Fitzpatrick v. State

• Court: Montana Supreme Court
• Decided: September 2, 1981
• Docket: 81-074
• Status: Published

Opinion

NO. 81-74

I N THE SUPREME COURT OF THE STATE OF M N A A OTN

BERNARD JAMES FITZPATRICK,

P e t i t i o n e r and R e s p o n d e n t ,

VS.

STATE O MONTANA, F

Respondent and A p p e l l a n t .

Appeal from: D i s t r i c t Court of t h e T h i r t e e n t h J u d i c i a l D i s t r i c t , I n and f o r t h e County o f B i g Horn H o n o r a b l e C h a r l e s Luedke, J u d g e p r e s i d i n g .

C o u n s e l o f Record:

For Appellant:

Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , a r g u e d , H e l e n a , Montana Marc R a c i c o t , P r o s e c u t i o n C o o d i n a t o r , H e l e n a , Montana John Maynard a r g u e d , A s s i s t a n t A t t o r n e y G e n e r a l , H e l e n a , Montana James S e y k o r a a r g u e d , County A t t o r n e y , H a r d i n , Montana

F o r Respondent:

R o b e r t L. S t e p h e n s , J r . a r g u e d , B i l l i n g s , Montana Timothy K . Ford a r g u e d , S e a t t l e , Washington

Submitted: A p r i l 29, 1 9 8 1

Decided: SEP -2 1981 Filed: SEF - 2 498‘/ Mr. Chief J u s t i c e Frank I . Haswell d e l i v e r e d t h e O p i n i o n of t h e Court. S t a t e o f Montana a p p e a l s from t h e Big Horn County D i s t r i c t C o u r t ' s d e n i a l of t h e S t a t e ' s motion to d i s m i s s a p e t i -

t i o n f o r post-conviction relief. P e t i t i o n e r cross-appeals from

t h e D i s t r i c t C o u r t ' s d e n i a l of h i s r e q u e s t f o r a n e v i d e n t i a r y h e a r i n g on h i s p o s t - c o n v i c t i o n petition. B e r n a r d F i t z p a t r i c k ( p e t i t i o n e r ) w a s c o n v i c t e d of

d e l i b e r a t e h o m i c i d e , a g g r a v a t e d k i d n a p p i n g , and r o b b e r y , and s e n - t e n c e d to d e a t h i n 1 9 7 5 . T h i s C o u r t r e v e r s e d and remanded f o r a

new t r i a l . S t a t e v. F i t z p a t r i c k ( 1 9 7 7 ) , 1 7 4 Mont. 1 7 4 , 5 6 9 P.2d 383. A f t e r a s e c o n d t r i a l , p e t i t i o n e r was c o n v i c t e d of t h e same o f f e n s e s and a g a i n s e n t e n c e d t o d e a t h . T h i s Court affirmed.

S t a t e v. F i t z p a t r i c k ( 1 9 8 0 ) , Mont . , 6 0 6 P,2d 1 3 4 3 , 37

St.Rep. 194, cert. d e n i e d , U.S. , 1 0 1 S e c t . 252, 6 6 L . Ed. 2d 1 1 8 . F i t z p a t r i c k p e t i t i o n e d t h e U n i t e d S t a t e s Supreme

C o u r t and was d e n i e d c e r t i o r a r i o n t h e a b o v e c a s e and o n F i t z p a t r i c k v. S e n t e n c e Review D i v i s i o n of t h e Supreme C o u r t of Montana ( 1 9 8 0 ) , U.S. , 1 0 1 S.Ct. 252, 66 L.Ed.2d 119. On November 6 , 1 9 8 0 , p e t i t i o n e r f i l e d a p o s t -

c o n v i c t i o n r e l i e f p e t i t i o n i n D i s t r i c t C o u r t , Big Horn County. The S t a t e moved t o d i s m i s s , a l l e g i n g t h a t p o s t - c o n v i c t i o n relief,

p u r s u a n t t o s e c t i o n 46-21-101 e t seq., MCA, i s n o t a v a i l a b l e to a d e f e n d a n t who h a s b e e n s e n t e n c e d t o d e a t h . The d i s t r i c t j u d g e d e n i e d t h e S t a t e ' s m o t i o n to d i s m i s s o n t h a t g r o u n d , b u t d i d

d i s m i s s t h e p e t i t i o n o n a l l claims o f p e t i t i o n e r e x c e p t a s t o h i s c l a i m i n " p a r a g r a p h 8 ( c ) I 1 of t h e p e t i t i o n , which a l l e g e d i n e f f e c - t i v e a s s i s t a n c e of c o u n s e l . The d i s t r i c t j u d g e g r a n t e d peti- t i o n e r l e a v e t o amend "8 ( c ) " i n o r d e r to s e t o u t h i s claim more specifically. On F e b r u a r y 4 , 1 9 8 1 , t h e D i s t r i c t C o u r t d e n i e d p e t i t i o n e r ' s r e q u e s t f o r a n e v i d e n t i a r y h e a r i n g on t h e q u e s t i o n of ineffective assistance, ruling t h a t the allegations i n the

p r o p o s e d amended p e t i t i o n were c o n j e c t u r a l and s p e c u l a t i v e . The S t a t e a p p e a l s from t h e D i s t r i c t C o u r t ' s r u l i n g which i n e f f e c t a l l o w s p o s t - c o n v i c t i o n r e l i e f to p e r s o n s u n d e r s e n t e n c e of d e a t h . P e t i t i o n e r cross-appeals from t h e d e n i a l o f

a n e v i d e n t i a r y h e a r i n g and t h e d e n i a l o f r e l i e f from h i s c o n v i c - t i o n and s e n t e n c e .

The S t a t e r a i s e s o n e i s s u e o n a p p e a l :

1) To w h a t e x t e n t may a p e r s o n s e n t e n c e d t o d e a t h

c h a l l e n g e h i s c o n v i c t i o n and s e n t e n c e u n d e r M o n t a n a ' s P o s t -

c o n v i c t i o n R e l i e f A c t when h e h a s p r e v i o u s l y b e e n a f f o r d e d a d i r e c t a p p e a l of h i s c o n v i c t i o n under t h e a u t o m a t i c r e v i e w p r o v i - s i o n s o f s e c t i o n s 46-18-307 t h r o u g h 46-18-310, MCA? P e t i t i o n e r r a i s e s 14 i s s u e s i n h i s cross-appeal, which

w e w i l l a d d r e s s as f o l l o w s : 1) Does t h e d o c t r i n e o f res j u d i c a t a b a r r e c o n -

s i d e r a t i o n o f c o n s t i t u t i o n a l claims r a i s e d b y p e t i t i o n e r o n

d i r e c t appeal to t h i s Court? 2 ) Did t h e D i s t r i c t C o u r t e r r i n d i s m i s s i n g 7 claims

o n t h e i r merits ( d i s c u s s e d b e l o w ) w i t h o u t r e q u i r i n g a n e v i d e n -

t i a r y hearing? 3 ) Did t h e D i s t r i c t C o u r t e r r i n r u l i n g t h a t 6 claims

( d i s c u s s e d b e l o w ) s h o u l d b e d i s m i s s e d as a m a t t e r o f l a w ?

The d i s t r i c t j u d g e r u l e d as a m a t t e r of law t h a t d e a t h row p r i s o n e r s are n o t p r e c l u d e d from b r i n g i n g a p o s t - c o n v i c t i o n p e t i t i o n p u r s u a n t t o s e c t i o n s 46-21-101 e t seq., MCA. The S t a t e a r g u e s t h a t t h e a u t o m a t i c r e v i e w p r o v i s i o n s o f s e c t i o n 46-18-307 t h r o u g h 46-18-310, MCA, t a k e t h e p l a c e of t h e p o s t - c o n v i c t i o n

s t a t u t e s and l e n d t h e f i n a l i t y t o r e v i e w w h i c h m u s t e x i s t i f a

d e f e n d a n t s e n t e n c e d t o d e a t h is e v e r t o h a v e h i s s t a t u t o r y s e n - t e n c e imposed. P e t i t i o n e r p o i n t s o u t t h a t t h e s t a t u t e , on its f a c e , d e c l a r e s t h a t post-conviction r e l i e f is a v a i l a b l e to anyone "adjudged g u i l t y of an o f f e n s e ." H e also a r g u e s t h a t

t o h o l d o t h e r w i s e would d e n y p e t i t i o n e r t h e e q u a l p r o t e c t i o n o f t h e laws. W find p e t i t i o n e r ' s arguments persuasive. e

T h i s p r e c i s e i s s u e was r a i s e d by Dewey Coleman i n h i s a p p e a l t o t h i s C o u r t f r o m a Rosebud C o u n t y D i s t r i c t C o u r t ' s

d i s m i s s a l of h i s p e t i t i o n f o r p o s t - c o n v i c t i o n relief. In t h a t

a p p e a l , d e c i d e d by t h i s C o u r t A u g u s t 28, 1 9 8 1 , w e h e l d t h a t t h e

s t a t u t e is c l e a r o n i t s f a c e i n p r o v i d i n g t h i s remedy t o any " p e r s o n adjudged g u i l t y of a n o f f e n s e ." We discussed there the

i n t e r e s t t h a t t h e S t a t e h a s i n t h e f i n a l i t y of a s e n t e n c e , b u t w e a l s o r e c o g n i z e d t h a t had t h e l e g i s l a t u r e i n t e n d e d t h a t t h e p o s t - c o n v i c t i o n s t a t u t e s a p p l y o n l y to d e f e n d a n t s c o n v i c t e d of non-

c a p i t a l o f f e n s e s , t h e l e g i s l a t u r e would h a v e e x p r e s s e d t h a t intent in the statute. S e e Coleman v. S t a t e (No. 81-115, d e c i d e d ~ u g u s t2 8 , 1 3 8 1 . ) Based o n t h e f o r e g o i n g , w e c o n c l u d e t h a t t h e d i s t r i c t

j u d g e i n t h i s case p r o p e r l y d e n i e d t h e S t a t e ' s m o t i o n t o d i s m i s s p e t i t i o n e r ' s post-conviction r e l i e f p e t i t i o n .

The d i s t r i c t j u d g e g r a n t e d t h e S t a t e ' s m o t i o n t o

d i s m i s s s i x o f p e t i t i o n e r ' s claims o n t h e g r o u n d t h a t t h e claims h a d b e e n p r e v i o u s l y d e c i d e d o n t h e merits and were -e- j u d i c a t a . r s P e t i t i o n e r a d m i t s t h a t t h e i s s u e s h a v e b e e n a d j u d i c a t e d b u t con-

t e n d s t h a t res j u d i c a t a s h o u l d n o t a p p l y h e r e b e c a u s e : " (1) The Due P r o c e s s c l a u s e of t h e F o u r t e e n t h Amendment r e q u i r e s g r e a t e r r e l i a b i l i t y of judgments i n c a p i t a l c a s e s ; and ( 2 ) t h e p r e v i o u s l y a d j u d i c a t e d i s s u e s were d e c i d e d i n c o r r e c t l y . " T h i s C o u r t h a s n o t s p e c i f i c a l l y h e l d t h a t res j u d i c a t a

d o e s n o t a p p l y to p o s t - c o n v i c t i o n r e l i e f procedures but t h e Court d i d n o t e i n d i c t u m i n I n re W i l l i a m McNair ( 1 9 8 0 ) , Mont . I

6 1 5 P.2d 9 1 6 , 917, 3 7 S t . R e p . 1487, 1489, t h a t i n p o s t - c o n v i c t i o n

p r o c e d u r e s "as i n h a b e a s c o r p u s , t h e r e is no s t a t u t e o f l i m i t a t i o n s , no res j u d i c a t a , and . . . the d o c t r i n e of l a c h e s is i n a p p l i c a b l e , " c i t i n g H e f l i n v. U n i t e d S t a t e s ( 1 9 5 9 ) , 3 5 8 U.S.

415, 420, 79 S . C t . 451, 454, 3 L.Ed.2d 407, 4 1 1 ( S t e w a r t , J . c o n c u r r i n g ) a n d C o n n e s v. U n i t e d S t a t e s ( 9 t h C i r . 1 9 7 0 ) , 4 3 1 F.2d 1207. But d e s p i t e t h e f a c t t h a t res j u d i c a t a d o e s n o t p r e v e n t

t h e b r i n g i n g of r e p e a t e d p e t i t i o n s i n f e d e r a l c o u r t , t h e d o c t r i n e d o e s a p p l y i n s o f a r a s it p r e c l u d e s i n q u i r y i n t o p r e v i o u s l y liti- gated grounds. The U n i t e d S t a t e s Supreme C o u r t s e t o u t t h e con- s i d e r a t i o n s w h i c h go i n t o d e t e r m i n i n g t h o s e s i t u a t i o n s i n which

res j u d i c a t a may p r e c l u d e f u r t h e r l i t i g a t i o n : "Where a t r i a l o r a p p e l l a t e c o u r t h a s d e t e r m i n e d t h e f e d e r a l p r i s o n e r ' s claim, d i s c r e t i o n may i n a p r o p e r case be e x e r c i s e d a g a i n s t t h e g r a n t of a S 2255 [ p o s t - c o n v i c t i o n r e l i e f ] h e a r i n g . Section 2255 p r o v i d e s f o r h e a r i n g ' [u] n l e s s t h e motion a n d t h e f i l e s and r e c o r d s o f t h e case c o n c l u s i - v e l y show t h a t t h e p r i s o n e r is e n t i t l e d t o no relief ... I n S a n d e r s v. U n i t e d S t a t e s , 3 7 3 U.S. 1 ( 1 9 6 3 ) , w e announced s t a n d a r d s g o v e r n i n g t h e d e t e r m i n a t i o n w h e t h e r a h e a r i n g s h o u l d be o r d e r e d i n t h e case o f a s u c c e s s i v e m o t i o n u n d e r 9 2255. S i m i l a r l y , where t h e t r i a l or a p p e l l a t e c o u r t h a s had a ' s a y ' o n a f e d e r a l p r i s o n e r ' s claim, it may be o p e n t o t h e 5 2255 c o u r t t o d e t e r m i n e t h a t on t h e b a s i s of t h e m t i o n , f i l e s , a n d r e c o r d s , ' t h e p r i s o n e r is e n t i t l e d t o no relief. S e e T h o r n t o n v. U n i t e d S t a t e s , 1 2 5 U.S. App. D.C. 1 1 4 , 1 2 5 , 3 6 8 F.2d 8 2 2 , 8 3 3 ( 1 9 6 6 ) ( d i s s e n t i n g o p i n i o n of W r i g h t , J . ) ." Kaufman v . U n i t e d S t a t e s ( 1 9 6 8 ) , 394 U.S. 217, 227, n . 8 , 8 9 S . C t . 1 0 6 8 , 1074-1075, n . 8 , 22 L.Ed.2d 227, 238, n.8. The s t a n d a r d s a s s e t o u t i n S a n d e r s p r o v i d e :

" [ c l o n t r o l l i n g w e i g h t may b e g i v e n to d e n i a l o f a prior application ... f o r 9 2255 r e l i e f o n l y i f (1) t h e same g r o u n d p r e s e n t e d i n t h e s u b s e q u e n t a p p l i c a t i o n was d e t e r m i n e d a d v e r s e l y to t h e a p p l i c a n t on t h e p r i o r a p p l i c a t i o n , ( 2 ) t h e p r i o r d e t e r m i n a t i o n was o n t h e merits, and ( 3 ) t h e e n d s o f j u s t i c e would n o t be s e r v e d by r e a c h i n g t h e merits o f t h e s u b s e q u e n t a p p l i c a t i o n .I1 Sanders v . U n i t e d S t a t e s ( 1 9 6 3 ) , 3 7 3 U.S. , 15, 83 S.Ct. 1 0 6 8 , 1 0 7 7 , 1 0 L.Ed.2d 1 4 8 , 1 6 1 . I n Coleman, s u p r a , w e a p p r o v e d t h e S a n d e r s res tr i c t i o n s , h o l d i n g t h a t res j u d i c a t a would a p p l y i n t h i s S t a t e i n s o f a r as

t h e d o c t r i n e l i m i t s r e l i t i g a t i o n of p r e v i o u s l y d e t e r m i n e d issues; b u t it c a n n o t be i n v o k e d by t h e S t a t e so as t o d e p r i v e a l i t i g a n t of t h e r i g h t to f i l e a s u c c e s s i v e p e t i t i o n , i f the petitioner has a new b a s i s o r g r o u n d f o r coming b e f o r e t h e c o u r t . S e e Coleman, supra. I n t h e case a t b a r , t h e d i s t r i c t j u d g e c o n c l u d e d t h a t t h e s i x previously-litigated i s s u e s s h o u l d n o t be r e c o n s i d e r e d . We

w i l l n o t d i s t u r b h i s f i n d i n g a b s e n t a c l e a r showing o f a b u s e of

discretion. Coleman, s u p r a . S e v e n claims s e t f o r t h by F i t z p a t r i c k i n h i s post- c o n v i c t i o n r e l i e f , p e t i t i o n were d i s m i s s e d w i t h o u t e v i d e n t i a r y

h e a r i n g s by t h e D i s t r i c t C o u r t . W e determine t h a t an evidentiary

h e a r i n g is n e c e s s a r y o n p e t i t i o n e r l s claim t h a t he w a s d e n i e d e f f e c t i v e a s s i s t a n c e o f c o u n s e l b o t h a t t r i a l and a t s e n t e n c i n g .

I n h i s p e t i t i o n , F i t z p a t r i c k alleged t h a t h i s court-appointed

c o u n s e l f a i l e d t o a d e q u a t e l y i n v e s t i g a t e and p r e p a r e a d e f e n s e , a n d t h a t h e was u n f a m i l i a r w i t h c r i t i c a l a r e a s of t h e a p p l i c a b l e

law. H e c i t e d numerous and s u b s t a n t i a l f a c t s t o s u p p o r t h i s

a l l e g a t i o n s , w h i c h were found t o be s p e c u l a t i v e and c o n j e c t u r a l by t h e d i s t r i c t judge. P e t i t i o n e r is e n t i t l e d to h a v e a t h i s t r i a l " e f f e c t i v e

a s s i s t a n c e o f c o u n s e l a c t i n g w i t h i n t h e r a n g e of c o m p e t e n c e demanded o f a t t o r n e y s i n c r i m i n a l cases." S t a t e v . Rose ( 1 9 8 0 ) ,

Mont . , 6 0 8 P.2d 1074, 1081, 37 St.Rep. 642, 649-650. From t h e i n f o r m a t i o n p r e s e n t e d i n F i t z p a t r i c k ' s p e t i t i o n , w e can- n o t s a y , a s t h e d i s t r i c t j u d g e d i d , t h a t " t h e f i l e s and r e c o r d s o f t h e case c o n c l u s i v e l y show t h a t t h e p e t i t i o n e r is e n t i t l e d to

no r e l i e f . . ." S e c t i o n 46-21-201(1), MCA. Many o f t h e e r r o r s o f w h i c h p e t i t i o n e r c o m p l a i n s i n v o l v e f a i l u r e s of c o u n s e l to a c t ,

i.e., o m i s s i o n s r a t h e r t h a n c o m m i s s i o n s , and a mere r e v i e w o f t h e

r e c o r d c a n n o t show t h a t p e t i t i o n e r is e n t i t l e d t o no r e l i e f o n t h e s e grounds. W e f i n d an abuse of d i s c r e t i o n i n t h e d i s t r i c t judge's

d i s m i s s a l o f t h e s e claims. W e d o n o t h o l d t h a t p e t i t i o n e r was

d e n i e d e f f e c t i v e a s s i s t a n c e of c o u n s e l , b u t w e d o f i n d t h a t h i s

a l l e g a t i o n s were s u f f i c i e n t t o r e q u i r e a n e v i d e n t i a r y h e a r i n g o n the issue. The n e x t claim s e t f o r t h by p e t i t i o n e r is t h a t h e w a s d e n i e d h i s r i g h t t o a f a i r and i m p a r t i a l j u r y . The d i s t r i c t judge r u l e d t h a t a h e a r i n g w a s not n e c e s s a r y on t h i s i s s u e , i n t h a t t h e claim was b a s e d o n l y o n c o n j e c t u r e and s p e c u l a t i o n w i t h

no b a s i s i n the record. The j u d g e ' s r e v i e w o f t h e claims s e t

forth in the petition indicate t h a t the specific errors alleged b y p e t i t i o n e r n a r r o w e d down to p r e j u d i c i a l p u b l i c i t y o f p e t i t i o n e r ' s p r e v i o u s c o n v i c t i o n , and t h a t o n e j u r o r had s a t o n t h e p r e v i o u s t r i a l of p e t i t i o n e r . The S t a t e c o n t e n d s t h a t t h e

j u r y p a s s e d m u s t e r u n d e r I r v i n v. Ibwd ( 1 9 6 1 ) , 366 U.S. 717, 8 1 S.Ct. 1 6 3 9 , 6 L.Ed.2d 751.

Irvin, supra, requires t h a t the jury render a verdict

based o n l y on t h e e v i d e n c e p r e s e n t e d i n c o u r t . However, t h e Supreme C o u r t r e c o g n i z e d t h a t many j u r o r s come i n t o c o u r t w i t h

p r e c o n c e i v e d n o t i o n s based on p r i o r p u b l i c i t y . This, according

to the Court, does not prevent a f a i r trial i f the jurors can lay a s i d e these notions. I r v i n , s u p r a , 3 6 6 U.S. a t 722-723, 8 1 S.Ct.

a t 1642-1643, 6 L.Ed.2d a t 756. The d i s t r i c t j u d g e r e v i e w e d t h e t r a n s c r i p t of v o i r d i r e i n t h i s case, and d e t e r m i n e d t h a t t h e p u b l i c i t y d i d n o t h a v e

a prejudicial effect. The j u r o r s were q u e s t i o n e d a s a w h o l e , and

many i n d i v i d u a l l y , a s t o t h e i r a t t i t u d e s r e s u l t i n g from t h e trial's publicity. The a p p a r e n t r e s u l t o f t h i s q u e s t i o n i n g was

t h a t n e a r l y a l l j u r o r s had h e a r d o f t h e case, b u t a l l a g r e e d t h a t t h e y c o u l d d e c i d e t h e case o n t h e e v i d e n c e p r e s e n t e d . N o speci-

f i c i n s t a n c e o f a p r e j u d i c e d j u r o r was p r e s e n t e d w i t h t h e p e t i -

t i o n f o r post-conviction relief. T h i s Court w i l l n o t presume p r e j u d i c e ; i t is i n c u m b e n t o n d e f e n d a n t to b r i n g s p e c i f i c e v i - dence of p r e j u d i c e b e f o r e t h e Court. S t a t e v. LaMere ( 1 9 8 0 ) ,

Mont . , 6 2 1 P.2d 462, 465, 37 S t . R e p . 1936, 1940. P e t i t i o n e r a l s o a l l e g e s e r r o r i n t h a t o n e j u r o r had

s e r v e d on h i s f i r s t j u r y . T h i s r e f e r e n c e to a n e a r l i e r t r i a l came o u t when j u r o r s were b e i n g q u e s t i o n e d as t o k n o w l e d g e o f any witnesses. The q u e s t i o n s show t h a t o n e juror--who was e l i m i n a t e d from s i t t i n g i n t h i s t r i a l - - h a d been a j u r o r i n t h e t r i a l of G a r y R a d i , a c o d e f e n d a n t o f F i t z p a t r i c k ; s h e had n o t

been involved i n F i t z p a t r i c k ' s f i r s t trial. The f a c t t h a t t h e r e was a n e a r l i e r t r i a l o f F i t z p a t r i c k was c l e a r l y b e f o r e t h e j u r y , and t h e S t a t e q u e s t i o n e d t h e j u r o r s as t o t h e e f f e c t of t h i s information. Individual j u r o r s expressed concern f o r t h e

p r o b l e m s of p o s s i b l e p r e j u d i c e from knowing t h a t F i t z p a t r i c k had b e e n p r e v i o u s l y t r i e d , b u t no j u r o r e x p r e s s e d t h e view t h a t

h e o r s h e c o u l d n o t make an i m p a r t i a l d e c i s i o n . And a g a i n , p e t i - t i o n e r sets f o r t h no f a c t s showing a c t u a l p r e j u d i c e e x i s t i n g i n

a n y one j u r o r . What he wanted t h e c o u r t t o d o , a c c o r d i n g to t h e d i s t r i c t j u d g e , was t o " p i e r c e t h e v e i l of t h e j u r y d e l i b e r - a t i o n s " t o t r y t o f i n d t h a t t h e d e c i s i o n was based on b i a s and

prejudice. Such an i n q u i r y i s n o t p r o p e r i n t h i s c a s e . See S t a t e v. O ' B r i e n ( 1 9 0 7 ) , 35 Mont. 482, 503, 90 P. 514, 521; McDonald v. P l e s s ( 1 9 1 4 ) , 238 U.S. 264, 267-269, 35 S.Ct. 783,

784-785, 59 L.Ed 1300, 1302-1303. W e f i n d t h a t t h e d i s t r i c t judge p r o p e r l y d e n i e d an

e v i d e n t i a r y h e a r i n g on t h i s i s s u e . N evidence presented t o t h e o

c o u r t showed any b i a s o r p r e j u d i c e e x i s t i n g i n t h e j u r y v e r d i c t .

The n e x t i s s u e which r e q u i r e s an e v i d e n t i a r y h e a r i n g , a c c o r d i n g t o p e t i t i o n e r , is t h a t of w h e t h e r p e t i t i o n e r was d e n i e d

meaningful a p p e l l a t e sentence review. He c o n t e n d s t h a t t h i s C o u r t , i n i t s r e v i e w of h i s s e n t e n c e p u r s u a n t t o s e c t i o n 46-18-307, MCA, f a i l e d t o l o o k a t t h e t r a n s c r i p t of t h e sen-

tencing hearing. H e a l s o f a u l t s t h i s Court f o r n o t c o n s i d e r i n g

t h e e v i d e n c e s u b m i t t e d by p e t i t i o n e r , which s e t o u t a c o m p i l a t i o n o f s e n t e n c e s imposed f o r crimes committed t h r o u g h o u t t h e S t a t e .

Based on t h e f o r e g o i n g , he c l a i m s t h a t h i s s e n t e n c e s h o u l d be o v e r t u r n e d f o r b e i n g a r b i t r a r y and d i s p r o p o r t i o n a t e . The S t a t e a r g u e s t h a t p e t i t i o n e r r e c e i v e d m e a n i n g f u l

r e v i e w t h r o u g h t h e C o u r t ' s comparison of p e t i t i o n e r ' s s e n t e n c e w i t h t h a t of o t h e r c a p i t a l d e f e n d a n t s . See S t a t e v. F i t z p a t r i c k , supra , Mont. a t , 606 P.2d a t 1361-1363, 37 St.Rep. at

217-218. Such a comparison is s u f f i c i e n t , a c c o r d i n g to t h e State. W a g r e e and f i n d t h a t o u r r e v i e w of p e t i t i o n e r ' s sen- e

t e n c e was s u f f i c i e n t . The Montana Codes r e q u i r e t h i s Court t o a u t o m a t i c a l l y r e v i e w t h e i m p o s i t i o n of a d e a t h s e n t e n c e . S e c t i o n 46-18-307, MCA. The C o u r t is r e q u i r e d t o l o o k a t t h e f o l l o w i n g f a c t o r s i n

determining t h e p r o p r i e t y of t h e d e a t h s e n t e n c e : " (1) w h e t h e r t h e s e n t e n c e of d e a t h was imposed u n d e r t h e i n f l u e n c e of p a s s i o n , p r e j u d i c e , o r a n y other arbitrary factor; " ( 2 ) whether t h e e v i d e n c e s u p p o r t s t h e judge I s f i n d i n g o f t h e e x i s t e n c e o r n o n e x i s t e n c e of t h e a g g r a v a t i n g or m i t i g a t i n g c i r c u m s t a n c e s enu- m e r a t e d i n 46-18-303 and 46-18-304; and

" ( 3 ) w h e t h e r t h e s e n t e n c e o f d e a t h is e x c e s s i v e o r d i s p r o p o r t i o n a t e t o t h e p e n a l t y imposed i n s i m i l a r cases, c o n s i d e r i n g b o t h t h e crime and t h e d e f e n d a n t . The c o u r t s h a l l i n c l u d e i n i t s d e c i - s i o n a r e f e r e n c e t o t h o s e similar cases i t t o o k into consideration ." S e c t i o n 46-18-310, MCA.

P e t i t i o n e r does not a t t a c k the s t a t u t e s , but r a t h e r

d i s p u t e s t h a t t h i s Court a d e q u a t e l y considered t h e propor-

t i o n a l i t y of h i s s e n t e n c e . H e d i r e c t s us to t h e language of t h e

U n i t e d S t a t e s Supreme C o u r t i n G r e g g v. G e o r g i a ( 1 9 7 6 ) , 428 U.S. 1 5 3 , 1 9 8 , 96 S . C t . 2909, 2937, 49 L.Ed.2d 859, 888, w h e r e i n t h e

C o u r t s e t f o r t h t h e i m p o r t a n c e of a p p e l l a t e r e v i e w i n "compar [ i n g ] e a c h d e a t h s e n t e n c e w i t h t h e s e n t e n - ces imposed on s i m i l a r l y s i t u a t e d d e f e n d a n t s to e n s u r e t h a t t h e s e n t e n c e of d e a t h i n a p a r t i c u l a r case i s n o t d i s p r o p o r t i o n a t e . I 1

The d i s t r i c t j u d g e who c o n s i d e r e d t h e p e t i t i o n f o r post-conviction r e l i e f noted i n h i s f i n d i n g s : "The C o u r t [Montana Supreme C o u r t ] c o n s i d e r e d t h e o n l y t w o Montana cases i n v o l v i n g a g g r a v a t e d k i d - n a p p i n g r e s u l t i n g i n t h e d e a t h o f t h e v i c t i m , and f o u n d t h a t t h e d e f e n d a n t ' s case was n o t e x c e s s i v e o r d i s p r o p o r t i o n a t e to t h e p e n a l t y imposed i n s i m i l a r cases. The C o u r t n o t e d t h a t i t s com- p a r i s o n o f cases was l i m i t e d t o a n e x a m i n a t i o n of McKenzie and Coleman, as t h e y a r e t h e o n l y cases a r i s i n g i n Montana s i n c e t h e e f f e c t i v e d a t e o f t h e aggravated kidnapping s t a t u t e ." W e noted i n o u r f i r s t r e v i e w of p e t i t i o n e r ' s s e n t e n c e , a s d i d t h e d i s t r i c t judge, t h a t t h e r e were few c o m p a r a b l e cases, b u t t h a t o u r r e v i e w p r o c e d u r e encompassed t h o s e c a s e s . Such a c o m p a r i s o n is a d e q u a t e . S e e G r e g g , s u p r a , 428 U.S. a t 204, n . 56, 96 S . C t . a t 2940, n . 56, 49 L.Ed.2d 8 9 2 , n . 56; P r o f f i t t v.

F l o r i d a ( 1 9 7 5 ) , 428 U.S. 242, 259, n . 1 6 , 96 S . C t . 2960, 2970, n. 1 6 , 49 L.Ed.2d 9 1 3 , 927, n . 1 6 ; S p i n k e l l i n k v . W a i n w r i g h t ( 5 t h

Cir. 1 9 7 8 ) , 578 F.2d 582, 604-606; c e r t . d e n i e d 440 U.S. 976, 99

S.Ct. 1 5 4 8 , 5 9 L.Ed.2d 796; S t a t e v. Coleman ( 1 9 7 9 ) , Mont . , 6 0 5 P.2d 1 0 0 0 , 1020-1021, 36 S t . R e p . 1 1 3 4 , 1155-1156, cert. d e n i e d , 446 U.S. 970, 100 S.Ct. 2952, 64 L.Ed.2d 831. The c o m p i l a t i o n o f d a t a s u b m i t t e d b y p e t i t i o n e r from o t h e r d i s t r i c t c o u r t s i n t h e S t a t e was n o t r e l e v a n t t o o u r s e n t e n c i n g inquiry. The d a t a d i d n o t i n c l u d e cases c o m p a r a b l e t o McKenzie, Coleman, o r t h e i n s t a n t c a s e , which formed t h e b a s i s f o r o u r consideration. I t was n o t error t o c o n s i d e r o n l y t h e s e cases.

We also dispute petitioner's allegation that t h i s C o u r t d i d n o t r e v i e w t h e t r a n s c r i p t from t h e s e n t e n c i n g h e a r i n g . The d i s t r i c t j u d g e c o r r e c t l y n o t e d t h a t " t h e Montana Supreme

C o u r t d i r e c t e d t h e District Court to t r a n s m i t t h e t r a n s c r i p t of

t h e sentencing proceedings i n t h i s cause." The r e c o r d of t h a t h e a r i n g was b e f o r e u s , and was c o n s i d e r e d by t h i s C o u r t i n

reviewing the sentence. T h e r e was n o error. P e t i t i o n e r n e x t claims t h a t h i s s e n t e n c e was imposed a r b i t r a r i l y and d i s c r i m i n a t o r i l y , and t h a t a n e v i d e n t i a r y h e a r i n g

was n e c e s s a r y i n o r d e r t o e l i c i t t h e f a c t s t o show t h a t a r b i t r a r y s e n t e n c i n g e x i s t s i n Montana. He also c o n t e n d s t h a t t h e s t a t u t e s

a p p l y d i s c r i m i n a t o r i l y a g a i n s t " i m p o v e r i s h e d male d e f e n d a n t s

a c c u s e d o f k i l l i n g c a u c a s i a n s , " and t h u s a r e v i o l a t i v e o f h i s E i g h t h and F o u r t e e n t h Amendment r i g h t s . The d i s t r i c t j u d g e h e l d t h a t t h e s t a t u t e s a r e c o n s t i t u t i o n a l , as d r a w n , b a s e d o n o u r d e c i s i o n s i n McKenzie, s u p r a , Coleman, s u p r a , and o n Furman v.

G e o r g i a ( 1 9 7 2 ) , 4 0 8 U.S. 238, 9 2 S . C t . 2726, 3 3 L.Ed.2d 346. He

f u r t h e r f o u n d t h a t p e t i t i o n e r had n o t a l l e g e d s u f f i c i e n t f a c t s to r e q u i r e a n e v i d e n t i a r y h e a r i n g o n t h e q u e s t i o n of d i s c r i m i n a t o r y sentencing. We agree.

The d e a t h p e n a l t y s t a t u t e s , a s d r a w n , were e n a c t e d to c u r e t h e a r b i t r a r i n e s s t h a t was found t o be i n h e r e n t i n t h e

G e o r g i a s t a t u t e s , as i d e n t i f i e d i n Furman, s u p r a . See S t a t e v . McKenzie ( 1 9 7 8 ) , 1 7 7 Mont. 280, 3 1 8 , 5 8 1 P.2d 1 2 0 5 , 1 2 2 7 ,

A l a t e r G e o r g i a s t a t u t e , and o n e s i m i l a r to M o n t a n a ' s , was

f o u n d t o p r e c l u d e a r b i t r a r y and c a p r i c i o u s s e n t e n c i n g . The

Supreme C o u r t n p t e d i n G r e g g , s u p r a , 428 U.S. 195, 96 S.Ct. at

2935, 49 L.Ed: 9' a t 8 8 7 , t h a t t h e c o n c e r n s f o r a r b i t r a r i n e s s c a n be 3 m e t " b y a c a r e f u l l y d r a f t e d s t a t u t e t h a t e n s u r e s t h a t t h e sen- t e n c i n g a u t h o r i t y is g i v e n a d e q u a t e i n f o r m a t i o n and g u i d a n c e . "

The F l o r i d a s t a t u t e was found t o be c o n s t i t u t i o n a l o n i t s f a c e by t h e same c o u r t i n P r o f f i t t , s u p r a :

"Under F l o r i d a ' s c a p i t a l - s e n t e n c i n g p r o c e d u r e , i n sum, t r i a l j u d g e s a r e g i v e n s p e c i f i c and d e t a i l e d g u i d a n c e t o a s s i s t them i n d e c i d i n g w h e t h e r t o impose a d e a t h p e n a l t y or imprisonment f o r l i f e . Moreover, t h e i r d e c i s i o n s are reviewed to e n s u r e t h a t t h e y are c o n s i s t e n t w i t h o t h e r s e n t e n c e s imposed i n s i m i l a r c i r c u m s t a n c e s . T h u s , i n F l o r i d a , as i n G e o r g i a , i t is no l o n g e r t r u e t h a t t h e r e is ' "no m e a n i n g f u l b a s i s f o r d i s t i n g u i s h i n g t h e few cases i n which [ t h e d e a t h p e n a l t y ] i s imposed f r o m t h e many cases i n w h i c h it i s n o t G r e g g v. G e o r g i a , a t 1 8 8 , 49 L Ed 2d 8 5 9 , 96 ." S . C t . 2909, q u o t i n g Furman v. G e o r g i a , 408 U.S., a t 313, 3 3 L Ed 2d 346, 9 2 S . C t 2726 ( W h i t e , J . , c o n c u r r i n g ) . On i t s f a c e t h e F l o r i d a s y s t e m t h u s s a t i s f i e s t h e c o n s t i t u t i o n a l d e f i c i e n c i e s iden- t i f i e d i n Furman." P r o f f i t t , s u p r a , 428 U.S. a t 253, 96 S . C t . a t 2967, 49 L.Ed.2d a t 923.

S e e a l s o S p i n k e l l i n k , s u p r a , 5 7 8 F.2d a t 604-606, w h i c h i n t e r p r e t s t h e U n i t e d S t a t e s Supreme C o u r t d e c i s i o n i n

P r o f f i t t , s u p r a , t o mean t h a t by i n s t i t u t i n g s e n t e n c i n g p r o c e -

d u r e s w h i c h f o c u s o n t h e c h a r a c t e r o f t h e d e f e n d a n t and t h e c i r - c u m s t a n c e s o f t h e crime, t h e a r b i t r a r i n e s s is c o n c l u s i v e l y

removed f r o m s e n t e n c i n g and no case by case r e v i e w need be made

on t h i s question. The Montana s e n t e n c i n g s t a t u t e s a r e l i k e w i s e drawn s o

as to prevent a r b i t r a r y sentencing. W e reaffirm our holding t h a t

t h e y are c o n s t i t u t i o n a l . McKenzie, 1 7 7 Mont. a t 320, 5 8 1 P.2d a t 1228-1229; Coleman, Mont. a t , 6 0 5 P.2d a t 1015-1017, 36 S t . R e p . a t 1148-1151.

A s t o t h e claim t h a t t h e d e a t h p e n a l t y s t a t u t e s a r e

d i s c r i m i n a t o r y , we f i n d t h e r e a s o n i n g of t h e F i f t h C i r c u i t i n S p i n k e l l i n k , s u p r a , t o be p e r s u a s i v e . That court discussed the cases o f W a s h i n g t o n v , D a v i s ( 1 9 7 6 ) , 426 U.S. 229, 9 6 S . C t . 2040, 4 8 L.Ed.2d 597, and V i l l a g e o f A r l i n g t o n H e i g h t s v . M e t r o p o l i t a n

H o u s i n g D e v e l o p m e n t Corp. ( 1 9 7 7 ) , 429 U.S. 252, 97 S . C t . 555, 5 0 L.Ed.2d 450, and n o t e d t h a t d i s p r o p o r t i o n a t e i m p a c t o f a f a c i a l l y

n e u t r a l law w i l l n o t make t h e l a w u n c o n s t i t u t i o n a l , unless a

d i s c r i m i n a t o r y i n t e n t o r p u r p o s e is f o u n d . Spinkellink, supra, 5 7 8 F.2d a t 614-616, and f o o t n o t e 42. The Montana l a w is

f a c i a l l y n e u t r a l , and p e t i t i o n e r makes n o a l l e g a t i o n s t h a t t h e

l a w has a discriminatory intent. F u r t h e r , t h e d i s t r i c t judge h e r e h e l d t h a t p e t i t i o n e r s e t f o r t h no f a c t s s h o w i n g a n y e v i d e n c e o f

d i s c r i m i n a t o r y a p p l i c a t i o n of t h e s t a t u t e s . S e e Coleman,

Mont. a t , 6 0 5 P.2d a t 1019, 36 St.Rep. a t 1153. F i n d i n g t h a t no e v i d e n c e was p r e s e n t e d which r e q u i r e d

a f u r t h e r f a c t u a l h e a r i n g , t h e d i s t r i c t judge p r o p e r l y d i s m i s s e d

p e t i t i o n e r ' s claim. P e t i t i o n e r a l l e g e s t h a t t h e d e a t h p e n a l t y i s imposed

s o r a r e l y t h a t it d o e s n o t d e t e r and s e r v e s no l e g i t i m a t e s t a t e

interest. H e c o n t e n d s t h a t t h i s is a f a c t u a l i s s u e which demanded

t h a t t h e judge g r a n t an e v i d e n t i a r y h e a r i n g . The S t a t e c o n t e n d s

t h a t t h i s is a l e g a l i s s u e , and f u r t h e r , t h a t p e t i t i o n e r p r e - s e n t e d n o t h i n g b u t v a g u e o p i n i o n s and c o n c l u s i o n s o n t h i s i s s u e . I n a s s e s s i n g p e n a l t i e s u n d e r t h e E i g h t h Amendment, the

Supreme C o u r t h a s d e t e r m i n e d t h a t t h e d e a t h p e n a l t y i s n o t -r- p e se c r u e l and u n u s u a l . G r e g g , 428 U.S. a t 169, 96 S.Ct. a t 2923, 49 L.Ed.2d a t 872. The C o u r t f u r t h e r n o t e d t h a t "inhumane" p u n i s h -

m e n t is f o r b i d d e n , a s is p u n i s h m e n t which d o e s n o t s u i t t h e crime. I n making t h e s e d e t e r m i n a t i o n s , t h e Court w i l l look to " o b j e c t i v e i n d i c i a t h a t r e f l e c t t h e p u b l i c a t t i t u d e toward a g i v e n s a n c t i o n ," b e c a u s e a n a s s e s s m e n t o f c o n t e m p o r a r y v a l u e s c o n c e r n i n g t h e i n £ l i c t i o n o f a c h a l l e n g e d s a n c t i o n is r e l e v a n t t o t h e a p p l i c a t i o n o f t h e E i g h t h Amendment. P u b l i c p e r c e p t i o n s are

n o t c o n c l u s i v e , b u t i f a p e n a l t y also a c c o r d s "with t h e d i g n i t y

o f man," t h e p u n i s h m e n t w i l l be u p h e l d . G r e g g , 428 U.S. at 169-173, 96 S . C t . a t 2923-2925, 49 L.Ed.2d a t 872-875. The d i s t r i c t j u d g e found it i n d i c a t i v e o f p u b l i c a t t i-

t u d e t h a t t h e e l e c t o r a t e o f Montana v o t e d i n 1972 t o r e t a i n c a p i - t a l punishment. In addition, the S t a t e p o i n t s out t h a t the l e g i s l a t u r e h a s c o n t i n u e d throughout t h e 1970 I s to make M o n t a n a ' s d e a t h p e n a l t y s t a t u t e s c o n f o r m to t h e r e q u i r e m e n t s o f t h e U n i t e d

S t a t e s Supreme C o u r t . A l s o t h e S t a t e n o t e s t h a t t h e 1981

l e g i s l a t u r e r e j e c t e d a n a t t e m p t t o c h a n g e t h e p e n a l t y to a d i f -

f e r e n t means o f i n f l i c t i n g d e a t h ( o t h e r t h a n h a n g i n g ) , which

r e f l e c t s t h e f a c t t h a t t h e l e g i s l a t u r e s t i l l sees d e a t h by h a n g i n g as l e g i t i m a t e , and n o t so r a r e t o h a v e no a p p l i c a t i o n t o deterrence. I n G r e g g , s u p r a , t h e Supreme C o u r t n o t e d t h a t t h e r e

i s n o t s i g n i f i c a n t e v i d e n c e e i t h e r s u p p o r t i n g or o p p o s i n g c a p i t a l p u n i s h m e n t as a d e t e r r e n t . For t h a t reason, t h e Court determined t h a t t h e i s s u e was b e t t e r l e f t to S t a t e l e g i s l a t u r e s , w h i c h c o u l d

e v a l u a t e t h e e f f e c t s i n t h e i r own s t a t e s b e t t e r t h a n t h e c o u r t s could. G r e g g , 428 U.S. a t 184-187, 96 S.Ct. a t 2931, 49 L.Ed.2d

881-882.

I n sum, t h e S t a t e a p p e a r s t o h a v e r e t a i n e d a l e g i t i - mate i n t e r e s t i n c a p i t a l p u n i s h m e n t . I n d e e d , i t is i n v o k e d

r a r e l y , b u t few crimes r e a c h t h e l e v e l s w h e r e s u c h p u n i s h m e n t is

even considered. I n a n area s u c h a s t h i s o n e , which is l e f t to the State legislatures for a factual determination, the d i s t r i c t

j u d g e c o r r e c t l y d i s m i s s e d p e t i t i o n e r ' s claim. A f i n a l i s s u e w h i c h p e t i t i o n e r a r g u e s was o n e

d e m a n d i n g a n e v i d e n t i a r y h e a r i n g was w h e t h e r d e a t h by h a n g i n g

c o n s t i t u t e s c r u e l and u n u s u a l p u n i s h m e n t . He argues t h a t death

b y h a n g i n g is slow and p a i n f u l , and t h a t b e c a u s e so few p e o p l e a r e h a n g e d , t h e r e a r e no c o m p e t e n t hangmen i n Montana.

W e h a v e n o t d e t e r m i n e d t h a t a n y p a r t i c u l a r means of

p u n i s h m e n t o f f e n d s t h e c o n s t i t u t i o n a l p r o v i s i o n a g a i n s t c r u e l and unusual punishment. Thus w e s h a l l d e f e r to t h e l e g i s l a t u r e i n

t h i s matter. S e e S t a t e v. Coleman ( 1 9 7 9 ) , Mont. , 605 p.2d 1 0 0 0 , 1058-1059, 36 St.Rep. 2237, 2247. The d i s t r i c t j u d g e

p r o p e r l y d i s m i s s e d t h i s claim. P e t i t i o n e r n e x t r a i s e s s i x i s s u e s which h e a l l e g e s t h e d i s t r i c t j u d g e d e c i d e d i n c o r r e c t l y o n t h e merits. Because t h e s e

i s s u e s i n v o l v e q u e s t i o n s o f l a w and n o t o f f a c t , b o t h s i d e s a g r e e d t h a t a n e v i d e n t i a r y h e a r i n g o n t h e s e i s s u e s was n o t

necessary.

I n " p a r a g r a p h 8 ( e ) I 1 of h i s p e t i t i o n f o r p o s t - c o n v i c t i o n r e l i e f , p e t i t i o n e r a l l e g e s t h a t h e was d e n i e d h i s

c o n s t i t u tionally-required unanimous j u r y v e r d i c t b e c a u s e t h e j u r y was i n s t r u c t e d o n t h e crimes i n t h e d i s j u n c t i v e , e.9.: ... i t was a l l o w e d to c o n v i c t i f it f o u n d h e ' p u r p o s e l y or knowingly performed, or aided or . . .w a s . . . a b e t t e d i n p e r f o r m i n g , t h e acts c a u s i n g t h e d e a t h

[he] or the death ... w a s caused while e n g a g e d i n o r was a n a c c o m p l i c e to t h e commission o f , or f l i g h t a f t e r ... k i d n a p p i n g . ' " ( I n s t r u c t i o n N o . 24. ) robbery or (~mphasis a d d e d by p e t i t i o n e r . ) With t h i s type of i n s t r u c t i o n , p e t i t i o n e r a r g u e s , 1 2

p e o p l e may n e v e r h a v e a g r e e d o n e x a c t l y which crimes were committed. The S t a t e a r g u e s t h a t t h e j u r y i n s t r u c t i o n s a l s o t o l d

t h e j u r y t h a t a l l 1 2 o f them had t o a g r e e , and f u r t h e r , t h a t t h e

d i s t r i c t j u d g e found s u b s t a n t i a l e v i d e n c e t o s u p p o r t a l l alternatives. P e t i t i o n e r c i t e s t h e case o f U n i t e d S t a t e s v. G i p s o n

( 5 t h C i r . 1 9 7 7 ) , 5 5 3 F.2d 453, i n w h i c h a f e d e r a l d e f e n d a n t was

c o n v i c t e d o f " s e l l i n g " or " r e c e i v i n g " p u r s u a n t t o 1 8 USC Si 2313. T h a t s t a t u t e p r o v i d e d t h a t t h e d e f e n d a n t s h o u l d be c o n v i c t e d i f

h e d i d one of t h e enumerated acts: receiving, concealing, s t o r i n g , b a r t e r i n g , s e l l i n g , or disposing. The c o u r t f o u n d t h a t t h e s e s i x acts f e l l i n t o t w o g r o u p s , which are c o n c e p t u a l l y different. The c o u r t h e l d t h a t t h e r e c o u l d n o t be a unanimous v e r d i c t i f some j u r o r s f o u n d d e f e n d a n t g u i l t y o f a n a c t i n t h e o t h e r group. The v e r d i c t l a c k e d u n a n i m i t y of t h e " a c t u s r e u s . "

G i p s o n , 5 5 3 F.2d a t 457-459. T h i s case is c l e a r l y d i s t i n g u i s h - able. W h i l e t h e j u r y i n G i p s o n was d e l i b e r a t i n g , t h e y a s k e d t h e j u d g e i f t h e y c o u l d c o n v i c t i f a l l 1 2 o f them d i d n o t a g r e e t o

t h e s p e c i f i c act done, i.e., one of t h e s i x s t a t u t o r y acts. The judge answered i n t h e a f f i r m a t i v e . No s u c h e v e n t o c c u r r e d h e r e . The j u r o r s were s p e c i f i c a l l y i n s t r u c t e d t h a t a l l 1 2 had t o a g r e e

order convict. P e t i t i o n e r a l s o c i t e s a r e c e n t W a s h i n g t o n case, S t a t e v . G r e e n ( 1 9 8 0 ) , 94 Wash.2d 216, 616 P.2d 6 2 8 , i n which t h e

W a s h i n g t o n Supreme C o u r t r e v e r s e d a g u i l t y v e r d i c t , c i t i n g nonu- nanimity of t h e jury v e r d i c t . T h a t case i n v o l v e d a j u r y i n s t r u c - t i o n t h a t " d e f e n d a n t caused t h e d e a t h of [victim] i n the course of or i n f u r t h e r a n c e o f r a p e i n t h e f i r s t d e g r e e or k i d n a p p i n g i n t h e f i r s t degree." The j u r y found o n l y t h a t d e f e n d a n t was g u i l t y o f a g g r a v a t e d murder. The c o u r t r e v e r s e d , f i n d i n g t h a t it w a s

impossible to determine whether t h e j u r y unanimously agreed t h a t d e f e n d a n t c o m m i t t e d e i t h e r r a p e o r k i d n a p p i n g , and r u l e d t h a t t h e r e w a s n o t s u b s t a n t i a l e v i d e n c e to s u p p o r t k i d n a p p i n g . The

c o u r t n o t e d t h a t r a p e and k i d n a p p i n g are s e p a r a t e and d i s t i n c t

c r i m i n a l o f f e n s e s and m u s t be p r o v e d as t o a l l e l e m e n t s b e c a u s e o n e o f t h e s e o f f e n s e s is n e c e s s a r y t o s u s t a i n t h e more s e r i o u s

o f f e n s e , i.e. aggravated murder i n t h e f i r s t d e g r e e . S t a t e v. G r e e n ( 1 9 8 0 ) , 94 Wash.2d 216, 616 P.2d a t 637-638. W e f i n d no e r r o r u n d e r t h e f a c t s o f t h i s case. The

j u r y w a s i n s t r u c t e d as t o t h e r e q u i r e m e n t o f a unanimous v e r d i c t ,

w h i c h many c o u r t s h a v e found t o be s u f f i c i e n t . The Second C i r c u i t , i n upholding a v e r d i c t of g u i l t y on a c o n s p i r a c y c h a r g e

w h i c h t h e j u r y c o u l d h a v e d e t e r m i n e d to h a v e b e e n c o m m i t t e d i n s e v e r a l ways, n o t e d : If ... ' [ I l t is assumed t h a t a g e n e r a l i n s t r u c - t i o n o n t h e r e q u i r e m e n t of u n a n i m i t y s u f f i c e s t o i n s t r u c t t h e j u r y t h a t t h e y m u s t be unanimous o n w h a t e v e r s p e c i f i c a t i o n s t h e y f i n d t o be t h e p r e - d i c a t e o f t h e g u i l t y v e r d i c t . ' U n i t e d S t a t e s v. N a t e l l i , 527 F.2d 311, 3 2 5 ( 2 d C i r . 1 9 7 5 ) , c e r t . d e n i e d , 4 2 5 U.S. 934, 96 S . C t . 1 6 6 3 , 48 L.Ed.2d 1 7 5 . " U n i t e d S t a t e s v. Murray ( 2 d C i r . 1 9 8 0 ) , 618 F.2d 8 9 2 , 898. Moreover, a r e v i e w of t h e t r a n s c r i p t s a t i s f i e s us, a s it d i d t h e d i s t r i c t j u d g e , t h a t t h e r e was s u b s t a n t i a l e v i d e n c e t o support a l l of t h e a l t e r n a t i v e s set f o r t h i n the i n s t r u c t i o n s . S e e S t a t e v. A r n d t ( 1 9 7 6 ) , 8 7 Wash.2d 374, 5 5 3 P.2d 1 3 2 8 , 1 3 3 0 . S e e a l s o , S t a t e v. S o u h r a d a ( 1 9 4 9 ) , 1 2 2 Mont. 377, 3 8 5 , 204 P.2d

7 9 2 , 796. T h e r e f o r e we f i n d t h a t t h e r e q u i r e m e n t o f u n a n i m i t y ,

a s g u a r a n t e e d by t h e Montana C o n s t i t u t i o n , was s a t i s f i e d . P e t i t i o n e r claims t h a t he was d e n i e d h i s r i g h t s u n d e r t h e S i x t h , E i g h t h and F o u r t e e n t h Amendments by r e a s o n of t h e f a c t

t h a t a j u r y w a s n o t involved i n t h e sentencing d e t e r m i n a t i o n . The d i s t r i c t j u d g e d e t e r m i n e d t h a t t h i s i s s u e had b e e n d e c i d e d

a d v e r s e l y t o p e t i t i o n e r by i m p l i c a t i o n i n t h i s C o u r t ' s d e c i s i o n s i n Coleman and McKenzie. We agree.

The U n i t e d S t a t e s Supreme C o u r t h a s n o t r e q u i r e d t h a t the fact-finding l e a d i n g t o s e n t e n c i n g be d o n e by a j u r y . That

C o u r t h a s s a i d t h a t a j u r y p r o v i d e s "a s i g n i f i c a n t and r e l i a b l e

o b j e c t i v e i n d e x o f c o n t e m p o r a r y v a l u e s , " G r e g g , 428 U.S. a t 181,

96 S . C t . a t 2929, 49 L.Ed.2d a t 879, b u t t h e C o u r t also upheld

t h e F l o r i d a s e n t e n c i n g scheme w h e r e b y a j u r y was a d v i s o r y o n l y , w i t h t h e j u d g e making t h e f i n a l d e t e r m i n a t i o n . In P r o f f i t t , s u p r a , 428 U.S. a t 252, 96 S . C t . a t 2966, 49 L.Ed.2d a t 922-923,

t h e Court s t a t e d :

"The b a s i c d i f f e r e n c e b e t w e e n t h e F l o r i d a s y s t e m a n d t h e G e o r g i a s y s t e m is t h a t i n F l o r i d a t h e s e n t e n c e is d e t e r m i n e d by t h e t r i a l j u d g e r a t h e r t h a n by t h e j u r y . T h i s Court h a s pointed o u t t h a t j u r y s e n t e n c i n g i n a c a p i t a l case c a n per- form an important societal f u n c t i o n , Witherspoon v . I l l i n o i s , 3 9 1 U.S. 510, 519 N. 1 5 , 20 L.Ed.2d 7 7 6 , 8 8 S . C t . 1 7 7 0 , 46 Ohio Op.2d 3 6 8 ( 1 9 6 8 ) , b u t it h a s n e v e r s u g g e s t e d t h a t j u r y s e n t e n c i n g i s c o n s t i t u t i o n a l l y r e q u i r e d . And it would appear t h a t j u d i c i a l sentencing should lead, i f a n y t h i n g , to even g r e a t e r c o n s i s t e n c y i n t h e i m p o s i t i o n a t t h e t r i a l c o u r t l e v e l of c a p i t a l p u n i s h m e n t , s i n c e a t r i a l j u d g e is more e x p e r i e n c e d i n s e n t e n c i n g t h a n a j u r y , and t h e r e - f o r e is b e t t e r a b l e to impose s e n t e n c e s s i m i l a r t o t h o s e imposed i n a n a l o g o u s c a s e s . " A l t h o u g h i n t h e l a t e r case o f L o c k e t t v. Ohio ( 1 9 7 8 ) , 438 U.S. 586, 609, n . 1 6 , 98 S . C t . 2954, 2967, n. 1 6 , 5 7 L.Ed.2d

9 7 3 , 992, n . 1 6 , t h e Supreme C o u r t r e s e r v e d judgment o n w h e t h e r the Constitution required a jury t o determine death penalty

s e n t e n c i n g , t h e d e c i s i o n i n P r o f f i t t c o n v i n c e s us t h a t a t t h i s t i m e t h e Montana s t a t u t o r y scheme is c o n s t i t u t i o n a l . What a p p e a r s t o be o f o v e r r i d i n g i m p o r t a n c e i s t h a t t h e t r i a l and s e n -

t e n c i n g are b i f u r c a t e d , w i t h d i f f e r e n t f a c t o r s c o n s i d e r e d a t

each. G r e g g , 428 U.S. a t 190-192, 96 S . C t . a t 2933-2934, 49 L.Ed 2d a t 884-885.

P e t i t i o n e r p o i n t s o u t t h a t Montana and I d a h o a r e now t h e o n l y s t a t e s w h i c h t a k e t h e f a c t u a l matters i n v o l v e d i n s e n - t e n c i n g away f r o m t h e j u r y . Oregon r e c e n t l y s t r u c k down i t s

s t a t u t e , f i n d i n g t h a t j u d i c i a l s e n t e n c i n g was u n c o n s t i t u t i o n a l . T h a t case is d i s t i n g u i s h a b l e : i n o r d e r f o r t h e d e a t h s e n t e n c e t o b e i m p o s e d , t h e j u d g e , n o t t h e j u r y , had to d e t e r m i n e t h a t t h e

m u r d e r was d e l i b e r a t e , t h e r e b y g i v i n g t h e j u d g e t h e t a s k of d e t e r m i n i n g o n e o f t h e e l e m e n t s o f t h e crime. S e e S t a t e v. Q u i n n ( 1 9 8 1 ) , 290 O r . 3 8 3 , 6 2 3 P.2d 6 3 0 , 639-644.

The Montana s i t u a t i o n is n o t a n a l o g o u s . The f a c t o r s t o be c o n s i d e r e d b y t h e j u d g e i n i m p o s i n g t h e d e a t h p e n a l t y are n o t e l e m e n t s o f t h e crime. S e e s e c t i o n s 46-18-303 and 46-18-304, MCA. The Montana scheme is more l i k e a n " e n h a n c e d p e n a l t y s t a t u t e , " w h i c h t h e O r e g o n C o u r t a g r e e d was a p e r m i s s i b l e s i t u a t i o n i n which t o d e n y t h e i n p u t o f a j u r y . The c o u r t found

t h a t " t h e f a c t s w h i c h c o n s t i t u t e t h e crime are f o r t h e j u r y and t h o s e which c h a r a c t e r i z e t h e d e f e n d a n t are f o r t h e s e n t e n c i n g court." Q u i n n , 6 2 3 P.2d a t 643. S e e a l s o S t a t e v. S t e w a r t

( 1 9 7 7 ) , 1 7 5 Mont. 286, 299-300, 5 7 3 P.2d 1 1 3 8 , 1145-1146.

The d i s t r i c t j u d g e was c o r r e c t i n d e t e r m i n i n g t h a t p e t i t i o n e r ' s claim s h o u l d be d i s m i s s e d . T h e r e is no c o n s t i t u - t i o n a l r e q u i r e m e n t t h a t a j u r y make t h e d e t e r m i n a t i o n to impose the death penalty. P e t i t i o n e r n e x t a l l e g e s e r r o r i n t h a t he w a s r e q u i r e d

t o p r o v e t h a t h i s l i f e s h o u l d be s p a r e d , b e c a u s e t h e b u r d e n rests o n him to show m i t i g a t i o n . The S t a t e p o i n t s o u t t h a t t h i s C o u r t h a s u p h e l d t h e Montana s e n t e n c i n g p r o c e d u r e s i n Coleman and McKenzie and t h a t t h e s t a t u t e s c o n f o r m w i t h t h e U n i t e d S t a t e s

Supreme C o u r t ' s g u i d e l i n e s .

A s t h e d i s t r i c t judge r e c o g n i z e d , t h e United S t a t e s Supreme C o u r t h a s d e c l i n e d t o d e c i d e t h e c o n s t i t u t i o n a l i t y o f

" r e q u i r [ i n g ] d e f e n d a n t s t o b e a r t h e r i s k o f n o n p e r s u a s i o n as t o

t h e e x i s t e n c e o f m i t i g a t i n g c i r c u m s t a n c e s i n c a p i t a l cases." L o c k e t t , 438 U.S. a t 609, n . 1 6 , 9 8 S . C t . a t 2967, n . 1 6 ,

5 7 L.Ed.2d a t 992, n . 1 6 . H e a l s o n o t e d t h a t t h e cases r e l i e d o n

by p e t i t i o n e r i n s u p p o r t of h i s p o s i t i o n a l l r e l a t e to t h e g u i l t

phase of prosecution, i n which t h e b u r d e n is n e c e s s a r i l y o n t h e

S t a t e t o p r o v e e v e r y e l e m e n t o f t h e crime. I n r e W i n s h i p ( 1 9 7 0 ), 397 U.S. 358, 90 S . C t . 1 0 6 8 , 25 L.Ed.2d 3 6 8 ; S t a t e v. Stewart, 1 7 5 Mont. a t 299-301, 573 P.2d a t 1145-1146. S e e a l s o S t a t e v.

P i e r r e (1977), Utah , 572 P.2d 1 3 3 8 , 1346-1347, cert. d e n i e d 439 U.S. 8 8 2 , 99 S . C t . 219, 58 L.Ed.2d 194.

T h i s is a n i s s u e o f f i r s t i m p r e s s i o n i n Montana, w i t h

regard t o the death penalty statutes. S e c t i o n 46-18-305, MCA,

provides t h a t "the court . . . shall impose a s e n t e n c e of d e a t h i f it f i n d s o n e or more o f t h e a g g r a v a t i n g c i r c u m s t a n c e s and f i n d s t h a t t h e r e are no m i t i g a t i n g c i r c u m s t a n c e s s u f f i c i e n t l y s u b s t a n t i a l t o call f o r leniency." This s t a t u t e undoubtedly pla- ces t h e b u r d e n on t h e d e f e n d a n t t o show t h a t h i s l i f e s h o u l d be s p a r e d , b u t w e f i n d t h i s t o be c o n s t i t u t i o n a l l y p e r m i s s i b l e . In S t a t e v. S t e w a r t , s u p r a , w e d i s c u s s e d t h e U n i t e d S t a t e s Supreme C o u r t case o f P a t t e r s o n v . N e w York ( 1 9 7 7 ) , 4 3 2 U.S. 1 9 7 , 9 7 S. Ct. 2319, 5 3 L.Ed.2d 281, n o t i n g t h a t P a t t e r s o n r e l i e v e s t h e S t a t e o f t h e b u r d e n o f p r o v i n g f a c t s which d o n o t c o n s t i t u t e ele-

m e n t s o f t h e crime. We stated i n S t e w a r t t h a t it is p e r m i s s i b l e t o allow f a c t s p e r t i n e n t o n l y t o t h e q u e s t i o n o f p u n i s h m e n t t o be d e t e r m i n e d by a j u d g e r a t h e r t h a n by t h e j u r y , and t h e S t a t e need n o t p r o v e s u c h f a c t s beyond a r e a s o n a b l e d o u b t :

" H e r e , w e are c o n c e r n e d w i t h a s t a t u t e h a v i n g a bifurcated sentencing provision r a t h e r than a s t a t u t e t h a t s e p a r a t e l y allocates t h e burden of p r o o f , as i n P a t t e r s o n . However, t h e p r e s e n t c a s e and P a t t e r s o n , b o t h , f o c u s o n t h e s t a t u s o f a f a c t n e i t h e r b y t r a d i t i o n n o r by s t a t u t e a n e c e s s a r y e l e m e n t o f t h e crime c h a r g e d . The m a j o r i t y d e c i s i o n and J u s t i c e P o w e l l ' s d i s s e n t i n P a t t e r s o n i n d i c a t e t h a t when t h e p r e s e n c e or absence of such a f a c t determines o n l y t h e s e v e r i t y o f p u n i s h m e n t , it need n o t be p r o v e d by t h e s t a t e beyond a r e a s o n a b l e d o u b t . The release o r n o n r e l e a s e o f a k i d n a p p e r ' s v i c t i m is s u c h a f a c t , and it is w i t h i n t h e power o f t h e s t a t e to a l l o w t h e t r i a l c o u r t , r a t h e r t h a n t h e j u r y , to make t h i s f a c t u a l d e t e r m i n a t i o n . " S t a t e v. S t e w a r t , 1 7 5 Mont. a t 301, 573 P.2d a t 1146. The m i t i g a t i n g f a c t o r s i n t h e d e a t h p e n a l t y s t a t u t e s h a v e no b e a r i n g on g u i l t o r i n n o c e n c e . T h u s it is p e r m i s s i b l e t o r e q u i r e t h e d e f e n d a n t t o b r i n g f o r t h t h e e v i d e n c e p e r t i n e n t to t h e question of mitigation.

The n e x t a l l e g e d e r r o r r a i s e d by p e t i t i o n e r is t h a t t h e d e a t h p e n a l t y is v i o l a t i v e o f p e t i t i o n e r ' s c o n s t i t u t i o n a l r i g h t s

b e c a u s e t h e d e a t h p e n a l t y is d i s p r o p o r t i o n a t e t o t h e crime o f k i d n a p p i n g , and t h e p e n a l t y w a s imposed h e r e w i t h o u t a f i n d i n g by t h e jury t h a t p e t i t i o n e r d e l i b e r a t e l y took a l i f e . Petitioner c i t e s Coker v. G e o r g i a ( 1 9 7 7 ) , 433 U.S. 584, 97 S . C t . 2861, 5 3

L.Ed.2d 9 8 2 , and E b e r h e a r t v. G e o r g i a ( 1 9 7 7 ) , 4 3 3 U.S. 917, 9 7 S.Ct. 2994, 53 L.Ed.2d 1104, f o r t h e h o l d i n g s t h a t t h e d e a t h p e n a l t y c a n n o t be c o n s t i t u t i o n a l l y imposed f o r r a p e or

kidnapping. The S t a t e a r g u e s t h a t t h e s e cases a r e i n a p p l i c a b l e b e c a u s e

t h i s case i n v o l v e s a d e a t h t h a t is t h e r e s u l t o f a n a g g r a v a t e d

k i d n a p p i n g , s e c t i o n 46-18-303(7), MCA, which is c l e a r l y d i s t i n g u i s h a b l e from t h e k i d n a p p i n g i n v o l v e d i n E b e r h e a r t , s u p r a . W agree. e The U n i t e d S t a t e s Supreme C o u r t h a s r u l e d t h a t t h e d e a t h p e n a l t y is p e r m i s s i b l e for t h e crime of h o m i c i d e when a l i f e h a s b e e n d e l i b e r a t e l y t a k e n by t h e d e f e n d a n t . Gregg, s u p r a . But

t h a t C o u r t h a s r e s e r v e d judgment o n w h e t h e r more t h a n a d e l i - b e r a t e a c t which r e s u l t s i n t h e t a k i n g o f a l i f e i s n e c e s s a r y i n imposing t h e d e a t h p e n a l t y , i.e., w h e t h e r t h e r e m u s t be a speci- f i c purpose to t a k e t h e l i f e of t h e v i c t i m . L o c k e t t , 438 U.S. at

6 0 9 , n . 1 6 , 98 S . C t . a t 2967, n . 1 6 , 5 7 L.Ed.2d a t 992, n. 16.

T h i s Court found i n F i t z p a t r i c k , Mont. a t , 606

P.2d a t 1 3 5 6 , 37 S t . R e p . a t 209, t h a t l l [ d ] e f e n d a n t p u r p o s e l y

k i d n a p p e d , r o b b e d , and c a u s e d t h e d e a t h o f Monte Dyckman ." There

w a s no f i n d i n g o f a s p e c i f i c i n t e n t t o k i l l . Thus, p e t i t i o n e r

a r g u e s , h i s d e a t h s e n t e n c e may h a v e b e e n imposed f o r a d e a t h

which r e s u l t e d from t h e commission of a f e l o n y , o r f o r h i s r o l e

o n l y as a n a i d e r or a b e t t o r .

J u s t i c e s W h i t e and M a r s h a l l c o n c u r r e d i n L o c k e t t , s u p r a ,

b u t condemned t h e i m p o s i t i o n o f t h e d e a t h p e n a l t y i n f e l o n y

murder s i t u a t i o n s . They p o i n t e d o u t t h a t a b o u t h a l f t h e s t a t e s

h a v e f o r e c l o s e d t h e d e a t h p e n a l t y f o r t h o s e who d o n o t s p e c i f i -

c a l l y i n t e n d d e a t h , f i n d i n g t h e p e n a l t y g r o s s l y o u t of p r o p o r t i o n

f o r a n y o t h e r crime, and h a v i n g l i t t l e d e t e r r e n t v a l u e i n t h e s e

situations. L o c k e t t , s u p r a , 438 U.S. a t 619-621, and 624-628, 98

S.Ct. a t 2972-2974 and 2983-2985, 5 7 L.Ed a t 998-1000, and

1002-1004.

The l e g i s l a t u r e i n Montana h a s n o t s e e n f i t to f o r e c l o s e

t h i s s e n t e n c e f o r t h e i n t e n t i o n a l crime o f a g g r a v a t e d k i d n a p p i n g

which r e s u l t s i n d e a t h . S e c t i o n 46-18-303(7), MCA. W e do not f i n d t h e d e a t h p e n a l t y t o be d i s p r o p o r t i o n a t e to t h e crime com-

m i t t e d h e r e , and w e w i l l d e f e r to t h e l e g i s l a t u r e w h e r e w e f i n d

no c o n s t i t u t i o n a l v i o l a t i o n .

P e t i t i o n e r f u r t h e r o b j e c t s to t h e i m p o s i t i o n o f s e n t e n c e

b a s e d on a j u d g e ' s findings, r a t h e r than a jury's. A s we

i n d i c a t e d , s u p r a , w e f i n d it c o n s t i t u t i o n a l l y p e r m i s s i b l e to g i v e

t h e s e n t e n c i n g j u d g e t h e d i s c r e t i o n t o make t h e f a c t u a l f i n d i n g s

which form t h e b a s i s f o r t h e d e a t h s e n t e n c e . S t a t e v. Stewart,

1 7 5 Mont. a t 301, 573 P.2d a t 1146. S i n c e t h e r e is no c o n s t i t u -

t i o n a l r e q u i r e m e n t f o r a f i n d i n g of a s p e c i f i c i n t e n t to k i l l , it

i s p e r m i s s i b l e f o r t h e s e n t e n c i n g j u d g e to impose t h e d e a t h p e n a l t y i n t h i s case i n which t h e j u r y found a d e l i b e r a t e a c t by p e t i t i o n e r and t h e j u d g e made t h e f i n d i n g s r e l e v a n t to i m p o s i - t i o n of the death penalty.

I n " p a r a g r a p h 9 ( g )" of h i s p o s t - c o n v i c t i o n petition, p e t i t i o n e r c o n t e n d s t h a t h e was s e n t e n c e d o n e r r o n e o u s i n f o r - m a t i o n and c o n s t i t u t i o n a l l y i m p e r m i s s i b l e e v i d e n c e . The d i s t r i c t

j u d g e d i s m i s s e d t h e claim. W e f i n d t h a t h e was correct i n d o i n g

SO.

P e t i t i o n e r claims t h a t t h e r e was no e v i d e n c e to s u p p o r t t h e f i n d i n g s o f t h e s e n t e n c i n g j u d g e t h a t t h e k i l l i n g was com- m i t t e d by " l y i n g i n w a i t o r ambush," and t h a t t h e crime o f k i d - n a p p i n g had r e s u l t e d i n t h e d e a t h of t h e v i c t i m . Section 46-18-303, MCA. T h i s C o u r t had t h e s e n t e n c i n g f i l e and t h e t r i a l t r a n s c r i p t b e f o r e it o n t h e l a s t a p p e a l , b u t t h i s i s s u e was n o t specifically raised. However, a t t h a t t i m e , w e r e v i e w e d t h e s e n t e n c e , a s w e were c o m p e l l e d t o d o , s e c t i o n 46-18-307, MCA, and

found t h a t " t h e e v i d e n c e i n t h e r e c o r d c l e a r l y p r o v e s s u f f i c i e n t a g g r a v a t i n g c i r c u m s t a n c e s e x i s t i n t h i s case to w a r r a n t i m p o s i - t i o n of t h e d e a t h p e n a l t y . " Fitzpatrick, Mont. a t , 606 P.2d a t 1 3 6 0 , 37 S t . R e p . a t 215. W e need n o t r e v i e w t h i s i s s u e

further.

P e t i t i o n e r a l s o claims t h a t t h e s e n t e n c e was b a s e d p a r - t i a l l y on a c o n s t i t u t i o n a l l y in£ i r m c o n v i c t i o n . P e t i t i o n e r had

b e e n c o n v i c t e d of m u r d e r p r i o r to t h i s case, b u t the conviction

was o v e r t u r n e d b e c a u s e o f i n a d e q u a t e c o u n s e l and l a c k o f s p e e d y trial. The s e n t e n c i n g j u d g e n o t e d t h a t u n d e r B u r g e t t v . T e x a s

( 1 9 6 7 ) , 3 8 9 U.S. 109, 88 S.Ct. 258, 1 9 L.Ed.2d 319, t h e C o u r t

s h o u l d n o t c o n s i d e r c o n v i c t i o n s which are c o n s t i t u t i o n a l l y i n £ i r m b e c a u s e of G i d e o n v i o l a t i o n s . The r e c o r d from s e n t e n c i n g i n d i c a t e s t h a t t h e j u d g e was w e l l aware t h a t h e s h o u l d n o t con- s i d e r t h i s , and h e s o s t a t e d : "The r e v e r s a l o f t h i s c o n v i c t i o n n u l l i f i e s t h i s i n c i - d e n t a s e v i d e n c e i n a g g r a v a t i o n , b u t is n e v e r t h e l e s s material i n d e m o n s t r a t i n g t h a t t h e d e f e n d a n t ' s con- d u c t i n p r i s o n is n o t a s o u r c e o f m i t i g a t i o n w i t h respect t o t h e s e n t e n c i n g i s s u e Finding ( f ) . . . ." Court's T h i s C o u r t d e t e r m i n e d i n S t a t e v. O l s e n ( 1 9 8 0 ) , Mont. , 614 P.2d 1 0 6 1 , 37 S t . R e p . 1313, t h a t a d e f e n d a n t is

e n t i t l e d t o a c o n v i c t i o n b a s e d o n s u b s t a n t i a l l y correct

i n f o r m a t i o n , and t h a t i n f i r m c o n v i c t i o n s s h o u l d n o t be considered. However, t h i s C o u r t a l s o s t a t e d i n t h a t o p i n i o n t h a t

i f i t is o b v i o u s f r o m t h e r e c o r d t h a t t h e j u d g e d i d n o t r e l y o n

t h a t c o n v i c t i o n , and t h a t t h e s e n t e n c e would n o t h a v e b e e n d i f - f e r e n t had t h e j u d g e d i s r e g a r d e d t h a t p r i o r c o n v i c t i o n t o t a l l y , t h e C o u r t w i l l f i n d no p r e j u d i c e to t h e d e f e n d a n t . The O l s e n

C o u r t also noted t h a t i n view of t h a t d e f e n d a n t ' s e x t e n s i v e cri- m i n a l b a c k g r o u n d , a l o o k a t t h o s e p a s t c o n v i c t i o n s is n o t

prejudicial. S t a t e v. O l s e n , Mont. a t , 6 1 4 P.2d at 1064-1065, 37 S t . R e p . a t 1316-1317. P e t i t i o n e r h e r e had a

substantial record.

Here t h e j u d g e d e c l a r e d t h a t h e c o u l d n o t and would n o t r e l y on t h e p r i o r c o n v i c t i o n . W e f i n d t h i s t o be s u f f i c i e n t t o s a f e g u a r d p e t i t i o n e r ' s i n t e r e s t i n a n a p p r o p r i a t e and c o n s t i t u -

t i o n a l sentence. P e t i t i o n e r d i s p u t e s one o t h e r i t e m apparently considered by t h e judge i n s e n t e n c i n g : t h a t d e f e n s e c o u n s e l informed t h e c o u r t t h a t p e t i t i o n e r had a d m i t t e d t o t h e h o m i c i d e o f which h e

had p r e v i o u s l y been c o n v i c t e d , b u t claimed s e l f - d e f e n s e . P e t i t i o n e r a s s e r t s now t h a t h e had no i n v o l v e m e n t i n t h a t

offense. T h i s i s s u e is n o t d i s c u s s e d i n h i s b r i e f , b u t a p p e a r s t o r e f e r t o t h e c o n v i c t i o n , d i s c u s s e d a b o v e , w h i c h was d i s r e - g a r d e d by t h e j u d g e . A s we n o t e d , w e f i n d no error i n t h e sen-

t e n c i n g judge 's t r e a t m e n t of t h a t c o n v i c t i o n . Next, p e t i t i o n e r c h a l l e n g e s h i s s e n t e n c e on t h e b a s i s of t h e a l l e g e d l y v a g u e g u i d e l i n e s used i n f i n d i n g a g g r a v a t i n g and mitigating circumstances. H e a s s e r t s t h a t t h e y a l l o w t o o much

d i s c r e t i o n i n s e n t e n c i n g , which i n j e c t s u n c o n s t i t u t i o n a l arbitrariness into death penalty decisions. The S t a t e c o u n t e r s

b y p o i n t i n g o u t t h a t c e r t a i n f a c t o r s s i m i l a r to t h o s e s e t o u t i n t h e Montana s t a t u t e s ( s e c t i o n s 46-18-303 and 46-18-304, XCA) h a v e

b e e n f o u n d t o be c o n s t i t u t i o n a l i n G r e g g , 428 U.S. a t 1 6 5 , n. 9, 96 S . C t . a t 2921, n. 9 , 49 L.Ed.2d a t 870, n . 9 ; i n P r o f f i t t , 428

U.S. a t 248, n . 6 , 96 S . C t . a t 2965, n. 6 , 49 L.Ed.2d a t 921, n.

6 ; and i n J u r e k v . T e x a s ( 1 9 7 6 ) , 428 U.S. 262, 265, n. 1, 9 6

S.Ct. 2950, 2953, n. 1, 49 L.Ed.2d 9 2 9 , 934-935, n . 1. Also,

t h i s C o u r t h a s s p e c i f i c a l l y u p h e l d t h e Montana s t a t u t e s i n

McKenzie and Coleman, s u p r a , i n l i g h t o f t h e U n i t e d S t a t e s

Supreme C o u r t d e c i s i o n s .

S i n c e t h e s e cases h a v e b e e n d e c i d e d , t h e U n i t e d S t a t e s

Supreme C o u r t h a s c r i t i c i z e d t h e G e o r g i a C o u r t ' s i n t e r p r e t a t i o n

of one f a c t o r set o u t i n t h e Georgia s t a t u t e . The Supreme C o u r t

f o u n d t h a t t h e G e o r g i a C o u r t had a d o p t e d s u c h a b r o a d c o n s t r u c -

t i o n o f t h e i r s t a t u t o r y a g g r a v a t i n g c i r c u m s t a n c e of " o u t r a g e o u s l y

o r w a n t o n l y v i l e , h o r r i b l e o r inhuman i n t h a t it i n v o l v e d

t o r t u r e ," t h a t s e n t e n c i n g had become a r b i t r a r y and c a p r i c i o u s .

T h a t C o u r t n o t e d t h e n e c e s s i t y of h a v i n g " ' c l e a r and o b j e c t i v e

standards, '" which p r o v i d e "'specific and d e t a i l e d g u i d a n c e , ' I'

a l l o w i n g f o r r a t i o n a l r e v i e w o f t h e i m p o s i t i o n of t h e d e a t h

sentence. Godfrey v. G e o r g i a ( 1 9 8 0 ) , 446 U.S. 420, 428, 100

S.Ct. 1 7 5 9 , 1764-1765, 64 L.Ed.2d 398, 406.

The Montana s t a t u t e s d o n o t c o n t a i n t h e p r o v i s i o n which

was r e l i e d on by t h e G e o r g i a C o u r t i n i m p o s i n g a d e a t h s e n t e n c e .

B u t more i m p o r t a n t l y , w e n o t e t h a t t h e Montana s t a t u t e s h a v e b e e n

u p h e l d by t h i s C o u r t a s b e i n g f a c i a l l y s u f f i c i e n t t o w i t h s t a n d a n

a t t a c k of a r b i t r a r i n e s s . And we f i n d no e v i d e n c e t h a t t h e a p p l i -

c a t i o n o f t h e f a c t o r s set o u t i n t h e d e a t h p e n a l t y s t a t u t e s h a s

b e e n so b r o a d t h a t t h e r e is no l o n g e r " a n y i n h e r e n t r e s t r a i n t o n

t h e a r b i t r a r y and c a p r i c i o u s i n £ l i c t i o n o f t h e d e a t h s e n t e n c e ." Godfrey, s u p r a . Despite the f a c t t h a t "lying i n w a i t , " and

" s i g n i f i c a n t h i s t o r y of p r i o r c r i m i n a l a c t i v i t y , " s e c t i o n s

46-18-303, 46-18-304, MCA, h a v e n o t b e e n p r e v i o u s l y d e f i n e d by

t h i s C o u r t and were n o t e l a b o r a t e d upon d u r i n g s e n t e n c i n g , we f i n d no e r r o r i n t h e f i n d i n g s of t h e s e n t e n c i n g j u d g e t h a t t h e

f a c t o r s a p p l i e d i n t h i s case. W e noted p r e v i o u s l y t h a t t h e evidence s u p p o r t s t h e f i n d i n g

t h a t t h e h o m i c i d e was c o m m i t t e d by " l y i n g i n w a i t , " as was found

by t h e d i s t r i c t judge. The e v i d e n c e shows t h a t t h e r o b b e r y was c o n t e m p l a t e d w e l l i n a d v a n c e o f t h e e v e n t s which l e d to t h e k i l l i n g o f Monte Dyckman, and t h a t i m m e d i a t e l y b e f o r e t h e r o b b e r y

p e t i t i o n e r s a t i n h i s car w a t c h i n g t h e S a f e w a y S t o r e and t h e n t h e

drive-in bank, w a i t i n g f o r t h e v i c t i m . I t a l s o shows t h a t o f a l l

t h e p a r t i c i p a n t s i n t h e crime, p e t i t i o n e r was t h e o n e who made t h e d e c i s i o n t o e s c a l a t e t h e crime to m u r d e r and h e f i r e d t h e

s h o t s a t the victim. A l t h o u g h t h e p e t i t i o n e r may o r may n o t h a v e a c t u a l l y pulled the t r i g g e r while "lying i n w a i t , " the e n t i r e

c h a i n o f e v e n t s l e a d i n g t o t h e h o m i c i d e came a s a r e s u l t o f l y i n g

in wait. W h e r e a s t h e m i s c h i e f found by t h e Supreme C o u r t i n G o d f r e y , s u p r a , was t h a t ''a p e r s o n o f o r d i n a r y s e n s i b i l i t y c o u l d

f a i r l y c h a r a c t e r i z e almost e v e r y m u r d e r as ' o u t r a g e o u s l y o r wan- t o n l y v i l e , h o r r i b l e and i n h u m a n , ' '' b e c a u s e t h e r e is n o t h i n g i n t h o s e "few words, s t a n d i n g a l o n e , t h a t i m p l i e s any i n h e r e n t r e s t r a i n t o n t h e a r b i t r a r y and c a p r i c i o u s i n f l i c t i o n o f t h e d e a t h

s e n t e n c e , " G o d f r e y , s u p r a , 446 U.S. a t 428, 1 0 0 S . C t . a t 1765, 64 L.Ed.2d a t 406, s u c h a c r i t i c i s m c a n n o t b e made a b o u t t h e term

"lying in wait." I t c a n a p p l y i n b u t few c i r c u m s t a n c e s and i t i s

n o t s u b j e c t to t h e abuse noted i n Godfrey. The w o r d s t h e m s e l v e s c o n t a i n t h e i r own r e s t r a i n t , t h e y h a v e n o t b e e n a p p l i e d t o allow

s t a n d a r d l e s s and u n c h a n n e l e d s e n t e n c i n g , and t h e y a r e n o t

u n c o n s t i t u t i o n a l l y vague. F o r t h e same r e a s o n s , p e t i t i o n e r d i s p u t e s t h e j u d g e ' s f i n d i n g t h a t h e had a " s i g n i f i c a n t h i s t o r y o f c r i m i n a l a c t i v i t y . ' ' S e c t i o n 46-18-304, MCA. Again, t h i s phrase h a s not been defined b y t h i s C o u r t , b u t w e f i n d t h a t i t is p a r t i c u l a r e n o u g h by i t s

own terms t o p r e v e n t a l l e g a t i o n s o f v a g u e n e s s and to allow f o r

r a t i o n a l review of t h e s e n t e n c e . W e set o u t d e f e n d a n t ' s p r i o r c r i m i n a l h i s t o r y i n t h e p r e v i o u s a p p e a l of t h i s case. See Fitzpatrick, Mont. a t , 6 0 6 P.2d a t 1360-1361, 37 S t . R e p . a t 216. By a n y s t r e t c h o f t h e i m a g i n a t i o n , h i s p a s t a c t i v i t y i s

"significant," and t h i s f i n d i n g by t h e j u d g e was c l e a r l y w i t h i n t h e bounds of t h e s t a t u t e . I t would be f r i v o l o u s t o a t t e m p t t o

d e f i n e t h a t p h r a s e i n a case s u c h a s t h i s . P e t i t i o n e r ' s argument

i s t o t a l l y w i t h o u t merit. One f u r t h e r i s s u e i n t h i s case d e s e r v e s comment, a l t h o u g h i t was n o t r a i s e d by p e t i t i o n e r o r t h e S t a t e i n t h e o r i g i n a l

proceedings. S i n c e t h e t i m e o f a r g u m e n t o f t h i s case, t h e U n i t e d S t a t e s Supreme C o u r t h a s d e c i d e d t h e case o f B u l l i n g t o n v .

Missouri (1981), U.S. , 1 0 1 S.Ct. 1 8 5 2 , 68 L.Ed.2d 270, which p e t i t i o n e r a r g u e s r e q u i r e s a r e v e r s a l of h i s d e a t h s e n t e n c e o n t h e charge of d e l i b e r a t e homicide.

I n B u l l i n g t o n , t h e d e f e n d a n t was t r i e d f o r m u r d e r , and w a s

sentenced t o l i f e imprisonment. H i s c o n v i c t i o n was l a t e r s e t

a s i d e by r e a s o n o f a Supreme C o u r t d e c i s i o n , and d e f e n d a n t was s c h e d u l e d to b e r e t r i e d o n t h e same c h a r g e . The p r o s e c u t i o n

n o t i f i e d t h e d e f e n s e t h a t t h e S t a t e would s e e k t h e d e a t h p e n a l t y . The d e f e n d a n t a r g u e d t h a t t h e d o u b l e j e o p a r d y c l a u s e o f t h e F i f t h Amendment p r e c l u d e d i m p o s i t i o n o f t h e d e a t h p e n a l t y i n a s e c o n d

t r i a l when t h e f i r s t s e n t e n c i n g j u r y had d e c l i n e d t o impose t h e death penalty. P e t i t i o n e r h e r e makes t h e same a r g u m e n t , p o i n t i n g t o t h e f a c t t h a t t h e s e n t e n c i n g j u d g e r e f u s e d to impose t h e d e a t h p e n a l t y f o r d e l i b e r a t e homicide following t h e first c o n v i c t i o n , b u t t h a t it w a s imposed o n t h a t c h a r g e a f t e r r e t r i a l . (The d e a t h

p e n a l t y was imposed f o r t h e crime o f a g g r a v a t e d k i d n a p p i n g f o l l o w i n g both trials; t h a t s e n t e n c e is n o t being challenged on t h i s p a r t i c u l a r ground. ) The U n i t e d S t a t e s Supreme C o u r t a g r e e d w i t h t h e d e f e n d a n t i n B u l l i n g t o n b e c a u s e o f t h e n a t u r e of t h e M i s s o u r i s e n t e n c i n g procedure. While r e a f f i r m i n g t h e h o l d i n g t h a t t h e double

j e o p a r d y c l a u s e "imposes no a b s o l u t e p r o h i b i t i o n a g a i n s t t h e imposition of a harsher sentence a t retrial after a defendant has

s u c c e e d e d i n h a v i n g h i s o r i g i n a l c o n v i c t i o n s e t a s i d e ," t h e C o u r t noted t h a t such a p r o h i b i t i o n does e x i s t i f t h e s e n t e n c i n g pro- c e e d i n g h a s " t h e hallmarks of t h e t r i a l on g u i l t or innocence."

Bullington, U.S. at , 101 S.Ct. a t 1857-1858, 6 8 L.Ed.2d

In a l l respects the Missouri sentencing procedure r e s e m b l e s a t r i a l on t h e q u e s t i o n of g u i l t or innocence. The S t a t e is r e q u i r e d to p r o v e beyond a r e a s o n a b l e d o u b t t h e f a c t s o n

which t h e s e n t e n c e is based. A d d i t i o n a l l y , as t h e Court noted:

" A t the statutorily-prescribed presentence hearing, c o u n s e l make o p e n i n g s t a t e m e n t s , t e s t i m o n y i s t a k e n , e v i d e n c e is i n t r o d u c e d , t h e j u r y is i n s t r u c t e d , and f i n a l a r g u m e n t s are made. The j u r y t h e n d e l i b e r a t e s a n d r e t u r n s i t s f o r m a l p u n i s h m e n t v e r d i c t . S 565.006.2 S e e n . 4, s u p r a . A l l t h e s e s t e p s were t a k e n a t pe t i t i o n e r l s presentence hearing following h i s f i r s t trial. " W e t h i n k i t n o t w i t h o u t some s i g n i f i c a n c e t h a t t h e p e r t i n e n t Missouri s t a t u t e i t s e l f speaks s p e c i f i c a l l y o f t h e p r e s e n t e n c e h e a r i n g i n terms o f a c o n t i n u i n g trial. S e c t i o n 565.006.2 s t a t e s t h a t a f t e r t h e v e r d i c t o f g u i l t y o f c a p i t a l m u r d e r is r e t u r n e d , ' t h e c o u r t s h a l l r e s u m e t h e t r i a l and c o n d u c t a p r e s e n - t e n c e h e a r i n g . ' ( ~ m p h a s i s dded. ) a Bullington, U.S. a t , 1 0 1 S.Ct. a t 1858, n. 10, 68 L . ~ d . 2 d a t 279, n.lO. F u r t h e r , t h e C o u r t found it s i g n i f i c a n t t h a t t h e sen- t e n c i n g j u r y was g i v e n b u t two c h o i c e s i n i m p o s i n g t h e s e n t e n c e f o r c a p i t a l murder: d e a t h or imprisonment w i t h o u t e l i g i b i l i t y

f o r p r o b a t i o n or p a r o l e f o r 50 y e a r s . By n o t i m p o s i n g d e a t h , t h e j u r y w a s i n e f f e c t " a c q u i t t i n g " t h e d e f e n d a n t o f w h a t was n e c e s s a r y t o impose a d e a t h s e n t e n c e , and t h e d o u b l e j e o p a r d y

c l a u s e f o r b i d s r e t r i a l o f a d e f e n d a n t who h a s b e e n a c q u i t t e d o f a crime c h a r g e d . Bullington, supra. The Montana s e n t e n c i n g p r o c e d u r e is r a d i c a l l y d i f f e r e n t from t h e p r o c e d u r e i n M i s s o u r i . Here t h e s e n t e n c i n g h e a r i n g i s

c l e a r l y s e p a r a t e from t h e t r i a l , and it i s f a r removed from a mere c o n t i n u a n c e o f t h e t r i a l o n g u i l t o r i n n o c e n c e . See s e c t i o n

46-18-301, MCA. S e n t e n c i n g is d o n e by t h e c o u r t , n o t b y a j u r y .

F a c t s f o r m i n g t h e b a s i s f o r t h e s e n t e n c e imposed d o n o t h a v e to be p r o v e d beyond a r e a s o n a b l e d o u b t . Additionally, t h e sen- t e n c i n g j u d g e , a l t h o u g h s u b j e c t t o s p e c i f i c g u i d e l i n e s i n making t h e d e c i s i o n t o impose a d e a t h s e n t e n c e , h a s w i d e r d i s c r e t i o n i n imposing a s e n t e n c e o t h e r t h a n d e a t h . S e c t i o n 46-18-305, MCA.

I n sum, w e d o n o t f i n d t h a t t h e Montana s t a t u t e s , u n l i k e t h e

M i s s o u r i s t a t u t e s , r e q u i r e t h e S t a t e to " p r o v e i t s c a s e " a s to one punishment, t h u s " a c q u i t t i n g " a d e f e n d a n t on o t h e r p o s s i b l e

punishments. Thus w e r e j e c t p e t i t i o n e r ' s a r g u m e n t t h a t h i s s e n -

t e n c e s h o u l d be v a c a t e d . Based on t h e f o r e g o i n g , w e a f f i r m t h e D i s t r i c t C o u r t

e x c e p t a s t o i t s r u l i n g on e f f e c t i v e a s s i s t a n c e of c o u n s e l . We

remand t o t h e D i s t r i c t C o u r t f o r a n e v i d e n t i a r y h e a r i n g on

p e t i t i o n e r ' s c l a i m s t h a t he had i n e f f e c t i v e a s s i s t a n c e of c o u n s e l a t t r i a l and a t s e n t e n c i n g .

Chief J u s t i c e

Justices /

Hon. W. W. L e s s l e y , D i s t r i c t Judge, s i t t i n g i n p l a c e of M r . Justice J o h n C . Sheehy

Mr. J u s t i c e D a n i e l J. Shea and M r . J u s t i c e F r a n k B. M o r r i s o n , J r .

d i s s e n t and w i l l f i l e w r i t t e n d i s s e n t s l a t e r . I N THE SUPREME COURT OF THE STATE

OF MONTANA

STATE V. FITZPATRICK

D i s s e n t of M r . J u s t i c e D a n i e l J. S h e a

DATED : OCT 3 0 1981 Mr. Justice Daniel J. Shea dissenting:

Assuming no other error, I agree with the majority that this case must be remanded to the trial court for an evidentiary hearing on the competency of counsel issue.

However, trial error requires that all three convictions be reversed and a new trial granted. Further assuming that no trial error required reversal, I am convinced that the trial court committed error with relation to imposition of the death penalty for the crimes of deliberate homicide and

aggravated kidnapping. This error would require in any event that the case be remanded to the trial court for resentencing with instructions that the trial court not consider the death penalty as one of its options. I am convinced, furthermore, that this Court has denied meaningful appellate review to

Fitzpatrick, not only with relation to the death penalty issues, but also with relation to the allegations of trial error. I emphasize from the outset, just as I emphasized in State v. Coleman (Coleman 111) (Decided August 28, 1981, 38 St.Rep. 1352), that although the majority claims to have adopted the standards set forth in Sanders v. United States (1963), 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148, for purposes of analyzing possible res judicata issues, the majority has totally failed to adhere to the three part test set out in Sanders. In one breath, the majority has adopted the test in angthe next breath the majority has ignored the test, thereby effectively rejecting the rules purportedly adopted. If Sanders means anything, it means that an appellate court must set forth the issue and apply the three-part test in deciding whether a claim is barred by res judicata. Under Sanders, we are required first to determine whether the issue was previously litigated, second, whether the issue was decided on the merits, to determine whether justice may require a reexamination of that issue. In other words, we must determine whether we want to reexamine an issue because of doubt as to whether it was properly decided. Needless to say, the majority totally ignored Sanders in Coleman 111, and on several issues raised here the majority also has totally ignored Sanders. Contrary to the majority statement, Sanders, quoted in both Coleman - and Fitzpatrick 111, does not absolutely bar 111 relitigation of previously determined issues. Rather, it bars on the them only if the issue has been previously determined - - merits, -- if the appellate court is convinced that the issue and has been properly - decided. 373 U.S. 8, 15, 83 S.Ct. 1068, 1077, 10 L.Ed.2d 148, 161. The following language of the majority opinion rejects the Sanders tests rather than adopting them as claimed: "In Coleman, supra, we approved the Sanders restrictions, holding that res judicata would apply in this State insofar as the doctrine limits relitigation of previously determined issues; but it cannotbe invoked by the State so as to deprive a litigant of the right to file a successive petition, if the petitioner has a new basis or ground for coming before the court. See Coleman, supra.. . ." (Emphasis added.) Obviously the meaning of Sanders, although purportedly adopted, has had no impact on the majority. A most casual look at the three-part test of Sanders by a first year law student would reveal that Sanders bars reconsideration of issues already decided if they have been decided on the merits and if decision on the merits was correct. The failure of this Court to properly apply the Sanders criteria in Coleman 111, and now in Fitzpatrick 111, demonstrates beyond doubt that we cannot provide meaningful appellate review to these death penalty cases. Once again it will fall upon a federal court to tell this Court that we have not even followed the rules we claimed to have adopted and followed. These death penalty cases further illustrate the vital necessity that the federal courts be the final arbiter of these issues. Too often the state courts, for reasons I do not fully comprehend, fail to grant a defendant the

full spectrum of rights to which he is entitled. PART A: THE MAJORITY HAS FAILED TO ADHERE TO SANDERS V. UNITED STATES IN FAILING TO MENTION ISSUES ALREADY DECIDED, BUT WHICH PETITIONER CLAIMS WERE ERRONEOUSLY DECIDED In his petition for post-conviction relief, and in his appellate briefs, Fitzpatrick has again raised several issues concerning the conduct of the trial, which, although already decided, he claims were erroneously decided. He contends that res judicata does not control these issues because the Due Process Clause of the Fourteenth Amendment requires greater reliability of judgments in capital cases, and that the previously adjudicated issues were decided incorrectly. Even though this Court has now committed itself to the three-part analysis of Sanders in determining whether res judicata controls an issue already decided, as in Coleman

- we have again departed from Sanders in almost the same 111, breath that we have adopted its three-part test. Nowhere does the majority opinion mention certain issues raised by Fitzpatrick that he contends were wrongly decided in Fitzpatrick

- (1980), I1 , Mont. - 606 P.2d 1343, 37 St.Rep. 194. Minimum adherence to Sanders requires that this Court at least mention the issues raised, and then determine whether they were decided on the merits, and then determine whether they were correctly decided on the merits. Specifically, Fitzpatrick contends that "the jury was improperly instructed on the State's burden of proof contrary to the ruling in Sandstrom v. Montana (1979), 442 U.S. 510, in that "hearsay evidence relied upon by the State to obtain this conviction was too unreliable to support a conviction and death sentence, i.e., the unsworn extra- judicial statements allegedly made by Gary Radi " and that other admited evidence was irrelevant and prejudicial, i.e., opinion testimonyuof the Sheriff as to the location of an allegedly hidden gun, a knife which was never connected to petitioner, a shell casing and ski mask which were never related to Petitioner." Respondent's brief, at 9-10. Fitzpatrick attacks in particular the testimony of accomplice Bushman who was permitted to testify that anothe~ co-conspirator, Gary Radi, had stated when Fitzpatrick was not present that Fitzpatrick had shot and killed Monte Dyckman. He argues that the evidence was not admissible under any Montana evidence rules because Radi, at the time the hearsay was admitted, had not provided any inconsistent testimony within the meaning of Montana Evidence Rule 801(d) (l)(A), nor was there a finding or evidence, at that point, that the statement was made during the course of and in furtherance of a conspiracy under Montana Rules of Evidence 801(d)(2)(E). Without this foundation, he contends the testimony could not be admitted. In addition, he claims that even with this foundation the testimony was inadmissible because it violated his right to confrontation. Fitzpatrick argues that the record is "void of any suggestion that the State made any effort to call witness Radi "as a witness for the State and endeavor to elicit his evidence directly from his lips under oath and in the presence of the jury." He cites Confrontation and Compulsory Process: A Unified Theory - Evidence - - Criminal Cases, 91 Harv.L.Rev. - of for

567, 577 (1978), and then contends that the State not having done so, Radi failed to testify to the underlying facts, as required by Nelson v. O'Neill (1971), 402 U.S. 622, 629, 1727, 91 S.Ct. 1723,/ 29 L.Ed.2d 222, 228. E therefore claims that Fitzpatrick "was clearly denied his right to confront witnesses guaranteed him by the Sixth Amendment to the United States Constitution." He further argues that admission of this hearsay evidence calls into question the reliability of the jury's verdict and therefore the death penalty cannot be imposed. I have doubts concerning the admissibility of accomplice

Bushman's testimony repeating what another accomplice, Gary Radi, had stated to him--namely, that Fitzpatrick had shot and killed Monte Dyckman. The reliability of Radi's alleged statement has already been commented on by this Court in Fitzpatrick - (1977), 174 Mont. 174, 569 P.2d 383: I "Radi had good reason to lie about who shst the victim. Without Fitzpatrick present5Radi might easily persuade his coconspirators that all fatal shots were fired by Fitzpatrick and thus avoid some conceived criminal culpability." State v. Fitzpatrick (1977), 569 P.2d at 392. The admissibility of Bushman's testimony concerning Radi's statement while Fitzpatrick was not present, demands a reconsideration. It is important not only with regard to its admissibility at trial but also with regard to the reliability of the verdict where the effect of the conviction has been the imposition of a death sentence. The testimony involved, one accomplice telling another accomplice what yet another accomplice did, is so inherently unreliable that a death penalty should not be imposed where such evidence has been admitted. The Due Process Clause of the Fourteenth Amendment imposes a higher standard of reliability as to the underlying conviction where a death penalty can be imposed, and the evidence admitted here does not meet that standard so as to permit a death sentence. -32- PART B: BECAUSE THE RECORD FAILS TO REVEAL WHETHER THE JURY REACHED UNANIMOUS AGREEMENT ON ANY ONE OR MORE OF THE ALTERNATIVE THEORIES OF CRIMINAL RESPONSIBILITY UNDER EACH CHARGE, FITZPATRICK MAY HAVE BEEN DENIED HIS RIGHT TO A UNANIMOUS VERDICT (1) In General, The Same Kind of Problems Exist Here as Exist in Coleman - 111: Fitzpatrick was charged with and convicted of count deliberate homicide, count 11, aggravated kidnapping, and count 111, robbery. The unanimous verdict issue raised here is much like the unanimous verdict issue raised in Coleman

- 38 St.Rep. 1352, in which I wrote a lengthy dissent. 111, Much of what I said on the unanimous verdict issue in Coleman

- applies equally here. 111 In addition, the instructions here are, like the instructions in Coleman 111, confusing and inconsistent. The general nature of the unanimous verdict issue can be stated as follows: In each of the charges involved, Fitzpatrick was charged both as a direct principal and as an aider or abettor or an accomplice. In each charge he was accused of committing the crime by several alternative statutory theories. The jury, however, was given only a general unanimity instruction covering all three charges, stating that ". . . all twelve of your number must agree in order to find any verdicts." (Instruction no. 39.) In addition, the verdict forms provided by the trial court to the jury did not require the jury to specify for each charge which of the alternative theories of criminal responsibility it applied in reaching guilty verdicts. Specifically, the jury's verdict on count I, deliberate homicide, specified only that Fitzpatrick was guilty of "Count I: Deliberate Homicide, as charged in the Information;" the jury's verdict on Count 11, Aggravated Kidnapping, specified only that Fitzpatrick was guilty of "Count 11: Aggravated Kidnapping, as charged in the 1nformation;"and finally, the jury's verdict to Count 111, robbery, specified only that Fitzpatrick was guilty of "Count 111: Robbery, as charged in the Information." Fitzpatrick claims there is no assurance that the jury reached unanimous agreement on any one or more of the alternative theories of criminal responsibility which were submitted to the jury for each of the three charges. For each conviction, Fitzpatrick claims there is no basis to determine the theory or theories which the jury used in finding guilt. He further claims that the verdicts do not indicate whether the jury found him guilty of each charge as a direct principal, or as an aider or abettor or an accomplice. Because there is no assurance of jury unanimity on each of the charges, Fitzpatrick claims he has been denied his rights to a unanimous verdict as guaranteed by Art. 11, S 26, Montana Constitution, and by the Sixth and Fourteenth Amendments to the United States Constitution. Fitzpatrick relies primarily on United States v. Gipson (5th Cir. 1977), 553 F.2d 453, and on State v. Green (Wash. 1980), 616 P.2d 628, a recent case in which the Washington Supreme Court, in a death penalty case, reversed the defendant's conviction because there was no assurance that the jury had been unanimous in reaching its verdict. Essentially the same argument was raised recently in Coleman 111, but the majority disposed of this argument summarily in part VII of its decision, not even mentioning the issue, let alone discussing it. I dissented to Coleman

- and in part I1 of my dissent, concluded that Coleman had 111 been denied his right to a unanimous jury verdict on both convictions. It is equally clear here that ~itzpatrickmay have been denied his right to a unanimous jury verdict on each conviction, and I again dissent. In part I1 of my dissent in Coleman 111, I discussed in detail the problems raised and the basic policy for resolving them in favor of the defendant. Those policy reasons apply equally here. I concluded that the State set the ambiguous verdict question in motion by not following the charging procedure set forth in section 46-11-404(1), MCA--that is, the State could have charged Fitzpatrick in separate counts by setting forth one alternative in each count. Second, the trial court contributed to the problem by not instructing the jury that its verdict must be unanimous on each of the alternative theories it might use as a basis to convict. Third, the trial court further compounded the problem by providing ambiguous verdict forms to the jury. These verdict forms do not reveal the underlying alternative theory or theories used as a basis for the guilty verdicts. These procedural problems were not caused by the defendant, they were caused by the State, and the State must bear the consequences. I cited several cases which hold that a jury must be instructed that its verdict be unanimous on one or more of the alternative theories submitted to it for its decision. State v. Golliday (1979), 78 Wash.2d 121, 137, 470 P.2d 191, 201; People v. Embree (1976), 68 Mich.App. 40, 241 N.W.2d 753; People v. Olsson (1974), 56 Mich-App. 500, 507, 224 N.W.2d 691, 693-694; People v. Thompson (1956), 144 Cal.App. 316; 2d 854, 301 P.2d 313,/State v. Bleazard (1943), 103 Utah 1002. 113, 133 P.2d lOOOJ And, of course, that is the essence of United States v. Gipson, supra. Each of these decisions state in effect that a general instruction on the unanimity requirement is insufficient. In addition, although this basic policy should apply in all criminal cases, I stated in Coleman I11 that the assur- ance of unanimity is even more essential in a case where a conviction may trigger the imposition of the death penalty. The jury must be more specifically instructed so that the trial court and appellate court know the underlying basis for the jury's conviction. In Beck v. Alabama (1980), 447 U.S. 625, 638, 100 S.Ct. 2382, 2389-2390, 65 L.Ed.2d 392, 403, (cited and quoted also in Coleman 111) the United States Supreme Court stated: "To insure that the death penalty is ... imposed on the basis of 'reason rather than caprice or emotion,' [the courts] have invalidated procedural rules that tended to diminish the reliability of the sentencing determination. The same reasoning must apply to rules that diminish the reliability of the guilt determination." And, in Andres v. United States (1948), 333 U.S. 740, 752, 68 S.Ct. 880, 886, 92 L.Ed. 1055, 1063, (also cited and quoted in Coleman 111) the United States Court sent an unequivocal message that in death cases, doubts as to jury unanimity must be resolved "in favor of the accused." Certainly the failure to properly charge, instruct, and provide clear verdict forms to the jury diminishes the reliability of a jury verdict on the unanimity question. And just as certainly, a reasonable doubt is created as to jury unanimity on one or more of the alternative theories charged. For this reason, Chapman v. California (1967), 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, requires an appellate

court to reverse the convictions. See United States v. Gipson, supra, in which the court applied the Chapman test to the unanimity question.

(2) Lack of Jury Unanimity is Only One of The Defects Caused by The Manner of Charging and Instructing the Jury: Before commencing an analysis of each charge, and the instructions applicable to each charge, I summarize several common defects which exist in relation to each crime charged. First, each charge alleges in one count several alternative methods of statutory accountability. This charging procedure violates section 46-11-404(1), MCA, which clearly specifies that alternative statements of the crime should be charged in separate counts. Undoubtedly this charging procedure contributed to the vagueness of the jury verdicts later returned, and set in motion the jury unanimity question. For a discussion of section 46-11-404(1), in relation to charging alternatively, see my dissent in Coleman 111, 38 St-Rep. 1381-1382. Second, the instructions attempting to set forth the essential facts of each charge that must be proved beyond a reasonable doubt are not only inconsistent with each charge, they are also inconsistent with each other. The effect is that the instructions not only constitute an impermissible variance from the charge, the instructions also placed the jury in a position of not knowing which instructions to follow when determining the essential elements of the crimes charged. Third, nowhere did the trial court instruct the jury that its verdict must be unanimous on any one theory of statutory accountability, and we therefore have no assurance that the jury was unanimous on one or more theories of statutory accountability. Fourth, the verdict forms provided to the jury add to the confusion because they failed to specify the underlying basis for the verdict, thereby leaving the trial court and the appellate court in the position of not knowing the alternative theory the jury applied in reaching its verdict. And fifth, the guilty verdicts for each crime charged are further suspect because substantial evidence does not support each of the alternative theories of accountability alleged for each of the crimes charged. (3) The Majority Opinion Fails to Reach The True, Underlying Issues: Before discussing the cases cited by the majority in support of its analysis, and the cases distinguished by the majority in holding against Fitzpatrick on the unanimity issue, it is necessary to place the issue in a broader perspective than what has been discussed and decided in the majority opinion. The majority opinion implies that Fitzpatrick raised the unanimity argument only in relation to the aggravated kidnapping conviction, count 11. That is not the case. In paragraph 8(e) of the petition for post-conviction relief filed in the trial court, Fitzpatrick challenges all three convictions on this ground. And, in his briefs, on appeal, Fitzpatrick raises the unanimity argument on all three convictions. Another glaring oversight in the majority opinion must be mentioned. The opinion implies that Fitzpatrick claims only a violation of the Montana Constitution (38 St.Rep. at 1458), but he has also claimed that his rights under the Sixth and Fourteenth Amendments to the United States Con- stitution were violated. In part I1 of my dissent in Coleman

- I considered the State's arguments and the trial court's 111, opinion. (38 St.Rep. at 1378.) The State has made virtually identical arguments here, and the trial court made essentially the same rulings. Therefore, what I said in Coleman I11 applies equally here. (4) The Majority Opinion Ignores the Essence of the Holdings in United States v. Gipson and in State v. Green. The essence of the majority holding, although not expressly stated, is that regardless of whether alternative theories of criminal responsibility are charged in one count, and regardless of whether the jury receives ambiguous jury verdicts, a general unanimity instruction defeats any challenge to the verdict on the ground that the jury was not in unanimous agreement on any one or more theories of criminal responsibility. This holding is unacceptable in any criminal case, and in a capital case such as this, it is unthinkable. The majority distinguishes United States v. Gipson, supra, because in Gipson, the trial judge, in response to a jury question, told the jury that it need not unanimously agree on the defendant's specific conduct. The appellate court reasoned that, in essence, the trial judge told the jurors that they could reach a guilty verdict if six of them could believe that conduct A violated the statute, and six of them could believe that conduct B violated the statute. Undoubtedly, the judge's instruction helped lead or at least could have led the jury down the wrong path. But that instruction is not the essence of the Gipson holding. Rather, the gist of the Gipson holding is that where there are alternative charges, the jury must be instructed that it must be unanimous on the theory it applies in reaching a guilty verdict. The Court held: ". . . Requiring the vote of twelve jurors to convict a defendant does little to insure that his right to a unanimous verdict is protected unless this prerequisite of jury concensus as to the defendant's course of action is also required." 553 F.2d at 458. As I stated in Coleman 111, "implicit in this ruling [the Gipson ruling] is a requirement that the trial court instruct the jury that it must reach unanimity on any theory used as a basis to find guilt." 38 St.Rep. at 1384. And, as I have already noted, several jurisdictions require such an instruction. State v. Bleazard, supra (Utah); People v. Thompson, supra (California); State v. Golliday, supra (Washington); People v. Olsson, supra (Michigan); People v. Embree, supra (Michigan). Without such an instruction, a doubt as to unanimity is raised, and any doubts as to unanimity, especially in a death case, must be resolved "in favor of the accused." Andres v. United States, supra. The majority likewise misinterprets the basic holding in State v. Green, supra, by stating that in Green, substantial evidence did not support one of the two underlying aggravated offenses, but that in Fitzpatrick, substantial evidence supports each alternative theory. I emphasize two factors. First, the majority opinion omits any discussion of the robbery charge, and of the deliberate homicide charge--a conviction which has led to a death sentence. Second, nowhere does the majority opinion analyze the evidence to support its conclusion that substantial evidence exists to support a finding of guilt on each of the alternative theories of aggravated kidnapping. In fact, as I shall later discuss in detail, in reaching its broad, bald conclusion that substantial evidence supports each of the aggravated kidnapping theories, the majority is manifestly in error. It is true that the Washington Supreme Court stated in Green that substantial evidence did not support both aggravating crimes which were submitted to the jury. However, in setting forth its holding, the Washington Supreme Court did not rely on an absence of substantial evidence on either of the two aggravating crimes submitted to the jury. Rather, the Court emphasized that the instructions and verdict forms failed to instruct the jury it must be unanimous on either or both of the underlying aggravating crimes. The Court stated: "In the instant case, the jury instructions and verdict form did not require the jury to unanimously find appellant committed or attempted to commit either first degree kidnapping or rape or both. As instructed, it was possible for the jury to have convicted Green with six jurors resting their belief of guilt upon kidnapping and the other six resting their belief upon rape. Thus, it is impossible to know whether the jury unanimously decided that the element of rape had been established beyond a reasonable doubt." 616 P.2d at 638. The basis for reversal was undoubtedly the ambiguous jury instructions and ambiguous verdict returned by the

jury. If the jury had been instructed that it must unanimously convict Green of the underlying aggravated crimes, and if the verdict had specifically stated that the jury found Green guilty of the underlying aggravated crime of rape, the conviction would have been upheld. I stated in Coleman I11 that many cases discussing the unanimous verdict requirement erroneously rely on the substantial evidence test as the vital factor in determining whether a conviction must be reversed or can still be upheld. This analysis fails to comprehend the nature of the unanimous verdict requirement That requirement has nothing to do with whether substantial evidence supports all alternative theories of criminal responsibility. In part I1 of my dissent in Coleman 111, in that section entitled, "Why The Convictions Must Be Reversed," I discuss what I believe to be the proper

basis for jury unanimity. 38 St.Rep. at 1384. That analysis applies equally to this case, and my discussion there shall constitute my discussion here. I proceed next to a discussion of the cases on which the majority relies in holding against Fitzpatrick on the unanimous verdict issue. (5) State v. Arndt; State v. Souhrada; United States v. Murray; and United States v. Natelli, Have No Application to the Unanimity Issues Raised Here. In a sweeping conclusion, the majority disposes of both the factual and legal issues raised by the unanimity question: "Moreover, a review of the transcript satisfies us, as it did the district judge, that there was substantial evidence to support all of the alternatives set forth in the instructions. See State v. Arndt (1976), 87 Wash.2d 374, 553 P.2d 1328, 1330. See also, State v. Souhrada (1949), 122 Mont. 377, 385, 204 P.2d 792, 796. There- fore we find that the requirement of unanimitx as guaranteed by the Montana Constitution,was satisfied." 38 St.Rep. at 1458. Neither of these cases support the proposition cited. In addition, as I shall later discuss, the trial transcript fails to support the broad and bald evidentiary conclusion that substantial evidence supports each alternative theory. To further buttress its position, the majority then cites two inapplicable federal cases for the proposition that a general unanimity instruction suffices where a defendant is charged with two or more alternative theories of criminal responsibility. The opinion cites United States v. Murray (2d Cir. 1980), 618 F.2d 892, and United States v. Natelli (2d Cir. 1975), 527 F.2d 311. Neither of these cases reaches the unanimous verdict questions raised here. The majority also relies on the Washington case of State v. Arndt, supra, but had it properly read and applied the holding in State v. Green, supra, it would have been apparent that Arndt has no application to the situation here. In Green, the Washington Supreme Court properly distinguished Arndt, holding that Arndt did not involve alternative theories of criminal responsibility, and therefore was inapplicable. 616 P.2d at 638. The Washington court distinguished Arndt for two reasons. First, in Arndt, all factual bases for conviction were supported by substantial evidence, but in Green the under- lying aggravated kidnapping charge was not supported by substantial evidence. 606 P.2d at 638. Second, the Court distinguished Arndt for a more basic reason, stating: "We are also precluded from relying on Arndt for a more fundamental reason. In Arndt, we considered a statute which provided that a person could be convicted of grand larceny if he or she committed welfare fraud by any one of several overlapping and often indistinguishable methods. State v. Arndt, supra, 87 Wash.2d at 375, 553 P.2d at 1328. The methods were 'closely related, connected acts which constitute[d] the single offense of fraudulently obtaining public assistance . ..' Id at 382, 553 P.2d at 1333. In the instant 7-

case, however, the alternative ways of committing aggravated murder in the first degree are themselves separate and distinct criminal offenses. In order to convict a defendant of either kidnapping or rape, the State must prove every statutory element of that crime beyond a reasonable doubt to a unanimous jury. Where, as here, the commission of a specific under- lying crime is necessary to sustain a conviction for a more serious statutory criminal offense, jury unanimity as to the underlying crime is imperative." 616 P.2d at 638. Having distinguished Arndt, the Court then determined that the jury instructions failed to inform the jury that it must unanimously agree on the underlying aggravating crime, and that the trial court failed to provide verdict forms to the jury that specified the basis for the conviction. These failures compelled a reversal of the conviction because '.' ..it is impossible to know whether the jury unanimously

decided that the element of rape had been established beyond a reasonable doubt." Green, supra, 616 P.2d at 638. Had the majority carefully read State v. Green, it would have recognized that our own case of State v. Souhrada 122 Mont. 377, 204 P.2d 792, (1.343)/does not apply to this case for essentially the same reasons that State v. Arndt did not apply in Green. Both Arndt and Souhrada involve one charge where connected acts involve a single offense. Alternative theories of criminal responsibility were not charged in either Arndt or Souhrada. Despite these obvious distinctions, the majority implies that Souhrada also involved a situation in which the defendant was charged with one crime but with alternative theories of criminal responsibility. But that was not the case--Souhrada was charged with involuntary manslaughter, and only one theory of criminal responsibility was alleged in the charge. Souhrada drove his vehicle into the rear of another vehicle on a public highway, killing three passengers in the other vehicle. The prosecutor charged Souhrada with violating section 94-2507(2), R.C.M. 1947. Although section 94- 2507(2) defined involuntary manslaughter in two ways, Souhrada was charged under only one of those theories. The statute provided : "Involuntary, in the commission of an unlawful act, not amounting to a felony; or -- in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution - circumspection." (Emphasis added.) or Souhrada was accused of causing the deaths of the three passengers in the other car by driving his car "without due caution or circumspection." Before trial started, Souhrada obtained a bill of particulars (no longer used in Montana) in which the prosecutor specified that the evidence would show that Souhrada (a) was driving his car while under the influence of alcohol, (b) that Souhrada drove his car in reckless disregard for his life and for the lives of others, and (c) that Souhrada was speeding. At the conclusion of trial, Souhrada requested

certain instructions on unanimity, based on this bill of particulars. Souhrada offered instructions that would require all twelve jurors to agree that (a) he was under the influence of alcohol, or (b) that he drove in reckless disregard for his life and the life of others, or (c) that he was speeding, or (d) that the jury unanimously agree on two or all of these allegations. In effect, Souhrada submitted instructions that required the jury to answer special interrogatories. The trial court denied these instructions. In stating that the instructions were properly refused, this Court held: ". .. It is not necessary that a jury, in order to find a verdict, should concur in a single view of the transaction disclosed by the evidence. If the conclusion may be justified upon either of two interpretations of the evidence, the verdict cannot be impeached by showing that a part of the jury proceeded upon one interpretation, and part upon the other. [Citations omitted.]" 122 Mont. at 385, 204 P.2d at 796. This decision was correct because Souhrada was charged under - statutory theory of criminal responsibility-- one driving his car "without due caution or circumspection." It would have been error to require the jury to return verdicts that would in effect be answers to special interrogatories. But the unanimous verdict question here just as in Coleman

- is wholly unlike the situation existing in Souhrada. 111, Fitzpatrick was charged with three separate crimes, but under each charge, the State alleged two or more alternative theories of criminal responsibility. I doubt very much that the members of this Court who decided Souhrada would have agreed that it controls either the Coleman I11 or the Fitzpatrick

- unanimity issue. I11 The procedural facts of Souhrada

differ from the procedural facts of Fitzpatrick, the issue raised in Souhrada differs from the issue raised in Fitzpatrick, and the result in Fitzpatrick should not be controlled by the result in Souhrada. To buttress its opinion that a general unanimity instruction is sufficient, the majority quotes from United States v. Murray, supra, 618 F.2d at 898, and Murray in turn quotes from United States v. Natelli, supra, 527 F.2d at 325. But neither Murray nor Natelli involve situations in which a defendant was charged with alternative statutory theories of criminal responsibility. Nor, of course, did Murray and Natelli involve capital offenses where assurance of jury unanimity must be even more certain. Andres v. United States, supra. In Murray, the indictment was duplicitious (charging Murray with two crimes in one count) and the jury convicted him of that count without specifying whether he was guilty of one or both offenses. The trial court had instructed the jury that it must be unanimous on any offense charged. In his appeal, the defendant raised the question of a duplicitious indictment. The decision is more than baffling because the Court, in affirming the conviction, never determined whether there was substantial evidence supporting each offense charged. The Court waffled on this point, stating: ". . . the jury unanimously found that we find no reason to doubt that/there was a conspiracy to violate - least - of the statutes, and that [the] defendant at one - - participated in that conspiracy." (Emphasis added.) . .

618 F.2d at 898. Inexplicably, the Court left unanswered whether the jury may have based its entire verdict on the other alleged statutory violation. - If so, the jury may have convicted the defendant of a statutory violation not supported by substantial evidence. In the absence of any statement by the Court in Murray that substantial evidence supported both charged statutory violations, I fail to see that Murray lends any weight to the majority position here. Further, my position stated in part I1 of my dissent in Coleman I11 also applies here. The question is not whether substantial evidence supports each alternative statutory theory of criminal responsibility, or all statutory violations charged. Rather, the question is whether the jury reached unanimous agreement on any decision it made. In Murray, the general unanimity instruction was sufficient because defendant was charged with a conspiracy to violate two separate statutes. However, the jury may have unanimously convicted him of a conspiracy based on a statutory violation not supported by substantial evidence. But the court in Murray did not discuss that problem. Even though the court in Murray inexplicably affirmed the conviction, it was nonetheless critical of the manner in which the criminal charges were filed. The court noted, among other things, that a guilty verdict in this situation fails to disclose the underlying statute which the jury determined the defendant had violated. This disclosure, furthermore, is critically important at sentencing because the judge does not know if the jury convicted the defendant of one or several statutory violations. Further, where the verdict fails to specify the basis of the conviction, a double jeopardy problem unavoidably lurks in the background. 618 F.2d at 899. Nor is United States v. Natelli, supra, support for the majority position here. In Natelli, two certified public accountants were each charged with two violations of the Securities Act. It was alleged that they made two material misrepresentations on a prospective given to potential investors, and therefore violated two sections of the act. The trial judge instructed the jury that the defendants could be convicted if they made either of the misrepresentations that were charged. The jury found both defendants guilty, but the verdicts returned by the jury failed to specify whether one or both misrepresentations had been proved as to each defendant. The appellate court affirmed the conviction as to one defendant, but reversed the conviction as to the other. The court affirmed as to one defendant because, even though the verdict was ambiguous, the evidence supported a conclusion that this defendant violated both misrepresentations. As to the other defendant, the appellate court found that the evidence was insufficient as to the defendant's involvement in making one of the misrepresentations. Because the verdict did not disclose the basis for the jury's decision, the appellate court reversed as to the defendant. As I shall later explain, the same situation exists in Fitzpatrick as to each of the verdicts returned by the jury, and the convictions must be reversed because each alternative theory charged in Fitzpatrick is not supported by substantial evidence. I further emphasize that I believe the conviction would have to be reversed even if substantial evidence did support each of the theories of criminal responsibility submitted to the jury. Even assuming that substantial evidence existed on each theory, there still is no assurance that the jury unanimously agreed on any one theory. For further discussion of my reasons, see Coleman 111, 38 St.Rep. 1382-1386. Having discussed the inapplicable authority offered by the majority to support its opinion on the unanimous verdict issue, I next proceed to a detailed analysis of all three charges, and the instructions given, and the verdicts returned on each charge. This task is made more difficult by the majority's failure to engage in any meaningful analysis of the charges, the instructions, the verdict forms, and the applicable evidence. The majority's perfunctory treatment of this issue should be unacceptable in any criminal case, but must be categorically unacceptable in any death penalty case. PART C: THE MANNER OF CHARGING ALTERNATIVELY AND THE INSTRUCTIONS AND VERDICT FORMS GIVEN TO THE JURY FOR EACH CHARGE (1) Count I: Deliberate Homicide-The Charge, The Instructions and the Verdict Form Used: Montana statutes classify criminal homicide as being either "deliberate homicide, mitigated deliberate homicide, or negligent homicide." Section 45-5-101(2), MCA. The "deliberate homicide" statute does not distinguish between a homicide committed "purposely or knowingly" (a version of the former statutory concept of premeditated murder) and a homicide committed under the felony-murder rule. Each is considered to be "deliberate homicide." Section 45-5-102, MCA. Nor does the sentencing part of this statute distinguish between "purposely or knowingly" committing a homicide, and committing a homicide under the felony-murder rule. The same punishment, including a possible death sentence, may be applied to both. Section 45-5-102(2), MCA. Fitzpatrick was charged with deliberate homicide under both theories of homicide--"purposely or knowingly" and under the felony-murder rule. In addition to this, Fitzpatrick was accused of being a direct principal or being an aider or abettor to this crime. Although the aiding and abetting statutes treats both situations the same insofar as criminal accountability is concerned (section 45-2-302 and section 45-2-303, KCA), the verdict returned by the jury does not reveal whether the jury found Fitzpatrick to be a direct principal or an aider or abettor. Nor does the verdict reveal whether the jury faund Fitzpatrick guilty of "purposely or knowingly" causing the death of Monte Dyckman, or whether the jury found him guilty under the felony-murder rule. Additional problems arise if the jury applied the

felony-murder rule to find Fitzpatrick guilty. He was charged alternatively with several statutory theories of

criminal accountability. But the verdict stating only that the defendant is guilty of "Count I, Deliberate Homicide, as charged in the Information" does not reveal the underlying felony the jury decided he was committing, had committed, or was withdrawing from. And if the jury applied the felony- murder rule, we also do not know whether the jury was unanimous on one or more of the underlying felonies. Because the jury was not instructed that its verdict must be unanimous as to any of the underlying felonies, the question is whether this Court can say with certainty that the jury was unanimous on one or more of the underlying felonies. We cannot make this determination and therefore we must, by applying the rule of Chapman v. California (1967), 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, grant Fitzpatrick a new trial. United States v. Gipson, supra.

I again &hat Fitzpatrick has attacked all three convictions for lack of assurance of a unanimous

verdict, but the majority opinion deals only with the aggravated kidnapping conviction, and even then the discussion

is Surely these capital cases merit more careful review than what this Court has given them*

I next discuss the charge of deliberate homicide--the wording of the charge as given to the jury, the instructions attempting to set forth the elements of the charge, and the jury verdict finding Fitzpatrick guilty of "Deliberate Homicide, as charged in the Information." The judge told the jury that Fitzpatrick was charged as follows: "COUNT - ONE . ". . [the defendant] committed the crime of DELIBERATE HOMICIDE, to-wit: In that [the defendant] did (a) purposely or knowingly cause, or aided, or abetted, or agreed to aid or abet, or attempted to aid or abet in purposely or -- knowingly causing the death of Monte Dyckman, . . .;or (b) caused, or aided or abetted, or aqreed to aid or abet, or attempted to aid -- o abet in causing the death of Monte Dyckman ; while an accomplice to or while engaged - - in the commission - or attempted commission of Robbery, of - a felony, or Aggravated Kidnapping, a felony, involving the use of physical force or violence, or the flight thereafter - . . ." (Emphasis added.) According to this charge, Fitzpatrick was accused under part (a) with "purposely or knowingly" causing the death of Monte Dyckman, or under part (b) with causing Monte Dyckman's death while committing or attempting to commit either robbery or aggravated kidnapping. 7 In addition to these alternative charges, Fitzpatrick is accused of being a principal or an aider or abettor to the homicide. The instructions attempting to explain this charge inform the jury that it may choose between the two theories of criminal accountability. Instruction no. 23 set forth the "purposely or knowingly" and the felony-murder choice: "A person commits the offense of deliberate homicide if: "1) He causes the death of another human being purposely or knowingly; - or "2) The death of another human being is caused while the offender is engaged in or is an accomplice in the commission of or an attempt to commit, or flight after committing or attempting to commit robbery or kidnapping." (Emphasis - added. ) In addition to setting forth the basic statutory concepts of criminal accountability, it is apparent that instruction no. 23 conflicts with the wording of the charge. The charge accuses Fitzpatrick with committing, attempting to commit, or fleeing from the crime of "aggravated kid- napping." The instruction uses only the word "kidnapping." This is not an insignificant departure, because both are distinct and separate crimes. The crime of kidnapping is provided for in section 45-5-302, MCA. The crime of aggravated kidnapping is provided for in section 45-5-303, MCA. This being a death penalty case, that departure cannot be lightly passed over. The crime of kidnapping was not explained in any instruction. Instruction no. 24, attempting to inform the jury what must be proved to find Fitzpatrick guilty of deliberate homicide, again sets out the alternative theories of criminal accountability: "1) That the defendant purposely or knowingly performed, or aided or abetted in performing, the acts causing the death - Monte Dyckman; of - or "2) That the death of Monte Dyckman was caused while the defendant was engaged in - - - or was an accomplice in the commission of, or attempted commission of, or flight after such commission - or attempted commission of, robbery or kidnapping. "If you find from your consideration of all - the evidence that one of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty of deliberate homicide. "If, on the other hand, you find from your consideration of all the evidence that neither of these propositions has been proved beyond a reasonable doubt, then you should find the defendant not guilty." (Emphasis added.) This instruction told the jury that if either part 1 - of this instruction was proved, or part 2 of this instruction was proved, the jury should find Fitzpatrick guilty of deliberate homicide. In addition, the instruction repeats the variance from the charge--the charge alleged "aggravated kidnapping," but the instruction uses the term "kidnapping." Significantly, nowhere in the instructions is "kidnapping" defined. The trial court fully emphasized the effect of the felony-murder instruction by instruction no. 38, the second to the last instruction. The trial court told the jury that it "must" convict Fitzpatrick of deliberate homicide if the jury convicted him of either robbery - aggravated kidnapping. or Instruction no. 38 stated: "You are instructed that you may find the defendant guilty or not guilty of any or all of the offenses charged, namely, Robbery, Aggravated Kidnapping, or Deliberate Homicide. "However, - - - - - defendant if you find that the committed the offense of Robbery, or aided or abetted in its commission, and t - h a t durinq the commission of that offense or his flight - thereafter, the death of Monte Dyckman was caused, ----- you must also find the defendant auiltv of deliberate homicide.

"Likewise, - - - - - if you find that the defendant committed the offense of Aggravated Kidnapping, or aided or abetted inits commission, and that during the commission of that offense or the fliqht thereafter, the death of Monte Dyckman - was caused, you must also find the defendant guilty - deliberate homicide." (Emphasis added.) of Eecause of the mandatory language of instruction no. 38, the probability is that the jury found Fitzpatrick guilty of deliberate homicide by application of the felony murder. But what underlying felony or felonies did the jury agree on in finding Fitzpatrick guilty of felony-murder? The verdict stated only that Fitzpatrick was guilty of "Count I, Deliberate Homicide, as charged in the Information." Nor can it be determined whether the jury found Fitzpatrick guilty as a direct principal or as an aider or abettor or accomplice. This factor may not be impertinent under Montana law for purposes of fixing criminal accountability, but it is extremely important in making a decision as to whether the death penalty should be imposed. Finally, although the probability is that the jury convicted Fitzpatrick of felony-murder, there is no assurance that it did so, for the instructions permitted the jury to use the "purposely or knowingly" theory. Nor was the jury instructed that its verdict must be unanimous on any theory of criminal accountability. If the jury found Fitzpatrick guilty by applying the "purposely or knowingly" theory, or if the jury found Fitzpatrick guilty by applying the felony-murder theory of criminal accountability, it cannot be determined whether the jury's verdict was unanimous on any one theory. For example, six may have voted one way, and six may have voted the other, and yet all twelve may have found him guilty of "deliberate homicide." This is one reason the conviction must be reversed. State v. Green, supra. In addition, assuming that the jury found Fitzpatrick guilty by applying the felony-murder rule, there is no assurance that all twelve jurors agreed on any one of the alternative theories in which "robbery" was charged, and there is no assurance that all twelve jurors agreed on any one of the alternative theories in which "aggravated kidnapping" was charged. If the aggravated kidnapping conviction cannot stand, and if the robbery conviction cannot stand, then the deliberate homicide conviction also must fall. Assurance of jury unanimity is required for each conviction. Further- more, aside from the jury unanimity issue, the evidence does not support each of the underlying theories of robbery or each of the underlying theories of aggravated kidnapping, and for this reason also, the deliberate homicide conviction must fall. I will discuss the sufficiency of the evidence later in my dissent. I next discuss the aggravated kidnapping charge. Count 11: Aggravated Kidnapping--The Charge, The Instructions, and the Verdict Form Used. In an attempt to keep the death penalty constitutional, Montana's criminal codes have undergone steady change in response to the death penalty decisions of the United States Supreme Court. One of those changes is that the legislature has created crimes which call for the possible imposition of the death penalty if certain statutory aggravating elements are present. This situation exists in relation to the legislature's distinction between kidnapping (section 45-5- 302, MCA), and the newly-created crime of aggravated kidnapping (section 45-5-303, MCA), under which the death penalty may be imposed. Section 45-5-302(1), MCA, states that the crime of kidnapping is committed if a person "knowingly or purposely and without lawful authority restrains another person by either secreting or holding him in a place of isolation or by using or threatening to use physical force." The penalty for kidnapping is imprisonment "for a term of not less than 2 years or more than 10 years, except as provided in 46-18- 222." Section 45-5-302 ( 2 ) , MCA. As I noted before, Fitzpatrick was charged in the deliberate homicide count with kidnapping as one of the two alternative theories under the felony-murder alternative. The deliberate homicide charge, however, did not mention the crime of aggravated kidnapping. The crime of aggravated kidnapping, increases the possible minimum and maximum sentence, and adds an element not included in the crime of kidnapping. Section 45-5-303, MCA, provides that a person is guilty of aggravated kidnapping if he commits a kidnapping with one or more of five specific purposes enumerated in the statute. Because a specific purpose is an essential element of the crime it follows that aggravated kidnapping is not proved if a specific purpose charged is not proved. The specific purposes which constitute aggravated circumstances are important also because of the added penalty. A conviction of aggravated kidnapping carries a minimum of two years and a maximum of 100 years in prison if the victim is harmed while under the control of the defendant. If the victim is released unharmed the penalty is the same as that for the crime of kidnapping. On the other

hand, if the victim is not released alive, the death penalty is one of the options. Section 45-5-303(2), MCA.

The aggravating factors which can raise the crime from that of kidnapping to that of aggravated kidnapping, are as follows: a. to hold for ransom or reward or as a shield or hostage; b. to facilitate commission of any felony or flight thereafter; c. to inflict bodily injury on or to terrorize the victim or another; d. to interfere with the performance of any governmental or political function; or e. to hold another in a condition of involuntary servitude. (Section 45-5-303 (1)(a) through (e)). (Emphasis added. ) The State charged Fitzpatrick with aggravated kidnapping under subsections b and c of this statute. Specifically, under subsection b, the State charged that when Fitzpatrick kidnapped Monte Dyckman, he had the specific purpose to commit an unspecified felony. Under subsection c, the State charged that when Fitzpatrick kidnapped Monte Dyckman, he had the specific purpose - inflict bodily injury on Monte to

Dyckman - - terrorize Monte Dyckman. or to Aside from the unanimous verdict issue, as I shall later discuss, there is no substantial issue to support a verdict that Fitzpatrick had the specific purpose in kidnapping, to inflict bodily injury on or to terrorize Monte Dyckman. Because the jury was instructed that it could find Fitzpatrick guilty of aggravated kidnapping if it found that he had the specific purpose to inflict bodily injury on or to terrorize Monte Dyckman, we cannot assume that the jury did not follow this instruction, and we cannot assume that the jury did not apply this instruction to find Fitzpatrick guilty of aggravated kidnapping. Logically, then, if there is no substantial evidence to support this theory of accountability, and there is not, the jury may have convicted Fitzpatrick based on a theory not supported by substantial evidence. This very real possibility means that not only must the aggravated kidnapping conviction be reversed, but also that the deliberate homicide conviction must be reversed. I have already discussed the fact that in finding Fitzpatrick guilty of deliberate homicide, because of the mandatory language of instruction no. 38, the jury probably applied the felony-murder rule. Because of instruction no. 38, the jury may well have used the aggravated kidnapping

felony as the underlying basis to apply the felony-murder rule. If so, as I mentioned before, the aggravated kidnapping conviction must fall because substantial evidence does not support the theory of accountability that Fitzpatrick had the specific purpose to inflict bodily injury on or to terrorize Monte Dyckman. Furthermore, if the jury applied the aggravated kidnapping felony rule in finding Fitzpatrick guilty under the felony-murder rule, the deliberate homicide conviction must fall for the same reason that the aggravated kidnapping conviction must fall--a lack of substantial evidence on one of the theories of accountability. Any appellate court, in properly applying rules of appellate review to this situation, should recognize that both convictions must be reversed. The rule is a simple one: because there is no basis in the record to determine how the jury reached its verdict, whether it based both verdicts on theories of accountability supported by sub- stantial evidence, or whether it based both verdicts on theories of accountability not supported by substantial evidence, the fact that the jury may have relied on theories not supported by substantial evidence compels a reversal. Furthermore, the fact that the death penalty may then have been imposed based on underlying convictions not supported by substantial evidence, should impel even the most calloused appellate court to reverse the convictions. I next discuss the charge of aggravated kidnapping,

as given to the jury in an instruction, the instructions attempting to define the elements of the crime, and the verdict form given to the jury and which the jury signed in returning its verdict. I discuss the substantial evidence

question in a separate section covering all three charges. Fitzpatrick was charged, and the trial court instructed the jury that Fitzpatrick was charged as follows: ". . . [the defendant] . . . did,. . . commit the crime of AGGRAVATED KIDNAPPING, to-wit: In that [the defendant] did purposely or knowingly and without lawful authority, restrain, or aided, or abetted, or agreed to aid or abet, or attempted to aid or abet in restraining, Monte Dyckman, by using or threatening to use, or aiding or abetting or agreeing to aid or abet, or attempting to aid or abet in using or threatening to use physical force with- purpose of (a) - the -a facilitating the commission of - felonyor flight thereafter; or (b) causing bodily injury to Monte Dyckman or terrorizing said Monte Dyckman,. . ." (~mphasisadded.) According to this charge, the State was requir~dto prove beyond a reasonable doubt that Fitzpatrick, in kidnapping Monte Dyckman, had the specific purpose (a) of committing - a felony (an unspecified felony) or (b) that he had the specific purpose of causing bodily injury to or of terrorizing Monte Dyckman. The State was required to prove not only a kidnapping, but that Fitzpatrick had one or both specific purposes in mind when he accomplished the kidnapping. In addition to the alternative charges, Fitzpatrick was charged both as a direct principal and as aiding or abetting or being an accomplice. The jury verdict stated only that Fitzpatrick was guilty of "Count 11: Aggravated Kidnapping, as charged in the Information." This verdict fails to reveal the theory of accountability used as a basis to reach a guilty verdict. Did the jury find that in committing a kidnapping (never defined for the jury) Fitzpatrick had purpose (a) in mind, or that he had purpose (b) in mind, or that he had both purposes in mind? Nor was the jury ever instructed that its verdict must be unanimous as to (a) or unanimous as to (b), and unanimous as to both (a) and (b). For all we know, six jurors may have reached their decision by application of theory (a) and six jurors may have reached their decision ty application of theory (b), thereby depriving Fitzpatrick of a unanimous verdict. State v. Green, supra. Nor can we tell from the verdict whether the jury found Fitzpatrick guilty as being a direct principal, or whether the jury found him guilty as being an aider or abettor, or an accomplice. This fact may not be important under Montana law to determine accountability for a crime (sections 45-3- 302 and 45-2-303, MCA), but it is certainly important for purposes of determining the sentence. The jury instructions attempting to set forth the elements of aggravated kidnapping served only to add to the confusion. Rather than confine the jury's options to the specific purposes in the charge itself, the instructions expand the options beyond those contained in the charge. And

the instructions are inconsistent. Instructions no. 25 and 26 attempted to set out the essential elements to be proved. The purpose of the instructions

was apparently to set forth the definition of aggravated kidnapping as it applied to the actual charge. Instruction

no. 25 stated:

"A person commits the offense of aggravated kidnapping if he knowingly or purposely and without lawful authority restrains another person by either using or threatening to use physical force with any of the following purposes: "(1) To facilitate commission of - - - any felony of the flight thereafter; or "(2) To inflict bodily injury on or to terrorize the victim." (Emphasis added.) This instruction, as well as the charge itself, allowed the jury to decide if Fitzpatrick had the purpose, in

kidnapping Monte Dyckman, to commit any felony. An open- ended charge and jury instruction is impermissible. In , dissent in State v. Sunday (1980), - Mont. - 609 P.2d at 1201, 37 St.Rep. 561, at 572D, I registered my objections to such open-ended charges and instructions. The obvious reason for the statute containing the language "any felony," is to permit the prosecution to select the particular felony which it believes appropriate to the facts of the case. An not open-ended charge such as that filed here shoulvbe permitted in any criminal case, but its use is especially objectionable where a conviction may lead to the imposition of the death penalty. The next instruction (instruction no. 2 6 ) , in setting forth the elements of the offense and the alternatives to the jury, further adds to the confusion. Instruction no. 26 states: "To sustain the charge of aggravated kidnapping, the State must prove the following propositions: "First: That the defendant knowingly or purposely restrained or aided or abetted in restraining Monte Dyckman by using or threatening to use or aiding or abetting in using or threatening to use physical force; and "Second: That the defendant had the purpose in so acting to facilitate, or to aid or abet in facilitating, the commission of the crime of robbery, or the flight thereafter, or to inflict or to aid or abet in inflicting bodily injury upon Monte Dyckman or terrorizing Monte Dyckman, and "Third: That in do [sic] doing the defendant acted without lawful authority. "If you find from your consideration of all the evidence that each of these propositions, has been proved beyond a reasonable doubt, then you should find the defendant guilty. "If, on the other hand, you find from your consideration of all the evidence that any of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty." (Emphasis added.) This instruction permitted the jury to find Fitzpatrick guilty of aggravated kidnapping if he knowingly or purposely restrained Monte Dyckman for the specific purpose of robbing Monte Dyckman or for the specific purpose of inflicting bodily injury on or of terrorizing Monte Dyckman. Assuming that the jury followed this instruction rather than instruction no. 25 (for they are inconsistent), the question arises as to whether the jury decided that Fitzpatrick had the specific purpose of robbing Monte Dyckman or the specific purpose of inflicting bodily injury on or of terrorizing Monte Dyckman. The answer is not revealed in the record. Although a specific purpose to commit robbery is supported by substantial evidence--if the testimony of accomplice Joseph Bushman can be accepted, the robbery conviction itself has several defects because of procedural irregularities and the failure of all alternative theories under the robbery charge to be supported by substantial evidence. I shall discuss these defects later. On the other hand, as I shall also later discuss, the specific purpose to inflict bodily injury or to terrorize Monte Dyckman is not supported by substantial evidence. Because the jury verdict does not reveal which theory the jury applied in finding Fitzpatrick guilty of aggravated kidnapping, the conviction must be reversed because of the possibility that that the jury may have reached its verdict by applying an aggravating factor unsupported by substantial evidence. Reversal is also required because the jury was not instructed that its verdict must be unanimous on one or more of the aggravating theories of accountability which elevate the crime from that of kidnapping to that of aggravated kidnapping. Six jurors could have applied one theory of accountability in reaching their conclusion that Fitzpatrick was guilty, and the other six jurors could have applied another theory of accountability in reaching their conclusion that Fitzpatrick was guilty, and yet all could have agreed that Fitzpatrick was guilty of aggravates kidnapping. This possibility exists independent of the question whether substantial evidence supports each of the theories of accountability submitted to the jury. If such is the case, and the record does not tell an appellate court other- wise, Fitzpatrick was deprived of a unanimous jury verdict. Add to this situation the fact that the death penalty has been imposed for the crime of aggravated kidnapping, and reversal is not only indicated by application of fundamental rules of appellate review, reversal is mandated. Andres v. United States, supra; State v. Green, supra. I next discuss the robbery conviction--Count 111. This charge must not only be analyzed in its own context, but also in bhe context of its effect on the charge and conviction of deliberate homicide, and the charge and conviction of aggravated kidnapping. All of these issues are intertwined because of the specific language of the charges and the specific language of the instructions. The validity of each conviction depends upon the validity of the other con- victions, a classic example of the dominoes theory as applied to alternative criminal charges. (3) Count 111-Robbery-The Charge, the Jury Instructions, and the Verdict Form Used. I emphasize again that the majority has omitted discussion of the robbery conviction on the issue of the unanimous verdict requirement and the sufficiency of'the evidence question, even though Fitzpatrick raised the issue both in trial court and before this Court. I first summarize why the robbery conviction must be reversed. First, substantial evidence does not exist on each of the aggravating factors charged in the information, and because an appellate court cannot determine which aggravating factor the jury applied in reaching its verdict, the conviction must be reversed. Second, the instructions attemptinq to set forth and define the essential facts for the crime of robbery, are inconsistent with the charge and inconsistent with each'other. Third, the instructions expand the scope of the charge to include a possible verdict based on a violation of section 45-5-401(c), MCA, an aggravating factor not charged in the information. Fourth, the jury was not instructed that its verdict must be unanimous on any one aggravating factor (essential fact) required to elevate the crime from that of theft to that of robbery, and therefore Fitzpatrick was deprived of the assurance of a unanimous jury verdict. Any one of these four defects is sufficient to reverse the robbery conviction and grant a new trial, and any appellate court having a sense of its function should have no hesitation in reversing the conviction and granting a new trial. Add

to this the fact that the robbery conviction may have been the underlying basis for the jury's guilty verdict on the charge of deliberate homicide, a verdict which led to the imposition of the death penalty, and even the most insensitive appellate court would recognize that the conviction cannot stand. The Montana robbery statute sets forth several aggravating factors by which the crime of theft is elevated to the crime of robbery. Section 45-5-401, MCA provides: "(1) A person commits the offense of robbery if in the course of committing a theft he: " (a) inflicts bodily injury upon another; " (b) threatens to inflict bodily injury upon any person or purposely or knowingly puts any person in fear of immediate bodily injury; or "(c) commits or threatens to commit any felony other than theft." This statute further provides that a robbery conviction will result in a prison term of "not less than 2 years nor more than 40 years, except as provided in 46-18-22 [not . here pertinent] " The State charged Fitzpatrick with robbery under this statute, and alleged that he violated sections 45-1-401(1) (a) and (b). Count I11 charged, and the jury was instructed (instruction no. 2) that Fitzpatrick was charged in the following language: "COUNT THREE ". . . [the defendant] did,. . . commit the crime of ROBBERY, to-wit: In that [the defendant] (a) did, while in the course of committing, or aiding, or abetting, or agreeing to aid or abet, or attempting to aid or abet in committing a theft . . . inflicted, or aided, or abetted, or agreed to aid or abet, or attempted to aid or abet in inflicting bodily injuky upon ~ o h t eDyckman, or (b) did, while in the course of committing, or aiding, or abetting, or agreeing to aid or abet, or attempting to aid or abet in committing, a theft . . . threatened to inflict bodily injury upon Monte Dyckman or purposely or knowingly put Monte Dyckman - - -of immediate in fear bodily injury, or aided, or abetted, or agreed to aid or abet, or attempted to aid or abet in threatening - inflict bodily injury upon Monte Dyckman, or to p u r r n o r koiu nw-t Monte Dyckman - - in fear of immediate bodily injury - .. ." (Emphasis added.) Fitzpatrick was accused of committing robbery based on two of the statute's three aggravating factors. First, he was accused of inflicting bodily injuries on Monte Dyckman in the course of committing a theft, a violation of subsection (a). Second, he was accused of threatening to inflict bodily harm or putting Monte Dyckman in fear of immediate bodily injury, a violation of subsection (b) of the statute. To convict Fitzpatrick of robbery, the State was required to prove at least one of these two aggravating factors. I emphasize here that this charge did not accuse

Fitzpatrick of committing the aggravating factor listed in subsection (c) of the statute. As it turns out, however, the instructions to the jury also gave the jury the option -65- of determining whether Fitzpatrick violated subsection (c). The addition of a third aggravating factor, not contained in the charge, is an impermissible variance, and the robbery conviction should be reversed for this reason alone. As applied to the robbery charge filed, the instruction set forth the essential elements of the crime: "A person commits the offense of robbery if, in the course of committing a theft, he: "1) Inflicts or aids in inflicting bodily injury upon another; or -

"2) Commits or aids or abets in committing any felony, other -- than theft. "The phrase 'in the course of committing a theft' as used in this section includes acts which occur in the commission of the theft or in the flight after the commission of the theft. " (Emphasis added. ) This instruction is inconsistent with the charge in several ways. First, subsection (2) of the instruction adds an aggravating factor not charged in the information. By stating that the jury could convict if it found that Fitzpatrick while committing a theft, had committed any felony other than theft, the instruction went beyond the aggravating factors or essential elements charged in the information. Application of fundamental rules of criminal procedure requires a holding that this is an impermissible variance. And because the death penalty is the underlying issue, such a variance is unjustified under any theory of appellate review that has fundamental due process as its core. In addition, the instruction is open-ended because it permits a conviction if the jury found that in the course of committing a theft, Fitzpatrick had committed "any felony, other than theft." Without specification of the underlying felony committed in the course of committing a theft, the way is left for the jury to speculate on virtually any felony that it believes may have been committed, regardless of the evidence, and regardless of any instructions defining the felonies. So if the jury found Fitzpatrick guilty by application of this aggravating factor, what felony did the jury decide that Fitzpatrick committed? Deliberate homicide? Or aggravated kidnapping? Or a felony not even mentioned in the charges nor defined in the instruction? The inconsistency between the robbery charge and instruction no. 21 raises the question of which instruction the jury followed in reaching its verdict. Did the jury rely only on the language of the charge, or did the jury instead follow the inconsistent directions of instruction no. 21? Because the instructions are inconsistent, the jury obviously could not have followed both of them. This inconsistency is compounded even more by instruction no. 22, which adds to the defects already existing: "To sustain a charge of robbery, the State must prove that the defendant, during the c m s e of committing or aiding or abetting in committing, a theft, either: "First: Inflicted, or aided or abetted in inflicting, bodily injury upon Monte Dyckman,

"Second: Threatened or aided or abetted in threatening to inflict bodily injury upon Monte ~ y c k m a K o r -- purposely or knowingly put, or aided or abetted in putting Monte Dyckman - - -of immediate bodily injury, - in fear or "Third: Committed or aided or abetted in committing any felony -- theft. other than "In the course of committing a theft as used here includes acts which occur in an attempt to commit or in the commission of theft or in flight after the attempt or commission. "If you find from your consideration of all the evidence that - of these propositions any has been proved beyond a reasonable doubt, then you should find the defendant guilty of robbery. " I f , on t h e o t h e r hand, you f i n d from your c o n s i d e r a t i o n of a l l t h e e v i d e n c e t h a t none of t h e s e p r o p o s i t i o n s h a s been proved beyond a r e a s o n a b l e d o u b t , t h e n you s h o u l d f i n d t h e defendant not g u i l t y . " (Emphasis a d d e d . )

This i n s t r u c t i o n i s n e i t h e r c o n s i s t e n t with t h e charge

s t a t e d i n c o u n t I11 ( i n s t r u c t i o n no. 2 ) , n o r w i t h i n s t r u c t i o n

no. 2 1 . I t r e p e a t s t h e d e f e c t o f i n s t r u c t i o n no. 21 by

adding an aggravating f a c t o r n o t charged i n t h e information.

Under t h i s i n s t r u c t i o n t h e j u r y was a g a i n p e r m i t t e d t o

c o n v i c t F i t z p a t r i c k o f r o b b e r y i f i n t h e p r o c e s s of

committing a t h e f t t h e j u r y found t h a t he committed "'any f e l o n - y

o t h e r than t h e f t . " T h a t i s t h e l a n g u a g e of s u b s e c t i o n ( c )

of s e c t i o n 45-5-401(1), and F i t z p a t r i c k was n o t c h a r g e d w i t h

t h i s aggravating f a c t o r . Furthermore, t h i s p a r t of t h e

i n s t r u c t i o n i s open-ended a s t o t h e f e l o n y which F i t z p a t r i c k

i s a l l e g e d t o have committed.

Because t h e j u r y , i n r e a c h i n g i t s v e r d i c t on t h e

r o b b e r y c h a r g e , was g i v e n t h e open-ended o p t i o n o f d e c i d i n g

t h a t F i t z p a t r i c k committed "any o t h e r f e l o n y other than

theft," an a p p e l l a t e c o u r t c a n n o t assume t h a t t h e j u r y d i d

n o t a p p l y t h i s t h e o r y i n f i n d i n g him g u i l t y . I f t h e jury

a p p l i e d t h e d e l i b e r a t e homicide f e l o n y i n f i n d i n g Fitzpatrick

g u i l t y of r o b b e r y , t h e r o b b e r y c o n v i c t i o n must f a l l i f t h e

d e l i b e r a t e homicide c o n v i c t i o n must f a l l . And I have a l r e a d y

s e t f o r t h i n t h i s d i s s e n t why t h e d e l i b e r a t e homicide con-

v i c t i o n must f a l l . The same i s t r u e of t h e a g g r a v a t e d

kidnapping charge. I f t h e jury applied t h e aggravated

kidnapping felony i n f i n d i n g F i t z p a t r i c k g u i l t y of robbery,

t h e r o b b e r y c o n v i c t i o n must f a l l i f t h e a g g r a v a t e d k i d n a p p i n g

c o n v i c t i o n must f a l l . I have a l s o s t a t e d why t h e a g g r a v a t e d

k i d n a p p i n g c h a r g e must f a l l .

Beyond t h i s , t h e r e i s , of c o u r s e , t h e chance t h a t t h e

j u r y , b e c a u s e of t h e open-ended l a n g u a g e of t h e i n s t r u c t i o n s - -- "any other felony . . ."--simply decided that Fitzpatrick committed some other unspecified and undefined felony, and so found him guilty of robbery. If so, the robbery conviction is defective because there is no way to determine from the record just what felony the jury concluded he committed, nor is there any way of knowing if the jury properly applied the law defining that felony, since that felony was never defined. The robbery conviction must also be reversed because the jury was not instructed that its verdict must be unanimous on one or more of the essential facts which elevate the crime from that of theft to that of robbery. For example, six jurors could have decided upon one theory of accountability and six jurors could have decided on another theory of account- ability, and still all jurors could have agreed that Fitzpatrick was guilty of aggravated kidnapping. Aside from the failure of substantial evidence to support each of the theories of accountability, the fact remains that all twelve jurors may not have applied the same theory of accountability in reaching the guilty verdict. If that is so, Fitzpatrick was deprived of a unanimous jury verdict. A reversal is especially mandated because of the effect that the robbery

conviction may have had on the deliberate homicide and aggravated kidnapping convictions, both of which convictions

led to the imposition of the death penalty. I turn now to the question of whether substantial evidence

exists to uphold all three convictions--aggravated kidnapping, deliberate homicide, and robbery. Because each charge was given to the jury under several alternative theories of accountability, I discuss each of these theories as it relates .to the charges filed. PART D-- P O T ALL THEORIES OF ACCOUNTABILITY FOR EACH CHARGE ARE SUPPORTED BY SUBSTANTIAL EVIDENCE In virtually the same breath as the majority cited inapplicable cases for the proposition that a jury need not be instructed that its verdict must be unanimous on any theory of accountability applied in reaching a guilty verdict, the majority declared, without analysis of the evidence, that substantial evidence supports each of the alternative theories of accountability submitted to the jury on the charge of - aggravated kidnapping. I again emphasize that the majority opinion covers only the charge of aggravated kidnapping, although Fitzpatrick has raised the unanimous jury v.erdict issue on all three convict In relying in part on the review of the record under- taken by the trial court, the majority notes that the trial court found substantial evidence to support each of the alternative theories of accountability submitted to the jury. But the trial court's analysis is as inadequate as the majority's analysis, for it too entered only a bald all- encompassing conclusion. After accepting the State's analysis of why the cases cited by Fitzpatrick were inapplicable (essentially on the same basis discussed in the majority opinion), the trial court, in the last paragraph of its opinion on the unanimous verdict issue, made the following all-encompassing conclusion: "In petitioner's case, substantial evidence exists to support each alternative which was contained in the jury instructions. The petitioner, was, there- fore, not denied the right to a unanimous jury verdict. " That is the totality of the trial court's analysis of the evidence. This conclusion provides no basis to determine whether the trial court analyzed, in light of the trial evidence, each a l t e r n a t i v e theory submitted t o t h e jury

f o r each charge. This decision, together with t h e

m a j o r i t y o p i n i o n , f a l l s f a r s h o r t o f t h e s t a n d a r d o f mandatory

r e v i e w t h a t t h e United S t a t e s Supreme C o u r t h a s d i r e c t e d

must b e u n d e r t a k e n i n a l l d e a t h p e n a l t y c a s e s . Mandatory

r e v i e w i s a sham i f a l l - i n c l u s i v e c o n c l u s i o n s can be

s u b s t i t u t e d f o r t h e p a i n s t a k i n g r e v i e w and a n a l y s i s r e q u i r e d

i n a l l death penalty cases.

THE SUBSTANTIAL EVIDENCE QUESTION

The m a j o r i t y o p i n i o n b o l d l y s t a t e s t h a t t h e e v i d e n t i a r y

r e c o r d h a s been reviewed and t h a t s u b s t a n t i a l e v i d e n c e

e x i s t s on e a c h of t h e a l t e r n a t i v e t h e o r i e s s u b m i t t e d t o t h e

jury. I t a k e i s s u e with both t h e s e a s s e r t i o n s .

When t h i s c a s e was a p p e a l e d from t h e D i s t r i c t C o u r t

f o r t h e t h i r d t i m e , t h e D i s t r i c t Court c l e r k d i d not send

t h e t r i a l t r a n s c r i p t t o t h i s C o u r t , and t h i s C o u r t d o e s n o t

have a t r a n s c r i p t o f t h e second t r i a l a n f i l e from t h e

previous F i t z p a t r i c k -appeal. I1 An e v i d e n t i a r y r e c o r d i s

o n f i l e i n t h e a r c h i v e s of t h e H i s t o r i c a l S o c i e t y , b u t a s

f a r a s I know, no one from t h i s C o u r t h a s gone t o t h e S o c i e t y

t o r e v i e w t h e r e c o r d o r t o check it o u t f o r p u r p o s e s o f

review.

On t h e o t h e r hand, a l t h o u g h I d i d n o t p e r s o n a l l y r e v i e w

t h e record, I d i d d e l e g a t e a l a w c l e r k t o review t h e

e v i d e n t i a r y r e c o r d a t t h e H i s t o r i c a l S o c i e t y , and h e

s p e n t many, many h o u r s t h e r e d o i n g j u s t t h a t . I t i s on a

b a s i s of h i s r e v i e w and m d i s c u s s i o n w i t h him c o n c e r n i n g y

t h e e v i d e n c e i n t h e r e c o r d , t h a t I am a b l e t o d e c l a r e t h a t

s u b s t a n t i a l e v i d e n c e d o e s n o t e x i s t on e a c h of t h e t h e o r i e s

of a c c o u n t a b i l i t y s u b m i t t e d t o t h e j u r y i n r e l a t i o n t o a l l

t h r e e c h a r g e s , n o t j u s t t h e a g g r a v a t e d k i d n a p p i n g c h a r g e which is the only charge the majority claims to have reviewed. This is yet another reason all three convictions must be reversed and a new trial ordered, and I next set forth my views of the evidence relating to each charge. AGGRAVATED KIDNAPPING--SUBSTANTIAL EVIDENCE DOES NOT SUPPORT EACH OF THE THEORIES OF ACCOUNTABILITY SUBMITTED TO THE JURY Because the majority opinion is confined to the aggravated kidnapping conviction, I first discuss the evidence in relation to this charge. One of the aggravating theories of accountability charged in the information, was that Fitzpatrick, in kidnapping Monte Dyckman, had the specific purpose to cause bodily injury to or to terrorize Monte Dyckman. The evidence does not support a conclusion that Fitzpatrick had either purpose in mind when the robbery was planned or when Dyckman was taken from the bank at Hardin just before he made the deposit of Safeway Store receipts. An appellate court cannot determine from the record whether the jury applied the theory of accountability or some other theory of accountability, and for this reason, based on well-recognized principles of appellate review, a reversal is mandated because of the possibility that the jury applied a theory not supported by substantial evidence. The principal evidence relied on by the State, the testimony of accomplice Joseph Bushman, who had been granted complete immunity in exchange for his testimony, revealed that neither a homicide nor even bodily harm was contemplated as part of the robbery plan. Furthermore, Bushman testified that although he was not present when Dyckman was killed, accomplice R a d i had later made the statement that1 Fitzpatrick shot and killed Dyckman, and that all of the accomplices present expressed surprise on hearing what happened. Nor did accomplice Bushman testify that the participants in the robbery plan had the specified purpose to cause bodily harm to or terrorize the intended victim of the robbery. And Bushman's uncontradicted testimony that the robbery planners and participants expressed complete surprise at what happened indicates that none of them had the specific purpose to inflict bodily harm or to terrorize the intended victim of the robbery. They were interested only in obtaining money from the person who was in charge of carrying the Safeway receipts to the bank. Nor is there circumstantial evidence from which it can be inferred that Fitzpatrick had the specific purpose in mind to inflict bodily harm or terrorize the intended robbery victim. In fact, the trial court, at the conclusion of the sentencing hearing, expressly found that Fitzpatrick's decision to kill Monte Dyckman was not planned, but rather that it was an instanteous, on-the-spot decision. (See my dissent in (19801, 11 1 , Fitzpatrick - - Mont. - 606 P.2d at 1379, where I discuss this finding in relation to an issue bearing on a death penalty issue.) A reviewing court properly fulfilling its function, must recognize the possibility that the jury applied this theory of accountability in finding Fitzpatrick guilty of aggravated kidnapping. That is so because there is no

way of telling from the record that the jury did not apply this theory of accountability. The possibility of a verdict based on a theory not supported by substantial evidence, compels a reversal. The fact that a death penalty has been imposed as a result of this conviction is still a more compelling reason for reversal. Andres v. United States, supra. Nor can an appellate court ignore the fact that the jury was given an open-ended instruction which permitted it to find Fitzpatrick guilty if it found that in accomplish- ing a kidnapping, Fitzpatrick had the specific purpose to commit "any felony." The jury may have relied on a felony neither specified in the charge nor defined in the instructions, and therefore appellate review to determine the existence of substantial evidence on the theory of accountability, is impossible. The possibility of jury reliance on this theory of accountability is still another reason for reversal. DELIBERATE HOMICIDE--SUBSTANTIAL EVIDENCE DOES NOT SUPPORT EACH OF THE THEORIES OF ACCOUNTABILITY SUBMITTED TO THE JURY As previously stated, the deliberate homicide charge was submitted to the jury under two basic theories: that Fitzpatrick had "purposely or knowingly" killed Monte Dyckman, or that Fitzpatrick had killed Monte Dyckman while committing another felony (the felony-murder rule). As I have also explained, the probability is that because of the mandate of instruction no. 38, the jury convicted Fitzpatrick by application of the felony-murder rule. However, not all theories of accountability submitted to the jury under the felony-murder rule are supported by substantial evidence. The possibility therefore exists that the jury found Fitzpatrick guilty by application of an underlying felony that was not supported by substantial evidence. This possibility is yet another reason for reversal of the deliberate homicide conviction. First, under the felony-murder rule, the jury may have relied on aggravated kidnapping as the underlying felony involved. 1 f so, the deliberate homicide conviction cannot ' stand for the same reasons that I have concluded the aggravated kidnapping conviction cannot stand. Second, as I have also explained in discussing the robbery charge, the jury may have relied on robbery as the underlying felony in applying the felony-murder rule to find Fitzpatrick guilty of deliberate homicide. But assuming a jury relied on robbery as the underlying felony, the deliberate homicide conviction can be upheld only if all robbery theories of accountability are supported by substantial evidence. As I explain next, not all robbery theories of accountability are supported by substantial evidence. Therefore a deliberate homicide conviction based on robbery as the underlying felony for application of the felony-murder rule, must be reversed because of the possibility that the jury relied on a robbery theory of accountability not supported by substantial evidence. DELIBERATE HOMICIDE--LACK OF SUBSTANTIAL EVIDENCE One theory of accountability under the robbery charge (11, MCA) , (subsection (a) of section 45-5-401/ was that in the course of committing a theft, Fitzpatrick - inflicted bodily injury on Monte Dyckman. The obvious intent of subsection (1) (a) is to elevate theft to robbery if bodily injuries are inflicted by a defendant in the course of committing a theft. But it is more than a little incongruous to hold that gunshot wounds which result in instantaneous death are nonetheless bodily injuries within the meaning of subsection (a). Further, subsection (c) of section 45-5- (1) MCA, 401/is the appropriate theory of accountability under the facts of this case. This subsection provides that a theft is elevated to robbery if, in the course of committing the theft, the defendant commits "any felony -- theft." other than (Emphasis added.) The appropriate charge, therefore, would have been an allegation that Fitzpatrick, in the course of committing a theft, committed a homicide. Subsection (c) exists precisely to cover a factual situation such as exists in this case.

Fitzpatrick did not, then, within the meaning of (1) MCA, subsection (a) of section 45-5-401/ inflict bodily injuries upon Monte Dyckman. This subsection does not transform a theft into a robbery where application of lethal force results in instantaneous death. Fitzpatrick was not properly charged under subsection (a) and because no substantial evidence exists to support a conviction on this basis, the deliberate homicide conviction must be reversed. Even assuming, however, that subsection (a) can be constitutionally applied to the facts of this case, two more defects exist with relation to the theories of accountability submitted to the jury under subsections (1) (a) and (c) which would require reversal of the robbery conviction in any event. Under subsection (b) of section 45-5-401(1) , MCA, it was charged that Fitzpatrick, in the course of committing a theft, "threatened to inflict harm" on Monte Dyckman or that he put Monte Dyckman in "fear of immediate bodily injury." The record is barren of any words spoken by Fitzpatrick or any conduct of Fitzpatrick which shows that he threatened to inflict harm on Monte Dyckman. And the record is also barren of any evidence that Monte Dyckman was placed in "fear of immediate bodily injury." No witness testified that Dyckman was in "fear of immediate bodily injury." And no witness testified to any words uttered by Monte Dyckman or to any conduct of Monte Dyckman that would indicate he was in "fear of immediate bodily injury." A conclusion can be justified only by an impermissible assumption that anyone who is taken away in a car is in "fear of immediate bodily injury." Substantial evidence to convict by application of subsection (b) of the robbery statute, does not exist. Because an appellate court cannot determine whether the jury applied this theory in finding Fitzpatrick guilty of deliberate homicide under the felony- murder rule, the possibility that the jury did so compels a reversal. Finally, if the jury applied subsection (c) of section 45-5-401 in deciding upon an underlying felony to apply under the felony-murder rule, several defects exist. As I explained earlier, the chances are that the jury found Fitzpatrick guilty under the felony-murder rule because of the mandatory language of instruction no. 38. As I also explained earlier in this dissent, Fitzpatrick was not charged with accountability under subsection (c) of the robbery statute, but the jury was nonetheless instructed that it could reach a verdict based on its conclusion that Fitzpatrick, in committing a theft, also committed "any -

felony other than theft." (Instruction no. 22, supra.) This open-ended instruction, neither limiting the felonies involved nor defining the felonies involved, makes it impossible for an appellate court to determine the felony the jury agreed on as constituting the underlying felony to convict of robbery. Did the jury decide that Fitzpatrick, in the course of committing a theft, committed some other nonspecified and nondefined felony? If so, there is no practical way an appellate court can review a substantial evidence question, and reversal of the robbery conviction is not only required,so is reversal of the deliberate homicide conviction. Assuming, on the other hand, that the jury, in convicting Fitzpatrick of robbery under subsection (c), relied on aggravated kidnapping as the underlying felony, the robbery conviction can stand only if the evidence was sufficient on each of the theories of aggravated kidnapping submitted to the jury. But that is not the case. As I explained in discussing the aggravated kidnapping conviction, substantial evidence does not support all theories of accountability submitted to the jury on this charge. In fact, substantial evidence is lacking on two of the three theories submitted to the jury. This has a direct effect on the robbery conviction. The robbery conviction cannot stand because the jury may have relied on subsection (c) of the robbery statute ("any felony other than theft") in that the underlying felony was that of aggravated kidnapping. The possibility exists then, that in finding Fitzpatrick guilty of robbery, the jury relied on one or both of the aggravating theories of accountability for the crime of aggravated kidnapping which were not supported by substantial evidence. The defect in the aggravated kidnapping evidence affects the validity of the robbery conviction, which in turn affects the validity of the deliberate homicide conviction based on application of the felony-murder rule. It is clear therefore that the deliberate homicide conviction cannot be upheld if the jury reached its verdict by application of the felony-murder rule. The deliberate homicide conviction can only be upheld if the record revealed that the jury convicted Fitzpatrick based on application of the "purposely or knowingly" theory rather than the felony- murder rule. Not only is it impossible to determine that the jury did this, the probability is that the jury, because of the mandatory language of instruction no. 38, applied the felony-murder rule in convicting Fitzpatrick of deliberate homicide. General and well-recognized rules of appellate procedure require that the deliberate homicide conviction be reversed. The second robbery theory of accountability charged is the allegatbn that Fitzpatrick, while in the course of committing a theft, threatened to inflict bodily harm on Monte Dyckman or that Monte Dyckman was placed in fear of immediate bodily injury. Section 45-5-401 (1)(b), ?"ICA. -1 have also discussed the evidence on this theory while analyzing the deliberate homicide conviction, and I concluded that substantial evidence does not support this theory of commission. Again, because the jury may have relied on this theory of accountability in reaching its verdict, the robbery conviction must be reversed. The third theory of accountability, not charged, but nonetheless submitted to the jury in the instructions, is an allegation that Fitzpatrick, while in the course of committing a theft, committed "any felony other than theft." See section 45-5-401 (1) , i4CA. If the jury applied this /b) theory of accountability in convicting Fitzpatrick of robbery, two substantial evidence problems arise. Assuming that the jury found the "other felony" to be that of aggravated kidnapping, the robbery conviction is valid only if the underlying conviction of aggravated kid- napping is supported by substantial evidence on all theories of accountability submitted to the jury. I have already discussed the aggravated kidnapping charge and concluded that substantial evidence does not support each of the theories submitted to the jury. The robbery conviction must also be reversed because the sufficiency of the evidence under the second theory of accountability depends in turn on the sufficiency of the evidence supporting each of the theories submitted to the jury on the aggravated kidnapping charge. The jury may have relied on a theory not supported by substantial evidence. Assuming, on the other hand, that the jury found the "other felony" to be that of deliberate homicide, the robbery conviction must still be reversed because the sufficiency of the evidence under this theory depends on the sufficiency of the evidence relating to the theories of accountability alleged in the felony-murder allegation. Because I have concluded that substantial evidence does not support all theories of accountability submitted to the jury under the felony-murder rule, the robbery conviction must fall for the same reason. The jury may have relied on a theory of account- ability not supported by substantial evidence. Still another reason exists to reverse the robbery conviction as well as the aggravated kidnapping conviction. The open-ended instructions given in the case of robbery, permitted the jury to convict Fitzpatrick if it found that - in the course of committing a theft, he had committed "any felony other than theft. " The open-ended instructions given on the charge of aggravated kidnapping permitted the jury to convict Fitzpatrick if it found that in the course of restraining Monte Dyckman, he had the purpose to facilitate the "commission - - felony." of any In each situation the "any felony" option was not limited in the charge nor identified and defined in the instructions. In reviewing for the sufficiency of the evidence, an appellate court is therefore left in a position of not knowing whether the jury relied on a felony not specifically covered in the charges or identified and defined in the instructions. Under these circun!stances, review of a substantial evidence question is impossible. For this reason alone, general and well-recognized principles of appellate review require that both the robbery and aggravated kidnapping convictions be reversed. PART E-- ~ N L Y JURY SHOULD BE CONSTITUTIONALLY PERMITTED TO DECIDE A WHETHER A DEFENDANT CONVICTED OF A CAPITAL CRIME SHOULD LIVE OR DIE Fitzpatrick claims, as did Coleman in Coleman - and I1 Coleman 111, that only a jury should be constitutionally permitted to make that fateEul, final decision whether he should live or die. As a subsidiary issue, Fitzpatrick also argues that only a jury should decide those facts necessary to a determination of whether the death penalty should be imposed. I agree. As I noted in Coleman 111, and as the majority has noted here, the United States Supreme Court, in Lockett v. Ohio (1978), 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973, in vacating the death sentence on other grounds, expressly refused to rule whether a jury is required to make the decision of whether a capitally convicted defendant should live or die. The Court stated: "Nor do we address her contention that the Constitution requires that the death penalty be imposed by a jury . . ." 438 U.S. 609, n. 16. In my dissent to Coleman - (1979), - Mont . - 605 I1 , P.2d 1022, 1045, 36 St.Rep. 1157A, 115711, and in my dissent to Coleman I11 - Mont. at 1401, I stated that if a jury is to be considered the conscience of the community, then only the jury should be constitutionally permitted to decide whether a defendant should live or die. What I said in Coleman - and - applies I1 111, equally here. For example, if a jury was to sit in final judgment in this case, the common sense of the jury would prevail and it would have determined that Fitzpatrick was not "lying in wait or ambush" within the meaning of this aggravating factor set forth in section 46-18-303(4), MCA. See part of my dissent here, and my dissent in Fitzpatrick - 606 11, P.2d 1382-1383, 37 St.Rep. 221J-2212, where I conclude that Fitzpatrick's conduct did not come within the scope of this statutory aggravating factor. Here, both the sentencing court and the majority have expanded the meaning of "lying in wait or ambush" far beyond any reasonable interpretation, which illustrates how elastic these aggravating factors can be when a sentencing court is determined to impose the death penalty, and when an appellate court is determined to approve the death sentence imposed. The interpretation given to that phrase in this case emphasizes the necessity that a jury, rather than a judge, make these underlying factual decisions which allow the imposition of a death sentence. PART F-- /DENIAL OF MEANINGFUL APPELLATE REVIEW

(1) The Retroactive Application of the Death Penalty Sentencing Statutes to Fitzpatrick Violates the Ex Post Facto Provisions of the Montana and United States Constitution. In Coleman - 605 P.2d 1000, the majority held that 11, the death penalty statutes passed after the commission of the crimes could be applied to Coleman. I dissented. 605 P.2d 1024-1029. The same thing happened to Fitzpatrick in his appeal and the majority ruled that the issue was controlled by Coleman - 11. Fitzpatrick - 606 P.2d 1358-1360. 11, I again dissented, 606 P.2d 1368-1369, and concluded that the burdens imposed on Fitzpatrick by application of the new statutes were plainly to his disadvantage, and therefore the statutes could not be retroactively applied. In his petition for post-conviction relief, Fitzpatrick raised this issue again, and the trial court denied this claim by ruling that Coleman - and Fitzpatrick - were con- I1 I1 trolling. Fitzpatrick has again raised this issue on appeal. Even though this Court has unequivocally committed itself to applying a United States v. Sanders analysis in determining whether an issue previously raised and decided is res judicata, the plain fact is that the majority has not even mentioned the ex post facto issue in its opinion. If Sanders means anything at all, it means that the majority has a duty to apply the three criteria before determining that it is res judicata. But Sanders has not been applied at all; anyone reading the majority opinion would not know that the issue of retroactive application of the death penalty statutes had again been raised. The majority opinion is not even a pro forma attempt to comply with Sanders, let alone an attempt to engage in a meaningful discussion of the ex post facto issue. The issue has substantial merit. In discussing the issue of whether section 46-18-305, MCA, unconstitutionally shifts the burden to defendant to prove that any mitigating factors are "sufficiently substantial to call for leniency," the majority, although it denied this claim, admits for the first time that the statute does shift the burden to the defendant. This burden, then, was imposed on Fitzpatrick when he was sentenced under the death penalty statutes enacted after the crime was committed. By contrast, the death penalty statutes in effect when the crime was committed, provided that for a deliberate homicide conviction, the death penalty would be imposed if there were "no" mitigating factors. Sections 94-5-105 and 94-5-304, R.C.M. 1947. In other words, any mitigating factor was sufficient to defeat the imposition of the death penalty. But this was not so under the new statutes which were applied to Fitzpatrick. This change in the law is "plainly to the disadvantage of [the Petitioner]" and therefore cannot be permitted under either the federal or state constitution. Lindsey v. Washington (1937), 301 U.S. 397, 401-402, 57 S.Ct. 797, 799, 81 L.Ed. 1182, 1186. In addition, under the majority reasoning in McKenzie - - I, 11, and - the old statutes permitted a review of the sentence 111, in its entirety, but this Court's review under the new statutes, is not nearly as broad. The fact that the majority has now admitted that section 46-18-305, MCA, shifts the burden to defendant to prove that there are mitigating factors "sufficiently substantial to call for leniency," undermines the majority's conclusion that the ex post facto provisions were not violated. By admitting the burden shifting effect of section 46-18-305, the majority has necessarily invoked consideration of the ex post facto prohibitions of the Montana and United States Constitutions. By failing to apply the Sanders criteria to the ex post facto claim, and by evading the issue altogether, the majority has further undermined its position by failing to give meaningful appellate review to the issues presented by Fitzpatrick. -84- (2) In Permitting a Death Sentence for Deliberate Homicide the ÿ rial Court and the Majority have Ignored and Misapplied the Standards of North Carolina v. Pearce. After his first trial, Fitzpatrick was sentenced to 100 years for his conviction on the crime of deliberate homicide. After this Court's reversal and remand for another trial (Fitzpatrick - and after again being convicted of deliberate I) homicide, Fitzpatrick was given the death penalty. Although this Court has no state standards for this situation, North Carolina v. Pearce (1969), 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656, permits a more severe sentence after a second conviction only if it is based on objective conduct of the defendant occurring after the first sentence. 395 U.S. at 726, 89 S.Ct. at 2081., 23 L,Ed.2d at 670. The sentencing court acknowledged that in imposing the death penalty, it was violating North Carolina v. Pearce, but it nonetheless did so. 606 P.2d at 1376. The trial court imposed this death sentence even though there was absolutely no objective conduct occurring after the first sentence which the trial court relied to impose the death sentence. See my dissent in Fitzpatrick - 606 P.2d 1370-1381, 37 St.Rep. 221G-221V. 11, Furthermore, I doubt that the United States Supreme Court would ever permit the death penalty to be imposed after retrial if it had not been imposed after the original trial. In paragraph 9(a) of his petition for post-conviction relief, Fitzpatrick again raised this issue and he asked the sentencing court to correct its earlier decision. The sentencing court refused to do so, however, and simply alluded to the fact that the matter had been considered and the Pearce standards applied in Fitzpatrick - 11.

In this appeal, Fitzpatrick again claims that this Court and the sentencing court have misapplied and therefore violated the Pearce standards. (Respondent's Brief at 12-16.) By failing to discuss or even mention the Pearce issue in its responsive brief, the State has in effect admitted that these standards were violated. Fitzpatrick again brought this fact to our attention in his reply brief, and noted that the State had not replied to his argument. (Respondent's Reply Brief, at 6.) But now the majority opinion has also evaded this issue by failing to mention that it has been raised. If the three criteria of Sanders v. United States mean anything, how can the majority fail to discuss Fitzpatrick's allegation that the sentencing court and this Court (Fitzpatrick

- have emasculated the standards set forth in North Carolina 11)

v. Pearce. I adhere to my dissent in Fitzpatrick - - on this issue. I1

606 P.2d 1375-1381, 37 St.Rep. 221M-221V, in which I pointed out that the trial court relied on two impermissible factors in sentencing Fitzpatrick to death after the second trial. First, it relied on the testimony of Christine Fetters, who testified at the second trial about Fitzpatrick's conduct before the first trial. This, I concluded, was manifestly in violation of the Pearce standards. 606 P.2d 1378-1381, 37 St.Rep. 221R-221V. Fitzpatrick now cites a case which holds that Pearce means exactly what it says: only conduct occurring after the first sentencing can be considered, and this necessarily excludes consideration of new information about the crime. United States v. Hawthorne (3rd Cir. 1976), 532 F.2d 318, cert.den. 429 U.S. 894 (1976). Second, in sentencing Fitzpatrick to death, the trial court relied (although ever so vaguely) on Fitzpatrick's demeanor on the witness stand at the second trial. This, I concluded, was also manifestly in violation of the Pearce standards. 606 P.2d at 1380, 37 St.Rep. 221T-221U. Fitzpatrick now cites a case which holds that the demeanor of the defendant on the witness stand cannot be considered. United States v. Markus (2d Cir. 1979), 603 F.2d 409. It is clear, therefore, that the majority has nullified the Pearce standards in permitting the death penalty for Fitzpatrick's deliberate homicide conviction. I add to this an additional erroneous factor on which the majority relied in struggling to get out from under the Pearce standards.

- The majority stated in Fitzpatrick I1 that in Pearce the same trial judge presided over both trials and also imposed the sentence, but that a new judge presided over Fitzpatrick's second trial and it was this judge who imposed the death penalty. 606 P.2d at 1358, 37 St.Rep. at 212. Based on this distinction, the majority then stated that the element of vindictiveness was present in Pearce, but a new judge presiding over Fitzpatrick's second trial elininated this element of vindictiveness. In dissent, I stated that not only is this an impermissible distinction, but that a new judge had in fac't presided over the second trial of Pearce, and therefore that the attempted distinction cannot stand. That a different trial judge presided over the second trial of Pearce cannot be denied. See, State v. Pearce (1966), 268 N.C. 707, 1 5 1 S.E.2d 571. Beyond question, the trial court has ignored the Pearce standards and the majority has again permitted it to ignore these standards for imposing a more severe sentence after the second trial. Failure to discuss the issue raised on appeal can lead only to the conclusion that the three criteria test of Sanders v. United States when determining whether an issue has already been abandoned. is res judicata, or whether it should be again decided4 The failure to apply this test, togetherwith the obvious violation of the Pearce standards, only underscores the obvious: not only must the death sentence for the deliberate homicide conviction be set aside, the entire death sentence must be set aside. Where a sentencing court and where the highest appellate court in a state refuse to apply standards mandated by the United States Supreme Court, the legitmacy of the death sentence for deliberate homicide is not only called into question, the legitimacy of the death penalty imposed for the crime of aggravated kidnapping is also called into question. I would vacate both death sentences imposed and order that the death penalty cannot again be considered for either crime. (3) The Statutory Aggravating Circumstance of "Lying in Wait or Ambush" Has Been Improperly Expanded to Apply to This Case. In sentencing Fitzpatrick to death for deliberate homicide, the trial court found, by stretching the aggravating circumstance statute beyond the breaking point, that the death occurred while Fitzpatrick was "lying - - -or in wait ambush." (Emphasis added.) This Court concluded in Fitzpatrick

- without analysis, that Fitzpatrick committed the homicide 11, "while lying in wait or ambush." 606 P.2d at 1361, 37 St.Rep. at 216. Although Fitzpatrick did not contest that finding in his second appeal, this Court nonetheless has a mandatory duty of appellate review mandated by the United States Supreme Court and by Montana statute. I dissented to the sentencing court's finding and concluded that the homicide was - not committed "while [Fitzpatrick] was lying in wait or ambush," and therefore the death penalty could not be imposed. 606 P.2d 1381-1384, 37 St.Rep. 221V-22lZ. I adhere to those views today. -88- The sentencing court and the majority here have expanded the meaning of the phrase, "while lying in wait or ambush," to such an extent, that it fails to provide any "inherent restraint on the arbitrary and capricious -inflictionof the death sentence." Godfrey v. Georgia (1980), 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398. Rather, it is an example of how the sentencing courts and appellate courts are giving expansive interpretations of the death penalty statutes in order to liberally impose the death penalty. It precisely illustrates the attitude of the state courts which Justice Marshall condemned in Lockett v. Ohio (1978), 438 U.S. 586, at 621, 98 S.Ct. 2954, at 2973, 57 L.Ed.2d 973, at 1000. Also see, part VIII of my dissent in Coleman I11

(1981)I - Mont. -I , - P.2d - 38 St.Rep. 1403. In his petition for post-conviction relief, Fitzpatrick raised the issue concerning the application of the statutory aggravating factor necessary to impose the death penalty in MCA , this case. Section 46-18-303(4),/states that one aggravating factor occurs if "[tlhe offense was deliberate homicide and was committed by a person lying in wait or ambush." I stated in Fitzpatrick - and I state again today, that this 11, term means the legislature has increased the sentence for deliberate homicide if the homicide is committed while the defendant was laying in wait and then ambushed the victim intending to kill. I also concluded that the application of this aggravating factor is inapplicable here because the sentencing judge found that the decision of Fitzpatrick to kill was an instantaneous, impulsive action, and that it occurred after Fitzpatrick was laying in wait or ambush in order to commit a robbery. 606 P.2d at 1383, 37 St.Rep. at 221X. It is by no means clear that the legislature intended that this aggravating circumstance be applied where the defendant plans a robbery, lays in wait, and then ambushes his victim intending only to rob him. And that is exactly what happened here. The majority distinguishes Godfrey v. Georgia, supra, because the Georgia death penalty statute was worded more broadly than the Montana statute and did not imply any inherent restraint against the arbitrary and capricious infliction of the death sentence. On the other hand, the majority finds that the term "lying in wait" prescribes a sufficiently specific standard to render the statute con- stitutional - - - on its face. I agree that the term "lying in wait" limits the imposition of the death penalty to those situations. But the statute is not so clear that it can be interpreted to apply where a homicide occurs after the defendant "lay in wait" for the purpose not of committing a homicide, but for the purpose of committing a robbery. Further, the sentencing court's finding that Fitzpatrick's decision to kill Monte Dyckman came long after he "lay in wait," is convincing evidence that the statutory aggravating circumstance does not apply in this case. This aggravating circumstance, although perhaps con- stitutional - - - on its face, was unconstitutionally applied to Fitzpatrick. There is no evidence that Fitzpatrick lay in wait to kill his victim. There is no evidence to establish that Fitzpatrick intended to kill Monte Dyckman as part of the original robbery plan. The trial court found that the intent to kill Monte Dyckman arose well after the act of "lying in wait or ambush." This conclusion establishes that it was impermissible for the trial court to nonetheless rule that the aggravating factor was satisfied. The decision of the sentencing court and the majority here that Fitzpatrick was "lying in wait or ambush," hardly falls within the permissible discretion set forth in Gregg v. Georgia: ". . . where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action." 428 U.S. at 189, 96 S.Ct. at 2932, 49 L.Ed.2d at 883. Instead, it confirms what Justice Marshall said in Lockett v. Ohio, supra, about the failure of the states to fairly or rationally administer the death penalty laws. Based on my own experience sitting on death penalty cases, I am compelled to echo the words of Justice Marshall.

(4) In Sentencing Fitzpatrick to Death the Trial Court Improperly Relied on a Previous Unconstitutionally Infirm Conviction. Fitzpatrick claims that the trial court, in considering the existence of any possible mitigating factors, improperly relied on a prior conviction that had been reversed. Burgett v. Texas (1967), 389 U.S. 109, 88 S.Ct. 258, 19 ~ . ~ d . 2319, d clearly holds that a sentencing court cannot consider a constitutionally infirm conviction procured in violation of the Gideon standards. And we have also held in State v. Olsen (1980), , Mont. - 614 P.2d 1061, 37 St.Rep. 1313, that infirm convictions should not be considered %r sentencing purposes. Nevertheless, the trial court in fact indirectly considered an infirm conviction, and the majority has given its approval. This effectively negates the Burgett and Olsen holdings. The trial court accomplished indirectly what it could not do directly. Fitzpatrick had been convicted of homicide while in prison on another conviction, but the homicide conviction was reversed and dismissed by this Court because, among other things, he was denied counsel. Fitzpatrick v. Crist (1974), 165 Mont. 382, 528 P.2d 1322. Under Burgett and Olsen, supra, Fitzpatrick's conviction could not be considered for any purpose. Here the sentencing court recognized Burgett in one breath, but in the next breath nullified Burgett by holding that Fitzpatrick's reversed homicide conviction is ". . . material in demonstrating that the defendant's conduct in prison is not a source of mitigation with respect to the sentencing issues." In other words, the sentencing court effectively declared it would consider this conviction as casting a shadow over the entirety of Fitzpatrick's conduct while he was in prison. To properly comply with Burgett, the sentencing court should have disregarded the homicide conviction, and then determined whether the remainder of Fitzpatrick's conduct while he was in prison constituted a source of mitigation. The majority has totally evaded the issue of whether Fitzpatrick's constitutionally infirm homicide conviction was held against him at the sentencing proceeding. The majority stated that: "Here the judge declared that he could not - and would -- on the prior conviction. not rely - find - - We - -this to be sufficient to safeguard petitioner's interest in an appropriate and constitutional sentence." (Emphasis added.) It is not sufficient that the trial court only declare its nonreliance on a constitutionally infirm conviction, nor is it sufficient for this Court to hold that this declaration is sufficient. The fact is that the sentencing court - did rely on the constitutionally infirm conviction by refusing to look at Fitzpatrick's entire conduct record while in prison, aside from the constitutionally infirm conviction. The majority has evaded the issue and denied the defendant meaningful appellate review. (5) This Court Has Failed to Obey a Statutory Directive Requiring Us to Promulgate Rules for Proportional Review of Death Sentences and to Conduct Review According to Those Rules. Before proceeding to Fitzpatrick's contentions regarding our failure to properly review his sentence, I first must state that this Court has violated section 46-18-308, MCA, which requires us to promulgate rules by which proportional review is conducted. Coleman raised this issue in Coleman

- and - and in Coleman 111, in part VIII of my dissent I1 111, , to Coleman - - P.2d - 38 St.Rep. at 1405, I agreed 111, that we had failed to promulgate the rules as required by statute. That same situation exists with relation to Fitzpatrick. We still have failed to promulgate rules as mandated by statute. How, then, can we permit imposition of a death sentence? Before any death penalty can be carried out, this Court has a duty to first adopt rules governing proportional review, and then to review the death sentence imposed by application of these rules. (6) In Conducting Proportional Review !?his Court Has Not Adhered to the Mandate of the United States Supreme Court. Fitzpatrick makes essentially the same claim as did Coleman in Coleman 111, that we failed to comply with the proportional review mandated by Gregg v. Georgia (1976), 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859. Gregg requires that on mandatory review the state's highest appellate court consider "whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant." I take the same position here as I took in Coleman 111, where I stated: ". . . our system of review must allow access to and a consideration of all reasonably recent cases in this state where a defendant has been convicted of either deliberate homicide or aggravated kidnapping. "Our duty is to review each of these cases and consider the nature of the crime involved and the individual characteristics of the persons who committed the crimes. We must then compare those situations with the crimes committed here and with the personal characteristics of the person involved here. This Court has wholly failed to provide proportional review as mandated by Gregg, and I therefore fail to see how this Court can sanction the imposition of the death penalty ". Mont. - P.2d - I

, 38 S . . t% 1 3- 5 2 , ~ 6 5 ~ -

I would hold then that Fitzpakrick has not had proportional review as mandated both by statute and by Gregg v. Georgia. This Court must first promulgate the rules by which proportional review is to be governed, and then we must again review Fitzpatrick's death sentence by application of those rules and by adhering to the spirit of Gregg v. Georgia. PART G-- /THE DEATH PENALTY STATUTE UNCONSTITUTIONALLY SHIFTS THE BURDEN TO DEFENDANT TO SHOW THAT HIS LIFE SHOULD BE SPARED Fitzpatrick claims, as did Coleman in Coleman 111, that section 46-18-305, MCA, unconstitutionally shifts the burden to defendant to show his life should be spared. The statute provides in pertinent part that the sentencing court "shall impose a sentence of death if it finds one or more of the aggravating circumstances and finds that there are no mitigating circumstances sufficiently substantial to call for leniency." The majority now admits that the statute does shift the burden of persuasion, but holds that it is not unconstitutional. Mont . I- P.2d I

In Coleman 111, the majority evaded this issue by disposing of it and 12 other issues in part V of its omnibus ruling. It was raised as issue 0 in Coleman 111. In part V 0 of my dissent in Coleman - 111, - P.2d , - 38 St.Rep. at

1399, I concluded not only that the statute does shift the burden to the defendant to convince the sentencing court his life should be spared, but that it is an unconstitutional shifting of the burden of persuasion. What I said there applies equally here. I noted in my dissent in Coleman 111, as the majority notes here, that the United States Supreme Court in Lockett v. Ohio, supra, specifically declined to rule on this issue in vacating the death sentence on other grounds. I further note that the majority has now placed itself in a bind by belatedly admitting that this statute shifts the burden of persuasion to defendant to prove his life should be spared. The majority has already held that the retroactive application of the new statutes imposed no greater burden on the defendant than before. Coleman - 11, Mont . -, 605 P.2d at 1010-1015, 37 St.Rep. at 214. And the majority held the same in Fitzpatrick - 11, Mont. at -59 , - 606 P.2d at13584 37 St.Rep. at 212-214. The fact is, however, that under the old statutes Coleman and Fitzpatrick did not have this burden. See my dissent in Fitzpatrick - 11, 606 P.2d at 1368-1369. The majority's declaration that the statute is an indirect admission that section 45-18-305, JICAf flies in the face of the ex post facto provisions of the United States and Montana Constitutions, by imposing a higher burden on the defendant than did the former statutes. PART H-- AN EVIDENTIARY HEARING IS REQUIRED SO THAT FITZPATRICK CAN PRESENT EVIDENCE THAT DEATH BY HANGING IS CRUEL AND UNUSUAL PUNISHMENT Fitzpatrick claims, as did Coleman in Coleman 111, that death by hanging constitutes cruel or unusual punishment and therefore violates Art. 11, § 22, of the Montana Constitution, and the Eighth and Fourteenth Amendments to the United States Constitution. In its summary and wholesale disposition of this issue in part VII of Coleman 111, the majority denied Coleman's claim. That claim is now denied to Fitzpatrick. In part VII of my dissent in Coleman 111, I stated that Coleman raised a substantial claim and that he was entitled to an evidentiary hearing to determine this issue. P.2d at , 38 St.Rep. at 1403. My dissent in Coleman I11 shall also constitute my dissent here. CONCLiUSION In Fitzpatrick - I dissented only on the death 11, penalty issues. The unanimous jury verdict issue was not raised then, and neither was the sufficiency of the evidence issue raised as it applies to the alternative theories of accountability submitted to the jury on each charge. On both the unanimous verdict issue and the sufficiency of the evidence issues, all three convictions must be reversed. Furthermore, the instructions are inconsistent with relation to the deliberate homicide charge and aggravated kidnapping charge, and this is another reason those convictions must be reversed. It is inconceivable to me how any appellate court would uphold the convictions where such error has occurred. And the death penalty was imposed for the deliberate homicide and the aggravated kidnapping conviction is a compelling reason why the convictions must be reversed. Aside from the trial issues, the trial court sentenced Fitzpatrick to death in violation of federal constitutional standards, and in violation of our own statutory sentencing standards. Add to this the failure of this Court in Fitzpatrick - and now in Fitzpatrick - to provide meaning- 11, 111

ful review of the death penalty issues raised both at the t r i a l c o u r t and b e f o r e t h i s C o u r t , and w e have a c l a s s i c

case f o r federal court intervention. Once a g a i n I must s t a t e t h a t t h i s d e a t h p e n a l t y c a s e h a s confirmed m y b e l i e f

t h a t s t a t e c o u r t s are i n c a p a b l e of r a t i o n a l l y and f a i r l y

a d m i n i s t e r i n g d e a t h p e n a l t y laws. Mr. J u s t i c e Frank B. Morrison, J r . , d i s s e n t i n g :

T h i s d i s s e n t must b e g i n w i t h t h e c o n v i c t i o n f o r r o b b e r y .

I f t h a t c o n v i c t i o n i s d e f e c t i v e , and i f t h e r o b b e r y c o n v i c t i o n

was used a s a b a s i s f o r c o n v i c t i o n f o r a g g r a v a t e d k i d n a p p i n g

and d e l i b e r a t e homicide, t h e n t h e l a t t e r two c o n v i c t i o n s

would a l s o have t o be s e t a s i d e .

J u s t i c e Shea i n d i c a t e s , and t h e r e c o r d s u p p o r t s h i s

a s s e r t i o n , t h a t d e f e n d a n t was c h a r g e d w i t h r o b b e r y under

s u b s e c t i o n s a and b of s e c t i o n 45-5-401 (1) . Yet a s J u s t i c e

Shea p o i n t s o u t t h e t r i a l c o u r t i n s t r u c t e d t h e j u r y a s t o

s u b s e c t i o n c of t h a t s t a t u t e which a l l o w s c o n v i c t i o n f o r

r o b b e r y i f , d u r i n g t h e commission of a t h e f t , t h e d e f e n d a n t

commits any o t h e r f e l o n y . S u b s e c t i o n c was n o t c h a r g e d b u t

was g i v e n t o t h e j u r y a s a n a l t e r n a t i v e means of f i n d i n g t h e

d e f e n d a n t g u i l t y of r o b b e r y . T h i s was e r r o r . Furthermore,

an i n s t r u c t i o n i s erroneous t h a t allows t h e jury t o convict

a d e f e n d a n t on t h e b a s i s of f i n d i n g t h e d e f e n d a n t committed

"a f e l o n y " where a f e l o n y h a s n o t been s p e c i f i e d and d e f i n e d

f o r the jury. I n o t h e r words, t h i s t y p e of i n s t r u c t i o n i s

e r r o n e o u s b e c a u s e i t a l l o w s t h e j u r y t o s p e c u l a t e and p r e v e n t s

t h e d e f e n d a n t from knowing t h e c h a r g e and p r e p a r i n g a d e f e n s e .

There i s a n o t h e r and more g l a r i n g e r r o r i n t h e r o b b e r y

instruction. The C o u r t gave t h e f o l l o w i n g i n s t r u c t i o n :

"To s u s t a i n a c h a r g e of r o b b e r y , t h e S t a t e must p r o v e t h a t t h e d e f e n d a n t , d u r i n g t h e c o u r s e of committing o r a i d i n g o r a b e t t i n g i n committing, a t h e f t , e i t h e r :

"First: I n f l i c t e d , o r aided o r abetted i n i n f l i c t i n g , b o d i l y i n j u r y upon Monte Dyckman, or

"Second: Threatened o r aided o r a b e t t e d i n t h r e a t e n i n g t o i n f l i c t b o d i l y i n j u r y upon Monte Dyckman o r p u r p o s e l y o r knowingly p u t , o r a i d e d o r a b e t t e d i n p u t t i n g Monte Dyckman i n f e a r of immediate b o d i l y i n j u r y , o r "Third: Committed o r a i d e d o r a b e t t e d i n committing any f e l o n y o t h e r t h a n t h e £ t.

" I n t h e c o u r s e of committing a t h e f t a s used h e r e i n c l u d e s a c t s which o c c u r i n a n a t t e m p t t o commit o r i n t h e commission of t h e f t o r i n f l i g h t a f t e r t h e a t t e m p t o r commission.

" I f you f i n d from your c o n s i d e r a t i o n of a l l t h e e v i d e n c e t h a t any of t h e s e p r o p o s i t i o n s h a s been proved beyond a r e a s o n a b l e d o u b t , t h e n you s h o u l d f i n d t h e d e f e n d a n t g u i l t y of robbery.

" I f , on t h e o t h e r hand, you f i n d from your c o n s i d e r a t i o n of a l l t h e e v i d e n c e t h a t none of t h e s e p r o p o s i t i o n s h a s been proved beyond a r e a s o n a b l e d o u b t , t h e n you s h o u l d f i n d t h e d e f e n d a n t n o t g u i l t y . I' ( I n s t r u c t i o n No. 2 2 )

The o n l y o t h e r i n s t r u c t i o n which b e a r s upon t h e o f f e n s e

of r o b b e r y i s I n s t r u c t i o n No. 1 i n which t h e C o u r t r e a d t o

t h e jury t h e charge a g a i n s t defendant. The a p p l i c a b l e

p o r t i o n of t h a t i n s t r u c t i o n reads as follows:

"COUNT THREE

"On o r a b o u t A p r i l 5, 1975, Bernard James F i t z p a t r i c k , d i d , a t Hardin, Big Horn County, Montana, commit t h e c r i m e of ROBBERY, t o - w i t : I n t h a t Bernard James F i t z p a t r i c k ( a ) d i d , w h i l e i n t h e c o u r s e of committing, o r a i d i n g , o r a b e t t i n g , o r agreeing t o a i d o r abet, o r attempting t o a i d o r a b e t i n committing a t h e f t of money and/or checks of t h e H a r d i n , Montana Safe- way S t o r e , i n f l i c t e d , o r a i d e d , o r a b e t t e d , o r agreed t o a i d o r abet, o r attempted t o a i d o r a b e t i n i n f l i c t i n g bodily i n j u r y upon Monte Dyckman, o r ( b ) d i d , w h i l e i n t h e c o u r s e of committing, o r a i d i n g , o r a b e t t i n g , o r agreeing t o a i d o r a b e t , o r a t t e m p t i n g t o a i d o r a b e t i n committing, a t h e f t of money and/or c h e c k s of t h e H a r d i n , Montana Safeway S t o r e , t h r e a t e n e d t o i n - f l i c t b o d i l y i n j u r y upon Monte Dyckman o r p u r p o s e l y o r knowingly p u t Monte Dyckman i n f e a r of immediate b o d i l y i n j u r y , o r aided, o r a b e t t e d , o r agreed t o a i d o r abet, o r attempted t o a i d o r a b e t i n t h r e a t e n i n g t o i n f l i c t b o d i l y i n j u r y upon Monte Dyckman, o r p u r p o s e l y o r knowingly p u t Monte Dyckman i n f e a r of immediate b o d i l y i n j u r y , i n v i o l a t i o n of S e c t i o n 94-5-401 (1)( a ) o r ( b ) , R.C.M. 1947. "

Nowhere i n t h e i n s t r u c t i o n s i s t h e o f f e n s e of t h e f t d e f i n e d .

T h e f t i s d e f i n e d i n 45-6-301, MCA, a s follows: "45-6-301. Theft. (1) A p e r s o n commits t h e o f f e n s e of t h e f t when h e pur- p o s e l y o r knowingly o b t a i n s o r e x e r t s un- a u t h o r i z e d c o n t r o l o v e r p r o p e r t y of t h e owner and:

" ( a ) h a s t h e p u r p o s e of d e p r i v i n g t h e owner of t h e p r o p e r t y ;

" ( b ) p u r p o s e l y o r knowingly u s e s , c o n c e a l s , o r abandons t h e p r o p e r t y i n such manner a s t o d e p r i v e t h e owner of t h e p r o p e r t y ; o r

" ( c ) u s e s , c o n c e a l s , o r abandons t h e p r o p e r t y knowing such u s e , concealment, o r abandonment p r o b a b l y w i l l d e p r i v e t h e owner of t h e p r o p e r t y .

" (2) A p e r s o n commits t h e o f f e n s e of t h e f t when he p u r p o s e l y o r knowingly o b t a i n s by t h r e a t o r d e c e p t i o n c o n t r o l o v e r p r o p e r t y of t h e owner and:

" ( a ) h a s t h e p u r p o s e of d e p r i v i n g t h e owner of t h e p r o p e r t y ;

"(b) p u r p o s e l y o r knowingly u s e s , c o n c e a l s , o r abandons t h e p r o p e r t y i n such a manner a s t o d e p r i v e t h e owner of t h e p r o p e r t y ; o r

" ( c ) u s e s , c o n c e a l s , o r abandons t h e p r o p e r t y knowing such u s e , concealment, o r abandonment p r o b a b l y w i l l d e p r i v e t h e owner of t h e p r o p e r t y .

" ( 3 ) A p e r s o n commits t h e o f f e n s e of t h e f t when he p u r p o s e l y o r knowingly o b t a i n s c o n t r o l o v e r s t o l e n p r o p e r t y knowing t h e p r o p e r t y t o have been s t o l e n by a n o t h e r and:

" ( a ) h a s t h e p u r p o s e of d e p r i v i n g t h e owner of t h e p r o p e r t y ;

" ( b ) p u r p o s e l y o r knowingly u s e s , c o n c e a l s , o r abandons t h e p r o p e r t y i n such manner a s t o d e p r i v e t h e owner of t h e p r o p e r t y ; o r

" ( c ) u s e s , c o n c e a l s , o r abandons t h e prop- e r t y knowing such u s e , concealment, o r abandon- ment p r o b a b l y w i l l d e p r i v e t h e owner of t h e property . " ( 4 ) A p e r s o n commits t h e o f f e n s e of t h e f t when he p u r p o s e l y o r knowingly o b t a i n s o r e x e r t s u n a u t h o r i z e d c o n t r o l o v e r any p a r t o f any p u b l i c a s s i s t a n c e , a s d e f i n e d i n 53-3-101, by means o f :

" ( a ) a knowingly f a l s e s t a t e m e n t , r e p r e s e n - t a t i o n , o r impersonation; o r " ( b ) a f r a u d u l e n t scheme o r d e v i c e .

" ( 5 ) A p e r s o n c o n v i c t e d of t h e o f f e n s e of t h e f t of p r o p e r t y n o t e x c e e d i n g $150 i n v a l u e s h a l l be f i n e d n o t t o exceed $500 o r be i m - p r i s o n e d i n t h e county j a i l f o r any term n o t t o exceed 6 months, o r b o t h . A p e r s o n c o n v i c t e d of t h e o f f e n s e of t h e f t of p r o p e r t y e x c e e d i n g $150 i n v a l u e o r t h e f t of any commonly domesti- c a t e d hoofed animal s h a l l be i m p r i s o n e d i n t h e s t a t e p r i s o n f o r any t e r m n o t t o exceed 1 0 years.

I' (6 ) Amounts i n v o l v e d i n t h e £ t s committed p u r s u a n t t o a common scheme o r t h e same t r a n s - a c t i o n , whether from t h e same p e r s o n o r s e v e r a l p e r s o n s , may be a g g r e g a t e d i n d e t e r m i n i n g t h e v a l u e of t h e p r o p e r t y . "

Under t h e C o u r t ' s i n s t r u c t i o n s t h e j u r y was l e f t t o

s p e c u l a t e a b o u t what t h e C o u r t meant when u s i n g t h e term

t h e f t i n t h e robbery i n s t r u c t i o n . This omission i s obvious

error requiring reversal.

F a i l u r e t o d e f i n e l e g a l terms was t r e a t e d by t h e Oregon

Appeals C o u r t i n S t a t e v. D e l u c i a ( 1 9 7 9 ) , 40 O r . App. 711,

596 P.2d 585. I n t h a t c a s e t h e d e f e n d a n t a p p e a l e d from h i s

conviction of t h i r d degree a s s a u l t . A t t r i a l , defendant

requested t h a t t h e following i n s t r u c t i o n be given:

"A p e r s o n i n l a w f u l p o s s e s s i o n o r c o n t r o l of p r e m i s e s i s j u s t i f i e d i n u s i n g p h y s i c a l f o r c e upon a n o t h e r p e r s o n when and t o t h e e x t e n t t h a t h e r e a s o n a b l y b e l i e v e s i t nec- e s s a r y t o p r e v e n t o r t e r m i n a t e what he r e a s o n a b l y b e l i e v e s t o be t h e commission o r a t t e m p t e d commission of a c r i m i n a l t r e s - p a s s by t h e o t h e r p e r s o n i n o r upon t h e premises." (596 P.2d a t 586)

The a p p e l l a t e c o u r t h e l d t h a t t h e r e j e c t e d i n s t r u c t i o n

was a n a c c u r a t e s t a t e m e n t of t h e law b u t i t w a s i n c o m p l e t e

f o r f a i l u r e t o define "criminal trespass." The f o l l o w i n g

e x c e r p t i s t a k e n from t h e c o u r t ' s o p i n i o n :

"The i n s t r u c t i o n , a s r e q u e s t e d , f o l l o w s e x a c t l y t h e language of ORS 1 6 1 . 2 2 5 ( 1 ) which d e l i n e a t e s t h e u s e of p h y s i c a l f o r c e i n d e f e n s e of p r e m i s e s . It is, therefore, a c o r r e c t s t a t e m e n t of law i n s o f a r a s i t goes. Its d e f e c t l i e s i n i t s incomplete- ness. ORS 1 6 1 . 2 2 5 ( 1 ) , a s r e p e a t e d i n t h e i n s t r u c t i o n , a l l o w s t h e u s e of p h y s i c a l f o r c e t o p r e v e n t o r t e r m i n a t e what i s r e a s o n a b l y b e l i e v e d t o be t h e commission o r a t t e m p t e d commission of a c r i m i n a l t r e s p a s s i n o r upon t h e p r e m i s e s . There- f o r e , i n o r d e r t o d e c i d e whether t h e d e f e n s e was j u s t i f i e d , t h e j u r y must know what a ' c r i m i n a l t r e s p a s s ' i s s o t h a t i t may d e t e r - mine whether d e f e n d a n t had a r e a s o n a b l e b e l i e f t h a t one was i n d e e d committed o r imminent." (596 P.2d a t 586) (Emphasis supplied.)

The Montana Supreme C o u r t h a s spoken on t h e need t o d e f i n e

l e g a l t e r m s when i n s t r u c t i n g i n a c r i m i n a l c a s e . S t a t e v.

Larson ( 1 9 7 8 ) , Mont. , 574 P.2d 266, 35 S t . Rep.

69. I n t h a t c a s e d e f e n d a n t complained on a p p e a l t h a t t h e

t r i a l c o u r t e r r e d i n g i v i n g e x t e n s i v e d e f i n i t i o n s of "knowledge"

and a r g u e d t h a t t h e e x t e n s i v e n a t u r e of t h e d e f i n i t i o n s was

p r e j u d i c i a l t o defendant. I n answering t h i s c o n t e n t i o n of

the defendant t h e c o u r t said:

" * * * t h e crimes charged, m i t i g a t e d d e l i b e r a t e homicide and a g g r a v a t e d a s s a u l t , r e q u i r e 'knowledge' o r ' p u r p o s e ' on t h e p a r t of t h e a c c u s e d . -- ury therefore - The j was e n t i t l e d -o-a complete d e f i n i t i o n - t of 'knowledge' and t h e g i v e n i n s t r u c t i o n , t a k e n a l m o s t v e r b a t i m from s e c t i o n 94-2- 1 0 1 ( 2 7 ) , R.C.M., 1947, was s u c h a d e f i n i - t i o n . " (574 P.2d a t 270) (Emphasis s u p p l i e d ) .

Here, t h e c o u r t d i d n o t g i v e any d e f i n i t i o n of t h e f t .

The j u r y c o u l d n o t have c o n v i c t e d t h e d e f e n d a n t of r o b b e r y

w i t h o u t f i r s t f i n d i n g t h a t t h e d e f e n d a n t committed a t h e f t .

Without d e f i n i n g a . t h e f t i n s t a t u t o r y language t h e j u r y

would be l e f t t o s p e c u l a t e and i n a l l l i k e l i h o o d , would

a p p l y a l a y d e f i n i t i o n of t h e f t which m i g h t w e l l be c o n t r a r y

t o t h e o f f e n s e o u t l i n e d i n t h e Montana s t a t u t e . There i s

s i m p l y no way t h a t t h i s C o u r t can o v e r l o o k such o b v i o u s l y

prejudicial error. The r o b b e r y c o n v i c t i o n must f a l l and

w i t h i t n e c e s s a r i l y t h e b a l a n c e of t h e o f f e n s e s c h a r g e d must

likewise f a l l . Robbery p r o v i d e d a b a s i s f o r c o n v i c t i o n on t h e c h a r g e

of d e l i b e r a t e homicide. C o u r t ' s I n s t r u c t i o n No. 23 p r o v i d e d :

"A p e r s o n commits t h e o f f e n s e of d e l i b - e r a t e homicide i f :

" 1 ) He c a u s e s t h e d e a t h of a n o t h e r human b e i n g p u r p o s e l y o r knowingly; o r

"2) The d e a t h of a n o t h e r human b e i n g i s caused w h i l e t h e o f f e n d e r i s engaged i n o r i s an accomplice i n t h e commission of o r a n a t t e m p t t o commit, o r f l i g h t a f t e r commit- t i n g o r a t t e m p t i n g t o commit r o b b e r y o r k i d - napping. "

Thus, t h e j u r y c o u l d have c o n v i c t e d t h e d e f e n d a n t by

f i n d i n g t h a t t h e d e a t h of t h e v i c t i m was c a u s e d w h i l e d e f e n d a n t

was engaged i n t h e c r i m e of r o b b e r y . Since defendant's

c o n v i c t i o n f o r r o b b e r y must f a l l f o r f a i l u r e t o d e f i n e

t h e f t , n e c e s s a r i l y t h e c o n v i c t i o n f o r d e l i b e r a t e homicide

must a l s o be o v e r t u r n e d .

C o u r t ' s I n s t r u c t i o n No. 25 defined aggravated kidnapping

a s follows:

"A p e r s o n commits t h e o f f e n s e of a g g r a v a t e d k i d n a p p i n g i f h e knowingly o r p u r p o s e l y and w i t h o u t law£u l a u t h o r i t y r e s t r a i n s a n o t h e r p e r s o n by e i t h e r u s i n g o r t h r e a t e n i n g t o u s e p h y s i c a l f o r c e w i t h any of t h e f o l l o w i n g purposes:

" 1 ) To f a c i l i t a t e commission of any f e l o n y o r the f l i g h t thereafter; or

" 2 ) To i n f l i c t b o d i l y i n j u r y on o r t o terrorize the victim. "

The j u r y c o u l d have c o n v i c t e d d e f e n d a n t by f i n d i n g t h a t

d e f e n d a n t r e s t r a i n e d t h e v i c t i m f o r t h e p u r p o s e of committing

"any f e l o n y " which, of c o u r s e , i n c l u d e s t h e c h a r g e of r o b b e r y .

S i n c e t h e j u r y c o u l d have used t h e o f f e n s e of r o b b e r y t o

c o n v i c t d e f e n d a n t of a g g r a v a t e d k i d n a p p i n g t h e c o n v i c t i o n on

aggravated kidnapping i s e q u a l l y a s d e f e c t i v e a s t h e conviction

f o r robbery.

I a g r e e w i t h t h e l e g a l p r i n c i p a l s e n u n c i a t e d by J u s t i c e

Shea i n h i s d i s s e n t r e s p e c t i n g "unanimous v e r d i c t " r e q u i r e m e n t s . I do n o t a g r e e w i t h a l l t h a t i s s a i d i n h i s d i s s e n t i n t e r m s

of a p p l i c a t i o n of t h a t law t o t h e f a c t s a t b a r . However,

t h e f a i l u r e t o d e f i n e t h e f t i n v a l i d a t e s t h e c o n v i c t i o n s on

a l l t h r e e c r i m e s c h a r g e d and i t becomes u n n e c e s s a r y t o d e a l

w i t h t h e unanimous v e r d i c t q u e s t i o n .

I n m o p i n i o n t h i s c a s e must be r e v e r s e d and remanded y

f o r a new t r i a l under p r o p e r i n s t r u c t i o n s . However, I w i l l

d i s c u s s t h e s e n t e n c e imposed. The d i s c u s s i o n on s e n t e n c i n g

which f o l l o w s o n l y becomes germane i f d e f e n d a n t ' s c o n v i c t i o n

i s affirmed. The s e n t e n c i n g a n a l y s i s which i s s e t f o r t h ,

p r o c e e d s upon t h e assumption t h a t t h e j u r y ' s f i n d i n g s of

g u i l t y a r e upheld.

The d e a t h p e n a l t y i s a v a i l a b l e under t h e p r o p e r c i r c u m s t a n c e s

where d e f e n d a n t i s c o n v i c t e d of d e l i b e r a t e homicide. A

m i t i g a t i n g f a c t o r which t h e t r i a l c o u r t must c o n s i d e r i s t h e

r o l e of t h e d e f e n d a n t i n t h e crime. The c o u r t i s t o c o n s i d e r

an accomplice's r o l e a s a m i t i g a t i n g f a c t o r . Here t h e t r i a l

c o u r t c o u l d n o t d e t e r m i n e whether t h e d e l i b e r a t e homicide

c o n v i c t i o n was on t h e b a s i s of d e f e n d a n t having committed

p r e m e d i t a t e d murder o r r a t h e r on t h e b a s i s t h a t d e f e n d a n t

was c o n v i c t e d a s a n accomplice o r under t h e " f e l o n y murder"

rule. I n t h i s c a s e , a s J u s t i c e Shea p o i n t s o u t i n h i s

d i s s e n t , t h e t r i a l c o u r t i n s t r u c t e d t h e jury t h a t a person

commits t h e o f f e n s e of d e l i b e r a t e homicide i f d e a t h of

a n o t h e r human b e i n g i s c a u s e d w h i l e t h e o f f e n d e r i s engaged

i n o r i s a n accomplice i n t h e commission of r o b b e r y o r

kidnapping.

For p u r p o s e s of s e n t e n c i n g we would have t o assume t h a t

t h e d e f e n d a n t was c o n v i c t e d under t h e i n s t r u c t i o n which gave

t o t h e j u r y t h e most l a t i t u d e . T h e r e f o r e , f o r p u r p o s e s of s e n t e n c i n g , we must assume t h a t d e f e n d a n t was c o n v i c t e d

b e c a u s e t h e j u r y found him t o be an accomplice i n committing

b o t h r o b b e r y and k i d n a p p i n g and t h a t t h e d e a t h of a n o t h e r

human b e i n g was c a u s e d t h e r e b y . J u s t i c e Shea a r g u e s t h a t

t h e r e q u i r e m e n t of j u r y u n a n i m i t y i s a p p l i c a b l e t o t h i s

situation. I n m o p i n i o n i t i s n o t a p p l i c a b l e , b u t w e must y

assume t h a t t h e j u r y c o n v i c t e d under t h e " f e l o n y murder"

o r accomplice a s p e c t of t h e i n s t r u c t i o n . I n o t h e r words, i f

s i x v o t e d f o r c o n v i c t i o n because t h e y b e l i e v e d d e f e n d a n t

h i m s e l f committed t h e homicide, b u t s i x v o t e d t o c o n v i c t

d e f e n d a n t b e c a u s e he was a n accomplice o r d e a t h r e s u l t e d

d u r i n g t h e commission of a k i d n a p p i n g , t h e c o n v i c t i o n can

o n l y be s u s t a i n e d on t h e b a s i s t h a t a l l t w e l v e j u r o r s a g r e e d

t h a t t h e e l e m e n t s were p r e s e n t r e q u i r i n g a c o n v i c t i o n under

t h e " f e l o n y murder" r u l e o r because d e f e n d a n t was a n accomplice.

I f t h i s assumption i s n o t made, t h e n J u s t i c e S h e a ' s argument

f o r " u n a n i m i t y " must be s u s t a i n e d .

S i n c e we must assume t h a t d e f e n d a n t was c o n v i c t e d a s a n

accomplice o r under t h e " f e l o n y murder" a s p e c t of t h e i n s t r u c t i o n ,

we must f a c e t h e q u e s t i o n of whether such a c o n v i c t i o n can

provide t h e b a s i s f o r imposition of t h e death sentence.

J u s t i c e White, i n a c o n c u r r i n g o p i n i o n i n L o c k e t t v . Ohio

( 1 9 7 8 ) , 438 U . S . 586, 98 S.Ct. 2954, 57 L.Ed. 2d 973, i n d i c a t e d

t h a t t h e d e a t h p e n a l t y c o u l d o n l y be imposed where t h e

d e f e n d a n t w a s g u i l t y of p r e m e d i t a t e d murder t h e r e b y f o r e c l o s i n g

i t s a p p l i c a t i o n t o d e f e n d a n t ' s c o n v i c t i o n a s an a c c o m p l i c e

o r d e f e n d a n t ' s c o n v i c t i o n under a " f e l o n y murder" i n s t r u c t i o n .

F u r t h e r m o r e , t h e r o l e of t h e d e f e n d a n t i s something t h a t

must be c o n s i d e r e d i n imposing t h e d e a t h s e n t e n c e i n Montana.

S i n c e we must assume t h a t t h e d e f e n d a n t d i d n o t a c t u a l l y

k i l l someone, b u t r a t h e r a i d e d o r a b e t t e d , a m i t i g a t i n g f a c t o r e x i s t s negating the death sentence. This m i t i g a t i n g

f a c t o r was n o t t r e a t e d by t h e t r i a l c o u r t . If we were to

assume t h a t d e f e n d a n t was c o n v i c t e d under t h e " f e l o n y murder"

i n s t r u c t i o n , t h e same r e s u l t would a t t a c h .

The t r i a l c o u r t c o n s i d e r e d "ambush" t o b e a n a g g r a v a t i n g

c i r c u m s t a n c e f o r i m p o s i t i o n of t h e d e a t h p e n a l t y . I concur

i n J u s t i c e S h e a ' s d i s s e n t on t h i s i s s u e . Ambush was n o t

p r o p e r l y c o n s i d e r e d a s a n a g g r a v a t i n g c i r c u m s t a n c e where

t h e r e was no proof t h a t t h e d e a t h of Monte Dyckman r e s u l t e d

from " l y i n g i n ambush."

The s a m e problems which e x i s t i n d e f e n d a n t ' s c o n v i c t i o n

f o r d e l i b e r a t e homicide e x i s t i n d e f e n d a n t ' s c o n v i c t i o n f o r

aggravated kidnapping. W e must assume t h a t t h e d e f e n d a n t ' s

r o l e i n a g g r a v a t i n g k i d n a p p i n g was a s a n a c c o m p l i c e . Not

o n l y d i d t h e t r i a l c o u r t f a i l t o c o n s i d e r d e f e n d a n t ' s accomplice

r o l e a s a m i t i g a t i n g f a c t o r , b u t under J u s t i c e W h i t e ' s

c o n c u r r i n g o p i n i o n i n t h e L o c k e t t c a s e , t h e p e n a l t y of d e a t h

c o u l d n o t be imposed where t h e d e f e n d a n t ' s r o l e w a s o n l y

t h a t of a n accomplice.

I n Lockett v. - s u p r a , J u s t i c e White s a i d : - Ohio, " I t i s now e s t a b l i s h e d t h a t a p e n a l t y c o n s t i t u t e s c r u e l and u n u s u a l punishment i f it i s excessive i n r e l a t i o n t o t h e crime f o r which i t i s imposed. A punishment i s d i s - p r o p o r t i o n a t e ' i f i t (1) makes no m e a s u r a b l e c o n t r i b u t i o n t o a c c e p t a b l e g o a l s of punish- ment and hence i s n o t h i n g more t h a n t h e pur- p o s e l e s s and n e e d l e s s i m p o s i t i o n of p a i n and s u f f e r i n g ; o r ( 2 ) i s g r o s s l y o u t of propor- t i o n t o t h e s e v e r i t y of t h e crime. A punish- ment might f a i l t h e t e s t on e i t h e r ground. ' Coker v. G e o r g i a , 433 U.S. 584, 592 (1-977) ( o p i n i o n of White, J . ) . Because i t h a s been extremely r a r e t h a t t h e d e a t h p e n a l t y has been imposed upon t h o s e who were n o t found t o have i n t e n d e d t h e d e a t h of t h e v i c t i m , t h e punishment of d e a t h v i o l a t e s b o t h t e s t s under the circumstances present here. (438 U.S. a t 624) ". . . Under t h o s e c i r c u m s t a n c e s t h e c o n c l u - s i o n i s u n a v o i d a b l e t h a t t h e i n f l i c t i o n of d e a t h upon t h o s e who had no i n t e n t t o b r i n g a b o u t t h e d e a t h of t h e v i c t i m i s n o t o n l y g r o s s l y o u t of p r o p o r t i o n t o t h e s e v e r i t y of t h e crime b u t a l s o f a i l s t o c o n t r i b u t e s i g n i - f i c a n t l y t o a c c e p t a b l e o r , i n d e e d , any p e r - c e p t i b l e g o a l s of punishment." (438 U.S. a t 626)

A m a j o r i t y of t h e U n i t e d S t a t e s Supreme C o u r t h a s n o t

s e t t l e d t h e q u e s t i o n d i s c u s s e d by J u s t i c e White i n h i s

concurring opinion i n Lockett. C e r t i o r a r i h a s now been

g r a n t e d and t h e United S t a t e s Supreme C o u r t w i l l soon d e t e r m i n e

t h i s question. I n m judgment t h e C o u r t w i l l f o l l o w J u s t i c e y

W h i t e ' s o p i n i o n a s q u o t e d above.

Should t h e f e d e r a l c o u r t s d e t e r m i n e t h a t t h e d e a t h s e n t e n c e

i s a v a i l a b l e under t h e c i r c u m s t a n c e s of t h i s c a s e , t h e n t h e

d e a t h s e n t e n c e s g i v e n , and t h e c i r c u m s t a n c e s under which t h e y

were g i v e n , must be examined. Clearly, i n t h i s case, the

a c c e l e r a t i o n of a s e n t e n c e from l i f e t o d e a t h on t h e d e l i b e r a t e

homicide c h a r g e , was i n v i o l a t i o n of t h e g u i d e l i n e s e t f o r t h - L , P~A~LCQ -- i% ie n %c e V. iLrth C a r u i i m ( 1 9 6 9 ) , 395 U.S. 711, 89 S . C t .

2072, 2 3 L.Ed.2d 656. The t r i a l c o u r t i m p r o p e r l y a c c e l e r a t e d

t h e s e n t e n c e t o a d e a t h p e n a l t y by c o n s i d e r i n g f a c t s which

o c c u r r e d p r i o r t o t h e t i m e t h a t t h e f i r s t s e n t e n c e was

imposed. Secondly, i t was improper f o r t h e t r i a l c o u r t t o

c o n s i d e r d e f e n d a n t ' s demeanor on t h e w i t n e s s s t a n d d u r i n g

t h e second t r i a l and b a s e a n a c c e l e r a t e d s e n t e n c e upon t h a t

demeanor. I concur i n t h e s t a t e m e n t s made by J u s t i c e Shea

on t h i s i s s u e .

W have, i n d e e d , f a i l e d t o promulgate r u l e s f o r p r o p o r t i o n - e

a l r e v i e w a s mandated by s t a t u t e . The i m p o s i t i o n of t h e

d e a t h s e n t e n c e c a n n o t be p e r m i t t e d under t h e s e c i r c u m s t a n c e s .

I concur i n J u s t i c e S h e a ' s d i s s e n t on t h i s i s s u e .

I a l s o a g r e e t h a t d e f e n d a n t i s e n t i t l e d t o a h e a r i n g on

whether hanging i s c r u e l and u n u s u a l punishment. The m a j o r i t y h a s d i s m i s s e d t h i s c o n t e n t i o n by s t a t i n g t h a t t h e form of

execution i s a matter f o r the l e g i s l a t u r e . This i s n o t so.

The cons ti t u t i o n p r o h i b i t s " c r u e l and u n u s u a l punishment. " I t i s t h e e x c l u s i v e p r o v i n c e of t h e j u d i c i a r y t o determine

whether t h a t fundamental r i g h t i s b e i n g v i o l a t e d . This

d e t e r m i n a t i o n c a n n o t be made by t h e l e g i s l a t u r e . Defendant

h a s r a i s e d a s u b s t a n t i a l c l a i m t h a t , i f s u p p o r t e d by e v i d e n c e ,

would i n d i c a t e t h a t hanging c a u s e s p a i n and s u f f e r i n g p r i o r

t o death. T h i s form of e x e c u t i o n , i f c o n s t i t u t i n g a t y p e of

t o r t u r e , would c e r t a i n l y be c r u e l and u n u s u a l punishment

p r o h i b i t e d by t h e c o n s t i t u t i o n . Only t h e c o u r t s c a n make

t h i s d e t e r m i n a t i o n and t h e d e f e n d a n t must have a h e a r i n g s o

t h a t t h e c o u r t s can properly e v a l u a t e t h e medical evidence

b e a r i n g upon t h i s c l a i m .

I would r e v e r s e d e f e n d a n t ' s c o n v i c t i o n and remand f o r a

new t r i a l under a p p r o p r i a t e i n s t r u c t i o n s d e f i n i n g t h e £ t ,

r o b b e r y , k i d n a p p i n g , a g g r a v a t e d k i d n a p p i n g and d e l i b e r a t e

homicide.

I n a d d i t i o n t o what I have s t a t e d i n m d i s s e n t , I y j o i n i n J u s t i c e M o r r i s o n ' s d i s s e n t where h e c o n c l u d e s t h a t t h e f a i l u r e t o define t h e f t f o r t h e jury i s f a t a l t o both t h e d e l i b e r a t e homicide c o n v i c t i o n and t h e a g g r a v a t e d k i d n a p p i n g c o n v i c t i o n . R e v e r s a l i s even more c o m p e l l i n g h e r e b e c a u s e F i t z p a t r i c k h a s been s e n t e n c e d t o d e a t h a s a r e s u l t of b o t h c o n v i c t i o n s . The f a i l u r e t o d e f i n e t h e f t l e a v e s t h e c e r t a i n t y o f t h e c o n v i c t i o n s even more i n d o u b t . T h i s u n c e r t a i n t y c a n n o t be condoned i n a c a p i t a l c a s e .

Jus