State v. Fitzpatrick

No. 14422

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

1979

THE STATE O MONTANA,
F

P l a i n t i f f and R e s p o n d e n t ,

VS .
BERNARD JAMES FITZPATRICK,

D e f e n d a n t 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 T h i r t e e n t h J u d i c i a l ~ i s t r i c t ,
H o n o r a b l e C h a r l e s Luedke, J u d g e p r e s i d i n g .

C o u n s e l o f Record:

For Appellant:

J o h n L . Adams a r g u e d , B i l l i n g s , Montana

F o r Respondent:

Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
Mike M c C a r t e r , 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 ,
H e l e n a , Montana
James S e y k o r a , County A t t o r n e y , H a r d i n , Montana

Submitted: October 30, 1979

Decided : FE6 -
Filed: Fke i
Mr. Justice John C. Sheehy delivered the Opinion of the Court.

A jury sitting in District Court, Yellowstone County,
found Bernard James Fitzpatrick guilty of deliberate homicide,
aggravated kidnapping and robbery. Fitzpatrick was sentenced
to death for the crimes of deliberate homicide and aggravated
kidnapping and to 100 years imprisonment for robbery by the
Honorable Charles Luedke, district judge. The case is
before this Court pursuant to the automatic review pro-
visions of section 95-2206.12, R.C.M. 1947, now section 46-
18-307 MCA, and the direct appeal of Fitzpatrick.
Before the homicide, Bernard James Fitzpatrick, (defendant),
had been imprisoned in the Montana State Prison until March
28, 1975. Upon his release, defendant was greeted by two

companions, Christine Fetters and Paul Manning. They provided
defendant with transportation to Butte, Montana. Manning
gave defendant a handgun. A few days later, Christine
Fetters and the defendant traveled by bus to Billings,

Montana.
On the morning of April 5, 1975, defendant was playing
pool with Travis Holliday in the Standard Bar in Billings,
when two men, Paul Bad Horse Jr. and Edwin Bushman, entered
the bar. Bad Horse recognized Holliday and the two men
conversed briefly. Shortly thereafter, introductions were
made and the four men proceeded to play several games of

pool. While playing pool, they discussed the feasibility of
robbing the Safeway store in Hardin, Montana. Defendant
picked up a napkin, drew lines on it to represent streets, and
asked the others where the Safeway store and bank were located.
"X's" were made in the appropriate places on the napkin. Bad
Horse explained that an employee left the store at 10:OO
p.m. each night and went to the local bank to make the night

deposit.
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 After the discussion Bushman (who was driving his
girlfriend's car) and Bad Horse agreed to take Holliday and
defendant to a home on the west side of Billings. En route
to the west side home, three teenage girls were picked up at
Holliday's request. The defendant, gave directions to a
residence on the south side of Billings, went into the residence
and came out soon thereafter, placing what appeared to be a
gun under his belt.
The four men and three girls arrived at the west side
home at approximately 6 : 0 0 p.m. Once inside, Holliday and
the defendant introduced the others to Gary Radi. As additional
plans for the robbery were being made, defendant revealed
the handgun he had placed under his belt. While the others
examined the .45 caliber automatic, the defendant cautioned
them to be careful because it was loaded.
Holliday asked Bushman for a ride to Hardin and Bushman
agreed to do so. It was planned that Radi and defendant
would take Radi's car (a metallic blue 1971 Pontiac) to
Hardin and Holliday would travel with Bushman and Bad Horse.
With one of the teenage girls in Radi's car and the other two
girls in Bushman's car, the five men met in front of the
Standard Bar in Billings. Again Holliday asked Bushman to
provide transportation for the girls and Bushman agreed to
take them to Hardin. The girl in Radi's car left the group
at the Standard Bar. The parties agreed to meet at a
filling station near Billings near the entrance to the
interstate highway before departing to Hardin.
They arrived in Hardin at approximately 8:00 p.m. The
girls were taken to the Becker Bar at Holliday's request.
The five men then toured the downtown area in Bushman's
car. They drove past the drive-in bank and the Safeway store.
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When they returned to the Becker Bar, Holliday, Bad Horse,
Radi and the defendant got into Radi's car and drove to the
Safeway store while Bushman returned his girlfriend's car to
his house in Hardin, and picked up his own car which contained
a piece of rope in the trunk.
Bushman drove his car to the Safeway store. He cut the
rope into two pieces approximately three and one-half feet
in length and gave them to the defendant. The five men sat in the
cars in front of the store until it closed at 10:OO p.m. When
Everett Stoltz, the store manager, came out and drove away in
a four wheel drive vehicle, Radi and defendant followed him.
Monte Dyckman, the assistant store manager, came out of the
store soon after and drove away in a pickup. Bushman, Bad
Horse and Holliday followed him.
Everett Stoltz drove directly to his home, and Radi and
defendant, realizing that Stoltz would not be making the
night deposit, then drove to the drive-in bank located on
the opposite corner from Stoltz's house. The men had agreed
previously should either car follow the wrong employee,
the occupants would go to the bank and wait for the deposit
to be made.
Monte Dyckman stopped at the post office before turning
onto the street to the bank. When the men in Bushman's car
saw Dyckman turn into the drive-in bank, Holliday stated,
"They've got him now." Bushman then drove to a filling
station to prepare for the trip back to Billings.
At approximately 10:30 p.m., witnesses observed the
Dyckman vehicle traveling at a high rate of speed down a major
street in Hardin. Two persons were in the truck, a driver and
a passenger slumped against the right-hand door. Following

close behind Dyckman's vehicle was a dark blue car. Soon
thereafter, a man driving on the interstate highway was passed
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by a truck (he recognized as belonging to Monte Dyckman)
and a car following Dyckman's vehicle. The vehicles were
moving at a high rate of speed. They turned off the highway
and stopped near a section of the highway known as the
Toluca interchange.
In the early morning hours of April 6, 1975, Under
Sheriff John Fergerson noticed the reflection of a taillight
on a vehicle parked behind a gravel pile near the Toluca inter-
change. Fergerson approached the vehicle and recognized
Monte Dyckman lying on the passenger seat with his hands
tied behind his back. Monte Dyckman was dead. He had been
shot twice with a gun held less than six inches from his
head. Fergerson also noticed numerous footprints around
Dyckman's truck and tiretracks leading into the area. A
subsequent search of Dyckman's car revealed two .45 caliber
brass shell casings.
Bushman, Holliday and Bad Horse arrived at Radi's
house in Billings at approximately 2 : 3 0 a.m., April 6, 1975.
Eventually, Radi returned without the defendant and the
four men went inside to discuss the robbery. Radi explained
that defendant grew tired of waiting for the store employee
at the drive-in bank and had stepped out of the car, pulling
off his mask. About that time Dyckman turned into the
drive-in bank, stepped out of his car, and was seized by
Radi and defendant. When asked how much money was taken,
Radi stated that the bag contained only $200 in cash and
some food stamps and checks. Radi told the others, "Fitz didn't
have to shoot the kid. Boom, boom, he shot his head off."
"Fitz" is identified as the defendant.
In the meantime, the defendant telephoned Christine
Fetters at the home of his sister. Defendant instructed
Christine Fetters to purchase two bus tickets to Butte and
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meet him at the bus depot. While Christine Fetters was
standing in line waiting to board the bus at 6:00 a.m.,
defendant walked into the depot. The couple boarded the bus
and returned to Butte that morning. Defendant was apprehended
two months later, on June 3, 1975, in Spokane, Washington,
by a special agent of the Federal Bureau of Investigation.
The State of Montana filed an information charging
Bushman, Bad Horse, Holliday, Radi and defendant with deliberate
homicide, aggravated kidnapping and robbery. Trial was held
in Billings, in October 1975. Bushman testified in behalf
of the State and was granted immunity from prosecution. Radi
and defendant were found guilty of all charges. Bad Horse
and Holliday were found guilty of robbery.
On October 29, 1975, Radi and defendant were each
sentenced to 100 years imprisonment for the crime of deliberate
homicide; 100 years imprisonment for the crime of robbery;
and death by hanging for the crime of aggravated kidnapping.
Bad Horse and Holliday were each sentenced to 40 years for
the crime of robbery.
This Court reversed the judgment of conviction of the
defendant on July 29, 1977. A new trial was ordered. See
State v. Fitzpatrick (19771, Mont . , 569 P.2d
383, 34 St.Rep. 736.
Defendant was retried individually in February 1978.
Again, defendant was found guilty of deliberate homicide,
aggravated kidnapping and robbery. On ~ p r i l5, 1978, the
District Court sentenced defendant to death for the crime
of deliberate homicide, to death for the crime of aggravated
kidnapping and to 100 years imprisonment for robbery.
Defendant's case was certified to this Court on July
31, 1978, pursuant to section 95-2206.12, R.C.M. 1947, now
section 46-18-307 MCA, which subjects the judgment of conviction
and sentence of death to automatic review.
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 Gn direct appeal, defendant raises six issues, comprising
four evidentiary questions and two questions concerning the
death penalty. They are:
(1) Did the District Court err in permitting Bushman
to repeat statements allegedly made by Radi on the night of
the crime, when Fitzpatrick was not present?
(2) Did the District Court err in permitting Sheriff
Robert Brown to give his opinion as to where a gun may have
been buried?
(3) Did the District Court err in admitting into
evidence the shell casing taken from Radi's vehicle some ten
weeks after Dyckman's body was found, without requiring a
foundation to connect defendant with the vehicle during the
interim?
(4) Did the District Court err in refusing to grant
defendant's motion for acquittal due to insufficiency of
evidence at the close of the State's case?
(5) Did the District Court err in sentencing defendant
to death for the crime of deliberate homicide, such penalty
being an increase in the sentence previously imposed by the
District Court in the first trial?
(6) Did the District Court err in sentencing defendant
to death for the crime of aggravated kidnapping because the
statute under which the sentence was imposed was unconstitutional
at the time of the crime?
Issue 1. The State presented the District Court with
two independent rationales under the rules of evidence for
allowing Edwin Bushman to repeat statements made by Gary Radi
on the night of the crime. Rule 801 (d)(1)(A), Mont. R.Evid.

provides: "(d) Statements which are not hearsay. A statement
is not hearsay if--(l) Prior statement by witness. The declarant
testifies at the trial or hearing and is subject to cross-
examination concerning the statement, and the statement is
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(A) inconsistent with his testimony . . ." Rule 801 (d)(2)(E),
Mont.R.Evid., says, ". . . A statement is not hearsay if. .
.(2) Admission by a party opponent. The statement is offered
against a party and is ... (E) a statement by a co-conspirator
of a party during the course and in furtherance of the
conspiracy."
To lay a foundation for Bushman's testimony, prosecutors
for the State called Radi to the stand and questioned him
extensively concerning statements he allegedly made in his
house on the night of the crime. For example, the following
dialogue appears in the transcript:
"Q. At any time at your house that early morning
hours of April 6th, 1975, did you discuss the
robbing of the Safeway Store in Hardin, Montana?
A. Never.

"Q. Did you say anything or have a discussion
with anyone about the death or the shooting of
anyone? A. No." Tr. Vol. 11, at 248-249.
On cross-examination by defense counsel, Radi reaffirmed
that the answers he had given on direct examination were
the truth. Having laid a foundation for the introduction of
Radi's prior inconsistent statements, the State called Edwin
Bushman to the stand. Bushman testified that Radi described
the crime to Holliday, Bad Horse and himself during the
early morning hours of April 6, 1975. Radi allegedly told
the others that he and the defendant abducted the store
employee at the drive-in bank, that defendant was upset
because there wasn't much money in the bag, and that defendant
had shot a hole through the windshield of Radi's car. Ultimately,
Radi described the homicide by saying, "Fitz didn't have
to shoot the kid. Boom, boom, he shot his head off."
 Although Rule 801 (d)(1)(A), was based on Federal
Rule 801(d), it differs from its federal counterpart in
one important respect. The Federal rule requires that the
prior inconsistent statement was one "given under oath
subject to the penalty of perjury at a trial or hearing, or
other proceeding, or in a deposition." The Montana rule,
in the words of the Commission on Rules of Evidence, "deletes
the oath requirement as unnecessary and harmful to the useful-
ness of the rule." Therefore, applying the circumstances
here to Rule 801(d) (1)(A), Bushman's testimony is not hearsay
because Radi, the declarant, testified at trial and was sub-
jected to cross-examination concerning the prior statement,
which was inconsistent with his testimony. The testimony is
admissible despite the fact that Radi's prior statements were
made in his own home rather than in a legal proceeding under
oath.
In this Court, defendant contends the State was allowed
to call Radi as a witness, knowing he would deny making the
statements, and was then allowed to impeach Radi without
showing surprise in the change. Defendant fails to consider
Rule 607, M0nt.R.Evi.d.:
"Rule 607. Who may impeach; party not
bound by testimony.
"(a) The credibility of a witness may be
attacked by any party, including the party
calling him.
"(b) No party is bound by the testimony of
any witness."
We adopted the Rules of Evidence on December 29, 1976,
and ordered the effective date for implementation of the
rules to be July 1, 1977, for all trials held thereafter.
34 St.Rep. 302A. The Commission Comment following Rule 607
discusses the issue of surprise:
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 ". . . A requirement exists, both at common law
and under Montana cases, that before one's
own witness could be impeached by prior in-
consistent statement, the party had to show
surprise at the change and that the change
had caused prejudice to his case. State v.
Bloor, 20 Mont. 574, 584, 52 P. 611 (1898);
State v. Willette, 46 Mont. 326, 330, 127 P.
1013 (1912); and State v. Kinghorn, 109 Mont.
22, 36, 93 P.2d 964 (1939). These requirements
have also been applied to impeachment by contra-
diction. Dick v. King, 73 Mont. 456, 459, 236
P. 1093 (1925). However, the requirements
have been liberally construed so that the
surprise does not have to take place while the
witness is on the stand, but may occur before
testimony is given. State v. Clark, 87 Mont.
416, 420, 288 P. 196 (1930) and State v. Kinghorn,
supra.
"Subdivision (a) is consistent with Rule 43(b),
M.R.Civ.P., allowing a party to impeach and not
be bound by the testimony of a hostile witness
or adverse party. It is also consistent with
Rule 26 (d)(1), M.R.Civ.P., allowing impeachment
of any witness with his deposition.
"Therefore, under existing Montana law, a party
can impeach his own witnesses by contradiction
or prior inconsistent statement where he shows
surprise and prejudice, or where the witness
is hostile or the adverse party. As a practical
consideration, it is likely that a party can
impeach his own witness as the need arises under
the existing Montana law. The effect of this
rule is simply to remove these artificial require-
ments by abolishing the traditional rule. This
also somewhat broadens the methods of impeaching
one's own witness.
"The corollary to the traditional rule not allowing
impeachment of one's own witness, that a party is
bound by the testimony of his witness, is contained
in Montana case law. Tebay Land and Livestock Co.
v. Hastie, 64 Mont. 509,, 517, 210 P. 605 (1922);
Sommerville v. Greenhood, 65 Mont. 101, 120, 210
P. 1048 (1922); and Welch v. Nepstead, 135 Mont.
65, 75, 337 P.2d 14 (1959). The rule expressed
by these cases is inconsistent with the idea that
a party may impeach his own witness, for a party
cannot be bound by testimony he has impeached.
Therefore, to the extent that these cases are
inconsistent with subdivision (b) of this rule,
they are expressly superseded."
Radi's prior inconsistent statements were properly
admitted into evidence under Rule 801 (d)(1)(A), Mont. R.Evid.
and could be considered as substantive evidence by the jury.
Advisory Committee's Note 56 F.R.D. 183, 296 (1972); See also:
Commission Comment, Rule 801, Mont.R.Evid.
Turning to the State's second rationale for admitting
Bushman's testimony, defendant contends any conspiracy that
may have existed in this case ended before Radi made the state-
ments in his home. Three United States Supreme Court cases--
Lutwak v. United States (1953), 344 U.S. 604, 73 S.Ct. 481,
97 L.Ed. 593; Krulewitch v. United States (1949), 336 U.S.
440, 69 S.Ct. 716, 93 L.Ed. 790; and Fiswick v. United
States (1946), 329 U.S. 211, 67 S.Ct. 224, 91 L.Ed. 196;--are
cited for the proposition that hearsay declarations of a
conspirator made after the conspiracy terminated are inadmissible
against coconspirators. But had the conspiracy in defendant's
case ended? In Fiswick and Krulewitch, the statements had
been made by the conspirators after they had been arrested,
and this fact persuaded the Supreme Court to find that the
conspiracies had ended. In Lutwak, the Supreme Court searched
the record, found only one instance where a declaration made
after the conspiracy had ended was admitted, and held the
error to be harmless. However, in this case, the statement
was made approximately four hours after Monte Dyckman was
robbed and killed and during the first rendezvous of the
conspirators following the crime. The transcript is replete
with evidence of a conspiracy that extended for weeks after
the statement was made on the night of the crime. ~hristine
Fetters recalled a conversation that took place approximately
one week after the shooting that reveals the on-going cooperation
of the conspirators in an effort to accomplish their criminal
goal :
"Q. NOW, what is the first point in time
when you heard conversations or were present
when conversations were taking place between
Mr. Radi and Mr. Holliday and Mr. Fitzpatrick?
A. Well, that would be in Gary's home after
the second trip. It would have been on the
third trip to Billings.
"Q. This is in April now. A. Oh, yes.
"Q. As I recall, you testified before it was
around the middle of April; is that right?
A. I think it was around the middle of April,
right.
"Q. And who was present when those conversations
were taking place? A. Well, there was different
people different times.
"Q. Let's talk about the first conversation.
A. That was in Gary Radi's house with the two
younger girls and what I think was an Indian.
"Q. And what was said at that time? A. Mr.
Holliday asked him why he didn't follow him back
from Hardin.
"Q. Asked who? A. I guess he was talking to
Gary. Gary answered. He asked why they didn't
follow him back from Hardin and he said that
they didn't think he was coming, then they seen
that he was late. They didn't have time to put
the masks on.
"Q. Mr. Radi said that to Mr. Holliday in
Mr. Fitzpatrick's presence, is that correct?
A. Yes.
"Q. Were there any other conversations that
took place at this point in time? A. (No
response.)
"Q. At the Radi house when those persons were
present. A. Well, just that the -- He said,
'The crazy son-of-a-bitch blew his head off'
around about that time.
"Q. Was there anything discussed or said
about money, receipts, at that time? A. Yes,
he said -- Mr. Holliday looked at Radi and asked
him 'How much money did you get?' He said,
'It was mostly checks and food stamps.'
"Q. What was Mr. Holliday's reaction to that?
A. He acted very perturbed, pissed off.
"Q. NOW, was there a second conversation that
was had in your presence and in the presence
of Mr. Fitzpatrick and Mr. Radi in regard to
this transaction? A. To what transaction?
"Q. Well, in regard to the Hardin murder. A.
Well, that's when we were going into the
Holiday Inn.
 "Q. And who was present at that time?
A. There was a blonde girl but I'm positive
her name was Bonnie, myself, Fitz and Gary
Radi .
"Q. And what was said at that time? A.
Something about 'Did you think we went far
enough?' Something about sand dunes, sand
pits. I don't remember the exact words.
"Q. Who made that statement? A. Gary Radi.
"Q. Who was he making it to? A. Fitz.
"Q. What did he say, again? A. Just that
did you think we went far enough to the sand
dunes or sand pits or something like that.
"Q. What did Mr. Fitzpatrick say? A. He
never said nothing. Just like a look to shut
UP
"Q. Was there anything else said at that
time? A. Something about a -- Let me try
to figure and get this straight.
" (Pause.)
"A. Something about 'Don't you think one
would have been enough?'
"Q. And Mr. Radi was saying that to Mr.
Fitzpatrick? A. Yes.
"Q. And what did Mr. Fitzpatrick say, if
anything? A. He acted disgusted. I think,
you know, the idea I got is he wanted him
to shut up.
"Q. Was there anything else said about a gun
being hot at that time? A. I think he said,
he asked him if--
"Q. Who is 'he' now, again? A. Gary Radi
said, 'What did you do with it?' And he
said, 'Don't worry about it. I buried it.'
"Q. Mr. Fitzpatrick said that. A. Yes,
that was his answer." Tr. Vol. V, pp..-LQL2-
1015.
The conspiracy was still viable a week after the
robbery and homicide was committed. Therefore, Radi's state-
ments on the night of the crime were made "during the course
and in furtherance of the conspiracy." Finally, defendant
challenges the admission of Radi's statements under either
of the hearsay exceptions as violating his constitutional
right to confront the witnesses against him, guaranteed by
the Sixth Amendment to the Constitution of the United
States and the 1972 Mont. Const., Art. 11, 524.
Fitzpatrick was not charged with engaging in a conspiracy
in this case, but it is not necessary that the charge of
conspiracy be made. Evidence of the conspiracy is admissible,
not "for the purpose of allowing a conviction of a crime not
charged, but to lay a foundation for the admission of evidence."
State v. Dennison (1933), 94 Mont. 159, 163, 21 P.2d 63, 64.
In its instruction no. 27 in this case, the court told the
jury, without objection (no objection could have been sustained
in this case), that if two or more persons agree to commit a
crime, each person in the agreement is held responsible for
all the consequences which might reasonably be expected to
flow from carrying into effect the unlawful agreement, including

a death not specifically intended. As this Court said in State
v. Dennison, supra, 94 Mont. at 163, 21 P.2d at 64, where two
or more persons are present at the scene of a crime, with no
disinterested eyewitness available, it is important to establish,
if possible, concerted action. In the absence thereof all may
escape just punishment because of the State's inability to
prove which one of those present was the actor in the crime.
Proof therefore of a preconceived plan or design is necessary,
not to prove the conspiracy, but to connect those present
with the crime committed.
This Court, in State v. Fitzpatrick, supra, granted
defendant a new trial on the charges at hand because he
had been denied the right to confront Radi on cross-examination
before the trier of fact. Radi and defendant were codefendants
in the initial trial and Radi did not testify. Bruton v.
United States (1968), 391 U.S. 123, 88 S.Ct. 1620, 20 ~ . ~ d * 2 d
476, controlled. In Bruton, codefendants Bruton and Evans had
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been tried jointly and convicted of armed postal robbery.
During the trial a postal inspector testified Evans confessed
that Bruton and Evans committed the robbery. Evans' con-
viction was reversed because his Miranda rights had been
violated. Bruton's conviction was upheld by the Court of
Appeals, Eighth Circuit, 375 F.2d 355, on the theory the trial
court sufficiently instructed the jurors not to consider
Evans' confession as evidence against Bruton. The Court relied
on Delli Paoli v. United States (1957), 352 U.S. 232, 77 S.Ct.
294, 1 L.Ed.2d 278, which approved this procedure. The
United States Supreme Court, overruling Delli Paoli, reversed
Bruton's conviction and challenged the assumption that the
prejudicial effect of such testimony could be overcome by
jury instructions. The Court determined that substantial
weight was added to the government's case in a form not sub-
ject to cross-examination (because Evans, the declarant, did
not testify). Therefore, Bruton's Sixth Amendment right to
confront witnesses against him was violated, and the violation
was not cured by the trial court's instruction.
The circumstances in Bruton were virtually the same as
those in defendant's first trial. Five defendants were
tried jointly, and Bushman, under a grant of immunity from
prosecution, repeated, under oath, statements by Radi in-
culpating defendant. Because defendant was denied the right

to confront Radi on cross-examination and the District Court's
cautionary instruction to the jury was insufficient to
eliminate the prejudice, we reversed.
Bushman repeated Radi's statements at defendants second
trial, but after Radi himself had testified and denied making
the statements. Radi was also called as a witness by defendant
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and again Radi denied making any statements concerning the
robbery and homicide on the night of the crime. Nonetheless,
defendant argues his constitutional right of confrontation
was violated by the introduction of Bushman's testimony.
Two cases--California v. Green (1970), 399 U.S. 149, 90 S.Ct.
1930, 26 L.Ed.2d 489; and Nelson v. O'Neill (1971), 402
U.S. 622, 91 S.Ct. 1723, 29 L.Ed.2d 222;--are on point.
In Green, a minor testified at the defendant's pre-
liminary hearing, naming the defendant as his supplier of
marijuana. At trial, the minor, despite admitting he made
the earlier statement, claimed he was uncertain how he
obtained the marijuana because he was on LSD at the time.
The prior inconsistent statements were admitted as substantive
evidence. The defendant was convicted and the District Court
of Appeal reversed, holding the use of the prior statements
for the truth of the matter asserted therein denied defendant
his right of confrontation. The California Supreme Court
affirmed and the United States Supreme Court granted the
State's petition for certiorari.
Discussing the origin and development of the Confrontation
Clause, the Supreme Court stated:
"Our own decisions seem to have recognized
at an early date that it is this literal right
to 'confront' the witness at the time of trial
that forms the core of the values furthered by
the Confrontation Clause:
"'The primary object of the constitutional
provision in question was to prevent depositions
or ex parte affidavits, such as were sometimes
admzted in civil cases, being used against the
prisoner in lieu of a personal examination and
cross-examination of the witness in which the
accused has an opportunity, not only of testing
the recollection and sifting the conscience of
 the witness, but of compelling him to stand
face to face with a jury in order that they
may look at him, and judge by his demeanor
upon the stand and the manner in which he
gives his testimony whether he is worthy of
belief.' Mattox v United States, 156 U. S.
,
237, 242-243 (1895).
"Viewed historically, then, there is good
reason to conclude that the Confrontation
Clause is not violated by admitting a declarant's
out-of-court statements, as long as the
declarant is testifying as a witness and subject
to full and effective cross-examination."
California v. Green, supra, 399 U.S. at 157.
Defendant's reliance on Bruton is misguided. The Supreme
Court distinguished Bruton in Green, saying ". . . The Court
again emphasized that the error arose because the declarant
'does not testify and cannot be tested by cross-examination,'
391 U.S. at 136, suggesting that no confrontation problem
would have existed if Bruton had been able to cross-examine
his co-defendant." 399 U.S. at 163. The Court concluded
". . . the Confrontation Clause does not require excluding from
evidence the prior statements of a witness who concedes making
the statements, and who may be asked to defend or otherwise
explain the inconsistency between his prior and his present
versions of the events in question, thus opening himself to
full cross-examination at trial as to both stories." 399 U.S.
at 164. Although the precise holding in Green refers to
prior statements affirmed by the declarant, the Court in
Nelson. was faced with a situation in which a codefendant
took the stand and denied making a prior confession implicating
O'Neil. Responding to a claim that effective confrontation
is possible only if the witness affirms the prior statement
as his, the Court said ". . . Of course a witness - be
can
cr-examined concerning a statement not 'affirmed' by
him,. . ." Nelson v. OINeill, supra, 402 U.S. at 627, and
concluded ". . . that where a co-defendant takes the stand in his
own defense, denies making an alleged out-of-court statement
implicating the defendant, and proceeds to testify favorably
-17-
to the defendant concerning the underlying facts, the
defendant has been denied no rights protected by the Sixth
and Fourteenth Amendments. . ." 402 U.S. at 629.
Radi, although not a codefendant at defendant's second
trial, was called as a witness by the State and denied
making the out-of-court statement. He reaffirmed his testimony
on cross-examination by defense counsel. Two days later Radi
testified for the defense and again he testified favorably
to the defendant. Radi stood face to face with the jury on
two occasions and was cross-examined by both the State and
the defendant concerning the prior statement. Bushman was
properly allowed to testify concerning Radi's out-of-court
statements and defendant's constitutional right of confrontation
was not violated because Radi testified as a witness and was
subject to full and effective cross-examination. -

Issue 11. Christine Fetters testified that one week
after the crime she rode with defendant in a car to the
outskirts of Billings. Defendant parked the car along
the road, took a handgun from underneath the seat, and
stepped out of the car. He then walked over an embankment
in an open field.but out of her sight. When defendant
returned approximately fifteen minutes later, he no longer
had the gun and his hands were muddy.
Sheriff Robert Brown told the jury that Christine
Fetters assisted him in an investigation on February 23,
1978, in which a search for the handgun was conducted.
During direct examination the County Attorney asked Sheriff
Brown :
"And were you able to make a determination after
your investigation with Christine Fetters where
the weapon was probably located?"
Defense counsel objected to the question as calling for the
witness opinion. The objection was overruled and the
sheriff responded:
"Yes, sir, it's believed to be under the
parking lot of the Metra."
Defendant contends the sheriff was improperly permitted
to give his opinion concerning the location of the handgun,
and such testimony added credence to Christine Fetter's
testimony, resulting in prejudice to defendant.
Rule 701, Mont.R.Evid., states:
--
"Rule 701. Opinion testimony Q lay witnesses.
"If the witness is not testifying as an expert,
his testimony in the form of opinions or
inferences is limited to those opinions or
inferences which are (a) rationally based on
the perception of the witness and (b) helpful
to a clear understanding of his testimony or
the determination of a fact in issue."
The sheriff's opinion was not rationally based on his
own perceptions and the District Court should have sustained
the objection. However, any error, defect, irregularity, or
variance in a criminal proceeding which does not affect
substantial rights shall be disregarded. Section 95-2425,
R.C.M. 1947, now section 46-20-702 MCA. No longer is
prejudice presumed when error is shown, and it is for this
Court to determine whether an error affects the substantial
rights of the defendant. State v. Byrd (1910), 41 Mont. 585,
111 P. 407. We will not reverse a judgment for harmless error
and the question of whether a particular error is harmful
or harmless depends on the facts of the case under review.
State v. Straight (1959), 136 Mont. 255, 347 P.2d 482.
Cross-examination by defense counsel clarified Sheriff
Brown's testimony:
"Q. Mr. Brown, in other words you followed
the directions Miss Fetters gave you and arrived
at a speculative conclusion as to where the
weapon was supposedly at, is that correct?
 A. That is correct, sir.
"Q. But you didn't find any weapon, did you?
A. NO, sir, we did not.
"Q. You don't even know that you went to the
area, do you? A. By the information she gave
us, she was sure it was there.
"Q. She was certain that it was the area in
question? A. She said it appeared to be the
area that it was left.
"Q. She couldn't be definite, could she? A.
No, sir." Tr. Vol. 111, at 700, 701.
The weapon that was used to shoot Monte Dyckman was
never found. Christine Fetters' testimony concerning defendant's
disposal of a handgun was unquestionably relevant. Sheriff
Brown's testimony, taken as a whole, reveals that he believed
the handgun was located under the parking lot because of
information Christine Fetters had given him. We conclude the
sheriff's testimony did not affect substantial rights of the
defendant.
Issue 111. Gary Radi was arrested in Rawlins, Wyoming,
on June 27, 1975. His automobile, a 1971 Pontiac Grand Prix,
was searched by the deputy sheriff of Carbon County, Wyoming.
Approximately 75 to 100 items were taken from the vehicle.
Of significance in the recovery was a ski mask found in the
trunk and a spent .45 caliber shell casing discovered under
the back seat. Defense counsel objected to the intro-
duction of the items at defendant's trial on the grounds
that they were irrelevant to a determination of defendant's
guilt or innocence. The objections were overruled. In
this Court, defendant argues the shell casing should not
have been admitted into evidence because it was discovered
at a point in time too remote from the day of the crime to be
of any probative value. Defendant also repeats his objection
that the shell casing was irrelevant evidence in his trial
because he was not connected with the car during the time
between the night of the crime and the day of Radi's arrest.
As a practical matter, defendant's argument applies to both
the shell casing and the ski mask.
Rule 401, Mont.R.Evid., defines relevant evidence:
"Rule 401. Definition of relevant evidence.
"Relevant evidence means evidence having any
tendency to make the existence of any fact that
is of consequence to the determination of the
action more probable or less probable than it
would be without the evidence. Relevant evidence
may include evidence bearing upon the credibility
of a witness or hearsay declarant."
The Commission stated this test of relevance:
"The test of relevance is whether an item of
evidence will have any value, as determined by
logic and experience, in proving the proposition
for which it is offered. The standard used to
measure this acceptable probative value is 'any
tendency to make the existence of any fact ...
more probable or less probable than it would be
without the evidence.' This standard rejects
more stringent ones which call for evidence to
make the fact or proposition for which it is
offered more probable than any other. It is
meant to allow wide admissibility of circumstantial
evidence limited only by Rule 403 or other special
relevancy rules in Article IV."
Prior to moving for admission of the shell casing and ski
mask, the State presented evidence placing defendant in Radi's
automobile, in Hardin, Montana, on the night of the crime.
Defendant had a .45 caliber handgun in his possession and he
wore a ski mask while he was sitting in Radi's car at the
drive-in bank in Hardin. Finally, the testimony showed
defendant shot a hole through the windshield of Radi's car
with the .45 caliber handgun.
A contention similar to defendant's was made in State
v. Doe (1965)r 146 Mont. 501, 409 P.2d 439, wherein the
District Court admitted into evidence two -25 caliber shell
casings taken from a car in which the defendant had been
riding just before he allegedly shot a man four times with
a -25 caliber automatic pistol. Responding to a claim that
a proper foundation had not been laid for the admission

of the shell casings, this Court said:
"In State v. London, 131 Mont. 410, 310 P.2d
571, this court held that any exhibit having
a direct connection with the commission of a
crime is admissible.
"In State v. Allison, 122 Mont. 120, 133, 199
P.2d 279, 287, we said: 'The applicable rule
of law is stated by this court as follows in
State v. Harris, 66 Mont. 34, 213 P. 215,
217: " * * * the general rule being that weapons
found at or near the place of arrest are
properly admitted in evidence as a part of the
history of the arrest, and as bearing on the
crime, although not clearly shown to have been
the property of the accused or used in the
commission of the crime."'
"'"Weapons, tools, bullets, instruments, or
other articles which appear from other evidence
to have been employed in the commission of the
crime are admissible in evidence." State v.
Byrne, 60 Mont. 317, 325, 199 P. 262, 264.'
Also 22A C.J.S. Criminal Law S 712. IV Nichols,
Applied ~vidence; p. 3276, S341, and V Nichols,
Applied Evidence, p. 4716, S 9." State v. Doe,
supra, 146 Mont. at 504-505, 409 P.2d at 411.
The articles here, a ski mask and a shell casing, had
been linked to defendant and to the commission of the crime
by the State. Indeed, the admission of the articles at
defendant's trial had a tendency to make the existence of

those facts more probable, and, by definition, were relevant.
As for defendant's argument of remoteness, "the objection
that evidence is too remote is directed to the discretion of
the [district] court and is a matter that goes to the credibility
of the evidence rather than its admissibility [citing cases]

unless the remoteness is so great that the proffered evidence
has no evidentiary value. (State v. Pemberton, 39 Mont.
530, 104 P. 556; People v. Boggess, 194 Cal. 212, 228
Pac. 448.)" State v. Satterfield (1943), 114 Mont. 122, 127,
132 P.2d 372.
In State v. Nelson (1961), 139 Mont. 180, 186, 362
P.2d 224, 228, we said:
 "In 22 C.J.S. Criminal Law § 638, p. 977,
it is stated: 'Whether evidence is inadmissible
because of remoteness rests largely in the
sound discretion of the trial court, the objection
going to the weight of the evidence, rather than
to admissibility. In this connection, remoteness
has regard to factors other than mere lapse of
time, and is to be determined by the circumstances
of the case.'
"Wharton's Criminal Evidence (12th ed.), S 149,
p. 291, states: 'There is no fixed standard for
determining remoteness. It is therefore necessary
to consider all the circumstances of the case,
the nature of the act indicated or shown by the
evidence offered, and the nature of the crime.
In any case, the determination of whether evidence
is too remote to be relevant is left to the
discretion of the trial judge, and his decision
will not be reversed in the absence of clear proof
of an abuse of that discretion.'"
When the circumstances of defendant's case are considered--
witnesses had testified defendant possessed a -45 caliber
handgun which he intended to use in a robbery and that he
wore a ski mask while waiting in Radi's car at the
drive-in bank--we do not find that the District Court abused
its discretion by admitting into evidence a ski mask and .45
caliber shell casing taken from Radi's car less than three
months after the crime.
Issue IV. When the State rested, defense counsel moved
that the court direct the jury to acquit defendant due to
insufficiency of evidence. The motion was denied and defendant
alleges error. Specifically, defendant argues that most of
the evidence was circumstantial and the remainder was improperly
admitted.
Defendant's motion was made under section 95-1909(9),
R.C.M. 1947, now section 46-16-403 MCA, which provides:
" (9) When at the close of the state's evidence
or at the close of all the evidence, the evidence
is insufficient to support a finding or verdict
of guilty, the court may, on its own motion or on
the motion of the defendant, dismiss the action
and discharge the defendant. However, the court
may allow the case to be reopened for good cause
shown. 'I
 The motion for dismissal in criminal cases is often
referred to as a motion to acquit or a motion for directed
verdict. State v. French (1975), 166 Mont. 196, 531 P.2d
373, A directed verdict in a criminal case is granted in
this jurisdiction only where the State fails to prove its
case and there is no evidence upon which a jury could base
its verdict. State v. Paulson (1975), 167 Mont. 310, 538
P.2d 339; State v. Solis (1973), 163 Mont. 293, 516 P.2d
1157.
The facts recited heretofore were taken from the
transcript of the State's case-in-chief. Defendant's challenges
concerning Edwin Bushman's testimony, Sheriff Robert Brown's
testimony, and the admission of items taken from Gary Radi's
car have been determined to be meritless. As for defendant's
challenge that most of the evidence was circumstantial,
"Circumstantial evidence is not always inferior in quality nor
is it necessarily relegated to a 'second class status' in the
consideration to be given it. The very fact it is circumstantial
is not a sufficient allegation to justify a reversal of the
judgment for such evidence may be and frequently is, most
convincing and satisfactory." State v. Cor (1964), 144 Mont.
323, 326-327, 396 P.2d 86, 88.
". . . In determining the sufficiency of circumstantial
evidence to make a case for the jury and to sustain a conviction,
all of the facts and circumstances must be taken into considera-
tion collectively." State v. De Tonancour (1941), 112 Mont.
94, 98, 112 P.2d 1065, 1067.
When all of the facts and circumstances of the State's
case against defendant are considered, including the evidence
we have held was properly admitted, an unmistakable conclusion

is reached. Defendant purposely kidnapped, robbed, and caused
the death of Monte Dyckman. The motion for dismissal was
properly denied.
 Issue V. Following his initial conviction for
deliberate homicide, defendant was sentenced to 100 years
imprisonment by the Honorable Nat Allen. The Honorable
Charles Luedke sentenced defendant to death for the same
crime when he was reconvicted on the charge after a new
trial. Judge Luedke imposed the ultimate penalty for three
reasons: (1) the defendant testified at the second trial,
allowing for an assessment of his character; ( 2 ) Christine
Fetters, a witness who did not testify at the first trial,
yielded considerable information concerning defendant's
conduct during the planning and execution of the crime,
as well as his actions subsequent to the commission of
death
the crime; and, (3) the constitutionality of the henalty
provision for the crime of deliberate homicide was no
longer in doubt as it had been when the initial sentence
was imposed.
Defendant contends the rule in North Carolina v.
Pearce (1969), 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d
656, prohibits the District Court judge from increasing the
sentence for deliberate homicide. In Pearce, the United
States Supreme Court examined the cases of two defendants
who received increased sentences from trial judges after
new trials were held pursuant to appellate court decisions.
Neither of the trial judges had set forth reasons for
increasing the punishment, and the Supreme Court, concerned
that the defendants were being penalized for exercising
their constitutional rights, said:
"Due process of law, then, requires that vin-
dictiveness against a defendant for having
successfully attacked his first conviction
must play no part in the sentence he receives
after a new trial. And since the fear of
such vindictiveness may unconstitutionally
deter a defendant's exercise of the right to
appeal or collaterally attack his first
conviction, due process also requires that
 a defendant be freed of apprehension of
such a retaliatory motivation on the part
of the sentencing judge.
"In order to assure the absence of such a
motivation, we have concluded that whenever
a judge imposes a more severe sentence upon
a defendant after a new trial, the reasons
for his doing so must affirmatively appear.
Those reasons must be based upon objective
information concerning identifiable conduct
on the part of the defendant occurring after
the time of the original sentencing proceeding.
And the factual data upon which the increased
sentence is based must be made part of the
record, so that the constitutional legitimacy
of the increased sentence may be fully reviewed
on appeal." 395 U.S. at 725.
Defendant argues that none of the District Court's
reasons for increasing the sentence concern "identifiable
conduct on the part of the defendant occurring after the
time of the original sentencing proceeding." Therefore, if
the Pearce rule applies, defendant's sentence was improperly
increased.
The United States Supreme Court has had numerous occasions
since the Pearce decision to examine the rule against retaliatory
sentencing. Colten v. Kentucky (1972), 407 U.S. 104, 92
S.Ct. 1953, 32 L.Ed.2d 584, concerned the applicability of
the Pearce rule to Kentucky's two-tiered system of criminal
adjudication. Kentucky allows a misdemeanor defendant who
is convicted in an inferior trial court to seek a trial -
de
novo in a court of general jurisdiction. The appellant in
Colten claimed the Constitution prevented the court of

general jurisdiction from imposing a sentence in excess of
that imposed in the inferior trial court. The Supreme Court
rejected the Pearce anology, saying:
"Our view of the Kentucky two-tier system of
administering criminal justice, however, does
not lead us to believe, and there is nothing
in the record or presented in the briefs to
show, that the hazard of being penalized for
seeking a new trial, which underlay the holding
of Pearce, also inheres in the de -
- novo trial
arrangement. Nor are we convinced that defendants
 convicted in Kentucky's inferior courts would
be deterred from seeking a second trial out of
fear of judicial vindictiveness. The possibility
of vindictiveness, found to exist in Pearce, is
not inherent in the Kentucky two-tier system.

"We note first the obvious: that the court
which conducted Colten's trial and imposed
- final sentencewas sufficiently dissatisfied
the
whose work Colten -
was - - court with
- not the
- - seek a different result on appeal; - -
to - and it
is - -h e - a m s E d
- not t to do over
- -it thought - - l r e a d y donecorrectly.
what itda
Nor is the - -
de novo court even asked to find
error in another court's work. Rather, the
Kentucky court in which Colten had the unrestricted
right to have a new trial was merely asked to
accord the same trial, under the same rules
and procedures, available to defendants whose
cases are begun in that court in the first
instance. . ." (Emphasis added.) 407 U.S. at
116, 117.
See also: State v. Fissette (1972), 159 Mont. 501, 498 P.2d
1208, in which we applied the Colten rule to our justice and
District Court system.

Any question as to whether or not the "possibility of

vindictiveness" formed the basis of the Pearce rule was
resolved in Chaffin v. Stynchcombe (1973), 412 U.S. 17, 93
S.Ct. 1977, 36 L.Ed.2d 714, involving the imposition of
a higher sentence by a jury upon retrial. In the words of
Mr. Justice Powell:

"Subsequent cases have dispelled any doubt
that Pearce was premised on the hazard of
vindictiveness. In Moon v. Maryland, 398
U. S. 319, 90 S.Ct. m , 2 6 L.Ed.262
(19701, a case sranted with a view to
determining the4retroactivity of Pearce,
the Court ordered the case dismissed
as improvidently granted when it became
clear that there was no claim there that the
higher sentence received on retrial was a
product of vindictiveness on the part of the
sentencing judge. Because counsel for the
reconvicted defendant eschewed that contention,
the Court held that 'there is no claim in this
case that the due process standard of Pearce
was violated.' Id., at 320. A similar focus
on actual vindictiveness is reflected in the
decision last Term in Colten v. Kentucky, 407
U. S. 104, 92 S.Ct. 1953, 32 c ~ d . 2 d584 (1972).
The question in that case was whether the Pearce
principle applied to bar the imposition of a higher
sentence after a - -
de novo trial in those jurisdictions
that employ a two-tier system of trial courts.
While noting that ' [i]t may often be that
 the [de -
- novo "appealw court] will impose
a punishment more severe than that received
from the inferior court,' id., at 117, we
were shown nothing to ~ersuadeus that 'the
hazard of being penalized for seeking a new
trial, wh ich underlay the holding of Pearce.
also inheres in the - -
de novo trial arr'angemen
Id., at 116 (emphasis supplied). In short,
-
the Due Process Clause was not violated
because the 'possibility of vindictiveness'
was not found to inhere in the two-tier system.
Ibid.
"This case, then, is controlled by the inquiry
into possible vindictiveness counseled by
Pearce, Moon, and Colten. The potential for
such abuse of the sentencing process by the
jury is, we think, - minimis in a properly
de
controlled retrial. The first prerequisite
for the imposition of a retaliatory penalty
is knowledge of the prior sentence. It has
been conceded in this case that the jury was
not informed of the prior sentence. We have
no reason to suspect that this is not customary
in a properly tried jury case. It is more
likely that the jury will be aware that there
was a prior trial, but it does not follow from
this that the jury will know whether that
trial was on the same charge, or whether it
resulted in a conviction or mistrial. Other
distinguishing factors between jury and judicial
sentencing further diminish the possibility of
impropriety in jury sentencing. As was true
in Colten, the second sentence - - meted
is not
out & -- judicial authority whose handling
- the same
- - prior trial was sufficientlyconviction.
of the unacceptable
-
to -
have required a reversal - -
of the
- - jury, --the judge - - -
Thus, the unlike who has been
---
reversed, will have no personal stake - -
in the
prior conviction - - motivation to engage
and no
- self-vindication. Similarly, thejury is
in
unlikely to be sensitive to the institutional
interests that might occasion higher sentences
by a judge desirous of discouraging what he
regards as meritless appeals." (Emphasis added.)
412 U.S. at 25-27.
Finally, in Blackledge v. Perry (19741, 417 U . S . 21, 271
94 S.Ct. 2098, 40 L.Ed.2d 628, the Supreme Court said,
"[tlhe lesson that emerges from Pearce, Colten, and Chaffin
is that the Due Process Clause is not offended by all
possibilities of increased punishment upon retrial after
appeal, but only by those that pose a realistic likelihood
of 'vindictiveness.'"
 In defendant's case, the trial judge presiding at
the original trial was replaced. The second sentence was
not "meted out by the same judicial authority whose handling
of the prior trial was sufficiently unacceptable to have
required a reversal of the conviction." The Honorable
Charles Luedke had "no personal stake in the prior conviction
and no motivation to engage in self-vindication." Chaffin
v. Stynchcombe, supra, 412 U.S. at 27. The Supreme Court
has stated that unless threat of vindictiveness is a realistic

likelihood, Pearce does not apply. Therefore, we conclude
that Pearce does not apply in defendant's case because the
District Court judge was replaced for the new trial and
sentencing and he stated his reasons for imposing the death
penalty on these charges with clarity.
Issue VI. Finally, defendant contends the death penalty

may not be imposed in this case because the sentencing
statutes in effect at the time of the crimes were unconstitutional,
thereby rendering the death penalty nonexistent for those
crimes. The argument arises because the District Court
sentenced defendant to death for the crimes of deliberate
homicide and aggravated kidnapping under the amended statutory

provisions in effect at the time of trial. Defendant argues
this procedure amounted to an unconstitutional - -
ex post facto

application of laws because he received a more severe sentence
under the amended statutes than he could have possibly received
under the previous statutes.
At the time of the crimes, section 94-5-105, R.C.M.
1947, the sentencing statute for deliberate homicide, stated:
"94-5-105. Sentence of death for deliberate
homicide. (1) When adefendant 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:
"(a) The deliberate homicide was committed by
a person serving a sentence of imprisonment in
the state prison; or
-29-
 "(b) The defendant was previously convicted
of another deliberate homicide; or

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

" (d) The deliberate homicide was committed by
a person lying in wait or ambush; or
"(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.
"(2) Notwithstanding the provisions of sub-
section (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."
This Court held in State v. McKenzie (1978), Mon t .

, 581 P.2d 1205, 35 St.Rep. 759, that section 94-5-
105, as it existed in January 1974, (which was identical to
the statute set forth above, except for subsection (21,
making imposition of the death penalty mandatory when the
defendant was convicted of deliberate homicide in which the
victim was a peace officer killed while performing his duty)
was constitutional on its face. In McKenzie, we discussed
the three cases cited here by defendant--Woodson v. North
Carolina (1976), 428 U.S. 280, 96 S.Ct. 2978, 49 ~ . ~ d . 2 d

944; Coker v. Georgia (1977), 433 U.S. 584, 97 S.Ct. 2861,
and
53 L.Ed.2d 982-l/concluded that section 94-5-105 withstood
scrutiny under the Supreme Court decisions because it
allowed for consideration of mitigating circumstances.
However, defendant's argument concerning the penalty for
deliberate homicide fails to consider McKenzie and is there-
fore without merit.
At the time of the crimes, the sentencing statute for
aggravated kidnapping simply stated:
"94-5-304. Sentence --- for aggravated
of death
kidnapping. A court shall impose the sentence
of death following conviction of aggravated
kidnapping if it finds that the victim is dead
as the result of the criminal conduct."
 In State v. Coleman (1978), Mont. , 579
P.2d 732, 35 St.Rep. 560, this Court found section 94-5-
304 to be a mandatory death penalty statute and therefore
unconstitutional on its face. Since Dewey Eugene Coleman
had received the death penalty under the unconstitutional
statute, we vacated the sentence and remanded the case to
the District Court for resentencing. Coleman was sub-

sequently resentenced to death under amended statutes sections
94-5-303(2) and 95-2206.6 through 95-2206.15, R.C.M. 1947,
which required the District Court to consider aggravating
and mitigating circumstances. On appeal, Coleman argued

that the District Court's application of the amended statutes
violated the constitutional prohibition against - -
ex post
facto laws. (See State v. Coleman (1979), Mont . I

P.2d , 36 St-Rep. 1134. We held the District Court
properly sentenced Coleman under the amended statutes because
the amendments were ameliorative in nature and therefore did
not deprive Coleman of a substantial right or immunity which
he possessed at the time the crime was committed.
Defendant's argument concerning the application of the
amended sentencing statutes for aggravated kidnapping is
identical to the argument advanced by Coleman in his second
appeal and is therefore controlled by our decision in that
case. See our second opinion in Coleman (1979), Mon t .
-I - P.2d , 36 St.Rep. 1134; and our opinion on
rehearing in Coleman, dated December 19, 1979.
Having found no error in the manner in which defendantl.s
trial was conducted,nor error in the imposition of the
death penalty for the crimes of deliberate homicide and
aggravated kidnapping, we hereby affirm the judgment of
the District Court.

SENTENCE REXIEW
Section 95-2206.12, R.C.M. 1947, now section 46-18-
307 MCA directs this Court to review a sentence of death
whenever such is imposed by a District Court of this
state.
Section 95-2206.15, R.C.M. 1947, now section 46-18-
310 MCA sets forth the determinations we must make:
"Supreme court - -
to make determination - -
as to
the sentence. The supreme court shall consider
the punishment as well as any errors enumerated
by way of appeal. With regard to the sentence,
the court shall determine:
"(1) whether the sentence of death was imposed
under the influence of passion, prejudice, or
any other arbitrary factor;
" (2) whether the evidence supports the judge's
finding of the existence or nonexistence of the
aggravating or mitigating circumstances enumerated
in 95-2206.8 and 95-2206.9; and
" (3) whether the sentence of death is excessive
or disproportionate to the penalty imposed in
similar cases, considering both the crime and
the defendant. The court shall include in
its decision a reference to those similar cases
it took into consideration."
A review of the entire record reveals nothing that
would indicate that the sentences of death were imposed
under the influence of passion, prejudice, or any other
arbitrary factor.
The District Court judge concluded that the crime of
deliberate homicide had been "committed by a person lying
in wait or ambush", which is an aggravating circumstance
under section 95-2206.8(4), R.C.M. 1947, now section 46-
18-303(4) MCA, and that the crime of aggravated kidnapping
had "resulted in the death of the victim", which is an
aggravating circumstance under section 95-2206.8(7), R.C.M.
1947, now section 46-18-303(7) MCA. Discussion of this
point is unnecessary, except to state that the evidence in
the record clearly proves sufficient aggravating circumstances
exist in this case to warrant imposition of the death penalty.
No mitigating circumstances were found by the District
Court judge which would call for leniency. Mitigating
circumstances are set forth in section 95-2206.9, R.C.M.
1947, now section 46-18-304 MCA:
"Mitigating circumstances. Mitigating cir-
cumstances are any of the following:
"(1) The defendant has no significant
history of prior criminal activity.
" (2) The offense was committed while the
defendant was under the influence of extreme
mental or emotional disturbance.
"(3) The defendant acted under extreme duress
or under the substantial domination of another
person.
"(4) The capacity of the defendant to appreciate
the criminality of his conduct or to conform his
conduct to the requirements of law was substantially
impaired.
"(5) The victim was a participant in the defendant's
conduct or consented to the act.
"(6) The defendant was an accomplice in an offense
committed by another person, and his participation
was relatively minor.
"(7) The defendant, at the time of the commission
of the crime, was less than 18 years of age.
" (8) Any other fact exists in mitigation of the
penalty. "
The transcript of the sentencing proceeding reveals
defendant's significant criminal history. That history is
similarly preserved in the District Court's findings:
"a. On June 1, 1965, the defendant was charged
with assault in the second degree, involving alleged
grievous bodily injury upon one Larry Ruff. This
case was dismissed eight months later at the
request of the county attorney for the reason
that the prosecuting witness could not be
located and the case could not be prosecuted
further without his testimony. (State's Exhibit
68.)
"b. On August 3rd, 1965, defendant was charged
in City Police Court with reckless driving and
leaving the scene of an accident. After a jury
verdict of guilty, he appealed to the District
Court, which was later disposed of by a change
of plea to guilty and the payment of a fine.
(State's Exhibit 67.)
"c. The defendant was found guilty of assault
in the second degree on September 13, 1966, in
Billings, Montana, wherein he shot LeRoy Gash
seven times in the upper part of the left leg
 with an automatic pistol, receiving a sentence
of six years in the Montana State Prison.
(State's Exhibit 66.)
"d. On July 28th, 1971, charges were filed in
the Yellowstone County District Court charging
the defendant, and others, with the crimes of
burglary and criminal possession of dangerous
drugs. This cause was dismissed at the request
of the county attorney on the ground that 'he
(Fitzpatrick) has entered a plea of guilty to
another charge,' being the charge described in
paragraph following. (State's Exhibit 64.)
"e. On October 29th, 1971, defendant entered
a plea of guilty to a charge of assault in the
first degree and received a sentence of five
years in Montana State Prison. On this occasion
the defendant invited one James Prince to step
out the back door of the Western Bar in Billings,
Montana, and once outside defendant shot Prince
in the face with an automatic pistol. (State's
Exhibit 65.)
"f. On February 28th, 1973, while confined in
the Montana State Prison, defendant was implicated
in the death of a fellow inmate, Alfred Falcon.
He was charged, tried and convicted of second-
degree murder, but this conviction was later set
aside on grounds that he had been deprived of
effective legal representation and a speedy trial.
The reversal of this conviction nullifies this
incident as evidence in aggravation, but is, never-
theless, material in demonstrating that the defendant's
conduct in prison is not a source of mitigation
with respect to the sentencing issue before the
Court. (State's Exhibit 63.)
"g. During the course of the trial of this cause
defendant admitted at his own instance that
immediately after his release from Montana State
Prison on March 28th, 1975, he began selling drugs
illegally in Butte, Montana, in flagrant violation
of the laws of this state."
None of the specific mitigating circumstances listed
under section 95-2206.9 exist in defendant's case, nor do
any other facts exist in mitigation of the penalty. Therefore,

we uphold the District Court's finding on this point.
Finally, it must be determined whether the sentence of
death in the defendant's case is excessive or disproportionate
to the penalty imposed in similar cases.
As stated in Coleman, it has only been since 1973 that
the death penalty could be imposed for the crime of aggravated
kidnapping in which the victim is killed. Consequently,
we are limited in our comparison of cases to an examination
of McKenzie and Coleman, which are the only cases arising
in Montana since the effective date of the aggravated
kidnapping statute.
The defendant in McKenzie was charged with deliberate
homicide and aggravated kidnapping as a result of the
bludgeoning death of Lana Harding. The District Court imposed
the death penalty for both offenses and this Court affirmed
following remand from the United States Supreme Court.
581 P.2d at 1235. The victim was found draped over a
grain drill; partially nude, with a rope tied around her
neck, and severely beaten about the head and body. Death
had been caused by severe blows inflicted by Duncan Peder
McKenzie .
In Coleman, the defendant was sentenced to death following
the jury's verdict of guilty of the crime of aggravated
kidnapping. Dewey Eugene Coleman raped Peggy Harstad, beat
her about the head with a motorcycle helmet, attempted to
strangle her with a nylon rope, and finally held her in
the Yellowstone River until she drowned.
We conclude that the sentence of death for aggravated
kidnapping in the defendant's case was not excessive or dis-
proportionate to the penalty imposed in similar cases.
Until January 1, 1974, the jury, or the District Court,
if punishment was left to the court, had complete discretion
in the sentencing of persons convicted of first degree murder.
Ch. 513, S32, Laws of Montana (1973), codified as section
94-2505, R.C.M. 1947. Subsequently, this Court, in State
v. Rhodes and Shields (1974), 164 Mont. 455, 524 P.2d 1095,
declared that two death sentences imposed under section 94-2505
were unconstitutional and therefore invalid because the United

States Supreme Court decision in Furman v. Georgia (19721,
-35-
408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, invalidated
all death sentences imposed under statutes which lodged
unfettered discretion in the judge.
A review of cases such as--State v. Rhodes and Shields,
supra; State v. Hatfield (1973), 163 Mont. 248, 516 P.2d
368; and State v. Quigg (1970), 155 Mont. 119, 467 P.2d
692--reveals that the death penalty was indeed being imposed
"wantonly and freakishly" in Montana. 408 U.S. at 310.
This, the united States Supreme Court held in Furman,
constituted cruel and unusual punishment in violation of the
Eighth and Fourteenth Amendments to the United States
Constitution. As a result, cases in which the defendant was
sentenced under section 94-2505 for the crime of first
degree murder are not similar to the case on appeal, in
which a constitutional sentencing procedure for the crime of
deliberate homicide is involved.
Other cases similar to defendant's are: McKenzie, supra,
and State v. Buckley (1976), 171 Mont. 238, 557 P.2d 283.
The facts in Coleman and McKenzie have been previously
set forth. McKenzie was sentenced to die for the crime of
deliberate homicide. We look at Buckley, although Buckley
is really not similar because he was sentenced before the
1977 amendments regarding sentencing in capital cases were
adopted.
In Buckley, a man named James A. McIntyre was staying
at a cabin near Glen Lake, Montana, with the consent of
the owner. Gary L. Buckley also received permission to
stay at the cabin. However, McIntyre was never informed of
this, and upon returning to the cabin on July 3, 1975, he
was surprised to be met by Buckley. Believing Buckley to
be on the premises unlawfully, McIntyre informed the local
police. That night McIntyre returned to the cabin with a

Lincoln County Sheriff's deputy in McIntyre's truck. The
deputy was dressed in civilian clothes and carried a gun.
-36-
After failing to find Buckley, the men met with other
law enforcement officers. The officers left the area, but
McIntyre and a friend returned to the cabin, and according
to Buckley, yelled threats to him to stay away or he would
be harmed. Buckley observed all of these events from nearby
where he was sleeping for the night because he feared for his
life and believed McIntyre was out to get him.
The next day Buckley was reading a book in the cabin
when he saw McIntyre's truck approach. The truck went slowly
past the cabin and stopped 15 to 20 yards away from it.
Buckley, sensing danger, picked up his gun, and went to the
door. As he went past the refrigerator, Buckley heard a noise
behind him. As he turned, he saw McIntyre holding a rifle
waist high. McIntyre leveled the rifle and shot at Buckley,
missing him. Buckley fired back, and missed McIntyre.
McIntyre began running to his truck, and Buckley continued
shooting, wounding McIntyre, knocking him to the ground and
causing him to drop the rifle. Buckley continued to walk
toward McIntyre, who was lying still at the time, and
continued shooting, hitting McIntyre two more times and from
less than seven and one-half feet away. Finally, Buckley
knelt down and delivered the fatal shot to McIntyre's
head from less than a foot away.
Buckley was convicted of deliberate homicide and
sentenced to 100 years in prison. His sentencing occurred
before the passage of section 46-18-301 through -310 MCA,
relating to the death penalty, under which Fitzpatrick was
sentenced. However it does not appear that Buckley's crime,
serious as it was, included any of the aggravating circumstances
triggering the death penalty under section 46-18-303 MCA.
We conclude that the sentence of death for deliberate
homicide in defendant's case was not excessive or disproportionate
to the penalty imposed in similar cases.
-37-
 ADDENDUM
After the hearing before this Court on this second
appeal of Fitzpatrick, and before we promulgated our opinion,
the decision came down from the United States Supreme Court
in Sandstrom v. Montana (1979), U.S. , 99 S.Ct.
2450, 61 L.~d.2d 39. In Sandstrom, the United States
Supreme Court found the trial court's instruction "[tlhe
law presumes that a person intends the.ordinary consequences
of his voluntary acts" unconstitutional. U.S. - at

Because of the possibility that Sandstrom might have had
an implication for this case, we ordered a further hearing in
Fitzpatrick, limited to the issues, if any, which had been
raised by virtue of the Sandstrom opinion. These additional
limited issues were briefed by counsel for the State and for
the defendant Fitzpatrick, and hearing thereon was had before
this Court on October 30, 1979.
We now determine that the instructions given in this
Fitzpatrick case on the second trial have no Sandstrom implications.
In the second Fitzpatrick trial, the trial court gave
as its instruction no. 13, the following:
"You are instructed that 'knowingly' or 'purposely'
may be proved by circumstantial evidence. It
rarely can be established by any other means.
While witnesses may see and hear and thus be
able to give direct evidence of what a defendant
does or fails to do, there can be no eye witness
account of the state of mind with which the acts
were done or omitted. But what a defendant does
or fails to do may indicate that he 'knowingly'
or 'purposely' committed the offense or offenses
charged.
"It is reasonable to infer that a person ordinarily
intends the natural and probable consequences
of acts knowingly done, knowingly omitted, purposely
done, or purposely omitted. So unless the contrary
appears from the evidence, the jury may draw the
inference that the defendant intended all of the
consequences which one standing in like circumstances
and possessing like knowledge should reasonably have
expected to result from any act knowingly done,
knowingly omitted, purposely done or purposely omitted.
 "In determining the issue as to 'knowingly' or
'purposely' the jury is entitled to consider any
statements made and acts done or omitted by the
defendant, and all facts and circumstances in evidence
which may aid in the determination of the state of
mind of the defendant."
At the outset we note an important difference between
the Fitzpatrick instruction and the instruction given in
Sandstrom. The Fitzpatrick instruction is entirely permissive
whereas it was the opinion of the United States Supreme Court
in Sandstrom that the instruction there involved was mandatory.
Moreover, in the Fitzpatrick instruction, it appears from the
face thereof that the connection between the inference which
the jury is permitted to draw and the proven facts upon which
the inference must be based is both reasonable and logical.
See, for comparision, a similar instruction, but differently
phrased in our second opinion on State v. Coleman, promulgated
December 19, 1979.

In weighing whether the instruction of Fitzpatrick has
any impermissible unconstitutional effect, it is pertinent to
look at the language of the United States Supreme Court in
County of Ulster City v. Allen (1979), U.S. , 99 S.Ct.

"Inferences and presumptions are a staple of our
adversarial system of fact-finding. It is often
necessary for the trier of fact to determine the
existence of an element of the crime--that is, an
'ultimate' or 'elemental' fact--from the existence
of one or more 'evidentiary' or 'basic' facts.
(Citing authority.) The value of these evidentiary
devices, and their validity under the Due Process
Clause, vary from case to case, however, depending
on the strength of the connection between the
particular basic and elemental facts involved and
on the degree to which the device curtails the
fact finder's freedom to assess the evidence indepen-
dently. Nonetheless, in criminal cases, the ultimate
test of any device's constitutional validity in a
given case remains constant: the device must not
undermine the fact finder's responsibility at trial,
based on evidence adduced by the State, to find the
ultimate facts beyond a reasonable doubt. (Citing
cases. )
 The most common evidentiary device is the entirely
permissive inference or presumption, which allows--
but does not require--the trier of fact to infer the
elemental fact from proof by the prosecutor of the
basic one and that places no burden of any kind on
the defendant. (Citing a case.) In that situation
the basic fact may constitute prima facie evidence
of the elemental fact. (Citing authority.) When
reviewing this type of device, the Court has required
the party challenging it to demonstrate its invalidity
as applied to him. (Citing authority.) Because this
permissive presumption leaves the trier of fact free
to credit or reject the inference and does not shift
the burden of proof, it affects the application of
the 'beyond a reasonable doubt' standard only if,
under the facts of the case, there is no rational way
the trier could make the connection permitted by the
inference. For only in that situation is there any
risk that an explanation of the permissible inference
to a jury, or its use by a jury, has caused the
presumptively rational fact finder to make an erroneous
factual determination." 99 S.Ct. at 2224.
Under the Allen language foregoing, we examine the
Fitzpatrick instruction as it was given. Plainly, the instruction
does not curtail in any way the jury's duty and freedom to
assess the evidence independently. Under the instruction the

jury is free to credit or reject the inference.
The defendant is not required to come forward with

evidence to overcome the permitted inference. Under this
instruction and other instructions given by the court, the
duty remains upon the State to prove every element of the
crimes charged against Fitzpatrick beyond a reasonable
doubt. The Fitzpatrick instruction, therefore, meets the
first test under Allen, because the jury is free to accept
or reject the instruction and no additional burden is placed
on the defendant as far as coming forward with proof is
concerned.
The second test under Allen is the application of the
instruction to the "beyond a reasonable doubt" standard.
This test is met by the instruction unless under the facts
of the case there is no rational way that the jury could
make the connection permitted by the inference. It is clear

from the evidence in this case that it is perfectly rational
to infer that Fitzpatrick commfied this crime knowingly
or purposely, and thus the instruction meets the second
Allen test.
A few items of the evidence that connect Fitzpatrick
with the crime on which the jury could infer, if need be,
that Fitzpatrick committed the crime knowingly and purposely

are these: the body of Monte Dyckman itself; the fact that
Fitzpatrick went to a house in Billings to get a handgun; the
fact that he later displayed the handgun and cautioned others
to be careful with it because it was loaded; his otherwise
unexplained trip from Billings to Hardin, Montana; the ski
mask which was found at the scene of the crime and which was
connected with Fitzpatrick; the spent casing from a handgun
which was found in the Monte Dyckman car after the body was
discovered; the bits of rope which were used to tie up the
victim; the hole in the windshield where it was testified that
Fitzpatrick's gun was fired; the flight by Fitzpatrick in the
early morning hours to Butte with Christine Fetters; hiding
the handgun; and Radi's statement that Fitzpatrick "shot his
head off". It is further stated by the United States Supreme
Court in Allen that the rational. connection between the
basic facts at the prosecution proved and the ultimate fact
which the jury is permitted to presume is valid if it is

"more likely than not to flow from" the basic facts proved.
Allen, 99 S.Ct. at 2228.
It is noteworthy that the decision by the United States
was
Supreme Court in Allen,/issued on June 4, 1979 and that
was
Sandstron)/issued on June 18, 1979. The closeness in time of
these two decisions indicates that in determining the validity
of an instruction such as that given in Fitzpatrick, it is

proper to weigh not only the consequences flowing from the
mandatory instruction given in Sandstrom, but also the
-41-
 consequences flowing from permissive instructions as described
in Allen. The language used by the United States Supreme
Court in Allen is apropos to the Fitzpatrick case. In any
event, however, the disputed instruction meets the test
derived from Sandstrom, because this instruction does not
invade the fact-finding duty of the jury nor allocate the
burden of proof between the defendant and the State. See
the discussion on the effect of Sandstrom in Holloway v.
McElroy (D. Ga. 1979), 474 F.Supp. 1363-68.
DISPOSITION

The judgment of the District Court is affirmed and this
cause is remanded to the District Court of the Thirteenth
Judicial District of the State of Montana in and for the
County of Yellowstone for the purpose of resetting the
execution date of the defendant Bernard James Fitzpatrick.

We Concur:

hief Justice

-
/

at a later date.
IN THE SUPREME COURT FOR THE STATE OF MONTANA

No. 14422

THE STATE OF MONTANA,

Plaintiff and Respondent,

VS .
BERNARD JAMES FITZPATRICK,

Defendant and Appellant.

DISSENT

MR. JUSTICE DANIEL J. SHEA

FILED
"
m E R K CF SIJPREME COURT
' STATE OE MONTAW
Mr. Justice Daniel J. Shea affirms the convictions but dissents
to the imposition of the death penalties in this case.

Concerning the Sandstrom-type instruction given in this
case, I agree for the most part with the majority analysis. As
the opinion makes clear, the instruction given in this case was
not a carbon copy of that given in Sandstrom. Furthermore, I
emphasize here, as I did in State v. Coleman (1979), Mont .

I P.2d 36 St.Rep. 2237, that the facts of this
case are radically different from those existing in Sandstrom.
Here, as in Coleman, the defense was alibi. The jury had a
choice of either believing Fitzpatrick's alibi, or not believing
it. The jury chose not to believe it. In Coleman, there was direct
evidence by accomplice Nank that defendant Coleman participated
in the kidnapping, rape and homicide. Here, the evidence is
more indirect in that there is no eyewitness testimony to the
crime itself. Nonetheless, once the jury chose not to believe
the alibi of defendant Fitzpatrick, there was abundant evidence
by which it could convict him of the crimes charged. A Sandstrom-
type instruction would not have aided the State's case in this
regard.
I. THE BACKGROUND OF THE DEATH PENALTY MORASS:
The defendant has become ensnared in a death penalty morass
that has gone far past nightmarish proportions. The legal
quagmire can perhaps be best understood if the background of
the death penalty problem is set forth in relation to the first
appeal and then to the present appeal.
Defendant Fitzpatrick, along with Gary Radi, Travis Holliday,
and Paul Bad Horse, were charged with robbery, aggravated kid-
napping, and deliberate homicide. The victim was Monte Dyckman,
and the crimes were committed on April 5, 1975. Defendants
Fitzpatrick and Radi were convicted on all three counts. Defendants

Holliday and Bad Horse were convicted of robbery only. Sentencing
-43-
of defendants Fitzpatrick and Radi for the crimes of
aggravated kidnappin< and cleliberate homicide, raised the
specter of the death penalty.
By the time of the sentencing hearing, the United States
Supreme Court had already ruled that the death penalty was not
per se unconstitutional. But there was great confusion to
what kind of death penalty statutes would meet the approval of
the Supreme Court. One extreme, and apparently the one taken
by the legislature which had passed the death penalty laws
involved in this case at the first sentencing, was that only a
mandatory death penalty scheme would pass constitutional muster.
The belief apparently was that only then could a statute eliminate
the doubt attendant upon the surrounding of exercise of dis-
cretion in the decision of whether or not to impose the death
penalty. Obviously, if the death penalty was mandatory, there
would be no discretion at all.
It was also the position of the first sentencing judge that
only the mandatory death penalty would pass constitutional muster.
For this reason, however, a dilemma existed in relation to the
deliberate homicide penalty. For some reason, the legislature
had overlooked the deliberate homicide statute in changing the
statutes, and the death penalty was not mandatory. Section
94-5-105, R.C.M. 1947, provided the death penalty for deliberate
homicide "unless there are mitigating circumstances." Thus, the
qualifying phrase prevented the deliberate homicide penalty
from qualifying as a mandatory death penalty statute. On the
other hand, the aggravated kidnapping statute, section 94-5-304,
R.C.M. 1947 explicitly mandated the death penalty if the victim
was dead as a result of the kidnapping. This was the statutory
picture at the time the penalties were imposed by the first
sentencing judge.
-44-
 Defendants Fitzpatrick and Radi were sentenced on each of
the three counts. For robbery, each was sentenced to 100 years
in prison (each had been found to be a persistent felony offender);
for deliberate homicide (apparently because the sentencing judge
thought the statute to be unconstitutional because it was not
mandatory) each was sentenced to 100 years in prison; and for
aggravated kidnapping, each was given the death penalty. Defendants
Holliday and Bad Horse were each sentenced to 40 years in prison
for the crime of robbery. All the defendants appealed from the
convictions.
In State v. Fitzpatrick (1977), Mont. , 569 P.2d
383 34 St.Rep. 736 , this Court ruled that it was prejudicial
error to try all the defendants jointly under the particular
factual circumstances of the case, and we reversed all convictions.
We ordered new and separate trials for each-of them. We thus
did not reach the death penalty arguments raised by Fitzpatrick
and Radi in their first appeal simply because our reversal of the
convictions did not require us to determine the death penalty
issues.
As events would later prove, however, the first sentencing
judge did not accurately assess the constitutional picture.
In State v. Coleman (1977), 171 Mont. 278, 557 P.2d 1023,
this Court, because of the United States Supreme Court
decision, declared the mandatory death penalty for aggravated
kidnapping to be unconstitutional. On the other hand, in State
v. McKenzie (1976), 171 Mont. 278, 557 P.2d 1023, this Court
upheld the constitutionality of the deliberate homicide statute,
apparently for the reason that the qualifying words "unless there
are mitigating circumstances" saved it from being designated as
a mandatory death penalty statute.
Now to the results of the new trials where each of the
defendants was tried separately. Two of the defendants were
-45-
a g a i n c o n v i c t e d o f r o b b e r y and t h e i r c o n v i c t i o n s w e r e a f f i r m e d

by t h i s C o u r t . S t a t e v . ~ o l l i d a y( 1 9 7 9 ) , Mont . , 598
36 St.Rep. 1535
p.2d 113?; S t a t e v . Bad Horse (1980) , Mont . -P.2d

. 37 St.Rep. 45 . Defendant Radi was a c q u i t t e d on a l l

charges. F i t z p a t r i c k w a s a g a i n c o n v i c t e d on a l l t h r e e c o u n t s ,

and a g a i n t h e d e a t h p e n a l t y became an i s s u e a t s e n t e n c i n g .

F i t z p a t r i c k w a s s e n t e n c e d t o 100 y e a r s i n p r i s o n f o r

r o b b e r y b e c a u s e h e was found t o be a p e r s i s t e n t f e l o n y o f f e n d e r .

But h e was e n s n a r e d i n a d o u b l e b i n d i n r e l a t i o n t o t h e c o n v i c t i o n s

on t h e c o u n t o f a g g r a v a t e d k i d n a p p i n g and t h e c o u n t o f d e l i b e r a t e

homicide. A t t h e f i r s t sentencing defendant w a s sentenced t o

d e a t h u n d e r t h e mandatory s t a t u t o r y p r o v i s i o n t h e n e x i s t i n g .

By t h e t i m e o f t h e second s e n t e n c i n g however, w e had r u l e d i n

S t a t e v. Coleman, s u p r a , t h a t t h e mandatory d e a t h p e n a l t y w a s

unconstitutional. The s e n t e n c i n g judge r e s o l v e d t h i s l i t t l e

problem by r e t r o a c t i v e l y a p p l y i n g t h e 1977 d e a t h p e n a l t y s t a t u t e s

t o t h e c r i m e s committed i n 1975. I n t h e process of enacting t h e

1977 d e a t h p e n a l t y s t a t u t e s , t h e l e g i s l a t u r e had a l s o r e p e a l e d

s e c t i o n 94-5-304, which c a l l e d f o r t h e mandatory d e a t h p e n a l t y

f o r aggravated kidnapping. Ch. 338, 516, L a w s of Montana ( 1 9 7 7 ) .

The s e n t e n c i n g c o u r t made t h i s r e t r o a c t i v e a p p l i c a t i o n of

t h e l a w o s t e n s i b l y under t h e r a t i o n a l e o f and a u t h o r i t y c o n f e r r e d

by t h e U n i t e d S t a t e s Supreme C o u r t i n Dobbert v. F l o r i d a ( 1 9 7 7 ) ,

432 U.S. 282, 92 S.Ct. 2290, 53 L.Ed.2d 344, which h e l d t h a t

r e t r o a c t i v e a p p l i c a t i o n of death penalty s t a t u t e s does n o t v i o l a t e

t h e e x p o s t f a c t o c l a u s e o f t h e United S t a t e s C o n s t i t u t i o n i f

t h e s t a t u t e s are c o n s t r u e d as b e i n g p r o c e d u r a l o r " a m e l i o r a t i v e "

i n nature. I n a b r i e f f i l e d with t h e sentencing court, t h e

A t t o r n e y G e n e r a l ' s O f f i c e a l s o urged t h e s e n t e n c i n g c o u r t t o

r e t r o a c t i v e l y a p p l y t h e 1977 s t a t u t e s t o t h e c r i m e s committed i n

1975. By t h i s d e c i s i o n , t h e Supreme C o u r t a p p a r e n t l y r u l e d t h a t

a d e f e n d a n t h a s no c o n s t i t u t i o n a l argument and c a n n o t t h u s complain
-46-
i f a c o u r t should determine t h a t t h e s t a t u t e s w e r e designed

f o r h i s b e n e f i t r a t h e r t h a n f o r h i s demise, even though h e

m e e t s h i s demise by an a p p l i c a t i o n o f t h e s t a t u t e s . Needless

t o s a y , t h e s e n t e n c i n g c o u r t w a s n o t t o be d e n i e d ; it r e t r o a c t i v e l y

a p p l i e d t h e 1977 s t a t u t e s and s e n t e n c e d t h e d e f e n d a n t t o d e a t h

f o r t h e c r i m e of a g g r a v a t e d k i d n a p p i n g .

Subsequent t o t h e d e c i s i o n o f t h e s e n t e n c i n g c o u r t t o

r e t r o a c t i v e l y a p p l y t h e 1977 d e a t h p e n a l t y s t a t u t e s , t h i s C o u r t

approved o f j u s t s u c h a scheme i n t h e second Coleman c a s e ,

S t a t e v. Coleman ( 1 9 7 9 ) , - Mont . I- P.2d , 36 St.Rep.

1134. T h e r e , a s h e r e , I lodged a w h i s p e r i n g i n t h e wind d i s s e n t

t o t h i s u n j u s t and inhumane i n t e r p r e t a t i o n of e x p o s t f a c t o l a w s .

The second p a r t of t h e double b i n d r e l a t e s t o t h e p o s s i b l e

p e n a l t y f o r d e l i b e r a t e homicide. The f i r s t s e n t e n c i n g judge had

s e n t e n c e d d e f e n d a n t t o 100 y e a r s i n p r i s o n f o r t h i s c r i m e , and

t h e second s e n t e n c i n g judge had t o c o n f r o n t t h i s f a c t . I n order

t o go beyond what t h e f i r s t s e n t e n c i n g c o u r t d i d , two h u r d l e s

had t o b e c r o s s e d . F i r s t t h e s e n t e n c i n g c o u r t had t o comply

w i t h North C a r o l i n a v. P e a r c e ( 1 9 6 9 ) , 395 U.S. 711, 89 S.Ct.

2072, 23 L.Ed.2d 656, which sets f o r t h s t r i c t s t a n d a r d s b e f o r e

a punishment can b e i n c r e a s e d a f t e r a second t r i a l . Second,

t h e s e n t e n c i n g c o u r t , i n d e c i d i n g t o a p p l y t h e 1977 d e a t h p e n a l t y

s t a t u t e s t o t h e 1975 c r i m e s , had t o f i n d a s t a t u t o r y a g g r a v a t i n g

c i r c u m s t a n c e e x i s t i n g under s e c t i o n
(4
$s -2206.8, R.C.M. 1947, now

section-&-18-303, MCA, b e f o r e t h e d e a t h p e n a l t y c o u l d b e

imposed.
N e e d l e s s t o s a y , t h e s e n t e n c i n g c o u r t r u l e d t h a t it had

complied w i t h P e a r c e and t h a t a s t a t u t o r y a g g r a v a t i n g c i r c u m s t a n c e
+d
e x i s t e d under s e c t i o n 45-18-303, and t h u s imposed t h e d e a t h

p e n a l t y f o r d e l i b e r a t e homicide. A l a r g e p o r t i o n of m d i s s e n t
y

w i l l be d e v o t e d t o a d e m o n s t r a t i o n t h a t t h e s e n t e n c i n g c o u r t
n o t o n l y f a i l e d t o comply w i t h t h e s t a n d a r d s imposed by P e a r c e ,

-47-
but worse than this, the sentencing court and the majority
opinion here totally nullified the Pearce standards. Further-
more, it is equally apparent that the facts of the deliberate
homicide do not justify a determination that an aggravating
4
circumstance exists under section 4%-18-303, MCA.
SCOPE OF DISSENT:
Defendant's contention that the 1977 death penalty
statutes were unconstitutionally applied to the 1975 crimes
has, unfortunately, already been decided against him in the
second Coleman case, supra. I dissented to the majority opinion
in this regard and my dissent in Coleman shall also constitute
; y dissent here..
n P . 2 d -, 36 St.Rep. 1157A-1157QQ.
I raise in this dissent however, an entirely different
issue in respect to the sentencing judge's decision to apply
the 1977 death penalty statutes to the 1975 crimes. This point
was not raised in the second Coleman case, and it has not been
raised here. I believe if the majority of this Court is to

remain consistent, that the statutory sentencing scheme in
effect and approved in State v. McKenzie (1976), 171 Mont. 278,
557 P.2d 1023, should also have been applied here. This
would, of course, have obviated any need to apply the 1977
death penalty statutes to the 1975 crimes. In short, if the

statutory scheme passed constitutional muster in McKenzie,
there is no reason why it should not have also been applied
here. Failure to apply this scheme has prejudiced the rights
of Fitzpatrick. I set forth my position in this regard in

----
part I1 of this ?.issent.
Defendant also contends that the sentencing judge, when
he increased the sentence for deliberate homicide from 100 years
in prison to the death penalty, failed to comply with the
objective standards set forth in Pearce, supra. I agree; but

more than this, I believe that fundamental due process of law
should prohibit an increase of punishment after the second
trial to that of death. My position in this regard is set
forth in part - - -
I11 of this dissent.
The majority has taken the position that the sentencing
court complied with all standards as set forth in Pearce. In
fact, there was absolutely no compliance by the sentencing court
with the standards set forth in Pearce. Since, however, the
majority has totally obliterated the standards set forth in
Pearce, I must necessarily demonstrate the havoc that has been
wreaked by the majority opinion by the failure to apply Pearce.
This analysis is set forth in part - - -
IV of this dissent.
The final part of my dissent concerns the failure of this
Court to determine whether or not a statutory aggravating cir-
cumstance under section 95-2206.8, R.C.M. 1947, now section 46-
18-303, MCA, existed for the imposition of the death penalty
for the crime of deliberate homicide. It is clear that a
statutory aggravating circumstance did not exist, and thus that
the death penalty could not be imposed for the crime of deliberate
homicide. The majority opinion has totally neglected to discuss
this issue, even though one of the duties of mandatory review
imposed by section 46-18-310, MCA, requires this Court to
determine whether or not there existed a statutory aggravating
circumstance. This analysis is set forth in part V of this
----
dissent.
11. IT WAS ERROR FOR THE SENTENCING COURT TO APPLY THE 1977
DEATH PENALTY STATUTES TO CRIMES COMMITTED IN 1975.
In 1976, this Court decided the case of State v.
McKenzie (1976), 171 Mont. 278, 557 P.2d 1023. In that
case the Court upheld the constitutionality of the
statutory sentencing scheme as against an attack that the
sentencing statutes and appellate review statutes were
constitutionally deficient. The statutes involved in that
case were in existence before the commission of the crimes
in March 1975; they were in existence at the time of the
first sentencing; at the time of the second sentencing, and,
as a matter of fact, they are still in effect today. One may
logically ask then, if these statutes passed constitutional
muster in McKenzie, why then were they not also applied in the
second Coleman case, supra, and in the present case?
Although the second McKenzie case was not decided at the
time either Coleman or Fitzpatrick were sentenced for the second
time, nonetheless the majority opinion again confirmed the con-
stitutionality of the statutory sentencing scheme then in
existence. State v. McKenzie (1978), - Mont . , 581 P.2d
1205, 35 St.Rep. 759. If statutes already in existence at the
time of the crime had passed constitutional muster, and were
still in existence at the time of the second sentencing of both
Coleman and Fitzpatrick here, what right did the sentencing
courts have in choosing instead to use the 1977 statutes and
apply them retroactively?
Retroactive application of the 1977 death penalty statutes
is important for two reasons in the case of aggravated kidnapping
and important for one reason in the case of deliberate homicide.
Retroactive application of the 1977 death penalty statutes was
the only way Dewey Coleman could be reached to impose the death
penalty for aggravated kidnapping; and likewise, the same is true
in the case of the death penalty imposed on Fitzpatrick for the
crime of aggravated kidnapping.
If the sentencing court applied the sentencing statutes
held constitutional in McKenzie, it would still have been
confronted with section 94-5-304, R.C.M. 1947:
-50-
 "A court shall impose the sentence of death
following conviction of aggravated kidnapping
if he finds that the victim is dead as the
result of the criminal conduct."
Since the death penalty was mandatory, and since this mandatory
death penalty has been declared unconstitutional in the first
Coleman case, there would have been no legal way to again impose
the death penalty. But application of the 1977 death penalty
statutes provided an out. In enacting a new scheme of aggravating
and mitigating circumstances, the 1977 legislature also in the same
process repealed section 94-5-304. Ch. 338, S16, Laws of Montana
(1977). The repeal of the mandatory death penalty by the 1977
legislature freed the sentencing court to impose the death penalty
for aggravated kidnapping by use of the guidelines set forth in
the new 1977 death penalty statutes.
In retroactively applying the 1977 death penalty statutes,
the sentencing court in the second Coleman case, and the sentencing
court here, relied on the State's argument that Dobbert, supra,
permitted the application of the 1977 death penalty statutes to
the crimes committed in 1975. But the sentencing court in Coleman,
and the sentencing court here failed to recognize that this Court
in McKenzie had already upheld a statutory system and method of
imposing the death penalty. Clearly, therefore, there was no
need to use the 1977 statutes, if the statutes in effect at the
time of the commission of the crimes had already passed con-
stitutional muster in McKenzie.
On the other hand, Dobbert does not involve a situation
where the statutes in effect at the time of the commission of
the crime had already passed constitutional muster. It would
thus appea; obvious that the statutes approved in McKenzie,
should have been the statutes used in this case at the second
sentencing hearing for both Coleman, and for Fitzpatrick.
The argument can, of course, be made that the sentencing
court would have sentenced defendant to death regardless of
whether it used the statutory guidelines approved in McKenzie,
or the 1977 death penalty statutes. If the sentencing court
had not relied on the 1977 legislative repeal of the mandatory
death penalty for aggravated kidnapping, it could not have
imposed the death penalty at all for that crime. Thus being
barred for constitutional reasons, it would then have had to
rely exclusively on the provisions of the deliberate homicide
statute which was saved from constitutional death by the savings
clause at the end, "unless there are mitigating circumstances."
The phrase "unless there are mitigating circumstances" did
not hamstring a sentencing court in determining what factors
it chose to consider as being mitigating circumstances. On
the other hand, the mitigating circumstances statute in the
1977 statutes, set forth a list of mitigating circumstances.
Section 95-2206.9, R.C.M. 1947, now 46-18-304, MCA. Thus the
sentencing court was compelled to follow the list when it
sentenced defendant, and after it found no mitigating circum-
stances under the list, it was, of course, under considerable
pressure to impose the death penalty.
94
Furthermore, section 95-2206.10, R.C.M. 1947, now 6-18-
305, MCA, imposes considerably more pressure to assess the
death penalty. It requires the death penalty to be imposed
if the sentencing court finds "one or more of the aggravating
-
circumstances and find that there are no mitigating circumstances
sufficiently substantial - - - for leniency."
to call The mitigating

circumstances in relation to the deliberate homicide statute,
on the other hand, did not require that they be "sufficiently
substantial to call for leniency." The only requirement was
the presence of "mitigating circumstances," without regard to
how substantial they may have been.
Under these circumstances, I believe that Fitzpatrick was
clearly prejudiced by the decision of the sentencing court to
-52-
use and apply the 1977 death penalty statutes to his case.
It is more than a trifle inconsistent for the majority to
have upheld the statutory sentencing scheme in McKenzie and
then not insist that the statutes be applied to this case.
111. A SENTENCING FUNCTION THAT ESPOUSES FUNDAMENTAL FAIRNESS
WILL NOT TOLERATE THE ESCALATION IN PUNISHMENT AFTER A SECOND
TRIAL TO THAT OF DEATH.
In permitting the sentencing court to escalate the punish-
ment after the second trial to the death penalty, the majority
overlooked the fundamental unfairness inherent in such decision.
No judicial system espousing principles of due process of law
should tolerate a result where the price exacted for the exercise
of a constitutional right to a fair trial is death itself.
The general issue of whether the punishment can be increased
after a second trial has been extensively litigated. 12 A.L.R.3d
978 (1966). Indeed, it would appear that the results were so
diverse in the federal circuits as well as in the state courts,
that the United States Supreme Court finally decided the issue
in North Carolina v. Pearce (1969), 395 U.S. 711, 89 S.Ct. 2072,
23 L.Ed. 2d 656. Although the Supreme 'court held that the
practice does not violate the double jeopardy or equal protection
clauses, it did recognize the potential evils engendered by
such a practice and therefore set forth objective standards
which the sentencing court must follow in any decision increasing
the punishment. Neither Pearce, nor its two companion cases
also decided at the same time, involved an increase of punish-
ment to that of death.
Conceptually, at least, the issue of increasing the
punishment the second time around to that of capital punishment,
is no different from that of simply increasing the imprisonment
the second time around, or increasing a fine the second time
around. That would appear to be the position the United States
-53-
Supreme C o u r t t o o k i n Pearce, when it h e l d t h a t i n c r e a s i n g

a p r i s o n sentence w a s n o t a v i o l a t i o n of t h e double jeopardy
equal
o r /'protection clauses. The C o u r t c i t e d S t r o u d v. U n i t e d

S t a t e s ( 1 9 1 9 ) , 157 U.S. 1 5 , 4 0 S.Ct. 5 0 , 6 4 L.Ed. '103 i n r e a c h i n g

its decision. I n S t r o u d , t h e Supreme C o u r t r a t h e r summarily

b r u s h e d a s i d e a c o n t e n t i o n t h a t t h e d o u b l e jeopardy p r o v i s i o n

p r e v e n t e d a d e f e n d a n t from r e c e i v i n g t h e d e a t h p e n a l t y a f t e r

he h a s s e c u r e d a reversal of h i s f i r s t c o n v i c t i o n which had

imposed a l i f e s e n t e n c e . S t r o u d d i d n o t however, d e c i d e t h e due

process question. Whether t h e Supreme C o u r t would t o d a y s t i l l

a p p l y S t r o u d t o a s i t u a t i o n where t h e a n t e h a s been r a i s e d t o

one o f c a p i t a l punishment, i s a q u e s t i o n c r y i n g f o r an answer.

D i s r e g a r d i n g t h e u n s p e a k a b l e dilemma o f a d e f e n d a n t f a c i n g

t h e p r o s p e c t o f a d e a t h s e n t e n c e t h e second t i m e around as t h e

p r i c e of having s u c c e s s f u l l y a t t a c k e d h i s f i r s t c o n v i c t i o n ,

t h e u n d e r l y i n g r a t i o n a l e s u p p o r t i n g an i n c r e a s e d s e n t e n c e i s

no d i f f e r e n t i n a c a p i t a l c a s e t h a n i n a n o n c a p i t a l c a s e . In

j u r i s d i c t i o n s p e r m i t t i n g a h i g h e r s e n t e n c e t h e second t i m e

a r o u n d , a t l e a s t t h r e e r e a s o n s have been advanced i n s u p p o r t

of t h i s position. F i r s t , t h a t t h e defendant i n obtaining a

new t r i a l a f t e r t h e c o n v i c t i o n o f a c r i m e assumes t h e r i s k o f

a more s e v e r e s e n t e n c e t h a t w a s f i r s t imposed s h o u l d h e a g a i n

be reconvicted of t h a t c r i m e . 12 A.L.R.3d a t 981. Second, t h a t

a d e f e n d a n t who invoked t h e a c t i o n o f a n a p p e l l a t e c o u r t i n

o r d e r t o r e v e r s e a c o n v i c t i o n c a n n o t complain on d o u b l e jeopardy

grounds t h a t h i s s e n t e n c e c a n n o t be i n c r e a s e d i f h e i s c o n v i c t e d

a g a i n a f t e r a second t r i a l . 1 2 A.L.R.3d a t 982. The a n n o t a t i o n

i n t h i s r e g a r d , cites Stroud, s u p r a , as a u t h o r i t y f o r t h i s

position. T h i r d , t h a t a s l o n g as t h e d e f e n d a n t i s n o t c o n v i c t e d

of a h i g h e r d e g r e e o f crime, t h e second t i m e a r o u n d , a n i n c r e a s e

o f punishment d o e s n o t c o n s t i t u t e d o u b l e jeopardy. 12 A.L.R.3d

a t 982.
-54-
 Needless to say, there are strong counter-arguments.
One view reasons that the potential for a higher punishment
after a second trial subjects a defendant to an unconscionable
burden to pay as the price for having exercised his constitutional
right to a fair trial by appealing his first conviction. 12
A.L.R.3d at 985. This position is illustrated by State v. Wolf
(1966), 46 N. J. 301, 216 A. 2d 586; 12 A.L.R. 3d 970. Wolf
involved a potential death penalty should the defendant be
convicted at his second trial.
Another view is that an increase in punishment after a
second trial does constitute double jeopardy. 12 A.L.R.3d at
984. This view, insofar as the federal constitution is concerned,
was effectively nullified by the majority opinion in Pearce,
supra. Now such a view would hold only if a state court invoked
the double jeopardy clause of its own state constitution.
A third approach, and one reached after the decision in
Pearce, is that taken by the Alaska Supreme Court in Shagloak v.
State (Alaska ), 597 P.2d 142. The Court flatly held that
a greater punishment after a second trial violates the due
process clause of the Alaska Constitution.
The determination that the courts must not be a party to
a process which exacts such a horrible price from a defendant
when he exercises his rights by appealing his first conviction,
is essentially grounded on due process considerations. As a
matter of judicial policy, this position is even more compelling
where the greater punishment after the second trial may be the
death penalty. Because capital punishment is a price too high
to pay for-having successfully attacked a first conviction,
several state courts have wisely eliminated the possibility that
such a horrible dilemma might be a recurring reality.
The case of People v. Henderson (1963), 60 Cal.2d 482, 386
P.2d 677, preceded State v. Wolf, supra, in holding that a
-55-
defendant convicted of first degree murder and given a
life sentence, could not, upon a second trial be subjected
to the death penalty. The California Supreme Court ruled
that the double jeopardy provision intervened to prevent the
imposition of a death penalty. In so reasoning, the Court
took the liberty of concluding that Stroud v. United States,
supra, had been vitiated by Green v. United States, supra, thus
concluding that the price to be paid by Henderson in exercising
his right to appeal his conviction was too high if he could
be subjected to a death penalty upon a retrial. The Court,
however, couched its reasoning more in a due process analysis:
". .
. A defendant's right to appeal from an
erroneous judgment is unreasonably impaired
when he is required to risk his life to invoke
that right. Since the state has no interest
in preserving erroneous judgments, it has no
interest in foreclosing appeals therefrom by imposing
unreasonable conditions on the right to appeal."
386 P.2d at 686.
In People v. Ali (1967), 66 Cal.2d 277, 424 P.2d 932, the
California Supreme Court extended the Henderson rationale
to apply to any increase in sentence after a second trial.
The New Jersey Supreme Court, in State v. Wolf, supra,
deliberately avoided grounding its decision on the double
jeopardy clause of the United States Constitution. Although
the court agreed with the rationale in Henderson, supra, it
was not as certain that the United States Supreme Court would
agree that the "grisly choice" faced by such a defendant was
sufficiently alarming to cause the Supreme Court to bar the
practice of increasing the punishment after the second trial.
Instead, the New Jersey Supreme Court declared that fundamental
fairness in the administration of the court system would not
tolerate such an unjust result:
"Traditionally appellate courts have exercised a
greater degree of caution in dealing with capital
cases, and they have shown special concern over
 procedures which interfere with the right
of appeal. In this case the prosecutor's
thesis endangers a vital societal principle,
that no person shall be deprived of his life
or liberty except by a trial free from prejudicial
error. Awareness of that principle naturally
stimulates judicial reluctance to see the price
of an appeal set at the risk of a man's life.
Such a price, in our judgment, is a hardship so
acute and so shocking that our public policy cannot
tolerate it. Consequently, we hold that since the
State has granted the universal right of appeal,
standards of procedural fairness forbid limiting the
right by requiring the defendant to barter with his
life for the opportunity of exercising it." 216
A.2d at 590.
The State argued in Wolf that the threat of a death
penalty to a defendant should he successfully attack his first
conviction, fosters a beneficial institutional interest of the
courts by deterring the number of appeals. To this the New
Jersey Supreme Court responded:
". . . In a choice between forcing the defendant
either to surrender his right to an error-free
trial as well as his right of appeal, and to
accept the life imprisonment sentence, or to put
his life at stake again on retrial following a
successful appeal, justice can follow only one
course. That course is the one demanded by
procedural fairness and principles of public
policy, namely, prohibition of such a fearsome
election, and the restriction of available
punishment at a new trial to life imprisonment,
if a second conviction results. (Citing cases.)
Otherwise, a defendant with perfect grounds of
appeal may be deterred from seeking appellate
review just the same as one whose appeal rests
entirely on frivolous grounds." 593 A.2d at 591.
2 ' 6
Although the New Jersey Supreme Court deliberately avoided
a direct due process ruling, the essence of its decision rests
upon fundamental fairness, the essential ingredient of due
process of law.
These same policy considerations expressed in Wolf., are
expressed in decisions of the Oregon, Minnesota and Alaska
Supreme Courts.
The Oregon Supreme Court exhaustively discussed the pros
and cons of the cases addressing the issue of increasing the
penalty after a second trial, and then concluded that the
risk of increased punishment is a price that should not be
exacted by the judicial system. State v. Turner (1967),
247 Or. 301, 429 P.2d 565. On the basis of public policy
the Court adopted the following rule:
"We believe that the interest of the public
and the individual can best be served by the
following rule: After an appeal or post-
conviction proceeding has resulted in the ordering
of a retrial for errors other than an erroneous
sentence, such as in the Froembling cases, and
the defendant has again been convicted, no harsher
sentence can be given than that initially imposed.
If the initial sentence was incarceration, the
defendant subsequently cannot be sentenced to any
longer term than the time still to be served upon
his initial sentence." 429 P.2d at 570-571.
The Oregon Supreme Court, however, following the lead
of the New Jersey Supreme Court, expressly declined to decide
the case on a constitutional ground. The Court quoted exten-
sively from Wolf, supra, and then stated the ground upon which
it rested its decision:
"There also remains the issue of whether the
rule proposed should be grounded upon the due
process or double jeopardy provisions of the
state or federal constitutions or whether it
should be grounded upon the statutes or the
common law."
"We do not find it necessary to decide the
constitutional issues as we conclude that when
the state grants a criminal appeal as a matter
of right to one convicted of a crime, as it has,
our procedural policy should be not to limit that
right by requiring the defendant to risk a more
severe sentence in order to exercise that right
of appeal. ORS 138.020." 429 P.2d 571.
The Minnesota Supreme Court, in State v. Holmes (1968),
161 N.W.2d 650, also examined the cases pro and con and
recognized that the federal and state courts were hopelessly
divided. The Court ruled, however, that it is contrary to
public policy to permit increased punishment after a second
trial, for it discourages a defendant from exercising his legal
rights. The court held:
 ". . . The third approach, and the one which
we adopt, precludes inquiry into the motives
of the sentencing judge and holds as a matter
of law that any increase in penalty upon a retrial
inevitably discourages a convicted defendant from
exercising his legal rights and is contrary to
public policy. Except for convictions resulting
from Federal offenses, the Federal courts have been
obliged to base their decisions on constitutional
grounds, which we decline to do." 161 N.W.2d at
653.
The Alaska Supreme Court, by invoking its own due process
clause, flatly rejected the rule set forth in Pearce, supra.
Shagloak v. State (Alaska 1979), 597 P.2d 142. In holding
that a greater punishment after a second trial violates the
due process clause of the Alaska Constitution, the court stated:
"We believe if a more severe sentence may be imposed
after retrial for any reason, there will always be
a definite apprehension on the part of the accused
that a heavier sentence may be imposed. Such
apprehension or fear would place the defendant in
. an 'incredible dilemma' in considering whether to
appeal the conviction. A 'desparate' choice exists,
and may very well deter a defendant from exercising
the right to assert his innocence and request a
retrial. Such deterrence violates the due process
clause of the Alaska Constitution. The fundamental
standard of procedural fairness, which is the basic
due process right claimed in this case, forbids placing
a limitation on the defendant's right to a fair trial
by requiring a defendant to barter with freedom for
the opportunity of exercising it. See State v. Wolf,
A.2d 586, 590-591, 12 A.L.R.3d 970,
46 N.J. 301,
T
976 (1966). T e state has no valid interest in
imposing unreasonable conditions on Shagloak's
legitimate exercise of his due process right. The
imposition of the five-year sentence after his trial
following the change of plea from guilty to not
guilty was a denial of due process of law under the
Alaska Constitution and cannot be countenanced by this
court." 597 P.2d at 145.
Beyond these compelling policy considerations in favor
1.

of adopting a strict rule prohibiting an increase in punishment
after a second trial under any circumstances, the question arises
as to whether the judicial system is capable of effectively
reviewing an increased sentence imposed after a second trial.
The standards set forth by the United States Supreme Court
in Pearce, supra, no doubt were designed with this problem
in mind. But notwithstanding these standards, the fact
remalns that vindictiveness of a sentencing judge is some-
thing that can rarely be demonstrated by the cold record.
A sentencing judge will certainly not admit to a
character trait of vindictiveness. Furthermore, a truly
vindictive judge will be careful enough to leave no tracks
in the sentencing record as to the true basis of his decision.
Only in the most flagrant cases can vindictiveness be
demonstrated by the cold record. Thus, as a practical matter
it becomes almost impossible from the cold sentencing record
to isolate and identify vindictiveness as the impelling motive.
The record of review consists of only what the sentencing
court wants to supply for public consumption and the review
of the appellate court.
The inherent defects of this situation are not cured at
all by the performance of lawyers in presenting a case for
review, or by a review court in reviewing the case. As a
general rule, lawyers are most unwilling to venture into a
judicial political thicket with any kind of zeal, regardless
of the merits of the case. Nor are appellate judges willing
to undertake the kind of review that is needed. Indeed, an
appellate court has a distinct reluctance to categorize the
decision of the sentencing judge as vindictive, even though
the appellation may be abundantly deserved.
Place all these factors into the same judicial pot and
it is immediately apparent that effective appellate review
is institutionally impossible. There is, in this process, an
institutional bias or prejudice which cannot effectively handle
a fundamental problem such as this. The judiciary is, of
course, not the only institution which can be accused of
this interest in self preservation. At least in the limited
context of sentencing, the courts can recognize this inherent
-60-
institutional bias and the debilitating effect that it has
on the administration of justice. Having recognized it, an
appellate court can eliminate it by simply not permitting an
increase of punishment after a second trial. Only in this
way can the institutional bias of the judiciary be effectively
neutralized.
The United States Supreme Court has, of course, always
taken a special interest in constitutional issues which would
have a chilling effect on one's assertion of a constitutional
right. There is ample authority from cases decided by the
Supreme Court which indicate that it would look upon with a
dim view the chilling effect that the appellate process may pose
to one who has had the death penalty imposed as a result of having
successfully appealed his first conviction.
In Green v. United States (1957), 355 U.S. 184, 78 S.Ct.
221, 2 L.Ed.2d 199, defendant Green was charged with first
degree murder and was convicted of second degree murder. A

state court reversed the conviction, and upon retrial, Green
was convicted of first degree murder. In reversing the
conviction, the United States Supreme Court grounded its
decision on the double jeopardy clause, holding that at the
first trial the conviction of second degree murder carried
therein an implied acquittal of the higher charge of first
degree murder. By itself, the holding may not stand for too
much in the context of Fitzpatrick here facing the death
penalty the second time around. But the court, in deciding
the case, also rejected the government's argument that a
defendant, by appealing a conviction, must be willing to
take a gamble that he may be convicted of a greater crime
the second time around:
". . . the Government contends that [defendant]
must be willing to barter his constitutional
protection against a second prosecution for an
offense punishable by death as the price of a
 successful appeal from an erroneous conviction
of another offense for which he was sentenced to
five to twenty years' imprisonment. As the
Court of Appeals said in its first opinion in
this case, a defendant faced with such a 'choice'
takes a 'desparate change' in securing the
reversal of the erroneous conviction. The law
should not, and in our judgment does not, place
the defendant in such an incredible dilemma."
355 U.S. at 193, 78 S.Ct. at 226, 2 L.Ed.2d 207;
61 A.L.R.2d 1127.
Without question, the court concluded that the prospect
of a death penalty is too high a price to pay for the assertion
of a constitutional right.
In a different context, but with the same policy con-
sideration involved, the court decided Fay v. Noia (1963),
372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d'8-7 There, in opposing
the defendant's petition for a writ of habeas corpus on the
grounds that he had a chance to appeal many years ago and did
not do so, the government contended that the defendant had
waived his right to invoke habeas corpus. To this, the Supreme
Court answered:
.
". . For Noia to have appealed in 1942 would
have been to run a substantial risk of electro-
cution. His was the grisly choice of whether to
sit content with life imprisonment or to travel
the uncertain avenue of appeal which, if successful,
might well have led to a retrial and death sentence.
. .
. He declined to play Russian roulette in this
fashion.. . ."
372 U.S. at 439-40.
Admittedly, the issue of whether the death penalty
could be constitutionally imposed after a second trial and
conviction, was not directly before the Court. But the specter
of such a result is such that even the possibility is anathema
to our system of.justice. This is the essence of Fay.

This same policy consideration was expressed in Jackson
v. United States (1968), 390 U.S. 570, 88 S.Ct. 1209, 20
L.Ed.2d 138. There, the defendant challenged a provision of
the Federal Kidnapping Act, which provided for the death
penalty only "if the verdict of the jury shall so recommend."
The Court ruled that such provision "needlessly encourages"
waivers of jury trials or guilty pleas to avoid the
possibility of the death penalty. One could assert his
constitutional right of jury trial only at the risk of the
death penalty. This, the Court ruled, is an intolerable burden
on the exercise of a constitutional right. 390 U.S. at 585.
The possibility of a death penalty being the price one
must pay for securing a reversal of a conviction and a second
trial is, under any system of justice having fundamental
fairness as one of its basic tenets, intolerable. Had the
majority considered the implications of its decision and the
burden it placed on the availability of the appellate process,
I believe that this Court would never have had to decide
whether the sentencing court had properly applied Pearce.
What happened here, however, is even worse. Not only
has the majority failed to acknowled.ge the fundamental due
process issue underlying an increase of punishment to that of
death after the second trial, this omission has been compounded
by the majority's analysis of Pearce. In reaching its decision
that the sentencing court lawfully complied with Pearce in
increasing the punishment to that of death, the majority has
totally nullified the Pearce standards.
IV. IN IMPOSING THE DEATH PENALTY AFTER THE SECOND TRIAL,
THE SENTENCING COURT IGNORED THE STANDARDS SET FORTH IN
PEARCEj AND IN REVIEWING THE SENTENCE, THIS COURT HAS
OBLITERATED THE STANDARDS SET FORTH IN PEARCE.
I have already set forth the background of the federal
and state deckhswhich prompted the United States Supreme
Court to decide the case of Pearce, supra. Since the majority
has not done so, it perhaps would be useful to set out the
essential facts of Pearce and the rules promulgated by the
majority decision in Pearce.
-63-
 Pearce was one of three cases decided on essentially
the same point. Pearce was convicted of a crime and
successfully appealed this conviction to a higher court and
was granted a new trial. After his retrial, presided over
by a different judge, he was again convicted, but this time
he was given a greater punishment than after his first con-
viction. He contended this greater punishment violated the
double jeopardy and due process provisions of the United
States Constitution. The Supreme Court disagreed, holding
equal
that neither the double jeopardy nor /protection clauses are
violated by imposition of a greater punishment. However, in
so holding, the Supreme Court recognized the great potential
for evil that inheres in such a process and so adopted specific
standards which must be followed before the greater punishment
can be upheld. The Supreme Court expressly recognized that
without close scrutiny of such cases, the end result is that
a defendant is needlessly punished by exercising his right of
appeal.
The sentencing court and the majority opinion has
patently ignored the requirements of Pearce. Furthermore,
in seeking to justify its cancellation of the Pearce require-
ments in this State, the majority has patently misinterpreted
and misapplied three United States Supreme Court cases
decided after Pearce. Those cases are Colten v. Kentucky
(1972), 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584; Chaffin
v. Stynchcombe (1973), 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d
714; and Blackledge v. Perry (1974), 417 U.S. 21, 94 S.Ct.
2098, 40 L.Ed.2d 628. It apparently is the position of the
majority here that these three cases have effectively vitiated
the standards set forth in Pearce so that it is after only
eleven years of existence, no longer the law. To the contrary,
Pearce is alive and well, but unfortunately, ignored in this
State.
-64-
 It is true, as the majority states, Pearce is primarily
aimed at detecting vindictiveness in the imposition of a
higher punishment after a second trial. Thus the following
standards must be used whenever an increased punishment is
imposed after a second trial:
(1) The sentencing court must affirmatively
state on the face of the record, . i t s reasons
for imposing the higher penalty and set forth
the factual data supporting this decision.
(2) The factual data used to justify the
higher penalty must consist of specific,
identifiable conduct of the defendant occurring
after the time of the original sentencing
proceedings. 3 9 5 U.S. at 7 2 5 - 7 2 6 .

Unfortunately the sentencing court and this Court
somehow ignored the application of these standards to this
case. The three reasons announced by the sentencing court
and given the green light by this Court for increasing the
punishment to death are: (1) that defendant testified at
his second trial permitting an assessment of his character;
(2) that Christine Fetters gave considerable information
relating to defendant's activities in planning the crime and
in relation to his conduct after the commission of the crime;
and ( 3 ) that the constitutionality of the death penalty at the
first trial was in doubt, but now all doubts have been resolved.
None of these stated reasons comply with the Pearce standards.
A. THE DEATH PENALTY JUDGMENT ITSELF ADMITS NONCOMPLIANCE
WITH PEARCE.
In a footnote at page 9 of the death penalty judgment,
the sentencing court admitted its noncompliance with Pearce
and set forth its reasons for departing from the Pearce
standards:
"This increase in sentence from the 100 years
previously given admittedly raises a question
for -
- consideration upon review. ~ o2r F 2Carolina
h
v. Pearce, 3 9 5 U.S. 711, 8 9 S.Ct. 0 7 , allows
 for the imposition of a greater sentence
in the light of events subsequent to the
first trial that may throw some light upon
the defendant -- information may come
and such --
to - judge's attention from evidence adduced
- the
- - second trial itself, as well as other
at the
sources. At the same time, in requiring that
a more severe sentence must be accompanied by
a showing of the reasons for the incGease in-
severity, the reasons .. . ' must be based
upon the objective information concerning
identifiable conduct on the part of the defendant
occurring after the time of the original
sentencing proceeding.' (Emphasis added by
District Court.) The question then is whether
the judge can act only upon subsequently occurring
conduct or whether he can act upon new information
concerning past conduct which was not known to
the judge at the time of the prior sentencing.
I have interpreted the Pearce decision as being
aimed at preventing vindictiveness against a
defendant for having successfully attacked his
first conviction, and therefore have concluded
--
that the evidence necessary to justify a -
- more
severe sentence ----
can come fromnew information
about - defendant's conduct - - commission
the in the
-
of - crime, i.e. past conduct as well as from
the
new conduct occurring after the original proceeding.
Admittedly, there - - - - new conduct relevant
has been no
- Shea.)
to -
J.
that issue - - - case." (Emphasis added by
in this

By his own admission, the sentencing judge relied on
conduct of the defendant which preceded the first sentencing,
but chose to give Pearce his own special interpretation in
order that he could consider this information. This inter-
pretation flies in the face of the Pearce standards.
We thus have a situation where the sentencing court openly
admitted that it did not comply with Pearce but declared that
it really did not matter because it was not vindictive, and
that Pearce was aimed only at vindictiveness. At least, however,
the sentencing court did not attempt to rationalize its decision
by asserting that the United States Supreme Court had later
retreated from strict enforcement of the Pearce standards. It
simply ignored the Pearce standards. On the other hand, the
majority opinion has misinterpreted and misapplied three post-
Pearce cases and would have us believe that the United States
Supreme Court has already abandoned the standards set forth
in Pearce in 1969.
 Each of the cases cited and quoted by the majority
can be understood only in the peculiar circumstances
existing in each case. The United States Supreme Court did
not apply the Pearce standards in Colten v. Kentucky, supra,
and in Chaffin v. Stynchcombe, supra, because the legal
structure existing in the appellate process and later sen-
tencing process satisfied the Court that vindictiveness as
a factor in the imposition of a higher sentence, was
deminimis. On the other hand, contrary to the implications
of the majority opinion, in Blackledge v. Perry, supra, the
Supreme Court extended the Pearce standards by applying
them' to a prosecutor who was permitted by state law to
charge a defendant with a higher degree of crime if the
defendant appealed his conviction to a higher court. A
brief analysis of each of these cases is in order.
B. THE MAJORITY HAS MISINTERPRETED AND MISAPPLIED THREE
DECISIONS OF THE UNITED STATES SUPREME COURT.
In Colten v. Kentucky, supra, the situation involved
a two-tiered trial system. A defendant convicted at the
lower court and sentenced, had an absolute right to appeal
to the higher court and have his case tried again. The
lower court found defendant guilty and fined him $10; the
defendant appealed to the higher court; he was found guilty
after a trial de novo, and the fine was increased to $50.
He claimed that this was retaliatory sentencing and thus
prohibited by Pearce. The Supreme Court disagreed, holding
that the threat of vindictiveness was de minimis where
defendant was entitled to a complete retrial of the facts
without reference to what happened at the lower court or
to the fact of the appeal itself. Here, it was the system
itself upon which the Supreme Court focused, not on whether

there was actual vindictiveness demonstrated by the record.
-67-
Although I agree with Justice Marshall's dissent, it is
at once obvious that Colten v. Kentucky has no bearing on
the issue before this Court, for the instant case does not
involve a two-tiered system involving trial de novo. Nor
does this case involve an increase of a fine from $10 to
$50.
In Chaffin v. Stynchcombe, the jury set the punishment
after the first conviction, and a different jury set the
second punishment after the second conviction. The jury's
invo.lvement in the setting of the higher penalty rendered
de minimis the chance that the second jury imposed penalty
was the product of vindictiveness. The Supreme Court
specifically noted that it was conceded that the second jury
did not know the penalty which the first jury had imposed,
and that the second jury would "have no personal stake in
the prior convictions and no motivation to engage in self-
vindication." 422 U.S. at 27. This situation contrasts
starkly with the instant case. Here the second sentencing
judge had specific knowledge that the first judge had given
a I00 year sentence rather than impose the death penalty.
Furthermore, the second judge here would have no less
institutional interest than the first judge, in discouraging
or preventing what they considered to be nonmeritorious
appeals. A jury, on the other hand, does not have such
institutional interest in preserving the system.
Nor can the majority derive any support from Blackledge
v. Perry. Indeed, the Supreme Court extended the Pearce
it
rationale by applying/to a system which permitted the pro-
secutor to raise the ante if a defendant sought trial de novo
in a higher court. Defendant was convicted of a misdemeanor
and pursued his absolute statutory right of appeal and trial
de novo in a higher court. The law, however, permitted the
-68-
p r o s e c u t o r t o o b t a i n a n i n d i c t m e n t c h a r g i n g a more s e r i o u s

o f f e n s e , and t h e n t o p r o c e e d t o t r i a l o n l y on t h e more

s e r i o u s charge. The p r o s e c u t o r f i l e d a more s e r i o u s c h a r g e

a g a i n s t t h e d e f e n d a n t , and t h i s , t h e Supreme C o u r t h e l d ,

v i o l a t e d t h e P e a r c e s t a n d a r d s f o r it d i s c o u r a g e d c o n v i c t e d

misdemeanants from p u r s u i n g t h e i r s t a t u t o r y a p p e l l a t e r i g h t s

o f t r i a l d e novo. Concerning t h i s s t a t u t o r y scheme p e r m i t t i n g

t h e p r o s e c u t o r t o r a i s e t h e a n t e , t h e Supreme C o u r t s t a t e d :

"A p e r s o n c o n v i c t e d o f an o f f e n s e i s e n t i t l e d
t o pursue h i s s t a t u t o r y r i g h t t o a t r i a l de
novo, w i t h o u t a p p r e h e n s i o n t h a t t h e S t a t e w i l l
r e t a l i a t e by s u b s t i t u t i n g a more s e r i o u s c h a r g e
f o r t h e o r i g i n a l o n e , t h u s s u b j e c t i n g him t o
a s i g n i f i c a n t l y i n c r e a s e d p o t e n t i a l p e r i o d of
incarceration." 417 U.S. a t 28.

Thus, it i s p a t e n t l y clear t h a t t h e U n i t e d S t a t e s

Supreme C o u r t , i n d e t e r m i n i n g whether t h e s t a t u t o r y scheme

o r t h e a c t i o n o f t h e s e n t e n c i n g c o u r t would have a t e n d e n c y

t o c h i l l t h e r i g h t o f a p p e a l by t h r e a t of h i g h e r punishment

t h e second t i m e around, w i l l f o c u s on t h e s y s t e m i t s e l f

as w e l l a s t h e p a r t i c u l a r f a c t s . The C o u r t d o e s n o t r e q u i r e

t h a t a defendant demonstrate t h a t t h e sentencing c o u r t a c t e d

m a l i c i o u s l y o r i n bad f a i t h .

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

t h e a n t e from 100 y e a r s i n p r i s o n a f t e r t h e f i r s t t r i a l t o

t h a t o f d e a t h a f t e r t h e second t r i a l , s p e a k s f o r i t s e l f .

What i s even more c h i l l i n g i s t h e c l e a r , announced d e p a r t u r e

from P e a r c e on t h e p a r t o f t h e s e n t e n c i n g c o u r t a s w e l l as

t h e d e c i s i o n o f t h i s C o u r t i n f a i l i n g t o r e c o g n i z e t h a t even

t o k e n compliance w i t h P e a r c e d i d n o t e x i s t i n t h i s c a s e .

The r a t i o n a l e o f t h e m a j o r i t y i n c o n c l u d i n g t h a t somehow

Pearce d o e s n o t a p p l y , i s p a t e n t l y e r r o n e o u s . The m a j o r i t y

states:
" T h e r e f o r e w e c o n c l u d e t h a t Pearce d o e s n o t
a p p l y i n d e f e n d a n t ' s case b e c a u s e t h e D i s t r i c t
Judge w a s r e p l a c e d f o r t h e new t r i a l and
s e n t e n c i n g and h e s t a t e d h i s r e a s o n s f o r imposing
t h e d e a t h p e n a l t y on t h e s e c h a r g e s w i t h c l a r i t y . "
 The majority erroneously concludes that Pearce has no
application if a new judge presides over the second trial and
resentencing. But such is not the case at all. A reading

of Pearce does not disclose whether a new sentencing judge
presided over any of the three separate cases which were
decided, or whether it was the same judge in each instance.
But that is not the point of Pearce in any event. Indeed a
reading of the three post-Pearce Supreme Court cases cited
and misapplied by the majority, would lead one to believe that
a new judge presiding over the second trial'and sentencing
would require a strict Pearce application. Furthermore, each
of the three defendants involved in the Pearce decision received
increased jail or prison sentences. That is a far cry from the
defendant here, who was confronted with the horrible dilemma of
being faced with a potential death penalty after a second trial.
In Chaffin v. Stynchcombe, the.SupremeCourt referred to
the second jury which had set the increased punishment after
the second trial, as having "no personal stake in the prior
conviction and no motivation to engage in self-vindication."
412 U.S. at 27, 93 S.Ct. at 1983, 36 L.Ed.2d at 724. But the
majority here has twisted this statement around to apply tc
the second sentencing judge whose sentence is now under review
here. The United States Supreme Court was referring to a two-
tiered system of trials whereby the jury in the event of
conviction, also set the punishments. Indeed, in declaring that
the imposition of punishment by the jury insulated the decision
from the possible taint that would exist had it been a judge
who determined the second punishment, the Supreme Court
specifically noted that a jury has no institutional interest
in discouraging nonmeritorious appeals but a judge does have
such institutional interest. Indeed, under the rationale of
Chaffin, the fact that a judge here did impose the greater
punishment is sufficient to subject the sentencing to the
Pearce standards.
-70-
 The second r e a s o n why P e a r c e d o e s n o t a p p l y , a c c o r d i n g

t o t h e m a j o r i t y , i s t h a t " t h e s e n t e n c i n g judge s t a t e d h i s

r e a s o n s f o r imposing t h e d e a t h p e n a l t y on t h e s e c h a r g e s w i t h

clarity." I f a i l t o see how t h i s h a s a n y t h i n g a t a l l t o d o

w i t h whether o r n o t P e a r c e a p p l i e s . Assuming t h a t t h e r e a s o n s

f o r increased sentence w e r e s t a t e d with p a r t i c u l a r i t y , t h i s

f a c t does n o t e l i m i n a t e o u r review f u n c t i o n s under Pearce t o

d e t e r m i n e i f t h e r e a s o n s s t a t e d , r e g a r d l e s s of how c l e a r , are

legally sufficient. I n d e e d , an e x a m i n a t i o n of t h e r e a s o n s

g i v e n r e v e a l s t h a t b o t h t h e s e n t e n c i n g c o u r t and t h i s Court

have v i t i a t e d t h e P e a r c e s t a n d a r d s . Since t h e majority has

s e t f o r t h t h e r e a s o n s why t h e p e n a l t y was i n c r e a s e d , b u t h a s

n o t s t a t e d t h e underlying evidence i n support of t h e s t a t e d

r e a s o n s , I f e e l compelled t o do s o .

C. THE SENTENCING COURT AND THIS COURT HAVE NULLIFIED THE

STANDARDS SET FORTH I N PEARCE.

A s a starter, t h e sentencing c o u r t admitted w i t h i n t h e

body o f t h e judgment t h a t it had d e p a r t e d from t h e P e a r c e

s t a n d a r d s b u t i n t h e same b r e a t h announced t h a t i t was n o t

v i n d i c t i v e and t h e r e f o r e t h a t it s t i l l was complying w i t h

t h e s p i r i t of P e a r c e which w a s aimed a t weeding o u t v i n d i c t i v e

i n c r e a s e s i n punishment.

So t h a t t h e r e c o r d i s c l e a r , I a g a i n set o u t t h e m a j o r i t y ' s

s t a t e m e n t o f t h e r e a s o n s announced by t h e s e n t e n c i n g judge

i n j u s t i f i c a t i o n o f h i s i n c r e a s e i n punishment t o t h a t of

death:

" ( 1 ) The d e f e n d a n t t e s t i f i e d a t t h e second
t r i a l , a l l o w i n g f o r an a s s e s s m e n t of h i s
character.

" ( 2 ) C h r i s t i n e F e t t e r s , a w i t n e s s who d i d
not t e s t i f y a t t h e f i r s t t r i a l , yielded consider-
a b l e information concerning defendant's conduct
d u r i n g t h e p l a n n i n g and e x e c u t i o n o f t h e c r i m e ,
a s w e l l a s h i s a c t i o n s subsequent t o t h e
commission of t h e c r i m e .
 "(3) The constitutionality of the death
penalty provision for the crime of deliberate
homicide was no longer in doubt as it had
been when the first judge imposed the 100 year
prison sentence."
The only reason which conceivably could comply with
the Pearce standards, is the first reason stated, and as I
will later discuss, this so-called character assessment during
the second trial is fraught with danger.
Each of these stated reasons must be lined up with the
requirements set forth in Pearce that there be in the record,
objective conduct of the defendant occurring after the first
sentencing, and a clear statement of the sentencing court
of what objective conduct it used as a basis to conclude that
an increased punishment was justified. Pearce also set forth
the possible sources for obtaining this information:
.
". . events subsequent to the first trial
that may have thrown new light upon the
defendant's 'life, health, habits, conduct
and mental and moral propensities.' Williams
v. New York, 337 U.S. 241, 245. Such information
may come to the judge's attention from evidence
adduced at the second trial itself, from a new
presentence investigation, from the defendant's
prison record, or possibly from other sources."
Pearce, 395 U.S. at 723.
The following is what the sentencing court stated in
the record concerning the importance of and its reliance
upon the testimony of Christine Fetters:
". . . Also, an entirely new witness. Christine
Fetters, defendant's girlfriend during the
entire time from defendant's release from prison
on March 28th, 1975, to his arrest in Spokane,
Washington, on June 3rd, 1975, yielded information
concerning the conduct of the defendant during
the time period when the crimes here involved were
planned and executed, as well as during their
travelling subsequent to the commission of the
crimes.
"This included further and more definite affirma-
tion that it was the defendant, who, yielding -sua
sponte to his lack of regard for human life, fired
the fatal shots into Monte Dyckman's head, much
to the consternation of the other participants
to the crime who were upset at a robbery being
escalated into murder.
 "Also i n c l u d e d a r e t h e a c t i o n s o f t h e
d e f e n d a n t i n b u r y i n g t h e murder weapon used
a g a i n s t Dyckman and t h e r e a f t e r arming h i m s e l f
w i t h a n o t h e r handgun and c a r r y i n g it w i t h him
during t h e course of t h e i r c o n s t a n t t r a v e l l i n g
t o 'blow t h e i r way o u t , ' o r l a n g u a g e t o t h a t
e f f e c t , i n t h e e v e n t anyone s h o u l d s t o p them.

" F u r t h e r , t h e r e i s t h e e v i d e n c e of s u b t l y p h r a s e d
language i n a letter t o C h r i s t i n e F e t t e r s a f t e r
h i s a p p r e h e n s i o n , which l a n g u a g e c o u l d o n l y be
i n t e r p r e t e d as t h r e a t s a g a i n s t t h e l i v e s o f h e r
c h i l d r e n because of d e f e n d a n t ' s erroneous assumption
t h a t C h r i s t i n e F e t t e r s had been t h e c a u s e o f h i s
a r r e s t . " ( S e n t e n c i n g C o u r t ' s Judgment of Death a t
5-6.

Assuming t h a t t h e a c t i v i t y i t s e l f i s s u f f i c i e n t t o

j u s t i f y an i n c r e a s e of punishment from 100 y e a r s i n p r i s o n

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

a c t i v i t y took p l a c e b e f o r e t h e f i r s t s e n t e n c i n g . Pearce

r e q u i r e s t h a t i t be o b j e c t i v e c o n d u c t o f t h e d e f e n d a n t t h a t

has occurred a f t e r t h e f i r s t sentencing. 395 U.S. a t 726.

The s e n t e n c i n g c o u r t a t l e a s t acknowledged i t s f a i l u r e t o

comply w i t h P e a r c e i n t h i s r e g a r d . See Judgment a t 9 .

Eut t h e m a j o r i t y o p i n i o n h a s n o t even mentioned t h i s f a t a l

a c t o f noncompliance.

The second r e a s o n advanced f o r i n c r e a s i n g t h e punishment

t o d e a t h i s t h a t a t t h e second s e n t e n c i n g t h e c o n s t i t u t i o n a l i t y

o f t h e d e a t h p e n a l t y was no l o n g e r i n d o u b t , whereas a t t h e

f i r s t s e n t e n c i n g , d o u b t d i d e x i s t and t h i s may w e l l have

prompted t h e f i r s t s e n t e n c i n g judge n o t t o impose t h e d e a t h

penalty. I n r e l y i n g on t h e s e changes i n t h e law, t h e s e n t e n c i n g

court stated:

" F u r t h e r , i t i s a p p a r e n t from a r e v i e w of t h e
r e c o r d o f t h e p r i o r t r i a l t h a t c o n t e n t i o n s had
been a s s e r t e d t h a t t h e p e n a l t y p r o v i s i o n f o r
t h e c r i m e of d e l i b e r a t e homicide was con-
s t i t u t i o n a l l y d e f e c t i v e and t h e p r e s i d i n g judge
s e v e r a l t i m e s suggested t h a t he could avoid t h a t
c o n s t i t u t i o n a l q u e s t i o n s i m p l y by n o t imposing
t h e d e a t h p e n a l t y i n t h e e v e n t of a c o n v i c t i o n
o f such c h a r g e , and t h i s f e e l i n g o b v i o u s l y a t t e n d e d
t h e j u d g e ' s c o n s i d e r a t i o n s even up t o t h e t i m e o f
a c t u a l l y pronouncing s e n t e n c e , a s i s e v i d e n c e from
t h e copy o f t h a t p o r t i o n of t h e t r a n s c r i p t which i s
 attached hereto as Exhibit 'A' and 'A-1'.
Thus, the 100-year sentence was not arrived at
because of its appropriateness to the character-
istics of the defendant, but, rather, according
to the legal limitations the judge then felt were
in force. Changes in the law, nullifying the
prior constitutional concerns, have since been
accomplished and that fact, coupled with the new
and illuminating evidence appearing in the latest
trial bearing upon the life, health, habits, conduct
and mental and moral propensities of the defendant,
do constitute objective information concerning
identifiable conduct on the part of the defendant,
- its
and - emergence post-dates - - - - original
the time of the
sentence." Sentencing Court's Death Judgment at
6-7. (Emphasis added. )
The sentencing court did not s~ecifywhat changes in the
law it had reference to, but I can only conclude that it had
reference to the 1977 statutes under which it sentenced the
defendant to death, and conceivably, to the first McKenzie
case, supra, which was decided before the sentencing here and
which upheld the then existing statutory sentencing scheme
as it had been applied to a death penalty case.
A change in the status of the law cannot under any cir-
cumstances be considered as evidence of the defendant's conduct.
It is, rather,merely a comment on a sad chapter in the history
of death penalty litigation in this State. It is nothing less
than astonishing to think that a sentencing court would list
subsequent changes in the law as a reason for increasing the
punishment to death.
The remaining justification for the increase of punish-
ment to that of death, is that the sentencing court gleaned
the necessary information from its observation of the defendant
at the second trial, and particularly from its observation
of the defendant's testimony while he testified on his own
behalf. (Defendant did not testify at his first trial.)
Assuming, however, that character analysis of a defendant's
demeanor while testifying constitutes specific and identifiable
conduct with the Pearce standards, this Court has been provided
absolutely no record to review. The sentencing record is
devoid of any observations made or of character analysis
performed by the sentencing judge.
The sentencing judgment contains two scant references
to the fact that the sentencing judge, in reaching its
decision.to increase the punishment to death, considered
defendant's demeanor and testimony at his second trial. The
judgment does not tell us what observations were made or
conclusions reached.
In the preamble portion of the judgment there is a
brief reference to the sentencing court having considered
defendant's demeanor and testimony at the second trial:
.
". . and after observing the defendant's
demeanor during the trial and while testifying
on his own behalf, the Court now makes the
following findings, conclusions, judgment and
order:" Sentencing Court's Judgment at 2.
In one portion of the findings there is another brief
reference to the fact that the trial court considered
defendant's demeanor as a factor in his decision to increase
the punishment to the death penalty:
". .. Specifically, the defendant testified
at his own behalf during the present trial,
allowing for an assessment of the defendant
in all ways that viewing demeanor and the
manner and content of testimony can be
productive of insight into the character of
a witness." Sentencing Court's Judgment at
6.
The foregoing is the sum and substance of the character
analysis performed by the sentencing court upon the demeanor
and testimony of the defendant at his second trial.
What was so obnoxious or reprehensible about the
defendant's conduct at his second trial, or his testimony
at his second trial, that the sentencing court, in its
omniscience, could determine that the defendant must die?
The court may indeed have been possessed of the wisdom of
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Solomon in making its decision, but if it was so possessed,
it did not provide this Court with the benefit of such
wisdom by which we can conclude that the requirements of
Pearce had been satisfied.
Notwithstanding the failure to set forth the character
analysis for the record, character analysis is by its very
nature subjective, and thus cannot comply with the objective
standards of Pearce. Not every trial judge would view the
defendant's conduct at the second trial in the sareway, and
not every trial judge would view the defendant's testimony
in the same way. Pearce requires, on the other hand, that
the conduct of the defendant be specific and identifiable.
The subjective nature of character or demeanor analysis
prevents effective appellate review. The proceedings here
were not videotaped, nor even voice recorded. All we have
before us is the cold record of the trial and the cold record
of the sentencing hearing. These records are a totally
inadequate basis upon which the Court can begin to review a
character analysis. Indeed not even videotapes or voice
recordings would aid us in this task because the review
process itself, by the nature of the subject matter, would
be a subjective process. It is highly unlikely that each
member of this Court would make the same observations of the
defendant as did the sentencing court, and it is equally
as unlikely that each member of this Court would make the
same analysis as did the sentencing court. Review under
such circumstances is meaningless.
Use of character analysis such as used here, will,
moreover, have an absolutely chilling effect on the choice
of a defendant to take the witness stand at his second trial.
If a defendant knew that his mere presence at the second
trial, or his testimony at the second trial, would constitute
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an evidentiary basis under Pearce to permit an increase
of the punishment to death, the chances are that he
would not testify at all. He would be afraid to testify
in his own case for fear that the sentencing court would use
his testimony as the so-called objective conduct upon which
a death sentence could be predicated. This is the kind of
"grisly" choice that the United States Supreme Court has
condemned. United States v. Green, supra; Fay v. Noia,
supra; United States v. Jackson, supra.
V. SENTENCE REVIEW: A STATUTORY AGGRAVATING CIRCUMSTANCE
CANNOT BE APPLIED TO THE DELIBERATE HOMICIDE COMMITTED IN
THIS CASE.
The majority here has totally missed the main point
of sentence review as it applies to this case. It is a
rather simple matter to analyze a few cases involving the
death penalty and conclude that they are of no help to the
defendant. Section 46-18-310, MCA sets forth the duties
of this Court in regard to sentence review:
"The supreme court shall consider the punishment
as well as any errors enumerated by way of
appeal. With regard to the sentence, the court
shall determine:
"(1) whether the sentence of death was imposed
under the influence of passion, prejudice, or
any other arbitrary factor;
"(2) whether the evidence supports the judge's
finding of the existence or nonexistence of the
aggravating or mitigating circumstances enumerated
in 46-18-303 and 46-18-304; and
"(3) whether the sentence of death is excessive
or disproportionate to the penalty imposed in
similar cases, considering both the crime and
the defendant. The court shall include in its
decision a reference to those similar cases it
took into consideration."
It is clear to me that the death penalty for deliberate
homicide was imposed notwithstanding the clear failure to
establish an evidentiary basis for the existence of a
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statutory aggravating circumstance. This being so, I
conclude that the sentence imposed violated sections
46-18-310 (1) and (2), MCA.
All of the aggravating circumstances for either
homicide or kidnapping, are set forth in section 95-2206.8,
I

R.C.M. 1947, now section 46-18-303, MCA, which provides:
"Aggravating circumstances. Aggravating
circumstances are any of the following:
"(1) The offense was deliberate homicide and
was committed by a person serving a sentence
of imprisonment in the state prison.
"(2) The offense was deliberate homicide and
was committed by a defendant who had been
previously convicted of another deliberate
homicide.
"(3) The offense was deliberate homicide and
was committed by means of torture.

"(4) -
The offense was deliberate homicide and
-
was committed - - person lying - - - or
by a in wait
ambush.
"(5) The offense was deliberate homicide and
was committed as a part of a scheme or operation,
which, if completed, would result in the death
of more than one person.
"(6) The offense was deliberate homicide as
defined in subsection (1) (a) of 45-1-102, and
the victim was a peace officer killed while
performing his duty.
"(7) The offense was aggravated kidnapping which
resulted in the death of the victim." (Emphasis
added. )
Section 95-2206.10, R.C.M. 1947, now section
g;-18-305,
g
MCA, provides, inter alia, that before the death penalty
can be imposed, at least one or more of the statutory
aggravating circumstances must be found to exist. Thus,
before the sentenoing court could impose the death penalty
for deliberate homicide, it was required to find at least
one statutory aggravating circumstance. It found the
aggravating circumstance to exist under subsection (4) which
provides "the offense was deliberate homicide and was
committed - -a person - - - -
by lying in wait or ambush." (Emphasis

added. )
 The v i t a l q u e s t i o n i s , o f c o u r s e , whether d e f e n d a n t

committed t h e homicide w h i l e " l y i n g i n w a i t o r ambush."

The s e n t e n c i n g c o u r t found t h a t h e d i d ; b u t i t s own f i n d i n g s

b e l i e t h i s conclusion. An a n a l y s i s o f t h e e v i d e n c e and o f

the sentencing c o u r t ' s findings c l e a r l y e s t a b l i s h e s t h a t

d e f e n d a n t was n o t l y i n g i n w a i t o r ambush a t t h e t i m e h e

k i l l e d Monte Dyckman. Indeed, t h e f i n d i n g t h a t d e f e n d a n t

w a s l y i n g i n w a i t o r ambush d o e s n o t r e l a t e a t a l l t o t h e

a c t u a l homicide. Rather, t h e finding describes defendant

a s " l y i n g i n w a i t o r ambush" a t t h e bank, w a i t i n g f o r t h e

p e r s o n t o a r r i v e from t h e Safeway S t o r e w i t h t h e r e c e i p t s

from t h e d a y ' s b u s i n e s s .

F o l l o w i n g are t h e f i n d i n g s s e t f o r t h i n t h e judgment

with regard t o t h e s t a t u t o r y phrase ". . . lying i n wait

o r ambush":

"That on t h e 5 t h day of A p r i l , 1975, b e i n g o n l y
e i q h t d a y s a f t e r h i s release from t h e Montana
state p r i s o n , t h e d e f e n d a n t w a s l y i n g - - i t
i n wa
-
o r ambush a t t h e Big Horn D r i v e - i n Bank o f
Hardin, Montana, f o r t h e a r r i v a l of an employee
o f t h e Hardin Safeway S t o r e c a r r y i n g t h e s t o r e
r e c e i p t s f o r d e p o s i t i n t h e bank. The c o u r i e r
on t h a t n i g h t was a young man, Monte Dyckman, who
o c c u p i e d t h e p o s i t i o n of a s s i s t a n t manager a t
Safeway. Upon h i s a r r i v a l a t t h e d r i v e - i n bank,
Dyckman was robbed by t h e d e f e n d a n t and t h e n
a b d u c t e d i n h i s own a u t o m o b i l e , h i s hands b e i n g
bound b e h i n d h i s back and h e w a s t a k e n by t h e
d e f e n d a n t t o t h e Toluca I n t e r c h a n g e a p p r o x i m a t e l y
12 m i l e s w e s t o f Hardin where, i n a s e c l u d e d s p o t
b e h i n d a p i l e of g r a v e l , t h e d e f e n d a n t s h o t him
t w i c e i n t h e head w i t h a .45 c a l i b e r semi-automatic
p i s t o l , causing instantaneous death. That such
death w a s t h e proximate r e s u l t of robbery p l a n s
i n i t i a t e d s e v e r a l days e a r l i e r . . . ." Judgment
a t 2. (Emphasis added by s e n t e n c i n g c o u r t . )

Having t h u s f o u n d . t h a t d e f e n d a n t was " l y i n g i n w a i t

o r ambush" a t t h e bank w h i l e w a i t i n g f o r t h e p e r s o n t o

show up w i t h t h e d a y ' s r e c e i p t s from t h e Safeway S t o r e ,

t h e c o u r t t h e n d e t e r m i n e d t h a t t h i s f i t w i t h i n t h e meaning

of t h e a g g r a v a t e d c i r c u m s t a n c e f o r d e l i b e r a t e h o m i c i d e ,
that is, that the homicide was "committed by a person
lying in wait or ambush." There is nothing from the
factual recitation in the judgment however, from which
one can even conclude that the intent of defendant to
kill Monte Dyckman preexisted or arose while he was waiting
at the bank. Indeed, the remaining findings of the sentencing
court clearly establish that defendant's decision to kill
Monte Dyckman was a spur of the moment decision which
occurred some time later and several miles away from the
bank.
In reciting what information he had obtained at the
second trial concerning the circumstances of the commission
of the crimes, the sentencing court offered the following
analysis or findings:
.
". . Also, an entirely new witness, Christine
Fetters, defendant's girlfriend during the
entire time from defendant's release from
prison on March 28th, 1975, to his arrest in
Spokane, Washington, on June 3rd, 1975, yielded
information concerning the conduct of the defendant
during the time period when the crimes here involved
were planned and executed, as well as during
their travelling subsequent to the commission of
the crimes. This included further and more definite
affirmation that it was the defendant, who, yielding
sua sponte to his lack of disregard for human life,
fired the fatal shots into Monte Dyckman's head,
much to the consternation of the other participants
to the crime who were upset at the robbery being
escalated into murder." Judgment at 6-7. (Emphasis by
sentencing court.
Thus the sentencing court's own findings clearly
foreclose any determination that the deliberate homicide
was committed while "lying in wait or ambush." The
court found that the defendant's decision to kill Monte
Dyckman was a "sua sponte" decision, and that all those
involved believed that robbery was the only objective.
The obvious gravamen of subsection (4) is that the
legislature considers a homicide to be more serious if
the perpetrator was "lying in wait or ambush" at the time
the deadly act was unleashed against the victim. But here,
however despicable the crime committed, it does not
fall within the statutory aggravating circumstances of
subsection (4). The defendant was not lying in wait or
ambush for Monte Dyckman when he killed him.
It has always been my understanding that penal laws
are to be strictly construed against the State. There is
no more compelling reason to do so than where the death
penalty is the potential punishment. But rather than
strictly construing these laws against the State, the
majority here has liberally construed them in favor of the
State in order to justify the imposition of the death
penalty.
Defense counsel did not raise the issue of the non-
existence of a statutory aggravating circumstance which
thus prevents the imposition of the death penalty. Why
he did not do so I do not know. But regardless of whether
he raised the issue, this Court has the clear duty under
section 46-18-309(2), supra, to determine "the existence or
nonexistence of the aggravating . . . circumstances" enumerated
in the statute. Furthermore, even without this statute, we
owe this duty to any defendant who has been sentenced to
death.
This duty of review exists regardless of whether defense

counsel has done so. Furthermore, especially in a death
penalty case, it is the duty of the State, and particularly
the Attorney General's Office, to carefully review the
record to determine whether there has been compliance with
the statutes. If there has not been compliance, it is the
duty of the State to so inform this Court. Obviously, the
State here either failed to adequately review the record,
or, if it did so, and found the defect, the State has deviated
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from the standards of ethical practice by not bringing
this fact to the Court's attention.
We have here a situation where the sentencing court
retroactively applied the 1977 death penalty statutes, and
by so doing, it was able to sentence defendant to death
for the crime of aggravated kidnapping. It used the same
statutes, moreover, in sentencing defendant to death for the
crime of deliberate homicide. Although the majority has
approved of this retroactive application, it is nonetheless
clear that the sentencing court was not and could not be
fair to defendant at the sentencing hearing and in the
process of reaching its decision to impose the death penalty
for both convictions.
When the sentencing court sentenced defendant to death
for the crime of deliberate homicide, there can be no doubt
that it violated North Carolina v. Pearce standards set
forth by the United States Supreme Court. Indeed, the
sentencing court admitted that it did not comply with the
mandates of Pearce, but it sought in its decision to justify
the noncompliance by its wholly subjective determination
that it was not vindictive and thus that it complied at
least with the spirit of Pearce. Furthermore, there can be
no doubt that a statutory aggravating circumstance did not
exist as a necessary prerequisite to permit the imposition
of the death penalty for the crime of deliberate homicide.
Indeed, the twisted and tortured application of the aggravating
circumstances statute to the facts of the deliberate homicide
here, is clear evidence of the bias with which the sentencing
court approached its duties of presiding over the sentencing
hearing and reaching a sentencing decision. By ignoring

the mandates of Pearce, and by ignoring the facts in applying
the statutory aggravating circumstance statute, the sentencing
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court not only poisoned the deliberate homicide death
sentence, it poisoned its entire decision. It is difficult
to rationalize and uphold a death penalty for aggravated
kidnapping, where, in the same process, the sentencing court
was so blatantly in error in reaching its decision to impose
the death penalty for deliberate homicide.
Regardless of whether the death penalty may be a
permissible form of punishment, a fair interpretation of
those laws does not give this Court or any court the license
to so loosely interpret them to the extent that a sentencing
court can interpret them with virtual impunity. Perhaps this
is one of the real dangers of the death penalty hysteria;
the courts too, are swept along in the process.
For all of the foregoing reasons, I would set aside
the death penalties imposed and remand for resentencing
with instructions that the death penalty is not to be
considered in this case.