” and said it did "likewise", ibid. -- although

that “version” was never placed before the trial court, and the

trial court's own language was that the prosecuting attorney had

"agreed." See page 47, supra. Finally, the court on rehearing

said “any statements of defense counsel concerning weaknesses in

the State's case . . . were gratuitous and premature,” and that

"a trial is not a sporting contest ... in which the verdict

turns on nondisclosure of such matter." Ibid. The same version

of events was recounted in the most recent affirmance. State v.

McKenzie III, supra, 608 P.2d at 438-39.

In Santobello v. New York, supra, this Court ruled squarely

that due process requires that “when a plea rests in any signifi-

cant degree on a promise or agreement of the prosecutor . . . such

{/ The State declined to discuss other than the Patterson issues

in its argument on the initial remand. Respondent's Brief on

Remand, State v. McKenzie II, Mont. S. Ct. No. 13011 at 3.

_/ The State's representations on the matter to the Montana cou

in its opening Brief there were limited to what was “understood”

the day before the meeting with Judge Nelson; it never addressed

what transpired in the actual plea discussions themselves. See

note 60, supra; Brief of the State of Montana v. McKenzie, supra

at 19-20.

- 47 -

promise must be fulfilled." 404 U.S. at 262. In petitioner's

case, although no plea was accepted by the trial court, petitioner

nevertheless made a "waiver of [his] constitutional rights” in

consideration of the bargain almost as serious as that “implicit

in [aguilty] plea." 404 U.S. 268 (concurring and dissenting opin-

ion of Mr. Justice Marshall). By revealing to the prosecution

the strategies the defense had planned for trial, petitioner,

through his counsel, opened to the State the "privileged area” in

which his attorney had analyzed and prepared his case. United

States v. Nobles, 422 U.S. 225, 238 (1973). He abandoned his

right “to remain silent unless he [chose] to speak in the unfet-

tered exercise of his ownwill," Malloy v. Hogan, | U.S. 1, 8

(1964), and to force the prosecution to "'to shoulder the entire

load,'" Miranda v. Arizona, 384 U.S. 436, 460 (1966), “to prove

its case without any assistance of any kind from the defendant

himself." Williams v. Florida, 399 U.S. 78, 108 (1970) (dissent- |

ing opinion of Justice Black).

While a criminal defendant may have no absolute right to iil

his guilty plea accepted by a court, Lynch v. Overholser, 368 U.S.

705, 719 (1962), surely if a defendant has been prejudiced by ful-

filling the conditions precedent to a plea bargaining agreement,

and by agreeing to plead guilty with the judge who will preside

over a trial in which he is presumed innocent, the prosecutor's

subsequent unilateral abrogation of that agreement violates funda-

42/

mental fairness. The justifications offered for the State's

42/ The lower federal courts have held that while the binding

nature of a plea agreement may be "a matter of state law...

where . . . there is no showing that the accused was prejudiced

in preparing his defense," Sanchell v. Parratt, 530 F.2d 286, 291

n.3 (8th Cir. 1970), where a defendant "to his prejudice, perforn-

ed his part of the agreement while the Government did not," United

States v. Paiva, 294 F. Supp. 742, 747 (D.D.C.cir. 1969), due pro-

cess requires that the bargain be enforced. See United States v.

- 48 -

breach of its agreement here provide no adequate basis for depart-|

ace from Santobello's rule. Whether it was in fact "always [the

| state’ ‘s) . . . intent to get the reaction of the victim's parents

we the sheriff before . .. [the] bargain would be completed," or

|| whether the prosecutor changed his mind about the bargain because

| of the vehemence with which those parties objected, the result is

the same. It is irrelevant whether or not there is "proof of bad |

not lessen its impact." Santobello v. New York, supra, 404 U.S.

at 262.

faith." "That the breach of the agreement was inadvertent does

“Prosecutorial duties affecting the fairness of trials have |

never been . . . restricted" "to good faith effort." Correale v.

United States, 497 F.2d 944, 947 (lst Cir. 1973). ‘The meticulous |

standards of both promise and performance [required by the Consti-

tution 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. Certiorari should be granted here to elas:

whether the State gained a fundamentally unfair advantage, see

Wardius v. Oregon, 412 U.S. 470 (1973), by abrogating its plea

agreement in this capital case, and whether this is a situation

where “once a defendant has carried out his part of the bargain

the Government must fulfill its part.” united States v. Hallam,

472 F.2d 168, 169 (9th Cir. 1973).

42/ (cont'd) Carter, 454 F.2d 426 (4th Cir. 1972). See also,

e.g., United States v. McClintic, 570 F.2d 685, 692 (8th Cir.1 1978)

(dictum); Hammers v. State, 550 S.w.2da 432 (Ark. 1977); State v.

Davis, 188 So.2d 24 (Fla. App. 1966); Butler v. State, 228 So.2d

;

421 (Fla. App. 1969); State v. Kuchenreuther, 218 S.w.2d rg (Iowa

1971); State v. Brockman, 277 Md. 687, 357 A.2d 76 (1976); eople |

v. Reagan, 397 Mich. 306, 235 N.wW.2d 581 (1975); People v. Sas

68 Mich. App. 452, 243 N.w.2a 18 (1976).

Vv.

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

CAUSF AND WHICH DO NOT “PARTICULARLY DESCRIB[E]

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 suffice as probable cause to search the

arrestee's dwelling, and the permissibility of the seizure under

a search warrant of items which are not mentioned in the warrant

and are neither "contraband" nor evidence of criminal conduct.

The relevant facts may be quickly sketched. At about

6:00 p.m. on January 22, 1974, the day Ms. Lana Harding's dis-

appearance was reported, Pondera County Attorney David Nelson

requested Justice of the Peace Robert Wolfe to issue warrants

for the arrest of petitioner (on a charge of assault) and for

the search of "(t]he residence of [petitioner] and the surround-

ing curtiledge [sic] area known as the old Frank Jochem resi-

dence." The County Attorney presented in support of these

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”;

43/ The Complaint (filed by County Attorney Nelson charging peti-

tioner 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

a "

}

Warrant, and the Sheriff's Return on the Search Warrant, all con- |

tained in Ct. File Item 76, are reproduced in the dissenting

opinion of Judge Shea, State v. McKenzie II, 581 P.2d at 1240-43.

. : . |

{

that there was evidence of "scuffling" in the teacherage where she

resided; that a tennis shoe, a trail "of an object being dragged |

from the teacherage," and "a woman's watch and blood stains" were

found outside the teacherage; that the watch and blceod stains

were found "in the same area as the pickup truck driven by [peti-

tioner] . . . [which was] observed on the evening of January 21,

1974, at approximately 8:00 to 8:30 o'clock P.M."; that the pre-

vious evening petitioner had come to the house of one Dan Pearson

who "resides next to the teacherage directly north of the [peti-

tioner's] residence" and had appeared "highly nervous and excited"

and had requested Pearson's assistance in getting his truck start-

ed; and that Pearson had assisted petitioner to get his truck

started, whereupon petitioner drove off in an easterly direction.

Ct. File Item 76.

44/

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 a] tennis shoe being outside

on the porch and the drag trail, and the blood on the road and

the watch." Ct. File Item 30, at p.6. The deputy, who had inter-

viewed Dan Pearson, also told the Justice of petitioner's appear-

ing at Pearson's house on the previous night ("he [petitioner]

44/ Although Deputy Hoover's January 22, 1974, testimony before

the Justice of the Peace was not transcribed, he gave a deposition

on March 12, 1974, in the presence of counsel for petitioner and

the State, which summarized his earlier testimony. This deposi-

tion appears in the record below as Ct. File Item 30.

had ran a long ways, and. . . he talked very rapidly and seemed

awfully nervous," id. at 7), and of Pearson's helping petitioner

start his pickup truck “in the approximate location of the blood

and watch on the road there." Ibid.

On the basis of the affidavit and additional oral testi-

mony, Justice of the Peace Wolfe issued a warrant for petitioner's

arrest on a charge of misdemeanor assault and a search warrant for

petitioner's dwelling and pickup truck to seize three described

items of petitioner's clothing, five described items of women's

45/ The Montana Supreme Court stated that in support of the

issuance of the search warrant "there was sworn testimony by the

county attorney and deputy sheriff in addition to the affidavit

and the combination thereof established probable cause." State v.

McKenzie I, supra, 557 P.2d at 1035. The record does not reveal

what this "sworn testimony by the county attorney" was, apart

from the affidavit filed by County Attorney Nelson. Deposition

of Justice of the Peace Robert 0. Wolfe, Ct. File Item 30, at

p.4. Insofar as the Montana Supreme Court has relied upon unre-

corded testimony as a basis for issuing the search warrant, a sig-

nificant Fourth Amendment question is presented "whether the Con-

stitution requires that, at or before the time a warrant issues,

the judicial officer make a permanent record of the avidentiary

basis for its issuance." Christofferson v. Washington, 393 U.S.

1090 (1969) (opinion of Mr. Justice Brennan, dissenting from

denial of certiorari).

Indeed, the Montana Supreme Court has itself interpreted ul

state constitution to require a permanent recording of the evi-

dentiary support for a warrant:

However, regardless of whatever additional

information Hallett provided to the judge who

issued the warrant, the failure to put that

information in writing precludes our considera-

tion of whether it might have cured the insufficient

affidavit. This Court has previously construed

Article II, Section 11 of the 1972 Montana Consti-

tution to require that all the facts relied upon by

the issuing magistrate be included in the sworn

affidavit. (citations omitted) .Thomas v. Onstad,

36 St. Rep. 910, 594 P.2d 1137, at 1139 (Montana

1979).

clothing, and “any other controband [sic] articles.” Ct. File

Item 76. 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 pickup." Tbid.

The Sheriff executed these aiid 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 out-

side his house. Ct. File Item 30, Deposition of Sheriff Hammer-

meister at 52-55. He next put petitioner into the patrol car, |

"served the Search Warrant and then we started searching." Id. at |

55. An exhaustive, four-hour search of petitioner's dwelling was

conducted by the Sheriff's deputies, and the Sheriff's Return noted

the seizure of 10 items of clothing, a "pen and jack knife,"

“Pubic hairs of Suspect," “head hairs of suspect," and "1. pickup

45/ cont'd.

Thus the Montana court's ruling in McKenzie that probable cause

to issue a warrant was established by the "combination" of recorde

and unrecorded testimony represents a significant departure from f

state constitutional standards in upholding petitioner's conviction.

46/ Neither the Stte 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" ex-

ception 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).

two (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 trial with significant

} and complete contents." Ct. File Item 76. Of these it 1s, only |

}

|| effect.

A. The Lack of Probable Cause to Search

The Montana Supreme Court's decision that once "'a prob-

ability of criminal conduct . .. [is] shown'", State v. McKenzie

Tit, supra, 608 P.2d at 437 (emphasis omitted), a warrant for

the search of a suspect's dwelling is justified clearly presents

a significant question for review. Nothing in the affidavit or

the oral testimony before the magistrate indicated that any evi-

dence of Ms. Harding's disappearance was to be found within peti-

tioner's dwelling. The magistrate apparently reasoned that be-

cause he found probable cause to believe petitioner assaulted her,

there was probable cause to believe that evidence of his crime

would be found in petitioner's dwelling. Such an inference flies

in the face of the Fourth Amendment's historic definition of

“probable cause" as meaning reasonable grounds to believe that

criminally-related objects are in the place to be searched at th

time when the search is authorized to be conducted.

Under prior decisions of this Court, facts presented to

the magistrate to authorize the issuance of a warrant to search

a dwelling "must be facts so closely related in time to the issue

47/ These two items were a pair of “red wing boots", T.1062,and

a"plaid jacket," T. 2090-2091. The boots were one of the most

damning items of evidence which the state introduced, since an

expert testified that their soles matched the prints found inside

a pair of overshoes, T. 1061-1062, found abandoned near where Ms. |

}

Harding's purse was found. These abandoned overshoes had blood and

brain tissue on them similar to samples taken from Ms. Harding's

body, T. 2140-2147.

- 54 -

iar neat ” ™ —

. . any aN t@ia sac . en

pe ae ee eee : pov eee

Le) ee ee

of the warrant as to justify a finding of probable cause at that

time." Sgro v. United States, 287 U.S. 206, 210 (1932). See alsa

Andresen _ v. Maryland, 427 U.S. 463, 478 n.9 (1977) (dictum). As

this Court noted in Zurcher v. The Stanford Daily, 436 U.S. 547,553

(1978): "[VJalid warrants to search properly may be issued when it

is satisfactorily demonstrated to the magistrate that fruits, - in-

strumentalities, or evidence of crime is located on the premises."

(emphasis added). While "only the probability . .. of criminal

activity is the standard of probable cause" for a search warrant,

Spinelli v. United States, 393 U.S. 410, 419 (1969), the officers

must demonstrate a connection between this criminal activity and

“the premises to be searched", Dumera v. United States, 268 U.S.

435, 441 (1928). What must appear is "'reasonable or probable

cause' to believe that [the searching officers] . . . will find the

instrumentality of a crime or evidence pertaining to a crime" in |

40/

the search, Dyke v. Taylor Implement Co., 391 U.S. 216, 228 (1968).

48/ See Lowery v. United States, 161 F.2d 30, 33 (2d Cir. 1947):

“probable cause for the issuance of a search

warrant necessarily implies, not simply that

there are reasonable grounds to believe that

some violation of law exists, but that there

is a violation in respect to some property

located on some premises or on some person --

each of which can be unmistakably identified,

so as to be capable of being particularly

described in the warrant, from the information

in the affidavit."

- 55 -

As this Court has recognized, grounds to arrest do not

“necessarily provide the basis for a search of the arrestee's

house." Vale v. Louisiana, 399 U.S. 30, 40 (1970) (Black, J.,

dilate a magistrate, the Trial Judge and the Montana

Supreme Court here all made “the unsupportable assumption that

if there is probable cause to obtain an arrest warrant the same

set of facts also supports probable cause to obtain a search

warrant." State v. McKenzie, II, supra, 581 P.2d 1244 (Shea,

J., dissenting).

B. ‘The Generality of the Search Warrant

Moreover, even if the search warrant were properly

issued, it improperly authorized an unconstitutional general

search. The Fourth Amendment's prohibition of warrants not

"particularly describing the... ‘bitin to be seized," is

directed in “precise and clear" language against the "unbridled

authority of a general warrant." Stanford v. Texas, 379 U.S. 476}

481 (1965). A more general warrant than that issued in this case

can hardly be conceived. The warrant authorized the seizure

49 / see United States v. Lucarz, 430 F.2d 1051, 1055 (9th Cir.

1970):

"[O]£ course it cannot follow in all cases,

simply from the existence of probable cause

to believe a suspect guilty, that there is

also probable cause to search his residence.

If that were so, there would be no reason

to distinguish search warrants from arrest

warrants and cases like Chimel v. California,

395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685

(1969), would make little sense.”

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

United States v. Spearman, 532 F.2d 133 (9th Cir. 1976).

of “any . . . controband [sic] articles." That language author- |

ized the searching officers to seize whatever they thought might

be relevant as evidence.

Justice Wolfe stated that the "contraband" catch-all was

intended to allow the seizure of any evidence "[t]hat the Sheriff

felt was pertinent in his investigation and also pertinent to this

specific search” and that it authorized him "to take anything he

wanted to take that he thought might be related to this case."

Deposition of Justice Wolfe, Ct. File Item 30, at p.17. The

Sheriff testified that "the wording [of the warrant] says ‘and

any other contraband’ and I figured that covered what we took in

the way of evidence and items that we took." Deposition of

Sheriff Hammermeister, Ct. File Item 30, at p.73. The items

50/ "Q [Defense Counsel] [Could you seize] [a]nything

that you wanted to take?

A [Sheriff Hammermeister] Well, if it was rele-

vant to the case.

But deemed in your own mind as to whether or

not it was relevant?

Yes.

If you thought that the kitchen stove was

relevant you would have taken that?

Yes, if I felt that the stove was --

well, if I felt that I could justify

the kitchen stove as relevant to the case,

yes.

Q You felt that this would have given you

authority to take that, or the radio or

> OF oO

TV?

A If it fell into either evidence or

contraband.

Q But as you saw it?

A Yes."

Ibid.

seized by the officers were not "contraband" in any meaningful

sense of the term; they were simply items of clothing that

caught the eye of the searching party. The Sheriff was "not cer-

SE ane Sree eeemp<ewen

tain what contraband means, but I felt it was evidence." Id. at

68.

What this warrant specifically authorized and what the

police here deliberately engaged in and what the Montana Supreme

Court explicitly approved of in this case was exactly the kind of

"a general, exploratory rummaging in a person's belongings" that

was the “specific evil . .. [of] the ‘general warrant’ abhorred

by the colonists." Coolidge v. New Hampshire, 403 U.S. 443, 467

(1971) (plurality opinion), see Andreson v. Maryland, supra, 427

U.S. at 480. Although the Fourth Amendment requires that "[a]s to

what is to be taken, nothing is left to the discretion of the

officer executing the warrant," Marron v. United States, 275 U.S.

192, 196 (1927), here everything was left to the discretion of the

officers to determine on the spot what they decided was "contra-

band" or "evidence" of the crime of “assault” petitioner had been

charged with.

5l/ The boots and shirt constituted evidence against petitioner

only as the result of microscopic analysis of them which showed

that the boots had a small trace of blood on them (T. 1035) and

that their soles matched prints inside abandoned overshoes which

had blood and brain tissue on them fT. 1062. These abandoned

overshoes were not found until the day after the seizure of the

boots from petitioner's house. T. 2140. The shirt similarly was

found to have a trace of blood on it. T. 1205. Sheriff Hammer-

meister testified that he seized the_boots because he thought

they matched "footprints at the teacherage on the northwest corner

of the school" and he "just had the strongest feeling about them.”

Deposition of Sheriff Hammermeister, Ct. File Item 30, at pp. 67-

68. He similarly testified that he could not "recall" anything

unusual about the jacket. Id. at 69.

Only once, in Andreson v. Maryland, supra, has this Court,

}

approved language in a warrant approaching the generality of this, |

and there it did so only because the warrant included a "lengthy |

list of specified and particular items, all pertaining to"’a

specific criminal endeavor, 427 U.S. at 480, which made "it clear

from the context" what evidence was and insured the warrant "did

not authorize . .. a search for evidence of other crimes ...."

427 U.S. 481-482. Here the evidence sought was obviously that of

a crime other than "assault", and the "context" of the warrant

did not confine the sheriff‘s search to “specified and partioulay

items" but permitted him to range in a general exploration from

petitioner's closets to his clothes to the hairs on his body for

anything he and the magistrate classed as "contraband". That

only two of the thirteen items taken from petitioner's house and

person were ultimately used in evidence (see note 47 supra),

testifies to the sweeping authority given to, and used by, the

sheriff. This kind of unbridled search power cannot be sustained

so long as this "Court has not done away with the prohibition

against general exploratory searches," State v. McKenzie II, supra,

58i P.2d at 1263 (Shea, J., dissenting), and so long as the prin-

ciple that “'exploratory searches . . . cannot be undertaken by

officers, with or without a warrant'" still stmds, ibid., quoting

United States v. Rabinowitz, 339 U.S. 56, 70 (1950).

Because “[t]Jhe entire record of this arrest and search

and seizure in this case is replete with errors of constitutional

dimension,” id. at 581 P.2d 1266, this Court should grant certiora!

to review it. Under Stone v. Powell, 428 U.S. 465 (1976), no othe!

Court will; and petitioner's life will thus be taken on the basis

of fundamental Fourth Amendment errors which the Montana Supreme

Court has not chosen to correct. 59 _

oe 7 ‘ — —s ka " weeneiaiis

; «> a= Date ss -

c : ‘am a) ees pe “

CONC LUS ION

Petitioner prays that the petition for a writ of

certiorari be granted.

New York, New York

July 25, 1980

Respectfully submitted,

Chad

RNEY REAGAN

Post Office Box 342

Cut Bank, Montana 59427

CHARLES L. JACOBSON

Post Office Box 932

Conrad, Montana 59425

TIMOTHY K. FORD

2101 Smith Tower

Seattle, Washington 98104

JACK GREENBEP(

JAMES M. NABRIT, III

JOEL BERGER

JOHN CHARLES BOGER

DEBORAH FINS

10 Columbus Circle

New York, New York 10019

ANTHONY G. AMSTERDAM

Stanford University Law

School

Stanford, California 94305

ATTORNEYS FOR PETITIONER

- 60 -

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.