State v. Rhodes

• Decision Date: 19 July 1974
• Docket Number: 12597,Nos. 12596,s. 12596
• Citation: 524 P.2d 1095,164 Mont. 455
• Parties: The STATE of Montana, Plaintiff and Respondent, v. Wallace Lioyd RHODES, Jr., Defendant and Appellant. The STATE of Montana, Plaintiff and Respondent, v. James Marcus SHIELDS, Defendant and Appellant.
• Court: Montana Supreme Court

Page 1095

524 P.2d 1095

164 Mont. 455

The STATE of Montana, Plaintiff and Respondent, v. Wallace Lioyd RHODES, Jr., Defendant and Appellant.

The STATE of Montana, Plaintiff and Respondent, v. James Marcus SHIELDS, Defendant and Appellant.

Nos. 12596, 12597.

Supreme Court of Montana.

Submitted April 23, 1974.

Decided July 19, 1974.

Robert J. Campbell, argued, Missoula, for appellant.

Robert L. Woodahl, Atty. Gen., Helena, Thomas J. Beers, Asst. Atty. Gen., argued, Helena, J. C. Weingartner, Deputy Atty. Gen., appeared, Helena, William F. Meisburger, County, Atty., argued, Forsyth, for respondent.

Castles, Justice.

This is an appeal from a judgment entered following a jury verdict of guilty of first dgree murder, kidnapping and robbery. The trial judge imposed a sentence of death on the first degree murder count; a sentence of ten years on the kidnapping count; and a sentence of ten years on the robbery count; the latter two sentences to run consecutively. The judgment was the same for each of the two defendants, Shields and Rhodes, and both cases are included in this opinion.

On September 17, 1972, Donald K. Kalberg, age 48, a resident of Hardin, Montana, left his home to drive his son to Missoula to attend the University of Montana. He left his son in Missoula, but never arrived home. At a lonely highway rest stop about 21 miles east of Forsyth, Montana, the body of Don Kalberg was found in a pool of blood. He had been shot several times. His car, credit cards, and wrist watch were gone. Don Kalberg was last seen alive in his car 21 miles west of the death scene while purchasing gas in a service station in Forsyth. $the two defendants were with him in his car at that time.

The two defendants, Shields and Rhodes, had escaped from jail in Mountain Home, Idaho, when they overpowered the sheriff at 9:15 a. m. on September 17, 1972, taking with them two revolvers, a .38 caliber S & W and a .357 S & W. They also took a police officer as hostage. On that same day the two defendants took by force an automobile belonging to Edward and Margaret Uffelman of Deyville, Oregon. The Uffelman automobile was found abandoned at a rest stop at Columbus, Montana. Don Kalberg's route of travel returning from Missoula to his home in Hardin would ordinarily have been through Columbus, where the Uffelman automobile was found abandoned.

Don Kalberg's stolen automobile was found abandoned at a rest stop at Emmons, Minnesota. At that rest stop, defendants Shields and Rhodes kidnapped one Russell Batton and forced him to drive them south. Defendants were apprehended in Memphis, Tennessee. At the time of their apprehension, Shields and Rhodes had the two stolen revolvers from Mountain Home, Idaho in their possession. They also had the wrist watch, credit cards and other personal property belonging to Don Kalberg. The latent fingerprints of Shields and Rhodes were found in Kalberg's automobile at Emmons, Minnesota. The five bullets taken from the body of Don Kalberg had been discharged from the .38 S & W stolen in Mountain Home, Idaho and found in the possession of the two defendants in Memphis.

Shields and Rhodes were charged in federal court with kidnapping in respect to their abduction of hostage Batton, they plead guilty and were each sentenced to 10 years.

Shields and Rhodes had each been convicted of felonies previously; Shields of burglary and Rhodes of manslaughter. The evidence in this case is clear, convincing and beyond any doubt of a series of crimes and of a vicious, wanton, coldblooded murder of Don Kalberg.

The district court in pronouncing judgment state:

'Court: For the purpose of the record and before the pronouncement of sentence the court now finds that both defendants were brought to Montana for trial and under the Interstate Detainer Act by such act trial must be had within 120 days or the Information and charges must be dismissed. The defendants were brought to this court on the 2nd day of March, requested counsel, counsel was appointed. Both defendants requested that they be given a psychiatric examination. The court explained to both defendants that the 45 days for that examination would be added to the 120 days, therefore making a total time of 165 days. The trial was had, a verdict returned turned and this is the 211th day, with 15 days remaining. The court further finds that at the request of the defendants this court excluded certain items of evidence in an attempt by the court to keep the jury from being inflamed. The jury verdict is guilty on all three counts. The court has reviewed U. S. Supreme Court decision of Furman vs. Georgia and it appears to the court that any capital punishment is unconstitutional if that capital punishment is based upon race, religion, wealth, social position, class. Further, that such punishment must be acceptable to society and further the punishment must not be excessive. Both defendants this court finds are white. Both defendants are Protestant although neither practices his religion. Both defendants are destitute, however, knowledge of economics ability was not permitted to go to the jury. Both defendants are unemployed laborers. Such knowledge was not permitted to go to the jury. Both defendants have normal I.Q.'s This knowledge was not permitted to go to the jury. Both defendants were found to have been sane. Defendant Shields was twice so found by the State of Idaho and the State of Montana. The people of this State at an election held on June 6, 1972, overwhelmingly voted for the death penalty. Both defendants have been found guilty or have entered pleas of guilty to prior criminal charges. Defendant Rhodes, involuntary manslaughter, defendant Shields, burglary. Both defendants have entered a plea of guilty to the crime of Kidnapping, subsequent to the crime herein charged. The defendants will please stand and face the court. To the crime of Murder in the First Degree I find you guilty. I find the verdict just. I have denied a motion for a new trial. I sentence you to be remanded to the custody of the Sheriff and to be executed according to the laws of this State on or before the 13th day of September, 1973. To the crime of Kidnapping the maximum punishment is 10 years. I sentence you to 10 years for that crime. To the crime of Robbery I sentence you to 10 years for that crime. The sentences are to run consecutively and not concurrently The County Attorney will prepare the sentence. When the sentence is prepared the court will sign it. Any other matters to come before the court?'

The appeal is brought in both cases by a single counsel, different from the separate trial counsel. Two issues are presented for review.

1. Whether or not defendants were denied fundamental due process under the Montana or United States Constitution when the district court denied their motion for a mistrial during the voir dire examination of prosepective jurors.

2. Whether or not discretionary death sentences imposed pursuant to section 94-2505, R.C.M.1947, are unconstitutional under the rule of Furman v. Georgia, 408 U. S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, as the United States Supreme Court interpreted the Eighth Amendment to the United States Constitution.

As to the frist issue: appellants contend that a prospective juror, Florence Firsher, had previously discussed the case with the county sheriff and made some remarks during voir dire examination to the effect that as a result of the facts given to her by the sheriff she was convinced the accused men were guilty. These alleged remarks were made before the entire jury panel and, it is contended, severely prejudiced the case. An immediate motion for mistrial was made at the suggestion of the trial judge who denied it and the trial continued.

The alleged remarks were not ranscribed. But, the transcript does reveal the exchange between court and counsel out of the presence of the jury. This exchange shows that the trial judge carefully considered the matter. In the closed hearing, out of the presence of the jury, Mrs. Fisher stated she had discussed the case with the sheriff at a time prior to when she was a prospective juror in the case. She stated the sheriff showed her some photographs and discussed some of the facts concerning the crime. Mrs. Fisher was challenged and did not sit on the jury.

Appellants' counsel goes to some length to reason that a small Montana community is susceptible to high emotions and such a remark on voir dire would prejudice the entire jury. This is not a sufficient showing of prejudice. See State v. Lane, 161 Mont. 369, 506 P.2d 446; State v. Gallagher, 151 Mont. 501, 445 P.2d 45.

We find no error on the first issue.

The second issue raises squarely under the Eighth and Fourteenth Amendments to the United States Constitution the constitutionality of the death penalty as provided in section 94-2505, R.C.M.1947, which provides in pertinent part:

'Every person guilty of murder in the first degree shall suffer death, or shall, in the discretion * * * of the court * * * be imprisoned in the state prison for the term of his natural life * * *.'

Until January 1, 1968, the jury had sentencing discretion. However in 1967, the legislature enacted into law the Criminal Procedure Act which in section 95-2212 provided that all sentences 'shall be imposed exclusively by the judge of the court.'

The language of section 94-2505, R.C. M. 1947, is clearly discretional and this Court so held in State v. Palen, 120 Mont. 434, 186 P.2d 223.

Appellants contend that the United States Supreme Court decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, invalidates section 94-2505, R.C.M.1947, as to the death penalty in Montana as being unconstitutional in violation of the Eighth and Fourteenth Amendments. The per curiam decision of the United States Supreme Court was entered in three cases, Furman v. Georgia, Jackson v. Georgia, and Branch v. Texas, all at 408 U.S. 238, 92 S.Ct.2726, 33...