Vernon Kills on Top v. State

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No. 98-492

IN THE SUPREME COURT OF THE STATE OF MONTANA

2000 MT 340

303 Mont. 164

15 P. 3d 422

VERNON KILLS ON TOP,

Petitioner and Appellant,

v.

STATE OF MONTANA,

Respondent and Respondent.

APPEAL FROM: District Court of the Sixteenth Judicial District,

In and for the County of Custer,

The Honorable John W. Larson, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

James S. Thomson and Saor E. Stetler, Criminal Defense Attorneys,

Berkeley, California

Wendy Holton, Attorney at Law, Helena, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General; Clay R. Smith, Solicitor; Mark J. Murphy, Assistant
Attorney General; Helena, Montana

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Submitted on Briefs: April 27, 2000
Decided: December 19, 2000

Filed:

__________________________________________

Clerk

Justice Jim Regnier delivered the opinion of the Court.

¶1 Vernon Kills On Top (hereinafter referred to as "Petitioner") appeals from the Findings
of Fact, Conclusions of Law and Order issued by the Sixteenth Judicial District Court,
Custer County, dismissing his amended petition for postconviction relief, and the Findings
of Fact, Conclusions of Law and Sentence designating him as a dangerous offender for
parole eligibility purposes and sentencing him to the following sentences to run
consecutively: 40 years imprisonment for robbery, life imprisonment without possibility
of parole for aggravated kidnaping, and life imprisonment for deliberate homicide. We
affirm.

¶2 With regard to the denial of Vernon Kills On Top's petition for postconviction relief,
his appeal raises the following issues:

¶3 1. Whether the District Court erred when it limited its decision to Petitioner's
ineffective assistance of counsel claims?

¶4 2. Whether the District Court erred when it concluded that Petitioner's right to effective
assistance of counsel was not violated?

¶5 With regard to Petitioner's resentencing, his appeal raises the following issues:

¶6 3. Whether the District Court erred when it denied Petitioner's motion for a change of
venue?

¶7 4. Whether the District Court erred when it admitted victim impact evidence?

¶8 5. Whether the District Court erred when it sentenced Petitioner?

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BACKGROUND

¶9 Petitioner was convicted of the aggravated kidnaping, robbery, and deliberate homicide
of John Martin Etchemendy, Jr. following trial by jury in the Sixteenth Judicial District
Court, Custer County, on August 6, 1988. On September 8, 1988, he was sentenced to 40
years in the Montana State Prison for robbery, and sentenced to death for the aggravated
kidnaping and homicide convictions. He appealed his conviction to this Court and we
affirmed. State v. Vernon Kills On Top (1990), 243 Mont. 56, 793 P.2d 1273, cert. denied
(1991), 501 U.S. 1259, 111 S. Ct. 2910, 115 L. Ed. 2d 1073 ("Vernon Kills On Top I").

¶10 On February 19, 1992, Vernon Kills On Top filed a petition for postconviction relief
in the Sixteenth Judicial District Court, Custer County. In that petition, he claimed 15
separate grounds for relief. The District Court dismissed all but part of one claim by
summary judgment. The District Court denied the part of his petition which was not
dismissed by summary judgment after an evidentiary hearing. In addition, the District
Court denied Petitioner's combined motion to amend claims 2 and 11 of his petition and
add claims 16-18, his motion for investigative assistance, his motion for leave to conduct
discovery, and his motion for appointment of a psychiatrist. The District Court also denied
Petitioner's motion for reconsideration.

¶11 Petitioner appealed. We reversed the District Court's dismissal of his petition for
postconviction relief and remanded for an evidentiary hearing. We also vacated
Petitioner's death sentence as disproportionate to his actual conduct, stating that if his
conviction was affirmed on remand, the District Court must resentence him without the
possibility of death. Vernon Kills on Top v. State (1996), 279 Mont. 384, 928 P.2d 182
("Vernon Kills On Top II").

¶12 On remand, the District Court entered an order pursuant to an agreement between the
parties regarding the procedures for resolving Petitioner's postconviction relief claims. On
August 13, 1998, the District Court issued its Findings of Fact, Conclusions of Law and
Order dismissing Petitioner's amended petition for postconviction relief. Following the
dismissal of his petition for postconviction relief, the District Court scheduled a
resentencing hearing. Petitioner moved to exclude victim impact testimony from the
resentencing hearing and moved for a change of venue. The court orally denied both
motions. The court held a resentencing hearing on November 10, 1998, at the conclusion
of which the it sentenced Petitioner to 40-years' imprisonment for robbery, life
imprisonment for deliberate homicide, and life imprisonment without the possibility of

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parole for aggravated kidnaping, with the sentences to run consecutively. The court denied
parole eligibility with respect to Petitioner's conviction for aggravated kidnaping pursuant
to § 46-18-202(2), MCA (1987). The court also designated Petitioner as a dangerous
offender for parole eligibility purposes.

¶13 Petitioner appeals from both the District Court's dismissal of his petition for
postconviction relief and the District Court's resentencing.

POSTCONVICTION RELIEF CLAIMS

STANDARD OF REVIEW

¶14 We review a district court's denial of a petition for postconviction relief to determine
whether the court's findings of fact are clearly erroneous and whether the court's
conclusions of law are correct. State v. L. Wilson, 1999 MT 52, ¶ 11, 293 Mont. 429, ¶ 11,
976 P.2d 962, ¶ 11. Petitioner claims that due process requires that no deference be given
to the District Court's findings of fact and conclusions of law because the District Court
essentially adopted the State's proposed Findings of Fact and Conclusions of Law. We
have held that a district court does not commit error when it adopts a party's proposed
findings and conclusions where the adopted findings and conclusions are "sufficiently
comprehensive and pertinent to the issues to provide a basis for the decision and are
supported by the evidence." Hans v. State (1997), 283 Mont. 379, 393, 942 P.2d 674, 683.
We decline to rule that the court committed reversible error by its adoption of the State's
proposed findings and conclusions. However, we are mindful of the court's verbatim
adoption in our analysis of whether the court's findings are clearly erroneous and whether
its conclusions are correct.

ISSUE ONE

¶15 Whether the District Court erred when it limited its decision to Petitioner's ineffective
assistance of counsel claims?

¶16 On July 14, 1992, Petitioner moved the court to amend his petition for postconviction
relief, adding claims 16-18. The District Court denied Petitioner's motion stating that his
proposed amendments "would be futile." On appeal, we held that the District Court erred
when it denied Petitioner's motion to amend. Vernon Kills on Top II, 279 Mont. at 393,
928 P.2d at 188. On remand, the District Court limited its decision to Petitioner's

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ineffective assistance of counsel claims and did not address the merits of Petitioner's
proposed claims 16-18.

¶17 Petitioner claims that the District Court erred by failing to address proposed claims 16-
18 in its Findings of Fact, Conclusions of Law and Order dismissing his amended petition
for postconviction relief. We agree. The scope of our remand required the District Court to
determine whether Petitioner was entitled to postconviction relief on the basis of his
proposed claims 16-18. We clearly stated that the District Court erred when it denied
Petitioner's motion to add proposed claims 16-18. Vernon Kills on Top II, 279 Mont. at
393, 928 P.2d at 188. By remanding the District Court to allow Petitioner to add proposed
claims 16-18, we necessarily required the District Court to address the merits of those
claims.

¶18 However, we believe that the District Court's failure to address Petitioner's proposed
amendments was harmless. We have held that postconviction relief proceedings are
collateral attacks that are "civil" in nature and independent of the underlying criminal
cause. State v. Garner, 1999 MT 295, ¶ 19, 297 Mont. 89, ¶ 19, 990 P.2d 175, ¶ 19 (citing
Coleman v. State (1981), 194 Mont. 428, 433, 633 P.2d 624, 627). It is well established
that "no civil case shall be reversed by reason of error which would have no significant
impact upon the result; if there is no showing of substantial injustice, the error is
harmless." See Newbauer v. Hinebauch, 1998 MT 115, ¶ 20, 288 Mont. 482, ¶ 20, 958
P.2d 705, ¶ 20. We note that the resolution of these claims depends solely on documentary
evidence in the form of testimony already taken by deposition, affidavit, or at hearing.
With respect to record testimony, this Court sitting in review is in as good a position as the
District Court to judge the weight to be given to such testimony, as distinguished from oral
testimony where the trial court actually observes the character and demeanor of the
witness on the stand. See Liberty Northwest Ins. Corp. v. Champion Intern. Corp. (1997),
285 Mont. 76, 79, 945 P.2d 433, 435 (reviewing decision issued by Workers'
Compensation Court). Furthermore, Petitioner has not requested that we remand his
petition to the District Court for further proceedings on these proposed claims, but instead
presents these issues to us on the merits. Accordingly, we have analyzed the merits of
Petitioner's newly discovered evidence claim, Brady claim, and cumulative error claim to
determine whether he was harmed by the District Court's failure to address these claims on
remand. Upon analysis, we have determined that Petitioner's proposed claims 16-18 are
without merit. Therefore, we conclude that the Petitioner was not harmed by the District
Court's failure to address his proposed claims 16-18 because this error would have no
impact on the District Court's denial of his petition.

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A. Newly Discovered Evidence

¶19 In proposed claim 16, Petitioner claimed that newly discovered evidence in the form
of an affidavit of Diane Bull Coming warranted a new trial. Petitioner claimed that in
Bull Coming's affidavit, she admitted that she may have mistakenly misconstrued
Petitioner's nonverbal grunts as an assent to kill Etchemendy. On appeal, we stated that "[s]
ince his alleged consent to the victim's murder served as a partial basis for the District
Court's imposition of the death penalty, and since newly discovered evidence is a
justification for postconviction relief, this allegation, if true, could hardly have been
considered futile." Vernon Kills on Top II, 279 Mont. at 392, 928 P.2d at 187. The State
contends that the issue in Petitioner's proposed claim 16 was only relevant to the
imposition of the death penalty and, therefore, rendered moot when we vacated Petitioner's
sentence. We agree.

¶20 Petitioner's proposed claim 16 is not relevant to the liability phase of his trial. In an
affidavit dated May 1, 1992, Bull Coming stated, "When Vern took the blindfold off
[Etchemendy], Lester got mad and said [']now he knows what we look like so we have to
kill him[']. Vern grunted and I, at the time, interpreted this as agreement. . . . I agree that it
is possible that my interpretation could have been wrong." In his motion to amend,
Petitioner claimed that this newly discovered evidence was plainly material to the outcome
of his trial because it was the only evidence offered that he had any intent to kill
Etchemendy.

¶21 Whether Petitioner agreed with Lester Kills On Top that Etchemendy should be killed,
however, is immaterial to Petitioner's conviction for deliberate homicide. To serve as the
basis for a new trial, newly discovered evidence must, among other things, be "so material
that it would probably produce a different result upon another trial." State v. Hall, 1999
MT 297, ¶ 54, 297 Mont. 111, ¶ 54, 991 P.2d 929, ¶ 54 (quoting State v. Greeno (1959),
135 Mont. 580, 342 P.2d 1052). Newly discovered evidence is "material" if it is "so highly
probative of the defendant's innocence that its introduction probably would produce an
acquittal." Hall, ¶ 55. Petitioner was convicted of deliberate homicide pursuant to § 45-5-
102(1)(b), MCA (1987), the "felony murder rule." The elements of felony murder are as
follows: (1) the commission of a felony; (2) death; and (3) a causal connection between
the felony and the death. State v. Kills on Top (1990), 241 Mont. 378, 387, 787 P.2d 336,
342 ("Lester Kills on Top I"). Pursuant to the felony murder rule, whether Petitioner did or
did not agree with Lester Kills On Top that Etchemendy should be killed is irrelevant;
proof of intent to commit aggravated kidnaping or robbery is sufficient for conviction.

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Lester Kills on Top I, 241 Mont. at 387, 787 P.2d at 341-42. Bull Coming's ambiguous
interpretation of Petitioner's grunt is not at all probative of his innocence. Petitioner is not
entitled to a new trial based on this evidence.

B. Brady Claim

¶22 In proposed claim 17, Petitioner asserted that he was entitled to a new trial due to the
prosecution's violations of its duty pursuant to Brady v. Maryland (1963), 373 U.S. 83, 83
S. Ct. 1194, 10 L. Ed. 2d 215, to disclose evidence favorable to the accused and material
to the accused's guilt or punishment. Petitioner asserted that the prosecution failed to
disclose evidence that Bull Coming claimed to have been repeatedly raped by a Custer
County jailer and failed to disclose evidence that Bull Coming had mutilated Etchemendy.
On appeal, we stated that "this Brady violation was cause to set aside Lester's death
penalty. A similar claim could not have been futile for Vernon when Diane Bull Coming
was the only witness who even linked Vernon to Etchemendy, Jr.'s death." Vernon Kills on
Top II, 279 Mont. at 392, 928 P.2d at 187. The State contends that, as we held in Lester
Kills on Top v. State (1995), 273 Mont. 32, 44-45, 901 P.2d 1368, 1376 ("Lester Kills on
Top II"), any Brady violations it may have committed with regard to information about
Bull Coming are relevant to Petitioner's sentence, but not to his conviction.

¶23 Pursuant to the Due Process Clause of the United States Constitution, the prosecution
must disclose all evidence favorable to the accused that is material to either guilt or
punishment. Brady, 373 U.S. at 87, 83 S. Ct. at 1196-97. This duty applies to proceedings
in state court. See Lester Kills on Top II, 273 Mont. at 45, 901 P.2d at 1377. The
prosecutorial duty to disclose favorable material evidence encompasses impeachment
evidence. United States v. Bagley (1985), 473 U.S. 667, 105 S. Ct. 3375, 87 L. Ed. 2d 481.
Evidence is material if there is a reasonable probability that the result would have been
different had the evidence been disclosed to the defense. Strickler v. Greene (1999), 527 U.
S. 263, 289-90, 119 S. Ct. 1936, 1952, 144 L. Ed. 2d 286; accord Lester Kills on Top II,
273 Mont. at 42, 901 P.2d at 1374-75. Thus, a Brady violation has three elements: (1) the
evidence at issue must be favorable to the accused, either because it has exculpatory or
impeachment value; (2) the evidence was willfully or inadvertently suppressed by the
State; and (3) the suppression resulted in prejudice to the accused. Strickler, 527 U.S. at
281-82, 119 S. Ct. at 1948.

¶24 We previously discussed the import of this evidence with regard to Lester Kills On
Top's appeal from his denial of postconviction relief. With regard to alleged information

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that Bull Coming mutilated Etchemendy, we stated that it would be neither exculpatory
nor useful for impeachment purposes. Lester Kills on Top II, 273 Mont. at 43-44, 901 P.2d
at 1375-76. We decline the opportunity to reassess the value of this alleged information.
With regard to Bull Coming's allegations of sexual assault, we concluded that this
information had impeachment value in that Lester Kills On Top could have used it to
"attempt to cast doubt on Bull Coming's veracity or to show her propensity to manipulate
others." Lester Kills on Top II, 273 Mont. at 44, 901 P.2d at 1376. We concluded that this
information should have been furnished to Lester Kills On Top because it created a
reasonable probability that the outcome of his sentence would have been different had it
been disclosed. However, we also held that the State's failure to disclose this information
did not create a reasonable probability that the outcome of Lester Kills On Top's trial
would have been different had such information been provided to the defense. Lester Kills
on Top II, 273 Mont. at 44-45, 901 P.2d at 1376-77. We observed that although Bull
Coming was an important witness for the State, there was an abundance of testimony from
other accomplices and our confidence in the verdict was not undermined by the State's
failure to disclose. Lester Kills on Top II, 273 Mont. at 45, 901 P.2d at 1376.

1. Bull Coming's Allegations of Rape

¶25 Bull Coming was held at the Custer County jail from October 21, 1987, until she was
transferred to the Rosebud County jail on April 7, 1988. After her transfer, Bull Coming
told Ron Bromley, a Rosebud County Deputy Sheriff, that she had been repeatedly
sexually assaulted by a Custer County jailer. Bromley notified Bull Coming's attorney,
Garry Bunke, about Bull Coming's allegations, who then called FBI agent Ed Traeger in
Billings. The FBI conducted an investigation and subsequently notified the Custer County
Sheriff that they would not be pursuing further action. The State never informed
Petitioner's trial counsel about Bull Coming's allegations.

¶26 In order to qualify as a Brady violation, suppressed evidence must be both favorable
to the accused and material. Strickler, 527 U.S. at 281-82, 119 S. Ct. at 1948. Petitioner
claims that this evidence is favorable because of its impeachment value. Petitioner
contends that if Bull Coming's allegation was true, this information could have been used
to show that Bull Coming had a motivation to testify falsely in order "to get free of her
horrific situation in jail." However, this claim is factually impossible. By the time Bull
Coming testified in either Lester Kills On Top or Petitioner's trials, held in June and July
of 1988, she had already been transferred out of the Custer County jail-she was transferred
to the Rosebud County jail on April 7, 1988. Furthermore, Bull Coming did not face any

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threat of being returned to the Custer County jail based on the truth or falsity of her
testimony. This information has no impeachment value for this purpose.

¶27 Petitioner contends that if Bull Coming's allegation was false, it could have been used
for three impeachment purposes: (1) it would "demonstrate Bull Coming's manipulative
nature and her routine lying to get what she wants"; (2) it would contradict Bull Coming's
testimony that it was Lester Kills On Top, and not she, who taunted Etchemendy as to
"how he liked raping Indian girls"; and (3) it would show that Bull Coming was the
"moving force behind the crimes" because she had a motive.

¶28 Bull Coming's allegation, if false, may have had some impeachment value. Whether
Bull Coming falsely accused a Custer County jailer of sexually assaulting her does not
establish that she had a motive to kidnap, rob, and kill Etchemendy. Similarly, Bull
Coming's allegation, if proven false, does not contradict her testimony that it was Lester
Kills On Top and not she who taunted Etchemendy. On the other hand, it is conceivable
that had Petitioner's trial counsel been informed of this information, he could have
developed facts which would somehow have indicated that Bull Coming's allegation was
false, questioned Bull Coming about these facts during his cross-examination, and thus
attempted to undermine her credibility. See Lester Kills on Top II, 273 Mont. at 44, 901
P.2d at 1376 (observing that Lester Kills on Top could have used information about Bull
Coming's allegation of sexual assault to "attempt to cast doubt on Bull Coming's veracity
or to show her propensity to manipulate others"). Arguably, this evidence has some
favorable impeachment value.

2. Bull Coming's Criminal History

¶29 Petitioner also contends that the State violated Brady by not providing his attorney
with Bull Coming's criminal history. The State argues that Bull Coming's criminal history
has no impeachment value because it was inadmissible.

¶30 Bull Coming's criminal history has some impeachment value. Aspects of Bull
Coming's criminal history, such as her conviction for forgery, might have been admissible
as probative of her character for truthfulness or untruthfulness. See State v. Maier, 1999
MT 51, ¶ 55, 293 Mont. 403, ¶ 55, 977 P.2d 298, ¶ 55 (holding that circumstances
surrounding a witness's previous forgery conviction were admissible pursuant to Rule 608
(b), M.R.Evid.). Although Bull Coming's criminal history may have some favorable
impeachment value, it has no exculpatory value. We do not believe that Bull Coming's

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criminal history could be used to disprove that Petitioner participated in the events that led
to Etchemendy's kidnaping, robbery, and death.

3. Bull Coming's Background

¶31 Petitioner also contends that the State failed to disclose information regarding Bull
Coming's allegedly violent background, false statements, long standing racial prejudice,
contradictions in her testimony, failure to abide by her plea agreement conditions, and
"deception and manipulation." However, with the exception of Diane Bull Coming's attack
on Roy Dean Bull Coming and a note Diane Bull Coming passed to Petitioner while at the
Custer County Jail, Petitioner has not directed our attention to any evidence in the record
which would indicate that the State was aware of this information prior to or during his
trial and intentionally or inadvertently suppressed it. Moreover, this evidence has no
favorable exculpatory value with regard to Petitioner's guilt or innocence. For instance,
information concerning Bull Coming's background does not tend to disprove that
Petitioner drove the car in which Etchemendy was held and robbed. Petitioner has also not
explained how any of this evidence might have been used at the time of his trial to
impeach Bull Coming.

4. Conclusion

¶32 In sum, Petitioner did not establish that the State failed to disclose any exculpatory
evidence. However, Petitioner did establish that the State failed to disclose some
information which may have been useful in impeaching Bull Coming's testimony-namely,
Bull Coming's sexual assault allegation and Bull Coming's previous criminal history.
Petitioner contends that the "evidence at trial was weak and circumstantial as it related to
[his] involvement in the crimes" and that "the most damning evidence was the testimony
offered by Bull Coming." Petitioner also states that this information could have "shredded
[Bull Coming's] credibility in front of the jury."

¶33 Petitioner's assertion that the State's failure to disclose Bull Coming's criminal history
or sexual assault allegation was prejudicial is completely without merit. In no way could
the failure to disclose this information "reasonably be taken to put the whole case in such a
different light as to undermine confidence in the verdict." Kyles v. Whitley (1995), 514 U.
S. 419, 435, 115 S. Ct. 1555, 1566, 131 L. Ed. 2d 490. No amount of suppressed evidence
merely impeaching Bull Coming's testimony could establish a reasonable probability that
the result of Petitioner's trial would have been different. Had Bull Coming's testimony

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been completely discredited or excluded entirely, an overwhelming abundance of
accomplice testimony and corroborative evidence established that Petitioner participated
in or aided and abetted Etchemendy's aggravated kidnaping, Petitioner participated in or
was accountable for Etchemendy's robbery, and Etchemendy died as a result of this
criminal episode thereby exposing Petitioner to liability for felony murder. See Vernon
Kills on Top II, 279 Mont. at 401-06, 928 P.2d at 193-96 (reviewing evidence supporting
Petitioner's conviction while, at the same time, not accepting Bull Coming's testimony at
"face value"); see also Vernon Kills on Top I, 243 Mont. at 86-89, 793 P.2d at 1294-96
(discussing the plethora of evidence corroborating the testimony of Petitioner's
accomplices); cf. Lester Kills on Top II, 273 Mont. at 44-45, 901 P.2d at 1376 (reviewing
accomplice testimony, other than testimony of Bull Coming, which supported Lester Kills
On Top's conviction).

¶34 Petitioner is not entitled to a new trial based on alleged Brady violations. The State
did not violate Brady with regard to the guilt phase of Petitioner's trial because any
favorable information the State failed to disclose was not material to Petitioner's guilt or
innocence.

C. Cumulative Error

¶35 In proposed claim 18, Petitioner claimed that he suffered a cumulative denial of due
process due to all of the circumstances alleged in his previous claims. On appeal, we
stated that "[c]umulative error can serve as a basis for reversal." Vernon Kills on Top II,
279 Mont. at 392, 928 P.2d at 187. We do not, however, apply the cumulative error
doctrine when no errors have been shown. State v. Beavers, 1999 MT 260, ¶ 60, 296
Mont. 340, ¶ 60, 987 P.2d 371, ¶ 60.

ISSUE TWO

¶36 Whether the District Court erred when it concluded that Petitioner's right to effective
assistance of counsel was not violated?

¶37 Criminal defendants are guaranteed the right to the assistance of counsel pursuant to
the Sixth Amendment of the United States Constitution and Article II, Section 24 of the
Montana Constitution. State v. Jones (1996), 278 Mont. 121, 124, 923 P.2d 561, 562. The
right to counsel protects the fundamental right to a fair trial guaranteed by the Due Process
Clauses of the United States Constitution. Strickland v. Washington (1984), 466 U.S. 668,

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684-85, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674. The right to the assistance of counsel is
of critical importance to a criminal defendant's right to a fair trial because access to
counsel's skill and knowledge is necessary to accord a defendant the opportunity to test the
prosecution's case in our adversarial system. Strickland, 466 U.S. at 685, 104 S. Ct. at
2063. For that reason, the Supreme Court has recognized that the right to assistance of
counsel is the right to effective assistance of counsel. Strickland, 466 U.S. at 686, 104 S.
Ct. at 2063.

¶38 A convicted defendant's claim that counsel's assistance was so defective as to require
reversal of a conviction has two components:

First, the defendant must show that counsel's performance was deficient. This
requires showing that counsel made errors so serious that counsel was not
functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.
Second, the defendant must show that the deficient performance prejudiced the
defense. This requires showing that counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.

Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. Generally, a defendant must establish both parts of the
test to prevail. Jones, 278 Mont. at 133, 923 P.2d at 567. However, when a defendant establishes that
counsel's performance was deficient in that counsel suffered from an actual conflict of interest which
adversely affected the defendant's representation, prejudice to the defense is presumed. See N. Wilson v.
State, 1999 MT 271, ¶ 17, 296 Mont. 465, ¶ 17, 989 P.2d 813, ¶ 17. Petitioner claims that his counsel,
for purposes of his trial and direct appeal, committed prejudicial errors and that his counsel suffered
from actual conflicts which adversely affected his representation.

A. Ineffective Assistance Due to Prejudicial Errors

¶39 Petitioner contends that John S. Forsythe, his attorney for purposes of his trial and
direct appeal, committed two prejudicial errors which denied him the right to effective
assistance of counsel. Petitioner maintains that he was prejudiced by Forsythe's failure to
use available impeachment evidence from Lester Kills On Top's trial which would have
demonstrated that Bull Coming controlled the other participants in the crimes. Petitioner
also insists that he was prejudiced by Forsythe's failure to fully challenge Bull Coming's
testimony. In order to succeed, Petitioner must establish that Forsythe made errors so
serious that he was "not functioning as the 'counsel' guaranteed the defendant by the Sixth
Amendment," and he must establish that he was prejudiced by Forsythe's allegedly
deficient performance. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.

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1. Impeachment Evidence

¶40 Petitioner claims that Forsythe failed to use the trial transcript from Lester Kills On
Top's trial to challenge witnesses in his trial. Petitioner refers us to the following
impeachment evidence which he claims Forsythe erroneously failed to introduce and
which caused him prejudice: (1) Bull Coming's testimony in Lester Kills On Top's trial
that Lester beat her up at the Golden West Bar was impeached by the testimony of Steve
Hathaway who testified that he saw Bull Coming hitting Lester Kills On Top; (2) Bull
Coming testified in Lester Kills On Top's trial that Lester shoved her out of the door at the
Golden West Bar while Jenelle Eads testified that she saw blood on Lester's face; (3) at
Petitioner's trial Bull Coming denied speaking to Etchemendy before he got into the
vehicle driven by Petitioner, while Bull Coming told the FBI she had talked to
Etchemendy in the Golden West Bar parking lot; and (4) Lavonne Quiroz testified at
Lester Kills On Top's trial that Bull Coming was mad at Doretta Four Bear for running
away while in Ashland, Montana. Petitioner insists that this "impeachment evidence
demonstrates that Bull Coming controlled the other defendants including [himself]."

¶41 We agree with the District Court that Petitioner has failed to establish that, by reason
of these alleged omissions, Forsythe's performance was so deficient as to fall outside the
"wide range of reasonable professional assistance." See Strickland, 466 U.S. at 689, 104 S.
Ct. at 2065. As the State observes, the testimony to which Petitioner has directed our
attention has no evidentiary significance with regard to his guilt or innocence. Whether
Bull Coming hit Lester Kills On Top in the Golden West Bar; whether she shoved Lester
Kills On Top out the door of the Golden West Bar; whether she first talked to Etchemendy
in the parking lot or in the vehicle; or whether she was angry at Doretta Four Bear for
running away does not tend to disprove that Petitioner participated in or was accountable
for the aggravated kidnaping and robbery of Etchemendy which resulted in his death.
Moreover, this evidence does not tend to establish that Bull Coming "controlled the other
defendants, including [him]." Petitioner has not proven that by failing to introduce this
evidence, Forsythe's performance was so deficient that he was "not functioning as the
'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687,
104 S.Ct. at 2064.

2. Failure to Challenge Bull Coming's Testimony

¶42 Petitioner contends that Forsythe committed prejudicial error by failing to fully
challenge Bull Coming's testimony. Petitioner insists that Forsythe failed to investigate

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Bull Coming's background, the circumstances of her plea bargain, her prior acts of
violence, her criminal background, her history of manipulation, and her history of
prostitution. The District Court concluded that Forsythe's investigation into Bull Coming's
background was of reasonable breadth and was adequate to allow Forsythe to pursue his
strategy of minimizing Petitioner's involvement in this criminal episode. The court also
noted that Petitioner did not establish prejudice in this regard because, at most, such
information would have merely tended to portray Bull Coming as a greater actor in the
criminal episode than she testified to at Petitioner's trial-a fact that would have made no
difference in view of Petitioner's liability for Etchemendy's kidnaping, robbery, and death
regardless of the precise nature of each accomplice's contribution to the criminal episode.
We agree.

¶43 This ineffective assistance claim is essentially the same as Petitioner's Brady claims.
The test for prejudice under Strickland is the same as the test for materiality under Brady.
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. As we stated above in our discussion of
Petitioner's Brady claims, had Bull Coming's testimony been completely discredited or
excluded entirely, an overwhelming abundance of accomplice testimony and corroborative
evidence established that Petitioner participated in the series of events which led to
Etchemendy's kidnaping, robbery, and death. Petitioner was not prejudiced by any alleged
error Forsythe may have committed in his investigation of Bull Coming's background.

B. Ineffective Assistance Due to Conflicts of Interest

¶44 Petitioner contends that his attorney, Forsythe, for purposes of his trial and direct
appeal, was burdened with two conflicts of interest which denied him the right to effective
assistance of counsel. One alleged conflict relates to Forsythe's campaign for district judge
for the Sixteenth Judicial District and his campaign for county attorney of Rosebud
County. The other alleged conflict relates to a book Forsythe authored entitled Death
Sentence: Murder On the Prairie. The District Court held that Petitioner failed to establish
either an actual conflict or any connection between any alleged actual conflict and an
adverse effect.

¶45 In Cuyler v. Sullivan (1980), 446 U.S. 335, 348, 100 S. Ct. 1708, 1718, 64 L. Ed. 2d
333, the Supreme Court held that a defendant who did not raise an objection at trial to a
conflict of interest arising from multiple representation must demonstrate that an actual
(1)
conflict of interest adversely affected his lawyer's performance. We have held that in
order to succeed on a conflict of interest claim, a defendant must prove: (1) counsel

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actively represented conflicting interests; and (2) the conflict adversely affected counsel's
performance. State v. Wereman (1995), 273 Mont. 245, 249, 902 P.2d 1009, 1011. If a
defendant establishes both elements, we will presume that the defendant was prejudiced
by the conflict. Wereman, 273 Mont. at 249, 902 P.2d at 1011.

1. Campaigns for Public Office

¶46 On March 16, 1988, Forsythe filed a Statement of Candidate, announcing his
candidacy for district judge of the Sixteenth Judicial District. Forsythe's campaign
advertisements noted that he was the Rosebud County attorney for 12 years with "80%
convictions in over 3,000 cases" and that he had authored the book, Death Sentence.
Forsythe lost his bid for a district judge position in a primary election held on June 7,
1988. Petitioner's trial began on July 26, 1988. Forsythe filed a Statement of Candidate,
announcing his candidacy for county attorney of Rosebud County on March 9, 1990.
Petitioner's direct appeal was deemed submitted to this Court on March 13, 1990, and
decided on May 21, 1990. Petitioner's petition for rehearing was denied on June 15, 1990.
Forsythe won the election for county attorney of Rosebud County in November 1990.

¶47 We agree with the District Court that Petitioner failed to establish an actual conflict
based on Forsythe's campaigns for public office. We have previously stated that in order to
establish a violation of the right to assistance of counsel based on a conflict of interest, the
defendant must establish the existence of an actual conflict, not just a possibility of a
conflict, through a factual showing on the record. N. Wilson, ¶ 18. Other courts have
addressed claims of conflict based on similar facts and have concluded that such claims
fail to establish the existence of an actual conflict. For instance, in Garcia v. Bunnell (9th
Cir. 1994), 33 F.3d 1193, the Ninth Circuit held that defense counsel's plan to work for the
district attorney's office at the end of petitioner's trial did not create an actual conflict of
interest. The court concluded that the petitioner failed to establish that his counsel
"actively represented competing interests." Garcia, 33 F. 3d at 1198. In so holding, the
court stated, "[W]e generally presume that the lawyer is fully conscious of the overarching
duty of complete loyalty to his or her client." Garcia, 33 F.3d at 1198-99 (quoting Burger
v. Kemp (1987), 483 U.S. 776, 784, 107 S. Ct. 3114, 3120, 97 L. Ed. 2d 638). Similarly, in
United States v. Horton (7th Cir. 1988), 845 F.2d 1414, defense counsel in federal court
was a finalist for appointment as the United States Attorney for that district at the same
time as he counseled his client to accept a plea agreement. The Seventh Circuit held: "We
will not indulge in the presumption that a defense attorney who is being considered for a
position as United States Attorney is unable to represent a defendant in federal court to the

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best of his ability and with the defendant's best interests in mind." Horton, 845 F.2d at
1419.

¶48 The fact that Forsythe was a candidate for district court judge and county attorney
during his representation of Petitioner does not establish an actual conflict without further
support in the record. We agree with the analysis of Horton and will not presume that a
defense attorney who is campaigning for a position as a district judge or a county attorney
is unable to represent a defendant to the best of his or her abilities and with the defendant's
(2)
best interests in mind. Furthermore, the record does not disclose that Forsythe actively
represented competing interests. It is not entirely inconceivable that an unprincipled
candidate for county attorney or district judge might attempt to curry political favor with
the electorate by ensuring that an unpopular client does not escape conviction and then
publicizing his or her role in obtaining that conviction. However, Petitioner has not
presented us with any evidence that this occurred. A hypothetical conflict is insufficient;
in order to succeed, a defendant must establish the existence of an actual conflict, not just
the possibility of a conflict, through a factual showing on the record. N. Wilson, ¶ 18. As
the District Court observed, there is absolutely no evidence that Forsythe's representation
of Petitioner was an issue in either election. Forsythe's advertising of his success rate as
the county attorney of Rosebud County during his campaigns did not raise the issue of his
representation of Petitioner.

¶49 Although we conclude that Petitioner's claim of a conflict of interest based on
Forsythe's campaigns for public office fails because he did not establish the existence of
an actual conflict, we also note that Petitioner failed to establish any effect which resulted
from this alleged conflict, let alone an adverse effect. Once an actual conflict is shown, the
defendant need demonstrate only that some effect on counsel's handling of a particular
aspect of the trial was likely. N. Wilson, ¶ 18. As the State observes, Forsythe's campaign
activity during the period of his representation of Petitioner was insubstantial. Forsythe
lost his bid for a position as a district judge prior to Petitioner's trial. The only actions
undertaken by Forsythe with respect to his representation of Petitioner after filing for the
county attorney of Rosebud County position were an oral argument on Petitioner's direct
appeal and a petition for rehearing.

2. Death Sentence

¶50 Forsythe published a book in 1983 entitled Death Sentence: Murder on the Prairie. In
Death Sentence, Forsythe describes the prosecution of Dewey Coleman and Robert Nank

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(3)
for the kidnaping, rape, and murder of Peggy Harstad. The crimes occurred in Rosebud
County, and Forsythe became involved in their prosecution upon assuming the position of
Rosebud County Attorney in January 1975. Petitioner directs our attention to the
conclusion of Death Sentence, in which Forsythe wrote:

Criminal prosecution at its best creates a naked struggle between good and evil. The
good forces use their weapons of scientific investigation, exposure of the truth at
public trials and in the media, and the threat and use of punishment against the
wicked. The evil forces counter with distortion and lies, secrecy, delay and every
device that diminishes the good weapons. Can we doubt that God is involved in
these titanic clashes?

....

It is frustrating to see the evil force apparently succeed, as murderers and other
criminals go undetected or are freed on technicalities, and big lies masquerade
popularly as the truth. It is most unfortunate in capital cases to have the federal court
system duplicate the already redundant, multiple reviews of the state court. Since we
have so little faith in our courts, and since our courts have so little faith in
themselves, it is not surprising that our courts are so ineffective.

What a shame that Peggy Harstad's murderers could formulate and carry out her
death in a few hours, but our court system waits ten years or more to respond with
equal justice. But with our dedicated efforts, I do believe Dewey Coleman will hang.

John Forsythe, Death Sentence: Murder on the Prairie 89 (1983).

¶51 We agree with the District Court that Petitioner failed to establish that Forsythe
suffered from an actual conflict of interest based on his statements in the conclusion of
Death Sentence. Petitioner contends that Forsythe's hostile attitude toward the
representation of criminal defendants, legal "technicalities," and federal habeas corpus
review, as evidenced by the conclusion to Death Sentence quoted above, conflicted with
his representation of Petitioner. However, Forsythe's conclusion to Death Sentence is
simply not evidence that Forsythe "actively represented conflicting interests." See
Wereman, 273 Mont. at 249, 902 P.2d at 1011. Once again, Petitioner has established the
possibility of a conflict, but has completely failed to establish the existence of an actual
conflict "through a factual showing on the record." See N. Wilson, ¶ 18. In fact, a review

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of the record leads us to exactly the opposite conclusion. Forsythe's representation of
Petitioner manifests that he was neither biased against criminal defendants as a class nor
hostile to the use of "legal technicalities" in their defense. As the District Court noted:

Forsythe raised "technical" defenses on Petitioner's behalf. He argued that the
amended information failed to give Petitioner adequate notice of the offenses with
which he was charged; that the District court lacked jurisdiction over some or all of
the offenses; that Petitioner was denied a speedy trial; that the District Court
improperly denied a motion to suppress physical evidence seized at the time of
Petitioner's arrest in Billings; and that the District Court improperly denied a motion
to suppress statements made by Petitioner to Federal Bureau of Investigation special
agents following the arrest. Vernon Kills on Top I, 243 Mont. at 70-80, 82-85, 793
P.2d at 1282-89, 1290-92. The suggestion that the last page of Death Sentence in
some fashion reflects an unwillingness on Forsythe's part to advance defenses that
might be regarded by the lay public as technical cannot be reconciled with his
actions in this matter.

¶52 In sum, we conclude that the District Court did not err in denying Petitioner's
request for a new trial. Petitioner is not entitled to a new trial on the basis of newly
discovered evidence because that evidence was immaterial to his guilt or innocence.
The State did not violate its Brady obligation because the information it failed to
disclose was immaterial to Petitioner's guilt or innocence. Lastly, Petitioner was not
deprived of his right to effective assistance of counsel. Forsythe did not suffer from
an actual conflict of interest nor was Forsythe's performance so deficient as to fall
outside the wide range of reasonable professional assistance. Petitioner's criminal
liability for these charges has been tested by a district court trial, on direct appeal to
this Court, on an application for certiorari to the United States Supreme Court, in a
petition for postconviction relief in District Court, on appeal from the denial of his
petition to this Court, on remand to the District Court, and in the instant appeal.
Petitioner's convictions stand; he is not entitled to a new trial.

RESENTENCING CLAIMS

ISSUE THREE

¶53 Whether the District Court erred when it denied Petitioner's motion for a change of
venue?

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¶54 Petitioner contends that the District Court erred when it denied his motion for a
change of venue for the resentencing hearing because, "[a]lthough there was no jury to be
influenced by the emotionally charged atmosphere surrounding this case, there was a
serious danger that the District Court was improperly influenced by the prevailing
climate."

¶55 With regard to a motion for a change of venue, we have stated that an accused is
entitled to a change of venue when it appears there are reasonable grounds to believe that
the prejudice alleged actually exists and that by reason of the prejudice there is a
reasonable apprehension that the accused cannot receive a fair and impartial trial. State v.
Abe, 1998 MT 206, ¶ 34, 290 Mont. 393, ¶ 34, 965 P.2d 882, ¶ 34. We review a district
court's decision to deny a motion for a change of venue to determine whether the court
abused its discretion. Abe, ¶ 34.

¶56 Petitioner has not directed us to any evidence in the record that the prejudice he
alleged actually existed at the resentencing hearing. He claims that "the resentencing
hearing was revisited with the same air of hostility that the original trial and sentencing
proceedings carried." In support of this contention, Petitioner observes that the victim's
family and supporters were present during the proceedings as was the local media. The
presence of the victim's family and supporters and the local media are not reasonable
grounds for believing that prejudice in the form of an "air of hostility" actually existed.
Nor do we believe that the presence of the victim's family and the media affected the
District Court to the extent that there was a reasonable apprehension that Judge Larson
could not provide Petitioner with a fair and impartial resentencing hearing. The District
Court did not abuse its discretion in denying Petitioner's motion for a change of venue.

ISSUE FOUR

¶57 Whether the District Court erred when it admitted victim impact evidence?

¶58 Over Petitioner's objections, the District Court admitted three exhibits offered by the
State during Petitioner's resentencing. The State's Exhibit A consisted of a transcript of
Etchemendy's father's testimony given during Lester Kills On Top's resentencing hearing.
The State's Exhibit B was a videotape showing Etchemendy playing with his children. The
State's Exhibit C was a letter included in Petitioner's presentence investigation report, in
which Colleen Newton, Etchemendy's widow, expressed her thoughts about how the
murder of her husband had affected her and her children's lives.

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¶59 Petitioner contends that the admission of victim impact evidence at sentencing is
prohibited by Booth v. Maryland (1987), 482 U.S. 496, 107 S. Ct. 2529, 96 L. Ed. 2d 440.
Whether the admission of this evidence violates Booth is a question of law which we will
review for correctness. See State v. Clemo, 1999 MT 323, ¶ 5, 297 Mont. 316, ¶ 5, 992
P.2d 1263, ¶ 5.

¶60 Petitioner's claim that the admission of victim impact evidence violated Booth fails for
a number of reasons. In Booth, the Supreme Court held that the Eighth Amendment of the
United States Constitution prohibits a jury from considering victim impact evidence at the
sentencing phase of a capital trial. Booth is, by its very terms, only applicable to jury
sentencing in a death penalty case. Booth, 482 U.S. at 503, 107 S. Ct. at 2533 (holding that
victim impact evidence is inadmissible in a capital case because it creates a
constitutionally unacceptable risk that "the jury may impose the death penalty in an
arbitrary and capricious manner"). See also State v. Langford (1991), 248 Mont. 420, 437,
813 P.2d 936, 949; Vernon Kills on Top I, 243 Mont. at 103-04, 793 P.2d at 1305; Lester
Kills on Top I, 241 Mont. at 400, 787 P.2d at 350; State v. Dawson (1988), 233 Mont. 345,
360, 761 P.2d 352, 361; State v. Keith (1988), 231 Mont. 214, 237, 754 P.2d 474, 488.
Furthermore, we note that Booth has been expressly overruled by Payne v. Tennessee
(1991), 501 U.S. 808, 830, 111 S. Ct. 2597, 2611, 115 L. Ed. 2d 720.

¶61 Petitioner also contends that admission of Colleen Newton's letter and the videotape
of the victim playing with his children rendered the resentencing hearing fundamentally
unfair because he was not able to confront these witnesses. Whether Petitioner's right to
confront witnesses was violated is a question of law which we will review for correctness.
See Clemo, ¶ 5.

¶62 This claim also fails. We have previously upheld the admission of nontestimonial
victim impact evidence. See Langford, 248 Mont. at 437, 813 P.2d at 949 (letters);
Dawson, 233 Mont. at 359-60, 761 P.2d at 361 (victim impact statement in presentence
investigative report); Keith, 231 Mont. at 236, 754 P.2d at 488 (victim impact statement in
presentence investigation report). Furthermore, we have held that an offender's right to
confront witnesses and an offender's due process rights at sentencing are satisfied so long
as the offender is informed of the information that will be presented and is provided an
opportunity to rebut that information. State v. DeSalvo (1995), 273 Mont. 343, 350, 903
P.2d 202, 206. See also Williams v. New York (1949), 337 U.S. 241, 69 S. Ct. 1079, 93 L.
Ed. 2d 1337 (holding that a sentencing judge's consideration of out of court evidence did
not violate defendant's right to due process). Petitioner was informed of the information

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that the State planned to present at his resentencing hearing and was provided with ample
opportunity to respond to that information. The District Court did not err in admitting
victim impact evidence during Petitioner's resentencing.

ISSUE FIVE

¶63 Whether the District Court erred when it sentenced Petitioner?

¶64 The District Court resentenced Petitioner to 40 years for robbery, life imprisonment
for aggravated kidnaping, and life imprisonment for deliberate homicide, with the
sentences to run consecutively. The court denied Petitioner eligibility for parole with
respect to his conviction for aggravated kidnaping because "his conduct in connection
with such crime was an integral part of the events leading to the victim's death and
because [Petitioner] had the opportunity to take action to terminate the kidnaping and
thereby prevent the victim's brutal and needless death." The District Court also designated
Petitioner a dangerous offender for parole eligibility purposes, stating that he "represents a
substantial danger to other persons or society by reason of his participation in this brutal
criminal episode." The court noted that Petitioner is a recovering alcoholic and has been
alcohol-free since his incarceration and that several certified chemical dependency
counselors testified that they believe he is likely to remain sober. The court noted,
however, that these counselors also testified that there can be no guarantee of continued
sobriety. The court stated that "[i]n the absence of any assurance in this regard and in view
of the nature of the conduct for which [Petitioner] has been convicted, he represents a
substantial danger to other persons or society."

¶65 We review a criminal sentence for legality only (i.e.,whether the sentence is within the
statutory parameters). State v. Montoya, 1999 MT 180, ¶ 15, 295 Mont. 288, ¶ 15, 983
P.2d 937, ¶ 15. Petitioner claims that the application of this standard of review to him
violates federal and state constitutional prohibitions against ex post facto laws because the
standard of review at the time he committed the offenses was whether the court abused its
discretion. See, e.g., State v. Graveley (1996), 275 Mont. 519, 521, 915 P.2d 184, 186. We
disagree. A rule of decision is only prohibited as ex post facto if it punishes as a crime an
act which was not unlawful when committed, if it makes the punishment for a crime more
burdensome, or if it deprives the person charged with a crime of any defense available
under the law at the time the act was committed. State v. Leistiko (1992), 256 Mont. 32,
36, 844 P.2d 97, 99-100 (citing Beazell v. Ohio (1925), 269 U.S. 167, 46 S. Ct. 68, 70 L.
Ed. 216). Application of our clarified standard of review in Montoya does not punish

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Petitioner for a crime which was not unlawful when committed, does not make his
punishment more burdensome, and does not deprive him of a defense to the crime charged.

A. Presentence Investigation Report

¶66 At the end of his resentencing hearing, Petitioner objected to the evaluation and
recommendation contained in his presentence investigation report in that it was "not based
upon the factual information provided to the probation officer," "it's biased in favor of the
State," "it's based on hearsay and uninvestigated reports," and that his criminal history data
was not verified. The District Court stated that "[a]s an objection, I overrule it. I will
consider it as argument." The court accepted the report. On appeal, Petitioner contends
that he was prejudiced by a biased and partial probation officer who wrote his presentence
investigation report.

¶67 A convicted defendant has a due process guarantee against a sentence predicated on
misinformation. State v. Bauer, 1999 MT 185, ¶ 21, 295 Mont. 306, ¶ 21, 983 P.2d 955, ¶
21. Under the constitutional guarantee of due process, an offender must be given an
opportunity to explain, argue, and rebut any information, including presentencing
information, that may lead to a deprivation of life, liberty, or property. See Bauer, ¶ 22.
However, due process does not protect against all misinformation--rather, the inquiry turns
on whether the sentence was premised on materially false information. Bauer, ¶ 22. An
offender is under an affirmative duty to show that the alleged misinformation is materially
inaccurate or prejudicial before a sentence will be overturned by this Court. Bauer, ¶ 22.
Furthermore, we have recognized that "where a sentencing court is found not to have
relied on improper or erroneous information in sentencing a criminal defendant, there is
'nothing to correct or rebut' and, therefore, that the defendant is not entitled to resentencing
on due process grounds." Bauer, ¶ 24 (quoting Coleman v. Risley (1983), 203 Mont. 237,
250-51, 663 P.2d 1154, 1162). Accordingly, in order to succeed on his claim, Petitioner
must establish that the District Court relied upon materially inaccurate or prejudicial
information in sentencing him.

¶68 Petitioner is not entitled to resentencing on due process grounds. Petitioner was
provided with his presentence investigation report prior to the sentencing hearing and the
court provided him the opportunity to explain, argue, and rebut the information contained
therein. Petitioner's counsel extensively cross-examined the author of the report, Probation
and Parole Officer Margaret Corbett, and his counsel offered evidence and testimony in
support of Petitioner's position. Petitioner has not established that the court relied on any

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misinformation in sentencing him, let alone any material misinformation. Therefore,
Petitioner is not entitled to resentencing on due process grounds--there is nothing in the
(4)
District Court's sentence to correct or rebut.

B. Parole Eligibility

¶69 Petitioner insists that the District Court erred when it denied him eligibility for parole
with respect to his conviction for aggravated kidnaping. The court denied Petitioner
eligibility for parole because "his conduct in connection which such crime was an integral
part of the events leading to [Etchemendy's] death and because [Petitioner] had the
opportunity to take action to terminate the kidnaping and thereby prevent [Etchemendy's]
brutal and needless death."

¶70 We conclude that the District Court did not err when it denied Petitioner eligibility for
parole with respect to his conviction for aggravated kidnaping. Pursuant to § 46-18-202
(2), MCA (1987), a district court may deny a defendant eligibility for parole whenever it
imposes a sentence of imprisonment in the state prison for a term exceeding one year. If
the district court chooses to deny eligibility, the court shall state its reasons in writing. The
District Court abided by the statutory requirements. The court imposed a sentence for a
term of more than one year and stated its reasons for denying Petitioner parole eligibility.
Furthermore, the factual basis for the court's reason is not clearly erroneous. Petitioner's
conduct in connection with the kidnaping was an integral part of the events leading up to
the Etchemendy's death and he did have the opportunity to take action to terminate the
kidnaping and prevent Etchemendy's death. As the District Court noted in its findings of
fact, Petitioner drove the car in which Etchemendy was held from Miles City, Montana, to
Ashland, Montana; he heard Etchemendy pounding on the trunk of the car in Gillette,
Wyoming, and instructed Lavonne Quiroz to move the vehicle to an alley where any noise
made by Etchemendy would be less likely to be heard; and he took no action to stop
Lester Kills On Top and Bull Coming after they left the bar in Gillette with the disclosed
purpose of murdering Etchemendy.

C. Dangerous Offender

¶71 Petitioner contends that the District Court erred when it designated him a dangerous
offender for purposes of parole eligibility because its designation was unsupported. The
District Court designated Petitioner a dangerous offender for parole eligibility purposes,
stating that he "represents a substantial danger to other persons or society by reason of his

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participation in this brutal criminal episode and for the reasons stated in paragraph 11 of
the Findings of Fact." In paragraph 11, the court found that Petitioner is a recovering
alcoholic and has been alcohol-free since his incarceration and that several certified
chemical dependency counselors testified that they believe he is likely to remain sober.
The court noted, however, that these counselors also testified that there can be no
guarantee of continued sobriety. The court stated that "[i]n the absence of any assurance in
this regard and in view of the nature of the conduct for which [Petitioner] has been
convicted, he represents a substantial danger to other persons or society."

¶72 We conclude that the District Court's dangerous offender designation was adequately
supported. We review a district court's dangerous offender designation to determine
whether the court abused its discretion. State v. Eichenlaub (1995), 272 Mont. 332, 338,
901 P.2d, 90, 94. The court determined that Petitioner represented a substantial danger to
other persons or society, thus making him ineligible for nondangerous offender status
pursuant to § 46-18-404(1)(b), MCA (1987). The court cited to specific facts taken from
the record when giving its reasons why Petitioner represented a substantial danger. See
State v. Collier (1996), 277 Mont. 46, 58, 919 P.2d 376, 384 (stating that "a district court
must give specific facts taken from the record of the case as reasons for making its
decision"). The facts taken from the record in support of the court's designation are not
clearly erroneous. Petitioner does not contest the fact that he participated in a brutal
criminal episode, that he is an alcoholic, that alcohol played a role in the offenses, and that
there is no guarantee of his continued sobriety.

D. Maximum Sentences to be Served Consecutively

¶73 Petitioner contends that the District Court "violated the principles of inter and intra
case proportionality" when it sentenced him to the maximum allowable sentence for each
conviction and ordered the sentences to run consecutively. The District Court sentenced
Petitioner to 40 years for robbery, life imprisonment for aggravated kidnaping, and life
imprisonment for deliberate homicide, with the sentences to run consecutively.

¶74 As stated above, we review sentences for legality only. Montoya, ¶ 15. The District
Court did not exceed its statutory authority in sentencing Petitioner. Petitioner's sentences
all fall within the applicable statutory parameters. See § 45-5-401(2), MCA (1987)
(robbery punishable by up to a 40-year term of imprisonment); § 45-5-303(2), MCA
(1987) (aggravated kidnaping punishable by death, life imprisonment, or up to 100 years
imprisonment); § 45-5-102(2), MCA (1987) (deliberate murder punishable by death, life

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imprisonment, or up to 100 years imprisonment). Accordingly, we hold that the court
lawfully sentenced Petitioner. To the extent Petitioner's complaints relate to the equity of
his sentence, those complaints are properly addressed to the Sentence Review Division of
this Court. See State v. Gordon, 1999 MT 169, ¶ 54, 295 Mont. 183, ¶ 54, 983 P.2d 377, ¶
54.

¶75 Affirmed.

/S/ JIM REGNIER

We Concur:

/S/ J. A. TURNAGE

/S/ JAMES C. NELSON

/S/ W. WILLIAM LEAPHART

Justice Terry N. Trieweiler concurring and dissenting.

¶76 I concur with the majority's resolutions of Issues 1 through 4.

¶77 I dissent from the majority's conclusion that there was substantial evidence to support
the District Court's determination that Vernon Kills On Top should be ineligible for parole.

¶78 First of all, it should be noted that eligibility for parole does not guarantee parole.
Section 46-23-201(1), MCA (1987), conditions parole on the parole board's determination
that, "there is reasonable probability that the prisoner can be released without detriment to
the prisoner or to the community. . . ." Furthermore, subparagraph (2) of the same statute
provides that: "[a] prisoner shall be placed on parole only when the board believes that he
is able and willing to fulfill the obligations of a law-abiding citizen."

¶79 The issue then is whether there is something about a defendant's background which
presents such a threat to society that the parole board should be precluded from ever
considering whether that person can "fulfill the obligations of a law-abiding citizen." In
this case, the District Court concluded that no matter how long Vernon Kills On Top is
incarcerated, and no matter how great the degree of his rehabilitation, the parole board

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should never be allowed to even consider his suitability for reentry to society because of
the nature of his crime and the fact that no one can guarantee that he will never drink again.

¶80 Section 46-18-202(2), MCA (1987) provides that the District Court may restrict a
Defendant's eligibility for parole "[i]f the Court finds that the restriction is necessary for
the protection of society . . . ."

¶81 Section 46-18-404, MCA (1987) provides that Vernon Kills On Top was eligible to be
designated a nondangerous offender if he did "not represent a substantial danger to other
persons or society." The District Court designated the Defendant in this case ineligible for
parole based on its conclusion that his conduct was an integral part of the events leading to
the victim's death and because he did not prevent the victim's death. The District Court
designated the Defendant a dangerous offender because of his participation in the events
leading to the victim's death and because there was no testimony that the Defendant's
sobriety could be guaranteed in the future.

¶82 The District Court found as a fact that Defendant participated in the battering and
robbery of the victim and used the victim's credit card to purchase gas. However, those
findings are not supported by the record of the Defendant's trial. After thorough review of
that record, this Court pointed out that the State's only witness:

[S]tated that at no time while Etchemendy was in the trunk of the group's vehicle
did Vernon ever strike him, injure him, or take anything of monetary value from
him. She agreed that he never initiated talk of murder other than in response to
Lester and then said "later."

Kills On Top v. State (1996), 279 Mont. 384, 406, 928 P.2d 182, 196.

The only reliable evidence is that Diane Bull Coming confiscated Etchemendy's
credit card and that Diane and Lester cashed Etchemendy's checks and divided the
money. While a portion of the money was given to Vernon, he misplaced it, and
even that portion was subsequently retrieved by Diane. Neither is the dissent correct
when it repeats the allegation from this Court's previous opinion that Vernon did
nothing in the pre-murder stages to prevent the homicide. According to even Diane's
testimony, Vernon repeatedly stalled suggestions that Etchemendy be murdered.

Kills On Top, 279 Mont. at 408, 928 P.2d at 197.

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¶83 The District Court, as did the dissent in Kills On Top v. State, clung to discredited
facts reported in this Court's original opinion found at State v. Vernon Kills On Top
(1990), 243 Mont. 56, 793 P.2d 1273.

¶84 Upon thorough review of the actual record this Court concluded in Kills On Top II
that:

Based on even Diane's testimony, Vernon Kills On Top was not present when
Etchemendy was killed, and he did not participate in any act which caused
Etchemendy's death. While she did testify that on two separate occasions he agreed
that something would have to be done with the victim, she also testified that he
sought to postpone any further harm to the victim and that after his expression of
reluctance, she and Lester took the victim to another location where Lester
performed the murderous act himself.

Kills On Top, 279 Mont. at 405, 928 P.2d at 195.

However, while Etchemendy was in the trunk, it was Vernon who let him out to go
to the bathroom; Vernon who checked on his condition; and Vernon who incurred
his brother's wrath by removing Etchemendy's blindfold so that he could go to the
bathroom

Kills On Top, 279 Mont. at 408, 928 P.2d 197.

¶85 Therefore, when the District Court concludes that no matter how long the Defendant
has been imprisoned, and no matter the degree of his rehabilitation, he will still be "a
substantial danger to other persons" and his lifetime imprisonment is necessary for the
"protection of society" and then bases those conclusions on findings that the Defendant
battered and robbed his victim, used his credit card to purchase gas, and did nothing to
avoid his death, the District Court's conclusions were based on findings that are clearly
erroneous.

¶86 Furthermore, the District Court's conclusion that Defendant can never be eligible for
release because no one can guarantee that he will never drink again is completely
arbitrary, ignores the best evidence available regarding an alcoholic's rehabilitation and
condemns every criminal defendant who has ever had an associated drinking problem to a
denial of parole.

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¶87 No court could ever be presented with stronger evidence of an alcoholic's
rehabilitation than was presented to the District Court in this case. Four different chemical
dependency or substance abuse counselors testified at the Defendant's sentencing hearing.
None expressed the remotest concern that Vernon Kills On Top would resume drinking if
released from prison.

¶88 Miles Finly, a certified chemical dependency counselor at Montana State Prison
described the Defendant as a positive role model for other inmates who would make a
model citizen if released from prison.

¶89 Ginger Faver, who is also a certified chemical dependency counselor at Montana State
Prison, described the Defendant as "an inspiration" to other inmates and stated that she
"would be very comfortable having Vern be a neighbor." She said that she trusted him and
would have no qualms about his release from prison.

¶90 William Martin is a chemical dependency counselor at Montana State Prison. He
described his selection of the Defendant as an assistant to help in the rehabilitation of
others and explained that he has received treatment to help avoid relapsing to alcohol
abuse that was unavailable outside the prison. He testified that his rehabilitation was "[a]s
good as or as better as anybody else I have ever seen." He described the Defendant as
"head and shoulder above any inmate I know." He stated that if released from prison the
Defendant would be a "model citizen. I have no fear of him. He would be a wonderful
man to be in our society. I believe that this man would save lives for what he has already
gone through, and what he can do I think is just amazing."

¶91 Ken Ingle is the Substance Abuse Program Supervisor at Montana State Prison, who
has conducted close to 2000 alcohol assessments in parol and probation cases and 3500
alcohol assessments overall. He testified that, "of the men that I met since I have been at
Montana State Prison, Vern Kills On Top is what I hope that we, as taxpayers, can bring
about through our correctional system."

¶92 None of the alcohol or drug counselors to whom the Defendant has been exposed
during the over ten years of his imprisonment gave the slightest suggestion that he would
return to alcohol consumption if he was released from prison.

¶93 In addition to the counselors referred to in the preceding paragraphs, the bakery
manager, with whom Defendant has worked during his incarceration, and his housing unit

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manager were called as witnesses. Other prison employees were interviewed as part of the
presentence investigation. All were unanimous in their praise of the Defendant as a model
inmate with no infractions in over ten years who performed a constructive role at the
prison and who by all appearances has been rehabilitated from a life set in motion by his
own childhood of abuse, neglect, and poverty, and his adulthood dependence on alcohol.

¶94 In sum, more could not have been shown to demonstrate that at least at some point in
his life, Vernon Kills On Top should be allowed to appear before the parole board and
give them the opportunity to consider whether after many years of imprisonment,
rehabilitation, and positive contributions to the prison administration and the rehabilitation
of other inmates he could be released "without detriment to the prisoner or to the
community" and "that he is able and willing to fulfill the obligations of a law abiding
citizen."

¶95 The District Court ignored the evidence presented at the Defendant's sentencing
hearing and resurrected discredited findings regarding the Defendant's participation in the
events which led to his imprisonment in order to support its conclusion that he should be
ineligibile for parole. Therefore, I conclude that that conclusion was based on findings
which are not supported by substantial evidence and are clearly erroneous. For the reasons
set forth in this opinion, I dissent from the majority's conclusion to the contrary. I would
reverse the District Court's determination that at no time during the remainder of his life,
regardless of how he lives the remainder of his life, should Vernon Kills On Top be
eligible to rejoin society.

/S/ TERRY N. TRIEWEILER

1. The Supreme Court has not decided whether the Cuyler standards apply to conflict of interest claims
outside of the multiple client representation context. Federal appellate courts are divided. Compare Beets
v. Scott (5th Cir. 1995), 65 F.3d 1258, 1265, cert. denied 517 U.S. 1157, 116 S. Ct. 2516, 135 L. Ed. 2d
204 (limiting Cuyler to cases of multiple representation), with United States v. Moree (2d Cir. 2000),
220 F.3d 65, 69 (applying Cuyler standards to defendant's claim that conflict arose between himself and
his counsel after defendant criticized his counsel's performance), and United States v. Del Muro (9th Cir.
1996), 87 F.3d 1078, 1080 (applying Cuyler to conflict of interest claim not involving multiple
representation). We have applied Cuyler to defendants' claims of ineffective assistance of counsel due to
conflicts of interest which do not involve multiple representation. See, e.g., State v. Wereman (1995),
273 Mont. 245, 902 P.2d 1009.

2. As the District Court noted, this presumption would eliminate a sizable portion of the defense Bar
from seeking public office.

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3. For a description of the Coleman prosecution, see State v. Coleman (1991), 249 Mont. 128, 814 P.2d
48.

4. We also note that Petitioner has not shown that Officer Corbett did not comply with the requirements
of § 46-18-112, MCA. Section 46-18-112, MCA, provides that "whenever an investigation is required,
the probation officer shall promptly inquire into and report upon: (a) the defendant's characteristics,
circumstances, needs, and potentialities; (b) the defendant's criminal record and social history; (c) the
circumstances of the offense; (d) the time of the defendant's detention for the offenses charged; (e) the
harm caused, as a result of the offense, to the victim, the victim's immediate family, and the community;
and (f) the victim's pecuniary loss, if any."

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