State v. Keith

No. 85-176
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988

THE STATE OF MONTANA,
Plaintiff and Respondent,
-VS-

DAVID CAMERON KEITH,
Defendant and Appellant.

APPEAL FROM: District Court of the Twentieth Judicial District,
In and for the County of Lake,
The Honorable Robert Holter, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
George B. Best, Jr. argued, Kalispell, Montana
J. Mayo Ashley argued, Helena, Montana
For Respondent :
Hon. Mike Greely, Attorney General, Helena, Montana
Kimberly A. Kradolfer argued, Asst Atty General
Larry Nistler, County Attorney, Polson, Montana

Submitted: December 22, 1987

Decided: March 23, 1988

Clerk
Mr.J u s t i c e John Conway H a r r i s o n d e l i v e r e d t h e O p i n i o n o f t h e
Court.

Defendant, David Cameron K e i t h p l e a d g u i l t y on March
28, 1985 t o two c h a r g e s o f a g g r a v a t e d a s s a u l t , two c h a r g e s o f
a g g r a v a t e d k i d n a p p i n g , and o n e c h a r g e o f d e l i b e r a t e h o m i c i d e .
The p l e a s w e r e r e c e i v e d by t h e H o n o r a b l e R o b e r t M . Holter.
Defendant received a sentence of death for one of the
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 s and a n a d d i t i o n a l s e n t e n c e o f
death for the deliberate homicide charge. A prison term
totalling 146 y e a r s was r e n d e r e d on t h e r e m a i n i n g c h a r g e s .
Appeal is pursued according to the automatic review of
s e n t e n c e p r o v i d e d by 5 s 46-18-307 t o -310, MCA.
We reverse the sentence of death for the deliberate
h o m i c i d e c h a r g e o n l y and a f f i r m i n a l l o t h e r r e s p e c t s .

F a c t u a l Background
On J a n u a r y 11, 1984, a t approximately 1:00 p.m., the
d e f e n d a n t , David K e i t h , committed a r o b b e r y o f a pharmacy i n
M i s s o u l a , Montana. K e i t h l e f t M i s s o u l a by v e h i c l e and l a t e r
t r a v e l e d n o r t h i n t o Lake County on Highway 93. Approximately
t h r e e hours a f t e r t h e robbery, K e i t h ' s v e h i c l e was o b s e r v e d
by a p o l i c e o f f i c e r i n t h e a r e a o f S t . Ignatius. Believing
the vehicle was connected with the earlier robbery in
Missoula, law e n f o r c e m e n t p e r s o n n e l f o l l o w e d t h e v e h i c l e a s
i t t r a v e l e d n o r t h on Highway 93 t o w a r d P o l s o n .
Approximately four miles north of St. Ignatius the
v e h i c l e s t o p p e d a t t h e P o s t Creek S t o r e and d e f e n d a n t K e i t h
exited the vehicle. K e i t h e n t e r e d t h e s t o r e w i t h a drawn gun
and took William Crose, Jr., age 13, as his hostage by
p o i n t i n g a p i s t o l a t h i s head. While s t i l l i n s i d e t h e s t o r e ,
K e i t h was s t a r t l e d when a s t o r e c l e r k , D e l o r e s Coffman, moved
f o r cover. K e i t h f i r e d a s h o t i n h e r d i r e c t i o n b u t s h e was
 not struck. The bullet narrowly missed her head and was
estimated to have missed by as little as four inches. Keith
later indicated he did not wish to harm Coffman and testified
the shot was merely a scare tactic.
Forcing William Crose, Jr. to accompany him, Keith left
the Post Creek Store in a vehicle belonging to the boy's
father. Keith again drove north on Highway 93 toward Polson.
Somewhere south of Polson, law enforcement officials stopped
Keith with a roadblock. Keith exited the vehicle and
exchanged conversation with the law enforcement officials.
Still holding his gun to the hostage's head, Keith indicated
he would shoot his hostage if his demands were not met.
Keith demanded that the officials supply him with an
airplane, pilot, and parachute. Law enforcement officials
continued to attempt to negotiate with Keith, and he was
eventually allowed to proceed to the Polson airport.
A small aircraft was located and provided for Keith
upon his arrival at the airport. A local pilot, Harry Lee
Shryock, Jr. age 64, agreed to board the plane in exchange
- for the release of the young hostage. After Shryock boarded
the plane, Keith released William Crose, Jr. and then boarded
the plane himself. Shryock had difficulties starting the
airplane engine and the record is not entirely clear as to
whether this was purely a stall tactic or if genuine
difficulties were encountered.
During the time period that Shryock was attempting to
start the plane, the law officers were able to view Keith on
several occasions through the doorway of the plane. During
these time periods, Keith was pointing his gun at Shryock. A
deputy armed with a rifle was positioned some distance away
and was observing Keith's movements through his rifle scope.
The final time Keith was visible through the doorway it
appeared that Keith was not pointing his gun at the pil-ot.
Seizing this apparent opportunity, the deputy shot Keith.
The bullet struck Keith in the right arm and entered his
chest area. Keith then fired a shot into Shryock's head
resulting in his death. Subsequently, Keith exited the plane
and was shot in the back of the head by a law enforcement
officer positioned near the plane.
Keith's initial pleadings indicated he alleged the shot
which killed Shryock was fired as a reflex action and would
not have occurred if he had not been shot himself. However,
he has since changed that position and has entered a plea of
guilty to deliberate homicide by purposely or knowingly
causing the death of Shryock "by shooting him in the head
with a bullet from a handgun." The District Court found that
the killing was in execution style and that Keith thought he
was dying and took Shryock's life "because he didn't want to
go alone." Additionally, prior to sentencing, a presentence
investigation report was prepared. An updated report was
provided on April 4, 1.985, which stated that Keith had made a
written statement which stated, in part, "immediately after
[being shot] I came to the conclusion that I was going to
die, I didn't want to go alone so I fired my pistol into the
back of the head of Mr. Harry Shryock." At the sentencing
hearing on April 10, 1985, the District Court made the
presentence report part of the record after giving Keith a
liberal opportunity to object to any portions of the report.
No objections were made to the inclusion of this statement.

Procedural Background
Keith was charged with seven crimes: (1) aggravated
assault, § 45-5-202, MCA (victim: Delores Coffman); (2)
aggravated assault, 5 45-5-202, MCA (victim: William Crose,
Jr.); (3) aggravated kidnapping, § 45-5-303, MCA (victim:
William Crose, Jr.); (4) aggravated assault, § 45-5-202, MCA
 (victim: Harry Shryock); ( 5) aggravated kidnapping,
S 45-5-303, MCA (victim: Harry Shryock); (6) deliberate
homicide, S 45-5-102(1) (a), MCA (victim: Harry Shryock); and
(7) deliberate homicide pursuant to the "felony-murder
.
rule," $$ 45-5-102 (1)(b), MCA (victim: Harry Shryock)
Represented by defense counsel Keith Rennie, defendant
Keith appeared in District Court on February 8, 1984 and was
ordered to Warm Springs to receive psychiatric and medical
examinations and care. The major purpose was to determine if
Keith could assist in his own defense and if he was able to
understand the proceedings against him. See, 5 46-14-103,
MCA. Subsequently, a number of opinions were rendered
regarding this determination.
An initial medical opinion filed March 12, 1984 by H.
Robert Stehman, a state psychologist, concluded Keith was
unable to understand the charges or to assist in his defense
and recommended further observation. State psychiatrist H.
C. Xanthopoulos concurred in the opinion. Keith was then
temporarily committed to Warm Springs. On June 8, 1984,
William Stratford, M.D. rendered the opinion that Keith was
competent to proceed. However, in an opinion filed June 15,
1984, Roy Hamilin, psychologist, stated Keith was still
incompetent. Dr. Xanthopoulos also signed the opinion. An
additional opinion was filed on June 27, 1984 by Herman
Walters, Ph.D., clinical psychologist, in which he concluded
Keith was competent to proceed. On June 27, 1984, the State
moved for a hearing to determine Keith's fitness to proceed.
Dr. H.C. Xanthopoulos filed an opinion on August 21, 1984 and
concluded Keith was I' [wlell oriented as to time, place and
person ... Judgment is fair. Abstract thinking and general
information are good ... Patient is not mentally ill."
A hearing to determine whether or not Keith had the
fitness to proceed with the case wa-s held September 13, 1984.
Keith did not contest the findings in the reports concluding
he was competent to proceed, nor did he contest his fitness
to proceed. The District Court found he was competent to
proceed and able to assist in his own defense. Keith entered
an innocent plea to all seven charges.
On October 11, 1984, the District Court changed venue
for trial from Lake County to Lincoln County. Keith
requested a new attorney and Gary Doran was appointed
principal counsel with Rennie remaining as co-counsel.
Subsequently Keith requested that Doran be removed. The
District Court removed Doran and appointed George Best
principal counsel November 29, 1984.
A plea bargain proposal was presented February 5, 1985
in which Keith was to plead guilty to the aggravated
kidnapping of William Crose, Jr. and the State would dismiss
the remaining charges. The State was to recommend a life
sentence with possible parole and that Keith's health be
considered as a factor for possible early parole. A
presentence investigation was filed March 21, 1985. On March
28, 1985, the District Court refused to accept the plea
bargain. Following the refusal, Keith plead guilty to counts
one thru six.
A sentencing hearing was held April 10, 1985. Keith
testified he was not under the influence of drugs when the
crimes were committed and refused to withdraw his pleas. The
District Court sentenced Keith to a total of 146 years for
two charges of aggravated assault and one charge of
aggravated kidnapping. Keith was sentenced to death for the
aggravated kidnapping of Shryock and an additional death
sentence was rendered for the deliberate homicide of Shryock.
The remaining homicide charge was dismissed and the remaining
aggravated assault charge was found to be duplicitous.
 A stay of execution was filed June 6, 1985 so as to
allow the appeal process to proceed, and briefs for the
appellant Keith were filed October 16, 1985. On October 9,
1985 Keith's counsel entered a motion to withdraw the guilty
pleas. On November 14, 1985 this Court remanded the case to
the District Court to determine whether it would be proper to
allow the plea withdrawal.
On December 4, 1985 the defense filed a motion to
disqualify District Judge Holter and this Court ordered
District Judge Henry Loble to hear and determine the
disqualification argument. A hearing was held on the
disqualification issue February 4, 1986, and the motion was
denied April 3, 1986, because the defense failed to show
prejudice or bias and because the motion was not timely.

It is apparent that Keith holds a personal viewpoint of
the appeal process in which he does not desire to pursue any
appellate review unless required to do so by law. Keith has
consistently maintained this viewpoint since at least April
2, 1986. Defense counsel Best attempted to withdraw because
he believed he could not adequately represent Keith if he
insisted on not pursuing all possible issues on appeal. On
April 21, 1986 a motion was entered to appoint a "next
friend" for Keith. Although the precise role of a "next
friend" is not entirely clear, it appears that this
individual would be given authority to assist, advise and
make legal arguments and motions on Keith's behalf. Involved
in this motion was Leo Driscoll, an attorney from Spokane,
Washington, who at one time practiced law with Keith's
father.
On July 7, 1986, the District Court denied the motion
for appointment of next friend and ordered additional
psychiatric evaluations to determine whether Keith was
competent to enter his guilty pleas. On November 12, 1986,
the District Court held a hearing to determine Keith's
competence to enter his guilty pleas. Testimony and reports
were received by four experts and all concluded or strongly
implied Keith was competent to enter a plea. No medical
expert testified that Keith was not competent to enter his
plea. On November 28, 1986, the District Court found that
Keith was sufficiently competent to enter a plea and entered
the following conclusions of law:
1. The Defendant, David Cameron Keith,
does not suffer from any mental disease,
disorder, or defect which substantially
affects his capacity in the premises.
2. Defendant has the capacity to
appreciate his position as a convicted
and condemned person.
3. Defendant has the capacity to
appreciate the penalty imposed upon him.
4. Defendant has the capacity to make
rational choices with respect to
continuing or abandoning further
litigation.
5. Defendant has the capacity to make
rational choices with respect to acting
or assisting in his own defense.
6. Defendant has the capacity to
instruct his attorney to suspend all
proceedings in the district court.
Additionally, the District Court found that Keith requested a
dismissal of his motion to withdraw his guilty plea. The
motion was therefore dismissed in the order accompanying the
District Court's findings of fact and conclusions of law.
Keith continued to insist that none of his
discretionary appeals be pursued. On March 30, 1987 defense
counsel Best again moved to withdraw. The District Court
appointed Mayo Ashley as counsel for Keith on May 8, 1987,
but retained Best as standby counsel. On May 5, 1987 this
Court issued an order allowing defense counsel 45 days to
determine whether any issues would be appealed besides those
which were mandatory. On June 19, 1987, defense counsel
Ashley entered a notice that it was Keith's intention to file
only mandatory appeals. Ashley still suggested that this
Court consider all of the issues contained in the appellant's
two briefs. On July 14, 1987, this Court ordered that review
be limited to only those issues which are mandatory and
contained in § 46-18-310, MCA:
Supreme court's determination as to the
sentence. 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.
(Emphasis added.)
After reviewing this issue, we conclude that our order
on July 14, 1987 was correct and that defendant Keith has the
right to limit his appeal to only those issues that must be
reviewed according to S 46-18-310, MCA. Keith has clearly
expressed his intent to pursue only those appellate issues
which must be reviewed as a matter of law. Keith has been
adjudged competent to make such a choice and we will not
interfere with his choice. The issue is not what others
would do if faced with this decision, but what defendant
Keith desires to do. Keith's decision must be respected if
it is made competently, voluntarily, intelligently, and with
full knowledge of the consequences.
Although this is an issue of first impression in
Montana, we believe the results of cases originating in
jurisdictions outside Montana support our decision. See,
Gilmore v. Utah (1976), 429 U.S. 1012, 97 S.Ct. 436, 50
L.Ed.2d 632; and Judy v. State (Ind. 1981), 416 N.E.2d 95.
See also, Lenhard v. Wolff (9th Cir. 1979), 603 F.2d 91;
stay temporarily granted (1979), 443 U.S. 1306; stay denied
(1979) 444 U.S. 807. Based on the facts contained in the
record, we hold that defendant Keith's decision was made
competently, voluntarily, intelligently, and with full
knowledge of the consequences.

Issues Presented
(1) Are the sentences of death excessive or
disproportionate punishments as established by other Montana
sentences for similar crimes?
(2) Was the imposition of the death penalty for
aggravated kidnapping excessive or disproportionate when the
aggravated kidnapping charge did not charge defendant with
purposely or knowingly causing the death of the victim?
(3) Did the District Court fail to adequately consider
the mitigating factors provided in 5 46-18-304, MCA?
(4) Was the sentence of death imposed under the
influence of passion, prejudice, adverse publicity and fear
of community objection?
 (5) Does the evidence support the District Court's
I
findings of an aggravating circumstance regarding the
aggravated kidnapping charge?
(6) Did the District Court properly find the existence
of an aggravating circumstance regarding the deliberate
homicide charge?
We must comply with the provisions of 5 46-18-310, MCA,
in our consideration of its provisions in determining a death
sentence. We note that 5 46-18-310 ( 2 ) , MCA, requires a
discussion of S 46-18-303, MCA as well as 5 46-18-304, MCA.
This we will do.
I. CONSIDERATIONS OF SIMILAR CASES AND
PUNISHMENTS RENDERED.
Keith's counsel contends that both sentences of death
are excessive and disproportionate punishments compared to
other Montana sentences for similar crimes and therefore
violate 5 46-18-310 (3), MCA. Keith cites a statistical
analysis to demonstrate that the average sentence for a
conviction of deliberate homicide in Montana during 1982 and
1983 was 72 years. Despite these statistics, Keith fails to
identify any similar cases where the death penalty was not
imposed. Keith's citation to statistics fails because it
does not establish that the death sentences are necessarily
disproportionate under the facts and circumstances of the
present situation.
Keith states the death sentences are disproportionate
or excessive because no individual or official connected with
the case recommended or desired the death sentences.
Defendant states the prosecution recommended a term of life
and that the rejected plea bargain agreement did not include
any death sentence. However, we note that the prosecution
did indicate in the early stages of these proceedings that
the death penalty might be appropriate. The State did not
argue for the imposition of the death penalty at sentencing,
but this does not prohibit the District Court from rendering
such a sentence when it finds the necessary elements as set
forth in 5 5 46-18-301 to -310, MCA. Defendant Keith also
states that the parole officer preparing the presentence
investigation stated a life sentence would insure public
safety. The authoring parole officer, however, specifically
noted that the District Court might wish to consider the
imposition of the death penalty, and avoided making any
specific sentence recommendation. Keith also points out that
none of the victims' relatives, nor the victims themselves,
indicated that the death penalty would be appropriate.
Although there were certain victim statements contained in
the presentence investigation report, no other victim
statement evidence was introduced at the sentencing hearing
and defendant presented no additional evidence of this nature
for the District Court's consideration. Even assuming all of
the living victims and all of the victims1 relatives did not
favor the death penalty, this would not necessarily control
the sentencing decision. We refuse to reverse the sentence
based on these contentions.
Keith contends that his sentence is disproportionate
and excessive when compared to other Montana cases which have
resulted in a penalty of death. Montana law requires this
Court to conduct such a comparison, considering both the
crime and the defendant, and to include in this decision a
reference to those similar cases considered. Section
46-18-310(3), MCA. In regards to this consideration,
[W]e need not examine every similar case
whether appealed or not, rather we need
only examine those cases where after
conviction the death penalty could have
been or was imposed that has reached our
attention through the appellate process.
State v. Smith (Mont. 1985), 705 P.2d 1087, 1108, 42 St.Rep.
463, 490. This Court has affirmed the death penalty for a
total of four criminal defendants since the landmark case of
Gregg v. Georgia (1976), 428 U.S. 153, 96 S.Ct. 29091 49
L.Ed.2d 859. In Smith, we engaged in an examination and
comparison of the following three cases: State v. McKenzie
(1976), 171 Mont. 278, 557 P.2d 1023, vac. (19771, 433 U.S.
905, 97 S.Ct. 2968, 53 L.Ed.2d 1089, on remand (1978), 177
Mont. 280, 581 P.2d 1205, vac. (19791, 443 U.S. 903, 99 S-Ct.
3094, 61 L.Ed.2d 871, cert. denied (1979), 443 U.S. 912, 99
S.Ct. 3103, 61 L.Ed.2d 877, on remand (1980), 186 Mont. 481,
608 P.2d A28, cert. denied (1980), 449 U.S. 1050, 101 S.Ct.
626, 66 L.Ed.2d 507; State v. Coleman, (1979), 185 Mont. 299,
605 P.2d 1000, cert denied (1980), 446 U.S. 970, 100 S.Ct.
2952, 64 L.Ed.2d 831; and State v. Fitzpatrick (1980), 186
Mont. 187, 606 P.2d 1343, cert. denied (1980), 449 U.S. 891,
101 S.Ct. 252, 66 L.Ed.2d 118. At the time of the Smith
case, these were the only three "cases arising in Montana
since 1973, the effective date that the death penalty could
be imposed for the crime of aggravated kidnapping in which
the victim [was] killed." Smith, 705 P.2d at 1108, 42
St.Rep. at 490. The Smith decision included the following
descriptions of the circumstances involved in each of these
three cases:
The defendant in McKenzie, supra, was
charged with deliberate homicide and
aggravated kidnapping as a result of the
bludgeoning death of Lana Harding. The
District Court imposed the death penalty
for both offenses and this Court affirmed
following remand from the United States
Supreme Court. McKenzie, supra, 581 P.2d
1205. The victim was found draped over a
grain drill; partially nude; with a rope
tied around her neck; and severely beaten
about the head and body. Death had been
 caused by severe blows inflicted by
Duncan McRenzie, the defendant.
In Coleman, supra, Dewey Col-eman was
sentenced to death following the jury's
verdict of guilty of the crime of
aggravated kidnapping. The defendant
raped Peggy Harstad, beat her about the
head with a motorcycle helmet, attempted
to strangle her with a nylon rope and
finally held her in the Yellowstone River
until she drowned.
The defendant in Fitzpatrick, supra, was
convicted of deliberate homicide,
aggravated kidnapping and robbery and was
sentenced to death for the homicide and
kidnapping of Monte Dyckman. The victim
was found dead lying on the passenger
seat of his car with his hands tied
behind his back. Monte Dyckman had been
shot twice with a gun held less than
six-inches from his head. The homicide
resulted from the perpetration of the
robbery.
Smith, 705 P.2d at 1108, 42 St.Rep. at 490.
The defendant in Smith, supra, was convicted, pursuant
to guilty pleas, of two counts of aggravated kidnapping and
two counts of deliberate homicide. State ~ . 7 . Smith (Mont.
1985), 705 P.2d 1087, 42 St.Rep. 463, cert. denied (1986),
474 U.S. 1073, 106 S.Ct. 837, 88 L.Ed.2d 808. While in the
process of stealing a car, defendant Smith abducted and shot
two victims in the head at point blank range with a
sawed-off, single-shot, bolt action .22 rifle. At his
sentencing hearing, Smith indicated he committed the murders
because he did not wish to leave any witnesses to his car
theft and that he had had a "morbid fascination to find out
what it would be like to kill somebody." Smith, 705 P.2d at
1089, 1090, 42 St.Rep. at 465. Smith constitutes the fourth
case in which this Court has affirmed the penalty of death
since the Gregg case in 1976.
Keith argues his crimes were not nearly as heinous or
perverse as those cited above. However, we find it neither
convincing nor controlling that some might say Keith's
actions were not as heinous or perverse as those other
Montana cases which have generated a death penalty. In
comparison to these past cases, we find defendant Keith's
crimes are of a sufficient magnitude to qualify for capital
punishment.
Keith alleges he had "no malicious plan to take a
life." He contends his only true original intent was to
commit a robbery. Instead, his intentions were escalated out
of control due to his desire to escape and that the death of
Shryock was the result of an incompetent and negligent
response by law enforcement officials. Therefore, he
concludes that capital punishment is disproportionate and
excessive under these facts.
The record demonstrates that Keith abducted a young boy
at gun point and clearly stated he would kill the youth if
his demands were not met. Keith buttressed his claim by
forcing the barrel of the gun against the youth's head. It
is difficult to imagine how one would not classify this
scenario as a "malicious plan to take a life." The youth was
released only after he was replaced with another hostage,
Harry Shyrock, who thereupon became a kidnap victim, held at
gunpoint by Keith. Keith classifies Shryock as a "volunteer"
hostage. Although Shryock's actions were noble, they were
not voluntary. A volunteer offers himself for a service free
of compulsion. Shryock offered his presence in exchange for
the youth's freedom and his actions were therefore not free
from compulsion and cannot be classified as voluntary. As
pre~riously mentioned, Keith fired a shot at a clerk in the
store which could have resulted in her death. The District
Court concluded that the killing by Keith was in execution
style, and that Keith took Shryock's life because he did not
want to die alone. After a careful review of the entire
record, we conclude that the circumstances of this crime are
directly comparable to the four cases previously considered
in Montana. While the circumstances of the killing by Keith
are not identical to these four cases, clearly his crime is
properly classified as both heinous and perverse and of
sufficient magnitude to qualify for capital punishment in a
comparable manner to the other four cases reviewed in
Montana. We hold that capital punishment is not
disproportionate or excessive under the facts of the present
case.

11. INTENT OF THE DEFENDANT.

Keith contends the death penalty is excessive or
disproportionate for a charge of aggravated kidnapping when
that charge fails to allege he intentionally took a life.
Count V of the information charged defendant with aggravated
kidnapping and stated:
[Dlefendant DAVID CAMERON KEITH,
committed the offense of aggravated
kidnapping as specified in MCA
S 45-5-303, when he purposely or
knowingly and without lawful authority
restrained HARRY LEE SHRYOCK, JR., by
using or threatening to use physical
force with the purposes of using HARRY
LEE SHRYOCK, JR., as a shield or hostage
and/or to facilitate the commission of
several felonies or the flight
thereafter. The defendant used a handgun
in the commission of this offense and his
conduct as described in this Count
resulted in the death of HARRY LEE
SHRYOCK, JR.
Following Keith's guilty plea to the above charge, the
District Court determined Keith was eligible for the death
penalty because the charge was aggravated kidnapping which
resulted in the death of the victim and there were no
mitigating circumstances sufficiently substantial to call for
leniency. See $$§ 46-18-303, -304, and -305, MCA.
Keith's argument is that the language in the
information fails to charge him with intentionally killing
the victim. Keith argues the death penalty is excessive and
disproportionate under Count V because he did not
specifically plead guilty to any intentional conduct
regarding the death of the victim. Defendant concludes that
without this element of intent, the death penalty is
excessive and disproportionate, resulting in cruel and
unusual punishment and a violation of due process. In short,
Keith alleges that an intentional killing is a
constitutionally essential element if the death penalty is to
be imposed.
Defendant notes he did plead guilty to purposely or
knowingly causing the death of his victim under Count V I
(Deliberate Homicide), but argues that the mental state of
Count VI should not be incorporated into Count V. However,
Keith's contention merely confuses the issue by playing a
"she11 game" with the counts contained in the information.
Keith entered guilty pleas to five crimes and makes no
allegations that the information is incorrectly drafted in
regards to those crimes. Subsequent to those guilty pleas
and as he enters the sentencing phase of the trial process,
the sentencing judge is allowed to consider a wide variety of
factors. Section 46-18-302, MCA. It would be an injustice
to prohibit the District Court from considering the fact that
Keith plead guilty to deliberate homicide, when deciding
whether capital punishment was appropriate for the aggravated
kidnapping which resulted in the death of the victim.
Even assuming Keith is correct and that the District
Court can only look solely to the language contained in the
count which charges an aggravated kidnapping of Harry
Shryock, there is still no absolute prohibition from
implementing the death penalty on that count. Keith is
correct in stating that there are certain crimes for which
the Constitution will not allow a death penalty. See, Coker
v. Georgia (1977), 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d
982 (capital punishment is excessive and therefore
unconstitutional if imposed for the charge of rape alone).
However, we do not believe that capital punishment is
constitutionally prohibited in all cases unless the defendant
is responsible for an intentional killing. As support for
his argument, Keith cites Enmund v. Florida (1982), 458 U.S.
782, 102 S.Ct. 3368, 73 L.Ed.2d. 1140. Enmund involved the
question of accomplice liability in situations where an
accomplice did not directly participate in a murder, but only
assisted the murderer in his escape from the scene of the
crime. A death sentence for such an accomplice who did not
intend to commit a homicide was rejected. The Court noted
that capital punishment will probably serve as a deterrent
"only when murder is the result of premeditation and
deliberation." 458 U.S. at 799. (quoting Fisher v. [Jnited
States (1946), 328 U.S. 463, 484, (Frankfurter, J.,
dissenting)) . However, the Court indicated a substantial
limitation by stating:
It would be very different if the
likelihood of a killing in the course of
a robbery were so substantial that one
should share the blame for the killing if
he somehow participated in the felony.
Enmund, 458 U.S. at 799.
The limited nature of Enmund is highlighted by the more
recent case of Tison v. Arizona (1987), U. S. , 107
S.Ct. 1676, 95 L.Ed.2d 127. Tison involved the imposition of
capital punishment against accomplices who were substantially
involved in the commission of four homicides, but did not
actually commit homicide themselves. The Court held that
major participation in a felony murder charge, combined with
a reckless indifference to human life, is sufficient to
satisfy the Enmund culpability requirement.
Both Enmund and Tison can be distinguished from the
present facts, since both address whether the death penalty
is appropriate for an accomplice who did not actually take a
life but assisted in a crime with that result. In contrast,
defendant Keith has obviously taken a life himself. However,
the cases are useful in analyzing whether capital punishment
is an excessive or disproportionate penalty when the charging
document does not specifically allege an intent to kill by
the defendant for the particular crime that generated a death
sentence. We believe that the cases demonstrate the United
States Supreme Court has not absolutely prohibited capital
punishment in such situations.
Furthermore, this Court decided this precise issue in
McKenzie v. Osborne (1981), 195 Mont. 26, 47, 48, 640 P.2d
368, 381. In that case, defendant challenged his death
sentence for his conviction of aggravated kidnapping by
stating that there was never any finding by the jury that he
deliberately took the life of his victim. Defendant
contended that capital punishment was unconstitutionally
disproportionate for the crime of aggravated kidnapping
because there was no charge or finding that he had an intent
to kill. 195 Mont. at 47, 48, 640 P.2d at 381.' We rejected
that contention in McKenzie v. Osborne, supra, and we reject
it once again here. Capital punishment is not invariably
disproportionate to the crime when a life has been taken by
the offender. 195 Mont. at 48, 640 P.2d at 381. See also,
Gregg v. Georgia (1976), 428 U.S. 153, 187, 96 S.Ct. 2909,
2932, 49 L.Ed.2d 859, 882. Defendant Keith entered a plea of
guilty to a charge of aggravated kidnapping which resulted in
the death of his victim. We conclude that capital
punishment is not invariably disproportionate in such a case.
Finally, Keith argues that the statutory aggravating
circumstance of S 46-18-303 ( 7 ) , MCA, fai1.s to properly narrow
the class of defendants eligible for the death penalty.
Keith relies on Zant v. Stephens (1983), 462 U.S. 862, 103
S.Ct. 2733, 77 L.Ed.2d 235, and states that an aggravating
circumstance must narrow the class of people eligible for the
death penalty and reasonably justify the more severe
sentence. 462 U.S. at 877. Keith contends that the
aggravating circumstance of 5 46-18-303 (7), MCA (an
aggravated kidnapping resulting in the death of the victim),
fails to perform this task. Keith reasons that this
aggravating circumstance fails to narrow the class of
defendants eligible for capital punishment because every
aggravated kidnapping resulting in the death of the victim
qualifies for the d-eath penalty regardless of whether or not
the defendant desired the resulting death. Keith states this

1 In McKenzie, Defendant-Appellant argued in his brief
that his "death sentence was clearly imposed without a
constitutionally proper finding that he possessed the
intent to kill which the Eighth Amendment makes
prerequisite to forfeiture of life." Appellant's Brief
at 24.
particular aggravating circumstance "does not reserve the
punishment to extreme cases or to those particularly severe
crimes for which the death penalty is particularly
appropriate." He concludes that this aggravating
circumstance fails to narrow the applicability of capital
punishment to those few defendants truly deserving such
punishment.
Keith's argument is misplaced and is logically
incorrect. He ignores the wording of the statutes. Section
45-5-303, MCA, defines the offense of kidnapping for the
purposes of the present case as follows:
A person commits the offense of
aggravated kidnapping if he knowingly or
purposely and without lawful authority
restrains another person ... by using
.
. . physical force, with any of the
following purposes:
(a) to hold for ransom or reward or as a
shield or hostage; .. .
In itself the statute points out that aggravated
kidnapping was the result when Keith restrained Shryock by
the use of physical force in order to hold him as a shield
and hostage. The facts clearly demonstrate aggravated
kidnapping as defined in this section. At this point, the
sentence of death may be imposed pursuant to S 45-5-303 (2) ,
MCA. The court is required by S 46-18-301, MCA, to hold a
separate sentencing hearing to determine whether further
aggravating circumstances exist. Section 46-18-303, MCA,
defines aggravating circumstances for this purpose as:
Aggravating circumstances are any of the
following:
 (7) the offense was aggravated kidnaping
which resulted in the death of the
victim ...

Clearly the aggravating circumstance is the death of
the victim which of course goes substantially beyond the
aggravated kidnapping itself. Certainly the death of the
victim is a statutory factor which narrows the cases in which
capital punishment might be applicable. We conclude this
meets the test set forth in Zant. The United States Supreme
Court recently explained this test as follows:
[Tlhe use of "aggravating circumstances,"
is not an end in itself, but a means of
genuinely narrowing the class of
death-eligible persons and thereby
channeling the [sentencer's] discretion.
Lowenfield v. Phelps (1988), U.S. , 108 S.Ct. 546,
554, L.Ed.2d (affirming the proposition that a
sentence of death may validly rest upon a single aqgravating
circumstance even though that aggravating circumstance is a
necessary element of the underlying offense of first degree
murder). We specifically hold that § 46-18-303(7), MCA,
genuinely narrows the class of death-eligible persons and is
an appropriate aggravating circumstance for the death
penalty. In addition, we point out that the District Court
was required to consider whether any of the mitigating
circumstances of 5 46-18-304, MCA, would apply. These
circumstances of course may have a narrowing effect if any of
them are present.

111. MITIGATING CIRCUMSTANCES.
Capital punishment is inappropriate under Montana law
if the District Court finds mitigating circumstances
sufficiently substantial to call for leniency. Section
46-18-305, MCA, states in part:
In determining whether to impose a
sentence of death or imprisonment, the
court shall take into account the
aggravating and mitigating circumstances
enumerated in 46-18-303 and 46-18-304 and
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.
Section 46-18-304, MCA, address mitigating circumstances and
states:
Mitigating circumstances are any of the
following:
(1) The defendant has no significant
history of prior criminal activity.
(2) The offense was committed while the
defendant was under the influence of
extreme mental or emotional disturbance.
(3) The defendant acted under extreme
duress or under the substantial
domination of another person.
(4) The capacity of the defendant to
appreciate the criminality of his conduct
or to conform his conduct to the
requirements of law was substantially
impaired.
(5) The victim was a participant in the
defendant's conduct or consented to the
act.
(6) The defendant was an accomplice in
an offense committed by another person,
and his participation was relatively
minor.
(7) The defendant, at the time of the
commission of the crime, was less than 18
years of age.
 (8) Any other fact that exists in
mitigation of the penalty.
The District Court addressed each of the above mitigating
circumstances in its written findings of fact and found no
mitigating circumstances sufficiently substantial to call for
leniency.
Keith alleges the District Court failed to properly
consider the mitigating factors existing under these facts
and that such a failure constitutes a violation of the Eighth
and Fourteenth Amendments to the United States Constitution.
Keith is correct in asserting that the United States Supreme
Court has concluded:
[Tlhat the Eighth and Fourteenth
Amendments require that the sentencer in
all but the rarest kind of capital case,
not be precluded from considering, as a
mitigating factor, any aspect OF i ;
defendant's character or record and any
of the circumstances of the offense that
the defendant proffers as a basis for a
sentence less than death. (Emphasis in
original.)
Lockett v. Ohio (1978), 438 U.S. 586, 604, 98 S.Ct. 2954,
2964-65, 57 L.Ed.2d. 973, 990. See also, Eddings v. Oklahoma
(1981), 455 U.S. 104, 114, 102 S.Ct. 869, 876, 71 L.Ed.2d 1,
10
.. Accordingly, Montana law mandates that the District
Court consider mitigating circumstances. Section 46-18-305,
MCA. The District Court in this case properly followed the
applicable law and considered the mitigating circumstances
presented by defendant Keith.
At the sentencing hearing, Keith was given the
opportunity to present any evidence of mitigating
circumstances. Such evidence was heard and received by the
District Court. Subsequently, the District Court issued
findings of fact addressing each mitigating circumstance
listed in 5 46-18-304, MCA, including the residual category
of subsection (8) providing for the consideration of any
"fact that exists in mitigation of the penalty." The
District Court concluded that there were no mitigating
circumstances sufficiently substantial to call for leniency
and we agree with that conclusion.
Section 46-18-310, MCA, directs us to consider whether
the evidence within the record supports the District Court's
findings regarding aggravating and mitigating circumstances.
In regards to making such a consideration, we have stated:
[W]e make such an assessment based upon
our independent review of the trial court
record. In so doing, we are not usurping
the position of the District Court as the
primary entity in Montana1s system of
criminal jurisprudence, rather we mean to
insure that the death penalty, unique in
its severity ... is not wantonly or
arbitrarily and capriciously imposed.
State v. Coleman (1979), 185 Mont. 299,
605 P.2d 1000, cert. denied, 446 U.S.
970, 100 S.Ct. 2952, 64 L.Ed.2d 831,
reh'g denied, 448 U.S. 914, 101 S.Ct. 34,
65 L.Ed.2d 1177 (1980); Gregg v . Georgia,
supra, 428 U.S. 153, 96 S.Ct. 2909, 49
L.Ed.2d 859; Furman v. Georgia, supra,
408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d

Smith. 705 P . 2 d at 1096-97, 42 St.Rep. at 474.
Keith lists twenty-one items which allegedly constitute
mitigating circumstances sufficiently substantial to call for
leniency. The items tend to overlap and some are repetitive.
The list can be summarized into five categories and addressed
as follows:
1. Physical and mental disabilities.
Keith alleges he has suffered significant physical
disabilities from having been shot by law enforcement
officials during the commission of his crimes. He states
that he now suffers from seizures, his vision is impaired, he
must take daily medication, he has difficulty with his
movement, and that his right hand and arm are disabled.
Additionally, Keith contends he was suffering from
significant mental impairments before and during the
commission of his offenses. He alleges he suffers from an
organic personality syndrome, an antisocial personality
disorder, and has a long-standing history of drug abuse.
We conclude that the District Court properly discounted
these mitigating circumstances when it found that the
circumstances were not sufficiently substantial to call for
leniency. We further conclude that the District Court
considered all evidence relating to the physical and mental
disabilities of Keith which were presented at the hearing.
After a careful review of the record, we hold that the
District Court properly concluded that no substantially
mitigating circumstances existed in this case.
2. Remorse and reform.
Keith states he has experienced remorse for his crimes
and a desire to reform by helping others. ~ e i t halleges he
exhibited a concern for others by advising William Crose,
Jr., to avoid drugs. Apparently, Keith offered this advice
to his young victim sometime during the kidnapping. Keith
additionally states he has been categorized as a good worker
and no officer of the court, nor any victim or relative of a
victim, requested the death penalty. Defendant's contentions
that he is remorseful and genuinely wishes to reform are
regarded as self-serving and we refuse to find they
constitute mitigating circumstances sufficiently substantial
to call for leniency. See, Smith, 705 P.2d at 1098, 42
St.Rep. at 477.
3. Prior Criminal record.
 Keith contends his prior criminal record includes a
number of property crimes, but no crimes of violence. We
have rejected the contention that a lack of prior criminal
activity necessarily requires leniency in the sentencing.
Coleman, 185 Mont. at 331-32, 605 P.2d at 1019-20.
Similarly, we have rejected the argument that past criminal
history without any violent crimes necessarily requires
leniency in the sentence. Smith, 705 P.2d at 1098, 42
St.Rep. at 476. Keith has clearly demonstrated his capacity
for violence by threatening the life of William Crose, Jr.,
firing a shot at Delores Coffman, and in the murder of Harry
Shryock. We agree with the District Court and hold that the
absence of violent crimes from Keith's criminal history is
not a sufficiently substantial mitigating circumstance.
4. Effect of injury sustained during the commission of
the crimes.
Keith states that the gunshot wound he sustained before
he shot Shryock represents a sufficient mitigating
circumstance. Keith contends that because of the wound, he
was under the influence of extreme mental or emotional
disturbance, and that the wound substantially impaired his
capacity to appreciate the criminality of his conduct or to
conform his conduct to the requirements of the law. See,
S 46-18-303 (2) and (4), MCA.
To hold that the wound sustained by Keith is a
sufficient mitigating circumstance would be to ignore the
vast majority of his criminal activity. At the time Keith
was shot, he had completed every crime for which he plead
guilty except deliberate homicide. More importantly, Keith
had already set the stage for the deliberate homicide by
holding Shryock hostage at gunpoint. Keith cannot now
receive leniency in his sentence because he subsequently
alleges the homicide would not have occurred if he had not
been shot. Keith was responsible for creating the
circumstances generating his injury and we will not find that
the bullet wound is a mitigating circumstance sufficiently
substantial to call for leniency.
Additionally, there is reason to seriously doubt
Keith's contention altogether. In the updated presentence
investigation report filed April 4, 1985, Keith is reported
to have made a statement which stated, in part, "immediately
after [being shot] I came to the conclusion that I was going
to die, I didn't want to go alone so I fired by pistol into
the back of the head of Mr. Harry Shryock . " Despite a
liberal opportunity to do so, Keith did not object to this
portion of the report, and the District Court made the report
part of the record at the sentencing hearing on April 10,
1985. At the sentencing hearing, the District Court is
allowed to hear any evidence that it considers to have
probative force. Section 46-18-302, MCA. Keith's statement
appears to demonstrate that he consciously contemplated his
actions. Since Keith had the opportunity to rationalize and
contemplate his actions, we hold that the bullet wound does
not constitute a mitigating circumstance sufficiently
substantial to call for leniency.
5. Miscellaneous personal problems.
Finally, Keith cites a variety of miscellaneous
personal problems which he contends are sufficient mitigating
circumstances. Keith states he was young when his father
died, that his mother-in-law died within the month prior to
his crime spree, that his wife had miscarried shortly prior
to the crimes, that he was only 27 years old, and that he was
out of work. Even if we assume all of the above personal
difficulties are true, we find no mitigating circumstance
sufficiently substantial to call for leniency.
 IV. PASSION, PREJUDICE, OR OTHER
ARBITRARY FACTORS.
Section 46-18-310(1), MCA, provides that this Court
shall determine "whether the sentence of death was imposed
under the influence of passion, prejudice, or any other
arbitrary factor; ... " Keith contends his sentence was
imposed under the influence of passion, prejudice , adverse
publicity, and fear of community objection. Keith bases his
argument on three grounds.
First, Keith contends the proposed plea bargain set a
strong tone of adverse public opinion and gave rise to a
tremendous media outcry for a strong sentence. Keith alleges
the sentencing process was ultimately affected. However,
these contentions are speculative. Keith fails to produce
any evidence supporting the allegation that the sentence was
influenced by public opinion or the media, and we will not
alter or reverse his sentence based on these unsupported
allegations.
Second, Keith asserts the District Court Judge's record
and reputation demonstrate his criminal sentencing is overly
harsh, especially when a crime is drug related (Keith has a
significant history of drug abuse, but has testified he was
not under the influence of drugs at the time of the crime).
These contentions are also speculative and without any
credible supporting evidence. On December 4, 1985 the
defense filed a motion to disqualify District Judge Holter
and this Court ordered District .Judge Loble to hear and
determine the disqualification argument. The transcript
indicates that during a telephone conference on January 13,
1986 with Judge Loble, counsel for defendant Keith stated
there was "no obvious prejudice or bias on the part of Judge
Holter. " A hearing was held on the disqualification issue
February 4, 1986, and the motion was denied April 3, 1986,
because the defense failed to show prejudice and because the
motion was not timely. Keith was unable to provide any facts
or reasons to support his contention of bias or prejudice and
his motion for disqualification was properly denied. The
contention that there was prejudice or bias on the part of
the sentencing judge has no merit.
Finally, Keith relies on the recent case of Booth v.
Maryland (1987), 1 U.S. , 107 S.Ct. 2529, 96 L.Ed.2d
440. In Booth, the Court determined that it was a violation
of the Eighth Amendment for a sentencing jury to refer to
information contained in a "victim impact statement" during
the sentencing phase of a capital murder trial. The victim
impact statement included information regarding the personal
characteristics of the victims, the emotional impact of the
crimes on the family, and opinions from the family members
regarding the crimes and the defendant. The U.S. Supreme
Court found that this type of "information is irrelevant to a
capital sentencing decision, and that its admission creates a
constitutionally unacceptable risk that the jury may impose
the death penalty in an arbitrary and capricious manner." 96
L.Ed.2d at 448. Defendant contends the presentence
investigation for this case contains precisely this sort of
information and it was improperly considered by the District
Court for sentencing purposes.
The presentence investigation report contained a
section entitled "victim's impact and concerns." The section
includes summaries of interviews with four individuals:
Willaim Crose, Jr., William's father, and Harry Shryock's son
and widow. The report gives a summary of each of their
concerns regarding the crime and the impact of the crime on
their lives. The information is similar to that addressed in
the Booth case, although it does not appear to be as
inflammatory or prejudicial in nature.
 Additionally, we note that none of the individuals
interviewed in the presentence investigation express a desire
to extract a pound of flesh in the form of capital
punishment. Of those individuals interviewed, none of them
suggest that the death penalty is an appropriate recourse.
Instead, the opinions and suggestions either state or imply
that Keith should not be afforded an early opportunity for
parole and that he should probably be imprisoned for life.
In any event, Booth is factually distinguishable from
Montana sentencing procedures and does not affect the
sentence rendered by the District Court. "Section 46-18-302,
MCA, authorizes the sentencing judge to consider the widest
possible scope of inquiry when determining the sentence to be
imposed. " Smith, 705 P.2d at 1095, 42 St.Rep. at 472.
Section 46-18-302, MCA, states:
In the sentencing hearing, evidence may
be presented as to any matter the court
considers relevant to the sentence,
including but not limited to the nature
and circumstances of the crime, the
defendant's character, background,
history, and mental and physical
condition, and any other facts in
aggravation or mitigation of the penalty.
Any evidence the court considers to have
probative force may be received
regardless of its admissibility under the
rules governing admission of evidence at
criminal trials. Evidence admitted at
trial relating to such aggravating or
mitigating circumstances shall be
considered without reintroducing it at
the sentencing proceeding. The state and
the defendant or his counsel shall be
permitted to present argument for or
against sentence of death.
Additionally, Montana law requires that the probation officer
preparing a presentence investigation must inquire into
information regarding "the harm to the victim, his immediate
family, and the community." Section 46-18-112, MCA.
We see no conflict between these statutes and Booth v.
Maryland, supra, because Booth is factually distinguishable
from Montana sentencing procedures and is therefore not
controlling. Booth speaks specifically to the situation
where a jury is responsible for sentencing. In contrast, the
district court judge performed the sentencing in this case as
required by Montana law. We believe there is a great amount
of difference between what information a district court judge
may hear throughout the course of a criminal trial and
subsequent sentencing, and the information which a iury may
be allowed to hear. For example, it is commonly recognized
that the trial judge presiding in a criminal trial is allowed
to hear and rule on the admissibility of evidence which the
jury is not allowed to consider, and yet the trial judge is
still responsible for sentencing. See, Coleman v. Risley
(1983), 203 Mont. 237, 248, 663 P.2d 1154, 1160. We
emphasize that the trial judge who presided in this matter is
an experienced judge who has tried many criminal cases
including homicide cases. We have carefully reviewed the
record and find nothing to suggest that this judge was
adversely affected by anything which we might call
inflammatory as described by the defendant. We distinguish
the Booth case from the present case because there a jury was
involved and here an experienced trial judge was involved.
We hold there was no Eighth Amendment violation when the
sentencing judge referred to the victim impact information as
contained in the presentence investigation report.
Lastly, we believe defendant Keith raises this
objection too late. Keith alleges the information was
"replete with evidence which [could] only inflame and
impassion the sentencer." Despite the inclusion of this
allegedly inflammatory material, Keith failed to make any
objection until he was well into the appeal process. We
recognize that the Booth case was not decided until June 15,
1987. However, Keith and his counsel were fully aware of the
contents of the presentence investigation at sentencing and
had the burden of objecting at that time to any prejudicial
material contained in the report. If Keith's counsel truly
believed the information would "inflame and impassion" the
sentencing judge, an objection surely would have been made at
that time. The District Court offered Keith an ample
opportunity to rebut any disagreeable information in the
report at the sentencing hearing. Defense counsel was
afforded the opportunity to examine the official that
prepared the report, Keith personally testified regarding
what he believed to be inaccuracies in the report, and
defense counsel was given a liberal opportunity to enter any
objections believed necessary. In State v. Smith, supra, we
addressed a highly similar issue. In Smith, the defendant
alleged certain inaccuracies in the presentence investigation
and did so for the first time on appeal. In response, we
stated:
For the first time the defendant suggests
error in the sentence because the
presentence report included four offenses
committed prior to the defendant
attaining the age of majority. This
contention loses much of its credibility
because the defendant waited until this
appeal to raise it. This Court will not
review a matter raised for the first time
on appeal. Peters v. Newkirk (Mont.
1981), 633 P.2d 1210, 38 St.Rep. 1526;
-
Northern Plains v. Board of Natural
Resources (1979). 181 Mont. 500. 594 P.2d
297. his‘ court has long held that the
defendant has an affirmative duty to
present evidence showing the inaccuracies
contained in the report. State v.
 Transgrud (Mont. 1982), 651 P.2d 37, 39
St.Rep. 1764; State v. Radi (1979), 185
Mont. 38, 604 P.2d 318.
Smith, 705 P.2d at 1093, 42 St.Rep. at 470. We believe the
same authorities and reasoning apply here; and hold that
Keith has raised his objections too late.

V. AGGRAVATING CIRCUMSTANCES REGARDING
THE AGGRAVATED KIDNAPPING CHARGE.
Keith contends the evidence does not support the
District Court's findings of an aggravating circumstance
regarding the aggravated kidnapping charge. Montana law
requires the existence of a statutory aggravating
circumstance before capital punishment is appropriate.
Section 46-18-305, MCA. ~ggravating circumstances are
addressed in S 46-18-303, MCA, which states that an
aggravating circumstance exists when:
(7) The offense was aggravated
kidnapping which resulted in the death of
the victim ...
This subsection was amended in 1987, but the above quoted
portion remains unchanged. The District Court specifically
found that the aggravating circumstance of subsection (7)
applied.
Defendant Keith argues he should be exempted from this
aggravating circumstance because he did release William
Crose, Jr., unharmed, and fully intended to release Harry
Shryock until the time at which he was shot by a law
enforcement officer . Keith asserts the death of Shryock
would never have occurred if the situation had been properly
handled by law enforcement authorities.
It is ironic that Keith blames the law enforcement
authorities for an incident that he in fact created. Keith
can not now be exempted from this aggravating circumstance
simply because he subsequently alleges his intent was to
safely release Shryock. Section 46-18-303 (7) simply states
an aggravating circumstance exists when an aggravated
kidnapping results in the death of the victim. Aggravated
kidnapping is controlled by S 45-5-303, MCA, which states in
part:
(1) A person commits the offense of
aggravated kidnapping if he 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, with any of the
following purposes:
(a) to hold for ransom or reward or as a
shield or hostage;
(b) to facilitate commission of any
felony or flight thereafter;

Keith's abduction of Shryock fits the requirements of this
statute. At a hearing in District Court on March 28, 1985,
Keith testified as follows:
Q. Now, when you were at the airfield,
and Mr. Shryock was in the airplane, was
it your intention to have the airplane
take off and take you some place?
A. Yes, it was.
Q. And you were, Mr. Shryock was going
to, I say that, I think that it is
Shryock, was going to fly you there?
A. Yes, he was.
Q. And was that done at gun point, too?
A. Yes.
 Q. In other words, was your gun trained
on Mr. Shryock?
A. Yes, it was at the back of his head
at all times.
Q. And, did--when you exchanged the boy
for the pilot, would you tell me how that
was accomplished? I wasn't clear on
that?
A. The boy was let go. He was probably
ten yards from the airplane. Mr. Shryock
was already in the airplane and I got in
the airplane.
Defendant Keith committed an aggravated kidnapping of Shryock
and that aggravated kidnapping resulted in Shryock's death.
The District Court has properly found the existence of this
aggravating circumstance.

VI. AGGRAVATING CIRCUMSTANCES REGARDING
THE DELIBERATE HOMICIDE CHARGE.
Keith alleges the District Court improperly found the
existence of an aggravating circumstance in regard to the
deliberate homicide charge. As noted in the preceding issue,
without the finding of a statutory aggravating circumstance,
the death penalty is inappropriate. Section 46-18-303, MCA,
provides that an aggravating circumstance exists if:
(1) The offense was deliberate homicide
and was committed by a person serving a
sentence of imprisonment in the state
prison.

At the sentencing hearing on April 10, 1985, the District
Court Judge stated the following to Keith in explaining the
death penalty for deliberate homicide:
[Tlhe Court has considered Section
46-18-303 of the Revised Codes of Montana
 and I specifically find that involved was
the offense of deliberate homicide which
was committed while you were on parole
and serving on parole from a sentence out
of the State of Washington.
The statute expressly applies to "a person serving a sentence
of imprisonment - - state prison." (Emphasis added..) The
in the
plain wording of the statute does not allow an interpretation
which would include an individual on parole. The general
rule of statutory construction is set out in § 1-2-101, MCA,
which provides in pertinent part as follows:
In the construction of a statute, the
office of the judge is simply to
ascertain and declare what is in terms or
in substance contained therein, not to
insert what has been omitted or to omit
what has been inserted.
The District Court found that Keith was on parole from
the state of Washington at the time of the offense. He
committed the offense while in Flathead County. Our statute
fails to address the issue whether deliberate homicide
committed by a parolee from this or any other state
constitutes an aggravating circumstance for purposes of the
death penalty. Section 46-18-303 (1), MCA, allows the death
penalty only where the offense is committed by a person
serving a sentence of imprisonment in the state prison.
Keith does not meet this statutory requirement. We conclude
that the statutory aggravating circumstance of
46-18-303(1), MCA, did not exist. We therefore reverse the
judgment of the District Court which imposed the death
penalty for the offense of deliberate homicide.
We must note that the result on this particular issue
is troubling. We have researched the capital punishment
statutes of every jurisdiction in the United States retaining
capital punishment as a sentence and failed to locate any
aggravating circumstances drafted as narrowly as
$$ 46-18-303 (1), MCA. Statutes providing for aggravating
circumstances in certain other states tend to address all
situations where an assailant was in custody, incarcerated,
or under sentence of imprisonment. See e.g., Ariz. Rev.
Stat. Ann. 5 13-703 (f)(7)(1987); Fla. Stat. Ann.
$$ 921.141 (5) (a)(1987); and Tenn. Code Ann.
S 39-2-203 (i) (8) (1987). We invite the legislature to
consider amending 5 46-18-303(1) so that it addresses all
incarceration situations, as well as parole. However, until
such a change is made, this aggravating circumstance does not
apply unless the assailant is serving a sentence of
imprisonment in the state prison.

VII. CONCLUSION
In summary, we affirm the District Court in all
respects, except for the death sentence rendered for the
charge of deliberate homicide. After examining all errors
alleged by the defendant, we find no other reversible error.
The remaining sentences are affirmed. We remand to the
District Court to resentence defendant on the deliberate
homicide charge and to set a new date for the execution.
Judge of the District Court,
sitting in place of Mr. Chief
Justice J. A. Turnage