MR. JUSTICE SHEEHY
delivered the opinion of the Court.
Appeal from an order of the District Court, Eighth Judicial District, Cascade County, denying the petition of Duncan Peder McKenzie, Jr. for relief under section 46-21-101, et seq., [30]*30MCA (post conviction relief) and section 46-22-101, et seq., MCA (habeas corpus).
Defendant Duncan Peder McKenzie, Jr. was convicted of the crimes of deliberate homicide and aggravated kidnapping by jury verdict in the District Court of Cascade County and thereafter was sentenced to death. The convictions and sentence were affirmed on appeal by this Court. State v. McKenzie (1977), 171 Mont. 278, 557 P.2d 1023 (hereafter McKenzie I).
Thereafter, the United States Supreme Court granted certiorari, vacated this court’s judgment and remanded the cause to us for further consideration in light of Patterson v. New York (1977), 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281.
On remand to this Court, we gave consideration to the entire case, saying:
“We have reconsidered the entire case, not only in the light of Patterson, but also on all issues raised in the original appeal to this Court. This opinion constitutes this Court’s judgment in the entire case following remand.” State v. McKenzie (1978), 177 Mont. 280, 288, 581 P.2d 1205, 1210 (McKenzie II).
Following our affirmance of the conviction and sentence in McKenzie II, the defendant sought relief under the Sentence Review Division of this Court, under the provisions of section 46-18-901, et seq., MCA. His petition for review there was denied. His attempted appeal of that decision to this Court was also denied, since no appeal is provided in our statutes from decisions of the Sentence Review Division.
Defendant again petitioned for certiorari to the United States Supreme Court, and it was granted. The case was again remanded to us for further consideration in the light of the United States Supreme Court decision in Sandstrom v. Montana (1979), 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39. The remand citation is McKenzie v. Montana (1979), 443 U.S. 903, 99 S.Ct. 3094, 61 L.Ed.2d 871.
When the case came to us on the second remand, this Court again gave full consideration to the case, again saying:
“We have reconsidered the entire case, not only in the light of Patterson and Sandstrom, but also on all issues raised in the original appeal. This opinion constitutes this Court’s judg[31]*31ment in the entire case following remand.” 608 P.2d 428, 436, 37 St.Rep. 325, 328.
The report of our third consideration is in State v. McKenzie (1980), Mont., 608 P.2d 428, 37 St.Rep. 325 (hereafter McKenzie III).
Following McKenzie III, defendant again sought certiorari from the United States Supreme Court, but his petition was denied. McKenzie v. Montana (1980), 449 U.S. 1050, 101 S.Ct. 626, 66 L.Ed.2d 507 (Justices Marshall and Brennan dissenting).
Having thus exhausted the appellate process, McKenzie on January 5, 1981, filed in the District Court of the Eighth Judicial District, his petition for post-conviction relief or habeas corpus. That is the petition with which we are now concerned. It is from the denial of that petition that we now enter upon McKenzie IV.
Counting the defendant, there are presently in Montana three persons facing the sentence of death following their criminal convictions by juries. All three cases have been before this Court on appeals from denials of post-conviction relief in recent months. Coleman v. Montana (1981), Mont., 633 P.2d 624, 38 St.Rep. 1352, and Fitzpatrick v. Montana (1981), Mont., 638 P.2d 1002, 38 St.Rep. 1448 (Fitzpatrick III), have already preceded this opinion. In the other two cases, some identical issues have been decided. We will rely on and refer to them to some extent in this opinion, where the discussions are pertinent.
One of the issues that has arisen in all three cases, and the first issue we come to here, is the extent of review to which the defendant is entitled under post-conviction relief on matters that have been raised and litigated in the course of the appellate process.
We state that the extent of review is the first issue, although in the briefs of both McKenzie and the State, the first question raised is whether this Court has jurisdiction of an appeal from a decision of the District Court in a post-conviction relief case, under section 46-21-101, et seq., MCA. Both parties concede that either party has a right to appeal from a district court order entered on such a petition under section 46-21-203, MCA. We agree that an appeal lies in this case.
[32]*32With respect to the extent of our review, and indeed of the review of the District Court, McKenzie contends in this case that the District Court erred in refusing to review issues raised by McKenzie in his petition, by holding that the previous decisions of this Court in the McKenzie cases raised a “res judicata bar” and “that issues previously considered on direct appeal are not appropriately raised in this petition”. McKenzie contends that the misapplication by the District Court of res judicata principles to the post-conviction action affected the entirety of the District Court’s decision and for that reason should be reversed.
The State responds that McKenzie is relying on dicta found in earlier cases in this Court and the true rule is that this Court will refuse to reconsider issues on which it has previously ruled; that the Post-Conviction Relief Act is intended only to assure that a convicted felon has an opportunity, one opportunity, to present material issues affecting his conviction.
In the most recent Coleman case, supra, 38 St.Rep. at 1359, this Court held that res judicata cannot be applied to deprive a convicted defendant of his right to file a post-conviction petition, but the rule may be used to bar the rehearing of issues already litigated, citing Sanders v. United States (1963), 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148. Again, in the most recent Fitzpatrick case, this Court noted that the District Court had granted the State’s motion to dismiss six of Fitzpatrick’s claims on the ground that the claims had been previously decided on the merits and were res judicata. In Fitzpatrick, 38 St.Rep. at 1451, this Court held that.the decision of the district judge not to review previously litigated issues would not be disturbed absent a clear showing of abuse of discretion, again relying on Sanders, supra.
McKenzie relies here upon dicta contained in State v. Standley (1981), Mont., 626 P.2d 248, 38 St.Rep. 522, and In Re McNair (1980), Mont., 615 P.2d 916, 37 St.Rep. 1487. In those cases, we stated that a petition for post-conviction relief under section 46-21-102, MCA, is not subject to objections based on res judicata, laches, or the statutes of limitation. Nonetheless, in those two cases, post-conviction relief was denied, in McNair for a delay of 8 1/2 years in asking for the [33]*33relief, and in Standley for a delay of 25 years. In McNair, we said such a delay raised the question of good faith on the part of the petitioner and in Standley, we pointed out the impracticability of retrial of Standley if his original plea of guilty were allowed to be withdrawn.
Nonetheless, in Spurlock v. Crist (1980), Mont., 614 P.2d 498, 501, 37 St.Rep. 1146, 1149, we refused to consider in a habeas corpus proceedings in this Court issues that had been previously argued and decided on appeal. In In Re Quigg (1976), 168 Mont. 512, 544 P.2d 441, cert.denied 425 U.S. 994, 96 S.Ct. 2207, 48 L.Ed.2d 818 on a petition for post-conviction relief, we refused to consider issues previously ruled on in the appeal.
The seeming double-mindedness of our stances on this point is more illusory than real. We cannot fault counsel for the defendants, whose duties are to explore every nuance of legal defense on the part of their clients, consonant with ethics and the proprieties of law, in raising such issues. It should be clear, however, that the broad statements made in McNair and Standley, supra, are not to be followed here. To be clear about it, we do not reject our statements in Standley and McNair, supra, that res judicata, laches and statutes of limitations are not a bar to post-conviction relief, or to habeas corpus, in a proper case. We do say that the concept of finality, when the appellate process has been exhausted, or the judgments of conviction have become final, must be respected as to issues which have been fully and finally litigated. Neither the district courts nor we are required to turn over ground already plowed, even in death penalty cases. Successive motions and petitions directed again and again to the same issues serve no judicial, social or individual purpose.
The problem of post-conviction relief as affected by the finality of judgments has not escaped the attention of the American Bar Association in its Standards for Criminal Justice (2d ed.). It has adopted a standard that deals with postconviction applications in the same judicial system that conducted the original prosecution, as for example, a state prisoner seeking post-conviction relief in the state courts. Standard 22-6.1, ABA Standards for Criminal Justice (2d [34]*34ed.). We adopt from that standard, as rules to be followed by district courts in this and like cases, and by us for decision in this case, the following:
(A) Any issue that has been fully and finally litigated in the proceedings leading to the judgment of the conviction should not be relitigated in post-conviction proceedings.
(B) An issue should be deemed fully and finally litigated when the highest court of the state to which a defendant could appeal his right has ruled on the merits of the question.
(C) Finality, when raised and shown by objection or affirmative defense on the part of the state is a bar to the relitigation of fully and finally litigated issues.
We will further follow the same ABA Standard by determining that claims advanced in post-conviction applications shall be decided on their merits, even though they might have been, but were not fully and finally litigated in the proceedings leading to judgments of conviction, unless barred because of abuse of process. Abuse of process occurs where an applicant raises in post-conviction proceedings a factual or legal contention which the petitioner deliberately or inexcusably failed to raise in the proceedings leading to conviction, or having raised the contention in the court, failed to pursue the matter on appeal. (ABA Standards for Criminal Justice (2d ed.) Standard 22-6.1.) Having stated those rules, which we consider were implicit in our former rulings, it is clear that this Court should not and will not consider previously-litigated issues in this appeal and that we will sustain the District Court for refusing to consider fully and finally litigated issues in the post-conviction proceedings before it. See our discussion on this point in Fitzpatrick III, 38 St. Rep. at 1450-51, 638 P.2d 1002.
Having so determined, we proceed to examine the issues raised in McKenzie’s petition for post-conviction relief. It will be noted that some of the issues have been considered by this Court not once but two and three times. In all the annals of criminal justice in this state, we find no case in which a single defendant has received more tender legal care (using “tender” in the sense of careful and sensitive handling).
[35]*35
I. Search and Seizure
Petitioner contends that the District Court, in considering his application for post-conviction relief, did not address his factual allegations respecting: (1) unwritten sworn testimony purporting to support the issuance of search warrants; (2) the overbreadth or lack of specificity in the search warrant; and, (3) lack of probable cause for issuing the search warrants, and on those bases, contends he should have a hearing. The District Court refused to consider the issues further because of earlier decisions by this Court.
First we note that at the District Court level, in the criminal proceedings against him, defendant was granted a hearing on his motion to suppress the evidence produced by the search warrants and the order of suppression was denied. That denial of suppression was before this Court at all times when the McKenzie cases were being considered. We further note: (a) issue no. 1 under this heading was considered, fully litigated and decided by this Court in McKenzie I, 557 P.2d at 1034, 1035; McKenzie II, 581 P.2d at 1211, 1212; and McKenzie III, 608 P.2d at 437. (b) issue no. 2 above was considered, fully litigated and decided by this Court in McKenzie I, 557 P.2d at 1035; McKenzie II, 581 P.2d at 1212, 1213; McKenzie III, 608 P.2d at 438. (c) issue no. 3 above was considered, fully litigated and decided by this Court in McKenzie I, 557 P.2d at 1034; McKenzie II, 581 P.2d at 1212; and McKenzie III, 608 P.2d at 437, 438, 439.
The claims of the petitioner with respect to the search and seizure category have been fully and finally decided on the merits. The District Court was correct in refusing to grant further hearings relating to those issues. We will not consider the issues further because of the finality of those earlier decisions.
The District Court noted in its order denying post-conviction relief that counsel for the petitioner had conceded at oral argument that further factual development was not required. Based on this concession, and the voluminous record in this case exploring these issues, the District Court found no denial of a full and fair hearing with respect to search and seizure. We agree.
[36]*36II. Mental Defect — Trial Bifurcation — Instructions
In Ms application to the District Court, petitioner claims unconstitutional error against him in (1) the trial court’s refusal to grant a bifurcated trial on the issue of his insanity/diminished mental capacity to commit the crime; (2) in refusing to appoint psychiatric experts to assist defense counsel and to testify for the defendant unless he submitted to an interview with an expert appointed by the court and unless reports of the interview by the experts were submitted to the court before the testimony was presented; and (3) in admitting the testimony of the prosecution’s psychiatric expert relating to petitioner’s exercise of his Fifth Amendment rights to remain silent in such interview. Petitioner’s brief in this Court expands those allegations to argue further (4) it was error for this Court to rely on instructions given to the jury to cure the alleged error in permitting the prosecution’s psychiatric expert to testify that defendant had remained silent.
(a) The petitioner offers no authority under our law that a defendant as a matter of constitutional law is entitled to a separate jury trial on the issue of insanity or diminished mental capacity to commit the crime charged. Section 95-507(c), R.C.M. 1947, in effect at the time of petitioner’s trial (now section 46-14-213(1), MCA), contemplates the issue to be decided “upon the trial”. This Court held in State v. Olsen (1971), 156 Mont. 339, 343, 480 P.2d 822, 824, that a defendant who gives notice of insanity as a defense is not entitled to a bifurcated trial. We hold the same rule applicable to a defense of mental disease or defect.
(b) With respect to issue no. 2 in the above heading, there is a division of authority as to the right of an accused to expert investigation and psychiatric help under his Sixth Amendment rights, but the Ninth Circuit has held refusal of expert help does not violate due process through the Sixth and Fourteenth Amendments in state proceedings absent a showing of prejudice. Mason v. State of Arizona (9th Cir. 1974), 504 F.2d 1345. Here, petitioner has not alleged or shown any prejudice that resulted to him from the denial by the District Court in the criminal proceedings of the motion to appoint psychiatrists to aid counsel in the defense.
[37]*37(c) Under section 95-507, R.C.M. 1947, then in effect, (now section 46-14-213, MCA), it is provided that upon trial, any psychiatrist who reported under section 95-505, R.C.M. 1947, (now sections 46-14-202 and 46-14-203, MCA) may be called by either party. The statute provides that the jury may not be informed that the psychiatrist was designated by the court or by the superintendent of Warm Springs Hospital. In addition, both the prosecution and the defense may summon any other qualified psychiatrist to testify who has examined the defendant. In this case, during the criminal proceedings, when the court ordered the psychiatric interview, counsel for the defendant stated in open court that the defendant would exercise his right to remain silent as to any questions relating to the Lana Harding homicide. His silence was testified to by psychiatrists at the time of their appearances in court.
The District Court, in discussing this issue, in the application for post-conviction relief, noted that the psychiatric witnesses drew no inference as to guilt or innocence, nor did they suggest such inference to the jury. The court noted that one of the psychiatric witnesses testified that since the petitioner would shed no light on the incident, he presumed the petitioner innocent. The District Court also pointed out that during the petitioner’s trial, in court’s instruction no. 43, the jury was told that it was to draw no unfavorable inferences from the petitioner’s silence. “In short”, said the District Court, “nothing in the record shows that the State exploited the psychiatric testimony so as to burden the petitioner’s Fifth Amendment right to remain silent.” We agree and find no prejudice.
(d) In connection with issue no. 4 in the above heading, it was not error for the District Court to require the defendant to submit to a psychiatric interview in this case. Under section 95-505, R.C.M. 1947, then in effect, (now section 46-14-202, MCA) it is provided that the court may order such an examination when a defendant has filed a notice of intention to rely on the defense of mental disease or defect excluding responsibility, or if there is reason to doubt his fitness to proceed, or if there is reason to believe that mental disease or defect of the defendant will otherwise become an issue in the [38]*38cause. In those circumstances, a court may order a psychiatric examination and, as the District Court noted, we stated in State ex rel. Sikora v. District Ct. of 13th Jud. Dist. (1969), 154 Mont. 241, 245, 462 P.2d 897, 899, that the constitution does not “assure (a defendant) a right to so defend as to deny the state a chance to check into the truth of his position.”
(e) Further, with respect to issue no. 4 under this heading, whether it is error to rely on the general jury instructions to offset the effect of the psychiatrists testimony that the defendant remained silent during his examination, and the further contention that it is not sufficient to rely on such general instructions because there is an implied admission of guilt when a defendant relies on insanity/diminished mental capacity, in McKenzie III, 608 P.2d 455, 456, 457, this Court discussed fully the careful instructions given by the District Court in the criminal proceedings. We have already noted that the District Court specifically informed the jury that no inference was to be drawn from the defendant’s remaining silent during a psychiatric interview. We therefore confirm the holding of the District Court with respect to the issues raised under this heading on petitioner’s application for post-conviction relief.
Before leaving this set of issues, however, we point out that in McKenzie I, 557 P.2d at 1041, 1042, 1043, and again in McKenzie II, 581 P.2d at 1215, this Court answered the petitioner’s attacks on the constitutionality of our statutes relating to the notice required when a defendant intends to rely on an insanity/diminished mental capacity defense, and the procedures to be followed thereunder.
III. Admitted Exhibits — Conduct of Trial
Petitioner’s, application for post-conviction relief also contended that he was denied constitutional rights in (1) the admission by the court into evidence in the criminal proceedings of inflammatory photographs of the victim, (2) in the District Court’s changing of the order of trial and refusal to hold subpoenaed witnesses until the defendant’s case in chief, (3) in permitting spectators to use recording devices in the courtroom, (4) int allowing an inflammatory and circus-like atmosphere to exist in the courtroom, and (5) in allowing family [39]*39and friends of the victim to make emotional expressions toward the petitioner in the presence of the jury.
(a) The contention with respect to inflammatory photographs was considered, fully litigated and decided by this Court in McKenzie II, 581 P.2d at 1218, and in McKenzie III, 608 P.2d at 443, 444.
(b) This Court found no error in allowing FBI agents to give expert opinion testimony prior to the completion of the chain of evidence upon which the opinion was based, in McKenzie II, 581 P.2d at 1219, and in McKenzie III, 608 P.2d at 444. Petitioner’s contention that the trial court in the criminal proceedings erred in failing to hold FBI agents for the duration of the trial was treated in McKenzie III, 608 P.2d at 446, 447. These issues have therefore been considered, fully litigated and decided.
(c) The tape-recording issue was considered, fully litigated and decided in McKenzie I, 557 P.2d at 1037; McKenzie II, 581 P.2d at 1124, 1125, and McKenzie III, 608 P.2d at 446.
(d and e) With respect to petitioner’s contentions that a circus-like atmosphere prevailed in the criminal trial proceedings, and that the members of the family were allowed to give expression to emotional feelings and comments in the presence of the jury, we need only say there is no record in all the voluminous transcripts here to support those contentions, nor was a single objection advanced by the petitioner’s counsel in the criminal proceedings on those points. The District Court, in considering the application for post-conviction relief, pointed out that the jury had been instructed to decide the case solely upon the evidence, without regard to sentiment, conjecture, sympathy or compassion, and nothing in the record discloses the jury faded to follow that instruction due to the conduct of the trial spectators. We find no error therefore, on these points raised without support in the record.
IV. Sandstrom Instructions
The petitioner contends that he was denied due process in that (1) the trial court’s instructions to the jury directed the jury to find elements of the offenses charged by the use of “presumptions” and “inferences” which shifted the burden of [40]*40persuasion to the defendant and allowed the jury to adopt inferences which did not follow beyond a reasonable doubt from the facts on which they were based; (2) that the instructions contained numerous erroneous examples which (3) were designed to lead the jury to the inescapable conclusion of petitioner’s guilt. In brief, petitioner contends that he has been treated inconsistently with our decision in State v. Wogamon (1980), Mont., 610 P.2d 1161, 1165, 37 St.Rep. 840, 846.
(a) In McKenzie III, 608 P.2d at 456, et seq., this Court fully reviewed petitioner’s contentions that his conviction and sentence should be set aside in the light of Sandstrom v. Montana (1979), 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39. The matter has been fully considered, litigated and decided by this Court.
(b) Petitioner’s contentions that the instructions contained erroneous examples and were designed to lead inescapably to defendant’s guilt were part and parcel of our consideration under the Sandstrom case and McKenzie III. Petitioner has not attempted to show in any way how the examples led the jury inescapably to his guilt and we find no such design, intentional or otherwise.
(c) We do not agree that the holding in McKenzie III is inconsistent with our holding in Wogamon. In Wogamon, we pointed out that the United States Supreme Court decision in Sandstrom had resulted in a spate of appeals to this Court claiming instructional error. We further showed in Wogamon that in all of the cases brought to us, except for the original Sandstrom decision and Wogamon, we had found no reason to set aside the convictions in those several cases on the basis of the Sandstrom instruction. Wogamon, 610 P.2d at 1164. Nor can it be said that we have given petitioner a different kind of legal treatment than we provided Wogamon. In Wogamon, we applied the principles declared by the United States Supreme Court in In Re Winship (1970), 397 U.S. 238, 90 S.Ct. 1068, 25 L.Ed. 368, and in Mullaney v. Wilbur (1975), 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508. We also declared that in finding harmless error in a Sandstrom instruction, “we must be able to agree as a Court that the offensive instruction could not reasonably have contributed to the jury’s verdict.” Wogamon, 610 P.2d at 1165.
[41]*41In the petitioner’s case, in McKenzie III, we found that the evidence of McKenzie’s guilt was so overwhelming that the Sandstrom instructions could not possibly have contributed to petitioner’s conviction and that therefore the instructions were harmless error. The position of this Court in McKenzie III was not disturbed when the United States Supreme Court refused certiorari from the decision in McKenzie III (1980), 449 U.S. 1050, 101 S.Ct. 626, 66 L.Ed.2d 507. True, two United States Supreme Court justices disagreed in a dissenting opinion. Nonetheless the majority of the Supreme Court found no reason when certiorari was sought with respect to McKenzie III to disturb the reliance of this Court on Milton v. Wainwright (1972), 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1, to the effect that the constitutional infirmity is ex cluded where overwhelming evidence supports the conviction.
Therefore, the District Court did not err in denying the petitioner’s contentions under the Sandstrom instructions.
V. Sufficiency of the Evidence
Under this contention, petitioner claims that this court improperly rejected in McKenzie III, 608 P.2d at 447-448, his claim that there was insufficient evidence that Lana Harding’s death resulted from a kidnapping or that she was tortured prior to her death. He further contends in brief that the standard applied by this Court in making that determination has been repudiated as a matter of federal constitutional law in Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560.
(a) Of course, the issue of the sufficiency of the evidence to support the verdicts that the defendant committed deliberate homicide by torture and that as a result of her aggravated kidnapping, Lana Harding died, has been fully considered, litigated and decided by this Court in McKenzie III, 608 P.2d at 447-448.
In Jackson, it was stated that based on In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368, the critical inquiry on review of the sufficiency of evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed on reasonable doubt, but to determine [42]*42whether record evidence could reasonably support a finding of guilt beyond a reasonable doubt. It was stated that the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond reasonable doubt, repudiating the “no evidence” rule. Jackson, 443 U.S. at 318-320, 99 S.Ct. at 2789-90.
The contention that in McKenzie III, this Court applied an incorrect standard in determining the sufficiency of the evidence is perhaps a new issue, though implicit in our earlier statements respecting the overwhelming evidence of criminal intent is a finding of the sufficiency of the evidence. It is painful to repeat, that in the light most favorable to the State, the testimony of Dr. Pfaff was that Lana Harding was initially assaulted by means of attempted strangulation with a rope. She lived from 30 to 90 minutes thereafter, until she was struck on the head with a heavy object. The State contended the heavy object was the manifold that was found in the defendant’s pickup. She died within 2 or 3 minutes of that blow, which opened her skull and exposed her brain tissue. In addition, there were five major and a number of minor wounds to the head which may have been inflicted by the same heavy instrument or a lighter one. Other lighter metal objects were found in petitioner’s pickup. Dr. Pfaff testified that Lana Harding may or may not have been conscious after the initial attempted strangulation, but there are multiple wounds which give evidence that she was in fact conscious. She had received blows to the top of the head, over the front part of her face and on the right side. The backs of both of her hands were bruised which would indicate that she was attempting to ward off the blows of her assailant. These wounds, contusions and abrasions are evidence beyond a reasonable doubt to any rational trier of fact that she was indeed tortured.
That the aggravated kidnapping resulted in her death is equally evident from the testimony. Dr. Pfaff testified that the infliction of the major wound to her head which caused her death would have resulted in extensive bleeding. He also stated that the absence of a large amount of blood in an area would indicate that the large wound was not inflicted in that [43]*43area. No appreciable amount of blood was found in the teacherage in which she resided. However, a large amount of her blood was found at a place near the teacherage where petitioner had parked his pickup on the night of January 21,1974. Her blood and brain tissue were found in the back of the pickup. A drag trail led from the teacherage to the place where the pickup had been parked. This is evidence beyond a reasonable doubt that Lana Harding, while still alive, was dragged from the teacherage to the pickup and killed in that area. Again, to any rational trier of fact, the evidence is overwhelming that her aggravated kidnapping resulted in her death.
We find no support for petitioner’s contention that this Court has applied an insufficient constitutional standard under Jackson v. Virginia, supra, or under any other case that we are aware of.
VI. Unanimous Verdict
Under this contention, petitioner argues he was denied the right to a unanimous verdict of the jury as to his guilt or innocence as to each of the offenses charged; and, that the trial court, by instructions of law submitted to the jury listing elements of the offenses in the alternative, permitted petitioner’s conviction without unanimous agreement that he had committed any one of the specific acts which constituted the crimes with which he was charged. He contends that the trial court refused an offered instruction which would have required a unanimous' finding of specific acts constituting a specific offense before a verdict of guilty could be rendered and that the trial court failed to submit proper verdict forms which would have allowed the jury to make a specific finding of guilt or innocence as to each of the specific crimes charged.
The District Court, in disposing of this contention, found no federal constitutional right to a unanimous verdict in criminal jury trials, and under the state constitution, Mont. Const., art. II, § 26, found that the unanimous jury verdict provision was complied with since the trial court instructed the jury that all 12 must agree to the “findings” and “decisions” which constituted their verdict. The District Court further determined that each theory presented to the jury was supported by [44]*44substantial evidence, so that no possibility existed that the evidence was insufficient to support either verdict. Under these circumstances, the District Court concluded, the failure to require the jury to specify the theory on which it convicted did not deprive the petitioner of his right to a unanimous verdict.
Here, the jury by its verdict, found the petitioner guilty of deliberate homicide, and found that homicide was by means of torture; in another verdict, it found petitioner guilty of aggravated kidnapping, and found that the aggravated kidnapping resulted in the death of the victim. The jury had been instructed that “all twelve jurors must agree to the decision, including the additional findings you are asked to make on the Guilty of Deliberate Homicide verdict form and on the Guilty of Aggravated Kidnapping verdict form”. When the verdicts were returned, the jury was polled as to each verdict and each of the said findings at the request of defendant’s counsel and each of the verdicts and findings were affirmed. These verdicts and findings are not within the ambit of United States v. Gipson (5th Cir. 1977), 553 F.2d 453, or State v. Green (1980), 94 Wash.2d 216, 616 P.2d 628, for the reason that in this case, as distinguished from the cases on which petitioner relies, the evidence is sufficient here to support the jury verdict under any and all possibilities under the instructions. It is idle to speculate in this case, under the instructions of the court and the overwhelming evidence, that there is any possibility that the verdicts or the findings in this case were less than unanimous.
VII. Equal Protection
Petitioner claims denial of equal protection under the Fourteenth Amendment of the federal constitution, and like provisions of the state constitution, in that the trial court, the District Court on his application for post-conviction relief, and this Court have denied him the benefit of established rules of state law afforded to other criminal defendants in our decisions on search and seizure. Petitioner also objects to our use of the harmless error rule on the Sandstrom instructions. In brief, he contends that he has been further discriminated against in that his is the only case of a sentence of death under a statute now repealed or superseded.
[45]*45Basically, petitioner is using the Fourteenth Amendment device to raise again issues which have otherwise been fully litigated in this cause and decided against him. We have upheld the validity of the arrest and search warrants, we have explained the application of the harmless error rule under the Sandstrom instructions and we have upheld the validity of the statutes which permitted the sentence imposed upon him. McKenzie III, 608 P.2d at 450. His contentions that his rights have been discriminated against, when compared to other defendants, or that he has been discriminatorily “classed” are simply without merit.
VIII. Legality of the Death Sentence
Petitioner contends he was unconstitutionally sentenced to death in that: (a) his death sentences were imposed in violation of the Eighth and Fourteenth Amendments of the federal constitution, in that there were no standards to channel and guide the sentencing discretion of the trial court or to provide safeguards against arbitrary and discriminatory impositions of the sentence of death; (b) his sentence was disproportionate to the sentence imposed in similar cases and he was given no opportunity to show the disproportionality of his death sentence; (c) his sentence of death for aggravated kidnapping which resulted in the death of the victim was constitutionally disproportionate because the jury was not required to find that he deliberately took the life of another; (d) expert testimony agreed that petitioner suffered from a “psychiatric disorder” which should have been a mitigating circumstance; (e) the sentencing court’s findings of aggravating factors are unconstitutionally vague and no standards existed by statute or case law to guide the sentencing discretion; and, (f) this Court improperly upheld his sentence based on aggravating factors which were not listed by statute. Petitioner further contends that he should not be required to bear the burden of establishing mitigating circumstances; that he is entitled to a jury trial on the mitigating facts and the sentences; that his sentences were based on erroneous factual findings drawn from incompetent, unreliable evidence, with no opportunity to rebut; that the plea agreement was breached to his disadvantage; that he is the only person sentenced to death under the [46]*461974 Montana capital punishment law; and, that the death penalty is discriminatorily applied in Montana against impoverished male defendants accused of killing Caucasians, solely upon the ground of race, poverty and sex. He asserts no legitimate state interest is served by the death sentence, that hanging is cruel and unusual punishment.
In McKenzie III, 608 P.2d at 448-451, we held that the statute under which petitioner was sentenced to death was constitutional when considered in the light of Furman v. Georgia (1972), 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, and Gregg v. Georgia (1976), 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859. The constitutionality of the statute has been fully considered and decided by us.
We turn now to consider the attacks made by McKenzie with respect to the sentence imposed upon him, the death penalty.
(1) McKenzie states again that the death penalty laws applicable in his case are arbitrary and unconstitutional in that his sentence was imposed under a statute which “explicitly permitted discretionary death sentencing, without standards to channel and guide sentencing discretion or any other safeguard against arbitrary and discriminatory imposition of the sentence of death . . .:
In McKenzie III, this Court discussed these claims by the petitioner, and we found that the Montana statutory scheme in existence at the time of the crimes herein afforded defendant the procedural safeguards necessary to protect his substantive rights to be sentenced without arbitrariness or caprice, and in accordance with the United States Supreme Court cases of Jurek v. Texas (1976), 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929, Proffitt v. Florida (1976), 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913; and Gregg v. Georgia, supra. The issue therefore of the constitutionality of the sentencing statutory scheme has been fully litigated and decided. McKenzie III, 608 P.2d at 448-451.
(2) McKenzie claims there is no meaningful review provided in the Montana statutory scheme to guard against passion and prejudice, arbitrariness, or disproportionality in his sentencing.
[47]*47In McKenzie III, we pointed out that prompt judicial review of his death sentence was provided both by appeal to this Court and by review in the sentence review division of this Court. This issue has been fully considered, litigated and decided. McKenzie III, 608 P.2d at 450.
(3) McKenzie claims that in his review before the Sentence Review Division, he was given no opportunity to offer evidence and the Sentence Review had no standards to make such a review.
It is clear from the record that when he was before the sentence review division, McKenzie presented no evidence, nor offered to present any evidence with respect to the proportionality or arbitrariness of his sentence. Instead, he attacked the legality, rather than the appropriateness of his sentence. The function of the Sentence Review Division was to consider the appropriateness of his sentence with respect to him as an individual offender, and as to the particular offense involved. McKenzie III, 608 P.2d at 450.
Under section 46-18-904, MCA, the sentence review division is given full authority to review the judgment so far as it relates to the sentence imposed, to either increase or decrease the penalty. In reviewing the judgment, the division may consider other records, documents or exhibits relevant to such review proceedings. When McKenzie appeared before the Sentence Review Division, he requested only that the division obtain from all 56 District Court clerks the records of sentencing in every deliberate homicide and aggravated kidnapping case since 1972. The Sentence Review Division denied this request. The District Court, in considering the application for post-conviction review, held that a proportionality review is sufficient if the Sentence Review Division considers the records of appealed cases. The review division did so consider and we agree with the District Court’s conclusion.
(4) McKenzie attacks his sentence on the ground that it is disproportionate to the crimes for which he was convicted and upon the further ground that the jury did not find that he had deliberately caused the death of another.
McKenzie contends that the death penalty is disproportionate to the offense of aggravated kidnapping. In State v. [48]*48Coleman (1979), Mont., 605 P.2d 1000, 1017, 36 St.Rep. 1134, 1150, cert. denied, 446 U.S. 970, 100 S.Ct. 2952, 64 L.Ed.2d 831, we pointed out that the United States Supreme Court in Gregg, made it clear that “when a life has been taken by an offender [it cannot be said] the punishment [of death] is invariably disproportionate to the crime”. 428 U.S. at 187, 96 S.Ct. at 2932, 49 L.Ed.2d at 882. We distinguished Coker v. Georgia (1977), 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982, as being relevant only to crimes for which the penalty has been imposed which did not result in the loss of a life. In McKenzie III, 608 P.2d at 459, as the District Court noted in considering petitioner’s application for post-conviction relief, we found the evidence on the issue of intent to be overwhelming, uncontradicted, and permitting of but one rational conclusion— that McKenzie intended to kidnap and kill the victim.
(5) McKenzie claims that his sentence of death is disproportionate to sentences imposed in similar cases.
In Coleman, 605 P.2d at 1021, we noted that the crime of aggravated kidnapping has been a part of our statutory law only since 1973 and that we were necessarily confined to a review of cases since that time, which we found sufficient, though not large in number. This case was used in Coleman as a comparative case and we look to Coleman in this case as a comparative case. We also find State v. Fitzpatrick (1980), Mont., 606 P.2d 1343, 37 St.Rep. 194, cert.denied, 449 U.S. 891, 101 S.Ct. 252, 66 L.Ed.2d 118, to be suitable for comparison. Again, in Fitzpatrick, 606 P.2d at 1361, this case was used as a comparative case in discussing the Fitzpatrick sentence of death. Our discussions of the similarity of these cases and the proportionality of the death sentence imposed as to Coleman and Fitzpatrick, as well as to McKenzie, and our discussion of State v. Buckley(1976), 171 Mont. 238, 557 P.2d 283, appearing in Fitzpatrick, 606 P.2d at 1362, indicate that McKenzie is under a sentence that is not disproportionate to sentences that have been imposed in similar cases.
(6) McKenzie attacks his death sentence on the ground that he was suffering from a mental disease or defect denominated a “psychiatric disorder” which he claims to be a mitigating circumstance.
[49]*49The District Court in considering the post-conviction application stated: “The presence of a personality disorder does not automatically immunize a defendant from the death penalty.”
The overweighing factor against the petitioner on this contention is that the jury did not find that he had suffered from a mental disease which prevented him from forming the specific intent necessary for the charged offenses. Even so, the District Court’s sentencing order in the criminal proceedings shows that the factor was considered and found to be insufficient. „
(7) McKenzie attacks his death sentence upon the ground that it is based on findings of aggravating factors which are unconstitutionally vague and open-ended with no channel or guide to the sentencing discretion.
This is simply another way of attacking the constitutionality of the Montana sentencing statutory scheme which as we have indicated above is constitutionally sound.
The crime of “homicide by torture” as defined by the court’s instructions and approved by us in McKenzie III, 608 P.2d at 445, is sufficiently definite to prevent an overbroad application of the factors. Substantial evidence showed that the victim died as a result of an aggravated kidnapping. McKenzie III, 608 P.2d at 447-48. There is no merit in this contention.
(8) McKenzie attacks the sentence upon the ground that the sentencing judge relied on the aggravating factors other than those found in our statutes.
The District Court, in considering the post-conviction application, stated that the jury had found two specific statutory aggravating factors and saw no reason why the sentencing court is required not to consider a wide range of factors in determining whether the aggravating circumstances are outweighed by mitigating factors. For this reason, the District Court determined, in denying McKenzie’s application for postconviction relief, that it was not improper for the District Court to consider: (1) the petitioner’s failure to present evidence to “mitigate his conduct”, (2) his conviction for rape, (3) his purported “dangerousness”, (4) his anti-social behavior, (5) the small number of years he would be required [50]*50to serve if a 100 year sentence were given, (6) whether rehabilitation of petitioner was not possible; and, (7) whether he must be executed for the protection of society.
We agree with the District Court. All of these factors considered by the sentencing court bear on the aggravating factors found by the jury and properly relate to the propriety of the sentence of death.
(9) McKenzie claims that his sentence of death is based on findings from incompetent evidence, some of which was not revealed to him before trial, and against which he had no opportunity for rebuttal.
In McKenzie III, 608 P.2d at 441, 442, we rejected these contentions as to the validity of his conviction. We similarly reject these contentions with respect to the validity of his sentence.
(10) McKenzie attacks his sentence upon the ground that the District Court ignored or violated a plea agreement for a lesser sentence.
In McKenzie III, 608 P.2d at 439, we found that no plea bargain or agreement existed. This issue has been fully litigated and decided and is not a bar to the sentence imposed upon McKenzie.
(11) McKenzie attacks his death sentence because of his claim that he will be the only person executed under the 1974 capital punishment law, and that there is no rational basis to distinguish his case from others.
Again we have repeatedly stated that the statutory scheme for capital punishment as applied to McKenzie was valid, and that his sentence is not disproportionate as to the facts, the crime or his character, and we therefore reject this contention.
(12) McKenzie’s contention that the Montana legislature has subsequently amended the capital punishment provision so as to provide consideration of both aggravating and mitigating circumstances, and that no such provisions existed for his benefit, is again an attack upon the constitutionality of the statutory sentencing scheme in effect with respect to him which we have previously rejected.
(13) McKenzie attacks the death sentence upon the ground that it is being imposed both in Montana and the [51]*51United States against impoverished male defendants accused of killing Caucasians upon the grounds of race, poverty and sex, in a discriminatory pattern and practice.
In Fitzpatrick III, 38 St.Rep. 1448, 1454, we discussed this issue. We find no basis for this contention and petitioner has alleged none. Nor has petitioner offered any proof of such contention.
(14) McKenzie further attacks his sentence upon the ground that no valid state purpose is served in imposing the penalty upon him.
In Gregg, 428 U.S. at 183, two justifications for capital punishment were noted: retribution and deterrence. The applicability of these as justifications present complex issues, properly left for legislative determination, and it is with the legislature that this Court will leave that determination. There is no basis on that ground for post-conviction relief.
(15) McKenzie attacks the imposition of a death penalty by hanging as cruel and unusual punishment.
We discussed this issue in Coleman II, 605 P.2d at 1058-59. The issue has been fully decided by this Court.
We come finally to conclude in this case that petitioner’s application for post-conviction relief in the District Court was properly denied, and that on appeal to this Court, the decision of the District Court is hereby affirmed. We remand this cause to the District Court in which the sentence upon the defendant was imposed, for such further proceedings as are necessary to execute the sentence imposed upon the petitioner.
MR. CHIEF JUSTICE HASWELL and JUSTICES DA-LY and WEBER, and MARK SULLIVAN, District Judge sitting for JUSTICE HARRISON, concur.