State v. McKenzie

Decision Date10 January 1977
Docket NumberNo. 13011,13011
Citation33 St.Rep. 1043,171 Mont. 278,557 P.2d 1023
PartiesThe STATE of Montana, Plaintiff and Respondent, v. Duncan Peder McKENZIE, Jr., Defendant and Appellant.
CourtMontana Supreme Court

Barney Reagan argued, Cut Bank, Charles L. Jacobson, argued, Conrad, for appellant.

Robert L. Woodahl, Atty. Gen., John F. North, Asst. Atty. Gen., argued, Helena, Douglas L. Anderson argued, County Atty., Conrad, for respondent.


This appeal is from the district court, Cascade County, following a jury verdict of guilty to the crimes of deliberate homicide and aggravated kidnapping. Punishment under the codes of Montana for each crime: death.

Lana Harding was a 23 year old rural school teacher in Pondera County. On the morning of Tuesday, January 22, 1974, she failed to appear at school. At the Pioneer School teacherage, where she lived, the bed was found in a disheveled 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 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 was found in the same area as the blood. Lana Harding was last seen in Conrad, some thirteen miles from the teacherage, on Monday, January 21, 1974 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. Within a day or so before January 21, defendant made arrangements to buy a 1948 black Dodge pickup, recognizable to most inhabitants of the area due to the fact it had belonged to one owner for a long period of time. On January 21, 1974, defendant worked on the pickup after work. He was seen leaving the K & K Wholesale Seed Co. at approximately 6:45 p.m., driving the black pickup and headed towards his place of residence, which was not far from the teacherage. The pickup was seen about 7:00 p.m. about a mile from the teacherage.

Approximately an hour and twenty minutes later, at about 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 Dodge pickup. It was later determined the pickup was parked on the road where the drag trail ended and where the blood and watch were found on the following day, January 22. At the Pearson residence defendant asked directions to his own residence and from there called his wife to say he was coming home. Don Pearson pulled the pickup and got it started and later noted defendant did not drive on to his place of residence. Shortly thereafter the pickup was seen being driven toward the drill site where the body was later located.

On the morning of January 23, Wednesday, the body of Lana Harding was found at a location called the 'drill site' in the area of K & K Wholesale Seed Co. The body was clothed only in a shirt, sweater and bra and 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 was one that was delivered to the head and laid open the right side. A rope was tied around her neck and there was evidence she had been strangled with it but pressure had been released so she did not die of strangulation. Entangled in her hair was a coil of wire, later shown to have come from a roll of wire found in the back of the Dodge pickup.

In the course of the search for the body and the investigation of the murder a number of items were found and later received into evidence that were incriminating against defendant:

1) A pair of gloves worn by defendant at work on January 21 and found in a field not far from where the body was discovered, the gloves had human blood on them.

2) Overshoes found about a quarter mile away had type O human blood and brain tissue on them, impressions on the soles matched the heels of the boots later taken from defendant's home.

3) Lana Harding's purse was found near where the overshoes were recovered.

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

Thereafter, defendant was arrested on an assault charge at his home. The 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 identified by F.B.I. experts as identical to a spray paint brand named 'Weekend'. This brand was not available in the Conrad 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.

After seizing the truck and taking it to Conrad, several items were found in the back of the pickup. A coil of wire, later identified by F.B.I. experts as having been connected to and broken away from the coil of wire found in deceased's hair; and an exhaust manifold that had been painted black. On the manifold was found human blood of the same type and Rh factor as Lana's along with brain and cortical tissue. Dr. John Pfaff, who examined the body and the manifold testified the manifold could have inflicted the fatal how.

At the drill site, where the body was found, 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 it on January 19, 1974.

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

Defendant appeals his conviction of guilty and presents 25 issues on appeal in an unprecedented brief of over 500 pages accompanied by two volumes of appendixes, plus a 75 page reply brief. Also filed was an amicus curiae brief from the NAACP on the death penalty. For the purpose of clarity and brevity the 25 issues will not necessarily be discussed in order, some will be consolidated, but all will be considered. The 25 specifications of error listed by defendant are:

1. The court erred in denying defendant's motion to suppress and in holding section 95-1806(f), R.C.M.1947, constitutional.

2. The court erred in refusing to grant defendant's motion to withdraw plea of defendant's motion to enforce plea bargaining gaining agreement of December 23, 1974.

3. The court abused its discretion in requiring defendant to put witnesses on out of order and erred in refusing defendant's proposed exhibits #1-12, 13A, 13B, 14-23, 24, 24A, 25, 25A, 27, 28, 30 and 31.

4. The court erred in admitting into evidence state's exhibits #6-11, which were postmortem photographs of the victim's body.

5. The trial court erred in admitting state's exhibit #97, over defendant's objection.

6. The court erred in allowing persons in the audience to record the closing argument of counsel for the state, over objection.

7. The court erred in granting the state's motion to endorse 58 additional witnesses on the amended information on the first day of trial.

8. The court erred in not enforcing its own order requiring the state to furnish defendant with the statements of its witnesses.

9. The court erred in allowing experts to testify as to results of tests run on items which were subsequently admitted into evidence, and erred in admitting opinion testimony concerning proposed exhibits not yet admitted into evidence.

10. The court erred by refusing to grant defendant's motions to disqualify district judges.

11. The court erred in allowing the state to file its amended informations and denied defendant a speedy trial.

12. The court erred in defining 'torture', giving the question of torture to the jury; and defendant's rights were prejudiced by giving Instructions #23, 29 and 54.

13. The court erred in giving preliminary instructions numbered 1 through 28, over objection.

14. The court erred in giving of additional instructions 29 through 54, over objection. The court erred in directing the use of statutory presumptions to supply proof of material elements of the offenses charged.

15. The court erred in submitting to the jury verdict forms not in accordance with the requirements of the law.

16. The court erred in refusing defendant's proposed instructions.

17. The court erred in denying defendant the right to allow defendant to voir dire on mental disease or defect.

18. The court erred in refusing to allow the defendant's psychiatrist to be present in the courtroom during the testimony of the state's rebuttal witnesses.

19. The court erred in denying defendant's 'Amended Motion for Protective Order and Other Appropriate Relief' and in holding section 95-1803 constitutional.

20. The evidence presented at trial does not support the verdicts.

21. The court erred by basing its judgment and sentence upon an erroneous 'Findings, Conclusions, Sentence and Order'.

22. The court erred by refusing to grant defendant's motion for a new trial.

23. The trial court erred in adopting or demonstrating a partisan attitude toward defendant, thereby denying him a fair trial.

24. The doctrine of cumulative error constitutes reversible error, by denying defendant a fair trial.

25. The court erred in imposing the sentence of death.

At the outset, we consider the contention that the assessment of the death penalty...

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28 cases
  • McKenzie v. Day
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • May 8, 1995
    ...The Montana Supreme Court affirmed Mr. McKenzie's convictions and sentence over the objection of one dissenter. State v. McKenzie, 171 Mont. 278, 557 P.2d 1023 (1976). The Montana Supreme Court rejected, among other things, Mr. McKenzie's claim that the jury instructions unconstitutionally ......
  • State v. McKenzie
    • United States
    • Montana Supreme Court
    • July 25, 1978
    ...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 c......
  • State v. Fitzpatrick
    • United States
    • Montana Supreme Court
    • February 21, 1980
    ...declared the mandatory death penalty for aggravated kidnapping to be unconstitutional. On the other hand, in State v. McKenzie (1976), 171 Mont. 278, 557 P.2d 1023, this Court upheld the constitutionality of the deliberate homicide statute, apparently for the reason that the qualifying word......
  • State v. Kills on Top
    • United States
    • Montana Supreme Court
    • February 15, 1990
    ...of torture where victims were bound and gagged in each others' presence, injected with unknown drugs, and strangled); State v. McKenzie (1976), 171 Mont. 278, 557 P.2d 1023, vacated, 433 U.S. 905, 97 S.Ct. 2968, 53 L.Ed.2d 1089 (1977), on remand, 177 Mont. 280, 581 P.2d 1205 (1978), cert. d......
  • Request a trial to view additional results
1 books & journal articles
  • Getting out of this mess: steps toward addressing and avoiding inordinate delay in capital cases.
    • United States
    • Journal of Criminal Law and Criminology Vol. 89 No. 1, September 1998
    • September 22, 1998
    ...that he remain incarcerated for the remainder of his natural life and never receive parole." Id. at 1338. (26) State v. McKenzie, 557 P.2d 1023 (Mont. (27) The Court granted the first petition for certiorari, vacated the judgment, and remanded the case for further consideration in light of ......

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