STATE v. FITZPATRICK

MR. JUSTICE SHEA affirms the convictions but dissents to the imposition of the death penalties in this case.

Concerning the Sandstrom-type instruction given in this case, I agree for the most part with the majority analysis. As the opinion makes clear, the instruction given in this case was not a carbon copy of that given in Sandstrom. Furthermore, I emphasize here, as I did in State v. Coleman (1979), 185 Mont. 299, 605 P.2d 1000, that the facts of this case are radically different from those existing in Sandstrom. Here, as in Coleman, the defense was alibi. The jury had a choice of either believing Fitzpatrick's alibi, or not believing it. The jury chose not to believe it. In Coleman, there was direct evidence by accomplice Nank that defendant Coleman participated in the kidnapping, rape and homicide. Here, the evidence is more indirect in that there is no eyewitness testimony to the crime itself. Nonetheless, once the jury chose not to believe the alibi of defendant Fitzpatrick, there was abundant evidence by which it could convict him of the crimes charged. A Sandstrom-type instruction would not have aided the State's case in this regard.

The defendant has become ensnared in a death penalty morass that has gone far past nightmarish proportions. The legal quagmire can perhaps be best understood if the background of the death penalty problem is set forth in relation to the first appeal and then to the present appeal.

Defendant Fitzpatrick, along with Gary Radi, Travis Holliday, and Paul Bad Horse, were charged with robbery, aggravated kidnapping, and deliberate homicide. The victim was Monte Dyckman, and the crimes were committed on April 5, 1975. Defendants Fitzpatrick and Radi were convicted on all three counts. Defendants Holliday and Bad Horse were convicted of robbery only. Sentencing of defendants Fitzpatrick and Radi for the crimes of aggravated kidnapping and deliberate homicide, raised the specter of the death penalty.

By the time of the sentencing hearing, the United States Supreme Court had already ruled that the death penalty was not per se unconstitutional. But there was great confusion to what kind of death penalty statutes would meet the approval of the Supreme Court. One extreme, and apparently the one taken by the legislature which had passed the death penalty laws involved in this case at the first sentencing, was that only a mandatory death penalty scheme would pass constitutional muster. The belief apparently was that only then could a statute eliminate the doubt attendant upon the surrounding of exercise of discretion in the decision of whether or not to impose the death penalty. Obviously, if the death penalty was mandatory, there would be no discretion at all.

It was also the position of the first sentencing judge that only the mandatory death penalty would pass constitutional muster. For this reason, however, a dilemma existed in relation to the deliberate homicide penalty. For some reason, the legislature had overlooked the deliberate homicide statute in changing the statutes, and the death penalty was not mandatory. Section 94-5-105, R.C.M. 1947, provided the death penalty for deliberate homicide "unless there are mitigating circumstances." Thus, the qualifying phrase prevented the deliberate homicide penalty from qualifying as a mandatory death penalty statute. On the other hand, the aggravated kidnapping statute, section 94-5-304, R.C.M. 1947 explicitly mandated the death penalty if the victim was dead as a result of the kidnapping. This was the statutory picture at the time the penalties were imposed by the first sentencing judge.

Defendants Fitzpatrick and Radi were sentenced on each of the three counts. For robbery, each was sentenced to 100 years in prison (each had been found to be a persistent felony offender); for deliberate homicide (apparently because the sentencing judge thought the statute to be unconstitutional because it was not mandatory) each was sentenced to 100 years in prison; and for aggravated kidnapping, each was given the death penalty. Defendants Holliday and Bad Horse were each sentenced to 40 years in prison for the crime of robbery. All the defendants appealed from the convictions.

In State v. Fitzpatrick (1977), 174 Mont. 174, 569 P.2d 383, this Court ruled that it was prejudicial error to try all the defendants jointly under the particular factual circumstances of the case, and we reversed all convictions. We ordered new and separate trials for each of them. We thus did not reach the death penalty arguments raised by Fitzpatrick and Radi in their first appeal simply because our reversal of the convictions did not require us to determine the death penalty issues.

As events would later prove, however, the first sentencing judge did not accurately assess the constitutional picture. In State v. Coleman (1978), 177 Mont. 1, 579 P.2d 732, this Court, because of the United States Supreme Court decision, declared the mandatory death penalty for aggravated kidnapping to be unconstitutional. On the other hand, in State v. McKenzie (1976), 171 Mont. 278, 557 P.2d 1023, this Court upheld the constitutionality of the deliberate homicide statute, apparently for the reason that the qualifying words "unless there are mitigating circumstances" saved it from being designated as a mandatory death penalty statute.

Now to the results of the new trials where each of the defendants was tried separately. Two of the defendants were again convicted of robbery and their convictions were affirmed by this Court. State v. Holliday (1979), 183 Mont. 251, 598 P.2d 1132; State v. Bad Horse (1980), 185 Mont. 507, 605 P.2d 1113. Defendant Radi was acquitted on all charges. Fitzpatrick was again convicted on all three counts, and again the death penalty became an issue at sentencing.

Fitzpatrick was sentenced to 100 years in prison for robbery because he was found to be a persistent felony offender. But he was ensnared in a double bind in relation to the convictions on the count of aggravated kidnapping and the count of deliberate homicide. At the first sentencing defendant was sentenced to death under the mandatory statutory provision then existing. By the time of the second sentencing however, we had ruled in State v. Coleman, supra, that the mandatory death penalty was unconstitutional. The sentencing judge resolved this little problem by retroactively applying the 1977 death penalty statutes to the crimes committed in 1975. In the process of enacting the 1977 death penalty statutes, the legislature had also repealed section 94-5-304, which called for the mandatory death penalty for aggravated kidnapping. Ch. 338, § 16, Laws of Montana (1977).

The sentencing court made this retroactive application of the law ostensibly under the rationale of and authority conferred by the United States Supreme Court in Dobert v. Florida (1977), 432 U.S. 282, 92 S.Ct. 2290, 53 L.Ed.2d 344, which held that retroactive application of death penalty statutes does not violate the ex post facto clause of the United States Constitution if the statutes are construed as being procedural or "ameliorative" in nature. In a brief filed with the sentencing court, the Attorney General's Office also urged the sentencing court to retroactively apply the 1977 statutes to the crimes committed in 1975. By this decision, the Supreme Court apparently ruled that a defendant has no constitutional argument and cannot thus complain if a court should determine that the statutes were designed for his benefit rather than for his demise, even though he meets his demise by an application of the statutes. Needless to say, the sentencing court was not to be denied; it retroactively applied the 1977 statutes and sentenced the defendant to death for the crime of aggravated kidnapping.

Subsequent to the decision of the sentencing court to retroactively apply the 1977 death penalty statutes, this Court approved of just such a scheme in the second Coleman case, State v. Coleman (1979), 185 Mont. 299, 605 P.2d 1000. There, as here, I lodged a whispering in the wind dissent to this unjust and inhumane interpretation of ex post facto laws.

The second part of the double bind relates to the possible penalty for deliberate homicide. The first sentencing judge had sentenced defendant to 100 years in prison for this crime, and the second sentencing judge had to confront this fact. In order to go beyond what the first sentencing court did, two hurdles had to be crossed. First the sentencing court had to comply with North Carolina v. Pearce (1969), 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656, which sets forth strict standards before a punishment can be increased after a second trial. Second, the sentencing court, in deciding to apply the 1977 death penalty statutes to the 1975 crimes, had to find a statutory aggravating circumstance existing under section 95-2206.8, R.C.M. 1947, now section 46-18-303, M.C.A., before the death penalty could be imposed.

Needless to say, the sentencing court ruled that it had complied with Pearce and that a statutory aggravating circumstance existed under section 46-18-303, and thus imposed the death penalty for deliberate homicide. A large portion of my dissent will be devoted to a demonstration that the sentencing court not only failed to comply with the standards imposed by Pearce, but worse than this, the sentencing court and the majority opinion here totally nullified the Pearce standards. Furthermore, it is equally apparent that the facts of the deliberate homicide do not justify a determination that an aggravating circumstance exists under section 46-18-303, MCA.

Defendant's contention that the 1977 death penalty statutes were unconstitutionally applied to the 1975 crimes has, unfortunately, already been decided against him in the second Coleman case, supra. I dissented to the majority opinion in this regard and my dissent in Coleman shall also constitute my dissent here. 605 P.2d 1000-1059, 36 St.Rep. 1157A-1157QQ.

I raise in this dissent however, an entirely different issue in respect to the sentencing judge's decision to apply the 1977 death penalty statutes to the 1975 crimes. This point was not raised in the second Coleman case, and it has not been raised here. I believe if the majority of this Court is to remain consistent, that the statutory sentencing scheme in effect and approved in State v. McKenzie (1976), 171 Mont. 278, 557 P.2d 1023, should also have been applied here. This would, of course, have obviated any need to apply the 1977 death penalty statutes to the 1975 crimes. In short, if the statutory scheme passed constitutional muster in McKenzie, there is no reason why it should not have also been applied here. Failure to apply this scheme has prejudiced the rights of Fitzpatrick. I set forth my position in this regard in part II of this dissent.

Defendant also contends that the sentencing judge, when he increased the sentence for deliberate homicide from 100 years in prison to the death penalty, failed to comply with the objective standards set forth in Pearce, supra. I agree; but more than this, I believe that fundamental due process of law should prohibit an increase of punishment after the second trial to that of death. My position in this regard is set forth in part III of this dissent.

The majority has taken the position that the sentencing court complied with all standards as set forth in Pearce. In fact, there was absolutely no compliance by the sentencing court with the standards set forth in Pearce. Since, however, the majority has totally obliterated the standards set forth in Pearce, I must necessarily demonstrate the havoc that has been wreaked by the majority opinion by the failure to apply Pearce. This analysis is set forth in part IV of this dissent.

The final part of my dissent concerns the failure of this Court to determine whether or not a statutory aggravating circumstance under section 95-2206.8, R.C.M. 1947, now section 46-18-303, MCA, existed for the imposition of the death penalty for the crime of deliberate homicide. It is clear that a statutory aggravating circumstance did not exist, and thus that the death penalty could not be imposed for the crime of deliberate homicide. The majority opinion has totally neglected to discuss this issue, even though one of the duties of mandatory review imposed by section 41-18-310, MCA, requires this Court to determine whether or not there existed a statutory aggravating circumstance. This analysis is set forth in part V of this dissent.

In 1976, this Court decided the case of State v. McKenzie (1976), 171 Mont. 278, 557 P.2d 1023. In that case the Court upheld the constitutionality of the statutory sentencing scheme as against an attack that the sentencing statutes and appellate review statutes were constitutionally deficient. The statutes involved in that case were in existence before the commission of the crimes in March 1975; they were in existence at the time of the first sentencing; at the time of the second sentencing, and, as a matter of fact, they are still in effect today. One may logically ask then, if these statutes passed constitutional muster in McKenzie, why then were they not also applied in the second Coleman case, supra, and in the present case?

Although the second McKenzie case was not decided at the time either Coleman or Fitzpatrick were sentenced for the second time, nonetheless the majority opinion again confirm the constitutionality of the statutory sentencing scheme then in existence. State v. McKenzie (1978), 177 Mont. 280, 581 P.2d 1205. If statutes already in existence at the time of the crime had passed constitutional muster, and were still in existence at the time of the second sentencing of both Coleman and Fitzpatrick here, what right did the sentencing courts have in choosing instead to use the 1977 statutes and apply them retroactively?

Retroactive application of the 1977 death penalty statutes is important for two reasons in the case of aggravated kidnapping and important for one reason in the case of deliberate homicide. Retroactive application of the 1977 death penalty statutes was the only way Dewey Coleman could be reached to impose the death penalty for aggravated kidnapping; and likewise, the same is true in the case of the death penalty imposed on Fitzpatrick for the crime of aggravated kidnapping.

If the sentencing court applied the sentencing statutes held constitutional in McKenzie, it would still have been confronted with section 94-5-304, R.C.M. 1947:

"A court shall impose the sentence of death following conviction of aggravated kidnapping if he finds that the victim is dead as the result of the criminal conduct."

Since the death penalty was mandatory, and since this mandatory death penalty has been declared unconstitutional in the first Coleman case, there would have been no legal way to again impose the death penalty. But application of the 1977 death penalty statutes provided an out. In enacting a new scheme of aggravating and mitigating circumstances, the 1977 legislature also in the same process repealed section 94-5-304. Ch. 338, § 16, Laws of Montana (1977). The repeal of the mandatory death penalty by the 1977 legislature freed the sentencing court to impose the death penalty for aggravated kidnapping by use of the guidelines set forth in the new 1977 death penalty statutes.

In retroactively applying the 1977 death penalty statutes, the sentencing court in the second Coleman case, and the sentencing court here, relied on the State's argument that Dobbert, supra, permitted the application of the 1977 death penalty statutes to the crimes committed in 1975. But the sentencing court in Coleman, and the sentencing court here failed to recognize that this Court in McKenzie had already upheld a statutory system and method of imposing the death penalty. Clearly, therefore, there was no need to use the 1977 statutes, if the statutes in effect at the time of the commission of the crimes had already passed constitutional muster in McKenzie.

On the other hand, Dobbert does not involve a situation where the statutes in effect at the time of the commission of the crime had already passed constitutional muster. It would thus appear obvious that the statutes approved in McKenzie, should have been the statutes used in this case at the second sentencing hearing for both Coleman, and for Fitzpatrick.

The argument can, of course, be made that the sentencing court would have sentenced defendant to death regardless of whether it used the statutory guidelines approved in McKenzie, or the 1977 death penalty statutes. If the sentencing court had not relied on the 1977 legislative repeal of the mandatory death penalty for aggravated kidnapping, it could not have imposed the death penalty at all for that crime. Thus being barred for constitutional reasons, it would then have had to rely exclusively on the provisions of the deliberate homicide statute which was saved from constitutional death by the savings clause at the end, "unless there are mitigating circumstances."

The phrase "unless there are mitigating circumstances" did not hamstring a sentencing court in determining what factors it chose to consider as being mitigating circumstances. On the other hand, the mitigating circumstances statute in the 1977 statutes, set forth a list of mitigating circumstances. Section 95-2206.9, R.C.M. 1947, now 46-18-304, MCA. Thus the sentencing court was compelled to follow the list when it sentenced defendant, and after it found no mitigating circumstances under the list, it was, of course, under considerable pressure to impose the death penalty.

Furthermore, section 95-2206.10, R.C.M. 1947, now 46-18-305, MCA, imposes considerably more pressure to assess the death penalty. It requires the death penalty to be imposed if the sentencing court finds "one or more of the aggravating circumstances and find that there are no mitigating circumstances sufficiently substantial to call for leniency." The mitigating circumstances in relation to the deliberate homicide statute, on the other hand, did not require that they be "sufficiently substantial to call for leniency." The only requirement was the presence of "mitigating circumstances," without regard to how substantial they may have been.

Under these circumstances, I believe that Fitzpatrick was clearly prejudiced by the decision of the sentencing court to use and apply the 1977 death penalty statutes to his case. It is more than a trifle inconsistent for the majority to have upheld the statutory sentencing scheme in McKenzie and then not insist that the statutes be applied to this case.

In permitting the sentencing court to escalate the punishment after the second trial to the death penalty, the majority overlooked the fundamental unfairness inherent in such decision. No judicial system espousing principles of due process of law should tolerate a result where the price exacted for the exercise of a constitutional right to a fair trial is death itself.

The general issue of whether the punishment can be increased after a second trial has been extensively litigated. 12 A.L.R.3d 978 (1966). Indeed, it would appear that the results were so diverse in the federal circuits as well as in the state courts, that the United States Supreme Court finally decided the issue in North Carolina v. Pearce (1969), 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656. Although the Supreme Court held that the practice does not violate the double jeopardy or equal protection clauses, it did recognize the potential evils engendered by such a practice and therefore set forth objective standards which the sentencing court must follow in any decision increasing the punishment. Neither Pearce, nor its two companion cases also decided at the same time, involved an increase of punishment to that of death.

Conceptually, at least, the issue of increasing the punishment the second time around to that of capital punishment, is no different from that of simply increasing the imprisonment the second time around, or increasing a fine the second time around. That would appear to be the position the United States Supreme Court took in Pearce, when it held that increasing a prison sentence was not a violation of the double jeopardy or equal protection clauses. The Court cited Stroud v. United States (1919), 157 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103 in reaching its decision. In Stroud, the Supreme Court rather summarily brushed aside a contention that the double jeopardy provision prevented a defendant from receiving the death penalty after he has secured a reversal of his first conviction which had imposed a life sentence. Stroud did not however, decide the due process question. Whether the Supreme Court would today still apply Stroud to a situation where the ante has been raised to one of capital punishment, is a question crying for an answer.

Disregarding the unspeakable dilemma of a defendant facing the prospect of a death sentence the second time around as the price of having successfully attacked his first conviction, the underlying rationale supporting an increased sentence is no different in a capital case than in a noncapital case. In jurisdictions permitting a higher sentence the second time around, at least three reasons have been advanced in support of this position. First, that the defendant in obtaining a new trial after the conviction of a crime assumes the risk of a more severe sentence that was first imposed should he again be reconvicted of that crime. 12 A.L.R.3d at 981. Second, that a defendant who invoked the action of an appellate court in order to reverse a conviction cannot complain on double jeopardy grounds that his sentence cannot be increased if he is convicted again after a second trial. 12 A.L.R.3d at 982. The annotation in this regard, cites Stroud, supra, as authority for this position. Third, that as long as the defendant is not convicted of a higher degree of crime, the second time around, an increase of punishment does not constitute double jeopardy. 12 A.L.R.3d at 982.

Needless to say, there are strong counterarguments. One view reasons that the potential for a higher punishment after a second trial subjects a defendant to an unconscionable burden to pay as the price for having exercised his constitutional right to a fair trial by appealing his first conviction. 12 A.L.R.3d at 985. This position is illustrated by State v. Wolf (1966), 46 N.J. 301, 216 A.2d 586; 12 A.L.R.3d 970. Wolf involved a potential death penalty should the defendant be convicted at his second trial.

Another view is that an increase in punishment after a second trial does constitute double jeopardy. 12 A.L.R.3d at 984. This view, insofar as the federal constitution is concerned, was effectively nullified by the majority opinion in Pearce, supra. Now such a view would hold only if a state court invoked the double jeopardy clause of its own state constitution.

A third approach, and one reached after the decision in Pearce, is that taken by the Alaska Supreme Court in Shagloak v. State (Alaska 1979), 597 P.2d 142. The Court flatly held that a greater punishment after a second trial violates the due process clause of the Alaska Constitution.

The determination that the courts must not be a party to a process which exacts such a horrible price from a defendant when he exercises his rights by appealing his first conviction, is essentially grounded on due process considerations. As a matter of judicial policy, this position is even more compelling where the greater punishment after the second trial may be the death penalty. Because capital punishment is a price too high to pay for having successfully attacked a first conviction, several state courts have wisely eliminated the possibility that such a horrible dilemma might be a recurring reality.

The case of People v. Henderson (1963), 60 Cal.2d 482, 35 Cal.Rptr. 77, 386 P.2d 677, preceded State v. Wolf, supra, in holding that a defendant convicted of first degree murder and given a life sentence, could not, upon a second trial be subjected to the death penalty. The California Supreme Court ruled that the double jeopardy provision intervened to prevent the imposition of a death penalty. In so reasoning, the Court took the liberty of concluding that Stroud v. United States, supra, had been vitiated by Green v. United States, supra, thus concluding that the price to be paid by Henderson in exercising his right to appeal his conviction was too high if he could be subjected to a death penalty upon a retrial. The Court, however, couched its reasoning more in a due process analysis:

". . . A defendant's right to appeal from an erroneous judgment is unreasonably impaired when he is required to risk his life to invoke that right. Since the state has no interest in preserving erroneous judgments, it has no interest in foreclosing appeals therefrom by imposing unreasonable conditions on the right to appeal." 35 Cal.Rptr. at 86, 386 P.2d at 686.

In People v. Ali (1967), 66 Cal.2d 277, 57 Cal.Rptr. 348, 424 P.2d 932, the California Supreme Court extended the Henderson rationale to apply to any increase in sentence after a second trial.

The New Jersey Supreme Court, in State v. Wolf, supra, deliberately avoided grounding its decision on the double jeopardy clause of the United States Constitution. Although the court agreed with the rationale in Henderson, supra, it was not as certain that the United States Supreme Court would agree that the "grisly choice" faced by such a defendant was sufficiently alarming to cause the Supreme Court to bar the practice of increasing the punishment after the second trial. Instead, the New Jersey Supreme Court declared that fundamental fairness in the administration of the court system would not tolerate such an unjust result:

"Traditionally appellate courts have exercised a greater degree of caution in dealing with capital cases, and they have shown special concern over procedures which interfere with the right of appeal. In this case the prosecutor's thesis endangers a vital societal principle, that no person shall be deprived of his life or liberty except by a trial free from prejudicial error. Awareness of that principle naturally stimulates judicial reluctance to see the price of an appeal from an erroneous conviction set at the risk of a man's life. Such a price, in our judgment, is a hardship so acute and so shocking that our public policy cannot tolerate it. Consequently, we hold that since the State has granted the universal right of appeal, standards of procedural fairness forbid limiting the right by requiring the defendant to barter with his life for the opportunity of exercising it." 216 A.2d at 590.

The State argued in Wolf that the threat of a death penalty to a defendant should he successfully attack his first conviction, fosters a beneficial institutional interest of the courts by deterring the number of appeals. To this the New Jersey Supreme Court responded:

". . . In a choice between forcing the defendant either to surrender his right to an error-free trial as well as his right of appeal, and to accept the life imprisonment sentence, or to put his life at stake again on retrial following a successful appeal, justice can follow only one course. That course is the one demanded by procedural fairness and principles of public policy, namely, prohibition of such a fearsome election, and the restriction of available punishment at a new trial to life imprisonment, if a second conviction results. (Citing cases.) Otherwise, a defendant with perfect grounds of appeal may be deterred from seeking appellate review just the same as one whose appeal rests entirely on frivolous grounds." 216 A.2d at 591.

Although the New Jersey Supreme Court deliberately avoided a direct due process ruling, the essence of its decision rests upon fundamental fairness, the essential ingredient of due process of law.

These same policy considerations expressed in Wolf, are expressed in decisions of the Oregon, Minnesota and Alaska Supreme Courts.

The Oregon Supreme Court exhaustively discussed the pros and cons of the cases addressing the issue of increasing the penalty after a second trial, and then concluded that the risk of increased punishment is a price that should not be exacted by the judicial system. State v. Turner (1967), 247 Or. 301, 429 P.2d 565. On the basis of public policy the Court adopted the following rule:

"We believe that the interest of the public and the individual can best be served by the following rule: After an appeal or post-conviction proceeding has resulted in the ordering of a retrial for errors other than an erroneous sentence, such as in the Froembling cases, and the defendant has again been convicted, no harsher sentence can be given than that initially imposed. If the initial sentence was incarceration, the defendant subsequently cannot be sentenced to any longer term than the time still to be served upon his initial sentence." 429 P.2d at 570-571.

The Oregon Supreme Court, however, following the lead of the New Jersey Supreme Court, expressly declined to decide the case on a constitutional ground. The Court quoted extensively from Wolf, supra, and then stated the ground upon which it rested its decision:

"There also remains the issue of whether the rule proposed should be grounded upon the due process or double jeopardy provisions of the state or federal constitution or whether it should be grounded upon the statutes or the common law."

"We do not find it necessary to decide the constitutional issues as we conclude that when the state grants a criminal appeal as a matter of right to one convicted of a crime, as it has, our procedural policy should be not to limit that right by requiring the defendant to risk a more severe sentence in order to exercise that right of appeal. ORS 138.020." 429 P.2d 571.

The Minnesota Supreme Court, in State v. Holmes (1968), 281 Minn. 294, 161 N.W.2d 650, also examined the cases pro and con and recognized that the federal and state courts were hopelessly divided. The Court ruled, however, that it is contrary to public policy to permit increased punishment after a second trial, for it discourages a defendant from exercising his legal rights. the court held:

". . . The third approach, and the one which we adopt, precludes inquiry into the motives of the sentencing judge and holds as a matter of law that any increase in penalty upon a retrial inevitably discourages a convicted defendant from exercising his legal rights and is contrary to public policy. Except for convictions resulting from Federal offenses, the Federal courts have been obliged to base their decision on constitutional grounds, which we find unnecessary to do." 161 N.W.2d at 653.

The Alaska Supreme Court, by invoking its own due process clause, flatly rejected the rule set forth in Pearce, supra. Shagloak v. State (Alaska 1979), 597 P.2d 142. In holding that a greater punishment after a second trial violates the due process clause of the Alaska Constitution, the Court stated:

"We believe if a more severe sentence may be imposed after retrial for any reason, there will always be a definite apprehension on the part of the accused that a heavier sentence may be imposed. Such apprehension or fear would place the defendant in an `incredible dilemma' in considering whether to appeal the conviction. A `desparate' choice exists, and may very well deter a defendant from exercising the right to assert his innocence and request a retrial. Such deterrence violates the due process clause of the Alaska Constitution. The fundamental standard of procedural fairness, which is the basic due process right claimed in this case, forbids placing a limitation on the defendant's right to a fair trial by requiring a defendant to barter with freedom for the opportunity of exercising it. See State v. Wolf, 46 N.J. 301, 216 A.2d 586, 590-591, 12 A.L.R.3d 970, 976 (1966). The state has no valid interest in imposing unreasonable conditions on Shagloak's legitimate exercise of his due process right. The imposition of the five-year sentence after his trial following the change of plea from guilty to not guilty was a denial of due process of law under the Alaska Constitution and cannot be countenanced by this court." 597 P.2d at 145.

Beyond these compelling policy considerations in favor of adopting a strict rule prohibiting an increase in punishment after a second trial under any circumstances, the question arises as to whether the judicial system is capable of effectively reviewing an increased sentence imposed after a second trial. The standards set forth by the United States Supreme Court in Pearce, supra, no doubt were designed with this problem in mind. But notwithstanding these standards, the fact remains that vindictiveness of a sentencing judge is something that can rarely be demonstrated by the cold record.

A sentencing judge will certainly not admit to a character trait of vindictiveness. Furthermore, a truly vindictive judge will be careful enough to leave no tracks in the sentencing record as to the true basis of his decision. Only in the most flagrant cases can vindictiveness be demonstrated by the cold record. Thus, as a practical matter it becomes almost impossible from the cold sentencing record to isolate and identify vindictiveness as the impelling motive. The record of review consists of only what the sentencing court wants to supply for public consumption and the review of the appellate court.

The inherent defects of this situation are not cured at all by the performance of lawyers in presenting a case for review, or by a review court in reviewing the case. As a general rule, lawyers are most unwilling to venture into a judicial political thicket with any kind of zeal, regardless of the merits of the case. Nor are appellate judges willing to undertake the kind of review that is needed. Indeed, an appellate court has a distinct reluctance to categorize the decision of the sentencing judge as vindictive, even though the appellation may be abundantly deserved.

Place all these factors into the same judicial pot and it is immediately apparent that effective appellate review is institutionally impossible. There is, in this process, an institutional bias or prejudice which cannot effectively handle a fundamental problem such as this. The judiciary is, of course, not the only institution which can be accused of this interest in self preservation. At least in the limited context of sentencing, the courts can recognize this inherent institutional bias and the debilitating effect that it has on the administration of justice. Having recognized it, an appellate court can eliminate it by simply not permitting an increase of punishment after a second trial. Only in this way can the institutional bias of the judiciary be effectively neutralized.

The United States Supreme Court has, of course, always taken a special interest in constitutional issues which would have a chilling effect on one's assertion of a constitutional right. There is ample authority from cases decided by the Supreme Court which indicate that it would look upon with a dim view the chilling effect that the appellate process may pose to one who has had the death penalty imposed as a result of having successfully appealed his first conviction.

In Green v. United States (1957), 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199, defendant Green was charged with first degree murder and was convicted of second degree murder. A state court reversed the conviction, and upon retrial, Green was convicted of first degree murder. In reversing the conviction, the United States Supreme Court grounded its decision on the double jeopardy clause, holding that at the first trial the conviction of second degree murder carried therein an implied acquittal of the higher charge of first degree murder. By itself, the holding may not stand for too much in the context of Fitzpatrick here facing the death penalty the second time around. But the court, in deciding the case, also rejected the government's argument that a defendant, by appealing a conviction, must be willing to take a gamble that he may be convicted of a greater crime the second time around:

". . . the Government contends that [defendant] must be willing to barter his constitutional protection against a second prosecution for an offense punishable by death as the price of a successful appeal from an erroneous conviction of another offense for which he has been sentenced to five to twenty years' imprisonment. As the Court of Appeals said in its first opinion in this case, a defendant faced with such a `choice' takes a `desparate chance' in securing the reversal of the erroneous conviction. The law should not, and in our judgment does not, place the defendant in such an incredible dilemma." 355 U.S. at 193, 78 S.Ct. at 226, 2 L.Ed.2d 207; 61 A.L.R.2d 1127.

Without question, the court concluded that the prospect of a death penalty is too high a price to pay for the assertion of a constitutional right.

In a different context, but with the same policy consideration involved, the court decided Fay v. Noia (1963), 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837. There, in opposing the defendant's petition for a writ of habeas corpus on the grounds that he had a chance to appeal many years ago and did not do so, the government contended that the defendant had waived his right to invoke habeas corpus. To this, the Supreme Court answered:

". . . For Noia to have appealed in 1942 would have been to run a substantial risk of electrocution. His was the grisly choice whether to sit content with life imprisonment or to travel the uncertain avenue of appeal which, if successful, might well have led to a retrial and death sentence. . . . He declined to play Russian roulette in this fashion . . ." 372 U.S. at 439-40, 83 S.Ct. at 849.

Admittedly, the issue of whether the death penalty could be constitutionally imposed after a second trial and conviction, was not directly before the Court. But the specter of such a result is such that even the possibility is anathema to our system of justice. This is the essence of Fay.

This same policy consideration was expressed in Jackson v. United States (1968), 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138. There, the defendant challenged a provision of the Federal Kidnapping Act, which provided for the death penalty only "if the verdict of the jury shall so recommend." The Court ruled that such provision "needlessly encourages" waivers of jury trials or guilty pleas to avoid the possibility of the death penalty. One could assert his constitutional right of jury trial only at the risk of the death penalty. This, the Court ruled, is an intolerable burden on the exercise of a constitutional right. 390 U.S. at 585, 88 S.Ct. at 1218.

The possibility of a death penalty being the price one must pay for securing a reversal of a conviction and a second trial is, under any system of justice having fundamental fairness as one of its basic tenets, intolerable. Had the majority considered the implications of its decision and the burden it placed on the availability of the appellate process, I believe that this Court would never have had to decide whether the sentencing court had properly applied Pearce.

What happened here, however, is even worse. Not only has the majority failed to acknowledge the fundamental due process issue underlying an increase of punishment to that of death after the second trial, this omission has been compounded by the majority's analysis of Pearce. In reaching its decision that the sentencing court lawfully complied with Pearce in increasing the punishment to that of death, the majority has totally nullified the Pearce standards.

I have already set forth the background of the federal and state decisions which prompted the United States Supreme Court to decide the case of Pearce, supra. Since the majority has not done so, it perhaps would be useful to set out the essential facts of Pearce and the rules promulgated by the majority decision in Pearce. Pearce was one of three cases decided on essentially the same point. Pearce was convicted of a crime and successfully appealed this conviction to a higher court and was granted a new trial. After his retrial, presided over by a different judge, he was again convicted, but this time he was given a greater punishment than after his first conviction. He contended this greater punishment violated the double jeopardy and due process provisions of the United States Constitution. The Supreme Court disagreed, holding that neither the double jeopardy nor equal protection clauses are violated by imposition of a greater punishment. However, in so holding, the Supreme Court recognized the great potential for evil that inheres in such a process and so adopted specific standards which must be followed before the greater punishment can be upheld. The Supreme Court expressly recognized that without close scrutiny of such cases, the end result is that a defendant is needlessly punished by exercising his right of appeal.

The sentencing court and the majority opinion has patently ignored the requirements of Pearce. Furthermore, in seeking to justify its cancellation of the Pearce requirements in this State, the majority has patently misinterpreted and misapplied three United States Supreme Court cases decided after Pearce. Those cases are Colten v. Kentucky (1972), 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584; Chaffin v. Stynchcombe (1973), 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714; and Blackledge v. Perry (1974), 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628. It apparently is the position of the majority here that these three cases have effectively vitiated the standards set forth in Pearce so that it is after only eleven years of existence, no longer the law. To the contrary, Pearce is alive and well, but unfortunately, ignored in this State.

It is true, as the majority states, Pearce is primarily aimed at detecting vindictiveness in the imposition of a higher punishment after a second trial. Thus the following standards must be used whenever an increased punishment is imposed after a second trial:

(1) The sentencing court must affirmatively state on the face of the record, its reasons for imposing the higher penalty and set forth the factual data supporting this decision.

(2) The factual data used to justify the higher penalty must consist of specific, identifiable conduct of the defendant occurring after the time of the original sentencing proceedings. 395 U.S. at 725-726, 89 S.Ct. at 2080-2081.

Unfortunately the sentencing court and this Court somehow ignored the application of these standards to this case. The three reasons announced by the sentencing court and given the green light by this Court for increasing the punishment to death are: (1) that defendant testified at his second trial permitting an assessment of his character; (2) that Christine Fetters gave considerable information relating to defendant's activities in planning the crime and in relation to his conduct after the commission of the crime; and (3) that the constitutionality of the death penalty at the first trial was in doubt, but now all doubts have been resolved. None of these stated reasons comply with the Pearce standards.

In a footnote at page 9 of the death penalty judgment, the sentencing court admitted its noncompliance with Pearce and set forth its reasons for departing from the Pearce standards:

"This increase in sentence from the 100 years previously given admittedly raises a question for consideration upon review. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, allows for the imposition of a greater sentence in the light of events subsequent to the first trial that may throw some light upon the defendant and such information may come to the judge's attention from evidence adduced at the second trial itself, as well as other sources. At the same time, in requiring that a more severe sentence must be accompanied by a showing of the reasons for the increase in severity, the reasons . . . `must be based upon the objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentence proceeding.' (Emphasis added by District Court.) The question then is whether the judge can act only upon subsequently occurring conduct or whether he can act upon new information concerning past conduct which was not known to the judge at the time of the prior sentencing. I have interpreted the Pearce decision as being aimed at preventing vindictiveness against a defendant for having successfully attacked his first conviction, and therefore have concluded that the evidence necessary to justify a more severe sentence can come from new information about the defendant's conduct in the commission of the crime, i.e. past conduct as well as from new conduct occurring after the original proceeding. Admittedly, there has been no new conduct relevant to that issue in this case." (Emphasis added by J. Shea.)

By his own admission, the sentencing judge relied on conduct of the defendant which proceded the first sentencing, but chose to give Pearce his own special interpretation in order that he could consider this information. This interpretation flies in the face of the Pearce standards.

We thus have a situation where the sentencing court openly admitted that it did not comply with Pearce but declared that it really did not matter because it was not vindictive, and that Pearce was aimed only at vindictiveness. At least, however, the sentencing court did not attempt to rationalize its decision by asserting that the United States Supreme Court had later retreated from strict enforcement of the Pearce standards. It simply ignored the Pearce standards. On the other hand, the majority opinion has misinterpreted and misapplied three post- Pearce cases and would have us believe that the United States Supreme Court has already abandoned the standards set forth in Pearce in 1969.

Each of the cases cited and quoted by the majority can be understood only in the peculiar circumstances existing in each case. The United States Supreme Court did not apply the Pearce standards in Colten v. Kentucky, supra, and in Chaffin v. Stynchcombe, supra, because the legal structure existing in the appellate process and later sentencing process satisfied the Court that vindictiveness as a factor in the imposition of a higher sentence, was de minimis. On the other hand, contrary to the implications of the majority opinion, in Blackledge v. Perry, supra, the Supreme Court extended the Pearce standards by applying them to a prosecutor who was permitted by state law to charge a defendant with a higher degree of crime if the defendant appealed his conviction to a higher court. A brief analysis of each of these cases is in order.

In Colten v. Kentucky, supra, the situation involved a two-tiered trial system. A defendant convicted at the lower court and sentenced, had an absolute right to appeal to the higher court and have his case tried again. The lower court found defendant guilty and fined him $10; the defendant appealed to the higher court; he was found guilty after a trial de novo, and the fine was increased to $50. He claimed that this was retaliatory sentencing and thus prohibited by Pearce. The Supreme Court disagreed, holding that the threat of vindictiveness was de minimis where defendant was entitled to a complete retrial of the facts without reference to what happened at the lower court or to the fact of the appeal itself. Here, it was the system itself upon which the Supreme Court focused, not on whether there was actual vindictiveness demonstrated by the record. Although I agree with Justice Marshall's dissent, it is at once obvious that Colten v. Kentucky has no bearing on the issue before this Court, for the instant case does not involve a two-tiered system involving trial de novo. Nor does this case involve an increase of a fine from $10 to $50.

In Chaffin v. Stynchcombe, the jury set the punishment after the first conviction, and a different jury set the second punishment after the second conviction. The jury's involvement in the setting of the higher penalty rendered de minimis the chance that the second jury imposed penalty was the product of vindictiveness. The Supreme Court specifically noted that it was conceded that the second jury did not know the penalty which the first jury had imposed, and that the second jury would "have no personal stake in the prior conviction and no motivation to engage in self-vindication." 412 U.S. at 27, 93 S.Ct. at 1983. This situation contrasts starkly with the instant case. Here the second sentencing judge had specific knowledge that the first judge had given a 100 year sentence rather than impose the death penalty. Furthermore, the second judge here would have no less institutional interest than the first judge, in discouraging or preventing what they considered to be nonmeritorious appeals. A jury, on the other hand, does not have such institutional interest in preserving the system.

Nor can the majority derive any support from Blackledge v. Perry. Indeed, the Supreme Court extended the Pearce rationale by applying it to a system which permitted the prosecutor to raise the ante if a defendant sought trial de novo in a higher court. Defendant was convicted of a misdemeanor and pursued his absolute statutory right of appeal and trial de novo in a higher court. The law, however, permitted the prosecutor to obtain an indictment charging a more serious offense, and then to proceed to trial only on the more serious charge. The prosecutor filed a more serious charge against the defendant, and this, the Supreme Court held, violated the Pearce standards for it discouraged convicted misdemeanants from pursuing their statutory appellate rights of trial de novo. Concerning this statutory scheme permitting the prosecutor to raise the ante, the Supreme Court stated:

"A person convicted of an offense is entitled to pursue his statutory right to a trial de novo, without apprehension that the State will retaliate by substituting a more serious charge for the original one, thus subjecting him to a significantly increased potential period of incarceration." 417 U.S. at 28, 94 S.Ct. at 2102-2103.

Thus, it is patently clear that the United States Supreme Court, in determining whether the statutory scheme or the action of the sentencing court would have a tendency to chill the right of appeal by threat of higher punishment the second time around, will focus on the system itself as well as the particular facts. The Court does not require that a defendant demonstrate that the sentencing court acted maliciously or in bad faith.

The chilling effect of the sentencing court raising the ante from 100 years in prison after the first trial to that of death after the second trial, speaks for itself. What is even more chilling is the clear, announced departure from Pearce on the part of the sentencing court as well as the decision of this Court in failing to recognize that even token compliance with Pearce did not exist in this case.

The rationale of the majority in concluding that somehow Pearce does not apply, is patently erroneous. The majority states:

"Therefore we conclude that Pearce does not apply in defendant's case because the District Judge was replaced for the new trial and sentencing and he stated his reasons for imposing the death penalty on these charges with clarity."

The majority erroneously concludes that Pearce has no application if a new judge presides over the second trial and resentencing. But such is not the case at all. A reading of Pearce does not disclose whether a new sentencing judge presided over any of the three separate cases which were decided, or whether it was the same judge in each instance. But that is not the point of Pearce in any event. Indeed a reading of the three post-Pearce Supreme Court cases cited and misapplied by the majority, would lead one to believe that a new judge presiding over the second trial and sentencing would require a strict Pearce application. Furthermore, each of the three defendants involved in the Pearce decision received increased jail or prison sentences. That is a far cry from the defendant here, who was confronted with the horrible dilemma of being faced with a potential death penalty after a second trial.

In Chaffin v. Stynchcombe, the Supreme Court referred to the second jury which had set the increased punishment after the second trial, as having "no personal stake in the prior conviction and no motivation to engage in self-vindication." 412 U.S. at 27, 93 S.Ct. at 1983, 36 L.Ed.2d at 724. But the majority here has twisted this statement around to apply to the second sentencing judge whose sentence is now under review here. The United States Supreme Court was referring to a two-tiered system of trials whereby the jury in the event of conviction, also set the punishments. Indeed, in declaring that the imposition of punishment by the jury insulated the decision from the possible taint that would exist had it been a judge who determined the second punishment, the Supreme Court specifically noted that a jury has no institutional interest in discouraging nonmeritorious appeals but a judge does have such institutional interest. Indeed, under the rationale of Chaffin, the fact that a judge here did impose the greater punishment is sufficient to subject the sentencing to the Pearce standards.

The second reason why Pearce does not apply, according to the majority, is that the sentencing judge "stated his reasons for imposing the death penalty on these charges with clarity." I fail to see how this has anything at all to do with whether or not Pearce applies. Assuming that the reasons for increased sentence were stated with particularity, this fact does not eliminate our review functions under Pearce to determine if the reasons stated, regardless of how clear, are legally sufficient. Indeed, an examination of the reasons given reveals that both the sentencing court and this Court have vitiated the Pearce standards. Since the majority has set forth the reasons why the penalty was increased, but has not stated the underlying evidence in support of the stated reasons, I feel compelled to do so.

As a starter, the sentencing court admitted within the body of the judgment that it had departed from the Pearce standards but in the same breath announced that it was not vindictive and therefore that it still was complying with the spirit of Pearce which was aimed at weeding out vindictive increases in punishment.

So that the record is clear, I again set out the majority's statement of the reasons announced by the sentencing judge in justification of his increase in punishment to that of death:

"(1) The defendant testified at the second trial, allowing for an assessment of his character.

"(2) Christine Fetters, a witness who did not testify at the first trial, yielded considerable information concerning defendant's conduct during the planning and execution of the crime, as well as his actions subsequent to the commission of the crime.

"(3) The constitutionality of the death penalty provision for the crime of deliberate homicide was no longer in doubt as it had been when the first judge imposed the 100 year prison sentence."

The only reason which conceivably could comply with the Pearce standards, is the first reason stated, and as I will later discuss, this so-called character assessment during the second trial is fraught with danger.

Each of these stated reasons must be lined up with the requirements set forth in Pearce that there be in the record, objective conduct of the defendant occurring after the first sentencing, and a clear statement of the sentencing court of what objective conduct it used as a basis to conclude that an increased punishment was justified. Pearce also set forth the possible sources for obtaining this information:

". . . events subsequent to the first trial that may have thrown new light upon the defendant's `life, health, habits, conduct and mental and moral propensities.' Williams v. New York, 337 U.S. 241, 245, 69 S.Ct. 1079, 1082, 93 L.Ed. 1337. Such information may come to the judge's attention from evidence adduced at the second trial itself, from a new presentence investigation, from the defendant's prison record, or possibly from other sources." Pearce, 395 U.S. at 723, 89 S.Ct. at 2079.

The following is what the sentencing court stated in the record concerning the importance of and its reliance upon the testimony of Christine Fetters:

". . . Also, an entirely new witness. Christine Fetters, defendant's girlfriend during the entire time from defendant's release from prison on March 28th, 1975, to his arrest in Spokane, Washington, on June 3rd, 1975, yielded information concerning the conduct of the defendant during the time period when the crimes here involved were planned and executed, as well as during their travelling subsequent to the commission of the crimes.

"This included further and more definite affirmation that it was the defendant, who, yielding sua sponte to his lack of regard for human life, fired the fatal shots into Monte Dyckman's head, much to the consternation of the other participants to the crime who where upset at a robbery being escalated into murder.

"Also included are the actions of the defendant in burying the murder weapon used against Dyckman and thereafter arming himself with another handgun and carrying it with him during the course of their constant travelling to `blow their way out,' or language to that effect, in the event anyone should stop them.

"Further, there is the evidence of subtly phrased language in a letter to Christine Fetters after his apprehension, which language could only be interpreted as threats against the lives of her children because of defendant's erroneous assumption that Christine Fetters had been the cause of his arrest" (Sentencing Court's Judgment of Death at 5-6.)

Assuming that the activity itself is sufficient to justify an increase of punishment from 100 years in prison to that of death, it fails nonetheless because the entire activity took place before the first sentencing. Pearce requires that it be objective conduct of the defendant that has occurred after the first sentencing. 395 U.S. at 726, 89 S.Ct. at 2081. The sentencing court at least acknowledged its failure to comply with Pearce in this regard. See Judgment at 9. But the majority opinion has not even mentioned this fatal act of noncompliance.

The second reason advanced for increasing the punishment to death is that at the second sentencing the constitutionality of the death penalty was no longer in doubt, whereas at the first sentencing, doubt did exist and this may well have prompted the first sentencing judge not to impose the death penalty. In relying on these changes in the law, the sentencing court stated:

"Further, it is apparent from a review of the record of the prior trial that contentions had been asserted that the penalty provision for the crime of deliberate homicide was constitutionally defective and the presiding judge several times suggested that he could avoid that constitutional question simply by not imposing the death penalty in the event of a conviction of such charge, and this feeling obviously attended the judge's considerations even up to the time of actually pronouncing sentence, as is evidence from the copy of that portion of the transcript which is attached hereto as Exhibit `A' and `A-1'. Thus, the 100-year sentence was not arrived at because of its appropriateness to the characteristics of the defendant, but, rather, according to the legal limitations the judge then felt were in force. Changes in the law, nullifying the prior constitutional concerns, have since been accomplished and that fact, coupled with the new and illuminating evidence appearing in the latest trial bearing upon the life, health, habits, conduct and mental and moral propensities of the defendant, do constitute objective information concerning identifiable conduct on the part of the defendant, and its emergence post-dates the time of the original sentence." Sentencing Court's Death Judgment at 6-7. (Emphasis added.)

The sentencing court did not specify what changes in the law it had reference to, but I can only conclude that it had reference to the 1977 statutes under which it sentenced the defendant to death, and conceivably, to the first McKenzie case, supra, which was decided before the sentencing here and which upheld the then existing statutory sentencing scheme as it had been applied to a death penalty case.

A change in the status of the law cannot under any circumstances be considered as evidence of the defendant's conduct. It is, rather, merely a comment on a sad chapter in the history of death penalty litigation in this State. It is nothing less than astonishing to think that a sentencing court would list subsequent changes in the law as a reason for increasing the punishment to death.

The remaining justification for the increase of punishment to that of death, is that the sentencing court gleaned the necessary information from its observation of the defendant at the second trial, and particularly from its observation of the defendant's testimony while he testified on his own behalf. (Defendant did not testify at his first trial.) Assuming, however, that character analysis of a defendant's demeanor while testifying constitutes specific and identifiable conduct with the Pearce standards, this Court has been provided absolutely no record to review. The sentencing record is devoid of any observations made or of character analysis performed by the sentencing judge.

The sentencing judgment contains two scant references to the fact that the sentencing judge, in reaching its decision to increase the punishment to death, considered defendant's demeanor and testimony at his second trial. The judgment does not tell us what observations were made or conclusions reached.

In the preamble portion of the judgment there is a brief REFERENCE TO THE SENTENCING COURT HAVING CONSIDERED DEFENDANT'S demeanor and testimony at the second trial:

". . . and after observing the defendant's demeanor during the trial and while testifying on his own behalf, the Court now makes the following findings, conclusions, judgment and order:" Sentencing Court's Judgment at 2.

In one portion of the findings there is another brief reference to the fact that the trial court considered defendant's demeanor as a factor in his decision to increase the punishment to the death penalty:

". . . Specifically, the defendant testified at his own behalf during the present trial, allowing for an assessment of the defendant in all ways that viewing demeanor and the manner and content of testimony can be productive of insight into the character of a witness." Sentencing Court's Judgment at 6.

The foregoing is the sum and substance of the character analysis performed by the sentencing court upon the demeanor and testimony of the defendant at his second trial.

What was so obnoxious or reprehensible about the defendant's conduct at his second trial, or his testimony at his second trial, that the sentencing court, in its omniscience, could determine that the defendant must die? The court may indeed have been possessed of the wisdom of Solomon in making its decision, but if it was so possessed, it did not provide this Court with the benefit of such wisdom by which we can conclude that the requirements of Pearce had been satisfied.

Notwithstanding the failure to set forth the character analysis for the record, character analysis is by its very nature subjective, and thus cannot comply with the objective standards of Pearce. Not every trial judge would view the defendant's conduct at the second trial in the same way, and not every trial judge would view the defendant's testimony in the same way. Pearce requires, on the other hand, that the conduct of the defendant be specific and identifiable.

The subjective nature of character or demeanor analysis prevents effective appellate review. The proceedings here were not videotaped, nor even voice recorded. All we have before us is the cold record of the trial and the cold record of the sentencing hearing. These records are a totally inadequate basis upon which the Court can begin to review a character analysis. Indeed not even videotapes or voice recordings would aid us in this task because the review process itself, by the nature of the subject matter, would be a subjective process. It is highly unlikely that each member of this Court would make the same observations of the defendant as did the sentencing court, and it is equally as unlikely that each member of this Court would make the same analysis as did the sentencing court. Review under such circumstances is meaningless.

Use of character analysis such as used here, will, moreover, have an absolutely chilling effect on the choice of a defendant to take the witness stand at his second trial. If a defendant knew that his mere presence at the second trial, or his testimony at the second trial, would constitute an evidentiary basis under Pearce to permit an increase of the punishment to death, the chances are that he would not testify at all. He would be afraid to testify in his own case for fear that the sentencing court would use his testimony as the so-called objective conduct upon which a death sentence could be predicated. This is the kind of "grisly" choice that the United States Supreme Court has condemned. United States v. Green, supra; Fay v. Noia, supra; United States v. Jackson, supra.

The majority here has totally missed the main point of sentence review as it applies to this case. It is a rather simple matter to analyze a few cases involving the death penalty and conclude that they are of no help to the defendant. Section 46-18-310, MCA sets forth the duties of this Court in regard to sentence review:

"The supreme court shall consider the punishment as well as any errors enumerated by way of appeal. With regard to the sentence, the court shall determine:

"(1) whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor;

"(2) whether the evidence supports the judge's finding of the existence or nonexistence of the aggravating or mitigating circumstances enumerated in 46-18-303 and 46-18-304; and

"(3) whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. The court shall include in its decision a reference to those similar cases it took into consideration."

It is clear to me that the death penalty for deliberate homicide was imposed notwithstanding the clear failure to establish an evidentiary basis for the existence of a statutory aggravating circumstance. This being so, I conclude that the sentence imposed violated sections 46-18-301(1) and (2), MCA.

All of the aggravating circumstances for either homicide or kidnapping, are set forth in section 95-2206.8, R.C.M. 1947, now section 46-18-303, MCA, which provides:

"Aggravating circumstances. Aggravating circumstances are any of the following:

"(1) The offense was deliberate homicide and was committed by a person serving a sentence of imprisonment in the state prison.

"(2) The offense was deliberate homicide and was committed by a defendant who had been previously convicted of another deliberate homicide.

"(3) The offense was deliberate homicide and was committed by means of torture.

"(4) The offense was deliberate homicide and was committed by a person lying in wait or ambush.

"(5) The offense was deliberate homicide and was committed as a part of a scheme or operation, which, if completed, would result in the death of more than one person.

"(6) The offense was deliberate homicide as defined in subsection (1)(a) of 45-5-102, and the victim was a peace officer killed while performing his duty.

"(7) The offense was aggravated kidnapping which resulted in the death of the victim." (Emphasis added.)

Section 95-2206.10, R.C.M. 1947, now section 46-18-305, MCA, provides, inter alia, that before the death penalty can be imposed, at least one or more of the statutory aggravating circumstances must be found to exist. Thus, before the sentencing court could impose the death penalty for deliberate homicide, it was required to find at least one statutory aggravating circumstance. It found the aggravating circumstance to exist under subsection (4) which provides "the offense was deliberate homicide and was committed by a person lying in wait or ambush." (Emphasis added.)

The vital question is, of course, whether defendant committed the homicide while "lying in wait or ambush." The sentencing court found that he did; but its own findings belie this conclusion. An analysis of the evidence and of the sentencing court's findings clearly establishes that defendant was not lying in wait or ambush at the time he killed Monte Dyckman. Indeed, the finding that defendant was lying in wait or ambush does not relate at all to the actual homicide. Rather, the finding describes defendant as "lying in wait or ambush" at the bank, waiting for the person to arrive from the Safeway Store with the receipts from the day's business.

Following are the findings set forth in the judgment with regard to the statutory phrase ". . . lying in wait or ambush":

"That on the 5th day of April, 1975, being only eight days after his release from the Montana State Prison, the defendant was lying in wait or ambush at the Big Horn Drive-in Bank of Hardin, Montana, for the arrival of an employee of the Hardin Safeway Store carrying the store receipts for deposit in the bank. The courier on that night was a young man, Monte Dyckman, who occupied the position of assistant manager at Safeway. Upon his arrival at the drive-in bank, Dyckman was robbed by the defendant and then abducted in his own automobile, his hands being bound behind his back and he was taken by the defendant to the Toluca Interchange approximately 12 miles west of Hardin where, in a secluded spot behind a pile of gravel, the defendant shot him twice in the head with a .45 caliber semi-automatic pistol, causing instantaneous death. That such death was the proximate result of robbery plans initiated several days earlier. . . ." Judgment at 2. (Emphasis added by sentencing court.)

Having thus found that defendant was "lying in wait or ambush" at the bank while waiting for the person to show up with the day's receipts from the Safeway Store, the court then determined that this fit within the meaning of the aggravating circumstance for deliberate homicide, that is, that the homicide was "committed by a person lying in wait or ambush." There is nothing from the factual recitation in the judgment however, from which one can even conclude that the intent of defendant to kill Monte Dyckman preexisted or arose while he was waiting at the bank. Indeed, the remaining findings of the sentencing court clearly establish that defendant's decision to kill Monte Dyckman was a spur of the moment decision which occurred some time later and several miles away from the bank.

In reciting what information he had obtained at the second trial concerning the circumstances of the commission of the crimes, the sentencing court offered the following analysis or findings:

". . . Also, an entirely new witness, Christine Fetters, defendant's girlfriend during the entire time from defendant's release from prison on March 28th, 1975, to his arrest in Spokane, Washington, on June 3rd, 1975, yielded information concerning the conduct of the defendant during the time period when the crimes here involved were planned and executed, as well as during their travelling subsequent to the commission of the crimes. This included further and more definite affirmation that it was the defendant, who, yielding sua sponte to his lack of disregard for human life, fired the fatal shots into Monte Dyckman's head, much to the consternation of the other participants to the crime who were upset at the robbery being escalated into murder." Judgment at 6-7. (Emphasis by sentencing court.)

Thus the sentencing court's own findings clearly foreclose any determination that the deliberate homicide was committed while "lying in wait or ambush." The court found that the defendant's decision to kill Monte Dyckman was a "sua sponte" decision, and that all those involved believed that robbery was the only objective.

The obvious gravamen of subjection (4) is that the legislature considers a homicide to be more serious if the perpetrator was "lying in wait or ambush" at the time the deadly act was unleashed against the victim. But here, however despicable the crime committed, it does not fall within the statutory aggravating circumstances of subsection (4). The defendant was not lying in wait or ambush for Monte Dyckman when he killed him.

It has always been my understanding that penal laws are to be strictly construed against the State. There is no more compelling reason to do so than where the death penalty is the potential punishment. But rather than strictly construing these laws against the State, the majority here has liberally construed them in favor of the State in order to justify the imposition of the death penalty.

Defense counsel did not raise the issue of the nonexistence of a statutory aggravating circumstance which thus prevents the imposition of the death penalty. Why he did not do so I do not know. But regardless of whether he raised the issue, this Court has the clear duty under section 46-18-310(2), supra, to determine "the existence or nonexistence of the aggravating . . . circumstances" enumerated in the statute. Furthermore, even without this statute, we owe this duty to any defendant who has been sentenced to death.

This duty of review exists regardless of whether defense counsel has done so. Furthermore, especially in a death penalty case, it is the duty of the State, and particularly the Attorney General's Office, to carefully review the record to determine whether there has been compliance with the statutes. If there has not been compliance, it is the duty of the State to so inform this Court. Obviously, the State here either failed to adequately review the record, or, if it did so, and found the defect, the State has deviated from the standards of ethical practice by not bringing this fact to the Court's attention.

We have here a situation where the sentencing court retroactively applied the 1977 death penalty statutes, and by so doing, it was able to sentence defendant to death for the crime of aggravated kidnapping. It used the same statutes, moreover, in sentencing defendant to death for the crime of deliberate homicide. Although the majority has approved of this retroactive application, it is nonetheless clear that the sentencing court was not and could not be fair to defendant at the sentencing hearing and in the process of reaching its decision to impose the death penalty for both convictions.

When the sentencing court sentenced defendant to death for the crime of deliberate homicide, there can be no doubt that it violated North Carolina v. Pearce standards set forth by the United States Supreme Court. Indeed, the sentencing court admitted that it did not comply with the mandates of Pearce, but it sought in its decision to justify the noncompliance by its wholly subjective determination that it was not vindictive and thus that it complied at least with the spirit of Pearce. Furthermore, there can be no doubt that a statutory aggravating circumstance did not exist as a necessary prerequisite to permit the imposition of the death penalty for the crime of deliberate homicide. Indeed, the twisted and tortured application of the aggravating circumstances statute to the facts of the deliberate homicide here, is clear evidence of the bias with which the sentencing court approached its duties of presiding over the sentencing hearing and reaching a sentencing decision. By ignoring the mandates of Pearce, and by ignoring the facts in applying the statutory aggravating circumstance statute, the sentencing court not only poisoned the deliberate homicide death sentence, it poisoned its entire decision. It is difficult to rationalize and uphold a death penalty for aggravated kidnapping, where, in the same process, the sentencing court was so blatantly in error in reaching its decision to impose the death penalty for deliberate homicide.

Regardless of whether the death penalty may be a permissible form of punishment, a fair interpretation of those laws does not give this Court or any court the license to so loosely interpret them to the extent that a sentencing court can interpret them with virtual impunity. Perhaps this is one of the real dangers of the death penalty hysteria; the courts too, are swept along in the process.

For all of the foregoing reasons, I would set aside the death penalties imposed and remand for resentencing with instructions that the death penalty is not to be considered in this case.