State v. Vern Kills on Top

NO. 88-475

IN THE SUPREME COURT OF THE STATE OF MONTANA
1990

STATE OF MONTANA,
Plaintiff and Respondent,
-v-
VERN KILLS ON TOP,
Defendant and Appellant.

APPEAL FROM: District Court of the Sixteenth Judicial District,
In and for the County of Custer,
The Honorable C. B. Sande, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
John S. Forsythe, Forsyth, Montana
For Respondent:
Clay R. Smith, Asst. Attorney General, Helena,
Montana
Keith D. Haker, County Attorney, Miles City, Montana

Submitted: March 13, 1990
MAY 2 1 1990 Decided: May 21, 1990
Filed: a

CLERKOFSUBREMECOURT
STATE OF M'~OI~'TANA

Clerk
Justice Fred J. Weber delivered the Opinion of the Court.

This is an appeal from the District Court of the Sixteenth
Judicial District, Custer County, Montana. Mr. Vern Kills on Top
was convicted by jury of robbery, aggravated kidnapping and
deliberate homicide. He was sentenced to 40 years for robbery,
and sentenced to death for each of the latter two convictions. He
appeals both the convictions and the sentences. We affirm.
The issues presented for our review are:
1. Whether the amended information sufficiently informed
defendant of the offenses with which he was charged.
2. Whether the District Court had jurisdiction over the
crimes for which defendant was convicted.
3. Whether defendant was denied the right to a speedy trial.
4. Whether the District Court abused its discretion by
denying defendant's motion to compel pretrial depositions of
defendant's accomplices.
5. Whether defendant was prejudiced by an order of the
District Court in the companion case of Lester Kills on Top.
6. Whether the District Court erred in denying defendant's
motion to suppress.
7. Whether the District Court erred in admitting certain
evidence at trial.
8. Whether accomplice testimony was sufficiently
corroborated.
9. Whether the District Court erred in instructing the jury.
10. Whether there was prosecutorial misconduct at trial, and
2
if so, whether defendant was thereby prejudiced.
11. Whether the District Court erred in denying defendant's
motion for a mistrial.
12. Whether the District Court abused its discretion by
utilizing the verdict form offered by the State.
13. Whether certain factual findings by the District Court
were supported by substantial evidence.
14. Whether imposition of the death penalty is consti-
tutional under the mandatory review criteria of S 46-18-310, MCA.
15. Mandatory Supreme Court sentence review pursuant to 5 46-

18-310, MCA.
On October 16, 1987, defendant, Vern Kills on Top, who will
be referred to in this opinion as defendant, and his brother,
Lester Kills on Top, were staying at the residence of George Bell
in Miles City, Montana. Also staying at that residence were Diane
Bull Coming and Doretta Four Bear. That evening defendant, Lester,
and Diane went to a few local bars. A little after midnight, they
went back to the house where they were staying and woke Doretta,
requesting that she come with them. The four individuals then went
to the Golden West Lounge in Miles City. Mr. John Martin
Etchemendy, Jr. also went to the Golden West Lounge that evening.
He was with a friend, Steve Hathaway, who drove Mr. Etchemendy's
pickup to the lounge. When Mr. Etchemendy was ready to leave the
lounge, at approximately 2:00 a.m., he could not locate his
pickup. Diane Bull coming testified that defendant offered to help
him find his pickup. Mr. Etchemendy got into the car with
defendant, Lester, Diane and Doretta. The car was a black Dodge
Duster, belonging to defendantls girlfriend, Cathy Meshnik.
Defendant was driving the car. Mr. Etchemendy was in the back seat
with Lester and Diane. Diane testified that Lester began speaking
in his native tongue of Northern Cheyenne, saying the group should
roll Etchemendy and steal from him. The group looked a few places
for the pickup, then headed out of town and turned onto Cemetery
Road. Mr. Etchemendy lives at the end of this road. Doretta
testified that after Mr. Etchemendy indicated they were going the
right way, defendant stopped the car and turned it around, heading
out of Miles City and south toward Broadus. Outside of Miles City
the car stopped and the men got out to urinate. Diane Bull Coming
testified that Lester and Mr. Etchemendy began fighting; however
Mr. Etchemendy voluntarily got back in the car.
Doretta testified that shortly after this, Lester attempted
to force Mr. Etchemendy to take some pills. Mr. Etchemendy
resisted and a fight began in the back seat between Lester and Mr.
Etchemendy. Doretta testified that during the fight Diane removed
the wallet from Mr. Etchemendylspocket. Diane testified that she
handed it to defendant who took credit cards and employment checks
from Colstrip Garbage Disposal out of the wallet. The fight
continued and Diane and Doretta testified that defendant stopped
the car saying that he '#wantedin on some of this." He stopped the
car on Tongue River Road and defendant and Lester then took the
victim outside the car and continued beating him. Doretta
testified that she saw both defendant and Lester kicking the victim
while he was lying on the ground. Both Doretta and Diane testified
that the victim was screaming and pleading with defendant and his
brother to stop. Doretta testified that defendant then got into
the back seat with the victim and attempted to choke him. She
testified that a short time later, defendant asked the driver to
stop the car, whereupon defendant told the victim to get out and
take his clothes off . Diane testified that at this point defendant
and Lester placed the nude victim into the trunk of the car.
The group traveled on to Ashland, Montana, where they picked
up LaVonne Quiroz at about 5:00 a.m. Defendant and LaVonne
attempted to siphon some gas in Ashland, and they also stole a red
tool box. Doretta testified that they then drove to Rabbit Town,
where she fled from the group by running to a friend's house.
Diane and LaVonne testified that they stopped the car at a water
trough where defendant and Lester washed blood off their hands.
The brothers also removed their shirts at this stop. Diane
testified that the trunk was opened at this stop and she saw the
victim. She stated that he was all beat up, bloody, that his eyes
and mouth were swollen, and his hair was all matted down with
blood.
Diane testified that the group drove to Broadus, where Lester
attempted to cash one of the checks taken from the victim. They
were able to cash the check at a bar and Lester divided the money
between himself and defendant.
Diane testified that at her suggestion the group decided to
drive to Gillette, Wyoming. After leaving Broadus, Lester passed
a blindfold to the victim through an opening in the back seat,
instructing him to tie it over his eyes. They then stopped the car
so the victim could urinate. LaVonne Quiroz testified that before
they got out of the car, defendant asked her to hand him a metal
pipe which was in the car. She stated that Lester grabbed the pipe
and while standing in the trunk holding the pipe up, told the
victim he would hit him if he ran. Diane testified that at the
stop, defendant took the blindfold off the victim, whereupon Lester
became angry and told defendant they would now have to kill the
victim. Diane testified that defendant agreed with Lester. She
testified that defendant and Lester forced Mr. Etchemendy to get
back into the trunk. Lester then attempted to force him to drink
a mixture of beer and Ever-Clear in an attempt to make him pass
out.
Diane testified that while they were driving Lester spoke to
the victim through the back seat. Mr. Etchemendy informed Lester
that he was married and had two little boys.
The group next stopped at Biddle, Montana, off the
reservation, where Lester cashed the second check taken from Mr.
Etchemendy. After purchasing food and drink the proceeds were
shared with defendant. Diane testified that defendant purchased
gasoline with one of the victim's credit cards.
The group arrived in Gillette, Wyoming in the afternoon.
Lester purchased a new shirt and jeans and changed clothes. He
and Diane then went into the Lobby Bar. The car was parked on the
street. At trial LaVonne testified that the victim began pounding
on the trunk and hollering, "Help me." She testified that
defendant instructed her to move the car into the alley at the side
of the bar. Defendant and LaVonne then joined Lester and Diane in
the Lobby Bar.
Diane testified that while the four of them were in the bar
Lester told defendant they had to Ifget rid of" the victim or they
were going to get caught. She testified that defendant agreed with
Lester, although defendant wanted to wait. She testified that
Lester asked for the keys, that defendant gave him the keys, and
that she and Lester left.
Lester and Diane drove out of town, turned off on a gravel
road and drove over a hill where they were not visible from the
highway. Diane testified that Lester then opened the trunk and
started hitting the victim with a pipe. She stated that Mr.
Etchemendy said, I1Oh,God, no, God, no, don't do this to me," but
that Lester kept hitting him, while blood spurted from his head.
Lester continued to hit him in the head with a tire iron, and then
a rock. Lester then closed the trunk, got in the car, and Diane
drove away. Before reaching the main highway, they encountered a
Blazer driven by a woman, who pulled over to let them pass. Diane
testified that Lester stated he was going to shoot the victim. He
put a bullet in a vise grip. When Diane stopped the car, Lester
got out and attempted to shoot the victim by hitting the bullet
with a hammer. Diane testified that she heard a sound similar to
a firecracker. Diane and Lester continued to drive back towards
Gillette, but they had two flat tires so they stopped at the Rustic
Lounge.
Here, Diane testified that Lester attempted to cut the
victimts throat with a small knife. From the bar, Diane called
defendant and LaVonne and told them to take a taxi and join them.
She testified that Lester later came inside and said the victim
was dead.
LaVonne Quiroz testified that she and defendant purchased
clothing at a store in Gillette while waiting for Lester and Diane
to return. while at the bar, they received a phone call from Diane
asking them to come to the Rustic Inn. She stated that they took
a cab to the Rustic Inn. After the second flat tire was changed,
the group of four got back in the car, with Quiroz driving, and
traveled south. They passed an abandoned building approximately
fifteen miles south of Gillette, and decided to stop there. She
testified that the body of the victim was left at the community
hall. LaVonne testified that both defendant and Lester said,
I1Hurryup, letssgo," after leaving the body. As they pulled away
in the car, they left open a gate. A rancher in a pickup forced
the car to stop and told them to return and close the gate.
LaVonne stated that they went back to the gate, whereupon she and
Lester got out and closed it.
The group then drove to Sheridan, Wyoming, stopping at a
motel. When Lester and Diane got out to get a room, defendant and
LaVonne drove off, leaving them behind. LaVonne testified that
while driving toward Billings, Montana, defendant disposed of the
blanket which had been in the trunk covering the victim.
 LaVonne testified that she and defendant stopped at the home
of ~ylviaBarrigan, where they washed their clothes and washed out
the car, including the trunk. She stated that defendant threw a
rock away at this location. They then drove to Billings,
accompanied by a friend of defendant, Mr. Lyn Ros Bixby. In
Billings, on October 18, 1987, the car was stopped by law
enforcement officers and defendant was arrested. Lester and Diane
hitchhiked to Billings, Montana, where they went to the home of a
friend, Lorraine Four Colors. They were apprehended there on
October 19, 1987.
On October 19, 1987, law enforcement officers located the body
of the victim at the abandoned community hall south of Gillette,
Wyoming. An autopsy, performed on October 20, 1987, established
that the cause of death was extensive blunt traumatic injuries to
the left side of the head, which crushed the victim's skull. Dr.
Deters, the pathologist performing the autopsy, testified at trial.
He testified that the victim had been injured in the head at least
forty-five minutes, and up to twelve hours prior to the fatal
assault. This injury had resulted in a subdural hematoma, a
collection of blood on the surface of the brain. He testified that
the subdural hematoma injury alone was potentially fatal, exclusive
of the injuries to the left side of the head.
Defendant was charged with robbery, aggravated kidnapping,
and deliberate homicide. His brother, Lester, was charged with
the same offenses and his trial was held June 6-24, 1988, in Fallon
County, Montana. Defendant's trial began July 26, 1988 in
Yellowstone County. On August 6, 1988 the jury returned a verdict
finding defendant guilty of robbery, aggravated kidnapping, and
deliberate homicide.
The facts will be discussed in greater detail as necessary
under each issue. In presenting the issues in this opinion, we
have followed the order of occurrence; however, issues XIII, XIV,
and XV, are the critical issues relating to the death penalty.

Whether the amended information sufficiently informed
defendant of the offenses with which he was charged.
On March 24, 1988, defendant moved to dismiss the amended
information alleging that it did not sufficiently inform him of
the charges against him. The District Court denied this motion.
Section 46-11-401(1)(c), MCA, states:

Form of Charge. (1) A charge shall:
...
(c) charge the commission of an offense by:
(i) stating the name of the offense;
(ii) citing in customary form the statute,
rule, or other provision of law which the defendant
is alleged to have violated;
(iii) stating the facts constituting the
offense in ordinary and concise language and in
such manner as to enable a person of common under-
standing to know what is intended;
(iv) stating the time and place of the of-
fense as definitely as can be done; and
(v) stating the name of the accused, if
known, and, if not known, designating the accused
by any name or description by which he can be
identified with reasonable certainty.

In the present case the amended information charged the
defendant by name, with robbery in Count I, in violation of
§ 45-5-401(1)(a), MCA; aggravated kidnapping charged
alternatively in Counts I1 and 111, in violation of 5 45-5-
303 (1)(b) and (c), MCA; and deliberate homicide, charged
alternatively in counts IV and V in violation of 45-5-
102 (1)(b), MCA. He was charged in each offense as a
principal, or by accountability. The information stated that
the offenses occurred on or about October 17, 1987, in Custer
County, Montana, and in Campbell County, Wyoming, and that the
victim was John Martin Etchemendy, Jr. Each offense was
alleged in the language of the statute. The amended
information was six pages in length and contained details to
support the charges.
Simultaneously with the motion for leave to file the
information, the State filed a seven-page affidavit contain-
ing many factual details of the entire transaction, beginning
with the events at the Golden West Bar in Miles City through
the death of the victim in Wyoming.
Standards for evaluating the sufficiency of an informa-
tion include the following:

The information must reasonably apprise the accused
of the charges against him, so that he may have the
opportunity to prepare and present his defense.
This requirement is satisfied if the charges suffi-
ciently express the language of the statute which
defines the offense. (Citations omitted.)
State v. Matson (1987), 227 Mont. 36, 43, 736 P.2d 971, 975.
"The test for the validity of a complaint is whether a
person of common understanding would know what was intended
to be charged." State v. Handy (1986), 221 Mont. 365, 368,
719 P.2d 766, 768. ~dditionally, Itthe contents of the
affidavit supporting a motion for leave to file an information
may be considered in determining the meaning of the language
contained in the information." State v. Longneck (1981), 196
Mont. 151, 154, 640 P.2d 436, 438. As to a defendant charged
by accountability we have stated that Ifanindictment need not
distinguish an act performed by the accused himself and the
act of another for which he is legally acc~untable.~~
State
v. Murphy (1977), 174 Mont. 307, 310, 570 P.2d 1103, 1105.
In the present case the information stated the date and
location of the alleged offenses and the name of the victim.
The crimes were alleged in the language of the statutes. The
affidavit filed in support of the motion contained many
additional specific details. We conclude the defendant was
reasonably apprised of the charges against him, and there is
no basis for defendant's contention that the information was
insufficient. We affirm the denial of this motion by the
District Court.
I1
Whether the District Court had jurisdiction over the
crimes for which defendant was convicted.
In a pretrial motion to dismiss, defendant contended that
Montana lacked jurisdiction to prosecute these offenses. The
District Court denied this motion.
 On appeal, defendant contends that Montana lacks juris-
diction to prosecute these crimes for two reasons. First, he
contends that jurisdiction to prosecute the deliberate homi-
cide was properly in the State of Wyoming rather than Mon-
tana. Second, defendant contends that federal jurisdiction
is exclusive pursuant to the Major Crimes Act, 18 U.S. C. 5
1153, because defendant is a full-blooded, enrolled member of
the Northern Cheyenne Tribe, and the offenses occurred I1within
the Indian Country.lV We will address each jurisdictional
issue separately.
The statute governing State jurisdiction for a criminal
offense is 5 46-2-101, MCA, which provides in pertinent part:

(1) A person is subject to prosecution in this
state for an offense which he commits while either
within or outside the state by his own conduct or
that of another for which he is legally accountable
if:
(a) the offense is committed either wholly or
partly within the state[.]

(2) An offense is committed partly within this
state if either the conduct which is an element of
the offense or the result which is an element
occurs within the state.
Pursuant to 5 46-2-101, MCA, Montana has jurisdiction if
the offense is committed "partly within" the state. This
Court has previously construed this statute in State v. White,
230 Mont. 356, 358, 750 P.2d 440, 441, as a "broad assertion

of jurisdicti~n.~~ also State v. Bush (1981), 195 Mont.
See
475, 477-78, 636 P.2d 849, 851. Analyzing the elements of
each of the three offenses for which defendant was convicted,
it is clear that an element of each offense occurred off the
reservation, and was committed partly within Montana.
Defendant was charged with and convicted of robbery,
described in § 45-5-401(1)(a), MCA, as follows:

Robbery. (1) A person commits the offense of
robbery if in the course of committing a theft he:
(a) inflicts bodily injury upon another[.]
Theft is defined in 5 45-6-301, MCA, which provides:

Theft. (1) A person commits the offense of
theft when he purposely or knowingly obtains or
exerts unauthorized control over property of the
owner and:
(a) has the purpose of depriving the owner of
the property[.]
In the present case Doretta testified that Diane Bull
Coming took Mr. Etchemendytswallet containing credit cards
and two employment checks, while Lester inflicted bodily
injury upon Mr. Etchemendy. Undisputed testimony demonstrated
that this action occurred on the Tongue River Road in Montana,
several miles before the group enteredthe reservation. While
the testimony does establish that defendant did not initially
take Mr. Etchemendyts wallet from him, the uncontradicted
evidence establishes that the defendant exerted unauthorized
control over the property of Mr. Etchemendy when he used one
of the victim's credit cards to purchase gas at Ashland, which
is on the reservation, and at Biddle, which is in Montana and
off the reservation. Defendant also shared the proceeds of the
checks, and used the stolen credit cards to purchase clothing
in Gillette, Wyoming. The testimony also established that
defendant inflicted bodily injury upon the victim off the
reservation and in Montana.
We conclude that the uncontradicted evidence established
that elements of the crime of robbery were committed within
the State of Montana and off the Indian Reservation. We
affirm the District Court's denial of the motion to dismiss
the robbery for lack of state jurisdiction.
Defendant was charged with aggravated kidnapping pursu-
ant to 5 45-5-303 (1)(b) or (c), MCA, which provides:

Aggravated kidnapping. (1) A person commits
the offense of aggravated kidnapping if he knowing-
ly or purposely and without lawful authority re-
strains another person by either secreting or
holding him in a place of isolation or by using or
threatening to use physical force, with any of the
following purposes:
* * *
(b) to facilitate commission of any felony or
flight thereafter;
(c) to infict bodily injury on or to
terrorize the victim or another;
Again, it is clear that Mr. Etchemendy was restrained within
Montana before the group entered the reservation. The
physical restraint and robbery of Mr. Etchemendy began in the
back seat of the car well before the group entered the
reservation. Diane Bull Coming and Doretta Four Bear both
testified that shortly thereafter and before entering the
reservation, the car stopped and defendant and Lester as-
saulted the victim outside the car. Then, rather than plac-
ing him back in the car, they ordered him to strip, and placed
him in the trunk of the car. Boxer shorts, identified at
trial as belonging to the victim, were found near Highway 332
in Custer County, Montana, off the reservation. This evidence
corroborates the testimony as to where the victim was placed
in the trunk. The evidence clearly establishes that elements
of the aggravated kidnapping were satisfied in Montana, off
the reservation. We affirm the District Courtvs denial of
defendantlsmotion to dismiss the aggravated kidnapping for
lack of state jurisdiction.
Defendant was also charged with and convicted of
deliberate homicide under the "felony murder rule.I1 Section
45-5-102(1)(b), MCA, codifies the felony murder rule,
providing:

Deliberate homicide. (1) A person commits
the offense of deliberate homicide if:

(b) he attempts to commit, commits, or is
legally accountable for the attempt or commission
of robbery, sexual intercourse without consent,
arson, burglary, kidnapping, aggravated kidnapping,
felonious escape, felony assault, aggravated as-
sault, or any other forcible felony and in the
course of the forcible felony or flight thereafter,
he or any person legally accountable for the crime
causes the death of another human being.
Under the "felony murder ruleu it is not necessary to prove
the Itpurposelyor knowinglyl1element of the crime of deliber-
ate homicide. State v. Nichols (1987), 225 Mont. 438, 449-
50, 734 P.2d 170, 176-77; State v. Sunday (1980), 187 Mont.
292, 307, 609 P.2d 1188, 1197. Rather, the purposely or
knowingly element of the underlying felony replaces this
element.
In State ex rel. Murphy v. McKinnon (1976), 171 Mont.
120, 556 P.2d 906, we stated that I f r the felony murder rule
'o
to apply a causal connection between the felonious act and the
death must be present. It McKinnon, 556 P.2d at 910.
Therefore, in the present case the elements the State had to
prove were:

1) the commission of the felony
2) that a death occurred
3) a causal connection between the underlying
felony and the death.

In the present case, the jury found the underlying felony
to be aggravated kidnapping. As previously established, the
first element of the deliberate homicide, the commission of
the underlying felony of aggravated kidnapping, occurred in
Montana. The causal connection element was also satisfied by
Montana-based conduct. Only the actual death occurred in
Wyoming.
Defendant urges that Montana lacks jurisdiction over the
deliberate homicide since the killing occurred in Wyoming.
Defendant misconstrues the requirements of the offense of
felony murder. The evidence in this case clearly establishes
that two elements of the felony murder offense occurred in
Montana, bringing this offense within the scope of state
jurisdiction pursuant to 1 46-2-101, MCA. We affirm the
17
District Courtls denial of defendantlsmotion to dismiss the
deliberate homicide based on lack of State jurisdiction.
As a second jurisdictional issue, defendant contends that
pursuant to the Major Crimes Act, federal jurisdiction is
exclusive. The Major Crimes Act, 18 U.S.C. 5 1153(a),
provides :

Any Indian who commits against the person or prop-
erty of another Indian or other person any of the
following offenses, namely, murder, manslaughter,
kidnapping, maiming, a felony under chapter 109A,
incest, assault with intent to commit murder,
assault with a dangerous weapon, assault resulting
in serious bodily injury, arson, burglary, robbery,
and a felony under section 661 of this title within
the Indian country, shall be subject to the same
laws and penalties as all other persons committing
any of the above offenses, within the exclusive
jurisdiction of the United States. (Emphasis
added. )
In the present case the critical language of this stat-
ute is "within the Indian country." An Indian committing one
of the enumerated crimes within Indian country is subject to
federal jurisdiction. The issue of State jurisdiction over
an Indian defendant is resolved factually in the present case.
As previously established, elements of the crimes of robbery,
aggravated kidnapping, and deliberate homicide were satisfied
within Montana and outside of Indian country.
Defendant contends that if any portion of an offense
occurs within Indian country, the State has no jurisdiction.
However, this is not the law. The State has jurisdiction for
off-reservation offenses even though a connected offense may
occur within Indian country. See, e.s., State v. Rossbach
(Minn. 1980), 288 N.W.2d 714 (state had jurisdiction where
Indian defendant, standing inside reservation, fired rifle
across boundary of reservation at a deputy sheriff standing
on Minnesota land) ; State v. Winckler (S.D. 1977) , 260 N.W. 2d
356 (state had jurisdiction to prosecute seven Indian
defendants who fired shots from reservation onto state land).
See also 41 Am. Jur.2d Indians § 67 (1968), stating: It. . .
Indians are amenable to state laws for offenses against such
laws, committed by them off the reservation and within the
limits of the state, .. .Iv while it is true that the victim
was taken onto the reservation during the course of the
kidnapping, in fact, crossing the reservation three times,
this journey through the reservation does not deprive the
State of its jurisdiction.
Defendant relies on United States v. Torres (7th Cir.
1984), 733 F.2d 449, cert. denied, 469 U.S. 864, 105 S.Ct.
204, 83 L.Ed.2d 135, (1984), as authority for his contention
that federal jurisdiction is exclusive. In Torres, federal
jurisdiction attached where the Itmaor portion" of an ongoing
j
conspiracy to "get rid of the victim" occurred on the
reservation, even though defendants began to formulate the
conspiracy, and abducted the victim outside the reservation.
Torres, 733 F.2d at 460. The present case is factually
distinguishable from Torres since only a minor portion of the
crimes occurred on the reservation. Further, the holding of
Torres was that a major portion of a conspiracy occurred on
the reservation, allowing federal jurisdiction. The issue of
concurrent state jurisdiction was not decided. Torres does
not foreclose state jurisdiction. We conclude that Montana
had jurisdiction to prosecute all three charged offenses as
required under 5 46-2-101, MCA. We affirm the District
Court's denial of the motion to dismiss based on lack of
jurisdiction.
I11
Whether defendant was denied the right to a speedy trial.
On June 6, 1988, defendant moved to dismiss the charges
against him for lack of a speedy trial. This motion was
denied by the ~istrictCourt. On appeal, defendant urges that
the delay in his trial was presumptively prejudicial and that
he was in fact prejudiced by the delay.
The Sixth Amendment to the United States Constitution
provides the basis for defendant's asserted right to a speedy
trial. This right is made applicable to the states through
the Fourteenth Amendment. State v. Wiman (Mont. 1989) , 769
P.2d 1200, 1201, 46 St.Rep. 279, 280. In Barker v. Wingo
(1972), 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d
101, 116-17, the United States Supreme Court articulated four
factors to be considered in determining whether a defendant
has been denied the right to a speedy trial. These factors
are length of delay, the reason for the delay, the defendant's
assertion of his right, and prejudice to the defendant. These
factors are to be balanced, and each speedy trial case must
be approached on an ad hoc basis. Barker, 514 U.S. at 530.
In Wiman we stated:
Length of delay is of primary importance. Unless
it is sufficiently long to be deemed presumptively
prejudicial to the defendant, there is no need to
consider the other factors. What length will be
deemed presumptively prejudicial depends on the
facts in each individual case. State v. Robbins
(1985), 218 Mont. 107, 708 P.2d 227, 42 St.Rep.
1440; State v. Worden (1980), 188 Mont. 94, 611
P.2d 185. There is no need to determine other
factors unless there has been some delay which is
deemed presumptively prejudicial. Armstrong, 616
P.2d at 351.

Wiman, 769 P.2d at 1201.
In State v. Worden (1980), 188 Mont. 94, 96-7, 611 P.2d
185, 186, we stated:
What length will be deemed presumptively prejudicial
depends on the facts of each individual case. A
longer delay will be tolerated in a complex case
than would be tolerated in one involving a simple
fact situation. (Citation omitted.)

In the present case defendant was arrested on October
18, 1987, and trial began on July 25, 1988. Thus there was
a delay of 281 days. This Court has held comparable delays
to be presumptively prejudicial. See State v. Waters (1987),
228 Mont. 490, 493, 743 P.2d 617, 619 (277 days) ; State v.

Cutner (1984), 214 Mont. 189, 192, 692 P.2d 466, 467 (286
days). In the present case there is no dispute that defen-
dant asserted this right in a timely manner. Thus the analy-
sis in the present case focuses on the reasons for delay and
the nature of prejudice to defendant.
The events leading up to trial in the present case are
summarized as follows:
On October 23, 1987, the defendant requested recusal of
Judge Martin, and on November 9, 1987, Judge Sande was
directed to preside. In the interim, on November 2, 1987, the
defendant gave notice of his intent to rely upon the defense
of mental disease or defect and requested a psychiatric
examination pursuant to § 46-14-202, MCA, and commitment for
such purpose at a hospital or other suitable facility for a
period not to exceed 60 days. His motion was granted on
November 23, 1987, and he was ordered transported to the
Montana State Hospital at the earliest practicable time. The
defendant was hospitalized there between January 7, 1988 and
February 13, 1988, and a report containing the evaluation was
completed and forwarded to the District Court on February 8,
1988. The defendant himself was accordingly unavailable for
trial until early February.
The defendant also requested dismissal of the proceeding
on jurisdictional grounds on November 20, 1987. The State
responded to that motion on November 27, 1987, and the defen-
dant filed a reply brief six days later. By letter dated
February 22, 1988, the county attorney summarized the motions
pending in this case and related proceedings against Lester,
Diane Bull Coming and Doretta Four Bear and requested their
resolution as soon as possible to avoid I1a speedy trial
problem.I1 He notified counsel for the defendant, Diane Bull
Coming and Doretta Four Bear on February 29, 1989, that he and
Lester's attorney had agreed to attempt preparation of a
stipulated set of facts concerningthe jurisdictional question
by March 8, 1988, and, if unsuccessful, to have a hearing on
that and other motions. A stipulated set of facts was arrived
at in Lester's case, and his motion to dismiss on
jurisdictional grounds was denied by Judge Obert on April 8,
1988. A hearing on the defendant's corresponding motion in
regard to jurisdiction, occurred on June 30, 1988 and was
denied during trial at the close of the State's case in chief.
On March 11, 1988, defendant filed a consolidated motion
for a change of place of trial, a poll of registered electors
and suppression of evidence. At the omnibus hearing on March
24, 1988, defendant filed three other motions. The latter
pleadings included a motion to dismiss the amended informa-
tion for failure to allege sufficiently the nature of the
charges, a motion for an award of extraordinary attorney fees,
and a motion to compel the grant of testimonial immunity to
Lester Kills on Top, Diane Bull Coming, Doretta Four Bear and
LaVonne Quiroz pursuant to 5 46-15-331, MCA. Defendant filed
a brief in support of the venue motion on June 30, 1988. On
July 6, 1988, the court conducted a hearing on the suppression
motion, and defendant filed a brief in support of that motion
on July 8, 1988.
In analyzing speedy trial issues, this Court has stated:

No one factor in the speedy trial analysis is
necessary in all circumstances or sufficient alone
to determine a deprivation of the speedy trial
 right. All factors must be considered together with
such other factors as might be relevant. This Court
must engage in a difficult and sensitive balancing
process. (Citation omitted.)

Worden, 611 P.2d at 187.
This Court has recognized that, "[wlhile it is perfectly
acceptable to make numerous motions, it is a simple fact that
consideration of motions takes time and may delay a trial.''
State v. Pease (1987), 227 Mont. 424, 429, 740 P.2d 659, 662.
In the present case the defendant filed numerous motions.
Further, he delayed five months before filing the bulk of his
pretrial motions.
This case was very complex, involving over forty wit-
nesses and 94 exhibits introduced by the State. The trial of
defendant's brother, Lester Kills on Top, occurred a month
earlier than the trial of defendant and involved the same
witnesses and exhibits. Thus trial logistics were complex.
However, our review of the record fails to demonstrate any
dilatoriness on the part of the State. Although defendant
urges that the State delayed his trial in order to plea
bargain with accomplices, he fails to show how any delay was
caused by plea bargains.
Defendant has likewise failed to demonstrate that he was
prejudiced by the delay of his trial. Three factors are
considered in determining prejudice, as stated in Barker:

Prejudice, of course, should be assessed in the
light of the interests of defendants which the
speedy trial right was designed to protect. This
 Court has identified three such interests: (i) to
prevent oppressive pretrial incarceration; (ii) to
minimize anxiety and concern of the accused; and
(iii) to limit the possibility that the defense
will be impaired. Of these, the most serious is
the last, because the inability of a defendant
adequately to prepare his case skews the fairness
of the entire system. If witnesses die or disap-
pear during a delay, the prejudice is obvious.
There is also prejudice if defense witnesses are
unable to recall accurately events of the distant
past.
Barker, 407 U.S. at 532, 92 S.Ct. at 2193, 33 L.Ed.2d at 118.
In the present case defendant has failed to present any
facts indicating his defense was impaired. In fact, it may
be that the opposite occurred, since defense counsel was able
to be present at the trial of Lester, in which virtually the
same evidence was admitted. Further, it appears from the
record that defendant was actively preparing his defense
during the entire delay. Although defendant asserts prejudice
resulting from the State's ability to formulate certain plea
bargains, this is not the type of prejudice prohibited by
Barker. Defendant does not contend that his defense was
impaired because he was unable to adequately prepare his case,
or because the memories of defense witnesses were impaired.
Defendant's failure to demonstrate prejudice supports the
conclusion that his right to a speedy trial was not violated.
- State v. Shurtliff (1980), 187 Mont. 235, 609 P.2d 303
Cf.
(defendant's speedy trial right was not violated by 382 day
delay where no prejudice was shown and defendant was actively
preparing his defense throughout the entire pretrial period) ;
Worden, 611 P.2d at 187 (defendant's speedy trial right was
not violated by 319 day delay where defendant demonstrated no
prejudice) .
In balancing and assessing the facts in light of the
Barker factors, we must do so in the context of this case.
Many issues were raised by motion in the pretrial proceedings,
necessitating briefing and hearings. These motions were
seriously made by defendant, opposed carefully by the State,
and thoroughly considered by the judges. We are also mindful
of the numerous witnesses and exhibits involved in the
preparation for trial.
Although we do not attempt to specify the number of days
of delay attributable to each party, it is apparent that the
delay is attributable in part to the State because of the
necessity of adequate prosecution, in part to defendant who
made many motions and requests, and in part to the court in
considering the multitude of issues. It appears that the
State diligently worked to bring this case to trial.
Moreover, defendant has shown no prejudice. We conclude that
the delay of 281 days, viewed against the complexity of the
case and the relevant factors, did not deny defendant the
right to a speedy trial. We affirm the District Court's
denial of defendant's motion to dismiss based on lack of
speedy trial.
IV
Whether the District Court abused its discretion by
denying defendant's motion to compel pretrial depositions of
defendant's accomplices.
On March 30, 1988, defendant filed a motion requesting
that the District Court grant immunity to Lester Kills on Top,
Diane Bull Coming, Doretta Four Bear, and LaVonne Quiroz, and
to grant an order compelling their testimony by deposition for
use at defendant's trial. The District Court did not rule on
this motion. On appeal, defendant claims he was denied
effective discovery of possible exculpatory information
relevant to his guilt.
The District Court may compel testimony or production of
evidence pursuant to 5 46-15-331, MCA, which provides:

Compelling testimony or production of
evidence--immunity. Before or during trial in any
judicial proceeding, a justice of the supreme court
or judge of the district court, upon request by the
attorney prosecuting or counsel for the defense,
may require a person to answer any question or
produce any evidence that may incriminate him. If
a person is required to give testimony or produce
evidence in accordance with this section in any
investigation or proceeding, no compelled testimony
or evidence or any information directly or indi-
rectly derived from such testimony or evidence may
be used against the witness in any criminal prose-
cution. Nothing in this section prohibits a prose-
cutor from granting immunity from prosecution for
or on account of any transaction, matter, or thing
concerning which a witness is compelled to testify
if the prosecutor determines, in his sole discre-
tion, that the ends of justice would be served
thereby. Immunity may not extend to prosecution or
punishment for false statements given in any testi-
mony required under this section.
The statute provides that the District Court 88may88
compel
testimony or production of evidence; thus an order pursuant
to this statute is discretionary with the court. Montana
statutes do not specifically authorize pretrial discovery
depositions in criminal cases, in line with most
jurisdictions. The rationale is that the prior recorded
statements of prosecution witnesses afford an alternative
discovery source. LaFave, W. and Israel, J, Criminal
Procedure 5 19.3 (1985). In the present case, the accomplices
gave multiple statements to various people, including both
state and federal law enforcement officers. The State made
all of these statements available to defendant. The trial of
Lester Kills on Top occurred one month prior to defendant's
trial, and defense counsel had the opportunity to attend that
trial and hear the testimony of these accomplices. At
District Court, and on appeal, defendant has failed to
identify any information which he hoped to elicit, which was
not available through prior statements by the accomplices.
Defendant has failed to show any prejudice from the District
Court's failure to grant his motion. We conclude that
defendant has presented no basis for this alleged error, and
that the District Court did not abuse its discretion in not
allowing pretrial depositions of accomplices.
v
Whether defendant was prejudiced by an order of the
District Court in the companion case of Lester Kills on Top.
In the case involving defendant's brother, Lester Kills
on Top, the District Court ordered, over objection by Lester
Kills on Top, production of statements made by individuals
whom Lester intended to call as witnesses at trial. This
order was made pursuant to 5 46-15-323 (4), MCA. Defendant
made no objection to this order at District Court. On appeal,
he claims he was prejudiced by this order.
Defendant's contention fails on two bases. Pursuant to
an order by the District Court in his own case, defendant was
required to produce the same information produced in Lester's
case. Defendant did not object to the order in his own case
and is therefore precluded from raising the issue on appeal.
section 46-20-104 (2), 5 46-20-701(2), MCA. Further, defendant
lacks standing to assert the privilege which was alleged by
his brother. 98 C.J.S. Witnesses 1 451 (1957); Cf. State v.
Gonzales (1988), 231 Mont. 242, 751 P.2d 1063, (defendant
lacked standing to object to use of evidence allegedly seized
unconstitutionally from his brother's car and residence).
Finally, defendant has failed to demonstrate any prejudice to
him as a result of the order in Lester's case. We conclude
there is no merit to defendant's contention regarding this
order.
VI
Did the District Court err in denying defendant's motion
to suppress?
Defendant moved to exclude from his trial all evidence
seized from defendant at the time of his arrest, alleging an
illegal arrest and an illegal search of his person. The
evidence he sought to suppress was the driver's license of
the victim found in defendant's pocket, the clothes he was
wearing at the time of his arrest, and a statement made to
special agents of the Federal Bureau of Investigation. The
District Court held a hearing on this motion on July 6, 1988,
and denied the motion on July 19, 1988.
The evidence at the hearing on the motion included
testimony by Yellowstone County law enforcement. In sub-
stance, this testimony revealed that at a briefing on the
afternoon of October 18, 1987, Yellowstone County law
enforcement officers were informed that a black Dodge
automobile with a certain Montana license plate number and
occupied by two male and two female Native Americans had
possibly been involved in an assault and kidnapping and that
the victim might still be in the vehicle. This information
was based upon bulletins from the Miles City Police
Department.
That same afternoon, one of the officers observed the
vehicle in Billings. He and two other officers stopped the
vehicle. At the hearing Officer Dostel testified that this
was considered a "felony stopw and the officers approached
the car with weapons drawn. (See 5 46-5-402, MCA) . The
vehicle's occupants were ordered out of the vehicle at gun-
point, one at a time. Each person was then frisked for
weapons. The individuals were told that they would be de-
tained no longer than thirty minutes and that they would
either be arrested or released. Officer Dostel also testi-
fied that he was attempting to identify the car's occupants.
As he was frisking the defendant he felt a small square hard
object in defendant s pocket, which he removed, hoping that
it would provide identification. The object was the victim's
driver's license.
The driver of the car, Mr. Lyn Ros Bixby, signed a
consent to search form and the automobile was then searched,
whereupon the officers discovered blood in the trunk of the
car. The officers testified that during this time they were
receiving additional messages from the dispatcher in regard
to the vehicle and its occupants. The occupants of the car
were arrested and were read their Miranda rights.
On appeal defendant contends the officers lacked proba-
ble cause to arrest him. He contends he was illegally
arrested and therefore the search of his person was also
illegal.
A law enforcement officer may make a vehicular stop if
the officer has a "reasonable suspicion, grounded in specific
and articulable facts, that a person they encounter was
involved in or is wanted in connection with a completed
felony[.]''. United States v. Hensley (1985), 469 U.S. 221,
229, 105 S.Ct. 675, 680, 83 L.Ed. 2d 604, 612; State v. Gopher
(Mont. 1981), 631 P.2d 293, 38 St.Rep. 1078; !
j 46-5-401, MCA.
Further, this suspicion may be based on information obtained
from a flyer or bulletin if the bulletin is issued on the
basis of articulable facts supporting a reasonable suspicion.
Henslev, 469 U.S. at 235. In the present case the bulletin
was issued based on an articulable and reasonable suspicion,
and provided a reasonable and articulable suspicion for the
Yellowstone County officers. The vehicular stop based upon
this information, and the procedures employed by the officers
were eminently reasonable under the circumstances.
A peace officer may frisk an individual for weapons
incident to making an investigatory stop. Terry v. Ohio
(1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889.
Additionally, pursuant to 5 46-5-402(1)(a), MCA, the officer
may "take other reasonably necessary steps for protection if
he has reasonable cause to suspect that the person is armed
and presently dangerous to him or another person present[.]''
A peace officer may arrest a person when he believes on
reasonable grounds that the person is committing an offense
or that the person has committed an offense and the existing
circumstances require his immediate arrest. Section 46-6-
401(d), MCA. See State v. Hammer (1988), 233 Mont. 101, 759
P.2d 979; State v. Lee (1988), 232 Mont. 105, 754 P.2d 512;
State v. Davis (1980), 190 Mont. 285, 620 P.2d 1209. In the
present case the vehicle search was being conducted at essen-
tially the same time as the frisking. The information from
the bulletin combined with the discovery of the blood in the
trunk constituted probable cause to arrest. A search of the
person may be conducted as incident to an arrest. Section 46-
5-101(1), MCA. Thus, there is no merit to defendant's con-
tention that he was illegally arrested or illegally searched.
At the hearing on the motion to suppress, Officer Best
testified that after defendant was arrested, he was advised
of his Miranda rights. Defendant signed a waiver of these
rights. After his arrest, defendant was taken to Yellowstone
County Detention Center where Mr. Traeger, a special agent of
the Federal Bureau of Investigation interviewed him. Another
special agent, Mr. Leavitt, took notes of the interview, which
were later transcribed. During this interview defendant
indicated that he remembered a fight in Miles City, Montana,
that he remembered being in Ashland, Montana and that the
group was also in Sheridan, Wyoming. The transcribed
statement indicates that at some point in the interview
defendant indicated that he did not want to give further
information since he did not want to involve his little
brother, Lester.
On appeal defendant urges that any statements made after
he expressed his unwillingness to divulge further information
were not voluntary. Defendant's statement was not introduced
into evidence during the State's case in chief. Defendant
contends, however, that any evidence obtained as a result of
his statements informing officials of the group's itinerary
must be suppressed. Alternatively, defendant contends that
the District Court should have held a hearing to determine
which evidence was obtained as a result of the confession, and
which evidence had an independent source.
 In our analysis we begin by recognizing that Miranda v.
Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694,
held that an individual subjected to custodial interrogation
must be notified of his right of silence. In interpreting
Miranda, the United States Supreme Court, in Michigan v.
Mosley (1975), 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313,
stated:

A reasonable and faithful interpretation of
the Miranda opinion must rest on the intention of
the Court in that case to adopt Itfully effective
means . . . to notify the person of his right of
silence and to assure that the exercise of the
right will be scrupulously honored . . . . I' 384
U.S. at 479. The critical safeguard identified in
the passage at issue is a person's "right to cut
off questioning.I1 Id., at 474. Through the exer-
cise of his option to terminate questioning he can
control the time at which questioning occurs, the
subjects discussed, and the duration of the inter-
rogation. The requirement that law enforcement
authorities must respect a person's exercise of
that option counteracts the coercive pressures of
the custodial setting. We therefore conclude that
the admissibility of statements obtained after the
person in custody has decided to remain silent
depends under Miranda on whether his "right to cut
off questioningl1 was wscrupulously honored.It
Mosley, 423 U.S. at 103-04, 96 S.Ct. at 326, 46 L.Ed.2d at

At the hearing on the motion to suppress, both of the
special agents who interviewed defendant testified that any
statements made by defendant after he expressed an unwill-
ingness to talk were voluntary. Each officer testified that
defendant continued to talk after questioning ceased and that
any questions by the officers were only for clarification.
 Moreover, evidence discovered by means independent of a
constitutional violation may be admissible. Nix v. Williams
(1984), 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377. This
is based on the rationale that the prosecution should not be
placed in a worse position than it would be in if no police
error or misconduct had occurred. (Emphasis in original.)
Nix, 467 U.S. at 443. In the present case, defendant points
to no evidence which did not have an independent source. The
statement given to the special agents provided a very skeletal
outline of the group's itinerary. The evidence obtained by
the State came from many other sources, including searches by
search and rescue units, and statements of the accomplices.
We conclude the District Court did not err in failing to
conduct a hearing on the issue, or in refusing to suppress
evidence based on this alleged constitutional violation. We
affirm the denial of the motion to suppress.
VII
Whether the District Court erred in admitting certain
evidence at trial.
Defendant contends that certain trial evidence was
improperly admitted. Defendant challenges the admission of
various exhibits including the tool box; the pipe; photographs
of the pipe, and an associated residue swab; the vice-grip;
photographs of the victim's body; items of defendant's
clothing; beer cans; .22 shells; and several purchase receipts
for food and clothing. Defendant bases these alleged errors
on arguments of relevance and prejudice.
Evidence must be relevant to be entered at trial, and a
district court has broad discretion in determining relevance.
State v. Oman (1985), 218 Mont. 260, 264, 707 P.2d 1117, 1119.
Relevance is defined in Rule 401, M.R.Evid., as follows:

Relevant evidence means evidence having any
tendency to make the existence of any fact that is
of consequence to the determination of the action
more probable or less probable than it would be
without the evidence. Relevant evidence may in-
clude evidence bearing upon the credibility of a
witness or hearsay declarant.
In Oman, we discussed relevance as follows:

The test of relevance is whether an item of evi-
dence will have any value, as determined by logic
and experience, in proving the proposition for
which it is offered. Generally, whatever naturally
and logically tends to establish a fact in issue is
relevant, and that which fails to qualify in this
respect is not relevant. (Citation omitted.)
Oman, 707 P.2d at 1119.
In the present case the State relied on accomplice
testimony, which must be corroborated pursuant to 5 46-16-
213, MCA. In substance, this statute provides that accomplice
testimony cannot sustain a conviction unless it is
independently corroborated by other evidence which tends to
connect the defendant to the crime. Having reviewed the
evidence presented at trial, we conclude that the items of
evidence to which defendant now objects were relevant in that
each item independently corroborated the testimony of one of
the accomplices.
 Defendant contends that the admission of the tool box
was irrelevant and was prejudicial as evidence of another
crime. The tool box was relevant however, as corroborating
the testimony of Doretta Four Bear regarding the sequence of
events in Ashland and Rabbit Town. ~dditionally,the State
was entitled to introduce the tool box even though it dis-
closed a crime other than the crimes charged, since it was a
part of the corpus delicti and was inextricably related to
the entire transaction. State v. Riley (1982), 199 Mont. 413,
425-26, 649 P.2d 1273, 1279.
Defendant objects to two photographs introduced by the
State. One photograph, taken on October 19, 1987 at the
abandoned community hall, shows the right side of the victim's
head and his right shoulder. This photograph corroborated
testimony about where the body was left, and was also
corroborative of testimony that the victim had been beaten
severely prior to receiving the final blows to the head. The
second photograph was taken at the autopsy and shows the left
side of the victim's head, the side sustaining the fatal blows
in Wyoming. The photograph also showed the cut inflicted upon
the victim's neck. This photograph was relevant to
corroborate testimony about the type and extent of the
victim's injuries. The pathologist who performed the autopsy
testified at trial. He stated that the autopsy photograph was
necessary to depict the severity and location of certain
injuries.
 We have previously held that if relevant, the inflamma-
tory nature of a photograph of the victim does not necessar-
ily outweigh the probative value. State v. Siglar (1984),
210 Mont. 248, 256, 688 P.2d 749, 753 (holding that the jury
was entitled to know the nature and extent of the injuries
and no method other than the photographs would demonstrate
this as graphically or as well) ; Rilev, 649 P.2d at 1280-81
(holding that photos of victim's appearance at autopsy were
reasonably necessary to depict the multiplicity and extent of
injuries). We conclude the photographs were relevant and not
unduly inflammatory.
VIII
Whether accomplice testimony was sufficiently
corroborated.
Accomplices Lester Kills on Top, Diane Bull Coming,
Lavonne Quiroz and Doretta Four Bear testified at defendant's
trial. Defendant claims their testimony was not sufficiently
corroborated.
Section 46-16-213, MCA, provides that accomplice testi-
mony must be corroborated:

Testimony of person legally accountable. A convic-
tion cannot be had on the testimony of one respon-
sible or legally accountable for the same offense,
as defined in 45-2-301, unless the testimony is
corroborated by other evidence which in itself and
without the aid of the testimony of the one respon-
sible or legally accountable for the same offense
tends to connect the defendant with the commission
of the offense. The corroboration is not suffi-
cient if it merely shows the commission of the
offense or the circumstances thereof.
In State v. Kemp (1979), 182 Mont. 383, 597 P.2d 96, we stated
some general rules about the "quantum and character of proof
required to corroborate accomplice testimony":

To be sufficient, corroborating evidence must
show more than that a crime was in fact committed
or the circumstances of its commission. State v.
Keckonen (1938), 107 Mont. 253, 263, 84 P.2d 341,
345. It must raise more than a suspicion of the
defendant's involvement in, or opportunity to
commit, the crime charged. State v. Gangner
(1957), 130 Mont. 533, 535, 305 P.2d 338, 339. But
corroborative evidence need not be sufficient, by
itself, to support a defendant's conviction or even
to make out a prima facie case against him. State
v. Ritz (1922), 65 Mont. 180, 186, 211 P.2d 298,
300; State v. Stevenson (1902), 16 Mont. 332, 334,
67 P. 1001, 1002. Corroborating evidence may be
circumstantial (State v. Harmon (1959), 135 Mont.
227, 233, 340 P.2d 128, 131) and can come from the
defendant or his witnesses. State v. Phillips
(1953), 127 Mont. 381, 387, 264 P.2d 1009, 1012.

One accomplice cannot supply the independent
evidence necessary to corroborate another
accomplice.
Kemp, 597 P.2d at 99.
In the present case a wealth of evidence was presented
at trial in corroboration of accomplice testimony, including
testimony by nonaccomplice witnesses, and physical and docu-
mentary evidence. In fact, in this case there existed an
exceptional amount of corroborating evidence, which we will
set out in detail.
Testimony received at trial included: 1) the testimony
by the victim's friend, Steven Hathaway, establishing that
they arrived at the Golden West Lounge near midnight and that
Hathaway left without the victim when the bar closed; 2) the
testimony of Janelle Eads, a waitress at the lounge, estab-
lishing that Diane Bull Coming and the others were there until
closing; 3) the testimony of Georgia Graham, an Ashland
resident, establishing that a red tool box, which she identi-
fied at trial, was discovered missing from her home on Octo-
ber 17; 4) the testimony of a liquor store clerk and a
bartender from Broadus establishingthatthe defendant's group
was in that town on the morning of October 17; 5) the
testimony of a convenience store clerk in Biddle establishing
that the defendant and his group were in that town on the
morning of October 17; 6) the testimony of a service station
attendant in Weston establishing that the defendant and his
group were in that town on the morning of October 17; 7) the
testimony of bartenders and clothing store employees estab-
lishing that the defendant and his group were in Gillette from
early to late afternoon on October 17 and closely corre-
sponding to Diane Bull Coming's and LaVonne Quirozts
descriptions of what occurred in the Lobby Bar, Lipman's
Clothing, Corral West Ranch Wear, and the Rustic Inn Lounge;
8) the testimony of the woman who pulled over to allow Lester

Kills on Top and Diane Bull Coming to pass on Pickerel Ranch
Road; 9) the testimony of a Gillette taxi company
representative concerning the defendant and LaVonne Quiroz's
ride from the Lobby Bar to the Rustic Inn Lounge; 10) the
testimony of the rancher residing near the abandoned community
hall concerning the defendant's presence there, the failure
to close the fence gate, the ensuing pursuit and stop, and the
defendant's return to the hall where Lester Kills on Top and
LaVonne Quiroz shut the gate; 11) the testimony of the
Sheridan Super 8 Motel clerk, the Woolworth employee and the
Corral West Ranch Wear employee concerning Lester and Diane
Bull Coming's activities in that town on October 17 and
October 18; and 12) the testimony of Sylvia Barrigan
concerning the activities of the defendant and LaVonne Quiroz
at her home in Busby on the morning of October 18.
Additionally, Dr. Deters, the pathologist who performed
the autopsy, testified at trial. He testified that the victim
had a subdural hematoma, which is a collection of blood
between the surface and the fibrous tissue of the brain. He
said that the victim had a collection of twenty milliliters
of blood, which is potentially fatal. The subdural hematoma
was located on the right side of the head. The injuries
causing the hematoma occurred within the State of Montana and
were corroborated by the photograph described in the previous
part, which showed the severe beating which had occurred to
the right side of the victim's head. Dr. Deters testified
that this hematoma resulted from beatings at least forty-five
minutes and up to twelve hours prior to death.
Dr. Deters testified that there was a cluster of five
injuries to the left side of the victim's head, which crushed
the skull and caused injury incompatible with life. He
testified that these were delivered at the same time and with
the same instrument. He testified that these injuries were
consistent with a weapon such as a rock. Dr. Deters testified
that the victim had other injuries to the head, caused by a
round instrument such as a pipe. This testimony by Dr. Deters
corroborates accomplice testimony about the first beatings,
and also corroborates testimony by Diane Bull Coming about the
final beating.
Aside from these witnesses' testimony, there were numer-
ous physical or documentary exhibits which corroborated
various aspects of the accomplice testimony: 1) the blood-

stained Milwaukee's Best carton with the M & H gas station
price listing discovered near Highway 332; 2) the victim's
blood-stained shorts discovered near Highway 332; 3) the
defendant's and his brother's shirts discovered near the water
trough on Highway 332 and bearing traces of blood consistent
with the victim's; 4) the Colstrip Garbage Disposal checks,
one of which bore Quiroz's fingerprint, negotiated on October
17 in Broadus and Biddle; 5) the receipts for transactions

involving use of the victim's credit card in Weston, Gillette
and Sheridan; 6) the Rustic Inn Lounge receipts discovered at
Four Colors' residence in Billings and bearing a telephone
number supplied by the bartender to Bull Coming; 7) the pipe
discovered at the location on Pickerel Ranch Road identified
by Diane Bull Coming; 8) the rock discovered at the Barrigan
residence containing blood and hair residue consistent with
the victim's and the shirt left behind there by the defendant
and Quiroz containing blood residue consistent with the
victim's; 9) the extensive array of evidence in the form of
blood stains and hair linking the victim to the trunk of the
vehicle; and 10) the vise-grip found in the front seat area
of the vehicle and the spent .22 caliber shell discovered in
the trunk which had been fired in a llnonconventional*l
method.
Such testimony and physical or documentary evidence were
clearly sufficient, as a matter of law, to satisfy the State's
obligation under 5 46-16-213, MCA. That statute neither
requires corroboration to "extend to every fact to which the
accomplice testifies1' nor demands that it be sufficient Itto
support a prima facie case against the defendant." State v.
Ungaretti, (Mont. 1989), 779 P.2d 923, 925, 46 St.Rep. 1710,
1713. Taken as a whole, nonaccomplice testimony and the
various exhibits provided powerful support for the testimony
of Diane Bull Coming, Doretta Four Bear and LaVonne Quiroz and
permitted a properly-instructed jury to consider their
testimony in its deliberations. We hold the accomplice
testimony was sufficiently corroborated.

Whether the District Court erred in instructing the jury.
Defendant contends the District Court erred in giving
certain instructions and in failing to give certain instruc-
tions offered by defendant. We will address each contention
separately.
 The jury was instructed on the offenses of robbery,
aggravated kidnapping, and deliberate homicide pursuant to
the felony murder rule. Defendant contends the jury should
have been instructed on the lesser included offenses of
unlawful restraint and kidnapping. He contends the jury must
be instructed on lesser included offenses if there is ffsome
evidence" to support the lesser offense, citing State v.
Hamilton (1980), 185 Mont. 522, 605 P.2d 1121, cert denied,
447 U.S. 924 (1980). We have previously stated the test
regarding the court's duty to instuct the jury on lesser
included offenses, as follows:
It is a fundamental rule that the defendant is
entitled to an instruction on a lesser included
offense if the evidence would enable the jury
rationally to find him guilty of a lesser offense
and to acquit him of the greater. Keeble v. United
States (1973), 412 U.S. 205, 208, 93 S.Ct. 1993,
1995, 36 L.Ed.2d 844, 847. Butthis Court has held
that the District Court will not be put in error
for refusing to instruct as to the lesser included
offense, if the evidence is such to show that the
defendant is either guilty of the offense charged
or entitled to an acquittal. (Citations omitted.)
State v. Kyle (Mont. 1980), 628 P.2d 260, 263, 37 St.Rep. 1447,

Unlawful restraint is committed when a person Ifknowingly
or purposely and without lawful authority restrains another so as
to interfere substantially with his liberty.l1 Section 45-5-
301(1), MCA. Kidnapping is committed when unlawful restraint is
effected "by either secreting or holding [the victim] in a place
of isolation or by using or threatening to use physical force."
Section 45-5-302(1), MCA. Defendant was charged with aggravated
44
kidnapping, committed with a purpose to inflict bodily injury or
terrorize the victim, or in the alternative, aggravated kidnapping
with the purpose to facilitate commission of any felony or flight
thereafter. In the present case, defendant was not entitled to an
instruction on unlawful restraint unless there was evidence that
the victim was not restrained by secreting him or by using force.
He would have been entitled to an instruction on kidnapping only
if there was evidence that no purpose to inflict bodily injury or
terrorize the victim existed. There is no evidence in the record
that the restraint of the victim was not accompanied by the use of
force. Neither is there evidence of a kidnapping without a purpose
of inflicting bodily injury or terrorizing the victim. The
evidence would not reasonably support the lesser included offenses.
See also State v. Ballenger (1987), 227 Mont. 308, 312, 738 P.2d
1291, 1294 (court properly refused instructions on aggravated
assault and felony assault where evidence demonstrated calculated,
relentless beatings of child, resulting in child's death); State
v. Farrell (1984), 207 Mont. 483, 491, 676 P.2d 168, 172-73 (court
properly refused instruction on misdemeanor theft where evidence
showed that amounts received by defendant were over $150, and no
rational trier of fact could have found defendant guilty of misde-
meanor theft); State v. Radi (1978), 176 Mont. 451, 464, 578 P.2d
1169, 1177 (court properly refused instruction on lesser included
offense of criminal trespass where no evidence could lead a jury
to believe defendant was in building for an innocent purpose). We
conclude that defendant was not entitled to an instruction on these
lesser included offenses.
Defendant also contends the jury should have been in-
structed on theft and assault, urging that these are lesser
included offenses of robbery and deliberate homicide. Defen-
dant's contention fails since these are not lesser included
offenses of the crimes charged.
The analysis that this Court has consistently
applied in determining whether one offense is
included within another offense is the test set
forth in Blockburser v. United States (1932), 284
U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306,
309. In Blockburqer, the Court ruled:
"The applicable rule is that where the same act or
transaction constitutes a violation of two distinct
statutory provisions, the test to be applied to
determine whether there are two offenses or only
one, is whether each provision requires proof of a
fact which the other does not." 284 U.S. at 304,
52 S.Ct. at 182, 76 L.Ed at 309.
The Blockburqer test is codified in section 46-11-
502, MCA.
This Court has adopted the approach whereby
the analysis is applied to the statutes in question
rather than to the facts of the individual case.
State v. Ritchson (1981), Mont., [sic] 630 P.2d
234, 237, 38 St.Rep. 1015, 1018.
State v. Wells (1983), 202 Mont. 337, 351, 658 P.2d 381, 388.
The offense of robbery, pursuant to 5 45-5-401 (1)(a),
MCA, does not require the completed act of theft as an ele-
ment of robbery. The offense of theft requires proof of an
additional fact--that the offense was completed. Theft is
thus not a lesser included offense of robbery. See State v.
Albrecht (Mont. 1990), - P . 2 d , 47 St.Rep. 800.
Defendant also contends that the jury should have been
instructed on assault as a lesser included offense of
deliberate homicide. This Court has concluded that the
underlying felony in a deliberate homicide pursuant to 5 45-
5-102(l)(b), MCA, is not a lesser included offense of felony
murder. State v. Close (1981), 191 Mont. 229, 245-49, 623
P.2d 940, 949-51. The offense of aggravated assault may
constitute the underlying felony in a felony murder charge.
Since aggravated assault cannot be a lesser included offense
under 5 45-5-102 (1)(b), MCA, neither can assault. We conclude
that the District Court did not err in denying defendant's
instructions on these offenses.
Defendant contends the jury instruction on accomplice
testimony was inadequate in that it did not identify by name
the parties who were accomplices and whose testimony should
be viewed with distrust. During settlement of instructions,
defendant objected to this instruction but did not state the
basis of his objection. Further, since the defendant withdrew
his own instruction on accomplice testimony, which listed the
names of three accomplices, he cannot now complain on appeal.
State v. Bretz (1979), 185 Mont. 253, 296, 605 P.2d 974, 998,
cert. denied, 444 U.S. 994, 100 S.Ct. 529, 62 L.Ed.2d 425
(1979).
However, we have found no requirement that an instruction
on accomplice testimony refer by name to the accomplice
witnesses. Further, as the given instruction stated, whether
a witness is an accomplice within the meaning of the law may
 be a factual question for the jury. We conclude the District
Court did not err in instructing the jury on accomplice
testimony.
The court gave four instructions on accountability to
the jury.' Defendant concedes these are correct statements of
the law, but contends these instructions did not adequately
cover accountability. He contends his refused instructions
should have been given. The given instructions correctly and
adequately informed the jury of accountability principles.
See § 45-2-301, MCA; 5 45-2-302, MCA; State v. Miller (Mont.

Court's Instruction No. 19:
Mere presence at the scene of the crime and knowledge that a
crime is being committed are not sufficient to establish that the
defendant was involved in the crime. To be responsible, you must
find beyond reasonable doubt that the defendant was a participant
and not merely a knowing spectator.
Court's Instruction No. 20:
A person is responsible for conduct which is an element of an
offense if the conduct is either that of the person himself or that
of another and he is legally accountable for such conduct.
Court's Instruction No. 21:
A person is legally accountable for the conduct of another when
either before or during the commission of an offense, and with the
purpose to promote or facilitate such commission, he solicits,
aids, abets, agrees, or attempts to aid, such other person in the
planning or commission of the offense.
Court's Instruction No. 22:
A person is not legally accountable for the conduct of another
if:
(1) before the commission of the offense, he terminates his
effort to promote or facilitate such commission and does one of
the following:
(a) wholly deprives his prior efforts of effectiveness
in such commission:
(b) otherwise makes proper effort to prevent the
commission of the offense.
1988), 757 P.2d 1275, 1283-84, 45 St.Rep. 790, 798-800. We
conclude the jury was properly informed on accountability.
The court gave four instructions on flight. On appeal
defendant objects to two of these instructions. He objects
to Instruction No. 26 which informed the jury that it might
consider any testimony tending to show flight by the defendant
as tending to prove consciousness of guilt. Defendant
contends there was no evidence that defendant attempted to
flee. Defendant did not object to this instruction at trial
and cannot now claim error. State v. Smith (1986), 220 Mont.
364, 381-82, 715 P.2d 1301, 1311. We conclude, however, that
trial evidence provided an adequate factual basis for the
giving of a flight instruction. Defendant immediately left
the community hall after helping to dispose of the body, he
left Lester and Diane Bull Coming in Sheridan without
informing them he was leaving, and he attempted to destroy
evidence by washing the trunk of the car and throwing away the
rock at the Barrigan residence.
Defendant objected to court's Instruction No. 29 which
stated:
The ensuing flight is considered part and
parcel of a Robbery until such time as the criminal
purpose, including carrying away of the spoils of
the crime, is completed.
Although defendant s objection to this instruction at
trial was nonspecific, on appeal he urges that the instruc-
tion is incorrect in that flight would be deemed to continue
indefinitely under this instruction. We first note that this
49
instruction correctly states the law. State v. Case (1980),
190 Mont. 450, 454-55, 621 P.2d 1066, 1069. In the present
case, the trial evidence provided a factual basis to conclude
that the criminal purpose of the robbery continued at least
through the events in Gillette, Wyoming. Additionally, since
defendant was not convicted of felony murder premised on
robbery, any error in the giving of this instruction would be
harmless.
Finally, defendant contends the court improperly refused
his offered instructions on alibi and justifiable use of
force. He contends he was entitled to an alibi instruction
since he was in a Gillette bar when the homicide occurred.
Defendant also claims there was evidence presented indicating
his actions against the victim were in self defense.

The district court has a duty to instruct the
jury on every issue or theory having support in the
evidence. In determining whether to give an
instruction, the inquiry of the court must only be
whether any evidence exists in the record to warrant
an instruction. State v. Sotelo (1984), 209 Mont.
86, 89, 679 P.2d 779, 781.

State v. DeMers (1988), 234 Mont. 273, 280, 762 P.2d 860, 864.
However, defendant misapplies the availability of an
alibi defense. Defendant was convicted of deliberate homicide
under the felony murder rule. Defendant was charged as a
principal and by accountability. Although defendant was not
present at the scene of the homicide, evidence existed to
50
connect him to the offense under the felony murder rule and
through accountability principles. His presence at the
Gillette bar therefore does not provide a basis for an alibi
defense.
As to the justifiable use of force instruction, the State
contends there is no factual or rational basis for submitting
this issue to the jury, and we agree. In DeMers we listed the
necessary findings in regard to a justifiable use of force
defense as follows:
In order to find justifiable use of force the
jury must find that the defendant (1) was not the
aggressor, (2) reasonably believed that he was in
imminent danger of unlawful harm, and (3) that he
used reasonable force necessary to defend himself.

DeMers, 762 P.2d at 865. The trial evidence would not support
this defense. We conclude the District Court did not err in
refusing to give instructions on alibi and justifiable use of
force.
We conclude the District Court did not err in instruct-
ing the jury.
X
Whether there was prosecutorial misconduct at trial, and
if so, whether defendant was thereby prejudiced.
Defendant contends "prosecutorial misconductt1occurred
during his trial. He bases this assertion on certain ques-
tions asked of Lester by the county attorney on cross-
examination.
On cross-examination the county attorney asked Lester if
51
it was true that he and defendant ran after the victim and
brought him back to the car at one of the stops. Later in the
cross examination the county attorney asked Lester if it was
defendant who wanted to go to Ashland, and he also asked
Lester if it was defendant who practiced endorsing the checks
taken from the victim. At trial defendant objected to each
of these questions as having no factual basis in the record.
His objections were overruled.
On appeal, defendant characterizes these questions as
prosecutorial misconduct. "It is clear that misconduct by a
prosecutor may form the basis for granting a new trial where
the prosecutorls actions have deprived defendant of a fair
and impartial trial." State v. Gray (1983), 207 Mont. 261,
266-67, 673 P.2d 1262, 1265-66. We conclude however, that in
the present case the questions by the county attorney did not
amount to misconduct, and did not deny defendant a fair and
impartial trial.
"It is unprofessional conduct for a prosecutor to ask a
question which implies the existence of a factual predicate
for which a good faith belief is lacking." ABA
Standards for Criminal Justice 5 3-5.7(d) (1986). The
questions asked by the county attorney were not without a good
faith belief that a factual basis existed for these questions.
Moreover, these questions were insignificant in view of the
total evidence produced at trial. We conclude the court did
not err in overruling defendant's objections, and that no
prosecutorial misconduct has been shown.
Defendant also objects on appeal to seven statements made
by the prosecution in closing argument. However, no objection
was made to these statements at trial. Any claim of
prejudicial error has therefore been waived. See 8 8 46-20-
104 (2), 46-20-701(2), MCA; State v. Smith , 232 Mont. 156,

160, 755 P.2d 569, 571. In any event the statements are not
significant, especially in view of the total evidence produced
at trial. We conclude defendant has shown no prosecutorial
misconduct and was not denied a fair and impartial trial.
XI
Whether the District Court erred in denying defendant's
motion for a mistrial.
On the ninth day of trial, defense counsel made a motion
for a mistrial because the bailiff and a deputy clerk were
wearing badges which stated, ''Take a Bite out of Crime." The
District Court denied this motion but asked the court person-
nel to remove the badges. On appeal defendant contends the
court should have granted a mistrial.
A mistrial is an extreme remedy only to be granted for
"manifest necessityw and as required by the 'lends of public
justice.Ir State v. Brush (1987), 228 Mont. 247, 252-53, 741
P.2d 1333, 1336. A motion for a mistrial is directed to the
sound discretion of the trial court. The appellate court
determines if the trial court abused its discretion in denying
a mistrial. Brush, 741 P.2d at 1336.
 In the present case defendant has made no showing of
prejudice and has demonstrated no basis for a mistrial.
Although this Court expressly disapproves of such conduct,
from the transcript it is apparent that the district court
did not consider the situation serious. The jury was
instructed to decide the case based on the evidence presented
at trial. In view of the overwhelming evidence pointing to
defendant's guilt, we conclude that beyond a reasonable doubt
these badges were not significant and did not contribute to
the verdict. Brush, 7 4 1 P.2d at 1336. We conclude the
District Court properly denied defendant's motion. We affirm
the District Court's denial of the motion for a mistrial.

Whether the District Court abused its discretion by
utilizing the verdict form offered by the State.
The court utilized the verdict form offered by the State.
This verdict form listed the five counts as charged in the
amended information. The form indicated that Counts I1 and
111, both dealing with aggravated kidnapping, were alterna-
tive findings. Similarly Counts IV and V, dealing with
deliberate homicide, were listed alternatively. Defendant
contends this form was confusing to the jury.
The county attorney carefully explained the verdict form
to the jury during closing argument, and Instruction No. 38
also explained the form. The form was consistent with the
amended information and clearly framed. We see no merit to
defendant's contention. We conclude the District Court did
not err in submitting the State's verdict form to the jury.
XI11

Whether certain factual findings in the District Court's
sentencing order were supported by substantial evidence.
Defendant challenges ten of the findings of fact in the
sentencing order as not supported by the evidence. The
challenged findings are:

11. That the victim suffered a subdural
hematoma, as a result of the beatings in Custer
County, Montana prior to the final beatings which
led to his death in Campbell County, Wyoming.

14. That the Defendant knew that the victim
was married and had a family.
15. That the victim pleaded with this Defen-
dant and his accomplices, for his life, to no
avail. The victim was killed by Lester Kills On
Top who beat the victim on the head with a tire
iron, pipe and rock, cut the victim's throat with
a small knife and shot at him with a .22 shell held
in a vice grip.

17. That since the Defendant did not testify
at the trial or at the sentencing hearing, the
Court has not heard anything from the Defendant.
By his demeanor in Court at the trial and sentenc-
ing hearing, he has exhibited no remorse.

20. That the Defendant could have removed
himself from the entire episode and could have
saved the life of the victim on more than one
occasion, when he was left alone with the victim,
but failed to do so. That the actions of this
Defendant were so depraved as to reach a conclusion
that any leniency would be an injustice.
21. That two of the aggravating circumstances
set forth in 846-18-303 of the Montana Code Anno-
tated apply in this case:
A. The offense was Deliberate Homicide
and was committed by means of torture.
B. The offense was Aggravated Kidnapping
which resulted in the death of the victim.
22. The only possible mitigating circumstance
that appears pursuant to 846-18-304 of the Montana
Code Annotated is that the Defendant has no signif-
icant history of prior criminal activity. In that
regard, the Defendant, although he has no prior
felony record, does have a substantial record of
violent offenses on the Northern Cheyenne Indian
Reservation including Assault and Assault and
Battery, occurring over a period of several years.
23. The mitigating circumstances that the
Defendant acted under the substantial domination of
another person does not apply in that it appears
that this Defendant assisted in the decision to
"rollI1 the victim initially and was driving the car
which he turned around and away from Miles City.
Further, on several occasions, the Defendant did
have the opportunity to remove himself from the
entire depraved scheme and to save the life of the
victim. There is no evidence that the Defendant
was dominated by anyone.
24. The Defendant had been drinking, but
there is no evidence to support quantitatively how
much the Defendant had consumed or his condition.
Furthermore, it appears that the Defendant acted
rationally although in a depraved manner, by driv-
ing the car, washing the blood off his hands,
disposing of his bloody shirt, using the gas credit
card of the victim in Ashland and in advising
Lavonne Quiroz to move the car from the street in
Gillette to an alley location where the victim
could not be heard calling for help. Clearly, he
had the ability to make decisions and the fact that
he was drinking is no defense to the crimes cornmit-
ted as the intoxicants were voluntarily taken by
the Defendant. Nor is there any evidence before
the Court to show that the Defendant was substan-
tially impaired by the drinking.
25. That the Defendant was an accomplice in
the Deliberate Homicide committed by another per-
son. He was a direct participant in the Aggravated
Kidnapping and Robbery and, further, his partici-
pation was not minor, but was substantial, in that
he assisted in the planning of the abduction and
robbery, assisted in the beatings and choking of
the victim, helped strip and place the victim in
the trunk, and used the proceeds of the robbery.
 He agreed that the victim had to die; and when he
could have assisted the victim, told Lavonne Quiroz
to move the car to the alley when the victim began
making noise and pleading for help. He also as-
sisted at the time the body was concealed. The
only portion of the crime for which the Defendant
had no involvement was the period of time when the
victim was finally beaten and killed by Lester
Kills On Top.
In regard to finding number 11, Dr. Robert Deters, who
conducted the victim's autopsy, testified at trial. He stated
there was a subdural hematoma on the right side of the head
caused by a series of insults to the head. He testified that
the hematoma must have occurred at least 45 minutes and up to
twelve hours prior to the injuries to the left side of the
head. The only beatings Mr. Etchemendy received prior to
being placed in the trunk occurred in Custer County.
testimony indicates that he was beaten again prior to the
fatal blows. We conclude that finding number 11 is supported
by substantial evidence.
As to findings number 14 and 15, Diane Bull Coming
testified that while the victim was in the trunk he stated
that he was married and had two children. Defendant was in
the car at that time. She also testified that Lester beat
the victim with a tire iron, pipe, and rock, attempted to
shoot the victim by use of a vice grip, and that Lester
attempted to cut the victim's throat with a knife.
Photographs and physical evidence corroboratedthis testimony.
There was testimony trial that the victim pleaded with
defendant and Lester to stop beating him while outside the car
in Custer County, that defendant pleaded through the back seat
of the car while he was in the trunk as the group was
traveling to ~illette,and that the victim pleaded for help
and pounded on the trunk while the car was stopped in
Gillette. The finding by the sentencing court that the victim
pleaded with defendant for his life is supported by the
evidence. We conclude that findings of fact numbers 14 and
15 are supported by substantial evidence.

In finding number 17 the court noted that defendant
exhibited no remorse at trial. At the sentencing hearing two
ministers testified that defendant was remorseful. The
finding by the District Court is a proper response to this
testimony.
The court's finding of fact number 20, that defendant
could have removed himself from the entire episode and could
have saved the life of the victim on more than one occasion
when he was left alone with him but failed to do so, and also
that the actions were so depraved that leniency would be an
injustice, are supported by substantial evidence. The
testimony demonstrated that defendant was left alone with the
keys to the car on more than one occasion, and that there were
a number of opportunities where he could have saved the life
of the victim had he chosen to do so. Our careful review of
the extensive evidence demonstrates that the conclusion that
the defendant was so depraved that leniency would be an
injustice is an appropriate conclusion. We conclude finding
number 20 is supported by substantial evidence.
With regard to finding number 21, the defendant contends
that the court's finding that the offense of deliberate
homicide was committed by means of torture is not supported
by the evidence. The fatal blows in Wyoming were brutally
accomplished by use of a pipe, a tire iron and a rock. Diane
Bull Coming testified that during this beating the victim
cried out, "Oh God, no, God, no, while blood spurted from his
head. Additionally, we cannot rationally separate the final
beating from the entire criminal transaction which
demonstrated a course of conduct involving brutality and
extending over a number of hours. Prior to delivery of the
fatal blows in Wyoming the victim was brutally assaulted
several times and confined nude in the small trunk of a car
on a cool morning for a number of hours. The evidence estab-
lished that these prior beatings in Montana were severe enough
to be potentially fatal. Dr. Deters testified that the
subdural hematoma was potentially fatal. It is not possible
to determine from the medical evidence the extent to which the
prior beatings contributed to the victim's death. The
beatings and restraint, culminating in the bludgeoning to
death of the victim, constitute substantial evidence that the
homicide was committed by means of torture.
The determination that these acts were torturous is
consistent with this Court's previous holdings regarding
torture in death penalty cases. See, e.q., State v. Dawson,
233 Mont. 345, 358, 761 P.2d 352, 360, cert. denied, - U. S.
, 109 S.Ct. 3200, 105 L.Ed.2d 708, (1989); (evidence
supported finding that deliberate homicide was committed by
means of torture where victims were bound and gagged in each
others presence, injected with unknown drugs, and strangled);
State v. McKenzie (1976), 171 Mont. 278, 296, 557 P.2d 1023,
1034, vacated, 433 U.S. 905, 97 S.Ct. 2968, 53 L.Ed.2d 1089
(1977), on remand, 177 Mont. 280, 316, 581 P.2d 1205, 1226
(1978), cert. denied, 443 U.S. 912, 99 S.Ct. 3103, 61 L.Ed.2d
877 (1979), on remand, 186 Mont. 481, 513, 608 P.2d 428, 447-
48 (1980), cert. denied, 449 U.S. 1050, 101 S.Ct. 626, 66
L.Ed.2d 507, (1980) (evidence supported finding that
deliberate homicide was committed by means of torture where
victim was killed by a blow which laid open her head, prior
to which she was nonfatally strangled); State v. Lester Kills
on Top (Mont. 1990), 787 P.2d 336, 348-49, 47 St.Rep. 366, 382
(evidence supported finding that deliberate homicide was
committed by means of torture where severely beaten victim was
placed nude in trunk of car, restrained there for twelve
hours, then bludgeoned to death with a pipe, tire iron, and
rock). We conclude that there exists substantial evidence to
support a finding that defendant caused the victim's death by
torture. The sentencing court also found as an aggravating
circumstance, that the offense was aggravated kidnapping which
resulted in the death of the victim. Defendant was convicted
by jury of aggravated kidnapping with the purpose to
facilitate commission of any felony or flight thereafter,
pursuant to 45-5-303 (1)(b), MCA. Substantial trial evidence
supports this conviction. The testimony established that
defendant restrained the victim with physical force, and by
helping to place him in the trunk. At the same time defendant
participated in the robbery of the victim. The aggravated
kidnapping resulted in the death of the victim. We do note
here although defendant contends that there was no causal
connection between the aggravated kidnapping and the death,
there is no merit to this contention. The kidnapping
continued up to the point of death, and defendant did nothing
to terminate it. We conclude that finding number 21 is
supported by substantial evidence. We affirm the sentencing
court's findings on this issue.
As to finding number 22, at the presentence hearing
evidence was presented that defendant had a record of assault-
related and alcohol-related offenses on the reservation.
Defendant contends the finding by the sentencing court that
he had a substantial record of violent offenses is incorrect
since some of these offenses may have been committed by his
father but mistakenly attributed to defendant. Testimony at
the hearing clarified which charges were attributed to
defendant, and which charges had been dismissed. The
presentence report and hearing testimony support the finding
by the sentencing court as to defendant's prior offenses as
contained in finding number 22.
 The courtls finding in No. 23, that defendant was not
dominated by anyone, is supported by much evidence
demonstrating his personal involvement in the offenses.
Additionally, the court's finding No. 24, that defendant's
consumption of alcohol did not impair his ability to act
rationally, is supported by substantial evidence. The
instances of defendant's rational behavior, enumerated by the
court, are supported by the evidence.
Finding of Fact No. 25 states that defendant was an
accomplice to the homicide and that his participation in the
aggravated kidnapping and robbery was substantial. The
court's listing of defendantls specific involvements is
supported by testimony from Doretta, Diane, and LaVonne.
Further, many exhibits corroborated defendant's involvement,
including his shirt with blood on it, found near the water
trough; receipts for clothes and gas, signed by defendant;
and the clothes he left at the Barrigan1s, which contained
blood. At trial Diane Bull Coming testified that on two
separate occasions defendant agreed with Lester that the
victim had to die. Although defendant complains that this
particular testimony, made by an accomplice, was not
corroborated, corroboration of every fact is not necessary.
''Where an accomplice has been corroborated as to part of his
testimony and that testimony has been accepted as truthful,
it is proper for the court to infer the accomplice spoke the
truth as to all his testimony.I1 State v. Coleman (1979), 185
Mont. 199, 332, 605 P.2d 1000, 1020, cert. denied, 446 U.S.
970, 100 S.Ct. 2952, 64 L.Ed.2d 831 (1980), revfd on other
srounds, 874 F.2d 1280 (9th Cir. 1989). See also, 23 C.J.S.
Criminal Law 1 1015 (1989). We conclude that the above
findings are supported by substantial evidence.
XIV
Whether imposition of the death penalty is constitution-
al under the mandatory review criteria of § 46-18-310, MCA.
On appeal, defendant also challenges the constitutional-
ity of Montana's sentencing statutes which govern imposition
of the death penalty. Defendant relies on a recent Ninth
Circuit case, Adamson v. Ricketts (9th Cir. 1988), 865 F.2d
1011, petition for cert. filed, 57 U.S.L.W. 3739 (U.S. March
20, 1989) (No. 88-1553). In Adamson, the Ninth Circuit
declared unconstitutional Arizona's sentencing statutes which
govern imposition of the death penalty. In comparing Arizo-
na's statutes with those of Montana, we note that they are
similar.
Defendant did not raise this specific objection to
Montana's sentencing statutes at District Court, and we
decline to address this issue on appeal. First, the Adamson
decision is not binding on Montana, and we note that the
decision has been appealed to the United States Supreme Court.
Second, this issue was not raised at District Court and was
neither substantively briefed nor argued before this Court.
Thus it is not appropriate for this Court to consider the
issue. As a final comment, we note that this Court has
previously held these statutes to be constitutional based on
similar challenges in Dawson, 761 P.2d at 360, and State v.
Smith (1985), 217 Mont. 461, 490-91, 705 P.2d 1087, 1105-06,
cert. denied, 474 U.S. 1073, 106 S.Ct. 837, 88 L.Ed.2d 808
(1986).
We conclude that the imposition of the death penalty is
constitutional under the review criteria of 5 46-18-310, MCA.
xv
Supreme Court sentence review pursuant to 46-18-310,
MCA .
In Montana, appellate review of a death sentence is
prompt, 5 46-18-308, MCA, and automatic, 5 46-18-310, MCA.
In reviewing a death sentence pursuant to 5 46-18-310, MCA,
this Court must determine 1) whether the sentence was imposed
under the influence of passion, prejudice, or any other
arbitrary factor; 2) whether the evidence supports the court's
findings on any mitigating and aggravating circumstances; and
3) whether the sentence is excessive or disproportionate to

the penalty imposed in similar cases, considering both the
crime and the defendant.
Defendant does not expressly contend that this sentence
was imposed under the influence of passion, prejudice, or any
other arbitrary factor. Defendant does, however, infer that
defendant Is race of Native American may have been a factor in
either the verdict or in sentencing. We therefore discuss
this inference. We begin by concluding that nothing in the
trial transcript, including the voir dire, provides a basis
for allegations of bias based on race. The voir dire was
conducted by interviewing prospective jurors in groups of six.
Each group was specifically asked if defendant's race would
be a factor in decision-making. No juror expressed bias
because of race. The answers given in voir dire provide no
basis for allegations of racial prejudice. Additionally, our
review of the trial transcript provides no suggestion that
race was improperly injected into this trial, either by the
prosecution or by defense counsel.
In its findings of fact the sentencing court notes defen-
dant Is age, the date and place of his birth, and the fact that
defendant is a Northern Cheyenne Indian. The sentencing court
notes that defendant has a record of violent offenses on the
Northern Cheyenne Reservation. These are the only references
to defendant's race in the sentencing order. The record is
devoid of any indication that race was a factor in sentencing.
We further note that since Montana's death penalty
statutes were revised in 1977 to conform to United States
Supreme Court holdings in Furman v. Georgia (1972), 408 U.S.
238, 92 S.Ct. 2726, 33 L.Ed.2d 346, defendant and his brother,
Lester Kills on Top, are the only Native Americans to receive
the death penalty in Montana. Only one other defendant from
a minority race has been sentenced to death and that case
involved a black defendant. See Coleman. We conclude that
defendant's inferences that race was a factor in this case are
unsubstantiated.
We also choose to discuss the finding made by the
sentencing court in finding No. 18:
18. That the victim's family has been de-
prived of a son, a husband and brother, and the
parents of the victim have been for some time, and
now are, undergoing psychiatric counselling as a
result of their son's death.
The United States Supreme Court, in Booth v. Maryland
(1987), 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440, held
that the jury's consideration of a victim impact statement in
that case was error, requiring resentencing. In Booth, the
State of Maryland had a statute reauirinq consideration at
sentencing of victim impact statements if the victim suffered
injury or death. In Booth the sentencing was done by the
jury. The defendant was convicted of the murder of an elderly
couple. Before sentencing, a lengthy statement written by the
Maryland Division of Parole and Probation was read to the

jury. It contained statements made by several family members,
including a son, daughter, and granddaughter. The statements
described the good character and reputation of the victims,
and the emotional distress suffered by the various family
members. The statement was lengthy and poignant, containing
many facts regarding the impact on the family.
The court held that consideration of the statement
violated the ~ighthAmendment in that it could influence the
jury to impose sentence in an arbitrary or capricious manner.
The court stated that a victim impact statement is irrele-
vant, that it improperly diverts the jury's attention away
from the defendant and the crime, and that it is inconsistent
with the reasoned decision-making required in a capital case.
Booth, 482 U.S. at 503-09.
In the present case the record contains no written victim
impact statements. The source of the information about the
parentsn counselling is from the father's testimony at the
presentence hearing. At this hearing the father also
testified that the victim graduated from Montana College of
Mineral Science and Technology with honors, and that he had
a wife and two sons. The father stated his opinion that this
was an appropriate case for the death penalty.
In two recent Montana cases this Court discussed whether
consideration of victim impact statements at sentencing
constituted reversible error. In Dawson, the presentence
investigation report contained a three paragraph victim impact
statement, which stated that three members of a family had
died as a result of the homicide, and that the teenage
daughter was undergoing counseling but "not doing so well.'1
This Court concluded that Booth was not controlling in that
sentencing was by the court, not the jury, and because the
victim impact statement was not as lengthy or poignant as the
one in Booth. Dawson, 761 P.2d at 361. See also State v.
Keith, 231 Mont. 214, 235-37, 754 P.2d 474, 487-88. The
present case is distinguishable from Booth in that sentencing
was by a judge rather than a jury, and there was no written
victim impact statement. The testimony by the father was
neither lengthy nor emotional. It was clearly not as
questionable as the information considered in Booth. We
conclude there was no error in the sentencing court's consid-
eration of the statements.
The findings of the sentencing court are lengthy and
dispassionate and afford no indication that the sentence was
imposed under the influence of passion, prejudice, or any
other arbitrary factor. We conclude that the sentence was
not imposed under passion, prejudice, or any arbitrary factor.
The second determination pursuant to B 46-18-310, MCA,
requires this Court to consider whether the evidence supports
the sentencing court's findings of aggravating and mitigating
circumstances. In Montana, before imposing the sentence of
death, the sentencing court must find at least one of the
aggravating circumstances of 46-18-303, MCA. It then
determines if any of the specific mitigating circumstances
exist, as listed in 5 46-18-304, MCA, including "[alny other
fact that exists in mitigation of the penalty.@I Section 46-
18-304(8), MCA. In determining whether to impose the death
penalty the sentencing court must take into account the
aggravating and mitigating circumstances to determine if there
are mitigating circumstances sufficiently substantial to call
for leniency. Section 46-18-305, MCA. Thus our statues
provide for sentencing that is guided yet individualized.
 In the present case, the court found two aggravating
circumstances. It determined that the offense was deliberate
homicide committed by means of torture, and also that the
offense was aggravated kidnapping which resulted in the death
of the victim. In Issue XI11 we discussed the court's finding
that the deliberate homicide was committed by means of
torture, concluding that substantial evidence supports this
finding. Likewise, in Issue XI11 we discussed the sentencing
court's finding that the offense was aggravated kidnapping
which resulted in the death of the victim. We concluded that
substantial evidence supports this finding. From this
previous determination, we conclude that the sentencing
court's findings of aggravating circumstances are supported
by substantial evidence.
The sentencing court found that the only possible miti-
gating circumstance was that the defendant had no significant
history of prior criminal activity. The court did note that
defendant had a substantial record of violent offenses on the
Northern Cheyenne Indian Reservation. The court went on to
conclude that when compared to the enormity of the offenses
committed and circumstances thereof, there were no mitigating
circumstances sufficiently substantial to call for leniency.
The mitigating circumstance that defendant had no significant
history of prior criminal activity, was present in Dawson,
wherein this Court affirmed the sentencing court's refusal of
leniency in light of the offenses committed. Dawson, 761 P.2d
at 361-62. See also State v. Smith (1985), 217 Mont. 461,
478, 705 P.2d 1087, 1097; Coleman, 605 P.2d at 1019-20. In
the present case, in view of the offenses committed, we
conclude that the evidence supports the court's finding that
there were no mitigating circumstances sufficiently
substantial to call for leniency.
In this case the death sentence has been imposed on a
defendant convicted of deliberate homicide, notwithstanding
that the defendant did not inflict the final fatal blows and
was not present at the infliction of such blows. We next
address the issue of whether or not the sentence of death is
excessive or constitutes cruel and unusual punishment under
those circumstances.
The United States Supreme Court addressed a similar issue
and upheld the death penalty in the case of two nontriggermen
in Tison v. Arizona (1987), 481 U.S. 137, 107 S.Ct. 1676, 95
L.Ed.2d 127. In Tison, two brothers challenged their death
sentences, claiming the Enmund rule was not satisfied. In
Enmund v. Florida (1982), 458 U.S. 782, 102 S.Ct. 3368, 73
L.Ed.2d 1140, the court held that the death penalty may be
imposed on a defendant who killed, attempted to kill, or
intended to kill or that lethal force be used.
In Tison, Ricky and Raymond Tison planned and effected
the escape of their father from prison by smuggling guns into
the prison and helping him and another prisoner escape.
Later, when their car had a flat tire, the brothers helped
flag down a car with a family of four. They assisted in the
abduction and robbery of the family, then watched while the
father and another convict shot all four people. The United
States Supreme Court held that imposition of the death penalty
upon Ricky and Raymond Tison did not violate the ~ighth
Amendment. The Court stated, "[Wle simply hold that major
participation in the felony committed, combined with reckless
indifference to human life, is sufficient to satisfy the
Enmund culpability requirement." U.S.
Thus in the present case, the fact that the defendant did not
deliver the final fatal blows does not preclude imposition of
the death penalty.
Applying the Tison standard to the present case we begin
by noting that the sentencing court, in its findings of fact,
stated:

25. That the Defendant was an accomplice in
the Deliberate Homicide committed by another per-
son. He was a direct participant in the Aggravated
Kidnapping and Robbery and, further, his partici-
pation was not minor, but was substantial, in that
he assisted in the planning of the abduction and
robbery, assisted in the beatings and choking of
the victim, helped strip and place the victim in
the trunk, and used the proceeds of the robbery.
He agreed that the victim had to die; and when he
could have assisted the victim, told Lavonne Quiroz
to move the car to the alley when the victim began
making noise and pleading for help. He also as-
sisted at the time the body was concealed. The
only portion of the crime for which the Defendant
had no involvement was the period of time when the
victim was finally beaten and killed by Lester
Kills On Top.
Substantial trial evidence supports this finding. We
conclude that the Tison requirement that defendant be a major
participant in the felony, was clearly met in the present
case.
In Tison the court also determined that the Tison broth-
ers had exhibited a reckless indifference to human life. The
specific facts in Tison leading to the determination were as
follows:

1) Raymond and Ricky Tison brought the lethal
weapons into the jail and gave them to two men
already convicted of murder;
2) Raymond acknowledged he had been prepared
to kill, if necessary, during the prison escape;
3) Raymond Tison flagged down the innocent
family;

4) Both brothers robbed the family and guard-
ed them at gunpoint;
5) They stood by and watched the killing;
6) They made no effort to assist the victims
after the shooting; and
7) They chose to assist the killers in their
continuing criminal acts following the killing.
Comment, Tison v. Arizona: No Intent Required for Death
Penalty of Accom~lice in Felony Murder, 10 Criminal Justice
J. 167, 173-74 (1987).

In the present case, the facts indicating a reckless
indifference to human life are:

1) Defendant participated in the restraint
and beatings of the victim in the car, including
choking the victim;
2) Defendant participated in severe beatings
 of the victim outside the car, including kicking
the victim in the head;
3) Defendant participated in forcing the
victim to strip and get in the trunk;

4 ) Defendant did nothing to release or assist
the victim during the approximate twelve hour
period he was in the trunk, notwithstanding the
visibly injured condition of the victim whose face
was badly swollen and who was covered with blood;
5) Defendant directed Quiroz to move the
vehicle from the street to an alley in Gillette
when the victim was calling for help; and
6) Defendant helped dispose of the body.
These facts are not only supported by the evidence, but
are uncontradicted. These facts alone are sufficient to
satisfy the Tison standard of reckless indifference to human
life. We emphasize here that neither the felony murder rule,
nor the Tison standard, requires a finding of purposely or
knowingly in regard to the homicide. Defendant was directly
involved in the serious beating of the victim. Testimony
established that defendant kicked the victim in the head. The
testimony of the pathologist, Dr. Deters, established that the
victim had a subdural hematoma, most likely caused by being
kicked in the head. He testified that this injury alone was
potentially fatal and could have eventually caused the death
of the victim, even without the final blows delivered in
Wyoming. Defendant engaged in physical brutality so severe
that it could have caused death without further infliction of
physical violence. Defendant then participated in placing the
nude victim in the trunk of the car on a cool October morning,
after this severe and potentially fatal beating, and did
nothing for the victim for a span of over twelve hours.
Later, on two separate occasions, when Lester stated the
victim would have to be killed, defendant agreed. Defendant
was forewarned and agreed the victim had to die; nevertheless
he failed to prevent the death. We hold that in the present
case defendant was a major participant in the felony and
exhibited a reckless indifference to human life.
In Finding No. 25 the sentencing court found that
''[defendant] agreed that the victim had to die." This find-
ing is supported by the record from the testimony of accom-
plice, Diane Bull Coming. Although the present case is
dissimilar to Tison, in that defendant was not physically
present at the scene of the killing, we conclude that the
finding by the sentencing court as to defendant's assent to
the killing, reconfirms his culpability, even though he was
absent when the final blows were struck.
Moreover, in comparing the inhumane treatment of Mr.
Etchemendy, which extended over a period of twelve hours, and
the seriousness of the offenses committed with defendant's
direct participation, we conclude that the culpability of
defendant far exceeds that of the two brothers in Tison.
There is no statement in Tison that the brothers agreed to the
killings. In the present case, the court found based on the
evidence, that defendant agreed to the killing. Defendant's
physical absence during the fatal blows does not diminish the
reckless indifference to human life which he exhibited. We
conclude that defendant's culpability is established as
required by Tison and Enmund. We hold that in the present
case the death penalty does not constitute excessive or cruel
and unusual punishment.
Finally, this Court must determine whether the sentence
is excessive or disproportionate to the penalty imposed in
similar cases, considering both the crimes and the defen-
dants. Defendant has presented no argument on this, however
in accordance with our statutory duty, we have compared the
following cases appealed to this Court which involved similar
crimes for which the death penalty was or could have been
imposed: Dawson; State v. Keefe (1988), 232 Mont 258, 759
P.2d 128; Keith; Smith, 705 P.2d 1087; State v. Fitzpatrick
(1980), 186 Mont. 187, 606 P.2d 1343, cert. denied, 449 U.S.
891, 101 S.Ct. 252, 66 L.Ed.2d 118 (1980), revtd on other
qrounds, 869 F.2d 1247 (9th Cir. 1989), cert. denied, - U.S.
, 110 S.Ct. 203, 107 L.Ed.2d 156 (1989); Coleman; McKenzie;
and Lester Kills on Top. We note that both Fitzpatrick and
Coleman were reversed; however, these reversals were on
grounds not relevant to our proportionality analysis.
After examination of such factors as the gravity of the
offenses, the brutality with which they were committed, and
the existence of any factors meriting leniency, we hold that
the sentence in the present case is not disproportionate or
excessive to others imposed in similar cases. All the above-
cited cases, except Keefe, involved a death penalty imposed
for the aggravated kidnapping and subsequent death of a
victim. The factor allowing leniency in Keefe, that the
defendant was a minor, is not present in this case. Defendant
was 29 when the offenses were committed.
The present case involves a course of criminal conduct
extending over twelve hours and demonstrating a total lack of
compassion for another human being. The homicide was
senseless, calculated and brutal.
We have reviewed the entire record in this case in
affirming the determinations of the District Court. In
applying the Tison standard, this Court independently finds
and concludes that Mr. Vern Kills on Top was a major
participant in the crimes committed, and that he exhibited a
reckless disregard for human life. See Cabana v. Bullock
(1986), 474 U.S. 376, 106 S.Ct. 689, 88 L.Ed.2d 704, overruled
in part on other grounds, Pope v. Illinois (1987), 481 U.S.
497, 504, 107 S.Ct. 1918, 1922, 95 L.Ed.2d 439, 447 (stating
that defendant's culpability in regard to the Enmund rule need
not be made by a jury, but may be made at any point in the
state criminal process ).
Accordingly this Court hereby affirms the convictions
and the sentences imposed by the District Court. This case
is remanded to the District Court which shall set a date for
execution in accordance with the statutes.
We Concur:

4AT +
A

f &
* C ief Justice

Justices
Justice John C. Sheehy, dissenting:

I dissent to the imposition of the death penalty in this case
as I did in the companion case of State v. Lester Kills On Top, -
.
Mont , 787 P.2d 336, 355 (1990), upon the grounds that the
death penalty is cruel and unusual punishment and so prohibited by
the Eighth Amendment of the United States Constitution, the Due
Process Clause of the Fourteenth Amendment to that Constitution and
Art. 11, 5 22 of the Montana Constitution.
Montana is a "weighing statew in that the District Court, in
determining whether to impose a death sentence, must find
aggravating circumstances related to the death described in 5 46-
18-303, MCA, and weigh against any one or more of those aggravating
circumstances the mitigating circumstances described in 5 46-18-
304, MCA. Even if no appeal is taken by a defendant, the judgment
of conviction and sentence of death are subject to automatic review
by this Supreme Court under 5 46-18-307, -308, -309, and -310, MCA.
Particularly, in 5 46-18-310, this Court is given the authority
when a death sentence has been imposed by the District Court to
determine "whether the evidence supports the judge's finding of the
existence or nonexistence of the aggravating and mitigating
circumstances enumerated in 5 46-18-303 and 5 46-18-304." There
is no provision in our statutes giving this Court the authority to
reweigh the evidence to inflict the death sentence as though this
were the original sentencing court.
Under our state statutory system relating to death penalties,
in the original trial in the District Court, the jury is given the
function of determining from the facts whether a crime permitting
the death penalty has been committed (the conviction phase). If
the jury determines that such a crime has been committed, then it
becomes the function of the district court judge to determine from
the jury verdict whether an aggravating factor listed in the
statute exists in the crime, and against that aggravating factor
or factors, to weigh any mitigating evidence which would militate
against the death penalty (the sentencing phase). It is only from
these functions of the jury and the sentencing district court that
this Court has any appellate authority or jurisdiction: it does
not have authority or jurisdiction other than to review the
sentence imposed by the District Court or to consider the
conviction by way of appeal. For ease in handling either or both
of the two appellate functions, 5 46-18-308, MCA, allows this Court
to consolidate the appeal from any judgment of conviction with the
automatic review by the Supreme Court of the death sentence.
At foot in this case is the proper interpretation of the
United States Supreme Court cases of Enmund v. Florida, 458 U.S.
782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), and a successor case,
Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127
(1987).
Enmund held that the death penalty may be imposed on a
defendant who killed, attempted to kill or intended to kill the
victim or that lethal force was used. Tison expanded that concept
to allow the death sentence where the defendant was a major
participator in the felony committed, combined with his reckless
indifference to human life.
This case presents an anomaly in the two-pronged system, the
jury as trier of the offense, and the judge as the sentencer. In
the appeal phase of the case, we can uphold the judgment of
conviction for the crime alleged if it is supported by substantial
evidence in the cause. In the sentence appeal, however, this Court
reviews a different function: the District Court may impose the
death penalty in this case only if the defendant killed, attempted
to kill or intended to kill the victim or if he was a major
participant in the felony with a reckless indifference to human
life.
Thus, under the felony-murder rule, the required mental state
of the defendant may be supplied for the conviction for murder
because of the commission by the defendant of the accompanying
crime. However, for the imposition of the death penalty, the
mental state of the defendant who did not participate in the actual
killing must be separately found, not in the felony-murder rule,
but in a specific finding that he was a major participant, with
reckless indifference to human life. Tison, supra. In a death
penalty case, that element should appear beyond a reasonable doubt.
Vernon Kills On Top was not present when John Etchemendy was
killed. That killing took place when Diane Bull Coming and Lester
Kills On Top drove off, apparently without telling Vernon Kills On
Top or his companion what was up, and Diane Bull Coming and Lester
Kills On Top went separately to consummate the foul deed. The only
evidence of Vernon's mental state as to whether he was recklessly
indifferent to the death of the victim comes from an accomplice,
Diane Bull Cominq, and that particular point of evidence is
uncorroborated.
Thus, that Vernon Kills On Top was guilty of felony-murder
under the statutes, is one matter upon which we can agree, because
his mental state is supplied in the commission of the felony-
murder. Whether, however, his mental state qualifies for the death
penalty under Enmund and Tison, is quite another matter. It
depends solely on the evidence of Diane Bull Coming, a not very
savory participant or witness in this matter at best.
The gist of Diane Bull Coming's testimony on this point is
that on two occasions Vernon Kills On Top agreed with Lester Kills
On Top, a dominant personality, that Etchemendy had to die. On
each occasion, however, Vernon counseled Lester "to wait." That
evidence is as amenable to a lack of mental state on the part of
Vernon Kills On Top of a reckless indifference to human life, as
the presence of such a mental state. Strongly bearing on this
question is the fact that Diane and Lester drove off for the actual
killing despite the counsel to wait of Vernon Kills On Top, and
Diane and Lester proceeded at some distanct place to end the life
of Etchemendy.
There is a factor in the credibility of Diane Bull Coming that
this Court's majority have not met or attempted to explain. Diane
was charged upon her arrest with the crime of aggravated
kidnapping, for which a death penalty is possible, and with
robbery. After 279 days in the Miles City jail (described as a
basement jail) she entered into a plea bargain with the State,
whereby, in exchange for her testimony against Lester Kills On Top,
Vernon Kills On Top and Doretta Four Bear, the charge of aggravated
kidnapping against Diane was dropped. Diane pleaded guilty only
to robbery, and was given a 40-year sentence, but as a non-
dangerous offender, she is eligible for parole in about eight
years. Because of that background, when she testified in Vernon's
case here her demeanor on the witness stand would be imperative
for any trier of fact to judge of her credibility.
Moreover, when the majority speak of proportionality in
comparing Vernon's death sentence to other Montana cases, they
overlook the complete lack of proportion in the sentence given
Vernon, compared to the eight-year sentence given Diane, a fully-
acting participant from beginning to end, including the actual
killing of Etchemendy.
There are other factors in Diane's testimony which shake me
as to her credibility. She testified that Vernon and Lester stole
the wallet from Etchemendy. The other woman in the automobile,
Lavonne Quiroz, testified that it was Lester and Diane who stole
the wallet and divided the proceeds, with Diane eventually giving
a fifty dollar bill to Lester, a bill which he lost and Diane
eventually got back. Lester Kills On Top testified that it was
Diane herself who got the wallet from Etchemendy. Further, Diane
pleaded guilty to robbery.
On another point respecting reckless indifference for human
life, Diane Bull Coming testified that when Etchemendy was in the
trunk of the car, Vernon mixed a beverage of beer and EverClear
(EverClear is 180 proof alcohol) and attempted to force it down
Etchemendylsthroat. Lavonne, however, testified that it was Diane
who prepared the beverage and attempted to force the mixture into
Etchemendy. Here again the testimony of Diane Bull Coming is
uncorroborated.
The majority sets out a number of factors which they say
corroborate the testimony of Diane Bull Coming. All that those
factors corroborate, however, is that Lester was present for a
felony- murder offense. The essential point that relates to his
state of mind for the imposition of the death penalty, as to his
reckless indifference to the life of Etchemendy, comes from Diane's
uncorroborated statements against which there is evidence
otherwise, including the fact that it was Lester who placed a
blanket over the body of Etchemendy when he was still alive and in
the trunk.
I will not belabor the other reasons I oppose the death
penalty in this case. They are the same as for Lester Kills on Top
as set forth in my dissenting opinion there and which apply equally
here. 787 P.2d at 355-359.
I would uphold the conviction of Vernon Kills On Top on the
basis of felony-murder rule and reverse the imposition of the death
penalty.

Justlce
 A

Justice William E. Hunt, Sr., dissenting:

I concur with the majority opinion so far as it affirms the
conviction of the defendant/appellant but because he was not
present at the time of the victim's death, I would reverse the
death sentence.