Kills on Top v. State

No. 94-131
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995

LESTER KILLS ON TOP,
Petitioner and Appellant,
-vs-
STATE OF MONTANA,
Respondent and Respondent.

APPEAL FROM: District Court of the Sixteenth Judicial District,
In and for the County of Custer,
The Honorable Thomas A. Olson, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Richard J. Carstensen, Attorney at Law,
Billings, Montana
Stephanie Ross, Attorney at Law,
Point Roberts, Washington (argued)

For Respondent:
Hon. Joseph P. Mazurek, Attorney General;
Clay R. Smith, Solicitor, Helena, Montana
(argued)

Submitted: May 9, 1995
JUL171995 Decided: July 17, I995
Filed:
Justice W. William Leaphart delivered the Opinion of the Court.

Lester Kills On Top (Appellant) appeals from an order of the
Sixteenth Judicial District Court, Custer County, denying his
petition for postconviction relief and writ of habeas corpus. We
affirm in part, reverse in part, and remand for resentencing.
We restate the issues Appellant raises as follows:
1. Must Appellant's convictions or sentences be reversed
because the State failed to disclose certain materials under the
commands of Brady v. Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194,
10 L.Ed.2d 215?
2. Did an abuse of process or outrageous governmental conduct
occur which requires the granting of Appellant's petition?
3. Did Appellant receive ineffective assistance of counsel
during his trial?
4. Did Appellant receive ineffective assistance of counsel
during the penalty phase proceedings?
5. Did Appellant receive ineffective assistance of counsel
during the course of his direct appeal to this Court?
6. May Montana courts apply a procedural bar to
postconviction claims that could have been raised on direct appeal?
7. Was Appellant denied the right to a fair trial?
8. Was Appellant denied the right to a fair and impartial
jury?
9. Did the prosecutor commit misconduct during Appellant's
trial?
10. Did the State fail to corroborate the testimony of an
2
I accomplice witness?
11. Was Appellant denied the right to confront the witnesses
against him?
12. Were Appellant's rights violated by the presence of armed
officers next to his counsel table during his trial?
13. Were Appellant's rights violated because he was not
convicted by a unanimous jury?
14. Did the jury instruction regarding voluntary intoxication
create a conclusive presumption of guilt?
15. Was the jury instruction regarding inference of criminal
mental state unconstitutional?
16. Does Montana's death penalty scheme unconstitutionally
prohibit the sentencer from considering a single mitigating factor
sufficient to merit leniency?
17. Was Appellant subjected to double jeopardy?
18. Did this Court and the sentencing court misapply the
statutory capital sentencing factors requiring leniency?
19. Did the trial court err in disclosing a psychological
report to the prosecution?
20. Did the District Court err in dismissing Appellant's
habeas corpus petition?
Background
At Appellant's trial, testimony was offered that Appellant,
his brother Vernon Kills On Top, Diane Bull Coming and Doretta Four
Bear encountered John Martin Etchemendy, Jr. sometime after
midnight on October 17, 1987, outside a of bar in Miles City,

3
Montana. One of the group offered Etchemendy a ride from the bar.
The group proceeded south towards Ashland, Montana. Testimony was
given that Appellant and his brother beat Etchemendy severely, that
Etchemendy's wallet and some checks were stolen, and that
Etchemendy was forced to strip and was placed in the trunk of the
car.
When the group arrived in Ashland, they picked up Lavonne
Quiroz, an acquaintance of Vernon Kills On Top. The group
proceeded to Rabbit Town, a community on the Northern Cheyenne
Reservation and stopped there. Four Bear testified that she
escaped from the group in Rabbit Town by running to a friend's
house. The remaining individuals (Appellant, Vernon Kills On Top,
Bull Coming, and Quiroz) drove south toward Gillette, Wyoming with
Etchemendy in the trunk of the car. Testimony was given at trial
that Appellant finally killed Etchemendy and dumped his body in an
abandoned building outside of Gillette. A more complete statement
of the facts regarding the criminal activity in this case may be
found in State v. Kills On Top (19901, 241 Mont. 378, 787 P.Zd 336
(Kills On Top I).
Appellant was tried before a jury and convicted of robbery,
aggravated kidnapping, and deliberate homicide. He received a 40-
year sentence for the robbery conviction and the death penalty for
each of the other two convictions. He appealed his convictions and

sentences to this Court, and they were affirmed in Kills On Tou I.
Appellant filed a petition for postconviction relief and then
filed an amended petition for postconviction relief and a petition

4
for a writ of habeas corpus on January 14, 1991. The District
Court dismissed his petition for a writ of habeas corpus and
granted the State summary judgment on the majority of his other
claims because they could have been raised on direct appeal. The
District Court ordered an evidentiary hearing on Appellant's
remaining claims which were: ineffective assistance of counsel,
outrageous governmental conduct, and failure to disclose Bradv
material. On May 3, 1993, the District Court entered its order
denying Appellant's remaining claims for postconviction relief.
This appeal followed. Additional facts appear in the remainder of
this opinion where necessary.
Issue 1
Must Appellant's convictions or sentences be reversed because
the State failed to disclose certain Bradv materials?
Bradv requires the prosecution to give the criminal defendant
all requested exculpatory information material either to the
defendant's guilt or to punishment. Brady, 373 U.S. at 87. The
prosecution also must deliver to the defendant all evidence
significant for impeachment purposes. United States v. Bagley

(1985), 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 48l.. In order to
require reversal of a defendant's conviction or sentence, the Bradv
violation must relate to material information. Recently in Kyles
v. Whitley (1995), 63 USLW 4303, the United States Supreme Court
reiterated the standard for determining materiality. The Court
held that the defendant must show that there is a reasonable
probability that had the information been provided, the result

5
would have been different or, stated another way, is it a trial
resulting in a "verdict worthy of confidence"? Kvles, 63 USLW at
4308. The Court stated that:
A "reasonable probability" of a different~ result is
accordingly shown when the Government's evidentiary
suppression "undermines confidence in the outcome of
trial." Bacrlev, 473 U.S., at 678.
Kvles, 63 USLW at 4308. The Court also emphasized that the effect
of the suppressed &s&y material must be considered collectively
rather than on an item-by-item basis. w, 63 USLW at 4308.
With these principles in mind, we examine Appellant's Brady error
claims to determine which claims demonstrate that information
should have been provided to Appellant before examining the Bradv
information which should have been provided as a whole to determine
whether Appellant meets the materiality test announced in Baqlev
and reaffirmed in Kales.
A. What information should have been urovided?
1. Diane Bull Comina's raoe alleuation
Appellant ,first claims that the State failed to produce an
allegation made by Diane Bull Coming that she was raped by a jailer
while in custody for charges related to this case. Bull. Coming
agreed to a plea bargain with the State prior to Appellant's trial
and testified for the State in Appellant's trial. Appellant argues
that Bull Coming's rape allegation could have been used to impeach
her by showing witness tampering or intimidation, by showing her
lack of credibility if the accusations were false, or by attacking
her credibility in reference to her plea agreement. The State
argues that it is questionable whether this information would have
6
been admissible at trial and argues that Appellant still fails to
meet the materiality requirement if the information is considered.
The State concedes that evidence tending to show witness bias may
be admissible. This information should have been furnished to the
Appellant pursuant to Bradv and Bacrley. Thus, we will consider it
in our discussion of materiality.
2. Bull Cornins's criminal record
Appellant contends that he should have been provided with
records of Bull Coming's prior convictions for misdemeanor assault,
misdemeanor theft, and other misdemeanors. The State argues that
this information does not meet the materiality requirement. This
information should have been furnished to the Appellant pursuant to
Bradv and Baslev. We will consider it in our discussion of
materiality.
3. Bull Cornins's arior phvsical altercations
Appellant argues that the State should have discovered and
provided him with information regarding Bull Coming's past physical
altercations. However, there has been no indication that the State
possessed such information and insufficient evidence that the State
could or should have obtained this information through a reasonably
diligent inVeStigatiOn. We will not consider this information in
our discussion of materiality.
4. Autonsv ohotosraohs and terminoloqv
Next, Appellant contends that the State failed to provide him
with autopsy photographs of Etchemendy showing his genital area.
Appellant argues that this evidence would be important to support
a defense theory that Bull Coming had castrated Etchemendy.
Appellant also contends that it was Bradv error for the State to
fail to explain what institicial edema, a term used in the autopsy
report, means. Appellant's argument fails since the autopsy report
disclosed that Etchemendy had normal genitalia. The autopsy report
stated that on microscopic examination, Etchemendy had institicial
edema or a swelling in the tubules of the testes. This swelling
would be consistent with an injury to the groin sustained during a
fight or a beating, such as the "fight" between Appellant and
Etchemendy and the beatings administered by Appellant and his
brother. An explanation of institicial edema would not have been
exculpatory. A photograph of Etchemendy's genital area would not
have been exculpatory nor would it have been useful for impeachment
purposes (a photograph would not have shown swelling detected only
upon microscopic examination). We will not consider this
information in our discussion of materiality.

5. Metal wipe
Appellant argues that the State's introduction of a metal pipe
into evidence falls under a Bradv claim because the pipe should not
have been introduced and if it had not, then the lack of the pipe
would have been exculpatory. Appellant's argument is not properly
raised in a Brady context. Appellant makes no contention that the

State failed to inform him that the pipe would be introduced into
evidence. We will not consider this argument in our discussion of
materiality.
6. Jack Daniels bottle
Quiroz, another individual charged in connection with this
case, testified that she had seen a bottle of Jack Daniels with
blood on it. Appellant claims that the State violated Brady by
failing to introduce this bottle because Bull Coming drank Jack
Daniels. We find this argument unpersuasive as there is no
indication that the State ever found or had possession of this
bottle despite an extensive search for evidence. We wil.1 not
consider this argument in our discussion of materiality.
7. 131111 Coming‘s allesedlv perjured testimony
Appellant contends that the State knowingly relied on, and
emphasized, what he characterizes as Bull Coming's perjured
testimony. This argument is not properly raised in the Bradv
context since, prior to trial, Appellant had access to Bull
Coming‘s statements regarding the crime. We will not consider this
argument in our discussion of materiality.
B. Must Aooellant's convictions be reversed for material Brady
error?
Moving then to a discussion of materiality, we concluded above
that two items merit consideration: the failure to disclose Bull
Coming's rape allegation and the failure to disclose Bull Coming's
criminal history. Appellant could have used Bull Coming's rape
allegation to attempt to cast some doubt on Bull Coming's veracity
or to show her propensity to manipulate others. Appellant could
have used Bull Coming's assault and theft convictions to support
his argument that Bull Coming had a violent nature and was the

9
dominant force in the robbery and in Etchemendy's death.
When viewing this information as a whole, we hold that there
is not a reasonable probability that had this information been
introduced, the outcome (i.e., the verdict) would have been
different. Bull Coming was an important witness for the State, but
she was not alone. Four Bear testified to seeing Appellant and his
brother beat and kick Etchemendy at two different stops. Four Bear
also testified that Etchemendy was stripped and placed in the trunk
of the car. Quiroz testified to seeing Etchemendy in a battered
condition, seeing Appellant washing blood off oft his hands, and
seeing Appellant threaten Etchemendy with a metal pipe. Lorraine
Four Colors testified that Appellant told her that he had killed
Etchemendy and that he and his brother had beaten him. Despite the
State's failure to disclose Bull Coming's rape allegation and prior
criminal record, our confidence in the verdicts is not undermined.
Thus, we affirm the District Court's denial of Appellant's Bradv
claims in regard to his conviction.
C. Must Appellant's sentences be vacated for material Bradv error?
Next, the Bradv information must be analyzed for materiality
in considering the punishment levied. Brady, 373 U.S. at 87.
Focusing on Bull Coming's undisclosed rape allegation and on Bull
Coming's undisclosed criminal record, which included convictions
for misdemeanor assault and theft, we conclude that our confidence
in the sentence is undermined. The undisclosed information
regarding Bull Coming could have been used to support Appellant's
contention that he was manipulated by Bull Coming. Section 46-18-

10
304, MCA, sets forth the mitigating factors to be considered by a
court contemplating the imposition of a death sentence. One
enumerated factor is that the defendant acted under extreme duress
or under the substantial domination of another person. Section 46-
18-304(3), MCA.
We cannot say that it is more likely than not that the
undisclosed information would have changed the sentences imposed in
Appellant's case. However, the appropriate test is whether there
is a reasonable probability that the outcome of the sentencing
hearing (i.e., Appellant's sentences) would have been different.
We hold that there is a reasonable probability that, had Bull
Coming's rape allegation and criminal record been provided to
Appellant, the result of the sentencing proceeding could have been
different. Therefore, we vacate Appellant's sentences imposed for
robbery, aggravated assault, and deliberate homicide and remand to
the trial court for resentencing.
Issue 2
Did an abuse of process or outrageous governmental conduct
occur which requires the granting of Appellant's petition?
Appellant raises several claims of outrageous governmental
conduct or abuse of process which could have been addressed or
remedied at the trial court level. The State argues that since
these claims could have been raised at the trial level or on

appeal, they are barred from consideration in postconviction
proceedings pursuant to 5 46-21-105(2), MCA. However, the District
Court ruled that these claims were not procedurally barred, and the

11
State has not cross-appealed that ruling. Thus, we address the
merits of Appellant's contentions.
In his petition, Appellant alleged that his rights were
violated by outrageous governmental conduct and abuse of process.
He contends that: the State manipulated jurisdiction and witnesses
to ensure the possible application of the death penalty; the
Wyoming State Crime Lab handled the evidence; the State did not
discover a bloody Jack Daniels bottle and introduced a metal pipe
which was not in the same condition at trial as it was when found;
and the State relied on, and emphasized, the "facially invalid"
testimony of Bull Coming.
Appellant argues that the State conspired with Wyoming and
federal officials to ensure that his case would be tried in Montana
where the death penalty could be applied. Appellant was convicted
of robbery, aggravated kidnapping, and deliberate homicide under
the felony murder rule based on the underlying felony of aggravated
kidnapping. In Kills On Tou I, 787 P.2d at 343, we held that the
State of Montana had jurisdiction to try Appellant for the crimes
charged. As long as the State has jurisdiction over the crimes,
the decision to bring charges in state court rather than federal
court or one state's courts rather than another's should be left to
the discretion of the prosecutor. We hold that the decision to

bring charges in Montana does not constitute an abuse of process or
outrageous conduct.
Appellant also argues that the State manipulated witnesses by
allowing Four Bear and Quiroz to be charged in federal court and by

12
plea bargaining with Bull Coming. Four Bear and Quiroz were
substantially less culpable than the other participants and their
prosecution in the federal system was suited to their degree of
culpability. The prosecutor reasonably exercised his discretion in
offering Bull Coming her plea bargain in light of her testimony in
Appellant's trial and Vernon Kills On Top's trial. We hold that
the decisions to prosecute Four Bear, Quiroz, and Bull Coming in
the manner chosen, and to use their testimony, does not amount to
an abuse of process or outrageous governmental conduct.
Appellant next contends that the State relied on the "facially
perjured" testimony of Bull Coming. The United States Supreme
Court has held that introducing and relying on testimony which the
prosecutor knows is perjured requires the reversal of a conviction.
Napue v. Illinois (1959), 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d
1217. In Napue, the defendant was charged with murder in the
shooting death of an off-duty police officer during an attempted
robbery. One of defendant's co-conspirators, who had already been
sentenced to 199 years in prison for his part in the crime,
testified against the defendant. The prosecutor had promised the
co-conspirator that he would attempt to have the co-conspirator's
sentence reduced if he testified against the defendant. During the
trial, the prosecutor asked the co-conspirator if he had received
any promise of consideration from the prosecutor in return for his
testimony. The co-conspirator replied that he had not. Although
the prosecutor knew that this testimony was false, the prosecutor
did nothing to correct it. m, 360 U.S. at 268.

13
In the present case, Bull Coming testified that while in
Wyoming, Appellant beat Etchemendy with a rock, handed her the
rock, and that she then dropped the rock on the spot and returned
to the car. She testified that Appellant then returned to the car.
The rock, however, was later discovered at a Montana residence
where Appellant's brother and Quiroz had stopped after the murder.
Appellant argues that Bull Coming's testimony that she dropped the
rock in Wyoming is therefore perjury on its face. We disagree.
Bull Coming simply testified that she dropped the rock in
Wyoming. She did not attempt to explain what happened to the rock
after she dropped it. We cannot say that her testimony amounts to
perjury on its face. Further, there is no indication that the
prosecution knew that Bull Coming's testimony was false. The
prosecutor's reliance on Bull Coming's testimony is quite different
from the situation involved in Nanue. There is insufficient
evidence to consider Bull Coming's testimony perjurious. Thus, we
hold that the prosecution's use of her testimony regarding the rock
does not amount to outrageous governmental conduct or an abuse of
process.
Appellant further argues that it was an abuse of process or
outrageous governmental conduct for the Wyoming State Crime Lab to
analyze evidence used in Appellant's prosecution in Montana.
Appellant cites no authority, nor does our research reveal any,
which holds that the use of another state's investigative unit
amounts to an abuse of process or outrageous governmental conduct.
Sharing resources in this case was rational. Early in the

14
investigation Wyoming authorities had key physical evidence in
their possession, including Etchemendy's body. For the sake of
continuity, it made sense for the same lab to continue with the
investigation. We hold that the use of the Wyoming State Crime Lab
for Appellant's prosecution in Montana did not constitute an abuse
of process or outrageous governmental conduct.
Appellant next contends that the State failed to find a blood-
stained bottle of Jack Daniels and that the State introduced the
metal pipe at trial in a different condition than that in which it
had been found. Appellant produced no evidence that the failure to
find the bottle was an intentional omission on the part of the
State. The State launched an exhaustive search for evidence in
this case; the failure to discover the bottle does not amount to
outrageous conduct or an abuse of process. Further, an officer
testified that when the metal pipe was found, it had some substance
on its surface. When the pipe was examined by the crime lab, an
investigator removed the residue with a swatch in order to test its
content. The residue was determined to be human blood. The
prosecution sufficiently established the chain of evidence
regarding the pipe and satisfactorily explained that the change in
the pipe (absence of the substance) was due to testing performed by
investigators. We hold that in this instance it was not an abuse
of process or outrageous governmental conduct to introduce the pipe
in a condition different than that in which it had been found.
Finally, Appellant raises four other theories under this
issue: that the trial judge failed to disqualify himself, that the

15
courtroom was racially segregated, and that the State failed to
reveal Bull Coming's criminal convictions and rape allegation.
However, Appellant did not raise these theories in his petition for
postconviction relief under his abuse of process/outrageous
governmental conduct claims and did not raise these theories under
his abuse of process/outrageous governmental conduct claims when he
submitted his proposed findings of .fact and conclusions of law to
the District Court. The District Court did not address these
theories in the context of an abuse of process or outrageous
governmental conduct claim. On appeal, an appellant may not change
the bases for his argument. State v. LaPier (1990), 242 Mont. 335,
345-46, 790 P.2d 983, 989. Thus, we will not address Appellant's
new theories under this issue on appeal. We note in passing that
three of these arguments (that the trial judge remained on the
case, the failure to disclose Bull Coming's criminal record and
rape allegation) are discussed under Appellant's Bradv and/or
ineffective assistance of counsel claims.
Issue 3
DidAppellant receive ineffective assistance of counsel during
his trial?
This Court reviews ineffective assistance of counsel claims
using the two prong test set forth in Strickland v. Washington

(1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v.
McLain (1991), 249 Mont. 242, 815 P.2d 147. An appellant must show
that counsel's performance was deficient and that the deficient
performance prejudiced the appellant. McLain, 815 P.2d at 149.

16
To demonstrate that counsel's performance was deficient, an
appellant must show that, considering all the circumstances
involved, counsel's performance fell below an objective standard of
reasonableness. Judicial scrutiny of counsel's actions must be
highly deferential and courts must indulge a strong presumption
that counsel's performance falls within the wide range of
reasonable professional assistance. Strickland, 466 U.S. at 688-
89. To demonstrate prejudice:
[tlhe defendant must show that there is a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.
Strickland, 466 U.S. at 694. With these standards in mind, we turn
to Appellant's claim that he received ineffective assistance at
trial.
Appellant makes numerous ineffective assistance claims
regarding his counsel's performance during trial. Appellant first
argues that trial counsel was ineffective for referring to
Appellant during closing arguments as "a drunk" and "drunk as a
skunk." However, the testimony introduced clearly indicated that
Appellant had been drinking during the time of the criminal
activity. At the evidentiary hearing for Appellant's
postconviction claims, his trial counsel testified that he believed
there was substantial evidence regarding Appellant's drinking and
that it would have to be dealt with. Counsel attempted to use this
fact to minimize Appellant's conduct by stating that one of the
"fights" with Etchemendy commenced because both were drunk and

17
"drunks fight." Counsel also attempted to argue that Bull Coming
exploited Appellant's apparently intoxicated condition to
manipulate him to start a fight with Etchemendy so Bull Coming
could steal Etchemendy's wallet. The District Court concluded, and
we agree, that this tactic was consistent with counsel's strategy
to paint Bull Coming as the dominant actor and manipulator of
Appellant. We hold that trial counsel's argument was within the
wide range of reasonable representation.
Appellant further argues that trial counsel's failure to
object to the intoxication instruction amounted to ineffective
assistance of counsel. The trial court gave the following jury
instruction:
A person who is in an intoxicated condition is criminally
responsible for his conduct and an intoxicated condition
is not a defense to any offense and may not be taken into
consideration.in determining the existence of a mental
state which is an element of the offense unless the
defendant proves that he did not know that it was an
intoxicating substance when he consumed, smoked, sniffed,
injected, or otherwise ingested the substance causing the
condition.
Appellant emphasizes that the instruction stated that an
intoxicated person is criminally responsible for his conduct.
Appellant contends that this portion of the instruction mandates
that a jury find a defendant guilty of the charged crime if the
jury finds that the defendant was intoxicated.' This argument is

1 In contrast to our recent decision in State v. Egelhoff
(Cause No. 93-405, July 6, 1995), Appellant does not contend that
the intoxication instruction violated his due process rights by
prohibiting the jury from considering intoxication in determining
the existence of the requisite mental state. Appellant's challenge
to the instruction is limited to the first clause of the first
sentence.
18
without merit. Even if the jury found that Appellant was
intoxicated, under the instructions as a whole, the State still had
to prove each of the elements of the crime in order to establish
criminal responsibility. The intoxication instruction merely
advised the jury that intoxication does not excuse otherwise
criminal conduct.
In addition, the intoxication instruction given at trial comes
directly from § 45-z-203, MCA. Counsel has not cited, nor have we
found, authority holding that counsel's performance is deficient
for failing to object to an instruction directly quoting a statute
in effect at the time of trial. We hold that trial counsel's
performance was not deficient for failing to object to the
intoxication instruction.
Appellant next argues that his trial counsel was ineffective
for failing to object to the prosecutor's closing argument, during
which the prosecutor summarized the State's version of the evidence
by portraying himself as Etchemendy and narrating in the first
person. The Ninth Circuit Court of Appeals has stated that:
[blecause many lawyers refrain from objecting during
opening statement and closing argument, absent egregious
misstatements, the failure to object during closing
argument and opening statement is within the "wide range"
of permissible professional legal conduct.
United States v. Necoechea (9th Cir. 1993), 986 F.2d 1273, 1281
(citation omitted). Here, upon review of the record, it appears
that all material statements contained in the prosecutor's
narration from the standpoint of the victim were supported by
testimonial or other evidence admitted at trial. We hold that

19
Appellant's trial counsel was not deficient in failing to object to
the prosecutor's closing argument.
Appellant contends that his trial counsel was ineffective for
failing to object to the lack of corroborating evidence of Bull
Coming's testimony. Appellant notes that § 46-16-213, MCA,
provides that a person cannot be found guilty of an offense based
on the testimony of an accomplice unless the testimony is
corroborated by other evidence that in itself tends to connect the
defendant with the commission of the offense.
Here, Bull Coming's testimony was not only corroborated by
Four Bear and Quiroz, who were both charged with offenses related
to the criminal episode at issue in this case, but also by Four
Colors. Four Colors was not involved with the criminal activity in
this case, nor was she charged with any crime. She testified that
Appellant told her that he had killed Etchemendy and that he and
his brother had beaten Etchemendy and taken some of his credit
cards. There was also physical evidence introduced which
corroborated Bull Coming's testimony. The failure to object does
not constitute ineffective assistance of counsel when the objection
lacks merit and would have been properly overruled. & State v.
Rodgers (1993), 257 Mont. 413, 421, 849 P.2d 1028, 1033. Here, an
objection that the State failed to corroborate Bull Coming's
testimony would have been without merit and properly overruled.
Thus, counsel's performance was not deficient in failing to object
to a lack of corroboration.
Appellant next contends that his trial counsel was ineffective

20
for failing to sufficiently investigate and pursue a mental defect
defense. Appellant's trial counsel did initially raise a mental
defect defense and requested a court-appointed clinical
psychologist to examine Appellant. The trial court appointed the
psychologist of Appellant's choice to examine him. The
psychologist examined Appellant and reviewed Appellant's hospital
records before preparing his report. The report concluded that
Appellant had the capacity to understand the proceedings against
him, to assist in hisown defense, and that he could appreciate the
criminality of his conduct. After viewing the report, trial
counsel withdrew notice of Appellant's intent to rely on a mental
defect defense.
We agree with the Ninth Circuit Court of Appeals' holding that
't[ilt is certainly within the 'wide range of professionally
competent assistance' for an attorney to rely on properly selected
experts." Harris v. Vasquez (9th Cir. 19901, 949 F.2d 1497, 1525.
We hold that AppeLlant's trial counsel was neither deficient in his
investigation of a mental defect defense, nor in his decision not
to rely on such a defense.
Appellant further argues that his trial counsel was
ineffective in the trial phase context for failing to move for a
substitute judge. Judge H. R. Obert, who presided over Appellant's
trial, informed the prosecutor and Appellant's attorneys that he
had been an acquaintance of Etchemendy. Judge Obert also told
counsel that he believed he could be impartial regardless of the
acquaintance. Appellant's trial counsel stated that he did not

21
move for a substitute judge because he believed that Judge Obert
might commit reversible error; because counsel was concerned that
a replacement judge might be more adverse to his client than Judge
Obert; and because Judge Obert's religious convictions may have
predisposed him against the death penalty.
In neither Kills On TOU I nor in this proceeding has it been
demonstrated that Judge Obert committed prejudicial error while
presiding over Appellant's trial. Although counsel's decision to
retain a judge who had been acquainted with the victim is
questionable, we hold that there is not a reasonable probability
that the outcome of the trial, the guilty verdicts, would have
differed had counsel moved for a substitute judge. Thus, Appellant
has failed to meet the second prong of the Strickland test.
Appellant next argues that his trial counsel was ineffective
in failing to move for a change of venue from Fallon County.
Appellant was charged in Custer County but, upon Appellant's
counsel's motion, venue was changed to Fallon County. Appellant
contends that counsel was ineffective in failing to move for a
second change of venue. Appellant argues that since Fallon County
is a "rural" county adjoining Custer County, he could not receive

a fair trial there.
Appellant's trial counsel testified that they believed a
second motion for change of venue would be useless unless they
could demonstrate that an impartial jury could not be impanelled in
Fallon County. Following extensive voir dire, counsel decided that
there was no basis to conclude that an impartial jury could not be

22
selected. There is no evidence of juror bias and insufficient
evidence to overcome the strong presumption that counsel's
performance fell within the wide range of competent assistance in
deciding not to move for a second change of venue.
Appellant further argues that his trial counsel was
ineffective in failing to adequately question prospective jurors
about any association they might have had with the victim. The
trial judge asked the entire panel of potential jurors if they had
any association with "any person who may have initiated this
complaint." Several eventual jurors were asked if they knew the
Etchemendys and others were shown a witness list containing the
names of some members of the Etchemendy family. None of the jurors
stated that they~ knew the Etchemendys, although one juror stated
that he had heard of Etchemendy's father. Two prospective jurors
were excused for cause after informing the trial court that they
knew the victim's family. Appellant has failed to demonstrate that
any of the jurors knew the Etchemendy family. While trial counsel
could have conducted a more thorough voir dire on this topic, we
hold that there is not a reasonable probability that the outcome of
Appellant's trial would have been different had his counsel more
thoroughly questioned the jury panel.
Appellant next argues that his trial counsel was ineffective
in failing to investigate and introduce evidence of Bull Coming's
prior bad acts and criminal record. Bull Coming's criminal record,
which included several misdemeanor convictions, was not released to
Appellant's trial counsel. It cannot be said that Appellant's

23
trial counsel was deficient for failing to introduce something that
he did not have in his possession. Appellant also argues that his
trial counsel should have more thoroughly investigated Bull
Coming's prior bad acts which demonstrate a "negative attitude"
toward men.
Appellant's trial counsel conducted a thorough investigation
into Bull Coning's role in the crimes. Appellant's postconviction
counsel have been able to discover more information regarding Bull
Coming's "negative attitude" toward men by interviewing Bull
Coming's former husband, who was in Oklahoma at or just prior to
the time of Appellant's trial. However, we will not appraise trial
counsel's effectiveness simply by comparing the amount of
information Appellant's postconviction counsel were able to compile
versus information gathered by Appellant's trial counsel. We hold
that trial counsel's investigation into Bull Coming's background
falls within the wide range of competent assistance.
Appellant next contends that his trial counsel was ineffective
for failing to investigate Appellant's "suicide attempt.?' In early
October of 1987, before the criminal activity in this case took
place, Miles City police officers took Appellant to Holy Rosary
Hospital because he had threatened to kill himself. The attending
physician observed that Appellant was acutely intoxicated and a
possible candidate for injuring himself. Appellant was released
from the hospital the following day after indicating no further
suicide ideation.
One of Appellant's sisters informed his trial counsel of this

24
incident. Counsel discussed this incident with Appellant and Holy
Rosary's records were supplied to Appellant's court-appointed
psychologist who examined Appellant pursuant to Appellant's notice
of intent to rely on a mental defect defense. We hold that
Appellant's trial counsel was not deficient in failing to
sufficiently investigate Appellant's "suicide attempt."
Appellant next contends that his trial counsel was ineffective
in failing to object to a jury instruction which stated, in
relevant part, that the jury could infer the existence of the
requisite mental state from the acts of the accused and the facts
and circumstances connected with the offense. The disputed portion
of the instruction is derived directly from 5 45-2-103(3), MCA.
Appellant argues that the instruction violates due process as
the United States Supreme Court reversed a conviction where the
court instructed the jury that it is presumed that a person intends
the ordinary consequences of his voluntary acts. Sandstrom v.
Montana (1979), 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39.
However, we have held that an instruction or statute allowing a
permissive inference does not violate the rule established in
Sandstrom. State v. Cowan (19931, 260 Mont. 510, 517, 861 P.2d

884, 888. In addition, Appellant's present counsel has not cited,
nor have we found, authority holding that counsel‘s performance is
deficient for failing to object to an instruction directly quoting
a statute in effect at the time of trial. We hold that Appellant's
trial counsel was not deficient for failing to object to the
instruction regarding the requisite mental state.

25
Appellant next argues that his trial counsel was ineffective
for failing to object to the trial court's instructions setting out
the elements of aggravated kidnapping. Appellant argues that the
multiple alternatives within the instruction infringed upon his
right to a unanimous jury verdict. He also contends that this
argument implicates his conviction for deliberate homicide since
the underlying felony in his deliberate homicide conviction was
aggravated kidnapping. The instruction setting out aggravated
kidnapping read as follows:
A person commits the offense of aggravated
kidnapping if he knowingly or purposely ano Without
lawful authority restrains another person by either
secreting or holding him in a place of isolation or by
using or threatening to use physical force, with either
of the following purposes:
(a) to facilitate commission of robbery or flight
thereafter, or
vi;tlE) to infl ict bodily injury on or to terrorize the

This instruction was patterned after Montana's statute on
aggravated kidnapping. Appellant argues that the multiple
alternatives within the instruction infringed upon his right to a
unanimous jury verdict. He argues that his trial counsel should
have objected to the instruction because it is impossible to tell
which alternatives the jurors agreed on in finding him guilty. We
disagree.
Appellant cites SeVeral cases from CirCUit COUrtS of appeal
supporting his position. However, all of these cases are factually
distinguishable from this case and, more importantly, were decided
before Schad v. Arizona (19911, 501 U.S. 624, 111 S.Ct. 2491, 115
L.Ed.2d 555, a U.S. Supreme Court case which gives more guidance
26
here. In Schad, an Arizona jury was instructed that murder in the
first degree could be premeditated murder or murder committed in an
attempt to commit robbery. Schad contended that due to the
instruction, it was possible that the jury was not unanimous in
that six jurors could have agreed that he committed premeditated
murder while six could have agreed that he committed murder in an
attempt to commit robbery.
A plurality of the U.S. Supreme Court rejected the notion that
the jury must "indicate on which of the alternatives it has based
the defendant's guilt, . , . even where there is no indication that
the statute seeks to create separate crimes." Schad, 501 U.S. at
635-36. The Court stated.that it is:

erroneous [to] assum[el that any statutory alternatives
are ioso facto independent elements defining independent
crimes under state law, and therefore subject to the
axiomatic principle that the prosecution must prove
independently every element of the crime. [Citations
omitted.] In point of fact . . . legislatures frequently
enumerate alternative means of committing a crime without
intending to define separate elements of separate crimes.
. . .
In cases, like this one, involving state criminal
statutes, the dissent's "statutory alternatives" test
runs afoul of the fundamental principle that we are not
free to substitute our own interpretations of state
statutes for those of a State's courts.
Schad, 501 U.S. at 636 (footnote omitted).
In addition, while the Court noted that it was impossible to
produce a single analytical model for determining whether "two
means are so disparate as to exemplify two inherently separate
offenses," the Court stated that the two means must "reasonably
reflect notions of equivalent blameworthiness or culpability,

27
whereas a difference in their perceived degrees of culpability
would be a reason to conclude that they identified different
offenses altogether." ,
Schad 501 U.S. at 643. The Court held that
Schad had failed to make out a case for such moral disparity and
denied his petition. Schad, 501 U.S. at 643.
Appellant has not specified which of the alternatives in the
aggravated kidnapping instruction he objects to, thus we assume
that he proposes that this Court adopt a test whereby every
alternative in an instruction must be separately and specifically
found by a jury. This approach was rejected by the Schad Court and
will not be adopted by this Court. We hold that the alternatives
set forth in the aggravated kidnapping instruction constitute
alternative means of committing the same offense. We also hold
that Appellant has failed to demonstrate that the alternatives are
so morally disparate as to represent inherently separate offenses.
Since the alternatives represent different means of committing the
same offense rather than separate offenses, under Schad, the jury
need not indicate upon which alternative it bases the defendant's
guilt. The trial court did not err in giving the disputed
instructions. An objection based on the disputed instructions

would have been properly denied, thus, Appellant's claim of
ineffective assistance of counsel must fail. See Rodsers, 849 P.2d
at 1033.
Appellant next contends that his trial counsel was ineffective
in failing to object to the absence of Native Americans from the
jury panel. In addition to two other factors, in order to

28
establish a prima facie case that his jury was not drawn from a
fair cross-section of the community, Appellant must show a
statistical discrepancy between the percentage of prospective
jurors and persons in the community from the allegedly excluded
class. State v. Bradley (1993), 262 Mont. 194, 200, 864 P.2d 787,
791 (citing Duren v. Missouri (1979), 439 U.S. 357, 364, 99 S.Ct.
664, 668, 58 L.Ed.2d 579, 587).
We take judicial notice of census data from 1980 and 1990 for
Fallon County which demonstrates that Native Americans made up
approximately . 37 percent of the population in 1980 and .29 percent
of the population in 1990. Appellant's counsel could not have
demonstrated that Native Americans were underrepresented in the
makeup of the venire panel taken from Fallon County residents.
Failure to object does not constitute ineffective assistance of
counsel when the objection lacks merit and would have been properly
overruled. See Rodsers, 849 P.2d at 1033. Thus, we hold that
Appellant's trial counsel was not deficient in failing to object to
the jury panel on the basis of a racially unrepresentative cross-
section of the community.
Appellant next argues that his trial counsel was ineffective
in failing to object to the presence of an armed officer in the
courtroom stationed near the Appellant during the trial. Appellant
argues that the presence of the officer abridged his right to a
fair trial and his trial counsel should have made an objection.
The U.S. Supreme Court has held that the presence of armed
officers in the courtroom is not inherently prejudicial.. Holbrook

29
v. Flynn (19861, 475 U.S. 560, 106 S.Ct. 1340, 89 L.Ed.2d 525.
Where a question of prejudice due to armed officers is raised, the
question must be answered on a case by case basis. Holbrook, 475
U.S. at 569. In Holbrook, four armed and uniformed state troopers
sat in the first row of the spectator's section behind the
defendants' seats during the trial of six men accused of armed
robbery. The Court distinguished the situation from that where the
accused was forced to wear a jail uniform or was bound and gagged
in the presence of the jury. Holbrook, 475 U.S. at 568. The Court
held that it was not an unacceptable risk of prejudice for the jury
to see four armed officers sitting in the first row of the
courtroom's spectator section. Holbrook, 475 U.S. at 571.
In the present case, we hold that the presence of an armed
officer in close proximity to Appellant during the trial
proceedings was not prejudicial. An objection to the presence of
the officer would have been properly denied, thus we hold that
Appellant's trial counsel was not deficient in failing to object to
the presence of armed officers. See Rodqers, 849 P.2d at 1033.
Appellant next contends that his trial counsel was ineffective
in failing to object to a manipulation of jurisdiction in order to
ensure that Appellant would be tried in a court where the death
penalty was a possibility. In Kills On TOP I, 787 P.2d at 343, we
held that Montana had jurisdiction to try Appellant for the crimes
with which he was charged. In our discussion under Issue 2 herein,
we held that the decision to prosecute Appellant in Montana did not
amount to an abuse of process or outrageous government conduct. An

30
abjection based on manipulation of jurisdiction would have been
properly denied, therefore we hold that Appellant's trial counsel
was not deficient in failing to object to the presence of armed
officers. See Rodqers, 849 P.Zd at 1033.
Issue 4
Did Appellant receive ineffective assistance of counsel during
the penalty phase proceedings?
Appellant raises numerous arguments in favor of his claim that
he received ineffective assistance of counsel during his
sentencing. However, given our holding under Issue 1 in which we
reverse Appellant's sentences, it is unnecessary for us to address
this issue.
Issue 5
Did Appellant receive ineffective assistance of counsel during
the course of his direct appeal to this Court?
Again, we review ineffective assistance of counsel claims

using the standards set forth in Strickland. McLain, 815 P.Zd at
149. Appellant's ineffective assistance of counsel claims based on
the performance of his counsel during appeal were raised in
catchall allegations. Under Appellant's guilt phase claims, the
allegation raised in paragraph B.5.h. of his petition was that
“[tlrial counsel failed to object to all errors raised in this
Petition which could have been, but were not, raised on direct
appeal."
The District Court refused to address this general claim as it

duplicated specific claims in the amended petition. Similarly, we

31
have addressed all of Appellant's specific claims of ineffective
assistance of counsel at the trial stage, which encompassed all of
Appellant's claims of error regarding the trial stage, thus we need
not repeat that analysis here. Having held that Appellant's
extensive ineffective assistance of counsel claims regarding the
trial stage are insufficient, we hold that Appellant's claim that
counsel was inadequate in failing to raise those same claims on
appeal is also insufficient.
Next, under Appellant's ineffective assistance of counsel
claims regarding the penalty phase, Appellant claimed, in paragraph
C.6.h., that "Counsel failed to raise on direct appeal all issues
in this Petition which could have been, but were not, raised."
Because this claim was raised under Appellant's penalty phase
claims and we have already held that Appellant's sentences must be
vacated, we need not address this claim on appeal.
Issue 6
May Montana courts apply a procedural bar to postconviction
claims that could have been raised on direct appeal?
The District Court ruled that several of Appellant's claims
raised in his petition for postconviction relief were procedurally
barred because they could have been raised on direct appeal.
Section 46-21-105(2), MCA, states:
When a petitioner has been afforded a direct appeal of
the petitioner's conviction, grounds for relief that
could reasonably have been raised on direct appeal may
not be raised in the original or amended petition.
Section 46-21-105(2), MCA, clearly establishes a procedural bar to
postconviction claims that could have been raised on direct appeal.
32
Appellant contends that the procedural bar cannot be applied
to his case because it has not been firmly established or
consistently applied. He bases his argument on a U.S. Supreme
Court pronouncement that only a firmly established and regularly
followed state practice may prevent subsequent federal court review
of a federal constitutional claim. James v. Kentucky (1984), 466
U.S. 341, 104 S.Ct. 1830, 80 L.Ed.Zd 346. We disagree with
Appellant's argument. Appellant's argument is misplaced in this
Court.
Appellant can raise his argument in federalhabeas proceedings
following the exhaustion of his state remedies. Appellant's
argument has been discussed in federal court cases dealing with
postconviction and habeas claims. The federal courts and the U.S.
Supreme Court:
will not consider an issue of federal law on direct
review from a judgment of a state court if that judgment
rests on a state-law ground that is both "independent" of
the merits of the federal claim and an "adequate" basis
for the court's decision.
Harris v. Reed (19891, 483 U.S. 255, 260, 109 S.Ct. 1038, 1042, 103
L.Ed.2d 308, 315.
The application of a state procedural bar is generally
considered an independent and adequate state ground precluding
federal habeas review. See Harris, 489 U.S. at 262. The bar to
federal review will apply:
unless the habeas petitioner can show "cause" for the
default and "prejudice attributable thereto," [citation
omitted], or demonstrate that failure to consider the
federal claim will result in a "fundamental miscarriage
of justice." [Citations omitted.]

33
Harris, 489 U.S. at 262.
Since Appellant's arguments regarding the procedural bar are
aimed at federal courts rather than this Court, we need not address
them. However, we note in passing that we recently held that:
We have applied that statutory bar [in § 46-21-105(2),
MCAI consistently. in order to prevent the abuse of
postconviction relief by criminal defendants who would
substitute those proceedings for direct appeal and in
order to preserve the integrity of the trial and direct
appeal. See‘ for example, In re the Petition of Evans
(1991), 250 Mont. 172, 819 P.2d 156; Tecca v. McCormick
(1990), 246 Mont. 317, 806 P.2d 11; State v. Gorder
(199O)I 243 Mont. 333, 792 P.2d 370; Duncan v. State
(1990), 243 Mont. 232, 794 P.2d 331; In re Petition of
Martin (19891, 240 Mont. 419, 707 P.2d 746.
In re the Petition of Manula (1993), 263 Mont. 166, 169, 866 P.2d
1127, 1129. A lack of absolute consistency in the application of
a state's procedural bar is not necessarily fatal to a
determination that a state's procedural bar is an adequate and
independent state ground precluding federal habeas review. The
U.S. Supreme Court, in reviewing the Florida Supreme Court's
application of a procedural bar, stated:
In the vast majority of cases, however, the Florida
Supreme Court has faithfully applied its rule that claims
not raised on direct appeal cannot be raised on
postconviction review. [Citations omitted.]
Moreover, the few cases that respondent and the
dissent cite as ignoring procedural defaults do not
convince us that the Florida Supreme Court fails to apply
its procedural rule regularly and consistently.
Dugger v. Adams (1989), 489 U.S. 401, 411, n.6, 109 S.Ct. 1211,
1217, 103 L.Ed.2d 435, 445.
Section 46-21-105(2), MCA, was added to Montana's code in
1981. In State v. Henricks (1983), 206 Mont. 469, 474, 672 P.2d
20, 23, we cited Fitzpatrick v. State (19831, 206 Mont. 205, 671
34
P.2d 1, a postconviction case instituted before the effective date
of § 46-21-105(2), MCA, in support of the proposition that we could
consider issues Henricks raised in postconviction proceedings which
could have been raised on his direct appeal.2 Since Henricks was
decided, we have not cited it for the proposition that this Court
can review issues in postconviction proceedings which could have
been raised on direct appeal. We now specifically overrule
Henricks to the extent that it stands for the proposition that this
Court can review issues in postconviction proceedings which could
have been raised on direct appeal.
Appellant further argues that the procedural bar should not be
applied in this case because there is no evidence that his counsel
intentionally reserved claims in order to extend proceedings. We
cannot agree that the procedural bar only applies when the State
can prove that defense and appellate counsel intentionally withheld
claims to cause delay. In accord with the plain language of § 46-
21-105(2), MCA, we hold that claims which could reasonably have
been raised on appeal are procedurally barred from consideration in
postconviction proceedings, regardless of whether or not the
failure to raise the claim was an intentional strategic decision of
counsel to cause delay. We hold that the procedural bar of § 46-
21-105(2), MCA, does apply to certain of Appellant's postconviction
claims as discussed below.

* We eventually concluded that Henricks' allegations were not
only untimely, but without merit. Henricks, 672 P.2d at 26.
35
Issue 7
Was Appellant denied the right to a fair trial?
Appellant argues that his right to a fair trial was violated
because: 1) trial was held in Fallon County which adjoins Custer
County, the county where the victim and his family resided; 2) an
officer stationed next to Appellant possessed a firearm which was
visible throughout the trial; 3) the courtroom was allegedly
segregated; and 4) there was extensive pretrial publicity and the
trial judge noted there was a carnival atmosphere during voir dire.
All of Appellant's fair trial claims reasonably could have
been raised during his direct appeal to this Court. Therefore, his
fair trial claims are procedurally barred from consideration in
this postconviction proceeding. Section 46-21-105(2), MCA.
Issue 8
Was Appellant denied the right to a fair and impartial jury?
Appellant argues that his right to an impartial jury was
violated because there were no Native Americans in the venire panel
or on the jury. He also argues that the absence of Native
Americans from the venire panel violated the equal protection
clause of the Fourteenth Amendment. In addition, he argues that
the jurors were not sufficiently questioned about any possible
connection with the victim's family or about possible racial bias.
The above claims reasonably could have been raised during his
direct appeal to this Court. Therefore, his claims are

procedurally barred from consideration in this postconviction
appeal. Section 46-21-105(Z), MCA.

36
Issue 9

Did the prosecutor commit misconduct during Appellant's trial?
Appellant contends that the prosecutor committed misconduct
during the trial by knowingly presenting facially perjured
testimony and emphasizing this testimony during closing argument.
Appellant further argues that it was misconduct for the prosecutor,
during closing argument, to portray a version of the events in the
form of a first person narrative as the victim of the crime.

Appellant's misconduct arguments reasonably could have been
raised during his direct appeal to this Court. Thus, his claims
are procedurally barred from consideration during this
postconviction proceeding. Section 46-21-105(2), MCA.
Issue 10
Did the State fail to corroborate the testimony of an
accomplice witness?
Appellant argues that the State failed to corroborate the
testimony of Diane Bull Coming. Because Bull Coming was an
accomplice, her testimony had to be corroborated or Appellant's
conviction cannot stand.
Appellant's argument reasonably could have been raised on
direct appeal to this Court. Thus, his argument is procedurally
barred from consideration during this postconviction proceeding.
Section 46-21-105(2), MCA.
Issue 11
Was Appellant denied the right to confront the witnesses
against him?
Appellant argues that because the State failed to disclose
Bull Coming's eight misdemeanor convictions until discovery was
conducted for his postconviction petition, his Sixth Amendment
right to confront the witnesses against him was violated. He also
argues that Rule 609, M.R.Evid., which prohibits impeachment of
witnesses by use of prior criminal convictions would violate his
right to cross-examine witnesses as contemplated in Davis v. Alaska

(1974), 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347. However, the
present case is analogous to U.S. v. Bagley (1985), 473 U.S. 667,
105 S.Ct. 3375, 87 L.Ed.2d 481.
In Baqley, Bagley was charged with 15 counts of violating
federal narcotics and firearms statutes. In his discovery requests
before trial, Bagley requested the names of the prosecution's
witnesses and any deals, promises, or inducements made in exchange
for testimony against him. Bagley was convicted on the narcotics
charges and acquitted on the firearms charges. A few years after
his conviction, Bagley discovered that two of the witnesses against
him had contracts with the Bureau of Alcohol, Tobacco and Firearms
which provided that each witness would receive $300 for gathering
evidence and testifying against Bagley. Bacrley, 473 U.S. at 669-
71.
The Ninth Circuit Court of Appeals reversed Bagley's
conviction holding that the failure to supply Bagley with this
information violated his rights to cross-examination, as envisioned
in Davis and this violation required automatic reversal, 719 F.2d
at 1462. The U.S. Supreme Court reversed the Ninth Circuit. The

38
Supreme Court held that the situation in Baalev was distinguishable
from Davis in that the trial court had not made a direct ruling
restricting Bagley's scope of cross-examination. Further, the
Supreme Court reasoned that:
The constitutional error, if any, in this case was the
Government's failure to assist the defense by disclosing
information that might have been helpful in conducting
the cross-examination.
Baqley, 473 U.S. at 678. The Supreme Court determined that
Bagley's claim had to be examined in the Brady context and remanded
the case for a determination of whether there was a reasonable
probability that the outcome of his case would have been different.
Baqley, 473 U.S. at 677-78.
Here, the trial court never made a direct ruling which limited
Appellant's scope of cross-examination in regard to Bull Coming.
She was extensively cross-examined as to her role in the crime, the
prior statements she had made to law enforcement officers, and her
plea bargain agreement. We hold that Appellant's argument in
regard to the State's failure to disclose Bull Coming's prior
misdemeanor convictions is properly analyzed in a Brady context
rather than in the context of a non-existent trial court ruling
limiting cross-examination.
Issue 12
Were Appellant's rights violated by the presence of armed
officers next to his counsel table during his trial?
Appellant argues that the presence of an armed officer next to
his counsel table throughout the trial violated his right to a fair
trial and negated the presumption of innocence
39
Appellant's argument reasonably could have been raised on
direct appeal to this Court. Therefore, his argument is
procedurally barred from consideration during this postconviction
proceeding. Section 46-21-105(2), MCA.
Issue 13
Were Appellant's rights violated because he was not convicted
by a unanimous jury?
Appellant argues that since the jury was instructed on certain
offenses with multiple alternatives (e.g., aggravated kidnapping),
it is impossible to determine if the jurors were unanimous in
finding the specific elements of the offenses for which Appellant
was convicted. Appellant argues that this abridges both his Sixth
Amendment right to a unanimous jury and his Eighth Amendment
rights.
Appellant's argument reasonably could have been raised on
direct appeal to this Court. Therefore, his argument is
procedurally barred from consideration in this postconviction
proceeding. Section 46-21-105(2), MCA. Appellant argues that it
was plain error to give the instructions containing several
alternatives. However, we addressed the merits of Appellant's
arguments under Issue 3 and concluded that it was not error to give
the disputed instructions. Obviously, the plain error doctrine
does not apply.
Issue 14
Did the jury instruction regarding voluntary intoxication
create a conclusive presumption of guilt?

40
The trial court instructed the jury on the law of voluntary
intoxication. Appellant argues that his rights were violated when
the trial court instructed the jury that a person who is in an
intoxicated condition is criminally responsible for his conduct.
Appellant contends that this portion of the instruction creates a
conclusive presumption which compels a finding of guilt simply as
a result of being intoxicated.
Appellant's arguments reasonably could have been raised on his
direct appeal to this Court. Thus, his arguments are procedurally
barred from consideration during this postconviction proceeding.
Section 46-21-105(2), MCA.
Issue 15
Was the jury instruction regarding inference of criminal
mental state unconstitutional?
The trial court instructed the jury that the existence of a
mental state may be inferred from the acts of the accused and the
facts and circumstances connected with the offense. Appellant
argues that this unconstitutionally allowed the jury to presume
that he had the requisite criminal mental state.
Appellant's argument reasonably could have been raised on
direct appeal to this Court. Thus, his argument is procedurally
barred from consideration during this postconviction proceeding.
Section 46-21-105(2), MCA.
Issue 16
Does Montana's death penalty scheme unconstitutionally
prohibit the sentencer from considering a single mitigating factor

41
sufficient to merit leniency?
Appellant contends that § 46-18-305, MCA, violates the Eighth

and Fourteenth Amendments' prohibitions against imposing arbitrary
and capricious death sentences. Section 46-18-305, MCA, provides
that the court shall impose a death sentence if the court "finds
one or more of the [statutorily enumerated] aggravating
circumstances and finds that there are no mitigating circumstances
sufficiently substantial to call for leniency." Appellant argues
that 5 46-18-305, MCA, operates to effect a scheme whereby a single
mitigating circumstance can never be sufficient to merit leniency.
Appellant's argument reasonably could have been raised on
direct appeal to this Court. Thus, his argument is procedurally
barred from consideration during this postconviction proceeding.
Section 46-21-105(2), MCA.
Issue 17
Was Appellant subjected to double jeopardy?
Appellant argues that he was subjected to double jeopardy.
Appellant was convicted of aggravated kidnapping and deliberate
homicide. He was convicted of deliberate homicide under Montana's
"felony murder rule," with the underlying felony being aggravated
kidnapping. Appellant also argues that he was subjected to double
jeopardy in that one of the aggravating circumstances enumerated by
§ 46-18-303, PICA, is that the offense was aggravated kidnapping
which resulted in the death of the victim.
Appellant's arguments reasonably could have been raised on
direct appeal to this Court. Therefore, his arguments are

42
procedurally barred from consideration during this postconviction
proceeding. Section 46-21-105(2), MCA.
Issue 18
Did this Court and the sentencing court misapply the statutory
capital sentencing factors requiring leniency?
Given our holding under Issue 1 (the Bradv issue)~in which we
reverse Appellant's sentences, we need not address this issue.
Issue 19
Did the trial court err in disclosing a psychological report
to the prosecution?
In preparation of a potential mental defect defense, Appellant
was examined by a clinical psychologist at his counsel's request.
The psychologist's report was then provided to the prosecutors and
the trial court as well as the Appellant. Appellant argues that
requiring disclosure of the report compromised his ability to
present his defense of mental defect and that the presentence
report impermissibly relied on portions of the psychological
report.
Appellant reasonably could have raised these arguments on
direct appeal to this Court. Therefore, his arguments are
procedurally barred from consideration during this postconviction
proceeding. Section 46-21-105(2), MCA.
Issue 20
Did the District Court err in dismissing Appellant's habeas
corpus petition?
The District Court dismissed Appellant's habeas corpus

43
petition relying on § 4622-101(2), MCA, which provides that habeas
corpus relief is not available to attack the validity of a
conviction or sentence of a person adjudged guilty in a court of
record who has exhausted the remedy of appeal. Appellant argues
that this statute affects a suspension of the writ of habeas
corpus.
Appellant argues that the statute violates Article II, Section

19, of the Montana Constitution which states "[tlhe privilege of
the writ of habeas corpus shall never be suspended." Appellant
cites cases from other state courts which hold that state
legislatures may not abolish habeas corpus. We find a U.S. Supreme
Court case more applicable to the present case.
In Swain v. Pressley (1977), 430 U.S. 372, 97 S.Ct. 1224, 51
L.Ed.2d 411, the U.S. Supreme Court held that other proceedings may
be substituted in lieu of habeas corpus. The Court held that "the
substitution of a collateral remedy which is neither inadequate nor
ineffective to test the legality of a person's detention does not
constitute a suspension of the writ of habeas corpus." Swain, 430
U.S. at 381.
We hold that the substitution of postconviction proceedings
for habeas corpus proceedings when a petitioner has exhausted his
right of appeal does not amount to a suspension of the writ of
habeas corpus. Thus, we hold that § 46-22-101(2), MCA, does not
affect a suspension of the writ in violation of Article II, Section
19, of the Montana Constitution. We hold that the District Court
did not err in dismissing Appellant's habeas corpus petition.

44
We affirm the denial of Appellant's petition to the extent it
sought reversal of his convictions. We reverse the denial of
Appellant's petition to the extent it sought to vacate his
sentences, and we remand to the trial court for resentencing.