State v. Smith

No. 92-149 and 92-133
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993

STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
RONALD ALLEN SMITH,
Defendant and Appellant.

APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Douglas G. Harkin, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
William F. Hooks (argued), Appellate Defender
Office, Helena, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General, Elizabeth
L. Griffing (argued), Ass 't Attorney General,
Helena, Montana
Thomas J. Esch, Flathead County Attorney, Kalispell,
Montana

Submitted: May 27, 1993
Decided: November 9, 1993
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.

Ronald Smith appeals from the Findings of Fact, Conclusions of
Law, Order and Judgment entered by the Eleventh Judicial District
Court, Flathead County, imposing the death penalty. We reverse and
remand for resentencing.
We consider the following issues on appeal:
1. Did the District Court violate Smith's Fifth Amendment,
Sixth Amendment or due process rights by considering Stratford's
report and testimony?
2. Did the District Court violate Smith's Fifth Amendment or
Sixth Amendment rights by considering the 1983 presentence
investigation report?
3. Did the District Court err by failing to order a current
presentence investigation report?
4. Did the District Court err by finding the existence of
aggravating factors set forth in 5 46-18-303(5) and ( 7 ) , MCA?
5. Does Montana's death penalty statute constitutionally
allocate the burden of proving aggravating and mitigating
circumstances?
6. Did the District Court err by adopting verbatim the
State's proposed findings of fact and conclusions of law?
7. Did the District Court err by filing its written findings
of fact one week after orally imposing the death penalty?
8. Did the District Court err by excluding evidence of
mitigating circumstances?
9. Did the District Court Judge assigned to hear the
disqualification proceedings err by denying the motion to
disqualify the sentencing judge?

A claim of ineffective assistance of counsel was raised on appeal,
but subsequently withdrawn.
This appeal results from the third sentencing of Ronald Smith
(Smith) for his participation in the kidnapping and deliberate
homicide of Thomas Running Rabbit, Jr., and Harvey Mad Man, Jr.
The factual background of these offenses is set forth in State v.
Smith (1985), 217 Mont. 461, 705 P.2d 1087; reh'q denied, State v.
Smith (1985), 217 Mont. 453, 705 P.2d 1110; cert. denied, Smith v.
Montana (1986), 474 U. S. 1073, 106 S.Ct. 837, 88 L.Ed. 2d 808 (Smith

I).
At his February 1983 arraignment, Smith pled guilty to two
counts each of deliberate homicide and aggravated kidnapping. He
presented no evidence of mitigating circumstances and requested the
death penalty. In March of 1983, the district court found Smith
guilty of the offenses and imposed the death sentence.
In April of 1983, Smith moved for reconsideration of the
sentence and for a psychiatric examination to establish mitigating
circumstances. At a hearing on the motions held in May of 1983,
Smith testified that he had committed the offenses under the
influence of alcohol and drugs and, therefore, that his state of
mind constituted one or more of the mitigating circumstances
specified in 9 46-18-304, MCA.
The district court granted the motion for a psychiatric
examination and appointed Dr. William Stratford (Stratford), a
psychiatrist, to determine whether Smith's May 1983 testimony was
credible in light of his previous failure to assert mitigating
circumstances. The court also directed Stratford to assume that
the testimony was true and to offer an opinion on whether: 1)
Smith's mental state was affected by the consumption of alcohol and
drugs; 2) his capacity to appreciate the criminality of his conduct
was impaired: and 3) his actions were influenced by extreme
emotional or mental distress. Stratford filed his report in
September of 1983, concluding that he could not determine the
veracity of the testimony and that none of the specified mitigating
circumstances existed.
In December of 1983, smith moved for an additional psychiatric
evaluation to develop other mitigating circumstances. He asserted
that the court biased Stratford by questioning the veracity of his
statements and improperly limited the scope of Stratford's
evaluation. The court denied the motion and, in February of 1984,
reimposed the death sentence. We affirmed the conviction and
sentence in Smith I.
Smith then petitioned for federal habeas corpus relief, which
was denied. Smith appealed to the United States Court of Appeals
for the Ninth Circuit. The Ninth Circuit held that the appointment
of Stratford did not comply with the requirements of Ake v.
Oklahoma (1985), 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53, and,
therefore, that it violated Smith's right to due process. Smith v.
McCormick (9th Cir. 1990), 914 F.2d 1153, 1158-59. The Ninth
Circuit remanded the matter to federal district court with
instructions to grant the writ unless the state district court
appointed a defense psychiatrist and conducted a new sentencing
hearing. The district court subsequently appointed Dr. Noel Hoell
(Hoell), a psychiatrist; Shawn Trontel (Trontel), a social worker;
David Vance (Vance), a sentencing consultant; and Dr. Lawrence
Halpern (Halpern), a pharmacologist, to assist Smith in preparing
for the sentencing hearing.
After substitution of the original sentencing judge, Smith's
third sentencing hearing was held on January 14, 1992. Hoell,
Trontel, Vance and Halpern testified on his behalf. The District
Court denied Smith's motion to preclude Stratford's testimony and
report after the State agreed to use the evidence only to rebut
mitigating circumstances.
Following the hearing, Smith moved to disqualify the presiding
judge. Smith asserted that the judge made a statement to a defense
witness which evidenced personal bias. Judge Robert Boyd was
assigned to preside over the disqualification proceedings and
subsequently denied Smith's motion.
On March 13, 1992, the District Court orally imposed the death
sentence after finding two aggravating factors set forth in § 46-
18-303, MCA, and determining that the mitigating evidence Smith
presented was not sufficiently substantial to call for leniency.
The court filed findings of fact, conclusions of law, order and
judgment consistent with its bench ruling on March 20.
Smith's appeal from the sentencing order is denominated as
Cause No. 92-149. The statutory automatic review of the death
sentence is denominated as Cause No. 92-133. The two causes have
been consolidated by order of this Court. Because we are remanding
for resentencing, we do not address the issues encompassed in an
automatic review of the death sentence.

Did the District Court violate Smith's Fifth Amendment, Sixth
Amendment or due process rights by considering Stratford's report
5
and testimony?

FIFTH AMENDMENT
Smith asserts that he was not advised of his right to remain
silent when interviewed by Stratford in 1983. On that basis, he
contends that his Fifth Amendment privilege against self-
incrimination was violated by the District Court's reliance on
Stratford's report and testimony to establish aggravating factors
and rebut mitigating evidence. He relies on Estelle v. Smith
(l98l), 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359. The State
contends that this issue was raised and rejected in Smith I and,
therefore, that it is barred by the law of the case doctrine.
The Fifth Amendment argument raised by Smith in the case
before us is not the precise argument raised in Smith I. There, he
contended that Stratford's inquiry into the credibility of his May
1983 statements violated his privilege against self-incrimination

under Estelle because he did not request his credibility to be
examined, Smith I, 705 P.2d at 1100-01. Here, Smith's Fifth
Amendment argument focuses on the alleged use of Stratford's report
and testimony to establish aggravating factors and rebut mitigating
factors. Thus, Smith is not technically barred from raising the
argument by the law of the case doctrine.
Smith's Fifth Amendment argument in the case before us,
however, is flawed in the same respect as his argument in Smith I.
In Smith I, we distinguished the circumstances surrounding Smith's

psychiatric examination from those in Estelle, The Fifth Amendment
violation in Estelle arose from the state's use of a defendant's
statements elicited at a court-ordered competency examination. We

determined that Smith had waived his Fifth Amendment privilege
regarding statements made during Stratfordfs interview because,
unlike the Estelle defendant, he initiated the psychiatric
examination. Thus, no compelled testimony was placed before the
court. Furthermore, we observed that Smith had access to the
advice of counsel prior to the psychiatric examination. Smith I,
705 P.2d at 1101.

The waiver of Smith's Fifth Amendment privilege applies
whether the statements made during the course of the psychiatric
examination are used to challenge Smith's credibility or to
establish aggravating circumstances and rebut mitigating
circumstances. There is simply no basis for Smith's argument that
the statements made during Stratford's examination, which he
requested, were compelled against his will. We conclude that the
District Court's consideration of the Stratford report and
testimony did not violate Smith's Fifth Amendment privilege against
self-incrimination.

SIXTH AMENDMENT
Smith asserts that the State used Stratfordrs report and
testimony to establish aggravating factors and rebut mitigating
circumstances, exceeding the scope of the examination as set forth
by the District Court. On that basis, he argues that he was not
able to effectively consult with his attorney in preparation for
the examination, violating his Sixth Amendment right to counsel
under Estelle and Powell v. Texas (1989), 492 U.S. 680, 109 S.Ct.
3146, 106 L.Ed.2d 551. The State contends that Smith had the
opportunity to consult with his attorney prior to the psychiatric
examination and that Estelle placed Smith's counsel on notice that
the results of the psychiatric examination could be used to rebut
mitigating circumstances.
In Estelle and Powell, the defendants were ordered to submit
to psychiatric examinations to determine their competency to stand
trial. After conviction, however, the prosecution presented
evidence obtained at the examinations at the penalty phase of the
proceedings to establish the defendants' future dangerousness--a
statutory prerequisite for imposing the death penalty in Texas.
Texas' "future dangerous" requirement is analogous to the
aggravating factors required in Montana for imposition of the death
penalty.
The United States Supreme Court determined that because the
defendants' counsel had not been informed that the psychiatric
examinations would encompass the issue of future dangerousness, the
defendants' Sixth Amendment right to counsel had been violated.
Powell, 492 U.S. at 685-86; Estelle, 451 U.S. at 470-71. The
Supreme Court reasoned that, because the psychiatric examinations
exceeded the scope of the courts' orders, the defendants were
denied the assistance of their counsel in determining whether to
submit to the examination and in ascertaining the prosecution's
possible use of its results. Estelle, 451 U.S. at 471.
 Here, the State did not use Stratford's report and testimony
to establish aggravating factors. At the January 14, 1992,
sentencing hearing, the court denied Smith's motion in limine to
exclude the Stratford evidence after the State agreed to limit its
use of that evidence to rebutting Smith's evidence of mitigating
circumstances. The prosecution presented its case for aggravating
circumstances; it did not rely on the psychiatric evidence in any
way to establish the aggravating factors. Smith then presented his
case for mitigation, and the State presented the Stratford evidence
in rebuttal. The record reflects a diligent effort by the State to
confine its use of the Stratford material to rebutting Smith's
psychiatric evidence of mitigating factors.
It is true that the District Court cited to Stratford's report
to support several of its findings relating to the statutory
aggravating factors. However, the report did not serve as the
court's sole support for any of the findings. In each instance,
the citation to Stratford's report merely supplemented preceding
citations to other evidence presented during the State's case for
aggravating circumstances.
Nor did the State's use of the psychiatric evidence to rebut
mitigating circumstances exceed the scope of the court-ordered
examination. Stratford was appointed by the court during the
sentencing phase to resolve Smith's conflicting testimony
concerning mitigating circumstances, and to offer an opinion on the
existence of three specified mitigating circumstances. Clearly,
the focus of the psychiatric examination was to evaluate mitigating
circumstances for the purposes of sentencing. Smith's counsel
could have advised Smith of the State's possible use of the
evidence obtained.
In sum, the State's use of Stratford's report and testimony
was qualitatively different from the prosecution's use of the
psychiatric evidence in Powell and Estelle; it was not relied on to
resolve any issue outside the scope of the court's order for the
psychiatric examination. We conclude that Smith's Sixth Amendment
right to counsel was not violated by the District Court's
consideration of the Stratford report and testimony.

DUE PROCESS
Smith also contends that the District Court's consideration of
Stratford's report and testimony violated his due process rights,
relying on Smith v. McCormick (9th Cir. 1990), 914 F. Zd 1 1 5 3 , 1160.
The State contends that the due process error found by the Ninth
Circuit has been cured by the appointment of an independent
psychiatrist and three other experts to assist Smith in preparing
for the resentencing hearing.
When an indigent defendant places his mental state at issue,
either at trial or at a sentencing hearing, the state must assure
the defendant access to a competent psychiatrist who will conduct
an appropriate examination and assist in the evaluation,
preparation and presentation of defendantfs case. m, 470 U.S. at
83-84. In Smith v. McCorrnick, the Ninth Circuit determined that
Stratford's appointment and his psychiatric examination of Smith
fell short of s due process requirements. Because the
sentencing court limited the psychiatric examination and required
Stratford to report directly to the court, Smith did not have the
opportunity to discuss the results with Stratford or to explore
other more favorable mitigating circumstances, which compromised
his ability to present his claims. McCormick, 914 F.2d at 1159.
This due process flaw was cured by the District Court's
subsequent appointment of Hoell, Trontel, Vance and Halpern. They
were available to provide psychiatric assistance in preparing
Smith's case for mitigation prior to the January 14, 1992,
sentencing hearing. These experts could--and did--assist Smith in
evaluating the mitigating circumstances addressed by Stratford to
determine, as a threshold matter, whether to place those issues
before the court. Additionally, their assistance afforded Smith
the opportunity to develop additional mitigating circumstances.
We hold that the District Court's consideration of
Stratford's report and testimony did not violate Smith's Fifth
Amendment, Sixth Amendment or due process rights.

Did the District Court violate Smith's Fifth or Sixth
Amendment rights by considering the 1983 presentence investigation
report?
FIFTH AMENDMENT
Smith asserts that he was not advised of the right to remain
silent when interviewed by probation officer Jerrold Cooley
(Cooley) in 1983. On that basis, he contends that the sentencing
court violated his Fifth Amendment privilege against self-
incrimination when it relied on Cooley's testimony and presentence
investigation report, citing Estelle. We considered and rejected
this same argument in Smith I. We determined, in part, that
Smith's statements made during the presentence interview were
voluntary, and distinguished Estelle based on the absence of
compelled testimony. Furthermore, we determined that the
presentence investigation report was cumulative as Smith's own
testimony confirmed the substance of the report. Smith I, 705 P. 2d
at 1094.
Under the doctrine of law of the case, a prior Montana Supreme
Court decision resolving a particular issue between the same
parties in the same case is binding and cannot be relitigated in a
subsequent appeal. State v. Van Dyken (1990), 242 Mont. 415, 425-
26, 791 P.2d 1350, 1356. Here, the doctrine clearly precludes
Smith from reasserting this argument.
Smith asserts that this doctrine is merely a rule of
procedure, not a mandatory rule of law, and should not be applied
if the result is unjust. Smith argues that application of the
doctrine is unjust because it precludes consideration of subsequent
United States Supreme Court and Circuit Courts of Appeal decisions
that have refined Estelle. However, the only subsequent case
relied on by Smith is Powell v. Texas (l989), 492 U.S. 680, 109
S-Ct. 3146, 106 L.Ed.2d 551. Smith does not articulate a specific
refinement that might justify a different result than that reached
in Smith I, nor do we find one. Therefore, we decline to address
anew Smith's Fifth Amendment argument.
SIXTH AMENDMENT

Smith asserts that a presentence interview in a capital

offense is a critical stage in the proceedings, relying on State v.
Robbins (1985), 218 Mont. 107, 708 P.2d 227, and Bullington v.
Missouri (1981), 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270. He
then argues that the District Court relied on his 'tuncounselledH
statements made during the presentence investigation interview to
impose the death penalty, violating his Sixth Amendment right to
counsel. The State contends that Smith was represented by counsel
prior to the presentence interview and had ample opportunity to
consult with his attorney regarding the presentence investigation
and the possible uses of the resulting report.
Even if preparation of the presentence investigation is viewed
as a "critical stageN of the proceedings, we conclude that Smith's
Sixth Amendment right to counsel was not violated under the Supreme
Court's Estelle analysis. As detailed earlier, the defendant's

right to counsel was violated in Estelle because the psychiatric
examination exceeded the scope of the court's order. The
defendant's attorney had n o t been n o t i f i e d i n advance t h a t t h e
psychiatric examination would include the issue of "future
dangerousness," denying the defendant the assistance of his
attorney in making the significant decision of whether to submit to
the examination. Estelle, 451 U.S. at 471.
The case before us provides no basis for finding a Sixth
Amendment violation relating to the presentence investigation
report. Smith was represented by counsel at the February 1983
arraignment at which he entered his guilty pleas and requested the
death penalty. At the arraignment's conclusion, the District Court
scheduled a Ifhearing in aggravation or mitigation of sentencef1
and
ordered a presentence investigation and report to be submitted
prior to the hearing. Thus, Smith and his attorney knew in advance
that a presentence investigation had been ordered and that the
ensuing report would be used in connection with aggravating and
mitigating circumstances at the sentencing hearing. Smith was
aided by the "guiding hand of counsel11 in preparing for the
presentence investigation. Estelle, 451 U.S. at 471.
We hold that the District Court did not violate Smith's Sixth
Amendment right to counsel by considering the presentence
investigation report.

Did the District Court err by failing to order a current
presentence investigation report?
Smith argues that the District Court erred by relying on the
presentence investigation report prepared in 1983. The State

contends that the District Court properly relied on the 1983
report, asserting that Smith did not request a current report and
that the court did not have a duty to order one sua sponte.
Montana law generally requires the District Court to order a
current presentence report prior to sentencing in felony cases.
The circumstances under which a presentence investigation report is
required are governed by 5 46-18-111, MCA, which provides in part:
Presentence investigation - when required. (1) Upon the
acceptance of a plea . . of guilty to one or more
felony offenses, the district court shall direct the
probation officer to make a presentence investigation and
 report . . ..
(2) If the court finds that the record contains
information sufficient to enable the meaningful exercise
of discretion during sentencing, the defendant may waive
a presentence investigation and report. Both the finding
and the waiver must be made in open court on the record.
Thus, absent certain circumstances, 46-18-111, MCA, places an
affirmative duty on the court to order a presentence investigation
report in felony cases. A defendant is under no obligation to

request the report.
Nor do the statutory circumstances under which a court may
decline to order a presentence investigation report exist here. As
set out above, those circumstances require a finding by the court
and a waiver by the defendant. Section 46-18-111(2), MCA. The
District Court did not make the requisite finding here. I n any

event, and more importantly, Smith did not waive the investigation
and report pursuant to the statute. We conclude, therefore, that
the District Court was required to order the preparation of a
current presentence investigation and report.
The State contends that the testimony of Vance, the probation
officer appointed to assist Smith, served as an adequate substitute
for a current presentence report. We disagree. The statute does
not permit a tlsubstitutett
report by a llsubstitute"probation
officer. Vance was appointed by the court to assist Smith in
preparing his defense. Whatever the extent and quality of Vance's
work, it does not constitute an official presentence investigation
and report, prepared by a probation officer, as required by 5 46-
18-111, MCA, and containing a11 information mandated by 5 46-18-
112, MCA.
The stated thrust of Chief Justice Turnagels dissent is the
concern that our decision on this issue Ifwould seem to allow
consideration of post-offense aqsravatins circumstances in a
resenten~ing.~~
(Emphasis added.) Nothing could be further from
the truth, as a reading of the statutes set forth by the dissent
makes clear.
Section 46-18-303, MCA, enumerates the aggravating
circumstances which can result in imposition of the death penalty
by a Montana court. The listed aggravating circumstances are both
specific and exhaustive; each either exists or does not exist as of
the moment of the offense. No other facts or evidence can
constitute an aggravating circumstance under Montana law.
Section 46-18-304, MCA, on the other hand, sets forth
circumstances which may mitigate against imposition of the death
penalty. The statute begins by listing, much as the aggravating
circumstances statute does, specific mitigating circumstances.
Seven of the eight mitigating circumstances relate directly to the
offense itself, the defendant's participation in that offense, or
the time at which the offense occurred. See §§ 46-18-304(1)-(7),
MCA .
Critically important here, however, statutory mitigating
circumstances also include I1[a]ny other fact that exists in
mitigation of the penalty." Section 46-18-304(8), MCA. This
enormously broad "catch-allt1
mitigating circumstance reflects the
legislature's clear intent to permit a defendant to raise any and
all facts and evidence which might mitigate against the death
penalty. It also corresponds to Montana's sentencing policy,
reflected in 5 46-18-112 (1)(a), MCA, which reauires inclusion in a
presentence investigation report of "the defendant's
characteristics, circumstances, needs, and potentialities."
Nothing in the language of 5 46-18-304(8), MCA, supports the
dissent's theory that mitigating evidence of conduct subsequent to
the offense cannot be offered and received during a sentencing
hearing the result of which may be imposition of the death penalty.
Furthermore, as discussed in issue 8, the dissent's theory
that post-conviction conduct is not relevant mitigating evidence
flies in the face of both controlling precedent from the United
States Supreme Court and the Ninth Circuit Court of Appeals'
decision in Smith v. McCormick (9th Cir. l99O), 914 F.2d 1153,
which resulted in the resentencing at issue here. The United
States Supreme Court has made it clear that a sentencing court in
a capital case must consider any and all relevant mitigating
evidence. Lockett v. Ohio (l978), 438 U.S. 586, 98 S.Ct. 2954, 57
L.Ed.2d 973. The Supreme Court defines relevant mitigating
evidence to include post-offense conduct during incarceration.
Skipper v. South Carolina (1986), 476 U.S. 1, 106 S.Ct. 1669, 90
L.Ed.2d 1. In addition, on habeas corpus review of Smith's prior
sentencing, the Ninth Circuit stated without equivocation that such
factors as Smith's admission of guilt, his contrition and his
commitment to rehabilitation "were all clearly relevant as
mitigating evidence.l1 Smith, 914 F.2d at 1164. The factors which
the Ninth Circuit specifically found relevant as mitigating
evidence were post-offense matters.
The dissent I s theory of what is, and what is not, relevant
mitigating evidence is not legally supportable, As a practical
matter, therefore, adoption of that theory would ensure yet another
resentencing following Smith's next trip to the Ninth Circuit.
We hold that the District Court erred by failing to order a
current presentence investigation and report upon resentencing.

Did the District Court err by finding the existence of
aggravating factors set forth in 5 46-18-303(5) and ( 7 ) ,MCA?

The District Court found that two aggravating factors set
,
forth in 5 46-18-303 (5) and (7) MCA, were present. Section 46-18-
303, MCA, provides in pertinent part:
Aggravating circumstances. Aggravating circumstances are
any of the following:

(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.

(7) The offense was aggravated kidnapping which resulted
in the death of the victim or the death by direct action
of the defendant of a person who rescued or attempted to
rescue the victim.
Smith advances several challenges to the ~istrict Court's
finding of these aggravating circumstances. We first argues that
3 46-18-303(5), MCA, fails to establish the precise conduct which

constitutes a Ifscheme or operationN and, as a result, does not
limit the sentencing judge's discretion to impose the death
sentence as required by Gregg v. Georgia (1976), 428 U. S. 1 5 3 , 192-

95, 96 S . C t . 2909, 2934-35, 49 L.Ed.2d 859, 885-87 (citing Furrnan
v. Georgia (1972), 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346.)
It is true that each statutory aggravating circumstance must
satisfy a constitutional standard derived from Fuman; the
aggravating circumstance cannot be so vague that it fails to
I1channelu the discretion of the sentencing court, resulting in
arbitrary and capricious sentencing. Zant v. Stephens (1983), 462
U.S. 862, 876-77, 103 S.Ct. 2733, 2742, 77 L.Ed.2d 235, 249-50.
The aggravating circumstance must Iqgenuinely narrow the class of
persons eligible for the death penalty and must reasonably justify
the imposition of a more severe sentence on the defendant compared
to others found guiltyH of the predicate offense. Zant, 462 U . S .
at 877.
We conclude that S 46-18-303 ( 5 ) , MCA, satisfies this
constitutional standard by narrowing the class of persons eligible
for the death penalty in two respects. First, the provision
requires that the offense of deliberate homicide be committed as
part of a scheme or operation. We have defined the word nschemell
as used in the statute to mean a Ifplanned undertakingu or a
I1systematicplan." State v. Langford (1991), 248 Mont. 420, 438,
813 P.2d 936, 950. While the word has not been defined
in the context of this statute, we believe it to be interchangeable
with the term lfscheme. See Lanqford, 813 P.2d at 950. Section
46-18-303(5), MCA, further narrows the class of persons eligible
for the death sentence by requiring that the scheme or operation
contemplate the death of more than one person.
Smith also contends that the District Court erred in finding
that he committed aggravated kidnapping which resulted in the death
of the victim, the aggravating circumstance set forth in 5 46-18-
303(7), MCA. His aggravated kidnapping conviction was based on
forcing Thomas Running Rabbit and Harvey Mad Man at gun point to
enter into a forested area where the homicides occurred. He
asserts that unlawful confinements or movements incidental to the
commission of another felony do not constitute kidnapping, relying
on State v . Anthony (Tenn. 1991), 817 S.W.2d 299.

We find no support for Smith's position in Anthonv. That
case, and the authorities upon which it relied, addressed the
propriety of a Rkidnappingw conviction when the conduct
constituting the plkidnappinglt incidental to, and inherent in,
was
another offense, such as robbery, rape or assault. Anthony, 817
S.W.2d at 303-06.
Furthermore, the thrust of Smith's argument challenges his
conviction for aggravated kidnapping, rather than asserting error
by the District Court in sentencing him. Smith was charged with
two counts of aggravated kidnapping. He pled guilty to and, as a
result, was convicted of these charges. He did not appeal his
conviction. Thus, his argument that his conduct did not constitute
aggravated kidnapping forthe purpose of establishing an aggravated
circumstance is without merit.
Finally, Smith contends that the District Court erred by using
the death of Thomas ~unning~abbitand Harvey Mad Man as both a
predicate felony under 5 46-18-303(5), MCA, and an aggravating
factor under 5 46-18-303(7), MCA. He asserts that when used as an
aggravating factor under 5 46-18-303 ( 7 ), MCA, the homicide offense
does not narrow the class of persons eligible for the death penalty
who have committed both predicate felonies of deliberate homicide
and aggravated kidnapping.
s
The obvious flaw in Smithf argument is its suggestion that an
aggravating factor is required to narrow the class of persons who
have committed two predicate felonies, a position for which he
cites no supporting authority. The aggravating factors set forth
in 5 46-18-303, MCA, are independent of each other. Each one, by
itself, is sufficient to justify the sentencing court's imposition
of the death penalty. Section 46-18-305, MCA. Under 5 46-18-
303 (51, MCA, the requirement that the deliberate homicide be
committed as part of a scheme or operation which, if completed,
would result in the death of more than one person is the
aggravating factor which narrows the class of persons who have
committed the predicate felony of deliberate homicide. The death
of the victim is the aggravating factor which narrows the class of
persons who have committed the predicate felony of aggravated
kidnapping under 5 46-18-303(7), MCA. See State v. Keith (1988),
231 Mont. 214, 754 P.2d 474.

Smith was charged with, and pled guilty to, both aggravated
kidnapping and deliberate homicide. The District Court determined
that aggravating factors relating to each offense existed,
complying with the constitutional mandates of Zant. We conclude
that Smith's conviction of both felonies does not prohibit the
District Court from imposing the death sentence under either
subsection (5) or (7) of 5 46-18-303, MCA.
We hold that t h e District Court d i d not err in finding the
existence of the aggravating circumstances set forth in 5 46-18-
303(5) and ( 7 ) , MCA.

Does Montana's death penalty statute constitutionally allocate
the burden of proving aggravating and mitigating circumstances?
Smith advances a number of arguments concerning the burdens of
proof required to establish aggravating and mitigating
circumstances and the standard by which the district court weighs
them. He first argues that the State's burden of proving
aggravating circumstances and the defendantrs burden of proving
mitigating circumstances are not set forth in 5 9 40-18-303 and -
304, MCA. H e also argues that 5 46-18-305, MCA, fails to establish

the standard to govern the district court's consideration of them.
Without citing authority, Smith contends that the failure to set
forth explicit burdens of proof and standards may result in the
arbitrary and capricious imposition of the death sentence or
exclude mitigating evidence, violating G r e m v. Georclia and Lockett
v. Ohio (1978), 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973. We
disagree.
Section 46-18-305, MCA, requires a district court to impose
the death penalty if it "finds one or more of the aggravating
circumstances and finds that there are no mitigating circumstances
sufficiently substantial to call for leniency." This provision
places the burden on the defendant to establish mitigating
circumstances justifying a sentence less severe than the death
penalty. Fitzpatrick v. State (l98l), 194 Mont. 310, 328, 638 P . 2 d
1002, 1013.
We held in Fitz~atrickthat this allocation of the burden of
proof was constitutionally sound. Because mitigating factors are
pertinent only to punishment and do not bear on a defendant's guilt
or constitute an element of a crime, we determined that it was
constitutionally permissible to place the burden of proving them on
the defendant. Fitmatrick, 638 P.2d at 1013. We are not
persuaded by any of Smith's arguments urging us to find
constitutional error in the allocation of burdens of proof.
Subsequent to Fitzpatrick, the United States Supreme Court
reached the same conclusion. In Walton v. Arizona (1990), 497 U.S.
639, 110 S.Ct. 3047, 111 L.Ed.2d 531, the Supreme Court opined that

a state does not violate a defendant's constitutional rights by
placing the burden of proving mitigating circumstances sufficiently
substantial to call for leniency on the defendant so long as the
state retains the burden of proving every element of the offense
and the existence of an aggravating circumstance. Walton, 497 U.S.
at 650.
Nor do we conclude that 5 46-18-305, MCA, is constitutionally
flawed because it fails to establish a standard governing the
district court's weighing of the aggravating and mitigating
factors. In Zant, the defendant challenged a Georgia capital
sentencing provision which, like 5 46-18-305, MCA, did not set
forth specific standards governing the sentencing jury's

consideration of aggravating and mitigating circumstances. The
defendant argued that, by failing to limit the sentencing j uryrs
discretion, the provision allowed the arbitrary and capricious
imposition of the death sentence, The Supreme Court declined to
find constitutional error based on the lack of such standards.
Zant, 462 U.S. at 875.
Smith also argues that § 46-18-305, MCA, violates due process

and the prohibition against cruel and unusual punishment, relying
on People v. Young (Colo. 1991), 814 P.2d 834. Younq provides no
support here. The death penalty provision at issue in Younq
required a jury to impose a capital sentence where the mitigating
factors did not outweigh the aggravating factors. The Colorado
Supreme Court determined that the provision violated the
prohibition against cruel and unusual punishment and the due
process clause contained in the Colorado constitution because the
provision mandated a capital sentence even if the aggravating and
mitigating factors were of equal weight. Younq, 814 P.2d at 846-
47.
Section 46-18-305, MCA, requires imposition of the death

penalty if the court finds one or more aggravating circumstance and
no mitigating circumstances sufficiently substantial to call for
leniency. Unlike the Colorado provision, it does not require the
death sentence to be imposed if the aggravating and mitigating
factors are of equal weight. Thus, Younq provides no basis for
finding § 46-18-305, MCA, unconstitutional.

We hold that Montana's death penalty statute does not
unconstitutionally allocate the burden of proving mitigating and
aggravating circumstances.

Did the District Court err by adopting verbatim the State's
proposed findings of fact and conclusions of law?
Smith contends that the District Court failed to satisfy its
duty to weigh aggravating and mitigating circumstances under 5 46-

18-305, MCA, by its verbatim adoption of the Staters proposed

findings. He relies on Patterson v. State (Fla. 19871, 513 So.2d
1257, 1261, in which the Florida Supreme Court found that a trial

judge's delegation of the responsibility to prepare the sentencing
order to the prosecution following oral imposition of the death
sentence violated his statutory duty to "independently weigh1'
aggravating and mitigating circumstances.
We have previously expressed our displeasure with a district
court's verbatim adoption of proposed findings. This is especially
true when the district court is statutorily charged with weighing
aggravating and mitigating factors in a matter so grave as the
imposition of the death penalty. However, findings adopted in such

a manner are not so inherently flawed that the prevailing party
must be reversed. Sawyer-Adecor v. Intfl Auglin (1982), 198 Mont.
440, 447, 6 4 6 P.2d 1194, 1198. Findings and conclusions that are
sufficiently comprehensive and pertinent to the issues to provide
a basis for decision and are supported by evidence will not be
overturned simply because the trial court relied on proposed
25
findings and conclusions submitted by counsel. In re the Marriage
of Hagemo (1988), 230 Mont. 255, 260, 749 P.2d 1079, 1082-83.
We hold that the District Court did not err by adopting the
State's proposed findings of fact and conclusions of law.

Did the District Court err by filing its written findings of
fact one week after orally imposing the death penalty?
Smith contends that the District Court erred by filing its
written findings one week after it orally imposed the death
sentence. Smith relies on Christopher v. State (Fla. 1991), 583
So.2d 642, in which the Florida Supreme Court vacated a death
sentence because the sentencing judge filed the written sentencing
order two weeks after sentencing. Smith asserts that S 46-18-306,
MCA, is similar to the Florida death penalty statute at issue in
Christopher; both require written findings to be filed. On that
basis, he contends that the same result must apply here. We
disagree.
The Florida Supreme Court vacated the death sentence in
Christopher based on a previously established procedural rule that
required written orders to be filed concurrently with an oral
pronouncement of the death penalty; failure to comply with the rule
resulted in a remand for imposition of a life sentence.
Christopher, 583 So.2d at 647. We have not established such a
procedural rule in Montana.
The requirement that the district court issue written findings
regarding the existence of aggravating factors and mitigating
circumstances is set forth in 3 46-18-306, MCA. No language in
26
that provision requires the court to file its written findings
concurrently with its oral imposition of the death sentence. When
construing statutes, we simply ascertain and declare what is in
terms or in substance contained therein; we do not insert what has
been omitted. Section 1-2-101, MCA. Absent a statutory
requirement, we decline to require Montana courts to file written
findings contemporaneously with an oral imposition of the death
penalty.
We hold that the District Court did not err in filing its
written findings one week after it imposed the death sentence.

Did the District Court err by excluding evidence of mitigating
circumstances?
Smith asserts that the District Court "excluded from
considerationttmitigating evidence concerning his good conduct
while incarcerated, his abusive family background, and his
codefendant's testimony regarding circumstances of the offense. He
relies on Lockett, 438 U.S. at 604, and Skipper v. South Carolina
(1986), 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1, for the general
principle that a sentencing court may not refuse to consider, or be
precluded from considering, mitigating evidence.
The State asserts that the sentencing court in Skipper
violated Lockettrs mandate that all mitigating evidence be
considered by excluding, as irrelevant, testimony offered by
defendant in mitigation. It argues that the District Court
admitted all mitigating evidence offered by Smith and, therefore,
that Skimer provides no basis for setting aside Smith's sentence.
27
 We begin by recognizing the principle that a district court in
a capital case may not be "precluded from considering,
mitiaatina factor, any aspect of a 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." Lockett, 438

U.S. at 604. The United States Supreme Court determined that this
principle was violated in both Lockett and Skipper. In Lockett, an
Ohio statute limited the range of mitigating circumstances that
could be considered by the sentencing judge. Lockett, 438 U.S. at
608. The defendant in Skipper was prevented from presenting
mitigating evidence because the sentencing court ruled it
inadmissible. Skipper, 476 U.S. at 3.

Unlike Lockett and Skimer, Smith was not prevented from
presenting any evidence of mitigation. The record reflects that
the "excluded" evidence was before the court. Vance testified that
Smith had been a manageable inmate while incarcerated: a letter
from a Canadian penal officer to that effect was attached to
Vance's amended sentencing memorandum which was filed with the
court. Trontel testified about Smith's abusive family background.
Codefendant Munrofs testimony that he stabbed one of the victims
before Smith fired the fatal gunshot and that Smith had ingested a
significant amount of drugs and alcohol was read into the record.
The real thrust of Smith's argument is his disagreement with the
weight given to certain mitigating evidence. We conclude,
therefore, that evidence of mitigating circumstances was not
"precluded" from consideration within the meaning of Lockett and
Skipper.
Smith also asserts a number of errors based on the District
Court's treatment of mitigating evidence in its written findings.
As a basis for his arguments, he relies on the Ninth Circuit's
language in McCormick that I1[t]he sentencing judge must therefore
explicitly discuss in its written findings all relevant mitigating
circumstances, 'including those it finds insufficient to warrant
lenien~y.~~'
McCormick, 914 F.2d at 1166.
Smith first argues that the District Court failed to discuss
evidence relating to his good conduct while incarcerated as a
mitigating circumstance in its written findings. The State asserts
that Smith introduced the evidence solely to rebut character
evidence that he maintained a violent lifestyle and continued to
pose a threat to the safety of other persons. On that basis, the
State contends that the evidence was considered in Finding No. 7
which concerned Smith's criminal history and stated that the
homicides were not "out of character," in Finding No. 17 which
pertains to Smith's prospect for rehabilitation, and in Finding No.
19 which indicates that the court considered character evidence.

The record reflects that Smith did not rely on the evidence of
his good behavior while incarcerated solely to rebut character
evidence, as asserted by the State. He presented such evidence as
a separate mitigating circumstance throughout the January 14
sentencing hearing and in his proposed findings of fact.
Furthermore, the court's findings relating to character are
not an adequate substitute for a finding reflecting the court's
consideration of Smith's conduct while incarcerated as a separate
mitigating circumstance. Evidence that a defendant was well-
behaved while previously incarcerated serves as a basis for an
inference that the defendant will pose no danger if incarcerated
for a life term; thus, such evidence is mitigating in the sense
that it might serve "as a basis for a sentence less than death."
Skipper, 476 U.S. at 4-5 (citation omitted). Smith's prior
criminal history, inclination toward rehabilitation, and character
do not directly reflect on his probable behavior in prison if a
life sentence, rather than the death penalty, were imposed. We
conclude that the findings relating to criminal history,
rehabilitation and character do not reflect an explicit discussion
of Smith's conduct while incarcerated as a separate mitigating
circumstance as required by McCormick.
Smith also argues that the District Court failed to properly
consider Trontel's testimony regarding Smith's abusive family
background. He asserts that the court's treatment of the testimony
was tantamount to dismissing her testimony as irrelevant and
immaterial. We disagree.
The District Court's Finding of Fact No. 12 provides in part:
The Court has taken into consideration and given effect
to the evidence submitted which details Ronald Allen
Smith's family history and his family relationships.
Nonetheless, the Court cannot give this evidence
significant weight as a mitigating factor. Ronald Allen
Smith initially stated that he had a good childhood but
that his parents were strict. While Shawn Trontel
characterized Ronald Allen Smith's family as abusive, the
Court is also mindful of Ms. Trontel's admitted
opposition to the death penalty and the admitted
influence that her philosophy has had on her conclusions.
[Citations to the record omitted.]
The finding constitutes an explicit discussion of mitigating
evidence concerning smith's family background, including Trontel's
testimony. Nothing in the finding supports Smith's assertion that
the court deemed such evidence to be irrelevant or immaterial.
Rather, the court determined that it could not give significant
weight to the evidence presented; part of the court's reasoning was
based on Smith's own statements which contradicted Trontel's. It
is within the province of the sentencing court to determine the
weight to be given relevant mitigating evidence. Eddings v.
Oklahoma (1981), 455 U.S. 104, 114-5, 102 S.Ct. 869, 877, 71
L.Ed.2d 1, 11. While the district court is obligated to consider
mitigating factors, it has no duty to give them overriding weight.
Coleman v. Risley (9th Cir. 1988), 839 F.2d 434, 497. We conclude
that the District Court properly considered Smith's mitigating
evidence concerning his family background.
Smith also argues that the findings fail to discuss
codefendant Munro's testimony concerning the circumstances of the
offense. Munro testified that he initially stabbed Thomas Running
Rabbit. Smith asserts that the possibility that Thomas Running
Rabbit was dead when shot by Smith is a mitigating circumstance.
We disagree with Smith's characterization of this testimony as
a mitigating circumstance. The gravamen of the testimony goes to
Smith's culpability for committing the offense of deliberate
homicide, an offense to which Smith pled guilty. Thus, the
testimony, does not serve to mitigate against the imposition of the
death penalty.
 Finding of Fact No. 4 reflects that the court appropriately
considered Munro's testimony in the context of the deliberate
homicide offense. In this finding, the court determined that Smith
had committed a deliberate homicide as part of a scheme or
operation which, when completed, resulted in the deaths of two
persons, an aggravating factor defined by § 46-18-303(5), MCA. It
provides in part:
Thomas Running Rabbit, Jr. then was struck with Munro's
knife and fell to the ground. Ronald Allen Smith went
over to Thomas Running Rabbit, Jr. while he was lying on
the ground and shot him in the back of the head, killing
him. [Citations to the record omitted.]
We conclude that the District Court did not err in confining its
consideration of Munrols testimonyto its finding of an aggravating
factor under § 46-18-303(5), MCA, which requires deliberate
homicide as a predicate offense.
Smith also argues that the District Court did not properly
consider Munro's testimony relating to Smith's ingestion of alcohol
and drugs prior to the commission of the crimes. The courtfs
findings, however, reflect a consideration of this evidence.
Findings of Fact No. 14 and 15 provide as follows:
14. While Ronald Allen Smith's alcohol use did not meet
the statutorymitigating criteria in Section 46-18-304(2)
and (4), MCA, the Court has nevertheless taken into
consideration and given effect to Ronald Allen Smith's
alcohol usage as a mitigating factor. Ronald Allen Smith
described himself as "fairly loaded" at the time of the
killings. Smith testified at the plea hearing that he
was aware of his actions in shooting the young men and
was not so intoxicated that he did not know what he was
doing. At the time of the murders, Smith was able to
talk and walk in a deliberate and purposeful manner.
Smith gave the appearance that he knew what he was doing
at the time of the offenses. Moments after the murders,
Smith became concerned with the quality of Andre
 Fontaine's driving and Smith then drove the now stolen
car himself and did so without difficulty. The Court
finds that Smith had consumed beer on the day of August
4, 1982, butthat his consumption of the alcohol did not
so affect his actions that it should be given significant
weight as a mitigating factor.
15. With respect to Ronald Allen Smith's drug usage, the
record is unclear as to when Smith consumed a number of
doses of LSD or acid. The Court notes that there was no
mention of such drug usage at the time of the plea
hearing or the pre-sentence investigation.
Dr. Halpern, a pharmacologist, described typical
symptoms of being under the influence of LSD, including
dizziness, weakness, difficulty moving, hot or cold
feelings, nausea, numbness, body lighter, body heavier,
shaking of the body, and drowsiness. Dr. Halpern also
described perceptual changes that may occur such as
altered shapes, altered colors, blurred vision, visual
contrast clearer, hearing more acute, sounds more acute.
He testified that the drug may result in an altered mood
and a distortion of time, and depersonalization. While
Ronald Allen Smith has stated that he has had flashbacks,
a heightened sensitivity in the senses, the Court finds
it most notable that Ronald Allen Smith has not
described, nor did any of his companions describe, him
operating under or experiencing the numerous symptoms and
affects from LSD at the time of the murders. Ronald
Allen Smith did describe a ttdepersonalization't
experience
to Dr. Stratford, but this symptom stands alone. There
is nothing in the record to indicate that Ronald Allen
Smith was experiencing at the time of the murders any of
the multi-faceted symptoms described by Dr. Halpern. Dr.
Stratford opined that the depersonalization experience
could have been caused by the stress of the murders
themselves rather than drug usage. Because neither
Ronald Allen Smith nor his companions described any
symptoms indicating that Smith was under the influence of
LSD, and because the record uniformly indicates that
Smith was aware of his actions and that he acted in a
methodical and deliberate fashion, the Court cannot give
significant weight to the evidence of Smith's drug usage.
[Citations to the record omitted.]
Here, the court determined that Smith had consumed beer prior to
committing the offenses and that the record was unclear as to when
he ingested a number of doses of LSD or acid. Thus, without
explicitly citing to Munro's testimony, the findings take into
account the substance of his testimony.
Additionally, we do not agree with the thrust of Smith's
argument that the finding must specifically refer to every piece of
evidence offered in support of the mitigating circumstance. As the
Ninth Circuit stated in Coleman, 839 F.2d at 502, the sentencing
court is not required to provide an "extensive excursus" into each
mitigating circumstance. We conclude that these findings
constitute an explicit discussion of the evidence in mitigation
relating to Smith's alcohol and drug ingestion.
We hold that the District Court did not preclude Smith from
presenting any evidence of mitigation, but that its findings do not
reflect an adequate consideration of Smith's conduct while
incarcerated as a mitigating circumstance.

Did the District Court Judge assigned to hear the
disqualification proceedings err by denying the motion to
disqualify the sentencing judge?
Following the January 14, 1992, sentencing hearing, Smith
filed an affidavit to disqualify the presiding judge, the Honorable
Douglas Harkin, pursuant to 5 3-1-805, MCA. He alleged that a
comment made by Judge Harkin to defense witness Hoell on the
morning of January 15 reflected personal bias or prejudice. Judge
Robert Boyd, who was appointed to preside over the disqualification
proceeding, found that the content of the remark was in dispute and
that Hoell could have misconstrued a remark about the weather as a
comment on Smith. He concluded that the comment evidenced neither
bias nor the appearance of bias.
 On appeal, Smith reasserts that Harkin should have been
disqualified pursuant to the canons of judicial ethics which
prohibit the appearance of impropriety and on state and federal due
process grounds. We decline to address Smith's contention because
we remand to a different judge for resentencing.
Remand to a different judge is not the usual remedy where, as
here, an error is found in the District Court proceedings. This
Court remands to a new judge only under "unusual circumstances."
Coleman v. Risley (1983), 203 Mont. 237, 249, 663 P.2d 1154, 1161.
In determining whether a different judge should preside over
proceedings on remand, three factors are considered: 1) whether the
original judge would reasonably be expected, upon remand, to have
substantial difficulty in putting out of his or her mind previously
expressed views or findings determined to be erroneous or based on
evidence that must be rejected; 2) whether reassignment is
advisable to preserve the appearance of justice: and 3) whether
reassignment would entail waste and duplication out of proportion
to any gain in preserving the appearance of fairness. Coleman, 663
P.2d at 1161.
Judge Harkin sentenced Smith to death based on his conclusions
that aggravating circumstances existed and mitigating circumstances
were not sufficient to require leniency. There is no indication
that Judge Harkin would have substantial difficulty in putting his
prior conclusion out of his mind if required to reweigh mitigating
circumstances in light of a current presentence investigation and
report at resentencing. We believe, however, that in a capital
case where the life of the defendant is at issue and error is found
relating to the consideration of mitigating circumstances, the
prudent course is to remand to a different judge to assure that the
mitigating and aggravating factors are considered without regard to
a previously drawn conclusion.
Furthermore, as indicated above, Smith moved to disqualify
Judge Harkin on the basis of personal bias. The motion was denied
and the death penalty was imposed. Given the motion to disqualify
and the court's imposition of the death sentence, we are mindful
that further sentencing by Judge Harkin might appear unjust. Thus,
remand to a different judge will preserve the appearance of
justice.
It is true that remand to a different judge will result in
some waste and duplication of court resources. We conclude,
however, that the benefits of remand to a new sentencing judge
outweigh fiscal concerns.
We vacate the District Court's order imposing the death
penalty and remand for resentencing. We direct the District Court
to appoint a different judge to preside over the resentencing
hearing to be conducted consistent with this opinion.
Reversed.
We concur:

Chief Justice

Justices

The Honorable James E. Purcell,
District Judge, sitting for
Retired Justice R. C. McDonough
Justice Terry N. Trieweiler specially concurring in part and
dissenting in part.
I concur with the majority's conclusions regarding Issues I
through 3, and 5 through 9.
I also concur with the majority's conclusion that based on
defendant's plea of guilty, from which no appeal was taken, the
,
aggravating circumstance set forth at 3 46-18-303 (7) MCA, was
correctly found to exist by the District Court.
However, I dissent from that part of the majority opinion
which concludes that the aggravating circumstance set forth at
3 46-18-303(5), MCA, was present in this case.
The death of defendant's victims in this case did not result
from "a scheme or operation which, if completed, would result in
the death of more than one person."
There was no scheme in this case. Defendant and his companion
wanted the victims1 car. In order to escape with the car, they
removed the victims from the car and accompanied them to the woods.
During the approximate 125 foot journey from the car to the woods,
defendant decided to kill his victims. This homicide was a
senseless, brutal act, but there was no plan nor scheme involved.
The State contends that the requirements of § 46-18-303(5),
MCA, were satisfied because defendant brought a sawed off rifle

into the United States with the intention of robbing people.
However, there was no evidence that his plan to rob people
necessarily included a plan to end anyone's life.
 The aggravating circumstance found in § 46-18-303(5), MCA,
simply has no application to the circumstances in this case. It
was thrown in for good measure by the sentencing court. However,
it is not supported by the record, and on remand I would instruct
the District Court not to consider it as an aggravating
circumstance when sentencing this defendant.
Chief Justice J. A. Turnage concurring in part and dissenting in
part:
I concur with the majority opinion with the exception of its
decision on Issue 3, whether the court erred in failing to order a
current presentence investigation. In particular, I am concerned
that the Court's opinion would seem to allow consideration of post-
offense aggravating circumstances in a resentencing.
In its brief, the State relies upon Smith's failure to request
a new presentence investigation. It does not address the core
issue of whether a criminal defendant has a right to a new
presentence investigation upon resentencing.
Other courts have held that a new presentence investigation is
not necessarily required upon resentencing, subject to the facts of
the case and the language of the statute requiring presentence
investigations (and ours does not directly address this particular
issue). Where the court has indicated that it would resentence on
the basis of facts available at the time of the original sentence,
a new presentence investigation is not required. United States v.
Fernandez (3rd Cir. 1990), 916 F.2d 125, cert. denied, 111 S.Ct.
2249. Whether to order a new presentence investigation for
resentencing is a matter of discretion with the sentencing court.
United States v. Hardesty (9th Cir. 1992), 958 F.2d 910. Where the
original sentencing judge resentences, supplemental evidence is
presented at a resentencing hearing, or resentencing is close in
time to the original sentencing, a new presentence investigation is
not required. People v. Munson (111.~pp. Dist. 1988) , 525 N.E. 2d
3

250, cert. denied, 530 N.E.2d 257; People v Brown (111.App. 4
.
Dist. 1990), 555 N.E.2d 794. Where the defendant has not requested
a new presentence investigation and the court has allowed evidence
to be presented at the resentencing hearing, a new presentence
investigation is not required. People v. Duboulay (A.D. 2 Dept.
1990), 551 N.Y.S.2d 582, cert. denied, 557 N.E.2d 1190.
The relevant statutes provide in their relevant parts as
follows:
46-18-111. Presentence investigation -- when
required. (1) Upon the acceptance of a plea or upon a
verdict or finding of guilty to one or more felony
offenses, the district court shall direct the probation
officer to make a presentence investigation and report.
...
46-18-112. Content of presentence investigation
report. (1) Whenever an investigation is required, the
probation officer shall promptly inquire into and report
upon :
(a) the defendant's characteristics, circumstances,
needs, and potentialities;
(b) the defendant's criminal record and social
history;
(c) the circumstances of the offense;
(d) the time of the defendant's detention for the
offenses charged ...
46-18-301. Hearing on imposition of death penalty.
When a defendant is found guilty of or pleads guilty to
an offense for which the sentence of death may be
imposed, the judge who presided at the trial or before
whom the guilty plea was entered shall conduct a separate
sentencing hearing to determine the existence or nonexis-
tence of the circumstances set forth in 46-18-303 and 46-
18-304 for the purpose of determining the sentence to be
imposed. The hearing shall be conducted before the court
alone.
 46-18-302. Evidence that may be received. 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 assravation or mitisation of the ~enaltv.
[Emphasis added.]
...
46-18-303. Aggravating circumstances. Aggravating
circumstances are any of the following: ...
(7) The offense was aggravated kidnapping which
resulted in the death of the victim or the death by
direct action of the defendant of a person who rescued or
attempted to rescue the victim.

46-18-304. Mitigating circumstances. 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.
It is neither logical nor conceivable that Smith, while
incarcerated on death row at all times subsequent to the presen-
tence report and sentencing could produce any mitigating circum-
stance that is provided for in 5 46-18-304, MCA.
 Most certainly, consideration of aggravating circumstances as
set forth in 5 46-18-303, MCA, can only relate to any such
circumstances that occurred at the time of the commission of the
crimes of deliberate homicide and aggravated kidnapping.
If the District Court, based on a new presentencing report,
considered "good conduct" of Smith on death row as a mitigating
circumstance to the crimes he committed, which I submit is neither
logical nor justified, may the District Court therefore consider
new aggravating circumstances that occurred subsequent to the
commission of the offenses? Of course not.
To consider Smith's conduct on death row as an aggravating
circumstance would be not only unthinkable but unconstitutional.
It would be a denial of due process of law (accused of and punished
for something he may not have been charged with or did not have an
opportunity to refute), and a clear double jeopardy violation--he
would be again put in jeopardy for the same offense previously
tried, but would risk enhanced sentencing because of an aggravating
circumstance which occurred after the initial sentence was imposed.
I believe it is clear that consideration of aggravating and
mitigating circumstances as set forth in 55 46-18-302, -303, and
-304, MCA, can only logically and properly relate to circumstances
that occurred prior to or as a part of the res sestae of the crimes
for which conviction occurred. To assume that somehow or other
Smith, by being polite to his guards on death row, has established
a mitigating circumstance concerning the crimes he committed is
neither statutorily permitted nor contemplated.
A presentence investigation has already been conducted, for
purposes of Smith's 1983 conviction of these same offenses. The
law does not require idle acts. Section 1-3-223, MCA. Because the
relevant mitigating and aggravating circumstances have already been
documented in that report, a new presentence investigation would
serve no logical purpose.
I would affirm the conviction.

Justice John C. Harrison and District Judge James E. Purcell join
in the opinion of Chief Justice Turnage.

Judge, sitting in the seat vacated
by the retirement of Justice R. C.
McDonough