Vernon Kills on Top v. State

NO. 94-183
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996

APPEAL FROM: District Court of the Sixteenth Judicial District,
In and for the County of Custer,
The Honorable M. James Sorte, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Wendy Holton, Attorney at Law,
Helena, Montana
James Thomson (argued), Attorney at Law,
Berkeley, California
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
Clay Smith (argued), Solicitor, Attorney
General's Office, Helena, Montana

Heard: September 15, 1995
Submitted: November 2, 1995
Decided: November 25, 1996
Filed:

Cledtk
Justice Terry N. Trieweiler delivered the opinion of the Court.

The petitioner, Vernon Kills On Top, was convicted of robbery,

aggravated kidnapping, and deliberate homicide following trial by
jury in the District Court for the Sixteenth Judicial District in

Custer County on August 6, 1988. On September 8, 1988, he was

sentenced to forty years in the Montana State Prison for robbery,

and death for the kidnapping and homicide convictions. His

conviction was appealed to this Court and affirmed in Statev. Vernon

KilkOnTop (1990), 243 Mont. 56, 793 P.Zd 1273, cert.denied (1991), 501

U.S. 1259.

On February 19, 1992, the petitioner filed a petition for

postconviction relief pursuant to § 46-21-101, MCA, in the same

District Court in Custer County. In that petition, he claimed

fifteen separate grounds for relief. All but part of one claim

were dismissed by the District Court by summary judgment. Part of

the petitioner's second claim which was not dismissed by summary

judgment was denied after an evidentiary hearing. In addition, the

petitioner's motion to amend claims 2 and 11 and add claims 16-18,

and his motions for investigative assistance, leave to conduct

discovery, and a court-appointed psychiatrist, were all denied.

The District court also denied petitioner's motion for

reconsideration.
Vernon Kills On Top appeals from the District Court's orders

which denied his amended petition for postconviction relief and his

motion for reconsideration. We affirm the District Court in part,

2
reverse in part, and remand to the District Court for further

proceedings consistent with this opinion.

The issues presented on appeal are as follows:

1. Did the District Court err when it denied the petitioner

the opportunity to amend his petition for postconviction relief?

2. Did the District Court err when it denied the petitioner

the opportunity to present evidence at a hearing in support of all

but one of his claims that he received ineffective assistance of

counsel?

3. Did the District Court err when it held that nine of the

petitioner's claims were barred by the doctrine of resjudicata?

4. Is the imposition of the death penalty based on a

conviction for aggravated kidnapping and deliberate homicide

disproportionate to the petitioner's conduct and therefore in

violation of the Eighth and Fourteenth Amendments to the United

States Constitution, and Article II, Section 22, of the Montana

Constitution, when the petitioner was not personally involved in

and not present when injuries were inflicted which caused the

victim's death?

5. Did the District Court err when it denied five of the

petitioner's claims based on the procedural bar found at

§ 46-21-105, MCA, because they were not previously raised on
appeal?

PROCEDURAL BACKGROUND

The petitioner, Vernon Kills On Top, raised the following

grounds in his original petition for postconviction relief:

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 1. The District Court lacked jurisdiction over a homicide

committed in the state of Wyoming.

2. The petitioner received ineffective assistance of counsel

prior to trial, during trial, in the sentencing phase of his
prosecution, and on appeal from his convictions for robbery,

aggravated kidnapping, and deliberate homicide.

3. The District Court improperly excluded evidence

pertaining to Diane Bull Coming's participation in the crimes for

which he was convicted.

4. The jury which convicted him was improperly influenced

when the deputy clerk of court and bailiff wore badges which urged

"Take a bite out of crime."

5. The District Court erred when it refused to instruct the

jury regarding lesser included offenses, including ordinary

kidnapping.

6. The District Court erred when it instructed the jury
regarding the effect of intoxication.

7. The District Court erred when, at petitioner's sentencing

hearing, it considered evidence of prior criminal charges which had

been dismissed and convictions which had been obtained without the

benefit of defense counsel.

8. The sentencing hearing was unfair because it was based on

a biased report from an uninformed and hostile probation officer.

9. The District Court erred when it considered petitioner's

failure to testify in making its sentencing determination.

4
 10. The District court failed to adequately consider
mitigating evidence before imposing the death sentence.

11. Heinous acts of others were improperly attributed to the

petitioner as aggravating circumstances in support of the death

penalty in violation of the Eighth and Fourteenth Amendments to the

United States Constitution, and Article II, Section 22, of the

Montana Constitution.

12. Imposition of the death penalty for aggravated kidnapping

is unconstitutional.

13. The District Court violated individualized punishment

notions central to the Eighth and Fourteenth Amendments when it

sentenced the petitioner to death under the circumstances in this
case.

14. The Montana Supreme Court's independent review of the

petitioner's sentence was flawed by its erroneous assumption of

aggravating facts and its disregard for other mitigating facts.

15. Based on the facts in this case, imposition of the death

sentence was disproportionate, cruel, and unusual punishment.

On March 18, 1992, prior to any responsive pleading by the

State of Montana, the petitioner moved to amend his petition to

include allegations that his counsel had been ineffective based on
political interests which were in conflict with his defense of the

petitioner and based on his failure to cite authorities to the

District Court.

The State of Montana, in its response to Vernon Kills On Top's

amended petition, affirmatively alleged that claims 1, 4, 5, 9-11,

5
and 13-15 were barred by the doctrine of vesjudicata; and that claims

3, 6-8, and 12 were procedurally barred based on 5 46-21-105(2),

MCA. On March 30, 1992, the State moved for partial judgment on

the pleadings based on those affirmative defenses. The State also
sought dismissal of all but part of the petitioner's claim that he

received ineffective assistance of counsel as a matter of law. The

State conceded that petitioner's claim that he was denied the right

to testify could only be resolved after an evidentiary hearing. On

May 6, 1992, the District Court issued its notice that based on

information submitted by the parties in support of and in
opposition to the State's motion, which was in addition to that
information included in the pleadings, the State's motion was

converted to a motion for partial summary judgment pursuant to

Rule 56, M.R.Civ.P.

On June 30, 1992, the District Court entered an order in which

it set July I5 as the deadline for proposing amendments to the

petition. The petitioner's proposed amendments to his petition

were filed on July 14.

On March 30, 1993, the District Court granted the State's
motion for partial summary judgment. It concluded that claims 1,

4, 5, g-11, and 13-15 were barred by the doctrine of resjudicata, and

that claims 3, 6-8, and 12 were procedurally barred pursuant to

5 46-21-105(2), MCA. It further concluded that all of petitioner's

claims regarding ineffective assistance of counsel lacked merit as

a matter of law, except for that claim in subparagraph (h) of
claim 2 to the effect that the petitioner was denied the

6
opportunity to testify at his sentencing hearing. The District
Court granted a hearing at which the parties were allowed to

present evidence regarding the merits of claim 2(h). However,
following that hearing, the District Court found that the

petitioner had been informed of his right to testify and

voluntarily chose not to do so. The court concluded that that

decision was binding on his counsel.

On February 10, 1994, judgment was entered against the

petitioner and in favor of the State regarding all claims made by

the amended petition for postconviction relief. On March 14, 1994,

the petitioner's motion for reconsideration was denied.

Specific facts which served as the basis for the petitioner's

conviction and his sentence to death will be discussed where

appropriate to the issues we now consider.
STANDARD OF REVIEW

We review district court orders granting summary judgment, as

we do district court conclusions of law, to determine if they are

correct. Statev. Sullivan (1994), 266 Mont. 313, 318, 880 P.2d 829,

832.

We review a district court's findings of fact to determine

whether they are clearly erroneous. Statev. Bower (1992), 254 Mont.

1, 7, 833 P.2d 1106, 1110.

We review a district court's denial of a motion to amend the

pleadings to determine whether the court abused its discretion.

Porterv. Galarneau (1996), 275 Mont. 174, 188, 911 P.2d 1143, 1151-52;
United k&hod& Church v. D.A. Davidson, Inc. (1987) , 228 Mont 288, 292, 74 1

P.2d 794, 797.

ISSUE 1

Did the District Court err when it denied the petitioner the

opportunity to amend his petition for postconviction relief?

On June 30, 1992, the District Court entered an order in which

it set July 15, 1992, as the deadline for proposing any further

amendments to the petition for postconviction relief. On July 14,

1992, within the deadline set by the court, Vernon proposed

amendments to his claims 2 and 11, and proposed adding claims

16-18. On March 30, 1993, the District Court denied Vernon's

motion to amend his postconviction petition based on its

determination that "the proposed amendments would be futile."

In his motion to,amend his pleadings, Vernon sought to amend

claim 2(b) to allege that his trial attorney was ineffective

because he failed to investigate and discover Diane Bull Coming's

prior acts of violence against men and acts of prostitution, and

because he failed to obtain a psychiatric evaluation for Vernon.

He sought to amend claim 11, regarding the required mental state
for imposition of the death penalty, by adding reference to

§ 45-2-302, MCA,.

Proposed claim 16 sought the opportunity to allege newly

discovered evidence based on the affidavit of Diane Bull Coming in

which she questioned whether Vernon had actually consented to kill

the victim. Claim 17 sought to allege multiple violations of Brady

v. Maryland (1963), 373 U.S. 83, including the State's failure to

8
disclose Diane's allegation that she had been raped by a Custer

County jailer, and other evidence that the victim had been

mutilated by Diane. Finally, proposed claim 18 alleged a

cumulative denial of due process based on all the circumstances

alleged in previous claims.

A petition for postconviction relief is civil in nature. StOte

v. Black (1990), 245 Mont. 39, 43, 798 P.Zd 530, 532; Colemanv. State

(1981), 194 Mont. 428, 433, 633 P.2d 624, 627. Therefore, in most
instances the Montana Rules of Civil Procedure apply. In this

case, because the postconviction relief statute does not specify a

procedure for the amendment of a postconviction petition, we will

apply Rule 15(a), M.R.Civ.P. That rule provides:
A party may amend the party's pleading once as a
matter of course at anytime before a responsive pleading
is served or, if the pleading is one to which no
responsive pleading is permitted and the action has not
been placed upon the trial calendar, the party may so
amend it at any time within 20 days after it is served.
Otherwise a party may amend the party's pleading only by
leave of court or by written consent of the adverse
party; and leave shall be freely given when justice so
requires . . .

In this case, neither the District Court nor the State provide

any justifiable basis for denying Vernon the opportunity to amend

his petition for postconviction relief. The stated basis for

denying the motion was its futility. However, the amended pleading

would have set forth at least one basis for relief which this Court
found controlling in Lester Kills On Top's claim for postconviction

relief. See LesterKillsOn Topv.State (1995), 273 Mont. 32, 45, 901 P.2d

1368, 1377

9
 The amendment to claim 2(b) alleged that Vernon's trial

attorney was ineffective for failing to adequately investigate the

State's primary witness. We have held that failure to adequately

investigate a case prior to trial could form the basis for a

finding that counsel was ineffective and that when such an
allegation is made, a hearing is necessary to determine whether in

fact the allegation is true. fifz~~ntrickv. Slare (1981) , 194 Mont. 310,

318, 638 P.Zd 1002, 1007.

Proposed claim 16 sought the opportunity to allege newly

discovered evidence based on an affidavit of Diane Bull Coming in

which she questioned whether Vernon had actually consented to kill

the victim. Since his alleged consent to the victim's murder

served as a partial basis for the District Court's imposition of

the death penalty, and since newly discovered evidence is a

justification for postconviction relief, this allegation, if true,

could hardly have been considered futile. In reJ.R.T. (1993), 258

Mont. 520, 522, 853 P.2d 710, 711; Statev. Greene (1959), 135 Mont.

580, 586, 342 P.2d 1052, 1055-56.

Claim 17 sought to allege multiple violations of Brady,

including the State's failure to disclose Diane's allegation that

she had been raped by a Custer County jailer. As previously

pointed out, this Court has already concluded, in response to

Lester's claim for postconviction relief, that this Bmdy violation

was cause to set aside Lester's death penalty. A similar claim

could not have been futile for Vernon when Diane Bull Coming was
the only witness who even linked Vernon to Etchemendy's death.

10
 The proposed claim 18 would have alleged cumulative denial of

due process based on all the circumstances alleged in the previous
claims. Cumulative error can serve as a basis for reversal, even

when individual errors alone would not serve as a sufficient basis

for reversal. Slatev. Grant (1986), 221 Mont. 122, 137, 717 P.2d 562,

572; State v. Che (1981), 191 Mont. 229, 245, 623 P.2d 940, 948.

Therefore, it cannot be said that this allegation, if established,

would have been futile in Vernon's effort to receive postconviction

relief.

The dissent concurs that most amendments should have been

allowed, but contends that the amendment to the petitioner's

11th claim should have been disallowed because it was futile. The

petitioner sought to amend claim 11 by adding reference to

5 45-2-302, MCA, regarding the required mental state for finding

one person accountable for the conduct of another. The point of

claim 11 was that sentencing Vernon to death for torture committed

by Lester violated the rule of proportionality established in Enmund

v. Florida (1982), 458 U.S. 782. Section 45-2-302(l), MCA, provides

that before a person can be legally accountable for the conduct of

another, he or she must share the mental state described in the

statute defining the offense. While this is not the subsection

pursuant to which the petitioner was charged, he presumably sought

to argue by analogy that he could not be accountable for Lester's

torture in order to satisfy the aggravating circumstance

requirement for imposition of the death penalty. Since, as
discussed later in this opinion, there is merit to the petitioner's

11
proportionality argument, attempts to fortify the argument were not

futile as a matter of law at the pleading stage.

Whether one person lives and another dies for conduct alleged

to have occurred during the same transaction should not hinge on a

district court's discretionary denial of a motion to amend a

petition for postconviction relief. The District Court's denial of

Vernon's motion to amend is particularly unreasonable in light of

Rule 15(a) 's admonition that "leave shall be freely given when

justice so requires," and based on the facts that in this case

Vernon's motion to amend his petition was filed by the date the

District Court had established for the amendment and no prejudice

to the State was established which would justify its denial.
For these reasons, we conclude that the District Court erred

when it denied Vernon Kills On Top's motion to amend his amended

petition for postconviction relief.

ISSUE 2

Did the District Court err when it denied the petitioner the

opportunity to present evidence at a hearing in support of all but

one of his claims that he received ineffective assistance of

counsel?
In his petition for postconviction relief, Vernon Kills On Top

alleged that he received ineffective assistance of counsel prior to

trial, during trial, in the penalty phase of his case, and on

appeal. The District Court denied Vernon the opportunity to

present evidence at a hearing in support of all but one of his

claims of ineffective assistance, and dismissed all but one claim

12
by summary judgment. In order to avoid summary judgment, a party

claiming ineffective assistance of counsel in a petition for

postconviction relief bears the burden of proving facts justifying

relief by a preponderance of the evidence. State v. Peck (1993) , 263

Mont. 1, 3-4, 865 P.Zd 304, 305; Yotherv.State (1979), 182 Mont. 351,

355, 597 P.2d 79, 82.
Vernon alleged that his counsel was ineffective for the

following reasons:

1. He had a conflict of interest based on his candidacy for

county attorney which was inconsistent with his defense of Vernon.

2. He had a strong antipathy for criminal defendants, as

publicly stated in a book that he authored.

3. He made numerous errors during trial and on appeal.

4. He associated with the victim's family during a party at

a local hotel following Vernon's conviction.

5. He failed to have venue changed from Billings and failed

to conduct individual voivdiw once the trial commenced in Billings.

6. He failed to adequately investigate Diane Bull Coming.

7. He failed to take advantage of numerous sources of

impeachment of Diane Bull Coming from Lester Kills On Top's trial,

or to even order the transcript of her testimony.

8. He called a witness whose testimony was in fact more

harmful than helpful to Vernon's case.

9. He failed to object to improper closing argument.

10. He failed to object to improper jury instructions

regarding intoxication and flight.

13
 11. He failed to adequately investigate and discover

mitigating evidence prior to the penalty phase of Vernon's case.
12. He pressured Vernon into not testifying at his sentencing

hearing.

In the amended petition for postconviction relief, Vernon also

alleged that his counsel was ineffective for failing to cite

leading authority on the court's duty to instruct the jury on

lesser included offenses and on the court's improper use of

Vernon's silence against him at the time of sentencing. Finally,

Vernon moved to amend his petition to allege that his counsel was

ineffective because of his failure to obtain a psychiatric

evaluation of Vernon.

Attached to the petition for postconviction relief, or

provided later, were numerous documents, including affidavits from

several attorneys which supported some, but not all of Vernon's
allegations.

A hearing was granted by the District Court during which

Vernon was allowed to submit evidence in support of his claim that

he had been prevented by his trial counsel from testifying at

either his trial or his sentencing hearing. During that hearing,

a copy of a book authored by his trial counsel and entitled Death

Sentence, Murder on the Prairie was admitted as an exhibit. In

that book, the author described another murder case which he had

handled as a prosecuting attorney. However, Vernon's

postconviction attorney was precluded from asking him questions
about the book in an effort to establish anti-defendant sentiment

14
on his part. Specifically, Vernon sought to introduce and have

explained the following passages from his trial attorney's book

which had been published in 1983:

A theme of the book is the war between good and
evil, represented by law enforcement versus those who
would frustrate law enforcement. The high intensity and
many dimensions of that struggle extend from the Montana
prairie to the highest court, from investigative science
and psychoanalysis to prison breakouts and a kidnap-rape-
murder.

Ultimately each individual, whether law officer,
attorney, juror, judge, justice or reader, decides for
himself which side must win and thereby influences the
result.

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

.

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

What a shame that Peggy Harstad's murderers could
formulate and carry out her death in a few hours, but our
court system waits ten years or more to respond with
equal justice.

Following the District Court's hearing, findings of fact and

conclusions of law were entered pursuant to which that part of

15
Vernon's ineffective assistance claim which alleged that he had

been denied the opportunity to testify was denied.

The State contends that the District Court properly dismissed

all but one of Vernon's ineffective assistance of counsel claims by

summary judgment because before he was entitled to a hearing he had

to make a substantial showing of ineffective assistance by use of
affidavits, records, or other evidence as required by § 46-Zl-

104(l) Cc), MCA, which provides:

(1) The petition for postconviction relief must:

ici have attached any affidavits, records, or other
evidence supporting its allegations or state why the
evidence is not attached.

This Court has interpreted § 46-21-104(1)(c), MCA, to require that

a claim of ineffective assistance of counsel must be grounded on

facts in the record and not merely on conclusory allegations. Eileu

v.Stnte (19921, 254 Mont. 39, 42-43, 833 P.2d 1124, 1127; Statev. McColley

(1991), 247 Mont. 524, 527, 807 P.Zd 1358, 1360.

The State further contends that the petition's general

conclusory allegations did not meet the two-part test set forth in

Stricklandv. Washington (1984), 466 U.S. 668, for proof of an ineffective

assistance of counsel claim. Strickland’s two-part test requires that

the defendant must show that his counsel's performance was

deficient and that the deficient performance prejudiced the defense

and deprived the defendant of a fair trial. Strickland, 466 U.S. at

687. Pursuant to Strickland, a defendant alleging ineffective

assistance of counsel must demonstrate that "there is a reasonable

probability that, but for counsel's unprofessional errors, the

16
result of the proceeding would have been different. Strickland, 4 b b

U.S. at 694.

Under similar circumstances in Fitqm@ickv.State (1981), 194 Mont.

310, 638 P.2d 1002, we reversed a district court's summary

dismissal of a petition for postconviction relief based on
ineffective assistance of counsel. In that case we held that:

We determine that an evidentiary hearing is necessary on
petitioner's claim that he was denied effective
assistance of counsel both at trial and at sentencing.
In his petition, Fitzpntrick alleged that his court-appointed
counsel failed to adequately investigate and prepare a
defense, and that he was unfamiliar with critical areas
of the applicable law. He cited numerous and substantial
facts to support his allegations, which were found to be
speculative and conjectural by the district judge.

Petitioner is entitled to have at his trial
"effective assistance of counsel acting within the range
of competence demanded of attorneys in criminal cases."
State v. Rose (1980) , [187 Mont. 74,1 608 P.Zd 1074, 1081, 37
St. Rep. 642, 649-50. From the information presented in
Fitzpatrick's petition, we cannot say, as the district
judge did, that "the files and records of the case
conclusively show that the petitioner is entitled to no
relief . .* Section 46-21-201(l), MCA. Many of the
errors of which petitioner complains involve failures of
counsel to act, i.e., omissions rather than commissions,
and a mere review of the record cannot show that
petitioner is entitled to no relief on these grounds.

We find an abuse of discretion in the district
judge's dismissal of these claims. We do not hold that
petitioner was denied effective assistance of counsel,
but we do find that his allegations were sufficient to
require an evidentiary hearing on the issue.

Fitzpatrick, 194 Mont. at 318, 638 P.2d at 1007.

Likewise, in this case several of Vernon's allegations that he

received ineffective assistance of counsel were sufficiently

articulated and documented that a hearing was required. We hold

that he was entitled to a hearing regarding four of his claims:

17
 First, we hold that Vernon is entitled to a hearing based on

two of his claims of conflict of interest. Specifically, we hold
that Vernon's claims that his attorney had a conflict of interest

based on (1) his campaign for the office of county attorney which

was allegedly based on a promise to crack down on crime, and

(2) his hostility toward criminal defendants as evidenced by his

book entitled Death Sentence, Murder on the Prairie, if true, may

have deprived Vernon of his Sixth Amendment right to the effective

assistance of counsel. The Sixth Amendment guarantee comprises
both the right to reasonably competent counsel and the right to

that counsel's undivided loyalty. Fitzpatrick v. McCormick (9th Cir

1989), 869 F.Zd 1247, 1251; Mannhaltv. Reed (9th Cir. 1988), 847 F.2d

576, 579. The United States Supreme Court enunciated the standard
for establishing a violation of the Sixth Amendment based on an

attorney's conflict of interest in Czrylerv. Sullivan (1980), 446 U.S.

335, 348. In Cuyler, the Court stated that in order to establish a

Sixth Amendment violation based on conflict of interest, a

defendant must show that (1) an actual conflict of interest

existed, and (2) that actual conflict adversely affected his

lawyer's performance. Cuyler , 446 U.S. at 348. In this case,

although Vernon presented documentation of his attorney's apparent

conflict of interest, we hold that a hearing is necessary to

determine the extent of that conflict and to determine whether the

conflict adversely affected his lawyer's performance in either the

trial, the sentencing, or the appeal.

18
 Second, we hold that Vernon is entitled to a hearing based on

his claims that (1) his attorney failed to take advantage of the

transcript from Lester's trial which allegedly included numerous

opportunities to impeach Diane Bull Coming, and (2) his attorney

failed to adequately investigate Diane's background prior to trial

and therefore was not prepared to adequately cross-examine her at

the time of trial. It is well established that "counsel has a duty

to make reasonable investigations or to make a reasonable decision

that makes particular investigations unnecessary." Strickland, 466

U.S. at 691. To that end, courts have long recognized that an
attorney's failure to investigate potential defense witnesses may

fall below the level of competent representation required by

professional standards and the United States Constitution. see, e.g.,

Codev. Montgomery (11th Cir. 1986), 799 F.Zd 1481, 1483; Gomezv. Befo

(5th Cir. 1972), 462 F.2d 596, 597. Indeed, "[olne of the primary

duties defense counsel owes to his client is the duty to prepare

himself adequately prior to trial." Magillv.Duggev (11th Cir. 1987))

824 F.2d 879, 886. We hold therefore that a hearing is required in
this case to determine whether Vernon was deprived of a fair trial

by virtue of his counsel's failure to adequately investigate Diane

Bull Coming prior to trial and to make use of Diane's prior trial

testimony during cross-examination of her at Vernon's trial.

We conclude that the remaining allegations of ineffective

counsel are either inadequately supported in Vernon Kills On Top's

petition for postconviction relief, or relate to the sentencing

19
phase, and therefore, based on the later conclusions in this

opinion, are no longer relevant.

Therefore, we reverse in part and affirm in part the District

Court's order which dismissed Vernon Kills On Top's claim that he

received ineffective assistance of counsel, and we remand this case

to the District Court for an evidentiary hearing at which the
petitioner is entitled to present evidence in support of his

remaining claims that he received ineffective assistance of

counsel.
ISSUE 3

Did the District Court err when it held that nine of the

petitioner's claims were barred by the doctrine of resjudicata?

The doctrine of I’ [~]es ,judicata bars reconsideration in a

post-conviction relief proceeding of claims previously raised and

considered on direct appeal." Hawkins v. State (1990) , 242 Mont. 348,

351, 790 P.2d 990, 992. The doctrine of resjudicatn has, in fact,

been extended to petitions for postconviction relief in death

penalty cases in spite of the argument that u [tlhe Due Process

clause of the Fourteenth Amendment requires greater reliability of

judgments in capital cases." Fitzpntrick v. State (1981) , 194 Mont. 310,

317, 638 P.2d 1002, 1006.

This Court has cited the policy considerations of judicial

economy and judicial finality as the basis for the doctrine of res

judicatrr . See, e.g., Statev. Block (1990), 245 Mont. 39, 44, 798 P.2d 530,

533; Stntev.Perry (19881, 232 Mont. 455, 463, 758 P.2d 268, 273.

20
 However, the doctrine of res judicnla, as it applies to

postconviction relief proceedings, has been judicially adopted and

is not provided for by statute in Montana. In fact, the Montana

Legislature has specifically chosen not to a adopt the statutory

codification of msjudicnta set forth in the Uniform Post-Conviction

Relief Act.l

As the United State Supreme Court stated in Snndersv. UnitedStates

(1.963), 373 U.S. 1:

The judge is permitted, not compelled, to decline to
entertain [a successive habeas cor.~us application on
previously litigated grounds], and then only if he "is
satisfied that the ends of justice will not be served" by
inquiring into the merits.

Sandem , 373 U.S. at 12:2

The criteria for the application of the doctrine of resjudicaiu

which is followed in Montana was most recently set forth in Slntev.

Baker (1995), 272 Mont. 273, 282, 901 P.2d 54, 59, where this Court

stated:

We will apply the bar of res judicata to the
re-litigation of issues already determined on direct
appeal if:

'Section 12 of the Uniform Post-Conviction Procedure Act
(revised in 1980) provides for an affirmative defense of resjudicnta
by allowing summary denial of an application for postconviction
relief "on the ground that the same claim or claims were fully and
finally determined in a previous proceeding." 1lA Uniform Laws
Annot. 247, 261 (1995). Montana has not adopted § 12.

2Although Sanders is a hnbeoscorpus case and is governed by federal
statute (28 U.S.C. § 22441, this Court has expressly adopted the
Sanders test for application of resjudicnta in State v. Baker (1995), 272
Mont. 273, 282, 901 P.2d 54, 59.

21
 (1) the same ground presented in the subsequent
application was determined adversely to the applicant on
the prior application, (2) the prior determination was on
the merits, and (3) the ends of justice would not be
served by reaching the merits of the subsequent
application.

In this case, we conclude that, with the exception of those

claims which challenge the imposition of the death sentence based

on disproportionality pursuant to the Eighth and Fourteenth

Amendments of the United States Constitution, and Article II,

Section 22, of the Montana Constitution, the ends of justice are

not served by reaching the merits of the petitioner's claims a

second time. Therefore, the District Court's conclusion that
petitioner's claims numbered 1, 4, 5, 9, 10, and 14 are barred by

resjudicata is affirmed. To the contrary, the "ends of justice" do

compel reconsideration of the petitioner's death sentence in light

of this State's constitutional prohibition against the infliction

of cruel or unusual punishments. Mont. Const., art. II, § 22. As

the U.S. Supreme Court has noted: "Conventional notions of

finality of litigation have no place where life or liberty is at

stake and infringement of constitutional rights is alleged."

Sanders, 373 U.S. at 8. This sentiment was recently echoed by the

Indiana Supreme Court in a similar felony murder death penalty case

when that court stated:

With due respect for the doctrine of resjudicata this
Court has always maintained the option of reconsidering
earlier cases in order to correct error. "A court has
the power to revisit prior decisions of its own or of a
coordinate court in any circumstance, although as a rule
courts should be loathe to do so in the absence of
extraordinary circumstances such as where the initial
decision was 'clearly erroneous and would work manifest
injustice.'" Finalitv and fairness are both important

22
 qoals. When faced with an apparent conflict between
them, this Court unhesitatinqly chooses the latter.

St&v. Huffan (Ind. 1994), 643 N.E.Zd 899, 901 (emphasis added;

citation omitted.)
In addition, the Montana Supreme Court has always recognized

an exception to the doctrine of resjudicata under circumstances which

are present in this case. We noted that exception in State v. Zimmern7an

(1977), 175 Mont. 179, 185, 573 P.2d 174, 178, when we held that:
In any event an exception to this general rule
exists where the case must be remanded to the District
Court for further proceedings because of reversal on an
unrelated issue. In such case this Court may correct a
manifest error in its former opinion and announce a
different ruling to be applied prospectively to future
proceedings in the case. This exception to the general
rule is recognized in Montana at least since 1955.

in LesterKilisOnTopv.Stuteii995j, 273 Mont. 32, 901 P.2d 1368, we

vacated the death sentence imposed on Lester Kills On Top based on

the State's failure to disclose potentially exculpatory information

about its principal witness, Diane Bull Coming, in violation of

Brcrdyv. Maryland (1963), 373 U.S. 83. Specifically, we held that the

State had a duty to disclose Bull Coming's allegation that she was

raped by a jailer while in custody in Custer County for charges

related to this case and that she had previously been convicted of

misdemeanor assault, misdemeanor theft, and other misdemeanors.

Lester Kills On Top, 273 Mont. at 43, 901 P.2d at 1375. We concluded

that while Lester's conviction was sufficiently supported by other

evidence that the outcome would probably not have been different

even with the exculpatory evidence, we could not say the same about

the punishment which was imposed. We held that:

23
 Focusing on Bull Coming’s undisclosed rape allegation and
on Bull Coming's undisclosed criminal record, which
included convictions for misdemeanor assault and theft,
we conclude that our confidence in the sentence is
undermined. . . .

. We hold that there is a reasonable probability
that, had Bull Coming's rape allegation and criminal
record been provided to Appellant, the result of the
sentencing proceeding could have been different.
Therefore, we vacate Appellant's sentences imposed for
robbery, aggravated assault, and deliberate homicide and
remand to the trial court for resentencing.

Lester Kills On Top, 273 Mont. at 45, 901 P.Zd at 1376-77.

Our holding in Lester's case requires that no less be done in

Vernon's case. Bull Coming was the principal witness who linked

Vernon to the kidnapping of John Martin Etchemendy, Jr., and the

person on whose testimony Vernon's death sentence was largely

based.
Therefore, we conclude that for a second reason we are not

precluded from reconsidering the constitutionality of petitioner's

death sentence pursuant to this petition for postconviction relief.
Since this case must, at a minimum, be remanded to the District

Court for resentencing based on the State's violation of Brady, 373

U.S. 83, and pursuant to our decision in LesterKillsOn Top, 273 Mont.

32, 901 P.2d 1368, the District Court may correct any former error

in its or our former opinion and apply a different rule

prospectively to future proceedings in this case. ZinvnermLln, 175

Mont. at 185, 573 P.2d at 178.

ISSUE 4
Is the imposition of the death penalty based on a conviction

for aggravated kidnapping and deliberate homicide disproportionate

24
to the petitioner's conduct and therefore in violation of the

Eighth and Fourteenth Amendments to the United States Constitution,

and Article II, Section 22, of the Montana Constitution, when the

petitioner was not personally involved in and not present when

injuries were inflicted which caused the victim's death?

At this point it is necessary to review the evidence which led

to Vernon Kills on Top's conviction for aggravated kidnapping and

deliberate homicide and his sentence to death for those crimes.

While our prior opinion accepted the testimony of Diane Bull Coming

at face value, and based our result largely on that testimony, a

closer review of the record is necessary.
On October 17, 1987, Vernon and Lester Kills On Top, Doretta

Four Bear, and Diane Bull Coming were drinking at the Golden West

Lounge in Miles City, Montana. After they left the bar, had gotten

in their vehicle, and were about to leave, they were approached by

John Martin Etchemendy, Jr., who stated that he had misplaced his

vehicle and asked them for their help finding it. They agreed to

help him and he got in the back seat of their vehicle.
After a brief effort to locate Etchemendy's vehicle, Diane

spoke to the Kills On Top brothers in the language of the Northern
Cheyenne and Vernon, who was driving, reversed directions and

headed out of town. When he asked where they were going,

Etchemendy was told by Diane that they were headed to Broadus.

According to Doretta, Etchemendy originally agreed, but

subsequently changed his mind after being assaulted by Lester and

Vernon.

25
 According to Doretta, several altercations occurred involving

Lester, Vernon, and Etchemendy between Miles City and Broadus.

During one fight involving Lester and Etchemendy in the back seat

of the vehicle, Diane removed Etchemendy's wallet from his pocket.

At that time, Lester was holding him and Vernon was driving the

vehicle.

Although Doretta testified that Vernon participated in beating

Etchemendy during the trip, including the first altercation, she

stated in her first written statement immediately following the

incident that only Lester had initially fought with "the white

guy. 'I She testified at trial that at some point during the trip

Etchemendy was told by Vernon to take his clothes off and, by

someone she could not identify, to get in the trunk. However,

prior to trial in her written statement she stated that it was

Lester who told the victim to take his clothes off and get in the

trunk.
Doretta also told Vernon's attorney, in the presence of her
attorney and the Deputy County Attorney, that she did not actually

see Vernon hit or strike Etchemendy and that during the second

scuffle outside the vehicle after leaving Miles City she saw Vernon

standing there while Etchemendy wrestled on the ground with Lester.

After Etchemendy entered the trunk, Doretta never saw him

again. When the group arrived in Rabbit Town on the Northern

Cheyenne Reservation, Doretta left the group and knew nothing more

about what occurred later that day or the next day.

26
 Flora Parker was a friend of Doretta. She testified that

Doretta arrived at her house early in the morning on October 17
after she left the Kills On Top brothers and Diane Bull Coming.

She related what Doretta told her at that time. Doretta's

statements at that time apparently placed most responsibility for

kidnapping and beating Etchemendy on Lester and Diane and

attributed little culpability to Vernon.

While in Ashland, the group picked up LaVonne Quiroz. She

testified that when they left Ashland she was driving; Vernon was

in the front seat, and they were returning to Miles City until

Lester awoke and told them to turn around and proceed in the other

direction. She first learned that there was someone in the trunk

after they had arrived in Broadus and Etchemendy informed them that

he had to go to the bathroom. She stated that he was allowed to do

so outside of Biddle and described several other stops between

Broadus and Gillette. During these stops she described Lester and

Diane as the principal actors and Vernon as a passive participant.

She also indicated that Lester and Diane were principally

responsible for cashing Etchemendy's checks on the way to Gillette

and that some of the money they received was distributed to her and

Vernon.
LaVonne testified that after they had arrived in Gillette,

while Etchemendy was still in the trunk of their vehicle, Lester
took the keys from her and left with Diane. Vernon was surprised

and angry that they had left. She and Vernon were later called by

Diane and told to meet them at another location in Gillette.

27
However, when they did meet them it was apparent that Etchemendy

was dead.

Before Lester and Diane left with the vehicle, Etchemendy was

alive and sufficiently active that he was creating a disturbance in

front of the bar where the group had stopped to drink. They were
sufficiently concerned about the disturbance that LaVonne moved the

vehicle around to the alley behind the building.

LaVonne testified that at no time during the entire trip did
Vernon express any interest in hurting the victim and that at one

point while in Gillette Lester had agreed with Vernon to take

Etchemendy back to Miles City, but that at that point Diane got mad
at both of them. LaVonne testified that it was originally Diane's

idea to treat Etchemendy as a hostage and that when the brothers

discussed returning him to Miles City, she stated: "Let's use him

for all he's got."
LaVonne testified that Vernon was not present when Etchemendy

was killed and had no idea that it was going to happen.

Lester Kills On Top also testified at his brother's trial. He

stated that it was he, not Vernon, who fought with Etchemendy

between Miles City and Ashland, that it was Diane who ordered

Etchemendy into the trunk, and that it was Diane's idea to kill the
victim. He testified that Vernon had never expressed any interest
in hurting Etchemendy while in Gillette and had no knowledge of

what he and Diane planned to do when they left the Lobby Bar with

Etchemendy in the trunk of the vehicle.

28
 Prior to testifying in this case, Diane Bull Coming, who by

all other accounts was the principal actor, entered into a plea

agreement with the State pursuant to which she pled guilty to the

offense of robbery and the State agreed to recommend a maximum

penalty of forty years. As part of the plea agreement, she agreed

to testify in the two Kills On Top trials.
At the time she entered into the seven or eight page plea

bargain agreement, she had been charged with robbery and aggravated

kidnapping and she knew the possible penalty was death or a life

sentence. Pursuant to the plea agreement, she was classified a

nondangerous offender for purposes of parole, which meant that she

was eligible for parole in eight years. She had also been advised

that with good time she may serve less than that.

Another part of the plea agreement provided that if she

changed her testimony from what she had indicated it would be prior

to entering into the plea agreement, the agreement would be revoked

and the prior charges reinstated.

Diane's description of the chronology of events was generally
consistent with what has already been described, except that she

minimized her own culpability and placed greater blame for harm to
the victim on the Kills On Top brothers. Diane was also the only

witness who was present at the time when Etchemendy was killed and

described how his life was ended.

Several of the facts related by Diane were relied on by this

Court in its prior opinion. For example, she stated that it was

Vernon, not her, who went through Etchemendy's wallet in search of

29
 ‘, ‘,

credit cards and money; that Vernon participated in at least one of

Etchemendy's beatings and in another altercation with Etchemendy on
the way to Ashland; and that Vernon agreed with Lester at some

point when Lester exclaimed that because Etchemendy could identify

them, "we're going to have to kill him."

However, Diane's testimony was riddled with inconsistencies.

She also testified that it was Lester, not Vernon, who forced

Etchemendy into the trunk of the vehicle; she testified that

Vernon, on occasion, inquired of Etchemendy about his well-being;

and that when Etchemendy's checks were forged and used to purchase

drinks and groceries, Vernon remained in the vehicle.

Most significantly, Diane testified that when Lester told

Vernon, while in the bar in Gillette, that they had to get rid of

Etchemendy, Vernon asked him to wait. She testified that when
Lester brought it up again, Vernon again asked him to wait but that
Lester accused him of stalling and demanded the keys to the

vehicle. She testified that when Vernon produced the keys she and
Lester left the bar, headed to a rural gravel road, and at that
location Lester severely beat the victim and caused the injuries

which ultimately led to his death. However, when they returned to

Gillette Etchemendy was apparently still alive. It was at that

point that Diane, according to her testimony, called Vernon and

requested that he rejoin them. He asked whether Etchemendy was

still alive and was told that he was. Only after getting off the

phone was she advised by Lester that Etchemendy was now dead.

30
 According to Diane she passed out a short time later and the

next thing she remembers was when she awoke and was in the vehicle

on the interstate highway heading back to Montana.

Based on even Diane's testimony, Vernon Kills On Top was not

present when Etchemendy was killed, and he did not participate in

any act which caused Etchemendy's death. While she did testify

that on two separate occasions he agreed that something would have

to be done with the victim, she also testified that he sought to
postpone any further harm to the victim and that after his
expression of reluctance, she and Lester took the victim to another

location where Lester performed the murderous act himself.

Even that part of Diane's testimony which suggested Vernon's

acquiescence in Etchemendy's murder is questionable in light of her

affidavit filed in this proceeding in which she states:

In regard to the time when the victim's blindfold
was removed, Lester was hollering at everyone and Lester
was giving everybody orders. When Vern took the
blindfold off the victim, Lester got mad and said now he
knows what we look like so we have to kill him.

Vern grunted and I, at the time, interpreted this as
agreement. In response to a question by Mr. Ranney, I
agree that it is possible that my interpretation could
have been wrong.
On cross-examination, Diane stated that at no time while

Etchemendy was in the trunk of the group's vehicle did Vernon ever
strike him, injure him, or take anything of monetary value from

him. She agreed that he never initiated talk of murder other than

in response to Lester and then he said "later." She stated that

during conversations with Lester after Etchemendy's death, Lester

took credit for the beatings and the killing of Etchemendy.

31
 From this Court's thorough review of the record in this case,

it is undisputed that Vernon Kills On Top was not present at and

did not participate in the infliction of injuries which caused the

death of John Martin Etchemendy, Jr. Furthermore, any evidence

that Vernon had any intent to kill Etchemendy is at best equivocal

and unpersuasive. The only credible evidence is to the contrary.
The dissent criticizes the majority opinion for minimizing the

evidence about the extent of Vernon's participation in Etchemendy's

death, and concentrating primarily on the testimony of Diane

Bull Coming. The problem with the concern expressed by the dissent

is that the testimony of Diane Bull Coming is the only evidence

which linked Vernon Kills On Top to the death of John Martin

Etchemendy, Jr.

In addition, the dissent repeatedly refers to factual matters

in the record which have been ignored by the majority. However,

what is clear from the dissent's recitation of the facts is that
the author of the dissent has not personally reviewed the record to

which the author refers, but instead merely recites this Court's

prior characterization of the record which was anything but

complete or accurate.

The author of the majority opinion has personally reviewed

every line of the extensive record on which the juryls verdict and

the District Court's sentence were based, and can personally vouch

for the accuracy of every factual characterization in the majority

opinion.

32
 The following are several examples of inaccuracies found in

this Court's previous opinion which are simply parroted by the

dissent without further investigation or inquiry.

The dissent contends that Vernon Kills On Top participated in

homicide committed by means of torture. However, nowhere in the

record is there any evidence that Vernon Kills On Top participated

in causing John Etchemendy's death. Nor is there any evidence that

Vernon, at any time, tortured Etchemendy. We have previously

approved the following definition of the term "torture":

Whoever purposely assaults another physically for
the purpose of inflicting cruel suffering upon the person
so assaulted for the particular purpose of enabling the
assailant to either:

(a) extort anything from such person;

(b) or to persuade such person against his or her
will; or

(c) to satisfy some other untoward propensity of
the assailant.

Statev.McKenzieIII (1980), 186 Mont. 481, 509, 608 P.2d 428, 445.

The District Court concluded that Lester Kills On Top had

tortured Etchemendy by the brutal manner in which he caused his

death. However, even that conclusion was incorrect, based on our

prior definition. Lester killed his victim in a brutal and clumsy

fashion which surely resulted in a great deal of suffering. But he

killed him to eliminate him as a witness, not to extort anything

from him or persuade him to do anything. No one has alleged that

subsection (c) is applicable. Furthermore, Vernon did not

participate in the conduct which caused Etchemendy's death, and was

not present at the time the acts occurred. The District Court

33
first mischaracterized Lester's acts as torture, and then
attributed them to Vernon by SORE unstated notion of
accountability. However, pursuant to the individualized treatment

required by statute in Montana, and rules of proportionality

required by the United States and Montana Constitutions, the

propriety of a death sentence must be evaluated based on the

conduct of Vernon, and not by attributing to him the conduct of

some other person which he neither participated in nor approved.

The dissent contends that Vernon was "directly involved in the

serious beating of the victim" which was "so severe it could have

caused death even absent further infliction of physical violence."
Neither is that correct. Dr. Robert Deters, the pathologist who

performed an autopsy on Etchemendy and testified on behalf of the

State, expressed the opinion that the cause of death was extensive

and severe head injuries--specifically a cluster of five injuries

on the left side of Etchemendy's head which crushed his skull. It

was his opinion that the injury was caused by a rounded object like

a stick or a bat. The only one who ever struck Etchemendy with any

object other than his fist or foot was Lester Kills On Top.

Deters did testify that he also observed a subdural hematoma

which had been caused prior to the fatal blows and which could have

been caused by blows from hands or feet. However, he stated that

before a subdural hematoma is lethal, it requires an accumulation

of fifty millimeters of blood, and that in this case, even though

any beatings in which Vernon participated occurred twelve hours

prior to death, only twenty millimeters of blood had accumulated.

34
In this case, the subdural hematoma observed could not have caused

death unless combined with other injuries.

The dissent contends that after beating Etchemendy, Vernon

participated in placing him in the trunk of the vehicle where he

did nothing for him in the ensuing twelve-hour period. However,

neither is that contention (again lifted from the previous opinion)

supported by the record. Whether Vernon had anything to do with

placing Etchemendy in the trunk is anything but clear from the

record. However, while Etchemendy was in the trunk, it was Vernon

who let him out to go to the bathroom; Vernon who checked on his

condition; and Vernon who incurred his brother's wrath by removing

Etchemendy's blindfold so that he could go to the bathroom.

The dissent contends that Vernon lifted the victim's wallet,

cashed his checks, and distributed the proceeds. The only reliable

evidence is that Diane Bull Coming confiscated Etchemendy's credit

card and that Diane and Lester cashed Etchemendy's checks and

divided the money. While a portion of the money was given to

Vernon, he misplaced it, and even that portion was subsequently

retrieved by Diane. Neither is the dissent correct when it repeats

the allegation from this Court's previous opinion that Vernon did

nothing in the pre-murder stages to prevent the homicide.

According to even Diane's testimony, Vernon repeatedly stalled

suggestions that Etchemendy be murdered.

The dissent contends that the majority opinion is "retrying"

matters here. The dissent mistakenly assumes that by characterizing

the evidence, the majority opinion is somehow contrary to the

35
jury's verdict. However, the jury made no findings of fact which
could be inconsistent with those recited in the majority opinion,

the jury simply returned a verdict that Vernon was guilty of

robbery, aggravated kidnapping, and deliberate homicide. The

majority opinion has done nothing to alter that verdict.

The only findings of fact entered in this case were those made

by the District Court in support of its imposition of the death

penalty. However, by statute, this Court is given a very clear

responsibility to review a district court's findings in support of

the death penalty, and that review is not limited to a

determination of whether there is any evidence to support the

district court's findings, as was suggested by this Court's prior
opinion and is now asserted by the dissent.

In the first place, the substantial evidence standard is not

the standard by which we review a district court's findings of

fact. We held in Interstale Ptvduciion Credit Associalion v. De&ye (1991) , 250

Mont. 320, 820 P.2d 1285, that we will review a district court's

findings of fact for the following criteria: (I) the Court will

determine whether the findings are supported by substantial

evidence; (2) if the findings are supported by substantial

evidence, the Court will determine if the trial court has

misapprehended the evidence; and (3) if the findings are supported

by substantial evidence and that evidence has not been

misapprehended, this Court may still find "a finding is 'clearly

erroneous' when, although there is evidence to support it, a review

of the record leaves the court with the definite and firm

36
conviction that a mistake has been committed." D&ye, 250 Mont. at

323, 820 P.2d at 1287 (citing UnikdStatesv. UnitedStntesGypsumCo.
(19481,

333 U.S. 364).

However, our statutory obligation to review a district court's

findings in support of a death penalty is even broader than the

clearly erroneous standard. This Court's statutory obligation for

the independent review of a death sentence is set forth in

§ 46-18-310, MCA, which provides:

The supreme court shall consider the punishment as well
as any errors enumerated by way of appeal. With regard
, the esentencer t
to t h cou shall determine:
(1) whether the sentence of death was imposedunder
the influence of passion, prejudice, or any other
arbitrary factor;
(2) whether the evidence suooorts the i udse's
finding of the existence or nonexistence of the
aggravating or mitigating circumstances enumerated in
46-18-303 and 46-18-304; and
(3) whether the sentence of death is excessive or
disproportionate to the penalty imposed in similar cases,
considering both the crime and the defendant. The court
shall include in its decision a reference to those
similar cases it took into consideration.

(Emphasis added.)

In this case, the District Court made several findings which

it relied on for the imposition of a death sentence which clearly

were not "supported by the evidence." For example, the District

Court found, as one of two aggravating circumstances which

justified imposition of the death penalty, that: "The offense was

Deliberate Homicide and was committed by means of torture."

However, for reasons previously stated, Etchemendy's death was

not committed by means of torture. That finding was not supported

by any evidence, regardless of what standard we apply.

37
 Furthermore, for reasons previously noted, the District
Court's findings that Vernon helped strip and place the victim in

the trunk and agreed that the victim had to die, are not supported

by credible evidence, and after thorough review of the record, we

are left with a firm conviction that those findings are mistaken.

Other than as mentioned above, there is nothing inconsistent

with the majority's recitation of the facts and the findings of

fact entered by the District Court.
On the other hand, the District Court's critical finding to

the effect that "defendant had no involvement [during] the period

of time when the victim was finally beaten and killed by Lester

Kills On Top," is completely consistent with the evidence and the
majority opinion, and in fact, is a critical basis for this Court's

conclusion.
In response to the dissent's contention that the majority's

recitation of facts is inconsistent with this Court's recitation of

facts in its previous decision, it is sufficient to note, as

pointed out previously, that several statements from the previous

opinion were not supported by the record.

The question we must decide is not whether Vernon Kills On Top can, under these

circumstances, be convicted of aggravated kidnapping and deliberate homicide and

severely punished, including imprisonment for life. The question is whether under these

circumstances the imposition of a death sentence is disproportionate to the degree of

Vernon’s culpability

38
 In his petition for postconviction relief, Vernon contends

that imposition of the death penalty in his case violates both the
requirement of individualized punishment and the proportionality

requirement. Both requirements are mandated by the United States

Constitution; in addition, proportionality is compelled by the

Montana Legislature.

The proportionality requirement and the necessity of

individualized punishment are derived from the Eighth Amendment,

and are sometimes difficult to distinguish. Justice O'Connor

explained the inter-relationship of the two principles in Enmundv.

Florida (1982)) 458 U.S. 782

[Coker v. Georgia (1977) , 433 U.S. 5841 teaches .
that proportionality--at least as regards capital
punishment--not only requires an inquiry into
contemporary standards as expressed by legislators and
jurors, but also involves the notion that the magnitude
of the punishment imposed must be related to the degree
of the harm inflicted on the victim, as well as to the
degree of the defendant's blameworthiness. Moreover,
because they turn on considerations unique to each
defendant's case, these latter factors underlying the
concept of proportionality are reflected in this Court's
conclusion in Lockettv.Ohio,438 U.S. 586, 605 (1978), that
"individualized consideration [is] a constitutional
requirement in imposing the death sentence" (opinion of
Berger, C.J.) (footnote omitted). See id at 613 (opinion
of Blackmun, J.) ("the Ohio judgment in this case
improperly provided the death sentence for a defendant
who only aided and abetted a murder, without permitting
any consideration by the sentencing authority of the
extent of her involvement, or the degree of her mensrea,
in the commission of the homicide").
In sum, in considerins the uetitioner's challenqe,
the Court should decide not onlv whether the oetitioner's
sentence of death offends contemporary standards as
reflected in the responses of leqislatures and iuries,
but also whether it is disproportionate to the harm that
the petitioner caused and to the petitioner's involvement
in the crime, as well as whether the procedures under

39
 which the petitioner was sentenced satisfied the
constitutional requirement of individualized
consideration set forth in Lockett.

Enmund, 458 U.S. at 815-16 (O'Connor, J., dissenting) (emphasis

added).

Although the Eighth Amendment of the U.S. Constitution

contains no explicit prohibition against disproportionate sentences

and no express mandate for individualized punishment,3 the Supreme

Court has held that the cruel and unusual punishment clause of that
Amendment bans sentences that are grossly disproportionate to the

crime for which the defendant is convicted. See, e.g., Solem v. Helm

(198X), 463 U.S. 277. In addition, in Woodson v. North Carolina ( 19 7 6 ) ,

428 U.S. 280 (followed in Lockettv. Ohio (19781, 438 U.S. 586, 603-041,

the Court set forth the requirements of individualized sentencing

and specifically stated that:

[W]e believe that in capital cases the fundamental
respect for humanity underlying the Eighth Amendment
requires consideration of the character and record of the
individual offender and the circumstances of the
particular offense as a constitutionally indispensable
part of the process of inflicting the penalty of death.

Woodson, 428 U.S. at 304 (citation omitted). In Solem, 463 U.S. at

290, Justice Powell noted that, as a matter of principal, I( a

criminal sentence must be proportionate to the crime for which the

defendant has been convicted," and that "no penalty is per se

constitutional." In addition, in the seminal proportionality case

3The Eighth Amendment of the federal Constitution, applicable
to the individual states through the Fourteenth Amendment provides:
"Excessive bail shall not be required, nor excessive fines imposed,
nor cruel and unusual punishments inflicted."

40
of Enmundv.Florida (1981), 458 U.S. 782, 797-98, the United States

Supreme Court recognized that the death penalty is unique in its

severity and irrevocability, and required that the State must focus

on the defendant's personal intent, character, and culpability, and

not merely the defendant's role as an accomplice, before the death

penalty may be constitutionally imposed.

The Montana Constitution contains a provision virtually

identical to its federal counterpart. Article II, Section 22, of

the Montana Constitution, specifically provides that: "Excessive
bail shall not be required, or excessive fines imposed, or cruel

and unusual punishments inflicted." Although that constitutional

provision has not yet been applied in the proportionality context,

proportionality review is specifically mandated by statute in

Montana. As previously noted, § 46-18-310, MCA, while making no

mention of a similar responsibility at the district court, requires

the state Supreme Court to review the proportionality of each death

sentence.

We now hold that pursuant to Article II, Section 22, of the

Montana Constitution, the imposition of a death sentence by state

courts in Montana must be reviewed for compliance with the

proportionality and individualized treatment requirements set forth

in Enmund.

Therefore, pursuant to the mandates of both the federal and

state constitutions and the Montana Legislature, this Court must

undertake a review of the proportionality of Vernon's sentence. We

have divided our discussion of proportionality into Federal

41
Proportionality Review and Montana Proportionality Review. We note

at the outset that Vernon's sentence was reviewed on direct appeal
pursuant to only the Eighth Amendment, and that a discussion of

Montana's parallel prohibition against cruel and unusual punishment

was never undertaken by this Court. S e e VernonKillsOnTopI (1990), 243

Mont. 56, 104-09, 793 P.2d 1273, 1306-09.

Based on an extremely narrow and unfounded application of

5 46-21-105(2), MCA, the dissent contends that because independent

state grounds for proportionality were not argued on the previous

appeal, consideration of our state constitution is precluded in

this case. However, § 46-21-105(2), MCA, simply precludes

considering "grounds for relief" that could have been, but were not

raised by direct appeal. In this case, the "ground for relief" is

that the sentence imposed on Vernon Kills On Top was

disproportionate to the conduct for which he was convicted. The

fact that that conclusion is based on one authority, as opposed to

another, does not change the "grounds for relief" anymore than if

the conclusion was based on a citation from American Jurisprudence

Second, rather than Corpus Juris Secundum.

The issue of proportionality and individualized treatment has

not been raised for the first time in this proceeding. It was

raised on appeal.

To first of all conclude that a procedural bar is more

important than a human life, and then unreasonably and without

authority construe the procedural bar more narrowly than it was

ever intended in order to preclude consideration of an issue of

42
such great importance, is not an approach supported by prior case

law of this Court, nor commonly accepted notions of justice. The
only principle applicable to this Court's reconsideration of the

proportionality issue is the principle of resjudicnta, which has

already been discussed.

FEDERAL PROPORTIONALITY REVIEW

Enmund v. Florida ( 1982 ) , 458 U.S. 782, and Tismv.Arizom (1987), 481

U.S. 137, mark the starting point for federal proportionality

review in the context of accomplice liability. In Enmund, the

defendant drove a getaway car and his two colleagues killed two

intended robbery victims. The Florida court sentenced the

defendant to death for his conviction of murder, based on

felony-murder and accomplice-liability theories. Enimnd, 4 58 u s

at 786. The United States Supreme Court held that death is a

disproportionate penalty "for one who neither took life, attempted

to take life, nor intended to take life." Enmund, 458 U.S. at 787,

801. The Court applied federal proportionality principles found in

Lockett, 438 U.S. 586, and Woodson, 428 U.S. 280, and focused its

inquiry on Enmund's personal culpability. The Court concluded

that:

Enmund did not kill or intend to kill and thus his
culpability is plainly different from that of the robbers
who killed; yet the State treated them alike and
attributed to Enmund the culpability of those who killed
the [victims]. This was impermissible under the Eighth
Amendment.

Enmund, 458 U.S at 798.

43
 ‘.

In 1987, the Court decided Tim?, 481 U.S. 137. Tison did not

overrule Enmund; however, it arguably restricted its SCOp2.

Although the Tison brothers, like Enmund, did not kill or attempt

to kill, their case was unlike Enmund's case in that their

participation in the crime was judged "major" and their mental

state "highly culpable/--one that was characterized as showing

"reckless indifference to human life." Tison , 481 U.S. at 157-58.

The Tison defendants were brothers who had helped arrange the

escape from prison of their father and his cell mate, both

convicted murderers. Their getaway car broke down and the group

decided to steal another car from a passing motorist. A family

stopped to help the group and the group forced them off the highway

and down a dirt road. 'The defendants' father toid his sons to

return to the car for some water and when they returned the

defendants witnessed their father and his cell mate shotgun the
family to death. The defendants were tried, convicted, and

sentenced to death under Arizona's felony-murder and accomplice

liability statutes. Tkon , 481 U.S. at 139-42.

On appeal, the defendants argued that their death sentences

were disproportionate, and therefore, in violation of the Eighth

Amendment, as construed in Enmund. The Supreme Court disagreed and

found that Enmund left open "the intermediate case of the defendant

whose participation is major and whose mental state is one of

reckless indifference to the value of human life." Tison , 481 U.S.

at 152. The Court addressed the defendants' contention that they

44
did not, in Enmund’s terms, "kill, attempt to kill, or intend to

kill," when it stated:

A narrow focus on the question of whether or not a
given defendant "intended to kill," however, is a highly
unsatisfactory means of definitively distinguishing the
most culpable and dangerous of murderers. Many who
intend to, and do, kill are not criminally liable at
all-those who act in self-defense or with other
justification or excuse. . . On the other hand, some
nonintentional murderers may be among the most dangerous
and inhumane of all--the person who tortures another not
caring whether the victim lives or dies, or the robber
who shoots someone in the course of the robbery, utterly
indifferent to the fact that the desire to rob may have
the unintended consequence of killing the victim as well
as taking the victim's property. This reckless
indifference to the value of human life may be every bit
as shocking to the moral sense as an 'intent to kill.'
[W]e hold that the reckless disregard for human
i i i e implicit in knowingly engaging in criminal
activities known to carry a grave risk of death
represents a highly culpable mental state, a mental state
that may be taken into account in making a capital
sentencing judgment when that conduct causes its natural,
though also not inevitable, lethal result.

Tison, 481 U.S. at 157-58

Therefore, because the Tisons' participation in the underlying
crime was deemed "substantial," in that each was "actively involved

in every element of the kidnapping-robbery and was physically

present during the entire sequence of criminal activity culminating

in the murder," and because actual armed escape and kidnapping

involved a "reckless indifference to human life," the Court held

that the Tisons' conduct did not fall within the confines of Enmund.

Tison, 481 U.S. at 158.

On the basis of Entnund and Tison,

[ilt is now clear, as a matter of federal proportionality
principles, that capital punishment may be imposed on one
who commits a homicide without the purpose or knowledge

45
 that death will result, at least to the extent that the
defendant's conduct can be characterized as "recklessly
indifferent to human life."

Sraiev.Gerald (N.J. 1988), 549 A.2d 792, 810. However, this approach

has been criticized by both courts and scholars. As one author

stated:

[Tlhe . . lack of an identifiable core inherent in the
Tison rule renders it incapable of carrying out any
constitutionally meaningful delineation between classes
of felony murder accomplices because every felony murder
accomplice arguably is recklessly indifferent.

.

. Simply because a court say that a
defendant was recklessly indifferent dozynot mean that
a death penalty is not grossly disproportionate under the
eighth amendment. Only by considering all of the factors
in a case can a court make this decision.

Richard A. Rosen, Felony Murder and the Eighth Amendment

Jurisprudence of Death, 31 B.C. L. Rev. 1103, 1163, 1167 (1990).

Another criticized Tison for its failure to distinguish between

those felons who should be sentenced to death from those who should

not:
By failing to define the terms of its new standard,
such as l’major participation" or "reckless indifference
for human life," the Tison Court did not clearly
differentiate those felony murderers who should not
receive the death penalty from those who should. Thus,
by manipulating the facts, or the terms of the new
standard, lower courts are free to impose the death
penalty on all felony murderers unless the court is
presented with a fact pattern identical to that in the
Enmund decision.

She continues:
The T&-on Court's imposition of the death penalty
with only superficial regard to the defendant's
"blameworthiness" has effectively allowed courts to
disregard the defendant's state of mind or level of

46
 culpability in their evaluation of death sentences. Many
courts have simply inferred the "reckless indifference to
human life," required by Tison from a defendant's l’major
participation" in a felony, and have found the Tison
standards are thus satisfied. By disregarding the
teachings of Furmnn, Gregg, and Coker on how punishment must
be proportionate to the crime, courts are imposing the
death penalty arbitrarily and without regard to
individual culpability, a result which would appear to
overreach the Court's intent in Tison and violate the
eighth amendment prohibition against cruel and unusual
punishment.

Note, Constitutionalizinq the Death Penaltv for Accomplices to

Felony Murder, 26 Am. Crim. L. Rev. 463, 482, 489-490.

This concern is echoed by others who criticize Tison for its

new standards. For example, one author deplores the Court's use of

the term "recklessness":

Not only is the Court's new language likely to lead
to disparate applications among the states, but the
standard also is inconsistent with the major principle of
Furman and recognized in Enmund. Inherent in Enmund’s
requirement of an individualized consideration of
culpability is the idea that the death penalty, typically
a punishment reserved for first-degree murder, should not
be inflicted on one whose level of culpability is not
equivalent to that of other death penalty recipients.
Thus, Enmund prohibited using the element of
participation in the felony to supply the intent
requirement for first-degree murder at the sentencing
stage.

The Tison Court further confuses the issue by
collapsing the element of a high level of participation
in the underlying felony into the reckless indifference
element . . Collapsing the issues in this way
endangers the individualizedconsiderationof culpability
required in death penalty cases .

Note, Cversteppinq Precedent? Tison V. Arizoncr Imposes the Death

Penalty on Felonv Murder Accomplices, 66 N.C. L. Rev. 817, 835-36.

47
 In addition, some scholars criticize the Bison Court for its

failure to address the two acceptable goals of capital punishment--

deterrence and retribution:

If neither [deterrence nor retribution] is realized then
the penalty is "nothing more than the purposeless and
needless imposition of pain and suffering." Without
intent to kill, which is commonly considered to establish
the highest degree of culpability, it is questionable
that the death penalty, the most extreme form of
retribution, is proportionate. As for deterrence, the
Enmund Court made clear that only those who premeditate
and deliberate can be deterred. The Court stated "if a
person does not intend that life will be taken, or that
lethal force will be employed by others, the possibility
that the death penalty will be imposed for vicarious
felony murder will not 'enter into the cold calculus that
precedes the decision to act."'

Note, Oversteppins Precedent?, 66 N.C. L. Rev. at 833 (footnotes

omitted).
Other scholars have lamented the application of the death

penalty to the "nontriggerman" accomplice. As Richard Garnett

stated:
[T]he nontriggerman convicted of felony murder is three
times removed from the locus of blame: the killing is
murder by reason of the felony murder rule, the defendant
is responsible for the killing under accomplice liability
principles, and he faces the executioner because of the
manner in which another person killed. Such a defendant
may be at the outer reaches of personal culpability, yet
still face death.

Richard W. Garnett, Depravity Thrice Removed: Usina the "Heinous,

Cruel, or Depraved" Factor to Aaqravate Convictions of

Nontriqqermen Accomplices in Capital Cases, 103 Yale L. J. 2471,

2473 (1994)

48
 courts , too, have criticized the state of federal

proportionality review in the post-Tison era. As the New Jersey

Supreme Court noted in Gernld:

The failure to distinguish, for purpose of punishment,
those who intend the death of their victim from those who
do not does violence to the basic principle stated [in
Tison] that "the more purposeful the conduct, the more
serious is the offense, and, therefore, the more severely
it ought to be punished." Tison , 481 U.S. at 156.4

Gernld. 549 A.2d at 815.

In Vernon Kills On Top I, we cited i&son for the proposition that

"major participation in the felony committed, combined with
reckless indifference to human life, is sufficient to satisfy the

Enmund culpability requirement," and concluded that "the fact that

[Vernon] did not deliver the final fatal blows does not preclude

imposition of the death penalty." Vwnon Kills On Top I, 243 Mont. at

106, 793 P.2d at 1307. This Court then considered (despite

Vernon's failure to argue the issue) the statutory requirement that

the sentence not be excessive or disproportionate to the penalty

imposed in similar cases, considering both the crimes and the

defendants. The Court's brief discussion on proportionality

included a list of the cases to which it had compared Vernon's

sentence. Vernon Kills On Top I, 243 Mont. at 108, 793 P.Zd at 1308.

4The court also noted that: "The failure to make that
distinction also creates gross disproportionality in light of the
penalties imposed on conviction for such crimes as aggravated
assault, aggravated manslaughter, and felony-murder. As such, the
infliction of capital punishment on one who does not intend his or
her victim’s death is a violation of our state constitutional
prohibition against cruel and unusual punishment." Gerald, 549 A.2d
at 815-16 (citations omitted).

49
These included: Sfatev.LesterKillsonTop(1990), 243 Mont. 378, 787 P.2d

336; State v. Dawson (1988), 233 Mont. 345, 761 P.2d 352; State v. Keefe

(1988), 232 Mont. 258, 759 P.Zd 128; Sfntev.Smith (1985), 217 Mont.

461, 705 P.2d 1087; Sfote v. Fitzpatrick (1980) , 186 Mont. 187, 606 P.2d

1343; State v. Colemnn (1979), 185 Mont. 299, 605 P.2d 1000; SW~ v.

McKenzie (1976), 171 Mont. 278, 557 P.2d 1023. The court noted that

each of the cases, except Kc@?, involved a death penalty imposed

for the aggravated kidnapping and subsequent death of a victim.

Vernon Kills On Top I, 243 Mont. at 109, 793 P.Zd at 1308. This Court

concluded that Vernon was a major participant in the crimes
committed, and that he exhibited a reckless disregard for human

life. VernonKillsOnTop I, 243 Mont. at 109, 793 P.2d at 1309.

Our prior review, however, was flawed based on even the Tison

standard. First, the cases the Court "compared" are markedly

dissimilar to Vernon's case because, while Vernon was not present

at the actual murder and arguably displayed no intent to kill the

victim, the defendant in each of the "comparable" cases was the

principle actor (and not the "nontriggerman") in the actual

killing.' In addition, Vernon's sentence was not compared to that

'This Court has only considered ten death penalty convictions
since 1973. Since Vernon Kills On Top I, we have decided Slate v. Turner
(1993), 262 Mont. 39, 864 P.2d 235, Stutev. Gollehon (1993), 262 Mont.
1, 864 P.2d 249, and Sla&v. Langford (1991), 248 Mont. 420, 813 P.2d
936. None of these cases is "comparable" to Vernon's. Any
proportionality review of Vernon's sentence must take into account
the facts that Vernon was not present at the murder and arguably
did not intend the murder; therefore a proportionality review which
uses only these ten Montana cases is fatally flawed. In addition,
in the later case of Turner, 262 Mont. at 60, 864 P.2d at 248, this

50
of Diane Bull Coming, who, based on everyone's testimony, including

her own, was more directly involved in Etchemendyls death than

Vernon.
Second, Vernon's case presents a situation more similar to the

facts of Enmund than the facts of Tison. The defendants in Tison

provided firearms to convicted murderers to aid their escape from
prison and were admittedly willing to kill, if necessary, in

furtherance of that escape. In addition, the Tison court attached

significance to the fact that the defendants were physically

present when the murders were committed. Justice O'Connor,

speaking for the majority, emphasized:
Far from merely sitting in a car away from the actual
scene of the murders acting as the getaway driver to a
robbery, each petitioner was actively involved in every
element of the kidnapping-robbery and was ohvsicallv
present durinq the entire sequence of criminal activity
culminatinq in the murder of the Lyons family and the
subseauent fliqht.

T&n, 481 U.S. at 158 (emphasis added).

For these reasons we reverse our prior conclusion that based
on a review for proportionality pursuant to the Eighth Amendment to

the U.S. Constitution, the State proved sufficient culpability o n

the part of Vernon for the death of John Martin Etchemendy, Jr., to

justify imposition of a death sentence. However, because we

Court performed a proportionality review for Turner, who was the
principle actor in a deliberate homicide. This Court found that
"Turner's conduct was siqnificantly more culpable than that of Vern
Kills On Top." Turner, 262 Mont. at 60, 864 P.2d at 248 (emphasis
added). The Court's opinion points out that Vernon was not present
at the time of the killing. On the basis of Turner, it is arguable
that if Vernon is indeed less culpable, his sentence should
proportionally reflect his less purposeful conduct.
51
conclude that Tison does not provide sufficient guidance for future

determination of who can and who cannot be constitutionally

sentenced to death under Montana's Constitution, we choose to

afford clearer protection consistent with the standard in Enmund

under Montana's Constitution, and therefore, the following
discussion is necessary.

STATE PROPORTIONALITY REVIEW
Article II, Section 22, of the Montana Constitution, provides

that cruel and unusual punishment shall not be inflicted. Montana

may interpret this section more strictly than the United States

Supreme Court interprets the federal equivalent because " [sltates

are free to grant citizens greater protections based on state
constitutional provisions than the United States Supreme Court

divines from the United States Constitution." State v. Bullock (1995) ,

272 Mont. 361, 383, 901 P.2d 61, 75. As we stated in Bullock: "We

have chosen not to 'march lock-step' with the United States Supreme

Court, even when applying nearly identical language." Bullock, 2 72

Mont. at 384, 901 P.Zd at 75.

The U.S. Supreme Court has recognized the importance of the

state court's role in death sentence review. In Cabana v. BuNock

(19861, 474 U.S. 376, the U.S. Supreme Court remanded a case to the

state court system to make factual findings consistent with the

Eighth Amendment as mandated by Emmnd. According to the Court:

[I]t is the [state court], therefore, not the federal
habeas corpus court, which should first provide [the
defendant] with that which he has not yet had and to
which he is constitutionally entitled--a reliable

52
 determination as to whether he is subject to the death
p e n a l t y

Cabnna, 474 U.S. at 391.

The Court further noted that "[clonsiderations of federalism

and comity counsel respect for the ability of state courts to carry

out their role as the primary protectors of the rights of criminal

defendants." Cnbnnn, 474 U.S. at 391 (citing Younger v. Hnrris (1971),

401 U.S. 37). The Supreme Court has also observed that in capital

cases, as in other constitutional contexts, the states "are free to
provide greater protections in their criminal justice system than

the Federal Constitution requires." Calijhniav. Rnmos (1983), 463 U.S.

992, 1013-14.

It is therefore appropriate to analyze the death penalty

pursuant to not only the federal constitution, but our state

constitutional standards as well. This approach was undertaken by

the New Jersey Supreme Court in Getzld, 549 A.2d 792. In Gerald, the

issue before the court was "whether a sentence of death is

disproportionate for a defendant who had no intent to kill his or

her victim, but rather intended only to inflict serious bodily

injury, even though the injury did in fact result in death." Gerald,

549 A.2d at 811. The court first worked through the federal

proportionality analysis and determined that: "Defendant's conduct
in this case appears (or so a jury could find) to fall within the

Eon category of nonintentional murders that manifest a reckless

indifference to human life." Gerald, 549 A.Zd at 810. However, the

court held that:

53
 The federal constitutional analvsis, of course, does not
e n d t h e inauirv

. . Resort to a state-constitutional analysis is
especially appropriate in light of the fact that "capital
punishment is a matter of particular state interest or
local concern and does not require a uniform national
policy."

Gerald, 549 A.2d at 810-11 (citation omitted). The Gerald Court did

look to the Supreme Court for guidance where it deemed the Court's

language persuasive:

We sometimes look to aspects of the Supreme Court's
constitutional analysis, where persuasive, for guidance
in establishing principles under our state constitution.
We observe at the outset that the death penalty statute
must "limit imposition of the penalty to what is assumed
to be the small group for which it is appropriate."
(Citing Furman y. Geo@z, 408 U.S. at 310 (White, J.,
concurring) .) We also record our agreement with the Tison
Court's statement that "[dleeply ingrained in our legal
tradition is the idea that the more purposeful the
conduct, the more serious is the offense, and, therefore,
the more severely it ought to be punished." Tison, 481
U.S. at 156.

Gerald, 549 A.2d at 811 (citation omitted).

Although we agree with the U.S. Supreme Court's holding and

rationale in Enmund and the language from Tison cited by the New

Jersey Court in Gerald, we do not believe that wholesale application

of Tison to the Montana Constitution would sufficiently distinguish

between various forms of conduct for purposes of imposing the death

penalty. Montana's statute which requires proportionality review

strengthens our conclusion, as does the U.S. Supreme Court's

apparent inclination to further erode its holding in Enmund. As one

source stated:

54
 Though [Pulley v. Hmris6 (1984), 465 U.S. 371 arguably
departs from the Court's previous ringing endorsement of
proportionality review as a constitutional requirement,
it does not contradict the language in [Gregg v. Georgia
(1976), 428 U.S. 1531 indicating that proportionality
review is important because it can help eliminate
"wanton" and "freakish" death sentences. In addition,
Pulley is not particularly important in states that, by
providing statutorilvmandatedproportionalitv review, 90
bevond what the United States Constitution requires.

Comment, A Critical Evaluation of State Supreme Court

Proportionality Review in Death Sentence Cases, 73 Iowa L. Rev.

719, 725 (emphasis added).

Tennessee is another state with a statutory requirement of

proportionality review. In 1992 the Tennessee Supreme Court

addressed the issue of the proportionality of the death penalty to

the crime of felony murder. Slate v. Middlebrooks (Term . 19 92 ) , 84 0

S.W.2d 317, 335-47. Like the Gevnld court, the Tennessee Supreme

Court first applied "the minimum standards for determining whether

a sentence of death may be constitutionally imposed under the

United States Constitution for felony murder" by applying the

.&mund/Tison analysis. Middlebrooks, 840 S.W.2d at 337. The Court

continued, however:

These federal standards do not, however, answer the
question under the state constitution . [Wle may
not impinge upon the minimum level of protection
established by Supreme Court interpretations of the
federal constitutional guarantee, but may impose higher
standards and stronger protections than those set by the
federal constitution.

6Pulley held that the Eighth Amendment does not invariably
require state appellate courts, before confirming a death penalty
in any case, to compare the case before it with the penalties
imposed in similar cases if requested to do so by the prisoner.
Pulley, 465 U.S. at 876.

55
Middlebrooks, 840 S.W.Zd at 338. The Court ultimately relied on its

own statutory provision to determine that its state constitution

required stronger protections for felony murderers:

An integral part of the death penalty statute
that must be construed in pari materia is the
automatic review of every death sentence by
this Court. Subsection (c) of that statute
enumerates our duties that include eliminating
any arbitrary, excessive, or disproportionate
imposition of the death penalty. .

Accordingly, rather than an absolute rule of perse
disproportionality, this Court has in the past relied on
its statutory duty of review under [Tennessee statute] to
assure that the sentence ineachcase is not disproportionate
or excessive. We agree with that approach and with
Justice Blackmun's rejection of the perse proportionality
approach in his dissent in LockettvOhio, 438 U.S. 586, 613-
619. He observed in that connection that a sentence in
felony murder should be based on evidence of a particular
defendant's participation in homicide and his mens rea in
regard to the homicidal act.

We, therefore, reaffirm the rejection of a peuse
proportionality approach in favor of the required
statutory proportionality review.

Middlebrooks, 840 S.W.2d at 339-40.

Like the Tennessee court, we do not today adopt a rule that

the death sentence can never be imposed on someone convicted of

felony murder. What we do hold is that, pursuant to statute and

the Montana Constitution, each case has to be reviewed on the basis
of its unique facts to assure that the death sentence is not

disproportionate to the degree of that defendant's culpability for

a victim's death.

We reject wholesale adoption of the Supreme Court's language

in Tison because we agree that it lacks any "identifiable core"

which provides us with a meaningful way of delineating under our

56
own constitution between those felony murder participants who

possess sufficient culpability to warrant imposition of the death

penalty and those who lack any intent whatsoever to cause the death

of another. We conclude that a finding of mere "reckless

indifference" is not sufficient for imposition of the death penalty

under the proportionality review required pursuant to the Montana
Constitution, and that the "reckless indifference" standard allows

courts to provide only superficial regard to a defendant's
"blameworthiness" before imposing a punishment, which, if imposed

without regard to blameworthiness, would be cruel and unusual.

Furthermore, we conclude that imposition of the death penalty

without a requirement that there have been some intent to kill on

the part of the defendant would serve no purpose of deterrence. If

a person has no intent to kill from the beginning, then the fact

that he might suffer the imposition of a death penalty cannot
"enter into the cold calculus that precedes the decision to act."

Enmund, 458 U.S. at 799 (quoting Gregg, 428 U.S. at 186). Although

the deterrent purpose of the death penalty is not its only purpose

(see Enmund and Tison) , it is one factor to consider in the course of

our individualized review for proportionality.

After thorough review of the record in this case, we conclude,

on independent state constitutional grounds, that because Vernon

Kills On Top was not present when John Etchemendy was killed, did

not inflict the injuries which caused his death, and because there

was no reliable evidence that he intended his death--but instead
evidence that he sought to avoid it--the imposition of his death

57
sentence was disproportionate to his actual conduct, cannot
withstand individualized scrutiny, and must be set aside. To the
extent that State v. Vernon Kills On Top (lYYO), 243 Mont. 56, 793 P.2d

1273, is inconsistent with this opinion, it is reversed.
Nothing in this opinion precludes the imposition of any other

penalty provided by law for the crimes of which Vernon was

convicted (should his conviction survive further challenge),

including life in prison as provided for in §§ 45-5-102(Z) and

-303 (2) , MCA.

ISSUE 5
Did the District Court err when it denied five of the

petitioner's claims based on the procedural bar found at
§ 46-21-105, M C A , because they were not previously raised on
appeal?

Vernon Kills On Top contends that the District Court erred
when it dismissed his claims numbered 3, 6, 7, 8, and 12 based on

the procedural bar found at 5 46-21-105, MCA. Subparagraph (2) of

that section provides as follows:

(2) When a petitioner has been afforded a direct
appeal of the petitioner's conviction, grounds for relief
that could reasonably have been raised on direct appeal
may not be raised in the original or amended petition.

In LestevKillsOnTo~~v.State (1995), 273 Mont. 32, 60, 901 P.2d 1368,

1386, we cited with approval our recent observation in InreManula

(1993), 263 Mont. 166, 169, 866 P.2d 1127, 1129. There we stated

that:
We have applied that statutory bar [in § 46-21-
105(2), MCA] consistently in order to prevent the abuse
of postconviction relief by criminal defendants who would

58
 substitute those proceedings for direct appeal and in
order to preserve the integrity of the trial and direct
appeal.

In LesterKillsOnTop, 273 Mont. at 60, 901 P.2d at 1386, we also

overruled that part of Statev.Henricks (1983), 206 Mont. 469, 474, 672

P.Zd 20, 23, which suggested that the procedural bar would not be

applied, and held that we would apply § 46-21-105(2), MCA, based on
its plain terms.

In accord with the statutory requirement and our prior

decision in Lester Kills On Top, we conclude that claims 3 and 6 could

reasonably have been raised during Vernon's direct appeal to this

Court, but were not. Our refusal to consider those issues now will

not result in a fundamental miscarriage of justice, and therefore

Vernon is procedurally barred from raising them in this petition

for postconviction relief. We also observe that claims 7, 8, and

I2 relate to the District Court's imposition of the death sentence.

That sentence has now been vacated. We conclude, therefore, that

those issues are moot.

For these reasons, the District Court's summary dismissal of

claims numbered 3 and 6 is affirmed and we decline to address the

District Court's summary dismissal of claims numbered 7, 8, and 12.

In summary, the District court ( s dismissal of Vernon

Kills On Top's petition for postconviction relief based on

ineffective assistance of counsel is vacated and this case is

remanded to the District Court for a hearing at which the

petitioner is entitled to present evidence of ineffective

assistance limited to the issues previously set forth in this

59
opinion. Furthermore, the imposition of the death sentence as a

penalty in this case is vacated and, in the event that Vernon

Kills On Top's conviction is affirmed, following the hearing to

consider his claim that he received ineffective assistance of

counsel, the death penalty is not a sentencing option for the

District Court. He may otherwise be sentenced for the crimes of

which he was convicted consistent with all remaining options set

forth in Montana's Criminal Code, including life in prison.

We concur:

Chief Justice

hristensen

60
Justice Karla M. Gray, concurring and dissenting.

I concur in the Court's opinion on issues two and five and in
parts of that opinion on issues one and three. I respectfully
dissent from portions of the Court's opinion on issues one and
three and from the entirety of that opinion on issue four.
Issue one is whether the District Court erred in denying
petitioner the opportunity to amend his petition for postconviction
relief. With regard to the proposed amendments relating to
ineffective assistance of counsel, newly discovered evidence, Bradv
violations and cumulative denial of due process, I agree with the
Court that the amendments were not futile and that the District
Court abused its discretion in determining otherwise.
I disagree with the Court's determination that the proposed
amendment to claim 11 to refer to 5 45-2-302(l), MCA, should have
been allowed. First of all, it is undisputed that petitioner was
not charged under this particular subsection of the "legal
accountability" statute which requires that the mental state
necessary for the underlying offense must be "shared" by the person
the State seeks to hold legally accountable for the acts.
Subsection (3) of § 45-2-302, MCA, which is applicable in this
case, requires only that
either before or during the commission of an offense with
the purpose to promote or aid such commission, he
solicits, aids, abets, agrees, or attempts to aid such
other person in the planning or commission of the
offense.
Moreover, this § 45-2-302(l), MCA, issue--which by the Court's own

61
characterization relates to the existence or lack thereof of a
statutory aggravating circumstance and not to proportionality--
could have been raised in petitioner's direct appeal and was not.
On that basis, the issue is procedurally barred under § 46-21-

105 (2)) MCA, and Lester Kills on Tou, 901 P.2d at 1386-87. For
these reasons, it is my view that the District Court did not abuse
its discretion in rejecting the proposed amendment to claim 11 on
the basis that it was futile. The remainder of my disagreement
with the Court over this particular proposed amendment relates to
my strenuous disagreement regarding issue four, the proportionality
issue, which is discussed below.
With regard to issue one, I also am concerned with the Court's
sweeping suggestion that any and all motions to amend a petition
for postconviction relief--at least in a death penalty case--must
be granted. It is my view that neither the law nor "justice"
supports such a theory.
Nor do I see the relevance of the Court's observation that "no
prejudice to the State was established which would justify" denial
of petitioner's motion to amend his petition for postconviction
relief. The Court cites to no authority under which the State must
establish prejudice regarding a proposed amendment prior to such
time as the proposing party establishes that justice requires that
the motion be granted, and I know of none.
My final observation with regard to the Court's discussion of
issue one relates to the 1995 amendments to § 46-21-105, MCA, which
are not applicable to the case presently before us. As amended, §

62
46-21-105(l), MCA, expressly provides that a petition for
postconviction relief "may be amended only once." Presumably the
Court will apply that limitation, pursuant to the clear intent of
the legislature, in future postconviction proceedings to which it
applies, absent a successful constitutional challenge. I fear,

however, that the Court's sweeping suggestion in this case--that
any and all motions to amend a petition for postconviction relief
in a death penalty case must be granted--will prove a significant
stumbling block to anyone attempting to argue that this Court must
follow the law duly enacted by the legislature in § 46-21-105(l),
MCA (1995).
Issue three is whether the District Court erred in concluding
that certain of the petitioner's claims were barred by the doctrine
of res iudicata. The Court holds that, except as to the claims
which raise proportionality arguments pursuant to the United States
and Montana Constitutions, the District Court did not err in
concluding that certain of petitioner's claims are so barred. I
agree with the Court that the specified claims are barred by res
iudicata.
With specific regard to the proportionality claims, I agree
with the Court that the doctrine of res iudicata was not enacted
into the postconviction relief statutes by the Montana legislature
and, therefore, that the doctrine is a judicial creation. I also
agree that we have recognized an exception to its applicability
where the case already must be remanded for further proceedings
because of reversal on an unrelated issue. See Zimmerman, 573 P.2d

63
at 178. This threshold Zimmerman procedural circumstance is
present in this case because we have concluded that the Brady
violations require that petitioner be resentenced, for the reasons
discussed in some detail in petitioner's brother's recent
postconviction case. See Lester Kills on TOD, 901 P.2d at 1375-77.
However, Zimmerman authorizes us to revisit an issue resolved
on direct appeal only "to correct a manifest error in [our] former
opinion." Zimmerman, 573 P.2d at 178. Based on Zimmerman, the
Court refuses to bar petitioner's proportionality arguments under
either the federal or the Montana Constitution and proceeds, in
issue four, to address those arguments on the merits under both
Constitutions. I disagree that Zimmerman authorizes us to address
proportionality under either Constitution.
With regard to the issue of proportionality under the United
States Constitution which we addressed and resolved in petitioner's
direct appeal, it is my view that our earlier opinion did not
contain manifest error and that the Court's proportionality
analysis in the present case is flawed. Therefore, I would apply
the res iudicata bar to petitioner's proportionality argument under
the United States Constitution.
Before even beginning its proportionality analyses, the Court
"reviews" the evidence which led to petitioner's conviction for
aggravated kidnapping and deliberate homicide and to the imposition
by the sentencing court of the death penalty. Its review rather
pointedly minimizes the evidence about the extent of petitioner's
participation in the episode which resulted in Etchemendy's death.

64
Instead, it focuses largely on the testimony of Diane Bull Coming
and, in the guise of "reviewing" that testimony, reweighs her
testimony and redetermines her credibility. The Court cites to no
authority under which it is authorized to do so, and I submit that
the sole intent of this "review" is to buttress the conclusion the
Court determined in advance to reach. In my opinion, we are bound
on these factual matters by the record which supported the jury
verdicts and the findings of fact made by the sentencing court and
which we reviewed and affirmed on appeal in State v. Kills On Top
(1990), 243 Mont. 56, 793 P.2d 1273.
That record indicates that the deliberate homicide was
committed by means of torture and that the aggravated kidnapping
resulted in the death of the victim; that petitioner was "directly
involved in the serious beating of the victim;" that this severe
physical brutality engaged in by petitioner was so severe it could
have caused death even absent further infliction of physical
violence by petitioner's brother; that after that potentially fatal
beating, petitioner participated in placing the nude victim in the
trunk of the vehicle and did nothing for him in the subsequent
twelve-hour period; and that later, on two occasions, petitioner
agreed that the victim had to die. Kills on TOT), 793 P.2d at 1300-
1308. Indeed, we specifically determined that the sentencing
court's finding that petitioner "agreed that the victim had to die"
was supported by the record. Kills on Top, 793 P.2d at 1308.
Notwithstanding this record, and our related determinations in
petitioner's direct appeal, the Court resorts to "retrying" these

65
matters here. I cannot join in such a course of action.
The Court then proceeds to its "Federal Proportionality
Review." It sets forth, briefly, the United States Supreme Court's
controlling Enmund and Tison cases, and then presents lengthy
criticisms of Tison from law review articles and one court. There
appears to be no reason for including this segment, other than the
Court's implicit agreement with the criticisms of Tison advanced by
others. The question before us here, however, is not whether we
agree with the Supreme Court's decision in Tison; the issue here is
whether this Court erred in applying that decision in petitioner's
direct appeal. Thus, the "criticism" is totally irrelevant to the
Court's purported federal proportionality review in this case.
The Court does finally advance its analysis regarding whether,
under federal proportionality standards set forth in Enmund and
Tison, this Court's opinion in petitioner's direct appeal contained
"manifest error" for purposes of applying the Zimmerman exception
to the doctrine of lees iudicata. In one short paragraph, it
concludes that our previous analysis under Tison was flawed. That
paragraph is followed by another single paragraph asserting that
petitioner's case "presents a situation more similar to the facts
of Enmund than the facts of Tison." I submit that the Court is
incorrect in both regards. As a result, it is my view that our
opinion on this issue in petitioner's direct appeal was not
manifestly erroneous and does not support refusing to apply res
iudicata here pursuant to Zimmerman.
Regarding Tison, the facts in that case were as follows. The

66
Tison brothers planned and executed their father's armed escape
from the Arizona State Prison. When a tire blew out on their
vehicle after the escape, they decided to flag down a passing
motorist and steal a car; they armed themselves and waited at the
side of the road. When the Lyons family stopped to render
assistance, they were forced into the backseat of the Tison vehicle
and driven into the desert, where they were ordered out while the
Tisons stole their property and put it into the Tison vehicle.
Within the view of the Tison brothers, their father and his co-
escapee murdered the Lyons family with the shotguns used in the
escape. Neither brother made any effort to help the victims.
Tison, 481 U.S. at 139-41. The brothers subsequently were
convicted of armed robbery, kidnaping, car theft and felony-murder.
The sentencing court found three statutory aggravating factors and
no statutory mitigating factor; it specifically found that the
brothers' participation in the crimes giving rise to the
application of the felony-murder rule was "very substantial."
Tison, 481 U.S. at 142. On appeal, the Arizona Supreme Court
determined that the record established that both brothers were
present during the homicides and that the homicides "occurred as
part of and in the course of the escape and continuous attempt to
prevent recapture." Tison, 481 U.S. at 143. The brothers
subsequently challenged their death sentences in postconviction
proceedings, which ultimately reached the United States Supreme
Court. Tison, 481 U.S. at 143, 145-46.
The issue before the Supreme Court was whether the Eighth

67
Amendment permitted imposition of the death penalty for
nontriggermen who took no act desired, or substantially certain, to
cause death but whose participation in the crimes was major and
whose mental state was one of reckless indifference to the value of
human life. Tison, 481 U.S. at 152. Distinguishing the facts from
Enmund, the Supreme Court determined from the record that the
petitioners were "actively involved in every element of the
kidnaping-robbery and physically present during the entire sequence
of criminal activity culminating in the murder of the Lyons family.
. 11 Tison, 481 U.S. at 158. On that basis, the Supreme Court
held that "major participation in the felony committed, combined
with reckless indifference to human life, is sufficient to satisfy
the Enmund culpability requirement." Tison
, 481 U.S. at 158.
It is clear that the Tison Court premised its holding on the
brothers' major participation in the underlying felonies which gave
rise to the felony-murder death sentences, and the reckless
indifference to human life shown by that participation and their
failure to do anything to prevent the murders. We applied these
Tison criteria in Kills On TOQ and held that the facts of this case
were sufficient to satisfy the individual culpability requirement
set forth in Enmund. Kills on Too, 793 P.2d at 1306-1308. It is
clear that we were correct in doing so; indeed, it is my view that
petitioner's culpability here is greater than that of the Tison
brothers.
Petitioner was driving the vehicle at the inception of the
lengthy episode which culminated in Etchemendy's death and, indeed,

68
drove the group out of town for the purpose of "rolling" and
stealing from him; petitioner confiscated Etchemendy's credit cards
and employment checks from his wallet. Kills On Top, 793 P.2d at
1280. When petitioner's brother and Etchemendy were fighting in
the back seat of the vehicle, petitioner stopped the car because he
"wanted in on some of this;" while Etchemendy screamed and pleaded
with them to stop, petitioner and his brother continued beating him
and kicked him while he was lying on the ground. Petitioner then
attempted to choke the victim in the back seat of the car. u
On Top, 793 P.2d at 1280. Petitioner later told Etchemendy to
remove his clothes and helped place the nude victim into the trunk
of the car. Kills On TOP, 793 P.2d at 1280. Petitioner and his
brother subsequently cashed one of Etchemendy's checks and divided
the money between them. Later, petitioner agreed with his brother
on two occasions that they would have to kill and "get rid of"
Etchemendy. Kills On TOD, 793 P.2d at 1281. While petitioner was
not physically present when Etchemendy was murdered, he did nothing
in the lengthy pre-murder stages of the episode to help the victim
or prevent the homicide. Indeed, petitioner aided in leaving the
area after the murder. Kills On Tou, 793 P.2d at 1282. Petitioner
did not inflict the final fatal blows, but the record established
that the kick in the head which petitioner did inflict on
Etchemendy could have caused his death eventually even without
further infliction of physical violence. Kills on T , 793 P.2d at
OP

1308.
A proper application of Tison to these facts and this record

69
mandates two conclusions: First, petitioner was a major
participant in the felony offenses--robbery and kidnaping--
committed prior to the actual fatal blows which killed Etchemendy
and upon which the State charged him with deliberate homicide by
accountability under the so-called felony-murder rule. Second,
petitioner's acts demonstrated, at the very least, a reckless
indifference to human life. These are precisely the conclusions we
reached on this issue in petitioner's direct appeal. They were
correct then, and they remain correct today. The Court simply
prefers to ignore the facts and the record concerning petitioner's
culpability in its determination to find "manifest error" regarding
federal proportionality requirements in our earlier decision--all
for the purpose of avoiding the res iudicata effect of that
decision.
Nor is the Court correct in stating that the present case more
closely resembles Enmund than Tison. In Enmund, two persons
committed robbery and then shot and killed their victims. Enmund,
458 U.S. at 784. Defendant Enmund was believed by law enforcement
to have been waiting in a car outside the premises for the
offenders to return and to have driven the "getaway car." Enmund,
458 U.S. at 784. One of the primary offenders was tried with
Enmund, and both were convicted of two counts of first-degree
murder and one count of robbery; Enmund was sentenced to death for
his role as an accomplice in the commission of an armed robbery
which resulted in two deaths. Enmund, 458 U.S. at 784-85.
The United States Supreme Court granted Enmund's petition for

70
certiorari from the Florida Supreme Court's affirmance of the death
sentences in order to address the issue of whether death is a valid
penalty under the Eighth Amendment for one who "aids and abets a
felony in the course of which a murder is committed by others but
who does not himself kill, attempt to kill, or intend that a
killing take place or that lethal force will be employed." Enmund,
458 U.S. at 787, 797. The Supreme Court determined that Enmund
"did not kill or attempt to kill; and, as construed by the Florida
Supreme Court, the record before us does not warrant a finding that
Enmund had any intention of participating in or facilitating a
murder." Enmund, 458 U.S. at 798. Indeed, the 'I'& evidence of
the degree of [Enmund's] participation is the jury's likely
inference that he was the person in the car by the side of the road
near the scene of the crimes."' Enmund, 458 U.S. at 786 (emphasis
added). On the basis of this record, the Supreme Court reversed
the imposition of the death penalty. Enmund, 458 U.S. at 801.
I will not reiterate the record before us in this case
regarding petitioner's actual involvement and participation in the
extensive criminal episode which culminated in Etchemendy's death.
Nor will I present a detailed analysis of the extent to which that
participation differed both qualitatively and quantitively from the
record before the Supreme Court in Enmund. Suffice it to say that
it is my view that the negligible degree of personal culpability
present in Enmund bears no resemblance whatsoever to petitioner's
personal culpability in this case. The Court is clearly, and
simply, wrong in concluding that the present case is more like

71
Enmund than like Tison. It is equally, and as clearly, wrong in
using its incorrect analysis as a means by which to conclude that
our decision in the direct appeal of petitioner's convictions and
sentences was "manifest error" which allows us to revisit the
proportionality issue already--and correctly--addressed there.
I also disagree with the Court's decision to address
petitioner's proportionality argument under the Montana
Constitution. The Court correctly notes that no proportionality
issue under the Montana Constitution was raised or addressed in
petitioner's direct appeal. Under such a circumstance, the law is
clear that we cannot address that claim in this postconviction
proceeding.
Section 46-21-105(2), MCA, provides as follows:
When a petitioner has been afforded a direct appeal of
the petitioner's conviction, grounds for relief that
could reasonably have been raised on direct appeal may
not be raised in the original or amended petition.
In our recent opinion in petitioner's brother's postconviction
proceeding, we overruled an earlier case to the extent it stood for
the proposition that this Court can review issues in postconviction
proceedings which could have been--but were not--raised on direct
appeal. See Lester Kills On Top, 901 P.2d at 1386-87. We then
applied the statutory procedural bar to each and every
postconviction claim which could have been raised on direct appeal.
See Lester Kills On Top, 901 P.2d at 1387-90.
We must do the same here with regard to petitioner's
proportionality arguments under the Montana Constitution. These
matters clearly could have been raised on direct appeal. Since
72
they were not, we are obligated to apply the statutory procedural
bar contained in § 46-21-105(2), MCA. The Court does not
affirmatively address the statutory bar in any respect regarding
the proportionality arguments petitioner raises under the Montana
Constitution although, interestingly, it has no difficulty in
affirming the District Court's application of that bar to other of
petitioner's claims in issue five. While I concur in the Court's
opinion on issue five, I cannot agree with its totally inconsistent
approach in not applying the § 46-21-105(2), MCA, procedural bar to
the proportionality issue raised under the Montana Constitution.
Nor do I agree with the Court's view that the Montana
Constitution is not a separate "grounds for relief" which could
have been raised on direct appeal for purposes of applying the
procedural bar contained in § 46-21-105(2), MCA. I note that we
used "grounds for relief" interchangeably with "issues," "claims"
and "arguments" in Lester Kills on Top, 901 P.2d at 1385-90.
Moreover, it is clear, even from the Court's opinion in this case,
that the Montana Constitution is being used as a basis for relief
separate and distinct from that available under the United States
Constitution.
Moreover, the Court's castigation of the dissent as putting a
procedural bar ahead of human life is mere rhetoric which appeals
to the emotions but ignores the law. The statutory procedural bar
contained in § 46-21-105(2), MCA, was duly enacted by the Montana
legislature and it is our clear and simple duty to apply that bar
pursuant to its terms. We did so in Lester Kills on TOQ and we are

73
obligated to do so here. The Court's attitude only fuels the
public's perception that courts are unwilling under any
circumstances to allow implementation of death sentences and are
willing to ignore applicable law in order to impose their views.
Nor does--or can--the Court support its charge that the
dissent construes the statutory procedural bar more narrowly than
it was ever intended. Section 46-21-105(Z), MCA, speaks for itself
regarding the legislature's intent. It was intended to do
precisely what it should do in this case: preclude a petitioner
for postconviction relief who has been afforded a direct appeal
from raising thereafter--in the postconviction context--an issue
which could have been raised on direct appeal but was not. While
this Court may not agree with the legislature's intention, we are
obliged to apply it.
It is relatively clear that the Court feels compelled to rely
on a proportionality analysis under the Montana Constitution as
specifically providing a separate ground for relief in order to
avoid review by the United States Supreme Court of the Enmund/Tison
rationale it sets forth under the United States Constitution.
While I often join my brethren in avoiding such review by relying
on "independent state grounds," I cannot do so here where the only
means of achieving that end is to breach the consistent application
of the statutory procedural bar to which we so recently and
strongly committed in Lester Kills on Too.
It is our role--unpopular as it often is with the public--to
ensure that the State does not violate the rights of criminal

74
defendants. It is not our role to ignore the law in order to
provide those defendants with rights to which they are not
entitled, It is my view that the Court has allowed its
determination to limit the availability of the death penalty in
Montana to override its obligation to apply the statutory
procedural bar to petitioner's contention that the Montana
Constitution precludes imposition of the death penalty in this
case. I cannot agree.
I dissent

Chief Justice J. A. Turnage jol
dissenting opinion.
/

~~.
9 Chief Justice
>')
Justice Terry N. Trieweiler specially concurring.

The dissent touches all the politically-correct buttons. It

pays homage to the Legislature and crows about judicial restraint.

It accuses the majority of ignoring the law, basing its decision on

emotions, and refusing to enforce the death penalty based on the

members' own views. The author of the dissent first weaves a

procedural bar out of transparent whole cloth, and then wears the

procedural bar she has woven as her own mantelet of judicial honor.

The dissent gets high marks for political pandering, but has

little basis in law or in fact. The dissent is replete with

factual inaccuracies and exaggerations which the author would

apparently prefer to perpetuate, rather than recognize the record

by which she contends we are bound.

The dissent suggests that this Court first arrived at its

conclusions, and then sought to buttress them by its "review" of

the facts. Anyone who participated in the, extensive arguments,

deliberations, and discussions conducted by this Court, and paid

even minimal attention, knows better. But the statement makes a

good sound bite.

The dissent contends that the facts stated in this Court's

previous opinion were correct then and are correct now, apparently

operating on the assumption that saying so makes it so. The author

of the dissent has obviously not personally reviewed the record in

this case.

The dissent accuses the majority of failing to affirmatively

address the procedural bar to consideration of Montana's

76
Constitution. The omission is for good reason. Not even the State
of Montana has contended that there is a procedural bar to
consideration of the proportionality issue pursuant to Montana's

own Constitution. The issue was first raised suasponte by the author

of the dissent when her first written dissent was circulated. It

is difficult to reconcile this type of activism with the same

author's refusal to address our constitution in Statev. Zabawa (Mont.

Nov. 21, 1996)) No. 95-349, simply because the defendant did not

assert that it provided greater protection than the federal

constitution. So much for the judicial restraint that the dissent
purports to idealize.

The dissent suggests that to ignore a procedural bar
(incorrectly assuming that one exists) simply because this case

involves the death penalty infers some kind of weak-kneed idealism

based on emotion, rather than the law. In doing so, the author of
the dissent, herself, ignores repeated declarations by the U.S.

Supreme Court and its members to the effect that death penalty

cases must be treated differently when the issue of a procedural

bar is considered. As pointed out by Justice Stevens in his

dissent to Smithv. Murray (1986), 477 U.S. 527:

("The Court, as well as the separate opinions of a
majority of the individual Justices, has recognized that
the qualitative difference of death from all other
punishments requires a correspondingly greater degree of
scrutiny of the capital sentencing determination"); Zant
v. Stevens ) 4 6 2 U . S . 862, 884 (1983) (" [Tlhere i s a
qualitative difference between death and any other
permissible form of punishment"); Rummelv.Estelle, U.S.
445
2 6 3 , 272 (1980) ("This theme, the unique nature of the
death penalty for purposes of Eighth Amendment analysis,

77
 has been repeated time and time again in our opinions.
. [Al sentence of death differs in kind from any
sentence of imprisonment"); Lockettv.Ohio, 438 U.S. 586, 605
(1978) (BURGER, c.J.) ('l[Tlhe imposition of death by
public authority is profoundly different from all
other penalties"). Cf. Meltzer, State Court Forfeitures
of Federal Rights, 99 Harv. L. Rev. 1128, 1222 (1986)
("iwlhen a capital defendant raises a nonfrivolous
constitutional question, neither state nor federal courts
should be free to refuse to decide it simolv because it
was not raised in accordance with state procedural
requirements. Rather, federal law should exoressly
provide that in matters of procedural default, as in
other matters, death is different").

Indeed, the Court has recoqnized that even the threat
of a death oenaltv mav, in certain circumstances, exert
a special cull in favor of the exercise of the federal
court's undisputed statutorv power to entertain a habeas
corpus writ on a claim that was procedurallv defaulted.

Smith, 477 U.S. at 545-46 n. 11 (Stevens, J., dissenting) (emphasis

added).

While the dissent is strong on political rhetoric, its legal

analysis is faulty, its regard for the record is questionable, and

its recognition of the judiciary as an independent branch of

government responsible for enforcement of Montana's Constitution is

apparently less important than stoking the flames of public

reaction to a grisly series of events, even if that means

exaggerating this defendant's involvement in those events

It is always a challenge to decide brutal and sensationalized

cases strictly on the law. That responsibility is only made more

difficult by irresponsible and factually inaccurate and exaggerated

statements like those made by the dissent.

If the author of the dissent had as much regard for the

record as she claims, and limited her discussion to those legal

78
issues over which there is arguably a basis for disagreement, the

opinion and the dissent would be shortened considerably, and the
public would be better served.

79