Duncan Peder McKenzie Jr. v. Henry Risley

842 F.2d 1525, 1988 U.S. App. LEXIS 3238, 1988 WL 19274

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 10, 1988
• Docket: 85-4156
• Status: Published

Opinions

OPINION

KOZINSKI, Circuit Judge:

Appellant Duncan Peder McKenzie, Jr., convicted of murder and sentenced to death by the State of Montana, appeals from the district court’s dismissal of his petition for writ of habeas corpus. A panel of this court affirmed the dismissal in McKenzie v. Risley, 801 F.2d 1519 (9th Cir.1986), but McKenzie’s suggestion for rehearing en banc was subsequently granted. 815 F.2d 1323 (9th Cir.1987). We now affirm.

I. BACKGROUND

The Montana Supreme Court described the facts as follows:

The victim in this case was Lana Harding, a 23 year old rural school teacher in Pondera County, Montana. On Tuesday morning, January 22, 1974, she failed to appear at school. At the Pioneer School teacherage where she lived the bed was found in a disheveled condition. The sheriff of Pondera County was called and officers were dispatched to the school arriving there midmorning.

Investigation that day revealed (1) a red tennis shoe belonging to Lana Harding just outside the school, (2) a drag trail from the teacherage to a nearby road, (3) blood near the end of the drag trail (later identified as Lana’s type and RH factor) and (4) a wrist watch belonging to Lana in the same area as the blood. Lana Harding was last seen in Conrad, Montana, 13 miles from the teacherage on Monday, January 21, at about 5:00 p.m.

Defendant had recently moved into the community and was working for the K & K Wholesale Seed Company, located approximately three miles from the Pioneer School teacherage. A day or so before January 21 he made arrangements to buy a 1948 black Dodge pickup, recognizable to most inhabitants of the area because it had belonged to one local owner for a long period of time. On January 21 defendant had worked on the pickup after work. He was seen leaving K & K Wholesale Seed Company at approximately 6:45 p.m. in his black pickup headed toward his place of residence not far from the teacherage. The pickup was seen about 7:00 p.m. about a mile from the teacherage.

Approximately an hour later, around 8:00 p.m., defendant knocked on the door of the Pearson farm residence located across the road from the teacherage. He asked for assistance in starting his pickup. It was later determined his pickup was parked in the road at a point where the drag trail ended and where the blood and watch were found the following day. At the Pearson residence defendant asked directions to his own residence and called his wife to say he was coming home. Don Pearson pulled the pickup, got it started and noted defendant did not drive on towards his place of residence. Shortly thereafter, the pickup was seen being driven toward the drill where Lana’s body was found the following day.

Her body was found clothed only in a shirt[,] sweater and bra. It was draped over the tongue of a grain drill. She had been severely beaten about the head and body. The forensic pathologist who examined the body testified the death blow had been delivered to the head and laid open the right side. A rope was tied around her neck; there was evidence she had been strangled; however pressure had been released so she did not die of strangulation. A coil of wire was entangled in her hair, later shown to have come from a roll of wire found in the back of defendant’s pickup.

During the search for the body and the investigation of the homicide three additional items were found: (1) A pair of gloves worn by defendant at work were found in a field not far from where the body was discovered with human blood on them, (2) overshoes with Lana’s type blood and brain tissue on them were found about a quarter of a mile away, and impressions from the soles matched the heels of boots later taken from defendant’s home; and (3) Lana’s purse was found near the place where the overshoes were covered.

As a result of the investigation by the sheriff and his deputies, the county attorney, on Tuesday afternoon, January 22, filed a complaint charging defendant with assault before the justice of the peace. The county attorney also obtained a warrant for the arrest of defendant and a search warrant.

Defendant was thereafter arrested at his home. The black Dodge pickup was seized and impounded and blood was found in the bed of the pickup and on the springs; the back end of the pickup had been recently sprayed with black paint; the spray paint was later identified by FBI experts as identical to paint brand-named “Weekend” which was not available in the Conrad-Pondera County, Montana area. A can of the black spray paint was found in the cab of the pickup and another was later found at defendant’s home.

The following items were found in the back of the pickup: (1) a coil of wire later identified as having been the source of wire found in the victim’s hair, (2) an exhaust manifold that had been painted black, and (3) human blood of the same kind and RH factor as Lana’s and brain and corticle tissue were found on the manifold. Dr. John Pfaff, who examined the victim’s body and the manifold, testified that the manifold could have inflicted the fatal blow.

At the drill site where the body was located, a piece of brass from a water pump was found. The prior owner of the Dodge pickup testified this piece of brass was in [the] back of the pickup when defendant took possession of the pickup on January 19.

Several co-workers at the K & K Wholesale Seed Co. testified at trial that defendant had said on January 21 that he broke in every new vehicle by engaging in sexual intercourse in [it]. Several days before defendant had remarked that he had had intercourse with country school teachers; and that they were naive, he could teach them, and they were easy to get.

Subsequently defendant was charged with several crimes to which he entered pleas of not guilty. Following trial, he was convicted by a jury of the crimes of deliberate homicide by means of torture and aggravated kidnapping. Judgment was entered thereon and a death sentence imposed. Defendant appealed.

State v. McKenzie, 186 Mont. 481, 608 P.2d 428, 434-36 (1980) (McKenzie III).

The panel opinion summarized the extensive procedural history of the case:

The Montana Supreme Court affirmed the convictions and the sentence. State v. McKenzie (I), 557 P.2d 1023, 171 Mont. 278 (1976). The Montana Supreme Court rejected McKenzie’s claim, inter alia, that the trial court’s jury instructions on presumptions and the Montana death penalty statute violated the Constitution. The United States Supreme Court granted certiorari, vacated the judgment, and remanded for further consideration in light of Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977). McKenzie v. Montana, 433 U.S. 905, 97 S.Ct. 2968, 53 L.Ed.2d 1089 (1977).

On remand, the Montana Supreme Court, after reexamining all of the issues raised by McKenzie, adhered to its original decision. State v. McKenzie (II), 581 P.2d 1205, 177 Mont. 280 (1978). The Montana Court held that the jury instructions did not erroneously shift the burden of proof on the issue of intent, but even if they did, such an error would not have affected the jury’s verdict because the evidence of intent was overwhelming. 581 P.2d at 1223-24.

Following the Montana Supreme Court’s affirmance of the convictions and the sentence in McKenzie II, McKenzie sought relief through the Sentence Review Division of the Montana [Supreme] Court. His petition for review was denied. His attempted appeal of that decision to the Montana Supreme Court was also denied because there was no appeal from a decision of the Sentence Review Division.

McKenzie again petitioned for certiora-ri to the United States Supreme Court. Certiorari was granted, the judgment was vacated, and the case was remanded for further consideration in light of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). McKenzie v. Montana, 443 U.S. 903, 99 S.Ct. 3094, 61 L.Ed.2d 871 (1979). The Montana Supreme Court once again affirmed the convictions and the sentence. State v. McKenzie (III), 608 P.2d 428, 186 Mont. 481 (1980). This time, however, the Montana Court conceded that some of the jury instructions unconstitutionally shifted the burden of proof to McKenzie to disprove that he had the criminal intent necessary to support his conviction. 608 P.2d at 457-58. His conviction was nevertheless reaffirmed because the court found the unconstitutional jury instructions harmless beyond a reasonable doubt in light of the overwhelming evidence of intent. 608 P.2d at 459.

McKenzie once again sought certiorari from the United States Supreme Court. This time certiorari was denied. McKenzie v. Montana, 449 U.S. 1050, 101 S.Ct. 626, 66 L.Ed.2d 507 (1980) (Justices Marshall and Brennan dissenting). McKenzie then filed a petition for post-conviction relief or habeas corpus in the Montana state district court. The petition was denied. The denial was affirmed by the Montana Supreme Court. McKenzie v. Osborne (McKenzie IV), 640 P.2d 368, 195 Mont. 26 (1981).

McKenzie then filed a petition for a writ of habeas corpus in federal district court. The district court dismissed the petition and it is from that dismissal that McKenzie timely appeals to this court.

801 F.2d at 1522-23.

The panel rejected all of McKenzie’s arguments and affirmed. McKenzie petitioned for rehearing of three questions resolved by the panel: (1) whether the Sand-strom errors in the jury instructions were harmless; (2) whether the trial judge’s decision to sentence McKenzie to death after he had approved a plea agreement calling for a prison sentence violated United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968); and (3) whether the statutory scheme under which McKenzie was sentenced was constitutional. Except as otherwise indicated below, we address only the issues raised by McKenzie on rehearing.

II. DISCUSSION

A. Sandstrom Error

1. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970), held that “the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” The Court has since interpreted Winship to preclude a state from shifting to the defendant the burden of proof on any element of the crime charged. Patterson v. New York, 432 U.S. 197, 215-16, 97 S.Ct. 2319, 2329-30, 53 L.Ed.2d 281 (1977); Mullaney v. Wilbur, 421 U.S. 684, 697-701, 95 S.Ct. 1881, 1888-1891, 44 L.Ed.2d 508 (1975). In Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), the Supreme Court applied Mullaney and Winship to hold unconstitutional a Montana jury instruction which stated that “[t]he law presumes that a person intends the ordinary consequences of his voluntary acts.” Id. at 513, 99 S.Ct. at 2453. The Court held that this instruction may have been interpreted by the jury as shifting the burden of proof on intent — an element of the crime¹ — to the defendant, undermining his constitutional right to be presumed innocent. Id. at 524, 99 S.Ct. at 2459.

The parties agree that some of the jury instructions given in this case violated Sandstrom2 Specifically, the jury was instructed that:

[T]he law presumes, that is, the law expressly directs the jury to reason: That an unlawful act was done with an unlawful intent and also that a person is presumed to intend the ordinary consequences of his voluntary act.

Further, unless you are otherwise instructed with regard to a particular presumption, all presumptions are rebut-table; that is, they may be controverted and overcome by other evidence.

Add’l Instr. No. 31, App. at C-21 [at 1563].³ Similar instructions were given on the elements of various offenses.⁴ While these instructions did not require the jury to conclusively presume intent, they did permit a rational juror to believe that intent could be found without proof by the prosecution, thereby shifting the burden of proof on this issue to the defense.⁵

The state does not deny that the instructions contained multiple Sandstrom errors. It argues instead — and every court considering the issue has found — that, because of the unique circumstances of McKenzie’s trial, the errors were harmless beyond a reasonable doubt.

Until recently, the question of whether Sandstrom errors could be harmless had not been authoritatively resolved. In Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 3108-09, 92 L.Ed.2d 460 (1986), however, the Supreme Court held that the harmless error standard of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), applied to such errors. In Pope v. Illinois, — U.S. —, 107 S.Ct. 1918, 95 L.Ed.2d 435 (1987), the Court further explicated the proper role of an appellate court in applying Clark’s harmless error analysis. In Pope the Court articulated the test as follows: whether “the facts found by the jury were such that it is clear beyond a reasonable doubt that if the jury had never heard the impermissible instruction its verdict would have been the same.”⁶ 107 5.Ct. at 1922 n. 6. Significantly, the Court held that even if the jury did in fact have “the impermissible presumption in mind when it considered the [relevant] element” of the crime, the error would be harmless “if the facts that the jury necessarily found established guilt beyond a reasonable doubt.” Id. at 1922.⁷

Once an error of constitutional magnitude is shown, the state has the burden of establishing beyond a reasonable doubt that the error was harmless. Chapman, 386 U.S. at 24, 87 S.Ct. at 828. The Montana Supreme Court and the district court considering McKenzie’s habeas corpus petition both concluded that the state had met its burden. McKenzie III, 608 P.2d at 459; Mem. op. at 19 (D.Mont. Aug. 16,1985), E.R. 58 at 19. In cases involving petitions for habeas corpus we review a district court’s determinations de novo. Herd v. Kincheloe, 800 F.2d 1526, 1528 (9th Cir.1986). Moreover, the ultimate de termination of whether Sandstrom error was harmless is also subject to de novo review as a question of federal constitutional law. Herd, 800 F.2d at 1528; see also Rushen v. Spain, 464 U.S. 114, 120, 104 S.Ct. 453, 456, 78 L.Ed.2d 267 (1983) (per curiam). However, the factual findings underlying the state court’s determination of harmless error are entitled to a presumption of correctness under 28 U.S.C. § 2254(d) (1982). Rushen, 464 U.S. at 120, 104 S.Ct. at 456. We must defer to such state court factual findings “in the absence of ‘convincing evidence’ to the contrary,” id., and may set them aside only if they “lac[k] even ‘fair support’ in the record.” Marshall v. Lonberger, 459 U.S. 422, 432, 103 S.Ct. 843, 850, 74 L.Ed.2d 646 (1983).⁸

2. In the case before us, the jury found beyond a reasonable doubt, without relying on any unconstitutional presumptions, that McKenzie kidnaped, tortured and killed Lana Harding. Thus, the determinative issue is whether the facts found by the jury compel the conclusion that McKenzie acted with the requisite criminal intent in committing these acts.

McKenzie offered no evidence bearing directly on his intent. Instead, “[t]he ‘defense at trial focused entirely on the issue of mental competence, relying on the traditional insanity defense as well as the defense of diminished capacity.’ ” Appellant’s Petition for Rehearing at 1 (quoting McKenzie v. Risley, 801 F.2d 1519, 1525 (9th Cir.1986)).⁹ With respect to mental capacity, Dr. Wetzler, the defense psychiatrist, testified that McKenzie was incapable of forming the requisite intent because he lacked mental capacity. From this McKenzie concludes that the Sandstrom errors could not possibly have been harmless beyond a reasonable doubt, because in order to reach such a conclusion a reviewing court would be required to weigh the credibility of the respective expert witnesses. See, e.g., Bowen v. Kemp, 832 F.2d 546, 551 (11th Cir.1987) (en banc) (where there is substantial evidence that defendant may have lacked requisite intent, Sandstrom error cannot be harmless on the ground that the evidence of intent is overwhelming).

We have given this argument careful consideration but remain unpersuaded. That a defendant contested intent does not automatically render the Sandstrom error prejudicial. Rose v. Clark is precisely on point. Defendant there raised the defenses of insanity and lack of mental capacity, and introduced expert and other testimony to show that he was insane, that he suffered from amnesia and could not remember the events of the crime, and that he had been drinking heavily before the alleged criminal activity. 106 S.Ct. at 3104. The trial court’s instruction placed on the defendant the burden of disproving “malice,” which was defined as “an intent to do any injury to another.” Id. The Supreme Court stated:

The [Court of Appeals] concluded that a Sandstrom error could never be harmless where a defendant contests intent. ... But our harmless error cases do not turn on whether the defendant conceded the factual issue on which the error bore. Rather, we have held that “Chapman mandates consideration of the entire record prior to reversing a conviction for constitutional errors that may be harmless.” United States v. Hasting, 461 U.S., at 509, n. 7, 103 S.Ct., at 1981, n. 7. The question is whether, “on the whole record ... the error ... [is] harmless beyond a reasonable doubt.” Id., at 510, 103 S.Ct., at 1981.

Id. at 3109 (citation omitted).¹⁰

There are a variety of ways in which a jury can develop a reasonable doubt about whether a defendant had the requisite intent. One possibility is for the jury to conclude that the defendant lacked the mental capacity to form intent or, more precisely, that there is reasonable doubt on that issue. Alternatively, the jury might find intent lacking because of some other circumstance, for example, that defendant was acting as a result of mistake or accident, or in the heat of passion, or (as to specific intent) under the influence of alcohol or drugs. Our function under Clark is to determine whether the jury in McKenzie’s case could have developed a reasonable doubt about intent on any of these theories, had it “never heard the impermissible instruction[s].” Pope, 107 S.Ct. at 1922 n. 6.

a. Because McKenzie specifically raised diminished capacity as a defense, we consider that issue first. Defendant’s evidence that he lacked capacity to form the requisite intent consisted solely of the testimony of Dr. Wetzler, a forensic psychiatrist. Dr. Wetzler repeatedly testified that McKenzie, at the time he committed the acts in question, lacked the capacity to form the states of mind that were elements of the offenses charged. R.T. at 2255, 2268-69, 2581.¹¹ An examination of the jury instructions reveals that the jury necessarily rejected this testimony beyond a reasonable doubt in reaching its verdict.¹²

Although numerous instructions informed the jury that it could presume intent from conduct, one clear and explicit exception was made to this general rule. The crimes of aggravated kidnaping and deliberate homicide by means of torture were, as defined for the jury, essentially specific intent crimes. Each required the jury to find that the defendant purposely committed the underlying criminal acts and did so for some further “particular purpose.”¹³ And, with respect to those “particular purposes,” the jury was instructed that it could not rely on any presumptions in finding that the defendant acted with the requisite mental state; rather, it was required to reason by inference from the established facts.¹⁴ The jury found that McKenzie committed both of these specific intent crimes, and we must presume that it followed the applicable instructions in doing so. Francis, 471 U.S. at 324-25 n. 9, 105 S.Ct. at 1976-77 n. 9; Parker v. Randolph, 442 U.S. 62, 73, 99 S.Ct. 2132, 2139, 60 L.Ed.2d 713 (1979) (opinion of Rehnquist, J.). Accordingly, the jury must have found, without relying on the unconstitutional presumptions,¹⁵ that McKenzie acted with the requisite “particular purposes” in mind when he committed his crimes.¹⁶ In reaching this conclusion the jury necessarily found that McKenzie was capable of forming specific criminal intent.

Dr. Wetzler never differentiated between specific and general intent. Rather, he stated categorically that McKenzie lacked the capacity to form any of the requisite mental states. Thus, there would have been no basis on which the jury could rationally find that McKenzie possessed the mental capacity to form, and act upon, a “particular purpose,” yet at the same time lacked the capacity to act “purposely or knowingly.”¹⁷ In finding that McKenzie had the capacity to form the requisite specific intent, the jury necessarily rejected Dr. Wetzler’s testimony on this point,¹⁸ and instead accepted the testimony of the prosecution's witnesses that McKenzie was capable of forming general and specific criminal intent.¹⁹

In response to this line of reasoning, which was adopted by the district court, McKenzie argues that the jury was in fact told it could presume his mental capacity to form criminal intent. He points to Additional Instruction 30, which states:

The knowledge or purpose with which an act is done is manifested by the circumstances connected with the offense and the sound mind of the accused. All persons are of sound mind who are not afflicted with a disease or defect of the mind which excludes responsibility for their conduct.

Upon the trial of the issues raised by the pleas of “Not Guilty” to the charges made in the Information, the defendant is presumed to have been free from any disease or defect of the mind which excludes responsibility for his conduct at the time the offenses are alleged to have been committed and to be [free from any disease or defect of the mind which excludes his responsibility] now.²⁰

App. at 1562. McKenzie contends that, by creating a presumption that “[a]ll persons are of sound mind,” this instruction permitted the jury to presume not merely that the defendant was sane but that he possessed the mental capacity to form intent as well.

Additional Instruction 30 cannot be read so broadly. Taken in context, it is clear that the presumption applies solely to defendant’s “responsibility for his conduct,” Montana’s formulation of legal sanity. The jury was carefully instructed that the insanity defense is an affirmative defense that “goes only to the mental responsibility and control of the defendant,” Add’l Instr. No. 53, App. at 1571, and that a defendant’s criminal responsibility is presumed. The only reference in the instructions to mental capacity occurs at the end of Instruction 53:

If you find beyond a reasonable doubt that the defendant did do [the acts charged] or any of them you must then consider whether or not the defendant has overcome the presumption of accountability and whether or not he has created a reasonable doubt in your minds as to his mental accountability and responsibility for any of the acts you may find he committed, and whether or not he could have had the requisite mental state for the act or acts which you have found he committed.

Id. (emphasis added).

This instruction makes clear that the defendant’s capacity to form the requisite mental state is an issue distinct from his legal sanity or “responsibility.” The jury was elsewhere instructed that the prosecution bore the burden of proving each element of the crime beyond a reasonable doubt. Instr. No. 6, App. at 1567; Add’l Instr. No. 39, App. at 1558. The jury properly resolved the issue of mental capacity without the benefit of any presumptions.

b. Once we have determined that the jury must have rejected McKenzie’s diminished capacity defense, we have little difficulty concluding it could not have developed a reasonable doubt as to intent on any other basis. The largely undisputed facts presented at trial provide no support for any other result. There is no possibility, for example, that the jury might have found that McKenzie’s acts were committed accidentally, by mistake, in the heat of passion or under the influence of drugs or alcohol, and defendant never attempted to raise any of these defenses.

McKenzie kidnaped Lana Harding from the teacherage and dragged her to his truck. McKenzie III, 608 P.2d at 435; R.T. at 594-95, 1401-03, 1661-63, 1992-93, 2118-20, 2175-82. He strangled her by tightening and loosening a rope around her neck. R.T. at 585-90. He beat her severely and repeatedly on the head, inflicting several wounds that fractured and partially crushed her skull and penetrated to her brain. R.T. at 562-67, 570, 577-79, 581-82. The most severe of these blows exposed “multiple pieces of bone and brain” tissue, R.T. at 577-78, and she died within minutes of receiving this injury, R.T. at 564, some 30 to 45 minutes after she was strangled. R.T. at 586, 606. These criminal acts took place over a relatively long period of time and at different locations; they involved a variety of actions wholly inconsistent with any state of mind other than intentional conduct. The sophisticated and complex nature of the crime, the multiple and varied forms of criminal acts committed, and the duration of the activity foreclose any alternative explanations.²¹

No reasonable juror, after being presented with this uncontroverted evidence, and after finding that McKenzie was sane and possessed the requisite mental capacity, could have failed to find that he acted with intent when he committed the brutal assault on Ms. Harding. See Sturgis v. Goldsmith, 796 F.2d 1103, 1107 (9th Cir.1986) (Sandstrom error harmless where defendant announced his intention to kill and “accomplished this aim gradually over a one and a half hour period, using strangling when stabbing appeared to be ineffective and later returning to the stabbing technique”); Hagler, 764 F.2d at 715-16 (Sandstrom error harmless where “victim was shot three times, twice in the head, and one of the shots was fired at pointblank range”); McGuinn v. Crist, 657 F.2d 1107, 1108 (9th Cir.1981) (,Sandstrom error harmless where victim “was shot four times in the head at close range firmly negating any reasonable possibility that the killing occurred as a result of recklessness or negligence”), cert. denied, 455 U.S. 990, 102 S.Ct. 1614, 71 L.Ed.2d 850 (1982). We “‘find that the record developed at trial established guilt beyond a reasonable doubt_’” Pope v. Illinois, 107 S.Ct. at 1922 (quoting Rose v. Clark, 106 S.Ct. at 3107). We therefore hold that the Sand-strom errors were harmless.

B. Imposition of Death Sentence After Approval of Plea Bargain

On Sunday, December 22, 1974, approximately two and one-half weeks before McKenzie’s trial was scheduled to begin, the prosecution and defense counsel reached a tentative agreement permitting McKenzie to plead guilty to two of the charged offenses in exchange for receiving a fifty-year sentence. On the following day, counsel for McKenzie and the state met with the trial judge who reluctantly approved the proposal and set December 30 as the date to receive the plea. On the evening of December 23, the attorneys met again and defense counsel left the meeting believing that a final binding agreement had been reached. The prosecutors, on the other hand, had the impression that the plea agreement was contingent on obtaining the approval of the victim’s family. That contingency was not satisfied and on December 28 the prosecution advised defense counsel that there would be no deal. The defendant later offered on the record to plead guilty as contemplated by the plea agreement, but the state objected and, accordingly, no guilty plea was entered.²²

McKenzie contends that the principle of United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968), applied by this court in United States v. Stockwell, 472 F.2d 1186 (9th Cir.), cert. denied, 411 U.S. 948, 93 S.Ct. 1924, 36 L.Ed.2d 409 (1973), renders unconstitutional the imposition of a sentence of death on a defendant who would have received a prison sentence had he pled guilty. We are unpersuaded.

Jackson struck down the death penalty portion of the Federal Kidnaping Act, 18 U.S.C. § 1201(a). That statute, as construed by the Supreme Court, gave the jury discretion to sentence to death any defendant convicted of violating its provisions, but provided for a maximum sentence of life imprisonment in the event a defendant pled guilty or waived his right to a jury trial. 390 U.S. at 581, 88 S.Ct. at 1216. The Court held that this statute created an unconstitutional burden on a defendant’s “Fifth Amendment right not to plead guilty and ... Sixth Amendment right to demand a jury trial,” id. (footnote omitted), and therefore was unconstitutional because it unfairly coerced guilty pleas and jury waivers. Id. at 583, 88 S.Ct. at 1217.

McKenzie’s situation is precisely the converse. He would have us hold constitutionally infirm a process that discouraged a guilty plea and jury waiver and encourage him to exercise his constitutional rights. Defendants have no constitutional right to plead guilty to lesser crimes than those charged, see Mabry v. Johnson, 467 U.S. 504, 507-08 & n. 5, 104 S.Ct. 2543, 2546-47 & n. 5, 81 L.Ed.2d 437 (1984), or to avoid trial. Therefore, none of McKenzie’s constitutional rights were burdened when the state refused to go through with the proposed plea agreement. Moreover, the statutory scheme under which McKenzie was convicted did not provide for differing treatment for those who pled guilty and those who exercised their right to a jury trial. In either case, the full range of sentencing options was available to the sentencing judge. Jackson simply does not apply.²³

McKenzie’s reliance on Stockwell is equally misplaced. An examination of the reasoning in Stockwell illustrates how inapplicable Jackson is to McKenzie’s situation. In Stockwell, the trial court told the defendant that he would receive one sentence if he agreed to plead guilty and another, longer, sentence if he was convicted after a trial. Defendant elected to go to trial and, after conviction, the judge gave him the promised longer sentence. On appeal, this court explained the application of Jackson:

[0]nce it appears in the record that the court has taken a hand in plea bargaining, that a tentative sentence has been discussed, and that a harsher sentence has followed a breakdown in negotiations, the record must show that no improper weight was given the failure to plead guilty. In such a case, the record must affirmatively show that the court sentenced the defendant solely upon the facts of his case and his personal history, and not as punishment for his refusal to plead guilty.

472 F.2d at 1187-88 (emphasis added). McKenzie did not refuse to plead guilty; instead, he made an offer on the record to do so. It is therefore impossible to see in what sense the trial court might have desired to “punish” him in violation of Jackson. The record discloses without contradiction that the judge sentenced McKenzie based on the facts of the case and his personal history. See pp. 1541-42 infra.

It is no doubt true that a sentence of death must “be, and appear to be, based on reason rather than caprice or emotion.” Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 1204, 51 L.Ed.2d 393 (1977) (plu rality opinion). That the sentence imposed after trial is more severe than one the judge would have been willing to impose as part of a plea bargain does not, however, impeach the legitimacy of the sentence. In the first place, the judge could well have approved a settlement calling for a sentence lighter than he himself would have chosen to impose. Moreover, in the interval between the plea negotiations and the sentencing proceedings, the trial judge had numerous opportunities to gain additional information upon which to base his sentencing decision. He presided over McKenzie’s sixteen-day-long trial; heard the testimony of fifty prosecution witnesses, including witnesses who testified in great detail about the brutality of the crime, McKenzie’s apparent premeditation and other aggravating factors; read the presentence investigation report; and, most important, received a unanimous jury verdict finding the defendant guilty beyond a reasonable doubt of two of the most heinous crimes punishable under Montana law.²⁴

These facts sufficiently explain the trial judge’s decision, and his written findings set out with compelling force the rationale for the sentence he imposed. McKenzie points to no evidence tending to show an alternative, improper, basis for the sentence, and we find no basis for his objections in that regard.²⁵

C. Constitutionality of the Montana Death Penalty Statutes

McKenzie challenges the constitutionality of the Montana statutes under which he was sentenced to death.²⁶ This challenge presents a question of federal constitutional law that we review de novo. LaDuke v. Nelson, 762 F.2d 1318, 1322 (9th Cir.1985); United States v. McConney, 728 F.2d 1195, 1202-03 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

Procedures for imposing the death penalty must conform to certain guidelines. First, and most fundamentally, the discretion of the sentencer “must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.” Gregg v. Georgia, 428 U.S. 153, 189, 96 S.Ct. 2909, 2932, 49 L.Ed.2d 859 (1976) (plurality opinion); see also Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Initially, at the stage of legislative definition, the state must carefully delimit by statute the classes of crimes for which the death penalty is a permissible punishment. Zant v. Stephens, 462 U.S. 862, 877-78, 103 S.Ct. 2733, 2742-43, 77 L.Ed.2d 235 (1983). There after, at the sentence selection stage, each defendant convicted of a capital offense must have a full opportunity to present the sentencer with evidence in mitigation of his crime. Eddings v. Oklahoma, 455 U.S. 104, 110, 112, 102 S.Ct. 869, 874, 875, 71 L.Ed.2d 1 (1982); Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973 (1978) (opinion of Burger, C.J.). This permits the requisite individualized determination of the appropriate sentence in light of all factors relevant to the particular case and defendant. Zant v. Stephens, 462 U.S. at 879, 103 S.Ct. at 2744.

The second requirement is that there be review of the sentence by a court of statewide jurisdiction to ensure that the sentence has not been imposed in an arbitrary manner and is not disproportionate to the underlying crime.²⁷ See, e.g., Zant, 462 U.S. at 876, 103 S.Ct. at 2742; Proffitt v. Florida, 427 U.S. 242, 253, 96 S.Ct. 2960, 2967, 49 L.Ed.2d 913 (1976) (plurality opinion); Gregg, 428 U.S. at 198, 96 S.Ct. at 2937.

McKenzie raises three arguments in support of his contention that the statutes under which he was sentenced are unconstitutional. First, he asserts that they fail to guide sufficiently the discretion of the sentencer because they do not adequately narrow the class of capital-eligible defendants. Next, he claims that the sentencing procedures employed in his case were ad hoc and judge-created, lacking the constitutionally required safeguards against arbitrariness in the imposition of death sentences. Finally, he challenges Montana’s sentencing review system, at least insofar as it was applied to him.

1. Sentencing Discretion

Under Montana law at the time of Lana Harding’s death, the crime of deliberate homicide was punishable by death or imprisonment for a term of years. However, the death penalty was reserved for a specifically enumerated subclass of deliberate homicides.²⁸ In addition, the death penalty could be imposed for aggravated kid-naping, but only if the victim died as a result of the defendant’s criminal conduct.²⁹ The jury found that McKenzie committed deliberate homicide “by means of torture,” one of the six types of homicide punishable by death, and that he also committed aggravated kidnaping. The jury further found that Lana Harding died as a result of the aggravated kidnaping.

McKenzie contends that these statutes are unconstitutional under Gregg and Fur-man because they do not contain, in addition to a description of the basic elements of the crime, a list of aggravating circumstances that must be found before death may be imposed in an individual case. This is not so. Under Montana law at the time of McKenzie’s crime, there was a large class of deliberate homicides and aggravated kidnapings punishable by imprisonment and only a much narrower class punishable by death. The applicable statutes precisely specified the elements that had to be found in addition to mere deliberate homicide or aggravated kidnaping in order to justify imposition of the death penalty.

McKenzie points out that the information charging him described each crime in a way that essentially included the additional factors as elements of the crime to be considered at the guilt phase of the trial rather than as distinct aggravating factors to be considered at the sentencing phase. This is not constitutionally significant. As the Supreme Court held recently,

The use of “aggravating circumstances,” is not an end in itself, but a means of genuinely narrowing the class of death-eligible persons and thereby channeling the jury’s discretion. We see no reason why this narrowing function may not be performed by jury findings at either the sentencing phase of the trial or the guilt phase. Our opinion in Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), establishes this point.

Lowenfield v. Phelps, — U.S. —, 108 S.Ct. 546, 554, 98 L.Ed.2d 568 (1988). Just as in Lowenfield and Jurek, the findings required by the Montana statutes — that McKenzie tortured and caused the death of Lana Harding — were adequate to place his crimes within the narrow class of offenses for which the death penalty may be appropriate.³⁰

McKenzie also argues that the actual aggravating circumstances found in his case do not “genuinely narrow the class of persons eligible for the death penalty [or] reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.” Zant, 462 U.S. at 877, 103 S.Ct. at 2742. With respect to the circumstance of torture, he relies on Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), which involved a statute that provided for imposition of the death penalty if the murder “was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.” Id. at 422, 100 S.Ct. at 1762. This aggravating circumstance was held not unconstitutional on its face in Gregg v. Georgia, 428 U.S. at 201, 96 S.Ct. at 2938. The Gregg Court stated that an overly broad reading of that language might not pass constitutional muster, but that a construction that limited it to “torture-murder” would be constitutionally permissible. Id.

In Godfrey, the Georgia Supreme Court upheld a death sentence based solely on this aggravating circumstance. However, the trial judge in Godfrey explicitly found that the victims had not been tortured, and the prosecutor told the jury that no allegations of “torture” or “aggravated battery” were being made. 446 U.S. at 426, 100 S.Ct. at 1763. The Supreme Court vacated the sentence on the ground that the remaining language — “outrageously or wantonly vile, horrible or inhuman” — insufficiently narrowed the class of murderers to whom the death penalty could be applied. Id. at 428-29, 432-33, 100 S.Ct. at 1764-65, 1766-67. Godfrey therefore does not deal at all with torture as an aggravating circumstance and Gregg’s general approval of this type of statute controls.

The homicide statute under which McKenzie was sentenced required a finding that the victim's death was caused “by means of torture.” The trial court defined this crime to the jury in clear and explicit terms,³¹ and the Montana Supreme Court approved this definition on appeal. McKenzie III, 608 P.2d at 445. Far from reading torture out of the statute, as was the case in Godfrey, the Montana courts have defined the term in a manner that narrows the class of murderers qualifying for the death penalty and guides the jury in its selection of those persons who fit within that class. Cf. Barclay v. Florida, 463 U.S. 939, 968, 103 S.Ct. 3418, 3434, 77 L.Ed.2d 1134 (1983) (Stevens, J., concurring in the judgment) (approving application of aggravating circumstance that crime was “especially heinous, atrocious, or cruel” to case where victim “was knocked to the ground and repeatedly stabbed by [the defendant] as he writhed in pain begging for mercy”).

McKenzie’s argument as to aggravated kidnaping is no more availing. Under the applicable Montana statute, the jury was required to find that McKenzie kidnaped Lana Harding with specific intent to commit one of five further wrongful acts, and the death penalty could be imposed only if the jury found — as it did — that Ms. Harding died as a result of his criminal conduct. R.C.M. §§ 94-5-303, -304. McKenzie contends that this crime is nothing more than felony murder, and thus is not sufficiently narrow to permit consideration of the death penalty for all persons who are found guilty of committing it. He points to the numerous death sentences for felony murder that were struck down in Furman and its companion cases as support for his contention.

McKenzie’s reliance on Furman and its companion cases is misplaced. None of the statutes at issue there provided for the full panoply of protections against arbitrariness in sentencing that the Supreme Court has held constitutionally required. Moreover, the Supreme Court has upheld the constitutionality of the death sentence for felony murder where the defendant killed, attempted to kill or intended that lethal force be used.³² See, e.g., Cabana v. Bullock, 106 S.Ct. at 696-97, 700 (permitting imposition of death sentence if state court first made required findings of culpability in robbery felony murder case); Jurek v. Texas, 428 U.S. at 268, 270, 96 S.Ct. at 2955 (kidnaping-rape felony murder); Gregg v. Georgia, 428 U.S. at 160-61, 96 S.Ct. at 2919 (aggravating circumstances found were that murders were committed in course of robbery and for the purpose of furthering robbery). Whether denominated felony murder or aggravated kid-naping resulting in death, the crime of which McKenzie was convicted was narrowly defined, and its distinguishing characteristics sufficiently justified imposition of the death penalty.

2. Sentencing Procedures

In convicting McKenzie, the jury returned written findings of two statutory aggravating circumstances. The sentencing judge approved these findings, concluding that McKenzie committed a “brutal, conscienceless, torture, rape and deliberate killing of a human being,” that the murder was committed during the commission of a felony, that the defendant had a prior conviction for a violent crime and was both “dangerous and potentially dangerous,” and that rehabilitation of the defendant was impossible.³³ Findings, Conclusions, Sentence and Order of Montana District Court, E.R. 33 (App. V) at 7-9 [hereinafter State Court Findings].

As the plurality noted in Jurek,

a sentencing system that allowed the jury to consider only aggravating circumstances would almost certainly fall short of providing the individualized sentencing determination that we today have held in Woodson v. North Carolina, [428 U.S. 280, 303-05, 96 S.Ct. 2978, 2990-92, 49 L.Ed.2d 944 (1976),] to be required by the Eighth and Fourteenth Amendments.... A jury must be allowed to consider on the basis of all relevant evidence not only why a death sentence should be imposed, but also why it should not be imposed.

428 U.S. at 271, 96 S.Ct. at 2956.

Sections 94-5-105 and 94-5-304 of the Montana Code satisfied this requirement at the time Lana Harding was killed. Both sections provided that, upon a defendant’s conviction of a capital offense, the “court shall impose [a] sentence of death ... unless there are mitigating circumstances.” McKenzie does not deny that the statutes required consideration of mitigating circumstances, or that he was given a full opportunity to present evidence on this issue to the sentencing judge. Instead, he complains that the death penalty statutes themselves did not contain explicit procedural mechanisms for fulfilling this requirement.

Before passing sentence on McKenzie, the trial court ordered and considered a presentence investigation report, as required by R.C.M. § 95-2203 (1947). By statute such reports must include “the characteristics, circumstances, needs, and potentialities of the defendant; his criminal record and social history; [and] the circumstances of the offense.” Id. § 95-2204. The Montana Supreme Court construed these provisions together to find that Montana law required trial courts to consider all mitigating circumstances contained in the presentence report or offered by the defendant. McKenzie III, 608 P.2d at 450.

The trial court followed this procedure, offering McKenzie a presentence hearing on mitigating facts and circumstances. State Court Findings at 5-6. McKenzie declined to offer any evidence in mitigation at or before sentencing, but he did file a post-trial Petition and Motion in Mitigation in which he raised several potentially mitigating factors, inter alia, his mental condition, age, upbringing, social relations and family ties. E.R. 5, H.Exh. 37, Rec. 14 at 3-4. After considering the evidence presented at trial and the presentence investigation report, the trial judge rejected defendant’s arguments and found that there were no mitigating circumstances. State Court Findings at 7.

McKenzie argues that, since Montana’s death penalty statutes did not expressly call for a second hearing on mitigating circumstances, the Montana courts’ after-the-fact reading of the law to require such an approach is constitutionally inadequate.³⁴ He relies on United States v. Harper, 729 F.2d 1216 (9th Cir.1984), which struck down the death penalty provision of the Espionage Act, 18 U.S.C. § 794 (1982), despite the district judge’s willingness to supply the restrictions on sentencing discretion that were wholly absent from the statute itself. Harper held that judicial construction could not save the statute because Furman, Gregg and their progeny require sentencing guidelines to be formulated by the legislature at the definitional stage, not by courts at the sentencing stage. Id. at 1225-26.

Harper is clearly distinguishable. The Montana statutes do channel the discretion of the sentencer, first by delineating narrow subclasses of deliberate homicide and aggravated kidnaping for which the death penalty may be considered, and second by requiring consideration of mitigating circumstances before a sentence of death may be imposed. That the death penalty statutes do not themselves explicitly set out the process by which mitigating circumstances are to be considered is of no consequence. The Montana Supreme Court construed state law to require presentation and consideration of all mitigating factors, including all such evidence contained in the presentence report, and the trial judge provided McKenzie a full opportunity to present such evidence.

In Jurek v. Texas the Supreme Court approved a sentencing statute that did not expressly provide for full consideration of mitigating circumstances. 428 U.S. at 272-76, 96 S.Ct. at 2956-58. Instead, the Texas statutes required a post-conviction hearing where the jury determined, inter alia, whether the defendant was likely to commit violent criminal acts in the future. Because the Texas appellate courts interpreted the statute to require consideration of all mitigating circumstances at this hearing, the Supreme Court found the statutory scheme constitutional as construed by the Texas courts. If a death penalty statute that fails to provide explicitly for consideration of mitigating circumstances can be saved by judicial construction, a fortiori the Montana Supreme Court’s interpretation of Montana sentencing procedures suffices to remedy any defects that may have existed on the face of the statute.³⁵

3. Sentence Review

McKenzie also argues that Montana’s sentencing scheme failed to provide adequate opportunity for appellate review of death sentences, and that the review he received in the Sentence Review Division of the Montana Supreme Court (SRD) was ad hoc, standardless, improvised and fashioned solely for his case. This is not so.

All persons convicted of crimes under Montana law are entitled to direct review by the Montana Supreme Court. R.C.M. §§ 95-2401, -2404, -2405(a) (1947). The filing of a notice of appeal automatically stays execution of a sentence of death pending final resolution of the appeal. Id. § 95-2406(a). The state supreme court receives the full record on appeal,³⁶ id. § 95-2408, and has full power to set aside or modify the judgment or sentence of the trial court. Id. § 95-2426. The supreme court itself reviews all legal issues relating to the trial and the sentence imposed, while the SRD reviews the appropriateness of the sentence. McKenzie III, 608 P.2d at 450.

The Montana Supreme Court exhaustively considered and rejected McKenzie’s claims of error on four separate occasions. On McKenzie’s first appeal, the supreme court also reviewed the full record in his case to determine whether the sentence was influenced by passion, prejudice or other arbitrary factors, whether the finding of aggravating circumstances was supported by the evidence, and whether the sentence was proportionate to those imposed in similar cases. McKenzie I, 557 P.2d at 1034. Subsequently, after McKenzie II was decided, McKenzie was permitted to have his sentence reviewed by the SRD to determine whether it was appropriate in light of all the circumstances. It is this latter review that is the primary focus of McKenzie’s objections.

Far from being an ad hoc, extraordinary form of review, appeal to the SRD was clearly available to McKenzie under the law of Montana: “Every sentence shall be subject to review in accordance with chapter 25 [establishing the SRD].” R.C.M. § 95-2211 (1947) (emphasis added) (repealed 1977); see also id. § 95-2502. This procedure had been invoked several hundred times by defendants before McKenzie. See State v. Henrich, 162 Mont. 114, 509 P.2d 288, 291 (1973). In reviewing sentences, the SRD is empowered to receive copies of presentence reports and other relevant documents, a power exercised in reviewing McKenzie’s sentence. R.C.M. § 95-2503 (1947); Decision of the SRD, E.R. 33 (App.U). The Montana Supreme Court has interpreted the SRD’s primary function to be “determining] the appropriateness of the sentence with respect to the individual offender and particular offense.” McKenzie II, 581 P.2d at 1229.³⁷ The SRD fulfilled this function in McKenzie’s case. In short, McKenzie received a full and fair review of his sentence and conviction, as required by Montana law and the eighth and fourteenth amendments.³⁸

Montana’s death penalty sentencing scheme required a finding of aggravating circumstances before the death penalty could be considered for a particular crime, and- required consideration of mitigating circumstances before it could be imposed. It provided procedures by which evidence relating to these issues could be presented to the sentencing authority, and mandated two forms of review by courts of statewide jurisdiction. The Constitution requires no more.

CONCLUSION

The district court’s dismissal of McKenzie’s petition for writ of habeas corpus is AFFIRMED. Parts II.A. and II.C. of the panel opinion in this case are VACATED.

1 . Sandstrom was charged with committing deliberate homicide in violation of Revised Code of Montana (R.C.M.) § 94-5-102(l)(a), which required a finding that he "purposely or knowingly" killed his victim.

2 . The dissent goes further, claiming that the instructions were internally inconsistent, ambiguous and incoherent. Post at 1543-44, 1548-49, 1549-50, 1554. While Sandstrom rendered the instructions partially invalid, they accurately reflected the state of the law when given. Moreover, they were not confusing, contradictory or incoherent. Except for the Sandstrom errors, the instructions were entirely adequate,and provided the jurors with an appropriate and understandable framework to guide their deliberations. Indeed, the instructions on the two crimes for which McKenzie was ultimately convicted — deliberate homicide by means of torture and aggravated kidnapping — were free from Sandstrom error, clearly and unambiguously permitting the jury to find intent through inferences while forbidding it to rely on presumptions. See Add'l Instrs. 34, 36, Appendix to Dissent (App.) at 1565, 1566.

The dissent makes much of the condemnatory language used by the two dissenting justices in McKenzie IV. Post at 1549-50. But these justices' disagreements with the majority were based largely on issues not before us, including questions of state law as to which we must accept the five-member majority’s determination. Since these critical statements were not made solely or even primarily in reference to the Sandstrom errors, we question their relevance to the case before us.

3 . The trial judge gave a number of general jury instructions before any evidence was presented, and gave further instructions orally after the close of the defendant’s case. These will be cited respectively as “Instrs.” and “Add’l Instrs.” Written copies of both sets of instructions were given to the jury for use during its deliberations. State Trial Transcript (R.T.) at 2601.

4 . With respect to deliberate homicide, the jury was told:

If you find beyond a reasonable doubt that the defendant ... voluntarily committed an illegal act on Lana Harding, such as assaulting or injuring her, the law presumes that an unlawful act was done with an unlawful intent; that is, the law expressly directs you to reason from such unlawful act that the defendant acted with an unlawful intent, or purpose.

This is a rebuttable presumption, which means it may be controverted and overcome by other evidence....

The law also presumes that a person intends the ordinary consequences of his voluntary act.

Therefore, if you find beyond a reasonable doubt that the defendant ... voluntarily and unlawfully assaulted or injured Lana Harding, and if you further find beyond a reasonable doubt that the death would result as the ordinary consequence of such an assault or injury, the law presumes that, and expressly directs you to reason therefrom that the defendant intended to cause said death regardless of whether or not he actually had such an intent or purpose.

Add’l Instr. No. 33, App. at 1564. Similarly, with respect to kidnapping, the jury was instructed:

If you find beyond a reasonable doubt that the defendant ... without lawful authority, restrained Lana Harding ... the law presumes that he acted therein with an unlawful intent, purpose or knowledge, and expressly directs you to so reason.

This ... is ... a rebuttable presumption subject to being controverted and overcome by other evidence....

Add’l Instr. No. 35, App. at 1565 to 66. In all, McKenzie asserts that 14 instructions violated Sandstrom.

5 . McKenzie argues that the jury could have interpreted Additional Instruction 30 as calling for a conclusive presumption of intent once it determined that McKenzie was sane when he committed the crimes charged. See Add’l Instr. No. 30, App. at 1562. However, the jury was charged that all presumptions were rebuttable unless otherwise indicated. Reading these instructions together, as we must, we find no ir-rebuttable presumptions. See Francis v. Franklin, 471 U.S. 307, 318-19, 322-23 n. 8, 105 S.Ct. 1965, 1973-74, 1975-76 n. 8, 85 L.Ed.2d 344 (1985) (ambiguity in one instruction may be cured by sufficiently clear language in other portions of jury charge); Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400-01, 38 L.Ed.2d 368 (1973) ("a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge”). Of course, the fact that the presumption was rebuttable does not render it any less erroneous.

6 . The dissent contends that we disregard this test, examining instead whether the jury in fact relied on the improper instructions. See post at 1550-51. This is simply not so. As we demonstrate below, the facts found by the jury without reliance on the tainted instructions demonstrate beyond a reasonable doubt that the jury could not have reached a different conclusion on the issue of intent even if it had been properly instructed. Thus, even if the jury did rely on the improper instructions, the error was harmless.

7 . McKenzie and the dissent attempt to distinguish Clark by noting that it involved only one erroneous instruction, whereas multiple errors were committed at McKenzie's trial. This distinction is irrelevant. While the presence of multiple erroneous instructions may make it more likely that the unconstitutional presumption played a material role in the jury’s decision, it has no bearing on whether the result would have been the same even absent the Sandstrom errors. Since even one Sandstrom instruction requires a reviewing court to assume that the jury in fact relied on the improper presumption in reaching its verdict, multiple Sandstrom instructions cannot compound the error. We reject the dissent’s apparent suggestion that the nature of our inquiry varies with the number of erroneous instructions.

8 . The Montana Supreme Court found that the evidence proved beyond a reasonable doubt that McKenzie acted purposely or knowingly when he kidnaped, tortured and killed Lana Harding, McKenzie II, 581 P.2d at 1224, and that no reasonable juror could have found otherwise, McKenzie III, 608 P.2d at 459. It is clear that the presumption of correctness applies to state appellate court findings of intent. Cabana v. Bullock, 474 U.S. 376, 106 S.Ct. 689, 697-98 & n. 5, 88 L.Ed.2d 704 (1986), overruled in part on other grounds, Pope v. Illinois, — U.S. —, 107 S.Ct. 1918, 1922 n. 7, 95 L.Ed.2d 439 (1987).

9 . McKenzie also attempted to raise a reasonable doubt in the jurors’ minds as to the identity of the perpetrator of the crime. However, the jury indisputably found beyond a reasonable doubt that McKenzie committed the acts at issue.

10 .Clark implicitly overrules our cases holding that harmless error analysis is inapplicable where the defendant contests intent. See, e.g., Church v. Kincheloe, 767 F.2d 639, 642 (9th Cir.1985), cert. denied, — U.S. —, 106 S.Ct. 3339, 92 L.Ed.2d 743 (1986); Hagler v. Callahan, 764 F.2d 711, 714 (9th Cir.1985): In re Hamilton, 721 F.2d 1189, 1191 (9th Cir.1983). We explicitly overrule them today. Bowen v. Kemp, 832 F.2d 546 (11th Cir.1987), is not to the contrary. In that case the court held that "[w]hen intent is at issue, ... we cannot infer overwhelming evidence of intent directly from the physical sequence that resulted in the victim’s death. We must also look at the evidence of defendant's state of mind.” Id. at 551. Although the Bowen court found that the evidence of mental incapacity in that particular case was sufficiently substantial to preclude a finding of harmless error, this is necessarily a fact-bound inquiry, and the result will vary depending on the particular circumstances of each case. The Bowen court, moreover, recognized that the defendant's conduct was ambiguous, id., thereby casting further doubt on defendant’s intent. Bowen does not attempt to fashion a per se rule of the type created by In re Hamilton, 721 F.2d at 1191, and explicitly disapproved by the Supreme Court in Clark.

11 . Dr. Wetzler expressed related concepts elsewhere in his testimony. R.T. at 2261 (‘‘[McKenzie] has no behavior control.... He didn’t know what he was doing’’); id. at 2299 ("I don’t feel [McKenzie] appreciated he knew [sic] what he was doing”); see also id. at 2304.

12 . The jury also rejected Dr. Wetzler’s testimony that McKenzie was insane. We draw no inferences from this fact, however, because the burden of proof as to insanity was on the defendant under a preponderance of the evidence standard. The jury therefore need not have found beyond a reasonable doubt that McKenzie was sane.

13 .In order to convict McKenzie of aggravated kidnaping, the jury was told it had to find that he committed the kidnaping "for the particular purpose of facilitating the commission of a felony: either sexual intercourse with Lana Harding without her consent, or to commit an Aggravated Assault on her." Add’l Instr. No. 36, App. at 1566 (emphasis added). On the charge of deliberate homicide by means of torture, the jury had to find that McKenzie

purposely assaulted Lana Harding physically and inflicted cruel suffering upon her and in so doing caused her death ... for one or more of the particular purposes charged; either, (a) to extort something from her, or (b) to persuade her to do something against her will, or (c) to satisfy some other untoward propensity of the defendant.

Add’l Instr. No. 34, App. at 1565 (emphasis added). "Purpose” was defined for the jury as a "conscious object to engage in [certain] conduct or to cause [a certain] result.” Instr. No. 10, App. at 1558.

14 . Additional Instruction 32 stated: “In offenses which require proof of a particular purpose the particular purpose required may never be proved by means of legal presumptions, but must be proved by means of inferences only." App. at 1563-64. Similarly, Additional Instruction 34 stated: "The mental state of purposely assaulting another physically ... cannot be proved by using the legal presumptions you have been directed to use in the proof of deliberate homicide, and must be proved by the use of inferences alone." App. at 1565. See also Add’l Instr. No. 36, App. at 1566 (aggravated kidnaping).

15 . McKenzie argues that the instructions were ambiguous, and that the jury might have believed it could rely on the improper presumptions in finding "particular purposes.” We cannot agree. The judge’s instructions on this point were crystal clear and we do not see how any rational juror could have misinterpreted them. McKenzie relies on the fact that one of the "particular purposes” that could have justified a finding of aggravated kidnaping involved "facilitating the commission of a felony,” Add! Instr. No. 36, App. at 1566, and that the jury was elsewhere instructed that it could rely on the unconstitutional presumptions in finding that the defendant committed either of the applicable underlying felonies. No reasonable juror would have followed this tortured chain of reasoning to conclude that the presumptions could be applied in finding the particular purposes when the judge had expressly and unambiguously stated to the contrary. In any event, no similar objection can be raised to the implicit finding of mental capacity underlying the conviction for deliberate homicide by means of torture.

16 .The dissent concludes from this analysis that "the majority adopts the state’s view that the jury must have considered the ‘particular purpose’ element before the ‘knowingly and purposely' element.” Post at 1554. We disavow this characterization. The order in which the jury considered these two elements is irrelevant. The point is that the instructions unambiguously prohibited reliance on the presumption in finding the "particular purposes,” and thus we know that the jury found these purposes, and the capacity to form them, without reliance on the unconstitutional presumption. The dissent’s argument — that the finding that McKenzie acted “knowingly and purposely” somehow “tainted” the finding that he acted in furtherance of "particular purposes” — is inconsistent with our responsibility to presume that the jury followed its instructions.

17 .A finding of capacity to form specific intent necessarily encompasses a finding of capacity to form general intent, since the former requires the higher degree of mental awareness and cognitive ability. It is for this reason that certain factors, such as intoxication, can affect a defendant’s capacity to form specific intent while leaving intact his capacity to form general intent. See, e.g., State v. Lukus, 149 Mont. 45, 423 P.2d 49, 55 (1967) (intoxication is a defense to crimes requiring specific intent or "particular purpose," but not to general intent crimes).

18 .McKenzie points to the following testimony of Dr. Wetzler as support for his assertion that the jury could have found mental capacity to form specific intent without rejecting Dr. Wetz-ler’s testimony as to capacity to form general intent:

Q [Mr. Reagan, defense counsel] And the Court provided you with certain definitions that it has heretofore given to the jury?

A I presume so, yes. I have a copy of it[sic].

Q And among those are purposely and knowingly?

A Yes; purposely defined on page 8 [App. at C-9, at 1558].

Q Starts on page 8?

A Yes.

Q And describes [knowingly] there, and part of this definition is when knowledge of the particular act [is an] element of [the] offence [sic], such knowledge is established, if a person is aware of [a] high probability of its existence. Is this defendant capable of [a] high probability of knowledge?

A No.

Q Existence of that type of fact in that type of situation?

A Which one are you reading, Mr. Reagan?

Q Top of page 9 [App. at 1559 (KNOWINGLY Defined)]

A I do not feel that he was aware of what he was doing.

R.T. at 2578.

We fail to understand how this unadorned reference to the definition of "knowingly" supports McKenzie’s argument.

19 . The fact that the jury rejected the only evidence of mental incapacity distinguishes this case from the Eleventh Circuit’s ruling in Bowen v. Kemp, 832 F.2d 546, where there was substantial evidence to support a finding of mental incapacity and the jury had no occasion to resolve the issue.

20 . The instructions as read to the jury contained the bracketed language indicated in the second paragraph of Instruction 30. R.T. of Tape of Instructions at 2; cf. R.T. at 2601. The written instructions contained, in place of this language, the word “sane." Regardless of which alternative the jury actually relied on, our analysis remains the same.

21 . There was no evidence that McKenzie was intoxicated or under the influence of a drug that might have affected his ability to form intent.

22 . In his federal habeas petition, McKenzie claimed that his right to a fair trial was violated when the trial court declined to enforce the plea agreement despite alleged prejudice to the defendant by virtue of the revelation of certain information to the prosecutors in the course of plea negotiations. This contention was rejected by the district court and by the panel that heard the appeal initially. 801 F.2d at 1527-28. While McKenzie did not raise this point in his petition for rehearing, we approve of the panel’s resolution of this issue.

23 . In Corbitt v. New Jersey, 439 U.S. 212, 99 S.Ct. 492, 58 L.Ed.2d 466 (1978), the Court upheld a sentencing scheme mandating life sentences upon conviction of defendants who might have received lesser sentences by pleading nolo con-tendere to the same charge, and distinguished Jackson on the ground, inter alia, that Jackson involved the death penalty, a punishment " ‘unique in its severity and irrevocability.’ ” Id. at 217, 99 S.Ct. at 496 (quoting Gregg v. Georgia, 428 U.S. 153, 187, 96 S.Ct. 2909, 2931, 49 L.Ed.2d 859 (1976)). McKenzie argues that Corbitt supports his position by requiring additional safeguards for defendants who have been sentenced to death. While it is true that this case, like Jackson, involves the death penalty, it is also true — and dispositive — that McKenzie’s rights not to plead guilty and to have a jury trial were not in any way burdened. The rule in Jackson depends on more than the fact that the death penalty was imposed on a defendant who might have escaped that penalty through a plea agreement. Only when the exercise of constitutional rights is made unduly burdensome does Jackson apply.

24 . The trial transcript, excluding voir dire, is over 2,000 pages long. This fact alone belies appellant's claim that the trial judge "was aware of the facts of Duncan McKenzie's crime well before the hour long meeting where he agreed to impose a prison sentence on his plea." Amended Supplemental Brief of Appellant on Rehearing En Banc at 36-37. As support for this counterintuitive assertion, McKenzie relies solely on a portion of the transcript of the pretrial proceedings indicating that the judge had seen two photographs of Lana Harding's savagely beaten body. Id. (citing R.T. at 23-24). This does not come close to raising an inference of capriciousness or vindictiveness in sentencing.

25 . In his final brief on rehearing, appellant argues that the trial court violated the principle of Booth v. Maryland, — U.S. —, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), by permitting the wishes of the victim’s family "to control Duncan McKenzie’s fate." Second Supplemental Brief of Appellant on Rehearing En Banc at 18. Although there is no evidence that the trial judge improperly considered the impact of the crime on the victim’s family in making his sentence determination, McKenzie contends that merely letting the family influence the decision to bring him to trial introduced an impermissible element of arbitrariness.

The Montana state district court, like trial courts elsewhere, had no power to control the prosecutor’s decision whether to plea bargain. To the extent the victim’s family's wishes were given any consideration, it was in the decision to take the case to trial, not in sentencing. We see no impropriety in that.

26 . McKenzie was sentenced pursuant to R.C.M. §§ 94-5-105 and 94-5-304 (1947), which at the time of Lana Harding’s death provided:

94-5-105. Sentence Of Death For Deliberate Homicide. (1) When a defendant is convicted of the offense of deliberate homicide the court shall impose a sentence of death in the following circumstances, unless there are mitigating circumstances:

(a) The deliberate homicide was committed by a person serving a sentence of imprisonment in the state prison; or

(b) The defendant was previously convicted of another deliberate homicide; or

(c) The victim of the deliberate homicide was a peace officer killed while performing his duty; or

(d) The deliberate homicide was committed by means of torture; or

(e) The deliberate homicide was committed by a person lying in wait or ambush; or

(f) The deliberate homicide was committed as a part of a scheme or operation which, if completed, would result in the death of more than one person.

94-5-304. Sentence Of Death For Aggravated Kidnapping. A court shall impose the sentence of death following conviction of aggravated kidnapping if it finds that the victim is dead as the result of the criminal conduct unless there are mitigating circumstances.

27 . The Constitution does not require that state court review of death sentences include a comparison of sentences imposed in similar cases. Pulley v. Harris, 465 U.S. 37, 43-51, 104 S.Ct. 871, 875-80, 79 L.Ed.2d 29 (1984). Such "comparative proportionality review" is merely one additional safeguard against arbitrariness in sentencing. Id. at 51, 104 S.Ct. at 880.

28 . R.C.M. §§ 94-5-101, -102, -105 (1947).

29 . R.C.M. §§ 94-5-303, -304 (1947).

30 . McKenzie relies on Collins v. Lockhart, 754 F.2d 258 (8th Cir.), cert. denied, 474 U.S. 1013, 106 S.Ct. 546, 88 L.Ed.2d 475 (1985), for the proposition that an aggravating circumstance which is an element of the crime cannot be said to narrow adequately the class of persons who may be sentenced to death. We read Collins as grounded in the peculiar statutory scheme employed by Arkansas to define capital murder. In any event, we note that Collins did not discuss Jurek and was decided prior to Lowenfield. We must, of course, resolve any conflict in favor of lowenfield and Jurek.

31 . The jury instructions stated:

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,

and in so doing the assailant causes the death of the person he assails, in the law is guilty of the offense of Deliberate Homicide by Means of Torture, whether or not it was the purpose or intention of the assailant to cause such death.

"Untoward Propensity" means any perverse, wrong, bad or corrupt inclination or tendency.

Instr. No. 23, App. at 1559-60; see also Add’l Instr. No. 34, App. at 1565.

32 . As indicated above, the Montana Supreme Court found beyond a reasonable doubt that McKenzie purposely or knowingly killed Lana Harding. See note 8 supra.

33 . McKenzie objects to the sentencing judge’s consideration of non-statutory aggravating factors. The Montana Supreme Court approved this procedure, however, and it does not violate the Constitution. Reliance on non-statutory aggravating circumstances is permissible so long as the statutory sentencing scheme requires that at least one statutory aggravating circumstance be found before a death sentence may be imposed. Barclay, 463 U.S. at 956-58, id. at 966-67, 103 S.Ct. at 3428-29; id. at 3433-34 (Stevens, J., concurring in the judgment); Zant, 462 U.S. at 878-79, 103 S.Ct. at 2743-44. Montana’s sentencing procedures met this requirement. See pp. 1539-41 supra.

34 . At the sentencing stage, McKenzie’s counsel had no doubts about whether Montana law permitted defendants an opportunity to present mitigating factors to the sentencer. McKenzie’s Motion in Mitigation states: “It is generally understood that any person has the right to present matters in mitigation of sentence.... The Court herein has advised Defendant that it is receptive to, and will hear, any matter in mitigation-" E.R. 5, H. Exh. 37, Rec. 14 at 2. The motion requested that a lesser sentence be imposed based on the alleged mitigating circumstances. Id. at 5.

35 . Harper correctly notes that the Supreme Court has explicitly required statutory aggravating circumstances in a death sentencing scheme. McKenzie apparently reads Harper as requiring similar explicit statutory provisions for consideration of mitigating circumstances, including detailed procedures for implementing this review. Such a reading of Harper would, of course, conflict with Jurek. We therefore decline to so interpret Harper. See generally Campbell v. Kincheloe, 829 F.2d 1453, 1464-65 & n. 7 (9th Cir.1987) (upholding constitutionality of state death penalty statute as construed by state supreme court, despite defendant's claim that judicial construction cannot cure defective statute; Harper distinguished on the ground that the Espionage Act "provided no guidance to the sentencing authority at all”).

36 . Indigent defendants are entitled to have the state provide them a transcript of the trial proceedings for purposes of appeal. R.C.M. § 95-2428 (1947).

37 . There need be no express statutory description of the type of review to be undertaken by the appellate court. The Constitution requires only that such review be available, and that reviewing courts consider the appropriateness of the sentence in light of all the circumstances. See Pulley, 465 U.S. at 53, 104 S.Ct. 880.

38 . In addition to direct appeal to the supreme court and the SRD, Montana law provides for collateral review of convictions, a procedure of which McKenzie also availed himself. See R.C. M. §§ 95-2601 et seq.; McKenzie IV, 640 P.2d at 371.