Vernon Kills On Top v. State

Decision Date15 September 1996
Docket NumberNo. 94-183,94-183
Citation279 Mont. 384,53 St.Rep. 1197,928 P.2d 182
Parties, 65 USLW 2438 Vernon KILLS ON TOP, Petitioner and Appellant, v. STATE of Montana, Defendant and Respondent. . Heard
CourtMontana Supreme Court

Wendy Holton, Attorney at Law, Helena, James Thomson (argued), Berkeley, CA, for Petitioner and Appellant.

Joseph P. Mazurek, Attorney General, Clay Smith (argued), Solicitor, Attorney General's Office, Helena, for Defendant and Respondent.

TRIEWEILER, Justice.

The petitioner, Vernon Kills On Top, was convicted of robbery, aggravated kidnapping, and deliberate homicide following trial by jury in the District Court for the Sixteenth Judicial District in Custer County on August 6, 1988. On September 8, 1988, he was sentenced to forty years in the Montana State Prison for robbery, and death for the kidnapping and homicide convictions. His conviction was appealed to this Court and affirmed in State v. Vernon Kills On Top (1990), 243 Mont. 56, 793 P.2d 1273, cert. denied (1991), 501 U.S. 1259, 111 S.Ct. 2910, 115 L.Ed.2d 1073.

On February 19, 1992, the petitioner filed a petition for postconviction relief pursuant to § 46-21-101, MCA, in the same District Court in Custer County. In that petition, he claimed fifteen separate grounds for relief. All but part of one claim were dismissed by the District Court by summary judgment. Part of the petitioner's second claim which was not dismissed by summary judgment was denied after an evidentiary hearing. In addition, the petitioner's motion to amend claims 2 and 11 and add claims 16-18, and his motions for investigative assistance, leave to conduct discovery, and a court-appointed psychiatrist, were all denied. The District Court also denied petitioner's motion for reconsideration.

Vernon Kills On Top appeals from the District Court's orders which denied his amended petition for postconviction relief and his motion for reconsideration. We affirm the District Court in part, reverse in part, and remand to the District Court for further proceedings consistent with this opinion.

The issues presented on appeal are as follows:

1. Did the District Court err when it denied the petitioner the opportunity to amend his petition for postconviction relief?

2. Did the District Court err when it denied the petitioner the opportunity to present evidence at a hearing in support of all but one of his claims that he received ineffective assistance of counsel?

3. Did the District Court err when it held that nine of the petitioner's claims were barred by the doctrine of res judicata?

4. Is the imposition of the death penalty based on a conviction for aggravated kidnapping and deliberate homicide disproportionate 5. Did the District Court err when it denied five of the petitioner's claims based on the procedural bar found at § 46-21-105, MCA, because they were not previously raised on appeal?

to the petitioner's conduct and therefore in violation of the Eighth and Fourteenth Amendments to the United States Constitution, and Article II, Section 22, of the Montana Constitution, when the petitioner was not personally involved in and not present when injuries were inflicted which caused the victim's death?

PROCEDURAL BACKGROUND

The petitioner, Vernon Kills On Top, raised the following grounds in his original petition for postconviction relief:

1. The District Court lacked jurisdiction over a homicide committed in the state of Wyoming.

2. The petitioner received ineffective assistance of counsel prior to trial, during trial, in the sentencing phase of his prosecution, and on appeal from his convictions for robbery, aggravated kidnapping, and deliberate homicide.

3. The District Court improperly excluded evidence pertaining to Diane Bull Coming's participation in the crimes for which he was convicted.

4. The jury which convicted him was improperly influenced when the deputy clerk of court and bailiff wore badges which urged "Take a bite out of crime."

5. The District Court erred when it refused to instruct the jury regarding lesser included offenses, including ordinary kidnapping.

6. The District Court erred when it instructed the jury regarding the effect of intoxication.

7. The District Court erred when, at petitioner's sentencing hearing, it considered evidence of prior criminal charges which had been dismissed and convictions which had been obtained without the benefit of defense counsel.

8. The sentencing hearing was unfair because it was based on a biased report from an uninformed and hostile probation officer.

9. The District Court erred when it considered petitioner's failure to testify in making its sentencing determination.

10. The District Court failed to adequately consider mitigating evidence before imposing the death sentence.

11. Heinous acts of others were improperly attributed to the petitioner as aggravating circumstances in support of the death penalty in violation of the Eighth and Fourteenth Amendments to the United States Constitution, and Article II, Section 22, of the Montana Constitution.

12. Imposition of the death penalty for aggravated kidnapping is unconstitutional.

13. The District Court violated individualized punishment notions central to the Eighth and Fourteenth Amendments when it sentenced the petitioner to death under the circumstances in this case.

14. The Montana Supreme Court's independent review of the petitioner's sentence was flawed by its erroneous assumption of aggravating facts and its disregard for other mitigating facts.

15. Based on the facts in this case, imposition of the death sentence was disproportionate, cruel, and unusual punishment.

On March 18, 1992, prior to any responsive pleading by the State of Montana, the petitioner moved to amend his petition to include allegations that his counsel had been ineffective based on political interests which were in conflict with his defense of the petitioner and based on his failure to cite authorities to the District Court.

The State of Montana, in its response to Vernon Kills On Top's amended petition, affirmatively alleged that claims 1, 4, 5, 9-11, and 13-15 were barred by the doctrine of res judicata; and that claims 3, 6-8, and 12 were procedurally barred based on § 46-21-105(2), MCA. On March 30, 1992, the State moved for partial judgment on the pleadings based on those affirmative defenses. The State also sought dismissal of all but part of the petitioner's claim that he received ineffective On June 30, 1992, the District Court entered an order in which it set July 15 as the deadline for proposing amendments to the petition. The petitioner's proposed amendments to his petition were filed on July 14.

assistance of counsel as a matter of law. The State conceded that petitioner's claim that he was denied the right to testify could only be resolved after an evidentiary hearing. On May 6, 1992, the District Court issued its notice that based on information submitted by the parties in support of and in opposition to the State's motion, which was in addition to that information included in the pleadings, the State's motion was converted to a motion for partial summary judgment pursuant to Rule 56, M.R.Civ.P.

On March 30, 1993, the District Court granted the State's motion for partial summary judgment. It concluded that claims 1, 4, 5, 9-11, [279 Mont. 390] and 13-15 were barred by the doctrine of res judicata, and that claims 3, 6-8, and 12 were procedurally barred pursuant to § 46-21-105(2), MCA. It further concluded that all of petitioner's claims regarding ineffective assistance of counsel lacked merit as a matter of law, except for that claim in subparagraph (h) of claim 2 to the effect that the petitioner was denied the opportunity to testify at his sentencing hearing. The District Court granted a hearing at which the parties were allowed to present evidence regarding the merits of claim 2(h). However, following that hearing, the District Court found that the petitioner had been informed of his right to testify and voluntarily chose not to do so. The court concluded that that decision was binding on his counsel.

On February 10, 1994, judgment was entered against the petitioner and in favor of the State regarding all claims made by the amended petition for postconviction relief. On March 14, 1994, the petitioner's motion for reconsideration was denied.

Specific facts which served as the basis for the petitioner's conviction and his sentence to death will be discussed where appropriate to the issues we now consider.

STANDARD OF REVIEW

We review district court orders granting summary judgment, as we do district court conclusions of law, to determine if they are correct. State v. Sullivan (1994), 266 Mont. 313, 318, 880 P.2d 829, 832.

We review a district court's findings of fact to determine whether they are clearly erroneous. State v. Bower (1992), 254 Mont. 1, 7, 833 P.2d 1106, 1110.

We review a district court's denial of a motion to amend the pleadings to determine whether the court abused its discretion. Porter v. Galarneau (1996), 275 Mont. 174, 188, 911 P.2d 1143, 1151-52; United Methodist Church v. D.A. Davidson, Inc. (1987), 228 Mont. 288, 292, 741 P.2d 794, 797.

ISSUE 1

Did the District Court err when it denied the petitioner the opportunity to amend his petition for postconviction relief?

On June 30, 1992, the District Court entered an order in which it set July 15, 1992, as the deadline for proposing any further amendments to the petition for postconviction relief. On July 14, 1992, within the deadline set by the court, Vernon proposed amendments to his claims 2 and 11, and proposed adding claims 16-18. On March 30, 1993, the District Court denied Vernon's motion to amend his postconviction petition based on its determination that "the proposed amendments would be futile."

In his motion to amend his pleadings, Vernon sought to amend claim 2(b) to allege that his...

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