No. 92-098
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
3
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
TERRY ALLEN LANGFORD,
Defendant and Appellant.
APPEAL FROM: District Court of the Third Judicial District,
In and for the County of Powell,
The Honorable Ted L. Mizner, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Michael Donahoe, Donahoe & Yeshe Law Offices,
Helena, Montana
For Respondent:
Hon. Marc Racicot, Attorney General, Helena, Montana
John Paulson, Assistant Attorney General, Helena,
Montana
Christopher G. Miller, Powell County Attorney, Deer
Lodge, Montana
Submitted on Briefs: June 11, 1992
Decided: July 9, 1992
Filed:
Clerk
Chief Justice J. A. Turnage delivered the Opinion of the Court.
Terry Allen Langford (Langford) appeals an opinion and order
dated December 12, 1991, from the Third Judicial District, Powell
County, which denied as moot his motion to declare hanging a cruel
and unusual method of execution. We affirm.
We rephrase the issue as follows:
Did the District Court properly deny as moot Langford's motion
to declare hanging a cruel and unusual method of execution in
violation of the Eighth Amendment to the United States
Constitution?
On June 4, 1991, this Court affirmed Langford's convictions
and death sentences imposed by the District Court following his
guilty pleas to two counts of deliberate homicide, two counts of
aggravated kidnapping, one count of aggravated burglary, one count
of robbery, and one count of theft regarding the July 1988 deaths
of Edward and Celene Blackwood in Ovando, Montana. State v.
Langford (1991), 248 Mont. 420, 813 P.2d 936.
On July 1, 1991, this Court denied Langford post-conviction
relief. State v. Langford (1991), 249 Mont. 385, 819 P.2d 151. On
July 3, 1991, the District Court set September 24, 1991, as his
execution date.
On September 10, 1991, this Court vacated Langford's September
24, 1991 execution date following Langford's filing of a second
petition for post-conviction relief. This Court denied this second
petition for post-conviction relief on November 14, 1991. State v.
Langford (1991), 250 Mont. 542, 822 P.2d 1092.
On November 26, 1991, the District Court set January 17, 1992,
as Langford's execution date. Langford stated to the District
Court that he elected hanging as the method of execution. The
District Court issued a death warrant specifying hanging as the
method of execution and allowed Langford until December 10, 1991,
to file any further motions pertaining to his fitness to proceed.
On December 10, 1991, Langford filed consolidated motions to
declare hanging unconstitutional, to certify the qualifications of
the hangman, and to vacate the execution date. Following a hearing
on December 10, 1991, the District Court issued its December 12,
1991 opinion and order denying as moot his motion to declare
hanging unconstitutional, granting his motion to have the
hangman's qualifications certified, and denying his motion to
postpone the execution date.
On December 13, 1991, Langford petitioned for writ of habeas
corpus in the United States District Court, and requested a stay of
execution. On December 18, 1991, the United States District Court
granted his stay of execution and allowed him additional time to
file an amended petition. The amended petition, filed on January
31, 1992, included a claim that hanging is an unconstitutional
method of execution.
On February 10, 1992, Langford filed a notice of appeal from
the state District Court's opinion and order denying as moot his
motion to declare hanging unconstitutional. On April 1, 1992, the
United States District Court stayed the habeas c o r m s proceeding
during the pendency of his appeal to this Court.
Did the District Court properly deny as moot Langford's motion
to declare hanging a cruel and unusual method of execution in
violation of the Eighth Amendment to the United States
Constitution?
The District Court heard Langford's motion on December 10,
1991. Langford, his counsel, and the Powell County Attorney were
present at the hearing. All parties waived the presence of a court
reporter and the District Court instructed the clerk of court to
take detailed minutes of the proceeding.
The minutes of the hearing and the District Court's subsequent
written order indicate that the District Court inquired about
Langford's previous decision to elect hanging as the method of
execution. Langford advised the District Court that he wanted to
affirm his original election to be executed by hanging.
Notwithstanding Langford's previous election to die by hanging and
the statutory mandate that he make the election for lethal
injection at the hearing setting the execution date, the District
Court informed him that it would allow him to elect lethal
injection at that time. Langford informed the District Court that
he still wished to be executed by hanging. Thereafter, the
District Court held that Langford's election to be executed by
hanging rendered moot his argument that hanging was a cruel and
unusual method of execution.
Section 46-19-103(3), MCA, provides Langford the opportunity
to elect between lethal injection and hanging as a method of
execution. Clearly, Langford had ample opportunity to elect lethal
injection over hanging, but chose not to do so. Accordingly, he
rendered moot any claim concerning the constitutionality of hanging
as a method of execution. See DeShields v. State (Del. 1987), 534
A.2d 630. We therefore decline to discuss Langfordfs argument
further.
In conclusion, we affirm the District Court's opinion and
order dated December 12, 1991, denying as moot Terry Allen
Langfordfs motion to declare hanging a cruel and unusual method of
execution in violation of the Eighth Amendment to the U.S.
Constitution.
f~~~ Chief Justice
We concur: