State v. McKenzie

NO. 13011

I N THE SUPREME COURT O THE STATE OF M N A A
F OTN

1976

THE STATE O MONTANA,
F

P l a i n t i f f and Respondent,

-VS -
DUNCAN PEDER McKENZ I E , J R . ,
Defendant and A p p e l l a n t .

Appeal from: D i s t r i c t Court of t h e Eighth J u d i c i a l D i s t r i c t ,
Honorable R. J. Nelson, Judge p r e s i d i n g .

Counsel of Record :

For Appellant :

Barney Reagan a r g u e d , Cut Bank, Montana
C h a r l e s L. J a c o b s e n a r g u e d , Conrad, Montana

F o r Respondent:

Hon. R o b e r t L. Woodahl, A t t o r n e y G e n e r a l , Helena,
Montana
John F. North, A s s i s t a n t A t t o r n e y G e n e r a l , a r g u e d ,
Helena, Montana
Douglas Anderson a r g u e d , County A t t o r n e y , Conrad,
Montana

Submitted: September 3, 1976
'!
3 16
- 7

-- Decided:
--
. . -
Filed: \.
M r . J u s t i c e John Conway H a r r i s o n d e l i v e r e d t h e Opinion of t h e
Court.

T h i s a p p e a l i s from t h e d i s t r i c t c o u r t , Cascade County,

f o l l o w i n g a j & r y v e r d i c t of g u i l t y t o t h e crimes of d e l i b e r a t e

homocide and aggravated kidnapping. Punishment under t h e codes

of Montana f o r each crime: d e a t h .

Lana Harding was a 23 y e a r o l d r u r a l s c h o o l t e a c h e r i n

Pondera County. On t h e morning of Tuesday, January 22, 1974,

she f a i l e d t o appear a t school. A t t h e Pioneer School t e a c h e r a g e ,

where s h e l i v e d , t h e bed was found i n a d i s h e v e l e d c o n d i t i o n . The

s h e r i f f of Pondera County was c a l l e d and o f f i c e r s were d i s p a t c h e d

t o t h e s c h o o l , a r r i v i n g t h e r e mid-morning.

I n v e s t i g a t i o n t h a t day r e v e a l e d (1) a r e d t e n n i s shoe

belonging t o Lana j u s t o u t s i d e t h e s c h o o l , (2) a drag t r a i l from

t h e t e a c h e r a g e t o a nearby r o a d , (3) blood n e a r t h e end of t h e drag

t r a i l ( l a t e r i d e n t i f i e d a s Lam's type and R h f a c t o r ) , and (4) a

w r i s t w a t c h belonging t o Lana was found i n t h e same a r e a a s t h e

blood. Lana Harding w a s l a s t seen i n Conrad, some t h i r t e e n m i l e s

from t h e t e a c h e r a g e , on Monday, January 2 1 , 1974 a t about 5:00 p.m.

Defendant had r e c e n t l y moved i n t o t h e community and w a s

working f o r t h e K & K Wholesale Seed Co. l o c a t e d approximately

t h r e e m i l e s from t h e Pioneer School t e a c h e r a g e . Within a day o r

s o b e f o r e January 2 1 , defendant made arrangements t o buy a 1948

b l a c k Dodge pickup, r e c o g n i z a b l e t o most i n h a b i t a n t s of t h e a r e a

due t o t h e f a c t i t had belonged t o one owner f o r a long p e r i o d of

time. On January 21, 1974, defendant worked on t h e pickup a f t e r

work. He w a s seen l e a v i n g t h e K & K Wholesale Seed Co. a t a p p r o x i -

mately 6 : 4 5 p.m., d r i v i n g t h e b l a c k pickup and headed towards h i s
p l a c e of r e s i d e n c e , which was n o t f a r from t h e t e a c h e r a g e . The

pickup was s e e n about 7:00 p.m. about a m i l e from t h e t e a c h e r a g e .

Approximately an hour and twenty minutes later, a t

about 8:00 p.m., defendant knocked on t h e door of t h e Pearson

farm r e s i d e n c e , l o c a t e d a c r o s s t h e road from t h e t e a c h e r a g e . He

asked f o r a s s i s t a n c e i n s t a r t i n g h i s Dodge pickup. It was l a t e r

determined t h e pickup was parked on t h e road where t h e d r a g t r a i l

ended and where t h e blood and watch were found on t h e f o l l o w i n g day,

January 22. A t t h e Pearson r e s i d e n c e defendant asked d i r e c t i o n s

t o h i s own r e s i d e n c e and from t h e r e c a l l e d h i s w i f e t o s a y h e

was coming home. Don Pearson p u l l e d t h e pickup and g o t i t s t a r t e d

and l a t e r noted defendant d i d n o t d r i v e on t o h i s p l a c e of r e s i d e n c e .

S h o r t l y t h e r e a f t e r t h e pickup w a s seen being d r i v e n toward t h e

d r i l l s i t e where t h e body was l a t e r l o c a t e d .

On t h e morning of January 23, Wednesday, t h e body of Lana

Harding was found a t a l o c a t i o n c a l l e d t h e " d r i l l s i t e f ' i n t h e

a r e a of K & K Wholesale Seed Co. The body was c l o t h e d o n l y i n

a s h i r t , sweater and b r a and i t w a s draped o v e r t h e tongue of a

grain d r i l l . She had been s e v e r e l y b e a t e n about t h e head and body.

The f o r e n s i c p a t h o l o g i s t who examined t h e body t e s t i f i e d t h e

d e a t h blow was one t h a t was d e l i v e r e d t o t h e head and l a i d open t h e

right side. A rope was t i e d around h e r neck and t h e r e was evidence

s h e had been s t r a n g l e d w i t h i t b u t p r e s s u r e had been r e l e a s e d s o

she d i d n o t d i e o f s t r a n g u l a t i o n . Entangled i n h e r h a i r was a

c o i l of w i r e , l a t e r shown t o have come from a r o l l of w i r e found

i n t h e back of t h e Dodge pickup.

I n t h e c o u r s e of t h e s e a r c h f o r t h e body and t h e i n v e s t i -

g a t i o n of t h e murder a number of items were found and l a t e r r e c e i v e d

i n t o evidence t h a t were i n c r i m i n a t i n g a g a i n s t d e f e n d a n t :
 1 ) A p a i r of gloves worn by defendant a t work on January

21 and found i n a f i e l d not f a r from where t h e body was discovered,

t h e gloves had human blood on them.

2) Overshoes found about a q u a r t e r mile away had type 0

human blood and b r a i n t i s s u e on them, impressions on t h e s o l e s

matched t h e h e e l s of t h e boots l a t e r taken from defendant's home.

3) Lana Harding's purse was found n e a r where t h e overshoes

were recovered.

As a r e s u l t of t h e i n v e s t i g a t i o n by t h e s h e r i f f and h i s

d e p u t i e s , l a t e on t h e afternoon of Tuesday, January 22 t h e county

a t t o r n e y f i l e d a complaint before t h e j u s t i c e of t h e peace and

obtained a warrant f o r t h e a r r e s t of defendant and a search warrant.

T h e r e a f t e r , defendant was a r r e s t e d on an a s s a u l t charge

a t h i s home. The Dodge pickup was s e i z e d and impounded. Human

blood was found i n t h e bed of t h e pickup and on t h e s p r i n g s ; t h e

back end of t h e pickup had been r e c e n t l y sprayed with black p a i n t ;

t h e spray p a i n t was i d e n t i f i e d by F.B.I. experts a s i d e n t i c a l t o

a spray p a i n t brand named "Weekend". This brand was n o t a v a i l a b l e

i n t h e Conrad a r e a . A can of t h e black spray p a i n t was found i n

t h e cab of t h e pickup and another was l a t e r found a t defendant's

home.

A f t e r s e i z i n g t h e t r u c k and taking i t t o Conrad, s e v e r a l

items were found i n t h e back of t h e pickup. A coil of w i r e ,

l a t e r i d e n t i f i e d by F.B.I. e x p e r t s a s having been connected t o

and broken away from t h e c o i l of wire found i n deceased's h a i r ;

and an exhaust manifold t h a t had been painted black. On t h e mani-

f o l d was found human blood of t h e same type and Rh f a c t o r a s

Lana's along with b r a i n and c o r t i c a l t i s s u e . D r . John Phaff, who
examined t h e body and t h e manifold t e s t i f i e d t h e manifold could

have i n f l i c t e d t h e f a t a l blow.

A t t h e d r i l l s i t e , where t h e body w a s found, a p i e c e of

b r a s s from a w a t e r pump was found. The p r i o r owner of t h e Dodge

pickup t e s t i f i e d t h i s p i e c e of b r a s s was i n t h e back of t h e pickup

when defendant took p o s s e s s i o n of i t on January 19, 1974.

S e v e r a l co-workers a t t h e K & K Wholesale Seed Co. t e s t i f i e d

a t t r i a l t h a t defendant on January 21 had s a i d h e broke i n every

new v e h i c l e by engaging i n s e x u a l i n t e r c o u r s e i n t h e newly a c q u i r e d

vehicle. S e v e r a l days b e f o r e he s a i d he had i n t e r c o u r s e w i t h

country school t e a c h e r s ; t h a t they were n a i v e , he could t e a c h them,

and they were easy t o g e t .

Defendant a p p e a l s h i s c o n v i c t i o n of g u i l t y and p r e s e n t s 25

i s s u e s on a p p e a l i n an unprecedented b r i e f of over 500 pages

accompanied by two volumes of appendixes, p l u s a 75 page r e p l y

brief. Also f i l e d was an amicus c u r i a e b r i e f from t h e N A P on
AC

the death penalty. For t h e purpose of c l a r i t y and b r e v i t y t h e

25 i s s u e s w i l l n o t n e c e s s a r i l y be d i s c u s s e d i n o r d e r , some w i l l be

c o n s o l i d a t e d , b u t a l l w i l l be considered. The 25 s p e c i f i c a t i o n s of

e r r o r l i s t e d by defendant a r e :

1. The c o u r t e r r e d i n denying d e f e n d a n t ' s motion t o suppress

and i n holding s e c t i o n 95-1806(f), R.C.M. 1947, c o n s t i t u t i o n a l .

2. The c o u r t e r r e d i n r e f u s i n g t o g r a n t d e f e n d a n t ' s

motion t o withdraw p l e a o r d e f e n d a n t ' s motion t o e n f o r c e p l e a .

b a r g a i n i n g agreement of December 23, 1974.

3. The c o u r t abused i t s d i s c r e t i o n i n r e q u i r i n g defendant

t o p u t w i t n e s s e s on o u t of o r d e r and e r r e d i n r e f u s i n g d e f e n d a n t ' s

proposed e x h i b i t s 1-12, 13A,13B, 14 -23, 24, 24A,25, 25A, 27,

28, 30 and 31.
 4. The erred in admitting into evidence state's exhibits
{
I 6 - 11, which were postmortem photographs of the victim's body.

5. The trial court erred in admitting state's exhibit

#97, over defendant's objection.

6. The court erred in allowing persons in the audience
to record the closing argument of counsel for the state, over

objection.

7. The court erred in granting the state's motion to endorse

58 additional witnesses on the amended information on the first

day of trial.

8. The court erred in not enforcing its own order requiring
the state to furnish defendant with the statements of its witnesses.

9. The court erred in allowing experts to testify as to

results of tests run on items which were subsequently admitted

into evidence, and erred in admitting opinion testimony concerning

proposed exhibits not yet admitted into evidence.

10. The court erred by refusing to grant defendant's motions

to disqualify district judges.

11. The court erred in allowing the state to file its

amended informations and denied defendant a speedy trial.

12. The court erred in defining "torture", giving the

question of torture to the jury; and defendants rights were pre-

judiced by giving Instructions {
I 23,29 and 54.

13. The court erred in giving preliminary instructions
numbered 1 through 28, over objection.
14. The court erred in giving of additional instructions
29 through 54, over objection. The court erred in directing the

use of statutory presumptions to supply proof of material elements

of the offenses charged.
 15. The court erred in submitting to the jury verdict

forms not in accordance with the requirements of the law.

16. The court erred in refusing defendant's proposed
instructions.

17. The court erred in denying defendant the right to

allow defendant to voir dire on mental disease or defect.

18. The court erred in refusing to allow the defendant's

psychiatrist to be present in the courtroom during the testimony

of the state's rebuttal witnesses.

19. The court erred in denying defendant's "Amended
Motion for Protective Order and Other Appropriate Relief" and

in holding section 95-1803 constitutional.

20. The evidence presented at trial does not support the
verdicts.

21. The court erred by basing its judgment and sentence

upon an erroneous "Findings, Conclusions, Sentence and Order".

22. The court erred by refusing to grant defendant's motion

for a new trial.

23. The trial court erred in adopting or demonstrating
a partisan attitude toward defendant, thereby denying him a fair

trial.

24. The doctrine of cumulative error constitutes reversible

error, by denying defendant a fair trial.
25. The court erred in imposing the sentence of death.
At the outset, we consider the contention that the assessment

of the death penalty violates the Sixth, Eighth and Fourteenth
Amendments to the United States Constitution and the 1972 Montana

Constitution.
 While the o r i g i n a l b r i e f s of t h e s t a t e and defendant

r e l i e d on Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L ed

2d 346 (1972) arguments, l a t e r b r i e f s received by t h i s Court

r e l y on f i v e United S t a t e s Supreme Court cases r e l e a s e d on J u l y 2,

1976, covering punishment s t a t u t e s of f i v e s t a t e s : 1 ) Gregg v.

Georgia, 44 U.S. L.W. 5230; 2) P r o f f i t t v. F l o r i d a , 44 U.S.L.W.

5256; 3) J u r e k v. Texas, 44 U.S.L.W. 5262; 4) Woodson v. North

Carolina, 44 U.S.L.W. 5267, and 5) Roberts v. Louisiana, 44 U.S.L.W.

5281. Therefore, we w i l l d i s c u s s Montana's s t a t u t e s i n l i g h t of

t h e holdings i n t h e f i v e l i s t e d United S t a t e s Supreme Court c a s e s .

Following Furman Montana enacted i t s new c r i m i n a l code of

1973, which revised i t s c a p i t a l punishment s t a t u t e s t o provide a

mandatory death sentence f o r t h e crimes of " d e l i b e r a t e homocide"

and "aggravated kidnapping", unless t h e t r i a l c o u r t found "mitigating

circumstances". These Montana s t a t u t e s were i n e f f e c t on January

21, 1974, t h e d a t e of t h e kidnap murder of Lana Harding:

"94-5-102. D e l i b e r a t e homicide. (1) Except a s provided
i n s e c t i o n 94-5-103 (1) (a) , c r i m i n a l homicide c o n s t i t u t e s
d e l i b e r a t e homicide i f :

"(a) i t i s committed purposely o r knowingly; o r

"(b) i t i s committed while t h e offender i s engaged
i n o r i s an accomplice i n t h e commission o f , o r an a t -
tempt t o commit, o r f l i g h t a f t e r committing o r attempting
t o commit robbery, sexual i n t e r c o u r s e without consent,
a r s o n , burglary, kidnaping, felonious escape o r any o t h e r
felony which involves t h e use o r t h r e a t of physical f o r c e
o r violence a g a i n s t any i n d i v i d u a l .

"(2) A person convicted of t h e o f f e n s e of d e l i b e r a t e
homicide s h a l l be punished by death a s provided i n s e c t i o n
94-5-105, o r by imprisonment i n t h e s t a t e p r i s o n f o r
any term not t o exceed one hundred (100) years."

"94-5-103. Mitigated d e l i b e r a t e homicide. (1) Criminal
homicide c o n s t i t u t e s mitigated d e l i b e r a t e homocide when
a homicide which would otherwise be d e l i b e r a t e homicide
i s committed under t h e influence of extreme mental o r
emotional s t r e s s f o r which t h e r e i s reasonable explanation
o r excuse. The reasonableness of such explanation o r
 or excuse shall be determined from the viewpoint of
a reasonable person in the actor's situation.

( ) A person convicted of mitigated deliberate
"2
homicide shall be imprisoned in the state prison for
any term not to exceed forty (40) years."

"94-5-104. Negligent homicide. (1) Criminal homicide
constitutes negligent homicide when it is committed
negligently.

( ) A person convicted of negligent homicide shall
"2
be imprisoned in the state prison for any term not to
exceed ten (10) years."
"94-5-105. Sentence of death for deliberate homicide.
(1) When a defendant is convicted of the offense of
deliberate homicide the court shall impose a sentence of
death in the following circumstances, unless there are
mitigating circumstances:

( ) The deliberate homicide was committed by a
"a
person sewing a sentence of imprisonment in the state
prison; or

( ) The defendant was previously convicted of another
"b
deliberate homicide ; or

( ) The deliberate homicide was committed by means
"c
of torture; or

"d
( ) The deliberate homicide was committed by a
person lying in wait or ambush; or
"e
( ) The deliberate homicide was committed as a
part of a scheme or operation which, if completed, would
result in the death of more than one person.

( ) Notwithstanding the provisions of subsection
"2
(1) and regardless of circumstances, when a defendant is
convicted of the offense of deliberate homicide under
subsection (1)(a) of section 94-5-102 in which the victim
was a peace officer killed while performing his duty the
court shall impose a sentence of death."

The provision of section 94-5-304, R.C.M. 1947, providing
for the "mitigating circumstances" was amended out of the statute
by Sec. 1, Ch. 126, Laws of 1974. The amendment became effective
March 11, 1974 and was - in effect at the time of the death of
not
Lana Harding. Under Montana's capital punishment statutes the

jury determines whether the defendant is guilty of a crime for which
the death penalty may be imposed, leaving to the trial judge

the imposition of the sentence after consideration of "mitigating

circumstances" .
Following the jury's verdict in the instant case, the trial
judge ordered and received a presentence investigation report
and thereafter heard defendant's motion for mitigation. The

sentencing procedure in Title 95, Chapter 22, R.C.M. 1947, requires

the individual characteristics of the person convicted be con-

sidered. Review of the sentence imposed is provided for by Title

95, Chapter 25, R.C.M. 1947. In the trial court's findings of

fact regarding defendant's motion for mitigation, the court held:

"2. That both of the offenses of which the defendant
has been found guilty are of equal gravity and serious-
ness under the law, both being mandatorily punishable by
death, unless there are mitigating circumstances.
"3. That there is nothing in the evidence of the case,
nor in the presentence investigation, nor in the character,
nature, or background of the defendant, nor in any other
manner presented to the Court which mitigate his conduct
or the sentence required by law.

"8. That the prognosis for change in and rehabilitation
of persons with anti-social personality disorders such
as defendant's is so unlikely and minimal as to be
practically non-existent.
"9. That the defendant must never be allowed to be
free in and endanger society again * * * [or] be turned
loose to menace society again * **."
On appeal defendant argues that the death sentence here

imposed violates his constitutional rights because there was no
jury participation of any kind in the determination of the sentence.

He cites in support the five United States Supreme Court cases
decided July 2, 1976, heretofore listed, and Trop v. Dulles, 356

U.S. 86, 78 S.Ct. 590, 2 L ed 2d 630; Witherspoon v. Illinois,

391 U.S. 510, 88 S.Ct. 1770, 20 L ed 2d 776; Furman v. Georgia,

supra.
- 10 -
 We turn now to consideration of the above cited cases in

applying them to Montana's statutes with particular emphasis on

the question of whether "jury participation in the sentence" is

a necessity for constitutionality. This Court has long held

that the presumption of constitutionality attaches to all

statutes coming before this Court. State v. Parker, 161 Mont.

394, 506 P.2d 850; State v. Henrich, 162 Mont. 114, 509 P.2d

288; Harrison v. City of Missoula, 146 Mont. 420, 407 P.2d 703.

The United States Supreme Court in Gregg v. Georgia,

44 U.S.L.W. 5230, 5234, 5242, held "the punishment of death does
not invariably violate the Constitution." It then said, referring

to its decision in the early case of Furman:
II
In summary, the concerns expressed in Furman that
the penalty of death not be imposed in an arbitrary
or capricious manner can be met by a carefully drafted
statute that ensures that the sentencing authority is
given adequate information and guidance."

Following the Furman decision Montana revised its capital punishment

statutes to be in compliance with the holding in that case.

Considering the three state statutes in the cases upheld

by the United States Supreme Court, we find the provisions of

the Texas statute come closest to sections 94-5-105 and 94-5-303,
R.C.M. 1947. Texas, as noted in Jurek v. Texas, 44 U.S.L.W. 5262,

5263, 5266, provides for a bifurcated sentencing procedure in

which the jury is the sentencing authority and it must answer

two (sometimes three) questions which in effect go to aggravation:
1. Whether the conduct of defendant that caused the death
of the deceased was committed deliberately and with the reasonable
expectation that the death of the deceased or another would result;

2. Whether there is a probability that the defendant would
commit criminal acts of violence that would constitute a continuing
threat to society; and

3. If raised by the evidence, whether the conduct of the

defendant in killing the deceased was unreasonable in response

to the provocation, if any, by the deceased.
The Court in Jurek then went on to observe that any law

allowing the sentencing authority to consider aggravation only

would not meet constitutional standards. It observed that in

answering the second question the question of mitigation was

presented and held:

"We conclude that Texas' capital-sentencing procedures,
like those of Georgia and Florida, do not violate the
Eighth and Fourteenth Amendments. By narrowing its defini-
tion of capital murder, Texas has essentially said that
there must be at least one statutory aggravating circum-
stance in a first-degree murder case before a death sentence
may even be considered. By authorizing the defense to
bring before the jury at the separate sentencing hearing
whatever mitigating circumstances relating to the indivi-
dual defendant can be adduced, Texas has ensured that the
sentencing jury will have adequate guidance to enable it
to perform its sentencing function. By providing prompt
judicial review of the jury's decision in a court with
statewide jurisdiction, Texas has provided a means to
promote the evenhanded, rational, and consistent imposi-
tion of,death sentences under law .I
'
While the Montana statutes do not provide for the jury
in the bifurcated sentencing procedure, we find they are within

the Gregg and Jurek decisions. Under Montana statutes the sentence

of death in the instant case was rested to a narrowly defined

type of murder or kidnapping. The statute provided the sentencing

judge consider mitigating circumstances. In addition, appellate
judicial review is provided.
We note further, in considering mitigation, that Montana
has the Sentence Review Division which reviews all sentences at

the request of the defendant. The Sentence Review Division of

the Supreme Court is provided for by Chapter 25 of the Code of
Criminal Procedure and includes sections 95-2501 through 95-

2504, R.C.M. 1947. Pursuant to the above this Court activated

the Sentence Review Board on December 1, 1967. Since its inception

it has been composed of three (3) di~trictcourt judges and the

statute provides that no judge may sit on a case before the

Board in which he was the sentencing judge. Under the provisions

of Montana law a person convicted is immediately made aware of

his right to appear before the Board and a schedule is set up for

his appearance, with counsel if desired. The Board may affirm,

decrease or increase the sentence. Also, Chapter 26, of Montana's
Code of Criminal Procedure provides for post-conviction hearing.

Section 95-2608, R.C.M. 1947, permits an appeal to this Court by

either the petitioner or the state. See: State v. Simtob, 154

Mont. 286, 462 P.2d 873; State v. Henrich, 162 Mont. 114, 509

P.2d 288; State v. Heyward, 152 Conn. 426, 207 A.2d 730; Anno.

168 A.L.R. 706.
Directing our attention to the judicial sentencing, and

defendant's argument against it, we find that no prohibitions in

any of the five cases appear against judicial sentencing. While

the United States Supreme Court speaks to the desirability of a
bifurcated jury sentencing, it speaks clearly in Proffitt v.

Florida, 44 U.S.L.W. 5256, 5259 about judicial sentencing. It

held:
"The basic difference between the Florida system and
the Georgia system is that in Florida the sentence is
determined by the trial judge rather than by the jury.
This Court has pointed out that jury sentencing in a
capital case can perform an important societal function,
Witherspoon v. Illinois, 391 U.S. 510, 519 n.15, but it
has never suggested that jury sentencing is constitutionally
required. And it would appear 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 impose sentences similar to those imposed in
analogous cases.I I

Footnote 10, appended to the above quote reads:

"See ABA Standards Relating to Sentencing Alternatives
& Procedures 51.1, Commentary, pp. 43-48; President's
Comm'n on Law Enforcement & Administration of Justice:
The Challenge of Crime in a Free Society, Task Force
Report: The Courts 26 (1967). See also ,-
ante, pp. 32-33. In the words of the Florida Court,
'a trial judge with experience in the facts of criminality
possesses the requisite knowledge to balance the facts
of the case against the standard criminal activity which
can only be developed by involvement with the trials of
numerous defendants.' State v. Dixon, 283 So.2d, at 8 "
.
Here, defendant argues that Article 11, Section 28, 1972
Montana Constitution no longer expressly authorizes the legisla-
ture to provide for the death penalty as did Article 111, Section
24, 1889 Montana Constitution. The failure to reenact the

authorization might have significance had not the Constitutional

Convention given the people of Montana the option of adopting

into the 1972 Constitution language expressly prohibiting the

enactment of the death penalty. The people of Montana voted

for 147,023 and against 77,733, to retain the death penalty.

Such a vote, so recently, negates any argument the death penalty
violates contemporary standards of decency.
Defendant argues that even if a judicial sentence

procedure is approved, that Judge Nelson failed to follow the

criteria found necessary to consider before approving a death
sentence. We do not agree.
As previously noted, this case was tried prior to the
United States Supreme Court's latest considerations of the death
penalty, and therefore before any set pattern of matters that a

jury must consider in death cases, here Judge Nelson did, in his

findings, consider in general those matters the Supreme Court

found necessary.
 A reading of t h e findings c l e a r l y shows t h e conduct of t h e

defendant t h a t caused t h e death was done d e l i b e r a t e l y , with

reasonable expectation t h a t death would r e s u l t . He used a rope

around h e r neck t h a t could have k i l l e d t h e v i c t i m had he n o t

crushed h e r head with instruments he had i n t h e t r u c k - - - a l l done

i n a sexual a t t a c k on t h e victim.

Judge Nelson, p r i o r t o sentencing, had a thorough presentence

r e p o r t compiled on defendant which i n d i c a t e d t h i s was not h i s

f i r s t encounter w i t h t h e law. Defendant was a former parolee a t

t h e time of t h e murder having been convicted i n 1970 of t h e crime

of aggravated a s s a u l t on another woman. That woman was found

b r u t a l l y beaten, c l a d only i n a blouse crawling alongside a road.

Defendant received a t h r e e year sentence f o r t h a t crime, was

paroled a f t e r some s i x months i n t h e p r i s o n , b u t returned t o

p r i s o n a f t e r numerous parole v i o l a t i o n s . I n 1972 he was again

paroled a s s a f e t o be a t l a r g e i n s o c i e t y . That p a r o l e had

expired t h r e e months before t h e present crime. The f i n d i n g s

and conclusions found no circumstances t h a t m i t i g a t e d defendant's

conduct. I n a d d i t i o n , Judge Nelson found defendant should never

be allowed t o be f r e e i n and endanger s o c i e t y again.

While t h e r e i s no s p e c i f i c f i n d i n g t h e r e was no provoca-

t i o n , none was ever a l l e g e d . The f i n d i n g s n o t e t h a t t h e conduct

of defendant i n k i l l i n g Lana Harding was unreasonable, and without

any m i t i g a t i n g circumstances.

While we have r e f e r r e d s o l e l y t o t h e holding i n J u r e k v.

Texas, 44 U.S.L.W. 5262, we c a l l a t t e n t i o n t o t h e opinion i n Gregg

v. Georgia, 44 U.S.L.W. 5230, wherein t h e United S t a t e s Supreme

Court approved a b i f u r c a t e d procedure i n Georgia. There the s t a t e

supreme c o u r t approved t h e death penalty i n an armed robbery and
murder case where the trial judge, at the penalty stage, in-

structed the jury it could recommend either a death or life

imprisonment sentence on each count. Further, the jury was

free to consider mitigating or aggravating circumstances, if any,
as presented by the parties, and that the jury could not impose
a death sentence unless it first found beyond a reasonable doubt

(1) that the murder was committed while the offender was engaged

in the commission of other felonies (i.e. armed robbery) ; (2) that

he committed the murder for the purpose of receiving the victim's

money, or (3) that the murder was "outrageously and wantonly
vile, horrible and inhuman" in that it "involved the depravity

of the mind of the defendant". In Gregg the jury found the first
and second of these aggravating circumstances and returned a sen-

tence of death. Here, the trial judge found all three (1) that

the murder was committed in the commission of a felony; (2) a
sexual attack on the victim, and (3) "it was a brutal, conscienceless,

torture rape and deliberate killing of a human being."

We note too, that this Court looks at the total record

during its review to determine whether the sentence was influenced

by passion, prejudice or any other arbitrary factor; whether the
evidence supports the finding of a statutory aggravating circum-

stance; and, whether the death sentence is excessive or dispropor-

tionate to the penalty imposed in similar cases, considering both
the crime and the defendant. We affirm, as did the Supreme Courts
of Georgia, Florida and Texas in the most recent United States
Supreme Court cases.
We find no merit to defendant's argument that Article 11,

Section 22, 1972 Montana Constitution prohibits the death penalty

as cruel and unusual punishment. First, the vote of the people of
Montana indicated that they did not intend by ratifying the

1972 Constitution, that any section thereof would abolish the
death penalty. In addition, a majority of the United States

Supreme Court in Gregg did not find the imposition of the death
penalty to be "cruel and unusual punishment1'.

We next discuss defendant's issue on probable cause.
This issue is broken down into six sub-issues by defendant:

1. Was there probable cause for the arrest and search

warrant to issue?

2. Were the facts supporting probable cause made under

oath or affirmation and reduced to writing?

3. Was the search warrant a general warrant?

4. Was there a consent search or a search incident to
arrest?

5. Is section 95-1806(f), R.C.M. 1947, constitutional?
6. Was defendant entitled to suppression?

We find no merit in defendant's contention there was no

probable cause for the arrest or search warrant. This Court in

State ex rel. Garris v. Wilson, 162 Mont. 256, 511 P.2d 15, con-

sidered federal case law and the long standing rule in this juris-
diction on probable cause for arrest and search warrants, noting:

"IWe reach this decision by application of the
following standards: only a probability of criminal conduct
need be shown. "I
Far more was shown here! See: State v. Troglia, 157 Mont. 22,
482 P.2d 143; Spinelli v. United States, 393 U.S. 410, 89 S.Ct.
584, 21 L ed 2d 637.
Defendant argues the search warrants must fall on the

basis of failure on the part of the county attorney to swear or
a f f i r m and reduce t h e testimony t o w r i t i n g . He r e l i e s on S t a t e

ex r e l . Townsend v. D i s t . C t . , Mont . 543 P.2d 193,

32 St.Rep. 1163; and P e t i t i o n of Gray, 155 Mont. 510, 473 P.2d

532. W f i n d n e i t h e r case f a c t u a l l y a p p l i c a b l e here.
e

A r t i c l e 11, Section 11, 1972 Montana C o n s t i t u t i o n ,

provides :

'I* *
*No warrant t o search any p l a c e , o r s e i z e any
person o r t h i n g s h a l l i s s u e ***
without probable
cause, supported by oath o r a f f i r m a t i o n reduced t o
writing."

I n Townsend nothing was reduced t o w r i t i n g . Here, t h e r e i s an

a f f i d a v i t signed by t h e county a t t o r n e y and made a p a r t of both

warrants. A t a l a t e r d a t e , defendant argues t h e j u s t i c e of t h e

peace f a i l e d t o follow t h e r i t u a l s of t h e swearing. County

Attorney Nelson l a t e r t e s t i f i e d he asked t h e J u s t i c e of t h e Peace

" i f he was sworn."

Defendant argues t h e county a t t o r n e y made t h e a f f i d a v i t

only f a c t s obtained from J e r r y Hoover, a deputy s h e r i f f of

Pondera County, who had been a t t h e scene of t h e crime a s p a r t

of t h e i n v e s t i g a t i n g team. This i s n o t a t r u e p i c t u r e of what

took p l a c e before J u s t i c e of t h e Peace Wolfe a t t h e time t h e

county a t t o r n e y gave t h e a f f i d a v i t and obtained t h e warrants.

O September 30, 1974, a hearing on t h e defendant's motion t o
n

suppress was held before Judge Robert J . Nelson. Testifying

were S h e r i f f Hammermeister, h i s deputy, J e r r y Hoover, J u s t i c e of

t h e Peace Robert Wolfe and County Attorney David H. Nelson. The

arguments of defendant's counsel were d i r e c t e d t o t h e l a c k of

probable cause f o r t h e issuance of t h e warrants.

A summary of t h e testimony shows J u s t i c e of t h e Peace

Wolfe t e s t i f i e d he customarily swears a l l witnesses though he d i d

n o t r e c a l l swearing i n t h e county a t t o r n e y , he considered him sworn.
Deputy Hoover t e s t i f i e d he came i n t o town about 4:30 p.m. on

January 22, 1974, with d i r e c t i o n s t o go t o t h e county a t t o r n e y ' s

o f f i c e ; t h a t he helped t h e county a t t o r n e y prepare t h e a f f i d a v i t

and he then went b e f o r e J u s t i c e of t h e Peace Wolfe and gave sworn

testimony i n support of t h e issuance of t h e warrants. County

Attorney Nelson t e s t i f i e d he had been a t t h e scene with t h e

s h e r i f f and h i s d e p u t i e s during t h e afternoon and j u s t p r i o r

t o h i s coming town t o g e t t h e warrants issued. A t the hearing,

he s a i d i n answer t o a question of what knowledge he had of t h e

facts:

"A. Well, without looking a t t h e a f f i d a v i t now
---I t h i n k t h e f i r s t paragraph o r two i s m s t a t e -
y
ment a s t o what I determined, t h a t she was missing
and may have been t h e v i c t i m of f o u l play b u t of
what n a t u r e we d i d n ' t know a t t h e p a r t i c u l a r time,
and t h a t she resided a t t h e teacherage."

I n a d d i t i o n , t h e county a t t o r n e y examined Deputy Hoover before

t h e J u s t i c e of Peace a s t o f a c t s he learned during t h e i n v e s t i g a -

tion. Here, u n l i k e Gray t h e r e was sworn testimony by t h e county

a t t o r n e y and deputy s h e r i f f i n a d d i t i o n t o t h e a f f i d a v i t and t h e

combination thereof e s t a b l i s h e d probable cause. The f a c t t h a t

defendant had been parked a t t h e roadside n e a r t h e school t h e n i g h t

before had been e s t a b l i s h e d by t h e Pearsons, who a s s i s t e d defendant

i n g e t t i n g t h e t r u c k moved. It was t h e r e t h a t t h e v i c t i m ' s

watch was found i n a pool of blood by t h e i n v e s t i g a t i n g o f f i c e r s

before going t o town t o g e t t h e warrants. See: Lindley v. S t a t e ,

0kl.Cr. (1956), 294 P. 2d 851.

T h i s , i n our opinion i s a s u f f i c i e n t showing of probable

cause t o i s s u e t h e warrants.

Defendant next a t t a c k s t h e s p e c i f i c i t y of t h e search warrant,

a l l e g i n g t h a t under t h e search warrant i s s u e d , a blanket s e i z u r e

resulted. Examination of t h e warrant i n d i c a t e s t h a t both t h e
house and t h e v e h i c l e were t o be s e a r c h e d . Though an e r r o r on

t h e v i n t a g e of t h e b l a c k Dodge pickup (1950 i n s t e a d of 1948)

appeared, t h a t i s of l i t t l e s i g n i f i c a n c e . S t a t e e x r e l . Flournoy

v . Wren, 108 A r i z . 356, 498 P.2d 444. A l l p a r t i e s knew t h e pickup

involved. A l l t h a t i s needed t o meet t h e requirements of

s p e c i f i c i t y i s t h a t t h e o f f i c e r w i t h r e a s o n a b l e e f f o r t , can

a s c e r t a i n t h e automobile intended t o be s e a r c h e d , and i t s owner,

i f possible. Wangrow v . United S t a t e s , 399 F.2d 106. Defendant

c i t e s c a s e a u t h o r i t y t h a t some seven c r i t e r i a a r e needed f o r

i d e n t i f i c a t i o n of a motor vehicle--owner, make, model, y e a r ,

c o l o r , motor number and l i c e n s e number. Here t h e a f f i d a v i t f o r

t h e s e a r c h w a r r a n t answers f i v e of t h e seven l i s t e d c r i t e r i a and

i t was s u f f i c i e n t l y s p e c i f i c . Wilkerson v . Commonwealth, 200

Ky. 399, 255 S.W. 76; H a t l e y v . S t a t e , 72 Okla. C r . 69, 113 P.2d

396.

~ e f e n d a n t ' sargument t h a t t h e items s e i z e d were n o t covered

by t h e language "any o t h e r contraband a r t i c l e s " , i s w i t h o u t m e r i t .

The language used comes w i t h i n t h e h o l d i n g of t h i s Court i n S t a t e

v . Quigg, 155 Mont. 119, 467 P.2d 692.

Next we c o n s i d e r t h e c o n s t i t u t i o n a l i t y of s e c t i o n 95-1806(f),

R.C.M. 1947, which s t a t e s :

"The burden of proving t h a t t h e s e a r c h and
s e i z u r e were unlawful s h a l l be on t h e defendant."

W f i n d no m e r i t i n d e f e n d a n t ' s c o n t e n t i o n t h i s s u b s e c t i o n i s
e

unconstitutional. W n o t e defendant c i t e s no a u t h o r i t y f o r h i s
e

p o s i t i o n and t h e r e f o r e f a i l s t o overcome t h e presumption of c o n s t i -

tutionality. United S t a t e s v . Keleher, 2 F.2d 934, r e l i e d upon

by d e f e n d a n t , i s n o t a p p l i c a b l e t o t h e f a c t s h e r e , W note t h a t
e

Montana's s t a t u t e s e c t i o n 95-1806(f), R.C.M. 1947, i s p a t t e r n e d

a f t e r Chapter 38, 5 114-12(b), I l l . Code of Criminal Procedure,

which s t a t e s i n p a r t :
 "* * * The judge s h a l l r e c e i v e evidence on any
i s s u e of f a c t n e c e s s a r y t o determine t h e motion
and t h e burden of proving t h a t t h e s e a r c h and
s e i z u r e were unlawful s h a l l be on t h e defendant * * *.If
Here, such a h e a r i n g was h e l d by t h e t r i a l c o u r t and defendant

failed in his effort. People v. Normant, 25 Ill.App.3d 536, 323

N.E.2d 553; S t a t e v . T r i t z , 164 Mont. 344, 522 P.2d 603.

For t h e purpose of b r e v i t y we w i l l combine and d i s c u s s

defendands s p e c i f i c a t i o n s of e r r o r 10 and 20 t o g e t h e r , i n view

of t h e f a c t t h e y a r e d i r e c t e d a t t h e a l l e g e d p a r t i a l i t y of t h e

t r i a l c o u r t and i t s f a i l u r e t o g r a n t a new t r i a l due t o i n s u f f i -

ciency of t h e evidence.

This was a p r o t r a c t e d p r e t r i a l c a s e . The c a s e began

o f f i c i a l l y i n t h e d i s t r i c t c o u r t of t h e n i n t h j u d i c i a l d i s t r i c t ,

county of Pondera, on January 24, 1974. Some 89 docket e n t r i e s l a t e r ,

t h e c a s e was s e n t t o Cascade County on December 4 , 1974 on a

motion f o r change of venue. During t h i s p e r i o d Judge McPhillips

p r e s i d e d u n t i l September 19, 1974 when he was d i s q u a l i f i e d and

Judge Nelson of t h e e i g h t h j u d i c i a l d i s t r i c t , Cascade County,

assumed j u r i s d i c t i o n . The f i r s t e n t r y i n t h e r e c o r d of t h e e i g h t h

j u d i c i a l d i s t r i c t i s December 6 , 1974, t h e l a s t i s numbered 181

and d a t e d December 9 , 1974. W c a l l a t t e n t i o n t o t h i s record
e

i n view of t h e a t t a c k made on t h e p a r t i a l i t y of Judge Nelson.

Defendant used h i s only motion f o r s u b s t i t u t i o n a g a i n s t t h e o r i g i n a l

t r i a l judge and now complains t h a t he g o t i n t h a t j u d g e ' s p l a c e

a judge whose " e x t r a j u d i c i a l knowledge" made him b i a s e d and p r e -

judiced. To t h i s argument we f i n d no m e r i t .

Judge R. J . Nelson was and i s one of t h e s e n i o r t r i a l

judges of t h i s s t a t e . He came t o t h e bench i n 1957 a f t e r an

active career as a t r i a l attorney. He w a s one of t h r e e d i s t r i c t
judges chosen t o s e r v e on t h e l e g i s l a t i v e a u t h o r i z e d committee

t h a t completely r e v i s e d t h e s u b s t a n t i v e and procedural c r i m i n a l

law of t h i s s t a t e , a t a s k t h a t took some t e n y e a r s . He h a s been

t h e s e n i o r judge i n h i s d i s t r i c t f o r most of h i s j u d i c i a l c a r e e r

and s e r v e s i n one of Montana's b u s i e s t j u d i c i a l d i s t r i c t s .

Here, Judge Nelson, of n e c e s s i t y , had t o h e a r and c o n s i d e r

many motions and make r u l i n g s and t h e f a c t t h a t h e d i d n o t p l e a s e

defendant does n o t i n d i c a t e b i a s and p r e j u d i c e a g a i n s t defendant.

The presumption i s t h a t h i s r u l i n g s were c o r r e c t o r they would

have come t o t h i s C o u r t ' s a t t e n t i o n . His membership on t h e

Criminal Law Commission i n d i c a t e s a w i l l i n g n e s s t o perform an

a f f i r m a t i v e o b l i g a t i o n of j u d i c i a l o f f i c e r s t o work f o r t h e i m -

provement of t h e l a w and j u d i c i a l a d m i n i s t r a t i o n . H i s activities

come w i t h i n t h e Canons of j u d i c i a l conduct.

Defendant n e x t argues Judge Nelson should have d i s q u a l i f i e d

himself i n t h a t he gained e x t r a j u d i c i a l knowledge of t h e c a s e from

p l e a b a r g a i n i n g , c i t i n g United S t a t e s v. G r i n n e l l Corp., 384 U.S.

563, 86 S.Ct. 1698, 16 L ed 2d 778. That c a s e i s n o t a p p l i c a b l e

f o r t o e s t a b l i s h b i a s o r p r e j u d i c e under t h e holding of G r i n n e l l

t h e j u d g e ' s o p i n i o n as t o t h e m e r i t s of t h e c a s e had t o come from

some source o t h e r than t h e knowledge obtained from t h e j u d g e ' s

p a r t i c i p a t i o n i n the case. Here, whatever knowledge Judge Nelson

gained was during t h e c o u r s e of t h i s c a s e .

W f i n d Judge Nelson c o r r e c t l y c o n s t r u e d t h e law and
e

i n t h e motions where he r u l e d a g a i n s t defendant, t h e r e i s no

bias indicated.

W have h e l d i n numerous c a s e s i n weighing t h e s u f f i c i e n c y
e

of t h e evidence t h a t t h e c o u r t i s n o t t h e t r i e r of t h e f a c t , t h e

j u r y i s , and following c o n v i c t i o n i f t h e r e i s s u b s t a n t i a l evidence
t o support t h e judgment t h e presumption i s i n favor of t h e

judgment. S t a t e v. Stoddard, 147 Mont. 402, 412 P.2d 827; S t a t e

v. White, 146 Mont. 226, 405 P.2d 761; S t a t e v. Gleim, 1 7 Mont. 1 7 ,

41 P. 998. Here t h e r e i s abundant evidence t o support t h e v e r d i c t .

S p e c i f i c a t i o n s of e r r o r 6 and 24 appear t o b e a shotgun

a t t e m p t i n d e f e n d a n t ' s a t t a c k on Judge Nelson i n h i s e f f o r t t o

"cumulate" a record of a l l e g e d e r r o r s t h a t would l e a d t h i s Court

t o r e v e r s e and o r d e r a new t r i a l . During c l o s i n g arguments, i n

what defendant c a l l s a " p a r t i s a n audience", t a p e r e c o r d i n g s were

taken. Defendant o b j e c t e d b u t Judge Nelson d i d nothing t o s t o p

the recording. Defendant f a i l s t o convince t h i s Court, and f a i l e d

t o convince t h e t r i a l c o u r t , t h a t such a c t i v i t i e s on t h e p a r t of

persons i n t h e audience v i o l a t e any canon of j u d i c i a l conduct o r

m e r i t f u r t h e r c o n s i d e r a t i o n of t h e m a t t e r by t h i s Court.

Defendant's s p e c i f i c a t i o n of e r r o r 24 a r g u e s , i n h i s words,

whether a l l e g e d e r r o r which might be termed "harmless e r r o r "

cumulated i n t o p r e j u d i c i a l e r r o r ?

Defendant a l l e g e s t h e d o c t r i n e of cumulative e r r o r was

e s t a b l i s h e d i n Chapman v. C a l i f o r n i a , 386 U.S. 18, 21, 87 S. C t .

824, 1 7 L ed 2d 705, 709; Krulewitch v . United S t a t e s , 336 U.S.

440, 69 S.Ct. ? , 93 L ed 790; Kotteakos v. United S t a t e s , 328

U.S. 750, 66 S.Ct. 1239, 90 L ed 1557. He a l s o argues t h e con-

c e p t s of "harmless e r r o r " and "cumulative e r r o r " a r e i n t e r r e l a t e d

and should be a p p l i e d h e r e .

Defendant b e g i n s h i s argument on a p p e a l n o t i n g t h a t he

has s e t f o r t h 25 s p e c i f i c a t i o n s of e r r o r , h i s b r i e f i s 514 pages

i n l e n g t h , with an appendix of some 800 pages. He t h e n s t a t e s

i f he had s e t f o r t h a l l of t h e e r r o r , t h e b r i e f would have been

absurd. He then admits t o "plowing ground" b u t argues such should
n o t d e t r a c t from t h e t h e s i s and l e g a l e f f e c t . This argument i s

without m e r i t f o r we f i n d no r e v e r s i b l e e r r o r .

Defendant's s p e c i f i c a t i o n of e r r o r 4 and 5 o b j e c t t o c e r t a i n

photographs which were introduced i n t o evidence a s being gruesome

and inflammatory o r otherwise p r e j u d i c i a l .

The b a s i c r u l e on photographic evidence i n Montana a s

s t a t e d i n S t a t e v. Campbell, 146 Mont. 251, 261, 405 P.2d 978,

is :

'I* ** Photographs a r e admissible f o r t h e purpose of
explaining and applying t h e evidence and a s s i s t i n g t h e
c o u r t and j u r y i n understanding t h e case. Fulton v.
Chouteau County Farmers' Co., 98 Mont. 48, 37 P.2d
1025. When t h e purpose of an e x h i b i t i s t o inflame t h e
minds of t h e jury o r e x c i t e t h e f e e l i n g s r a t h e r than
- -
t o e n l i g h t e n t h e j u r y a s t o any f a c t , i t should be ex-
cluded. S t a t e v. B i s c h e r t , 131 Mont. 152, 308 P.2d 969
** **'I

Here, t h e photographs i n question f a l l i n t o t h r e e c a t e g o r i e s :

1) photographs of t h e body taken a t t h e " d r i l l s i t e " ; 2) autopsy

photographs taken by t h e p a t h o l o g i s t ; and 3) a s i n g l e photograph

of a can of spray p a i n t i n a s u i t c a s e .

I n each i n s t a n c e t h e s e photographs meet t h e above t e s t ,

they were r e l e v a n t and were u s e f u l and necessary i n explaining

t h e evidence and a s s i s t i n g t h e c o u r t and j u r y i n understanding t h e

case. (1) The photographs taken a t t h e s i t e where t h e body was

found were used by t h e p a t h o l o g i s t t o show c r e a s e s i n t h e body

which were n o t present a f t e r t h e body had been moved and which

tended t o show how long t h e body had been a t t h e s i t e . 2) The

autopsy photographs, taken i n c o l o r and then p r i n t e d i n black

and white, were used by t h e p a t h o l o g i s t t o show t h e n a t u r e of t h e

wounds and explain t h e evidence which formed t h e b a s i s of h i s

opinion a s t o t h e s i z e and c o n f i g u r a t i o n of t h e weapon which was

used t o i n f l i c t t h e wounds. 3) The photograph of t h e can of spray
p a i n t i n t h e s u i t c a s e was used t o show t h e defendant had i n

h i s possession a type of p a i n t which was not available i n the

area stores. Defendant f i n d s p r e j u d i c e from t h i s photograph

i n t h e implication of f l i g h t t h a t could a r i s e from t h e f a c t t h e

p a i n t was i n a s u i t c a s e . Defendant had been i n custody f o r some

time p r i o r t o t h e time t h e s e photographs were taken. This a l l e g e d

p r e j u d i c e could have been e a s i l y explained away i n cross-examina-

t i o n , and t h e r e was no i n t e n t t o e x c i t e f e e l i n g s with t h i s

photograph which was i n no way gruesome. I t was properly admitted.

Defendant argues i n s p e c i f i c a t i o n of e r r o r 2 t h a t t h e r e was

an enforceable p l e a bargain made and r e q u e s t s t h a t i t be

s p e c i f i c a l l y performed. A s t h e f a c t u a l b a s i s of t h i s argument

defendant a l l e g e s counsel f o r t h e s t a t e and defendant met and

concluded t h a t a g u i l t y p l e a would be entered t o d e l i b e r a t e

homicide and aggravated a s s a u l t with a 50 year and 20 year

sentence t o be imposed r e s p e c t i v e l y . The next day counsel

met with t h e presiding judge and obtained h i s approval. A date,

about a week l a t e r , was s e t f o r t h e e n t r y of t h e p l e a of g u i l t y .

A few days p r i o r t o t h e day s e t f o r e n t r y of t h e p l e a , defendant

was informed t h e d e a l was o f f . The s t a t e agrees with t h e b a s i c

f a c t u a l d e s c r i p t i o n of t h e events, except t h a t i t s t a t e s i t was

always i t s i n t e n t t o g e t t h e r e a c t i o n of t h e v i c t i m ' s p a r e n t s and

t h e s h e r i f f before making any f i n a l agreement and no bargain

would be completed without t h e approval of t h e s e p a r t i e s . This

approval was n o t obtained and defendant was n o t i f i e d t h e d e a l

was o f f .

Defendant argues t h a t Santobello v. N w York, 404 U.S.
e

257, 92 S.Ct. 495, 30 L ed 2d 427, stands f o r t h e proposition t h a t

p l e a bargains a r e enforceable. There a plea had been entered.
Santobello i s not applicable, f o r t h e f a c t s i t u a t i o n i s f a r

d i f f e r e n t than h e r e . Specification of e r r o r 2 i s without merit.

Defendant's s p e c i f i c a t i o n s of e r r o r 3 , 7 , 8 and 9 a l l e g e

1 ) t h e f a i l u r e on t h e p a r t of t h e c o u r t t o e n f o r c e i t s o r d e r

r e l a t i n g t o t h e g i v i n g of c o p i e s of w i t n e s s ' s t a t e m e n t s t o t h e

f e n d a n t , 2) p r e j u d i c e a r i s i n g from t h e a d d i t i o n of 58 new

w i t n e s s ' names t o t h e Information on t h e day of t r i a l , 3) prejudL-

c i a 1 , i n t e r f e r e n c e w i t h t h e o r d e r of t h e p r e s e n t a t i o n of

d e f e n d a n t ' s c a s e , 4) f a i l u r e i n t h e c h a i n of p o s s e s s i o n of e v i -

dence and p r e j u d i c e a r i s i n g from t h e p r e s e n t a t i o n of e x p e r t

opinion p r i o r t o t h e i n t r o d u c t i o n i n t o evidence of t h e evidence

which was t h e b a s i s f o r t h a t e x p e r t opinion. These s p e c i f i c a t i o n s

a r e f a c t u a l l y i n t e r r e l a t e d and must be viewed a g a i n s t t h e b a s i c

p o l i c i e s and t h e s t r u c t u r e o f t h e Montana Code of Criminal Procedure.

That code i n s e c t i o n s 95-1801(d) (1) , (d) ( 2 ) and 95-1804(a),

R.C.M. 1947, provide t h e b a s i c d i s c o v e r y t o o l s . S e c t i o n 95-1804(a),

provides :

"On motion of a defendant i n any c r i m i n a l c a s e made
p r i o r t o t r i a l the court s h a l l order the s t a t e t o
f u r n i s h t h e defendant w i t h a copy of any w r i t t e n con-
f e s s i o n o r admission and a l i s t of t h e w i t n e s s e s t o
i t s making. I f t h e defendant has made an o r a l c o n f e s s i o n
o r admission a l i s t of w i t n e s s e s t o i t s making s h a l l b e
f u r n i s h e d . I'

T h i s p r o v i s i o n by i t s mandatory language e n t i t l e s t h e defendant

a s a m a t t e r of r i g h t , upon motion, t o s t a t e m e n t s he made. It

r e q u i r e s no showing of good cause.

S e c t i o n 95-1801 ( d ) ( l ) , provides:

"Upon motion o f e i t h e r p a r t y and upon showing of good
c a u s e , t h e c o u r t may i s s u e a subpoena p r i o r t o t h e t r i a l
d i r e c t i n g any person o t h e r than t h e defendant t o produce
books, s t a t e m e n t s , papers and o b j e c t s b e f o r e t h e c o u r t a t
a t i m e p r i o r t o t h e t r i a l o r p r i o r t o t h e time when t h e y
a r e t o be o f f e r e d i n evidence and t h e c o u r t may, upon
t h e i r production, permit t h e books, s t a t e m e n t s , papers o r
 o b j e c t s o r p o r t i o n s thereof t o be inspected, copied,
o r photographed by t h e p a r t i e s and t h e i r attorneys."

The Revised Commission Comment discussing t h i s s e c t i o n p o i n t s

out :

"The discovery allowed under subsection (d) i s a
two-part mechanism f o r gathering information. Under
paragraph (1) e i t h e r p a r t y may r e q u i r e a t h i r d person,
o t h e r than t h e defendant, through t h e use of a subpoena
( s e c t i o n 93-1501-3), t o produce c e r t a i n a r t i c l e s . The
only r e s t r i c t i o n i s t h a t good cause must be shown.
This allows what i s sometimes r e f e r r e d t o a s a " f i s h i n g
expedition1' --- but only where t h i r d p a r t i e s a r e con-
cerned. * * *"
Section 95-1801(d) (2) , provides :
"Upon motion of t h e defendant, w i t h i n a reasonable
time before t r i a l , t h e c o u r t may, upon a showing of
good cause, a t a time and place designated by t h e
c o u r t , order t h e prosecution t o produce p r i o r t o t r i a l
f o r i n s p e c t i o n , photographing o r copying by t h e
defendant, designated books, statements, papers,or o b j e c t s
obtained from t h e defendant o r o t h e r s by t h e prosecution
which a r e m a t e r i a l , r e l e v a n t and necessary t o t h e prepara-
t i o n of t h e defendant's case."

The Revised Commission Comment a s t o t h i s p o r t i o n of t h e s e c t i o n

states:

"The second paragraph permits discovery by t h e defendant
o r t h e prosecution with t h e a d d i t i o n a l requirement t h a t
t h e o b j e c t d e s i r e d must be " m a t e r i a l , r e l e v a n t and
necessary t o t h e preparation of t h e case."

This comment p o i n t s out t h a t t h e showing necessary t o g e t access

t o m a t e r i a l i n t h e hands of t h e prosecutor i s g r e a t e r than i s

required t o g e t a t m a t e r i a l i n t h e hands of t h i r d p a r t i e s .

Against t h i s background, and w i t h t h e recognition t h a t

i n most c r i m i n a l cases i n Montana discovery i s conducted on a

more informal b a s i s without r e s o r t t o t h e motion and hearing pro-

cedures o u t l i n e d above, t h i s Court f i n d s t h e a l l e g a t i o n of e r r o r

based on a delay of approximately a week i n compliance with t h e

demand made by defendant a f t e r t h e t r i a l had begun, t o be without

merit.
 Defendant claims t h a t he had made two p r i o r demands upon

t h e county a t t o r n e y f o r t h i s m a t e r i a l . These demands were i n

t h e form of l e t t e r s t o t h e county a t t o r n e y . They made a number

of s p e c i f i c r e q u e s t s and then made a g e n e r a l request f o r "* **
copies of any documentary o r physical items which you w i l l r e l y

on f o r proof of any f a c t ** *.I1 The second l e t t e r expressed

t h e defense c o u n s e l ' s opinion t h a t t h e s t a t e was n o t going t o

provide t h i s information a s requested. This l e t t e r was dated

August 20, 1974. O January 13, 1975, a f t e r t r i a l began,
n

defendant f i l e d a demand and motion requesting t h a t a l l statements

taken by t h e prosecution from a l l witnesses be turned over t o

defendant demanding immediate compliance. The c o u r t granted

defendant's motion even i t was n o t made "within a reasonable time

before t r i a l ' ' a s required by s e c t i o n 95-1801(d)(2), and s t a t e d :

"Before a witness takes t h e s t a n d , o t h e r than your
foundation witnesses, t h a t you [ t h e s t a t e ] a r e
proceeding with now, f u r n i s h them [defense counsel]
with such copies a s you have t h a t a r e not your work
product a s such, and before they [ t h e witnesses] take
t h e s t a n d , he i s going t o be given an opportunity t o
t a l k with each w i t n e s s , p a r t i c u l a r l y those t h a t have
been endorsed j u s t t h e o t h e r day **.I' (Bracketed
m a t e r i a l added).

The time i t took f o r t h e s t a t e t o g a t h e r , s o r t , and copy

t h e requested m a t e r i a l during t h e p r e s e n t a t i o n of t h e s t a t e ' s

c a s e i n c h i e f was reasonable. The c o u r t prevented any p r e j u d i c e

by allowing defendant t o interview t h e witnesses p r i o r t o t h e i r

taking t h e stand. W e note t h a t t h e s t a t e complied with t h e

s p e c i f i c r e q u e s t s made by defendant i n t h e August l e t t e r s , and

t h a t t h e r e p o r t s received from t h e F.B.I. and t h e autopsy r e p o r t

were forwarded t o t h e defendant soon a f t e r they were received

and months p r i o r t o t h e August requests.
 Defendant also alleges the addition of the names of 58

new witnesses to the Information on the day trial began was

error.

The pertinent section of the Code of Criminal Procedure

is section 95-1803(a) ( ) which reads :
I,

" a List of Witnesses:
()

( ) For the purpose of notice only and to prevent
"1
surprise, the prosecution shall furnish to the de-
fendant and file with the clerk of the court at the
time of arraignment, a list of the witnesses intended
to be called by the prosecution. The prosecution may,
any time after arraignment, add to the list the names
of any additional witnesses, upon a showing of good cause.
The list shall include the names and addresses of the
witnesses .I1
The Revised Commission Comment on this section points out:

"Section 95-1503 (d) of Chapter 15 requires the state
to endorse the names of the witnesses for the state
on the indictment or information. The motion under
this section permits the defendant to get a list at any
time, probably after arraignment and before trial.
i an^^times the state does not know before it files
the indictment or information all the witnesses it may
call.

"Further, this provision allows the addition of names
not only prior to trial, but after the trial has commenced.
As the trial progresses, the showing which is necessary
to establish 'good cause' should be more stringent. At
any time, the judge may allow a continuance (section 95-
1708) it if should appear necessary in the interest of
justice."

In State v. Campbell, 160 Mont. 111, 500 P.2d 801, the
person whose name was added was the victim of the assault and

the Court there found no serious claim of surprise and pointed
out that while defendant objected he made no effort to ask for

a continuance, In State v. Rozzell, 157 Mont. 443, 486 P.2d
877, the district court judge recognized there was the possibility

the witnesses that were added would surprise the defendant and

offered to continue the trial until the defendant had had a
chance to interview all the new witnesses, but this was refused.
 These cases c l e a r l y i n d i c a t e t h a t t h e proper procedure

where s u r p r i s e i s claimed from t h e a d d i t i o n of t h e new witness

names i s t o ask f o r a continuance so t h a t defendant may prepare.

I n t h e present c a s e , defendant objected t o t h e a d d i t i o n of t h e

witnesses based on s u r p r i s e and i n a b i l i t y t o prepare t h e defense

b u t never requested a continuance. The d i s t r i c t c o u r t i n

g r a n t i n g t h e s t a t e ' s request f o r t h e a d d i t i o n of t h e new witness

names cautioned:

"* * * and i n g r a n t i n g t h i s motion, i t must be
understood before any of t h e s e witnesses i s allowed
t o t e s t i f y , t h e defendant must be given an opportunity
t o have h i s counsel t a l k with them, examine them * * *."
The witnesses added were n o t p r e j u d i c i a l t o defendant.

The a d d i t i o n of t h e names of t h e F . B . I . agents d i d n o t s u r p r i s e

defendant, he knew t h e content of t h e i r testimony from t h e

r e p o r t s he had received s e v e r a l months e a r l i e r . A l l of t h e

r e s t of t h e a d d i t i o n a l witnesses who were a c t u a l l y c a l l e d t o

t e s t i f y were employees of Wright Chevrolet. These persons'

testimony was a p a r t of t h e chain of possession of t h e evidence

s e i z e d from t h e truck. The remainder of t h e witnesses whose

names were added b u t who were not c a l l e d t o t e s t i f y , were named

because they could, i f need be, corroborate t h e testimony of t h e

a l r e a d y l i s t e d w i t n e s s e s , l a y f u r t h e r foundation, o r t e s t i f y

about t h e weather and temperature i n t h e a r e a on t h e d a t e s i n

question.

I n i t s o r d e r , t h e c o u r t was c a r e f u l t o provide defendant

with t h e p r o t e c t i o n a g a i n s t s u r p r i s e and t o ensure t h e defendant

was a b l e t o prepare f o r t h e testimony. Defendant was i n no

way prejudiced by t h e a d d i t i o n of t h e s e witnesses. Before

allowing t h e a d d i t i o n of t h e new witness names t h e c o u r t

examined t h e county a t t o r n e y t o determine t h e reason f o r t h e
a d d i t i o n of each new witness and t o f i n d out the n a t u r e of each

of t h e witness' testimony i n t h e presence of defendant's counsel,

s o t h a t defendant was apprised of t h e b a s i c n a t u r e of t h e

testimony.

Defendant a l l e g e s e r r o r because he had t o make an out-

of-order p r e s e n t a t i o n of h i s case-in-chief during t h e s t a t e ' s

case-in-chief.There i s no question t h a t t h e usual o r d e r of

t r i a l may be departed from i n t h e proper case. Section 95-1911,

R.C.M. 1947, s t a t e s :

"When t h e s t a t e of t h e pleading r e q u i r e s i t , o r i n
any o t h e r c a s e , f o r good reasons, and i n t h e d i s -
c r e t i o n of t h e c o u r t , t h e order prescribed i n t h e
l a s t s e c t i o n may be departed from."

W note t h a t t h e a r t f u l phrase "good cause" i s n o t used, r a t h e r
e

t h e r e must be "good reasons" f o r t h e departure of t h e u s u a l

order of t h e t r i a l .

Defendant' s d i f f i c u l t y a r o s e from t h e f a c t t h e F .B .I.

agents who were t o t e s t i f y i n t h i s case were scheduled t o t e s t i f y

i n s e v e r a l o t h e r cases i n o t h e r s t a t e s and t h e judge would n o t

r e q u i r e them t o remain f o r t h e d u r a t i o n of t h e t r i a l , n e a r l y

t h r e e weeks, u n l e s s t h e r e was good reason t o keep them. The

c o u r t requested defendant make an o f f e r of proof t o show why

t h e s e persons should n o t be r e l a s e d from t h e i r subpoenas a f t e r

defendant opened h i s case-in-chief and examined them during t h e

s t a t e ' s case-in-chief. Defendant argued t h a t no reasonable o f f e r

of proof could be made u n t i l t h e completion of t h e s t a t e ' s case-

in-chief. This may w e l l have been t r u e p r i o r t o enactment

of t h e l i b e r a l discovery procedures i n t h e Code of Criminal

Procedure. I n t h e present c a s e , however, defendant had examined

t h e F.B.I. r e p o r t s ; he had examined t h e physical evidence; and

he had a l i s t of t h e proposed e x h i b i t s t h a t were t o be put i n t o

evidence. I f t h e r e was some reason t o r e q u i r e t h e F.B.I. agents
t o remain defendant would know it a t t h e time of t r i a l . No

showing of such need was made and t h e judge i n a proper e x e r c i s e

of h i s d i s c r e t i o n and f o r good reasons allowed t h e agents t o

leave a f t e r they had t e s t i f i e d a s p a r t of t h e defendant's case-

i n - c h i e f , i n t h e middle of t h e s t a t e ' s case-in-chief.

Defendant a l s o o b j e c t s t h a t c e r t a i n e x p e r t opinion was

permitted t o be given p r i o r t o t h e completion of t h e chain of

possession of t h e evidence upon which t h i s opinion was based.

This again involves t h e F.B.I. agents. The judge allowed them

t o g i v e t h e i r opinion a s t o t h e evidence they had examined, which

had n o t a s y e t been admitted i n evidence, because t h e r e was a

p o r t i o n of t h e chain of possession which had not been e s t a b l i s h e d .

It i s w i t h i n t h e d i s c r e t i o n of t h e c o u r t t o allow pinion t o be

given, conditioned on t h e subsequent production and admission

of t h e evidence which forms t h e b a s i s of t h e opinion. Risken

v. Northern Pac. Ry., 137 Mont. 57, 350 P.2d 831;

Graham v. Rolandson, 150 Mont. 270, 435 P.2d 263, It i s c l e a r

a f t e r a c a r e f u l examination of t h e chain of possession of t h e

evidence, t h a t t h e r e was a proper b a s i s f o r t h e admission of

t h e evidence i n t h i s case. The necessary evidence which served

t o complete t h e chain of possession was supplied, thus t h e r e

was no p r e j u d i c e t o defendant.

Defendant's s p e c i f i c a t i o n s of e r r o r 12, 13, 14, 15, and

16 concern i n s t r u c t i o n s . Defendant o b j e c t s t h a t t h e e x t e n s i v e

preliminary i n s t r u c t i o n s given by t h e c o u r t were i n e r r o r , t h a t

it was e r r o r t o g i v e them p r i o r t o t h e i n t r o d u c t i o n of evidence,

t h a t t h e remaining i n s t r u c t i o n s given a f t e r t h e p r e s e n t a t i o n

of evidence were i n e r r o r , and t h e c o u r t f a i l e d t o g i v e t h e j u r y

v e r d i c t forms which covered a l l p o s s i b l e v e r d i c t s .
 The p r e l i m i n a r y i n s t r u c t i o n s were t h e u s u a l i n s t r u c t i o n s

g i v e n on t h e r o l e of t h e j u r y . I n a d d i t i o n , included were a

number of i n s t r u c t i o n s which s e t o u t t h e elements of t h e v a r i o u s

crimes of which defendant was accused, and s e t o u t s t a t u t o r y

d e f i n i t i o n s of terms used.

~ o n t a n a ' sc r i m i n a l code i s w r i t t e n i n c l e a r p l a i n language

which s e r v e s w e l l a s t h e b a s i s f o r i n s t r u c t i o n s t o t h e j u r y .

There was no e r r o r i n i n c o r p o r a t i n g t h e e n t i r e Information i n t o

t h e preliminary i n s t r u c t i o n s , f o r it too i s b a s i c a l l y i n

s t a t u t o r y language merely i n s e r t i n g t h e d e f e n d a n t ' s name and t h e

v i c t i m ' s name i n t h e proper p l a c e s and enumerating t h e weapons

used. The language i s n o t inflammatory b u t i s a s n e u t r a l

a s language d e t a i l i n g t h e charges involved h e r e can be. Examina-

t i o n of t h e i n s t r u c t i o n d e f i n i n g reasonable doubt and t h e burden

of proof show proper s t a t e m e n t s of t h e l a w .

Defendant a s s e r t s t h a t language i n t h e i n s t r u c t i o n which

d e f i n e s t h e degree of proof necessary as being t h a t which con-

v i n c e s t h e mind " t o a moral c e r t a i n t y of t h e t r u t h of t h e c h a r g e ,

no more and no l e s s " f a l l s i n t o t h e type of e r r o r found i n S t a t e

v. T a y l o r , 163 Mont. 106, 515 P.2d 695. I n Taylor, the s t a t e ' s

burden was d e f i n e d using t h e phrase "only such proof a s may''

which i m p l i e d l y l i m i t s c o n s i d e r a t i o n of some of t h e evidence and

which could be i n t e r p r e t e d t o l i m i t t h e burden of p r o o f . Here,

t h e n a t u r e of t h e s u b j e c t i v e judgment t o be made by t h e j u r o r s

i s b e i n g s e t f o r t h and t h e language "no more and no l e s s ' ' merely

emphasizes t h e n a t u r e of t h e judgment and i n no way diminishes

it.

The Court f i n d s no e r r o r t o t h e p r e j u d i c e of defendant

from t h e f a c t t h e e x t e n s i v e p r e l i m i n a r y i n s t r u c t i o n s were

given p r i o r t o t h e i n t r o d u c t i o n of evidence i n t h e c a s e .
Defendant concedes t h a t s e c t i o n 95-1911, R.C.M. 1947 g i v e s t h e

c o u r t t h e power t o vary t h e order of t r i a l s e t out i n s e c t i o n

95-1910, R.C.M. 1947, f o r good reasons. The present c a s e was

b u i l t e n t i r e l y on c i r c u m s t a n t i a l evidence. Some of t h e counts

charged were complex and n o t easy t o understand. For example,

t h e second homicide count was a felony homicide which had a s

a l t e r n a t i v e f e l o n i e s , sexual i n t e r c o u r s e without consent and

aggravated a s s a u l t . The aggravated a s s a u l t a l t e r n a t i v e had

a s a l t e r n a t e aggravating f a c t o r s , s e r i o u s bodily i n j u r y o r bodily

i n j u r y with a weapon, l i s t i n g a s a l t e r n a t i v e weapons a rope o r

a heavy o b j e c t . It was f o r good reasons t h a t t h e judge i n s t r u c t e d

t h e j u r y a s t o t h e b a s i c elements of a l l t h e offenses charged,

so t h e j u r y could have some.understanding of t h e complex circum-

s t a n t i a l evidence t o be presented. I n a l e s s complex c a s e which

was n o t based only on c i r c u m s t a n t i a l evidence, such preliminary

i n s t r u c t i o n s might not be necessary and t h e r e would n o t be t h e

required good reasons f o r varying t h e usual order of t h e t r i a l ,

b u t here i t was acceptable t o do so.

Defendant o b j e c t s t h a t t h e i n s t r u c t i o n defining t o r t u r e

i n c o r r e c t l y d e f i n e s t h a t term. The i n s t r u c t i o n s t a t e s :

"Whoever purposely a s s a u l t s another p h y s i c a l l y f o r
t h e purpose of i n f l i c t i n g c r u e l s u f f e r i n g upon t h e
person s o a s s a u l t e d f o r t h e p a r t i c u l a r purpose of
enabling t h e a s s a i l a n t t o e i t h e r :

" ( a ) e x t o r t anything from such person;

"(b) o r t o persuade such person a g a i n s t h i s o r
her w i l l , o r

" ( c ) t o s a t i s f y some o t h e r untoward propensity of
the assailant ** *.Ir

The term "untoward propensity" i s defined i n the same i n s t r u c t i o n

a s meaning "any perverse, wrong, bad o r corrupt i n c l i n a t i o n o r

tendency."
 A number of C a l i f o r n i a cases have adopted a s i m i l a r

d e f i n i t i o n of t o r t u r e . People v. Daugherty, 40 Cal.2d 876,

256 P.2d 911, 917, s t a t e s :

"Murder i s perpetrated by t o r t u r e 'when " t h e a s s a i l a n t ' s
i n t e n t was t o cause c r u e l s u f f e r i n g on t h e p a r t of t h e
o b j e c t of t h e a t t a c k , e i t h e r f o r t h e purpose of revenge,
e x t o r t i o n , persuasion o r t o s a t i s f y some o t h e r untoward
propensity." People v. Tubby, 34 Cal.2d 72, 7 7 , 207
P.2d 51,54; People v. Bender, 27 Cal.2d 164, 177, 163
P.2d 8 . ' People v. Martinez, 38 Cal.2d 556, 561, 241 P.
2d 224, 227."

The language of t h e i n s t r u c t i o n proposed by defendant i s an exact

q u o t a t i o n from t h e opinion of an e a r l i e r C a l i f o r n i a c a s e , People

v. Heslen, 163 P.2d 21,27. See: 165 P.2d 250, 27 Cal.2d 520.

That case d e a l t with t h e s u f f i c i e n c y of t h e evidence t o support

a f i n d i n g of murder by t o r t u r e and while t h e r e i s no r e a l c o n f l i c t

between t h e two i n s t r u c t i o n s , t h e one given by t h e c o u r t i s i n

t h e g e n e r a l language which does not comment on t h e evidence and

which breaks t h e elements down and s e t s t h e various purposes

out i n t h e a l t e r n a t i v e f o r a c l e a r e r and more understandable

statement of t h e law. The i n s t r u c t i o n given i s a proper one

and c e r t a i n l y t h e b e t t e r of t h e two proposed i n s t r u c t i o n s .

People v. Wiley, ( C a l i f . Oct. 4 , 1976) 554 P.2d 881.

Defendant o b j e c t s t o t h e remaining i n s t r u c t i o n s given

a f t e r t h e p r e s e n t a t i o n of evidence. Most of the o b j e c t i o n s a r e

aimed a t t h e method of proof of t h e s t a t e of mind element of t h e

charges a g a i n s t t h e defendant. It i s c l e a r t h a t i n t h e usual

c a s e t h e j u r o r must r e l y on h i s normal mental processes t o d e t e r -

mine i f t h e defendant d i d an a c t "purposely o r knowingly".

Here, t h e c o u r t i n an extensive and thorough s e t of i n s t r u c t i o n s

o u t l i n e d t h e normal course of t h e inferences t h a t a r i s e and how

they a r i s e and c a r e f u l l y defined t h e terms used i n t h e s e i n s t r u c t i o n s .
I n t h i s c a s e , based a s i t was on c i r c u m s t a n t i a l evidence e n t i r e l y ,

i t was proper t o g i v e t h e s e i n s t r u c t i o n s .

Defendant argues t h e v e r d i c t forms provided t h e j u r y do

n o t cover a l l t h e p o s s i b l e v e r d i c t s and t h a t they amount t o s p e c i a l

verdicts.

Defendant submitted i n s t r u c t i o n s and v e r d i c t forms which

covered t h e o f f e n s e s of m i t i g a t e d d e l i b e r a t e homicide and unlawful

restraint. I t i s c l e a r , as s t a t e d i n S t a t e v. Gray, 152 Mont.

"'The submission o f a lower o f f e n s e i s j u s t i f i e d
only when t h e evidence on some b a s i s would s u p p o r t a
f i n d i n g t h a t t h e defendant i s innocent of t h e h i g h e r
o f f e n s e and g u i l t y of t h e lower."'

See a l s o : S t a t e v . McDonald, 51 Mont. 1, 149 P. 279.

I n t h i s c a s e t h e r e w a s no such evidence and t h e i n s t r u c t i o n s

on t h e l e s s e r o f f e n s e s were p r o p e r l y n o t given.

The v e r d i c t s given t h e j u r y were g e n e r a l v e r d i c t s a s k i n g

f o r a f i n d i n g of g u i l t y o r n o t g u i l t y and r e q u e s t i n g t h e j u r y

t o make t h e a d d i t i o n a l f i n d i n g t h a t t h e element n e c e s s a r y f o r

t h e imposition of t h e d e a t h p e n a l t y was p r e s e n t . This f a c t u a l

f i n d i n g does n o t f a l l i n t o t h e v i c e of a s p e c i a l v e r d i c t because

i t does n o t r e q u i r e a f a c t determination which could be used t o

undermine t h e j u r y determination.

Defendant claims e r r o r because h i s i n s t r u c t i o n s were

n o t given. C a r e f u l examination i n d i c a t e s f o r t h e most p a r t ,

t h e s u b j e c t m a t t e r of t h e s e i n s t r u c t i o n s was covered by t h e c o u r t ' s

instructions. ~ e f e n d a n t ' si n s t r u c t i o n s on mental s t a t e and

mental d i s e a s e and d e f e c t m i s s t a t e t h e law and t h e i n s t r u c t i o n s

on t h e elements of t h e crimes charged add a n element t h a t i s n o t

required.
 I n s p e c i f i c a t i o n s of e r r o r 17 and 1 9 , defendant makes

a n e x t e n s i v e a t t a c k on t h e Montana p r o v i s i o n s f o r n o t i c e of

mental d e f e c t o r d i s e a s e and t h e mental d e f e c t o r d i s e a s e pro-

v i s i o n s i n t h e Code of Criminal Procedure, s e c t i o n s 95-501

through 509 and s e c t i o n 95-1803(d). These arguments were a n - .

swered by t h i s Court i n S t a t e ex r e l . S i k o r a v. D i s t r i c t C o u r t ,

154 Mont. 241, 462 P.2d 897. This g e n e r a l b r o a d s i d e a t t a c k

l o s e s much of i t s f o r c e when i t i s recognized t h a t t h e United

S t a t e s Supreme Court promulgated and Congress, a f t e r c a r e f u l

c o n s i d e r a t i o n , approved Rule 12.2, Notice of Defense Based on

Mental Condition of t h e F e d e r a l Rules of Criminal Procedure which

n e a r l y i s i d e n t i c a l t o t h e procedure a t t a c k e d . It should b e

a g a i n emphasized t h e purpose of t h e s t a t u t e i s f o r n o t i c e and

t o p r e v e n t s u r p r i s e and t o e l i m i n a t e t h e n e c e s s i t y f o r a con-

t i n u a n c e of a t r i a l when t h e defense i s r a i s e d . The f a c t of t h e

n o t i c e does n o t amount t o a p l e a and i t could n o t b e used i n

any way as evidence i n t h e t r i a l on t h e m e r i t s . The p r o v i s i o n s

merely provide f o r advance n o t i c e of t h e i n t e n t t o r e l y on such

defense s o t h a t t h e s t a t e may prepare.

S t a t e v. Olson, 156 Mont. 339, 480 P.2d 822, upheld t h e

s t a t u t o r y s e c t i o n t h a t p l a c e s upon t h e defendant t h e burden t o

prove by a preponderance of t h e testimony t h e e x i s t e n c e of mental

defect o r disease. I n t h e i n s t a n t c a s e defendant was i n no way

p r e j u d i c e d because none of d e f e n d a n t ' s i n s t r u c t i o n s were r e f u s e d

based on a c o u r t f i n d i n g t h a t defendant could n o t meet t h i s

burden. S t a t e v. B e n t l e y , 155 Mont. 383, 472 P.2d 864, found

t h e reciprocity required. Indeed, under t h e Montana procedure i n

section 95-505(5) t h a t r e q u i r e s a copy of t h e p s y c h i a t r i c examina-

t i o n be s e n t t o counsel f o r t h e d e f e n d a n t , i t i s impossible t o have
a s e c r e t r e b u t t a l witness on t h i s matter. Defendant knows who

t h e s t a t e ' s witnesses a r e and through t h e r e p o r t he knows t h e

content of t h e i r testimony a s w e l l .

There i s no need f o r f e a r of s e l f - i n c r i m i n a t i o n during t h e

p s y c h i a t r i c examination, f o r s e c t i o n 95-509 p r o t e c t s t h e defendant

i f incriminatory information i s gained during t h e examination.

Defendant refused t o give t h e n o t i c e a s required by t h e

statute. He claims p r e j u d i c e because he was not allowed t o v o i r

d i r e on t h e s u b j e c t of mental d e f e c t o r d i s e a s e . However, a t

t h e time he wished t o v o i r d i r e he had n o t complied with t h e

n o t i c e and t h e i s s u e could not a t t h a t time be presented t o

t h e jury. The c o u r t was c o r r e c t i n r e f u s i n g t o allow t h e v o i r

dire.

Defendant a l l e g e s e r r o r because h i s e x p e r t on mental d e f e c t

o r d i s e a s e was n o t allowed t o be present during t h e s t a t e ' s

p r e s e n t a t i o n of i t s r e b u t t a l e x p e r t s on t h i s matter. Earlier

i n t h e t r i a l , defendant argued f o r a r u l i n g from t h e c o u r t t h a t

r e b u t t a l witnesses should be excluded from t h e courtroom during

t h e p r e s e n t a t i o n of t h e case. The judge r u l e d a g a i n s t t h i s

request. Defendant a l l e g e s t h i s was an abuse of d i s c r e t i o n t o

t h e p r e j u d i c e of defendant. However, t h e s t a t e ' s witnesses

f i n i s h e d a t t h e end of t h e day and defendant's r e b u t t a l began

t h e next day. There was time t o inform t h e defense e x p e r t of

any a d d i t i o n a l information n o t i n t h e r e p o r t made by t h e s e ex-

p e r t s , which t h e defense already had, and t o prepare t h e r e b u t t a l

testimony. There was no prejudice from t h i s minor inconsistency

on t h e p a r t of t h e judge.

The a l l e g e d e r r o r i n f i l i n g t h e f o u r t h Information i s

without m e r i t . The f i l i n g follows t h e d i r e c t i o n s s e t out by t h i s
Court i n S t a t e ex r e l . McKenzie v. D i s t r i c t Court, 165 Mont.

54, 525 P.2d 1211, t h e r e f o r e t h e r e was no e r r o r i n t h e Information

or its filing.

Defendant was not denied h i s r i g h t t o a speedy t r i a l .

While i t i s t r u e t h a t approximately 350 days elapsed between

t h e f i l i n g of t h e charges and t h e beginning of t r i a l , mas

a long enough period t o s h i f t t o t h e s t a t e t h e burden of explaining

t h e delay and showing t h e t h e absence of prejudice. Fitzpatrick

v. C r i s t , 165 Mont. 382, 388, 528 P.2d 1322; S t a t e v. K e l l e r ,

Mont . ,=l?.2d 1013, 33 St.Rep. 795,798. The s t a t e ' s

explanation f o r t h e delay, which included defendant's s e v e r a l

appearances i n t h i s Court, t h e d i f f i c u l t i e s a r i s i n g from t h e

defendant's r e f u s a l t o plead, t h e d i f f i c u l t i e s which a r o s e be-

cause t h i s was t h e f i r s t homicide committed under t h e new Montana

Criminal Code and under t h e new c a p i t a l punishment scheme, i s

s a t i s f a c t o r y t o t h i s Court. Much of t h e time can i n f a i r n e s s

be charged t o n e i t h e r p a r t y , b u t i t i s c l e a r t h a t i t aided both

p a r t i e s t o b e t t e r prepare f o r t h e t r i a l , t h i s being a complex

c i r c u m s t a n t i a l case. This advantage outweighs any a n x i e t y

defendant might have s u f f e r e d .

Defendant a s s e r t s e r r o r i n t h e t r i a l c o u r t ' s Findings,

Conclusion, Sentence and Order. The e r r o r s r e f e r r e d t o a r e

e s s e n t i a l l y c l e r i c a l e r r o r s i n t h e body of t h a t document. A

mistaken c i t a t i o n of t h e subsection l e t t e r i n s e c t i o n 94-5-105,

R.C.M. 1947, which was caused by t h e amendment which numbered

t h e s e c t i o n i s an example. This document i s not i n e r r o r i n

r e s p e c t t o t h e f a c t u a l o r l e g a l b a s i s of any of i t s f i n d i n g s

and t h i s Court f i n d s no prejudice i n t h e c l e r i c a l e r r o r s .
 Finding no r e v e r s i b l e e r r o r , t h e judgment i s a f f i r m e d .

dge, s i t t i n g f o r J u s t i c e Gene B .

M r . J u s t i c e Frank I. Haswell c o n c u r r i n g :

I concur i n t h e r e s u l t reached by t h e m a j o r i t y . However,

w i t h r e s p e c t t o t h e i s s u e of t h e c o n s t i t u t i o n a l i t y of t h e d e a t h

p e n a l t y , t h e m a j o r i t y o p i n i o n r e l i e s t o o h e a v i l y on tenuous

analogy t o t h e s t a t u t o r y schemes of o t h e r s t a t e s analyzed i n

Gregg v. Georgia, 44 U.S.L.W. 5230; P r o f f i t t v . F l o r i d a , 44

U.S.L.W. 5256; and J u r e k v . Texas, 44 U.S.L.W. 5262, a l l decided

J u l y 2 , 1976. I n m view t h e p r e c i s e a p p l i c a t i o n o f Montana
y

s t a t u t e s t o t h e i m p o s i t i o n of t h e d e a t h p e n a l t y i s l e f t i n a

dense fog. This concurring opinion attempts t o describe t h e

c o n s t i t u t i o n a l a p p l i c a t i o n of t h e Montana s t a t u t e s .

The cumulation of m a j o r i t y o p i n i o n s i n Furman v . G e o r g i a ,

408 U.S. 238, 92 Sect. 2726, 33 L ed 2d 346 (1972), l e d t o

c o n s i d e r a b l e confusion among t h e s e v e r a l s t a t e s ' l e g i s l a t u r e s
which desired to retain a constitutionally viable death penalty.

In some jurisdictions Furman was read as requiring a strictly

mandatory death sentence for certain classes of proven crimes.

This view was laid to rest by the decisions in Roberts v. Louisiana,

44 U.S.L.W. 5281, and Woodson v. North Carolina, 44 U.S.L.W. 5267,

(both decided July 2, 1976), and by this language in Gregg at

pp. 5240 and 5242, 44 U.S. L.W.:

"Furman mandates that where discretion is afforded
a sentencing body on a matter so grave as the
determination of whether a human life should be
taken or spared, that discretion must be suitably
directed and limited so as to minimize the risk of
wholly arbitrary and capricious action.

II
In summary, the concerns expressed in Furman that
the penalty of death not be imposed in an arbitrary
or capricious manner can be met by a carefully
drafted statute that ensures that the sentencing
authority is given adequate information and guidance.
As a general proposition these concerns are best met
by a system that provides for a bifurcated proceeding
at which the sentencing authority is apprised of the
information relevant to the imposition of sentence
and provided with standards to guide its use of the
information." (Emphasis supplied).
Thus, statutory schemes which impose the death penalty in

a wholly mandatory or wholly discretionary fashion do not pass

constitutional muster. I believe the Montana laws effective at the
date of the crimes in the instant case are in that constitutionally

permissible middle ground between unbending mandatory death sentences

and unbridled discretion in the imposition of death sentences.

To ensure that death sentences are not "wantonly" or

"freakishly" imposed (Furman v. Georgia, 408 U. S. 238,310) the

United States Supreme Court in its most recent pronouncements on

the subject, seems to have established three general criteria

which are requisite to a valid death penalty statutory scheme. See

e.g., Jurek v. Texas, 44 U.S.L.W. 5262, 5266.
 First, there must be at least one statutory aggravating

circumstance before a death sentence may even be considered.

Second, the defense must be afforded the opportunity to bring

before the sentencing body at a separate sentencing hearing any

mitigating circumstances relating to the individual defendant.

Third, there must be available prompt judicial review of the

sentencing decision by a court of statewide jurisdiction, providing

a means to promote the evenhanded, rational, and consistent imposi-

tion of death sentences under law.

The death penalty statutes under attack in the instant

case, sections 94-5-105 and -304, R.C.M. 1947, as they existed

at the time of the crimes, satisfy the first criterion set forth

above. The death sentence cannot be imposed unless one of six

aggravating circumstances is found by the trier of fact to exist.

The majority opinion herein adequately shows that this condition

was found in the instant case.

The second criterion, that mitigating circumstances be

reviewed at a separate sentencing hearing, is satisfied by two

separate statutory provisions: First, both death penalty statutes

provide that the court "shall" impose a sentence of death "unless

there are mitigating circumstances". Defendant urges that the

"unless" clause may purport to circumscribe the sentencing judge's

authority, but that there are no guiding standards nor sources

of information provided for. This argument ignores the second

statutory provision relevant here, that is, the presentence in-

vestigation and report provisions. Section 95-2203, R.C.M. 1947,

requires a written presentence investigation report to be delivered

to and considered by the sentencing court in felony cases. Section

95-2204, R.C.M. 1947, provides the report shall contain information
respecting "the characteristics, circumstances, needs, and

potentialities of the defendant; his criminal record and social

history; the circumstances of the offense; *** and the harm

to the victim, his immediate family, and the community." The

report provides the sentencing authority with whatever circum-

stances may exist in mitigation of the defendant's conduct.

Reading the two provisions together, the sentencing court

is required to consider mitigating circumstances, and is required

to consider the presentence investigation report which must

contain any matters relevant to mitigation. In addition, all

sentencing courts are directed by section 95-2201, R.C.M. 1947,

to perform their sentencing functions "to the end that persons

convicted of a crime shall be dealt with in accordance with their

individual characteristics, circumstances, needs and potentiali-

ties". This mandates the imposition of sentences which are

not disproportionate to the severity of the crime. Finally, the

defendant is authorized to seek a hearing to present to the court

his testimony and evidence in mitigation of punishment.

Prompt judicial review of death sentences is provided for

by appeal to this Court, as well as appeal to the Sentence Review

Division. This Court determines the legality of the sentence

imposed, State v. Simtob, 154 Mont. 286, 462 P.2d 873, while

the review division is designed to determine the appropriateness

of the sentence with respect to the individual offender and
particular offense.
In summary, although Montana's statutory scheme is unlike
those approved by the United States Supreme Court in Gregg, Proffitt

and Jurek, I can see no substantive failure of Montana's statutory
scheme to comply with constitutional standards. Our system is

neither wholly mandatory nor wholly discretionary. There are

precise statutory requirements for finding aggravating and

mitigating circumstances, and a procedure for flushing out the

facts with respect to such circumstances. There is appellate

review at two levels, insuring that the sentence is both legal

and proportional to the nature and class of the crime. In short,

I believe that the statutory scheme in existence at the time of
the crimes herein, affords defendant the procedural safeguards

necessary to protect his substantive right to be sentenced

without arbitrariness or caprice.

Justice.
Honorable Robert J. Boyd, D i s t r i c t Judge, s i t t i n g f o r Justice
Wesley C a s t l e s , d i s s e n t i n g :

While I concur w i t h much t h a t h a s been s a i d by t h e

m a j o r i t y of t h e Court i n a f f i r m i n g t h e c o n v i c t i o n o f t h e d e f e n d a n t ,

I must r e s p e c t f u l l y d i s s e n t from t h e m a j o r i t y i n s u s t a i n i n g t h e

lower c o u r t i n t h e m a t t e r of t h e admission i n t o evidence of p l a i n t i f f ' s

e x h i b i t s numbered 6 through 1 which was s p e c i f i c a t i o n of e r r o r
1

number 4 i n t h e a p p e l l a n t ' s b r i e f .

P l a i n t i f f ' s e x h i b i t number 6 was a c o l o r e d photograph

of t h e v i c t i m ' s body taken a t t h e p l a c e of discovery. Plaintiff's

e x h i b i t number 7 was a c o l o r e d enlarged close-up of t h e v i c t i m ' s

face. P l a i n t i f f ' s e x h i b i t number 8 was a b l a c k and w h i t e autopsy

photo of t h e v i c t i m ' s f a c e . P l a i n t i f f ' s e x h i b i t number 9 was a n

e i g h t by t e n autopsy photo of t h e v i c t i m ' s f a c e showing t h e head

p a r t i a l l y shaved w i t h gaping wounds.

E x h i b i t number 10 was a b l a c k and w h i t e autopsy photograph

showing t h e shaved s k u l l and gaping wounds. Plaintiff's exhibit

number 1 was a b l a c k and w h i t e autopsy photo showing t h e bloody
1

f a c e of t h e v i c t i m w i t h b r a i n t i s s u e p r o t r u d i n g from t h e wound.

A t t h e o u t s e t it i s noted t h a t t h e r e w a s no i s s u e f o r t h e

j u r y a s t o t h e f a c t of d e a t h o r t h e i d e n t i t y of t h e v i c t i m f o r

t h i s had been s t i p u l a t e d by and between counsel. The m a j o r i t y

recognizes t h e requirements l a i d down i n F u l t o n v . Chouteau County

Farmers' Co., 98 Mont. 48, 37 P.2d 1025, and S t a t e v. B i s c h e r t ,

131 Mont. 152, 308 P.2d 969, of "relevance" and " n e c e s s i t y " , but

then completely i g n o r e s t h e testimony o f D r . John P f a f f t h a t he

could r e n d e r h i s opinion w i t h o u t r e f e r e n c e t o t h e photographs.
 The photographs were sdmlcredly gruesome and t h e c o u r t

w a s Chereiore placed i n t o t h e unenviable p o s i t i o n of weighing

t h e p r o b a t i v e v a l u e of t h e o f f e r e d photographs w i t h t h e a f f e c t

that the photos were bound t o have on t h e j u r y . This i s

p a r t i c u l a r l y s o of e x h i b i t s 9 and 10 which were taken d u r i n g

t h e autopsy by D r . John P f a f f and a f t e r t h e head of t h e v i c t i m

had been shaved. These were a d m i t t e d even though D r . P f a f f had

"Q. (By M r . Reagan) D r . P f a f f , you d i d conduct t h i s
a u t o p s y ? A . Yes S i r .

Q . And you a r e h e r e prepared t o t e s t i f y i n t h i s Court
t o t h i s j u r y a s t o t h e r e s u l t s of your a u t o p s y ? A . Yes.

. And you a r e prepared t o r e n d e r c e r t a i n o p i n i o n s
based upon your e x p e r t i s e , and your a u t o p s y , a s t o t h e
i n j u r i e s s u f f e r e d and t h e c a u s e of d e a t h ? A . I am.

'Q. And i s i t p o s s i b l e f o r you t o s o t e s t i f y and r e n d e r
hose o p i n i o n s i n t h i s c o u r t today w i t h o u t t h e s e photo-
graphs? A . It i s p o s s i b l e f o r me t o , yes sir.

Q . And you would be a b l e t o do s o ? A . To t h e b e s t of
my a b i l i t y .

"Q. And you would, w i t h o u t t h e photographs, be a b l e t o
c e s t i f y and r e n d e r an opinion a s t o t h e type and scope
of t h e i n j u r i e s and t o t h e p r o b a b l e c a u s e of d e a t h ? A.
L can t e s t i f y t o t h e b e s t of m a b i l i t y i n answer t o
y
t h e q u e s t i o n s t h a t a r e put t o me.

'Q. The p o i n t I a m t r y i n g t o make, you have observed t h e
wounds? A . Yes s i r .

Q . And based upon your o b s e r v a t i o n of t h o s e wounds and
o t h e r t e s t s conducted by you, you a r e prepared t o r e n d e r
an o p i n i o n a s t o t h e c a u s e of d e a t h ? A . I am.

'Q. And t o do t h a t , you could do t h a t w i t h o u t t h e u s e
~f t h o s e photographs? A . I could do t h a t w i t h o u t t h e s e
photographs.

'MR. REAGAN: O b j e c t i o n t o t h e s e photographs, n o t o n l y
based upon a l l of t h e o b j e c t i o n s he l i s t e d i n P6, b u t
f u r t h e r grounds t h e s e p a r t i c u l a r photographs a r e gruesome
and n o t n e c e s s a r y f o r t h e purpose of e l i c i t i n g t h e t e s t i -
mony from t h i s p a r t i c u l a r w i t n e s s .

"'L'HE COURT: Overruled; he may answer. The e x h i b i t may be
admitted ."
 I t i s apparent from t h e holding of t h i s Court i n B i s c h e r t

t h a t i f t h e p i c t u r e s of a homicide v i c t i m made subsequent t o d e a t h

a r e gruesome o r g h a s t l y and c a r r y danger of p r e j u d i c e , they a r e

i n a d m i s s i b l e u n l e s s they a r e r e l e v a n t t o some m a t e r i a l i s s u e and

wnuld reasonably a s s i s t t h e j u r y i n t h e d e t e r m i n a t i o n of t h e

d e f e n d a n t ' s g u i l t , and t h i s relevancy must outweigh t h e danger

t h a t t h e j u r y would s u b s t i t u t e emotion f o r reason f o r a b a s i s

of i t s v e r d i c t .

I n t h e c a s e a t b a r , t h e r e was no r e a s o n f o r t h e i n t r o d u c t i o n

o f t h e photos, t h e r e was no i s s u e o r controversy a s t o t h e cause

of death. A d d i t i o n a l l y , t h e photographs taken d u r i n g t h e autopsy

r e v e a l m a t t e r s such as t h e shaved head of t h e v i c t i m which were

n o t t h e handy work of t h e defendant, and could under t h e circum-

s t a n c e s s e r v e no o t h e r purpose than t o a r o u s e t h e emotions and

p a s s i o n s of t h e j u r y .

A s stated inBischert , 131Mont. 152, 160:

"Here, where t h e p a t h o l o g i s t was f u l l y a b l e t o e x p l a i n
h i s f i n d i n g s without t h e use of t h e photographs, t h e i r
purpose could only a r o u s e t h e human f e e l i n g s of t h e j u r y
without a i d i n g them i n f u r t h e r understanding of t h e
crime charged."

I would hold t h a t t h e t r i a l c o u r t abused i t s d i s c r e t i o n i n

t h e admission of t h e s e photographs and by r e a s o n t h e r e o f p r e j u d i c e

r e s u l t e d and a r e v e r s a l should be had.

Judge, s i t t i n g f o r ~ u s t i c e
Wesley
Castles.