A man serving life without parole in a 1987 murder now has a shot at being freed after years of appeals and a recent ruling by the Montana Supreme Court.
Vern Kills On Top, 61, saw his aggravated kidnapping sentence for the death of 23-year-old Marty Etchemendy dismissed in July, after successfully appealing on double jeopardy grounds.
Etchemendy was kidnapped in Miles City, robbed, beaten and left for dead in the trunk of a car outside an abandoned building in Wyoming. Kills On Top was one of three people sentenced in the case.
Because his kidnapping sentence carried a ban on parole, Kills On Top became eligible for parole when it was vacated. The two remaining charges — robbery and deliberate homicide — both allow for parole.
Being eligible for parole does not guarantee an inmate will be released. All release decisions are made by the Board of Pardons and Parole, which said Thursday that it does not have Kills On Top listed for any upcoming hearings and that in fact its records still reflect Kills On Top as an inmate ineligible for parole.
The Attorney General’s office had sought to pump the breaks after the July ruling, saying Kills On Top was actually eligible for parole in 2015, once the kidnapping charge was dropped.
Prosecutors asked the court to set a resentencing hearing in Custer County, where they could argue for life without parole on the remaining charges.
But Kills On Top, acting as his own attorney, argued that prosecutors waited too long to ask for a new hearing and missed their chance.
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In a 3-2 decision, Justices Jim Rice, Ingrid Gustafson and Dirk Sandefur denied prosecutors’ request for resentencing, saying prosecutors had indeed raised the issue too late and missed their chance to ask.
“It’s a technicality that stings a little bit in the process,” said Etchemendy’s 34-year-old son, Johnny.
The order also said the court’s earlier observations that Kills On Top would have “many years” left before he came up for parole was merely an observation and not a part of the legal analysis in their decision.
A dissent by Justice Beth Baker, signed also by Justice Laurie McKinnon, said the state had “a legitimate basis” when it argued that the court should have affirmed the kidnapping sentence and tossed the homicide sentence, instead of doing the opposite.
That would have preserved the lower court’s intent while still granting Kills On Top relief from double jeopardy.
Johnny Etchemendy, who now lives in Salt Lake City, was 3 years old at the time his father was killed. In an email Thursday, he said that if Kills On Top is granted parole some day, Etchemendy hopes he "does something good with his life."
"...if Vernon Kills On Top works even (half) as hard at living a better life as he has these past (30-plus) years at trying to get out of prison," he wrote in an email, "then I won't lose any more sleep over it and will just try to live my life in the way I believe my late father would have wanted me to."