                                         NO.    81-74

                   I N THE SUPREME COURT OF THE STATE OF M N A A
                                                          OTN

                                                1981



BERNARD JAMES FITZPATRICK,

                                             P e t i t i o n e r and R e s p o n d e n t ,

            VS.

STATE O MONTANA,
       F

                                             Respondent and A p p e l l a n t .



Appeal from:        D i s t r i c t Court of t h e T h i r t e e n t h J u d i c i a l D i s t r i c t ,
                    I n and f o r t h e County o f B i g Horn
                    H o n o r a b l e C h a r l e s Luedke, J u d g e p r e s i d i n g .

C o u n s e l o f Record:

     For Appellant:

           Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , a r g u e d , H e l e n a , Montana
           Marc R a c i c o t , P r o s e c u t i o n C o o d i n a t o r , H e l e n a , Montana
           John Maynard a r g u e d , A s s i s t a n t A t t o r n e y G e n e r a l , H e l e n a ,
            Montana
           James S e y k o r a a r g u e d , County A t t o r n e y , H a r d i n , Montana

     F o r Respondent:

           R o b e r t L. S t e p h e n s , J r . a r g u e d , B i l l i n g s , Montana
           Timothy K . Ford a r g u e d , S e a t t l e , Washington



                                           Submitted:           A p r i l 29, 1 9 8 1

                                               Decided:       SEP    -2    1981
Filed:   SEF - 2 498‘/
Mr.   Chief J u s t i c e Frank I . Haswell d e l i v e r e d t h e O p i n i o n of
t h e Court.
                   S t a t e o f Montana a p p e a l s from t h e Big Horn County
D i s t r i c t C o u r t ' s d e n i a l of t h e S t a t e ' s motion to d i s m i s s a p e t i -

t i o n f o r post-conviction               relief.            P e t i t i o n e r cross-appeals        from

t h e D i s t r i c t C o u r t ' s d e n i a l of h i s r e q u e s t f o r a n e v i d e n t i a r y
h e a r i n g on h i s p o s t - c o n v i c t i o n    petition.
                   B e r n a r d F i t z p a t r i c k ( p e t i t i o n e r ) w a s c o n v i c t e d of

d e l i b e r a t e h o m i c i d e , a g g r a v a t e d k i d n a p p i n g , and r o b b e r y , and s e n -
t e n c e d to d e a t h i n 1 9 7 5 .        T h i s C o u r t r e v e r s e d and remanded f o r a

new t r i a l .      S t a t e v. F i t z p a t r i c k ( 1 9 7 7 ) , 1 7 4 Mont. 1 7 4 , 5 6 9 P.2d
383.      A f t e r a s e c o n d t r i a l , p e t i t i o n e r was c o n v i c t e d of t h e same
o f f e n s e s and a g a i n s e n t e n c e d t o d e a t h .         T h i s Court affirmed.

S t a t e v. F i t z p a t r i c k ( 1 9 8 0 ) ,          Mont     .        ,   6 0 6 P,2d 1 3 4 3 , 37

St.Rep.       194, cert. d e n i e d ,                  U.S.           ,   1 0 1 S e c t . 252, 6 6
L . Ed. 2d 1 1 8 .       F i t z p a t r i c k p e t i t i o n e d t h e U n i t e d S t a t e s Supreme

C o u r t and was d e n i e d c e r t i o r a r i o n t h e a b o v e c a s e and o n
F i t z p a t r i c k v. S e n t e n c e Review D i v i s i o n of t h e Supreme C o u r t of
Montana ( 1 9 8 0 ) ,              U.S.            ,   1 0 1 S.Ct.      252, 66 L.Ed.2d            119.
                   On November 6 , 1 9 8 0 , p e t i t i o n e r f i l e d a p o s t -

c o n v i c t i o n r e l i e f p e t i t i o n i n D i s t r i c t C o u r t , Big Horn County.
The S t a t e moved t o d i s m i s s , a l l e g i n g t h a t p o s t - c o n v i c t i o n          relief,

p u r s u a n t t o s e c t i o n 46-21-101            e t seq.,       MCA,     i s n o t a v a i l a b l e to a
d e f e n d a n t who h a s b e e n s e n t e n c e d t o d e a t h .           The d i s t r i c t j u d g e
d e n i e d t h e S t a t e ' s m o t i o n to d i s m i s s o n t h a t g r o u n d , b u t d i d

d i s m i s s t h e p e t i t i o n o n a l l claims o f p e t i t i o n e r e x c e p t a s t o h i s
c l a i m i n " p a r a g r a p h 8 ( c ) I 1 of t h e p e t i t i o n , which a l l e g e d i n e f f e c -
t i v e a s s i s t a n c e of c o u n s e l .     The d i s t r i c t j u d g e g r a n t e d peti-
t i o n e r l e a v e t o amend "8 ( c ) " i n o r d e r to s e t o u t h i s claim more
specifically.             On F e b r u a r y 4 , 1 9 8 1 , t h e D i s t r i c t C o u r t d e n i e d
p e t i t i o n e r ' s r e q u e s t f o r a n e v i d e n t i a r y h e a r i n g on t h e q u e s t i o n
of ineffective assistance, ruling t h a t the allegations i n the

p r o p o s e d amended p e t i t i o n were c o n j e c t u r a l and s p e c u l a t i v e .
                   The S t a t e a p p e a l s from t h e D i s t r i c t C o u r t ' s r u l i n g
which i n e f f e c t a l l o w s p o s t - c o n v i c t i o n    r e l i e f to p e r s o n s u n d e r
s e n t e n c e of d e a t h .    P e t i t i o n e r cross-appeals           from t h e d e n i a l o f

a n e v i d e n t i a r y h e a r i n g and t h e d e n i a l o f r e l i e f from h i s c o n v i c -
t i o n and s e n t e n c e .

                   The S t a t e r a i s e s o n e i s s u e o n a p p e a l :

                   1) To w h a t e x t e n t may a p e r s o n s e n t e n c e d t o d e a t h

c h a l l e n g e h i s c o n v i c t i o n and s e n t e n c e u n d e r M o n t a n a ' s P o s t -

c o n v i c t i o n R e l i e f A c t when h e h a s p r e v i o u s l y b e e n a f f o r d e d a
d i r e c t a p p e a l of h i s c o n v i c t i o n under t h e a u t o m a t i c r e v i e w p r o v i -
s i o n s o f s e c t i o n s 46-18-307         t h r o u g h 46-18-310,         MCA?
                   P e t i t i o n e r r a i s e s 14 i s s u e s i n h i s cross-appeal,               which

w e w i l l a d d r e s s as f o l l o w s :
                   1) Does t h e d o c t r i n e o f res j u d i c a t a b a r r e c o n -

s i d e r a t i o n o f c o n s t i t u t i o n a l claims r a i s e d b y p e t i t i o n e r o n

d i r e c t appeal to t h i s Court?
                   2 ) Did t h e D i s t r i c t C o u r t e r r i n d i s m i s s i n g 7 claims

o n t h e i r merits ( d i s c u s s e d b e l o w ) w i t h o u t r e q u i r i n g a n e v i d e n -

t i a r y hearing?
                   3 ) Did t h e D i s t r i c t C o u r t e r r i n r u l i n g t h a t 6 claims

( d i s c u s s e d b e l o w ) s h o u l d b e d i s m i s s e d as a m a t t e r o f l a w ?

                  The d i s t r i c t j u d g e r u l e d as a m a t t e r of law t h a t d e a t h
row p r i s o n e r s are n o t p r e c l u d e d from b r i n g i n g a p o s t - c o n v i c t i o n
p e t i t i o n p u r s u a n t t o s e c t i o n s 46-21-101          e t seq.,    MCA.       The S t a t e
a r g u e s t h a t t h e a u t o m a t i c r e v i e w p r o v i s i o n s o f s e c t i o n 46-18-307
t h r o u g h 46-18-310,         MCA,    t a k e t h e p l a c e of t h e p o s t - c o n v i c t i o n

s t a t u t e s and l e n d t h e f i n a l i t y t o r e v i e w w h i c h m u s t e x i s t i f a

d e f e n d a n t s e n t e n c e d t o d e a t h is e v e r t o h a v e h i s s t a t u t o r y s e n -
t e n c e imposed.         P e t i t i o n e r p o i n t s o u t t h a t t h e s t a t u t e , on its
f a c e , d e c l a r e s t h a t post-conviction             r e l i e f is a v a i l a b l e to
anyone "adjudged g u i l t y of an o f f e n s e                  ."    H e also a r g u e s t h a t

t o h o l d o t h e r w i s e would d e n y p e t i t i o n e r t h e e q u a l p r o t e c t i o n o f
t h e laws.       W find p e t i t i o n e r ' s arguments persuasive.
                   e

                   T h i s p r e c i s e i s s u e was r a i s e d by Dewey Coleman i n h i s
a p p e a l t o t h i s C o u r t f r o m a Rosebud C o u n t y D i s t r i c t C o u r t ' s

d i s m i s s a l of h i s p e t i t i o n f o r p o s t - c o n v i c t i o n   relief.      In t h a t

a p p e a l , d e c i d e d by t h i s C o u r t      A u g u s t 28, 1 9 8 1 , w e h e l d t h a t t h e

s t a t u t e is c l e a r o n i t s f a c e i n p r o v i d i n g t h i s remedy t o any
" p e r s o n adjudged g u i l t y of a n o f f e n s e          ."     We discussed there the

i n t e r e s t t h a t t h e S t a t e h a s i n t h e f i n a l i t y of a s e n t e n c e , b u t w e
a l s o r e c o g n i z e d t h a t had t h e l e g i s l a t u r e i n t e n d e d t h a t t h e p o s t -
c o n v i c t i o n s t a t u t e s a p p l y o n l y to d e f e n d a n t s c o n v i c t e d of non-

c a p i t a l o f f e n s e s , t h e l e g i s l a t u r e would h a v e e x p r e s s e d t h a t
intent in the statute.                    S e e Coleman v. S t a t e (No.               81-115,
d e c i d e d ~ u g u s t2 8 , 1 3 8 1 . )
                   Based o n t h e f o r e g o i n g , w e c o n c l u d e t h a t t h e d i s t r i c t

j u d g e i n t h i s case p r o p e r l y d e n i e d t h e S t a t e ' s m o t i o n t o d i s m i s s
p e t i t i o n e r ' s post-conviction r e l i e f p e t i t i o n .

                   The d i s t r i c t j u d g e g r a n t e d t h e S t a t e ' s m o t i o n t o

d i s m i s s s i x o f p e t i t i o n e r ' s claims o n t h e g r o u n d t h a t t h e claims
h a d b e e n p r e v i o u s l y d e c i d e d o n t h e merits and were -e- j u d i c a t a .
                                                                          r s
P e t i t i o n e r a d m i t s t h a t t h e i s s u e s h a v e b e e n a d j u d i c a t e d b u t con-

t e n d s t h a t res j u d i c a t a s h o u l d n o t a p p l y h e r e b e c a u s e :
                   " (1) The Due P r o c e s s c l a u s e of t h e
                   F o u r t e e n t h Amendment r e q u i r e s g r e a t e r
                   r e l i a b i l i t y of judgments i n c a p i t a l c a s e s ;
                   and ( 2 ) t h e p r e v i o u s l y a d j u d i c a t e d i s s u e s
                   were d e c i d e d i n c o r r e c t l y . "
                   T h i s C o u r t h a s n o t s p e c i f i c a l l y h e l d t h a t res j u d i c a t a

d o e s n o t a p p l y to p o s t - c o n v i c t i o n    r e l i e f procedures but t h e Court
d i d n o t e i n d i c t u m i n I n re W i l l i a m McNair ( 1 9 8 0 ) ,                   Mont    .       I



6 1 5 P.2d 9 1 6 , 917, 3 7 S t . R e p .            1487, 1489, t h a t i n p o s t - c o n v i c t i o n

p r o c e d u r e s "as i n h a b e a s c o r p u s , t h e r e is no s t a t u t e o f
l i m i t a t i o n s , no res j u d i c a t a ,     and    . . . the        d o c t r i n e of l a c h e s is
i n a p p l i c a b l e , " c i t i n g H e f l i n v. U n i t e d S t a t e s ( 1 9 5 9 ) , 3 5 8 U.S.

415, 420, 79 S . C t .           451, 454, 3 L.Ed.2d                407, 4 1 1 ( S t e w a r t , J .
c o n c u r r i n g ) a n d C o n n e s v. U n i t e d S t a t e s ( 9 t h C i r . 1 9 7 0 ) , 4 3 1
F.2d     1207.       But d e s p i t e t h e f a c t t h a t res j u d i c a t a d o e s n o t p r e v e n t

t h e b r i n g i n g of r e p e a t e d p e t i t i o n s i n f e d e r a l c o u r t , t h e d o c t r i n e
d o e s a p p l y i n s o f a r a s it p r e c l u d e s i n q u i r y i n t o p r e v i o u s l y liti-
gated grounds.             The U n i t e d S t a t e s Supreme C o u r t s e t o u t t h e con-
s i d e r a t i o n s w h i c h go i n t o d e t e r m i n i n g t h o s e s i t u a t i o n s i n which

res j u d i c a t a may p r e c l u d e f u r t h e r l i t i g a t i o n :
                  "Where a t r i a l o r a p p e l l a t e c o u r t h a s d e t e r m i n e d
                  t h e f e d e r a l p r i s o n e r ' s claim, d i s c r e t i o n may i n a
                  p r o p e r case be e x e r c i s e d a g a i n s t t h e g r a n t of a
                  S 2255 [ p o s t - c o n v i c t i o n r e l i e f ] h e a r i n g .      Section
                  2255 p r o v i d e s f o r h e a r i n g       ' [u] n l e s s t h e motion
                  a n d t h e f i l e s and r e c o r d s o f t h e case c o n c l u s i -
                  v e l y show t h a t t h e p r i s o n e r is e n t i t l e d t o no
                  relief      ...              I n S a n d e r s v. U n i t e d S t a t e s , 3 7 3
                  U.S. 1 ( 1 9 6 3 ) , w e announced s t a n d a r d s g o v e r n i n g
                  t h e d e t e r m i n a t i o n w h e t h e r a h e a r i n g s h o u l d be
                  o r d e r e d i n t h e case o f a s u c c e s s i v e m o t i o n u n d e r
                  9 2255.           S i m i l a r l y , where t h e t r i a l or a p p e l l a t e
                  c o u r t h a s had a ' s a y ' o n a f e d e r a l p r i s o n e r ' s
                  claim, it may be o p e n t o t h e 5 2255 c o u r t t o
                  d e t e r m i n e t h a t on t h e b a s i s of t h e m t i o n , f i l e s ,
                  a n d r e c o r d s , ' t h e p r i s o n e r is e n t i t l e d t o no
                  relief.             S e e T h o r n t o n v. U n i t e d S t a t e s , 1 2 5 U.S.
                  App. D.C. 1 1 4 , 1 2 5 , 3 6 8 F.2d 8 2 2 , 8 3 3 ( 1 9 6 6 )
                  ( d i s s e n t i n g o p i n i o n of W r i g h t , J . )  ."     Kaufman v .
                  U n i t e d S t a t e s ( 1 9 6 8 ) , 394 U.S. 217, 227, n . 8 ,
                  8 9 S . C t . 1 0 6 8 , 1074-1075, n . 8 , 22 L.Ed.2d 227,
                  238, n.8.
The s t a n d a r d s a s s e t o u t i n S a n d e r s p r o v i d e :

                  " [ c l o n t r o l l i n g w e i g h t may b e g i v e n to d e n i a l o f a
                  prior application              ...        f o r 9 2255 r e l i e f o n l y i f
                  (1) t h e same g r o u n d p r e s e n t e d i n t h e s u b s e q u e n t
                  a p p l i c a t i o n was d e t e r m i n e d a d v e r s e l y to t h e
                  a p p l i c a n t on t h e p r i o r a p p l i c a t i o n , ( 2 ) t h e p r i o r
                  d e t e r m i n a t i o n was o n t h e merits, and ( 3 ) t h e e n d s
                  o f j u s t i c e would n o t be s e r v e d by r e a c h i n g t h e
                  merits o f t h e s u b s e q u e n t a p p l i c a t i o n .I1     Sanders
                  v . U n i t e d S t a t e s ( 1 9 6 3 ) , 3 7 3 U.S.          , 15, 83 S.Ct.
                  1 0 6 8 , 1 0 7 7 , 1 0 L.Ed.2d 1 4 8 , 1 6 1 .
                  I n Coleman, s u p r a , w e a p p r o v e d t h e S a n d e r s res tr i c t i o n s ,
h o l d i n g t h a t res j u d i c a t a would a p p l y i n t h i s S t a t e i n s o f a r as

t h e d o c t r i n e l i m i t s r e l i t i g a t i o n of p r e v i o u s l y d e t e r m i n e d issues;
b u t it c a n n o t be i n v o k e d by t h e S t a t e so as t o d e p r i v e a l i t i g a n t
of t h e r i g h t to f i l e a s u c c e s s i v e p e t i t i o n ,     i f the petitioner has
a new b a s i s o r g r o u n d f o r coming b e f o r e t h e c o u r t .              S e e Coleman,
supra.       I n t h e case a t b a r , t h e d i s t r i c t j u d g e c o n c l u d e d t h a t t h e
s i x previously-litigated                i s s u e s s h o u l d n o t be r e c o n s i d e r e d   .   We

w i l l n o t d i s t u r b h i s f i n d i n g a b s e n t a c l e a r showing o f a b u s e of

discretion.          Coleman, s u p r a .
                  S e v e n claims s e t f o r t h by           F i t z p a t r i c k i n h i s post-
c o n v i c t i o n r e l i e f , p e t i t i o n were d i s m i s s e d w i t h o u t e v i d e n t i a r y

h e a r i n g s by t h e D i s t r i c t C o u r t .      W e determine t h a t an evidentiary

h e a r i n g is n e c e s s a r y o n p e t i t i o n e r l s claim t h a t he w a s d e n i e d
e f f e c t i v e a s s i s t a n c e o f c o u n s e l b o t h a t t r i a l and a t s e n t e n c i n g .

I n h i s p e t i t i o n , F i t z p a t r i c k alleged t h a t h i s court-appointed

c o u n s e l f a i l e d t o a d e q u a t e l y i n v e s t i g a t e and p r e p a r e a d e f e n s e ,
a n d t h a t h e was u n f a m i l i a r w i t h c r i t i c a l a r e a s of t h e a p p l i c a b l e

law.      H e c i t e d numerous and s u b s t a n t i a l f a c t s t o s u p p o r t h i s

a l l e g a t i o n s , w h i c h were found t o be s p e c u l a t i v e and c o n j e c t u r a l
by t h e d i s t r i c t judge.
                   P e t i t i o n e r is e n t i t l e d to h a v e a t h i s t r i a l " e f f e c t i v e

a s s i s t a n c e o f c o u n s e l a c t i n g w i t h i n t h e r a n g e of c o m p e t e n c e
demanded o f a t t o r n e y s i n c r i m i n a l cases."                  S t a t e v . Rose ( 1 9 8 0 ) ,

       Mont   .        ,   6 0 8 P.2d     1074, 1081, 37 St.Rep.                   642, 649-650.
From t h e i n f o r m a t i o n p r e s e n t e d     i n F i t z p a t r i c k ' s p e t i t i o n , w e can-
n o t s a y , a s t h e d i s t r i c t j u d g e d i d , t h a t " t h e f i l e s and r e c o r d s
o f t h e case c o n c l u s i v e l y show t h a t t h e p e t i t i o n e r is e n t i t l e d to

no r e l i e f .   . ."       S e c t i o n 46-21-201(1),            MCA.      Many o f t h e e r r o r s
o f w h i c h p e t i t i o n e r c o m p l a i n s i n v o l v e f a i l u r e s of c o u n s e l to a c t ,

i.e.,     o m i s s i o n s r a t h e r t h a n c o m m i s s i o n s , and a mere r e v i e w o f t h e

r e c o r d c a n n o t show t h a t p e t i t i o n e r is e n t i t l e d t o no r e l i e f o n
t h e s e grounds.
                   W e f i n d an abuse of d i s c r e t i o n i n t h e d i s t r i c t judge's

d i s m i s s a l o f t h e s e claims.          W e d o n o t h o l d t h a t p e t i t i o n e r was

d e n i e d e f f e c t i v e a s s i s t a n c e of c o u n s e l , b u t w e d o f i n d t h a t h i s

a l l e g a t i o n s were s u f f i c i e n t t o r e q u i r e a n e v i d e n t i a r y h e a r i n g o n
the issue.
                   The n e x t claim s e t f o r t h by p e t i t i o n e r is t h a t h e w a s
d e n i e d h i s r i g h t t o a f a i r and i m p a r t i a l j u r y .            The d i s t r i c t
judge r u l e d t h a t a h e a r i n g w a s not n e c e s s a r y on t h i s i s s u e , i n
t h a t t h e claim was b a s e d o n l y o n c o n j e c t u r e and s p e c u l a t i o n w i t h

no b a s i s i n the record.                The j u d g e ' s r e v i e w o f t h e claims s e t

forth in the petition indicate t h a t the specific errors alleged
b y p e t i t i o n e r n a r r o w e d down to p r e j u d i c i a l p u b l i c i t y o f
p e t i t i o n e r ' s p r e v i o u s c o n v i c t i o n , and t h a t o n e j u r o r had s a t o n
t h e p r e v i o u s t r i a l of p e t i t i o n e r .    The S t a t e c o n t e n d s t h a t t h e

j u r y p a s s e d m u s t e r u n d e r I r v i n v. Ibwd ( 1 9 6 1 ) , 366 U.S.             717, 8 1
S.Ct.      1 6 3 9 , 6 L.Ed.2d        751.

                   Irvin, supra, requires t h a t the jury render a verdict

based o n l y on t h e e v i d e n c e p r e s e n t e d i n c o u r t .          However, t h e
Supreme C o u r t r e c o g n i z e d t h a t many j u r o r s come i n t o c o u r t w i t h

p r e c o n c e i v e d n o t i o n s based on p r i o r p u b l i c i t y    .   This, according

to the Court, does not prevent a f a i r trial i f the jurors can lay
a s i d e these notions.              I r v i n , s u p r a , 3 6 6 U.S.     a t 722-723,       8 1 S.Ct.

a t 1642-1643,          6 L.Ed.2d        a t 756.
                   The d i s t r i c t j u d g e r e v i e w e d t h e t r a n s c r i p t of v o i r
d i r e i n t h i s case, and d e t e r m i n e d t h a t t h e p u b l i c i t y d i d n o t h a v e

a prejudicial effect.                  The j u r o r s were q u e s t i o n e d a s a w h o l e , and

many i n d i v i d u a l l y , a s t o t h e i r a t t i t u d e s r e s u l t i n g from t h e
trial's publicity.                The a p p a r e n t r e s u l t o f t h i s q u e s t i o n i n g was

t h a t n e a r l y a l l j u r o r s had h e a r d o f t h e case, b u t a l l a g r e e d t h a t
t h e y c o u l d d e c i d e t h e case o n t h e e v i d e n c e p r e s e n t e d .        N o speci-

f i c i n s t a n c e o f a p r e j u d i c e d j u r o r was p r e s e n t e d w i t h t h e p e t i -

t i o n f o r post-conviction              relief.         T h i s Court w i l l n o t presume
p r e j u d i c e ; i t is i n c u m b e n t o n d e f e n d a n t to b r i n g s p e c i f i c e v i -
dence of p r e j u d i c e b e f o r e t h e Court.              S t a t e v. LaMere ( 1 9 8 0 ) ,

Mont   .       ,   6 2 1 P.2d 462, 465, 37 S t . R e p .                 1936, 1940.
                   P e t i t i o n e r a l s o a l l e g e s e r r o r i n t h a t o n e j u r o r had

s e r v e d on h i s f i r s t j u r y .      T h i s r e f e r e n c e to a n e a r l i e r t r i a l
came o u t when j u r o r s were b e i n g q u e s t i o n e d as t o k n o w l e d g e o f
any witnesses.             The q u e s t i o n s show t h a t o n e juror--who                was
e l i m i n a t e d from s i t t i n g i n t h i s t r i a l - - h a d     been a j u r o r i n t h e
t r i a l of G a r y R a d i , a c o d e f e n d a n t o f F i t z p a t r i c k ; s h e had n o t

been involved i n F i t z p a t r i c k ' s f i r s t trial.                 The f a c t t h a t t h e r e
was a n e a r l i e r t r i a l o f F i t z p a t r i c k was c l e a r l y b e f o r e t h e j u r y ,
and t h e S t a t e q u e s t i o n e d t h e j u r o r s as t o t h e e f f e c t of t h i s
information.             Individual j u r o r s expressed concern f o r t h e

p r o b l e m s of p o s s i b l e p r e j u d i c e from knowing t h a t F i t z p a t r i c k had
b e e n p r e v i o u s l y t r i e d , b u t no j u r o r e x p r e s s e d t h e view t h a t

h e o r s h e c o u l d n o t make an i m p a r t i a l d e c i s i o n .             And a g a i n , p e t i -
t i o n e r sets f o r t h no f a c t s showing a c t u a l p r e j u d i c e e x i s t i n g i n

a n y one j u r o r .       What he wanted t h e c o u r t t o d o , a c c o r d i n g to t h e
d i s t r i c t j u d g e , was t o " p i e r c e t h e v e i l of t h e j u r y d e l i b e r -
a t i o n s " t o t r y t o f i n d t h a t t h e d e c i s i o n was based on b i a s and

prejudice.           Such an i n q u i r y i s n o t p r o p e r i n t h i s c a s e .             See
S t a t e v. O ' B r i e n ( 1 9 0 7 ) , 35 Mont. 482, 503, 90 P. 514, 521;
McDonald v. P l e s s ( 1 9 1 4 ) , 238 U.S.                 264, 267-269,            35 S.Ct.      783,

784-785,        59 L.Ed 1300, 1302-1303.
                   W e f i n d t h a t t h e d i s t r i c t judge p r o p e r l y d e n i e d an

e v i d e n t i a r y h e a r i n g on t h i s i s s u e .     N evidence presented t o t h e
                                                                o

c o u r t showed any b i a s o r p r e j u d i c e e x i s t i n g i n t h e j u r y v e r d i c t .

                   The n e x t i s s u e which r e q u i r e s an e v i d e n t i a r y h e a r i n g ,
a c c o r d i n g t o p e t i t i o n e r , is t h a t of w h e t h e r p e t i t i o n e r was d e n i e d

meaningful a p p e l l a t e sentence review.                       He c o n t e n d s t h a t t h i s
C o u r t , i n i t s r e v i e w of h i s s e n t e n c e p u r s u a n t t o s e c t i o n
46-18-307,         MCA,     f a i l e d t o l o o k a t t h e t r a n s c r i p t of t h e sen-

tencing hearing.               H e a l s o f a u l t s t h i s Court f o r n o t c o n s i d e r i n g

t h e e v i d e n c e s u b m i t t e d by p e t i t i o n e r , which s e t o u t a c o m p i l a t i o n
o f s e n t e n c e s imposed f o r crimes committed t h r o u g h o u t t h e S t a t e .

Based on t h e f o r e g o i n g , he c l a i m s t h a t h i s s e n t e n c e s h o u l d be
o v e r t u r n e d f o r b e i n g a r b i t r a r y and d i s p r o p o r t i o n a t e .
                   The S t a t e a r g u e s t h a t p e t i t i o n e r r e c e i v e d m e a n i n g f u l

r e v i e w t h r o u g h t h e C o u r t ' s comparison of p e t i t i o n e r ' s s e n t e n c e
w i t h t h a t of o t h e r c a p i t a l d e f e n d a n t s .      See S t a t e v. F i t z p a t r i c k ,
supra ,            Mont. a t              ,   606 P.2d a t 1361-1363,                 37 St.Rep.         at

217-218.         Such a comparison is s u f f i c i e n t , a c c o r d i n g to t h e
State.        W a g r e e and f i n d t h a t o u r r e v i e w of p e t i t i o n e r ' s sen-
               e

t e n c e was s u f f i c i e n t   .
                   The Montana Codes r e q u i r e t h i s Court t o a u t o m a t i c a l l y
r e v i e w t h e i m p o s i t i o n of a d e a t h s e n t e n c e .     S e c t i o n 46-18-307,
MCA.      The C o u r t is r e q u i r e d t o l o o k a t t h e f o l l o w i n g f a c t o r s i n

determining t h e p r o p r i e t y of t h e d e a t h s e n t e n c e :
                   " (1) w h e t h e r t h e s e n t e n c e of d e a t h was imposed
                   u n d e r t h e i n f l u e n c e of p a s s i o n , p r e j u d i c e , o r a n y
                   other arbitrary factor;
                   " ( 2 ) whether t h e e v i d e n c e s u p p o r t s t h e judge I s
                   f i n d i n g o f t h e e x i s t e n c e o r n o n e x i s t e n c e of t h e
                   a g g r a v a t i n g or m i t i g a t i n g c i r c u m s t a n c e s enu-
                   m e r a t e d i n 46-18-303 and 46-18-304; and

                   " ( 3 ) w h e t h e r t h e s e n t e n c e o f d e a t h is e x c e s s i v e
                   o r d i s p r o p o r t i o n a t e t o t h e p e n a l t y imposed i n
                   s i m i l a r cases, c o n s i d e r i n g b o t h t h e crime and t h e
                   d e f e n d a n t . The c o u r t s h a l l i n c l u d e i n i t s d e c i -
                   s i o n a r e f e r e n c e t o t h o s e similar cases i t t o o k
                   into consideration             ."      S e c t i o n 46-18-310,   MCA.

                   P e t i t i o n e r does not a t t a c k the s t a t u t e s , but r a t h e r

d i s p u t e s t h a t t h i s Court a d e q u a t e l y considered t h e propor-

t i o n a l i t y of h i s s e n t e n c e .    H e d i r e c t s us to t h e language of t h e

U n i t e d S t a t e s Supreme C o u r t i n G r e g g v. G e o r g i a ( 1 9 7 6 ) , 428 U.S.
1 5 3 , 1 9 8 , 96 S . C t .     2909, 2937, 49 L.Ed.2d                  859, 888, w h e r e i n t h e

C o u r t s e t f o r t h t h e i m p o r t a n c e of a p p e l l a t e r e v i e w i n
                   "compar [ i n g ] e a c h d e a t h s e n t e n c e w i t h t h e s e n t e n -
                   ces imposed on s i m i l a r l y s i t u a t e d d e f e n d a n t s to
                   e n s u r e t h a t t h e s e n t e n c e of d e a t h i n a p a r t i c u l a r
                   case i s n o t d i s p r o p o r t i o n a t e . I 1

                   The d i s t r i c t j u d g e who c o n s i d e r e d t h e p e t i t i o n f o r
post-conviction             r e l i e f noted i n h i s f i n d i n g s :
                   "The C o u r t [Montana Supreme C o u r t ] c o n s i d e r e d t h e
                   o n l y t w o Montana cases i n v o l v i n g a g g r a v a t e d k i d -
                   n a p p i n g r e s u l t i n g i n t h e d e a t h o f t h e v i c t i m , and
                   f o u n d t h a t t h e d e f e n d a n t ' s case was n o t e x c e s s i v e
                   o r d i s p r o p o r t i o n a t e to t h e p e n a l t y imposed i n
                   s i m i l a r cases. The C o u r t n o t e d t h a t i t s com-
                   p a r i s o n o f cases was l i m i t e d t o a n e x a m i n a t i o n of
                   McKenzie and Coleman, as t h e y a r e t h e o n l y cases
                   a r i s i n g i n Montana s i n c e t h e e f f e c t i v e d a t e o f
                   t h e aggravated kidnapping s t a t u t e                ."
                   W e noted       i n o u r f i r s t r e v i e w of p e t i t i o n e r ' s s e n t e n c e ,
a s d i d t h e d i s t r i c t judge,         t h a t t h e r e were few c o m p a r a b l e cases,
b u t t h a t o u r r e v i e w p r o c e d u r e encompassed t h o s e c a s e s .             Such a
c o m p a r i s o n is a d e q u a t e .   S e e G r e g g , s u p r a , 428 U.S.        a t 204, n .
56, 96 S . C t .       a t 2940, n . 56, 49 L.Ed.2d                 8 9 2 , n . 56; P r o f f i t t v.

F l o r i d a ( 1 9 7 5 ) , 428 U.S.       242, 259, n . 1 6 , 96 S . C t .            2960, 2970, n.
1 6 , 49 L.Ed.2d          9 1 3 , 927, n . 1 6 ; S p i n k e l l i n k v . W a i n w r i g h t ( 5 t h

Cir.     1 9 7 8 ) , 578 F.2d        582, 604-606;            c e r t . d e n i e d 440 U.S.        976, 99

S.Ct.       1 5 4 8 , 5 9 L.Ed.2d        796; S t a t e v. Coleman ( 1 9 7 9 ) ,                    Mont      .
        ,   6 0 5 P.2d    1 0 0 0 , 1020-1021,          36 S t . R e p .    1 1 3 4 , 1155-1156,             cert.
d e n i e d , 446 U.S.        970, 100 S.Ct.            2952, 64 L.Ed.2d              831.
The c o m p i l a t i o n o f d a t a s u b m i t t e d b y p e t i t i o n e r from o t h e r
d i s t r i c t c o u r t s i n t h e S t a t e was n o t r e l e v a n t t o o u r s e n t e n c i n g
inquiry.         The d a t a d i d n o t i n c l u d e cases c o m p a r a b l e t o McKenzie,
Coleman, o r t h e i n s t a n t c a s e , which formed t h e b a s i s f o r o u r
consideration.              I t was n o t error t o c o n s i d e r o n l y t h e s e cases.

                   We also dispute petitioner's                       allegation that t h i s
C o u r t d i d n o t r e v i e w t h e t r a n s c r i p t from t h e s e n t e n c i n g h e a r i n g .
The d i s t r i c t j u d g e c o r r e c t l y n o t e d t h a t " t h e Montana Supreme

C o u r t d i r e c t e d t h e District Court to t r a n s m i t t h e t r a n s c r i p t of

t h e sentencing proceedings i n t h i s cause."                             The r e c o r d of t h a t
h e a r i n g was b e f o r e u s , and was c o n s i d e r e d by t h i s C o u r t i n

reviewing the sentence.                     T h e r e was n o       error.
                   P e t i t i o n e r n e x t claims t h a t h i s s e n t e n c e was imposed
a r b i t r a r i l y and d i s c r i m i n a t o r i l y , and t h a t a n e v i d e n t i a r y h e a r i n g

was n e c e s s a r y i n o r d e r t o e l i c i t t h e f a c t s t o show t h a t a r b i t r a r y
s e n t e n c i n g e x i s t s i n Montana.          He also c o n t e n d s t h a t t h e s t a t u t e s

a p p l y d i s c r i m i n a t o r i l y a g a i n s t " i m p o v e r i s h e d male d e f e n d a n t s

a c c u s e d o f k i l l i n g c a u c a s i a n s , " and t h u s a r e v i o l a t i v e o f h i s
E i g h t h and F o u r t e e n t h Amendment r i g h t s .             The d i s t r i c t j u d g e h e l d
t h a t t h e s t a t u t e s a r e c o n s t i t u t i o n a l , as d r a w n , b a s e d o n o u r
d e c i s i o n s i n McKenzie, s u p r a , Coleman, s u p r a , and o n Furman v.

G e o r g i a ( 1 9 7 2 ) , 4 0 8 U.S.      238, 9 2 S . C t .      2726, 3 3 L.Ed.2d              346.        He

f u r t h e r f o u n d t h a t p e t i t i o n e r had n o t a l l e g e d s u f f i c i e n t f a c t s to
r e q u i r e a n e v i d e n t i a r y h e a r i n g o n t h e q u e s t i o n of d i s c r i m i n a t o r y
sentencing.           We agree.

                   The d e a t h p e n a l t y s t a t u t e s , a s d r a w n , were e n a c t e d to
c u r e t h e a r b i t r a r i n e s s t h a t was found t o be i n h e r e n t i n t h e

G e o r g i a s t a t u t e s , as i d e n t i f i e d i n Furman, s u p r a .            See S t a t e
v . McKenzie ( 1 9 7 8 ) , 1 7 7 Mont. 280, 3 1 8 , 5 8 1 P.2d 1 2 0 5 , 1 2 2 7 ,

A l a t e r G e o r g i a s t a t u t e , and o n e s i m i l a r to M o n t a n a ' s ,        was

f o u n d t o p r e c l u d e a r b i t r a r y and c a p r i c i o u s s e n t e n c i n g .    The

Supreme C o u r t n p t e d i n G r e g g , s u p r a , 428 U.S.               195, 96 S.Ct.              at

2935, 49 L.Ed: 9' a t 8 8 7 , t h a t t h e c o n c e r n s f o r a r b i t r a r i n e s s c a n be
                3
m e t " b y a c a r e f u l l y d r a f t e d s t a t u t e t h a t e n s u r e s t h a t t h e sen-
t e n c i n g a u t h o r i t y is g i v e n a d e q u a t e i n f o r m a t i o n and g u i d a n c e . "

                   The F l o r i d a s t a t u t e was found t o be c o n s t i t u t i o n a l o n
i t s f a c e by t h e same c o u r t i n P r o f f i t t , s u p r a :

                   "Under F l o r i d a ' s c a p i t a l - s e n t e n c i n g p r o c e d u r e , i n
                   sum, t r i a l j u d g e s a r e g i v e n s p e c i f i c and d e t a i l e d
                   g u i d a n c e t o a s s i s t them i n d e c i d i n g w h e t h e r t o
                   impose a d e a t h p e n a l t y or imprisonment f o r l i f e .
                   Moreover, t h e i r d e c i s i o n s are reviewed to e n s u r e
                   t h a t t h e y are c o n s i s t e n t w i t h o t h e r s e n t e n c e s
                   imposed i n s i m i l a r c i r c u m s t a n c e s . T h u s , i n
                   F l o r i d a , as i n G e o r g i a , i t is no l o n g e r t r u e t h a t
                   t h e r e is ' "no m e a n i n g f u l b a s i s f o r d i s t i n g u i s h i n g
                   t h e few cases i n which [ t h e d e a t h p e n a l t y ] i s
                   imposed f r o m t h e many cases i n w h i c h it i s n o t
                   G r e g g v. G e o r g i a , a t 1 8 8 , 49 L Ed 2d 8 5 9 , 96
                                                                                                   ."
                   S . C t . 2909, q u o t i n g Furman v. G e o r g i a , 408 U.S.,
                   a t 313, 3 3 L Ed 2d 346, 9 2 S . C t 2726 ( W h i t e , J . ,
                   c o n c u r r i n g ) . On i t s f a c e t h e F l o r i d a s y s t e m t h u s
                   s a t i s f i e s t h e c o n s t i t u t i o n a l d e f i c i e n c i e s iden-
                   t i f i e d i n Furman."            P r o f f i t t , s u p r a , 428 U.S. a t
                   253, 96 S . C t . a t 2967, 49 L.Ed.2d a t 923.

                   S e e a l s o S p i n k e l l i n k , s u p r a , 5 7 8 F.2d      a t 604-606,
w h i c h i n t e r p r e t s t h e U n i t e d S t a t e s Supreme C o u r t d e c i s i o n i n

P r o f f i t t , s u p r a , t o mean t h a t by i n s t i t u t i n g s e n t e n c i n g p r o c e -

d u r e s w h i c h f o c u s o n t h e c h a r a c t e r o f t h e d e f e n d a n t and t h e c i r -
c u m s t a n c e s o f t h e crime, t h e a r b i t r a r i n e s s is c o n c l u s i v e l y

removed f r o m s e n t e n c i n g and no case by case r e v i e w need be made

on t h i s question.
                   The Montana s e n t e n c i n g s t a t u t e s a r e l i k e w i s e drawn s o

as to prevent a r b i t r a r y sentencing.                        W e reaffirm our holding t h a t

t h e y are c o n s t i t u t i o n a l .    McKenzie, 1 7 7 Mont. a t 320, 5 8 1 P.2d
a t 1228-1229;          Coleman,               Mont. a t              ,   6 0 5 P.2d a t 1015-1017,
36 S t . R e p .   a t 1148-1151.

                   A s t o t h e claim t h a t t h e d e a t h p e n a l t y s t a t u t e s a r e

d i s c r i m i n a t o r y , we f i n d t h e r e a s o n i n g of t h e F i f t h C i r c u i t i n
S p i n k e l l i n k , s u p r a , t o be p e r s u a s i v e .     That court discussed the
cases o f W a s h i n g t o n v , D a v i s ( 1 9 7 6 ) , 426 U.S.                 229, 9 6 S . C t .    2040,
4 8 L.Ed.2d         597, and V i l l a g e o f A r l i n g t o n H e i g h t s v . M e t r o p o l i t a n

H o u s i n g D e v e l o p m e n t Corp.      ( 1 9 7 7 ) , 429 U.S.          252, 97 S . C t .    555, 5 0
L.Ed.2d       450, and n o t e d t h a t d i s p r o p o r t i o n a t e i m p a c t o f a f a c i a l l y

n e u t r a l law w i l l n o t make t h e l a w u n c o n s t i t u t i o n a l ,          unless a

d i s c r i m i n a t o r y i n t e n t o r p u r p o s e is f o u n d .        Spinkellink, supra,
5 7 8 F.2d      a t 614-616,         and f o o t n o t e 42.         The Montana l a w is

f a c i a l l y n e u t r a l , and p e t i t i o n e r makes n o a l l e g a t i o n s t h a t t h e

l a w has a discriminatory intent.                          F u r t h e r , t h e d i s t r i c t judge h e r e
h e l d t h a t p e t i t i o n e r s e t f o r t h no f a c t s s h o w i n g a n y e v i d e n c e o f

d i s c r i m i n a t o r y a p p l i c a t i o n of t h e s t a t u t e s .     S e e Coleman,

Mont. a t              ,   6 0 5 P.2d      a t 1019, 36 St.Rep.                 a t 1153.
                   F i n d i n g t h a t no e v i d e n c e was p r e s e n t e d which r e q u i r e d

a f u r t h e r f a c t u a l h e a r i n g , t h e d i s t r i c t judge p r o p e r l y d i s m i s s e d

p e t i t i o n e r ' s claim.
                   P e t i t i o n e r a l l e g e s t h a t t h e d e a t h p e n a l t y i s imposed

s o r a r e l y t h a t it d o e s n o t d e t e r and s e r v e s no l e g i t i m a t e s t a t e

interest.          H e c o n t e n d s t h a t t h i s is a f a c t u a l i s s u e which demanded

t h a t t h e judge g r a n t an e v i d e n t i a r y h e a r i n g .             The S t a t e c o n t e n d s

t h a t t h i s is a l e g a l i s s u e , and f u r t h e r , t h a t p e t i t i o n e r p r e -
s e n t e d n o t h i n g b u t v a g u e o p i n i o n s and c o n c l u s i o n s o n t h i s i s s u e .
                   I n a s s e s s i n g p e n a l t i e s u n d e r t h e E i g h t h Amendment,            the

Supreme C o u r t h a s d e t e r m i n e d t h a t t h e d e a t h p e n a l t y i s n o t -r-
                                                                                            p e se
c r u e l and u n u s u a l .      G r e g g , 428 U.S.         a t 169, 96 S.Ct.             a t 2923, 49
L.Ed.2d       a t 872.        The C o u r t f u r t h e r n o t e d t h a t "inhumane" p u n i s h -

m e n t is f o r b i d d e n , a s is p u n i s h m e n t which d o e s n o t s u i t t h e
crime.        I n making t h e s e d e t e r m i n a t i o n s ,       t h e Court w i l l look to
" o b j e c t i v e i n d i c i a t h a t r e f l e c t t h e p u b l i c a t t i t u d e toward a
g i v e n s a n c t i o n ," b e c a u s e a n a s s e s s m e n t o f c o n t e m p o r a r y v a l u e s
c o n c e r n i n g t h e i n £ l i c t i o n o f a c h a l l e n g e d s a n c t i o n is r e l e v a n t t o
t h e a p p l i c a t i o n o f t h e E i g h t h Amendment.               P u b l i c p e r c e p t i o n s are

n o t c o n c l u s i v e , b u t i f a p e n a l t y also a c c o r d s "with t h e d i g n i t y

o f man,"       t h e p u n i s h m e n t w i l l be u p h e l d .       G r e g g , 428 U.S.       at
169-173,        96 S . C t .    a t 2923-2925,          49 L.Ed.2d         a t 872-875.
                   The d i s t r i c t j u d g e found it i n d i c a t i v e o f p u b l i c a t t i-

t u d e t h a t t h e e l e c t o r a t e o f Montana v o t e d i n 1972 t o r e t a i n c a p i -
t a l punishment.              In addition, the S t a t e p o i n t s out t h a t the
l e g i s l a t u r e h a s c o n t i n u e d throughout t h e 1970 I            s    to make M o n t a n a ' s
d e a t h p e n a l t y s t a t u t e s c o n f o r m to t h e r e q u i r e m e n t s o f t h e U n i t e d

S t a t e s Supreme C o u r t .         A l s o t h e S t a t e n o t e s t h a t t h e 1981

l e g i s l a t u r e r e j e c t e d a n a t t e m p t t o c h a n g e t h e p e n a l t y to a d i f -

f e r e n t means o f i n f l i c t i n g d e a t h ( o t h e r t h a n h a n g i n g ) , which

r e f l e c t s t h e f a c t t h a t t h e l e g i s l a t u r e s t i l l sees d e a t h by
h a n g i n g as l e g i t i m a t e , and n o t so r a r e t o h a v e no a p p l i c a t i o n t o
deterrence.            I n G r e g g , s u p r a , t h e Supreme C o u r t n o t e d t h a t t h e r e

i s n o t s i g n i f i c a n t e v i d e n c e e i t h e r s u p p o r t i n g or o p p o s i n g c a p i t a l
p u n i s h m e n t as a d e t e r r e n t .     For t h a t reason, t h e Court determined
t h a t t h e i s s u e was b e t t e r l e f t to S t a t e l e g i s l a t u r e s , w h i c h c o u l d

e v a l u a t e t h e e f f e c t s i n t h e i r own s t a t e s b e t t e r t h a n t h e c o u r t s
could.        G r e g g , 428 U.S.        a t 184-187,         96 S.Ct.        a t 2931, 49 L.Ed.2d

881-882.

                   I n sum, t h e S t a t e a p p e a r s t o h a v e r e t a i n e d a l e g i t i -
mate i n t e r e s t i n c a p i t a l p u n i s h m e n t .       I n d e e d , i t is i n v o k e d

r a r e l y , b u t few crimes r e a c h t h e l e v e l s w h e r e s u c h p u n i s h m e n t is

even considered.                I n a n area s u c h a s t h i s o n e , which is l e f t to
the State legislatures for a factual determination, the d i s t r i c t

j u d g e c o r r e c t l y d i s m i s s e d p e t i t i o n e r ' s claim.
                   A f i n a l i s s u e w h i c h p e t i t i o n e r a r g u e s was o n e

d e m a n d i n g a n e v i d e n t i a r y h e a r i n g was w h e t h e r d e a t h by h a n g i n g

c o n s t i t u t e s c r u e l and u n u s u a l p u n i s h m e n t .    He argues t h a t death

b y h a n g i n g is slow and p a i n f u l , and t h a t b e c a u s e so few p e o p l e
a r e h a n g e d , t h e r e a r e no c o m p e t e n t hangmen i n Montana.

                   W e h a v e n o t d e t e r m i n e d t h a t a n y p a r t i c u l a r means of

p u n i s h m e n t o f f e n d s t h e c o n s t i t u t i o n a l p r o v i s i o n a g a i n s t c r u e l and
unusual punishment.                 Thus w e s h a l l d e f e r to t h e l e g i s l a t u r e i n

t h i s matter.         S e e S t a t e v. Coleman ( 1 9 7 9 ) ,                     Mont.        ,   605
p.2d    1 0 0 0 , 1058-1059,         36 St.Rep.         2237, 2247.          The d i s t r i c t j u d g e

p r o p e r l y d i s m i s s e d t h i s claim.
                  P e t i t i o n e r n e x t r a i s e s s i x i s s u e s which h e a l l e g e s t h e
d i s t r i c t j u d g e d e c i d e d i n c o r r e c t l y o n t h e merits.       Because t h e s e

i s s u e s i n v o l v e q u e s t i o n s o f l a w and n o t o f f a c t , b o t h s i d e s
a g r e e d t h a t a n e v i d e n t i a r y h e a r i n g o n t h e s e i s s u e s was n o t

necessary.

                  I n " p a r a g r a p h 8 ( e ) I 1 of h i s p e t i t i o n f o r p o s t -
c o n v i c t i o n r e l i e f , p e t i t i o n e r a l l e g e s t h a t h e was d e n i e d h i s

c o n s t i t u tionally-required           unanimous j u r y v e r d i c t b e c a u s e t h e j u r y
was i n s t r u c t e d o n t h e crimes i n t h e d i s j u n c t i v e , e.9.:
                     ...          i t was a l l o w e d to c o n v i c t i f it f o u n d h e
                  ' p u r p o s e l y or knowingly performed, or aided or
                   . . .w a s . . .
                  a b e t t e d i n p e r f o r m i n g , t h e acts c a u s i n g t h e d e a t h

                  [he]
                              or                the death    ...          w a s caused while
                                    e n g a g e d i n o r was a n a c c o m p l i c e to t h e
                  commission o f , or f l i g h t a f t e r            ...
                  k i d n a p p i n g . ' " ( I n s t r u c t i o n N o . 24. )
                                                                                  robbery or
                                                                                  (~mphasis
                  a d d e d by p e t i t i o n e r . )
                  With t h i s type of i n s t r u c t i o n , p e t i t i o n e r a r g u e s , 1 2

p e o p l e may n e v e r h a v e a g r e e d o n e x a c t l y which crimes were
committed.          The S t a t e a r g u e s t h a t t h e j u r y i n s t r u c t i o n s a l s o t o l d

t h e j u r y t h a t a l l 1 2 o f them had t o a g r e e , and f u r t h e r , t h a t t h e

d i s t r i c t j u d g e found s u b s t a n t i a l e v i d e n c e t o s u p p o r t a l l
alternatives.
                  P e t i t i o n e r c i t e s t h e case o f U n i t e d S t a t e s v. G i p s o n

( 5 t h C i r . 1 9 7 7 ) , 5 5 3 F.2d 453,         i n w h i c h a f e d e r a l d e f e n d a n t was

c o n v i c t e d o f " s e l l i n g " or " r e c e i v i n g " p u r s u a n t t o 1 8 USC Si 2313.
T h a t s t a t u t e p r o v i d e d t h a t t h e d e f e n d a n t s h o u l d be c o n v i c t e d i f

h e d i d one of t h e enumerated acts:                     receiving, concealing,
s t o r i n g , b a r t e r i n g , s e l l i n g , or disposing.         The c o u r t f o u n d t h a t
t h e s e s i x acts f e l l i n t o t w o g r o u p s , which are c o n c e p t u a l l y
different.          The c o u r t h e l d t h a t t h e r e c o u l d n o t be a unanimous
v e r d i c t i f some j u r o r s f o u n d d e f e n d a n t g u i l t y o f a n a c t i n t h e
o t h e r group.       The v e r d i c t l a c k e d u n a n i m i t y of t h e " a c t u s r e u s . "

G i p s o n , 5 5 3 F.2d    a t 457-459.           T h i s case is c l e a r l y d i s t i n g u i s h -
able.      W h i l e t h e j u r y i n G i p s o n was d e l i b e r a t i n g , t h e y a s k e d t h e
j u d g e i f t h e y c o u l d c o n v i c t i f a l l 1 2 o f them d i d n o t a g r e e t o

t h e s p e c i f i c act done, i.e.,             one of t h e s i x s t a t u t o r y acts.              The
judge answered i n t h e a f f i r m a t i v e .              No s u c h e v e n t o c c u r r e d h e r e .
The j u r o r s were s p e c i f i c a l l y i n s t r u c t e d t h a t a l l 1 2 had t o a g r e e

     order           convict.
                   P e t i t i o n e r a l s o c i t e s a r e c e n t W a s h i n g t o n case, S t a t e
v . G r e e n ( 1 9 8 0 ) , 94 Wash.2d          216, 616 P.2d           6 2 8 , i n which t h e

W a s h i n g t o n Supreme C o u r t r e v e r s e d a g u i l t y v e r d i c t , c i t i n g nonu-
nanimity of t h e jury v e r d i c t .               T h a t case i n v o l v e d a j u r y i n s t r u c -
t i o n t h a t " d e f e n d a n t caused t h e d e a t h of          [victim] i n the course
of or i n f u r t h e r a n c e o f r a p e i n t h e f i r s t d e g r e e or k i d n a p p i n g i n
t h e f i r s t degree."          The j u r y found o n l y t h a t d e f e n d a n t was g u i l t y
o f a g g r a v a t e d murder.        The c o u r t r e v e r s e d , f i n d i n g t h a t it w a s

impossible to determine whether t h e j u r y unanimously agreed t h a t
d e f e n d a n t c o m m i t t e d e i t h e r r a p e o r k i d n a p p i n g , and r u l e d t h a t
t h e r e w a s n o t s u b s t a n t i a l e v i d e n c e to s u p p o r t k i d n a p p i n g .   The

c o u r t n o t e d t h a t r a p e and k i d n a p p i n g are s e p a r a t e and d i s t i n c t

c r i m i n a l o f f e n s e s and m u s t be p r o v e d as t o a l l e l e m e n t s b e c a u s e
o n e o f t h e s e o f f e n s e s is n e c e s s a r y t o s u s t a i n t h e more s e r i o u s

o f f e n s e , i.e.    aggravated murder i n t h e f i r s t d e g r e e .                  S t a t e v.
G r e e n ( 1 9 8 0 ) , 94 Wash.2d         216, 616 P.2d a t 637-638.
                  W e f i n d no e r r o r u n d e r t h e f a c t s o f t h i s case.               The

j u r y w a s i n s t r u c t e d as t o t h e r e q u i r e m e n t o f a unanimous v e r d i c t ,

w h i c h many c o u r t s h a v e found t o be s u f f i c i e n t .              The Second
C i r c u i t , i n upholding a v e r d i c t of g u i l t y on a c o n s p i r a c y c h a r g e

w h i c h t h e j u r y c o u l d h a v e d e t e r m i n e d to h a v e b e e n c o m m i t t e d i n
s e v e r a l ways, n o t e d :
                  If   ...        ' [ I l t is assumed t h a t a g e n e r a l i n s t r u c -
                  t i o n o n t h e r e q u i r e m e n t of u n a n i m i t y s u f f i c e s t o
                  i n s t r u c t t h e j u r y t h a t t h e y m u s t be unanimous o n
                  w h a t e v e r s p e c i f i c a t i o n s t h e y f i n d t o be t h e p r e -
                  d i c a t e o f t h e g u i l t y v e r d i c t . ' U n i t e d S t a t e s v.
                  N a t e l l i , 527 F.2d 311, 3 2 5 ( 2 d C i r . 1 9 7 5 ) , c e r t .
                  d e n i e d , 4 2 5 U.S. 934, 96 S . C t . 1 6 6 3 , 48 L.Ed.2d
                  1 7 5 . " U n i t e d S t a t e s v. Murray ( 2 d C i r . 1 9 8 0 ) ,
                  618 F.2d 8 9 2 , 898.
                  Moreover, a r e v i e w of t h e t r a n s c r i p t s a t i s f i e s us,
a s it d i d t h e d i s t r i c t j u d g e , t h a t t h e r e was s u b s t a n t i a l e v i d e n c e
t o support a l l of t h e a l t e r n a t i v e s set f o r t h i n the i n s t r u c t i o n s .
S e e S t a t e v. A r n d t ( 1 9 7 6 ) , 8 7 Wash.2d           374, 5 5 3 P.2d 1 3 2 8 , 1 3 3 0 .
S e e a l s o , S t a t e v.     S o u h r a d a ( 1 9 4 9 ) , 1 2 2 Mont. 377, 3 8 5 , 204 P.2d

7 9 2 , 796.       T h e r e f o r e we f i n d t h a t t h e r e q u i r e m e n t o f u n a n i m i t y ,

a s g u a r a n t e e d by t h e Montana C o n s t i t u t i o n , was s a t i s f i e d        .
                   P e t i t i o n e r claims t h a t he was d e n i e d h i s r i g h t s u n d e r
t h e S i x t h , E i g h t h and F o u r t e e n t h Amendments by r e a s o n of t h e f a c t

t h a t a j u r y w a s n o t involved i n t h e sentencing d e t e r m i n a t i o n .
The d i s t r i c t j u d g e d e t e r m i n e d t h a t t h i s i s s u e had b e e n d e c i d e d

a d v e r s e l y t o p e t i t i o n e r by i m p l i c a t i o n i n t h i s C o u r t ' s d e c i s i o n s
i n Coleman and McKenzie.                   We agree.

                  The U n i t e d S t a t e s Supreme C o u r t h a s n o t r e q u i r e d t h a t
the fact-finding             l e a d i n g t o s e n t e n c i n g be d o n e by a j u r y .         That

C o u r t h a s s a i d t h a t a j u r y p r o v i d e s "a s i g n i f i c a n t and r e l i a b l e

o b j e c t i v e i n d e x o f c o n t e m p o r a r y v a l u e s , " G r e g g , 428 U.S.      a t 181,

96 S . C t .   a t 2929, 49 L.Ed.2d               a t 879, b u t t h e C o u r t also upheld

t h e F l o r i d a s e n t e n c i n g scheme w h e r e b y a j u r y was a d v i s o r y o n l y ,
w i t h t h e j u d g e making t h e f i n a l d e t e r m i n a t i o n .        In P r o f f i t t ,
s u p r a , 428 U.S.       a t 252, 96 S . C t . a t           2966, 49 L.Ed.2d              a t 922-923,

t h e Court s t a t e d :

                  "The b a s i c d i f f e r e n c e b e t w e e n t h e F l o r i d a s y s t e m
                  a n d t h e G e o r g i a s y s t e m is t h a t i n F l o r i d a t h e
                  s e n t e n c e is d e t e r m i n e d by t h e t r i a l j u d g e r a t h e r
                  t h a n by t h e j u r y .         T h i s Court h a s pointed o u t
                  t h a t j u r y s e n t e n c i n g i n a c a p i t a l case c a n per-
                  form an important societal f u n c t i o n , Witherspoon
                  v . I l l i n o i s , 3 9 1 U.S. 510, 519 N. 1 5 , 20 L.Ed.2d
                  7 7 6 , 8 8 S . C t . 1 7 7 0 , 46 Ohio Op.2d 3 6 8 ( 1 9 6 8 ) ,
                  b u t it h a s n e v e r s u g g e s t e d t h a t j u r y s e n t e n c i n g
                  i s c o n s t i t u t i o n a l l y r e q u i r e d . And it would
                  appear t h a t j u d i c i a l sentencing should lead, i f
                  a n y t h i n g , to even g r e a t e r c o n s i s t e n c y i n t h e
                  i m p o s i t i o n a t t h e t r i a l c o u r t l e v e l of c a p i t a l
                  p u n i s h m e n t , s i n c e a t r i a l j u d g e is more
                  e x p e r i e n c e d i n s e n t e n c i n g t h a n a j u r y , and t h e r e -
                  f o r e is b e t t e r a b l e to impose s e n t e n c e s s i m i l a r
                  t o t h o s e imposed i n a n a l o g o u s c a s e s . "
                  A l t h o u g h i n t h e l a t e r case o f L o c k e t t v. Ohio ( 1 9 7 8 ) ,
438 U.S.       586, 609, n . 1 6 , 98 S . C t .             2954, 2967, n. 1 6 , 5 7 L.Ed.2d

9 7 3 , 992, n . 1 6 , t h e Supreme C o u r t r e s e r v e d judgment o n w h e t h e r
the Constitution required a jury t o determine death penalty

s e n t e n c i n g , t h e d e c i s i o n i n P r o f f i t t c o n v i n c e s us t h a t a t t h i s
t i m e t h e Montana s t a t u t o r y scheme is c o n s t i t u t i o n a l .                What
a p p e a r s t o be o f o v e r r i d i n g i m p o r t a n c e i s t h a t t h e t r i a l and s e n -

t e n c i n g are b i f u r c a t e d , w i t h d i f f e r e n t f a c t o r s c o n s i d e r e d a t

each.       G r e g g , 428 U.S.         a t 190-192,         96 S . C t .    a t 2933-2934,           49
L.Ed     2d a t 884-885.

                   P e t i t i o n e r p o i n t s o u t t h a t Montana and I d a h o a r e now
t h e o n l y s t a t e s w h i c h t a k e t h e f a c t u a l matters i n v o l v e d i n s e n -
t e n c i n g away f r o m t h e j u r y .         Oregon r e c e n t l y s t r u c k down i t s

s t a t u t e , f i n d i n g t h a t j u d i c i a l s e n t e n c i n g was u n c o n s t i t u t i o n a l .
T h a t case is d i s t i n g u i s h a b l e : i n o r d e r f o r t h e d e a t h s e n t e n c e t o
b e i m p o s e d , t h e j u d g e , n o t t h e j u r y , had to d e t e r m i n e t h a t t h e

m u r d e r was d e l i b e r a t e , t h e r e b y g i v i n g t h e j u d g e t h e t a s k of
d e t e r m i n i n g o n e o f t h e e l e m e n t s o f t h e crime.             S e e S t a t e v. Q u i n n
( 1 9 8 1 ) , 290 O r . 3 8 3 , 6 2 3 P.2d 6 3 0 , 639-644.

                   The Montana s i t u a t i o n is n o t a n a l o g o u s .               The f a c t o r s
t o be c o n s i d e r e d b y t h e j u d g e i n i m p o s i n g t h e d e a t h p e n a l t y are
n o t e l e m e n t s o f t h e crime.           S e e s e c t i o n s 46-18-303          and 46-18-304,
MCA.      The Montana scheme is more l i k e a n " e n h a n c e d p e n a l t y
s t a t u t e , " w h i c h t h e O r e g o n C o u r t a g r e e d was a p e r m i s s i b l e
s i t u a t i o n i n which t o d e n y t h e i n p u t o f a j u r y .                The c o u r t found

t h a t " t h e f a c t s w h i c h c o n s t i t u t e t h e crime are f o r t h e j u r y and
t h o s e which c h a r a c t e r i z e t h e d e f e n d a n t are f o r t h e s e n t e n c i n g
court."        Q u i n n , 6 2 3 P.2d a t 643.              S e e a l s o S t a t e v. S t e w a r t

( 1 9 7 7 ) , 1 7 5 Mont. 286, 299-300,                 5 7 3 P.2d 1 1 3 8 , 1145-1146.

                   The d i s t r i c t j u d g e was c o r r e c t i n d e t e r m i n i n g t h a t
p e t i t i o n e r ' s claim s h o u l d be d i s m i s s e d .        T h e r e is no c o n s t i t u -
t i o n a l r e q u i r e m e n t t h a t a j u r y make t h e d e t e r m i n a t i o n to impose
the death penalty.
                   P e t i t i o n e r n e x t a l l e g e s e r r o r i n t h a t he w a s r e q u i r e d

t o p r o v e t h a t h i s l i f e s h o u l d be s p a r e d , b e c a u s e t h e b u r d e n rests
o n him to show m i t i g a t i o n .            The S t a t e p o i n t s o u t t h a t t h i s C o u r t
h a s u p h e l d t h e Montana s e n t e n c i n g p r o c e d u r e s i n Coleman and
McKenzie and t h a t t h e s t a t u t e s c o n f o r m w i t h t h e U n i t e d S t a t e s

Supreme C o u r t ' s g u i d e l i n e s .

                  A s t h e d i s t r i c t judge r e c o g n i z e d ,      t h e United S t a t e s
Supreme C o u r t h a s d e c l i n e d t o d e c i d e t h e c o n s t i t u t i o n a l i t y o f

" r e q u i r [ i n g ] d e f e n d a n t s t o b e a r t h e r i s k o f n o n p e r s u a s i o n as t o

t h e e x i s t e n c e o f m i t i g a t i n g c i r c u m s t a n c e s i n c a p i t a l cases."
L o c k e t t , 438 U.S.      a t 609, n . 1 6 , 9 8 S . C t .          a t 2967, n . 1 6 ,

5 7 L.Ed.2d        a t 992, n . 1 6 .         H e a l s o n o t e d t h a t t h e cases r e l i e d o n

by p e t i t i o n e r i n s u p p o r t of h i s p o s i t i o n a l l r e l a t e to t h e g u i l t

phase of prosecution,                 i n which t h e b u r d e n is n e c e s s a r i l y o n t h e

S t a t e t o p r o v e e v e r y e l e m e n t o f t h e crime.           I n r e W i n s h i p ( 1 9 7 0 ),
397 U.S.       358, 90 S . C t .       1 0 6 8 , 25 L.Ed.2d         3 6 8 ; S t a t e v.    Stewart,
1 7 5 Mont. a t 299-301,             573 P.2d        a t 1145-1146.           S e e a l s o S t a t e v.

P i e r r e (1977),             Utah          ,   572 P.2d 1 3 3 8 , 1346-1347,               cert.
d e n i e d 439 U.S.       8 8 2 , 99 S . C t .    219, 58 L.Ed.2d            194.

                  T h i s is a n i s s u e o f f i r s t i m p r e s s i o n i n Montana, w i t h

regard t o the death penalty statutes.                            S e c t i o n 46-18-305,         MCA,

provides t h a t "the court                . . . shall         impose a s e n t e n c e of d e a t h
i f it f i n d s o n e or more o f t h e a g g r a v a t i n g c i r c u m s t a n c e s and
f i n d s t h a t t h e r e are no m i t i g a t i n g c i r c u m s t a n c e s s u f f i c i e n t l y
s u b s t a n t i a l t o call f o r leniency."              This s t a t u t e undoubtedly pla-
ces t h e b u r d e n on t h e d e f e n d a n t t o show t h a t h i s l i f e s h o u l d be
s p a r e d , b u t w e f i n d t h i s t o be c o n s t i t u t i o n a l l y p e r m i s s i b l e .     In
S t a t e v.     S t e w a r t , s u p r a , w e d i s c u s s e d t h e U n i t e d S t a t e s Supreme
C o u r t case o f P a t t e r s o n      v . N e w York ( 1 9 7 7 ) , 4 3 2 U.S.           1 9 7 , 9 7 S.
Ct.   2319, 5 3 L.Ed.2d             281, n o t i n g t h a t P a t t e r s o n r e l i e v e s t h e
S t a t e o f t h e b u r d e n o f p r o v i n g f a c t s which d o n o t c o n s t i t u t e ele-

m e n t s o f t h e crime.         We stated         i n S t e w a r t t h a t it is p e r m i s s i b l e
t o allow f a c t s p e r t i n e n t o n l y t o t h e q u e s t i o n o f p u n i s h m e n t t o be
d e t e r m i n e d by a j u d g e r a t h e r t h a n by t h e j u r y ,       and t h e S t a t e need
n o t p r o v e s u c h f a c t s beyond a r e a s o n a b l e d o u b t :

                  " H e r e , w e are c o n c e r n e d w i t h a s t a t u t e h a v i n g a
                  bifurcated sentencing provision r a t h e r than a
                   s t a t u t e t h a t s e p a r a t e l y allocates t h e burden of
                   p r o o f , as i n P a t t e r s o n .     However, t h e p r e s e n t
                   c a s e and P a t t e r s o n , b o t h , f o c u s o n t h e s t a t u s o f
                   a f a c t n e i t h e r b y t r a d i t i o n n o r by s t a t u t e a
                   n e c e s s a r y e l e m e n t o f t h e crime c h a r g e d . The
                   m a j o r i t y d e c i s i o n and J u s t i c e P o w e l l ' s d i s s e n t i n
                   P a t t e r s o n i n d i c a t e t h a t when t h e p r e s e n c e or
                   absence of such a f a c t determines o n l y t h e
                   s e v e r i t y o f p u n i s h m e n t , it need n o t be p r o v e d by
                   t h e s t a t e beyond a r e a s o n a b l e d o u b t . The release
                   o r n o n r e l e a s e o f a k i d n a p p e r ' s v i c t i m is s u c h a
                   f a c t , and it is w i t h i n t h e power o f t h e s t a t e to
                   a l l o w t h e t r i a l c o u r t , r a t h e r t h a n t h e j u r y , to
                   make t h i s f a c t u a l d e t e r m i n a t i o n . "    S t a t e v.
                   S t e w a r t , 1 7 5 Mont. a t 301, 573 P.2d a t 1146.
                   The m i t i g a t i n g f a c t o r s i n t h e d e a t h p e n a l t y s t a t u t e s
h a v e no b e a r i n g on g u i l t o r i n n o c e n c e .         T h u s it is p e r m i s s i b l e t o
r e q u i r e t h e d e f e n d a n t t o b r i n g f o r t h t h e e v i d e n c e p e r t i n e n t to t h e
question of mitigation.

            The n e x t a l l e g e d e r r o r r a i s e d by p e t i t i o n e r is t h a t t h e
d e a t h p e n a l t y is v i o l a t i v e o f p e t i t i o n e r ' s c o n s t i t u t i o n a l r i g h t s

b e c a u s e t h e d e a t h p e n a l t y is d i s p r o p o r t i o n a t e t o t h e crime o f
k i d n a p p i n g , and t h e p e n a l t y w a s imposed h e r e w i t h o u t a f i n d i n g by
t h e jury t h a t p e t i t i o n e r d e l i b e r a t e l y took a l i f e .            Petitioner
c i t e s Coker v. G e o r g i a ( 1 9 7 7 ) , 433 U.S.               584, 97 S . C t .       2861, 5 3

L.Ed.2d       9 8 2 , and E b e r h e a r t v. G e o r g i a ( 1 9 7 7 ) , 4 3 3 U.S.           917, 9 7
S.Ct.     2994, 53 L.Ed.2d              1104, f o r t h e h o l d i n g s t h a t t h e d e a t h
p e n a l t y c a n n o t be c o n s t i t u t i o n a l l y imposed f o r r a p e or

kidnapping.
            The S t a t e a r g u e s t h a t t h e s e cases a r e i n a p p l i c a b l e b e c a u s e

t h i s case i n v o l v e s a d e a t h t h a t is t h e r e s u l t o f a n a g g r a v a t e d

k i d n a p p i n g , s e c t i o n 46-18-303(7),          MCA,     which is c l e a r l y
d i s t i n g u i s h a b l e from t h e k i d n a p p i n g i n v o l v e d i n E b e r h e a r t , s u p r a .
W agree.
 e
            The U n i t e d S t a t e s Supreme C o u r t h a s r u l e d t h a t t h e d e a t h
p e n a l t y is p e r m i s s i b l e for t h e crime of h o m i c i d e when a l i f e h a s
b e e n d e l i b e r a t e l y t a k e n by t h e d e f e n d a n t .     Gregg, s u p r a .        But

t h a t C o u r t h a s r e s e r v e d judgment o n w h e t h e r more t h a n a d e l i -
b e r a t e a c t which r e s u l t s i n t h e t a k i n g o f a l i f e i s n e c e s s a r y i n
imposing t h e d e a t h p e n a l t y ,         i.e.,     w h e t h e r t h e r e m u s t be a speci-
f i c purpose to t a k e t h e l i f e of t h e v i c t i m .                  L o c k e t t , 438 U.S.        at

6 0 9 , n . 1 6 , 98 S . C t .        a t 2967, n . 1 6 , 5 7 L.Ed.2d               a t 992, n. 16.

            T h i s Court found i n F i t z p a t r i c k ,                  Mont. a t              ,   606

P.2d     a t 1 3 5 6 , 37 S t . R e p .      a t 209, t h a t l l [ d ] e f e n d a n t p u r p o s e l y

k i d n a p p e d , r o b b e d , and c a u s e d t h e d e a t h o f Monte Dyckman               ."        There

w a s no f i n d i n g o f a s p e c i f i c i n t e n t t o k i l l .           Thus, p e t i t i o n e r

a r g u e s , h i s d e a t h s e n t e n c e may h a v e b e e n imposed f o r a d e a t h

which r e s u l t e d from t h e commission of a f e l o n y , o r f o r h i s r o l e

o n l y as a n a i d e r or a b e t t o r .

            J u s t i c e s W h i t e and M a r s h a l l c o n c u r r e d i n L o c k e t t , s u p r a ,

b u t condemned t h e i m p o s i t i o n o f t h e d e a t h p e n a l t y i n f e l o n y

murder s i t u a t i o n s .        They p o i n t e d o u t t h a t a b o u t h a l f t h e s t a t e s

h a v e f o r e c l o s e d t h e d e a t h p e n a l t y f o r t h o s e who d o n o t s p e c i f i -

c a l l y i n t e n d d e a t h , f i n d i n g t h e p e n a l t y g r o s s l y o u t of p r o p o r t i o n

f o r a n y o t h e r crime, and h a v i n g l i t t l e d e t e r r e n t v a l u e i n t h e s e

situations.            L o c k e t t , s u p r a , 438 U.S.        a t 619-621,        and 624-628,            98

S.Ct.      a t 2972-2974          and 2983-2985,            5 7 L.Ed      a t 998-1000,         and

1002-1004.

            The l e g i s l a t u r e i n Montana h a s n o t s e e n f i t to f o r e c l o s e

t h i s s e n t e n c e f o r t h e i n t e n t i o n a l crime o f a g g r a v a t e d k i d n a p p i n g

which r e s u l t s i n d e a t h .          S e c t i o n 46-18-303(7),          MCA.      W e do not
f i n d t h e d e a t h p e n a l t y t o be d i s p r o p o r t i o n a t e to t h e crime com-

m i t t e d h e r e , and w e w i l l d e f e r to t h e l e g i s l a t u r e w h e r e w e f i n d

no c o n s t i t u t i o n a l v i o l a t i o n .

            P e t i t i o n e r f u r t h e r o b j e c t s to t h e i m p o s i t i o n o f s e n t e n c e

b a s e d on a j u d g e ' s      findings, r a t h e r than a jury's.                     A s we

i n d i c a t e d , s u p r a , w e f i n d it c o n s t i t u t i o n a l l y p e r m i s s i b l e to g i v e

t h e s e n t e n c i n g j u d g e t h e d i s c r e t i o n t o make t h e f a c t u a l f i n d i n g s

which form t h e b a s i s f o r t h e d e a t h s e n t e n c e .               S t a t e v.   Stewart,

1 7 5 Mont. a t 301, 573 P.2d                    a t 1146.       S i n c e t h e r e is no c o n s t i t u -

t i o n a l r e q u i r e m e n t f o r a f i n d i n g of a s p e c i f i c i n t e n t to k i l l ,          it

i s p e r m i s s i b l e f o r t h e s e n t e n c i n g j u d g e to impose t h e d e a t h
p e n a l t y i n t h i s case i n which t h e j u r y found a d e l i b e r a t e a c t by
p e t i t i o n e r and t h e j u d g e made t h e f i n d i n g s r e l e v a n t to i m p o s i -
t i o n of the death penalty.

            I n " p a r a g r a p h 9 ( g )" of h i s p o s t - c o n v i c t i o n       petition,
p e t i t i o n e r c o n t e n d s t h a t h e was s e n t e n c e d o n e r r o n e o u s i n f o r -
m a t i o n and c o n s t i t u t i o n a l l y i m p e r m i s s i b l e e v i d e n c e .   The d i s t r i c t

j u d g e d i s m i s s e d t h e claim.          W e f i n d t h a t h e was correct i n d o i n g

SO.

            P e t i t i o n e r claims t h a t t h e r e was no e v i d e n c e to s u p p o r t
t h e f i n d i n g s o f t h e s e n t e n c i n g j u d g e t h a t t h e k i l l i n g was com-
m i t t e d by " l y i n g i n w a i t o r ambush," and t h a t t h e crime o f k i d -
n a p p i n g had r e s u l t e d i n t h e d e a t h of t h e v i c t i m .              Section
46-18-303,          MCA.      T h i s C o u r t had t h e s e n t e n c i n g f i l e and t h e t r i a l
t r a n s c r i p t b e f o r e it o n t h e l a s t a p p e a l , b u t t h i s i s s u e was n o t
specifically raised.                   However, a t t h a t t i m e , w e r e v i e w e d t h e
s e n t e n c e , a s w e were c o m p e l l e d t o d o , s e c t i o n 46-18-307,                  MCA,    and

found t h a t " t h e e v i d e n c e i n t h e r e c o r d c l e a r l y p r o v e s s u f f i c i e n t
a g g r a v a t i n g c i r c u m s t a n c e s e x i s t i n t h i s case to w a r r a n t i m p o s i -
t i o n of t h e d e a t h p e n a l t y . "        Fitzpatrick,                  Mont. a t              ,   606
P.2d     a t 1 3 6 0 , 37 S t . R e p .      a t 215.       W e need n o t r e v i e w t h i s i s s u e

further.

            P e t i t i o n e r a l s o claims t h a t t h e s e n t e n c e was b a s e d p a r -
t i a l l y on a c o n s t i t u t i o n a l l y in£ i r m c o n v i c t i o n .        P e t i t i o n e r had

b e e n c o n v i c t e d of m u r d e r p r i o r to t h i s case, b u t                 the conviction

was o v e r t u r n e d b e c a u s e o f i n a d e q u a t e c o u n s e l and l a c k o f s p e e d y
trial.        The s e n t e n c i n g j u d g e n o t e d t h a t u n d e r B u r g e t t v . T e x a s

( 1 9 6 7 ) , 3 8 9 U.S.      109, 88 S.Ct.            258, 1 9 L.Ed.2d             319, t h e C o u r t

s h o u l d n o t c o n s i d e r c o n v i c t i o n s which are c o n s t i t u t i o n a l l y
i n £ i r m b e c a u s e of G i d e o n v i o l a t i o n s .      The r e c o r d from s e n t e n c i n g
i n d i c a t e s t h a t t h e j u d g e was w e l l aware t h a t h e s h o u l d n o t con-
s i d e r t h i s , and h e s o s t a t e d :
            "The r e v e r s a l o f t h i s c o n v i c t i o n n u l l i f i e s t h i s i n c i -
            d e n t a s e v i d e n c e i n a g g r a v a t i o n , b u t is n e v e r t h e l e s s
            material i n d e m o n s t r a t i n g t h a t t h e d e f e n d a n t ' s con-
            d u c t i n p r i s o n is n o t a s o u r c e o f m i t i g a t i o n w i t h
            respect t o t h e s e n t e n c i n g i s s u e
            Finding ( f ) .
                                                                      . . ."   Court's
            T h i s C o u r t d e t e r m i n e d i n S t a t e v. O l s e n ( 1 9 8 0 ) ,             Mont.
         , 614     P.2d     1 0 6 1 , 37 S t . R e p .   1313, t h a t a d e f e n d a n t is

e n t i t l e d t o a c o n v i c t i o n b a s e d o n s u b s t a n t i a l l y correct

i n f o r m a t i o n , and t h a t i n f i r m c o n v i c t i o n s s h o u l d n o t be
considered.           However, t h i s C o u r t a l s o s t a t e d i n t h a t o p i n i o n t h a t

i f i t is o b v i o u s f r o m t h e r e c o r d t h a t t h e j u d g e d i d n o t r e l y o n

t h a t c o n v i c t i o n , and t h a t t h e s e n t e n c e would n o t h a v e b e e n d i f -
f e r e n t had t h e j u d g e d i s r e g a r d e d t h a t p r i o r c o n v i c t i o n t o t a l l y ,
t h e C o u r t w i l l f i n d no p r e j u d i c e to t h e d e f e n d a n t .         The O l s e n

C o u r t also noted t h a t i n view of t h a t d e f e n d a n t ' s e x t e n s i v e cri-
m i n a l b a c k g r o u n d , a l o o k a t t h o s e p a s t c o n v i c t i o n s is n o t

prejudicial.            S t a t e v. O l s e n ,           Mont. a t              ,   6 1 4 P.2d     at
1064-1065,         37 S t . R e p .   a t 1316-1317.            P e t i t i o n e r h e r e had a

substantial record.

            Here t h e j u d g e d e c l a r e d t h a t h e c o u l d n o t and would n o t
r e l y on t h e p r i o r c o n v i c t i o n .      W e f i n d t h i s t o be s u f f i c i e n t t o
s a f e g u a r d p e t i t i o n e r ' s i n t e r e s t i n a n a p p r o p r i a t e and c o n s t i t u -

t i o n a l sentence.
            P e t i t i o n e r d i s p u t e s one o t h e r i t e m apparently considered
by t h e judge i n s e n t e n c i n g :           t h a t d e f e n s e c o u n s e l informed t h e
c o u r t t h a t p e t i t i o n e r had a d m i t t e d t o t h e h o m i c i d e o f which h e

had p r e v i o u s l y been c o n v i c t e d , b u t claimed s e l f - d e f e n s e .
P e t i t i o n e r a s s e r t s now t h a t h e had no i n v o l v e m e n t i n t h a t

offense.         T h i s i s s u e is n o t d i s c u s s e d i n h i s b r i e f , b u t a p p e a r s
t o r e f e r t o t h e c o n v i c t i o n , d i s c u s s e d a b o v e , w h i c h was d i s r e -
g a r d e d by t h e j u d g e .      A s we n o t e d , w e f i n d no error i n t h e sen-

t e n c i n g judge 's t r e a t m e n t of t h a t c o n v i c t i o n .
            Next, p e t i t i o n e r c h a l l e n g e s h i s s e n t e n c e on t h e b a s i s of
t h e a l l e g e d l y v a g u e g u i d e l i n e s used i n f i n d i n g a g g r a v a t i n g and
mitigating circumstances.                      H e a s s e r t s t h a t t h e y a l l o w t o o much

d i s c r e t i o n i n s e n t e n c i n g , which i n j e c t s u n c o n s t i t u t i o n a l
arbitrariness into death penalty decisions.                                   The S t a t e c o u n t e r s

b y p o i n t i n g o u t t h a t c e r t a i n f a c t o r s s i m i l a r to t h o s e s e t o u t i n
t h e Montana s t a t u t e s ( s e c t i o n s 46-18-303               and 46-18-304,            XCA) h a v e

b e e n f o u n d t o be c o n s t i t u t i o n a l i n G r e g g , 428 U.S.            a t 1 6 5 , n. 9,
96 S . C t .    a t 2921, n. 9 , 49 L.Ed.2d                  a t 870, n . 9 ; i n P r o f f i t t , 428

U.S.    a t 248, n . 6 , 96 S . C t .            a t 2965, n. 6 , 49 L.Ed.2d                   a t 921, n.

6 ; and i n J u r e k v .        T e x a s ( 1 9 7 6 ) , 428 U.S.         262,    265,     n. 1, 9 6

S.Ct.     2950,        2953, n.      1, 49 L.Ed.2d           9 2 9 , 934-935,         n . 1.      Also,

t h i s C o u r t h a s s p e c i f i c a l l y u p h e l d t h e Montana s t a t u t e s i n

McKenzie and Coleman, s u p r a , i n l i g h t o f t h e U n i t e d S t a t e s

Supreme C o u r t d e c i s i o n s .

            S i n c e t h e s e cases h a v e b e e n d e c i d e d , t h e U n i t e d S t a t e s

Supreme C o u r t h a s c r i t i c i z e d t h e G e o r g i a C o u r t ' s i n t e r p r e t a t i o n

of one f a c t o r set o u t i n t h e Georgia s t a t u t e .                    The Supreme C o u r t

f o u n d t h a t t h e G e o r g i a C o u r t had a d o p t e d s u c h a b r o a d c o n s t r u c -

t i o n o f t h e i r s t a t u t o r y a g g r a v a t i n g c i r c u m s t a n c e of " o u t r a g e o u s l y

o r w a n t o n l y v i l e , h o r r i b l e o r inhuman i n t h a t it i n v o l v e d

t o r t u r e ," t h a t s e n t e n c i n g had become a r b i t r a r y and c a p r i c i o u s .

T h a t C o u r t n o t e d t h e n e c e s s i t y of h a v i n g " ' c l e a r and o b j e c t i v e

standards,        '"   which p r o v i d e     "'specific         and d e t a i l e d g u i d a n c e ,   '   I'



a l l o w i n g f o r r a t i o n a l r e v i e w o f t h e i m p o s i t i o n of t h e d e a t h

sentence.          Godfrey v.          G e o r g i a ( 1 9 8 0 ) , 446 U.S.       420, 428,         100

S.Ct.     1 7 5 9 , 1764-1765,           64 L.Ed.2d        398, 406.

            The Montana s t a t u t e s d o n o t c o n t a i n t h e p r o v i s i o n which

was r e l i e d on by t h e G e o r g i a C o u r t i n i m p o s i n g a d e a t h s e n t e n c e .

B u t more i m p o r t a n t l y , w e n o t e t h a t t h e Montana s t a t u t e s h a v e b e e n

u p h e l d by t h i s C o u r t a s b e i n g f a c i a l l y s u f f i c i e n t t o w i t h s t a n d a n

a t t a c k of a r b i t r a r i n e s s .    And we f i n d no e v i d e n c e t h a t t h e a p p l i -

c a t i o n o f t h e f a c t o r s set o u t i n t h e d e a t h p e n a l t y s t a t u t e s h a s

b e e n so b r o a d t h a t t h e r e is no l o n g e r " a n y i n h e r e n t r e s t r a i n t o n

t h e a r b i t r a r y and c a p r i c i o u s i n £ l i c t i o n o f t h e d e a t h s e n t e n c e       ."
Godfrey, s u p r a .          Despite the f a c t t h a t "lying i n w a i t , "                  and

" s i g n i f i c a n t h i s t o r y of p r i o r c r i m i n a l a c t i v i t y , " s e c t i o n s

46-18-303,         46-18-304,          MCA,    h a v e n o t b e e n p r e v i o u s l y d e f i n e d by

t h i s C o u r t and were n o t e l a b o r a t e d upon d u r i n g s e n t e n c i n g , we
f i n d no e r r o r i n t h e f i n d i n g s of t h e s e n t e n c i n g j u d g e t h a t t h e

f a c t o r s a p p l i e d i n t h i s case.
           W e noted p r e v i o u s l y t h a t t h e evidence s u p p o r t s t h e f i n d i n g

t h a t t h e h o m i c i d e was c o m m i t t e d by " l y i n g i n w a i t , "        as was found

by t h e d i s t r i c t judge.          The e v i d e n c e shows t h a t t h e r o b b e r y was
c o n t e m p l a t e d w e l l i n a d v a n c e o f t h e e v e n t s which l e d to t h e
k i l l i n g o f Monte Dyckman, and t h a t i m m e d i a t e l y b e f o r e t h e r o b b e r y

p e t i t i o n e r s a t i n h i s car w a t c h i n g t h e S a f e w a y S t o r e and t h e n t h e

drive-in       bank, w a i t i n g f o r t h e v i c t i m .          I t a l s o shows t h a t o f a l l

t h e p a r t i c i p a n t s i n t h e crime, p e t i t i o n e r was t h e o n e who made
t h e d e c i s i o n t o e s c a l a t e t h e crime to m u r d e r and h e f i r e d t h e

s h o t s a t the victim.             A l t h o u g h t h e p e t i t i o n e r may o r may n o t h a v e
a c t u a l l y pulled the t r i g g e r while "lying i n w a i t , "                   the e n t i r e

c h a i n o f e v e n t s l e a d i n g t o t h e h o m i c i d e came a s a r e s u l t o f l y i n g

in wait.         W h e r e a s t h e m i s c h i e f found by t h e Supreme C o u r t i n
G o d f r e y , s u p r a , was t h a t ''a p e r s o n o f o r d i n a r y s e n s i b i l i t y c o u l d

f a i r l y c h a r a c t e r i z e almost e v e r y m u r d e r as ' o u t r a g e o u s l y o r wan-
t o n l y v i l e , h o r r i b l e and i n h u m a n , '   '' b e c a u s e t h e r e is n o t h i n g i n
t h o s e "few words, s t a n d i n g a l o n e , t h a t i m p l i e s any i n h e r e n t
r e s t r a i n t o n t h e a r b i t r a r y and c a p r i c i o u s i n f l i c t i o n o f t h e d e a t h

s e n t e n c e , " G o d f r e y , s u p r a , 446 U.S.       a t 428, 1 0 0 S . C t .      a t 1765, 64
L.Ed.2d      a t 406, s u c h a c r i t i c i s m c a n n o t b e made a b o u t t h e term

"lying in wait."               I t c a n a p p l y i n b u t few c i r c u m s t a n c e s and i t i s

n o t s u b j e c t to t h e abuse noted i n Godfrey.                       The w o r d s t h e m s e l v e s
c o n t a i n t h e i r own r e s t r a i n t , t h e y h a v e n o t b e e n a p p l i e d t o allow

s t a n d a r d l e s s and u n c h a n n e l e d s e n t e n c i n g , and t h e y a r e n o t

u n c o n s t i t u t i o n a l l y vague.
            F o r t h e same r e a s o n s , p e t i t i o n e r d i s p u t e s t h e j u d g e ' s
f i n d i n g t h a t h e had a " s i g n i f i c a n t h i s t o r y o f c r i m i n a l a c t i v i t y . ' '
S e c t i o n 46-18-304,        MCA.         Again, t h i s phrase h a s not been defined
b y t h i s C o u r t , b u t w e f i n d t h a t i t is p a r t i c u l a r e n o u g h by i t s

own terms t o p r e v e n t a l l e g a t i o n s o f v a g u e n e s s and to allow f o r

r a t i o n a l review of t h e s e n t e n c e .           W e set o u t d e f e n d a n t ' s p r i o r
c r i m i n a l h i s t o r y i n t h e p r e v i o u s a p p e a l of t h i s case.          See
Fitzpatrick,                Mont. a t             ,   6 0 6 P.2d     a t 1360-1361,         37 S t . R e p .
a t 216.       By a n y s t r e t c h o f t h e i m a g i n a t i o n , h i s p a s t a c t i v i t y i s

"significant,"           and t h i s f i n d i n g by t h e j u d g e was c l e a r l y w i t h i n
t h e bounds of t h e s t a t u t e .          I t would be f r i v o l o u s t o a t t e m p t t o

d e f i n e t h a t p h r a s e i n a case s u c h a s t h i s .          P e t i t i o n e r ' s argument

i s t o t a l l y w i t h o u t merit.
           One f u r t h e r i s s u e i n t h i s case d e s e r v e s comment, a l t h o u g h
i t was n o t r a i s e d by p e t i t i o n e r o r t h e S t a t e i n t h e o r i g i n a l

proceedings.           S i n c e t h e t i m e o f a r g u m e n t o f t h i s case, t h e U n i t e d
S t a t e s Supreme C o u r t h a s d e c i d e d t h e case o f B u l l i n g t o n v .

Missouri (1981),                   U.S.          ,   1 0 1 S.Ct.    1 8 5 2 , 68 L.Ed.2d         270,
which p e t i t i o n e r a r g u e s r e q u i r e s a r e v e r s a l of h i s d e a t h s e n t e n c e
o n t h e charge of d e l i b e r a t e homicide.

           I n B u l l i n g t o n , t h e d e f e n d a n t was t r i e d f o r m u r d e r , and w a s

sentenced t o l i f e imprisonment.                    H i s c o n v i c t i o n was l a t e r s e t

a s i d e by r e a s o n o f a Supreme C o u r t d e c i s i o n , and d e f e n d a n t was
s c h e d u l e d to b e r e t r i e d o n t h e same c h a r g e .        The p r o s e c u t i o n

n o t i f i e d t h e d e f e n s e t h a t t h e S t a t e would s e e k t h e d e a t h p e n a l t y .
The d e f e n d a n t a r g u e d t h a t t h e d o u b l e j e o p a r d y c l a u s e o f t h e F i f t h
Amendment p r e c l u d e d i m p o s i t i o n o f t h e d e a t h p e n a l t y i n a s e c o n d

t r i a l when t h e f i r s t s e n t e n c i n g j u r y had d e c l i n e d t o impose t h e
death penalty.            P e t i t i o n e r h e r e makes t h e same a r g u m e n t , p o i n t i n g
t o t h e f a c t t h a t t h e s e n t e n c i n g j u d g e r e f u s e d to impose t h e d e a t h
p e n a l t y f o r d e l i b e r a t e homicide following t h e first c o n v i c t i o n ,
b u t t h a t it w a s imposed o n t h a t c h a r g e a f t e r r e t r i a l .            (The d e a t h

p e n a l t y was imposed f o r t h e crime o f a g g r a v a t e d k i d n a p p i n g
f o l l o w i n g both trials; t h a t s e n t e n c e is n o t being challenged on
t h i s p a r t i c u l a r ground. )
           The U n i t e d S t a t e s Supreme C o u r t a g r e e d w i t h t h e d e f e n d a n t
i n B u l l i n g t o n b e c a u s e o f t h e n a t u r e of t h e M i s s o u r i s e n t e n c i n g
procedure.         While r e a f f i r m i n g t h e h o l d i n g t h a t t h e double

j e o p a r d y c l a u s e "imposes no a b s o l u t e p r o h i b i t i o n a g a i n s t t h e
imposition of a harsher sentence a t retrial after a defendant has

s u c c e e d e d i n h a v i n g h i s o r i g i n a l c o n v i c t i o n s e t a s i d e ," t h e C o u r t
noted t h a t such a p r o h i b i t i o n does e x i s t i f               t h e s e n t e n c i n g pro-
c e e d i n g h a s " t h e hallmarks of t h e t r i a l on g u i l t or innocence."

Bullington,               U.S.     at          , 101     S.Ct.     a t 1857-1858,          6 8 L.Ed.2d



            In a l l respects the Missouri sentencing procedure
r e s e m b l e s a t r i a l on t h e q u e s t i o n of g u i l t or innocence.                 The
S t a t e is r e q u i r e d to p r o v e beyond a r e a s o n a b l e d o u b t t h e f a c t s o n

which t h e s e n t e n c e is based.             A d d i t i o n a l l y , as t h e Court noted:

           " A t the statutorily-prescribed presentence hearing,
           c o u n s e l make o p e n i n g s t a t e m e n t s , t e s t i m o n y i s t a k e n ,
           e v i d e n c e is i n t r o d u c e d , t h e j u r y is i n s t r u c t e d , and
           f i n a l a r g u m e n t s are made. The j u r y t h e n d e l i b e r a t e s
           a n d r e t u r n s i t s f o r m a l p u n i s h m e n t v e r d i c t . S 565.006.2
           S e e n . 4,         s u p r a . A l l t h e s e s t e p s were t a k e n a t
           pe t i t i o n e r l s presentence hearing following h i s f i r s t
           trial.
           " W e t h i n k i t n o t w i t h o u t some s i g n i f i c a n c e t h a t t h e
           p e r t i n e n t Missouri s t a t u t e i t s e l f speaks s p e c i f i c a l l y
           o f t h e p r e s e n t e n c e h e a r i n g i n terms o f a c o n t i n u i n g
            trial.           S e c t i o n 565.006.2 s t a t e s t h a t a f t e r t h e
           v e r d i c t o f g u i l t y o f c a p i t a l m u r d e r is r e t u r n e d , ' t h e
           c o u r t s h a l l r e s u m e t h e t r i a l and c o n d u c t a p r e s e n -
           t e n c e h e a r i n g . ' ( ~ m p h a s i s dded. )
                                                         a              Bullington,
           U.S. a t                 , 1 0 1 S.Ct. a t 1858, n. 10, 68 L . ~ d . 2 d
           a t 279, n.lO.
           F u r t h e r , t h e C o u r t found it s i g n i f i c a n t t h a t t h e sen-
t e n c i n g j u r y was g i v e n b u t two c h o i c e s i n i m p o s i n g t h e s e n t e n c e
f o r c a p i t a l murder:        d e a t h or imprisonment w i t h o u t e l i g i b i l i t y

f o r p r o b a t i o n or p a r o l e f o r 50 y e a r s .      By n o t i m p o s i n g d e a t h , t h e
j u r y w a s i n e f f e c t " a c q u i t t i n g " t h e d e f e n d a n t o f w h a t was
n e c e s s a r y t o impose a d e a t h s e n t e n c e , and t h e d o u b l e j e o p a r d y

c l a u s e f o r b i d s r e t r i a l o f a d e f e n d a n t who h a s b e e n a c q u i t t e d o f a
crime c h a r g e d .     Bullington, supra.
           The Montana s e n t e n c i n g p r o c e d u r e is r a d i c a l l y d i f f e r e n t
from t h e p r o c e d u r e i n M i s s o u r i .     Here t h e s e n t e n c i n g h e a r i n g i s

c l e a r l y s e p a r a t e from t h e t r i a l , and it i s f a r removed from a
mere c o n t i n u a n c e o f t h e t r i a l o n g u i l t o r i n n o c e n c e .       See s e c t i o n

46-18-301,        MCA.      S e n t e n c i n g is d o n e by t h e c o u r t , n o t b y a j u r y .

F a c t s f o r m i n g t h e b a s i s f o r t h e s e n t e n c e imposed d o n o t h a v e to
be p r o v e d beyond a r e a s o n a b l e d o u b t .         Additionally,          t h e sen-
t e n c i n g j u d g e , a l t h o u g h s u b j e c t t o s p e c i f i c g u i d e l i n e s i n making
t h e d e c i s i o n t o impose a d e a t h s e n t e n c e , h a s w i d e r d i s c r e t i o n i n
imposing a s e n t e n c e o t h e r t h a n d e a t h .         S e c t i o n 46-18-305,        MCA.

I n sum, w e d o n o t f i n d t h a t t h e Montana s t a t u t e s , u n l i k e t h e

M i s s o u r i s t a t u t e s , r e q u i r e t h e S t a t e to " p r o v e i t s c a s e " a s to
one punishment, t h u s " a c q u i t t i n g " a d e f e n d a n t on o t h e r p o s s i b l e

punishments.           Thus w e r e j e c t p e t i t i o n e r ' s a r g u m e n t t h a t h i s s e n -

t e n c e s h o u l d be v a c a t e d .
           Based on t h e f o r e g o i n g , w e a f f i r m t h e D i s t r i c t C o u r t

e x c e p t a s t o i t s r u l i n g on e f f e c t i v e a s s i s t a n c e of c o u n s e l .     We

remand t o t h e D i s t r i c t C o u r t f o r a n e v i d e n t i a r y h e a r i n g on

p e t i t i o n e r ' s c l a i m s t h a t he had i n e f f e c t i v e a s s i s t a n c e of c o u n s e l
a t t r i a l and a t s e n t e n c i n g .




                                                Chief J u s t i c e




Justices                              /


Hon. W. W. L e s s l e y , D i s t r i c t
Judge, s i t t i n g i n p l a c e of M r .
Justice J o h n C .        Sheehy


Mr.    J u s t i c e D a n i e l J. Shea and M r . J u s t i c e F r a n k B. M o r r i s o n , J r .

d i s s e n t and w i l l f i l e w r i t t e n d i s s e n t s l a t e r .
                I N THE SUPREME COURT OF THE STATE

                                    OF MONTANA




No.   81-74



STATE V.      FITZPATRICK




D i s s e n t of M r .   J u s t i c e D a n i e l J. S h e a




                                         DATED :      OCT 3 0 1981
Mr. Justice Daniel J. Shea dissenting:


     Assuming no other error, I agree with the majority
that this case must be remanded to the trial court for an
evidentiary hearing on the competency of counsel issue.

However, trial error requires that all three convictions be
reversed and a new trial granted.   Further assuming that no
trial error required reversal, I am convinced that the trial
court committed error with relation to imposition of the
death penalty for the crimes of deliberate homicide and

aggravated kidnapping.   This error would require in any event
that the case be remanded to the trial court for resentencing
with instructions that the trial court not consider the death
penalty as one of its options.   I am convinced, furthermore,
that this Court has denied meaningful appellate review to

Fitzpatrick, not only with relation to the death penalty issues,
but also with relation to the allegations of trial error.
     I emphasize from the outset, just as I emphasized in
State v. Coleman (Coleman 111) (Decided August 28, 1981,
38 St.Rep. 1352), that although the majority claims to have
adopted the standards set forth in Sanders v. United States
(1963), 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148, for purposes
of analyzing possible res judicata issues, the majority has
totally failed to adhere to the three part test set out in
Sanders. In one breath, the majority has adopted the test
   in
angthe next breath the majority has ignored the test, thereby
effectively rejecting the rules purportedly adopted.
     If Sanders means anything, it means that an appellate
court must set forth the issue and apply the three-part test
in deciding whether a claim is barred by res judicata.     Under
Sanders, we are required first to determine whether the issue
was previously litigated, second, whether the issue was decided
on the merits, to determine whether justice may require
a reexamination of that issue.      In other words, we must
determine whether we want to reexamine an issue because of
doubt as to whether it was properly decided.      Needless to
say, the majority totally ignored Sanders in Coleman 111,
and on several issues raised here the majority also has
totally ignored Sanders.
    Contrary to the majority statement, Sanders, quoted in
both Coleman - and Fitzpatrick 111, does not absolutely bar
             111
relitigation of previously determined issues.      Rather, it bars
                                                      on the
them only if the issue has been previously determined - -
merits, -- if the appellate court is convinced that the issue
        and
has been properly -
                  decided.       373 U.S. 8, 15, 83 S.Ct. 1068,
1077, 10 L.Ed.2d 148, 161.
    The following language of the majority opinion rejects
the Sanders tests rather than adopting them as claimed:
    "In Coleman, supra, we approved the Sanders
    restrictions, holding that res judicata would
    apply in this State insofar as the doctrine
    limits relitigation of previously determined
    issues; but it cannotbe invoked by the State
    so as to deprive a litigant of the right to file
    a successive petition, if the petitioner has a
    new basis or ground for coming before the court.
    See Coleman, supra..     .
                           ." (Emphasis added.)
     Obviously the meaning of Sanders, although purportedly
adopted, has had no impact on the majority.      A most casual
look at the three-part test of Sanders by a first year law
student would reveal that Sanders bars reconsideration of
issues already decided if they have been decided on the merits
and if decision on the merits was correct.
     The failure of this Court to properly apply the Sanders
criteria in Coleman 111, and now in Fitzpatrick 111, demonstrates
beyond doubt that we cannot provide meaningful appellate review
to these death penalty cases.      Once again it will fall upon a
federal court to tell this Court that we have not even
followed the rules we claimed to have adopted and followed.
These death penalty cases further illustrate the vital
necessity that the federal courts be the final arbiter
of these issues.   Too often the state courts, for reasons
I do not fully comprehend, fail to grant a defendant the

full spectrum of rights to which he is entitled.
PART A: THE MAJORITY HAS FAILED TO ADHERE TO SANDERS V.
UNITED STATES IN FAILING TO MENTION ISSUES ALREADY DECIDED,
BUT WHICH PETITIONER CLAIMS WERE ERRONEOUSLY DECIDED
     In his petition for post-conviction relief, and in his
appellate briefs, Fitzpatrick has again raised several issues
concerning the conduct of the trial, which, although already
decided, he claims were erroneously decided.   He contends that
res judicata does not control these issues because the Due
Process Clause of the Fourteenth Amendment requires greater
reliability of judgments in capital cases, and that the
previously adjudicated issues were decided incorrectly.
     Even though this Court has now committed itself to the
three-part analysis of Sanders in determining whether res
judicata controls an issue already decided, as in Coleman

- we have again departed from Sanders in almost the same
111,
breath that we have adopted its three-part test.   Nowhere
does the majority opinion mention certain issues raised by
Fitzpatrick that he contends were wrongly decided in Fitzpatrick

- (1980),
I1                    ,
               Mont. - 606 P.2d 1343, 37 St.Rep. 194.
Minimum adherence to Sanders requires that this Court at
least mention the issues raised, and then determine whether
they were decided on the merits, and then determine whether
they were correctly decided on the merits.
     Specifically, Fitzpatrick contends that "the jury was
improperly instructed on the State's burden of proof contrary
to the ruling in Sandstrom v. Montana (1979), 442 U.S.
510, in that "hearsay evidence relied upon by the State
to obtain this conviction was too unreliable to support a
conviction and death sentence, i.e., the unsworn extra-
judicial statements allegedly made by Gary Radi " and that
other admited evidence was irrelevant and prejudicial, i.e.,
opinion testimonyuof the Sheriff as to the location of an
allegedly hidden gun, a knife which was never connected to
petitioner, a shell casing and ski mask which were never
related to Petitioner."    Respondent's brief, at 9-10.
     Fitzpatrick attacks in particular the testimony of
accomplice Bushman who was permitted to testify that anothe~
co-conspirator, Gary Radi, had stated when Fitzpatrick was
not present     that Fitzpatrick had shot and killed Monte
Dyckman.   He argues that the evidence was not admissible
under any Montana evidence rules because Radi, at the time
the hearsay was admitted, had not provided any inconsistent
testimony within the meaning of Montana Evidence Rule 801(d)
(l)(A), nor was there a finding or evidence, at that point,
that the statement was made during the course of and in
furtherance of a conspiracy under Montana Rules of Evidence
801(d)(2)(E).    Without this foundation, he contends the
testimony could not be admitted.     In addition, he claims that
even with this foundation the testimony was inadmissible because
it violated his right to confrontation.
     Fitzpatrick argues that the record is "void of any
suggestion that the State made any effort to call witness
Radi "as a witness for the State and endeavor to elicit his
evidence directly from his lips under oath and in the presence
of the jury."     He cites Confrontation and Compulsory Process:
A Unified Theory - Evidence - - Criminal Cases, 91 Harv.L.Rev.
-                of         for

567, 577 (1978), and then contends that the State not having
done so, Radi failed to testify to the underlying facts,
as required by Nelson v. O'Neill (1971), 402 U.S. 622, 629,
               1727,
91 S.Ct. 1723,/ 29 L.Ed.2d 222, 228. E therefore claims that
Fitzpatrick "was clearly denied his right to confront witnesses
guaranteed him by the Sixth Amendment to the United States
Constitution."
     He further argues that admission of this hearsay evidence
calls into question the reliability of the jury's verdict and
therefore the death penalty cannot be imposed.
     I have doubts concerning the admissibility of accomplice

Bushman's testimony repeating what another accomplice, Gary
Radi, had stated to him--namely, that Fitzpatrick had shot
and killed Monte Dyckman.   The reliability of Radi's alleged
statement has already been commented on by this Court in
Fitzpatrick - (1977), 174 Mont. 174, 569 P.2d 383:
            I
    "Radi had good reason to lie about who shst
    the victim. Without Fitzpatrick present5Radi
    might easily persuade his coconspirators that
    all fatal shots were fired by Fitzpatrick and
    thus avoid some conceived criminal culpability."
    State v. Fitzpatrick (1977), 569 P.2d at 392.
     The admissibility of Bushman's testimony concerning
Radi's statement while Fitzpatrick was not present, demands
a reconsideration.   It is important not only with regard to
its admissibility at trial but also with regard to the
reliability of the verdict where the effect of the conviction
has been the imposition of a death sentence.     The testimony
involved, one accomplice telling another accomplice what yet
another accomplice did, is so inherently unreliable that a
death penalty should not be imposed where such evidence has
been admitted.   The Due Process Clause of the Fourteenth
Amendment imposes a higher standard of reliability as to the
underlying conviction where a death penalty can be imposed,
and the evidence admitted here does not meet that standard
so as to permit a death sentence.
                                 -32-
PART B: BECAUSE THE RECORD FAILS TO REVEAL WHETHER THE JURY
REACHED UNANIMOUS AGREEMENT ON ANY ONE OR MORE OF THE
ALTERNATIVE THEORIES OF CRIMINAL RESPONSIBILITY UNDER EACH
CHARGE, FITZPATRICK MAY HAVE BEEN DENIED HIS RIGHT TO A
UNANIMOUS VERDICT
(1) In General, The Same Kind of Problems Exist Here as
Exist in Coleman -
                 111:
     Fitzpatrick was charged with and convicted of count
deliberate homicide, count 11, aggravated kidnapping, and
count 111, robbery.     The unanimous verdict issue raised here
is much like the unanimous verdict issue raised in Coleman

- 38 St.Rep. 1352, in which I wrote a lengthy dissent.
111,
Much of what I said on the unanimous verdict issue in Coleman

- applies equally here.
111                            In addition, the instructions
here are, like the instructions in Coleman 111, confusing
and inconsistent.
     The general nature of the unanimous verdict issue can
be stated as follows:     In each of the charges involved,
Fitzpatrick was charged both as a direct principal and as an
aider or abettor or an accomplice.     In each charge he was
accused of committing the crime by several alternative
statutory theories.     The jury, however, was given only a
general unanimity instruction covering all three charges,
stating that   ". . .   all twelve of your number must agree in
order to find any verdicts."      (Instruction no. 39.)   In
addition, the verdict forms provided by the trial court to
the jury did not require the jury to specify for each charge
which of the alternative theories of criminal responsibility
it applied in reaching guilty verdicts.
     Specifically, the jury's verdict on count I, deliberate
homicide, specified only that Fitzpatrick was guilty of
"Count I: Deliberate Homicide, as charged in the Information;"
the jury's verdict on Count 11, Aggravated Kidnapping,
specified only that Fitzpatrick was guilty of "Count 11:
Aggravated Kidnapping, as charged in the 1nformation;"and
finally, the jury's verdict to Count 111, robbery, specified
only that Fitzpatrick was guilty of "Count 111:    Robbery, as
charged in the Information."
     Fitzpatrick claims there is no assurance that the jury
reached unanimous agreement on any one or more of the
alternative theories of criminal responsibility which were
submitted to the jury for each of the three charges.    For
each conviction, Fitzpatrick claims there is no basis to
determine the theory or theories which the jury used in
finding guilt.    He further claims that the verdicts do not
indicate whether the jury found him guilty of each charge as
a direct principal, or as an aider or abettor or an accomplice.
Because there is no assurance of jury unanimity on each of
the charges, Fitzpatrick claims he has been denied his
rights to a unanimous verdict as guaranteed by Art. 11, S
26, Montana Constitution, and by the Sixth and Fourteenth
Amendments to the United States Constitution.    Fitzpatrick
relies primarily on United States v. Gipson (5th Cir. 1977),
553 F.2d 453, and on State v. Green (Wash. 1980), 616 P.2d
628, a recent case in which the Washington Supreme Court, in
a death penalty case, reversed the defendant's conviction
because there was no assurance that the jury had been
unanimous in reaching its verdict.
     Essentially the same argument was raised recently in
Coleman 111, but the majority disposed of this argument
summarily in part VII of its decision, not even mentioning
the issue, let alone discussing it.    I dissented to Coleman

- and in part I1 of my dissent, concluded that Coleman had
111
been denied his right to a unanimous jury verdict on both
convictions.     It is equally clear here that ~itzpatrickmay
have been denied his right to a unanimous jury verdict on
each conviction, and I again dissent.
     In part I1 of my dissent in Coleman 111, I discussed in
detail the problems raised and the basic policy for resolving
them in favor of the defendant.   Those policy reasons apply
equally here.   I concluded that the State set the ambiguous
verdict question in motion by not following the charging
procedure set forth in section 46-11-404(1), MCA--that is,
the State could have charged Fitzpatrick in separate counts
by setting forth one alternative in each count.     Second, the
trial court contributed to the problem by not instructing
the jury that its verdict must be unanimous on each of the
alternative theories it might use as a basis to convict.
Third, the trial court further compounded the problem by
providing ambiguous verdict forms to the jury.    These verdict
forms do not reveal the underlying alternative theory or
theories used as a basis for the guilty verdicts.      These
procedural problems were not caused by the defendant, they
were caused by the State, and the State must bear the consequences.
     I cited several cases which hold that a jury must be
instructed that its verdict be unanimous on one or more of
the alternative theories submitted to it for its decision.
State v. Golliday (1979), 78 Wash.2d 121, 137, 470 P.2d 191,
201; People v. Embree (1976), 68 Mich.App. 40, 241 N.W.2d
753; People v. Olsson (1974), 56 Mich-App. 500, 507, 224
N.W.2d 691, 693-694; People v. Thompson (1956), 144 Cal.App.
                    316;
2d 854, 301 P.2d 313,/State v. Bleazard (1943), 103 Utah
                 1002.
113, 133 P.2d lOOOJ And, of course, that is the essence of
United States v. Gipson, supra.   Each of these decisions
state in effect that a general instruction on the unanimity
requirement is insufficient.
     In addition, although this basic policy should apply in
all criminal cases, I stated in Coleman I11 that the assur-
ance of unanimity is even more essential in a case where a
conviction may trigger the imposition of the death penalty.
The jury must be more specifically instructed so that the
trial court and appellate court know the underlying basis
for the jury's conviction.     In Beck v. Alabama (1980), 447
U.S. 625, 638, 100 S.Ct. 2382, 2389-2390, 65 L.Ed.2d 392,
403, (cited and quoted also in Coleman 111) the United
States Supreme Court stated:
     "To insure that the death penalty is    ...
     imposed on the basis of 'reason rather than
     caprice or emotion,' [the courts] have
     invalidated procedural rules that tended to
     diminish the reliability of the sentencing
     determination. The same reasoning must apply
     to rules that diminish the reliability of the
     guilt determination."
     And, in Andres v. United States (1948), 333 U.S. 740,
752, 68 S.Ct. 880, 886, 92 L.Ed. 1055, 1063, (also cited and
quoted in Coleman 111) the United States Court sent an
unequivocal message that in death cases, doubts as to jury
unanimity must be resolved "in favor of the accused."
Certainly the failure to properly charge, instruct, and
provide clear verdict forms to the jury    diminishes the
reliability of a jury verdict on the unanimity question.
And just as certainly, a reasonable doubt is created as to
jury unanimity on one or more of the alternative theories
charged.   For this reason, Chapman v. California (1967), 386
U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d   705, requires an appellate

court to reverse the convictions.    See United States v.
Gipson, supra, in which the court applied the Chapman test
to the unanimity question.

(2) Lack of Jury Unanimity is Only One of The Defects Caused
by The Manner of Charging and Instructing the Jury:
     Before commencing an analysis of each charge, and the
instructions applicable to each charge, I summarize several
common defects which exist in relation to each crime charged.
     First, each charge alleges in one count several alternative
methods of statutory accountability.    This charging procedure
violates section 46-11-404(1), MCA, which clearly specifies
that alternative statements of the crime should be charged
in separate counts.     Undoubtedly this charging procedure
contributed to the vagueness of the jury verdicts later
returned, and set in motion the jury unanimity question.
For a discussion of section 46-11-404(1), in relation to
charging alternatively, see my dissent in Coleman 111,
38 St-Rep. 1381-1382.
     Second, the instructions attempting to set forth the
essential facts of each charge that must be proved beyond a
reasonable doubt   are not only inconsistent with each charge,
they are also inconsistent with each other.    The effect is
that the instructions not only constitute an impermissible
variance from the charge, the instructions also placed the
jury in a position of not knowing which instructions to
follow when determining the essential elements of the crimes
charged.
     Third, nowhere did the trial court instruct the jury
that its verdict must be unanimous on any one theory of
statutory accountability, and we therefore have no assurance
that the jury was unanimous on one or more theories of
statutory accountability.
     Fourth, the verdict forms provided to the jury add to
the confusion because they failed to specify the underlying
basis for the verdict, thereby leaving the trial court and
the appellate court in the position of not knowing the
alternative theory the jury applied in reaching its verdict.
     And fifth, the guilty verdicts for each crime charged
are further suspect because substantial evidence does not
support each of the alternative theories of accountability
alleged for each of the crimes charged.
(3) The Majority Opinion Fails to Reach The True, Underlying
Issues:
     Before discussing the cases cited by the majority in
support of its analysis, and the cases distinguished by the
majority in holding against Fitzpatrick on the unanimity
issue, it is necessary to place the issue in a broader
perspective than what has been discussed and decided in the
majority opinion.
     The majority opinion implies that Fitzpatrick raised
the unanimity argument only in relation to the aggravated
kidnapping conviction, count 11.   That is not the case. In
paragraph 8(e) of the petition for post-conviction relief
filed in the trial court, Fitzpatrick challenges all three
convictions on this ground.   And, in his briefs, on appeal,
Fitzpatrick raises the unanimity argument on all three
convictions.
     Another glaring oversight in the majority opinion must
be mentioned.   The opinion implies that Fitzpatrick claims
only a violation of the Montana Constitution (38 St.Rep. at
1458), but he has also claimed that his rights under the
Sixth and Fourteenth Amendments to the United States Con-
stitution were violated.   In part I1 of my dissent in Coleman

- I considered the State's arguments and the trial court's
111,
opinion.   (38 St.Rep. at 1378.)   The State has made virtually
identical arguments here, and the trial court made essentially
the same rulings.   Therefore, what I said in Coleman I11
applies equally here.
(4) The Majority Opinion Ignores the Essence of the Holdings
in United States v. Gipson and in State v. Green.
     The essence of the majority holding, although not
expressly stated, is that regardless of whether alternative
theories of criminal responsibility are charged in one
count, and regardless of whether the jury receives ambiguous
jury verdicts, a general unanimity instruction defeats any
challenge to the verdict on the ground that the jury was not
in unanimous agreement on any one or more theories of criminal
responsibility.   This holding is unacceptable in any criminal
case, and in a capital case such as this, it is unthinkable.
    The majority distinguishes United States v. Gipson,
supra, because in Gipson, the trial judge, in response to a
jury question, told the jury that it need not unanimously
agree on the defendant's specific conduct.     The appellate
court reasoned that, in essence, the trial judge told the
jurors that they could reach a guilty verdict if six of them
could believe that conduct A violated the statute, and six
of them could believe that conduct B violated the statute.
Undoubtedly, the judge's instruction helped lead or at least
could have led the jury down the wrong path.     But that
instruction is not the essence of the Gipson holding.
     Rather, the gist of the Gipson holding is that where
there are alternative charges, the jury must be instructed
that it must be unanimous on the theory it applies in reaching
a guilty verdict.    The Court held:
     ". . . Requiring the vote of twelve jurors to
     convict a defendant does little to insure that
     his right to a unanimous verdict is protected
     unless this prerequisite of jury concensus as
     to the defendant's course of action is also
     required." 553 F.2d at 458.
     As I stated in Coleman 111, "implicit in this ruling
[the Gipson ruling] is a requirement that the trial court
instruct the jury that it must reach unanimity on any theory
used as a basis to find guilt."     38 St.Rep. at 1384.   And,
as I have already noted, several jurisdictions require such
an instruction.   State v. Bleazard, supra (Utah); People v.
Thompson, supra (California); State v. Golliday, supra
(Washington); People v. Olsson, supra (Michigan); People v.
Embree, supra (Michigan). Without such an instruction, a
doubt as to unanimity is raised, and any doubts as to unanimity,
especially in a death case, must be resolved "in favor of
the accused."   Andres v. United States, supra.
     The majority likewise misinterprets the basic holding
in State v. Green, supra, by stating that in Green, substantial
evidence did not support one of the two underlying aggravated
offenses, but that in Fitzpatrick, substantial evidence
supports each alternative theory.     I emphasize two factors.
First, the majority opinion omits any discussion of the
robbery charge, and of the deliberate homicide charge--a
conviction which has led to a death sentence.     Second,
nowhere does the majority opinion analyze the evidence to
support its conclusion that substantial evidence exists to
support a finding of guilt on each of the alternative
theories of aggravated kidnapping.    In fact, as I shall
later discuss in detail, in reaching its broad, bald conclusion
that substantial evidence supports each of the aggravated
kidnapping theories, the majority is manifestly in error.
     It is true that the Washington Supreme Court stated in
Green that substantial evidence did not support both aggravating
crimes which were submitted to the jury.    However, in setting
forth its holding, the Washington Supreme Court did not rely
on an absence of substantial evidence on either of the two
aggravating crimes submitted to the jury.    Rather, the Court
emphasized that the instructions and verdict forms failed to
instruct the jury it must be unanimous on either or both of
the underlying aggravating crimes.    The Court stated:
    "In the instant case, the jury instructions
    and verdict form did not require the jury
    to unanimously find appellant committed or
    attempted to commit either first degree
    kidnapping or rape or both. As instructed,
    it was possible for the jury to have convicted
    Green with six jurors resting their belief of
    guilt upon kidnapping and the other six resting
    their belief upon rape. Thus, it is impossible
    to know whether the jury unanimously decided
    that the element of rape had been established
    beyond a reasonable doubt." 616 P.2d at 638.
        The basis for reversal was undoubtedly the ambiguous
jury instructions and ambiguous verdict returned by the

jury.     If the jury had been instructed that it must unanimously
convict Green of the underlying aggravated crimes, and if
the verdict had specifically stated that the jury found
Green guilty of the underlying aggravated crime of rape, the
conviction would have been upheld.
        I stated in Coleman I11 that many cases discussing the
unanimous verdict requirement    erroneously rely on the
substantial evidence test as the vital factor in determining
whether a conviction must be reversed or can still be upheld.
This analysis fails to comprehend the nature of the unanimous
verdict requirement That requirement has nothing to do with
whether substantial evidence supports all alternative theories
of criminal responsibility.     In part I1 of my dissent in
Coleman 111, in that section entitled, "Why The Convictions
Must Be Reversed," I discuss what I believe to be the proper

basis for jury unanimity.     38 St.Rep. at 1384.   That analysis
applies equally to this case, and my discussion there shall
constitute my discussion here.
        I proceed next to a discussion of the cases on which
the majority relies in holding against Fitzpatrick on the
unanimous verdict issue.
(5) State v. Arndt; State v. Souhrada; United States v.
Murray; and United States v. Natelli, Have No Application
to the Unanimity Issues Raised Here.
        In a sweeping conclusion, the majority disposes of both
the factual and legal issues raised by the unanimity question:
        "Moreover, a review of the transcript satisfies
        us, as it did the district judge, that there was
        substantial evidence to support all of the
        alternatives set forth in the instructions. See
        State v. Arndt (1976), 87 Wash.2d 374, 553 P.2d
        1328, 1330. See also, State v. Souhrada (1949),
        122 Mont. 377, 385, 204 P.2d 792, 796. There-
        fore we find that the requirement of unanimitx as
        guaranteed by the Montana Constitution,was
        satisfied." 38 St.Rep. at 1458.
        Neither of these cases support the proposition cited.
In addition, as I shall later discuss, the trial transcript
fails to support the broad and bald evidentiary conclusion
that substantial evidence supports each alternative theory.
        To further buttress its position, the majority then
cites two inapplicable federal cases for the proposition
that a general unanimity instruction suffices where a defendant
is charged with two or more alternative theories of criminal
responsibility.     The opinion cites United States v. Murray
(2d Cir. 1980), 618 F.2d 892, and United States v. Natelli
(2d Cir. 1975), 527 F.2d 311.    Neither of these cases reaches
the unanimous verdict questions raised here.
        The majority also relies on the Washington case of
State v. Arndt, supra, but had it properly read and applied
the holding in State v. Green, supra, it would have been
apparent that Arndt has no application to the situation
here.     In Green, the Washington Supreme Court properly
distinguished Arndt, holding that Arndt did not involve
alternative theories of criminal responsibility, and therefore
was inapplicable. 616 P.2d at 638.
        The Washington court distinguished Arndt for two reasons.
First, in Arndt, all factual bases for conviction were
supported by substantial evidence, but in Green the under-
lying aggravated kidnapping charge was not supported by
substantial evidence.   606 P.2d at 638.   Second, the Court
distinguished Arndt for a more basic reason, stating:
     "We are also precluded from relying on
     Arndt for a more fundamental reason. In
     Arndt, we considered a statute which provided
     that a person could be convicted of grand
     larceny if he or she committed welfare fraud
     by any one of several overlapping and often
     indistinguishable methods. State v. Arndt,
     supra, 87 Wash.2d at 375, 553 P.2d at 1328.
     The methods were 'closely related, connected
     acts which constitute[d] the single offense of
     fraudulently obtaining public assistance .   ..'
     Id at 382, 553 P.2d at 1333. In the instant
    7-

     case, however, the alternative ways of committing
     aggravated murder in the first degree are themselves
     separate and distinct criminal offenses. In order
     to convict a defendant of either kidnapping or rape,
     the State must prove every statutory element of that
     crime beyond a reasonable doubt to a unanimous jury.
     Where, as here, the commission of a specific under-
     lying crime is necessary to sustain a conviction for
     a more serious statutory criminal offense, jury
     unanimity as to the underlying crime is imperative."
     616 P.2d at 638.
     Having distinguished Arndt, the Court then determined
that the jury instructions failed to inform the jury that it
must unanimously agree on the underlying aggravating crime,
and that the trial court failed to provide verdict forms to
the jury that specified the basis for the conviction.    These
failures compelled a reversal of the conviction because
'.' ..it is impossible to know whether the jury unanimously

decided that the element of rape had been established beyond
a reasonable doubt."    Green, supra, 616 P.2d at 638.
     Had the majority carefully read State v. Green, it
would have recognized that our own case of State v. Souhrada
 122 Mont. 377, 204 P.2d 792,
 (1.343)/does not apply to this case for essentially the same
reasons that State v. Arndt did not apply in Green.   Both
Arndt and Souhrada involve one charge where connected acts
involve a single offense.   Alternative theories of criminal
responsibility were not charged in either Arndt or Souhrada.
     Despite these obvious distinctions, the majority
implies that Souhrada also involved a situation in which the
defendant was charged with one crime but with alternative
theories of criminal responsibility.   But that was not the
case--Souhrada was charged with involuntary manslaughter,
and only one theory of criminal responsibility was alleged
in the charge.
     Souhrada drove his vehicle into the rear of another
vehicle on a public highway, killing three passengers in the
other vehicle.    The prosecutor charged Souhrada with violating
section 94-2507(2), R.C.M. 1947.   Although section 94-
2507(2) defined involuntary manslaughter in two ways, Souhrada
was charged under only one of those theories.    The statute
provided :
     "Involuntary, in the commission of an
     unlawful act, not amounting to a felony; or
                       --
     in the commission of a lawful act which might
     produce death, in an unlawful manner, or without
     due caution - circumspection." (Emphasis added.)
                 or
Souhrada was accused of causing the deaths of the three
passengers in the other car by driving his car "without due
caution or circumspection."
     Before trial started, Souhrada obtained a bill of
particulars (no longer used in Montana) in which the prosecutor
specified that the evidence would show that Souhrada (a) was
driving his car while under the influence of alcohol, (b)
that Souhrada drove his car in reckless disregard for his
life and for the lives of others, and (c) that Souhrada was
speeding.    At the conclusion of trial, Souhrada requested

certain instructions on unanimity, based on this bill of
particulars.
     Souhrada offered instructions that would require all
twelve jurors to agree that (a) he was under the influence
of alcohol, or (b) that he drove in reckless disregard for
his life and the life of others, or (c) that he was speeding,
or (d) that the jury unanimously agree on two or all of
these allegations.   In effect, Souhrada submitted instructions
that required the jury to answer special interrogatories.
The trial court denied these instructions.
     In stating that the instructions were properly refused,
this Court held:
     ". ..  It is not necessary that a jury, in
     order to find a verdict, should concur in
     a single view of the transaction disclosed by
     the evidence. If the conclusion may be
     justified upon either of two interpretations of
     the evidence, the verdict cannot be impeached
     by showing that a part of the jury proceeded
     upon one interpretation, and part upon the other.
     [Citations omitted.]" 122 Mont. at 385, 204
     P.2d at 796.
     This decision was correct because Souhrada was charged
under - statutory theory of criminal responsibility--
      one
driving his car "without due caution or circumspection." It
would have been error to require the jury to return verdicts
that would in effect be answers to special interrogatories.
    But the unanimous verdict question here just as in Coleman

- is wholly unlike the situation existing in Souhrada.
111,
Fitzpatrick was charged with three separate crimes, but
under each charge, the State alleged two or more alternative
theories of criminal responsibility.   I doubt very much that
the members of this Court who decided Souhrada would have
agreed that it controls either the Coleman I11 or the Fitzpatrick

- unanimity issue.
I11                   The procedural facts of Souhrada

differ from the procedural facts of Fitzpatrick, the issue
raised in Souhrada differs from the issue raised in Fitzpatrick,
and the result in Fitzpatrick should not be controlled by
the result in Souhrada.
     To buttress its opinion that a general unanimity
instruction is sufficient, the majority quotes from United
States v. Murray, supra, 618 F.2d at 898, and Murray in
turn quotes from United States v. Natelli, supra, 527 F.2d
at 325. But neither Murray nor Natelli involve situations in
which a defendant was charged with alternative statutory
theories of criminal responsibility.    Nor, of course, did
Murray and Natelli involve capital offenses where assurance
of jury unanimity must be even more certain.    Andres v.
United States, supra.
     In Murray, the indictment was duplicitious (charging
Murray with two crimes in one count) and the jury convicted
him of that count without specifying whether he was guilty
of one or both offenses.   The trial court had instructed the
jury that it must be unanimous on any offense charged. In
his appeal, the defendant raised the question of a duplicitious
indictment.   The decision is more than baffling because the
Court, in affirming the conviction, never determined whether
there was substantial evidence supporting each offense
charged.  The Court waffled on this point, stating:    ". .
                                                        .
                               the jury unanimously found that
we find no reason to doubt that/there was a conspiracy to
violate - least - of the statutes, and that [the] defendant
        at      one - -
participated in that conspiracy."      (Emphasis added.)    . .


618 F.2d at 898.   Inexplicably, the Court left unanswered
whether the jury may have based its entire verdict on the
other alleged statutory violation.                     -
                                       If so, the jury may have
convicted the defendant of a statutory violation not supported
by substantial evidence.
     In the absence of any statement by the Court in Murray
that substantial evidence supported both charged statutory
violations, I fail to see that Murray lends any weight to
the majority position here.     Further, my position stated
in part I1 of my dissent in Coleman I11 also applies here.
The question is not whether substantial evidence supports
each alternative statutory theory of criminal responsibility,
or all statutory violations charged.     Rather, the question is
whether the jury reached unanimous agreement on any decision
it made.   In Murray, the general unanimity instruction was
sufficient because defendant was charged with a conspiracy
to violate two separate statutes.    However, the jury may have
unanimously convicted him of a conspiracy based on a statutory
violation not supported by substantial evidence.    But the
court in Murray did not discuss that problem.
     Even though the court in Murray inexplicably affirmed
the conviction, it was nonetheless critical of the manner in
which the criminal charges were filed.    The court noted, among
other things, that a guilty verdict in this situation fails
to disclose the underlying statute which the jury determined
the defendant had violated.    This disclosure, furthermore, is
critically important at sentencing because the judge does
not know if the jury convicted the defendant of one or several
statutory violations.     Further, where the verdict fails to
specify the basis of the conviction, a double jeopardy problem
unavoidably lurks in the background.     618 F.2d at 899.
     Nor is United States v. Natelli, supra, support for the
majority position here.     In Natelli, two certified public
accountants were each charged with two violations of the
Securities Act.   It was alleged that they made two material
misrepresentations on a prospective given to potential
investors, and therefore violated two sections of the act.
The trial judge instructed the jury that the defendants could
be convicted if they made either of the misrepresentations
that were charged.   The jury found both defendants guilty,
but the verdicts returned by the jury failed to specify
whether one or both misrepresentations had been proved as
to each defendant.
     The appellate court affirmed the conviction as to one
defendant, but reversed the conviction as to the other.
The court affirmed as to one defendant because, even though
the verdict was ambiguous, the evidence supported a conclusion
that this defendant violated both misrepresentations.    As
to the other defendant, the appellate court found that the
evidence was insufficient as to   the   defendant's
involvement in making one of the misrepresentations.    Because
the verdict did not disclose the basis for the jury's decision,
the appellate court reversed as to the defendant.     As I
shall later explain, the same situation exists in Fitzpatrick
as to each of the verdicts returned by the jury, and the
convictions must be reversed because each alternative theory
charged in Fitzpatrick is not supported by substantial evidence.
     I further emphasize that I believe the conviction would
have to be reversed even if substantial evidence did support
each of the theories of criminal responsibility submitted to
the jury.   Even assuming that substantial evidence existed
on each theory, there still is no assurance that the jury
unanimously agreed on any one theory.   For further discussion
of my reasons, see Coleman 111, 38 St.Rep. 1382-1386.
     Having discussed the inapplicable authority offered
by the majority to support its opinion on the unanimous
verdict issue, I next proceed to a detailed analysis of all
three charges, and the instructions given, and the verdicts
returned on each charge.   This task is made more difficult
by the majority's failure to engage in any meaningful analysis
of the charges, the instructions, the verdict forms, and
the applicable evidence.    The majority's perfunctory treatment
of this issue should be unacceptable in any criminal case,
but must be categorically unacceptable in any death penalty
case.
PART C: THE MANNER OF CHARGING ALTERNATIVELY AND THE
INSTRUCTIONS AND VERDICT FORMS GIVEN TO THE JURY FOR EACH
CHARGE
(1) Count I: Deliberate Homicide-The Charge, The Instructions
and the Verdict Form Used:
       Montana statutes classify criminal homicide as being
either "deliberate homicide, mitigated deliberate homicide,
or negligent homicide."    Section 45-5-101(2), MCA.     The
"deliberate homicide" statute does not distinguish between a
homicide committed "purposely or knowingly" (a version of
the former statutory concept of premeditated murder) and a
homicide committed under the felony-murder rule.       Each is
considered to be "deliberate homicide."    Section 45-5-102,
MCA.    Nor does the sentencing part of this statute distinguish
between "purposely or knowingly" committing a homicide, and
committing a homicide under the felony-murder rule.      The
same punishment, including a possible death sentence, may be
applied to both.    Section 45-5-102(2), MCA.
       Fitzpatrick was charged with deliberate homicide under
both theories of homicide--"purposely or knowingly" and
under the felony-murder rule.    In addition to this,
Fitzpatrick was accused of being a direct principal or being
an aider or abettor to this crime.   Although the aiding and
abetting statutes treats both situations the same insofar as
criminal accountability is concerned (section 45-2-302 and
section 45-2-303, KCA), the verdict returned by the jury
does not reveal whether the jury found Fitzpatrick to be a
direct principal or an aider or abettor.   Nor does the
verdict reveal whether the jury faund Fitzpatrick guilty of
"purposely or knowingly" causing the death of Monte Dyckman,
or whether the jury found him guilty under the felony-murder
rule.
     Additional problems arise if the jury applied the

felony-murder rule to find Fitzpatrick guilty.     He was
charged alternatively with several statutory theories of

criminal accountability. But the verdict stating only that
the defendant is guilty of "Count I, Deliberate Homicide, as
charged in the Information" does not reveal the underlying
felony the jury decided he was committing, had committed, or
was withdrawing from.      And if the jury applied the felony-
murder rule, we also do not know whether the jury was
unanimous on one or more of the underlying felonies.    Because
the jury was not instructed that its verdict must be unanimous
as to any of the underlying felonies, the question is whether
this Court can say with certainty that the jury was unanimous
on one or more of the underlying felonies.    We cannot make
this determination and therefore we must, by applying the
rule of Chapman v. California (1967), 386 U.S. 18, 87 S.Ct.
824, 17 L.Ed.2d 705, grant Fitzpatrick a new trial.    United
States v. Gipson, supra.

     I           again &hat Fitzpatrick has attacked all
three convictions for lack of assurance of a unanimous

verdict, but the majority opinion deals only with the
aggravated kidnapping conviction, and even then the discussion

is                Surely these capital cases merit more
careful review than what this Court has given them*

     I next discuss the charge of deliberate homicide--the
wording of the charge as given to the jury, the instructions
attempting to set forth the elements of the charge, and the
jury verdict finding Fitzpatrick guilty of "Deliberate
Homicide, as charged in the Information."    The judge told
the jury that Fitzpatrick was charged as follows:
     "COUNT -
            ONE
          .
    ". . [the defendant] committed the crime of
    DELIBERATE HOMICIDE, to-wit: In that [the
    defendant] did (a) purposely or knowingly cause,
    or aided, or abetted, or agreed to aid or abet,
    or attempted to aid or abet in purposely or
                          --
    knowingly causing the death of Monte Dyckman,
     . . .;or (b) caused, or aided or abetted, or
    aqreed to aid or abet, or attempted to aid
                           --
    o abet in causing the death of Monte Dyckman
     ;
    while an accomplice to or while engaged - -
                                            in the
    commission - or attempted commission of Robbery,
               of -
    a felony, or Aggravated Kidnapping, a felony,
    involving the use of physical force or violence,
    or the flight thereafter
    -                            . . ."
                                    (Emphasis added.)
    According to this charge, Fitzpatrick was accused under
part (a) with "purposely or knowingly" causing the death of
Monte Dyckman, or under part (b) with causing Monte Dyckman's
death while committing or attempting to commit either robbery
or aggravated kidnapping.
7
                              In addition to these alternative
charges, Fitzpatrick is accused of being a principal or an
aider or abettor to the homicide.
     The instructions attempting to explain this charge
inform the jury that it may choose between the two theories
of criminal accountability.    Instruction no. 23 set forth
the "purposely or knowingly" and the felony-murder choice:
     "A person commits the offense of deliberate
     homicide if:
     "1) He causes the death of another human
     being purposely or knowingly; -
                                   or
    "2) The death of another human being is caused
    while the offender is engaged in or is an
    accomplice in the commission of or an attempt to
    commit, or flight after committing or attempting
    to commit robbery or kidnapping." (Emphasis
                      -
    added. )
     In addition to setting forth the basic statutory
concepts of criminal accountability, it is apparent that
instruction no. 23 conflicts with the wording of the charge.
The charge accuses Fitzpatrick with committing, attempting
to commit, or fleeing from the crime of "aggravated kid-
napping."   The instruction uses only the word "kidnapping."
This is not an insignificant departure, because both are
distinct and separate crimes.   The crime of kidnapping is
provided for in section 45-5-302, MCA.   The crime of aggravated
kidnapping is provided for in section 45-5-303, MCA.   This
being a death penalty case, that departure cannot be lightly
passed over.   The crime of kidnapping was not explained in
any instruction.
     Instruction no. 24, attempting to inform the jury what
must be proved to find Fitzpatrick guilty of deliberate
homicide, again sets out the alternative theories of criminal
accountability:
    "1) That the defendant purposely or knowingly
    performed, or aided or abetted in performing,
    the acts causing the death - Monte Dyckman;
                               of
    -
    or
    "2) That the death of Monte Dyckman was caused
    while the defendant was engaged in - - -
                                       or was an
    accomplice in the commission of, or attempted
    commission of, or flight after such commission
                                        -
    or attempted commission of, robbery or kidnapping.
     "If you find from your consideration of all
                       -
     the evidence that one of these propositions
     has been proved beyond a reasonable doubt,
     then you should find the defendant guilty of
     deliberate homicide.
     "If, on the other hand, you find from your
     consideration of all the evidence that neither
     of these propositions has been proved beyond
     a reasonable doubt, then you should find
     the defendant not guilty." (Emphasis added.)
     This instruction told the jury that if either part 1
                                -
of this instruction was proved, or part 2 of this instruction
was proved, the jury should find Fitzpatrick guilty of
deliberate homicide.    In addition, the instruction repeats
the variance from the charge--the charge alleged "aggravated
kidnapping," but the instruction uses the term "kidnapping."
Significantly, nowhere in the instructions is "kidnapping"
defined.
     The trial court fully emphasized the effect of the
felony-murder instruction by instruction no. 38, the second
to the last instruction.    The trial court told the jury that
it "must" convict Fitzpatrick of deliberate homicide if the
jury convicted him of either robbery - aggravated kidnapping.
                                     or
Instruction no. 38 stated:
    "You are instructed that you may find the
    defendant guilty or not guilty of any or all
    of the offenses charged, namely, Robbery,
    Aggravated Kidnapping, or Deliberate Homicide.
     "However, - - - - - defendant
               if you find that the
     committed the offense of Robbery, or aided or
     abetted in its commission, and t - h a t durinq the
     commission of that offense or his flight -
     thereafter, the death of Monte Dyckman was
     caused, -----
             you must also find the defendant
     auiltv of deliberate homicide.

    "Likewise, - - - - -
               if you find that the defendant
    committed the offense of Aggravated Kidnapping,
    or aided or abetted inits commission, and that
    during the commission of that offense or the
    fliqht thereafter, the death of Monte Dyckman
       -
    was caused, you must also find the defendant
    guilty - deliberate homicide." (Emphasis added.)
           of
     Eecause of the mandatory language of instruction no.
38, the probability is that the jury found Fitzpatrick guilty
of deliberate homicide by application of the felony murder.
But what underlying felony or felonies did the jury agree
on in finding Fitzpatrick guilty of felony-murder? The
verdict stated only that Fitzpatrick was guilty of "Count I,
Deliberate Homicide, as charged in the Information."       Nor
can it be determined whether the jury found Fitzpatrick guilty
as a direct principal or as an aider or abettor or accomplice.
This factor may not be impertinent under Montana law for
purposes of fixing criminal accountability, but it is
extremely important in making a decision as to whether the
death penalty should be imposed.   Finally, although the
probability is that the jury convicted Fitzpatrick of
felony-murder, there is no assurance that it did so, for
the instructions permitted the jury to use the "purposely
or knowingly" theory.
     Nor was the jury instructed that its verdict must be
unanimous on any theory of criminal accountability.    If the
jury found Fitzpatrick guilty by applying the "purposely or
knowingly" theory, or if the jury found Fitzpatrick guilty
by applying the felony-murder theory of criminal accountability,
it cannot be determined whether the jury's verdict was
unanimous on any one theory.   For example, six may have
voted one way, and six may have voted the other, and yet all
twelve may have found him guilty of "deliberate homicide."
This is one reason the conviction must be reversed.    State
v. Green, supra.
     In addition, assuming that the jury found Fitzpatrick
guilty by applying the felony-murder rule, there is no
assurance that all twelve jurors agreed on any one of the
alternative theories in which "robbery" was charged, and
there is no assurance that all twelve jurors agreed on any
one of the alternative theories in which "aggravated kidnapping"
was charged.   If the aggravated kidnapping conviction cannot
stand, and if the robbery conviction cannot stand, then the
deliberate homicide conviction also must fall.   Assurance
of jury unanimity is required for each conviction.    Further-
more, aside from the jury unanimity issue, the evidence does
not support each of the underlying theories of robbery or
each of the underlying theories of aggravated kidnapping,
and for this reason also, the deliberate homicide conviction
must fall.     I will discuss the sufficiency of the evidence
later in my dissent.
        I next discuss the aggravated kidnapping charge.
Count 11: Aggravated Kidnapping--The Charge, The Instructions,
and the Verdict Form Used.
        In an attempt to keep the death penalty constitutional,
Montana's criminal codes have undergone steady change in
response to the death penalty decisions of the United States
Supreme Court.      One of those changes is that the legislature
has created crimes which call for the possible imposition of
the death penalty if certain statutory aggravating elements
are present.     This situation exists in relation to the
legislature's distinction between kidnapping (section 45-5-
302, MCA), and the newly-created crime of aggravated kidnapping
(section 45-5-303, MCA), under which the death penalty may
be imposed.
        Section 45-5-302(1), MCA, states that the crime of
kidnapping is committed if a person "knowingly or purposely
and without lawful authority restrains another person by
either secreting or holding him in a place of isolation or
by using or threatening to use physical force."         The penalty
for kidnapping is imprisonment "for a term of not less than
2 years or more than 10 years, except as provided in 46-18-
222."      Section 45-5-302 ( 2 ) , MCA.   As I noted before,
Fitzpatrick was charged in the deliberate homicide count
with kidnapping as one of the two alternative theories under
the felony-murder alternative.        The deliberate homicide
charge, however, did not mention the crime of aggravated
kidnapping.
     The crime of aggravated kidnapping, increases the
possible minimum and maximum sentence, and adds an element
not included in the crime of kidnapping.    Section 45-5-303,
MCA, provides that a person is guilty of aggravated kidnapping
if he commits a kidnapping with one or more of five specific
purposes enumerated in the statute.    Because a specific
purpose is an essential element of the crime it follows that
aggravated kidnapping is not proved if a specific purpose
charged is not proved.    The specific purposes which constitute
aggravated circumstances are important also because of the
added penalty.    A conviction of aggravated kidnapping carries
a minimum of two years and a maximum of 100 years in prison
if the victim is harmed while under the control of the
defendant.   If the victim is released unharmed the penalty
is the same as that for the crime of kidnapping.      On the other

hand, if the victim is not released alive, the death penalty
is one of the options.    Section 45-5-303(2), MCA.

     The aggravating factors which can raise the crime
from that of kidnapping to that of aggravated kidnapping,
are as follows:
     a. to hold for ransom or reward or as a
     shield or hostage;
     b. to facilitate commission of any felony
     or flight thereafter;
     c. to inflict bodily injury on or to terrorize
     the victim or another;
     d. to interfere with the performance of any
     governmental or political function; or
     e. to hold another in a condition of involuntary
     servitude. (Section 45-5-303 (1)(a) through
     (e)).  (Emphasis added. )
     The State charged Fitzpatrick with aggravated kidnapping
under subsections b and c of this statute.    Specifically,
under subsection b, the State charged that when Fitzpatrick
kidnapped Monte Dyckman, he had the specific purpose to
commit an unspecified felony.     Under subsection c, the State
charged that when Fitzpatrick kidnapped Monte Dyckman, he
had the specific purpose - inflict bodily injury on Monte
                         to

Dyckman - - terrorize Monte Dyckman.
        or to                             Aside from the
unanimous verdict issue, as I shall later discuss, there is
no substantial issue to support a verdict that Fitzpatrick
had the specific purpose in kidnapping, to inflict bodily
injury on or to terrorize Monte Dyckman.
     Because the jury was instructed that it could find
Fitzpatrick guilty of aggravated kidnapping if it found that
he had the specific purpose to inflict bodily injury on or
to terrorize Monte Dyckman, we cannot assume that the jury
did not follow this instruction, and we cannot assume that
the jury did not apply this instruction to find Fitzpatrick
guilty of aggravated kidnapping.    Logically, then, if there
is no substantial evidence to support this theory of accountability,
and there is not, the jury may have convicted Fitzpatrick
based on a theory not supported by substantial evidence.
This very real possibility means that not only must the
aggravated kidnapping conviction be reversed, but also that
the deliberate homicide conviction must be reversed.
        I have already discussed the fact that in finding
Fitzpatrick guilty of deliberate homicide, because of the
mandatory language of instruction no. 38, the jury probably
applied the felony-murder rule.    Because of instruction no.
38, the jury may well have used the aggravated kidnapping

felony as the underlying basis to apply the felony-murder
rule.     If so, as I mentioned before, the aggravated kidnapping
conviction must fall because substantial evidence does not
support the theory of accountability that Fitzpatrick had
the specific purpose to inflict bodily injury on or to
terrorize Monte Dyckman.    Furthermore, if the jury applied
the aggravated kidnapping felony rule in finding Fitzpatrick
guilty under the felony-murder rule, the deliberate homicide
conviction must fall for the same reason that the aggravated
kidnapping conviction must fall--a lack of substantial
evidence on one of the theories of accountability.
       Any appellate court, in properly applying rules of
appellate review to this situation, should recognize that
both convictions must be reversed.    The rule is a simple
one:    because there is no basis in the record to determine
how the jury reached its verdict, whether it based both
verdicts on theories of accountability supported by sub-
stantial evidence, or whether it based both verdicts on
theories of accountability not supported by substantial
evidence, the fact that the jury may have relied on theories
not supported by substantial evidence compels a reversal.
Furthermore, the fact that the death penalty may then have
been imposed based on underlying convictions not supported
by substantial evidence, should impel even the most calloused
appellate court to reverse the convictions.
       I next discuss the charge of aggravated kidnapping,

as given to the jury in an instruction, the instructions
attempting to define the elements of the crime, and the
verdict form given to the jury and which the jury signed
in returning its verdict.    I discuss the substantial evidence

question in a separate section covering all three charges.
       Fitzpatrick was charged, and the trial court instructed
the jury that Fitzpatrick was charged as follows:
     ". . . [the defendant] . . . did,. . . commit the
     crime of AGGRAVATED KIDNAPPING, to-wit: In
     that [the defendant] did purposely or
     knowingly and without lawful authority, restrain,
     or aided, or abetted, or agreed to aid or abet,
     or attempted to aid or abet in restraining, Monte
     Dyckman, by using or threatening to use, or aiding
     or abetting or agreeing to aid or abet, or
     attempting to aid or abet in using or threatening
     to use physical force with- purpose of (a)
                           - the
                                 -a
     facilitating the commission of - felonyor flight
     thereafter; or (b) causing bodily injury to Monte
     Dyckman or terrorizing said Monte Dyckman,. .   ."
     (~mphasisadded.)
    According to this charge, the State was requir~dto
prove beyond a reasonable doubt that Fitzpatrick, in kidnapping
Monte Dyckman, had the specific purpose (a) of committing -
                                                          a
felony (an unspecified felony) or (b) that he had the specific
purpose of causing bodily injury to or of terrorizing Monte
Dyckman.   The State was required to prove not only a kidnapping,
but that Fitzpatrick had one or both specific purposes in
mind when he accomplished the kidnapping.
     In addition to the alternative charges, Fitzpatrick was
charged both as a direct principal and as aiding or abetting
or being an accomplice.
     The jury verdict stated only that Fitzpatrick was
guilty of "Count 11:   Aggravated Kidnapping, as charged in
the Information."   This verdict fails to reveal the theory
of accountability used as a basis to reach a guilty verdict.
Did the jury find that in committing a kidnapping (never
defined for the jury) Fitzpatrick had purpose (a) in mind,
or that he had purpose (b) in mind, or that he had both
purposes in mind?   Nor was the jury ever instructed that its
verdict must be unanimous as to (a) or    unanimous as to (b),
and unanimous as to both (a) and (b).    For all we know, six
jurors may have reached their decision by application of
theory (a) and six jurors may have reached their decision ty
application of theory (b), thereby depriving Fitzpatrick of
a unanimous verdict.   State v. Green, supra.
     Nor can we tell from the verdict whether the jury found
Fitzpatrick guilty as being a direct principal, or whether
the jury found him guilty as being an aider or abettor, or
an accomplice.   This fact may not be important under Montana
law to determine accountability for a crime (sections 45-3-
302 and 45-2-303, MCA), but it is certainly important for
purposes of determining the sentence.
     The jury instructions attempting to set forth the
elements of aggravated kidnapping served only to add to
the confusion.   Rather than confine the jury's options to
the specific purposes in the charge itself, the instructions
expand the options beyond those contained in the charge.     And

the instructions are inconsistent.
     Instructions no. 25 and 26 attempted to set out the
essential elements to be proved.   The purpose of the instructions

was apparently to set forth the definition of aggravated
kidnapping as it applied to the actual charge.    Instruction

no. 25 stated:

     "A person commits the offense of aggravated
     kidnapping if he knowingly or purposely and
     without lawful authority restrains another
     person by either using or threatening to use
     physical force with any of the following
     purposes:
     "(1) To facilitate commission of - -   -
                                      any felony
     of the flight thereafter; or
     "(2) To inflict bodily injury on or to terrorize
     the victim." (Emphasis added.)
     This instruction, as well as the charge itself, allowed
the jury to decide if Fitzpatrick had the purpose, in

kidnapping Monte Dyckman, to commit any felony.   An open-
ended charge and jury instruction is impermissible.   In
                                            ,
dissent in State v. Sunday (1980), - Mont. - 609 P.2d at
1201, 37 St.Rep. 561, at 572D, I registered my objections
to such open-ended charges and instructions. The obvious
reason for the statute containing the language "any felony,"
is to permit the prosecution to select the particular felony
which it believes appropriate to the facts of the case. An
                                                not
open-ended charge such as that filed here shoulvbe permitted
in any criminal case, but its use is especially objectionable
where a conviction may lead to the imposition of the death
penalty.
     The next instruction (instruction no. 2 6 ) , in setting
forth the elements of the offense and the alternatives to
the jury, further adds to the confusion.   Instruction no. 26
states:
     "To sustain the charge of aggravated kidnapping,
     the State must prove the following propositions:
    "First: That the defendant knowingly or purposely
    restrained or aided or abetted in restraining
    Monte Dyckman by using or threatening to use or
    aiding or abetting in using or threatening to
    use physical force; and
    "Second: That the defendant had the purpose in
    so acting to facilitate, or to aid or abet in
    facilitating, the commission of the crime of
    robbery, or the flight thereafter, or to inflict
    or to aid or abet in inflicting bodily injury
    upon Monte Dyckman or terrorizing Monte Dyckman,
    and
     "Third: That in do [sic] doing the defendant
     acted without lawful authority.
     "If you find from your consideration of all the
     evidence that each of these propositions, has
     been proved beyond a reasonable doubt, then
     you should find the defendant guilty.
     "If, on the other hand, you find from your
     consideration of all the evidence that any of
     these propositions has not been proved beyond
     a reasonable doubt, then you should find the
     defendant not guilty." (Emphasis added.)
     This instruction permitted the jury to find Fitzpatrick
guilty of aggravated kidnapping if he knowingly or purposely
restrained Monte Dyckman for the specific purpose of robbing
Monte Dyckman or for the specific purpose of inflicting
bodily injury on or of terrorizing Monte Dyckman.   Assuming
that the jury followed this instruction rather than
instruction no. 25 (for they are inconsistent), the question
arises as to whether the jury decided that Fitzpatrick had
the specific purpose of robbing Monte Dyckman or the specific
purpose of inflicting bodily injury on or of terrorizing
Monte Dyckman.   The answer is not revealed in the record.
    Although a specific purpose to commit robbery is supported
by substantial evidence--if the testimony of accomplice Joseph
Bushman can be accepted, the robbery conviction itself has
several defects because of procedural irregularities and
the failure of all alternative theories under the robbery
charge to be supported by substantial evidence.   I shall
discuss these defects later.   On the other hand, as I shall
also later discuss, the specific purpose to inflict bodily
injury or to terrorize Monte Dyckman is not supported by
substantial evidence.    Because the jury verdict does not
reveal which theory the jury applied in finding Fitzpatrick
guilty of aggravated kidnapping, the conviction must be
reversed because of the possibility that that the jury may
have reached its verdict by applying an aggravating factor
unsupported by substantial evidence.
     Reversal is also required because the jury was not
instructed that its verdict must be unanimous on one or
more of the aggravating theories of accountability which
elevate the crime from that of kidnapping to that of
aggravated kidnapping.    Six jurors could have applied one
theory of accountability in reaching their conclusion that
Fitzpatrick was guilty, and the other six jurors could have
applied another theory of accountability in reaching their
conclusion that Fitzpatrick was guilty, and yet all could
have agreed that Fitzpatrick was guilty of aggravates kidnapping.
This possibility exists independent of the question whether
substantial evidence supports each of the theories of
accountability submitted to the jury.    If such is the
case, and the record does not tell an appellate court other-
wise, Fitzpatrick was deprived of a unanimous jury verdict.
Add to this situation the fact that the death penalty has
been imposed for the crime of aggravated kidnapping, and
reversal is not only indicated by application of fundamental
rules of appellate review, reversal is mandated.   Andres v.
United States, supra; State v. Green, supra.
     I next discuss the robbery conviction--Count 111.     This
charge must not only be analyzed in its own context, but
also in bhe context of its effect on the charge and conviction
of deliberate homicide, and the charge and conviction of
aggravated kidnapping. All of these issues are intertwined
because of the specific language of the charges and the
specific language of the instructions.   The validity of
each conviction depends upon the validity of the other con-
victions, a classic example of the dominoes theory as applied
to alternative criminal charges.
(3) Count 111-Robbery-The Charge, the Jury Instructions,
and the Verdict Form Used.
     I emphasize again that the majority has omitted
discussion of the robbery conviction on the issue of the
unanimous verdict requirement and the sufficiency of'the
evidence question, even though Fitzpatrick raised the
issue both in trial court and before this Court.
     I first summarize why the robbery conviction must be
reversed.   First, substantial evidence does not exist on
each of the aggravating factors charged in the information,
and because an appellate court cannot determine which
aggravating factor the jury applied in reaching its
verdict, the conviction must be reversed.   Second, the
instructions attemptinq to set forth and define the
essential facts for the crime of robbery, are inconsistent
with the charge and inconsistent with each'other. Third,
the instructions expand the scope of the charge to include
a possible verdict based on a violation of section 45-5-401(c),
MCA, an aggravating factor not charged in the information.
Fourth, the jury was not instructed that its verdict must be
unanimous on any one aggravating factor (essential fact)
required to elevate the crime from that of theft to that of
robbery, and therefore Fitzpatrick was deprived of the assurance
of a unanimous jury verdict.
    Any one of these four defects is sufficient to reverse
the robbery conviction and grant a new trial, and any appellate
court having a sense of its function should have no hesitation
in reversing the conviction and granting a new trial.     Add

to this the fact that the robbery conviction may have been
the underlying basis for the jury's guilty verdict on the
charge of deliberate homicide, a verdict which led to the
imposition of the death penalty, and even the most insensitive
appellate court would recognize that the conviction cannot
stand.
     The Montana robbery statute sets forth several
aggravating factors by which the crime of theft is elevated
to the crime of robbery.   Section 45-5-401, MCA provides:
     "(1) A person commits the offense of robbery
     if in the course of committing a theft he:
     " (a) inflicts bodily injury upon another;
     " (b) threatens to inflict bodily injury upon
     any person or purposely or knowingly puts any
     person in fear of immediate bodily injury; or
     "(c) commits or threatens to commit any felony
     other than theft."
     This statute further provides that a robbery conviction
will result in a prison term of "not less than 2 years nor
more than 40 years, except as provided in 46-18-22 [not
                .
here pertinent] "
     The State charged Fitzpatrick with robbery under this
statute, and alleged that he violated sections 45-1-401(1)
(a) and (b). Count I11 charged, and the jury was instructed
(instruction no. 2) that Fitzpatrick was charged in the
following language:
     "COUNT THREE
     ". . . [the defendant] did,. . . commit the
    crime of ROBBERY, to-wit: In that [the defendant]
    (a) did, while in the course of committing, or
    aiding, or abetting, or agreeing to aid or abet,
    or attempting to aid or abet in committing a theft
     . . . inflicted, or aided, or abetted, or agreed to
    aid or abet, or attempted to aid or abet in inflicting
    bodily injuky upon ~ o h t eDyckman, or (b) did, while
    in the course of committing, or aiding, or abetting,
    or agreeing to aid or abet, or attempting to aid
    or abet in committing, a theft      .
                                        . . threatened to
    inflict bodily injury upon Monte Dyckman or purposely
    or knowingly put Monte Dyckman - - -of immediate
                                      in fear
    bodily injury, or aided, or abetted, or agreed to aid
    or abet, or attempted to aid or abet in threatening
    - inflict bodily injury upon Monte Dyckman, or
    to
    p u r r n o r koiu
                   nw-t           Monte Dyckman - -
                                                in fear
    of immediate bodily injury
    -                             ..  ." (Emphasis added.)
     Fitzpatrick was accused of committing robbery based
on two of the statute's three aggravating factors.    First,
he was accused of inflicting bodily injuries on Monte Dyckman
in the course of committing a theft, a violation of subsection
(a). Second, he was accused of threatening to inflict
bodily harm or putting Monte Dyckman in fear of immediate
bodily injury, a violation of subsection (b) of the
statute.   To convict Fitzpatrick of robbery, the State
was required to prove at least one of these two aggravating
factors.   I emphasize here that this charge did not accuse

Fitzpatrick of committing the aggravating factor listed in
subsection (c) of the statute.   As it turns out, however,
the instructions to the jury also gave the jury the option
                                 -65-
of determining whether Fitzpatrick violated subsection
(c). The addition of a third aggravating factor, not
contained in the charge, is an impermissible variance,
and the robbery conviction should be reversed for this
reason alone.
     As applied to the robbery charge filed, the instruction
set forth the essential elements of the crime:
     "A person commits the offense of robbery if,
     in the course of committing a theft, he:
     "1) Inflicts or aids in inflicting bodily
     injury upon another; or
                          -

     "2) Commits or aids or abets in committing
     any felony, other --
                       than theft.
     "The phrase 'in the course of committing a
     theft' as used in this section includes acts
     which occur in the commission of the theft
     or in the flight after the commission of the
     theft. " (Emphasis added. )
     This instruction is inconsistent with the charge in
several ways.   First, subsection (2) of the instruction
adds an aggravating factor not charged in the information.
By stating that the jury could convict if it found that
Fitzpatrick while committing a theft, had committed any
felony other than theft, the instruction went beyond the
aggravating factors or essential elements charged in the
information. Application of fundamental rules of criminal
procedure requires a holding that this is an impermissible
variance.   And because the death penalty is the underlying
issue, such a variance is unjustified under any theory of
appellate review that has fundamental due process as its core.
     In addition, the instruction is open-ended because it
permits a conviction if the jury found that in the course of
committing a theft, Fitzpatrick had committed "any felony,
other than theft."   Without specification of the underlying
felony committed in the course of committing a theft, the
way is left for the jury to speculate on virtually any
felony that it believes may have been committed, regardless
of the evidence, and regardless of any instructions defining
the felonies.    So if the jury found Fitzpatrick guilty by
application of this aggravating factor, what felony did the
jury decide that Fitzpatrick committed?       Deliberate homicide?
Or aggravated kidnapping?      Or a felony not even mentioned in
the charges nor defined in the instruction?
      The inconsistency between the robbery charge and
instruction no. 21 raises the question of which instruction
the jury followed in reaching its verdict.        Did the jury
rely only on the language of the charge, or did the jury
instead follow the inconsistent directions of instruction no.
21?   Because the instructions are inconsistent, the jury
obviously could not have followed both of them.
      This inconsistency is compounded even more by instruction
no. 22, which adds to the defects already existing:
      "To sustain a charge of robbery, the State
      must prove that the defendant, during the
      c m s e of committing or aiding or abetting
      in committing, a theft, either:
      "First: Inflicted, or aided or abetted in
      inflicting, bodily injury upon Monte Dyckman,

      "Second: Threatened or aided or abetted in
      threatening to inflict bodily injury upon
      Monte ~ y c k m a K o r                       --
                             purposely or knowingly put,
      or aided or abetted in putting Monte Dyckman
      - - -of immediate bodily injury, -
      in fear                                   or
      "Third: Committed or aided or abetted in
      committing any felony -- theft.
                            other than
      "In the course of committing a theft as used
      here includes acts which occur in an attempt
      to commit or in the commission of theft or in
      flight after the attempt or commission.
      "If you find from your consideration of all
      the evidence that - of these propositions
                        any
      has been proved beyond a reasonable doubt,
      then you should find the defendant guilty of
      robbery.
        " I f , on t h e o t h e r hand, you f i n d from your
        c o n s i d e r a t i o n of a l l t h e e v i d e n c e t h a t none
        of t h e s e p r o p o s i t i o n s h a s been proved beyond
        a r e a s o n a b l e d o u b t , t h e n you s h o u l d f i n d t h e
        defendant not g u i l t y . "            (Emphasis a d d e d . )

        This i n s t r u c t i o n i s n e i t h e r c o n s i s t e n t with t h e charge

s t a t e d i n c o u n t I11 ( i n s t r u c t i o n no. 2 ) , n o r w i t h i n s t r u c t i o n

no. 2 1 .      I t r e p e a t s t h e d e f e c t o f i n s t r u c t i o n no.    21 by

adding an aggravating f a c t o r n o t charged i n t h e information.

Under t h i s i n s t r u c t i o n t h e j u r y was a g a i n p e r m i t t e d t o

c o n v i c t F i t z p a t r i c k o f r o b b e r y i f i n t h e p r o c e s s of

committing a t h e f t t h e j u r y found t h a t he                  committed "'any f e l o n -
                                                                                                 y

o t h e r than t h e f t . "     T h a t i s t h e l a n g u a g e of s u b s e c t i o n ( c )

of s e c t i o n 45-5-401(1),           and F i t z p a t r i c k was n o t c h a r g e d w i t h

t h i s aggravating f a c t o r .          Furthermore, t h i s p a r t of t h e

i n s t r u c t i o n i s open-ended       a s t o t h e f e l o n y which F i t z p a t r i c k

i s a l l e g e d t o have committed.

        Because t h e j u r y ,       i n r e a c h i n g i t s v e r d i c t on t h e

r o b b e r y c h a r g e , was g i v e n t h e open-ended o p t i o n o f d e c i d i n g

t h a t F i t z p a t r i c k committed "any o t h e r f e l o n y           other than

theft,"        an a p p e l l a t e c o u r t c a n n o t assume t h a t t h e j u r y d i d

n o t a p p l y t h i s t h e o r y i n f i n d i n g him g u i l t y .      I f t h e jury

a p p l i e d t h e d e l i b e r a t e homicide f e l o n y i n f i n d i n g         Fitzpatrick

g u i l t y of r o b b e r y , t h e r o b b e r y c o n v i c t i o n must f a l l i f t h e

d e l i b e r a t e homicide c o n v i c t i o n must f a l l .        And I have a l r e a d y

s e t f o r t h i n t h i s d i s s e n t why t h e d e l i b e r a t e homicide con-

v i c t i o n must f a l l .     The same i s t r u e of t h e a g g r a v a t e d

kidnapping charge.               I f t h e jury applied t h e aggravated

kidnapping felony i n f i n d i n g F i t z p a t r i c k g u i l t y of robbery,

t h e r o b b e r y c o n v i c t i o n must f a l l i f t h e a g g r a v a t e d k i d n a p p i n g

c o n v i c t i o n must f a l l .    I have a l s o s t a t e d why t h e a g g r a v a t e d

k i d n a p p i n g c h a r g e must f a l l .

        Beyond t h i s , t h e r e i s , of c o u r s e , t h e chance t h a t t h e

j u r y , b e c a u s e of t h e open-ended          l a n g u a g e of t h e i n s t r u c t i o n s -
 --
"any other felony   . .   ."--simply decided that Fitzpatrick
committed some other unspecified and undefined felony, and
so found him guilty of robbery.     If so, the robbery conviction
is defective because there is no way to determine from the
record just what felony the jury concluded he committed, nor
is there any way of knowing if the jury properly applied
the law defining that felony, since that felony was never
defined.
     The robbery conviction must also be reversed because
the jury was not instructed that its verdict must be unanimous
on one or more of the essential facts which elevate the
crime from that of theft to that of robbery.     For example,
six jurors could have decided upon one theory of accountability
and six jurors could have decided on another theory of account-
ability, and still all jurors could have agreed that Fitzpatrick
was guilty of aggravated kidnapping.     Aside from the failure
of substantial evidence to support each of the theories of
accountability, the fact remains that all twelve jurors may
not have applied the same theory of accountability in
reaching the guilty verdict.     If that is so, Fitzpatrick was
deprived of a unanimous jury verdict.     A reversal is
especially mandated because of the effect that the robbery

conviction may have had on the deliberate homicide and
aggravated kidnapping convictions, both of which convictions

led to the imposition of the death penalty.
     I turn now to the question of whether substantial evidence

exists to uphold all three convictions--aggravated kidnapping,
deliberate homicide, and robbery.     Because each charge was
given to the jury under several alternative theories of
accountability, I discuss each of these theories as it
relates .to the charges filed.
 PART D--
P O T ALL THEORIES OF ACCOUNTABILITY FOR EACH CHARGE ARE
 SUPPORTED BY SUBSTANTIAL EVIDENCE
     In virtually the same breath as the majority cited
inapplicable cases for the proposition that a jury need not
be instructed that its verdict must be unanimous on any
theory of accountability applied in reaching a guilty verdict,
the majority declared, without analysis of the evidence,
that substantial evidence supports each of the alternative
theories of accountability submitted to the jury on the
charge of -
          aggravated kidnapping.   I again emphasize that
the majority opinion covers only the charge of aggravated
kidnapping, although Fitzpatrick has raised the unanimous
jury v.erdict issue on all three convict
     In relying in part on the review of the record under-
taken by the trial court, the majority notes that the trial
court found substantial evidence to support each of the
alternative theories of accountability submitted to the jury.
But the trial court's analysis is as inadequate as the
majority's analysis, for it too entered only a bald all-
encompassing conclusion.   After accepting the State's analysis
of why the cases cited by Fitzpatrick were inapplicable
(essentially on the same basis discussed in the majority
opinion), the trial court, in the last paragraph of its
opinion on the unanimous verdict issue, made the following
all-encompassing conclusion:
     "In petitioner's case, substantial evidence exists
     to support each alternative which was contained in
     the jury instructions. The petitioner, was, there-
     fore, not denied the right to a unanimous jury
     verdict. "
     That is the totality of the trial court's analysis of
the evidence.   This conclusion provides no basis to determine
whether the trial court analyzed, in light of the trial
evidence, each a l t e r n a t i v e theory submitted t o t h e jury

f o r each charge.            This decision, together with t h e

m a j o r i t y o p i n i o n , f a l l s f a r s h o r t o f t h e s t a n d a r d o f mandatory

r e v i e w t h a t t h e United S t a t e s Supreme C o u r t h a s d i r e c t e d

must b e u n d e r t a k e n i n a l l d e a t h p e n a l t y c a s e s .        Mandatory

r e v i e w i s a sham i f a l l - i n c l u s i v e c o n c l u s i o n s can be

s u b s t i t u t e d f o r t h e p a i n s t a k i n g r e v i e w and a n a l y s i s r e q u i r e d

i n a l l death penalty cases.

THE SUBSTANTIAL EVIDENCE QUESTION

        The m a j o r i t y o p i n i o n b o l d l y s t a t e s t h a t t h e e v i d e n t i a r y

r e c o r d h a s been reviewed and t h a t s u b s t a n t i a l e v i d e n c e

e x i s t s on e a c h of t h e a l t e r n a t i v e t h e o r i e s s u b m i t t e d t o t h e

jury.       I t a k e i s s u e with both t h e s e a s s e r t i o n s .

        When t h i s c a s e was a p p e a l e d from t h e D i s t r i c t C o u r t

f o r t h e t h i r d t i m e , t h e D i s t r i c t Court c l e r k d i d not send

t h e t r i a l t r a n s c r i p t t o t h i s C o u r t , and t h i s C o u r t d o e s n o t

have a t r a n s c r i p t o f t h e second t r i a l a n f i l e from t h e

previous F i t z p a t r i c k -appeal.
                               I1                       An e v i d e n t i a r y r e c o r d i s

o n f i l e i n t h e a r c h i v e s of t h e H i s t o r i c a l S o c i e t y , b u t a s

f a r a s I know, no one from t h i s C o u r t h a s gone t o t h e S o c i e t y

t o r e v i e w t h e r e c o r d o r t o check it o u t f o r p u r p o s e s o f

review.

        On t h e o t h e r hand, a l t h o u g h I d i d n o t p e r s o n a l l y r e v i e w

t h e record, I d i d d e l e g a t e a l a w c l e r k t o review t h e

e v i d e n t i a r y r e c o r d a t t h e H i s t o r i c a l S o c i e t y , and h e

s p e n t many, many h o u r s t h e r e d o i n g j u s t t h a t .             I t i s on a

b a s i s of h i s r e v i e w and m d i s c u s s i o n w i t h him c o n c e r n i n g
                                    y

t h e e v i d e n c e i n t h e r e c o r d , t h a t I am a b l e t o d e c l a r e t h a t

s u b s t a n t i a l e v i d e n c e d o e s n o t e x i s t on e a c h of t h e t h e o r i e s

of a c c o u n t a b i l i t y s u b m i t t e d t o t h e j u r y i n r e l a t i o n t o a l l

t h r e e c h a r g e s , n o t j u s t t h e a g g r a v a t e d k i d n a p p i n g c h a r g e which
is the only charge the majority claims to have reviewed.
This is yet another reason all three convictions must be
reversed and a new trial ordered, and I next set forth
my views of the evidence relating to each charge.
AGGRAVATED KIDNAPPING--SUBSTANTIAL EVIDENCE DOES NOT SUPPORT
EACH OF THE THEORIES OF ACCOUNTABILITY SUBMITTED TO THE
JURY
       Because the majority opinion is confined to the
aggravated kidnapping conviction, I first discuss the
evidence in relation to this charge.     One of the aggravating
theories of accountability charged in the information, was
that Fitzpatrick, in kidnapping Monte Dyckman, had the
specific purpose to cause bodily injury to or to terrorize
Monte Dyckman.   The evidence does not support a conclusion
that Fitzpatrick had either purpose in mind when the robbery
was planned or when Dyckman was taken from the bank at
Hardin just before he made the deposit of Safeway Store
receipts.   An appellate court cannot determine from the
record whether the jury applied the      theory of accountability
or some other theory of accountability, and for this reason,
based on well-recognized principles of appellate review,
a reversal is mandated because of the possibility that the
jury applied a theory not supported by substantial evidence.
       The principal evidence relied on by the State, the
testimony of accomplice Joseph Bushman, who had been granted
complete immunity in exchange for his testimony, revealed
that neither a homicide nor even bodily harm was contemplated
as part of the robbery plan.    Furthermore, Bushman testified
that    although he was not present when Dyckman was killed,
accomplice R a d i had later made the   statement   that1
Fitzpatrick shot and killed Dyckman, and that all of the
accomplices present expressed surprise on hearing what
happened.   Nor did accomplice Bushman testify that the
participants in the robbery plan had the specified purpose
to cause bodily harm to or terrorize the intended victim
of the robbery.
    And Bushman's uncontradicted testimony that the
robbery planners and participants expressed complete surprise
at what happened   indicates that none of them had the
specific purpose to inflict bodily harm or to terrorize
the intended victim of the robbery.   They were interested
only in obtaining money from the person who was in charge
of carrying the Safeway receipts to the bank.   Nor is there
circumstantial evidence from which it can be inferred that
Fitzpatrick had the specific purpose in mind to inflict
bodily harm or terrorize the intended robbery victim.      In
fact, the trial court, at the conclusion of the sentencing
hearing, expressly found that Fitzpatrick's decision to kill
Monte Dyckman was not planned, but rather that it was an
instanteous, on-the-spot decision. (See my dissent in
            (19801,
            11
             1               ,
Fitzpatrick - - Mont. - 606 P.2d at 1379, where I
discuss this finding in relation to an issue bearing on
a death penalty issue.)
    A reviewing court properly fulfilling its function,
must recognize the possibility that the jury applied this
theory of accountability in finding Fitzpatrick guilty of
aggravated kidnapping.    That is so because there is no

way of telling from the record that the jury did not apply
this theory of accountability.    The possibility of a verdict
based on a theory not supported by substantial evidence,
compels a reversal.   The fact that a death penalty has been
imposed as a result of this conviction is still a more
compelling reason for reversal.   Andres v. United States,
supra.
     Nor can an appellate court ignore the fact that the
jury was given an open-ended instruction which permitted
it to find Fitzpatrick guilty if it found that in accomplish-
ing a kidnapping, Fitzpatrick had the specific purpose to
commit "any felony."   The jury may have relied on a felony
neither specified in the charge nor defined in the instructions,
and therefore appellate review to determine the existence
of substantial evidence on the    theory of accountability,
is impossible.   The possibility of jury reliance on this
theory of accountability is still another reason for reversal.
DELIBERATE HOMICIDE--SUBSTANTIAL EVIDENCE DOES NOT SUPPORT
EACH OF THE THEORIES OF ACCOUNTABILITY SUBMITTED TO THE
JURY
    As previously stated, the deliberate homicide charge
was submitted to the jury under two basic theories:    that
Fitzpatrick had "purposely or knowingly" killed Monte Dyckman,
or that Fitzpatrick had killed Monte Dyckman while committing
another felony (the felony-murder rule).    As I have also
explained, the probability is that because of the mandate
of instruction no. 38, the jury convicted Fitzpatrick by
application of the felony-murder rule.     However, not all
theories of accountability submitted to the jury under the
felony-murder rule are supported by substantial evidence.
The possibility therefore exists that the jury found
Fitzpatrick guilty by application of an underlying felony
that was not supported by substantial evidence.    This
possibility is yet another reason for reversal of the
deliberate homicide conviction.
     First, under the felony-murder rule, the jury may have
relied on aggravated kidnapping as the underlying felony
involved.   1 f so, the deliberate homicide conviction cannot
             '
stand for the same reasons that I have concluded the
aggravated kidnapping conviction cannot stand.     Second,
as I have also explained in discussing the robbery charge,
the jury may have relied on robbery as the underlying
felony in applying the felony-murder rule to find Fitzpatrick
guilty of deliberate homicide.    But assuming a jury relied
on robbery as the underlying felony, the deliberate
homicide conviction can be upheld only if all robbery theories
of accountability are supported by substantial evidence.
As I explain next, not all robbery theories of accountability
are supported by substantial evidence.    Therefore a
deliberate homicide conviction based on robbery as the
underlying felony for application of the felony-murder rule,
must be reversed because of the possibility that the jury
relied on a robbery theory of accountability not supported
by substantial evidence.
DELIBERATE HOMICIDE--LACK OF SUBSTANTIAL EVIDENCE
     One theory of accountability under the robbery charge
                                 (11, MCA) ,
(subsection (a) of section 45-5-401/ was that in the
course of committing a theft, Fitzpatrick -
                                          inflicted bodily
injury on Monte Dyckman.    The obvious intent of subsection (1)
(a) is to elevate theft to robbery if bodily injuries are
inflicted by a defendant in the course of committing a
theft.   But it is more than a little incongruous to hold
that gunshot wounds which result in instantaneous death
are nonetheless bodily injuries within the meaning of
subsection (a).     Further, subsection (c) of section 45-5-
 (1) MCA,
401/is the appropriate theory of accountability under the
facts of this case.     This subsection provides that a theft
is elevated to robbery if, in the course of committing the
theft, the defendant commits "any felony -- theft."
                                         other than
(Emphasis added.)     The appropriate charge, therefore, would
have been an allegation that Fitzpatrick, in the course
of committing a theft, committed a homicide.   Subsection
(c) exists precisely to cover a factual situation such as
exists in this case.

     Fitzpatrick did not, then, within the meaning of
                                (1) MCA,
subsection (a) of section 45-5-401/ inflict bodily injuries
upon Monte Dyckman.    This subsection does not transform a
theft into a robbery where application of lethal force
results in instantaneous death.   Fitzpatrick was not properly
charged under subsection (a) and because no substantial
evidence exists to support a conviction on this basis, the
deliberate homicide conviction must be reversed.
     Even assuming, however, that subsection (a) can be
constitutionally applied to the facts of this case, two
more defects exist with relation to the theories of
accountability submitted to the jury under subsections (1)
(a) and (c) which would require reversal of the robbery
conviction in any event.
     Under subsection (b) of section 45-5-401(1) , MCA, it was
charged that Fitzpatrick, in the course of committing a
theft, "threatened to inflict harm" on Monte Dyckman or
that he put Monte Dyckman in "fear of immediate bodily
injury."   The record is barren of any words spoken by
Fitzpatrick or any conduct of Fitzpatrick which shows that
he threatened to inflict harm on Monte Dyckman.    And the
record is also barren of any evidence that Monte Dyckman
was placed in "fear of immediate bodily injury."   No witness
testified that Dyckman was in "fear of immediate bodily
injury."   And no witness testified to any words uttered by
Monte Dyckman or to any conduct of Monte Dyckman that would
indicate he was in "fear of immediate bodily injury."     A
conclusion can be justified only by an impermissible
assumption that anyone who is taken away in a car is in
"fear of immediate bodily injury."    Substantial evidence
to convict by application of subsection (b) of the robbery
statute, does not exist.   Because an appellate court cannot
determine whether the jury applied this theory in finding
Fitzpatrick guilty of deliberate homicide under the felony-
murder rule, the possibility that the jury did so compels
a reversal.
     Finally, if the jury applied subsection (c) of section
45-5-401 in deciding upon an underlying felony to apply under
the felony-murder rule, several defects exist.   As I explained
earlier, the chances are that the jury found Fitzpatrick
guilty under the felony-murder rule because of the mandatory
language of instruction no. 38.
    As I also explained earlier in this dissent, Fitzpatrick
was not charged with accountability under subsection (c) of
the robbery statute, but the jury was nonetheless instructed
that it could reach a verdict based on its conclusion that
Fitzpatrick, in committing a theft, also committed "any
                                                    -

felony   other than theft."   (Instruction no. 22, supra.)
This open-ended instruction, neither limiting the felonies
involved nor defining the felonies involved, makes it
impossible for an appellate court to determine the felony
the jury agreed on as constituting the underlying felony to
convict of robbery.   Did the jury decide that Fitzpatrick,
in the course of committing a theft, committed some other
nonspecified and nondefined felony?    If so, there is no
practical way an appellate court can review a substantial
evidence question, and reversal of the robbery conviction
is not only required,so is reversal of the deliberate
homicide conviction.
    Assuming, on the other hand, that the jury, in convicting
Fitzpatrick of robbery under subsection (c), relied on
aggravated kidnapping as the underlying felony, the robbery
conviction can stand only if the evidence was sufficient on
each of the theories of aggravated kidnapping submitted to
the jury.   But that is not the case.
    As I explained in discussing the aggravated kidnapping
conviction, substantial evidence does not support all theories
of accountability submitted to the jury on this charge.    In
fact, substantial evidence is lacking on two of the three
theories submitted to the jury.   This has a direct effect on
the robbery conviction.   The robbery conviction cannot stand
because the jury may have relied on subsection (c) of the
robbery statute ("any felony   other than theft") in that the
underlying felony was that of aggravated kidnapping.    The
possibility exists then, that in finding Fitzpatrick guilty
of robbery, the jury relied on one or both of the aggravating
theories of accountability for the crime of aggravated
kidnapping which were not supported by substantial evidence.
The defect in the aggravated kidnapping evidence affects the
validity of the robbery conviction, which in turn affects
the validity of the deliberate homicide conviction based
on application of the felony-murder rule.
     It is clear therefore that the deliberate homicide
conviction cannot be upheld if the jury reached its verdict
by application of the felony-murder rule.   The deliberate
homicide conviction can only be upheld if the record revealed
that the jury convicted Fitzpatrick based on application
of the "purposely or knowingly" theory rather than the felony-
murder rule.    Not only is it impossible to determine that
the jury did this, the probability is that the jury, because
of the mandatory language of instruction no. 38, applied the
felony-murder rule in convicting Fitzpatrick of deliberate
homicide.     General and well-recognized rules of appellate
procedure require that the deliberate homicide conviction
be reversed.
     The second robbery theory of accountability charged
is the allegatbn that Fitzpatrick, while in the course of
committing a theft, threatened to inflict bodily harm on
Monte Dyckman or that Monte Dyckman was placed in fear of
immediate bodily injury.    Section 45-5-401 (1)(b), ?"ICA. -1
have also discussed the evidence on this theory while
analyzing the deliberate homicide conviction, and I concluded
that substantial evidence does not support this theory of
commission.    Again, because the jury may have relied on
this theory of accountability in reaching its verdict, the
robbery conviction must be reversed.
     The third theory of accountability, not charged, but
nonetheless submitted to the jury in the instructions, is
an allegation that Fitzpatrick, while in the course of
committing a theft, committed "any felony     other than theft."
See section 45-5-401 (1) , i4CA. If the jury applied this
                        /b)
theory of accountability in convicting Fitzpatrick of robbery,
two substantial evidence problems arise.
    Assuming that the jury found the "other felony" to be
that of aggravated kidnapping, the robbery conviction is
valid only if the underlying conviction of aggravated kid-
napping is supported by substantial evidence on all theories
of accountability submitted to the jury.     I have already
discussed the aggravated kidnapping charge and concluded
that substantial evidence does not support each of the
theories submitted to the jury.        The robbery conviction
must also be reversed because the sufficiency of the evidence
under the second theory of accountability depends in turn
on the sufficiency of the evidence supporting each of the
theories submitted to the jury on the aggravated kidnapping
charge.   The jury may have relied on a theory not supported
by substantial evidence.
    Assuming, on the other hand, that the jury found the
"other felony" to be that of deliberate homicide, the robbery
conviction must still be reversed because the sufficiency
of the evidence under this theory depends on the sufficiency
of the evidence relating to the theories of accountability
alleged in the felony-murder allegation.       Because I have
concluded that substantial evidence does not support all
theories of accountability submitted to the jury under the
felony-murder rule, the robbery conviction must fall for the
same reason.      The jury may have relied on a theory of account-
ability not supported by substantial evidence.
     Still another reason exists to reverse the robbery
conviction as well as the aggravated kidnapping conviction.
The open-ended instructions given in the case of robbery,
permitted the jury to convict Fitzpatrick if it found that
                                                       -
in the course of committing a theft, he had committed "any
felony    other     than    theft. "    The open-ended instructions
given on the charge of aggravated kidnapping permitted the
jury to convict Fitzpatrick if it found that in the course
of restraining Monte Dyckman, he had the purpose to facilitate
the "commission - - felony."
                of any                 In each situation the "any
felony" option was not limited in the charge nor
identified and defined in the instructions.    In reviewing
for the sufficiency of the evidence, an appellate court
is therefore left in a position of not knowing whether the
jury relied on a felony not specifically covered in the
charges or identified and defined in the instructions.
Under these circun!stances, review of a substantial evidence
question is impossible.   For this reason alone, general and
well-recognized principles of appellate review require that
both the robbery and aggravated kidnapping convictions be
reversed.
PART E--
~ N L Y JURY SHOULD BE CONSTITUTIONALLY PERMITTED TO DECIDE
      A
WHETHER A DEFENDANT CONVICTED OF A CAPITAL CRIME SHOULD
LIVE OR DIE
     Fitzpatrick claims, as did Coleman in Coleman - and
                                                   I1
Coleman 111, that only a jury should be constitutionally
permitted to make that fateEul, final decision whether he
should live or die.   As a subsidiary issue, Fitzpatrick also
argues that only a jury should decide those facts necessary
to a determination of whether the death penalty should be
imposed.   I agree.
     As I noted in Coleman 111, and as the majority has
noted here, the United States Supreme Court, in Lockett v.
Ohio (1978), 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973, in
vacating the death sentence on other grounds, expressly
refused to rule whether a jury is required to make the
decision of whether a capitally convicted defendant should
live or die.   The Court stated:   "Nor do we address her
contention that the Constitution requires that the death
penalty be imposed by a jury   . . ."   438 U.S. 609, n. 16.
     In my dissent to Coleman - (1979), - Mont . - 605
                              I1                  ,
P.2d 1022, 1045, 36 St.Rep. 1157A, 115711, and in my dissent
to Coleman I11          - Mont.
 at 1401, I stated that if a jury is to be considered the
 conscience of the community, then only the jury should be
 constitutionally permitted to decide whether a defendant
 should live or die.   What I said in Coleman - and - applies
                                              I1    111,
equally here.
     For example, if a jury was to sit in final judgment in
this case, the common sense of the jury would prevail and it
would have determined that Fitzpatrick was not "lying in
wait or ambush" within the meaning of this aggravating
factor set forth in section 46-18-303(4), MCA.   See part
of my dissent here, and my dissent in Fitzpatrick - 606
                                                  11,
P.2d 1382-1383, 37 St.Rep. 221J-2212, where I conclude that
Fitzpatrick's conduct did not come within the scope of this
 statutory aggravating factor.
     Here, both the sentencing court and the majority have
expanded the meaning of "lying in wait or ambush" far beyond
any reasonable interpretation, which illustrates how elastic
these aggravating factors can be when a sentencing court is
determined to impose the death penalty, and when an appellate
court is determined to approve the death sentence imposed.
The interpretation given to that phrase in this case emphasizes
the necessity that a jury, rather than a judge, make these
underlying factual decisions which allow the imposition of a
 death sentence.
 PART F--
/DENIAL OF MEANINGFUL APPELLATE REVIEW

(1) The Retroactive Application of the Death Penalty
Sentencing Statutes to Fitzpatrick Violates the Ex Post
Facto Provisions of the Montana and United States Constitution.
      In Coleman - 605 P.2d 1000, the majority held that
                 11,
the death penalty statutes passed after the commission of
the crimes could be applied to Coleman.   I dissented.   605
P.2d 1024-1029.   The same thing happened to Fitzpatrick in
his appeal and the majority ruled that the issue was controlled
by Coleman -
           11.    Fitzpatrick - 606 P.2d 1358-1360.
                              11,                      I again
dissented, 606 P.2d 1368-1369, and concluded    that the
burdens imposed on Fitzpatrick by application of the new
statutes were plainly to his disadvantage, and therefore
the statutes could not be retroactively applied.
     In his petition for post-conviction relief, Fitzpatrick
raised this issue again, and the trial court denied this
claim by ruling that Coleman - and Fitzpatrick - were con-
                             I1                I1
trolling.   Fitzpatrick has again raised this issue on
appeal.   Even though this Court has unequivocally committed
itself to applying a United States v. Sanders analysis in
determining whether an issue previously raised and decided is
res judicata, the plain fact is that the majority has not
even mentioned the ex post facto issue in its opinion.     If
Sanders means anything at all, it means that the majority
has a duty to apply the three criteria before determining
that it is res judicata.   But Sanders has not been applied
at all; anyone reading the majority opinion would not know
that the issue of retroactive application of the death
penalty statutes had again been raised.    The majority opinion
is not even a pro forma attempt to comply with Sanders, let
alone an attempt to engage in a meaningful discussion of the
ex post facto issue.
     The issue has substantial merit.     In discussing the
issue of whether section 46-18-305, MCA, unconstitutionally
shifts the burden to defendant to prove that any mitigating
factors are "sufficiently substantial to call for leniency,"
the majority, although it denied this claim, admits for the
first time that the statute does shift the burden to the
defendant.     This burden, then, was imposed on Fitzpatrick
when he was sentenced under the death penalty statutes
enacted after the crime was committed.      By contrast, the
death penalty statutes in effect when the crime was committed,
provided that for a deliberate homicide conviction, the
death penalty would be imposed if there were "no" mitigating
factors.     Sections 94-5-105 and 94-5-304, R.C.M.   1947.   In
other words, any mitigating factor was sufficient to defeat
the imposition of the death penalty.     But this was not so
under the new statutes which were applied to Fitzpatrick.
This change in the law is "plainly to the disadvantage of [the
Petitioner]" and therefore cannot be permitted under either the
federal or state constitution.     Lindsey v. Washington (1937),
301 U.S. 397, 401-402, 57 S.Ct. 797, 799, 81 L.Ed. 1182, 1186.
In addition, under the majority reasoning in McKenzie - -
                                                      I, 11,
and - the old statutes permitted a review of the sentence
    111,
in its entirety, but this Court's review under the new
statutes, is not nearly as broad.
     The fact that the majority has now admitted that section
46-18-305, MCA, shifts the burden to defendant to prove that
there are mitigating factors "sufficiently substantial to
call for leniency," undermines the majority's conclusion that
the ex post facto provisions were not violated.       By admitting
the burden shifting effect of section 46-18-305, the majority
has necessarily invoked consideration of the ex post facto
prohibitions of the Montana and United States Constitutions.
By failing to apply the Sanders criteria to the ex post facto
claim, and by evading the issue altogether, the majority
has further undermined its position by failing to give
meaningful appellate review to the issues presented by
Fitzpatrick.
                                 -84-
(2) In Permitting a Death Sentence for Deliberate Homicide
the ÿ rial Court and the Majority have Ignored and Misapplied
the Standards of North Carolina v. Pearce.
     After his first trial, Fitzpatrick was sentenced to 100
years for his conviction on the crime of deliberate homicide.
After this Court's reversal and remand for another trial
(Fitzpatrick - and after again being convicted of deliberate
             I)
homicide, Fitzpatrick was given the death penalty.    Although
this Court has no state standards for this situation, North
Carolina v. Pearce (1969), 395 U.S. 711, 89 S.Ct. 2072, 23
L.Ed.2d 656, permits a more severe sentence after a second
conviction only if it is based on objective conduct of the
defendant occurring after the first sentence.     395 U.S. at
726, 89 S.Ct. at 2081., 23    L,Ed.2d   at 670.   The sentencing
court acknowledged that in imposing the death penalty, it
was violating North Carolina v. Pearce, but it nonetheless
did so.   606 P.2d at 1376.   The trial court imposed this death
sentence even though there was absolutely no objective conduct
occurring after the first sentence      which the trial court
relied to impose the death sentence.    See my dissent in
Fitzpatrick - 606 P.2d 1370-1381, 37 St.Rep. 221G-221V.
            11,
Furthermore, I doubt that the United States Supreme Court
would ever permit the death penalty to be imposed after retrial
if it had not been imposed after the original trial.
     In paragraph 9(a) of his petition for post-conviction
relief, Fitzpatrick again raised this issue and he asked the
sentencing court to correct its earlier decision.    The
sentencing court refused to do so, however, and simply
alluded to the fact that the matter had been considered and
the Pearce standards applied in Fitzpatrick -
                                            11.

     In this appeal, Fitzpatrick again claims that this Court
and the sentencing court have misapplied and therefore violated
the Pearce standards. (Respondent's Brief at 12-16.)    By
failing to discuss or even mention the Pearce issue in its
responsive brief, the State has in effect admitted that these
standards were violated.   Fitzpatrick again brought this
fact to our attention in his reply brief, and noted that
the State had not replied to his argument.     (Respondent's
Reply Brief, at 6.)   But now the majority opinion has also
evaded this issue by failing to mention that it has been
raised.   If the three criteria of Sanders v. United States
mean anything, how can the majority fail to discuss Fitzpatrick's
allegation that the sentencing court and this Court (Fitzpatrick

- have emasculated the standards set forth in North Carolina
11)

v. Pearce.
     I adhere to my dissent in Fitzpatrick - - on this issue.
                                           I1

606 P.2d 1375-1381, 37 St.Rep. 221M-221V, in which I pointed
out that the trial court relied on two impermissible factors
in sentencing Fitzpatrick to death after the second trial.
First, it relied on the testimony of Christine Fetters, who
testified at the second trial about Fitzpatrick's conduct
before the first trial.    This, I concluded, was manifestly
in violation of the Pearce standards.    606 P.2d 1378-1381,
37 St.Rep. 221R-221V.   Fitzpatrick now cites a case which
holds that Pearce means exactly what it says:    only conduct
occurring after the first sentencing can be considered, and
this necessarily excludes consideration of new information
about the crime.   United States v. Hawthorne (3rd Cir. 1976),
532 F.2d 318, cert.den. 429 U.S. 894 (1976).
     Second, in sentencing Fitzpatrick to death, the trial
court relied (although ever so vaguely) on Fitzpatrick's
demeanor on the witness stand at the second trial.     This, I
concluded, was also manifestly in violation of the Pearce
standards.   606 P.2d at 1380, 37 St.Rep. 221T-221U.
Fitzpatrick now cites a case which holds that the demeanor
of the defendant on the witness stand cannot be considered.
United States v. Markus (2d Cir. 1979), 603 F.2d 409.
     It is clear, therefore, that the majority has nullified
the Pearce standards in permitting the death penalty for
Fitzpatrick's deliberate homicide conviction.     I add to this
an additional erroneous factor on which the majority relied
in struggling to get out from under the Pearce standards.

                                    -
The majority stated in Fitzpatrick I1 that in Pearce the
same trial judge presided over both trials and also imposed
the sentence, but that a new judge presided over Fitzpatrick's
second trial and it was this judge who imposed the death
penalty.   606 P.2d at 1358, 37 St.Rep. at 212.   Based on
this distinction, the majority then stated that the element
of vindictiveness was present in Pearce, but a new judge
presiding over Fitzpatrick's second trial   elininated this
element of vindictiveness.    In dissent, I stated that not
only is this an impermissible distinction, but that a new
judge had in fac't presided over the second trial of Pearce,
and therefore that the attempted distinction cannot stand.
That a different trial judge presided over the second trial
of Pearce cannot be denied.   See, State v. Pearce (1966),
268 N.C. 707, 1 5 1 S.E.2d 571.
     Beyond question, the trial court has ignored the Pearce
standards and the majority has again permitted it     to ignore
these standards for imposing a more severe sentence after the
second trial.   Failure to discuss the issue raised on appeal
can lead only to the conclusion that the three criteria test
of Sanders v. United States when determining whether an issue
                                     has already been abandoned.
is res judicata, or whether it should be again decided4 The
failure to apply this test, togetherwith the obvious
violation of the Pearce standards, only underscores the
obvious:    not only must the death sentence for the deliberate
homicide conviction be set aside, the entire death sentence
must be set aside.
    Where a sentencing court and where the highest appellate
court in a state refuse to apply standards mandated by the
United States Supreme Court, the legitmacy of the death
sentence for deliberate homicide is not only called into
question, the legitimacy of the death penalty imposed for
the crime of aggravated kidnapping is also called into
question.    I would vacate both death sentences imposed and
order that the death penalty cannot again be considered for
either crime.
(3) The Statutory Aggravating Circumstance of "Lying in
Wait or Ambush" Has Been Improperly Expanded to Apply to
This Case.
     In sentencing Fitzpatrick to death for deliberate
homicide, the trial court found, by stretching the aggravating
circumstance statute beyond the breaking point, that the
death occurred while Fitzpatrick was "lying - - -or
                                            in wait
ambush."    (Emphasis added.)   This Court concluded in Fitzpatrick

- without analysis, that Fitzpatrick committed the homicide
11,
"while lying in wait or ambush."       606 P.2d at 1361, 37 St.Rep.
at 216.    Although Fitzpatrick did not contest that finding in
his second appeal, this Court nonetheless has a mandatory duty
of appellate review mandated by the United States Supreme
Court and by Montana statute.     I dissented to the sentencing
court's finding and concluded that the homicide was -
                                                    not
committed "while [Fitzpatrick] was lying in wait or ambush,"
and therefore the death penalty could not be imposed.       606
P.2d 1381-1384, 37 St.Rep. 221V-22lZ.       I adhere to those
views today.
                                -88-
        The sentencing court and the majority here have expanded
the meaning of the phrase, "while lying in wait or ambush,"
to such an extent, that it fails to provide any "inherent
restraint on the arbitrary and capricious -inflictionof the
death sentence."     Godfrey v. Georgia (1980), 446 U.S. 420,
100 S.Ct. 1759, 64 L.Ed.2d      398.       Rather, it is an example
of how the sentencing courts and appellate courts
are giving expansive interpretations of the death penalty
statutes in order to liberally impose the death penalty.         It
precisely illustrates the attitude of the state courts which
Justice Marshall condemned in Lockett v. Ohio (1978), 438
U.S. 586, at 621, 98 S.Ct. 2954, at 2973, 57 L.Ed.2d 973, at
1000.     Also see, part VIII of my dissent in Coleman I11

(1981)I - Mont.     -I             ,
                           - P.2d - 38 St.Rep. 1403.
        In his petition for post-conviction relief, Fitzpatrick
raised the issue concerning the application of the statutory
aggravating factor necessary to impose the death penalty in
                                       MCA ,
this case.    Section 46-18-303(4),/states that one aggravating
factor occurs if "[tlhe offense was deliberate homicide and
was committed by a person lying in wait or ambush."         I
stated in Fitzpatrick - and I state again today, that this
                      11,
term means the legislature has increased the sentence for
deliberate homicide if the homicide is committed while the
defendant was laying in wait and then ambushed the victim
intending to kill.       I also concluded that the application of
this aggravating factor is inapplicable here because the
sentencing judge found that the decision of Fitzpatrick to
kill was an instantaneous, impulsive action, and that it
occurred after Fitzpatrick was laying in wait or ambush in
order to commit a robbery.        606 P.2d at 1383, 37 St.Rep. at
221X.     It is by no means clear that the legislature intended
that this aggravating circumstance be applied where the
defendant plans a robbery, lays in wait, and then ambushes
his victim intending only to rob him.    And that is exactly
what happened here.
     The majority distinguishes Godfrey v. Georgia, supra,
because the Georgia death penalty statute was worded more
broadly than the Montana statute and did not imply any
inherent restraint against the arbitrary and capricious
infliction of the death sentence.    On the other hand, the
majority finds that the term "lying in wait" prescribes a
sufficiently specific standard to render the statute con-
stitutional - - -
            on its face.     I agree that the term "lying in
wait" limits the imposition of the death penalty to those
situations.    But the statute is not so clear that it can be
interpreted to apply where a homicide occurs after the
defendant "lay in wait" for the purpose not of committing a
homicide, but for the purpose of committing a robbery.
Further, the sentencing court's finding that Fitzpatrick's
decision to kill Monte Dyckman came long after he "lay in
wait," is convincing evidence that the statutory aggravating
circumstance does not apply in this case.
     This aggravating circumstance, although perhaps con-
stitutional - - -
            on its face, was unconstitutionally applied to
Fitzpatrick.    There is no evidence that Fitzpatrick lay in
wait to kill his victim.     There is no evidence to establish
that Fitzpatrick intended to kill Monte Dyckman as part of
the original robbery plan.    The trial court found that the
intent to kill Monte Dyckman arose well after the act of
"lying in wait or ambush."    This conclusion establishes that
it was impermissible for the trial court to nonetheless rule
that the aggravating factor was satisfied.
     The decision of the sentencing court and the majority
here that Fitzpatrick was "lying in wait or ambush," hardly
falls within the permissible discretion set forth in Gregg
v. Georgia:
     ". . . where discretion is afforded a sentencing
     body on a matter so grave as the determination
     of whether a human life should be taken or
     spared, that discretion must be suitably directed
     and limited so as to minimize the risk of wholly
     arbitrary and capricious     action." 428 U.S.
     at 189, 96 S.Ct. at 2932, 49 L.Ed.2d at 883.
     Instead, it confirms what Justice Marshall said in
Lockett v. Ohio, supra, about the failure of the states to
fairly or rationally administer the death penalty laws.
Based on my own experience sitting on death penalty cases, I
am compelled to echo the words of Justice Marshall.

(4) In Sentencing Fitzpatrick to Death the Trial Court
Improperly Relied on a Previous Unconstitutionally Infirm
Conviction.
     Fitzpatrick claims that the trial court, in considering
the existence of any possible mitigating factors, improperly
relied on a prior conviction that had been reversed.    Burgett
v. Texas (1967), 389 U.S. 109, 88 S.Ct. 258, 19 ~ . ~ d . 2319,
                                                            d
clearly holds that a sentencing court cannot consider a
constitutionally infirm conviction procured in violation of
the Gideon standards.    And we have also held in State v.
Olsen (1980),              ,
                    Mont. - 614 P.2d 1061, 37 St.Rep. 1313,
that infirm convictions should not be considered %r sentencing
purposes.   Nevertheless, the trial court in fact indirectly
considered an infirm conviction, and the majority has given
its approval.     This effectively negates the Burgett and
Olsen holdings.
     The trial court accomplished indirectly what it could
not do directly.    Fitzpatrick had been convicted of homicide
while in prison on another conviction, but the homicide
conviction was reversed and dismissed by this Court because,
among other things, he was denied counsel.       Fitzpatrick v.
Crist (1974), 165 Mont. 382, 528 P.2d 1322.      Under Burgett
and Olsen, supra, Fitzpatrick's conviction could not be
considered for any purpose.    Here the sentencing court
recognized Burgett in one breath, but in the next breath
nullified Burgett by holding that Fitzpatrick's reversed
homicide conviction is    ". . . material   in demonstrating that
the defendant's conduct in prison is not a source of mitigation
with respect to the sentencing issues."      In other words, the
sentencing court effectively declared it would consider this
conviction as casting a shadow over the entirety of Fitzpatrick's
conduct while he was in prison.    To properly comply with
Burgett, the sentencing court should have disregarded the
homicide conviction, and then determined whether the remainder
of Fitzpatrick's conduct while he was in prison constituted
a source of mitigation.
     The majority has totally evaded the issue of whether
Fitzpatrick's constitutionally infirm homicide conviction
was held against him at the sentencing proceeding.      The
majority stated that:
    "Here the judge declared that he could not
                                           -
    and would -- on the prior conviction.
              not rely
    - find - -
    We - -this to be sufficient to safeguard
    petitioner's interest in an appropriate and
    constitutional sentence." (Emphasis added.)
     It is not sufficient that the trial court only declare
its nonreliance on a constitutionally infirm conviction, nor
is it sufficient for this Court to hold that this declaration
is sufficient.   The fact is that the sentencing court -
                                                       did
rely on the constitutionally infirm conviction by refusing
to look at Fitzpatrick's entire conduct record while in
prison, aside from the constitutionally infirm conviction.
The majority has evaded the issue and denied the defendant
meaningful appellate review.
(5) This Court Has Failed to Obey a Statutory Directive
Requiring Us to Promulgate Rules for Proportional Review of
Death Sentences and to Conduct Review According to Those
Rules.
      Before proceeding to Fitzpatrick's contentions regarding
our failure to properly review his sentence, I first must
state that this Court has violated section 46-18-308, MCA,
which requires us to promulgate rules by which proportional
review is conducted.    Coleman raised this issue in Coleman

- and - and in Coleman 111, in part VIII of my dissent
I1    111,
                     ,
to Coleman - - P.2d - 38 St.Rep. at 1405, I agreed
           111,
that we had failed to promulgate the rules as required by
statute.    That same situation exists with relation to
Fitzpatrick.   We still have failed to promulgate rules as
mandated by statute.    How, then, can we permit imposition of
a death sentence?      Before any death penalty can be carried
out, this Court has a duty to first adopt rules governing
proportional review, and then to review the death sentence
imposed by application of these rules.
(6) In Conducting Proportional Review !?his Court Has Not
Adhered to the Mandate of the United States Supreme Court.
      Fitzpatrick makes essentially the same claim as did
Coleman in Coleman 111, that we failed to comply with the
proportional review mandated by Gregg v. Georgia (1976),
428   U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859.     Gregg requires
that on mandatory review the state's highest appellate court
consider "whether the sentence of death is excessive or
disproportionate to the penalty imposed in similar cases,
considering both the crime and the defendant."
      I take the same position here as I took in Coleman 111,
where I stated:
     ". . . our system of review must allow access
     to and a consideration of all reasonably recent
     cases in this state where a defendant has been
     convicted of either deliberate homicide or
     aggravated kidnapping.
     "Our duty is to review each of these cases
     and consider the nature of the crime involved
     and the individual characteristics of the persons
     who committed the crimes. We must then compare
     those situations with the crimes committed here
     and with the personal characteristics of the
     person involved here. This Court has wholly
     failed to provide proportional review as mandated
     by Gregg, and I therefore fail to see how this
     Court can sanction the imposition of the death
     penalty ".     Mont.            - P.2d -        I

     ,    38 S . .
              t%     1 3- 5 2 , ~ 6 5 ~
                        -


     I would hold then that Fitzpakrick has not had
proportional review as mandated both by statute and by
Gregg v. Georgia.   This Court must first promulgate the
rules by which proportional review is to be governed, and
then we must again review Fitzpatrick's death sentence by
application of those rules and by adhering to the spirit
 of Gregg v. Georgia.
 PART G--
/THE DEATH PENALTY STATUTE UNCONSTITUTIONALLY SHIFTS THE
 BURDEN TO DEFENDANT TO SHOW THAT HIS LIFE SHOULD BE SPARED
     Fitzpatrick claims, as did Coleman in Coleman 111, that
section 46-18-305, MCA, unconstitutionally shifts the burden
to defendant to show his life should be spared. The statute
provides in pertinent part that the sentencing court "shall
impose a sentence of death if it finds one or more of the
aggravating circumstances and finds that there are no
mitigating circumstances sufficiently substantial to call
for leniency."      The majority now admits that the statute
does shift the burden of persuasion, but holds that it is
not unconstitutional.       Mont .       I-   P.2d         I




     In Coleman 111, the majority evaded this issue by
disposing of it and 12 other issues in part V of its omnibus
ruling.   It was raised as issue 0 in Coleman 111. In part V
                                  0
of my dissent in Coleman -
                         111,       - P.2d    ,
                                             - 38 St.Rep. at

1399, I concluded not only that the statute does shift the
burden to the defendant to convince the sentencing court his
life should be spared, but that it is an unconstitutional
shifting of the burden of persuasion. What I said there
applies equally here.
     I noted in my dissent in Coleman 111, as the majority
notes here, that the United States Supreme Court in Lockett
v. Ohio, supra, specifically declined to rule on this issue
in vacating the death sentence on other grounds.
     I further note that the majority has now placed itself
in a bind by belatedly admitting that this statute shifts
the burden of persuasion to defendant to prove his life
should be spared.    The majority has already held that the
retroactive application of the new statutes imposed no
greater burden on the defendant than before.       Coleman -
                                                           11,
     Mont   . -, 605 P.2d   at 1010-1015, 37 St.Rep. at 214.
And the majority held the same in Fitzpatrick -
                                              11,      Mont. at
                     -59
   ,
- 606 P.2d at13584 37 St.Rep. at 212-214.       The fact
is, however, that under the old statutes Coleman and Fitzpatrick
did not have this burden.      See my dissent in Fitzpatrick -
                                                             11,
606 P.2d at 1368-1369.      The majority's declaration that the
statute is an indirect admission that section 45-18-305, JICAf
flies in the face of the ex post facto provisions of the
United States and Montana Constitutions, by imposing a
higher burden on the defendant than did the former statutes.
 PART H--
AN EVIDENTIARY HEARING IS REQUIRED SO THAT FITZPATRICK CAN
PRESENT EVIDENCE THAT DEATH BY HANGING IS CRUEL AND UNUSUAL
PUNISHMENT
     Fitzpatrick claims, as did Coleman in Coleman 111, that
death by hanging constitutes cruel or unusual punishment and
therefore violates Art. 11,     §   22, of the Montana Constitution,
and the Eighth and Fourteenth Amendments to the United
States Constitution.      In its summary and wholesale disposition
of this issue in part VII of Coleman 111, the majority
denied Coleman's claim.      That claim is now denied to Fitzpatrick.
In part VII of my dissent in Coleman 111, I stated that
Coleman raised a substantial claim and that he was entitled
to an evidentiary hearing to determine this issue.
P.2d at        ,   38 St.Rep. at 1403.   My dissent in Coleman I11
shall also constitute my dissent here.
CONCLiUSION
     In Fitzpatrick - I dissented only on the death
                    11,
penalty issues.      The unanimous jury verdict issue was not
raised then, and neither was the sufficiency of the evidence
issue raised as it applies to the alternative theories of
accountability submitted to the jury on each charge.       On
both the unanimous verdict issue and the sufficiency of the
evidence issues, all three convictions must be reversed.
Furthermore, the instructions are inconsistent with relation
to the deliberate homicide charge and aggravated kidnapping
charge, and this is another reason those convictions must
be reversed.       It is inconceivable to me how any appellate
court would uphold the convictions where such error has
occurred.     And the death penalty was imposed for the deliberate
homicide and the aggravated kidnapping conviction is a
compelling reason why the convictions must be reversed.
     Aside from the trial issues, the trial court sentenced
Fitzpatrick to death in violation of federal constitutional
standards, and in violation of our own statutory sentencing
standards.     Add to this the failure of this Court in
Fitzpatrick - and now in Fitzpatrick - to provide meaning-
            11,                      111

ful review of the death penalty issues raised both at the
t r i a l c o u r t and b e f o r e t h i s C o u r t , and w e have a c l a s s i c

case f o r federal court intervention.                       Once a g a i n I must
s t a t e t h a t t h i s d e a t h p e n a l t y c a s e h a s confirmed m y b e l i e f

t h a t s t a t e c o u r t s are i n c a p a b l e of r a t i o n a l l y and f a i r l y

a d m i n i s t e r i n g d e a t h p e n a l t y laws.
Mr.    J u s t i c e Frank B. Morrison, J r . , d i s s e n t i n g :

         T h i s d i s s e n t must b e g i n w i t h t h e c o n v i c t i o n f o r r o b b e r y .

I f t h a t c o n v i c t i o n i s d e f e c t i v e , and i f t h e r o b b e r y c o n v i c t i o n

was used a s a b a s i s f o r c o n v i c t i o n f o r a g g r a v a t e d k i d n a p p i n g

and d e l i b e r a t e homicide, t h e n t h e l a t t e r two c o n v i c t i o n s

would a l s o have t o be s e t a s i d e .

        J u s t i c e Shea i n d i c a t e s , and t h e r e c o r d s u p p o r t s h i s

a s s e r t i o n , t h a t d e f e n d a n t was c h a r g e d w i t h r o b b e r y under

s u b s e c t i o n s a and b of s e c t i o n 45-5-401 (1)            .     Yet a s J u s t i c e

Shea p o i n t s o u t t h e t r i a l c o u r t i n s t r u c t e d t h e j u r y a s t o

s u b s e c t i o n c of t h a t s t a t u t e which a l l o w s c o n v i c t i o n f o r

r o b b e r y i f , d u r i n g t h e commission of a t h e f t , t h e d e f e n d a n t

commits any o t h e r f e l o n y .            S u b s e c t i o n c was n o t c h a r g e d b u t

was g i v e n t o t h e j u r y a s a n a l t e r n a t i v e means of f i n d i n g t h e

d e f e n d a n t g u i l t y of r o b b e r y .   T h i s was e r r o r .     Furthermore,

an i n s t r u c t i o n i s erroneous t h a t allows t h e jury t o convict

a d e f e n d a n t on t h e b a s i s of f i n d i n g t h e d e f e n d a n t committed

"a f e l o n y " where a f e l o n y h a s n o t been s p e c i f i e d and d e f i n e d

f o r the jury.           I n o t h e r words, t h i s t y p e of i n s t r u c t i o n i s

e r r o n e o u s b e c a u s e i t a l l o w s t h e j u r y t o s p e c u l a t e and p r e v e n t s

t h e d e f e n d a n t from knowing t h e c h a r g e and p r e p a r i n g a d e f e n s e .

        There i s a n o t h e r and more g l a r i n g e r r o r i n t h e r o b b e r y

instruction.            The C o u r t gave t h e f o l l o w i n g i n s t r u c t i o n :

                 "To s u s t a i n a c h a r g e of r o b b e r y , t h e S t a t e
                 must p r o v e t h a t t h e d e f e n d a n t , d u r i n g t h e
                 c o u r s e of committing o r a i d i n g o r a b e t t i n g
                 i n committing, a t h e f t , e i t h e r :

                 "First:           I n f l i c t e d , o r aided o r abetted i n
                 i n f l i c t i n g , b o d i l y i n j u r y upon Monte Dyckman,
                 or

                 "Second:            Threatened o r aided o r a b e t t e d i n
                 t h r e a t e n i n g t o i n f l i c t b o d i l y i n j u r y upon
                 Monte Dyckman o r p u r p o s e l y o r knowingly p u t ,
                 o r a i d e d o r a b e t t e d i n p u t t i n g Monte Dyckman
                 i n f e a r of immediate b o d i l y i n j u r y , o r
               "Third:  Committed o r a i d e d o r a b e t t e d i n
               committing any f e l o n y o t h e r t h a n t h e £ t.

               " I n t h e c o u r s e of committing a t h e f t a s used
               h e r e i n c l u d e s a c t s which o c c u r i n a n a t t e m p t
               t o commit o r i n t h e commission of t h e f t o r i n
               f l i g h t a f t e r t h e a t t e m p t o r commission.

               " I f you f i n d from your c o n s i d e r a t i o n of a l l
               t h e e v i d e n c e t h a t any of t h e s e p r o p o s i t i o n s
               h a s been proved beyond a r e a s o n a b l e d o u b t ,
               t h e n you s h o u l d f i n d t h e d e f e n d a n t g u i l t y of
               robbery.

               " I f , on t h e o t h e r hand, you f i n d from your
               c o n s i d e r a t i o n of a l l t h e e v i d e n c e t h a t none
               of t h e s e p r o p o s i t i o n s h a s been proved beyond
               a r e a s o n a b l e d o u b t , t h e n you s h o u l d f i n d t h e
               d e f e n d a n t n o t g u i l t y . I' ( I n s t r u c t i o n No. 2 2 )

       The o n l y o t h e r i n s t r u c t i o n which b e a r s upon t h e o f f e n s e

of r o b b e r y i s I n s t r u c t i o n No. 1 i n which t h e C o u r t r e a d t o

t h e jury t h e charge a g a i n s t defendant.                 The a p p l i c a b l e

p o r t i o n of t h a t i n s t r u c t i o n reads as follows:

               "COUNT THREE

                        "On o r a b o u t A p r i l 5, 1975, Bernard
              James F i t z p a t r i c k , d i d , a t Hardin, Big Horn
              County, Montana, commit t h e c r i m e of
              ROBBERY, t o - w i t :          I n t h a t Bernard James
              F i t z p a t r i c k ( a ) d i d , w h i l e i n t h e c o u r s e of
              committing, o r a i d i n g , o r a b e t t i n g , o r
              agreeing t o a i d o r abet, o r attempting t o
              a i d o r a b e t i n committing a t h e f t of money
              and/or checks of t h e H a r d i n , Montana Safe-
              way S t o r e , i n f l i c t e d , o r a i d e d , o r a b e t t e d ,
              o r agreed t o a i d o r abet, o r attempted t o
              a i d o r a b e t i n i n f l i c t i n g bodily i n j u r y
              upon Monte Dyckman, o r ( b ) d i d , w h i l e i n
              t h e c o u r s e of committing, o r a i d i n g , o r
              a b e t t i n g , o r agreeing t o a i d o r a b e t , o r
              a t t e m p t i n g t o a i d o r a b e t i n committing, a
              t h e f t of money and/or c h e c k s of t h e H a r d i n ,
              Montana Safeway S t o r e , t h r e a t e n e d t o i n -
              f l i c t b o d i l y i n j u r y upon Monte Dyckman o r
              p u r p o s e l y o r knowingly p u t Monte Dyckman
              i n f e a r of immediate b o d i l y i n j u r y , o r
              aided, o r a b e t t e d , o r agreed t o a i d o r
              abet, o r attempted t o a i d o r a b e t i n
              t h r e a t e n i n g t o i n f l i c t b o d i l y i n j u r y upon
              Monte Dyckman, o r p u r p o s e l y o r knowingly
              p u t Monte Dyckman i n f e a r of immediate
              b o d i l y i n j u r y , i n v i o l a t i o n of S e c t i o n
              94-5-401 (1)( a ) o r ( b ) , R.C.M.                1947. "

       Nowhere i n t h e i n s t r u c t i o n s i s t h e o f f e n s e of t h e f t d e f i n e d .

T h e f t i s d e f i n e d i n 45-6-301,       MCA,    a s follows:
          "45-6-301.           Theft.        (1) A p e r s o n
commits t h e o f f e n s e of t h e f t when h e pur-
p o s e l y o r knowingly o b t a i n s o r e x e r t s un-
a u t h o r i z e d c o n t r o l o v e r p r o p e r t y of t h e
owner and:

     " ( a ) h a s t h e p u r p o s e of d e p r i v i n g t h e
owner of t h e p r o p e r t y ;

        " ( b ) p u r p o s e l y o r knowingly u s e s , c o n c e a l s ,
o r abandons t h e p r o p e r t y i n such manner a s
t o d e p r i v e t h e owner of t h e p r o p e r t y ; o r


         " ( c ) u s e s , c o n c e a l s , o r abandons t h e
p r o p e r t y knowing such u s e , concealment, o r
abandonment p r o b a b l y w i l l d e p r i v e t h e owner
of t h e p r o p e r t y .

        " (2)    A p e r s o n commits t h e o f f e n s e of
t h e f t when he p u r p o s e l y o r knowingly o b t a i n s
by t h r e a t o r d e c e p t i o n c o n t r o l o v e r p r o p e r t y
of t h e owner and:

     " ( a ) h a s t h e p u r p o s e of d e p r i v i n g t h e
owner of t h e p r o p e r t y ;

        "(b) p u r p o s e l y o r knowingly u s e s , c o n c e a l s ,
o r abandons t h e p r o p e r t y i n such a manner a s
t o d e p r i v e t h e owner of t h e p r o p e r t y ; o r

         " ( c ) u s e s , c o n c e a l s , o r abandons t h e
p r o p e r t y knowing such u s e , concealment, o r
abandonment p r o b a b l y w i l l d e p r i v e t h e owner
of t h e p r o p e r t y .

          " ( 3 ) A p e r s o n commits t h e o f f e n s e of
t h e f t when he p u r p o s e l y o r knowingly o b t a i n s
c o n t r o l o v e r s t o l e n p r o p e r t y knowing t h e
p r o p e r t y t o have been s t o l e n by a n o t h e r and:

     " ( a ) h a s t h e p u r p o s e of d e p r i v i n g t h e
owner of t h e p r o p e r t y ;

        " ( b ) p u r p o s e l y o r knowingly u s e s , c o n c e a l s ,
o r abandons t h e p r o p e r t y i n such manner a s
t o d e p r i v e t h e owner of t h e p r o p e r t y ; o r

        " ( c ) u s e s , c o n c e a l s , o r abandons t h e prop-
e r t y knowing such u s e , concealment, o r abandon-
ment p r o b a b l y w i l l d e p r i v e t h e owner of t h e
property     .
          " ( 4 ) A p e r s o n commits t h e o f f e n s e of t h e f t
when he p u r p o s e l y o r knowingly o b t a i n s o r e x e r t s
u n a u t h o r i z e d c o n t r o l o v e r any p a r t o f any p u b l i c
a s s i s t a n c e , a s d e f i n e d i n 53-3-101, by means o f :

          " ( a ) a knowingly f a l s e s t a t e m e n t , r e p r e s e n -
t a t i o n , o r impersonation; o r
                         " ( b ) a f r a u d u l e n t scheme o r d e v i c e .

                          " ( 5 ) A p e r s o n c o n v i c t e d of t h e o f f e n s e of
                t h e f t of p r o p e r t y n o t e x c e e d i n g $150 i n v a l u e
                s h a l l be f i n e d n o t t o exceed $500 o r be i m -
                p r i s o n e d i n t h e county j a i l f o r any term n o t
                t o exceed 6 months, o r b o t h . A p e r s o n c o n v i c t e d
                of t h e o f f e n s e of t h e f t of p r o p e r t y e x c e e d i n g
                $150 i n v a l u e o r t h e f t of any commonly domesti-
                c a t e d hoofed animal s h a l l be i m p r i s o n e d i n t h e
                s t a t e p r i s o n f o r any t e r m n o t t o exceed 1 0
                years.

                          I' (6 ) Amounts i n v o l v e d i n t h e £ t s committed
                p u r s u a n t t o a common scheme o r t h e same t r a n s -
                a c t i o n , whether from t h e same p e r s o n o r s e v e r a l
                p e r s o n s , may be a g g r e g a t e d i n d e t e r m i n i n g t h e
                v a l u e of t h e p r o p e r t y . "

        Under t h e C o u r t ' s i n s t r u c t i o n s t h e j u r y was l e f t t o

s p e c u l a t e a b o u t what t h e C o u r t meant when u s i n g t h e term

t h e f t i n t h e robbery i n s t r u c t i o n .       This omission i s obvious

error requiring reversal.

        F a i l u r e t o d e f i n e l e g a l terms was t r e a t e d by t h e Oregon

Appeals C o u r t i n S t a t e v. D e l u c i a ( 1 9 7 9 ) , 40 O r . App. 711,

596 P.2d 585.            I n t h a t c a s e t h e d e f e n d a n t a p p e a l e d from h i s

conviction of t h i r d degree a s s a u l t .               A t t r i a l , defendant

requested t h a t t h e following i n s t r u c t i o n be given:

                "A p e r s o n i n l a w f u l p o s s e s s i o n o r c o n t r o l
                of p r e m i s e s i s j u s t i f i e d i n u s i n g p h y s i c a l
                f o r c e upon a n o t h e r p e r s o n when and t o t h e
                e x t e n t t h a t h e r e a s o n a b l y b e l i e v e s i t nec-
                e s s a r y t o p r e v e n t o r t e r m i n a t e what he
                r e a s o n a b l y b e l i e v e s t o be t h e commission
                o r a t t e m p t e d commission of a c r i m i n a l t r e s -
                p a s s by t h e o t h e r p e r s o n i n o r upon t h e
                premises."            (596 P.2d a t 586)

        The a p p e l l a t e c o u r t h e l d t h a t t h e r e j e c t e d i n s t r u c t i o n

was a n a c c u r a t e s t a t e m e n t of t h e law b u t i t w a s i n c o m p l e t e

f o r f a i l u r e t o define "criminal trespass."                      The f o l l o w i n g

e x c e r p t i s t a k e n from t h e c o u r t ' s o p i n i o n :

                "The i n s t r u c t i o n , a s r e q u e s t e d , f o l l o w s
                e x a c t l y t h e language of ORS 1 6 1 . 2 2 5 ( 1 )
                which d e l i n e a t e s t h e u s e of p h y s i c a l f o r c e
                i n d e f e n s e of p r e m i s e s .    It is, therefore,
                a c o r r e c t s t a t e m e n t of law i n s o f a r a s i t
                goes.        Its d e f e c t l i e s i n i t s incomplete-
                ness.        ORS 1 6 1 . 2 2 5 ( 1 ) , a s r e p e a t e d i n t h e
                i n s t r u c t i o n , a l l o w s t h e u s e of p h y s i c a l
                f o r c e t o p r e v e n t o r t e r m i n a t e what i s
                r e a s o n a b l y b e l i e v e d t o be t h e commission
                o r a t t e m p t e d commission of a c r i m i n a l
                t r e s p a s s i n o r upon t h e p r e m i s e s .      There-
                f o r e , i n o r d e r t o d e c i d e whether t h e d e f e n s e
                was j u s t i f i e d , t h e j u r y must know what a
                ' c r i m i n a l t r e s p a s s ' i s s o t h a t i t may d e t e r -
                mine whether d e f e n d a n t had a r e a s o n a b l e
                b e l i e f t h a t one was i n d e e d committed o r
                imminent." (596 P.2d a t 586) (Emphasis
                supplied.)

        The Montana Supreme C o u r t h a s spoken on t h e need t o d e f i n e

l e g a l t e r m s when i n s t r u c t i n g i n a c r i m i n a l c a s e .    S t a t e v.

Larson ( 1 9 7 8 ) ,            Mont.            ,   574 P.2d 266, 35 S t . Rep.

69.     I n t h a t c a s e d e f e n d a n t complained on a p p e a l t h a t t h e

t r i a l c o u r t e r r e d i n g i v i n g e x t e n s i v e d e f i n i t i o n s of "knowledge"

and a r g u e d t h a t t h e e x t e n s i v e n a t u r e of t h e d e f i n i t i o n s was

p r e j u d i c i a l t o defendant.        I n answering t h i s c o n t e n t i o n of

the defendant t h e c o u r t said:

                " * * * t h e crimes charged, m i t i g a t e d
                d e l i b e r a t e homicide and a g g r a v a t e d a s s a u l t ,
                r e q u i r e 'knowledge' o r ' p u r p o s e ' on t h e
                p a r t of t h e a c c u s e d .      -- ury therefore
                                                          -
                                                      The j
                was e n t i t l e d -o-a complete d e f i n i t i o n -
                                      t                                     of
                'knowledge' and t h e g i v e n i n s t r u c t i o n ,
                t a k e n a l m o s t v e r b a t i m from s e c t i o n 94-2-
                1 0 1 ( 2 7 ) , R.C.M.,       1947, was s u c h a d e f i n i -
                t i o n . " (574 P.2d a t 270) (Emphasis s u p p l i e d ) .

        Here, t h e c o u r t d i d n o t g i v e any d e f i n i t i o n of t h e f t .

The j u r y c o u l d n o t have c o n v i c t e d t h e d e f e n d a n t of r o b b e r y

w i t h o u t f i r s t f i n d i n g t h a t t h e d e f e n d a n t committed a t h e f t .

Without d e f i n i n g a . t h e f t i n s t a t u t o r y language t h e j u r y

would be l e f t t o s p e c u l a t e and i n a l l l i k e l i h o o d , would

a p p l y a l a y d e f i n i t i o n of t h e f t which m i g h t w e l l be c o n t r a r y

t o t h e o f f e n s e o u t l i n e d i n t h e Montana s t a t u t e .        There i s

s i m p l y no way t h a t t h i s C o u r t can o v e r l o o k such o b v i o u s l y

prejudicial error.              The r o b b e r y c o n v i c t i o n must f a l l and

w i t h i t n e c e s s a r i l y t h e b a l a n c e of t h e o f f e n s e s c h a r g e d must

likewise f a l l .
         Robbery p r o v i d e d a b a s i s f o r c o n v i c t i o n on t h e c h a r g e

of d e l i b e r a t e homicide.           C o u r t ' s I n s t r u c t i o n No.   23 p r o v i d e d :

                          "A p e r s o n commits t h e o f f e n s e of d e l i b -
                 e r a t e homicide i f :

                      " 1 ) He c a u s e s t h e d e a t h of a n o t h e r
                 human b e i n g p u r p o s e l y o r knowingly; o r

                          "2)     The d e a t h of a n o t h e r human b e i n g
                 i s caused w h i l e t h e o f f e n d e r i s engaged i n
                 o r i s an accomplice i n t h e commission of o r
                 a n a t t e m p t t o commit, o r f l i g h t a f t e r commit-
                 t i n g o r a t t e m p t i n g t o commit r o b b e r y o r k i d -
                 napping. "

        Thus, t h e j u r y c o u l d have c o n v i c t e d t h e d e f e n d a n t by

f i n d i n g t h a t t h e d e a t h of t h e v i c t i m was c a u s e d w h i l e d e f e n d a n t

was engaged i n t h e c r i m e of r o b b e r y .               Since defendant's

c o n v i c t i o n f o r r o b b e r y must f a l l f o r f a i l u r e t o d e f i n e

t h e f t , n e c e s s a r i l y t h e c o n v i c t i o n f o r d e l i b e r a t e homicide

must a l s o be o v e r t u r n e d .

        C o u r t ' s I n s t r u c t i o n No.   25 defined aggravated kidnapping

a s follows:

                           "A p e r s o n commits t h e o f f e n s e of a g g r a v a t e d
                 k i d n a p p i n g i f h e knowingly o r p u r p o s e l y and
                 w i t h o u t law£u l a u t h o r i t y r e s t r a i n s a n o t h e r
                 p e r s o n by e i t h e r u s i n g o r t h r e a t e n i n g t o u s e
                 p h y s i c a l f o r c e w i t h any of t h e f o l l o w i n g
                 purposes:

                       " 1 ) To f a c i l i t a t e commission of any f e l o n y
                 o r the f l i g h t thereafter; or

                      " 2 ) To i n f l i c t b o d i l y i n j u r y on o r t o
                 terrorize the victim. "

        The j u r y c o u l d have c o n v i c t e d d e f e n d a n t by f i n d i n g t h a t

d e f e n d a n t r e s t r a i n e d t h e v i c t i m f o r t h e p u r p o s e of committing

"any f e l o n y " which, of c o u r s e , i n c l u d e s t h e c h a r g e of r o b b e r y .

S i n c e t h e j u r y c o u l d have used t h e o f f e n s e of r o b b e r y t o

c o n v i c t d e f e n d a n t of a g g r a v a t e d k i d n a p p i n g t h e c o n v i c t i o n on

aggravated kidnapping i s e q u a l l y a s d e f e c t i v e a s t h e conviction

f o r robbery.

        I a g r e e w i t h t h e l e g a l p r i n c i p a l s e n u n c i a t e d by J u s t i c e

Shea i n h i s d i s s e n t r e s p e c t i n g "unanimous v e r d i c t " r e q u i r e m e n t s .
I do n o t a g r e e w i t h a l l t h a t i s s a i d i n h i s d i s s e n t i n t e r m s

of a p p l i c a t i o n of t h a t law t o t h e f a c t s a t b a r .           However,

t h e f a i l u r e t o d e f i n e t h e f t i n v a l i d a t e s t h e c o n v i c t i o n s on

a l l t h r e e c r i m e s c h a r g e d and i t becomes u n n e c e s s a r y t o d e a l

w i t h t h e unanimous v e r d i c t q u e s t i o n .

        I n m o p i n i o n t h i s c a s e must be r e v e r s e d and remanded
             y

f o r a new t r i a l under p r o p e r i n s t r u c t i o n s .         However, I w i l l

d i s c u s s t h e s e n t e n c e imposed.        The d i s c u s s i o n on s e n t e n c i n g

which f o l l o w s o n l y becomes germane i f d e f e n d a n t ' s c o n v i c t i o n

i s affirmed.          The s e n t e n c i n g a n a l y s i s which i s s e t f o r t h ,

p r o c e e d s upon t h e assumption t h a t t h e j u r y ' s f i n d i n g s of

g u i l t y a r e upheld.

        The d e a t h p e n a l t y i s a v a i l a b l e under t h e p r o p e r c i r c u m s t a n c e s

where d e f e n d a n t i s c o n v i c t e d of d e l i b e r a t e homicide.            A

m i t i g a t i n g f a c t o r which t h e t r i a l c o u r t must c o n s i d e r i s t h e

r o l e of t h e d e f e n d a n t i n t h e crime.           The c o u r t i s t o c o n s i d e r

an accomplice's r o l e a s a m i t i g a t i n g f a c t o r .              Here t h e t r i a l

c o u r t c o u l d n o t d e t e r m i n e whether t h e d e l i b e r a t e homicide

c o n v i c t i o n was on t h e b a s i s of d e f e n d a n t having committed

p r e m e d i t a t e d murder o r r a t h e r on t h e b a s i s t h a t d e f e n d a n t

was c o n v i c t e d a s a n accomplice o r under t h e " f e l o n y murder"

rule.      I n t h i s c a s e , a s J u s t i c e Shea p o i n t s o u t i n h i s

d i s s e n t , t h e t r i a l c o u r t i n s t r u c t e d t h e jury t h a t a person

commits t h e o f f e n s e of d e l i b e r a t e homicide i f d e a t h of

a n o t h e r human b e i n g i s c a u s e d w h i l e t h e o f f e n d e r i s engaged

i n o r i s a n accomplice i n t h e commission of r o b b e r y o r

kidnapping.

        For p u r p o s e s of s e n t e n c i n g we would have t o assume t h a t

t h e d e f e n d a n t was c o n v i c t e d under t h e i n s t r u c t i o n which gave

t o t h e j u r y t h e most l a t i t u d e .       T h e r e f o r e , f o r p u r p o s e s of
s e n t e n c i n g , we must assume t h a t d e f e n d a n t was c o n v i c t e d

b e c a u s e t h e j u r y found him t o be an accomplice i n committing

b o t h r o b b e r y and k i d n a p p i n g and t h a t t h e d e a t h of a n o t h e r

human b e i n g was c a u s e d t h e r e b y .          J u s t i c e Shea a r g u e s t h a t

t h e r e q u i r e m e n t of j u r y u n a n i m i t y i s a p p l i c a b l e t o t h i s

situation.           I n m o p i n i o n i t i s n o t a p p l i c a b l e , b u t w e must
                          y

assume t h a t t h e j u r y c o n v i c t e d under t h e " f e l o n y murder"

o r accomplice a s p e c t of t h e i n s t r u c t i o n .             I n o t h e r words, i f

s i x v o t e d f o r c o n v i c t i o n because t h e y b e l i e v e d d e f e n d a n t

h i m s e l f committed t h e homicide, b u t s i x v o t e d t o c o n v i c t

d e f e n d a n t b e c a u s e he was a n accomplice o r d e a t h r e s u l t e d

d u r i n g t h e commission of a k i d n a p p i n g , t h e c o n v i c t i o n can

o n l y be s u s t a i n e d on t h e b a s i s t h a t a l l t w e l v e j u r o r s a g r e e d

t h a t t h e e l e m e n t s were p r e s e n t r e q u i r i n g a c o n v i c t i o n under

t h e " f e l o n y murder" r u l e o r because d e f e n d a n t was a n accomplice.

I f t h i s assumption i s n o t made, t h e n J u s t i c e S h e a ' s argument

f o r " u n a n i m i t y " must be s u s t a i n e d .

        S i n c e we must assume t h a t d e f e n d a n t was c o n v i c t e d a s a n

accomplice o r under t h e " f e l o n y murder" a s p e c t of t h e i n s t r u c t i o n ,

we must f a c e t h e q u e s t i o n of whether such a c o n v i c t i o n can

provide t h e b a s i s f o r imposition of t h e death sentence.

J u s t i c e White, i n a c o n c u r r i n g o p i n i o n i n L o c k e t t v . Ohio

( 1 9 7 8 ) , 438 U . S .    586, 98 S.Ct.           2954, 57 L.Ed. 2d 973, i n d i c a t e d

t h a t t h e d e a t h p e n a l t y c o u l d o n l y be imposed where t h e

d e f e n d a n t w a s g u i l t y of p r e m e d i t a t e d murder t h e r e b y f o r e c l o s i n g

i t s a p p l i c a t i o n t o d e f e n d a n t ' s c o n v i c t i o n a s an a c c o m p l i c e

o r d e f e n d a n t ' s c o n v i c t i o n under a " f e l o n y murder" i n s t r u c t i o n .

F u r t h e r m o r e , t h e r o l e of t h e d e f e n d a n t i s something t h a t

must be c o n s i d e r e d i n imposing t h e d e a t h s e n t e n c e i n Montana.

S i n c e we must assume t h a t t h e d e f e n d a n t d i d n o t a c t u a l l y

k i l l someone, b u t r a t h e r a i d e d o r a b e t t e d , a m i t i g a t i n g
f a c t o r e x i s t s negating the death sentence.                        This m i t i g a t i n g

f a c t o r was n o t t r e a t e d by t h e t r i a l c o u r t .          If we were to

assume t h a t d e f e n d a n t was c o n v i c t e d under t h e " f e l o n y murder"

i n s t r u c t i o n , t h e same r e s u l t would a t t a c h .

        The t r i a l c o u r t c o n s i d e r e d "ambush" t o b e a n a g g r a v a t i n g

c i r c u m s t a n c e f o r i m p o s i t i o n of t h e d e a t h p e n a l t y .   I concur

i n J u s t i c e S h e a ' s d i s s e n t on t h i s i s s u e .      Ambush was n o t

p r o p e r l y c o n s i d e r e d a s a n a g g r a v a t i n g c i r c u m s t a n c e where

t h e r e was no proof t h a t t h e d e a t h of Monte Dyckman r e s u l t e d

from " l y i n g i n ambush."

        The s a m e problems which e x i s t i n d e f e n d a n t ' s c o n v i c t i o n

f o r d e l i b e r a t e homicide e x i s t i n d e f e n d a n t ' s c o n v i c t i o n f o r

aggravated kidnapping.                   W e must assume t h a t t h e d e f e n d a n t ' s

r o l e i n a g g r a v a t i n g k i d n a p p i n g was a s a n a c c o m p l i c e .     Not

o n l y d i d t h e t r i a l c o u r t f a i l t o c o n s i d e r d e f e n d a n t ' s accomplice

r o l e a s a m i t i g a t i n g f a c t o r , b u t under J u s t i c e W h i t e ' s

c o n c u r r i n g o p i n i o n i n t h e L o c k e t t c a s e , t h e p e n a l t y of d e a t h

c o u l d n o t be imposed where t h e d e f e n d a n t ' s r o l e w a s o n l y

t h a t of a n accomplice.

        I n Lockett v. - s u p r a , J u s t i c e White s a i d :
                    - Ohio,
                          " I t i s now e s t a b l i s h e d t h a t a p e n a l t y
                c o n s t i t u t e s c r u e l and u n u s u a l punishment
                i f it i s excessive i n r e l a t i o n t o t h e crime
                f o r which i t i s imposed. A punishment i s d i s -
                p r o p o r t i o n a t e ' i f i t (1) makes no m e a s u r a b l e
                c o n t r i b u t i o n t o a c c e p t a b l e g o a l s of punish-
                ment and hence i s n o t h i n g more t h a n t h e pur-
                p o s e l e s s and n e e d l e s s i m p o s i t i o n of p a i n and
                s u f f e r i n g ; o r ( 2 ) i s g r o s s l y o u t of propor-
                t i o n t o t h e s e v e r i t y of t h e crime.            A punish-
                ment might f a i l t h e t e s t on e i t h e r ground. '
                Coker v. G e o r g i a , 433 U.S. 584, 592 (1-977)
                 ( o p i n i o n of White, J . )       .      Because i t h a s been
                extremely r a r e t h a t t h e d e a t h p e n a l t y has
                been imposed upon t h o s e who were n o t found
                t o have i n t e n d e d t h e d e a t h of t h e v i c t i m , t h e
                punishment of d e a t h v i o l a t e s b o t h t e s t s under
                the circumstances present here.                           (438 U.S. a t
                 624)
                 ". . .     Under t h o s e c i r c u m s t a n c e s t h e c o n c l u -
                 s i o n i s u n a v o i d a b l e t h a t t h e i n f l i c t i o n of
                      d e a t h upon t h o s e who had no i n t e n t t o b r i n g
                      a b o u t t h e d e a t h of t h e v i c t i m i s n o t o n l y
                      g r o s s l y o u t of p r o p o r t i o n t o t h e s e v e r i t y of
                      t h e crime b u t a l s o f a i l s t o c o n t r i b u t e s i g n i -
                      f i c a n t l y t o a c c e p t a b l e o r , i n d e e d , any p e r -
                      c e p t i b l e g o a l s of punishment."               (438 U.S. a t
                      626)

            A m a j o r i t y of t h e U n i t e d S t a t e s Supreme C o u r t h a s n o t

s e t t l e d t h e q u e s t i o n d i s c u s s e d by J u s t i c e White i n h i s

concurring opinion i n Lockett.                          C e r t i o r a r i h a s now been

g r a n t e d and t h e United S t a t e s Supreme C o u r t w i l l soon d e t e r m i n e

t h i s question.              I n m judgment t h e C o u r t w i l l f o l l o w J u s t i c e
                                    y

W h i t e ' s o p i n i o n a s q u o t e d above.

            Should t h e f e d e r a l c o u r t s d e t e r m i n e t h a t t h e d e a t h s e n t e n c e

i s a v a i l a b l e under t h e c i r c u m s t a n c e s of t h i s c a s e , t h e n t h e

d e a t h s e n t e n c e s g i v e n , and t h e c i r c u m s t a n c e s under which t h e y

were g i v e n , must be examined.                     Clearly, i n t h i s case, the

a c c e l e r a t i o n of a s e n t e n c e from l i f e t o d e a t h on t h e d e l i b e r a t e

homicide c h a r g e , was i n v i o l a t i o n of t h e g u i d e l i n e s e t f o r t h
        -         L                   ,   P~A~LCQ
                                             --
i% ie
n %c
   e                  V.   iLrth C a r u i i m     ( 1 9 6 9 ) , 395 U.S.      711, 89 S . C t .

2072, 2 3 L.Ed.2d               656.      The t r i a l c o u r t i m p r o p e r l y a c c e l e r a t e d

t h e s e n t e n c e t o a d e a t h p e n a l t y by c o n s i d e r i n g f a c t s which

o c c u r r e d p r i o r t o t h e t i m e t h a t t h e f i r s t s e n t e n c e was

imposed.              Secondly, i t was improper f o r t h e t r i a l c o u r t t o

c o n s i d e r d e f e n d a n t ' s demeanor on t h e w i t n e s s s t a n d d u r i n g

t h e second t r i a l and b a s e a n a c c e l e r a t e d s e n t e n c e upon t h a t

demeanor.              I concur i n t h e s t a t e m e n t s made by J u s t i c e Shea

on t h i s i s s u e .

            W have, i n d e e d , f a i l e d t o promulgate r u l e s f o r p r o p o r t i o n -
             e

a l r e v i e w a s mandated by s t a t u t e .               The i m p o s i t i o n of t h e

d e a t h s e n t e n c e c a n n o t be p e r m i t t e d under t h e s e c i r c u m s t a n c e s .

I concur i n J u s t i c e S h e a ' s d i s s e n t on t h i s i s s u e .

            I a l s o a g r e e t h a t d e f e n d a n t i s e n t i t l e d t o a h e a r i n g on

whether hanging i s c r u e l and u n u s u a l punishment.                             The m a j o r i t y
h a s d i s m i s s e d t h i s c o n t e n t i o n by s t a t i n g t h a t t h e form of

execution i s a matter f o r the l e g i s l a t u r e .                      This i s n o t so.

The cons ti t u t i o n p r o h i b i t s " c r u e l and u n u s u a l punishment.                     "
I t i s t h e e x c l u s i v e p r o v i n c e of       t h e j u d i c i a r y t o determine

whether t h a t fundamental r i g h t i s b e i n g v i o l a t e d .                     This

d e t e r m i n a t i o n c a n n o t be made by t h e l e g i s l a t u r e .          Defendant

h a s r a i s e d a s u b s t a n t i a l c l a i m t h a t , i f s u p p o r t e d by e v i d e n c e ,

would i n d i c a t e t h a t hanging c a u s e s p a i n and s u f f e r i n g p r i o r

t o death.         T h i s form of e x e c u t i o n , i f c o n s t i t u t i n g a t y p e of

t o r t u r e , would c e r t a i n l y be c r u e l and u n u s u a l punishment

p r o h i b i t e d by t h e c o n s t i t u t i o n .    Only t h e c o u r t s c a n make

t h i s d e t e r m i n a t i o n and t h e d e f e n d a n t must have a h e a r i n g s o

t h a t t h e c o u r t s can properly e v a l u a t e t h e medical evidence

b e a r i n g upon t h i s c l a i m .

        I would r e v e r s e d e f e n d a n t ' s c o n v i c t i o n and remand f o r a

new t r i a l under a p p r o p r i a t e i n s t r u c t i o n s d e f i n i n g t h e £ t ,

r o b b e r y , k i d n a p p i n g , a g g r a v a t e d k i d n a p p i n g and d e l i b e r a t e

homicide.




          I n a d d i t i o n t o what I have s t a t e d i n m d i s s e n t , I
                                                                         y
j o i n i n J u s t i c e M o r r i s o n ' s d i s s e n t where h e c o n c l u d e s t h a t
t h e f a i l u r e t o define t h e f t f o r t h e jury i s f a t a l t o both
t h e d e l i b e r a t e homicide c o n v i c t i o n and t h e a g g r a v a t e d
k i d n a p p i n g c o n v i c t i o n . R e v e r s a l i s even more c o m p e l l i n g
h e r e b e c a u s e F i t z p a t r i c k h a s been s e n t e n c e d t o d e a t h a s
a r e s u l t of b o t h c o n v i c t i o n s .       The f a i l u r e t o d e f i n e t h e f t
l e a v e s t h e c e r t a i n t y o f t h e c o n v i c t i o n s even more i n d o u b t .
T h i s u n c e r t a i n t y c a n n o t be condoned i n a c a p i t a l c a s e .



                                                                              Jus
