                       No. 81-110
       IN THE SUPREME COURT OF THE STATE OF MONTANA
                          1981


DUNCAN PEDER McKENZIE, JR.,
                                 Petitioner and Appellant,
        VS.

GLENN OSBORNE, Sheriff of
Cascade County, Montana,
JAMES BLODGETT, Acting Warden,
Montana State Prison et al.,
                                 Respondent.


Appeal from:    District Court of the Eighth Judicial ~istrict,
                In and for the County of Cascade.
                Honorable H. William Coder, Judge presiding.
Counsel of Record:
    For Appellant:
        Barney Reagan argued, Cut Bank, Montana
        Charles L. Jacobson, Conrad, Montana
        Timothy K. Ford, Seattle, Washington
        John C. Boger, New York, New York
    For Respondent:
        Hon. Mike Gzeely, Attorney General, argued, and
         Chris Tweeten, Assistant Attorney General, argued,
          Helena, Montana
        Douglas L. Anderson, County Attorney, Conrad, Montana


                           Submitted:    June 8, 1981
                              Decided: October 29, 1981
~iled:OCT   2 9 198f

                   p.*7          Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.

     Appeal from an order of the District Court, Eighth
Judicial District, Cascade County, denying the petition of
Duncan Peder McKenzie, Jr. for relief under section 46-21-
101, et seq., MCA (post-conviction relief) and section 46-
22-101, et seq., MCA (habeas corpus)   .
     Defendant Duncan Peder McKenzie, Jr. was convicted of
the crimes of deliberate homicide and aggravated kidnapping
by jury verdict in the District Court of Cascade County and
thereafter was sentenced to death.   The convictions and
sentence were affirmed on appeal by this Court.   State v.
McKenzie (1977),

171 Mont. 278

557 P.2d 1023

 (hereafter
McKenzie -
         I).
     Thereafter, the United States Supreme Court granted
certiorari, vacated this court's judgment and remanded the
cause to us for further consideration in light of Patterson
v. New York (1977),

432 U.S. 197

97 S. Ct. 2319

, 53 L.Ed.2d


     On remand to this Court, we gave consideration to the
entire case, saying:
     "We have reconsidered the entire case, not
     only in the light of Patterson, but aiso on
     all issues raised in the original appeal to
                        -
     this Court. This opinion constitutes this
     Court's judgment in the entire case following
     remand." State v. McKenzie (1978),

177 Mont. 280

, 288,

581 P.2d 1205

, 1210 (McKenzie
     11).
     -
     Following our affirmance of the conviction and sentence
in McKenzie - the defendant sought relief under the Sentence
            11,

Review Division of this Court, under the provisions of section
46-18-901, et seq., MCA.   His petition for review there was denied.
His attempted appeal of that decision to this Court was also
denied, since no appeal is provided in our statutes from
decisions of the Sentence Review Division.
     Defendant again petitioned for certiorari to the United
States Supreme Court, and it was granted.       The case was
again remanded to us for further consideration in the light
of the United States Supreme Court decision in Sandstrorn v.
Montana   (1979),

442 U.S. 510

99 S. Ct. 2450

61 L. Ed. 2d 39

.
The remand citation is McKenzie v. Montana (1979),

443 U.S. 903

99 S. Ct. 3094

61 L. Ed. 2d 871

.
     When the case came to us on the second remand, this
Court again gave full consideration to the case, again
saying:
     "We have reconsidered the entire case, not only
     in the light of Patterson and Sandstrom, but also
     on all issues raised in the original appeal. This
     opinion constitutes this Court's judgment in the
     entire case following remand."

608 P.2d 428

, 436,
     37 St.Rep. 325, 328.
     The report of our third consideration is in State v.
McKenzie (1980), - Mont.          ,

608 P.2d 428

, 37 St.Rep.
    (hereafter McKenzie -
                        111).
     Following McKenzie 111, defendant again sought certiorari
from the United States Supreme Court, but his petition was
denied.   McKenzie v. Montana (1980), - U.S.            ,

101 S. Ct. 626

66 L. Ed. 2d 507

 (Justices Marshall and Brennan
dissenting).
     Having thus exhausted the appellate process, McKenzie
on January 5, 1981, filed in the District Court of the
Eighth Judicial District, his petition for post-conviction
relief or habeas corpus.   That is the petition with which we
are now concerned.   It is from the denial of that petition
that we now enter upon McKenzie -
                                IV.
     Counting the defendant, there are presently in Montana
three persons facing the sentence of death following their
criminal convictions by juries.       All three cases have been
before this Court on appeals from denials of post-conviction
relief in recent months.   Coleman v. Montana (1981),
Mont   .             ,
          - P.2d - 38 St-Rep. 1352, and Fitzpatrick v.
           I



Montana (1981), -Mont.                ,
                         - P.2d - 38 St.Rep.
                             -I


1448 (Fitzpatrick - have already preceded this opinion.
                  1111,
In the two other cases, some identical issues have been
decided.       We will rely on and refer to them to some extent
in this opinion, where the discussions are pertinent.
       One of the issues that has arisen in all three cases,
and the first issue we come to here, is the extent of review
to which the defendant is entitled under post-conviction
relief on matters that have been raised and litigated in the
course of the appellate process.
       We state that the extent of review is the first issue,
although in the briefs of both McKenzie and the State, the
first question raised is whether this Court has jurisdiction
of an appeal from a decision of the District Court in a
post-conviction relief case, under section 46-21-101, et
seq., MCA.      Both parties concede that either party has a
right to appeal from a district court order entered on such
a petition under section 46-21-203, MCA.      We agree that an
appeal lies in this case.
       With respect to the extent of our review, and indeed of
the review of the District Court, McKenzie contends in this
case that the ~istrictCourt erred in refusing to review
issues raised by McKenzie in his petition, by holding that
the previous decisions of this Court in the McKenzie cases
raised a "res judicata bar" and "that issues previously
considered on direct appeal are not appropriately raised in
this petition."      McKenzie contends that the misapplication
by the District Court of res judicata principles to the
post-conviction action affected the entirety of the District
Court's decision and for that reason should be reversed.
       The State responds that McKenzie is relying on dicta
found in earlier cases in this Court and the true rule is
that this Court will refuse to reconsider issues on which it
has previously ruled; that the Post-Conviction Relief Act is
intended only to assure that a convicted felon has an
opportunity, one opportunity, to present material issues
affecting his conviction.
       In the most recent Coleman case, supra, 38 St.Rep. at
1359, this Court held that res judicata cannot be applied to
deprive a convicted defendant of his right to file a post-
conviction petition, but the rule may be used to bar the
rehearing of issues already litigated, citing Sanders v.
United States (1963),

373 U.S. 1

83 S. Ct. 1068

10 L. Ed. 2d 148

.   Again, in the most recent Fitzpatrick case, this Court
noted that the District Court had granted the State's motion
to dismiss six of Fitzpatrick's claims on the ground that
the claims had been previously decided on the merits and
were res judicata.    In Fitzpatrick, 38 St.Rep. at 1451, this
Court held that the decision of the district judge not to
review previously litigated issues would not be disturbed
absent a clear showing of abuse of discretion, again relying
on Sanders, supra.
       McKenzie relies here upon dicta contained in State v.
Standley (1981), - Mont     .     ,

626 P.2d 248

, 38 St.Rep.
522, and In Re McNair (1980),          Mont   .   ,

615 P.2d 916

,
37 St.Rep. 1487.     In those cases, we stated that a petition
for post-conviction relief under section 46-21-102, MCA, is
not subject to objections based on res judicata, laches, or
the statutes of limitation.     Nonetheless, in those two
cases, post-conviction relief was denied, in McNair for a
delay of 8 1/2 years in asking for the relief, and in Standley
for a delay of 25 years. In McNair, we said such a delay
raised the question of good faith on the part of the petitioner
and in Standley, we pointed out the impracticability of
retrial of Standley if his original plea of guilty were
allowed to be withdrawn.
     Nonetheless, in Spurlock v. Crist (1980),        Mont   .
    ,

614 P.2d 498

, 501, 37 St.Rep. 1146, 1149, we refused
to consider in a habeas corpus proceedings in this Court
issues that had been previously argued and decided on
appeal.    In In Re Quigg (1976),

168 Mont. 512

544 P.2d 441

,
cert.denied

425 U.S. 994

96 S. Ct. 2207

48 L. Ed. 2d 818

on a netition for post-conviction relief, we.refused
to consider issues previously ruled on in the appeal.
     The seeming double-mindedness of our stances on this
point is more illusory than real.    We cannot fault counsel
for the defendants, whose duties are to explore every nuance
of legal defense on the part of their clients, consonant
with ethics and the proprieties of law, in raising such
issues.   It should be clear, however, that the broad statements
made in McNair and Standley, supra, are not to be followed
here. To be clear about it, we do not reject our statements
in Standley and McNair, supra, that res judicata, laches and
statutes of limitations are not a bar to post-conviction
relief, or to habeas corpus, in a proper case.    We do say
that the concept of finality, when the appellate process has
been exhausted, or the judgments of conviction have become
final, must be respected as to issues which have been fully
and finally litigated.     Neither the district courts nor we
are required to turn over ground already plowed, even in
death penalty cases.   Successive motions and petitions
directed again and again to the same issues serve no judicial,
social or individual purpose.
     The problem of post-conviction relief as affected by
the finality of judgments has not escaped the attention of
the American Bar Association in its Standards for Criminal
Justice (2d ed.).        It has adopted a standard that deals with
post-conviction applications in the same judicial system
that conducted the original prosecution, as for example,a
state prisoner seeking post-conviction relief in the state
courts. Standard 22-6.1., ABA Standards for Criminal Justice
(2d ed. )   . We   adopt from that standard, as rules to be followed
by district courts in this and like cases, and by us for
decision in this case, the following:
     (A) Any issue that has been fully and finally
     litigated in the proceedings leading to the
     judgment of the conviction should not be relitigated
     in post-conviction proceedings.
     (B) An issue should be deemed fully and finally
     litigated when the highest court of the state to which
     a defendant could appeal his right has ruled on the
     merits of the question.
     (C) Finality, when raised and shown by objection or
     affirmative defense on the part of the state is a
     bar to the relitigation of fully and finally litigated
     issues.
     We will further follow the same ABA Standard by deter-
mining that claims advanced in post-conviction applications
shall be decided on their merits, even though they might
have been, but were not fully and finally litigated in the
proceedings leading to judgments of conviction, unless
barred because of abuse of process.       Abuse of process occurs
where an applicant raises in post-conviction proceedings a
factual or legal contention which the petitioner deliberately
or inexcusably failed to raise in the proceedings leading
to conviction, or having raised the contention in the court,
failed to pursue the matter on appeal.        (ABA Standards for
Criminal Justice (2d ed.) Standard 22-6.1.)       Having stated
those rules, which we consider were implicit in our former
rulings, it is clear that this Court should not and will not
consider previously-litigated issues in this appeal and that
we will sustain the District Court for refusing to consider
fully and finally litigated issues in the post-conviction
proceedings before it.    See our discussion on this point in
Fitzpatrick - 38 St-Rep. at 1450-51.
            111,

     Having so determined, we proceed to examine the issues
raised in McKenzie's petition for post-conviction relief.
It will be noted that some of the issues have been considered
by this Court not once but two and three times.    In all the
annals of criminal justice in this state, we find no case in
which a single defendant has received more tender legal care
(using "tender" in the sense of careful and sensitive
handling).
     I.   Search and Seizure
     Petitioner contends that the District Court, in con-

sidering his application for post-conviction relief, did not
address his factual allegations respecting:    (1) unwritten
sworn testimony purporting to support the issuance of search
warrants; ( 2 ) the overbreadth or lack of specificity in the
search warrant; and, ( 3 ) lack of probable cause for issuing
the search warrants, and on those bases, contends he should
have a hearing.    The District Court refused to consider the
issues further because of earlier decisions by this Court.
     First we note that at the District Court level, in the
criminal proceedings against him, defendant was granted a
hearing on his motion to suppress the evidence produced by
the search warrants and the order of suppression was denied.
That denial of suppression was before this Court at all
times when the McKenzie cases were being considered.    We
further note:     (a) issue no. 1 under this heading was
considered, fully litigated and decided by this Court in
McKenzie I, 557 P.2d at 1034, 1035; McKenzie - 581 P.2d at i211,
                                             11,
1212; and McKenzie -

608 P.2d

at 437.
                   111,                      (b) issue no. 2
above was considered, fully litigated and decided by this
Court in McKenzie - 557 P.2d at 1035; McKenzie -

581 P.2d I

,                           11,
at 1212, 1213; McKenzie 111,

608 P.2d

at 438.     (c) issue no.
3 above was considered, fully litigated and decided by this
Court in McKenzie - 557 P.2d at 1034; McKenzie -

581 P.2d I

,                           11,
at 1212; and McKenzie 111,

608 P.2d

at 437, 438, 439.
     The claims of the petitioner with respect to the search
and seizure category have been fully and finally decided on
the merits.    The District Court was correct in refusing to
grant further hearings relating to those issues.    We will
not consider the issues further because of the finality of
those earlier decisions.
     The District Court noted in its order denying post-
conviction relief that counsel for the petitioner had conceded
at oral argument that further factual development was not
required.     Based on this concession, and the voluminous
record in this case exploring these issues, the District
Court found no denial of a full and fair hearing with respect
to search and seizure.    We agree.
     11.    Mental Defect--Trial Bifurcation--Instructions
     In his application t~ the District Court, petitioner
claims unconstitutional error against him in (1) the trial
court's refusal to grant a bifurcated trial on the issue of
his insanity/diminished mental capacity to commit the crime;
(2) in refusing to appoint psychiatric experts to assist
defense counsel and to testify for the defendant unless he
submitted to an interview with an expert appointed by the
court and unless reports of the interview by the experts
were submitted to the court before the testimony was presented;
and (3) in admitting the testimony of the prosecution's
psychiatric expert relating to petitioner's exercise of his
Fifth Amendment rights to remain silent in such interview.
Petitioner's brief in this Court expands those allegations
to argue further (4) it was error for this Court to rely on
instructions given to the jury to cure the alleged error in
permitting the prosecution's psychiatric expert to testify
that defendant had remained silent.
     (a) The petitioner offers no authority under our law
that a defendant as a matter of constitutional law is
entitled to a separate jury trial on the issue of insanity
or diminished mental capacity to commit the crime charged.
Section 95-507(c), R.C.M. 1947, in effect at the time of
petitioner's trial (now section 46-14-213(1), MCA), contemplates
the issue to be decided "upon the trial."   This Court held
in State v. Olsen (1971),

156 Mont. 339

, 343,

480 P.2d 822

,
824, that a defendant who gives notice of insanity as a
defense is not entitled to a bifurcated trial.   We hold the
same rule applicable to a defense of mental disease or
defect.
     (b) With respect to issue no. 2 in the above heading,
there is a division of authority as to the right of an
accused to expert investigation and psychiatric help under
his Sixth Amendment rights, but the Ninth Circuit has held
refusal of expert help does not violate due process through
the Sixth and Fourteenth Amendments in state proceedings
absent a showing of prejudice.    Mason v. State of Arizona
(9th Cir. 1974),

504 F.2d 1345

.    Here, petitioner has not
alleged or shown any prejudice that resulted to him from
the denial by the District Court in the criminal proceedings
of the motion to appoint psychiatrists to aid counsel in the
defense.
         (c)   Under section 95-507, R.C.M.   1947, then in effect,
(now section 46-14-213, MCA), it is provided that upon
trial, any psychiatrist who reported under section 95-505,
R.C.M.     1947, (now sections 46-14-202 and 46-14-203, MCA) may
be called by either party.       The statute provides that the
jury may not be informed that the psychiatrist was designated
by the court or by the superintendent of Warm Springs Hospital.
In addition, both the prosecution and the defense may summon
any other qualified psychiatrist to testify who has examined
the defendant.       In this case, during the criminal proceedings,
when the court ordered the psychiatric interview, counsel
for the defendant stated in open court that the defendant
would exercise his right to remain silent as to any questions
relating to the Lana Harding homicide.         His silence was
testified to by psychiatrists at the time of their appearances
in court.
     The District Court, in discussing this issue, in the
application for post-conviction relief, noted that the
psychiatric witnesses drew no inference as to guilt or
innocence, nor did they suggest such inference to the jury.
The court noted that one of the psychiatric witnesses
testified that since the petitioner would shed no light on
the incident, he presumed the petitioner innocent.        The
District Court also pointed out that during the petitioner's
trial, in court's instruction no. 43, the jury was told that
it was to draw no unfavorable inferences from the petitioner's
silence.       "In short,' said the District Court, "nothing in
the record shows that the State exploited the psychiatric
testimony so as to burden the petitioner's Fifth Amendment
right to remain silent."       We agree and find no prejudice.
                                 -11-
     (d) In connection with issue no. 4 in the above heading,
it was not error for the District Court to require the
defendant to submit to a psychiatric interview in this case.
Under section 95-505, R.C.M. 1947, then in effect, (now
section 46-14-202, MCA) it is provided that the court may
order such an examination when a defendant has filed a
notice of intention to rely on the defense of mental disease
or defect excluding responsibility, or if there is reason to
doubt his fitness to proceed, or if there is reason to
believe that mental disease or defect of the defendant will
otherwise become an issue in the cause. In those circum-
stances, a court may order a psychiatric examination and, as
the District Court noted, we stated in State ex rel. Sikora
v. District Ct. of 13th Jud. Dist. (1969),

154 Mont. 241

,
245,

462 P.2d 897

, 899, that the constitution does not
"assure (a defendant) a right to so defend as to deny the
state a chance to check into the truth of his position."
     (e) Further, with respect to issue no. 4 under this
heading, whether it is error to rely on the general jury
instructions to offset the effect of the psychiatrists
testimony that the defendant remained silent during his
examination, and the further contention that it is not
sufficient to rely on such general instructions because
there is an implied admission of guilt when a defendant
relies on insanity/diminished mental capacity, in McKenzie

-

608 P.2d 455

, 456, 457, this Court discussed fully the
111,

careful instructions given by the District Court in the
criminal proceedings.   We have already noted that the
District Court specifically informed the jury that no
inference was to be drawn from the defendant's remaining
silent during a psychiatric interview.   We therefore confirm
the holding of the District Court with respect to the
issues raised under this heading on petitioner's application
for post-conviction relief.
     Before leaving this set of issues, however, we point
out that in McKenzie - 557 P.2d at 1041, 1042, 1043, and
                     I,
again in McKenzie - 581 P.2d at 1215, this Court answered
                  11,
the petitioner's attacks on the constitutionality of our
statutes relating to the notice required when a defendant
intends to rely on an insanity/diminished mental capacity
defense, and the procedures to be followed thereunder.
     111.   Admitted Exhibits--Conduct of Trial
     Petitioner's application for post-conviction relief
also contended that he was denied constitutional rights in

(1) the admission by the court into evidence in the criminal
proceedings of inflammatory photographs of the victim, ( 2 )
in the District Court's changing of the order of trial and
refusal to hold subpoenaed witnesses until the defendant's
case in chief, (3) in permitting spectators to use recording
devices in the courtroom, (4) in allowing an inflammatory
and circus-like atmosphere to exist in the courtroom, and

(5) in allowing family and friends of the victim to make
emotional expressions toward the petitioner in the presence
of the jury.
     (a) The contention with respect to inflammatory
photographs was considered, fully litigated and decided by
this Court in McKenzie 11, 581 P.2d at 1218, and in McKenzie


     (b) This Court found no error in allowing FBI agents
to give expert opinion testimony prior to the completion of
the chain of evidence upon which the opinion was based, in
McKenzie - 581 P.2d at 1219, and in McKenzie 111, 608
         11,                                                   '
P.2d at 444.     Petitioner's contention that the trial court
in the criminal proceedings erred in failing to hold FBI
agents for the duration of the trial was treated in McKenzie

-

608 P.2d 111

,              at    446,   447.   These issues have therefore
been considered, fully litigated and decided.
     (c) The tape-recording issue was considered, fully
litigated and decided in McKenzie - 557 P.2d at 1037;
                                  I,
McKenzie - 581 P.2d at 1124, 1125, and McKenzie 111, 608
         11,
P.2d.at 446.
     (d and e)   With respect to petitioner's contentions
that a circus-like atmosphere prevailed in the criminal
trial proceedings, and that the members of the family were
allowed to give expression to emotional feelings and comments
in the presence of the jury, we need only say there is no
record in all the voluminous transcripts here to support
those contentions, nor was a single.objectionadvanced by
the petitioner's counsel in the criminal proceedings on
those points.    The District Court, in considering the
application for post-conviction relief, pointed out that the
jury had been instructed to decide the case solely upon the
evidence, without regard to sentiment, conjecture, sympathy
or compassion, and nothing in the record discloses the jury
failed to follow that instruction due to the conduct of the
trial spectators.      We find no error therefore, on these
points raised without support in the record.
     IV.   Sandstrom Instructions
     The petitioner contends that he was denied due process
in that (1) the trial court's instructions to the jury
directed the jury to find elements of the offenses charged
by the use of "presumptions" and "inferences" which shifted
the burden of persuasion to the defendant and allowed the
jury to adopt inferences which did not follow beyond a
reasonable doubt from the facts on which they were based;
(2) that the instructions contained numerous erroneous
examples which (3) were designed to lead the jury to the
inescapable conclusion of petitioner's guilt.       In brief,
petitioner contends that he has been treated inconsistently
with our decision in State v. Wogamon (1980), - Mon t      .
    ,

610 P.2d 1161

, 1165, 37 St.Rep. 840, 846.
        (a) In McKenzie 111,

608 P.2d

at 456, et seq., this
Court fully reviewed petitioner's contentions that his
conviction and sentence should be set aside in the light of
Sandstrom v. Montana (1979),

442 U.S. 510

99 S. Ct. 2450

61 L. Ed. 2d 39

.    The matter has been fully considered, litigated
and decided by this Court.
        (b) Petitioner's contentions that the instructions
contained erroneous examples and were designed to lead
inescapably to defendant's guilt were part and parcel of our
consideration under the Sandstrom case and McKenzie 111.
Petitioner has not attempted to show in any way how the
examples led the jury inescapably to his guilt and we find
no such design, intentional or otherwise.
        (c) We do not agree that the holding in McKenzie I11
is inconsistent with our holding in Wogamon.     In Wogamon, we
pointed out that the United States Supreme Court decision in
Sandstrom had resulted in a spate of appeals to this Court
claiming instructional error.    We further showed in Wogamon
that in all of the cases brought to us, except for the
original Sandstrom decision and Wogamon, we had found no
reason to set aside the convictions in those several cases
on the basis of the Sandstrom instruction.     Wogamon, 610
P.2d at 1164.    Nor can it be said that we have given peti-
tioner a different kind of legal treatment than we provided
Wogamon. In Wogamon, we applied the principles declared by
the United States Supreme Court in- In Re Winship (1970),

397 U.S. 358

90 S. Ct. 1068

25 L. Ed. 2d 368

, and in Mullaney v.
Wilbur (1975),

421 U.S. 684

95 S. Ct. 1881

44 L. Ed. 2d 508

.
We also declared that in finding harmless error in a Sandstrom
instruction, "we must be able to agree as a Court that the
offensive instruction could not reasonably have contributed
to the jury's verdict."      Wogamon, 610 P.2d at 1165.
       In the petitioner's case, in McKenzie 111, we found
that the evidence of McKenzie's guilt was so overwhelming
that the Sandstrom instructions could not possibly have
contributed to petitioner's convictbn and that therefore the
instructions were harmless error.         The position of this
Court in McKenzie I11 was not disturbed when the United
States Supreme Court refused certiorari from the decision in
McKenzie 111 (1980),

449 U.S. 1050

101 S. Ct. 626

66 L. Ed. 2d 507

.        True, two United States Supreme Court justices disagreed
in a dissenting opinion.      Nonetheless the majority of the
Supreme Court found no reason when certiorari was sought
with respect to McKenzie 111 to disturb the reliance of this
Court on Milton v. Wainwright (1972),

407 U.S. 371

92 S. Ct. 2174

33 L. Ed. 2d 1

, to the effect that the constitutional
infirmity is excluded where overwhelming evidence supports
the conviction.
       Therefore, the District Court did not err in denying
the petitioner's contentions under the Sandstrom instructions.
       V.     Sufficiency of the Evidence
       Under this contention, petitioner claims that this
court improperly rejected in McKenzie 111,

608 P.2d

at 447-
i48, his claim that there was insufficient evidence that
Lana Harding's death resulted from a kidnapping or that she
was tortured prior to her death.      He further contends in
brief that the standard applied by this Court in making that
                                   -16-
determination has been repudiated as a matter of federal
constitutional law in Jackson v. Virginia (1979),

443 U.S. 307

99 S. Ct. 2781

61 L. Ed. 2d 560

.
       (a) Of course, the issue of the sufficiency of the
evidence to support the verdicts that the defendant committed
deliberate homicide by torture and that as a result of her
aggravated kidnapping, Lana Harding died, has been fully
considered, litigated and decided by this Court in McKenzie
111.
-

608 P.2d

at 447-448.
       In Jackson, it was stated that based on In Re Winship,

397 U.S. 358

90 S. Ct. 1068

25 L. Ed. 2d 368

, the critical
inquiry on review of the sufficiency of evidence to support
a criminal conviction must be not simply to determine whether
the jury was properly instructed on reasonable doubt, but to
determine whether record evidence could reasonably support a
finding of guilt beyond a reasonable doubt.      It was stated
that the relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential
elements of the crime beyond reasonable doubt, repudiating
the "no evidence" rule.        Jackson, 443 U.S. at 318-320.

       The contention that in McKenzie 111, this Court applied
an incorrect standard in determining the sufficiency of the
evidence is perhaps a new issue, though implicit in our
earlier statements respecting the overwhelming evidence of
criminal intent is a finding of the sufficiency of the
evidence.    It is painful to repeat, that in the light most
favorable to the State, the testimony of Dr. Pfaff was that
Lana Harding was initially assaulted by means of attempted
strangulation with a rope.      She lived from 30 to 90 minutes
thereafter, until she was struck on the head with a heavy
object.   The State contended the heavy object was the
manifold that was found in the defendant's pickup. She died
within 2 or 3 minutes of that blow, which opened her skull
and exposed her brain tissue.   In addition, there were five
major and a number of minor wounds to the head which may
have been inflicted by the same heavy instrument or a
lighter one.   Other lighter metal objects were found in
petitioner's pickup.   Dr. Pfaff testified that Lana Harding
may or may not have been conscious after the initial attempted
strangulation, but there are multiple wounds which give
evidence that she was in fact conscious.   She had received
blows to the top of the head, over the front part of her
face and on the right side. The backs of both of her hands
were bruised which would indicate that she was attempting to
ward off the blows of her assailant. These wounds, contusions
and abrasions are evidence beyond a reasonable doubt to any
rational trier of fact that she was indeed tortured.
     That the aggravated kidnapping resulted in her death is
equally evident from the testimony.   Dr. Pfaff testified
that the infliction of the major wound to her head which
caused her death would have resulted in extensive bleeding.
He also stated that the absence of a large amount of blood
in an area would indicate that the large wound was not
inflicted in that area. No appreciable amount of blood was
found in the teacherage in which she resided.   However, a
large amount of her blood was found at a place near the
teacherage where petitioner had parked his pickup on the
night of January 21, 1974.   Her blood and brain tissue were
found in the back of the pickup.   A drag trail led from the
teacherage to the place where the pickup had been parked.
This is evidence beyond a reasonable doubt that Lana Harding,
while still alive, was dragged from the teacherage to the
pickup and killed in that area.    Again, to any rational
trier of fact, the evidence is overwhelming that her aggravated
kidnapping resulted in her death.
     We find no support for petitioner's contention that
this Court has applied an insufficient constitutional
standard under Jackson v. Virginia, supra, or under any
other case that we are aware of.
     VI. Unanimous Verdict
     -
     Under this contention, petitioner argues he was denied
the right to a unanimous verdict of the jury as to his guilt
or innocence as to each of the offenses charged; and, that
the trial court, by instructions of law submitted to the
jury listing elements of the offenses in the alternative,
permitted petitioner's conviction without unanimous agreement
that he had committed any one of the specific acts which
constituted the crimes with which he was charged.   He contends
that the trial court refused an offered instruction which
would have required a unanimous finding of specific acts
constituting a specific offense before a verdict of guilty
could be rendered and that the trial court failed to submit
proper verdict forms which would have allowed the jury to
make a specific finding of guilt or innocence as to each of
the specific crimes charged.
     The District Court, in disposing of this contention,
found no federal constitutional right to a unanimous verdict
in criminal jury trials, and under the state constitution,
Mont. Const., art. 11, 5 26, found that the unanimous jury
verdict provision was complied with since the trial court
instructed the jury that all 12 must agree to the "findings"
and "decisions" which constituted their verdict.    The District
Court further determined that each theory presented to the jury
was supported by substantial evidence, so that no possibility
existed that the evidence was insufficient to support either
verdict.   Under these circumstances, the District Court
concluded, the failure to require the jury to specify the
theory on which it convicted did not deprive the petitioner
of his right to a unanimous verdict.
     Here, the jury by its verdict, found the petitioner
guilty of deliberate homicide, and found that homicide was
by means of torture; in another verdict, it found petitioner
guilty of aggravated kidnapping, and found that the aggravated
kidnapping resulted in the death of the victim.    The jury
had been instructed that "all twelve jurors must agree to
the decision, including the additional findings you are
asked to make on the Guilty of Deliberate ~omicideverdict
form and on the Guilty of Aggravated Kidnapping verdict
form."   When the verdicts were returned, the jury was polled
as to each verdict and each of the said findings at the
request of defendant's counsel and each of the verdicts and
findings were affirmed.   These verdicts and findings are not
within the ambit of United States v. Gipson (5th Cir. 1977),

553 F.2d 453

, or State v. Green (19801, 94 Wash.2d 216,

616 P.2d 628

, for the reason that in this case, as distinguished
from the cases on which petitioner relies, the evidence is
sufficient here to support the jury verdict under any and
all possibilities under the instructions.   It is idle to
speculate in this case, under the instructions of the court
and the overwhelming evidence, that there is any possibility
that the verdicts or the findings in this case were less
than unanimous.
     VII.    Equal Protection
     Petitioner claims denial of equal protection under the
Fourteenth Amendment of the federal constitution, and like
provisions of the state constitution, in that the trial
court, the District Court on his application for post-
conviction relief, and this Court have denied him the
benefit of established rules of state law afforded to other
criminal defendants in our decisions on search and seizure.
Petitioner also objects to our use of the harmless error
rule on the Sandstrom instructions. In brief, he contends
that he has been further discriminated against in that his
is the only case of a sentence of death under a statute now
repealed or superseded.
     Basically, petitioner is using the Fourteenth Amendment
device to raise again issues which have otherwise been fully
litigated in this cause and decided against him.   We have
upheld the validity of the arrest and search warrants, we
have explained the application of the harmless error rule
under the Sandstrom instructions and we have upheld the
validity of the statutes which permitted the sentence
imposed upon him.   McKenzie -

608 P.2d

at 450.
                             111,                      His
contentions that his rights have been discriminated against,
when compared to other defendants, or that he has been
discriminatorily "classed" are simply without merit.
     VIII.   Legality - - -
                      of the Death Sentence
     Petitioner contends he was unconstitutionally sentenced
to death in that:    (a) his death sentences were imposed in
violation of the Eighth and Fourteenth Amendments of the
federal constitution, in that there were no standards to
channel and guide the sentencing discretion of the trial
court or to provide safeguards against arbitrary and dis-      '




criminatory impositions of the sentence of death; (b) his
sentence was disproportionate to the sentence imposed in
similar cases and he was given no opportunity to show the
disproportionality of his death sentence; (c) his sentence
of death for aggravated kidnapping which resulted in the
death of the victim was constitutionally disproportionate
because the jury was not required to find that he deliberately
took the life of another; (d) expert testimony agreed that
petitioner suffered from a "psychiatric disorder" which
should have been a mitigating circumstance; (e) the sentencing
court's findings of aggravating factors are unconstitutionally
vague and no standards existed by statute or case law to
guide the sentencing discretion; and, (f) this Court improperly
upheld his sentence based on aggravating factors which were
not listed by statute.   Petitioner further contends that he
should not be required to bear the burden of establishing
mitigating circumstances; that he is entitled to a jury
trial on the mitigating facts and the sentences; that his
sentences were based on erroneous factual findings drawn
from incompetent, unreliable evidence, with no opportunity
to rebut; that the plea agreement was breached to his
disadvantage; that he is the only person sentenced to death
under the 1974 Montana capital punishment law; and, that the
death penalty is discriminatorily applied in Montana against
impoverished male defendants accused of killing caucasians,
solely upon the grounds of race, poverty and sex.   He asserts
no legitimate state interest is served by the death sentence,
that hanging is cruel and unusual punishment.
     In McKenzie 111,

608 P.2d

at 448-451, we held that the
statute under which petitioner was sentenced to death was
constitutional when considered in the light of Furman v.
Georgia (1972),

408 U.S. 238

92 S. Ct. 2726

33 L. Ed. 2d 346

,
and Gregg v. Georgia (1976),

428 U.S. 153

96 S. Ct. 2909

49 L. Ed. 2d 859

.    The constitutionality of the statute has been
fully considered and decided by us.
     We turn now to consider the attacks made by McKenzie
with respect to the sentence imposed upon him, the death
penalty.
     (I) McKenzie states again that the death penalty laws
applicable in his case are arbitrary and unconstitutional in
that his sentence was imposed under a statute which "explicitly
permitted discretionary death sentencing, without standards
to channel and guide sentencing discretion or any other
safeguard against arbitrary and discriminatory imposition of
the sentence of death   . . ."
     In McKenzie 111, this Court discussed these claims by
the petitioner, and we found that the Montana statutory
scheme in existence at the time of the crimes herein afforded
defendant the procedural safeguards necessary to protect his
substantive rights to be sentenced without arbitrariness or
caprice, and in accordance with the United States Supreme
Court cases of Jurek v. Texas (1976),

428 U.S. 262

96 S. Ct. 2950

49 L. Ed. 2d 929

, Proffitt v. Florida (1976),

428 U.S. 242

96 S. Ct. 2960

49 L. Ed. 2d 913

; and Gregg v. Georgia,
supra. The issue therefore of the constitutionality of the
sentencing statutory scheme has been fully litigated and
decided.   McKenzie 111,

608 P.2d

at 448-451.

     (2) McKenzie claims there is no meaningful review
provided in the Montana statutory scheme to guard against
passion and prejudice, arbitrariness, or disproportionality
in his sentencing.
     In McKenzie 111, we pointed out that prompt judicial
review of his death sentence was provided both by appeal to
this Court and by review in the sentence review division of
this Court. This issue has been fully considered, litigated
and decided.    McKenzie -

608 P.2d

at 450.
                         111,
     (3) McKenzie claims that in his review before the
Sentence Zeview Division, he was given no opportunity to
offer evidence and the Sentence Review had no standards to
make such a review.
     It is clear from the record that when he was before the
sentence review division, McKenzie presented no evidence,
nor offered to present any evidence with respect to the
proportionality or arbitrariness of his sentence.     Instead,
he attacked the legality, rather than the appropriateness of
his sentence.   The function of the Sentence Seview Division
was to consider the appropriateness of his sentence with
respect to him as an individual offender, and as to the
particular offense involved.    McKenzie 111,

608 P.2d

at 450.
     Under section 46-18-904, MCA, the sentence review
division is given full authority to review the judgment so
far as it relates to the sentence imposed, to either increase
or decrease the penalty.   In reviewing the judgment, the
division may consider other records, documents or exhibits
relevant to such review proceedings.   When McKenzie appeared
before the Sentence Review Livision, he requested only that
the division obtain from all 56 District Court clerks the
records of sentencing in every deliberate homicide and
aggravated kidnapping case since 1972.   The Sentence ~ e v i e w
Division denied this request.    The ~istrictCourt, in considering
the application for post-conviction review, held that a
proportionality review is sufficient if the Sentence Review
Division considers the records of appealed cases.    The
review division did so consider and we agree with the District
Court's conclusion.
     (4) McKenzie attacks his sentence on the ground that
it is disproportionate to the crimes for which he was

convicted and upon the further ground that the jury did not
find that he had deliberately caused the death of another.
     McKenzie contends that the death penalty is dispropor-
tionate to the offense of aggravated kidnapping.   In State
v. Coleman (1979),              ,
                         Mont. -

605 P.2d 1000

, 1017, 36

St-Rep. 1134, 1150, cert.denied,

446 U.S. 970

100 S. Ct. 2952

64 L. Ed. 2d 831

, we pointed out that the United States
Supreme Court in Gregg, made it clear that "when a life has
been taken by an offender [it cannot be said] the punishment
[of death] is invariably disproportionate to the crime."
428 U.S. at 187, 96 S.Ct. at 2932, 49 L.Ed.2d at 882.      We
distinguished Coker v. Georgia (1977),

433 U.S. 584

97 S. Ct. 2861

53 L. Ed. 2d 982

, as being relevant only to crimes
for which the penalty has been imposed which did not result
in the loss of a life.   In McKenzie 111,

608 P.2d

at 459, as
the District Court noted in considering petitioner's application
for post-conviction relief, we found the evidence on the

issue of intent to be overwhelming, uncontradicted, and
permitting of but one rational conclusion-that McKenzie

intended to kidnap and kill the victim.
     (5) McKenzie claims that his sentence of death is
disproportionate to sentences imposed in similar cases.
     In Coleman, 605 P.2d at 1021, we noted that the crime
of aggravated kidnapping has been a part of our statutory
law only since 1973 and that we were necessarily confined to
a review of cases since that time, which we found sufficient,
though not large in number.   This case was used in Coleman
as a comparative case and we look to Coleman in this case as
a comparative case.   We also find State v. Fitzpatrick
(1980) - Mont.         ,

606 P.2d 1343

, 37 St.Rep. 194,
cert.denied,

449 U.S. 891

101 S. Ct. 252

66 L. Ed. 2d 118

, to
be suitable for comparison.    Again, in Fitzpatrick, 606 P.2d
at 1361, this case was used as a comparative case in dis-
cussing the Fitzpatrick sentence of death.    Our discussions
of the similarity of these cases and the proportionality of
the death sentence imposed as to Coleman and Fitzpatrick, as
well as to McKenzie, and our discussion of State v. Buckley
(1976),

171 Mont. 238

557 P.2d 283

, appearing in Fitzpatrick,
606 P.2d at 1362, indicate that McKenzie is under a sentence
that is not disproportionate to sentences that have been
imposed in similar cases.
      (6) McKenzie attacks his death sentence on the ground
that he was suffering from a mental disease or defect
denominated a "psychiatric disorder" which he claims to be a
mitigating circumstance.
     The District Court in considering the post-conviction
application, stated:   "The presence of a personality disorder
does not automatically immunize a defendant from the death
penalty. "
     The overweighing factor against the petitioner on this
contention is that the jury did not find that he had suffered
from a mental disease which prevented him from forming the
specific intent necessary for the charged offenses.    Even
    the District Court's sentencing order in the criminal
proceedings shows that the factor was considered and found
to be insufficient.
      (7) McKenzie attacks his death sentence upon the
ground that it is based on findings of aggravating factors
which are unconstitutionally vague and open-ended with no
channel or guide to the sentencing discretion.
     This is simply another way of attacking the constitu-
tionality of the Montana sentencing statutory scheme which
as we have indicated above is constitutionality sound.
     The crime of "homicide by torture" as defined by the
court's instructions and approved by us in McKenzie 111,

608 P.2d

at 445, is sufficiently definite to prevent an overbroad
application of the factors.   Substantial evidence showed
that the victim died as a result of an aggravated kidnapping.
McKenzie 111,

608 P.2d

at 447-48.   There is no merit in this
contention.
     (8) McKenzie attacks the sentence upon the ground that
the sentencing judge relied on the aggravating factors other
than those found in our statutes.
     The District Court, in considering the post-conviction
application, stated that the jury had found two specific
statutory aggravating factors and saw no reason why the
sentencing court is required not to consider a wide range of
factors in determining whether the aggravating circumstances
are outweighed by mitigating factors.    For this reason, the
District Court determined, in denying McKenziels application
for post-conviction relief, that it was not improper for the
District Court to consider:   (1) the petitioner's failure to
present evidence to "mitigate his conduct," (2) his conviction
for rape, (3) his purported "dangerousness," (4) his anti-
social behavior, (5) the small number of years he would be
required to serve if a 100 year sentence were given, (6)
whether rehabilitation of petitioner was not possible; and,
(7) whether he must be executed for the protection of society.
     We agree with the District Court.   All of these factors
considered by the sentencing court bear on the aggravating
factors found by the jury and properly relate to the propriety
of the sentence of death.
     (9) McKenzie claims that his sentence of death is
based on findings from incompetent evidence, some of which
was not revealed to him before trial, and against which he
had no opportunity for rebuttal.
     In McKenzie 111,

608 P.2d

at 441, 442, we rejected
these contentions as to the validity of his conviction.     We
similarly reject these contentions with respect to the
validity of his sentence.
     (10) McKenzie attacks his sentence upon the ground
that the District Court ignored or violated a plea agreement
for a lesser sentence.
     In McKenzie 111,

608 P.2d

at 439, we found that no plea
bargain or agreement existed.   This issue has been fully
litigated and decided and is not a bar to the sentence
imposed upon McKenzie.
     (11) McKenzie attacks his death sentence because of
his claim that he will be the only person executed under the
1974 capital punishment law, and that there is no rational
basis to distinguish his case from others.
    Again we have repeatedly stated that the statutory
scheme for capital punishment as applied to McKenzie was
valid, and that his sentence is not disproportionate as to
the facts, the crime or his character, and we therefore
reject this contention.
     (12) McKenzie's contention that the Montana legislature
has subsequently amended the capital punishment provision so
as to provide consideration of both aggravating and mitigating
circumstances, and that no such provisions existed for his
benefit, is again an attack upon the constitutionality of
the statutory sentencing scheme in effect with respect to
him which we have previously rejected.
     (13) McKenzie attacks the death sentence upon the
ground that it is being imposed both in Montana and the
United States against impoverished male defendants accused
of killing caucasians upon the grounds of race, poverty and
sex, in a discriminatory pattern and practice.
     In Fitzpatrick 111, 38 St.Rep. 1448, 1454, we discussed
this issue.     We find no basis for this contention and
petitioner has alleged none.        Nor has petitioner offered any
proof of such contention.
     (14) McKenzie further attacks his sentence upon the
ground that no valid state purpose is served in imposing the
penalty upon him.
     In Gregg, 428 U.S. at 183, two justifications for
capital punishment were noted:       retribution and deterrence.
The applicability of these as justifications present complex
issues, properly left for legislative determination, and it
is with the legislature that this Court will leave that
determination.    There is no basis on that ground for post-
conviction relief.
     (15) McKenzie attacks the imposition of a death
penalty by hanging as cruel and unusual punishment.
     We discussed this issue in Coleman - 605 P.2d at
                                        11,
1058-59.      The issue has been fully decided by this Court.
     We come finally to conclude in this case that petitioner's
application for post-conviction relief in the District Court
was properly denied, and that on appeal to this Court, the
decision of the District Court is hereby affirmed.       We
remand this cause to the District Court in which the sentence
upon the defendant was imposed, for such further proceedings
as are necessary to execute the sentence imposed upon the
petitioner.
                             -29-
                                                        Justice



W e Concur:




        Chief J u s t i c e
         -7



                              A




 ~on.\-Plark S u l l i v a n , D i s t r i c t
 Judge, S i t t i n g f o r M r . J u s t i c e
 John C . H a r r i s o n


 Mr. J u s t i c e D a n i e l J. Shea and M r . J u s t i c e Frank B.
 Morrison, Jr., w i l l f i l e w r i t t e n d i s s e n t s a t a l a t e r
 time.
Yr. Justice F r a n k B . M o r r i s o n , J r . ,
dissent.
Mr.    J u s t i c e B.   Morrison, Jr., d i s s e n t i n g :

        I r e s p e c t f u l l y d i s s e n t from t h e m a j o r i t y o p i n i o n .

        Numerous i s s u e s h a v e been r a i s e d i n t h i s p o s t c o n v i c t i o n

review proceeding.                 One i s s u e i s d i s p o s i t i v e .

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

c o n s t i t u t i o n a l requirements.           Therefore, t h e f r u i t s of t h e

s e a r c h s h o u l d have b e e n s u p p r e s s e d .

        The Montana C o n s t i t u t i o n , A r t i c l e 11, S e c t i o n 11,

governs t h e issuance of a search warrant.                                That s e c t i o n

provides:

                "The p e o p l e s h a l l be s e c u r e i n t h e i r p e r s o n s ,
                p a p e r s , homes and e f f e c t s from u n r e a s o n a b l e
                s e a r c h e s and s e i z u r e s .    No w a r r a n t t o s e a r c h
                a n y p l a c e , o r s e i z e any p e r s o n o r t h i n g s h a l l
                i s s u e without describing t h e place t o be
                searched o r t h e person o r t h i n g t o be s e i z e d ,
                o r w i t h o u t p r o b a b l e c a u s e , s u p p o r t e d by o a t h
                o r af f i r m a t i o n reduced - w r i t i n g . "
                                                        to                      (Emphasis
                supplied.)

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

of o r a l testimony i n e s t a b l i s h i n g probable cause necessary

f o r t h e i s s u a n c e of a s e a r c h warrant.               The p r o b a b l e c a u s e

must b e e s t a b l i s h e d by a s t a t e m e n t u n d e r o a t h and i n w r i t i n g .

The c o n s t i t u t i o n a l mandate i s c l e a r .           T h e r e a r e no e x c e p t i o n s .

        The m a g i s t r a t e who i s s u e d t h e s e a r c h w a r r a n t i n t h i s

c a s e s t a t e d t h a t h e found p r o b a b l e c a u s e b a s e d upon t h e

c o u n t y a t t o r n e y ' s a f f i d a v i t and t h e t e s t i m o n y of a d e p u t y

sheriff.        The a f f i d a v i t o f t h e c o u n t y a t t o r n e y i s q u e s t i o n a b l e

b e c a u s e t h e c o u n t y a t t o r n e y m e r e l y acknowledged t h a t h e

signed t h e instrument.                 The acknowledgement f a i l s t o s t a t e

t h a t any of t h e f a c t s s t a t e d i n t h e i n s t r u m e n t a r e t r u e .

N e v e r t h e l e s s , t h i s d i s c u s s i o n w i l l p r o c e e d assuming t h a t t h e

county a t t o r n e y d i d p r e s e n t an a f f i d a v i t t o t h e i s s u i n g

magistrate.
        The a f f i d a v i t o f t h e c o u n t y a t t o r n e y d i d n o t e s t a b l i s h

p r o b a b l e c a u s e and i t was n e c e s s a r y f o r t h e m a g i s t r a t e t o

consider t h e deputy's testimony.                       The m a g i s t r a t e conceded

t h a t t h e d e p u t y ' s t e s t i m o n y was t h e b a s i s f o r t h e s e a r c h

warrant.        The Supreme C o u r t of Montana c o n c u r r e d .

        I h e r e o f f e r a n e x c e r p t from t h e m a j o r i t y o p i n i o n i n

S t a t e v . McKenzie ( 1 9 7 8 ) ,

177 Mont. 280

,            p. 2d          ,     for

t h e p u r p o s e o f showing f a c t u a l c o n s i d e r a t i o n s r e l e v a n t t o

t h e i s s u a n c e of a s e a r c h w a r r a n t :

                "A summary of t h e t e s t i m o n y shows J u s t i c e
                of t h e P e a c e Wolf t e s t i f i e d h e c u s t o m a r i l y
                s w e a r s a l l w i t n e s s e s -- though h e d i d n o t
                r e c a l l swearing t h e county a t t o r n e y , he
                c o n s i d e r e d him sworn.          Deputy Hoover t e s t i -
                f i e d h e came i n t o town a b o u t 4 : 3 0 P.M. o n
                J a n u a r y 22, 1974, w i t h d i r e c t i o n s t o go t o
                t h e county a t t o r n e y ' s o f f i c e ; t h a t he helped
                t h e county p r e p a r e t h e a f f i d a v i t and he
                t h e n w e n t b e f o r e J u s t i c e o f t h e P e a c e Wolf
                and g a v e sworn t e s t i m o n y i n s u p p o r t o f t h e
                issuance of t h e warrants.                  County A t t o r n e y
                N e l s o n t e s t i f i e d h e had b e e n a t t h e s c e n e
                w i t h t h e s h e r i f f and h i s d e p u t i e s d u r i n g
                t h e a f t e r n o o n and j u s t p r i o r t o h i s coming
                t o town t o g e t w a r r a n t s i s s u e d .      A t the
                h e a r i n g , h e s a i d i n answer t o a q u e s t i o n
                a s t o w h a t knowledge h e had of t h e f a c t s :
                'Answer.            W e l l , without looking a t the
                a f f i d a v i t now -- I t h i n k t h e f i r s t p a r a -
                g r a p h o r two i s my s t a t e m e n t a s t o what
                I d e t e r m i n e d , t h a t s h e was m i s s i n g and may
                have b e e n t h e v i c t i m o f f o u l p l a y b u t of
                what n a t u r e w e d i d n ' t know a t t h e p a r t i c u -
                l a r t i m e , and t h a t s h e r e s i d e d a t t h e
                t e a c h e r a g e . ' I'

       The b a s i s f o r m a g i s t r a t e Wolf i s s u i n g t h e s e a r c h w a r r a n t

i s found i n t h e t e s t i m o n y h e g a v e by d e p o s i t i o n a s f o l l o w s :

                "Q.      Based upon t h e t e s t i m o n y o f M r . Hoover
                a n d t h i s a f f i d a v i t , you i s s u e d a w a r r a n t o f
                a r r e s t ; A.    This i s correct.

                "Q.     And you i s s u e d a s e a r c h w a r r a n t ?      A.       That
                is correct.
                "Q.       Was t h e r e any o t h e r t e s t i m o n y o r i n f o r m a -
                t i o n b r o u g h t t o y o u r a t t e n t i o n t h a t was n o t
                i n c l u d e d i n t h e sworn s t a t e m e n t of M r . J e r r y
                Hoover, t h e Deputy S h e r i f f , o r i n t h i s a f f i -
                d a v i t ? Was t h e r e any o t h e r e v i d e n c e b r o u g h t
                t o your a t t e n t i o n a t t h a t time? A.              Not a s f a r
                a s I c a n remember."
        The Supreme C o u r t of Montana i n S t a t e v . McKenzie,

s u p r a , found t h a t t h e s e a r c h w a r r a n t was p r o p e r l y i s s u e d and

i n s u p p o r t of t h i s f i n d i n g s a i d :

                 " I n a d d i t i o n , t h e c o u n t y a t t o r n e y examined
                 Deputy Hoover b e f o r e t h e j u s t i c e of t h e p e a c e
                 a s t o f a c t s he l e a r n e d d u r i n g t h e i n v e s t i g a -
                 t i o n . Here, u n l i k e Gray, t h e r e w a s , i n
                 e f f e c t , sworn t e s t i m o n y by t h e c o u n t y a t t o r n e y
                 and d e p u t y s h e r i f f i n a d d i t i o n t o t h e a f f i d a v i t ,
                 - - combination s uh eprlei o f . )e s t a b l i s h e d p r o b a b l e
                 and t h e
                 cause."          (Emphasis
                                                   t
                                                     p     ed

        Both t h e m a g i s t r a t e who i s s u e d t h e s e a r c h w a r r a n t and

t h e members of t h e Supreme C o u r t m a j o r i t y who a f f i r m e d t h e

i s s u a n c e o f t h e w a r r a n t d i d s o based upon o r a l t e s t i m o n y .

T h i s i s s p e c i f i c a l l y p r o h i b i t e d by t h e c o n s t i t u t i o n .   The

o n l y e v i d e n c e which c a n be c o n s i d e r e d t o e s t a b l i s h p r o b a b l e

c a u s e i s t h a t e v i d e n c e which i s under o a t h and " r e d u c e d t o

writing. "

        There are numerous i s s u e s i n t h i s c a s e .                    One c a n d e b a t e

t h e m e r i t s of t h o s e i s s u e s e n d l e s s l y .      I t i s questionable

t h a t t h e r e was a n a f f i d a v i t s u b m i t t e d by t h e c o u n t y a t t o r n e y .

I t i s d o u b t f u l t h a t a combination of a f f i d a v i t and o r a l

testimony e s t a b l i s h e d probable cause.                    I t i s doubtful t h a t

t h e i t e m s s e i z e d d u r i n g t h e s e a r c h were a d e q u a t e l y d e s c r i b e d

i n t h e search warrant.                A t l e a s t these issues a r e justiciable

c o n t r o v e r s i e s a b o u t which r e a s o n a b l e p e o p l e can d i s a g r e e .    I

would o b s e r v e t h a t t h e s t a t e must be l i b e r a l l y i n d u l g e d i f a

r e v i e w i n g c o u r t i s t o f i n d t h e r e was p r o b a b l e c a u s e and t h a t

t h e i t e m s s e i z e d were s u f f i c i e n t l y d e s c r i b e d i n t h e w a r r a n t .

The a f f i r m a n c e of t h e s e two a s p e c t s of t h e w a r r a n t s t r e t c h e s

t h e law b u t p e r h a p s n o t t o t h e b r e a k i n g p o i n t .

        A f i n d i n g of p r o b a b l e c a u s e based upon o r a l t e s t i m o n y

cannot be sustained without v i o l a t i n g t h e c o n s t i t u t i o n .

T h i s c a s e p r e s e n t s a v e r y c l e a r and t r y i n g t e s t f o r t h e

j u d i c i a l conscience.           The i l l e g a l l y s e i z e d e v i d e n c e shows
t h a t t h e d e f e n d a n t committed t h i s a c t .            The a c t , a s i l l u s t r a t e d

by t h e p h o t o g r a p h s i n e v i d e n c e , i s s o d e b a s e d t h a t a n y

d e g r e e of j u d i c i a l o b j e c t i v i t y i s d i f f i c u l t t o m a i n t a i n .

         I approach t h i s d e c i s i o n r e a l i z i n g t h a t t h e suppression

of t h e i l l e g a l l y s e i z e d e v i d e n c e may w e l l r e s u l t i n f r e e i n g

a very dangerous i n d i v i d u a l .              I must c o n f e s s t h a t t h e human

t e m p t a t i o n i s t o a d o p t t h e c o u r s e t a k e n by t h e m a j o r i t y .

P o s t McKenzie I and McKenzie 11, l a w y e r s , i n a n a l y z i n g t h e

two o p i n i o n s , have d e t e r m i n e d t h a t t h e c a s e s e n u n c i a t e a new

l e g a l p r i n c i p l e known a s t h e " c l e a r l y g u i l t y r u l e . "           In

o t h e r words, t h e C o u r t was c o u n t e n a n c i n g a c o n s t i t u t i o n a l

v i o l a t i o n b e c a u s e t h e d e f e n d a n t was " c l e a r l y g u i l t y . "

        When I t o o k t h i s o a t h of o f f i c e I swore t o u p h o l d t h e

constitution.            To s u s t a i n a f i n d i n g o f p r o b a b l e c a u s e b a s e d

upon e v i d e n c e which v i o l a t e s a c l e a r c o n s t i t u t i o n a l mandate

would v i o l a t e my o a t h of o f f i c e and would p l a c e m e , a s a

J u s t i c e o f t h e Montana Supreme C o u r t , above t h e law.

        What I have h e r e i n s a i d i s n o t meant a s p e r s o n a l c r i t i c i s m

of m b r e t h r e n .
    y                        I know them t o b e h o n o r a b l e men              --   deeply

committed t o p r i n c i p l e s o f j u s t i c e .          However, i n m y judgment,

i n t h i s c a s e , t h e y f a i l e d t o f o l l o w t h e law.

        With d e e p r e g r e t , knowing t h e d e f e n d a n t l i k e l y committed

t h i s most h e i n o u s a c t and knowing t h a t t h i s d e c i s i o n , i f u p h e l d

by t h e f e d e r a l c o u r t s , cou1.d r e s u l t i n t h e d e f e n d a n t g o i n g

f r e e , I n e v e r t h e l e s s must f o l l o w t h e c l e a r c o n s t i t u t i o n a l

directive.          T h e r e f o r e , I would r e v e r s e and remand with

d i r e c t i o n s t o t h e t r i a l c o u r t t o proceed i n conformity w i t h

this dissent.
STATE V.   McKENZIE



No.   81-110


DISSENT O F MR.   J U S T I C E DANIEL J . SHEA




                               Dated:       January 26, 1 9 8 2




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Mr. Justice Daniel J. Shea dissenting:

      I dissent.    However heinous, however barbarous the actions
of the defendant in this case, this Court is still obligated
to give full and fair review to all issues raised on appeal.
We have failed miserably in that obligation.
I.   INTRODUCTION
     Once again I find myself dissenting to a McKenzie decision.
Since the present appeal was filed, I have carefully studied
other issues that either I didn't know had been raised before,
or that I didn't have time to closely study due to arbitrary
time limits for issuing opinions.
      I was not a member of this Court when McKenzie - was
                                                     I
decided.   In McKenzie - my dissent was devoted to the search
                       I1
and seizure issues and the death penalty issues that had been
raised.    In McKenzie 111, although I touched on other issues,
I concentrated primarily on what I considered the failure of
this Court to properly apply the harmless error rule to eight
unconstitutional Sandstrom-type jury instructions--instructions
which had been expressly declared unconstitutional by the
United States Supreme Court.     I still admit that I have not
thoroughly studied all the issues raised in the first and
subsequent appeals, but I have concentrated on those issues
in which I believe serious, reversible error to have occurred.
I have also focused on those issues the majority has either
omitted entirely from discussion or dealt with in a most
perfunctory and unsatisfactory manner, in essence misstating
the issues.     I have also devoted a good part of this dissent
to the death penalty issues raised by McKenzie in his petition
for post-conviction relief and which had not been raised in
previous appeals to this Court.     Most of those issues center
on the death penalty question.
      In addition to this Introduction, I divide this dissent
into 9 parts.      In Part 11, I disapprove of this Court's
adoption in midstream of an entirely different rule for
consideration of res judicata issues than was adopted and
applied in Coleman 111, infra, and Fitzpatrick 111, infra.
In Part 111, I develop the evidentiary record for the plea
bargain issue, and this record convinces me beyond any doubt
that an enforceable plea bargain existed, and that the State

--- court violated that agreement.
and the trial                                  In Part IV,
I discuss the charges filed and the instructions given on
homicide.    I am convinced that McKenzie was convicted and
sentenced to death for the commission of an offense not
defined by Montana statutes--deliberate homicide by means of
torture.    There is a high probability that the jury in fact
convicted McKenzie of this nonexistent offense.    In Part V,
I discuss the statutory language "deliberate homicide by means
of torture."    I conclude that this language is unconstitutionally
vague, especially since it involves an aggravating circumstance
which can trigger imposition of the death penalty.    I further
conclude, in any event, that strict construction of this
phrase requires the conclusion that the jury's finding that
the deliberate homicide was committed - means - torture was
                                      by      of
not proved, and therefore, this finding cannot be the basis
for imposing the death penalty.
     In Part VI, I discuss three areas raised by McKenzie,
in which he argues that this Court has denied him equal
protection of the laws:    the search and seizure, the lesser-
included offense instructions, and the application of the
overwhelming evidence standard in declaring the eight uncon-
stitutional Sandstrom-type instructions to be harmless error.
     In Part VII, I focus on several issues at trial which
convince me that McKenzie was denied a fair trial.    The
cumulative effect of these errors requires that a new trial
be ordered.
     In Part VIII, I focus on the jury instructions and
the multiple alternative charges--the result being that

McKenzie may well have been denied his constitutional right
to a unanimous jury verdict.    The reasonable possibility
that he was denied a unanimous jury verdict in this, a death
penalty case, requires that the convictions be reversed.
     In Part IX, I focus on the death penalty issues raised
by McKenzie, several of which were raised in previous appeals,
but most of which were raised for the first time in his
petition for post-conviction relief.   The way this Court has
disposed of these death penalty issues convinces me that a
death penalty scheme cannot be fairly and rationally administered
in this state.   All that is needed for a death penalty to be
imposed in this state is the right combination of prosecutor
and trial judge.    And once the decision is made to impose the
death penalty, this Court will close its eyes to the issues
raised on appeal.    The United States Supreme Court has imposed
a mandatory duty on the highest appellate court of each state
to carefully review the trial record as well as the basis for
the imposition of the death penalty.   Yet, we have failed
miserably in undertaking this obligation.
     In Part X, I simply conclude by summarizing the issues
this Court either ignored or stated to be different than what
McKenzie actually raised in his appeal.
     This is the longest dissent I have ever written, and
doubtless it could be both shorter and better written.       I
could not begin to estimate the hours that I have devoted
to studying this case and writing this dissent, but I none-
theless apologize for taking all the space that necessarily
must be devoted to this dissent.    This dissent, in which I
have distilled the trial record on many important issues, will
demonstrate the majority opinion to be manifestly in error
where it is stated that in all the annals of criminal law
history in this State, no defendant has ever been given more
"tender legal care."    The care given on appeal cannot be
measured by the number of appeals taken nor by the number of
issues disposed of.    Rather, the care must be measured by
whether we, as the Court, have fairly discussed each issue
raised, and whether we have given McKenzie a fair and even-
handed application of the law that must be given to all
defendants in the courts of this State.   Measured by that
standard, our review of these four McKenzie appeals has been
an abysmal failure.    It is the most telling proof that a
death penalty defendant cannot receive thorough and even-handed
consideration of his case by the judiciary of this state.
11.   DENIAL OF EQUAL PROTECTION: INCONSISTENT APPLICATION
OF RES JUDICATA PRINCIPLES AS THEY RELATE TO POST-CONVICTION
RELIEF
     In his appeal, McKenzie raised three equal protection
arguments which have been ignored in the majority opinion.
He claims that in ruling in three areas of the law--search
and seizure, lesser included offense instructions, and the
application of a harmless error rule to the Sandstrom-type
instructions--we have created special rules for McKenzie,
denying him equal protection of the laws.   Now, in addition
to these issues, the majority here has added yet another denial
of equal protection of the laws by adopting American Bar
Association standards for determining whether issues raised
in a post-conviction relief petition are res judicata.    The
fact is that just a short time ago this Court adopted standards
which are designed to more effectively meet the issues on the
merits.
     Just recently this Court adopted the framework of
Sanders v. United States (1963),

373 U.S. 1

83 S. Ct. 1068

10 L. Ed. 2d 148

, to determine whether an issue in a post-
conviction relief petition is res judicata.    See Coleman v.
                       ,
State (1981), - Mont. - 633 P.2d at 629-31, 38 St.Rep.
at 1357-59; and Pitzpatrick v. State (1981), - Mont    .-    I



         ,
- P. 2d - 38 St.Rep. at 1450-52. Because we adopted the
three part analysis of Sanders to apply to Coleman and Fitzpatrick,
it seemed logical to me that we would also apply it to McKenzie.
Instead, the majority adopted the more restrictive rule
promulgated by the American Bar Association, and. used it as
the analytical framework within which to assess whether most
of the issues are res judicata.   The majority has denied review
of many of McKenzie's claims on that ground that they have
already been "fully and finally decided."     (See the American
B a r A s s o c i a t i o n r u l e q u o t e d by t h e m a j o r i t y , 38 St.Rep.           at

1749.)       S t r a n g e l y enough, t h e m a j o r i t y o p i n i o n d o e s n o t

e v e r s t a t e why t h e r e c e n t l y a d o p t e d r u l e s o f S a n d e r s w e r e

f o r g o t t e n i n t h i s case.

        Although t h e m a j o r i t y o p i n i o n would have one b e l i e v e
t h a t t h e American B a r A s s o c i a t i o n s t a n d a r d s f o r res j u d i c a t a

i m p l i c i t l y a l w a y s have been t h e r u l e i n t h i s s t a t e , t h e f a c t

i s t h a t i n Coleman 1 1 and F i t z p a t r i c k 1 1 w e a d o p t e d t h e
                         1                             1

less r e s t r i c t i v e r u l e s set f o r t h i n Sanders.               Under t h e ABA
s t a n d a r d s f o r res j u d i c a t a , t h e f i n a l i n q u i r y i s w h e t h e r t h e

i s s u e h a s been f u l l y and f i n a l l y d e c i d e d .         On t h e o t h e r hand,

under t h e Sanders r u l e s , t h e f i n a l i n q u i r y i s whether t h e ends

o f j u s t i c e would b e s e r v e d by a g a i n c o n s i d e r i n g t h e i s s u e on

i t s merits.           This Sanders r u l e permits t h e a p p e l l a t e c o u r t t o
a g a i n c o n s i d e r t h e i s s u e t o s e e n o t o n l y i f it w a s d e c i d e d ,

b u t t o see i f it was c o r r e c t l y d e c i d e d .           Obviously, i f i t w a s

n o t c o r r e c t l y d e c i d e d t h e e n d s o f j u s t i c e would b e s e r v e d by

c o r r e c t i n g t h e m i s t a k e and d e c i d i n g t h e i s s u e p r o p e r l y .    But

t h a t i s p r e c i s e l y what t h e m a j o r i t y d i d n o t want t o d o i n t h i s

case.

        I f , a s t h e m a j o r i t y s t a t e s , t h e ABA s t a n d a r d s i m p l i e d l y
always h a v e been t h e r u l e i n t h i s s t a t e , why d i d w e a d o p t and

a p p l y t h e S a n d e r s r u l e s i n Coleman I11 and F i t z p a t r i c k I I I ?

And why, i f t h e r u l e s always have been t h e same, d i d n ' t t h e
m a j o r i t y simply apply t h e Sanders a n a l y s i s i n s t e a d of t h e

ABA a n a l y s i s .     The answer i s t h a t a S a n d e r s a n a l y s i s would
r e q u i r e u s t o change o u r d e c i s i o n s on s e v e r a l o f t h e i s s u e s ,
and t h e m a j o r i t y h a s no i n t e n t i o n of d o i n g t h a t .
        The m a j o r i t y h a s i n t e r p r e t e d t h e ABA s t a n d a r d s t o mean
t h a t t h e end of r e v i e w comes by a b l a n d s t a t e m e n t t h a t t h e

i s s u e h a s been " f u l l y and f i n a l l y d e c i d e d . "        The e f f e c t , a s
applied here, is that even if a previously decided issue
was decided incorrectly, the issue is, insofar as the majority
is concerned, res judicata.
     Of course, the merits of the Sanders rules over the ABA
rules can be debated.   But we have no right to change the
rules in midstream in order to provide an excuse for again
not reaching the issues on the merits.   It is simply another
demonstration that this Court cannot be consistent when
applying the laws to McKenzie.   The result is that we again
have denied McKenzie equal protection of the laws.   See the
dissenting opinion of Justices Marshall and Brennan in
                                    ,
McKenzie v. Montana (1980), - U.S. -

101 S. Ct. 626

, 627,

66 L. Ed. 2d 507

, 508, where they strongly chastised this Court
for its uneven application of the law to McKenzie.
     I have always felt that death penalty cases require the
closest scrutiny on appeal.   I think it especially sad that

in selectively applying the more restrictive ABA standards
for considering res judicata claims in McKenzie's final appeal
before this Court, we have excused ourselves from determining
whether we have correctly applied the law to his case.    We
have simply buried the constitutions a little deeper than
they were in the former McKenzie appeals.
111. PLEA BARGAIN: THE STATE AND THE TRIAL COURT BREACHED
AN ENFORCEABLE PLEA BARGAIN
     The unrefuted record demonstrates that an enforceable
plea bargain existed and that the State, with the aid of
the trial court, breached that agreement.      Proper resolution
of this issue requires that the death sentences be vacated
and that on remand the trial court be instructed to enforce
the plea bargain.
     I must admit that I am more than a little shocked by
how the majority has changed the basis of its decision in
McKenzie - 5 5 7 P.2d at 1038, to that in McKenzie 111, 608
         I,
P.2d at 438-39, even though both decisions are based on the
same record.
     In McKenzie - this Court clearly recognized that a
                 I,
plea bargain existed, and, in fact, stated that the State had
acknowledged it.    5 5 7 P.2d at 1038.   This Court, however,
declared that the plea bargain was unenforceable either
because the agreement was subject to a condition that the
sheriff and the victim's parents consent to the plea bargain
or because the prosecutor called the deal off before McKenzie
had entered his plea.
     However, in McKenzie 111,

608 P.2d

at 439, in an obvious
acknowledgment that this holding in McKenzie - could not
                                             I
withstand careful scrutiny, this Court apparently changed its
mind, stating that a plea bargain never did exist because
McKenzie was aware of an express condition that before he
could enter a guilty plea, the prosecutor first had to obtain
the consent of the victim's parents and the local sheriff.
And then the majority adds that the trial judge resolved the
factual dispute of whether this express condition existed by
declaring that it did not exist.     Because there was never
a hearing before the trial court on this issue, I fail to
See how the trial court could resolve it.    Furthermore, the
unrefuted record supports McKenzie's contention - -an
                                                that
enforceable plea bargain existed - - - be specifically
                                 and must
en£orced.
     The majority opinion leaves the impression that all
the facts relating to the State's position were set forth
in the record, that evidence was taken, and that the trial
court resolved the factual issue in favor of the State.
Nothing could be further from the truth.    The State's position
as stated in the majority opinion was taken entirely from
the State's briefs, and possibly bolstered by statements made
by counsel for the State during argument of McKenzie - before
                                                     I
this Court.
     Because the majority opinion has not set forth facts
the record, and because it is only from that record that we
can determine what happened, it is necessary to explain what
the record does state in regard to the plea bargain negotiations
and the ultimate agreement reached by the parties which
although approved by the trial court, was later repudiated
when the prosecutor announced that the "deal was --
                                        - - off."         557


     A. THE FACTS IN THE RECORD SUPPORT ONLY THE CONCLUSION
THAT THERE WAS AN ENFORCEABLE PLEA BARGAIN
     On Sunday, December 22, 1974, counsel for both sides
met in Conrad, in the law office of defense counsel Charles
Jacobson.   At this time, the trial judge gave counsel for
both sides the preliminary instructions.    All attorneys saw
problems with those instructions--including the fact that many
of them were unconstitutional.   The attorneys met for an extended
period of time and arrived at a plea bargain agreement to be
presented the next day to the trial judge for his approval.
The plea bargain was that McKenzie would withdraw his
pleas of not guilty and plead guilty to the offense of
deliberate homicide committed in the course of committing

felony aggravated assault with a heavy weapon, in exchange
for a 50-year   prison sentence.    McKenzie would also plead
guilty to another charge of felony aggravated assault
committed with a weapon, and for this crime was to receive
20 years in prison.   The sentences were to run concurrently.
    All counsel met in Great Falls the next day, December
23, 1974, in the chambers of the trial judge.    This meeting
lasted for more than three hours.     The judge expressed a
certain displeasure with the agreement, especially with regard
to the length of the prison sentences, but nonetheless he
went along with the plea bargain.     The judge and counsel all
agreed that on December 30, 1974, McKenzie would withdraw his
not guilty pleas and plead guilty to the two charges.
     After the trial judge approved the agreement, defense
counsel and the prosecutors proceeded to the O'Haire Manor
in Great Falls.   There, acting in reliance on the approved
agreement, defense counsel divulged their theories of defense
to the State, and further revealed all they knew concerning
the weaknesses in the State's case, so that the prosecutors
would be better able to explain to the press, the public,
the victim's parents, and the local sheriff why the plea
bargain agreement had been made.
     But, suddenly, the "deal was off."     On December 28, 1974,
two days before McKenzie was to appear in court and change
his pleas, the prosecutor contacted defense counsel and told
them that he could not perform the plea bargain agreement.      He
told defense counsel that the victim's father had threatened
b o d i l y harm t o McKenzie, d e f e n s e c o u n s e l , and t h e p r o s e c u t o r s

i f t h e p l e a b a r g a i n was c a r r i e d o u t .

        McKenzie, d e f e n s e c o u n s e l , and t h e p r o s e c u t o r s a l l m e t

a s a g r e e d w i t h t h e t r i a l judge on December 3 0 , 1974.                   Defense

c o u n s e l movedthe t r i a l c o u r t t o a c c e p t w i t h d r a w a l o f t h e

n o t g u i l t y p l e a s and s u b s t i t u t e g u i l t y p l e a s t o t h e two a g r e e d -

upon c h a r g e s and moved t h a t McKenzie r e c e i v e t h e s e n t e n c e s

a g r e e d t o by t h e S t a t e and t h e t r i a l c o u r t .       The p r o s e c u t o r

o b j e c t e d , b u t a t no t i m e s t a t e d t h a t t h e p a r t i e s had n o t made

a p l e a b a r g a i n agreement.         Nor d i d he e v e r s t a t e t h a t t h e

agreement was s u b j e c t t o t h e c o n s e n t of t h e v i c t i m ' s p a r e n t s

or the sheriff         .
        Defense c o u n s e l f i l e d a n e x t e n s i v e a f f i d a v i t s e t t i n g

f o r t h t h e t e r m s o f t h e p l e a b a r g a i n , and made t h i s s t a t e m e n t

f o r t h e r e c o r d , t h e f a c t s of which w e r e n e v e r r e f u t e d o r

d e n i e d by t h e S t a t e :

        "They [ t h e p r o s e c u t o r s ] had o r i g i n a l l y a d v i s e d
        u s t h a t it was t h e i r d e s i r e t o go t o t h e p a r e n t s
        of t h i s d e c e a s e d g i r l , and t o go t o t h e s h e r i f f ,
        and t r y t o make t h e i r peace w i t h them, w i t h s o r t
        of t h e u n d e r s t a n d i n g t h a t i f t h e y c o u l d n o t , why
        t h e n a l l of t h i s m a t t e r would come t o n a u g h t .

        "Of c o u r s e , t h i s l e f t u s i n a p o s i t i o n o f h a v i n g
        someone make a d e c i s i o n , p r i o r , o r a f t e r , w e had
        p r e s e n t e d t h i s m a t t e r i n c o u r t . A s l o n g a s it
        was p r i o r t o p r e s e n t i n g t h i s m a t t e r i n c o u r t , why
        w e f e l t t h a t t h e r e was no r e a l damage done; however,
        a t t h e r e q u e s t of t h e p r o s e c u t i o n , w e came down h e r e ,
        w i t h them, w i t h t h e u n d e r s t a n d i n g , t h a t w e would
        p r e s e n t t h i s m a t t e r t o t h e c o u r t , and see w h e t h e r
        or n o t w e c o u l d n ' t r e s o l v e t h e e n t i r e s i t u a t i o n .
        - - - c o u r t ---- d e c i s i o n was,
        Wow, a s t h e                 w e l l knows what t h e
        and - c o u r t d e c i d e d - - a l o n g - -r b a r g a i n ,
        -       the                           t o go             with ou
        and - b a r g a i n ---l l y a c c e p t a b l e - -
        -       the                had been f u                              by t h e
        prosecution."             (Emphasis a d d e d . )
     The defense's affidavit which was filed on December
30, 1974, and served on the prosecutors, more explicitly
detailed the circumstances leading to the plea bargain and
its approval:
    "It was the Special Prosecutor's avowed initial
    intention to present this [the plea bargain] to
    the said Sheriff and family of the deceased
    before making our mutual presentation to the
    Court; it was the apparent understanding of all
    concerned, and especially this affiant, that if the
    Prosecution could not secure the approval of said
    Sheriff and the family of the deceased, that there
    would probably not be any necessity of presenting
    the situation to the Court;


    "The Prosecution then deemed - -
                                  it more expedient to
    approach the Court with this situation prior to
    any other consultation; that it was never the
    intention of your affiant, or his co-counsel, to
    ever allow the Sheriff of Pondera County or the
    family of the deceased, to have the power to
    'veto' over the negotiations then taking place,
    but that since contact with them would be made
    prior to our mutual approach to the Court, no
    harm to~efendant   would be done; however, your
    affianvs-attitude as it related to their being
    consulted after the mutual contact with the
    Court was opposite . . . if the Court refused to
    accept the plea bargain, the matter would be halted,
    or if the court accepted the offer, the Prosecution's
    contact with the Sheriff and family of the deceased
    would be for the purpose of pro forma consultation
    for the purpose of courtesy and to attempt to reduce
    the possibility of these parties causing adverse
    public opinion within Pondera County against either
    the County Attorney or the Special Prosecutor.
     "That your affiant and co-counsel left this meeting
     [with the trial judge] with the complete and
     unequivocal understanding that a final and complete
     bargain had been struck by all parties including
     the Court; that counsel for the Prosecution were
     then going to apprise the family of the deceased
     and the Sheriff of Pondera County of this agreed
     upon situation;" (Emphasis in original.)
     The affidavit further explained why the prosecutors
decided to call off the plea bargain--the prosecutors had
told defense counsel that they and others had heen threatened
with physical harm if they followed through with the agreement,
and implied that they had been in contact with other district
court judges who had advised them not to follow through with
t h e agreement.          The S t a t e a t no t i m e f i l e d a c o u n t e r a f f i d a v i t

o r made any s t a t e m e n t i n t o t h e r e c o r d r e f u t i n g o r denying

t h e f a c t s set f o r t h i n defense counsel's a f f i d a v i t .                The

S t a t e ' s o n l y r e s p o n s e a t t h i s t i m e was t h a t it d i d n o t have

t o follow through with t h e p l e a bargain, i n e f f e c t , t h a t it

had t h e u n i l a t e r a l r i g h t t o a b r o g a t e t h a t agreement.

         The t r i a l c o u r t a t no t i m e e n t e r e d f i n d i n g s o r c o n c l u s i o n s

on t h i s i s s u e , even though i t had p r e v i o u s l y approved t h e

p l e a b a r g a i n a f t e r more t h a n a t h r e e hour s e s s i o n i n chambers

on December 23, 1974.                 The t r i a l j u d g e ' s o n l y r e s p o n s e t o

McKenzie's c o n t e n t i o n s was:           "Well, o f c o u r s e , t h i s i s p l e a

b a r g a i n i n g , and i f t h e y [ t h e S t a t e ] d o n ' t want t o go t h r o u g h

with plea bargaining,               I d o n ' t suppose t h e y have t o . "            Supplemental

T r a n s c r i p t of December 30, 1974 Hearing, p. 5.                       See Appendix

t o A p p e l l a n t ' s B r i e f , Vol. I , S p e c i f i c a t i o n of E r r o r No. 2 .

         A f t e r s t a t i n g t h a t t h e p r o s e c u t o r was under no d u t y t o

p r o c e e d w i t h t h e p l e a b a r g a i n , t h e t r i a l judge confirmed t h e

e x i s t e n c e o f t h e p l e a b a r g a i n when he s p e c i f i c a l l y a s k e d t h e

prosecutor:           "Do you want t o proceed - - -t- a g r e e d
                                               t h e way t h a you

w i t h c o u n s e l l a s t Monday, t h e 23rd of December                 . . ."       (Emphasis

added.)        Supplemental T r a n s c r i p t of December 30, 1974 H e a r i n g ,

p . 5.      See Appendix t o A p p e l l a n t ' s B r i e f , Vol. I , S p e c i f i c a t i o n

of E r r o r No. 2.

         The p r o s e c u t o r responded t h a t he d i d n o t , and t h e c o u r t ,

w i t h o u t any f u r t h e r i n q u i r y announced t h a t t h e c a s e would go

to trial.         Supp. T r a n s c r i p t o f December 30, 1974 H e a r i n g , p. 6 .

See Appendix t o App.              B r i e f , Vol. I , S p e c i f i c a t i o n o f E r r o r No. 2 .

         Therefore, t h e m a j o r i t y ' s conclusion t h a t a p l e a bargain

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

         On J a n u a r y 3, 1975, f i v e d a y s b e f o r e t h e t r i a l , McKenzie

a g a i n f i l e d a motion t o compel t h e S t a t e t o honor t h e p l e a

bargain.         A s of t h i s d a t e , however, t h e r e i s a b s o l u t e l y no

e v i d e n c e i n t h e r e c o r d t h a t t h e S t a t e even contended t h a t i t
had given veto power of the plea bargain to the victim's
parents or the sheriff.    Yet, the trial court summarily
denied the motion, stating in a written order:
    "On January 3, 1975 defendant, through his counsel,
    made, filed, served and presented his 'Motion to
    Enforce Agreement of December 23, 1975' to the
    Court;
    "The Court having fully considered the matter
    upon the merits and deeming there to be no good
    reason for delay in the issuance of its decision
    upon the Motion, finds said motion to be without
    merit and denies the request contained in the
    prayer;
     "Therefore, it is hereby ORDERED that said Motion
     is denied.
    "DATED this 3rd day of January, 1975." Order Denying
    Motion to Enforce Agreement of December 23, 1974. See
    Appendix to Appellant's Brief, Vol. I, Specification
    of Error No. 2.
     The order, although claiming to deny the motion on
the merits, fails to state what those merits were.   Did the
trial court decide that an enforceable plea bargain did not
exist because it was expressly conditioned on the veto power
of the victim's parents or the local sheriff, or did it
decide that although a plea bargain existed, it was nonetheless
unenforceable because there are no Montana laws recognizing
a plea bargain?
     Before the start of trial, defense counsel moved
unsuccessfully to disqualify the trial judge.    It was urged,
among other grounds, that the trial judge had already
demonstrated bias and prejudice toward McKenzie by the
unconstitutional instructions he had prepared, that the
instructions created the nonexistent offenses of deliberate
homicide by means of torture and deliberate homicide by
lying in wait or ambush.
     On January 8, 1974, the morning the trial began, the
prosecutors asked the trial judge for permission to add
58 more witnesses to the Information.   McKenzie opposed
this motion, arguing that it was prejudicial to him because,
among other reasons, the defense, in relying on the plea
bargain agreement, had revealed its defense and the State's
weaknesses.   True to form, the trial judge permitted the
additional 58 witnesses.     Order Granting Motion for Endorse-
ment of Names of Witnesses on Amended Information.    See
Appendix to Appellant's Brief, Vol. I, Specification of Error
No. 7.
    After McKenzie was convicted, but before his sentencing,
defense counsel filed motions for a hearing on mitigation,
and for a new trial.     The motion for mitigation again requested
the benefit of the abrogated plea bargain by asking the court
in effect, to enforce the plea bargain by not sentencing McKenzie
to any more than 50 years in prison.    That motion was summarily
denied.   In the motion for a new trial, McKenzie alleged
prejudice by the addition of 58 additional witnesses on the
first day of trial, and that this prejudice resulted from the
prosecutor's abrogation of the plea bargain.    This motion was
also summarily denied.
    At sentencing McKenzie again asserted that he should
receive the benefit of the plea bargain by receiving no more
than 50 years in prison and his motion was also summarily denied.
     That is the extent of the record on the plea bargain issue,
and that is the record this Court should have relied upon in
deciding the plea bargain issue.    But to do so would mean that
McKenzie would be given affirmative relief, a result that this
Court did not want.    Instead, this Court chose to ignore the
record.
     Although the State had ample opportunity to do so, it
at no time during these proceedings made a record either
refuting or denying McKenziets detailed assertions that the
State unilaterally abrogated an enforceable plea bargain.     I

am at a loss, then, to understand how this Court was able to
r e a c h i t s d e c i s i o n s on t h i s i s s u e i n McKenzie -,

557 P.2d I


a t 1038;       ( t h e i s s u e was o m i t t e d from t h e McKenzie - o p i n i o n )
                                                                        I1

McKenzie 111,

608 P.2d

a t 438-39;                       and now i n McKenzie -- ,
                                                                              IV

38 St.Rep.        a t 1 7 6 1 (which e x p r e s s l y r e l i e s on t h e McKenzie

- holding).
I11                      The r e c o r d i s b a r r e n o f even t h e s u g g e s t i o n

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

n o t e x i s t , j u s t a s t h e r e c o r d i s a l s o b a r r e n o f any s u g g e s t i o n

by t h e S t a t e t h a t t h e p l e a b a r g a i n was e x p r e s s l y s u b j e c t t o

v e t o power by t h e v i c t i m ' s p a r e n t s o r t h e s h e r i f f .         The o n l y

c o n c l u s i o n s u p p o r t e d - -e r e c o r d
                                      by t h                i s t h a t an e n f o r c e a b l e

p l e a b a r g a i n e x i s t e d and t h a t t h e S t a t e u n i l a t e r a l l y b r e a c h e d

t h a t agreement.

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

t o f a s h i o n a remedy t o e n a b l e t h e S t a t e t o back away from a n

enforceable plea bargain,                   and t h e r e f o r e n o t i n t e r f e r e w i t h

McKenzie's a p p o i n t m e n t w i t h d e a t h , i t w a s f i r s t incumbent

on t h i s C o u r t t o s t a t e t h e f a c t s a s t h e y a p p e a r - - r e c o r d ,
                                                                           i n the

and t h e n somehow d e c i d e t h a t PJcKenzie i s n o t e n t i t l e d t o t h e

b e n e f i t of t h e p l e a b a r g a i n .    W e have d e n i e d McKenzie even

t h e most r u d i m e n t a r y a p p e l l a t e r e v i e w , l e t a l o n e t h e m e t i c u l o u s

a p p e l l a t e r e v i e w mandated by t h e U n i t e d S t a t e s Supreme C o u r t

f o r - death penalty cases.
      all

     B.  THIS COURT'S DECISION I S NOT BASED ON THE T R I A L RECORD,
BUT INSTEAD I S BASED ON UNSUBSTANTIATED STATEMENTS MADE F R  O
THE FIRST TIME I N THE STATE'S APPELLATE BRIEFS

        A s a l r e a d y s t a t e d , t h i s C o u r t , i n McKenzie -, c l e a r l y
                                                                         I

recognized t h a t a p l e a bargain e x i s t e d .                 But, a l t h o u g h t h e

o p i n i o n i s as vague a s vague can b e , i t a p p e a r s t h a t t h e

Court e i t h e r held t h a t t h e p l e a bargain w a s s u b j e c t t o an

express condition t h a t t h e S t a t e prosecutors                        obtain the

c o n s e n t o f t h e v i c t i m ' s f a t h e r and of t h e s h e r i f f , o r t h a t

t h e p l e a b a r g a i n was u n e n f o r c e a b l e b e c a u s e McKenzie had n o t
entered his plea when the prosecutor surprised defense
counsel by announcing that the "deal was-
                                - - off."           557 P.2d at
1038.
     Either holding is indefensible.     A holding based on
recognition of an express condition of third party consent

to the plea bargain is contrary to the record in this case.
And a holding that a plea bargain can be unilaterally
cancelled by the prosecutor before the plea is entered ignores
both the essential basis of a plea bargain and the fact that

here McKenzie detrimentally relied on the plea bargain.
     The opinion expressed in McKenzie 111 and - is
                                               IV
indefensible because it is based not on the record, but on
contentions announced for the first time in the State's

appellate briefs.     The opinion is further indefensible because
                   trial court found - - - of consent -
it states that the --                the issue        in
favor - - State.
      of the            This ignores the fact that there was

neither a hearing nor findings on this issue.      This Court has
in effect, manufactured a case based on a record that does
not exist.

        The first two paragraphs of McKenzie 111, 6 0 8 P.2d at
438-39, recite what this Court considered to be McKenzie's
contentions, stating several times that the events were
alleged to occur "according to the defendant."      Yes, indeed,
even though they did occur according to the defendant, the

undeniable fact is that the record was absolutely unrefuted

by the State.
        The next two paragraphs of McKenzie 111, 6 0 8 P.2d 438-
39,are devoted to discussion of the State's contentions that:
the plea bargain was initiated by the defendant; the State had
always maintained that any plea bargain was conditioned upon
a veto by the victim's parents and the sheriff; the State
could not meet with the victim's parents until December
26; because the State could not obtain consent from the
victim's parents there was no further plea bargaining; and
finally, the State's assertion that McKenzie did not
detrimentally rely on the plea bargain because the information
given the State by the defendant was either worthless or
already known.   It may well be that these truly are the
State's contentions--in their appellate briefs.     But if so,
the record is absolutely barren of these contentions.    The
State raised these contentions for the first time when it
filed its brief responding to McKenzie's assertion that the
State and the trial court had violated the plea bargain.
    The next paragraph of the Court's opinion in McKenzie

-

608 P.2d

at 439, disposes of the issue, stating:
111,
    "This issue turns on the existence of the
    alleged plea bargaining agreement. The trial
     #   -
    iudse acce~tedthe State's version - - h r
                                       o f  -



    situation Hnd refused to enforce the alleged
                                                -




    agreement contended for by defendants. We -
                                            - hold
    that where, as - the existence - - -
                   here, -             of any plea
                         - none was made,
    bargaining agreement was disputed and there is
    substantial evidence ----there is
                         that
    nothing to enforce --- court's actions
                       and the trial
    - - regard were correct." (Emphasis added.)
    in this
     This language is entirely contrary to the record--
upon which an appellate court is to base its rulings.    The
only evidence in the record does support McKenzie's contention
that an enforceable plea bargain existed; the only evidence
in the record is that the prosecutor unilaterally abrogated
that agreement; and, the only evidence in the record is that
the trial court never ruled on any disputed versions--for
McKenzie's version - - disputed.
                   was not             The trial court simply
refused to enforce the plea bargain.
     It is sad indeed that this Court decided this issue solely
on representations made by the State in its appellate briefs.
A plea bargain,             i n a c a s e such a s t h i s where t h e d e a t h

p e n a l t y i s t h e r e a l i s s u e , c e r t a i n l y d e s e r v e s more r e l i a b l e

consideration than t h i s .

        F i n a l l y , i n an e f f o r t t o undermine McKenzie's c l a i m

t h a t he d e t r i m e n t a l l y r e l i e d on t h e p l e a b a r g a i n , t h e

m a j o r i t y a g a i n a b s o l u t e l y m i s s t a t e s t h e r e c o r d by c o n c l u d i n g

t h a t t h e r e was n e i t h e r t h e c o n t e n t i o n n o r proof by d e f e n s e

counsel t h a t t h e prosecution abrogated t h e p l e a bargain i n

bad f a i t h .     The o p i n i o n s t a t e s :

        "As w e u n d e r s t a n d i t , t h e r e i s n e i t h e r c o n t e n t i o n
        n o r proof of bad f a i t h by t h e S t a t e i n i t s
        d i s c u s s i o n w i t h d e f e n s e c o u n s e l on a p l e a b a r g a i n
        o r i n i t s e f f o r t t o s e c u r e t h e a p p r o v a l of t h e
        sheriff o r the victim's parents                        . . ."

608 P.2d

a t 439.

        This statement absolutely f l a u n t s t h e record.                            A t the

J a n u a r y 3, 1975 m e e t i n g w i t h t h e t r i a l c o u r t and p r o s e c u t o r ,

defense counsel s t a t e d :

         ". . .      W d e a l t w i t h them [ t h e p r o s e c u t o r s ] i n
                       e
        good f a i t h , and now w e do f e e l t h a t t h e y have
        n o t d e a l t w i t h u s i n good f a i t h . W e do f e e l t h a t
        t h i s i s a v i o l a t i o n o f t h e canons of e t h i c s ,
        s p e c i f i c a l l y as it r e l a t e s t o c a n d o r , and s p e c i f i c a l l y
        a s it r e l a t e s t o l e t t i n g someone e l s e , some o u t s i d e
        l a y p e r s o n , make d e c i s i o n s , o r make l e g a l d e c i s i o n s ,
        a s it r e l a t e s t o t h e i r c o n d u c t of t h i s t r i a l . "     (Tr.
        of J a n u a r y 3 , a t 1 6 . )

        The a f f i d a v i t d e f e n s e c o u n s e l f i l e d and s e r v e d on t h e

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

t h a t t h e p r o s e c u t i o n had v i o l a t e d t h e Canons of P r o f e s s i o n a l

E t h i c s by a c t i n g i n bad f a i t h :

         ". . .       your a f f i a n t b e l i e v e s , and h a s r e a s o n t o
        believe, t h a t t h e counsel f o r t h e S t a t e , both
        t h e County A t t o r n e y and S p e c i a l P r o s e c u t o r , have
        m i s l e d c o u n s e l f o r Defendant, v i o l a t e d , o r a r e
        a t t e m p t i n g t o v i o l a t e , t h e r i g h t s of Defendant,
        and have engaged i n u n e t h i c a l c o n d u c t i n v i o l a t i o n
        of t h e Canons of P r o f e s s i o n a l E t h i c s and t h e Code
        o f P r o f e s s i o n a l R e s p o n s i b i l i t y ( S e e Canons, 5 , 6 ,
        7 , 8 , 9, 1 5 , 1 6 , 2 2 , 24, 25, 31, 3:,, 3 5 , and 4 1 o f
        t h e Canons o f P r o f e s s i o n a l E t h i c s . )         (Defense
        counsel's a f f i d a v i t a t 5.)
     The majority has simply misstated the record in
order to justify its next statement that defense counsel's
detrimental reliance argument is unfounded.   The majority
states:
        ". .
          . Under these circumstances any statements
     of defense counsel concernina weaknesses - -
     -                                        in the
     state's& -or d e f p o s i t i m n e c t i o n
             -
     therewith were gratuitous and premature. In any
     event, a trial is not a sporting contest in which
     the verdict turns on nondisclosure of such matters.
     Discovery procedures are designed and operated to
     remove this element and had been extensively and
     exhaustively utilized at the time in question."
     (Emphasis added.)

608 P.2d

at 439.
    Again, the unrefuted record demonstrates that after
a 3-hour long meeting with the trial court on December 23,
                a plea bargain - - -
1974, and after - -            had been made, defense counsel
met with the prosecutors at the O'Haire Manor in Great Falls
and revealed their defense and the weaknesses in the State's
case.    This was done specifically in reliance on the plea
bargain in an effort to permit the prosecution to better
explain to the public, including the victim's parents and
the sheriff, why the plea bargain was necessary.   The details
of this meeting and the reliance placed on the agreement
are stated again in the unrefuted affidavit of defense counsel:
     "Subsequent to this meeting with the Court,
     counsel for the Prosecution and the Defendant
     met in the O'Haire Manor; pursuant to the tacit
     agreement to aid the Prosecution control the lsicl
     influencing of public opinion by the Sheriff of
     Pondera County, your affiant outlined the strategy
     and those facts that would have been emphasized
     by the defense had this matter gone to trial;
     that your affiant explained to the Prosecution
     its problem areas of proof as visualized by counsel
     for the defense; that this information was provided
     to justify the agreement heretofore entered into and
     to explain to the Sheriff that it was through his own
     ineptitude that put the Prosecution to the problem
     of possibly not being able to get certain pertinent
     evidence before the jury, and where certain assumptions
     being made by the Sheriff and Prosecution were fallacious;
     "That your affiant and co-counsel left this meeting
     with the complete and unequivocal understanding that
     a final and complete bargain had been struck by all
     parties including the Court; that counsel for the
     Prosecution were then going to apprise the family of
     the deceased and the Sheriff of Pondera County of this
     agreed upon situation; .   .
                                ." (Emphasis added.)
     Beyond these unrefuted allegations of detrimental
reliance and good faith, I also find the majority's statement
ridiculous that what the defense had revealed to the State was
gratuitous, worthless, or already known.    If the State had
already known the weaknesses in its case, it would not have
moved the court to add 58 more witnesses to the Information
on the morning of trial.   I have never heard of granting
such a motion under such circumstances.
    "An agreement between the parties which is
    approved by the trial judge cannot be turned
    aside simply because of the exigencies of the
    moment. Public pressure and publicity certainly
    cannot justify the breach of an agreement, no
    matter how ill-considered the agreement may
    appear to have been . . . No attorney in the
    state could in good conscience advise his client
    to plead guilty and strike a bargain if that
    attorney cannot be assured that the prosecution
    must keep the bargain and not subvert the judicial
    process through external pressure whenever the
    occasion arises.
     "A plea bargain is a binding agreement between the
     defendant and the state which is subject to the
     approval of the court. When the prosecutor breaks
     the plea bargain, he undercuts the basis for the
     waiver of constitutional rights implicit in the
                           v. - York, supra, 404 U.S.
     plea. In Santobello - New --
     at 263.

92 S. Ct. 495

, the United States Supreme
     Court noted that there are two alternative-forms of
     relief available to the defendant under these
     circumstances. The court can permit the accused
     to withdraw his plea and be tried anew on the
     original charges, or grant specific performance
     of the agreement .  . . In a concurring opinion,
     Justice Douglas emphasized that 'a court ought
     to accord a defendant's preference considerable, if
     not controlling, weight inasmuch as the fundamental
     rights flouted by a prosecutor's breach of a plea
     bargain are those of the defendant, not of the
                          v. New York, supra at 267, 92
     State.' Santobello - - -
     S.Ct. at 501. " State v. Tourtellotte (1977), 88
     Wash.2d 579,

564 P.2d 799

, 802-03.
     I can only conclude that this Court's holding contrary

to the undisputed record that there was noplea bargain is
but another example of the arbitrary manner in which this
State handles those cases where the underlying issue is
whether a person is going to live or die.    If this had been
a r u n o f t h e m i l l c a s e , I have no d o u b t t h a t t h i s C o u r t

would have g i v e n t h i s i s s u e more c a r e f u l c o n s i d e r a t i o n and

concluded t h a t t h e r e w a s a n e n f o r c e a b l e p l e a b a r g a i n .          But

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

a d e a t h s e n t e n c e i s more i m p o r t a n t t h a n c a r e f u l l y s c r u t i n i z i n g

t h e r e c o r d t o d e t e r m i n e whether t h e d e f e n d a n t ' s r i g h t s w e r e

protected.          What w e have done t o McKenzie by m i s s t a t i n g

t h e r e c o r d on t h i s p l e a b a r g a i n i s s u e i s a b s o l u t e l y i n d e f e n s i b l e .

I cannot believe t h a t a f e d e r a l c o u r t w i l l agree t h a t we

have g i v e n McKenzie t h e m e a n i n g f u l , mandatory a p p e l l a t e

r e v i e w which w e have been o r d e r e d t o g i v e t o a l l d e a t h

penalty cases.
IV. PkKENZIE WAS CONVICTED OF DELIBERATE HOMICIDE BY
MEANS OF TORTURE--A CRIME NOT DEFINED IN MONTANA LAW
    McKenzie claimed in his first appeal to this Court
(App. Brief, issue no. 12, Val. 11, at 178-92) and in each
of his subsequent appeals that he was convicted of
"deliberate homicide by means of torturew--a crime which is
not defined by statute in Montana.      This Court, however,
has failed to address that issue in any of its opinions.
Perhaps the McKenzie - opinion can be excepted from this
                     IV
statement in the sense that it does not appear that McKenzie
again raised the issue before the District Court in his
petition for post-conviction relief      that he was convicted
of a nonexistent crime.
    Nonetheless, this issue is so important, so fundamental,
that this Court cannot be excused from mentioning and
deciding the issue in either McKenzie - McKenzie - or
                                      I,         11,
McKenzie -
         111.    This Court had an unequivocal duty to declare
either that McKenzie was not convicted of a separately
defined offense of deliberate homicide by means of torture,
or that deliberate homicide by means of torture is a crime
expressly defined by statute in Montana.      This Court did
neither, but left the issue undecided.      It would appear,
however, that the Court, in writing the opinion, proceeded
on the assumption that it is a substantive offense defined
by statute.     On at least four occasions the majority opinion
states that McKenzie was convicted of the offense of deliberate
homicide by means of torture.     See

608 P.2d

at 434, 436,
438 and 457.

     When I dissented to McKenzie -- and - I was unaware
                                  I1     111,
that McKenzie had previously raised the issue that he had
been convicted of a nonexisteng crime.      However, in reviewing
the instructions in preparing a dissent to the majority's handlinq
of the unconstitutional Sandstrom-type instructions in P1ci:enzie

- it became clear to me that McKenzie may well have been
111,
convicted of a nonexistent crime which added even more to
the specter of unfairness which has permeated the handling
of this cause at trial and on appeal.   During the present
appeal, I have taken the time to examine the record more
thoroughly and I am now convinced that McKenzie was convicted
of and has been sentenced to hang for the crime of deliberate
homicide by means of torture--a nonexistent offense in this
state.
     Section 94-5-101, R.C.M. 1947 (now section 45-5-101,
MCA), states that "[a] person commits the offense of
deliberate homicide if he purposely, knowingly or negligently
causes the death of another human being."     That statute then
classifies criminal homicide into three categories--deliberate
homicide, mitigated deliberate homicide, or negligent homicide.
Section 94-5-102 (I), R.C.M. 1947 (now section 45-5-102 (1),
MCA) states that   ". . . criminal homicide   constitutes
deliberate homicide if (a) it is committed purposely or
knowingly; or (b) it is committed while the offender is
engaged in or is an accomplice in the commission of, an
attempt to commit, or flight after committing or attempting
to commit robbery, sexual intercourse without consent,
arson, burglary, kidnapping, felonious escape or any
other felony which involves the use or threat of physical
force or violence against any individual."      It is obvious

that neither statute mentions a substantive offense called
deliberate homicide by means of torture.
     Subsection (2) of section 94-5-102, R.C.M.    1947
(now section 45-5-102 (I)), MCA, provides that " [a] person
convicted of the offense of deliberate homicide shall be
punished by death or life imprisonment as provided in
section 95-2206.6 through 95-2206.15, R.C.M.   1947 [now
sections 46-18-301 through 46-18-310, MCA]..    . ."   The only
statutory reference to "deliberate homicide by means of
torture" is found in a sentencing statute (section 94-5-
105 (1)(d), R.C.M. 1947, now section 46-18-303 (a), MCA) which,
at the time of McKenzie's trial, provided:
     "(1) When a defendant is convicted - -
                                         of the
     oifense of deliberate homicide, the court shall
     impose asentence of death in the following
     circumstances, unless there are mitigating
     circumstances:
     "(a) The deliberate homicide was committed
     by a person serving a sentence of imprisonment
     in the state prison; or
     "(b) The defendant was previously convicted
     of another deliberate homicide; or
     "(c) The victim of the deliberate homicide
     was a peace officer killed while performing
     his duty; or
     "(d) The deliberate homicide was committed
     bv means of torture: or
     "(e) The deliberate homicide was committed
     by a person lying in wait or ambush; or
     "(f) 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." (Emphasis added.)
The emphasized aggravating circumstance contained in
subsection (d) is that which the trial judge changed into
a substantive offense.
     The Information in this case charged McKenzie with
seven counts of deliberate homicide.    The first count
charged that McKenzie purposely and knowingly caused the
death of the victim.     The second count charged that he
purposely and knowingly caused the death of the victim by
means of torture.   The third count charges. that he purposely
and knowingly caused the victim's death while committing
the crimes of sexual intercourse without consent (count 4),
aggravated assault causing serious bodily injury (count 5),
aggravated assault causing bodily injury by use of a weapon,
namely a rope (count 6), and aggravated assault causing
bodily injury by use of a weapon, namely a heavy object (count 7).
     The issue of whether the prosecution could charge
McKenzie with one count of deliberate homicide by means of
torture, and another count (among others) of deliberate
homicide by means of lying in wait or ambush, was raised in
this Court for the first time before McKenzie ever went to
trial.   See, State ex rel. McKenzie v. District Court (1974),

165 Mont. 54

525 P.2d 1211

.   This case involved a petition
for a writ of supervisory control, requesting that the trial
court limit the charges to only those charges in which
probable cause had been shown.   This Court expressly ruled
that the charges of deliberate homicide by means of torture
and deliberate homicide by lying in wait or ambush    do not
constitute substantive offenses.   This Court stated:
    "We believe these seven counts of deliberate
    homicide should be reduced to two, in accordance
    with the alleged facts and the statutory definition
    of the crime. The statute tells us there are
    two kinds of unmitigated deliberate homicide     ..
                                                      .
    The first kind is committed when the offense is
    committed 'purposely or knowingly.' The second
    kind is committed when the offense is committed
    .    ..while the offender is engaged in or is an
    accomplice in the commission of, or an attempt to
    commit, or flight after committing or attempting
    to commit robbery, sexual intercourse without consent,
    arson, burglary, kidnapping, felonious escape or
    any other felony which involves the use or threat
    of physical force or violence against any individual.'
    The first count should be similar to the first count
    in the present information; i.e. it should simply
    allege that the crime was committed 'purposely and
    knowingly.' The second count should allege
    alternatively that the crime was committed while
    the relator was engaged in other felonies. These
    could include aggravated assault, sexual intercourse
    without consent and aggravated kidnapping.
     "It - neither appropriate nor necessary to
      - is
     base separate counts - torture or lying -
                           on                 in
     wait, counts 2 and 3. Section 94-5-105.
     criminal - - -
              ~ode-o?-i913, deals with sentencing
                                  --
     and does not define a specific crime. If
     ---
     torture or lying in wait, or both, are alleged
     as part of the second count, the defendant is
     sufficiently notified of what the prosecution
     intends to prove. If justified by the evidence,
     the court may instruct on these two features and
     ask for a special verdict on them to assist in
     fixing the penalty." State ex rel. McKenzie v.
     District Court (1974),

165 Mont. 54

, 64-65,

525 P.2d 1211

, 1217. (Emphasis added.)
     It appears that the prosecutor dismissed counts 2 and
3 after that ruling, but then amended the Information so
that McKenzie was charged with:
           .
     ". . DELIBERATE HOMICIDE, a felony,. . by   .
     purposely or knowingly causing the death of the
     said LANA HARDING:
     "1.   by means of torture; or
     "2.   by lying in wait or ambush;.   . ."
I think it is fair to assume that the prosecutor intended
to charge McKenzie with deliberate homicide and then
additionally alleged his theories relating to the methods
by which that homicide occurred.     The trial judge, however,
ignored this Court's ruling in State ex rel. McKenzie v.
District Court, supra, and in fact, instructed the jury at
both the beginning and the end of the trial that McKenzie
was charged with the crimes of deliberate homicide by means
of torture and deliberate homicide by lying in wait or ambush.
     Both the defense counsel and the prosecutors objected
to these instructions before the trial began, and they filed
written objections to the instructions.    The prosecutors'

written objections stated:
     "That said PRELIMINARY INSTRUCTIONS include
     misstatements of the law, and are confusing
     and redundant.
     "That said Preliminary Instructions give no
     citation as to source or authorities.
     "[Instruction no. 231 That the title 'Deliberate
     Homicide by Means - Torture' incorrectly states
                       of
     the crimecharged, which is 'Deliberate Homicide'
     Section 94-5-102. The matter of torture arises
                                   -
     under the punishment statute, Section 94-5-105
     (1)(
      t~d
      a.
       h)          the use of the title 'Ueliberate
     Homicide By Means of Torture' is misleading.
     "[Instruction no. 241 -- title 'Deliberate
                                That the
     Homicide By Means of Lying in Wait or Ambush'
     incorrectly s t a t e s t h e m c h a r g e d , which is
     'Deliberate Homicide,' Section 94-5-105(1)(e).
     That the use of the title 'Deliberate Homicide
     by Means of Lying in Wait or Ambush' is misleading.
     That the use of the terms 'killing' and 'kill' is
     improper. Such terms are not found in any
     applicable statute. That the proper term is
     'causes of death of,' as cited in Section 94-5-
     101." (Emphasis added.)
    Notwithstanding the prosecutors' and defense counsel's
objections to the court's proposed 'Preliminary Instructions,'
the trial court determined nonetheless to give them exactly
as proposed.
    At the beginning of the trial, just before the trial
started and the court was to give its 'Preliminary Instructions,'
defense counsel again objected to the instructions creating
the offense of deliberate homicide by means of torture and
deliberate homicide by means of lying in wait or ambush.
The following exchange took place between court and defense
counsel:
     "Defense counsel: Will you give us the
     statutory-place that you find deliberate homicide
     by means of torture offense?
     "The Court: This is punishable by death, period.
     They said it is a punishment offense. - -
                                             If they
     say it is a punishment offense - - - offense.
                                    it is an
     In the statute you will find in the common law
     and in the case law, that is the only place you
     are going to find it." (Tr. at 183; emphasis added.)
Defense counsel lodged the following objection:
    "At this point may the record indicate we
    object to all the instructions which any
    place indicate that there is an offense named
    deliberate homicide by means of torture,
    deliberate homicide by lying in wait, - - we
                                          since
    find - statute which says that such a thing
    --   no
    exists." (Tr. at 183; emphasis added.)
    The pertinent instructions which were read t o t h e
jury before the presentation of the evidence, and then
taken by the jury to the jury room at the time the case was
submitted to the jury, read as follows:
     Instruction - -
                 No. 22.   Deliberate Homicide Defined.
    "In this case, insofar as we are concerned with
    the offense of deliberate homicide, you are
    instructed:
    "Deliberate homicide is one kind of criminal
    homicide. Homicide is deliberate homicide if:
    "(a) it is committed either purposely or
    knowingly;
    "(b) it is committed while the offender is
    engaged in or is an accomplice in the commission
    of, or an attempt to commit kidnapping, or any
    other felony which involves the use or threat of
    physical force or violence against the individual.
    "Proof that the defendant acted both purposely
    and knowingly is not required. Proof of either
    of said mental states is sufficient."
                - 23.
    Instruction No. --     Deliberate Homicide by Means
    of Torture Defined.
    "Deliberate homicide by means of torture insofar
    as we are concerned with the definition thereof
    in this case is:
    "Whoever purposely assaults another physically
    for the purpose of inflicting cruel suffering
    upon the person so assaulted for the particular
    purpose of enabling the assailant to either:
    "(a)   extort anything from such person;
    "(b) or to persuade such person against his
    or her will, or
    "(c) to satisfy some untoward propensity of
    the assailant,
    "and in so doing the assailant causes the death
    of the person he assaults, in the law is guilty
    of the offense of Deliberate Homicide by Means
    of Torture, whether or not it was the purpose
    or intention of the assailant to cause such death.
    "'Untoward propensity' means any perverse, wrong,
    bad or corrupt inclination or tendency."

                - 24. Deliberate Homicide by Means
    Instruction No.-
    of Lying in Wait or Ambush Defined:
     "~eliberate Homicide by means of lying in wait
     or ambush, insofar as we are concerned with the
     definition thereof in this case is:
     "Whoever conceals himself, and watches and waits
     for another with the particular purpose of taking
     such person unawares, and killing him, and he does
     kill him is Guilty of Deliberate Homicide by means
     of lying in wait or ambush."
     By these instructions, the trial court unequivocally
told the jury that McKenzie was charged with three substantive
homicide offenses--deliberate homicide (instruction no. 22);
deliberate homicide by means of torture (instruction no. 23);
and deliberate homicide by means of lyirig in wait or ambush
(instruction no. 24).   I note, however, that the charge of
deliberate homicide by means of lying in wait or ambush is
not a direct factor in the error committed in this case,
because that charge was dismissed at the conclusion of the
trial because of insufficient evidence to support it.
     In instruction no. 29, the trial judge distinguished
the mental states that the jury must find to have accompanied
the charged acts of deliberate homicide and deliberate
homicide by means of torture.   That instruction stated:




     "The offense of Deliberate Homicide requires that
     the voluntary act (the Killing) have been
     committed by the defendant either knowingly or
     purposely or that it was committed in the commission
     of a forcible felony.


     "The offense of Deliberate Homicide by Means -
                                                  of
    Torture requires that the voluntary act (the
    physical infliction of cruel suffering) be done
    purposely and in addition thereto that it was done
     for the particular purpose of enabling the
    ,assailanteither:
     "(a)   to extort something from the person assailed;
     or
     " (b) to persuade the assailed against his or her
     will;

     "(c) to satisfy some other untoward propensity
     of the assailant.  ...
                          " (Emphasis added. )
The l a s t s e n t e n c e of p a r a g r a p h I1 t o l d t h e j u r y t h a t

it need n o t f i n d t h a t McKenzie i n t e n d e d t o k i l l t h e v i c t i m
                                                                              of t o r t u r e .
i n o r d e r t o f i n d him g u i l t y o f d e l i b e r a t e homicide by means/

      Paragraph I11 of t h i s i n s t r u c t i o n s e t s f o r t h t h e m e n t a l

state       the       t r i a l judge d e c i d e d was n e c e s s a r y f o r a con-

v i c t i o n of d e l i b e r a t e homicide w h i l e l y i n g i n w a i t o r ambush.

However, t h e t r i a l judge c r o s s e d o u t p a r a g r a p h I11 w i t h a

l a r g e X and w r o t e "Dismissed-Disregard" n e a r i t .

        One o f t h e f i n a l i n s t r u c t i o n s t o t h e j u r y      (instruction

no. 54) d i r e c t e d t h e j u r y t o f i r s t c o n s i d e r t h e c h a r g e of

d e l i b e r a t e homicide by means of t o r t u r e b e f o r e d e c i d i n g any

of t h e r e m a i n i n g c h a r g e s .   It states i n pertinent part:

        " I f you a d o p t t h e G u i l t y of D e l i b e r a t e Homicide
        v e r d i c t form you a r e asked t o f i n d on t h a t form
        whether t h e ~ e l i b e r a t e     Homicide was by Means of
        T o r t u r e - - i- i s t h e most s e r i o u s - - r e m a i n i n a
                      as th s --                                of the         .
                                                                               ,
        c h a r g e s of d e l i b e r a t e homicide made a g a i n s t t h e
        defendant,"          (Emphasis a d d e d . )

        Notwithstanding t h e f a c t t h a t t h e t r i a l c o u r t i n s t r u c t e d

t h e j u r y t h a t t h e c h a r g e o f d e l i b e r a t e homicide by means of

t o r t u r e w a s t h e most s e r i o u s of t h e r e m a i n i n g c h a r g e s ( t h e

c h a r g e of d e l i b e r a t e homicide by means of l y i n g i n w a i t o r

ambush had been d i s m i s s e d ) , t h e t r i a l c o u r t a l s o i n s t r u c t e d

t h e j u r y t h a t McKenzie need n o t have t h e i n t e n t t o k i l l h i s

v i c t i m i n o r d e r t o be c o n v i c t e d o f t h e o f f e n s e o f d e l i b e r a t e

homicide by means of t o r t u r e :

        I n s t r u c t i o n No. 3 4 .    Methods of Proof A p p l i c a b l e
        t o ~ e l i b e r a t e ~ o m i c i d e Means o f T o r t u r e :
                                            by

        "The m e n t a l s t a t e o f p u r p o s e l y a s s a u l t i n g a n o t h e r
        p h y s i c a l l y t o i n f l i c t c r u e l s u f f e r i n g upon t h a t
        p e r s o n f o r a p a r t i c u l a r purpose c a n n o t be proved
        by u s i n g t h e l e g a l p r e s u m p t i o n s you have been
        d i r e c t e d t o u s e i n t h e proof of d e l i b e r a t e
        homicide, and must be proved by t h e u s e o f
        inferences alone.

        " T h e r e f o r e , i f you f i n d from t h e e v i d e n c e beyond
        a r e a s o n a b l e d o u b t t h a t t h e d e f e n d a n t , on o r
        a b o u t J a n u a r y 21, 1974, i n Pondera County, Montana,
     purposely assaulted Lana Harding physically
     and inflicted cruel suffering upon her and in
     so doing caused her death, you are permitted
     to infer, that is, deduce or reason from the facts
     and circumstances which are proved in connection
     therewith, that he did so for one or more of the
     particular purposes; either,
     " (a) to extort something from her, or
     "(b) to persuade her to do something against her
     will, or

     "(c) to satisfy some other untoward propensity
     of the defendant.
     "And if you find one or more of said particular
     purposes to have been proved beyond a reasonable
     doubt and that the defendant killed her while
     purposely so inflicting cruel suffering upon
     her, - - committed the offense of Deliberate
          he has
     Homicide by Means of Torture, whether - -
                                           it was
     or - - -
     -  was nothis intention to kill her."   (Emphasis
     added. )
     The problem with these confusing instructions becomes
abundantly clear when the verdict forms are considered.
The trial judge provided the jury with only one guilty
verdict form for deliberate homicide.   That verdict form
provided :
     "A. We the jury in the above-entitled cause
     find the defendant guilty of the offense of
     Deliberate Homicide as charged.
     "B. We further find that the Deliberate
     Homicide (was) (was not) by Means of Torture.
     "(Strike out the bracketed word or words which
     do not apply."
In order to complete this verdict form, it was necessary
for the jury to refer to instruction no. 23 (defining
deliberate homicide by means of torture), instruction no.
29 (defining requisite mental state for deliberate homicide
by means of torture), and instruction no. 34 (methods of
proof applicable to deliberate homicide by means of torture).
Reference to these instructions established that (1) McKenzie
could be convicted of a separate offense called dkliberate
homicide by means of torture, and (2) the jury could convict
for this dffense whether - - - -
                         or not it was McKenziers intent

- - - the victim.
to kill
     The homicide conviction can be upheld against an attack
that the   jury convicted   him   of a nonexistent crime, only
by a declaration of an appellate court that the erroneous
jury instructions were harmless error.    To reach that
judgment here an appellate court would have to conclude
beyond a reasonable doubt that the jury, despite the erroneous
instructions, nonetheless found - of the elements to exist
                                all
to sustain a conviction for deliberate homicide.    The essential
facts are not the same, however, and there is no basis to
determine this question.    Contrary to the deliberate homicide
instructions, which require that the jury find an intent to
kill the victim, the deliberate homicide by means of torture
instructions permitted the jury to convict McKenzie of this
offense "whether - - - - - not his intention to kill her."
                 it was or was -
    Under even the most lenient test of appellate review,
an appellate court would be compelled to declare that the
instructions creating and defining a nonexistent crime of
deliberate homicide by means of torture    were not harmless
error, and in fact, that the probability is that the jury
convicted McKenzie of this nonexistent crime.    Because,
however, this is a death penalty case, I believe that the
stringent test for harmless error, as set out in Chapman v.
California (1967),

386 U.S. 18

87 S. Ct. 824

17 L. Ed. 2d 705

,
must be applied.   Under this test, an appellate court must
be prepared to declare beyond a reasonable doubt that the
jury verdict was correct despite the erroneous instructions.
                         in this case
To make that declaration/an appellate court would have to bury
its head in the sand.
        The j u r y v e r d i c t , i n s o f a r a s t h e d e a t h p e n a l t y i s

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

based on a j u r y d e c i s i o n t h a t t h e d e f e n d a n t p o s s e s s e d t h e

purpose of k i l l i n g t h e victim.                I a g r e e w i t h J u s t i c e White

t h a t it i s v i o l a t i v e o f t h e E i g h t h Amendment t o impose t h e

d e a t h p e n a l t y w i t h o u t such a j u r y f i n d i n g .        L o c k e t t v . Ohio

( 1 9 7 8 ) ,

438 U.S. 586

, 624,

98 S. Ct. 2954

, 2983,

57 L. Ed. 2d 973

, 1002,         (White, J . , c o n c u r r i n g ) .       Instructions expressly

p e r m i t t e d t h e j u r y t o f i n d McKenzie g u i l t y of t h a t o f f e n s e

         i t was o r w a s n o t h i s i n
"whether - - - - - - t e n t i o n - -l l " t h e v i c t i m .
                                           to ki

Because o f t h e s e i n s t r u c t i o n s , i n o r d e r t o uphold t h e d e a t h

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

t h e i n s t r u c t i o n s , t h e j u r y found t h a t McKenzie - i n t e n d t o
                                                                     did

k i l l t h e victim.         The r e c o r d i n t h i s case f o r e c l o s e s such a

declaration.

        The U n i t e d S t a t e s Supreme C o u r t h a s made a b u n d a n t l y

c l e a r t h a t any p r o c e d u r e s a t t r i a l which d i m i n i s h t h e r e l i a b i l i t y

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

a death penalty.              I n Beck v. Alabama ( 1 9 8 0 ) , 4 4

7 U.S. 625

,

638,

100 S. Ct. 2382

, 2389-2390,

65 L. Ed. 2d 392

, 403, t h a t

Court s t a t e d :

        "To i n s u r e t h a t t h e d e a t h p e n a l t y i s       ...       imposed
        on t h e b a s i s o f ' r e a s o n r a t h e r t h a n c a p r i c e o r
        e m o t i o n , ' [ t h e c o u r t s ] have i n v a l i d a t e d p r o c e d u r a l
        r u l e s t h a t t e n d e d t o d i m i n i s h t h e r e l i a b i l i t y of
        t h e sentencing determination.                     --e r e a s o n i n g
                                                            The s a m
        must a p p l y t o r u l e s t h a t d i m i n i s h t h e r e l i a b i l i t y
        - -e g u i l t d e t e r m i n a t i o n . "
        of t h                                             (Emphasis a d d e d . )

        What c a n b e a b e t t e r c a s e t o a p p l y t h i s r u l e t h a n h e r e

where t h e t r i a l judge c r e a t e d and i n s t r u c t e d t h e j u r y on a

s u b s t a n t i v e o f f e n s e n o t d e f i n e d by s t a t u t e , where t h e r e i s

t h e h i g h e s t o f p r o b a b i l i t i e s t h a t t h e j u r y c o n v i c t e d McKenzie

of t h a t offense--deliberate                 homicide by means of t o r t u r e , and

where t h e j u r y w a s a l s o t o l d t o d e c i d e t h e q u e s t i o n o f
intent by the use of eight unconstitutional Sandstrom-type

instructions?   The jury's verdict, and the sentencing court's

death sentence based on that verdict, is so unreliable that
due process requires not only that the death penalty be

vacated but that the conviction be reversed.
V. THE EVIDENCE IS INSUFFICIENT TO SUPPORT A FINDING
THAT THE VICTIM DIED BY MEANS OF TORTURE
     An issue raised in all of McKenzie's appeals, and which
goes to the heart of whether a death sentence can be imposed,
is his contention that there is not substantial evidence to
support the jury's finding that the victim met her death by
means of torture.   Nowhere in any of the four opinions issued
in this case has this Court set forth the evidence which would
support this finding. .The evidence discloses that the victim
had been choked with a rope around her neck, and that at some
point the pressure of the rope around the neck was somewhat
released.   The evidence establishes that the victim's death
was caused by a brutal beating with a heavy instrument which
laid open the right side of her head.   However appalling the
circumstances are, these facts do not establish that the
victim met her death "by means of torture."
     Before discussing this issue as it relates to the
imposition of the death penalty, I must first preface my
remarks with the horrible, procedural problems which have
followed this case from beginning to end--procedural problems
that belie even the suggestion that McKenzie received a fair
trial.   I have already concluded in part IV of this dissent,
that the jury most likely convicted McKenzie of a nonexistent
crime--deliberate homicide by means of torture.   Assuming this
to be the case, it matters little whether substantial evidence
supports the jury's finding that the victim met her death "by
means of torture." Tf McKenzie was convicted of a nonexistent
crime, he cannot be punished for that crime, and therefore,
that conviction must be reversed and dismissed.
     Assuming that the jury did convict McKenzie of deliberate
homicide under either section 94-5-102 (a) or (b), R.C.M. 1947
(the only permissible methods by which a deliberate homicide
could be charged and a conviction upheld), and further assuming
that the trial court properly instructed the jury on the
definition of deliberate homicide "by means of torture," the
question becomes:   - - victim tortured?
                    was the                   If substantial
evidence supports the jury's finding, then the sentencing
court did have a legal basis for imposing the death penalty,
but if there is not substantial evidence, then the sentencing
court had - legal basis for imposing the death penalty.
          no
     McKenzie raised this issue in his first appeal, but it
was not mentioned in McKenzie - nor specifically discussed in
                              I
either McKenzie - or -
                I1   111.   Undoubtedly, the author of McKenzie

- and - relied on the issues as they were stated in McKenzie
I1    I11


     The only facts concerning the manner in which the death
occurred   were set forth in a general factual statement in
McKenzie - 557 P.2d at 1027, and repeated in McKenzie - 587
         I,                                           11,
P.2d at 1-10, and in McKenzie 111,

608 P.2d

at 435:
     "On the morning of January 23, Wednesday, the
     body of Lana Harding was found at a location
     called the 'drill site' in the area of K & K
     Wholesale Seed & Co. The body was clothed only
     in a shirt, sweater and bra and it was draped over
     the tongue of a grain drill. She had been severely
     beaten about the head and body. The forensic
     pathologist who examined the body testified the
     death blow was one that was delivered to the head
     and laid open the right side. A rope was tied
     around her neck and there was evidence she had
     been strangled with it but pressure had been
     released so she did not die of strangulation.
     Entangled in her hair was a coil of wire, later
     shown to have come from a roll of wire found in
     the back of the Dodge pickup." 557 P.2d at 1027.
The Court, however, states no facts which actually support
the finding that the deliberate homicide occurred by means of
torture.
     The Court did not elaborate in McKenzie -
                                             11.   The same
essential facts were stated and the substantial evidence question
was decided later in the opinion.   The Court stated the issue
as follows:
     "Defendant argues the evidence is insufficient to
     justify the verdicts against him. He specifically
     argues that the evidence is insufficient to support
     the verdicts that defendant committed deliberate
     homicide by torture and that as a result of her
     aggravated kidnapping, Lana Harding died." 581 P.2d
     at 1226.
     The Court did not bother to discuss the evidence supposedly
supporting each of these findings.    Instead, it lumped the
issues together and concluded that substantial evidence did
indeed exist.    The Court held:
    "In this case, the evidence presented to the
    jury did not mislead them, nor was any of it
    ever misrepresented to them. The evidence was
    sufficient to justify the jury's finding that
    Lana ~ a r d i n g w a skilled by means of torture and
    that s h - - e d- - r o f her aggravated
    ---       edi- m l
    kidnapping by defendant." (Emphasis added.) 581
    P.2d at 1226.
This constitutes the Court's entire analysis of the evidence
and law on two issues absolutely vital to imposition of the
death penalty.
     Finally, in McKenzie 111,

608 P.2d

at 447-48, this Court
again relied on the same statement of facts used in McKenzie

- and -
I     11.   Then, in another part of the opinion, the substantial
evidence issues are again decided.    In reviewing these two jury
findings that are absolutely vital if a death sentence is to
be upheld, the Court states:
    "Defendant argues the evidence is insufficient
    to justify the verdicts rendered against him.
    He specifically argues that the evidence is
    insufficient to support - verdicts that-
                             the
    defendant cornimtted deliberate homicide by
    means of torture - - - -
                      and that as a result - e r
                                           ofh -
    aggravated kidnapping, Lana Harding died. This
    borders - - frivolous.. . .
            on the
    "In this case, the evidence presented to the
    jury did not mislead them, nor was any of it
     - -
    ever misrepresented to them. The evidence
    was sufficient to justify the jury's finding
    -- ~ a r d i ----- killed bv means of torture
    that Lana       nswas
    and that she died as a result of - aGravated
                                  - her      a a

    kidnapping - defendant.
               by
     "The rule- -
      - - - is that if substantial evidence is
     found to support - verdict, - - n d .
                      the         it m
     (citations omitted.) - -is the-
                          Such - - casehere."
     (Emphasis added.)

608 P.2d

447-448.
     This again constitutes the Court's entire review of
the j ury ' s two findings   .
     This review of these vital questions falls far short of
the careful scrutiny mandated by the United States Supreme
Court in all death penalty cases.
     Deliberate homicide "by means of torture" is not a self-
defining term.    I am uncertain whether this requires that the
death actually be caused "by means of torture" or whether it
is sufficient that the victim was tortured at some time before
death, even though the torture did not cause the death.     This
language, then, fails to contain the explicit guidelines necessary
to meet the exactitude required of a death penalty statute.
Especially because this is a death penalty statute, I would
declare it unconstitutional for vagueness.     I find it strange
indeed that the majority opinion has ignored the clear ambiguity
of the statute.     It would seem that this statute, to be con-
stitutional, must have either one meaning or the other, but here
its meaning has still been left in doubt.
     A necessary corollary to the ambiguity of this statute,
assuming that the statute is not unconstitutional, is that it
is at least ambiguous on its face and therefore requires judicial
construction to give meaning to the statute.     This judicial
construction, because it is a death penalty case, must be based
on the premise that the statute is to be strictly construed
against the State.    Applied here, the State must prove not only
that the victim was tortured, but also that the victim's death
was caused by that torture.      The evidence falls far short of
this requirement.
     The jury's verdict fails to disclose the basis for
its decision--that is, what acts constituted the torture, and
what conduct was relied on in inferring that McKenzie had
the intent to torture the victim.    The sentencing court's
findings (based primarily on the jury's verdict) are equally
vague.   The only two findings on this issue state:
     "4. The evidence in the case, and as found by
     the jury, discloses a brutal, conscienceless,
     torture, rape and deliberate killing of a human
     being.


     "6. That the jury rejected the verdict form
    finding the defendant not guilty by reason of
    a mental disease or defect which excludes
    responsibility for criminal conduct which was
    submitted to them - correctly found the
                      and
                                            --
    defendant guilty of deliberate homicide which
    ----
    was by meansttorture, and guilty of Aggravated
    Kidnapping which resulted in the death of the
    victim." (Emphasis added.)
     These findings reflect that the trial court relied on
the jury's verdict.    The findings are devoid of any evidence
from which the trial court could conclude that the victim was
in fact tortured.     The jury's verdict, the trial court's findings,
and this Court's three opinions fail to set forth evidence
supporting a finding of deliberate homicide "by means of torture."
What acts show that McKenzie intended to torture? What
evidence shows that the victim suffered extreme pain?    In fact,
what evidence shows that the victim was conscious when any of
the injuries were inflicted?
    As I stated before, the term "deliberate homicide by
means of torture" is not self-defining.    Nor do any Montana
cases or statutes define "torture."    Two factors, however, are
essential to "torture," and this is particularly so where
the "torture" is considered to be an aggravating circumstance
which may trigger imposition of the death penalty.     First,
the essential question is whether the defendant intended the
v i c t i m t o s u f f e r extreme p a i n b e f o r e d e a t h .            I find absolutely

no e v i d e n c e i n t h e r e c o r d t h a t McKenzie i n t e n d e d t o t o r t u r e

h i s victim.

        Second, t h e d e a t h p e n a l t y s t a t u t e i s s i l e n t on w h e t h e r

it r e q u i r e s t h e S t a t e t o prove t h a t t h e v i c t i m d i d i n f a c t

s u f f e r extreme p a i n b e f o r e d e a t h .          Torture obviously implies

extreme p a i n , and t h e r e f o r e I b e l i e v e t h a t , i n t h e a b s e n c e of

l e g i s l a t i v e d i r e c t i o n , s t r i c t c o n s t r u c t i o n of t h e s t a t u t e

a g a i n s t t h e S t a t e r e q u i r e s t h e S t a t e t o prove t h a t t h e v i c t i m

s u f f e r e d extreme p a i n as a r e s u l t of t h e t o r t u r e .                The

l e g i s l a t u r e had t h e r i g h t t o e x p l i c i t l y d e f i n e t h e t e r m

" d e l i b e r a t e homicide by means of t o r t u r e , " b u t i n s t e a d l e f t

t h e s t a t u t e ambiguous.            Because of t h e a m b i g u i t y of t h i s s t a t u t e ,

a d o u b t a r i s e s , and an a p p e l l a t e c o u r t must, i n c o n s t r u i n g

t h e s t a t u t e i n a d e a t h p e n a l t y c a s e , g i v e t h e b e n e f i t of t h a t

doubt t o t h e accused.                Beck v . Alabama ( 1 9 8 0 ) ,              44

7 U.S. 625

100 S. Ct. 2382

65 L. Ed. 2d 392

; Andres v . United S t a t e s ( 1 9 4 8 ) ,
                                                 L.Ed. 1055.

333 U.S. 740

68 S. Ct. 880

, 92/      S t r i c t c o n s t r u c t i o n demands

t h a t w e r e q u i r e proof t h a t t h e v i c t i m s u f f e r e d e x t r e m e p a i n

a s a d i r e c t r e s u l t of t o r t u r e b e f o r e h e r d e a t h .         A s I have

a l r e a d y s t a t e d , t h e r e c o r d does n o t s u p p o r t such a d e t e r m i n a t i o n .

        Another r e q u i r e m e n t i s t h a t t h e t o r t u r e must have caused

t h e v i c t i m ' s death.        A p a t h o l o g i s t t e s t i f i e d t h a t d e a t h was

c a u s e d by m a s s i v e blows t o t h e head.                These blows c a n n o t be

c a l l e d t o r t u r e , n o r can i t b e i n f e r r e d t h a t by t h e s e blows

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

e v i d e n c e o f t o r t u r e i s t h e f a c t t h a t a r o p e was wrapped around

t h e v i c t i m ' s neck and a t one t i m e t h e p r e s s u r e of t h e r o p e on

t h e neck was somewhat r e l e a s e d .                The p a t h o l o g i s t , however,

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

t h i s w a s done, and, more importantrl.1,lie t e s t i f i e d t h a t d e a t h

was n o t c a u s e d by st;ranguhthn, b u t by m a s s i v e blows t o t h e v i c t i m ' s
head.     This evidence clearly does not support a finding that
death was caused "by means of torture."
        Nor does the evidence establish that McKenzie -
                                                      intended
to torture the victim.     The only evidence is indirect evidence--
the condition of the victim's body and the manner in which the
assault took place.     It cannot be doubted that the body was
savagely beaten, but murder by torture cannot be inferred
either from the condition of the body or from the manner in
which the assault took place.
        In People v. Wiley (1976), ln3 Cal.Rep. 135,

18 Cal. 3d 161

554 P.2d 881

, the State of California, in seeking to
uphold a murder by torture conviction, argued that torture
could be inferred from the condition of the victim's body
and from the manner of the assault.      In rejecting this argument,
the California Supreme Court stated:
        ". . .    She [the appellant] correctly notes that
       murder by torture cannot be inferred solely from
       the condition of the victim's body. (People v     .
       Bevea (1974), 38 CaLApp.3d 176, 201,

113 Cal. Rptr. 2

 5 4 ) , or from the mode of assault or injury suffered
       (People v. Tubby (1949)

34 Cal. 2d 72

, 77,

207 P.2d 51

), but other evidence of intent to cause suffering
       is also reauired. r~itazonsomitted.]"
       --
       --                                            (Emphasis
       added.) 5<4 P.2d at 884.
       That situation applies here.    Evidence established that
the victim had been savagely beaten, but the condition of
her body did not establish that she was tortured.       Nor can the
fact that she was choked affirmatively establish that McKenzie
intended to torture her.     In People v. Bender (1945),

163 P.2d 8

, 16, the California Supreme Court, in reviewing a contention
that strangulation establishes the fact of torture, stated:
        "The evidence does not, as the People contend,
        compel the inference that the killing was murder of the
        f i w t degree perpetrated by means of torture.
        [Citations omitted.] Whether or not the two wounds
        on deceased's head, the immediate cause of
        death, were the result of defendant's striking
        her with a blunt instrument, the evidence, as
        a matter of law is insufficient to prove torture.
      The killer who, heedless of the suffering of his
      victim, in hot anger and with the specific intent
      of killing, inflicts the severe pain which may
      be assumed to attend strangulation, has not in
      contemplation of the law the same intent as one
      who strangles with the intention that the victim
      shall suffer.. .. "
The Court also expressly rejected any implication in People
v. Duggan (1943),

61 Cal. App. 2d 379

, 143 P.Zd 88, that.
choking constitutes torture as a matter of law.      163 P.2d at
16.   The holding in Bender is especially applicable here
because we are interpreting a death penalty statute which must
be strictly construed against the State.   Strict construction
of the statutory language--"deliberate homicide by means of
torturev--requires an appellate court to hold that choking
does not, as a matter of law, establish torture.
      Even a disagreement as to whether the statute is uncon-
stitutionally vague on its face must give way at least to a
conclusion that it must be strictly construed against the
State.   Here the evidence is insufficient to support the jury's
finding, no   matter which interpretation is used.    The evidence
does not establish that McKenzie intended to cause and did in
fact cause the victim's death by means of torture.     Nor does
the evidence establish that McKenzie tortured the victim before
he caused her death by means other than torture.     Nonetheless,
strict construction requires the statute be interpreted to mean
that the death was caused by "means of torture."      The torture
must cause the death.   Here there is no evidence that any of
McKenziels actions which might be characterized as torture by
even the most liberal interpretation of the evidence, caused
the death of the victim.    The blows to the head which caused
death are not the kind of blows which can be characterized as
torture.
      Clearly, then, the finding of "deliberate homicide by
means of torture" is not supported by substantial evidence,
and therefore, a necessary prerequisite to the imposition of the
death penalty has failed.
VI. DENIAL OF EQUAL PROTECTION OF THE LAW: SEARCH AND
SEIZURE, LESSER-INCLUDED OFFENSE INSTRUCTIONS, AND SANDSTROM
INSTRUCTIONS
     Because this Court has so inadequately dealt with the
issues raised, and has glossed over the real issue, I
quote from McKenziels brief where he argues he has been
denied--by this Court--equal protection of the laws:
    "As discussed above, the law this Court applied
    in Petitioner's case at trial and on appeal was
    wholly inconsistent with established Montana
    authority: on the tests and procedure for obtaining
    warrants, on submission to the jury of lesser
    included offenses clearly supported by the evidence,
    and on the harmless error test in Sandstrom violations,
    amons other issues. From the outset of this case,
    petitioner has been placed in a class by himself on
    these points, while he has been tried under an outdated
    and unconstitutional statute applicable only to one
    case, his.
    "With all respect, Petitioner submits this Court has
    shifted the grounds for its decisions, acting con-
    sistently only in affirming Petitioner's conviction
    and death sentences. Petitioner and Petitioner alone
    has been permitted to (be) [sic] tried by a jury
    instructed on the law so erroneous under Sandstrom
    that both he and the prosecution objected--through
    application of a 'harmless error' test uniquely
    used in this case. Only in his case has a search
    warrant been allowed to be based on unrecorded
    'testimony.' Only in his case has a judge been
    allowed to refuse to instruct on a lesser included
    offense clearly warranted by the evidence submitted
    in his defense, the offense of mitigated deliberate
    homicide (see Defendant's Proposed Instruction No.
    21, 25--an error of constitutional dimension affecting
    the reliability of his conviction. Cf., Beck v.
    Alabama,

48 U.S.L.W. 4801

 (June 20, 1980). Only in
    his case has the repealed Montana Death Penalty Law
    been allowed to remain in force after a new law, with
    different protections, was enacted.
     "This allegation is not based on Petitioner's
     observation alone. Cf., State v. McKenzie, supra,

608 P.2d

at 459-488 (Shea, J., dissenting). Petitioner
     has not been fairly and equally treated in this case.
     He is entitled to the same rights afforded any other
     criminal defendant tried in this State. The failure
     to afford him those rights, and this death sentence
     imposed under this one-case set of legal rules,
     constitutes a fundamental denial of equal protection
     of the law." Petitioner's Brief, pp. 20-21.
     In congratulating itself on the review given to McKenzie,
the majority opinion states:
        ". . .       I t w i l l he n o t e d t h a t some of t h e i s s u e s
        have been c o n s i d e r e d by t h i s C o u r t n o t once b u t
        two and t h r e e t i m e s .         I n a l l t h e a n n a l s of
        c r i m i n a l j u s t i c e i n t h i s s t a t e , w e f i n d no c a s e
        i n which a s i n g l e d e f e n d a n t h a s r e c e i v e d more
        tender l e g a l c a r e (using 'tender' i n t h e sense
        of c a r e f u l and s e n s i t i v e h a n d l i n g ) . " 38 St.Rep. a t 1749.

        I f what h a s happened i n t h i s c a s e i s t h e m a j o r i t y ' s

i d e a of t e n d e r l e g a l c a r e , I d o u b t t h a t anyone i n t h i s

s t a t e would l i k e t o have h i s c a s e s i m i l a r l y c o n s i d e r e d .

To an o f f e r o f t h i s C o u r t of such " c a r e f u l , " and " s e n s i t i v e "

t r e a t m e n t , any p e r s o n i n h i s r i g h t mind would u n h e s i t a t i n g l y

respond:         "Thanks, b u t no t h a n k s . "

A.     SEARCH AND SEIZURE

        McKenzie's a l l e g a t i o n s on t h e s e a r c h and s e i z u r e i s s u e s

a r e s i m p l e , d i r e c t , and c o r r e c t .    H e a r g u e s t h a t r u l e s on

s e a r c h and s e i z u r e must be a p p l i e d u n i f o r m l y .        But h e c o n t e n d s

t h a t i n s t e a d he h a s been i s o l a t e d and s p e c i a l r u l e s on s e a r c h

and s e i z u r e have been a p p l i e d t o him t h a t have n o t a p p l i e d t o

other defendants.               I must a g r e e .       I s t a t e f i r s t t h a t I adhere

t o m d i s s e n t i n S t a t e v . McKenzie ( 1 9 7 8 ) , 177 Mont. a t 333,
     y

581 P.2d 2.t1235,on t h e s e a r c h and s e i z u r e q u e s t i o n s .               There,

I s e t o u t j u s t how w e had v i o l a t e d t h e Montana and U n i t e d

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

be v a l i d .

        But McKenzie now r a i s e s t h e same i s s u e s i n a d i f f e r e n t

context.         H e c o n t e n d s , of c o u r s e , t h a t h i s c o n s t i t u t i o n a l

rights w e r e violated.               But h i s c l a i m now i s t h a t i n a d d i t i o n

t o v i o l a t i n g h i s r i g h t s d i r e c t l y , w e have a l s o v i o l a t e d h i s

r i g h t s because w e have d e n i e d him e q u a l p r o t e c t i o n of t h e

law by s e l e c t i n g him a s t h e o n l y p e r s o n who does n o t have

constitutional rights.                 (McKenzie's b r i e f on a p p e a l , pages

5-7,    20-22.)       The m a j o r i t y h a s i g n o r e d t h i s i s s u e e x c e p t
to say that the issues are res judicata.    The issue of
denial of equal protection is not res judicata, however,
and the majority has failed to answer it.
    McKenzie first contends that the majority violated the
four-corners rule, contrary to all previous and all later
decisions of this Court, by permitting unwritten (and
possibly even unsworn) testimony in support of an application
for a search warrant.    McKenzie is absolutely correct.   I
dissented on this issue in McKenzie - 177 Mont. at 337,
                                    11,
581 P.2d at 1237, and I need not repeat that dissent here.
The facts speak for themselves.
     I note, furthermore, that Justice Morrison, not on this

Court in any of the previous McKenzie appeals, has also
decided that the search warrant application violated the
constitution.
     But now the majority has relied on a new res judicata
rule to deny each of McKenzie's claims relating to illegal
search and seizure.     In denying review of these issues, we
have effectively denied him equal protection of the law. The
facts are irrefutable that we have applied different constitutional
standards to McKenzie than to any other criminal defendant.
     McKenzie's second argument contends that the application
for the search warrant, and the search warrant itself were
overbroad, lacking the specificity required and consequently
that the search was converted into an unconstitutional

general search--a dragnet operation.    Again, I agree.    I
dissented on this issue in McKenzie - 177 Mont. at 333,
                                    11,
581 P.2d at 1236, and I need not repeat that dissent here.
     And just as surely, the majority cannot take refuge
in the special McKenzie res judicata rule applied here.
Never has this Court permitted a search warrant, and
never has this Court permitted a search as broad and
general as was undertaken in this case.    We have sillq.led8
out McKenzie as one who cannot assert that the search was
converted into a general dragnet operation devoid of any
constitutional restraints.
     Third, McKenzie argues that even assuming probable
cause evidence could be received beyond the confines of
the search warrant application, probable cause still did
not exist for the issuance of a search warrant.    Again, I
agree.   I dissented on this issue in McKenzie -

177 Mont. 11

,
at 382, 581 P.2d at 1263, and I need not repeat that
dissent here.
     This issue has never been fully and finally decided
because the majority never set forth the evidence contained
in the application for a search warrant.    A general conclusion
as to sufficiency cannot be substituted for a factual state-
ment setting forth the evidence contained in the application.
In failing to set forth this evidence, the majority has
again applied different constitutional standards to McKenzie
than to any other criminal defendant, and he has been denied
equal protection of the law.
     Fourth and finally, McKenzie has raised a search and
seizure issue which this Court has steadfastly refused to
mention in its opinions.     Even assuming that the four-corners
rule did not apply to search warrant applications, McKenzie
argues that all of the evidence or testimony presented to
the justice of the peace still did not establish that there
were seizable items at the places to be searched.    McKenzie
is again correct.   The application for search warrant only
describes the places to be searched, it does not state
any evidentiary basis by which it can be concluded that
the seizable items would be found there.    Nor do any of
the unrecorded statements establish a basis to conclude
that seizable items would be found at the places described
in the search warrant application.    In fact, there is not
even an attempt to establish this necessary constitutional
nexus.     I dissented on this issue in McKenzie -

177 Mont. 11

,
at 378, 581 P.2d at 1260, and again I need not repeat that
dissent here.
     Because the majority has never decided McKenzie's
claim that in applying for the search warrant the State
made absolutely no showing that seizable items would be
found at the places to be searched, I fail to see that
this issue is precluded even by this Court's application
of its special McKenzie res judicata rule.    How can an
issue be fully and finally decided if it has been entirely
ignored?
     It has always been fundamental and axiomatic to
constitutional law that probable cause to obtain a search
warrant must include probable cause to search the place
or places described in the application for the search
warrant.     If a reasonable basis is not provided for t l
                                                        ie
magistrate to believe that seizable items are located at
the place to be searched, there cannot be a search, it is
as simple as that.     Zurcher v. Stanford Daily (1978),

436 U.S. 547

98 S. Ct. 1970

56 L. Ed. 2d 525

.     See also Carroll
v. United States (1925),

267 U.S. 132

45 S. Ct. 280

, 69 L.Ed
543; and Brinegar v. United States (1949),

338 U.S. 160

69 S. Ct. 1302

93 L. Ed. 1879

.
But here the search warrant applications made absolutely
no attempt to show a reasonable basis to believe that
seizable items would be found at the places to be searched.
     Even this Court has recognized this axiomatic principle
of search and seizure law.    In State v. District Court (1921),

59 Mont. 600

198 P. 362

, this Court quoted some fundamental

principles of search and seizure law from Cooley on Constitu-
tional Limitations:
        .
     ". . But as search warrants are a species of
     process exceedingly arbitrary in character, and
     which ought not to be resorted to except for
     very urgent and satisfactory reasons, the rules
     of law which pertain to them are of more than
     ordinary strictness; and if a party acting under
     them expects legal protection, it is essential that
     the rules be carefully observed. In the first
     place, they are only to be granted in the cases
     expressly authorized by law, and not generally in
     such cases until after a showing made before a
     judicial officer, under oath, that a crime has been
     committed and that the party complaining has
     reasonable cause to suspect - - offender, -
                                       that the           or
     the property whichwas - subject - -
                             - the            or the
     instrument - - crime, - concealed - -
                 of the             is           in some
     specified house - -
                       or place. And - - in requiring
                                      -   the law,
     - showing of reasonable -- suspicion, intends
     a                             cause for
     that evidence - - - - - - be given of such facts as shall
                    shall
     satisfy - magistrate - - suspicion - --
              the                 that the           iswell
     founded; - - suspicion - - - no ground
               for the                itself is
     - - warrant except - - facts justify it."
     for the                      as the
      (Emphasis added.) 198 P. at 365.
     The situation before us is not a question of determining
how much evidence is sufficia-kto provide the magistrate with
reasonable grounds; rather,the situation here is that the
search warrant applications provided absolutely no basis for
the magistrate to independently determine that seizable items
were located on the premises to be searched.     Because of this
major defect in the search warrant application, all items
seized pursuant to the execution of that search warrant      were
illegally seized.
     I have no hesitation in stating that this Court, by
denying McKenzie the fundamental constitutional protections
guaranteed by the state and federal constitutions, by its
selective application of search and seizure law, has added
another constitutional violation to the long list already
existing--we have denied him equal protection of the laws.
B.   SANDSTROM-TYPE INSTRUCTIONS
     Although the Sandstrom-type instruction issue has been
previously litigated, McKenzie's contention in this appeal
is that in the manner we have applied the harmless error
rule to the instructions, we have denied him equal protection
of the laws.   He says we have chosen a standard of harmless
error to apply to him that we have never applied to any other
defendant.   To that I must agree.   Not only did the majority
in McKenzie I11 adopt a harmless error test that should never
be applied to instructions, but it is true that we have never
applied that test to any other defendant.    That, call it by
whatever other name you like, is a denial of equal protection
of the laws.
      Intent was an issue at the trial of this case.   In
Sandstrom v. Montana (1979),

442 U.S. 510

99 S. Ct. 2450

61 L. Ed. 2d 39

, the United States Supreme Court held that

an instruction stating that "a person is presumed to intend
the consequences of his voluntary act"    is unconstitutional
because it shifts the burden to the defendant on an essential
element of the crime--intent.   The Supreme Court remanded
Sandstrom to this Court to determine whether the unconstitutional
instruction may have been harmless.    We promptly ruled that
the error was not harmless, and that Sandstrom was entitled
to a new trial because we could not say beyond a reasonable
doubt that the instruction had no effect on the jury's decision.
State v. Sandstrom (1979), - Mont     . -,

603 P.2d 244

, 35 St.
Rep. 744.
                             -84-
    Although the United States Supreme Court decided the
issue in Sandstrom, the issue had been raised by McKenzie
at his trial in January 1975 and in all of his appeals since
then.     It just so happened that because of the procedural
morass that the McKenzie case has been involved in, the
United States Supreme Court first directly decided the
constitutionality of the instruction         Sandstrom.   After the
Sandstrom decision, the United States Supreme Court (even
though McKenzie had raised many meritorious constitutional
issues other than the Sandstrom instruction issue) remanded
the McKenzie case back to this Court to determine whether the
Sandstrom-type instructions given at the McKenzie trial were
harmless error.
        Oddly enough, only one unconstitutional instruction was
given in the Sandstrom case.     But in the McKenzie case eight
of these unconstitutional jury instructions were given to the
jury.    Notwithstanding this situation, this Court, in deciding
McKenzie 111, held that the unconstitutional instructions
were harmless error because of the overwhelming evidence of
guilt.     State v. McKenzie (1980),      Mont . -

608 P.2d

,
at 457, cert.den. - U.S.          ,

101 S. Ct. 626

66 L. Ed. 2d 507

 (1980).     In my dissent to McKenzie 111, I concluded that
the eight unconstitutional instructions could not be harmless
error.     Intent was an issue in the case and McKenzie presented
evidence that he did not have the required mental state to


issue in the case, it cannot be stated beyond a reasonable
doubt that eight unconstitutional instructions stacing
that a person is presumed to intend the consequences of his
voluntary act     are harmless error.    I further stated that
the overwhelming evidence test for harmless error cannot
legitimately apply to jury instructions which have been
declared unconstitutional.   And finally, I pointed out
that on previous occasions, in assessing the impact of the
unconstitutional Sandstrom-type instruction, we had never
applied the overwhelming evidence test.
    After our decision in McKenzie 111, McKenzie then for
the third time petitioned the United States Supreme Court for a
writ of certiorari--raising many important constitutional
issues that this Court erroneously decided.     Without comment,
a majority of the members of the United States Supreme Court
denied his petition for certiorari, stating only that "[tlhe
petition for a writ of certiorari is denied."    But Justices
Marshall and Brennan dissented.   In an opinion stating why
they would grant certiorari, they strongly criticized this
Court for the way we had treated the McKenzie case.

449 U.S. 1050

, 1056,

101 S. Ct. 626

, 630,

66 L. Ed. 2d 507

, 510.
In particular, they were highly critical of the method by
which this Court had decided the Sandstrom issue.
     In stating why certiorari should be granted on the
Sandstrom issue, the dissent stated:
     ". ..  A state court's analysis of harmless
     error in a typical case may not present a
     question worthy of full review by this Court,
     yet, where, as here, the death penalty is the
     result, close scrutiny is required. Because
     I find the court's analysis of harmless error
     lacking of even-handed treatment, I dissent
     from this Court's denial of certiorari." 4 4 9
     U.S. at 1051.
     In describing the effect of this Court's use of this

erroneous overwhelming evidence harmless error test as applied
to unconstitutional jury instructions, the dissent stated:
     "The result [reached by the Montana Court]
     was perhaps inevitable once the state court
     selected the 'overwhelming evidence' of guilt
    standard to analyze whether the constitutional
    error was harmless. For whatever value that
    standard may have in reviewing a verdict following
    introduction of evidence in violation of con-
    stitutional guarantees, see, e.g., Milton v.
    Wainwright,

407 U.S. 371

 (1972), use of t h e
    standard actually precludes effective review of
    the prejudicial impact of unconstitutional jury
    instructions. Where isolated, tainted evidence
    is at issue, the reviewing court may exclude that
    evidence from its assessment of whether the
    remaining evidence supports the conviction. But
    where the constitutional error occurred in the
    jury instructions, no isolated portion of the
    record can be eliminated from the judicial assessment.
    Nor can the effect of the instructions be evaluated
    by examining the evidence alone, and ignoring the
    unconstitutional instructions. For the precise
    issue in such cases is the manner in which the
    jury could have assessed the evidence as a whole,
    not the importance of any particular piece of
    evidence to sustain the verdict. In selecting
    the 'overwhelming evidence' standard on the theory
    that 'an appellate court should review the case
    as a whole in assessing harmless or prejudicial
    error, '    Mont. at    ,

608 P.2d

at 458, the state
    court neglected to review the possible effect of the
    unconstitutional instructions on the jury's verdict."
    (Emphasis added.) 449 U.S. at 1054.
    The dissent then described how this Court had selectively
treated the McKenzie case in applying the overwhelming
evidence test to the unconstitutional Sandstrom-type instructions,
and then summed up its criticism of this Court's majority
opinion in McKenzie 111:
    "It appears that only in petitioner's case is
    the Montana court unwilling to apply this
    analysis. This seems to be yet another case
    in which a court sanctions 'egregious violations
    of the constitutional rights of criminal defendants
    by blandly reciting the formula 'harmless error.'
    Briggs v. Connecticut,

447 U.S. 912

, 915 (1980),
    (MARSHAEL BRENNAN, JJ., dissenting). However
              and
    unpleasant the facts of this or other cases may
    be, the courts are obligated to protect the
    constitutional rights of the defendant. Due to
    concern that petitioner's rights have not been
    preserved, this Court has already remanded this
    case twice. I can understand the Court's reluctance
    to entertain this case yet again, for we presume
    that lower courts adhere to the purposes of remands
    from this Court. Yet the Montana court has failed
    to fulfill its obligation to carry out the mandate
    of our decisions. Therefore, I would grant certiorari
    and set the case for plenary consideration." 449
    U.S. at 1056-7.          ,
     The message of this dissent is crystal clear.   This
Court adopted an erroneous standard of harmless error in
deciding the impact of the Sandstrom-type instructions.     And
this Court denied McKenzie equal protection of the laws by
selecting him as the only recipient of the "overwhelming
evidence" test as applied to unconstitutional instructions.
     It is in the light of how this Court applied the harmless
error analysis to one unconstitutional instruction in other
cases, and how this Court then applied the harmless error
analysis to eight unconstitutional Sandstrom-type instructions
in his case, that McKenzie now claims this Court has denied
him equal protection of the law.
     McKenzie bases his equal protection argument on precisely
what Justices Marshall and Brennan stated in their dissent.
When McKenzie later filed his petition for post-conviction
relief, he raised the equal protection argument, but the
District Court totally failed to answer that argument, and
now this Court has also failed to meet that issue.
     The assumption of the majority is simply that the
United States Supreme Court, implicitly at least, approved
of this Court's application, of the overwhelming evidence
test to apply to unconstitutional instructions.   Although
the opinion mentions that "two United States Supreme Court
justices disagreed in a dissenting opinion," the opinion
fails to mention that the issue raised by Justices Marshall
and Brennan in their dissent is precisely the issue now
raised here by McKenzie.
     The majority would have the denial of certiorari to be
a pronouncement on the merits.   The majority states:
     ". .
        . The position of this Court in McKenzie
     I11 was not disturbed when the United States
     -
     Supreme Court refused certiorari from the decision
     in McKenzie I11 (1980),

449 U.S. 1050

101 S. Ct. 626

, 66 L.~d.2d 507. True, two United States
     Supreme Court justices disagreed in a dissenting
     opinion. Nonetheless the majority of the
     Supreme Court found no reason when certiorari was
     sought with respect to McKenzie I11 to disturb
     the reliance of this Court on Milton v. Wainwright
     (1972),

407 U.S. 371

92 S. Ct. 2174

33 L. Ed. 2d 1

,
     to the effect that the constitutional infirmity is
     excluded where overwhelming evidence supports the
     conviction." 38 St.Rep. at 1754.
     The majority position is wholly unsupported by the law.
I have no idea why the United States Supreme Court denied
the petition for certiorari.      The petition raised many valid
constitutional issues other than the Sandstrom-type instruction.
The order denying certiorari states only that, "[tlhe petition
for a writ of certiorari is denied."       By this ruling, I
cannot fathom how this Court can state that the United
States Supreme Court has ruled favorably on our adoption of
the "overwhelming evidence" test of harmless error to be
applied to unconstitutional instructions.       If it has, that
Court has descended to a real low in constitutional inter-
pretation, for it then has abandoned any meaningful test of
harmless error.
     I am aware of no United States Supreme Court decision
which holds that a denial of certiorari is an affirmative
ruling on the merits in favor of resolving all issues the
same way the lower court decided them.       If this were so, a
denial of certiorari would also have the effect of creating
a res judicata defense to any petition brought in federal
court for a writ of habeas corpus or other post-conviction
relief.   Furthermore, language of Supreme Court decisions
indicates that a denial of certiorari is not a ruling on the
merits.
     In 1950, in State v. Baltimore ~ a d i oShow (1950),

338 U.S. 912

70 S. Ct. 252

, 94 L . E d .   562, Justice Frankfurter
stated that a denial of certiorari is not a determination
on the merits.   Whether he was truly speaking for the Court
when he made this statement, I do not know.      But if he was
not, the United States Supreme Court has never, to my knowledge,
made any pronouncements contrary to what was stated by
Justice Frankfurter.     And the general assumption is, based
on Justice Frankfurter's statement, that a denial of
certiorari is not a ruling on the merits.
     In the February 1971 issue of Judicature, The Journal
of the American Judicature Society, Vol. 64, No. 7, page
326, citing as authority Justice Frankfurter's statement in
Stet-   v.   Baltimore   Radio   ,Show, speaks to the effect of

a denial of certiorari by the United States Supreme Court:
    "The Court has consistently articulated one
    such self-imposed rule: That the Justices
    decide whether a case should be reviewed not
    on the basis of their agreement or disagreement
    with the outcome between the parties in the
    lower court, but on the basis of their assess-
    ment of the intrinsic importance of the issues
    in controversy. A denial of review, therefore,
    does not mean that the Court agrees with the
    outcome of the case in the lower court, and a
    denial carries no significance as a legal precedent.
    As Frankfurter explained: 'It simply means that
    fewer than four members of the Court deemed it
    desirable to review a decision of the lower court
    as a matter of "sound judicial discretion."'"
    (Emphasis added.)
     See also, Supreme Court Practice, Stern and Gressman
(1978), pages 353-360, where the authors state that the
denial of certiorari is not an affirmative statement that
the lower appellate court was right.
     For my part, I am sure I will always remain mystified
as to why, when the United States Supreme Court states no
reasons for denial, a petition for certiorari was denied.
In fact, more than any case in which I have been involved
or have become aware of, I am totally mystified as to why,
long ago, the United States Supreme Court did not grant full
review to McKenzie on all the constitutional issues he
has raised.    Never have I seen a case, in all its aspects,
so lacking in fundamental due process.
C. FAILURE TO GIVE LESSER-INCLUDED OFFENSE INSTRUCTION
ON - CHARGEOFLIBERATE
- THE        -             HOMICIDE
    An issue in each of McKenzie's appeals is his claim
that the trial court erred in refusing to give a lesser-
included offense instruction to the charge of deliberate
homicide.     Specifically, he alleged that psychiatric testimony
was introduced which, if believed, would support a conviction
of mitigated deliberate homicide rather than deliberate
homicide.     The psychiatrist testified that McKenzie was
incapable of forming the requisite criminal intent or conforming
his conduct to the requirements of the law.     If the jury
accepted his testimony, it could have found McKenzie guilty
of the lesser-included offense.    But the trial court refused
to give the instruction offered by McKenzie's counsel.       The
majority, for totally unfounded reasons, decided against him
on this issue     in McKenzie - 557 P.2d at 1043; McKenzie - -
                              I,                           11,
581 P.2d at 1224; and McKenzie 111,

608 P.2d

at 446.    Although
I did not dissent on this issue in any previous decision because

I concentrated on other issues and I did not have the time to
sufficiently study all claimed errors, I have now studied
this issue and am convinced that McKenzie is right.
     In his petition for post-conviction relief, McKenzie
alleged not only that the trial court and this Court had
already erred in not recognizing that a lesser-included
offense instruction should have been given, McKenzie also
alleged that this Court, in holding against him, deprived him
of equal protection of the law.     He alleges, and with good
cause, that we have set McKenzie up as the lone defendant who
would not be entitled to such an instruction under the
factual issue presented to the jury.   He alleges we have
set.up special rules to apply to him in order to uphold
the conviction.   McKenzie is right.
     It has long been the law of this state, and I am sure
it is the law of most states, that a defendant charged with a
crime is entitled to an instruction on any theory of defense
as long as there is support in the evidence for his theory.
This same law applies to a defendant's right to a lesser-
included offense instructions.   For example, see State v.
Bouslaugh (1978),

176 Mont. 78

576 P.2d 261

, State v. Buckley
(1976),

171 Mont. 238

557 P.2d 283

; and Keeble v. U.S.     (1973),

412 U.S. 205

93 S. Ct. 1993

36 L. Ed. 2d 844

.
    McKenzie presented evidence through a psychiatrist that
McKenzie was incapable of forming the intent necessary to
commit the crimes charged.   Based on this testimony he was
certainly entitled to a lesser-included offense instruction.
     Unfortunately, the majority, in each of the decisions
on this issue, never mentioned the evidence existing in
support of a lesser-included offense instruction.   The majority's
decision, in stating that no such evidence existed to justify
a lesser-included offense instruction, ignores the testimony
of the psychiatrist who testified for McKenzie.   In effect,
the majority became the finder of fact, rather than the jury.
See McKenzie - 557 P.2d at 1043; McKenzie - 581 P.2d at
             I,                           11,
1224; McKenzie 111,

608 P.2d

at 446.   The jury was entitled
to believe the psychiatrist if it chose to do so, but it
was prevented from even considering a lesser-included offense
because of the trial court's failure to give appropriate
instructions.
     In taking the position that the evidence justified
the giving of a lesser-included offense instruction, I am
fully aware that my conclusion that the jury convicted
McKenzie of deliberate homicide by means of torture--a
nonexistent offense--may appear to be inconsistent.     Obviously,
a lesser-included offense instruction could be given only in
relation to the deliberate homicide charge, that is, the
jury would be instructed that it could convict McKenzie of
the lesser-included offense of mitigated deliberate homicide
(section 94-5-103, R.C.M.   1947).   The deliberate homicide by
means of torture offense, however, being a creation of the
trial judge, has no lesser-included offense for the jury to
refer to.   I emphasize this fact only to show how horribly
wrong the jury instructions are in this case--they are an
absolute nightmare.
VII.    McKENZIE WAS DENIED A FAIR TRIAL
       McKenzie raised many issues relating to the conduct of
the trial and the instructions given to the jury. He argues
that if none of the errors are sufficient themselves to
grant a new trial, the doctrine of cumulative error certainly
requires that there be a new trial.    I have no doubt that
McKenzie should have been given a new trial even without the
benefit of the cumulative error doctrine.    On the other
hand, if ever there was a case in which to apply the doctrine
of cumulative error in granting a new trial, this is it--
this case is full of error.
       A.   INFLAMMATORY AND GRUESOME PICTURES
       The trial court permitted the State to introduce the
most gruesome and inflammatory pictures that can be con-
ceived. McKenzie contends that the pictures were not needed
to establish any fact, and that in any event, they were so
inflammatory and prejudicial they outweighed any possible
probative value they may have had.    I agree.   In McKenzie -
                                                             I,

171 Mont. at 320, 557 P.2d at 1046, (I was not then a
member of this Court), Judge Boyd, sitting for Justice
Castles, dissented on this issue and concluded that this
evidentiary error by itself entitled McKenzie to a new
trial.      Judge Boyd stressed that the pathologist testified
he did not need the pictures to explain his opinion on any
matter on which he testified, including the cause of death.
       Nonetheless, the trial court admitted the pictures,
despite the fact that it and the prosecutor had agreed that
the pictures were gruesome and inflammatory, and despite the
fact that the trial court had previously instructed the
prosecutor not to offer the pictures if the pathologist did
not need them to explain his testimony.
       Before the pictures were marked in front of the jury
and offered as evidence, defense counsel moved in chambers
to exclude the pictures.      The trial court agreed that the
colored picture of the victim's body at the place it was
found was "gruesome" and "inflammatory."       (Tr. at 519.) The
prosecutors also admitted that the pictures were gruesome.
(Tr. at 510-511.)      The trial court specifically directed the
prosecutors to ask the pathologist if he needed the pictures
to explain his testimony.      The court concluded by stating:
"If he doesn't need it, don't offer it."       (Tr. at 520.)
The pathologist, being questioned by defense counsel on
preliminary examination, stated in no uncertain terms that
he did not need the pictures to explain his testimony.
Notwithstanding this testimony and the directive of the
trial court, the prosecutor nonetheless offered the gruesome
pictures into evidence despite the defense counsel's objections,
and the trial court admitted them.
       The State made absolutely no showing that the pictures
were probative or that the prejudice inherent in showing
these pictures to the jury far outweighed any possible
probative value.      I agree with Judge Boyd, especially because
this is a death penalty case, that the pictures were so
inflammatory that a new trial is required.
       B.    ERRORS IN INSTRUCTIONS DEMAND A NEW TRIAL
       The trial court, in an unusual action, gave many prelimin-
ary instructions to the jury before testimony started.
McKenzie argues that it was improper in any case to give
preliminary instructions, but more importantly, that these
preliminary instructions were gross misstatements of the
law.        He also contends that many of the instructions given
to the jury at the conclusion of the trial were also gross
misstatements of the law, and that many were unconstitutional.
     In a proper case I see no harm, and perhaps even good,
in giving some preliminary instructions to the jury, parti-
cularly instructions relating to the evaluation of testimony
and evidence.   But here the instructions went far beyond
this purpose.   In fact they were so bad that the prosecutors,
as well as defense counsel, objected to them.
     On January 3, 1975, the prosecutors filed general
written objections which can be summarized as follows:
     "The instructions are misleading and would tend
     to deny defendant his right to a fair trial.
    "The instructions place undue emphasis on
    presumptions and inference and therefore
    would detract the jury from properly listening
    to testimony and observing the exhibits admitted
    into evidence (these presumptions were later
    declared unconstitutional by the United States
    Supreme Court in Sandstrom v. Montana (1979),

442 U.S. 510

99 S. Ct. 2450

61 L. Ed. 39

).
     "The instructions are redundant and confusing
     to the jury, as well as being misstatements of
     the law.
     "The instructions fail to disclose the trial court's
     source for this instruction.
     In addition, there were further specific objections
to the instructions which can be summarized as follows:
     "There is no statutory authority for reading to
     the jury the Counts in the Information as part of
     the statement of the case.
     "The title on the charge denominated as 'Deliberate
     Homicide By Means of Torture" incorrectly stated
     the crime charged (deliberate homicide), and
     that the considerations of torture arises only
     under a punishment statute, and that this title
     is misleading.
     "The charge denominated as 'Deliberate Homicide
     By Means of Lying - - -or Ambush' incorrectly
     -                 in Wait
     stated thecrime charged and that the consideration
     of whether the defendant was lying in wait or
     ambush arises only under a punishment statute,
     and that the use of this title is misleading."
     The State's written objections contained many more than
those I have summarized, but what I have set forth sufficiently
illustrates that the State had serious, meritorious objections
to the instructions given.   Notwithstanding the State's and
McKenzie's objections, the trial court proceeded to give 29
preliminary instructions, including definitions for its two
newly-created capital offenses: deliberate homicide by means
of torture and deliberate homicide by means of lying in wait
or ambush.   The majority's analysis of the issues raised
concerning the preliminary instructions omits even a reference
to the new capital crimes created by the trial court:
     "Defendant contends the extensive preliminary
     instructions given by the court were erroneous,
     that it was error to give them prior to the
     introduction of evidence, and that the remaining
     instructions given after the presentation of
     evidence were wrong.
    "The preliminary instructions were the usual
    instructions given on the role of the jury. In
                       --
    addition, included were a nurhber of instructions
    which - - - elements of -
          set out the          - thevarious crimes
    of which defendant was accused, - - out
    -                                and set -
                          -
    statutory definitions of terms used.
     "Montana's criminal code is written in clear
     plain language which serves well as the basis
     for instructions to the jury." (Emphasis added.)

608 P.2d

at 444.
     Had the majority properly studied the issues raised and
the instructions given, it would have realized that several
instructions were not only misstatements of the law, but
that the instructions defined two deliberate homicide charges
not defined as substantive offenses by Montana law--deliberate
homicide by means of torture and deliberate homicide by
means of lying in wait or ambush.   Furthermore, had the
majority bothered to read its own earlier case of State ex
rel. McKenzie v. District Court, supra, it would have
realized that the trial court instructed the jury precisely
in the manner in which it was told not to do.   The trial court
instructed on deliberate homicide by means of torture and
deliberate homicide by means of lying in wait or ambush even
though this Court stated in State ex rel. McKenzie v. District

Court of Ninth J.D.:
     "It is neither appropriate nor necessary to
     base separate counts on torture or lying in
     wait    ...Section 94-5-105, Criminal Code
     of 1973, deals with sentencing and does not
     define a specific crime." 525 P.2d at 1217.
And this Court further stated that references to the penalty
provisions of the Code are "unnecessary, redundant and
inflammatory."     525 P.2d at 1218.
     In facing these clearly erroneous instructions, this
Court had three choices:    First, this Court could have
refused to recognize the issues raised and therefore leave
them undecided, but create the appearance that they had
been decided.     Second, this Court could have recognized
the issue and then engaged in an extensive analysis of
whether the instructions, although clearly erroneous, were
harmless error.    Third, this Court could have done what it
should have done and granted a new trial because of the
instructions defining nonexistent capital crimes.    Sadly,
this Court made the first choice and avoided the issue.
     Add to this the fact that eight of the instructions
were, in one fashion or another, carbon copies of the
instructions held unconstitutional by the United States
in Sandstrom v. Montana, supra.    And aside from this, the
instructions as a whole are beyond any doubt the most
confusing and inconsistent set of instructions I have ever
seen.
     Errors in instructions alone require that McKenzie
have a new trial.
     C. VII. THE TRIAL COURT ERRED IN REFUSING DEFENSE
COUNSEL THE RIGHT TO VOIR DIRE THE JURY ON THE ISSUE OF
MENTAL DISEASE OR DEFECT
        The trial court was unjustified in refusing defense
counsel the right to question prospective jurors concerning
their attitudes on the defense of mental disease or defect.
Defense counsel did not refuse to give notice of this intent
merely out of obstinacy; but refused to do so in order to
preserve the issue for appeal.    He had already challenged
the constitutionality of the statute requiring that he give
such notice, and the trial court had already ruled against
him.   He did not later give a formal, written notice because
he wanted to, and in fact, did present the issue to this
Court in an appeal.    Because McKenzie dared to challenge the
constitutionality of the statute, he was denied the basic
right to question prospective jurors on the basic issue of
the trial.    The trial court's ruling can be viewed only as
the punishment for challenging the constitutionality of the
statute requiring that a defendant give such notice.      I
cannot imagine any ruling more prejudicial to a defendant at
that stage of the trial.    The fact that this is a capital
case only adds to the error and prejudice.
       The majority ruling upholding the trial court's decision
ignores the facts.    At no time did the State assert it was
surprised by defense counsel's request to question jurors on
their attitudes toward the defense of mental disease or
defect; the record shows that virtually from the inception
of his case, the State and trial court knew that McKenzie
would be asserting this defense.    In fact, several issues
raised and decided in McKenzie's appeals directly relate to
the issue of mental disease or defect.
       First, McKenzie claimed that the State cannot con-
stitutionally require him to give notice that he will rely
on the defense of mental disease or defect, but the majority
held against him.

608 P.2d

at 440-441.   This issue alone
should have foreclosed the majority from relying on the trial
court's ruling that this voir dire was not allowed due to
McKenzie's r e f u s a l t o g i v e n o t i c e .           Second, McKenzie

claimed t h a t t h e t r i a l c o u r t e r r e d i n r e f u s i n g defense

c o u n s e l ' s r e q u e s t t h a t a p s y c h i a t r i s t be p e r m i t t e d t o s i t

w i t h and a i d d e f e n s e c o u n s e l w h i l e t h e S t a t e ' s p s y c h i a t r i s t s

w e r e t e s t i f y i n g , b u t t h e m a j o r i t y d e c i d e d a g a i n s t him.

608 P.2d

a t 440.          T h i r d , McKenzie c l a i m e d t h a t t h e t r i a l c o u r t ,

by making h i s a l l e g e d d i m i n i s h e d c a p a c i t y an a f f i r m a t i v e

d e f e n s e , s h i f t e d t h e burden t o McKenzie t o d i s p r o v e an e s s e n t i a l

e l e m e n t of t h e o f f e n s e s c h a r g e d .    On t h i s i s s u e , t h e U n i t e d

S t a t e s Supreme C o u r t v a c a t e d t h e judgment of t h i s C o u r t and

remanded f o r a d e t e r m i n a t i o n of whether t h e p r o c e d u r e s and

b u r d e n s of proof v i o l a t e d t h e p r i n c i p l e s of P a t t e r s o n v. New

York ( 1 9 7 7 ) ,

432 U.S. 197

97 S. Ct. 2319

53 L. Ed. 2d 281

.

The m a j o r i t y a g a i n h e l d a g a i n s t McKenzie.

608 P.2d

a t 452-

456.      And f o u r t h , McKenzie claimed t h a t t h e t r i a l c o u r t e r r e d

by r e f u s i n g c e r t a i n i n s t r u c t i o n s h e o f f e r e d r e l a t i n g t o m e n t a l

d i s e a s e o r d e f e c t , and t h e m a j o r i t y a g a i n h e l d a g a i n s t him.

608 P.2d

a t 440.

        The s i t u a t i o n a t t r i a l t h e n , i s t h a t t h e S t a t e and t h e

t r i a l c o u r t w e r e f u l l y aware t h a t McKenzie would r e l y on t h e

d e f e n s e of m e n t a l d i s e a s e o r d e f e c t , even though he had n o t

g i v e n -ormal, w r i t t e n n o t i c e .
          f                                         And t h e y w e r e f u l l y aware t h a t

McKenzie would r e l y on t h e d e f e n s e o f d i m i n i s h e d c a p a c i t y

by c o n t e n d i n g he c o u l d n o t have formed t h e i n t e n t t o commit

t h e crimes charged.              McKenzie d i d , i n one form o r a n o t h e r ,

r e l y on b o t h t h e s e d e f e n s e s .     S u r e l y , t h e t r i a l c o u r t knew

it would be e r r o r t o r e f u s e McKenzie t h e r i g h t t o p r e s e n t

e v i d e n c e on t h e s e i s s u e s , y e t it r e f u s e d McKenzie's c o u n s e l

t h e r i g h t t o question prospective j u r o r s concerning t h e i r

a t t i t u d e s t o t h e s e defenses.          J u r o r s c o u l d have s a t on t h i s

case with a fixed belief                    t h a t mental d i s e a s e o r d e f e c t i s
an i l l u s o r y and much u s e d t e c h n i c a l d e f e n s e d e s i g n e d o n l y

t o protect the guilty.                  I would presume p r e j u d i c e i n any

c a s e where s u c h a fundamental r i g h t i s d e n i e d , and b e c a u s e

t h i s i s a c a p i t a l c a s e , I would c o n s i d e r t h e p r e j u d i c e t o

be conclusive.             T h e r e f o r e , I would r e v e r s e and g r a n t a new

trial.

     D.  THE TRIAL COURT ERRED BY GRANTING THE STATE'S MOTION
ON THE FIRST DAY O T R I A L TO ADD 58 MORE WITNESSES
                  F

        I n m d i s s e n t , I have e x p l a i n e d t h e background of t h e
             y

p l e a b a r g a i n i s s u e ( P a r t 111), a f t e r s u d d e n l y r e a l i z i n g t h e

weaknesses t h a t d e f e n s e c o u n s e l exposed i n t h e S t a t e ' s case,

t h e S t a t e knew i t had t o add 58 more w i t n e s s e s .                    I n any m a j o r

c a s e , i t must be presumed p r e j u d i c i a l where d e f e n s e c o u n s e l

i s s u d d e n l y c o n f r o n t e d w i t h t h e need t o p r e p a r e f o r t h e

t e s t i m o n y o f 58 more w i t n e s s e s , b u t c e r t a i n l y , a presumption

of p r e j u d i c e must a t t a c h i n a d e a t h p e n a l t y c a s e .

        N o n e t h e l e s s , t h e m a j o r i t y r a t i o n a l i z e s i t s h o l d i n g by

a four-part analysis:                  F i r s t , t h e r e was no p l e a b a r g a i n and

t h e r e f o r e McKenzie w a s n o t j u s t i f i e d i n r e l y i n g on a p l e a

b a r g a i n ; second, t h r o u g h d i s c o v e r y and i t s own i n v e s t i g a t i o n

and p r e p a r a t i o n , t h e S t a t e knew t h a t i t had t o add t h e

a d d i t i o n a l w i t n e s s e s ; t h i r d , i n any e v e n t , n o t a l l o f t h e

w i t n e s s e s t e s t i f i e d and t h e p r e j u d i c e was t h e r e b y minimized;

and f o u r t h , d e f e n s e c o u n s e l waived any r i g h t t o complain by

n o t requesting a continuance i n order t o b e t t e r prepare f o r

a l l of t h e s e witnesses.

        I have no d o u b t t h a t a p l e a b a r g a i n e x i s t e d , and so

I must d i s a g r e e w i t h t h e f i r s t r e a s o n .        Clearly, t h e defendant

r e l i e d on t h e p l e a b a r g a i n i n d i s c l o s i n g h i s own s t r a t e g y

and i n r e v e a l i n g t h e weaknesses i n t h e S t a t e ' s c a s e .                 As to

t h e second r a t i o n a l i z a t i o n ,    t h e r e i s n o t a s c r a p of e v i d e n c e
i n t h e r e c o r d i n d i c a t i n g t h a t t h e S t a t e had o b t a i n e d

d i s c o v e r y from t h e d e f e n d a n t , and t h e r e i s no e v i d e n c e

i n t h e r e c o r d t h a t t h e S t a t e had i n d e p e n d e n t l y d e t e r m i n e d

t h a t i t had t o add 58 more witnesses--on                       t h e f i r s t morning

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

S t a t e knew beforehand o f              t h e need t o add 58 more w i t n e s s e s ,

i t would have w a i t e d u n t i l t h e s t a r t o f t r i a l b e f o r e moving

t o do so.        I n f a c t , i f t h i s were t h e c a s e , due t o t h e S t a t e ' s

l a c k of d i l i g e n c e , t h e t r i a l c o u r t s h o u l d have d e n i e d t h e

motion.

        The m a j o r i t y ' s t h i r d r a t i o n a l i z a t i o n t h a t n o t a l l o f

t h e 58 w i t n e s s e s t e s t i f i e d , a l t h o u g h t r u e , i g n o r e s t h e impact

on d e f e n s e c o u n s e l of suddenly h a v i n g t o p r e p a r e f o r t h e

t e s t i m o n y o f 58 more w i t n e s s e s .      The a d d i t i o n of 58 w i t n e s s e s

c e r t a i n l y must have had a n impact on d e f e n s e c o u n s e l ' s t r i a l

s t r a t e g y , and c e r t a i n l y must have meant l o n g h o u r s of p r e p a r a -

t i o n f o r t h e t e s t i m o n y of t h e s e w i t n e s s e s , even though t h e y

may n o t a c t u a l l y have t e s t i f i e d .      Adding t h e s e w i t n e s s e s on

t h e f i r s t day o f t r i a l undoubtedly i m p a i r e d t h e d e f e n s e

c o u n s e l ' s a b i l i t y t o conduct a proper defense.

        And w h i l e i t i s t r u e t h a t d e f e n s e c o u n s e l d i d n o t a s k

f o r a c o n t i n u a n c e even though it c o u l d have done s o , a

r e q u e s t f o r a c o n t i n u a n c e would have been m e a n i n g l e s s .

The t r i a l c o u r t , by t h i s t i m e , had amply d e m o n s t r a t e d

p r e j u d i c e a g a i n s t McKenzie and h i s c o u n s e l , and undoubtedly

would have d e n i e d a motion f o r a c o n t i n u a n c e .               Assuming

f u r t h e r m o r e , t h a t d e f e n s e c o u n s e l had moved f o r a c o n t i n u a n c e ,

and t h a t i t had been d e n i e d , t h e s a d r e c o r d of t h i s C o u r t

i n conducting f a i r review i n t h i s c a s e convinces m e t h a t

t h e m a j o r i t y o f t h i s C o u r t would have h e l d n o n e t h e l e s s t h a t

McKenzie was n e i t h e r p r e j u d i c e d by t h e a d d i t i o n of t h e 58

more w i t n e s s e s n o r by t h e t r i a l c o u r t ' s r e f u s a l t o g r a n t a

continuance.
     Nor does an order granting defense counsel the right
to interview a witness immediately before that witness
testifies cure any prejudice arising because of the eleventh
hour addition of witnesses to the trial witness list.    An
interview conducted under the hectic circumstances of a
trial already in progress does not give defense counsel
sufficient time to prepare for either direct examination or
cross-examination of the witnesses.
     The majority again has been caught up in one of its
many inconsistencies.     If, as the majority states, the State
knew from its investigation and preparation of the need to
add 58 witnesses, then the State was in bad faith waiting
until the first day of trial to request to add them to the
list of trial witnesses and the trial court should have denied
the State's motion.   On the other hand it was defense counsel
who, in relying on the plea bargain agreement, apprised the
State of the weaknesses in its case necessitating the addition
of witnesses, this situation supports a finding that McKenzie
detrimentally relied on the plea bargain and had a justifiable
expectation that it would be enforced.
     I am convinced that a plea bargain existed and that
the need to add most or all these witnesses was disclosed to
the State by defense counsel in reliance on a plea bargain
agreement.   The errors in this case are only compounded where
the State can breach a plea bargain agreement and then obtain
the added benefit of bolstering its case for trial based on
the disclosures of defense counsel who acted in reliance that
plea bargain agreement.
     For these reasons, it was reversible error for the
trial court to permit addition of 58 more witnesses on the
first day of trial.
     E. THE TRIAL COURT ERRED BY REFUSING TO ALLOW A
PSYCHIATRIST TO SIT WITH DEFENSE COUNSEL WHILE THE STATE'S
MEDICAL EXPERTS WERE GIVING THEIR TESTIMONY
     In holding that the trial court properly denied defense
counsel's request that a psychiatrist be allowed to sit at
counsel table while the State's medical experts were testifying
(

608 P.2d

at 447), the majority has omitted an important fact.
One of the reasons that defense counsel made this request
was because one of the State's psychiatrists had a pronounced
Cuban-Spanish accent which made it exceedingly difficult to
understand him.   He was the key psychiatric witness for
the State.   For this reason, defense counsel thought it
imperative to have the aid of a psychiatrist when this witness

testified.
    McKenzie's defense rested on mental disease or defect
or diminished capacity, that is, whether he had the capacity
to form the intent required to commit the crimes charged.
Obviously, it was vital that defense counsel understand the
nature of the examinations conducted by the State's psychiatrists
and the opinions given by these psychiatrists.   Although in
a normal case this might not be error, the error is manifest
where, as here, the defendant is on trial for his life.
     The trial court's ruling also was unfair because it
did not confine the rule of exclusion of witnesses to rebuttal
witnesses.   The defendant was compe?lled to go first by putting
on its expert testimony relating to McKenzie's mental
condition.   Because the State's psychiatrists were rebuttal
witnesses, the trial court's ruling did not prevent them from
listening to the testimony of McKenzie's expert witnesses.
And even if they did not do so, the State surely had the
means to convey the essence of this testimony to the State's
experts before they were called to testify.
        Under t h e c i r c u m s t a n c e s , I would h o l d i t was e r r o r

t o refuse defense counsel's request.                           Especially since h i s

c l i e n t was on t r i a l f o r h i s l i f e , t h e r e q ~ s t w a s r e a s o n a b l e
                                                                         a

one and s h o u l d h a v e b e e n g r a n t e d .

     F.  THE CUMULATIVE ERROR DOCTRINE H S NO BASIS FOR
                                            A
EXISTENCE I F I T I S NOT INVOKED I N THIS CASE TO REVERSE THE
CONVICTIONS

        T h r o u g h o u t t h i s d i s s e n t and my l a s t two d i s s e n t s , I

d e m o n s t r a t e d t h a t McKenzie's t r i a l s w e r e r i d d l e d w i t h e r r o r ,

n o t m e r e l y t e c h n i c a l e r r o r , b u t e r r o r a f f e c t i n g h i s sub-

stantial rights.              I need n o t a g a i n d e t a i l t h a t e r r o r i n

c o n c l u d i n g t h a t t h e c u m u l a t i v e e r r o r d o c t r i n e h a s no b a s i s

f o r e x i s t e n c e i f it i s n o t invoked h e r e t o r e v e r s e t h e

convictions.           The m a j o r i t y c o u l d r e a c h a c o n t r a r y c o n c l u s i o n

o n l y by c l o s i n g t h e i r e y e s t o t h e e r r o r s committed a n d

a p p a r e n t l y , t h a t i s w h a t t h e y h a v e c h o s e n t o do.
VIII.     UNANIMOUS VERDICT REQUIREMENT
        McKenzie claims that the jury's failure to disclose the
basis of its verdict, since the case was based on multiple
and alternative theories of criminal responsibility, denied
him of the unanimous jury verdict as guaranteed by the
United States and Montana Constitutions.    The majority has
concluded that this right was not violated under the Montana
Constitution and that there is no such right under the
United States Constitution.     I believe, however, that McKenzie
was denied this fundamental right under both constitutions.
I fully recognize that the United States Constitution does
not guarantee a unanimous verdict in a state criminal
prosecution, but because this is a death penalty case I
believe the United States Supreme Court would impose such a
requirement in all state criminal prosecutions--it is the
only way of assuring the necessary certainty before a death
penalty can be imposed and upheld.
        Because I do not believe that this Court can state
beyond a reasonable doubt that the jury reached a unanimous
verdict on any one or more the alternative theories of
criminal responsibility, under the harmless error rule set
forth in Chapman v. California, supra, the convictions must
be reversed.
        I first raised the possibility of a non-unanimous jury
verdict when I dissented to McKenzie I11 on the issue of the
unconstitutional Sandstrom-type instructions.    See

608 P.2d

at 463, 474 and 482.     Similar unanimous jury verdict issues
were raised in both Coleman - and Fitzpatrick 111,
                            I11
and I filed dissents in both cases, concluding that they
were denied a unanimous jury verdict.     The basis for my
conclusions is equally applicable here and therefore I
shall not repeat that reasoning nor case analysis here.
It is sufficient to say that the majority here has not
fairly distinguished United States v. Gipson (5th Cir.
1977),

553 F.2d 453

, or State v. Green (Wash. 1980),

616 P.2d 628

.    Further, the majority apparently has now abandoned
any reliance on our own case of State v. Souhrada (1949),

122 Mont. 377

204 P.2d 792

.     See Fitzpatrick 111, 38 St.Rep.
1465D-65M.
     A.   THE HOMICIDE CONVICTION--UNANIMOUS VERDICT REQUIREMENT
     Because I have concluded that the jury convicted
McKenzie of deliberate homicide by means of torture--a
nonexistent offense, my analysis of the unanimous jury verdict
requirement must first take this conviction into account.
Assuming that the jury convicted McKenzie of this offense,
the conviction must nonetheless be reversed, even if the jury
was unanimous.   Obviously, a conviction for a crime that
does not exist cannot be affirmed, regardless of whether the
jury was unanimous in reaching its verdict.
     On the other hand, if it can be concluded that the jury
did not convict McKenzie of deliberate homicide by means of
torture, but rather, of deliberate homicide, then a unanimous
verdict problem is triggered.     McKenzie was accused under
section 94-5-102(a), R.C.M. 1947, of "purposely or knowingly"
causing the death of Lana Harding, but he was also charged
in the alternative under subsection 94-5-102 ! b ) , K.C.11.   1947,
with causing the death of Lana Harding while committing,
engaging in, or withdrawing from the commission of either
sexual intercourse without consent or aggravated assault.
The problem is that the jury verdict fails to reveal under
which subsection of that statute it convicted McKenzie.
Furthermore, i f t h e j u r y a p p l i e d s u b s e c t i o n ( b ) , which

f e l o n y d i d t h e j u r y f i n d he was committing?

        The u n d e r l y i n g c e r t a i n t y r e q u i r e d f o r any c o n v i c t i o n

t h a t may r e s u l t i n a d e a t h p e n a l t y r e q u i r e s t h a t t h e

s e n t e n c i n g a u t h o r i t y know p r e c i s e l y which t h e o r y t h e j u r y
used i n r e a c h i n g i t s v e r d i c t .     But h e r e t h a t i s i m p o s s i b l e .

N e i t h e r t h e s e n t e n c i n g judge, o r t h e judge who p r e s i d e d

over t h e p e t i t i o n f o r post-conviction r e l i e f , o r t h i s Court,

can d e t e r m i n e from t h e r e c o r d which t h e o r y of homicide t h e

j u r y c o n v i c t e d on.    The j u r y was n o t i n s t r u c t e d t h a t i f i t

a p p l i e d s u b s e c t i o n ( a ) o r t h a t i f it a p p l i e d s u b s e c t i o n ( b )

(and one o r more o f i t s s u b t h e o r i e s ) it must b e unanimous i n

doing so.         A l l d o u b t s a s t o u n a n i m i t y must be r e s o l v e d i n

favor of t h e accused.               Beck, s u p r a ; Andres, s u p r a .           The

doubt h e r e was c r e a t e d by t h e S t a t e due t o t h e manner i n

which i t c h a r g e d McKenzie, and it was a l s o c a u s e d by t h e

t r i a l c o u r t due t o t h e manner i n which it i n s t r u c t e d t h e

jury.      McKenzie's c o u n s e l o f f e r e d j u r y i n s t r u c t i o n s and

v e r d i c t forms which w e r e more e x p l i c i t , b u t t h e t r i a l judge

i n s i s t e d on g i v i n g t h e j u r y t h e o n e s h e had p r e p a r e d .        The

v e r d i c t (assuming a g a i n t h a t t h e j u r y d i d n o t c o n v i c t

McKenzie of d e l i b e r a t e homicide by means of t o r t u r e ) must

be r e v e r s e d under t h e h a r m l e s s e r r o r t e s t of Chapman v.

C a l i f o r n i a , supra.

        One e f f e c t of t h e j u r y ' s f a i l u r e t o s p e c i f y t h e b a s i s

f o r i t s v e r d i c t i s t h a t t h e d e a t h p e n a l t y c a n n o t b e imposed.

~ o otn l y     a13.     doubts       as      t o unanimity, b u t a l l doubts

a f f e c t i n g t h e s u b s t a n t i a l r i g h t s of t h e accused i n a d e a t h
                                                      Sjuor    0-F
p e n a l t y c a s e , must b e r e s o l v e d                 t h e accused.         It

must be assumed t h e r e f o r e t h a t t h e j u r y a p p l i e d t h e f e l o n y -

murder r u l e i n f i n d i n g McKenzie g u i l t y .              Such a f i n d i n g

d o e s n o t c a r r y w i t h i t a f i n d i n g t h a t McKenzie had t h e
purpose to kill the victim.   Such a finding is necessary
to the imposition of the death penalty.   Lockett, supra.
~ccordingly,the death penalty cannot be imposed because
of the absence of an essential jury finding.
     B. THE AGGRAVATED KIDNAPPING CONVICTION--UNANIMOUS
VERDICT REQUIREMENT
    McKenzie was also charged with multiple, alternative
theories of criminal responsibility on the aggravated
kidnapping charge.   The instructions given and the verdict
form which the jury was required to use do not reveal,
however, the basis it used to determine which theory it
applied in reaching its guilty verdict.   The jury was
provided with only one guilty verdict form and one not
guilty verdict form.   The guilty verdict form provided
that the jury make two findings:   first, was ~cKenzieguilty
of the crime of aggravated kidnapping (in essence a general
verdict) and, second, did the aggravated kidnapping result
in the victim's death.   The jury was instructed only that
its verdict and findings must be unanimous.
     It can be assumed that the jury was unanimous.      The
jury was instructed that its findings must be unanimous
and there is no basis in the record to determine otherwise.
However, the validity of this finding rests in turn on the
validity of the underlying aggravated kidnapping conviction.
There is absolutely no basis in the record to determine
which theory or theories the jury applied in convicting
McKenzie of aggravated kidnapping, nor is there any basis
in the record to determine whether the jury was unanimous
on one or more of the theories it applied in finding McKenzie
guilty.
     McKenzie was charged with two counts of aggravated
kidnapping, and each of these had two subcounts of criminal
responsibility.    It is clear, therefore, that the jury
could have split in two or more ways on the theories of
criminal responsibility it applied.
     For example, in Count 3, McKenzie was charged with
kidnapping for the specific purpose of committing sexual
intercourse without consent or for the specific purpose
of committing aggravated assault.   He was also separately
charged with the distinct crimes of sexual intercourse
without consent and with aggravated assault.   However, the
trial court also instructed the jury that if it convicted
McKenzie of aggravated kidnapping, the jury did not have to
reach a verdict on whether he was guilty of sexual intercourse
without consent or guilty of aggravated assault.     The jury
was instructed that these were included offenses.    Because,
however, the jury did not reach verdicts on these separate
charges, it can only be speculated whether the jury applied
either the first or second theory of Count 3 in reaching
its guilty verdict.   And it is equally speculative as to
whether the jury was unanimous on one or both the alternative
charges contained in Count 3.
     The same situation exists with relation to the
aggravated kidnapping charge contained in Count 4.    Under
the third theory the jury was required to find that McKenzie
knowingly or purposely restricted or secreted the victim
for the specific purpose -- inflicting bodily - - -of
                         of                   harm or
terrorizing her.   Under the fourth theory, the jury was
required to find that McKenzie knowingly or purposely used
or threatened the use of physical force on the victim for
the specific purpose - inflicting bodily injury - -
                     of                         or for
terrorizing her.   Again, the record is silent on whether the
jury applied the third or fourth theories in Count 4, or
whether it applied both in finding McKenzie guilty of
aggravated kidnapping.   Nor can it be determined as to
whether the jury was unanimous in applying one or both
the alternative charges contained in Count 4.
     The net result is that nobody can tell whether the
jury found McKenzie guilty by applying the first or second
theory in Count 3, or the first or second theory in
Count 4.   Nor can it be determined if the jury was unanimous
on any one theory it may have applied in reaching its verdict.
Where the overriding effect results in the death penalty,
this is not an acceptable result--the certainty required in
death penalty cases by the United States Supreme Court
requires more than this.    See --
                                Beck, supra; and Andres, supra.
     I next discuss the substantial evidence question as
it relates to the multiple alternative charges on which
the jury was to base its verdict.     I state from the outset
that I have not reviewed the record--because the record was
not before this Court for review.

     C.    THE SUBSTANTIAL EVIDENCE QUESTION
     An assumption commonly made by appellate courts is
that it does not matter which theory the jury used as a
basis to convict as long as it can be determined from the
record that substantial evidence existed on each of the

theories presented to the jury.     The unstated basis for
these decisions seems to be that a defendant should not
worry whether the jury unanimously agreed in fact upon a
single theory of criminal responsibility as long as the
jury unanimously agreed that the defendant was guilty of
the general crime.    That is the approach taken by the
majority of this Court in Coleman 111, and -
                                           Fitzpatrick 111,
to which I dissented.
     In one broad statement, the majority has, without
indicating what the theories are or what the evidence is,
stated that substantial evidence supports each of the
theories charged for each of the crimes charged.   The court
disposes of the issue by stating:
     ". . .These verdicts and findings are not
    within the ambit of United States v. Gipson
    (5th Cir. 1977),

553 F.2d 453

, or State v.
    Green (1980), 94 Wash.2d 216,

616 P.2d 628

,
    for the reason that in this case, as distinguished
    from the cases on which petitioner relies, -the
    evidence is sufficient -- support --
                           hereto         the jury
    verdict under - - -- possibilities under the
                  any and all
    instructions. - - - -to speculate - -
                   It is idle              in this
    case, under the instructions - - court - -
                                 of the        and the
    overwhelming evidence, that there - -
                                      is any
    possibility -- verdicts - - findings in
                that the          or the
    this case were less than unanimous." 38 S t . ~ e g
    -----
    at 1756.
     I admit that I have not reviewed the trial record
to determine whether substantial evidence exists for each
of the alternatively charged theories of aggravated kidnapping
and for each of the alternatively charged theories of
homicide.   When McKenzie's appeal of the denial of post-
conviction relief was heard and decided, we did not have
before us the transcripts of the trial record.   The reason
is that a petition for post-conviction relief is an entirely
new proceeding and therefore only the transcript pertaining
to that proceeding for post-conviction relief was sent to
this Court.   Neither the District Court nor the counsel
for either side thought to have the trial transcripts sent
to this Court.
     A transcript of the trial does exist, however, in the

State Historical Society's archives.   But I have no knowledge
that any member of this Court in preparation for the writing
of this opinion   went to the Historical Society to comb the
trial transcript in an effort to determine whether there is
substantial evidence to support all the theories charged.
     Because this Court did not have a transcript during
the consideration of McKenzie - I am reasonably c o n f i d ~ n t
                              IV,

that the record was not specifically reviewed to determihe

whether each of the theories of criminal responsibility was

supported by substantial evidence.    A death penalty case
deserves better appellate review than this.
IX.      DEATH PENALTY ISSUES

        A.      UNCONSTITUTIONALITY O F STATUTORY DEATH PENALTY
SCHErn

        When McKenzie w a s c h a r g e d , c o n v i c t e d , and s e n t e n c e d ,

o n l y two s t a t u t e s w e r e i n e f f e c t which had a d i r e c t b e a r i n g

on t h e d e a t h p e n a l t y - - s e c t i o n s   94-5-105     and -304,        R.C.M.

1947, e n a c t e d i n 1973.             There w e r e no s t a t u t e s s e t t i n g f o r t h

what were c o n s i d e r e d t o be e i t h e r a g g r a v a t i n g f a c t o r s o r

mitigating factors.                  There w e r e no s t a t u t e s which p r o v i d e d

f o r mandatory, e x p e d i t e d r e v i e w of a d e a t h p e n a l t y s e n t e n c e .

I n f a c t , t h e r e w e r e no s t a t u t e s which e x p r e s s l y p r o v i d e d f o r

any k i n d of r e v i e w of a d e a t h s e n t e n c e .           Needless t o say,

t h e n , n e i t h e r w e r e t h e r e any s t a t u t e s which p r o v i d e d t h e

method by which p r o p o r t i o n a l r e v i e w was t o be conducted by

the state's highest appellate court.

        A s I s t a t e d i n m d i s s e n t t o McKenzie - 581 P.2d
                               y                           11,                                   at

1 2 6 6 t o 1277, I r e a d t h e f o l l o w i n g c a s e s t o r e q u i r e t h a t t h e s e

s t a t u t o r y p r o c e d u r e s be f o l l o w e d b e f o r e a d e a t h p e n a l t y

scheme c a n be d e c l a r e d c o n s t i t u t i o n a l on i t s f a c e .           Gregg v.

Georgia ( 1 9 7 6 ) ,

428 U.S. 153

96 S. Ct. 2909

, 4

9 L. Ed. 2d 859

;

P r o f f i t t v. F l o r i d a ( 1 9 7 6 ) ,

428 U.S. 242

96 S. Ct. 2960

49 L. Ed. 2d 913

; J u r e k v. Texas ( 1 9 7 6 ) ,

428 U.S. 262

, 96 S . C t .

2950,

49 L. Ed. 2d 929

; and Furman v. Georgia ( 1 9 7 2 ) ,

408 U.S. 238

92 S. Ct. 2726

33 L. Ed. 2d 346

.    Because Montana d i d n o t

have t h e s e s t a t u t o r y p r o c e d u r a l p r o t e c t i o n s , I concluded

t h a t t h e s t a t u t o r y scheme f o r i m p o s i t i o n of t h e d e a t h p e n a l t y

i n t h i s s t a t e w a s unconstitutional.

         D e s p i t e t h e s e d e f e c t s i n t h e Montana s t a t u t o r y scheme,

t h e m a j o r i t y i n McKenzie -, - and - c o n s i s t e n t l y r e f u s e d
                                   I 11,    111,

t o g i v e e f f e c t t o t h e mandates of t h e U n i t e d S t a t e s Supreme

Court.        By t h e s t r a n g e s t l o g i c and by t h e most t o r t u r e d

s t a t u t o r y i n t e r p r e t a t i o n , t h e m a j o r i t y h a s papered-over s e v e r a l
non-death penalty statutory schemes, and out of them
created by judicial fiat, a new statutory scheme for
capital crimes.   In this appeal, the majority has avoided
reviewing what the sentencing court did, and what the
majority did in McKenzie - - and - by invoking the
                         I, 11,  111,
special McKenzie post-conviction relief rule that the issues
have already been decided.
      The opinion simply states:   "[tlhe constitutionality of
the statute has been fully considered and decided by us."
38 St.Rep. at 1758.   The constitutionality of the statutes has
certainly been decided, but the constitutionality of the
statute   has never been fully considered.
      In McKenzie - (I was not a member of this Court when
                  I1
McKenzie - was decided), I dissented to the majority's
         I
gymnastics in making McKenzie subject to a hanging edict.
See

581 P.2d 1266

 to 1277.   I adhere to those views today.
      I summarize here my dissent in McKenzie - and also
                                              11,
comment here on the effect of an order handed down by this
Court in the Coleman case, declaring that sentence review
before the Sentence Review Board was never contemplated by
the sentence review statutes.
      The majority holding in McKenzie - - and - that
                                       I, 11,  111,
McKenzie could avail himself of the sentence review statutes
and ask the Sentence Review Board to review his death sentence,
is a papered-over attempt to save an obviously unconstitutional
review system.    (I will have more to say in partIX of this
dissent   on just what transpired at the hearing before the
Sentence Review Board.)   I quoted and analyzed the sentence
review statutes in McKenzie - and concluded that they were
                            I,
never intended to apply to a defendant seeking review of a
death sentence.   The sentence review scheme is devoid of
language indicating that a death penalty defendant can
obtain review of that sentence before the Sentence Review
Board.   In fact, the statutes do not even refer to the
death penalty or to a death sentence, and it is manifest that

the legislature did not contemplate that the Sentence Review

Board would be reviewing death sentences.      (See my dissent
in McKenzie - 581 P.2d at 1273.)
            11,
    Assuming, furthermore, that the Sentence Review Board
had the statutory authority to review and therefore to change
a death sentence to one less than death, the statutory scheme
is still constitutionally deficient because this Court is
not permitted to review a decision of the Sentence Review
Board.   The United States Supreme Court held in Gregg, Proffitt,
and Jurek, supra, that a death sentence must be reviewed by
the state's highest appellate court.     The Sentence Review Board
is not even an appellate court much less the state's highest
appellate court.

     The majority opinion in McKenzie I11 states that the
Sentence Review Board is a branch of this Court.     That is
not true at all.   We did not create the Sentence Review Board,
it was created by the legislature, and just as it was created
by the legislature so can it be abolished by the legislature.
On the other hand, this Court is one of the three branches

of government established by the Montana Constitution and,
          at tj-mes I am sure it would like to do so, the legislature
cannot. abolish    this   Court   as it can abolish the Sentence
Review Board.
     I engage in this analysis only to demonstrate the
undeniable fact that the Sentence Review Board is not the
highest appellate court in this state, that its actions are
n o t r e v i e w a b l e by t h i s C o u r t , and, t h e r e f o r e , t h a t t h e

s t a t u t o r y scheme c r e a t e d by t h e m a j o r i t y o p i n i o n s o l e l y t o

uphold t h e c o n s t i t u t i o n a l i t y of t h e s e n t e n c i n g c o u r t ' s d e a t h

edict      c a n n o t p o s s i b l y comply w i t h t h e U n i t e d S t a t e s Supreme

C o u r t mandate t h a t t h e s t a t e ' s h i g h e s t a p p e l l a t e c o u r t must

f i n a l l y p a s s on t h e p r o p o r t i o n a l i t y of t h e s e n t e n c e .

        I f u r t h e r n o t e t h a t t h i s C o u r t f i n a l l y was c a u g h t i n t h e

web of i t s own l o g i c when i t was a s k e d t o d e t e r m i n e whether

Coleman was a L s o e n t i t l e d t o have h i s d e a t h s e n t e n c e reviewed

by t h e S e n t e n c e Review Board.              A f t e r t h i s Court affirmed i n

Coleman - 6 0

5 P.2d 1

 0 0 0 , Coleman, r e l y i n g on t h e m a j o r i t y
        11,

d e c i s i o n i n McKenzie -, - and - t h a t McKenzie c o u l d have
                             I 11,    I11

h i s d e a t h s e n t e n c e reviewed by t h e S e n t e n c e Review Board,

Coleman a l s o a p p l i e d t o t h e S e n t e n c e Review Board f o r review

of h i s d e a t h s e n t e n c e .     The Board t u r n e d him down, and p r o p e r l y

s o , s t a t i n g i n i t s o r d e r of d e n i a l t h a t it had no j u r i s d i c t i o n

t o review a death sentence.

        A f t e r t h e S e n t e n c e Review Board d e n i e d Coleman's r e q u e s t ,

Coleman t h e n a p p l i e d t o t h i s C o u r t f o r an o r d e r t o compel t h e

S e n t e n c e Review Board t o r e v i e w h i s d e a t h s e n t e n c e .            A s authority,

he c i t e d McKenzie -
                      111.               But t h i s C o u r t , i n an u n p u b l i s h e d o p i n i o n

and o r d e r , upheld t h e S e n t e n c e Review Board, and h e l d t h a t t h e

S e n t e n c e Review Board had no j u r i s d i c t i o n t o r e v i e w a d e a t h

sentence.         I a g r e e d w i t h t h i s h o l d i n g and s i g n e d t h e o r d e r

b e c a u s e it a f f i r m e d e x a c t l y what I have always been contending--

t h a t t h e S e n t e n c e Review Board h a s no a u t h o r i t y t o r e v i e w a

death sentence.

        T h a t o r d e r i n Coleman was handed down b e f o r e McKenzie

- was handed down.
I11                                    I n m d i s s e n t t o McKenzie 111, I c i t e d
                                            y

and q u o t e d from t h e Coleman o r d e r i n s u p p o r t of m p o s i t i o n
                                                                   y

t h a t t h e S e n t e n c e Review Board had no j u r i s d i c t i o n t o r e v i e w
a death sentence and therefore that those statutes could not
be relied on as being part of the constitutional statutory
scheme relating to the death penalty.      Of particular interest
in the Coleman order is the statement quoted in the McKenzie

- dissent and repeated here, that:
I11
     ". . . It would not only be extra-statutory but
     an anomaly were we to hold that the conclusions
     of this Court on review of death sentences were
     subject to later review by the Sentence Review
     ~ivisionof this Court."

608 P.2d

at 487.
     With that I wholeheartedly agree.    That is my position
now and it has always been my position.    And it is precisely
why this Court should now review its holding that the Sentence
Review Board can review the McKenzie death sentences.    Sentence
review before the Sentence Review Board was as anomalous for
McKenzie as it was for Coleman.   Yet the majority has avoided
a reconsideration of this issue, even though it is demonstrably
wrong, by the use of its special McKenzie post-conviction rule.
To review this Court's erroneous decision would mean a favorable
decision for McKenzie, and that is precisely what this Court does
not want.
     I have again emphasized this matter here because it
vividly demonstrates the way in which the majority has
twisted the law to uphold what would otherwise be a constitution-
ally infirm death sentence.    A federal court would have to
be blind and utterly insensitive to the law if it did not
see through what the majority has done to McKenzie in each
of his appeals.   The death penalty statutory scheme    is, on
its face, patently unconstitutional.     And the special creation
of the death penalty scheme by the majority is also patently
unconstitutional as applied.
     B. UNCONSTITUTIONALITY OF DEATH PENALTY STATUTES
MANDATING DEATH "UNLESS THERE ARE MITIGATING CIRCUMSTANCES"
     Sections 94-5-105, R.C.M. 1947 (deliberate homicide)
and 94-5-304, R.C.M. 1947 (aggravated kidnapping     where the
kidnapping results in the death of the victim) both mandated
the death penalty "unless there are mitigating circumstances."
                            p-




It appears, however, that the trial court concluded that since

there was only one victim involved it could not impose two
separate death sentences.     (Conclusion no. 1.) Nonetheless,
the sentencing court found that there were no mitigating circum-
stances and therefore imposed the death penalty.
     McKenzie argues that the language "unless there are
mitigating circumstances," gives the sentencing court unbridled
discretion to determine whether there are mitigating circumstances,
and that the United States Supreme Court has invalidated
statutes which give this uncontrolled discretion to the
sentencing authority.    I believe that this wording does
precisely that.     It is also an abrogation of legislative
responsibility to fail to set guidelines for both the mitigating
factors that must be considered by the sentencing court and
the weight to be given these mitigating factors.
     The deliberate homicide statute, section 94-5-105, R.C.M.
1947 (1973 Supp.) sets forth a list of six aggravating circum-
stances.   The finding that one or more of these circumstances
existed mandates the death penalty "unless there are mitigating
circumstances."     (See I4cKenzie 111, 581 P.2d at 1227, where
this statute is set out in its entirety.)     The sentencing court
found that an aggravating circumstance was fulfilled, that is,
that "the deliberate homicide was committed by means of torture."
In sentencing McKenzie to death, it appears that the court relied
on the jury's special interrogatory finding that the victim was
dead as a result of the torture.     The court then concluded
that no mitigating circumstances existed, and therefore sentenced
McKenzie to hang.
     The aggravated kidnapping statute, section 94-5-304,
R.C.M. 1947, contained a similar "unless there are mitigating
circumstances" clause.   That statute provided:
     "A court shall impose the sentence of death
     £01 lowing conviction of aggravated kidnapping
     if it finds that the victim is dead as the
     result of the criminal conduct unless there are
     mi t.igating circumstances."
     Yet, there was no statute which enumerated what the
legislature considered "mitigating circumstances" to be.
In Godfrey v. Georgia (1980),

446 U.S. 420

100 S. Ct. 1759

64 L. Ed. 2d 398

, the United States Supreme Court held that a
death penalty statute must contain "clear and objective standards"
and "specific and detailed guidance" for the sentencing authority.
Measured by this declaration, the language of both statutes--
"unless there are mitigating circumstances"--has neither clear
and objective standards nor specific and detailed guidelines.
The judge's discretion to find mitigating circumstances is
absolute.
     The United States Supreme Court has vacated death sentences
imposed under statuges which provide the sentencing court with
the same unbridled discretion as do    the Montana statutes.
See Tilford v. Page (1972),

408 U.S. 939

92 S. Ct. 2873

33 L. Ed. 2d 761

; Williams v. Kentucky (1972),

408 U.S. 938

92 S. Ct. 2870

33 L. Ed. 2d 759

; and Herron v. Tennessee (1922),

408 U.S. 937

92 S. Ct. 2865

33 L. Ed. 2d 756

.      These decisions
were essentially based on the holdings of Furman, supra and
Gregg, supra.   The Montana statutes are in effect no different.
They enumerate no mitigating circumstances and thus give the
sentencing judge unguided discretion to impose or to withhold
the death penalty according to his own whims.     Discretion cannot
be broader than that.
     Under the Montana statutes, if the judge chooses to
recognize a mitigating circumstance, he can do so, and thereby
withhold a death sentence, but, as was done here, if he
chooses not to recognize a mitigating circumstance, he can
thereby assure that the defendant will receive a death
sentence.     The United States Supreme Court has found similar
statutes to be unconstitutional since they give the sentencing
judge uncontrolled discretion to impose the death penalty
according to his own whims.
     Assuming, then, that McKenzie was not entitled to a new
                                                       -
trial (minimum due process standards dictate that he is entitled
to a new trial), I would vacate the death sentences that were
imposed for deliberate homicide and aggravated kidnapping and
direct that on resentencing the death penalty is not to be
considered.
     C. FAILURE TO ACCEPT MENTAL DISEASE OR PSYCHIATRIC
DISORDER AS A MITIGATING FACTOR UNDER SECTIONS 95-5-501(1),
AND 95-5-304, R.C.M. 1947
     Still another argument is that even though the statutes
set forth no mitigating circumstances, a mental disease or
psychiatric disorder was proved at the trial and as a matter of
law it must be accepted as a mitigating circumstance, thereby
precluding the death penalty for either conviction.    McKenzie
also attacks the sentencing court's order which balanced the
mitigating factors against the aggravating factors, and deter-
mined that the aggravating factors clearly outweighed any
mitigating factors.    McKenzie claims, and correctly so, that
section 95-5-304, R.C.M.    1947, does not permit a weighing of
aggravating factors against mitigating factors.    Rather, he
argues that if a mitigating factor is found to exist as a
matter of lay then a death sentence cannot be imposed.
     The trial court sidestepped the issue and so did this
Court.   In ruling on McKenzie's petition for post-conviction
relief, the trial court held that the sentencing court had
found McKenziels mental disease to be "insufficient -
                                                    to
outweigh the aggravating circumstances found by - -
                                             - the jury."

And the majority here, in seizing on this ruling, agreed with
the trial court that the existence of a mental disease or
psychiatric disorder "does not automatically immunize a
defendant from the death penalty."   38 St.Rep. at 1760.   Both
decisions evaded the issue raised by McKenzie.
    Neither statute says anything about the sufficiency of
a mitigating circumstance; neither statute requires balancing
the aggravating factors against mitigating factors.   Each
statute clearly mandates the death penalty "unless there are
mitigating circumstances."   Here we have a situation where the
sentencing court found that a mental disease or psychiatric
disorder did exist as a mitigating factor, but nonetheless
it rewrote them and declared that the aggravating factors
outweighed the existence of any mitigating factors.
     This is a patently unconstitutional construction of a
death penalty statute, for all death penalty statutes must
be strictly construed against the state with the benefit of
all doubts going to the defendant.     Beck, supra; Andres,
supra.

Here the sentencing court improperly -
                                     expanded the death
penalty statute in order to impose the death penalty.
     McKenzie further supports his argument by contending
that the existence of a mental disease or psychiatric disorder
is universally recognized by the courts as a mitigating factor.
Lockett, supra.   In this case, the State has not disputed that

a mental disease or psychiatric disorder was proved at trial.
The dispute goes only to the nature of that disease or disorder,
rather than to its existence.   McKenzie argues that the
sentencing court was not only required to recognize this as
a mitigating factor, but that once it did so, the plain statutory
language of sections 94-5-304 and -501(1), R.C.M. 1947,--
"unless there are mitigating circumstances"--mandated that
the death penalty not be imposed.
     The question is not, as the trial court and the
majority have stated, whether such a condition "automatically
immunizes a defendant from the death penalty,'' but whether
the statutes involved permit the sentencing court to nonetheless
impose the death penalty once a mental disease or psychiatric
disorder is found to exist.     Since death penalty statutes must
be strictly construed against the State, this Court must hold
that the sentencing court had no statutory right to impose the
death penalty.   The sentencing judge clearly went beyond his
statutory powers by weighing the aggravating factors against
the mitigating factors.   This is still another reason for
vacating the death sentence and remanding this case for
resentencing with directions that the sentencing court not
consider the death penalty.
     D. SECTIONS 94-5-304 and -501(1), R.C.M. 1947, UNCON-
STITUTIONALLY SHIFTED THE BURDEN TO DEFENDANT TO PERSUADE THE
SENTENCING COURT TO SPARE HIS LIFE
     McKenzie alleged in section 10(g) of his petition for
post-conviction relief    that sections 95-5-304 and -501(1),
R.C.M. 1947, unconstitutionally shifted the burden to him to
dissuade the sentencing court from imposing the death penalty.
The majority's failure to mention this as one of the issues
undermines still more its statement that in all of the annals
of criminal case history in the state, never has there been
a case treated with more "tender legal care."

     The United States Supreme Court has not yet decided
the issue raised by McKenzie.     In Lockett, supra, the Court
expressly declined to rule on this issue because it chose to
vacate the death sentence for other reasons.
     In both Coleman I11    and Fitzpatrick 111, I dissented

on this issue, stating that this burden of persuasion should
never, in a capital case, be shifted to the defendant.        The
burden of proving why a defendant's life should be taken
should always rest with the State.      The reasons given in Coleman

- and Fitzpatrick -- also apply here--the statute is worded
111               111
differently, but the effect is precisely the same.
     The majority has evaded this issue altogether.       The trial
court, however, considered this issue, but decided it improperly.
The trial court held that the sentencing order did not - -
                                                       on its
face indicate that the sentencing court had placed the burden
on McKenzie to dissuade the court from imposing the death
sentence.    Yet, that is precisely the effect given to the
statute by the sentencing court.     In holding that any mitigating
factors did not operate to offset the aggravating f a c t o r ~ ~ t h e
sentencing court impliedly ruled that it was McKenzie's burden
to convince him to the contrary.     Furthermore, the statutory
language "unless there are mitigating circumstances," imposed
an impossible burden on McKenzie.     He not only had to persuade
the sentencing court that mitigating factors offset any
aggravating factors, but he also had to be a mindreader to
determine what the sentencing court would consider as a mitigating
factor and what effect the court would give it.       That is an
unacceptable situation at any sentencing hearing and it is
intolerable where a death sentence may result.
     In Fitzpatrick - 38 St.Rep. at 1460
                    111,                          (and impliedly
in Coleman -
           III),the majority held that the statute was not
unconstitutional, even though it did indeed shift the burden
of persuasion to the defendant.     I dissented to both cases.
See Coleman 111, 633 P.2d at 659; Fitzpatrick - 38 St.Rep.
                                              111,
at 1464NK.     The statute challenged by both Coleman and
Fitzpatrick, section 46-18-305, MCA, provides in part that
". . . the court . . .    shall impose a sentence of death if
it finds one or more of the aggravating circumstances and
finds that there are no mitigating circumstances sufficiently
substantial to call for leniency."
        Insofar as the burden of persuasion is concerned, this
statute is no different in effect than the statutes challenged
here by McKenzie.     In each instance, the burden is shifted
to the defendant facing a possible death sentence to dissuade
the sentencing court from i~~posing
                                  it.     In fact, the statutes
applied to McKenzie are worse because they further impose on
the defendant the burden to read the mind of the sentencing
judge in order to determine what that judge may consider as
mitigating circumstances and what weight he will give to
them.
    Assuming again that the issues raised in this appeal
do not require a reversal of the convictions and a new
trial, the unconstitutional statutes applied to McKenzie
require that the death sentences be vacated and that the
case be remanded for resentencing with instructions that the
death penalty is not to be considered.
     E. IMPROPER EXPANSION OF DEATH PENALTY STATUTES TO
INCLUDE NONSTATUTORY AGGRAVATING FACTORS TO BE WEIGHED AGAINST
MITIGATING FACTORS--FAILURE TO GIVE NOTICE TO DEFENDANT
        In imposing the death penalty, the sentencing judge did
not confine himself to the aggravating circumstance    of
torture that was found to apply to McKenzie,but he also added
seven nonstatutory aggravating factors    and then weighed the
aggravating factors against the mitigating factors.
        McKenzie argues that the sentencing court impermissibly
expanded the scope of the sentencing inquiry and that
he was prejudiced because the court had not given him notice
that it would do so.     McKenzie irrefutably claims that he
did not know the sentencing court was going to consider
nonstatutory aggravating factors.   McKenzie further claims
that the sentencing judge came to the sentencing hearing with
his findings, conclusions, and order of death already prepared
and ready to be filed at the conclusion of the hearing.     It
was only when this order was filed that McKenzie learned that
the court expanded the scope of the aggravating circumstances
statute (section 94-5-105, R.C.M.   1947) and had added seven
nonstatutory aggravating circumstances as reasons for imposing
the death penalty.   McKenzie argues that this expansion violated
his Eighth Amendment rights, and that the court's failure to
give notice of what it would consider violated his due process
rights under the Montana and United States Constitutions.
(Strangely enough, the sentencing judge in Coleman also arrived
at the sentencing hearing with his findings, conclusions and
order of death already prepared.)
     The sentencing court had no right to expand the scope
of the inquiry by adding nonstatutory aggravating factors.
The death penalty statutes must be self-contained if they are
to have any meaning at all, and the judge's conduct is therefore
impermissible.    But assuming that the court had the right to
consider these nonstatutory aggravating factors, it had the
duty of notifying McKenzie in advance of the hearing that it
would be expanding the scope of the inquiry, and had a further
duty to tell McKenzie exactly what additional factors would be
considered.   Only by this procedure could McKenzie receive a
meaningful opportunity to present evidence on each of the
nonstatutory aggravating factors.   The fact that the court
came to the sentencing hearing armed with a sentence of death
is clear evidence of an intent to deny McKenzie even a semblance
of due process.
     I must state again that the majority opinion has
failed to address the fundamental and underlying issues
raised.   The majority, with no statement of its reasoning,
held it was proper for the sentencing court to consider the
seven nonstatutory aggravating factors, but the majority fails
to mention that McKenzie nonetheless argues he was entitled
to notice so that he could present evidence on the factors the
sentencing court would consider.    The majority's self-laudatory
statement that McKenzie has been given the most "tender legal
care" in all the annals of Montana criminal justice again
becomes meaningiess in this case.
     On this issue also    I would vacate the death sentence
and remand with instructions that the death penalty is not
to be considered as one of the options far the sentencing
court.
     F. IMPROPER EXPANSION OF DEATH PENALTY STATUTES TO
INCLUDE NONSTATUTORY AGGRAVATING FACTORS TO BE WEIGHED
AGAINST MITIGATING FACTORS--FAILURE TO GIVE NOTICE TO DEFENDANT
     The jury made no findings that McKenzie deliberately
took the victim's life, and   McKenzie therefore argues that
the imposition of the death penalty violates the Eighth and
Fourteenth Amendments.    He argues against the homicide con-
viction on the assumption that the jury found him guilty of
deliberate homicide, rather than the trial court's offense
of "deliberate homicide by means of torture."   With this
assumption, however, McKenzie argues that the jury may have
applied the felony murder rule in finding him guilty of
deliberate homicide (see section 94-5-102, MCA) and therefore
it did not make the finding that he deliberately took the
victim's life.   As to the aggravated kidnapping conviction,
the jury also found that the kidnapping resulted in the victim's
death, but the jury made no finding that McKenzie deliberately
took her life.
      On the day set for sentencing, the trial court came
to court with its findings and conclusions and death sentence
already prepared.      The trial court expressly relied on the
jury's findings in imposing the death sentence.           The court
referred twice to what it considered the jury's findings to
be.   Finding no. 4 stated:      "The evidence in the case, -
                                                            as
found - - -
      by the jury discloses a brutal, conscienceless, torture,
rape and deliberate killing of a human being."            (Emphasis added.)
Finding no. 6 stated:

      "That the jury rejected the verdict form finding
      the defendant not guilty by reason of a mental
      disease or defect which excludes responsibility
      for criminal conduct which was submitted to them
      and correctly -- defendant guilty of
                    found the
      deliberate homicide which was- means ~£-torture.
        -  - -
                                      - bv
      and guilty of ~ ~ g r a v a t e~ i d n a ~ p i-n ~ z resulted
                                     d             -
                                                   whi
      in the deathof the victim." (Emphasis added.)
      But the jury did not expressly find that McKenzie
deliberately took the victim's life--this is true in relation
to both convictions.      To assume that the jury imnliedly found
that McKenzie deliberately took the victim's life it must be
assumed further that the jury convicted McKenzie of "purposely
or knowingly" causing Lana Harding's death rather than causing
it in a felony-murder situation.        The jury was instructed
alternatively on the deliberate homicide charges, and thus,
there is no basis to determine from the record which theory
the jury used in convicting McKenzie.
      The aggravated kidnapping conviction is similarly
defective.       The instructions did not require the jury to find
that McKenzie, in committing the aggravated kidnapping,
deliberately took the victim's life.         And the returned verdict
reveals only that the victim died as a result of the kidnapping--
the jury made no finding that McKenzie deliberately took her
life.
        Unfortunately, the majority opinion omitted any
reference to the homicide conviction and deals only with the
aggravated kidnapping conviction.
     AGGRAVATED KIDNAPPING: ABSENCE OF A JURY FINDING THAT
McKENZIE DELIBERATELY TOOK THE VICTIM'S LIFE
     The jury returned the following aggravated kidnapping
verdict:
    "A. We, the jury, in the above-entitled cause,
    find the defendant Guilty of the offense of
    Aggravated Kidnapping as charged.
     "B. We further find that Lana Harding (did)(d*d
     not) die as a result of said Aggravated Kidnapping.
     "(Strike out bracketed word or words that do not
     apply. "
     This verdict shows that the jury was not asked to find
that McKenzie deliberately took the victim's life.    This
returned verdict cannot support the conclusion that the jury
made that determination.    Whether the jury believed that
McKenzie deliberately took the victim's life is another question
altogether.     It is sufficient to say that no such finding
appears in the record.    The finding that the aggravated
kidnapping resulted - - --
                    in the death of the victim is not equivalent
to a finding that McKenzie deliberately took the victim's
life.
     Nor did the trial court make independent findings on
this question.    Rather, in imposing the death penalty, it
expressly relied on what it believed the jury had found.
(Finding no. 4, supra.)    But in denying post-conviction relief
to McKenzie, both the trial court and this Court have ignored
the issues, and instead simply imposed their own views of
what the evidence disclosed, rather than relying on what was
actually found or not found.    Without reaching the issues
raised by McKenzie, the majority states:
     "In McKenzie 111,

608 P.2d

at 459, as the District
     Court noted in considering petitioner's application
     for post-conviction relief, we found the evidence
     on the issue of intent to be overwhelming, uncon-
     tradicted and permitting of but one rational
     conclusion--that McKenzie intended to kidnap and
     kill the victim." 38 St.Rep. at 1759.
     The trial record does not support this statement.     First,
this statement assumes that the jury or judge made these
necessary findings.    That is not the case.   Second, this
statement does not accurately reflect the evidence.    The
evidence on the question of intent was not uncontradicted. A
psychiatrist testified that McKenzie could neither appreciate
the criminality of his acts nor conform his conduct to the
requirements of law.    This question surely goes to the issue
of criminal intent--and criminal responsibility. Criminal
responsibility can arise only if criminal intent exists.      Third,
the majority's statement ignores the fact that the State's
case was aided mightily by a barrage of unconstitutional
Sandstrom-type instructions which allowed the jury to presume
criminal intent.
     Regardless of what the majority perceived the evidence
to be, the simple fact is that the majority is not the
fact-finder.   That is the function of the jury.   And regardless
of what the evidence shows, the fact is that the record does
not demonstrate that the jury in fact found that McKenzie
possessed the intent to kill.    The fault may lie with the jury
instructions or with the verdict forms, but that does not
alter the situation.    The jury did not make the findings
necessary for the imposition of the death sentence.
     In criticizing this Court for usurping the power of the
jury and serving as a fact-finder, Justices Marshall and
Brennan stated:
     "But what evidence did the court [the Montana
     Supreme Court] find sufficient to overcome the
     constitutional error of directing the jury to
     presume the presence of the requisite criminal
     intent from the nature of the acts committed?
     The Montana court itself relied solely on 'the
     vicious manner in which the crimes were committed'
     in concluding that petitioner 'purposely and
     knowingly intended' to commit the crimes. Id., at 450,
     459. I cannot - -but be shocked - -in taking
                    help -              that
     this approach, the Montana court simply applied
     - forbiddenperform its task on review: itcourt
     the
     neqlected to
                   presumption. In so doing,the
     failed to examine whether the disapproved instructions
     could have infected the jury verdict. Instead,
     the court served as another factfinder, again
     impermissibly placing the burden on petitioner to
     disprove that the nature of his acts established
     the-requisite criminal intent.   It surely cannot
     be that a verdict followins an unconstitutional
     instruction permitting - - - to presume
                             the jury
     criminal intent-can be immunized from reversal
                      T   -

                                        -
     because - reviewlns court also impermissibly
             the          d


     presumes criminal intent." - U.S.        , 101
                                                    -
     S.Ct. 626, at 628-29,

66 L. Ed. 2d 507

, at 509.
     (Emphasis added.)
     Not only did this Court erroneously apply the forbidden
presumption in reaching the conclusion that proof on the
question of intent was overwhelming, but it again has overlooked
the even more important fact that the jury was never directly
told to determine as part of its verdict the question of
whether McKenzie deliberately took the victim's life.     The
jury found only that the aggravated kidnapping resulted in
the victim's death.
     Nor can we read into the jury's verdict an implied
finding that McKenzie deliberately took the victim's life
in the course of committing the aggravated kidnapping.     None
of the instructions on aggravated kidnapping (instructions
no. 25, 29-V and 36)required the jury to find that ~ c ~ e n z i e
deliberately took the victim's life.    The only other instruction
involved concerns the special finding the jury was to make
if it found McKenzie guilty of aggravated kidnapping--the
jury was then to determine if the aggravating kidnapping
resulted in the victim's death.    (Instruction no. 54-111.)
This instruction does not tell the jury that it must,
before making that finding, determine that McKenzie
deliberately took the victim's life.
       The next question is whether the sentencing judge,
in the absence of a jury finding that McKenzie deliberately
took the victim's life, could make that finding himself as
part of the sentencing process.    In this case, finding
no. 4, supra, is so vague that I cannot determine whether
the sentencing judge made that independent determination or
not.    But if I had to interpret this finding, I would say
that the sentencing judge simply relied on what he considered
to be the jury's finding--a totally misplaced reliance because
the jury did not make the findings that t: Court. said it did.
                                         Ie
       Assuming arguendo, however, that the sentencing judge
did make independent findings that McKenzie deliberately
took the victim's life, it is my position that this function,
as a prelude to imposing a sentence of death, can only be
made by a jury, and that such a finding by the sentencing
judge is constitutionally prohibited.    See my dissents in
Coleman - 605 P.2d at 1045; Coleman 111, 633 P.2d at 660-
        11,
61; and Fitzpatrick - 38 St.Rep. at 1465F~-65GG.
                    111,
       I would adhere to the trial record's showing of what
the jury found, as opposed to the majority's conclusion of
what the evidence shows.    Based on the absence of a finding
that McKenzie deliberately took the victim's life, I would
vacate the death sentence since it is based in part on the
jury's finding that the aggravated kidnapping "resulted in
the death of the victim."
     DELIBERATE HOMICIDE: ABSENCE OF A JURY FINDING THAT
MCKENZIE DELIBERATELY TOOK THE VICTIM'S LIFE
       Although the jury made no finding that McKenzie intended
to kill his victim, the real problem with this conviction is
that McKenzie has been convicted of a nonexistent offense
(see part   of this dissent)   .   Beyond this, however, the
majority has failed to mention this issue in its opinion--
anothen example sf the "tender legal carew--that the majority
claims it has given McKenzie in reviewing his convictions
and death sentences.
     Since the jury convicted McKenzie of deliberate homicide
by means of torture, the only result is that the conviction
must be reversed with directions to dismiss that charge since no
such offense exists.   But if the jury did convict McKenzie
of deliberate homicide based on either subsections 94-5-102(a)
or (b), R.C.M. 1947, the question then arises as to which
subsection the jury convicted him of.     Lf the jury used subsection
(a), and therefore decided that McKenzie "purposely or know-
ingly" took the victim's life, its decision would be constitution-
ally sufficient.   On the other hand, if the jury applied the
felony-murder rule of subsection (b), there would be no finding
that McKenzie deliberately took the victim's life and therefore
its decision would be unconstitutional.
    Assuming that the jury did convict McKenzie under either sub-
sections 94-5-102 (a) or (b), R.C.M. 1947, McKenzie argues
that the record fails to reveal which theory of criminal
responsibility the jury applied, and therefore the death
penalty cannot be imposed.   The certainty required in death
penalty cases means that the defendant must be given the
benefit of any doubt arising from the proceedings.     Since it
cannot be determined whether the jury used subsection (a) or
subsection (b) in reaching its conviction, this doubt, McKenzie
argues, means that he cannot constitutionally be sentenced to
death.
        U n f o r t u n a t e l y , t h e m a j o r i t y o p i n i o n i s s i l e n t on

t h i s issue.        I assume, however, t h a t had t h e o p i n i o n d e a l t w i t h

t h e i s s u e , i t would have done s o i n t h e same way t h a t it

Zcalt       with t h e aggravated kidnapping issue--that                              is, that the

e v i d e n c e w a s overwhelming and u n c o n t r a d i c t e d .            And, o f

c o u r s e , m arguments would be t h e same h e r e as t h e y are on
               y

t h e aggravated kidnapping i s s u e .                   The e v i d e n c e on t h e q u e s t i o n

o f i n t e n t i s c e r t a i n l y c o n t r a d i c t e d by t h e p s y c h i a t r i s t

t e s t i f y i n g on b e h a l f of McKenzie, and was impacted by t h e

u s e o f t h e u n c o n s t i t u t i o n a l Sandstrom-type i n s t r u c t i o n s .

The m a j o r i t y had no r i g h t t o d e t e r m i n e t h e f a c t s i t s e l f .         The

j u r y e i t h e r found t h a t McKenzie d e l i b e r a t e l y t o o k t h e v i c t i m ' s

l i f e o r it d i d n o t .

        McKenzie r e l i e s a g a i n on L o c k e t t , s u p r a , and t h e c o n c u r r i n g

o p i n i o n s o f J u s t i c e s White and M a r s h a l l i n a r g u i n g t h a t ,

m i n i m i n a l l y , t h e E i g h t h Amendment r e q u i r e s a j u r y f i n d i n g

t h a t t h e d e f e n d a n t had t h e purpose t o t a k e t h e v i c t i m ' s l i f e .

I f t h i s i s t h e l a w , t h e n McKenzie c a n n o t be e x e c u t e d .

        The homicide c o n v i c t i o n i s c o m p l i c a t e d by s e v e r a l f a c t o r s .

A s I have a l r e a d y e x p l a i n e d ,     t h e jury v e r d i c t cannot be read

i n i s o l a t i o n from t h e i n s t r u c t i o n s , b u t r a t h e r , c a n o n l y be

u n d e r s t o o d i n r e l a t i o n t o them.       The v e r d i c t r e t u r n e d by t h e

jury stated:

        "A. W e , t h e j u r y i n t h e above e n t i t l e d c a u s e
        f i n d t h e d e f e n d a n t g u i l t y of t h e o f f e n s e of
        D e l i b e r a t e Homicide as Charged.

         "B. W e f u r t h e r f i n d t h a t t h e D e l i b e r a t e Homicide
         (was) (wes ~ e t ) Means o f T o r t u r e .
                               by
        " ( S t r i k e o u t t h e b r a c k e t e d word o r words which do
        not apply.)

        In part         IV,    of t h i s d i s s e n t , I have e x p l a i n e d how

t h i s returned v e r d i c t w a s t i e d d i r e c t l y i n t o the explanation

and d e f i n i t i o n o f t h e n o n e x i s t e n t o f f e n s e of d e l i b e r a t e
homicide by means of torture, and that the jury had no
choice but to use this guilty verdict form, for it was
provided with no others.
      But to set aside the conviction of a nonexistent
offense, the findings in this verdict must still be explained
by the instructions.    Finding A says that the jury found
McKenzie guilty of "Deliberate Homicide as Charged."       The
fact is that McKenzie was charged with deliberate homicide
under the two theories contained in section 94-5-202, R.C.M.
1947.     The first theory, subsection (a), requires that the
jury find the defendant "purposely or knowingly" killed the
victim.    The second theory, subsection (b), is a statement
of the felony-murder rule and does not require finding that
the defendant "purposely or knowingly" killed the victim or
that he intended to do so.    The jury was instructed alternatively
on these theories and its verdict does not state which theory
it applied in reaching its decision.
     Nor can Finding B support an implication that the jury
found McKenzie intended to take the victim's life.    The only
instructions defining the word "torture" or "by means of
torture" are contained in the instructions defining the
nonexistent offense of "deliberate homicide by means of
torture."     In each of these instructions the jury was
expressly told that in order to find McKenzie guilty of
deliberate homicide by means of torture, it did not have to
find that he intended to kill the victim.     (Instructions no.
23, 29-11 and 3 4 . )
      Specifically, instruction no. 23 stated in part:
      ".   ..is guilty of the offense of Deliberate
      Homicide by Means of Torture, whether or -
                                            - not
      it - -
      -  was the purpose or intention of - assailant
                                      -  the
      - cause --
      to       such d a h "
                     et.     (Emphasis added.)
And instruction no. 34 repeated this same language:
          "And i f you f i n d one o r more o f s a i d p a r t i c u l a r
          p u r p o s e s t o have been proved beyond a r e a s o n a b l e
          d o u b t and t h a t t h e d e f e n d a n t k i l l e d h e r w h i l e
          p u r p o s e l y s o i n f l i c t i n g c r u e l s u f f e r i n g upon
          h e r , h e h a s committed t h e o f f e n s e o f D e l i b e r a t e
          Homicide by means o f T o r t u r e , w h e t h e r - -s-r          it w a o
          w a s -- purpose - i n t e n t i o n - -l l h e r . "
          -      not h i s                    or                    to ki-
          (Emphasis added. )

          S u r e l y it c a n n o t be d e t e r m i n e d from t h e s e i n s t r u c t i o n s

--the      o n l y o n e s d e f i n i n g "by means of t o r t u r e m - - t h a t t h e j u r y

found McKenzie i n t e n d e d t o k i l l h i s v i c t i m .              The most t h a t

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

w i t h o u t e v e r c o n s i d e r i n g whether McKenzie i n t e n d e d t o k i l l .

I t i s p o s s i b l e , of course, t h a t t h e jury s u b j e c t i v e l y decided

t h a t McKenzie d i d p o s s e s s t h e i n t e n t t o k i l l , b u t nowhere i s

t h a t decision revealed o r implied.                       I f , before a death penalty

c a n be c o n s t i t u t i o n a l l y imposed, t h e j u r y must f i n d and t h e

r e c o r d must r e v e a l t h a t t h e d e f e n d a n t i n t e n d e d t o k i l l t h e

victim, it i s manifestly c l e a r t h a t here t h e death sentence

c a n n o t c o n s t i t u t i o n a l l y be imposed.       Neither t h e returned

v e r d i c t s n o r t h e i n s t r u c t i o n s r e q u i r e d t h e j u r y t o make t h i s
      /


decision.          Whether t h e j u r y s u b j e c t i v e l y r e a c h e d t h i s d e c i s i o n

i s a n o t h e r q u e s t i o n , b u t o b v i o u s l y a d e a t h p e n a l t y c a n n o t be

imposed based on what a j u r y s u b j e c t i v e l y t h o u g h t .

          I b e l i e v e t h a t -n l y a j u r y can make t h e d e c i s i o n o f
                                  o --

whether a p e r s o n c a n l i v e o r d i e , and -n l y a j u r y can make
                                                    o --

the underlying decisions a s well.                         Accordingly, i f t h e sentencing

judge made t h e f i n d i n g s h i m s e l f , t h i s would amount t o a

u s u r p a t i o n o f t h e f u n c t i o n of t h e j u r y ,    and t h e j u d g e ' s f i n d i n g s

could not c o n s t i t u t i o n a l l y stand.

          But I am n o t c e r t a i n t h a t t h e s e n t e n c i n g judge h i m s e l f

made a n i n d e p e n d e n t f i n d i n g c o n c e r n i n g a n i n t e n t i o n a l t a k i n g

of l i f e .      R a t h e r , i t a p p e a r s t h a t he r e l i e d on t h e j u r y ' s

d e t e r m i n a t i o n , y e t r e a l i z e d t h a t t h e j u r y had n o t made t h a t

determination.             Again, t h e o n l y f i n d i n g on t h i s i s s u e s t a t e d :
        "4. The e v i d e n c e i n t h e c a s e , and as found
        by t h e j u r y d i s c l o s e s a b r u t a l , c o n s c i e n c e l e s s ,
        t o r t u r e , r a p e and d e l i b e r a t e k i l l i n g of a human
        being."          (Emphasis a d d e d . )

        T h i s f i n d i n g , i f i t can be c a l l e d t h a t , i s ambiguous

a t best.       Did t h e s e n t e n c i n g c o u r t make i t s own f i n d i n g s on

t h e f a c t s s t a t e d , o r d i d i t r e l y on t h e j u r y ' s d e c i s i o n on

these issues?            By e l i m i n a t i n g t h e words--"and -s found by
                                                                 - a         -

-- n - - i t
the jury               would a p p e a r t h a t t h e s e n t e n c i n g c o u r t made

i t s own f i n d i n g s .    On t h e o t h e r hand, w i t h t h e words--"and -
                                                                               - as

found - -e j u r y w - - i t would a p p e a r t h a t t h e s e n t e n c i n g c o u r t
      by t h -

was merely r e p e a t i n g t h e f a c t s which i.t b e l i e v e d t h e j u r y t o

have found.          T h i s b e i n g a c a p i t a l c a s e , I b e l i e v e t h a t f i n d i n g no.

4 i s s o ambiguous t h a t i t c a n n o t s t a n d as one of t h e f o u n d a . t i o n s

on which t h e d e a t h p e n a l t y can be imposed.                    Nonetheless, t h e

finding i s f i l l e d with e r r o r .

        F i r s t assuming t h a t t h e s e n t e n c i n g c o u r t w a s merely

r e l y i n g on t h e jury's ckcis3-on, f i n d i n g no. 4 i s f l a t l y wrong i n

several respects.              F i r s t , t h e jury did not expressly o r

i m p l i e d l y f i n d t h a t McKenzie i n t e n d e d t o k i l l t h e v i c t i m .       If

t h e s e n t e n c i n g c o u r t used t h i s f i n d i n g a s f o u n d a t i o n on which

t o impose t h e d e a t h p e n a l t y , t h e n t h e d e a t h s e n t e n c e c a n n o t

stand   .
        Second, a l t h o u g h t h e j u r y d i d d e t e r m i n e t h a t t h e homicide

o c c u r r e d "by means of t o r t u r e , " t h e j u r y o n l y c o u l d have

d e c i d e d t h i s i s s u e by u s i n g t h e d e l i b e r a t e homicide - means
                                                                                by

- t o r t u r e i n s t r u c t i o n s ( i n s t r u c t i o n s no. 2 3 , 29-11 and 3 4 ) .
of

T h i s a g a i n means t h a t t h e j u r y found McKenzie g u i l t y of a

nonexistent offense.

        T h i r d , t h e j u r y d i d n o t f i n d t h a t McKenzie had r a p e d t h e

victim.       Although McKenzie was c h a r g e d w i t h r a p e and e v i d e n c e

w a s p r e s e n t e d t h a t t h e v i c t i m had been r a p e d , t h e j u r y , b e c a u s e
of the trial court's instructions, did not reach that
charge.    The trial court expressly told the jury that if
it found McKenzie guilty of aggravated kidnapping or
deliberate homicide by means of torture, or both, it would
not have to consider the lesser charges because they were
classified as lesser-included offenses (See instruction no.
54, part 111).     That is precisely what happened and the trial
court accepted the jury's verdicts.          Obviously, because of the
alternative charges, an implied finding of rape was not
necessary to either an aggravated kidnapping or deliberate
homicide conviction.
      Fourth, there is a real question concerning whether
the   victim was    tortured   within tlie    definition
of torture given to the jury.      This is also an issue that
McKenzie has continually raised but this Court has consistently
avoided.   There is no doubt that the victim was brutally murdered,
but a brutal murder does not mean that it was a murder by
torture.   McKenzie argues that there is not substantial evidence
to support a finding that the victim was tortured.          (See part V
of this dissent.)
      Because I believe that the jury in fact convicted
McKenzie of the nonexistent offense of deliberate homicide by
means of torture, much of my discussion is unnecessary.         On
the other hand, because the majority has not only ignored this
issue but also the issue relating to whether the jury found
that McKenzie deliberately took the victim's life, I feel
compelled to express my views.      Clearly, the jury did not
expressly or impliedly find that McKenzie deliberately killed
his victim.   This being so, the death penalty cannot be imposed.
      Even assuming that the deliberate homicide by means of
torture conviction does not have to be reversed and dismissed
because there is no such crime, I would in any event, because
of my views expressed here, remand the case for resentencing
with instructions that the death penalty is not to be
considered.

     G. AN EVIDENTIARY HEARING IS REQUIRED TO DETERMINE
WHETHER THE DEATH PENALTY IN MONTANA IS IMPOSED ARBITRARILY,
WANTONLY, FREAKISHLY AND DISCRIMINATORILY
     In upholding the death penalty as an abstract principle,
the United States Supreme Court left the door open for the
factual claim that the death penalty may be imposed arbitrarily,
wantonly, freakishly, and discriminatorily.   llcKenzie has
attacked the Montana death penalty on precisely this ground
and has set forth in a supporting affidavit facts which he
claims an evidentiary hearing will prove.   He alleges that
no person has been executed in this state since 1943, and
that now the only persons on death row are himself, Coleman
and Fitzpatrick.   He claims that he and the other defendants
have been arbitrarily selected to receive the death penalty,
and that scores of defendants before and since have been
convicted of capital crimes but have not received the death
penalty.
     In Gregg, supra, the United States Supreme Court,
extremely conscious that its holding in Furman, supra, had
been misinterpreted, attempted to distill what it considered
to be the essence of Furman.   In Gregg, the Court explained
that part of its Furman holding invalidating Georgia's death
penalty, was that the death penalty was being imposed
discriminatorily, wantonly and freakishly, and so infrequently
that any given death sentence was cruel and unusual.     Gregg
(White J., concurring), 428 U.S. 220-221.   This conclusion
in Furman was reached after considering the result of capital
sentencing practices - -
                     in fact, rather than by simply examining
the abstract statutes on the books.   Furman, 408 U.S.
at 256-257 (Douglas, J., concurring); 408 U.S. 293-295
(Brennan, J., concurring); 408 U.S. at 309-310 (Stewart,
J., concurring); 408 U.S. at 311-314 (White, J., concurring).
     The Furman holding is simply an application of the
long-established rule that a statute valid on its face
can be administered in a manner violative of the Constitution:
     "The generality of a law inflicting capital
     punishment is one thing. What may be said of
     the validity of a law on the books and what
     may be done with the law in its application
     do, or may, lead to quite different conclusions."
     408 U.S. at 242 (Douglas, J., concurring).
     In Gregg, then, once having set forth what it considered
its holding in Furman to be, the Supreme Court upheld the
death penalty statutes then on the books in Georgia.     The
Court expressly recognized that the allegation that the new
deatH penalty statutes were still imposed arbitrarily and
discriminatorily was "unsupported - - facts."
                                  by any              (~mphasis
added.)    428 U.S. at 225 (White, J., concurring).   In the
absence of supporting facts, the Supreme Court declined to
assume that the kind of arbitrary and discriminatory sentencing
found in Furman had carried over to the new Georgia statutes
and their application.
     But a different situation exists here.   McKenzie
alleged facts in his petition and supporting affidavit
that directly challenged the assumption on which Gregg was
based, and he offered to prove these facts at an evidentiary
hearing.    If proved, these facts would establish that the
death penalty scheme was not just arbitrary and discriminatory
on its face, but just as important, that it was arbitrary
and discriminatory as applied.    These allegations are clearly
sufficient to require an evidentiary hearing.
     In refusing to order an evidentiary hearing on
these claimed constitutional violations, the trial court
and this Court have subverted the purpose of the post-
conviction relief statutes and have taken from McKenzie
any opportunity to show in our state court system that the
application of these statutes is unconstitutional.      McKenzie
has been deprived of a state remedy and a state forum to
present his constitutional claims.
     H. AN EVIDENTIARY HEARING IS REQUIRED TO DETERMINE
THE CLAIM THAT THE DEATH PENALTY IN MONTANA IS SO INFREQUENTLY
IMPOSED THAT IT NO LONGER SERVES A VALID STATE INTEREST AND
THEREFORE CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT
     Closely connected to McKenzie's claim of the arbitrary,
wanton, freakish, and discriminatory application of Montana's
death penalty is his claim that its infrequent use leads to
the conclusion that it no longer serves a valid state interest,
and is therefore cruel and unusual pu.nishment.
    Again, neither the District Court nor this Court ruled
directly on this claim despite the fact that McKenzie has
alleged evidentiary facts in support of his contention.
     In Furman, supra, the United States Supreme Court merely
held that the death penalty is not per se unconstitutional,
but the Court recognized certain limitations.     Those limita-
tions have been raised in this case, yet this Court has
refused to permit an evidentiary hearing on the claim.      In
Furman, Justice White clearly pointed out in his concurring
opinion that   ". . . as   the statutes before us are now
administered, the penalty is so infrequently imposed that
the threat of execution is too attentuated to be of substantial
service to criminal justice."      408 U.S. at 313.   Justice
White also stated:
       .
     ". . At the momei~tthat [the deatll penalty] ceases
     realistically to further these purposes, however,
     the emerging question is whether its imposition
    in such circumstances would violate the Eighth
    Amendment.    It is my view that it would,
    for its imposition would then be the point-
    less and needless extinction of life with
    only marginal contributions to any discernible
    social or public purposes. A penalty with such
    negligible returns to the State would be patently
    excessive and cruel and unusual punishment violative
    of the Eighth Amendment." 408 U.S. at 312.
    McKenzie alleged in his petition for post-conviction
relief, and more particularly in his supporting affidavit,

that just that point has been reached in Montana--that the
death penalty, because of the infrequency of its imposition
over the years, serves no valid state interest, and therefore
constitutes cruel and unusual punishment violative of the
Eighth Amendment.
     He has alleged the irrefutable facts that no one
has been executed in Montana since 1943, despite the fact
that scores of persons have been convicted of crimes where
a death penalty could have been imposed.     (The period in
which the status of the death penalty's constitutionality
was held in limbo by the United States Supreme Court is
excluded.)    But now, in the early 19701s, McKenzie argues
that three defendants (McKenzie, Coleman, and Fitzpatrick)
have been selected to receive the death penalty, despite the
fact that during this same time period many other persons
were convicted of capital crimes but not given the death
penalty.     He alleges that because the death penalty is
infrequently imposed in Montana, the threat of execution is
too remote to be of any value to the criminal justice system.
Lacking this valid state interest, he claims that the death
penalty in Montana has, in the words of Justice White, become
". . . patently    excessive and cruel and unusual punishment
violative of the Eighth Amendment."    Furman, 408 U.S.at     312.
     Both the trial court and this Court have ignored this
challenge to the application of Montana's death penalty
statutes. As justification for its decisioq the majority
has seized on the language in Gregg, supra, that the death
penalty, as an abstract principle, can be justified on
principles of retribution and deterrence.     But the majority
has subverted Gregg by converting it into a general holding
that if death penalty statutes are constitutional on their
face, their application is permissible under principles of
retribution and deterrence.   The question the majority evades
is whether one is entitled to an evidentiary hearing to
prove his claim that the death penalty is imposed so infrequently
that it no longer serves as either retribution or deterrence,
and therefore results in   ". . .   the pointless and needless
extinction of life with only marginal contributions to any
discernible social or public purposes."     Furman, 408 U.S.
at 312.
     Obviously, these questions cannot be decided in a factual
vacuum, and that is precisely why an evidentiary hearing is
required.   Retribution and deterrence may indeed be just-
ifications which can withstand an Eighth Amendment challenge,
but any statutory system of capital punishment can still be
unconstitutional in its application.     The majority's holding
here has foreclosed any attempt to prove this claim in our
state court system.   This Court cannot delegate to the
legislature the responsibility of ensuring that a system of
capital punishment is constitutionally applied.     The question
           in fact a certain punishment violates the Eighth
of whether - -
Amendment is a question solely for the courts.
     McKenzie has alleged facts, that, if proved, would fall
clearly within Furman's restraining language.     He is entitled
to a hearing to present his proof supporting his allegations.
The question of whether the death penalty has been uncon-
stitutionally applied to him is not a question for the
legislature, but clearly a judicial duty to see that the
law is not only constitutional on its face, but that it is
also constitutionally applied.
     I. AN EVIDENTIARY HEARING IS NECESSARY TO DETERMINE
WHETHER THE DELAY BETWEEN THE SENTENCING AND THE EXECUTION
CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT VIOLATIVE OF THE
EIGHTH AMENDMENT
     In paragraph 10(n) of McKenzie's petition for post-
conviction relief, McKenzie alleged that "his death sentence
was unconstitutional because    . . .   the excessive cruelty
involved in the extinction of a defendant's life after a
prolonged period of waiting did not serve any valid state
interest - -
         in fact."    (Emphasis added.)    McKenziels Appellate
Brief at pp. 39-42.     Somehow the majority, in rendering
"tender legal care" to McKenzie, omitted any discussion of
this issue.
     The trial court, however, did rule on the question,
but missed the point.     It merely relied on the general
holding in Gregg, supra, that the death penalty is not cruel
and unusual punishment, and it therefore concluded that
McKenzie does not have a right to claim that the death penalty

- - - applied - - is unconstitutional.
as in fact    to him
     McKenzie again relies on language in Furman, supra,
and in Gregg, supra, in which the Supreme Court left open
the right to contend that the death penalty as applied is
unconstitutional.    McKenzie alleges that delay and infrequency
in carrying out a death penalty deprive      it from serving
as a deterrent, and he also claims that this delay and
infrequency add   an element of mental anguish not present
w i t h o t h e r forms o f punishment.                 H e p r i m a r i l y r e l i e s on

D i s t r i c t A t t y . f o r S u f f o l k D i s t . v. Watson (Mass. 1 9 8 0 ) ,

4 1

1 N.E.2d 1274

, which h e l d i n p a r t t h a t a d e a t h p e n a l t y

defendant's ~ r d e a l
                      between s e n t e n c i n g and d e a t h c o n v e r t s

t h e d e a t h p e n a l t y i n t o a form of c r u e l and u n u s u a l punish-

ment.      McKenzie c l a i m s t h a t he s h o u l d be a l l o w e d t o p r e s e n t

t h e more p e r s u a s i v e e v i d e n c e which would d e m o n s t r a t e t h a t

e x c e s s i v e l y c r u e l c a p i t a l punishment i n r e a l i t y s e r v e s no

v a l i d state i n t e r e s t .

        T h i s argument, by i t s e l f , does n o t c a r r y much i n t r i n s i c

m e r i t because a l m o s t i n v a r i a b l y i t i s t h e d e f e n d a n t who i s

s e e k i n g t o p o s t p o n e h i s own d e a t h , and b e c a u s e t h e United

S t a t e s Supreme C o u r t h a s mandated e x p e d i t e d a p p e l l a t e r e v i e w

b e f o r e t h e e x e c u t i o n can t a k e p l a c e .     Nonetheless, t h i s

argument, when combined w i t h t h e c l a i m s o f a r b i t r a r y i m p o s i t i o n

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

hold an e v i d e n t i a r y hearing.            A d e a t h p e n a l t y d e f e n d a n t who

r a i s e s t h e s e c o n s t i t u t i o n a l c l a i m s must s t r u g g l e a g a i n s t t h e

j u d i c i a l system t o s t a y a l i v e u n t i l t h e y have been answered.

     J. AN EVIDENTIARY HEARING I S REQUIRED TO DETERMINE
WHETHER DEATH BY HANGING CONSTITUTES CRUEL AND UNUSUAL
PUNISHMENT

        McKenzie's l a s t c l a i m d i r e c t l y a t t a c k i n g t h e d e a t h

p e n a l t y i s t h e a l l e g a t i o n t h a t d e a t h by hanging c o n s t i t u t e s

c r u e l and u n u s u a l punishment v i o l a t i v e o f t h e E i g h t h Amend-

ment.      H e p l e a d e d f a c t s which s t a t e d t h e n a t u r e of t h e

s u f f e r i n g by one who must hang by t h e neck u n t i l d e a d , and

sought an e v i d e n t i a r y hearing i n support of t h e s e a l l e g a t i o n s .

        H e a g a i n r e l i e s on r e s t r a i n i n g language i n Furman, s u p r a ,

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

c o n s t i t u t i o n a l on t h e i r f a c e , may, a s a p p l i e d , c o n s t i t u t e

c r u e l and u n u s u a l punishment.             H e r e l i e s d i r e c t l y on S t a t e

v . Frampton ( 1 9 8 1 ) , 95 Wash.2d 469,

627 P.2d 922

, i n which
the Washington Supreme Court expressly ruled that death
by hanging constitutes cruel and unusual punishment.
     In omitting this as an issue on appeal, the majority
has once again undermined its gratuitous statement that
in all of the annals of criminal law history in the State
of Montana, no defendant has ever received more "tender
legal care" than McKenzie.
     I believe that McKenzie is entitled to an evidentiary
hearing to present evidence of this claimed violation of
his constitutional rights.
X.    CONCLUSION

        I n summarizing t h o s e i s s u e s where t h e m a j o r i t y

has e i t h e r ignored t h e i s s u e e n t i r e l y o r misstated t h e
i s s u e o r t h e n a t u r e of t h e problem p r e s e n t e d , I a g a i n must
emphasize t h a t t h i s i s a d e a t h p e n a l t y c a s e t h a t r e q u i r e s

the closest appellate court scrutiny.                               The United S t a t e s

Supreme C o u r t h a s mandated t h i s of a l l a p p e l l a t e c o u r t s ,
b u t even i f it d i d n o t , o u r own s e n s e o f d u t y s h o u l d compel

t h e most c a r e f u l and p a i n s t a k i n g review.               W have f a i l e d
                                                                          e

miserably i n t h a t obligation.

        To b e g i n , i n Coleman I11 and F i t z p a t r i c k 111, t h i s
C o u r t a d o p t e d o n e s t a n d a r d t o d e t e r m i n e whether i s s u e s r a i s e d

i s a p o s t - c o n v i c t i o n r e l i e f p e t i t i o n a r e res j u d i c a t a .       But
h e r e t h e m a j o r i t y h a s a d o p t e d a d i f f e r e n t and more r e s t r i c t i v e

s t a n d a r d t h a n was a p p l i e d i n Coleman I11 and F i t z p a t r i c k 111.

The d i f f e r e n c e i s more t h a n c o s m e t i c ; t h e d i f f e r e n t t e s t
a p p l i e d t o McKenzie meant t h a t t h e m a j o r i t y c o u l d a v o i d
d e t e r m i n i n g whether any i s s u e d e c i d e d on t h e m e r i t s w a s
c o r r e c t l y d e c i d e d on t h e m e r i t s .      (See p a r t I1 o f t h i s d i s s e n t . )

        McKenzie made t h r e e e q u a l p r o t e c t i o n arguments c o n c e r n i n g

t h i s C o u r t ' s uneven a p p l i c a t i o n of t h e law t o McKenzie's
previous appeals:                (1) t h a t we a p p l i e d s e a r c h and s e i z u r e

s t a n d a r d s c o n t r a r y t o t h e law and a p p l i e d them o n l y i n h i s

case;      ( 2 ) t h a t t h i s C o u r t l s h o l d i n g t h a t h e was n o t e n t i t l e d

t o a l e s s e r - i n c l u d e d o f f e n s e i n s t r u c t i o n on m i t i g a t e d d e l i b e r a t e
homicide was based on an a p p l i c a t i o n o f t h e law which i g n o r e d
t h e e v i d e n c e and which w a s a p p l i e d o n l y i n h i s case; ( 3 )
t h a t t h i s C o u r t a d o p t e d an i m p e r m i s s i b l e h a r m l e s s e r r o r t e s t
( t h e overwhelming e v i d e n c e t e s t ) t o d e t e r m i n e t h e i m p a c t of
t h e e i g h t u n c o n s t i t u t i o n a l Sandstrom-type i n s t r u c t i o n s .            The
m a j o r i t y o p i n i o n i g n o r e d a l l t h r e e of t h e s e i s s u e s .        (See
p a r t V I of t h i s d i s s e n t . )
        McKenzie a g a i n c l a i m s t h a t t h i s C o u r t h a s c o n s i s t e n t l y

f a i l e d t o meet t h e i s s u e of whether t h e S t a t e e s t a b l i s h e d

p r o b a b l e c a u s e t h a t s e i z a b l e i t e m s were l o c a t e d a t McKenzie's

home.      This Court again h a s ignored t h i s i s s u e .                      (See p a r t

V I of t h i s d i s s e n t . )

        On t h e p l e a b a r g a i n i s s u e , McKenzie h a s always m a i n t a i n e d

t h a t t h i s C o u r t i g n o r e d t h e t r i a l r e c o r d and i n s t e a d r e l i e d

s o l e l y on t h e S t a t e ' s a p p e l l a t e b r i e f s , where, f o r t h e f i r s t

t i m e , t h e S t a t e a s s e r t e d t h a t no p l e a b a r g a i n e x i s t e d .   This

Court has never addressed h i s contention i n later appeals

t h a t we ignored t h e t r i a l record.                F u r t h e r , t h e o p i n i o n s have

misstated t h e record.               The m a j o r i t y h e l d t h a t t h e t r i a l c o u r t

found a g a i n s t McKenzie on t h e f a c t u a l q u e s t i o n o f w h e t h e r a

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

f i n d i n g by t h e t r i a l c o u r t , and, i n f a c t , no e v i d e n t i a r y h e a r i n g

on t h i s i s s u e w a s e v e r h e l d .      I n f a c t , t h e t r i a l c o u r t was a

p a r t y t o t h e p l e a b a r g a i n agreement.           The m a j o r i t y s t a t e d t h a t

McKenzie had n o t a l l e g e d t h a t t h e p r o s e c u t o r s had a c t e d i n

bad f a i t h when t h e y backed o u t of t h e p l e a b a r g a i n agreement.

But t h e r e c o r d shows t h a t McKenzie h a s c o n s i s t e n t l y a l l e g e d

t h a t t h e p r o s e c u t o r s a c t e d i n bad f a i t h .     Finally, the majority

m i s s t a t e d t h e r e c o r d i n c o n c l u d i n g t h a t McKenzie's c l a i m o f

d e t r i m e n t a l r e l i a n c e was unfounded.          (See p a r t I11 o f t h i s

dissent. )

        The o p i n i o n s have c o n s i s t e n t l y i g n o r e d t h e d e l i b e r a t e

homicide - means - t o r t u r e i s s u e s r a i s e d by McKenzie.
         by      of                                                                           They

have i g n o r e d t h e c l a i m s t h a t t h e j u r y was 5 n s t r u c t e d t h a t

McKenzie was charged w i t h t h e s u b s t a n t i v e o f f e n s e o f d e l i b e r a t e

homicide by means of t o r t u r e , t h a t t h e j u r y was i n s t r u c t e d on

t h e e l e m e n t s of d e l i b e r a t e homicide by means of t o r t u r e a s a

s u b s t a n t i v e o f f e n s e , and t h a t d e l i b e r a t e homicide by means o f
t o r t u r e i s n o t a n o f f e n s e d e f i n e d by Montana l a w .         In

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

these matters, but the probability i s g r e a t t h a t t h e jury

d i d c o n v i c t McKenzie o f t h i s n o n e x i s t e n t o f f e n s e .      (See

p a r t I V of t h i s d i s s e n t . )

        Furthermore, t h e opinions, i n concluding t h a t t h e

v i c t i m was t o r t u r e d , f a i l t o s e t f o r t h t h e e v i d e n c e which

would s u p p o r t a j u r y f i n d i n g t h a t t h e v i c t i m m e t h e r d e a t h

by means o f t o r t u r e .        (See p a r t I V o f t h i s d i s s e n t . )         This

C o u r t a l s o i g n o r e d t h e i s s u e o f whether t h e v i c t i m w a s

t o r t u r e d , w i t h i n t h e meaning o f t h e s t a t u t e s e t t i n g o u t 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 of " d e l i b e r a t e homicide by means of

t o r t u r e , " and w i t h i n t h e meaning o f t h e j u r y i n s t r u c t i o n s

defining torture.              T h i s C o u r t i n f a c t f a i l e d t o g i v e any

s u b s t a n t i v e meaning t o t h e p h r a s e " d e l i b e r a t e homicide by

means o f t o r t u r e . "      (See p a r t V of t h i s d i s s e n t . )

        The m a j o r i t y ' s r u l i n g s on t h e d e a t h p e n a l t y i s s u e s a r e

similarly deficient.                T h i s C o u r t i g n o r e d t h e i s s u e s of

whether i t can be d e t e r m i n e d from t h e r e c o r d whether t h e

j u r y found t h a t McKenzie d e l i b e r a t e l y t o o k t h e v i c t i m ' s l i f e .

(See p a r t I V of b h i s d i s s e n t ) , whether from t h e i n s t r u c t i o n s

an a p p e l l a t e c o u r t c o u l d d e t e r m i n e t h a t t h e j u r y was r e q u i r e d

t o f i n d t h a t McKenzie d e l i b e r a t e l y t o o k t h e l i f e of t h e v i c t i m .

(See p a r t V I o f t h i s d i s s e n t . )

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

t h e j u r y c o n v i c t e d McKenzie of d e l i b e r a t e homicide by

a p p l y i n g s e c t i o n s 94-5-102(a)      o r ( b ) , R.C.M.       1947--each

subsection c r e a t e s a d i f f e r e n t theory of criminal r e s p o n s i b i l i t y

f o r homicide.         Under s u b s e c t i o n ( a ) t h e j u r y must d e t e r m i n e

t h a t a d e f e n d a n t p u r p o s e l y o r knowingly t o o k t h e v i c t i m ' s

life.      Under s u b s e c t i o n ( b ) , t h e felony-murder r u l e , t h e
j u r y i s n o t r e q u i r e d t o make s u c h a d e t e r m i n a t i o n b e f o r e

f i n d i n g a d e f e n d a n t g u i l t y of d e l i b e r a t e homicide.           (See

p a r t I V of t h i s d i s s e n t . )

         I n f a c t , t h e m a j o r i t y h a s m i s s t a t e d t h e r e c o r d s on a

n o n r e l a t e d i s s u e i n c o n c l u d i n g t h a t McKenzie was c o n v i c t e d

of " p u r p o s e l y o r knowingly" c a u s i n g t h e d e a t h o f Lana Harding.

A t 6 0 8 P.2d a t 452-53,             t h e majority states:

         "There a r e t h r e e t y p e s of c r i m i n a l homicide.
         Defendant was c h a r g e d w i t h , - c o n v i c t e d o f ,
                                         --       and
         d e l i b e r a t e homicide, a c r i m i n a l homicide committed
         p u r p o s e l y o r knowingly.    S e c t i o n 95-5-102(1) ( a ) ,
         R.C.M.        1947.    . ."   (Emphasis a d d e d . )

A s I have shown i n p a r t s I V and V of t h i s d i s s e n t , McKenzie

was charged a l s o w i t h felony-murder,                     a t h e o r y which d o e s n o t

r e q u i r e t h a t a j u r y f i n d h e p u r p o s e l y o r knowingly t o o k t h e

v i c t i m ' s l i f e ; i t i s i m p o s s i b l e t o t e l l from t h e r e c o r d which

t h e o r y t h e j u r y a p p l i e d i n f i n d i n g McKenzie g u i l t y .          The

m a j o r i t y ' s unsupported assumption r e f l e c t s t h e i n a d e q u a t e

r e v i e w t h a t h a s c h a r a c t e r i z e d e a c h of t h e McKenzie a p p e a l s .

         T h i s C o u r t i g n o r e d t h e i s s u e o f whether s e c t i o n s

94-5-501(1)         and 94-5-403,           R.C.M.      1947, i m p e r m i s s i b l y s h i f t

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

from imposing a d e a t h s e n t e n c e .              (See p a r t I X o f t h i s d i s s e n t . )

T h i s C o u r t i g n o r e d t h e i s s u e of whether t h e s e n t e n c i n g c o u r t

s h o u l d have n o t i f i e d McKenzie b e f o r e t h e s e n t e n c i n g h e a r i n g

t h a t i t i n t e n d e d t o r e l y on n o n s t a t u t o r y a g g r a v a t i n g f a c t o r s .

(See p a r t I X o f t h i s d i s s e n t . )        F u r t h e r , on a r e l a t e d i s s u e ,

t h i s C o u r t s i d e - s t e p p e d t h e i s s u e of whether s e c t i o n 94-5-105,

R.C.M.      1947 p e r m i t s t h e weighing of a g g r a v a t i n g f a c t o r s a g a i n s t

mitigating factors.                 (See p a r t I X of t h i s d i s s e n t . )

         T h i s Court f a i l e d t o d i r e c t l y r u l e on t h e c l a i m t h a t

t h e d e a t h p e n a l t y i s imposed s o i n f r e q u e n t l y and imposed s o

a r b i t r a r i l y and d i s c r i m i n a t o r i l y , i t no l o n g e r s e r v e s any

v a l i d s t a t e purpose and i s t h e r e f o r e c r u e l and u n u s u a l
punishment v i o l a t i v e o f t h e E i g h t h Amendment.                 (See p a r t
I X of t h i s d i s s e n t . )    T h i s Court f u r t h e r i g n o r e d a c l a i m
t h a t t h e l a p s e of t i m e between t h e s e n t e n c e and t h e a c t u a l
e x e c u t i o n c a u s e s e x t r e m e m e n t a l agony and t h a t no v a l i d
s t a t e i n t e r e s t i s s e r v e d by t h e d e a t h p e n a l t y , amounts t o
c r u e l and u n u s u a l punishment v i o l a t i v e of t h e E i g h t h Amendment.

(See p a r t I X of t h i s d i s s e n t . )       And t h i s C o u r t i g n o r e d t h e
c l a i m t h a t d e a t h by hanging c o n s t i t u t e s c r u e l and u n u s u a l
punishment.           (See p a r t I X of t h i s d i s s e n t . )

        F i n a l l y , one i s s u e d e m o n s t r a t e s a s w e l l a s any t h e
q u a l i t y o f r e v i e w w e have g i v e n McKenzie.             I n McKenzie -
                                                                                    I1

and - t h e m a j o r i t y h e l d t h a t a f t e r w e d e c i d e d h i s a p p e a l ,
    111,

he c o u l d s t i l l have h i s d e a t h s e n t e n c e reviewed by t h e

S e n t e n c e Review Board.          But t h e n Dewey Coleman a s k e d t h e

S e n t e n c e Review Board t o r e v i e w h i s d e a t h s e n t e n c e and t h a t
b o a r d t u r n e d him down.        Coleman t h e n a s k e d t h i s C o u r t t o

compel t h e S e n t e n c e Review Board t o r e v i e w h i s d e a t h s e n t e n c e .

Coleman r e l i e d on t h e McKenzie d e c i s i o n f o r a u t h o r i t y , b u t

t h i s C o u r t t u r n e d him down and a g r e e d w i t h t h e S e n t e n c e Review
Board t h a t i t had no a u t h o r i t y t o r e v i e w a d e a t h s e n t e n c e .

        I n h i s a p p e a l from t h e D i s t r i c t C o u r t ' s d e n i a l of
p o s t - c o n v i c t i o n r e l i e f , McKenzie a s k e d t h i s C o u r t t o r e c o n s i d e r
i t s McKenzie - and - r u l i n g s t h a t t h e S e n t e n c e Review Board
               I1    1 1
                      1

could review h i s death sentence.                      Had w e r u l e d on t h i s i s s u e ,
and p r o p e r l y r u l e d , o u r d e c i s i o n would b e t h a t t h e S e n t e n c e

Review Board c o u l d n o t r e v i e w McKenzie's d e a t h s e n t e n c e .
Such a d e c i s i o n would mean, however, t h a t McKenzie's d e a t h
sentence could n o t s t a n d , because t h e procedural safeguards
a f t e r conviction did not contain s u f f i c i e n t protection t o
m e e t t h e mandates o f U n i t e d S t a t e s Supreme C o u r t d e c i s i o n s .

I n r e g a r d t o t h e s e o b v i o u s l y i n c o n s i s t e n t h o l d i n g s i n McKenzie
and Coleman with regard to the Sentence Review Board's
authority to review death sentences, this Court chose to
ignore the issue.     By ignoring the issue, McKenzie still
stands sentenced to death.     (See part IX of this dissent.)
     This concludes my third dissent to this Court's
McKenzie opinion.   United States Supreme Court Justices
Marshall and Brennan have already strongly criticized this
Court for its uneven treatment of McKenzie and for its
failure to comply with the mandates of the United States
Supreme Court.   In fact, both Justices felt so strongly that
McKenzie's rights had been violated that they recommended that
McKenzie seek federal habeas corpus relief.      449 U.S. at 1056,
101 S.Ct. at 630, 66 L.Ed.2d at 510.     It is not often that
dissenting justices of,the United States Supreme Court go so
far as to suggest that a defendant continue to press his case
by seeking federal habeas corpus relief.      Such a recommendation
can only arise because the dissenting justices have an
abiding believe that this Court has utterly failed to recognize
and protect McKenzie's constitutional rights.
     Now we can add yet another chapter to what I stated in
McKenzie I11 which would be a fitting title for a story on
McKenzie's appeals:     The McKenzie Rules:   Not - General
                                              - For
Application--Apply Sparingly.      The theme has not changed; my
review of this appeal has convinced me beyond any doubt that
a defendant sentenced to death in this state has no chance to
obtain fair, adequate, and meaningful review.
     I must again allude to the statement in the majority

opinion that in all the annals of criminal law history in
this State, no defendant has been given more "tender legal
care."   I believe that my dissent demonstrates precisely
the contrary.    Never in the annals of criminal law history
i n t h i s S t a t e h a s a d e f e n d a n t e v e r been t h e v i c t i m of

such a c o n s i s t e n t and w h o l e s a l e d e n i a l of fundamental

rights.      Only a f e d e r a l c o u r t c a n now g i v e t h e f a i r and

even-handed r e v i e w t h a t t h e C o u r t h a s s o c o n s i s t e n t l y r e f u s e d

t o give.
Mr. Justice Frank B. Morrison, Jr., concurring:

     The purpose of this comment is to fulfill a commitment
made to my brother, Justice Daniel J. Shea.     I was to review
his dissent at its conclusion and add my judicial blessing to
any portions with which I could agree.    The review is complete.
My comments follow.
     Justice Shea's dissent is one of the most scholarly and
lucid professional works I have ever read.    With keen analysis
he has laid bare the travesty known as State v. McKenzie.       The
investigation was bungled; the plea bargain was broken; the
trial was a mockery; the sentence was predetermined; the appellate
review was more illusory than real.
     Justice Shea sounds an alarm which rings loudly in the
citizen ear.   We must act to preserve our constitutional system
and that action rightfully preempts any compulsion to punish,
no matter how heinous the crime.    Every citizen must receive equal
justice before the law.    There are no exceptions.   In this
case, our system of justice has been twisted, torn, and at times,
ground asunder.
    An appellate court must vigilantly protect the structure
from mob assault.     This Court, in McKenzie, has failed miserably.
     I concur in Justice Shea's dissent.
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McKenzie v. Osborne