State v. Kills on Top

Citation241 Mont. 378,47 St.Rep. 366,787 P.2d 336
Decision Date15 February 1990
Docket NumberNo. 88-443,88-443
PartiesSTATE of Montana, Plaintiff and Respondent, v. Lester KILLS ON TOP, Defendant and Appellant.
CourtUnited States State Supreme Court of Montana

Stephen C. Moses argued; Moses Law Firm, Billings, for defendant and appellant.

Marc Racicot, Atty. Gen., Clay R. Smith argued, Sol., Helena, Keith D. Haker, County Atty., Miles City, for plaintiff and respondent.

WEBER, Justice.

Lester Kills on Top was convicted by jury in the Sixteenth Judicial District Court, Custer County, Montana, of robbery, aggravated kidnapping and deliberate homicide. He was sentenced to 40 years for robbery. He received the death penalty for each of the latter two convictions. Defendant appeals both the convictions and the sentences. We affirm.

The issues presented for our review are:

1. Whether the District Court had jurisdiction over the crimes for which the defendant was convicted.

2. Whether the District Court committed prejudicial error in ordering the defendant to disclose to the State any statements taken from individuals identified by the latter as possible witnesses.

3. Whether the District Court committed prejudicial error by admitting into evidence various exhibits.

4. Whether the District Court committed prejudicial error in refusing to give instructions offered by the defendant relating to lesser included offenses of aggravated kidnapping, in refusing to give defendant's instruction on accomplice testimony corroboration, and in giving an instruction relating to flight offered by the State.

5. Whether certain factual findings in the District Court's sentencing order were supported by the evidence.

6. Whether imposition of the death penalty is constitutional under the mandatory review criteria of Sec. 46-18-310, MCA.

7. Whether the sentencing court committed prejudicial error in its consideration of victim impact statements.

8. Supreme Court sentence review pursuant to Sec. 46-18-310, MCA.

9. Whether the present death penalty constitutes cruel and unusual punishment prohibited by the United States and Montana Constitutions.

The events leading to the death of John Martin Etchemendy, Jr., began in the early morning hours of October 17, 1987. All offenses are alleged to have occurred on October 17. The trial in this case lasted two and one-half weeks. The State presented over fifty witnesses and the defense presented eight witnesses. Defendant did not testify. Over one hundred exhibits were entered into evidence.

Defendant, Lester Kills on Top, and his brother, Vernon Kills on Top, entered the Golden West Bar in Miles City, Montana, some time after midnight on October 17, 1987. Accompanying them were Diane Bull Coming and Doretta Four Bear. Mr. Etchemendy, along with a friend, also went to that bar on that Friday evening. When Mr. Etchemendy was ready to leave the bar, he went out to the parking lot but was unable to locate his vehicle. At that point defendant, his brother, and the two women offered to help him. They all got in a black Dodge Duster. First the group turned on to Highway 59 and looked a few places for Mr. Etchemendy's car. Then, rather than proceeding north to Miles City, they went south toward Ashland. Diane Bull Coming testified that defendant said, in his native tongue of Northern Cheyenne, that they should "roll him and steal from him." Shortly after this statement, the car stopped so the men could urinate. Although Mr. Etchemendy and defendant began arguing, Mr. Etchemendy voluntarily got back in the car.

The car continued to proceed south on Highway 59, then turned southwest onto Highway 332 toward Ashland and the Northern Cheyenne reservation. Defendant began assaulting Mr. Etchemendy in the back seat, both beating and choking him, and attempting to force some pills down his throat. Doretta Four Bear testified that during the assault, Diane Bull Coming took the wallet from Mr. Etchemendy's pocket and rifled through it. Mr. Etchemendy was also ordered to empty his pockets. From his wallet, the group obtained credit cards and two checks issued to Mr. Etchemendy from his employer. While the car was traveling over the unpaved portion of Highway 332, the driver, Diane Bull Coming, was told to stop the car. The brothers took Mr. Etchemendy out of the car and again assaulted him. After making him totally undress, they put Near Ashland, at about 5 a.m., they picked up Lavonne Quiroz. Vernon and Ms. Quiroz attempted to siphon gas from some local pickups. They then drove to Rabbit Town where they stole a tool box. Doretta Four Bear was frightened of the group's activities and took this opportunity to flee to a friend's house. The group used one of Mr. Etchemendy's credit cards to purchase gas in Ashland. They next drove to Broadus.

him in the trunk of the car. All this occurred before they entered the reservation.

At Broadus, which is off the reservation, defendant cashed one of Mr. Etchemendy's paychecks for $179.31. After sharing the money with Vernon, defendant used some of it to buy alcohol (called Ever-Clear). At the suggestion of Diane Bull Coming, the group decided to drive south to Gillette, Wyoming.

The car turned off on a side road from Highway 59 and stopped. Mr. Etchemendy was let out of the truck, but defendant held a metal pipe and warned him he would be beaten if he tried to flee. Mr. Etchemendy had been blindfolded but Vernon took the blindfold off at this point. Defendant then became concerned that Mr. Etchemendy could identify them. Defendant forced Mr. Etchemendy to drink a mixture of beer and Ever-Clear, evidently in an effort to make him pass out. He was then put back in the trunk. This occurred off the reservation.

The group continued on to Biddle, Wyoming, and arrived there about 11 a.m. There they cashed Mr. Etchemendy's second paycheck. As they continued to travel south, the car stopped twice. During one stop defendant, while again holding the metal pipe, told Mr. Etchemendy he would die if he opened his eyes. Back in the car, defendant spoke to Mr. Etchemendy through the back seat. Mr. Etchemendy informed defendant that he was married and had two sons.

At Gillette, Wyoming, Vernon used Mr. Etchemendy's credit card to buy gas. They gave Mr. Etchemendy another drink mixed with Ever-Clear. Diane Bull Coming testified that while in the town of Gillette, Mr. Etchemendy began pounding on the trunk and calling for help. Defendant spoke in his native language and told Vernon they would have to kill Mr. Etchemendy. Vernon and Ms. Quiroz remained in a bar while defendant and Diane Bull Coming left in the car.

Defendant and Diane Bull Coming left Gillette, turned onto a side road, and stopped when they were not visible from the main road. Ms. Bull Coming testified that defendant took the pipe, opened the trunk, and began striking Mr. Etchemendy with the pipe, a tire iron, and finally a rock. He also kicked him with his boots. She testified that during this assault the victim cried out, "Oh God, no, God, no!" Ms. Bull Coming testified that after the beating defendant threw the pipe and tire iron into a field, got back into the car and they drove off. After driving a short distance, defendant told Ms. Bull Coming to stop the car so he could shoot Mr. Etchemendy. He then attempted to shoot the victim by placing a .22 caliber shell in a vise grip and hitting the shell with a hammer.

Defendant and Ms. Bull Coming drove on but had two flat tires and were forced to stop at a lounge outside of Gillette, Wyoming. Here, Ms. Bull Coming testified that she saw defendant attempting to cut Mr. Etchemendy's throat with a small knife. She stated that she went into the lounge and defendant later came in and said the victim was dead.

About 5 p.m. Vernon and Ms. Quiroz joined defendant and Ms. Bull Coming. They purchased new tires and then traveled toward Buffalo, Wyoming. Before leaving Campbell County, Wyoming, they left the body at an abandoned community hall approximately twenty miles south of Gillette.

A rancher who lived in the area was driving by with his stepson and noticed the car parked by the community hall. He testified that he saw three people walk over to the car, shut the trunk, get in and drive off. He testified that they failed to shut a gate so he drove after them, blinking his lights, and finally stopping sideways in the road in front of them to force a stop. Noting that the car had a Montana When the group stopped in Sheridan, Wyoming, to get a motel, Vernon and Ms. Quiroz took off in the car, leaving defendant and Ms. Bull Coming behind. Defendant and Ms. Bull Coming went to a store in Sheridan and purchased new clothes with one of the credit cards. Defendant also attempted to purchase new boots at a different store, but the salesperson could not accept the credit card. At a truck stop defendant and Diane Bull Coming changed their clothing and threw away the clothes they were wearing. They then hitchhiked to Billings, Montana, using fictitious names.

license plate, he wrote down the license number. When he told the group to return and close the gate, he stated that they agreed to do so. LaVonne Quiroz testified that they drove back to the gate, whereupon she and defendant got out of the car and closed the gate.

On October 19, defendant was arrested in Billings at the home of Lorraine Four Colors. Prior to being arrested, defendant and Ms. Bull Coming related the incident to Lorraine Four Colors. When defendant learned that his brother, Vernon, had been arrested he directed Ms. Bull Coming to destroy the credit cards.

On October 19, the body of the victim was located by law enforcement officers in the community hall near Gillette, Wyoming. An autopsy established that the cause of death was impact trauma to the back and left side of the victim's head.


Whether the District Court had jurisdiction over the crimes for which the defendant was convicted.

In a pretrial motion to dismiss, defendant...

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