State v. Lester Kills on Top

No. 88-443

I N T H E STJPREME COURT O F T H E S T A T E O F MONTANA

1989

S T A T E O F MONTANA,

P l a i n t i f f and R e s p o n d e n t ,
-vs-
L E S T E R K I L L S ON T O P ,

D e f e n d a n t and A p p e l l a n t .

A P P E A L FROM: D i s t r i c t C o u r t of t h e S i x t e e n t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e C o u n t y of C u s t e r ,
T h e H o n o r a b l e H. R . O b e r t , Judge p r e s i d i n g .

COTJNSEL O F RECORD:

For A p p e l l a n t :

Stephen C . M o s e s a r g u e d ; M o s e s L a w F i r m , B i l l i n g s ,
Montana

For R e s p o n d e n t :

Hon. M a r c R a c i c o t , A t t o r n e y G e n e r a l , H e l e n a , Montana
C l a y R. S m i t h argued, S o l i c i t o r , H e l e n a , M o n t a n a
K e i t h D. H a k e r , C o u n t y A t t o r n e y , M i l e s C i t y , M o n t a n a

Submitted: October 19, 1989

Decided: February 15, 1 9 9 0
Justice Fred J. Weber delivered the Opinion of the Court.

Lester Kills on Top was convicted by jury in the Six-
teenth Judicial District Court, Custer County, Montana, of
robbery, aggravated kidnapping and deliberate homicide. He
was sentenced to 40 years for robbery. He received the death
penalty for each of the latter two convictions. Defendant
appeals both the convictions and the sentences. We affirm.
The issues presented for our review are:
1. Whether the District Court had jurisdiction over the
crimes for which the defendant was convicted.
2. Whether the District Court committed preiudicial
error in ordering the defendant to disclose to the State any
statements taken from individuals identified by the latter as
possible witnesses.
3. Whether the District Court committed prejudicial
error by admitting into evidence various exhibits.
4. Whether the District Court committed prejudicial
error in refusing to give instructions offered by the defen-
dant relating to lesser included offenses of aggravated
kidnapping, in refusing to give defendant's instruction on
accomplice testimony corroboration, and in giving an instruc-
tion relating to flight offered by the State.
5. Whether certain factual findings in the District
Court's sentencing order were supported by the evidence.
6. Whether imposition of the death penalty is constitu-
tional under the mandatory review criteria of S 46-18-310,
MCA.
7. Whether the sentencing court committed prejudicial
error in its consideration of victim impact statements.
8. Supreme Court sentence review pursuant to
5 46-18-310, MCA.
 9. Whether t h e p r e s e n t d e a t h p e n a l t y c o n s t i t u t e s c r u e l
and unusual punishment p r o h i b i t e d by t h e U n i t e d S t a t e s and
Montana C o n s t i t u t i o n s .
The events leading to the death of John Martin
Etchemendy, J r . , began i n t h e e a r l y morning h o u r s o f O c t o b e r
17, 1987. All offenses are alleged to have occurred on
October 17. The t r i a l i n t h i s c a s e l a s t e d two and o n e - h a l f
weeks. The State presented over fifty witnesses and the
defense presented e i g h t witnesses. Defendant d i d n o t t e s t i -
fy. Over o n e h u n d r e d e x h i b i t s were e n t e r e d i n t o e v i d e n c e .
Defendant, L e s t e r K i l l s on Top, and h i s b r o t h e r , Vernon
Kills on Top, entered the Golden West B a r in M i l e s City,
Montana, some time after midnight on October 17, 1987.
Accompanying them w e r e Diane Bull Coming and D o r e t t a Four
Bear. Mr. Etchemendy, a l o n g w i t h a f r i e n d , a l s o went t o t h a t
b a r on t h a t F r i d a y e v e n i n g . When M r . Etchemendy was r e a d y t o
l e a v e t h e b a r , h e went o u t t o t h e p a r k i n g l o t b u t was u n a b l e
t o locate h i s vehicle. A t t h a t point defendant, h i s brother,
and t h e two women o f f e r e d t o h e l p him. They a l l g o t i n a
b l a c k Dodge D u s t e r . F i r s t t h e g r o u p t u r n e d on t o Hiqhway 5 9
and looked a few places for Mr. Etchemendyls car. Then,
r a t h e r t h a n p r o c e e d i n g n o r t h t o M i l e s C i t y , t h e y went s o u t h
toward Ashland. Diane B u l l Coming t e s t i f i e d t h a t d e f e n d a n t
said, i n h i s n a t i v e t o n g u e o f N o r t h e r n Cheyenne, t h a t they
should " r o l l him and steal from him." Shortly a f t e r t h i s
statement, the car stopped s o t h e men c o u l d u r i n a t e . Al-
though Mr. Etchemendy and defendant began arguing, Mr.
Etchemendy v o l u n t a r i l y g o t back i n t h e c a r .
The c a r c o n t i n u e d t o p r o c e e d s o u t h on Highway 5 9 , t h e n
turned southwest onto Highway 332 toward Ashland and the
Northern Cheyenne reservation. Defendant began assaulting
Mr. Etchemendy in t h e back seat, both beating and c h o k i n g
him, and attempting to force some pills down h i s throat.
D o r e t t a Four Bear t e s t i f i e d t h a t d u r i n g t h e a s s a u l t , Diane
B u l l Coming t o o k t h e w a l l e t from M r . Etchemendy's p o c k e t and
r i f l e d through it. Mr. Etchemendy was a l s o o r d e r e d t o empty
his pockets. From h i s wallet, the group o b t a i n e d credit
c a r d s and two c h e c k s i s s u e d t o M r . Etchemendy from h i s em-
ployer. While t h e c a r was t r a v e l i n g o v e r t h e unpaved p o r t i o n
o f Highway 3 3 2 , the driver, Diane B u l l Coming, was t o l d t o
stop the car. The b r o t h e r s t o o k M r . Etchemendy o u t of t h e
c a r and a g a i n a s s a u l t e d him. A f t e r making him t o t a l l y un-
dress, t h e y p u t him i n t h e t r u n k o f t h e c a r . A l l t h i s oc-
curred before they entered t h e reservation.
Near Ashland, a t a b o u t 5 a.m., t h e y p i c k e d up Lavonne
Quiroz. Vernon and M s . Quiroz a t t e m p t e d t o s i p h o n g a s from
some l o c a l p i c k u p s . They t h e n d r o v e t o R a b b i t Town where
t h e y s t o l e a t o o l box. D o r e t t a Four Bear was f r i g h t e n e d o f
t h e g r o u p ' s a c t i v i t i e s and t o o k t h i s o p p o r t u n i t y t o f l e e t o a
friend's house. The group used one of Mr. Etchemendy's
c r e d i t c a r d s t o p u r c h a s e g a s i n Ashland. They n e x t d r o v e t o
Broadus.
At Broadus, which is off the reservation, defendant
c a s h e d one o f M r . Etchemendy's paychecks f o r $ 1 7 9 . 3 1 . After
s h a r i n g t h e money w i t h Vernon, d e f e n d a n t used some of it t o
buy a l c o h o l ( c a l l e d Ever-Clear) . A t t h e s u g g e s t i o n o f Diane
B u l l Coming, t h e group d e c i d e d t o d r i v e s o u t h t o G i l l e t t e ,
Wyoming.
The c a r t u r n e d o f f on a s i d e r o a d from Highway 5 9 and
stopped. Mr. Etchemendy was l e t o u t o f t h e t r u c k , b u t d e f e n -
d a n t h e l d a m e t a l p i p e and warned him h e would be b e a t e n i f
he t r i e d t o f l e e . Mr. Etchemendy had been b l i n d f o l d e d b u t
Vernon t o o k t h e b l i n d f o l d o f f a t t h i s p o i n t . Defendant t h e n
became concerned that Mr. Etchemendy could i d e n t i f y them.
Defendant forced M r . Etchemendy t o d r i n k a m i x t u r e of b e e r
and E v e r - C l e a r , e v i d e n t l y i n an e f f o r t t o make him p a s s o u t .
H e was t h e n p u t back i n t h e trunk. This occurred o f f the
reservation.
The g r o u p c o n t i n u e d on t o B i d d l e , Wyoming, and a r r i v e d
there about 11 a.m. There they cashed Mr. Etchemendyls
s e c o n d paycheck. A s they continued t o t r a v e l south, t h e c a r
stopped twice. During one s t o p d e f e n d a n t , w h i l e a g a i n h o l d -
ing t h e metal pipe, told Mr. Etchemendy h e would d i e i f h e
opened h i s e y e s . Back i n t h e c a r , d e f e n d a n t spoke t o M r .
Etchemendy through t h e back seat. Mr. Etchemendy informed
d e f e n d a n t t h a t h e was m a r r i e d and had two s o n s .
At Gillette, Wyoming, Vernon used Mr. Etchemendyls
c r e d i t card t o buy g a s . They gave M r . Etchemendy a n o t h e r
drink mixed with Ever-Clear. Diane Bull Coming testified
that while in the town of Gillette, Mr. Etchemendy began
p o u n d i n g on t h e t r u n k and c a l l i n g f o r h e l p . Defendant spoke
i n h i s n a t i v e l a n g u a g e and t o l d Vernon t h e y would h a v e t o
k i l l Mr. Etchemendy. Vernon and M s . Q u i r o z remained i n a b a r
w h i l e d e f e n d a n t and D i a n e B u l l Coming l e f t i n t h e c a r .
Defendant and Diane B u l l Coming l e f t G i l l e t t e , turned
o n t o a s i d e r o a d , and s t o p p e d when t h e y were n o t v i s i b l e from
t h e main r o a d . Ms. B u l l Coming t e s t i f i e d t h a t d e f e n d a n t t o o k
t h e p i p e , opened t h e t r u n k , and began s t r i k i n g M r . Etchemendy
with t h e pipe, a tire iron, and finally a rock. He also
k i c k e d him w i t h h i s b o o t s . She t e s t i f i e d t h a t d u r i n g t h i s
assault the victim cried out, "Oh God, no, God, no!" Ms.
B u l l Coming t e s t i f i e d t h a t a f t e r t h e b e a t i n g d e f e n d a n t t h r e w
t h e p i p e and t i r e i r o n i n t o a f i e l d , g o t back i n t o t h e c a r
and t h e y d r o v e o f f . A f t e r d r i v i n g a s h o r t d i s t a n c e , defen-
dant told Ms. B u l l Coming t o s t o p t h e c a r s o h e c o u l d s h o o t
Mr. Etchemendy. He t h e n attempted t o s h o o t t h e v i c t i m by
placing a .22 c a l i b e r s h e l l i n a v i s e g r i p and h i t t i n g t h e
s h e l l w i t h a hammer.
 Defendant and M s . R u l l Coming d r o v e on b u t had two f l a t
tires and were forced to stop at a lounge outside of
G i l l e t t e , Wyoming. Here, M s . B u l l Coming t e s t i f i e d t h a t s h e
saw d e f e n d a n t a t t e m p t i n g t o c u t M r . Etchemendy's t h r o a t w i t h
a small k n i f e . She s t a t e d t h a t s h e went i n t o t h e lounge and
d e f e n d a n t l a t e r came i n and s a i d t h e v i c t i m was dead.
About 5 p.m. Vernon and M s . Quiroz j o i n e d d e f e n d a n t and
Ms. B u l l Coming. They purchased new t i r e s and t h e n t r a v e l e d
toward Buffalo, Wyoming. Before leaving Campbell County,
Wyoming, t h e y l e f t t h e body a t an abandoned community h a l l
approximately twenty m i l e s south of G i l l e t t e .
A r a n c h e r who l i v e d i n t h e a r e a was d r i v i n g by w i t h h i s
s t e p s o n and n o t i c e d t h e c a r parked by t h e community h a l l . He
t e s t i f i e d t h a t h e saw t h r e e p e o p l e walk o v e r t o t h e c a r , s h u t
the trunk, get in and d r i v e o f f . He t e s t i f i e d t h a t they
f a i l e d t o s h u t a g a t e s o h e d r o v e a f t e r them, blinking h i s
l i g h t s , and f i n a l l y s t o p p i n g sideways i n t h e r o a d i n f r o n t of
them t o force a stop. Noting t h a t t h e c a r had a Montana
license plate, he wrote down t h e l i c e n s e number. When he
t o l d t h e qroup t o r e t u r n and c l o s e t h e g a t e , h e s t a t e d t h a t
t h e y a g r e e d t o do s o . LaVonne Q u i r o z t e s t i f i e d t h a t t h e y
d r o v e back t o t h e g a t e , whereupon s h e and d e f e n d a n t g o t o u t
of t h e c a r and c l o s e d t h e g a t e .
When t h e q r o u p s t o p p e d i n S h e r i d a n , Wyoming, t o get a
motel, Vernon and M s . Quiroz took o f f i n the car, leaving
d e f e n d a n t and M s . R u l l Coming behind. Defendant and M s . Bull
Coming went t o a s t o r e i n S h e r i d a n and purchased new c l o t h e s
w i t h one o f the c r e d i t cards. Defendant a l s o a t t e m p t e d t o
p u r c h a s e new b o o t s a t a d i f f e r e n t s t o r e , b u t t h e s a l e s p e r s o n
could n o t accept t h e c r e d i t card. A t a truck s t o p defendant
and Diane B u l l Coming changed t h e i r c l o t h i n g and t h r e w away
the clothes they were wearing. They then hitchhiked to
B i l l i n g s , Montana, u s i n g f i c t i t i o u s names.
 On October 1 9 , d e f e n d a n t was a r r e s t e d i n B i l l i n g s a t t h e
home of Lorraine Four Colors. Prior to being arrested,
d e f e n d a n t and M s . B u l l Coming r e l a t e d t h e i n c i d e n t t o Lor-
r a i n e Four C o l o r s . When d e f e n d a n t l e a r n e d t h a t h i s b r o t h e r ,
Vernon, had heen arrested he directed Ms. Bull Coming t o
destroy the c r e d i t cards.
O October 1 9 , t h e body of t h e v i c t i m was l o c a t e d by law
n
enforcement officers in the community hall near Gillette,
Wyoming. An a u t o p s y e s t a b l i s h e d t h a t t h e c a u s e o f d e a t h was
impact trauma t o t h e back and l e f t s i d e o f t h e v i c t i m ' s head.
I
Whether the District Court had jurisdiction over the
c r i m e s f o r which t h e d e f e n d a n t was c o n v i c t e d .
In a pretrial motion to dismiss, d e f e n d a n t contended
t h a t Montana l a c k e d j u r i s d i c t i o n t o p r o s e c u t e t h e s e o f f e n s e s .
This motion was briefed and a r g u e d by the parties. The
D i s t r i c t C o u r t d e n i e d t h i s motion.
O a p p e a l , d e f e n d a n t c o n t e n d s t h a t Montana l a c k s j u r i s -
n
d i c t i o n t o p r o s e c u t e t h e s e c r i m e s f o r two r e a s o n s . F i r s t , he
c o n t e n d s t h a t j u r i s d i c t i o n t o p r o s e c u t e t h e d e l i b e r a t e homi-
c i d e was p r o p e r l y i n t h e S t a t e o f Wyoming r a t h e r t h a n Mon-
tana. Second, defendant contends t h a t f e d e r a l j u r i s d i c t i o n
i s e x c l u s i v e p u r s u a n t t o t h e Major Crimes A c t , 18 U . S . C . $
1153, b e c a u s e d e f e n d a n t i s a f u l l - b l o o d e d , e n r o l l e d member of
t h e N o r t h e r n Cheyenne T r i b e , and a l s o t h e o f f e n s e s o c c u r r e d
"within Indian Country." W e w i l l address each j u r i s d i c t i o n a l
issue separately.
The s t a t u t e governing S t a t e j u r i s d i c t i o n f o r a c r i m i n a l
o f f e n s e i s 5 46-2-101, MCA, which p r o v i d e s i n p e r t i n e n t p a r t :

(1) A p e r s o n i s s u b j e c t t o p r o s e c u t i o n i n t h i s
s t a t e f o r a n o f f e n s e which h e commits w h i l e e i t h e r
w i t h i n o r o u t s i d e t h e s t a t e by h i s own c o n d u c t o r
 that of another for which he is legally accountable
if:
(a) the offense is committed either wholly or
partly within the state[.]

(2) An offense is committed partly within this
state if either the conduct which is an element of
the offense or the result which is an element
occurs within the state.
Pursuant to 5 46-2-101, MCA, Montana has jurisdiction if
the offense is committed "partly within" the state. This
Court has previously construed this statute in State v. White
(Mont. 1988), 750 P.2d 440, 441, 45 St.Rep. 270, 272-73, as a
"broad assertion of jurisdiction." See also State v. Bush
(1981), 195 Mont. 475, 477-78, 636 P.2d 849, 851. Analyzing
the elements of each of the three offenses for which defen-
dant was convicted, it is clear that an element of each
offense occurred off the reservation, and was committed
"partly within" Montana.
Defendant was convicted of robbery, described in 5
45-5-401, MCA, as follows:

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

Theft. (1) A person commits the offense of
theft when he purposely or knowingly obtains or
exerts unauthorized control over property of the
owner and:
(a) has the purpose of depriving the owner of
the property [ .I
In the present case the testimony established that Diane
Bull Coming took Mr. Etchemendy's wallet containing credit
cards and two employment checks, while defendant inflicted
bodily injury upon Mr. Etchemendy. Undisputed testimony
demonstrated that this action occurred on the Tongue River
Road, several miles before the group entered the reservation.
While the testimony does establish that defendant did not
initially take Mr. Etchemendy's wallet from him, the uncon-
tradicted evidence establishes that the defendant exerted
unauthorized control over the property of Mr. Etchemendy when
he cashed the Etchemendy payroll check at a bar in Broadus,
Montana.
Additionally, one may be convicted of the offense of
robbery even though he did not actually take the property
himself, if he was a participant in the crime. - State v.
See
Ortega (1984), 209 Mont. 285, 290-91, 679 P.2d 793, 796;
State v. Hart (Mont. 1981), 625 P.2d 21, 30, 38 St.Rep. 133,
142.
We conclude that the uncontradicted evidence established
that elements of the crime of robbery were committed within
the State of Montana and off the Indian Reservation. We
affirm the District Court's denial of the motion to dismiss
the robbery for lack of state jurisdiction.
Defendant was convicted of aggravated kidnapping pursu-
ant to 5 45-5-303(1) (c), MCA, which provides:

Aggravated kidnapping. (1) A person commits
the offense of aggravated kidnapping if he knowing-
ly or purposely and without lawful authority re-
strains another person by either secreting or
holding him in a place of isolation or by using or
threatening to use physical force, with any of the
following purposes:

(c) to inflict bodily injury on or to terror-
ize the victim or another[.]
Again, it is clear that Mr. Etchemendy was both restrained
and beaten by defendant within Montana before the group
entered the reservation. Defendant's physical restraint and
infliction of bodily injury upon Mr. Etchemendy in the back
seat of the car began well before the group entered the
reservation. Diane Bull Coming and Doretta Four Bear both
testified that shortly thereafter and before entering the
reservation, the car stopped and defendant and his brother
assaulted the victim outside the car. Then, rather than
placing him back in the car, they ordered him to strip, and
placed him in the trunk of the car. Boxer shorts, identified
at trial as belonging to the victim, were found near Highway
332 in Custer County, approximately two miles before the
border of Rosebud County, and off the reservation. This
evidence corroborates the testimony as to where the victim
was placed in the trunk. The evidence clearly establishes
that all elements of the aggravated kidnapping were satisfied
in Montana, off the reservation. We affirm the District
Court's denial of defendant's motion to dismiss the aggravat-
ed kidnapping for lack of state jurisdiction.
Defendant was also convicted of deliherate homicide
under the "felony murder rule." Section 45-5-102(1) (h), MCA,
codifies the felony murder rule, providing:

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

(b) he attempts to commit, commits, or is
legally accountable for the attempt or commission
of robbery, sexual intercourse without consent,
arson, burglary, kidnapping, aggravated kidnapping,
felonious escape, felony assault, aggravated as-
sault, or any other forcible felony and in the
course of the forcible felony or flight thereafter,
 he or any person legally accountable for the crime
causes the death of another human being.
Under the "felony murder rule" it is not necessary to prove
the "purposely or knowingly" element of the crime of deliber-
ate homicide. State v. Nichols (1987), 225 Mont. 438,
449-50, 734 P.2d 170, 176-77; State v. Sunday (1980), 187
Mont. 292, 307, 609 P.2d 1188, 1197. Rather, the intent to
commit the underlying felony replaces this element.
In State ex rel. Murphy v. McKinnon (1976), 1.71 Mont.
120, 556 P.2d 906, we stated that "for the felony murder rule
to apply a causal connection between the felonious act and
the death must be present." McKinnon, 556 P.2d. at 910.
Therefore, in the present case the elements the State had to
prove were:

1) the commission of the felony
2) that a death occurred
3) a causal connection between the first felony
and the death.
As previously established, the first element of the
deliberate homicide, the commission of the underlying felony
of aggravated kidnapping, occurred in Montana. The causal
connection element was also satisfied by Montana-based con-
duct. Only the actual death occurred in Wyoming.
Defendant however, urges that Wyoming has jurisdiction
over the deliberate homicide since the decision to kill the
victim occurred in Wyoming. Defendant presents a rather
convoluted argument in support of this theory which we will
attempt to summarize. Defendant was convicted of deliberate
homicide under the felony murder rule, which does not require
that the homicide be intentional. Defendant contends, howev-
er, that in reality the homicide was intentional and there-
fore did not flow from the kidnapping. He urges that the
homicide was a distinct offense and that all elements of the
homicide occurred in Wyoming.
We reject this argument since defendant was charged with
deliberate homicide under the felony murder rule, the jury
was instructed on this offense, and the jury in fact found
him guilty as charged. Defendant's attempt to re-define the
requisite elements of the homicide in this case in order to
support this jurisdictional contention has little merit.
Additionally, defendant misconstrues the requirements of
the offense of felony murder. It appears defendant is argu-
ing he cannot be convicted of deliberate homicide under the
felony murder rule if the killing was intentional. The
felony murder statute only eliminates the necessity that the
State prove the defendant knowingly or purposely killed Mr.
Etchemendy. That statute does not suggest that if in fact
the defendant knowingly or purposely killed Mr. Etchemendy,
somehow the defendant cannot be found guilty of deliberate
homicide under the felony murder rule. The evidence in this
case clearly establishes the commission of aggravated kidnap-
ping in Montana, the death in Wyoming, and a causal connec-
tion between the aggravated kidnapping and death. We
conclude that the statutory requirements under $ 46-2-101,
MCA, were met. We affirm the District Court's denial of
defendant's motion to dismiss the deliberate homicide based
on lack of State jurisdiction.
As a second jurisdictional issue, defendant contends
that pursuant to the Major Crimes Act, federal jurisdiction
is exclusive. The Major Crimes Act, 18 U.S.C. 1153
provides:

Any Indian who commits against the person or prop-
erty of another Indian or other person any of the
following offenses, namely, murder, manslaughter,
kidnapping, maiming, a felony under chapter 109A,
 incest, assault with intent to commit murder,
assault with a dangerous weapon, assault resulting
in serious bodily injury, arson, burglary, robbery,
and a felony under section 661 of this title within
the Indian country, shall be subject to the same
laws and penalties as all other persons committing
any of the above offenses, within the exclusive
jurisdiction of the United States.
In the present case the critical language of this stat-
ute is "within the Indian country." An Indian committing one
of the enumerated crimes within Indian country is subject to
federal jurisdiction. The issue of State jurisdiction over
an Indian defendant is resolved factually in the present
case. As previously established, elements of the crimes of
robbery, aggravated kidnapping, and deliberate homicide were
satisfied within Montana and outside of Indian country.
Defendant seems to be claiming that if any part of an
offense occurs within Indian country, the State has no juris-
diction. However, this is not the law. The State has juris-
diction for off-reservation offenses even though a connected
offense may occur within Indian country. See, e.g., State
v. Rossbach (Minn. 1980), 288 N.W.2d 714 (state had jurisdic-
tion where Indian defendant, standing inside reservation,
fired rifle across boundary of reservation at a deputy sher-
iff standing on Minnesota land) ; State v. Wickler (S.D.
1977), 260 N.W.2d 356 (state had jurisdiction to prosecute
seven Indian defendants who fired shots from reservation onto
state land). See also 41 Am.Jr.2d Indians S 67 (1968),
stating: ". . . Indians are amenable to state laws for
offenses against such laws committed by them off the reserva-
tion within the limits of the state, .. .I1While it is true
that the victim was taken onto the reservation during the
course of the kidnapping, in fact, crossing the reservation
three times, this journey through the reservation does not
deprive the State of its jurisdiction.
 Defendant relies on United States v. Torres (7th Cir.
1984), 733 F.2d 449, cert. denied, 469 U.S. 864 (1984), as
authority for his contention that federal jurisdiction is
exclusive. In Torres, federal jurisdiction attached where
the "major portion" of an ongoing conspiracy to "get rid of
the victim" occurred on the reservation, even though defen-
dants began to formulate the conspiracy, and abducted the
victim outside the reservation. Torres, 733 F.2d at 460.
The present case is factually distinguishable from Torres
since only a minor portion of the crimes occurred on the
reservation. Torres does not foreclose state jurisdiction.
We conclude that Montana had jurisdiction to prosecute
all three charged offenses as required under 5 46-2-101, MCA.
We affirm the District Court's denial of the motion to dis-
miss based on lack of jurisdiction.
I1
Whether the District Court committed prejudicial error
in ordering the defendant to disclose to the State any state-
ments taken from individuals identified by the latter as
possible witnesses.
At an omnibus hearing on March 25, 1988, the court
granted the State's request that defendant produce copies of
statements made by individuals whom the defendant intended to
call as witnesses at trial. At a pretrial hearing on May 31,
1988, defendant refused to produce certain statements taken
by his own investigator from witnesses for the State. On
June 1, 1988, the State filed a motion to compel discovery of
all witnesses defendant intended to call at trial. That
motion was granted. The court ordered production pursuant to
S 46-15-323(4), MCA, which provides:

(4) Simultaneously with the notice of defens-
es submitted under subsection (3), the defendant
 shall make available to the prosecutor for testing,
examination, or production:
(a) the names and addresses of all persons,
other than the accused, whom he will call as wit-
nesses at trial, together with all statements made
by them in connection with the particular case;
(b) the names and addresses of experts whom
he will call at trial, together with the results of
their physical examinations, scientific tests,
experiments, or comparisons, including all written
reports and statements made by them in connection
with the particular case; and
(c) a list of all papers, documents, photo-
graphs, and other tangible objects that he will use
at trial.
Defendant challenges the court's order on two bases. He
first makes a constitutional challenge to this statute,
contending that the statute violates the Fifth Amendment in
that it may require him to provide proof necessary to convict
himself. He urges that statements he has taken from these
witnesses may inadvertently supply corroborating testimony
which the State is lacking. He also argues that he should
not be required to produce these statements prior to trial
since a criminal defendant is not required to produce any
witnesses and because a criminal defendant may not make the
decision of whether to call witnesses until after the State
has presented its case. Defendant also claims this statute
violates the work product rule.
The same argument regarding this statute was addressed
in State ex rel. Carkulis v. Dist. Ct. of Thirteenth Jud. D.
(Mont. 1988), 746 P.2d 604, 44 St.Rep. 1954, wherein we
upheld the validity of S 46-15-323, MCA, both against a
constitutional challenge and a claim that it violated the
work product doctrine. In Carkulis, we began by noting the
rationale stated in Williams v. Florida (1970), 399 U.S. 78,
90 S.Ct. 1893, 26 L.Ed.2d 446, as follows:
 The United States Supreme Court in Williams v.
Florida (1970), 399 U.S. 78, 90 S.Ct. 1893, 26
L.Ed.2d 446, upheld a state statute requiring the
disclosure of an alibi defense and alibi witnesses
to the state prior to trial as not violating the
federal right against self-incrimination. Williams
is essentially grounded on the "accelerated disclo-
sure" theory, that is, that at trial, the defendant
would have to reveal his alibi and his witnesses
relating thereto, and that accelerating the disclo-
sure does not affect his constitutional rights
against self-incrimination.
Carkulis, 746 P.2d at 608.
In Carkulis, after approving the Williams rationale, we
went on to apply the accelerated disclosure theory to the
disclosure required in a defendant's general defense. We
reasoned that if defendant intended to call certain witnesses
at trial, requiring pretrial disclosure of the statement did
not violate Fifth Amendment rights. We reaffirm the consti-
tutionality of 5 46-15-323(4), MCA, as here applied.
In the present case, defendant also predicates his claim
of error on the fact that he was required to produce state-
ments taken from witnesses for the State. Since the statute
and our holding in Carkulis only require production of state-
ments of witnesses which the defendant will call at trial, he
claims this was error.
Defendant's contentions fail for three reasons. First,
defendant did not request a protective order for these state-
ments, which he could have done pursuant to § 46-15-328, MCA.
Second, although defendant emphasizes that these statements
were taken from the State's witnesses, defendant listed all
State witnesses on his own list of witnesses. Thus the
statements are precisely those which are required to be
produced pursuant to S 46-15-323 (4), MCA. As a final com-
ment, the record fails to demonstrate any manner in which
defendant. was prejudiced by the production of these
statements. The District Court record does not contain the
statements at issue, and defendant made no offer of proof as
to their alleged prejudicial nature. Defendant's argument in
regard to the witness statements is thus only academic in
nature, failing both factually and legally. We affirm the
order by the District Court which required production of the
witness statements.
I11
Whether the District Court committed prejudicial error
by admitting into evidence various exhibits.
Defendant objects to the introduction at trial of sever-
al pieces of evidence. Specifically, he objects to the
introduction of the red tool box, three items of defendant's
clothing, the pipe and photographs of it, the vice grip and
an associated residue swab, and photographs of the victim's
body where it was found in the abandoned community hall. He
bases these alleged errors on arguments of relevance and
prejudice.
An exhibit must be relevant to be entered at trial, and
a district court has broad discretion in determining rele-
vance. State v. Oman (1985), 218 Mont. 260, 264, 707 P.2d
1117, 1119. Relevance is defined in Rule 401, M.R.Evid., as
follows:

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

The test of relevance is whether an item of evi-
dence will have any value, as determined by logic
and experience, in proving the proposition for
 which it is offered. Generally, whatever naturally
and logically tends to establish a fact in issue is
relevant, and that which fails to qualify in this
respect is not relevant. (Citation omitted.)
Oman, 707 P.2d at 1119.
In the present case the State relied on accomplice
testimony, which must be corroborated pursuant to
5 46-16-213, MCA. In substance, this statute provides that
accomplice testimony cannot sustain a conviction unless it is
independently corroborated by other evidence which tends to
connect the defendant to the crime. Having reviewed the
evidence presented at trial, we conclude that the items of
evidence to which defendant now objects were relevant in that
each item independently corroborated the testimony of one of
the accomplices.
Defendant contends that the admission of the tool box
was irrelevant and was prejudicial as evidence of another
crime. The tool box was relevant however, as corroborating
the testimony of Doretta Four Bear regarding the sequence of
events in Ashland and Rabbit Town. Additionally, the State
was entitled to introduce the tool box even though it dis-
closed a crime other than the crimes charged, since it was a
part of the corpus delecti and was inextricably related to
the entire transaction. State v. Riley (1982), 199 Mont.
413, 425-26, 649 P.2d 1273, 1279.
Defendant objected to the introduction of a pipe and
photographs of it, claiming that there was insufficient
foundation. He claims that testimony by Officer Steve Hamil-
ton indicated that the pipe was not in the same condition at
trial as when it was found. At trial, Officer Hamilton
testified that on October 20, 1987, he and another officer
went to the location where the homicide was alleged to have
occurred. While searching the area they found a pipe which
a p p e a r e d t o have blood on i t . The o f f i c e r acknowledged a t
trial that the pipe had been wiped clean, yet positively
i d e n t i f i e d i t a s t h e one t h e y had found. Diane B u l l Coming
testified that defendant hit the v i c t i m with a pipe, and
LaVonne Quiroz t e s t i f i e d t h a t t h e p i p e was s i m i l a r t o t h e one
with which defendant threatened the victim a t one of the
stops. The p i p e was c e r t a i n l y r e l e v a n t evidence, and was
i d e n t i f i e d t h r o u g h t r i a l t e s t i m o n y a s t h e one found by t h e
officers. W conclude t h e c o u r t d i d n o t e r r i n admitting t h e
e
p i p e and r e l a t e d p h o t o g r a p h s .
Defendant contends that the vice grips and a related
r e s i d u e swab s h o u l d n o t have been a d m i t t e d s i n c e no e v i d e n c e
of a b u l l e t discharge l i n k s t h e s e t o t h e crime. However, t h e
testimony of Diane B u l l Coming l i n k e d t h e s e t o t h e c r i m e .
Defendant also contends these created the impression of
viciousness and were t h e r e f o r e p r e j u d i c i a l . W see l i t t l e
e
merit to this contention. Other evidence e s t a b l i s h e d the
v i c i o u s n e s s of t h e crimes. The v i c e g r i p s added l i t t l e t o
this.
Defendant o b j e c t s t o t h e a d m i s s i o n o f t h e c l o t h e s h e was
w e a r i n g when he was a r r e s t e d . The s h i r t and j e a n s were new,
but t h e boots were not new, and had some blood s t a i n s on
them. These items served t o corroborate t h e t e s t i m o n y by
Diane Bull Coming t h a t defendant purchased new c l o t h e s in
Wyoming and threw away the blood-stained clothes he was
wearing. She a l s o t e s t i f i e d t h a t h e a t t e m p t e d t o p u r c h a s e
new b o o t s i n S h e r i d a n , Wyoming, b u t was u n s u c c e s s f u l .
Photographs of t h e abandoned community h a l l were admit-
ted, two o f which were c l o s e - u p s of t h e upper body o f the
v i c t i m , and a t h i r d p h o t o showed t h e v i c t i m ' s upper body from
a few f e e t away. Defendant c l a i m s t h a t t h e s e were n o t neces-
s a r y t o prove any i s s u e and were h i g h l y inflammatory. The
p h o t o g r a p h s showed t h e upper body, h e a d , and r i g h t arm of t h e
victim. The photographs were relevant to corroborate the
testimony regarding the assaults upon Mr. Etchemendy as well
as the death. The photographs corroborated testimony of
Diane Bull Coming as to where the body was left, and the
testimony of the rancher, who saw the car parked at the
community hall. Additionally, the photographs did not show
the left side of the victim's head, which was the side sus-
taining the actual blows. We have previously held that if
relevant, the inflammatory nature of a photograph of the
victim does not necessarily outweigh the probative value.
State v. Siglar (1981), 210 Mont. 248, 256, 688 P.2d 749, 753
(holding that the jury was entitled to know the nature and
extent of the injuries and no method other than the photo-
graphs would demonstrate this as graphically or as well);
Riley, 649 P.2d at 1280-81 (holding that photos were reason-
ably necessary to depict the multiplicity and extent of
injuries). We conclude the photographs were relevant and not
unduly inflammatory.
We conclude that none of defendant's evidentiary objec-
tions are meritorious.
IV
Whether the District Court committed preiudicial error
in refusing to give instructions offered by the defendant
relating to lesser included offenses of aggravated kidnap-
ping, in refusing to give defendant's instruction on accom-
plice testimony corroboration, and in giving an instruction
relating to flight offered by the State.
The court instructed the jury on the elements of aggra-
vated kidnapping. Defendant contends that he was entitled to
instructions on the lesser included offenses of unlawful
restraint and kidnapping. He urges that the jury must be
instructed on lesser included offenses if there is "some
evidence" to support the lesser offense, citing S t a t e v.
Hamilton ( 1 9 8 0 ) , 185 Mont. 522, 605 P.2d 1 1 2 1 .
W have p r e v i o u s l y s t a t e d t h e t e s t r e g a r d i n g t h e c o u r t ' s
e
duty t o instruct the jury on l e s s e r included offenses, as
follows:

I t i s a fundamental r u l e t h a t t h e d e f e n d a n t i s
e n t i t l e d t o an i n s t r u c t i o n on a l e s s e r i n c l u d e d
o f f e n s e i f t h e e v i d e n c e would e n a b l e t h e j u r y
r a t i o n a l l y t o f i n d him g u i l t y o f a l e s s e r o f f e n s e
and t o a c q u i t him o f t h e g r e a t e r . Keeble v . United
S t a t e s ( 1 9 7 3 ) , 412 U.S. 205, 208, 93 S.Ct. 1993,
1995, 36 L.Ed.2d 844, 847. But t h i s Court h a s h e l d
t h a t t h e D i s t r i c t C o u r t w i l l n o t be p u t i n e r r o r
f o r refusing t o i n s t r u c t a s t o t h e l e s s e r included
o f f e n s e , i f t h e e v i d e n c e i s such t o show t h a t t h e
defendant i s e i t h e r g u i l t y of t h e o f f e n s e charged
o r e n t i t l e d t o an a c q u i t t a l . (Citations omitted. )

S t a t e v. Kyle (Mont. 1 9 8 0 ) , 628 P.2d 260, 263, 37 St.Rep.
1447, 1451. See a l s o S t a t e v . Ballenger ( 1 9 8 7 ) , 227 Mont.
308, 312, 738 P.2d 1291, 1294 (court properly refused in-
structions on aggravated assault and felony a s s a u l t where
evidence demonstrated calculated, relentless beatings of
c h i l d , r e s u l t i n g i n c h i l d ' s d e a t h ) ; S t a t e v . F a r r e l l (1984) ,
207 Mont. 483, 491, 676 P.2d 168, 172-73 (court properly
refused instruction on misdemeanor theft where evidence
showed t h a t amounts r e c e i v e d by d e f e n d a n t were o v e r $150, and
no r a t i o n a l t r i e r o f f a c t c o u l d have found d e f e n d a n t g u i l t y
o f misdemeanor t h e f t ) ; S t a t e v . Radi ( 1 9 7 8 ) , 176 Mont. 451,
464, 578 P.2d 1169, 1177 ( c o u r t p r o p e r l y r e f u s e d i n s t r u c t i o n
on lesser included offense of criminal trespass where no
e v i d e n c e c o u l d l e a d a j u r y t o b e l i e v e d e f e n d a n t was i n b u i l d -
i n g f o r an i n n o c e n t p u r p o s e ) .
Unlawful r e s t r a i n t i s committed when a p e r s o n "knowingly
o r p u r p o s e l y and w i t h o u t l a w f u l a u t h o r i t y r e s t r a i n s a n o t h e r
so a s t o i n t e r f e r e s u b s t a n t i a l l y with h i s l i b e r t y . " Section
45-5-301 (1), MCA. Kidnapping is committed when unlawful
restraint is effected "by either secreting or holding [the
victim] in a place of isolation or by using or threatening to
use physical force. " Section 45-5-302 (1), MCA. Defendant
was charged with aggravated kidnapping, committed with a
purpose to inflict bodily injury or terrorize the victim. In
the present case, defendant was not entitled to an instruc-
tion on unlawful restraint unless there was evidence that the
victim was not restrained by secreting him or by using force.
He would have been entitled to an instruction on kidnapping
only if there was evidence that no purpose to inflict bodily
injury or terrorize the victim existed. There is no evidence
in the record that the restraint of the victim was not accom-
panied by the use of force. Neither is there evidence of a
kidnapping without a purpose of inflicting bodily injury or
terrorizing the victim. The evidence would not reasonably
support the lesser included offenses. We conclude that
defendant was not entitled to an instruction on these lesser
included offenses.
Defendant also contends that his instructions regarding
accomplice testimony should have been given, rather than the
instructions which were given. The court's Instruction No.
23 instructed the jury on accomplice testimony.1 Defendant's

1 Court's Instruction No. 23:
Testimony has been presented that one or more witnesses
may be accomplices in this case. In this respect you are to
be guided by the following rules of law:
1. An accomplice is one who knowingly and voluntarily,
with common intent with the principal offender, unites in the
commission of a crime. One may become an accomplice by being
present and joining in the criminal act, by aiding and abet-
ting, with criminal intent, another in its commission or in
being present by advising and encouraging its commission, hut
instructions, Numbers 13, 16, 17 and 31, which he contends
should have been given, were either redundant or not relevant
to accomplice testimony. Defendant's Instruction No. 13
described mental state; Instruction No. 16 dealt with the
concept of accountability; Instruction No. 17 explained
accomplice testimony and the need for corr~boration;~and
Instruction No. 31 also dealt with accountability.

knowledge and voluntary action are essential in order to
impute guilt.
2. It is a question of fact for the jury to determine
from the evidence and from the law as given you by the court
whether or not in this particular case one or more witnesses
were or were not accomplices within the meaning of the law.
3. The testimony of an accomplice ought to be viewed
with distrust.
4. A conviction cannot he had on the testimony of an
accomplice unless he/she is corroborated by other evidence
which in itself, and without the aid of the testimony of the
accomplice, tends to connect the defendant with the commis-
sion of the offense, and the corroboration is not sufficient
if it merely shows the commission of the offense or the
circumstances thereof.
2
Defendant's Instruction No. 17:
You are instructed a conviction cannot be had on the
testimony of one responsible or legally accountable for the
same offense, unless the testimony is corroborated by other
evidence which in itself and without the aid of the testimony
of the one responsible or legally accountable for the same
offense tends to connect the defendant with the commission of
the offense. The corroboration is not sufficient if it
merely shows the commission of the offense or the circum-
stances thereof.
To be sufficient, corroborating evidence must show more
than that a crime was in fact committed or the circumstances
of its commission.
The corroborating evidence must show more than a mere
opportunity to commit the crime. It must raise more than a
 The instructions given adequately stated the law in
regard to accomplice testimony. We conclude there was no
error regarding jury instruction on accomplice testimony.
As a final argument regarding jury instructions, defen-
dant claims that it was error for the court to instruct the
jury that flight by the defendant may show consciousness of
guilt. He contends there was no evidence that defendant ever
attempted to flee.
At trial defendant did not object to the giving of this
instruction, but only that it did not adequately define
"flight." The State correctly notes that defendant may not
change the basis of his objection on appeal. Sunday, 609
P.2d at 1195. We note, however, that defendant's objection
to this instruction on appeal is meritless since at trial a
substantial amount of evidence was presented from which the
jury could infer defendant's consciousness of guilt and the
possibility of flight. Defendant left the community hall
immediately after leaving the body, failing to close the
gate. He also proceeded to leave Campbell County, Wyoming,

suspicion of the defendant's involvement in, or opportunity
to commit, the crime charged. But corroborative evidence
need not be sufficient, by itself, to support a defendant's
conviction or even to make out a prima facie case against
him. Corroborating evidence may be circumstantial and can
come from the defendant or his witnesses.
One accomplice cannot supply the independent evidence
necessary to corroborate another accomplice.
Where the alleged corroborative evidence is equally
consonant with a reasonable explanation pointing toward
innocent conduct on the part of defendant, then such evidence
does not tend to connect him with the commission of the
offense and is in the realm of speculation, not corrobora-
tion. Where the claimed corroboration shows no more than an
opportunity to commit a crime and simply proves suspicion, it
is not sufficient corroboration to justify a conviction upon
the testimony of an accomplice.
using a fictitious name while hitchhiking. Defendant pur-
chased new clothes and threw away the old blood-spattered
clothes in Sheridan, Wyoming. He attempted to destroy evi-
dence in Billings, Montana, after he learned of his brother's
arrest. The evidence provided an adequate basis for the
flight instruction. We conclude there was no error in the
giving of this instruction.
v
Whether certain factual findings in the District Court's
sentencing order were supported by the evidence.
Defendant challenges the following findings of fact made
by the District Court in its sentencing order:

10. That the victim suffered a subdural
hematoma, as a result of the beatings in Custer
County, prior to the final beatings which led to
his death.
13. That the defendant knew that the victim
was married and had a family.
15. That the defendant killed JOHN MARTIN
ETCHEMENDY, JR. by beating him on the head with a
tire iron, rock and pipe. That the defendant also
cut the victim's throat with a small knife and shot
at him with a .22 shell which was held in a vice
grip.
22. That two of the aggravating circumstances
set forth in S46-18-303 of the Montana Code Anno-
tated apply in this case:
A. The offense was Deliberate Homicide
and was committed by means of
torture.
B. The offense was Aggravated Kidnap-
ping which resulted in the death of
the victim.
Defendant contends that the above quoted findings are
not supported by substantial credible evidence. This conten-
tion has no merit whatsoever in regard to the first three
findings of fact. These three findings are accurate summa-
ries of trial testimony which the court obviously chose to
believe. Dr. Robert Deters conducted the victim's autopsy.
He stated there was a subdural hematoma on the right side of
the head caused by a series of insults to the head. He
testified that the hematoma must have occurred at least an
hour prior to the injuries to the left side of the head. The
only beatings Mr. Etchemendy received prior to being placed
in the trunk occurred in Custer County. No testimony indi-
cates that he was beaten again prior to the fatal blows. We
conclude that finding number 10 is supported by substantial
credible evidence.
As to findings number 13 and 15, Diane Bull Coming
testified that defendant knew the victim was married and had
two children. She also testified that defendant beat the
victim with a tire iron, rock, and pipe, attempted to shoot
the victim by use of a vice grip, and that defendant attempt-
ed to cut the victim's throat with a knife. Photographs and
physical evidence corroborated this testimony. We conclude
that these findings by the court are supported by substantial
credible evidence.
Defendant contends that the court's finding that the
offense of deliberate homicide was committed by means of
torture is not supported by the evidence. The fatal blows in
Wyoming were brutally accomplished by use of a pipe, a tire
iron and a rock. During this beating the victim cried out,
"Oh God, no, God, no." Additionally, we cannot rationally
separate the final beating from the entire criminal transac-
tion which demonstrated a course of conduct involving brutal-
ity and extending over several hours. Prior to delivery of
the fatal blows in Wyoming the victim was brutally assaulted
several times and confined nude in the small trunk of a car
on a cool morning for a number of hours. The evidence
established that these prior beatings in Montana were severe
enough to be potentially fatal. Dr. Deters testified that
the subdural hematoma was potentially fatal. It is not
possible to determine from the medical evidence the extent to
which the prior beatings contributed to the victim's death.
The beatings and restraint, culminating in the bludqeoning to
death of the victim, constitute substantial credible evidence
that the homicide was committed by means of torture.
The determination that these acts were torturous is
consistent with this Court's previous holdings regarding
torture in death penalty cases. See, e.g., State v. Dawson
(Mont. 1988), 761 P.2d 352, 360, 45 St.Rep. 1542, 1551-52,
cert. denied, 109 S.Ct. 3200. (1989); (evidence supported
finding that deliberate homicide was committed by means of
torture where victims were bound and gagged in each others'
presence, injected with unknown drugs, and strangled); State
v. McKenzie (1976), 171 Mont. 278, 557 P.2d 1023, vacated,
433 U.S. 905 (1977), on remand, 177 Mont. 280, 581 P.2d 1205
(1978), cert. denied, 443 U.S. 912 (1979), on remand, 186
Mont. 481, 608 P.2d 428 (1980), cert. denied, 449 U.S. 1050
(1980) (holding that deliberate homicide was committed by
means of torture where victim was killed by a blow which laid
open her head, prior to which she was nonfatally strangled).
We conclude that there exists substantial credible evidence
to support a finding that defendant caused the victim's death
by torture. We affirm the sentencing court's finding on this
issue.
VI
Whether imposition of the death penalty is constitution-
al under the mandatory review criteria of S 46-18-310, MCA.
On appeal, defendant also challenges the constitutional-
ity of Montana's sentencing statutes which govern imposition
of the death penalty. Defendant relies on a recent Ninth
Circuit case, Adamson v. Ricketts (9th Cir. 1988), 865 F.2d
1011, petition for cert. filed, 57 U.S.L.W. 3739 (U.S. March
20, 1989) (No. 88-1553). In Adamson, the Ninth Circuit
declared unconstitutional Arizona's sentencing statutes which
govern imposition of the death penalty. In comparing Arizo-
na's statutes with those of Montana, we note that they are
similar.
Defendant did not raise this specific objection to
Montana's sentencing statutes at District Court. Although
defendant urges that he could not have raised this contention
at District Court since the Adamson case had not yet been
decided, nevertheless we decline to address this issue on
appeal. First, the Adamson decision is not binding on Mon-
tana, and we note that the decision has been appealed to the
United States Supreme Court. Second, this issue was not
raised at District Court and was neither substantively
briefed nor argued before this Court. Thus it is not appro-
priate for this Court to consider the issue. As a final
comment, we note that this Court has previously held these
statutes to be constitutional based on similar challenges in
Dawson, 761 P.2d at 360, and State v. Smith (1985), 217 Mont.
461, 490-91, 705 P.2d 1087, 1105-06, cert. denied, 474 U.S.
1073 (1986).
We conclude that the imposition of the death penalty was
constitutional under the review criteria of S 46-18-310, MCA.
VII
Whether the sentencing court committed prejudicial error
in its consideration of victim impact statements.
Although defendant does not raise this issue on appeal,
we note that in its sentencing order the District Court made
a finding of fact regarding the impact the victim's death has
had on family members. That finding of fact states:
 20. the victim's family has been deprived of
a son, husband and brother and the parents of the
victim have been for some time and now are undergo-
ing psychiatric counselling as a result of their
son's death.
The United States Supreme Court, in Booth v. Maryland
(1987), 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440, held
that the jury's consideration of a victim impact statement in
that case was error, requiring resentencing. We choose to
discuss this issue in the present case.
In Booth, the State of Maryland had a statute requiring
consideration at sentencing of victim impact statements if
the victim suffered injury or death. In Booth the sentencing
was done by the jury. The defendant was convicted of the
murder of an elderly couple. Before sentencing, a lengthy
statement written by the Maryland Division of Parole and
Probation was read to the jury. It contained statements made
by several family members, including a son, daughter, and
granddaughter. The statements described the good character
and reputation of the victims, and the emotional distress
suffered by the various family members. The statement was
lengthy and poignant, containing many facts regarding the
impact on the family.
The court held that consideration of the statement
violated the Eighth Amendment in that it could influence the
jury to impose sentence in an arbitrary or capricious manner.
The court stated that a victim impact statement is irrele-
vant, that it improperly diverts the jury's attention away
from the defendant and the crime, and that it is inconsistent
with the reasoned decision-making required in a capital case.
Booth, 482 U.S. at 503-09.
In the present case the record contains no written
victim impact statements. The source of the information
about the parents' counselling is from the father's testimony
at the presentence hearing. At this hearing the father also
testified that the victim graduated from Montana College of
Mineral Science and Technology with honors, that he had a
wife and two sons, and that the wife had moved in with her
parents since her husband's death. The father stated his
opinion that this was an appropriate case for the death
penalty.
In two recent Montana cases this Court discussed whether
consideration of victim impact statements at sentencing
constituted reversible error. In Dawson, the presentence
investigation report contained a three paragraph victim
impact statement, which stated that three members of a family
had died as a result of the homicide, and that the teenage
daughter was undergoing counseling but "not doing so well."
This Court concluded that Booth was not controlling in that
sentencing was by the court, not the jury, and because the
victim impact statement was not as lengthy or poignant as the
one in Booth. Dawson, 761 P.2d at 361. - - State v.
See also
Keith (Mont. 1988), 754 P.2d 474, 487-88, 45 St.Rep. 556,
573-75. The present case is distinguishable from - -
Booth in
that sentencing was by a judge rather than a jury, and there
was no written victim impact statement. The testimony by the
father was neither lengthy nor emotional. It was clearly not
as questionable as the information considered in Booth. We
conclude there was no reversible error in the sentencing
court's consideration of the statements.
VIII
Supreme Court sentence review pursuant to $ 46-18-310,
MCA.
In reviewing a death sentence pursuant to $ 46-18-310,
MCA, this Court must determine 1) whether the sentence was
imposed under the influence of passion, prejudice, or any
other arbitrary factor; 2) whether the evidence supports the
court's findings on any mitigating and aggravating circum-
stances; and 3) whether the sentence is excessive or dispro-
portionate to the penalty imposed in similar cases,
considering both the crime and the defendant.
Appellant has not contended that the sentence was im-
posed under the influence of passion, prejudice, or any other
arbitrary factor. In Issue VII we discussed the District
Court's consideration of a victim impact statement and con-
cluded that there was no indication that defendant was preju-
diced by this. Additionally, we note that the findings of
the sentencing court are lengthy and dispassionate. From our
review of the entire record we conclude that there is no
indication that the sentence was imposed under the influence
of passion, prejudice, or any other arbitrary factor.
The second determination requires this Court to consider
whether the evidence supports the sentencing court's findings
of aggravating and mitigating circumstances. The court found
two aggravating circumstances. It determined that the of-
fense was deliberate homicide committed by means of torture,
and also that the offense was aggravated kidnapping which
resulted in the death of the victim. In Issue V we discussed
the court's finding that the deliberate homicide was commit-
ted by means of torture, concluding that substantial credible
evidence supported this finding. In Issue I we discussed the
elements of aggravated kidnapping and the elements of delib-
erate homicide under the felony murder rule. We determined
that the elements of each offense were satisfied. From this
previous determination, we conclude that the second aggravat-
ing circumstance was supported by substantial credible
evidence.
The sentencing court found that the only possible miti-
gating circumstance was that the defendant had no significant
history of prior criminal activity. It went on to conclude
that when compared to the enormity of the offenses committed
and circumstances thereof, that the mitigating circumstance
was not sufficiently substantial to call for leniency. This
same mitigating circumstance was present in Dawson, wherein
this Court affirmed the sentencing court's refusal of lenien-
cy in light of the offenses committed. Dawson, 761 P.2d at
361-62. See also Smith, 705 P.2d at 1097; State v. Coleman
(1979), 185 Mont. 299, 331-32, 605 P.2d 1000, 1019-20, cert.
denied, 446 U.S. 970 (1980). In the present case, in view of
the offenses committed, we conclude that the evidence sup-
ports the court's finding that the mitigating circumstance is
not sufficiently substantial to call for leniency.
Finally, this Court must determine whether the sentence
is excessive or disproportionate to the penalty imposed in
similar cases, considering both the crimes and the defen-
dants. Defendant has presented no argument on this, however
in accordance with our statutory duty, we have compared the
following cases appealed to this Court which involved similar
crimes for which the death penalty was or could have been
imposed: Dawson; State v. Keefe (1988), 759 P.2d 128, 45
St.Rep. 1034; Keith; Smith; State v. Fitzpatrick (1980), 186
Mont. 187, 606 P.2d 1343, cert. denied, 449 U.S. 891 (1980),
rev'd on other grounds, 869 F.2d 1217 (9th Cir. 1989), cert.
denied, 110 S.Ct. 203 (1989); Coleman; and McKenzie.
After examination of such factors as the gravity of the
offenses, the brutality with which they were committed, and
the existence of any factors meriting leniency, we hold that
the sentence in the present case is not disproportionate or
excessive to othexs imposed in similar cases. All the
above-cited cases, except Keefe, involved a death penalty
imposed for the aggravated kidnapping and subsequent homicide
of a victim. So too does this case. The factor meriting
leniency in Keefe, namely, the fact that Keefe was under the
age of 18 at the time he committed the three homicides and
thus given life rather than death sentences, does not exist
in this case. Lester Kills on Top was 25 years of age at the
time he committed the charged crimes. We conclude that the
homicide in this case, as in the other above-mentioned cases,
involved the vicious, senseless, and calculated killing of an
innocent person.
IX
Whether the present death penalty constitutes cruel and
unusual punishment prohibited by the United States and Mon-
tana Constitutions.
We here respond in part to the dissent which contends
that the death penalty in this case constitutes cruel and
unusual punishment prohibited by the Constitutions. The
Eighth Amendment to the United States Constitution and Mon-
tana Constitution Article 11, Section 22, prohibit punishment
which is cruel and unusual. The death penalty is not in all
circumstances cruel and unusual punishment, Gregg v. Georgia
(1976), 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859, but it
may not he imposed arbitrarily or capriciously, Furman v.
Georgia (1972), 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346.
Using the factors cited by Justice Brennan in Furman,
the dissent concludes that the death penalty in this case
constitutes cruel and unusual punishment because the death
penalty is not acceptable to contemporary Montana society,
and because the death penalty statutes of Montana allow for
arbitrary conduct.
In Montana we have a much clearer expression of the view
of the citizens of the State than is present in many other
states. In 1972 the people of Montana decisively voted to
retain the death penalty. As stated in State v. McKenzie
(1976), 171 Mont. 278, 294, 557 P.2d 1023, 1033:
 . . . The people of Montana voted for 147,023 and
against 77,733, to retain the death penalty. Such
a vote, so recently, negates any argument the death
penalty violates contemporary standards of decency.
A statewide election less than 20 years ago, in which the
majority vote approved the death penalty by approximately
2-1, profoundly supports a conclusion that the death penalty
is acceptable to the contemporary society of Montana.
After the decision of the United States Supreme Court in
Furman, as well as the cases decided by that court in 1976,
the Montana Legislature in 1977 enacted the extensive provi-
sions in death penalty sentencing which are set forth today
in 5 s 46-18-301 through 310, MCA. A brief summary of the key
portions of those sections follows. Section 46-18-301, MCA,
provides that the judge who presided at the trial shall
conduct a separate sentencing hearing to determine the exis-
tence or nonexistence of the aggravating and mitigating
circumstances set forth in 55 46-18-303 and 304, MCA. Sec-
tion 46-18-302, MCA, provides in pertinent part as follows:

In the sentencing hearing, evidence may be present-
ed as to any matter the court considers relevant to
the sentence, including but not limited to the
nature and circumstances of the crime, the defen-
dant's character, background, history, and mental
and physical conditions and any other facts in
aggravation or mitigation of the penalty . . .
Evidence admitted at the trial relating to such
aggravating or mitigating circumstances shall be
considered without reintroducing it at the sentenc-
ing hearing. . ..
Section 46-18-303, MCA, enumerates specific aggravating
circumstances. The aggravating circumstances in this case
were that the offense was deliberate homicide and was commit-
ted by means of torture, and that the offense was aggravated
kidnapping which resulted in the death of the victim. Sec-
tion 46-18-304, MCA, sets forth mitigating circumstances.
The only one found by the District Court was that the defen-
dant had no significant history of prior criminal activity.
The most recent amendment to this part of the statutes in-
cluded an aggravating circumstance added by the Legislature
in 1989. While the view of the Montana Legislature does not
necessarily establish the view of the people of Montana, it
does indicate a continuing attempt on the part of the Montana
Legislature to maintain the death penalty in Montana, while
meeting the requirements set forth by the various decisions
of the United States Supreme Court. We conclude that the
death penalty is acceptable to the contemporary society of
the State of Montana.
The dissent concludes that Montana's statutes allow for
arbitrary conduct on the part of the sentencing judge. In
his special concurrence in McKenzie, Justice Haswell consid-
ered the issue of whether the Montana statutes governing
imposition of the death penalty were arbitrary. He concluded
they were not arbitrary and that they met the standards of
Furman. McKenzie, 557 P.2d at 1045-46. Since the date of
McKenzie, the Montana Legislature has added the statutory
list of mitigating factors which must be considered, and has
made other amendments as well.
The dissent points out that under the provisions of 5
46-18-302, MCA, the sentencing court may consider "any matter
relevant to the sentence whether or not admissible under
criminal rules." The dissent suggests that this giving of
broad discretion allows consideration of additional aggravat-
ing factors which have no direct bearing on the criminal
responsibility of the defendant. As previously quoted, S
46-18-302, MCA, does allow consideration of other matters by
the sentencing court. We further note that under that sec-
tion, the sentencing court is allowed to consider evidence
admitted at the trial relating to both aggravating and
mitigating circumstances without any reintroduction of that
evidence. We also note that the sentencing court is required
to make specific written findings of fact. Section
46-18-306, MCA. Further, it is appropriate that the sentenc-
ing court consider all evidence relevant to sentencing. This
Court has previously concluded that the consideration of
aggravating factors other than those statutorily enumerated
was appropriate. In McKenzie v. Osborne (1982), 195 Mont.
26, 640 P.2d 368, defendant attacked the sentence on the
ground that the court had relied on aggravating factors other
than those found in our statutes. This Court stated that the
factors "properly relate to the propriety of the sentence of
death." McKenzie, 640 P.2d at 382.
The requirement that the sentencing court make these
findings is significant when considering the issue raised by
the dissent in regard to the jury verdict which found defen-
dant guilty under the felony murder rule, and certain find-
ings by the sentencing court indicating that defendant killed
the victim. The dissent suggests the court's findings and
the verdict are inconsistent and that the sentencing court
became the fact-finder. We emphasize however, that these
findings by the sentencing court were not improper.
In Enmund v. Florida (1982), 458 U.S. 782, 102 S.Ct.
3368, 73 L.Ed.2d 1140, the court held that the death penalty
may be imposed if defendant killed, attempted to kill, or
intended to kill or that lethal force be used. This deter-
mination as to defendant's culpability need not be made by a
jury, but may be made at any point in the state criminal
process. Cabana v. Bullock (1986), 474 U.S. 376, 106 S.Ct.
689, 88 I,.Ed.2d 704, overruled in part on other grounds;
Pope v. Illinois (1987), 481 U.S. 497, 504, 107 S.Ct. 1918,
1922, 95 L.Ed.2d 439, 447. See also Tison v. Arizona (1987),
481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127.
 Applying the rule of Enmund and Cabana, the sentencing
court made the determination that defendant killed the vic-
tim. We conclude that the findings and conclusions by the
sentencing court are properly within the provisions of the
statutes and that there is no contradiction present casting
doubt on the validity of the death penalty. Under our statu-
tory provisions, the sentencing judge is clearly given the
responsibility and power to make this determination.
Our statutes now give adequate standards and guidelines
to be applied by the sentencing court, yet allow for and
encourage individualized sentencing. In Montana, sentence is
imposed by the district court judge, whose background and
experience is in comparing aggravating and mitigating
factors.
We conclude that in Montana the death penalty is accept-
able to contemporary society, is not excessive for the crimes
for which it may be imposed, and that our statutes guiding
the sentencing process and our provisions for sentence review
do not allow the prohibited arbitrary conduct on the part of
the sentencing court.
We hold that the death penalty here does not constitute
cruel and unusual punishment prohibited by the United States
and Montana Constitutions.
Having reviewed the entire record in this case in af-
firming the determinations by the judge of the District
Court, and in consideration of the Enmund and Cabana rules,
this Court also independently finds and concludes that defen-
dant killed Martin Etchemendy, Jr. We also find and conclude
that two statutory aggravating circumstances were present in
that the offense was deliberate homicide committed by means
of torture and that the offense was aggravated kidnapping
which resulted in the death of the victim. We therefore
affirm both the convictions and the sentences.
 X
This Court has reviewed the entire record and applicable
law and hereby affirms the sentences of death imposed by the
District Court. This case is remanded to the District Court
which shall set a date for execution in accordance with the
statutes.
Affirmed .

F e Concur:
l ,
,
/

Justices
Mr. Justice John Conway Harrison specially concurring.

I concur with the majority. I note with considerable interest
the dissent of Mr. Justice Sheehy, and while I cannot concur in his
dissent, I feel the time has come to note the frustrations of State
Appellate Justices in capital cases. Like Justice Sheehy, I have
authored three of some twelve cases that have been before this
Court in the past twenty-nine years. In addition, I have read the
briefs and voluminous transcripts of every case in which I upheld
the death sentence. It was not a pleasant task to say the least,
however, it comes with this office.
I find myself disagreeing with some of Mr. Justice Sheehy's
dissent and, in taking issue with his statements, I do not question
either his integrity or his right to change his mind. First he
notes that whether the death penalty is acceptable to contemporary
Montana society is arguable. As he notes the last time it was
submitted to the people of this State it was overwhelmingly
approved. Yet as he says the last death penalty sentence that was
carried out in this State was in 1944. What he fails to note is
that in the past thirty years the United States Supreme Court has
twice found State laws providing for the death sentence
unconstitutional. This necessitated twenty-one States passing new
laws in order to comply with the United States Supreme Court's
opinions. Montana is one of those States. After each of the
United States Supreme Court's opinions, a thousand or more persons
sentenced to death had their sentences changed to life sentences
and many of these people have since been paroled or have served the
maximum time and returned to the various communities of this
country. I find the fact that the States have redone their laws
twice in this period indicative of strong support for the death
sentence in those states.
Likewise I disagree with his premise that the Montana
experience since 1977, when the legislature put the sentencing in
the hands of the trial judge, rather than the jury, cannot be said
to represent the wide spectrum of public sentiment on social issues
called for by the Supreme Court in Gregg v. Georgia (1976), 428
U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859, reh. den. 429 U.S. 875,

97 S.Ct. 197, 50 L.Ed.2d 158, (1976). Rather, I find that trial
judges, like appellate judges, take great care and caution before
ever sentencing a person to death. I believe this protection for
a defendant prevents runaway jury passions.
It is not the various State trial judges or justices of
appellate courts who have delayed the carrying out of their laws
on capital punishment. That obvious honor belongs in the Federal
system. The worst example in this State is that of Duncan McKenzie
who was convicted in 1975, and who has now spent some fourteen
years on death row. There was a time in our history when people
worried about the execution of Caryl Chessman, a murderer in
~alifornia,who spent some seven years on californialsdeath row.
Chessman v. Teets (1957), 354 U.S. 156, 77 S.Ct. 1127, 1 L.Ed.2d
1253. He was just a newcomer to death row compared to McKenzie,
whose case has been like a yo-yo ever since it left this Court and
went into the Federal system. It has been said of McKenziels case
that he has a death sentence but "he will carry it out by dying of
old age. l1
There is no more difficult work, nor emotional task than that
given jurors, trial judges and appellate justices in finding a
human being guilty of murder, and sentencing, upholding or
approving of a death sentence. In each of the cases heard and
approved by this Court we have had twelve jurors find the defendant
guilty, a trial judge both approve of their findings and give the
sentence, followed by seven appellate justices carefully reading
the record and finding that the defendant had a fair trial and was
properly sentenced. Throughout the trial and appellate
proceedings, competent trial lawyers plus judges and justices, many
of whom have tried and defended capital cases in their practice,
have been given the duty of administering justice. However, once
it leaves the State jurisdiction and goes into the Federal system
often times, due to the multiple cases before both the Circuit
Courts and the Supreme Court, law clerks review the work of the
State jurisdiction. While the United States Supreme Court can ask
for transcripts of the cases I am informed that often they do not
have them as did the State Supreme Courts in their review of the
cases. As a result we have over 2,000 prisoners on death row in
the various States having capital punishment statutes. The law
should have some finality but as witnessed above in the McKenzie
case, there seems to be none. Only the United States Supreme Court
can provide the answer and that answer is long overdue.
Justice William E. Hunt, Sr. specially concurs:

I concur with the result reached by the majority
opinion, but do not agree with all that is said in that
opinion.
/
'
Justice John C. Sheehy, dissenting:

For a long time I have had the moral conviction that
exacting the penalty of death in criminal cases was
improper. I have come to the legal conviction that the
death penalty is indeed cruel and unusual punishment and so
prohibited by the Eighth Amendment to the United States
Constitution. The Cruel and Unusual Punishment Clause is
applicable to the states through the Due Process Clause of
the Fourteenth Amendment. Robinson v. California (1962),
370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758.
This case comes to us on a direct appeal and also under
the automatic review of death penalty sentences pursuant to
5 46-18-307, MCA. Whether on appeal or under automatic
review, this Court is required under 46-18-310, MCA, to
determine whether or not the death sentence was properly
imposed by the District Court. The automatic review
provision was adopted by the legislature in 1977, as an
obvious response to Furman v. ~eorgia (1972), 408 U.S. 238,
92 S.Ct. 2726, 33 L.Ed.2d 346. The history of the action by
the states following Furman is set out in Pulley v. Harris
(1984), 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29. There
the Supreme Court stated:
Harris's submission is rooted in Furman v.
Georgia, 408 U.S. 238 (1972). In Furman, the
court concluded that capital punishment, as then
administered under the statutes vesting unguided
sentencing discretion in juries and trial judges,
had become unconstitutionally cruel and unusual
punishment. The death penalty was being imposed
so discriminatorily (408 U.S. at 240) (Douglas, J.
concurring) so wantonly and freakishly, id. at
306, (Stewart, J. concurring), and SO
infrequently, id. at 370 (White, J. concurring),
 that any given death sentence was cruel and
unusual. In response to that decision, roughly
two-thirds of the States promptly redrafted their
capital sentencing statutes in an effort to limit
jury discretion and avoid arbitrary and
inconsistent results. All of the new statutes
provide for automatic appeal of death sentences.
Most, such as Georgia's, require the reviewing
court, to some extent at least, to determine
whether, considering both the crime and the
defendant, the sentence is disproportionate to
that imposed in similar cases. Not every State
has adopted such a procedure. In some States,
such as Florida, the appellate court performs
proportionality review despite the absence of the
statutory requirement; in others, such as
California and Texas, it does not.
Pulley, 465 U.S. at 44.
The appeal here and the automatic review provisions
bring to this Court once again yet another death penalty
case and brings me face to face with the ultimate question,
is the imposition of the death as prescribed by Montana
statutes in capital cases cruel and unusual punishment and
so forbidden by the United States Constitution? Indeed,
does the imposition of the death penalty also offend our
state constitution which likewise prohibits cruel and
unusual punishment (Art. 11, § 22, 1972 Mont. Const.)? I
have firmly concluded that it does offend the federal and
state constitutions to impose a death penalty and in that
conclusion I align myself with the position taken by Mr.
Justice William Brennan in Furman v. Georgia, supra. There,
Justice Brennan discussed in full terms the background of
the death penalty history, the reasons given for it and the
reasons against it, and concluded finally that the death
penalty was unconstitutional.
Justice Brennan based his conclusion upon four
principles: (1) the punishment must not be so severe as to
be degrading to the dignity of human beings; (2) the
imposition of the sentence must not be arbitrary; (3) the
severe punishment must not be unacceptable to contemporary
society; and, (4) the severe punishment must not be
excessive.
Whether the death penalty is acceptable to contemporary
Montana society is arguable. When the state constitution
was submitted to the voters in 1972, they were given a
chance to vote on the acceptability of the death penalty.
It was widely endorsed. Yet, the last death penalty imposed
and carried out in Montana before the adoption of the 1972
Montana Constitution was in 1944. For at least 30 years,
until the adoption of the provisions of automatic review,
the death penalty had not been imposed in the state. Until
1966, the determination of whether the death penalty should
be imposed was given first to the discretion of the jury,
and, if the jury left the punishment to the court, then to
the presiding judge. Section 94-2505, R.C.M. (1947). Thus,
while the voters in 1972 as an abstract proposition accepted
the death penalty, juries and after them the district
judges, when faced with real cases, did not impose the death
penalty. We frequently state in support of the jury system,
that because of their very number, a jury represents the
sense of community values in deciding cases. The U.S.
Supreme Court once said that jury reluctance in death cases
possibly reflected Inthe humane feeling that this most
irrevocable sanction should be reserved for a small number
of extreme cases. Gregg v. Georgia (1976), 428 U.S. 153,
182, 96 S.Ct. 2909, 2929, 49 L.Ed.2d 859. The Montana
experience since 1977 indicates that judges are far more
likely than juries to impose the death sentence. A district
judge acting singly cannot be said to represent the wide
spectrum of public sentiment on social issues.
 Moreover, at the time of the state vote on the death
penalty in 1972, the only mode of execution allowed by our
law was hanging by the neck until dead. In 1983, (Ch. 411,
Laws of Montana (1983)) the legislature amended the law of 5
46-19-103, MCA, to permit the defendant to choose death by
lethal injection of an 81ultra-fast-acting1rbarbiturate
instead of hanging. In itself, this amendment is an
admission by the legislature that death by hanging is too
horrible to contemplate. Whether death by lethal injection
of a drug is less horrible, we do not know. None has
experienced it yet in Montana as punishment for a crime. We
have no reports from other states on the subject, largely
because of "that undiscovered country from whose bourne no
traveler returns to tell us of the way." What the change
from hanging to lethal injection does tell us is that
Montanans are seeking an easier way to end human life for
crime. In truth, there is no easy way.
Another of Justice Brennanls tests as to whether
punishment is cruel and unusual is whether it is imposed
arbitrarily. As I explain below, in this case the death
penalty was imposed arbitrarily, and the present statutes
adopted by Montana allow such arbitrary treatment.
It was not easy for me to conclude on constitutional
grounds that the death penalty was improper, even though I
oppose it on moral grounds. When first I came to this
Court, I was imbued with the responsibility of judges to
uphold the constitution and thus subordinated my moral
feelings to my thought that I should put those aside and
decide this type of case solely on what I perceived to be
legal grounds. In fact, I authored two opinions affirming
death penalties. State v. Coleman (1979), 185 Mont. 299,
605 P.2d 1000; State v. Fitzpatrick (1980), 186 Mont. 187,
606 P.2d 1343. All through the 1980s, these cases have been
grinding their way through the federal system and most
recently, each has been reversed and remanded. Execution by
death of several other defendants in Montana are on hold
because of further proceedings, including the oldest case,
where, even though the death penalty was affirmed in 1976,
no execution date is now set as far as I know. State v.
McKenzie (1976), 171 Mont. 278, 557 P.2d 1023. Thus, even
though the death penalty has been on the books at all times
no person has been executed in Montana in the last 45 years
as punishment for crime. There has been no more than slight
public reaction. That, too, tells us something about
community standards and values.
11.
As is stated above, the Montana statutes permit the
imposition of the death penalty arbitrarily. In this case,
the court in fact acted arbitrarily in finding factors for
the imposition of death.
It is provided in 5 46-18-305, MCA, that the District
Court in determining whether to impose a sentence of death
or imprisonment "shall take into account the aggravating and
mitigating circumstances enumerated in 5 46-18-303, MCA, and
5 46-18-304, MCA, and shall impose a sentence of death if it
finds one or more of the assravating circumstances and finds
there are no mitisatinq circumstances sufficiently
substantial to call for leniency." There are nine
aggravating circumstances listed in 5 46-18-303, MCA, and
eight mitigating circumstances listed in 5 46-18-304, MCA.
When read in conjunction with 5 46-18-305, MCA, a proper
interpretation would be that the District Court is limited
in determining aggravating factors to 5 46-18-303, and in
determining mitigating circumstances, to 5 46-18-304.
Opposed to the concept that the court is limited under
5 46-18-305 to the statutory aggravating circumstances and
mitigating circumstances is the language of 5 46-18-302.
That section provides that the District Court in sentencing
may consider any matter relevant to the sentence whether or
not admissible under criminal trial rules and the District
Court is given broad discretion as to whether it may
consider such evidence as probative. Thus, the door is wide
open in the sentencing procedure for the District Court to
consider not only the aggravating circumstances listed in 5
46-18-303 but additional factors which would have no direct
bearing on the criminal responsibility of the defendant.
This case illustrates arbitrary findings by the
District Court of circumstances other than those listed in 5
46-18-303. Of the statutory aggravating circumstances, the
only one picked up by the court and used to justify the
death sentence is that the offense was deliberate homicide
and was committed by means of torture. The only mitigating
circumstance found by the court was the defendant had no
significant history of prior criminal activity. If 5 46-
18-305 is read properly, these are the only aggravating and
mitigating circumstances which the court should have
considered in sentencing the defendant. However, the
District Court chose, apparently under the broad language of
9 46-18-302 to add a number of aggravating factors, not
statutory factors, including the following: that the
defendant knew the victim was married and had a family (par.
13) (this is disputed by the defendant); that the defendant
had no real employment history, and never held a job for any
appreciable length of time, and at the age of 26 years had
children by three different women, none of whom he supported
(par. 19); and that the victim's family had been deprived of
a son, husband or brother and that the parents of the victim
are now undergoing psychiatric counseling because of their
son's death (par. 20) None of these is listed as a
statutory aggravating circumstance and only the District
Court judge knows what influence these additional factors
had in bringing about the sentence of death.
Thus, the Montana statutes on the subject permit
arbitrary action by the District Court of the highest
degree, since the result can be so drastic and irreversible.
Now, it is true that in Lockett v. Ohio (1976), 438
U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973, the United States
Supreme Court held that because the death penalty is so
profoundly different from all other penalties,
individualized decision-making is essential in capital
cases. To that end, the Supreme Court endorsed in Lockett
that at the sentencing hearing, evidence outside the trial
record relating to the defendant's character or the
circumstances of the offense, but only as mitiqatins factors
could be considered. The Court said:
We are now faced with those questions and we
conclude that the Eighth and Fourteenth Amendments
require that the sentencer, in all but the rarest
capital case, not be precluded from considering,
as a mitisatins factor any aspect of a defendant's
character or record and any of the circumstances
of the offense that the defendant proffers as a
basis for a sentence less than death ...
(Emphasis in original.)
Lockett, 438 U.S. at 604.
Thus, the provisions of 46-18-302, MCA, which open
the door to extraneous evidence having to do with the
sentence has judicial blessing only as to mitigating
factors. The use of extraneous evidence to find aggravating
factors, over and above those statutorily provided or
implicit in the crime itself, have no such blessing. One of
the important reasons is that if such aggravating factors
are to be considered in connection with the fixing of death
as punishment, the defendant ought to be entitled to a trial
by jury as to those factors, and that brings me to a further
problem with respect to the Montana statutes.
In Adamson v. Ricketts (9th Cir. 1988), 865 F.2d 1011,
the Circuit Court had before it a habeas action against the
Arizona director of the Department of Corrections. The
Federal District Court held, among other things, that
Arizona's statutory scheme for the imposition of the death
penalty unconstitutionally limited the court's consideration
of mitigating circumstances and allowed an arbitrary
imposition of the death penalty.
The Circuit Court held that the Arizona statutes (which
are much like Montana's) permitted elements of the offense
to be determined by the sentencing judge, which deprived the
defendant of the right to trial by jury as to all of the
elements of the crime and thus violated the Sixth and
Fourteenth Amendments. The Circuit Court also determined
that the examination of death sentencing statutes required
heightened scrutiny. It further held that there must be a
strict separation between the determination of guilt and
innocence (fact-finding) and the determination of an
appropriate punishment (sentencing). The Adamson case is
now on appeal to the United States Supreme Court.
In the case we are now considering, the District Court
engaged in extensive fact-finding relating to the
defendant's guilt or innocence in imposing the death
sentence. It found that the offense was deliberate homicide
and was committed by means of torture; it found extraneous
circumstances as are noted above. The greatest problem,
however, is that the District Court in effect found that the
defendant had committed the crime directly, although my
interpretation of the charges against Lester Kills On Top
and the verdicts found against him relate to accountability
under the felony-murder rule. The District Court claimed
that he was not convicted under the felony-murder rule.
The majority had accepted the finding of the District
Court that defendant committed the crime directly, and
beyond that, the majority now declare also, after a review
of the record, that the defendant did kill Mart'n

verdict of not guilty on the deliberate homicide charge.
so acting, the majority have misinterpreted Enmund v.
in
Etchemendy, Jr. The jury found otherwise when it returned a

Florida (1982), 458 U.S. 782, and Cabana v. Bullock (1986),
474 U.S. 497. Nothing in those cases gives a sentencing
court, or an appellate court, the right to reverse a ju y
verdict to achieve a hanging or a lethal injection of the
F,

defendant. (See Cabana, 474 U.S. at 386, fn. 5).
Attached to this dissent as an exhibit are the five
counts of the amended information under which the defendant
was charged, and the jury verdict with respect to each
count. It will be seen that the defendant was found suiltv
under Count I of robbery in the course of committing, or
aiding and abetting in the commission of, a theft from the
victim while inflicting, or aiding and abetting bodily
injury upon the victim. He was found not quiltv under Count
I1 of aggravated kidnapping for the purpose of facilitating
the commission of the crime of robbery. He was found suiltv
in Count I11 of aggravated kidnapping with the purpose of
inflicting bodily injury or terrorizing the victim. He was
found not suiltv under Count IV of deliberate homicide. He
was found guilty under Count V of deliberate homicide in
that he was engaged in the commission of or legally
accountable for the commission of aggravated kidnapping,
resulting in the death of the victim which was caused by the
defendant or another person legally accountable for the
crime of aggravated kidnapping.
 It is clear to me that if the defendant here was not
found guilty under the felony-murder rule on the basis of
accountability, then the verdicts are inconsistent because
the jury did not find him guilty of direct deliberate
homicide or direct aggravated kidnapping. In fact, even his
robbery conviction seems to be on the basis of
accountability.
The whole tenure of the District Court's findings with
respect to the sentence of death is that the defendant
committed the acts directly. No mention is made in the
findings either of the felony-murder convictions or of
accountability. Thus, the District Court has either ignored
the jury verdict, and improperly sentenced the defendant for
directly committing crimes for which he has not been
convicted by the jury or the District Court has become the
sole fact-finder in spite of the jury's verdict. In either
event, the defendant has been deprived of his right to a
jury trial.
Fifteen states do not provide a death penalty in
capital cases. Of the 35 states that do so provide, only
four allow the judge, and not the jury, to determine the
aggravating factors and mitigating circumstances for the
imposition of the death penalty. Here, the District Court
found that the defendant had committed deliberate homicide
and caused the death of the victim by torture. While it may
be a question of semantics, it is nonetheless true that no
jury determined that the victim died by torture. The jury
did determine that his death was caused by the infliction of
bodily injury and by terror.
Since the death penalty hinges in Montana on the
statutory aggravating circumstances of 5 46-18-303, MCA,
those aggravating circumstances are an element of the crime,
and the defendant is entitled to a jury trial as to those
elements. In Montana, the right to a jury trial is by our
Constitution, secured to all and shall "remain inviolate.I1
Art. 11, 8 26, 1972 Mont. Const. The Sixth Amendment to the
United States Constitution guarantees an impartial jury
trial in criminal prosecutions. Montana statutes deprive a
defendant in a capital case of a jury trial on the most
critical elements that relate to his sentence.
In this case, therefore, I would uphold the conviction
of the defendant for robbery, aggravated kidnapping, and
deliberate homicide. I would remand the cause to the
District Court for resentencing of the defendant but forbid
the death penalty.

EXHIBIT TO THE DISSENT JUSTICE JOHN C. SHEEHY
The following are the charges against the defendant
Lester Kills On Top, with the jury result as to each count:

AMENDED INFORMATION

COUNT I
The Defendant, LESTER KILLS ON TOP, committed
the offense of Robbery, a felony, as defined in
845-5-401(1) (a) and 845-2-302( 3 ) , MCA in that on
or about October 17, 1987, in Custer County,
Montana and Campbell County, Wyoming, LESTER KILLS
ON TOP did, in the course of committing or aiding
and abetting in the commission of a theft from
JOHN MARTIN ETCHEMENDY, JR., inflict, or aided and
abetted in inflicting, bodily injury upon JOHN
MARTIN ETCHEMENDY, JR. , contrary to the fo m ,
force and effect of the statutes in such cases
made and provided, and against the peace and
dignity of the State of Montana.
JURY VERDICT: Guilty
 COUNT I1
The Defendant LESTER KILLS ON TOP, committed
the offense of Aggravated Kidnapping, a felony, as
defined in 545-5-303 (1)(b) and 545-2-302 (3), MCA,
in that on or about October 17, 1987, in Custer
County, Montana and Campbell County, Wyoming,
LESTER KILLS ON TOP did purposely or knowingly and
without lawful authority restrain or aid and abet
in restraining JOHN MARTIN ETCHEMENDY, JR. by
holding or aiding and abetting in holding him in a
place of isolation, or by using or aiding and
abetting in the use of physical force against JOHN
MARTIN ETCHEMENDY, JR. with the purpose of
facilitating the commission of the crime of
Robbery, a felony, or the flight thereafter,
contrary to the form, force and effect of the
statutes in such case made and provided, and
against the peace and dignity of the State of
Montana.
JURY VERDICT: Not guilty
COUNT I11
(Alternative Count to Count 11)
The Defendant, LESTER KILLS ON TOP, committed
the offense of Aggravated Kidnapping, a felony, as
defined in 5 45-5-303 (1)(c) and 945-2-302 (3), MCA,
in that on or about October 17, 1987, in Custer
County, Montana and Campbell County, Wyoming,
LESTER KILLS ON TOP did purposely or knowingly and
without lawful authority restrain or aid and abet
in restraining JOHN MARTIN ETCHEMENDY, JR. by
holding or aiding and abetting in holding him in a
place of isolation or by using or aiding and
abetting in the use of physical force against JOHN
MARTIN ETCHEMENDY, JR. with the purpose of
inflicting bodily injury on or terrorizing JOHN
MARTIN ETCHEMENDY, JR., contrary to the form,
force and effect of the statutes in such case made
and provided, and against the peace and dignity of
the State of Montana.
JURY VERDICT: Guilty
 COUNT IV
The Defendant, LESTER KILLS ON TOP, committed
the offense of Deliberate Homicide, a felony, as
defined in 545-5-102(1) (b), MCA, in that on or
about October 17, 1987, in Custer County, Montana
and Campbell County, Wyoming, while LESTER KILLS
ON TOP was purposely or knowingly engaged in the
commission of or legally accountable for the
commission of Robbery, or flight after the
commission of the crime of Robbery, a felony,
which involved the use of physical force and
violence against JOHN ETCHEMENDY, JR., the death
of JOHN MARTIN ETCHEMENDY, JR. was caused by
LESTER KILLS ON TOP or another person legally
accountable for the crime of Robbery, contrary to
the form, force and effect of the statutes in such
case made and provided, and against the peace and
dignity of the State of Montana.
JURY VERDICT: Not Guilty
COUNT V
(~lternativeCounty to Count IV)
The Defendant, LESTER KILLS ON TOP, committed
the offense of Deliberate Homicide, a felony, as
defined in 5 45-5-102 (1)(b), MCA, in that on or
about October 17, 1987, in Custer County, Montana
and Campbell County, Wyoming, while LESTER KILLS
ON TOP was purposely or knowingly engaged in the
commission of or legally accountable for the
commission of Aggravated Kidnapping, or flight
after the commission of the crime of Aggravated
Kidnapping, or flight after the commission of the
crime of Aggravated Kidnapping, a felony, which
involved the use of physical force and violence
against JOHN MARTIN ETCHEMENDY, JR. , the death of
JOHN MARTIN ETCHEMENDY, JR. was caused by LESTER
KILLS ON TOP or another person legally accountable
for the crime of Aggravated Kidnapping contrary to
the form, force and effect of the statutes in such
case made and provided, and against the peace and
dignity of the State of Montana.
JURY VERDICT: Guilty