State v. Kills on Top

• Decision Date: 15 June 1990
• Docket Number: No. 88-475,88-475
• Parties: STATE of Montana, Plaintiff and Respondent, v. Vern KILLS ON TOP, Defendant and Appellant.
• Court: Montana Supreme Court

Page 1273

793 P.2d 1273

243 Mont. 56

STATE of Montana, Plaintiff and Respondent, v. Vern KILLS ON TOP, Defendant and Appellant.

No. 88-475.

Supreme Court of Montana.

Submitted March 13, 1990.

Decided May 21, 1990.

Rehearing Denied June 15, 1990.

John S. Forsythe, Forsyth, for defendant and appellant.

Clay R. Smith, Asst. Atty. Gen., Helena, Keith D. Haker, County Atty., Miles City, for plaintiff and respondent.

WEBER, Justice.

This is an appeal from the District Court of the Sixteenth Judicial District, Custer County, Montana. Mr. Vern Kills on Top was convicted by jury of robbery, aggravated kidnapping and deliberate homicide. He was sentenced to 40 years for robbery, and sentenced to death for each of the latter two convictions. He appeals both the convictions and the sentences. We affirm.

The issues presented for our review are:

1. Whether the amended information sufficiently informed defendant of the offenses with which he was charged.

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

3. Whether defendant was denied the right to a speedy trial.

4. Whether the District Court abused its discretion by denying defendant's motion to compel pretrial depositions of defendant's accomplices.

5. Whether defendant was prejudiced by an order of the District Court in the companion case of Lester Kills on Top.

6. Whether the District Court erred in denying defendant's motion to suppress.

7. Whether the District Court erred in admitting certain evidence at trial.

8. Whether accomplice testimony was sufficiently corroborated.

9. Whether the District Court erred in instructing the jury.

10. Whether there was prosecutorial misconduct at trial, and if so, whether defendant was thereby prejudiced.

11. Whether the District Court erred in denying defendant's motion for a mistrial.

12. Whether the District Court abused its discretion by utilizing the verdict form offered by the State.

13. Whether certain factual findings by the District Court were supported by substantial evidence.

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

15. Mandatory Supreme Court sentence review pursuant to § 46-18-310, MCA.

On October 16, 1987, defendant, Vern Kills on Top, who will be referred to in this opinion as defendant, and his brother, Lester Kills on Top, were staying at the residence of George Bell in Miles City, Montana. Also staying at that residence were Diane Bull Coming and Doretta Four Bear. That evening defendant, Lester, and Diane went to a few local bars. A little after midnight, they went back to the house where they were staying and woke Doretta, requesting that she come with them. The four individuals then went to the Golden West Lounge in Miles City. Mr. John Martin Etchemendy, Jr. also went to the Golden West Lounge that evening. He was with a friend, Steve Hathaway, who drove Mr. Etchemendy's pickup to the lounge. When Mr. Etchemendy was ready to leave the lounge, at approximately 2:00 a.m., he could not locate his pickup. Diane Bull Coming testified that defendant offered to help him find his pickup. Mr. Etchemendy got into the car with defendant, Lester, Diane and Doretta. The car was a black Dodge Duster, belonging to defendant's girlfriend, Cathy Meshnik. Defendant was driving the car. Mr. Etchemendy was in the back seat with Lester and Diane. Diane testified that Lester began speaking in his native tongue of Northern Cheyenne, saying the group should roll Etchemendy and steal from him. The group looked a few places for the pickup, then headed out of town and turned onto Cemetery Road. Mr. Etchemendy lives at the end of this road. Doretta testified that after Mr. Etchemendy indicated they were going the right way, defendant stopped the car and turned it around, heading out of Miles City and south toward Broadus. Outside of Miles City the car stopped and the men got out to urinate. Diane Bull Coming testified that Lester and Mr. Etchemendy began fighting; however Mr. Etchemendy voluntarily got back in the car.

Doretta testified that shortly after this, Lester attempted to force Mr. Etchemendy to take some pills. Mr. Etchemendy resisted and a fight began in the back seat between Lester and Mr. Etchemendy. Doretta testified that during the fight Diane removed the wallet from Mr. Etchemendy's pocket. Diane testified that she handed it to defendant who took credit cards and employment checks from Colstrip Garbage Disposal out of the wallet. The fight continued and Diane and Doretta testified that defendant stopped the car saying that he "wanted in on some of this." He stopped the car on Tongue River Road and defendant and Lester then took the victim outside the car and continued beating him. Doretta testified that she saw both defendant and Lester kicking the victim while he was lying on the ground. Both Doretta and Diane testified that the victim was screaming and pleading with defendant and his brother to stop. Doretta testified that defendant then got into the back seat with the victim and attempted to choke him. She testified that a short time later, defendant asked the driver to stop the car, whereupon defendant told the victim to get out and take his clothes off. Diane testified that at this point defendant and Lester placed the nude victim into the trunk of the car.

The group traveled on to Ashland, Montana, where they picked up LaVonne Quiroz at about 5:00 a.m. Defendant and LaVonne attempted to siphon some gas in Ashland, and they also stole a red tool box. Doretta testified that they then drove to Rabbit Town, where she fled from the group by running to a friend's house. Diane and LaVonne testified that they stopped the car at a water trough where defendant and Lester washed blood off their hands. The brothers also removed their shirts at this stop. Diane testified that the trunk was opened at this stop and she saw the victim. She stated that he was all beat up, bloody, that his eyes and mouth were swollen, and his hair was all matted down with blood.

Diane testified that the group drove to Broadus, where Lester attempted to cash one of the checks taken from the victim. They were able to cash the check at a bar and Lester divided the money between himself and defendant.

Diane testified that at her suggestion the group decided to drive to Gillette, Wyoming. After leaving Broadus, Lester passed a blindfold to the victim through an opening in the back seat, instructing him to tie it over his eyes. They then stopped the car so the victim could urinate. LaVonne Quiroz testified that before they got out of the car, defendant asked her to hand him a metal pipe which was in the car. She stated that Lester grabbed the pipe and while standing in the trunk holding the pipe up, told the victim he would hit him if he ran. Diane testified that at the stop, defendant took the blindfold off the victim, whereupon Lester became angry and told defendant they would now have to kill the victim. Diane testified that defendant agreed with Lester. She testified that defendant and Lester forced Mr. Etchemendy to get back into the trunk. Lester then attempted to force him to drink a mixture of beer and Ever-Clear in an attempt to make him pass out.

Diane testified that while they were driving Lester spoke to the victim through the back seat. Mr. Etchemendy informed Lester that he was married and had two little boys.

The group next stopped at Biddle, Montana, off the reservation, where Lester cashed the second check taken from Mr. Etchemendy. After purchasing food and drink the proceeds were shared with defendant. Diane testified that defendant purchased gasoline with one of the victim's credit cards.

The group arrived in Gillette, Wyoming in the afternoon. Lester purchased a new shirt and jeans and changed clothes. He and Diane then went into the Lobby Bar. The car was parked on the street. At trial LaVonne testified that the victim began pounding on the trunk and hollering, "Help me." She testified that defendant instructed her to move the car into the alley at the side of the bar. Defendant and LaVonne then joined Lester and Diane in the Lobby Bar.

Diane testified that while the four of them were in the bar Lester told defendant they had to "get rid of" the victim or they were going to get caught. She testified that defendant agreed with Lester, although defendant wanted to wait. She testified that Lester asked for the keys, that defendant gave him the keys, and that she and Lester left.

Lester and Diane drove out of town, turned off on a gravel road and drove over a hill where they were not visible from the highway. Diane testified that Lester then opened the trunk and started hitting the victim with a pipe. She stated that Mr. Etchemendy said, "Oh, God, no, God, no, don't do this to me," but that Lester kept hitting him, while blood spurted from his head. Lester continued to hit him in the head with a tire iron, and then a rock. Lester then closed the trunk, got in the car, and Diane drove away. Before reaching the main highway, they encountered a Blazer driven by a woman, who pulled over to let them pass. Diane testified that Lester stated he was going to shoot the victim. He put a bullet in a vise grip. When Diane stopped the car, Lester got out and attempted to shoot the victim by hitting the bullet with a hammer. Diane testified that she heard a sound similar to a firecracker. Diane and Lester continued to drive back towards Gillette, but they had two flat tires so they stopped at the Rustic Lounge.

Here, Diane testified that Lester attempted to cut the victim's throat with a small knife. From the bar, Diane called defendant and LaVonne and told them to take a taxi and join them. She testified that Lester later came inside and said the victim was dead.

LaVonne Quiroz testified that she and defendant purchased clothing at a store in Gillette while waiting for Lester and...