State v. McKenzie

• Decision Date: 25 July 1978
• Docket Number: No. 13011,13011
• Citation: 35 St.Rep. 759,177 Mont. 280,581 P.2d 1205
• Parties: The STATE of Montana, Plaintiff and Respondent, v. Duncan Peder McKENZIE, Jr., Defendant and Appellant.
• Court: Montana Supreme Court

Page 1205

581 P.2d 1205

177 Mont. 280

The STATE of Montana, Plaintiff and Respondent, v. Duncan Peder McKENZIE, Jr., Defendant and Appellant.

No. 13011.

Supreme Court of Montana.

Submitted March 13, 1978.

Decided June 7, 1978.

Dissenting Opinion July 7, 1978.

Rehearing Denied July 25, 1978.

Barney Reagan (argued), Cut Bank, for defendant and appellant.

Mike Greely, Atty. Gen. (argued), Helena, Michael McCarter, Asst. Atty. Gen. (argued), Helena, Douglas L. Anderson, County Atty. (argued), Conrad, for plaintiff and respondent.

HASWELL, Chief Justice.

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 conviction and sentence were affirmed on appeal by this Court. State v. McKenzie, (1976), Mont., 557 P.2d 1023, 33 St.Rep. 1043.

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. This opinion constitutes the judgment of this Court following remand.

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

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

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

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

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

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

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

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

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

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

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

Defendant appealed from the judgment of conviction and sentence imposed. We affirmed. State v. McKenzie, supra. The United States Supreme Court, on certiorari, vacated this Court's judgment and remanded the cause to us for further consideration in the light of Patterson v. New York, supra.

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.

In the interest of an orderly presentation of the specifications of error raised by defendant, we reorganize and present them insofar as possible in chronological sequence. Although there is some overlap, the issues on appeal generally fall into four categories: (1) Those relating to pretrial proceedings; (2) those involving the trial itself; (3) issues involving post-trial proceedings, including but not limited to, imposition of the death sentence; and (4) issues for reconsideration as remanded from the United States Supreme Court.

Defendant's specifications of error on appeal are:

1. The issuance and execution of the arrest and search warrants without probable cause, including all claims of error flowing therefrom.

2. Errors relating to the District Court's refusal to permit defendant to change his plea and enforce a plea bargain.

3. Denial of defendant's motions for substitution of the trial judge.

4. Permitting the filing of amended Informations against the defendant and matters relating thereto.

5. Denial of a speedy trial to defendant.

6. Denial of defendant's motions for a protective order and the constitutionality of Montana statutes relating thereto.

7. Denying defendant the right to voir dire the jury on legal concepts relating to defendant's mental state.

8. Permitting the State to endorse 58 additional witnesses on the amended Information on the first day of trial.

9. Failure of the State to timely furnish defendant with statements of its witnesses.

10. Improperly admitting in evidence numerous State's exhibits and denying admission in evidence certain proposed exhibits of defendant's.

11. Improperly instructing the jury.

12. Improper jury verdict forms.

13. Permitting audience recording of the State's closing argument to the jury.

14. Undue interference and partisan attitude by the trial court preventing an orderly and proper presentation of the case.

15. Insufficiency of the evidence to support the verdict.

16. Denial of defendant's motion for a new trial.

17. Errors in the court's "findings, conclusions, sentence and order" resulting in the imposition of the death sentence.

18. On remand from the United States Supreme Court, the issue is whether the trial court's instructions improperly shifted the burden of proof of defendant's state of mind, an essential element of the crimes charged, to defendant in violation of due process under the federal and state constitutions.

In connection with the first issue above, defendant contends: The arrest and search warrants were not issued upon probable cause in violation of United States and Montana constitutional requirements; the facts supporting probable cause were not made under oath or affirmation and reduced to writing in violation of Montana constitutional requirements; the search warrant was either issued as or converted into a prohibited general search warrant; section 95-1806(f), R.C.M.1947, is unconstitutional under the United States and Montana Constitutions; by reason thereof State's exhibits 17, 18,...