Kills on Top v. State

• Decision Date: 19 December 2000
• Docket Number: No. 98-492.,98-492.
• Parties: Vernon KILLS ON TOP, Petitioner and Appellant, v. STATE of Montana, Respondent and Respondent.
• Court: Montana Supreme Court

15 P.3d 422

2000 MT 340

303 Mont. 164

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

No. 98-492.

Supreme Court of Montana.

Submitted on Briefs April 27, 2000.

Decided December 19, 2000.

James S. Thomson and Saor E. Stetler, Criminal Defense Attorneys, Berkeley, California, Wendy Holton, Attorney at Law, Helena, MT, For Appellant.

Hon. Joseph P. Mazurek, Attorney General; Clay R. Smith, Solicitor; Mark J. Murphy, Assistant Attorney General; Helena, MT, For Respondent.

Justice JIM REGNIER delivered the Opinion of the Court.

¶ 1 Vernon Kills On Top (hereinafter referred to as "Petitioner") appeals from the Findings of Fact, Conclusions of Law and Order issued by the Sixteenth Judicial District Court, Custer County, dismissing his amended petition for postconviction relief, and the Findings of Fact, Conclusions of Law and Sentence designating him as a dangerous offender for parole eligibility purposes and sentencing him to the following sentences to run consecutively: 40 years imprisonment for robbery, life imprisonment without possibility of parole for aggravated kidnaping, and life imprisonment for deliberate homicide. We affirm.

¶ 2 With regard to the denial of Vernon Kills On Top's petition for postconviction relief, his appeal raises the following issues:

¶ 3 1. Whether the District Court erred when it limited its decision to Petitioner's ineffective assistance of counsel claims?

¶ 4 2. Whether the District Court erred when it concluded that Petitioner's right to effective assistance of counsel was not violated?

¶ 5 With regard to Petitioner's resentencing, his appeal raises the following issues:

¶ 6 3. Whether the District Court erred when it denied Petitioner's motion for a change of venue?

¶ 7 4. Whether the District Court erred when it admitted victim impact evidence?

¶ 8 5. Whether the District Court erred when it sentenced Petitioner?

BACKGROUND

¶ 9 Petitioner was convicted of the aggravated kidnaping, robbery, and deliberate homicide of John Martin Etchemendy, Jr. following trial by jury in the Sixteenth Judicial District Court, Custer County, on August 6, 1988. On September 8, 1988, he was sentenced to 40 years in the Montana State Prison for robbery, and sentenced to death for the aggravated kidnaping and homicide convictions. He appealed his conviction to this Court and we affirmed. State v. Kills On Top (Vern) (1990), 243 Mont. 56, 793 P.2d 1273, cert. denied (1991), 501 U.S. 1259, 111 S.Ct. 2910, 115 L.Ed.2d 1073 ("Vernon Kills On Top I").

¶ 10 On February 19, 1992, Vernon Kills On Top filed a petition for postconviction relief in the Sixteenth Judicial District Court, Custer County. In that petition, he claimed 15 separate grounds for relief. The District Court dismissed all but part of one claim by summary judgment. The District Court denied the part of his petition which was not dismissed by summary judgment after an evidentiary hearing. In addition, the District Court denied Petitioner's combined motion to amend claims 2 and 11 of his petition and add claims 16-18, his motion for investigative assistance, his motion for leave to conduct discovery, and his motion for appointment of a psychiatrist. The District Court also denied Petitioner's motion for reconsideration.

¶ 11 Petitioner appealed. We reversed the District Court's dismissal of his petition for postconviction relief and remanded for an evidentiary hearing. We also vacated Petitioner's death sentence as disproportionate to his actual conduct, stating that if his conviction was affirmed on remand, the District Court must resentence him without the possibility of death. Vernon Kills on Top v. State (1996), 279 Mont. 384, 928 P.2d 182 ("Vernon Kills On Top II").

¶ 12 On remand, the District Court entered an order pursuant to an agreement between the parties regarding the procedures for resolving Petitioner's postconviction relief claims. On August 13, 1998, the District Court issued its Findings of Fact, Conclusions of Law and Order dismissing Petitioner's amended petition for postconviction relief. Following the dismissal of his petition for postconviction relief, the District Court scheduled a resentencing hearing. Petitioner moved to exclude victim impact testimony from the resentencing hearing and moved for a change of venue. The court orally denied both motions. The court held a resentencing hearing on November 10, 1998, at the conclusion of which the it sentenced Petitioner to 40-years' imprisonment for robbery, life imprisonment for deliberate homicide, and life imprisonment without the possibility of parole for aggravated kidnaping, with the sentences to run consecutively. The court denied parole eligibility with respect to Petitioner's conviction for aggravated kidnaping pursuant to § 46-18-202(2), MCA (1987). The court also designated Petitioner as a dangerous offender for parole eligibility purposes.

¶ 13 Petitioner appeals from both the District Court's dismissal of his petition for postconviction relief and the District Court's resentencing.

POSTCONVICTION RELIEF CLAIMS

STANDARD OF REVIEW

¶ 14 We review a district court's denial of a petition for postconviction relief to determine whether the court's findings of fact are clearly erroneous and whether the court's conclusions of law are correct. State v. Wilson, 1999 MT 52, ¶ 11, 293 Mont. 429, ¶ 11, 976 P.2d 962, ¶ 11. Petitioner claims that due process requires that no deference be given to the District Court's findings of fact and conclusions of law because the District Court essentially adopted the State's proposed Findings of Fact and Conclusions of Law. We have held that a district court does not commit error when it adopts a party's proposed findings and conclusions where the adopted findings and conclusions are "sufficiently comprehensive and pertinent to the issues to provide a basis for the decision and are supported by the evidence." Hans v. State (1997), 283 Mont. 379, 393, 942 P.2d 674, 683. We decline to rule that the court committed reversible error by its adoption of the State's proposed findings and conclusions. However, we are mindful of the court's verbatim adoption in our analysis of whether the court's findings are clearly erroneous and whether its conclusions are correct.

ISSUE ONE

¶ 15 Whether the District Court erred when it limited its decision to Petitioner's ineffective assistance of counsel claims?

¶ 16 On July 14, 1992, Petitioner moved the court to amend his petition for postconviction relief, adding claims 16-18. The District Court denied Petitioner's motion stating that his proposed amendments "would be futile." On appeal, we held that the District Court erred when it denied Petitioner's motion to amend. Vernon Kills on Top II, 279 Mont. at 393, 928 P.2d at 188. On remand, the District Court limited its decision to Petitioner's ineffective assistance of counsel claims and did not address the merits of Petitioner's proposed claims 16-18.

¶ 17 Petitioner claims that the District Court erred by failing to address proposed claims 16-18 in its Findings of Fact, Conclusions of Law and Order dismissing his amended petition for postconviction relief. We agree. The scope of our remand required the District Court to determine whether Petitioner was entitled to postconviction relief on the basis of his proposed claims 16-18. We clearly stated that the District Court erred when it denied Petitioner's motion to add proposed claims 16-18. Vernon Kills on Top II,279 Mont. at 393,928 P.2d at 188. By remanding the District Court to allow Petitioner to add proposed claims 16-18, we necessarily required the District Court to address the merits of those claims.

¶ 18 However, we believe that the District Court's failure to address Petitioner's proposed amendments was harmless. We have held that postconviction relief proceedings are collateral attacks that are "civil" in nature and independent of the underlying criminal cause. State v. Garner, 1999 MT 295, ¶ 19, 297 Mont. 89, ¶ 19, 990 P.2d 175, ¶ 19 (citing Coleman v. State (1981), 194 Mont. 428, 433, 633 P.2d 624, 627). It is well established that "no civil case shall be reversed by reason of error which would have no significant impact upon the result; if there is no showing of substantial injustice, the error is harmless." See Newbauer v. Hinebauch, 1998 MT 115, ¶ 20, 288 Mont. 482,

¶ 20, 958 P.2d 705, ¶ 20. We note that the resolution of these claims depends solely on documentary evidence in the form of testimony already taken by deposition, affidavit, or at hearing. With respect to record testimony, this Court sitting in review is in as good a position as the District Court to judge the weight to be given to such testimony, as distinguished from oral testimony where the trial court actually observes the character and demeanor of the witness on the stand. See Liberty Northwest Ins. Corp. v. Champion Intern. Corp. (1997), 285 Mont. 76, 79, 945 P.2d 433, 435 (reviewing decision issued by Workers' Compensation Court). Furthermore, Petitioner has not requested that we remand his petition to the District Court for further proceedings on these proposed claims, but instead presents these issues to us on the merits. Accordingly, we have analyzed the merits of Petitioner's newly discovered evidence claim, Brady claim, and cumulative error claim to determine whether he was harmed by the District Court's failure to address these claims on remand. Upon analysis, we have determined that Petitioner's proposed claims 16-18 are without merit. Therefore, we conclude that the Petitioner was not harmed by the District Court's failure to address his proposed claims 16-18 because this error would have no impact on the District Court's denial of his petition.

A. Newly Discovered Evidence

¶ 19 In proposed claim 16, Petitioner claimed that newly discovered evidence in the form of an affidavit of Diane Bull Coming warranted a new trial. Petitioner claimed...