Kills on Top v. State

• Decision Date: 28 September 1995
• Docket Number: No. 94-131,94-131
• Citation: 273 Mont. 32,52 St.Rep. 608,901 P.2d 1368
• Parties: Lester KILLS ON TOP, Petitioner and Appellant, v. STATE of Montana, Respondent and Respondent.
• Court: Montana Supreme Court

Page 1368

901 P.2d 1368

273 Mont. 32

Lester KILLS ON TOP, Petitioner and Appellant, v. STATE of Montana, Respondent and Respondent.

No. 94-131.

Supreme Court of Montana.

Submitted May 9, 1995.

Decided July 17, 1995.

Rehearing Denied Sept. 28, 1995.

Richard J. Carstensen, Billings, Stephanie Ross (argued), Point Roberts, WA, for appellant.

Joseph P. Mazurek, Atty. Gen., Clay R. Smith (argued), Sol., Helena, for respondent.

LEAPHART, Justice.

Lester Kills On Top (Appellant) appeals from an order of the Sixteenth Judicial District Court, Custer County, denying his petition for postconviction relief and writ of habeas corpus. We affirm in part, reverse in part, and remand for resentencing.

We restate the issues Appellant raises as follows:

1. Must Appellant's convictions or sentences be reversed because the State failed to disclose certain materials under the commands of Brady v. Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215?

2. Did an abuse of process or outrageous governmental conduct occur which requires the granting of Appellant's petition?

3. Did Appellant receive ineffective assistance of counsel during his trial?

4. Did Appellant receive ineffective assistance of counsel during the penalty phase proceedings?

5. Did Appellant receive ineffective assistance of counsel during the course of his direct appeal to this Court?

6. May Montana courts apply a procedural bar to postconviction claims that could have been raised on direct appeal?

7. Was Appellant denied the right to a fair trial?

8. Was Appellant denied the right to a fair and impartial jury?

9. Did the prosecutor commit misconduct during Appellant's trial?

10. Did the State fail to corroborate the testimony of an accomplice witness?

11. Was Appellant denied the right to confront the witnesses against him?

12. Were Appellant's rights violated by the presence of armed officers next to his counsel table during his trial?

13. Were Appellant's rights violated because he was not convicted by a unanimous jury?

14. Did the jury instruction regarding voluntary intoxication create a conclusive presumption of guilt?

15. Was the jury instruction regarding inference of criminal mental state unconstitutional?

16. Does Montana's death penalty scheme unconstitutionally prohibit the sentencer from considering a single mitigating factor sufficient to merit leniency?

17. Was Appellant subjected to double jeopardy?

18. Did this Court and the sentencing court misapply the statutory capital sentencing factors requiring leniency?

19. Did the trial court err in disclosing a psychological report to the prosecution?

20. Did the District Court err in dismissing Appellant's habeas corpus petition?

Background

At Appellant's trial, testimony was offered that Appellant, his brother Vernon Kills On Top, Diane Bull Coming and Doretta Four Bear encountered John Martin Etchemendy, Jr. sometime after midnight on October 17, 1987, outside of a bar in Miles City, Montana. One of the group offered Etchemendy a ride from the bar. The group proceeded south towards Ashland, Montana. Testimony was given that Appellant and his brother beat Etchemendy severely, that Etchemendy's wallet and some checks were stolen, and that Etchemendy was forced to strip and was placed in the trunk of the car.

When the group arrived in Ashland, they picked up Lavonne Quiroz, an acquaintance of Vernon Kills On Top. The group proceeded to Rabbit Town, a community on the Northern Cheyenne Reservation and stopped there. Four Bear testified that she escaped from the group in Rabbit Town by running to a friend's house. The remaining individuals (Appellant, Vernon Kills On Top, Bull Coming, and Quiroz) drove south toward Gillette, Wyoming with Etchemendy in the trunk of the car. Testimony was given at trial that Appellant finally killed Etchemendy and dumped his body in an abandoned building outside of Gillette. A more complete statement of the facts regarding the criminal activity in this case may be found in State v. Kills On Top (1990), 241 Mont. 378, 787 P.2d 336 (Kills On Top I ).

Appellant was tried before a jury and convicted of robbery, aggravated kidnapping, and deliberate homicide. He received a 40-year sentence for the robbery conviction and the death penalty for each of the other two convictions. He appealed his convictions and sentences to this Court, and they were affirmed in Kills On Top I.

Appellant filed a petition for postconviction relief and then filed an amended petition for postconviction relief and a petition for a writ of habeas corpus on January 14, 1991. The District Court dismissed his petition for a writ of habeas corpus and granted the State summary judgment on the majority of his other claims because they could have been raised on direct appeal. The District Court ordered an evidentiary hearing on Appellant's remaining claims which were: ineffective assistance of counsel, outrageous governmental conduct, and failure to disclose Brady material. On May 3, 1993, the District Court entered its order denying Appellant's remaining claims for postconviction relief. This appeal followed. Additional facts appear in the remainder of this opinion where necessary.

Issue 1

Must Appellant's convictions or sentences be reversed because the State failed to disclose certain Brady materials?

Brady requires the prosecution to give the criminal defendant all requested exculpatory information material either to the defendant's guilt or to punishment. Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97. The prosecution also must deliver to the defendant all evidence significant for impeachment purposes. United States v. Bagley (1985), 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481. In order to require reversal of a defendant's conviction or sentence, the Brady violation must relate to material information. Recently in Kyles v. Whitley (1995), --- U.S. ----, 115 S.Ct. 1555, 131 L.Ed.2d 490, the United States Supreme Court reiterated the standard for determining materiality. The Court held that the defendant must show that there is a reasonable probability that had the information been provided, the result would have been different or, stated another way, is it a trial resulting in a "verdict worthy of confidence"? Kyles, --- U.S. at ----, 115 S.Ct. at 1566. The Court stated that:

A "reasonable probability" of a different result is accordingly shown when the Government's evidentiary suppression "undermines confidence in the outcome of trial." Bagley, 473 U.S., at 678, 105 S.Ct. at 3381.

Kyles, --- U.S. at ----, 115 S.Ct. at 1566. The Court also emphasized that the effect of the suppressed Brady material must be considered collectively rather than on an item-by-item basis. Kyles, --- U.S. at ----, 115 S.Ct. at 1566-67. With these principles in mind, we examine Appellant's Brady error claims to determine which claims demonstrate that information should have been provided to Appellant before examining the Brady information which should have been provided as a whole to determine whether Appellant meets the materiality test announced in Bagley and reaffirmed in Kyles.

A. What information should have been provided?

1. Diane Bull Coming's rape allegation

Appellant first claims that the State failed to produce an allegation made by Diane Bull Coming that she was raped by a jailer while in custody for charges related to this case. Bull Coming agreed to a plea bargain with the State prior to Appellant's trial and testified for the State in Appellant's trial. Appellant argues that Bull Coming's rape allegation could have been used to impeach her by showing witness tampering or intimidation, by showing her lack of credibility if the accusations were false, or by attacking her credibility in reference to her plea agreement. The State argues that it is questionable whether this information would have been admissible at trial and argues that Appellant still fails to meet the materiality requirement if the information is considered. The State concedes that evidence tending to show witness bias may be admissible. This information should have been furnished to the Appellant pursuant to Brady and Bagley. Thus, we will consider it in our discussion of materiality.

2. Bull Coming's criminal record

Appellant contends that he should have been provided with records of Bull Coming's prior convictions for misdemeanor assault, misdemeanor theft, and other misdemeanors. The State argues that this information does not meet the materiality requirement. This information should have been furnished to the Appellant pursuant to Brady and Bagley. We will consider it in our discussion of materiality.

3. Bull Coming's prior physical altercations

Appellant argues that the State should have discovered and provided him with information regarding Bull Coming's past physical altercations. However, there has been no indication that the State possessed such information and insufficient evidence that the State could or should have obtained this information through a reasonably diligent investigation. We will not consider this information in our discussion of materiality.

4. Autopsy photographs and terminology

Next, Appellant contends that the State failed to provide him with autopsy photographs of Etchemendy showing his genital area. Appellant argues that this evidence would be important to support a defense theory that Bull Coming had castrated Etchemendy. Appellant also contends that it was Brady error for the State to fail to explain what institicial edema, a term used in the autopsy report, means. Appellant's argument fails since the autopsy report disclosed that Etchemendy had normal genitalia. The autopsy report stated that on microscopic examination, Etchemendy had institicial edema or a swelling in the tubules of the testes. This swelling would be consistent with an injury to the groin sustained during a fight or a beating, such as the "fight" between Appellant and Etchemendy and the beatings...