No. 89-272
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
STATE OF MONTANA,
Plaintiff and Respondent,
RUSSELL H E I T ,
Petitioner/defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable William J. Speare, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
R. Allen Beck, Billings, Montana
For Respondent:
Marc Racicot, Attorney General
Harold Hanser, County Attorney
Curtis L. Bevolden, Deputy County Attorney
Submitted on Briefs: April 12, 1990
Decided: May 10, 1990
a,
"clerk
Justice R. C. McDonough delivered the Opinion of the Court.
The defendant Russell T. Heit appeals the judgment of the
Thirteenth Judicial District Court, Yellowstone County, convicting
him of deliberate homicide and robbery, sentencing him to one-
hundred and fifty years in the Montana State Prison, and denying
him parole eligibility. We affirm the judgment, sentence, and
order. Heit raises the following issues on this appeal:
(1) Did the District Court err in refusing an instruction on
mitigated deliberate homicide as a lesser included offense of
deliberate homicide?
(2) Did the trial court err in admitting evidence of the
defendant's statements to a psychologist in sentencing, where this
evidence was the apparent basis for the trial court's declaration
that the defendant was ineligible for parole?
(3) Did the trial court fail to include a statement of
reasons in declaring the defendant ineligible for parole as
required by 46-18-202 (2), MCA.
On the afternoon of September 28, 1988 the body of bartender
Gary Loos was found lying in a pool of blood behind the bar of the
Acton Bar. Loos had been killed by a gunshot wound to the neck.
A cash tray from the bar's cash register was found near the body.
Sheriff's deputies investigated the scene and among the items
recovered were an unspent .22 caliber cartridge in front of the
bar, a spent .22 shell on the back bar, two beer cans in front of
the building and one on the bar, all with the defendant's
fingerprints, a pack of Merit cigarettes, and a Merit cigarette
2
butt in an ashtray in the center of the bar. The deputies also
interviewed several people who had seen a man matching Heit's
description in the bar sometime between 1:00 p.m. and 2: 00 p.m.
They also described a motorcycle resembling the defendant's. That
evening Doug Brandon, an acquaintance of Heit's, telephoned the
Billings police Department and informed them that Heit was involved
in the Acton Bar homicide.
Heit was arrested the following day in Bridger Montana. After
being read his ~irandarights, a deputy testified that Heit told
him "1 shot him, what the fuck does it matter . . . does it make
any difference?" The officer testified that further questioning
yielded the same response: "1 shot the fucker. What fucking
difference does it make? I shot him. What fucking difference does
it make to his wife." ~ccording to the officers, Heit fully
described the robbery while being transported, appearing arrogant
but not intoxicated. According to Doug Brandon, on the day of the
murder Heit told him about the shooting: 'Ithe guy said something
to him that made him mad and he shot him."
At trial, the jury found Heit guilty of deliberate homicide
and robbery. At the evidentiary hearing on sentencing the State
requested the death penalty based on the theory that Heit had been
lying in wait. At the hearing, the State called a court-appointed
psychologist from Warm Springs State Hospital who testified
regarding Heitts psychological and psychiatric evaluation and the
report filed pursuant to the evaluation. The psychiatric
examination of Heit indicated Itpoor judgment, irresponsibility,
aggressiveness, and impulsivity [sic]" as personality traits. The
report also found that Heit was competent to stand trial, but also
apparently suffered from an anti-social personality disorder and
alcohol dependence:
[h]e has a history of using physical aggression to vent
his anger, despite some of his friends1 current
pronouncements that he is really a passive person. He
admits to punching walls when he is angry, to Itslapping
aroundu his ex-wife and to severe verbal arguments with
his most recent ex-wife. He has, on numerous occasions,
reportedly boasted of killing someone.
At the sentencing the court found insufficient the facts offered
by the State in support of its theory of lying in wait as an
aggravating circumstance and denied its request for the death
penalty. The court, in its conclusions of law, specifically found
that the defendant showed no remorse and denied any remembrance of
the crime, although Heit, in a letter to the Court, described
himself as a nonviolent person.
Heit was sentenced to consecutive terms of 100, 40, and 10
years confinement. The court also concluded that Heit would be
ineligible for parole pursuant to § 46-18-202, MCA. Heit now
appeals.
Heit1s first contention on appeal is that the ~istrictCourt
erred in refusing to instruct the jury on mitigated deliberate
homicide as a lesser included offense of deliberate homicide. We
disagree. Heit was charged alternatively with deliberate homicide
under § 45-5-102 (1)(a) or (b), MCA. The statute defining the
lesser offense of mitigated deliberate homicide is set forth at
S 45-5-103, MCA, and provides;
45-5-103. Mitigated Deliberate Homicide. (1) A person
commits the offense of mitigated deliberate homicide when
he purposely or knowingly causes the death of another
human being but does so under the influence of extreme
mental or emotional stress for which there is reasonable
explanation or excuse. The reasonableness of such
explanation or excuse shall be determined from the
viewpoint of a reasonable person in the actor's
situation.
(2) It is an affirmative defense that the defendant
acted under the influence of extreme mental or emotional
stress for which there was reasonable explanation or
excuse, the reasonableness of which shall be determined
from the viewpoint of a reasonable person in the actor's
situation. This defense constitutes a mitigating
circumstance reducing deliberate homicide to mitigated
deliberate homicide and must be proved by the defendant
by a preponderance of the evidence.
(3) Mitigated deliberate homicide is not an
included offense of deliberate homicide as defined in 5
45-5-102 (1)(b).
Under subsection (3) of the above-quoted statute, a charge under
subsection (b) of the deliberate homicide statute, commonly
referred to as the felony murder rule, is clearly exempt from any
requirement that the jury be instructed on mitigated deliberate
homicide as a lesser included offense.
Because Heit was charged alternatively, he also maintains that
he deserved the instruction under subsection (a) of the deliberate
homicide statute. Generally, "a defendant is entitled to
instructions on lessor [sic] included offenses if any evidence
exists in the record which would permit the jury to rationally find
him guilty of a lessor [sic] offense and acquit him of a greater.
State v. Thornton (1985), 218 Mont. 317, 320, 708 P.2d 273, 276,
quoting State v. Ostwald (1979), 180 Mont. 530, 538, 591 P.2d 646,
651. Under this rule, in order to find Heit guilty of a lesser
offense, Heit had to present some evidence supporting the elements
of mitigated deliberate homicide as set forth in 5 45-5-103, MCA.
Thus, Heit was required to offer some evidence demonstrating that
he acted under I1extrememental or emotional stress for which there
is reasonable explanation or excuse. Thornton, 708 P.2d at 276,
8 45-5-103, MCA. The defendant contends that the evidence received
at trial demonstrated that there was a struggle over the gun, and
that Mr. Heit was agitated and completely intoxicated, and that
this evidence was sufficient to warrant instructing the jury on
the lesser included offense.
This contention lacks merit. While this evidence indicates
that Mr. Heit may have been upset at the time the crime was
committed, it does not support a finding of "extreme mental or
emotional stress for which there is reasonable explanation or
excuse. Section 45-5-103(1), MCA. Nor were there any
allegations made that there was a reasonable explanation or excuse
for Heit1s alleged stress other than testimony indicating that the
bartender may have said something that made Heit angry. On the
other hand, the evidence clearly establishes that the defendant
purposely or knowingly caused the death of another human being.
Section 45-5-102 (1)(a). Having presented no credible evidence of
mitigation and furthermore having espoused the theory in closing
argument that he did not kill the deceased, Heit was not entitled
to an instruction on mitigated deliberate homicide as a lesser
included offense. See State v. Baugh (1977), 174 Mont. 456, 460,
571 P.2d 779, 781, State v. McDonald (1915), 51 Mont. 1, 16, 149
Heit Is next contention is that the District Court erred in
admitting the statements of a court-appointed psychologist in
sentencing, where this evidence was the apparent basis for the
trial court's declaration that Heit was ineligible for parole.
This contention also lacks merit. At the August 15th sentencing
hearing conducted after an earlier evidentiary sentencing hearing,
the trial court identified the bases of the sentence imposed:
So the court, after considering the evidence at the
hearing, which consisted really of the opinion of Officer
Jensen and then the reasons why he made that opinion, and
the psychologist from Warm Springs, who I am not certain
helped in the matter for either side--as I point out both
of you use the same testimony, the same report, and
arrive at a totally different ... thing; but I believe
the law requires me to find beyond a reasonable doubt
that there were aggravating circumstances. The only
aggravating circumstance set forth was lying in wait or
ambush. I can't make that finding.
This record indicates that the psychologistlstestimony and report
were not the bases for the trial court Is declaration that Heit was
ineligible for parole. Nor was this evidence the l1apparentl1
basis
for this determination as alleged in the issue as framed by Heit.
We will discuss these bases for denial of parole in the next
section of this opinion. Therefore, we need not determine if the
admission of the psychologistslstestimony and report at sentencing
constituted error; any such error would be deemed harmless as the
evidence was not utilized by the trial court in sentencing. Rule
103, M.R.Evid.; Section 46-20-701, MCA; State v. Miller (1988),
231 Mont. 497, 519, 757 P.2d 1275, 1289; State v. Warnick (1985),
216 Mont. 102, 105, 699 P.2d 1049, 1051.
Finally, Heit contends that the trial court erred because it
failed to include a statement of reasons in declaring him
ineligible for parole as required by 5 46-18-202(2), MCA.
The statute provides:
. . .Whenever the district courton sentence. . . .
46-18-202. Additional restrictions
imposes a sentence
(2)
of imprisonment in the state prison for a term exceeding
1 year, the court may also impose the restriction that
the defendant be ineligible for parole and participation
in the supervised release program while serving his term.
If such a restriction is to be imposed, the court shall
state,the reasons for it in writing. If the court finds
that the restriction is necessary for the protection of
society, it shall impose the restriction as part of the
sentence and the judgment shall contain a statement of
the reasons for the restriction.
Section 46-18-202(2), MCA. In its Judgment, Sentence, and Order,
the trial court stated:
4. This Court specifically finds and hereby determines
the Defendant is a dangerous offender for the purpose of
his eventual parole eligibility. The Court expressly
declares the Defendant possesses [sic] a serious and
substantial threat to the welfare and safety of other
persons and is determined to be ineligible for parole or
participation in the supervised release program or its
future equivalent while serving the several terms herein
imposed.
Heit maintains that paragraph 4 of the judgment is merely a
reiteration of the statutory language and a conclusory statement
clearly lacking the written reasoning required by the statute.
He contends that the sentencing document must give some factual
basis for distinguishing him from others convicted of deliberate
homicide who are not denied parole, stating such factual basis as
the reason for the denial. While technically there is some merit
in this contention, an examination of the sentencing document as
a whole does reveal some minimal reasons for imposing the parole
restriction. In its Conclusions of Law, the trial court made the
following statements:
7. The Defendant continues to show no remorse and
continues to deny any remembrance of the crime and states
that because he and others believe him not to be a
violent person nor a thief that he believes that he did
not commit the crime.
8. This court must impose sentences based upon the
nature of and the seriousness of the offenses committed
by the Defendant, the circumstances under which they were
committed, and the presence of aggravating circumstances
and the absence of substantial mitigating circumstances
or any prospect of rehabilitation.
9. The sentence which the court imposes must also
be determined by the obvious and vital importance of
preventing the commission of additional offenses by the
Defendant and the essential and overriding need to
protect society from his violent and unlawful tendencies.
(Emphasis added.)
In its Findings of Fact, the court very thoroughly laid out the
events constituting the perpetration of the crime, clearly
demonstrating the pointless and brutal nature of the act. While the
trial court failed to articulate that the brutality of this crime
distinguishes this defendant from others convicted of deliberate
homicide, it did state that the defendant possessed violent
tendencies, felt no remorse, and the sentence was imposed because
of the obvious importance of protecting society from this
Defendant. While the factual basis for this conclusion was not
precisely specified as the rationale for parole denial, the heinous
nature of this particular crime as evidenced by the facts
specifically found by the trial court make the rationale for the
denial obvious.
AFFIRMED.
Justice /'
We Concur: /
A7
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Chief Justice
Justices