State v. McKenzie, 13011

Citation37 St.Rep. 325, 186 Mont. 481, 608 P.2d 428
Case DateMarch 31, 1980
CourtUnited States State Supreme Court of Montana
Barney Reagan, Cut Bank, Charles L. Jacobson (argued), Conrad, for defendant and appellant

Mike Greely, Atty. Gen., Chris Tweeten, Asst. Atty. Gen. (argued), Helena, Douglas Anderson, County Atty., Conrad, for plaintiff and respondent.

HASWELL, Chief Justice.

Following a jury trial, the defendant was convicted of deliberate homicide by means of torture and aggravated kidnapping. The defendant was sentenced to death. The judgment and sentence were affirmed by this Court in State v. McKenzie (1977), 171 Mont. 278, 557 P.2d 1023. The United States Supreme Court granted certiorari and remanded the case for further consideration in the light of its decision in Patterson v. New York (1977), 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281.

This Court then reconsidered the entire record and again affirmed. State v. McKenzie (1978), Mont., 581 P.2d 1205, 36 St.Rep. 759. The United States Supreme Court granted certiorari, vacated the judgment of this Court, and again remanded the case for further consideration in the light of Sandstrom v. Montana (1979), 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39. McKenzie v. Montana (1979), 443 U.S. 903, 99 S.Ct. 3094, 61 L.Ed.2d 871. This opinion constitutes our consideration of this case in the light of Sandstrom.

[186 Mont. 489] The victim in this case was Lana Harding, a 23 year old rural school teacher in Pondera County, Montana. On Tuesday morning, 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 midmorning.

Investigation that day revealed (1) a red tennis shoe belonging to Lana Harding 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 wrist watch belonging to Lana in the same area as the blood. Lana Harding was last seen in Conrad, Montana, 13 miles from the teacherage on Monday, January 21, at about 5:00 p. m.

Defendant had recently moved into the community and was working for the K & K Wholesale Seed Company, located approximately three miles from the Pioneer School teacherage. A day or so before January 21 he made arrangements to buy a 1948 black Dodge pickup, recognizable to most inhabitants of the area because it had belonged to one local owner for a long period of time. On January 21 defendant had worked on the pickup after work. He was seen leaving K & K Wholesale Seed Company at approximately 6:45 p. m. in his black pickup headed toward his place of residence not far from the teacherage. The pickup was seen about 7:00 p. m. about a mile from the teacherage.

Approximately an hour later, around 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 pickup. It was later determined his pickup was parked in the road at a point where the drag trail ended and where the blood and watch were found the following day. At the Pearson residence defendant asked directions to his own residence and called his wife to say he was coming home. Don Pearson pulled the pickup, got it started and noted defendant did not drive on towards his place of residence. Shortly thereafter, the pickup was seen being driven toward the drill where Lana's body was found the following day.

[186 Mont. 490] Her body was found clothed only in a shirt sweater and bra. 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 had been delivered to the head and laid open the right side. A rope was tied around her neck; there was evidence she had been strangled; however pressure had been released so she did not die of strangulation. A coil of wire was entangled in her hair, later shown to have come from a roll of wire found in the back of defendant's pickup.

During the search for the body and the investigation of the homicide three additional items were found: (1) A pair of gloves worn by defendant at work were found in a field not far from where the body was discovered with human blood on them, (2) overshoes with Lana's type blood and brain tissue on them were found about a quarter of a mile away, and impressions from the soles matched the heels of boots later taken from defendant's home; and (3) Lana's purse was found near the place where the overshoes were covered.

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

Defendant was thereafter arrested at his home. The black Dodge pickup was seized and impounded and 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 later identified by FBI experts as identical to paint brand-named "Weekend" which was not available in the Conrad-Pondera County, Montana 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.

The following items were found in the back of the pickup: (1) a coil of wire later identified as having been the source of wire found in the victim's hair, (2) an exhaust manifold that had been [186 Mont. 491] painted black, and (3) human blood of the same kind and RH factor as Lana's and brain and corticle tissue were found on the manifold. Dr. John Pfaff, who examined the victim's body and

the manifold, testified that the manifold could have inflicted the fatal blow

At the drill site where the body was located, a piece of brass from a water pump was found. The prior owner of the Dodge pickup testified this piece of brass was in back of the pickup when defendant took possession of the pickup on January 19.

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

Subsequently defendant was charged with several crimes to which he entered pleas of not guilty. Following trial, he was convicted by a jury of the crimes of deliberate homicide by means of torture and aggravated kidnapping. Judgment was entered thereon and a death sentence imposed. Defendant appealed.

We have reconsidered the entire case, not only in the light of Patterson and Sandstrom, but also on all issues raised in the original appeal. This opinion constitutes this Court's judgment in the entire case following remand.

In the interest of an orderly presentation of the specifications of error raised by defendant, we reorganize and present them insofar as possible in chronological sequence. Although there is some overlap, the issues on appeal generally fall into four categories: (1) Those relating to pretrial proceedings, (2) those involving the trial itself, (3) issues involving post-trial proceedings, including but not limited to, imposition of the death sentence, and (4) issues for reconsideration upon remand from the United States Supreme Court.

Defendant's specifications on appeal are:

1. The issuance and execution of the arrest and search warrants [186 Mont. 492] without probable cause, including all claims of error flowing therefrom.

2. Errors relating to the District Court's refusal to permit defendant to change his plea and enforce a plea bargain.

3. Denial of defendant's motions for substitution of the trial judge.

4. Permitting the filing of amended Informations against the defendant and matters relating thereto.

5. Denial of a speedy trial to defendant.

6. Denial of defendant's motions for a protective order and the constitutionality of Montana statutes relating thereto.

7. Denying defendant the right to voir dire the jury on legal concepts relating to defendant's mental state.

8. Permitting the State to endorse 58 additional witnesses on the amended Information on the first day of trial.

9. Failure of the State to timely furnish defendant with statements of its witnesses.

10. Improperly admitting in evidence numerous State's exhibits and denying admission in evidence certain proposed exhibits of defendant's.

11. Improperly instructing the jury.

12. Improper jury verdict forms.

13. Permitting audience recording of the State's closing argument to the jury.

14. Undue interference and partisan attitude by the trial court preventing an orderly and proper presentation of the case.

15. Insufficiency of the evidence to support the verdict.

16. Denial of defendant's motion for a new trial.

17. Errors in the court's "findings, conclusions, sentence and order" resulting in the imposition of the death sentence.

18. On remand from the United States Supreme Court, the issue of whether the trial court's instructions improperly shifted the burden of proof of defendant's state of mind, an essential element [186 Mont. 493] of the crimes of which he was convicted, onto the defendant in violation of due process under the federal and state constitutions in the light of Patterson and Sandstrom, including issues relating to harmless error.

In connection with the first issue above, defendant contends that the...

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