State v. Smith

Nos. 95-477 and 95-494
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996

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

APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable John W. Larson, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Gregory A. Jackson, Jackson & Rice, Helena, Montana
Donald Vernay, Big Fork, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General; Elizabeth
Griffing, Assistant Attorney General, Helena,
Montana
Thomas Esch, County Attorney, Kalispell, Montana

Heard: October 29, 1996
Submitted: November 7, 1996
Decided: December 1,13, 1996
Filed:

,,..I_
Chief Justice J. A. Turnage delivered the Opinion of the Court.

Ronald Allen Smith appeals from the September 19, 1995

judgment of the Eleventh Judicial District Court, Flathead County,

ordering that he be executed according to the laws of the State of

Montana. His appeal is here consolidated with this Court's

automatic review of a death penalty case. We affirm.

The issues are:

1. Is the sentence imposed the result of vindictive prosecu-

tion by the State of Montana?

2. Is Montana's death penalty statutory scheme unconstitu-
tional in its allocation of the burdens of proof of aggravating and

mitigating circumstances?

3. Are the court's findings of the existence or nonexistence

of aggravating and mitigating circumstances supported by the

evidence?

4. Did the court erroneously rely upon the reports and

testimony of Dr. Stratford in reaching its decision, and, if it did

so rely, did such reliance violate Smith's right against self-

incrimination, right to counsel, and right to due process?

5. Did the court err by excluding mitigating evidence from

consideration?

6. Does the 5 46-18-310(3), MCA, requirement that this Court

undertake a proportionality review deny a capital defendant due

process of law?

7. Is the sentence imposed disproportionate to the penalty

imposed in similar cases?

2
I
8. was the sentence imposed by the court under the influence

of passion, prejudice, or any other arbitrary factor?

9. Was Smith's right to due process or his right to be free

from cruel and unusual punishment violated by resentencing him to

death, because of the amount of time he has spent on death row and

the number of sentencing hearings held in this case?

This appeal and automatic review of a death sentence follow

the 1995 sentencing of Ronald Allen Smith for his participation in

the 1982 kidnappings and deliberate homicides of Thomas Running
Rabbit, Jr., age 20, and Harvey Mad Man, Jr., age 23. The factual

background of these offenses is set forth in State v. Smith (1985),

217 Mont. 461, 705 P.2d 1087 (Smith I), and will be detailed more

fully as necessary in the discussion of the issues below.
Smith was originally sentenced to death in 1983 after he pled

guilty to two counts of aggravated kidnapping and two counts of

deliberate homicide. At that time, he requested the death penalty,

stating that he had killed the victims to obtain their car and

because he wanted "to find out what it would be like to kill

somebody." In Smith I, this Court affirmed the death sentences.

However, in 1990, the Ninth Circuit Court of Appeals condi-

tionally granted Smith's petition for habeas corpus. Smith v.

McCormick (9th Cir. 1990), 914 F.Zd 1153. The court remanded with

instructions directing the District Court to appoint a defense

psychiatrist for Smith and to weigh the mitigating evidence in its

totality against the aggravating circumstances.

3
 The District Court conducted proceedings to comply with the
Ninth Circuit Court's instructions and subsequently resentenced
Smith to death on March 13, 1992. This Court reversed that
judgment in State v. Smith (1993), 261 Mont. 419, 863 P.2d 1000
(Smith II). The Smith II Court remanded with directions that a new
presentence investigation report must be prepared and, in resenten-
cing, a different district judge must consider Smith's conduct
while incarcerated as a mitigating circumstance.
On remand, a different district judge assumed jurisdiction.
He appointed Smith a new sentencing consultant, a new psychologist,
and a new pharmacological consultant. All three of those experts
testified for Smith at the May 1995 sentencing hearing. At the
hearing, Smith further presented his own testimony and that of a
psychiatric social worker; his accomplices; his teacher at Montana
State Prison; and video testimony of his sister, his daughter, and
a Smith family friend.
The State called as a witness at the 1995 sentencing hearing
the author of the extensive presentence investigation report
prepared for that sentencing. The State also called, as victim
impact witnesses, members of the victims' families. Following the
three-day hearing, Smith was sentenced to death on September 19,
1995.
ISSUE 1
IS the sentence imposed the result of vindictive prosecution
by the State of -Montana?~ '~

4
 This argument derives from the plea agreement offered to Smith
in February 1983. The plea offer proposed a sentence of 110 years,
with no parole restrictions and the State's promise to support
Smith's motion to withdraw his plea if the court imposed the death
penalty. In exchange, Smith was to enter guilty pleas to two
counts of deliberate homicide, escape, and aggravated kidnapping
(the last two charges arising from his escape from Flathead County
Jail in January 1983).
Smith rejected the plea offer, stating that he wished to force
the county to spend some of its money. Twenty-two days later,
though, he gave notice of his intent to plead guilty to all counts
in the original information filed against him and to seek the death
penalty. Smith now contends that the State has since requested the
death penalty as retaliation for his exercise of his free speech
right when he rejected the plea offer.
Confronting a defendant with the risk of more severe punish-
ment following the rejection of a plea bargain cannot form the
basis for a claim of prosecutorial vindictiveness. Bordenkircher
v. Hayes (1978), 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604.
Allowing such a claim would contradict the premises that underlie
the accepted practice of plea bargaining. Once Smith rejected the
plea offer in 1983, the State's obligation to honor the offered
plea agreement ended.
Furthermore, contrary to Smith's assertions and in contrast to
thecase~he has cited, Aaamson v. Ricketts~ (9th Cir. 1988), 865
F.2d 1011, the record in this case establishes that the prosecution

5
discovered additional facts concerning Smith's offenses after it
extended the plea offer. In a 1992 deposition prepared for an
evidentiary hearing in federal court, a copy of which is attached
to District Court document no. 158, the prosecuting attorney made
the following statements regarding the 1983 plea offer to Smith:

Q. From your recollection, did you ever withdraw the
offer that's referred to in the letter?
A. I didn't have to. He refused the offer. I need to
say that part of the motivation or consideration on my
part for the offer was that at that point I had not
nearly as much information about what transpired up there
by Essex that I later came to have, obviously, and I did
--I was motivated to make the offer because I was lacking
in a lot of evidence as to exactly what took place in the
murder of those two boys, who did exactly what. I didn't
have to withdraw it because I received word back from
[Smith's defense counsel] that it was refused, and then
my recollection is that initially it was refused and that
his client was going to maintain his not guilty plea and
proceed to trial, and ultimately he changed his mind and
pled.
The prosecutor further acknowledged at that evidentiary hearing
that "until [Smith] entered his guilty plea and testified himself
as to the circumstances, there were some things about what took
place up there, you're right, that I didn't know."
We hold that Smith has not established vindictive prosecution
in this case.
ISSUE 2
Is Montana's death penalty statutory scheme unconstitutional
in its allocation of the burdens of proof of aggravating and
mitigating circumstances?
Section 46-I8-301-,' MCA, provides that when a defendant is
found guilty of or pleads guilty to an offense for which a sentence

6
of death may be imposed, the presiding judge shall conduct a
separate sentencing hearing to determine the existence or nonexis-
tence of aggravating and mitigating circumstances.
Aggravating circumstances are any of the following:

(1) The offense was deliberate homicide and was
committed by a person serving a sentence of imprisonment
in the state prison.
(2) The offense was deliberate homicide and was
committed by a defendant who had been previously convict-
ed of another deliberate homicide.
(3) The offense was deliberate homicide and was
committed by means of torture.
(4) The offense was deliberate homicide and was
committed by a person lying in wait or ambush.
(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.
(6) The offense was deliberate homicide as defined
in subsection (1) (a) of 45-s-102, and the victim was a
peace officer killed while performing his duty.
(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.
(8) The offense was attempted deliberate homicide,
aggravated assault, or aggravated kidnapping committed
while incarcerated at the state prison by a person who
has been previously:
(a) convicted of the offense of deliberate homi-
cide; or
(b) found to be a persistent felony offender
pursuant to part 5 of this chapter and one of the
convictions was for an offense against the person in
violation of Title 45, chapter 5, for which the minimum
prison term is not less than 2 years.
(9) The offense was deliberate homicide and was
committed by a person during the course of committing
sexual assault, sexual intercourse without consent,
deviate sexual conduct, or incest, and the victim was
less than 18 years of age.
Section 46-18-303, MCA.
~Mit~igating~circumstances are any of~the following:

(1) (a) The defendant has no significant history of
prior criminal activity.
7
 (b) The offense was committed while the defendant
was under the influence of extreme mental or emotional
disturbance.
Cc) The defendant acted under extreme duress or
under the substantial domination of another person.
(d) The capacity of the defendant to appreciate the
criminality of the defendant's conduct or to conform the
defendant's conduct to the requirements of law was
substantially impaired.
(e) The victim was a participant in the defendant's
conduct or consented to the act.
(f) The defendant was an accomplice in an offense
committedby another person, and the defendant's partici-
pation was relatively minor.
(g) The defendant, at the time of the commission of
the crime, was less than 18 years of age.
(2) The court may consider any other fact that
exists in mitigation of the penalty.
Section 46-18-304, MCA.
The sentencing court must take into account the aggravating
and mitigating circumstances enumerated above
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 46-18-305, MCA. When a death sentence is imposed, the
court must make specific written findings as to the existence or
nonexistence of each aggravating or mitigating circumstance set
forth in §§ 46-18-303 and -304, MCA. The written findings must be
substantiated by the records of the trial and the sentencing
proceeding. Section 46-18-306, MCA.
Smith argues that Montana's statutory scheme concerning
aggravating and mitigating circumstances is too vague to provide
guidance to the sentencing judge. He asserts that the absence of
spe~cific ~burdens of prbbf~~or~persuaslon renders-appellate~ review
meaningless. He maintains that in order to impose a sentence of

8
death, the aggravating circumstances must outweigh the mitigating
circumstances beyond a reasonable doubt.
Smith has previously challenged Montana's death penalty
statutes as failing to properly define a burden of proof in Smith
:I. In that case, this Court recognized that 5 46-18-305, MCA,
places the burden of proving mitigating circumstances upon the
defendant and ruled that this allocation of the burden of proof is
"constitutionally sound." Smith II, 863 P.2d at 1011, citing
Fitzpatrick v. State (1981), 194 Mont. 310, 328, 638 P.Zd 1002,
1013. The Court noted that the United States Supreme Court has
similarly held that a defendant's constitutional rights are not
infringed by placing the burden of proving mitigating circumstances
upon the defendant, as long as the state retains the burden of
proving every element of the offense and the existence of an
aggravating circumstance. See Walton v. Arizona (1990), 497 U.S.
639, 110 S.Ct. 3047, 111 L.Ed.2d 511. This Court expressly stated:
"We are not persuaded by any of Smith's arguments urging us to find
constitutional error in the allocation of burdens of proof." Smith
II, 863 P.2d at 1011.
In this appeal, as in Smith II, Smith relies upon People v.
Young (Cola. 1991), 814 P.2d 834. In Younq, the Supreme Court of
Colorado held a Colorado death penalty statute unconstitutional
because the court concluded that the statute mandated a death
penalty when a jury decided the aggravating and mitigating factors
were~equally balanced. In Smith~~ II, 863 P.2d at 1012, this Court

9
considered and rejected Smith's argument based upon ~ounq. we
decline to reconsider that argument here.

Smith also relies upon State v. Wood (Utah 1981), 648 P.2d 71,

in urging that a beyond-a-reasonable-doubt standard should be

adopted for the weighing of aggravating and mitigating circumstanc-

es. However, Utah's statutory scheme is not equivalent to

Montana's. In Utah, the sentencing court is to review a set of

mitigating circumstances and then "shall retire to consider the

penalty." Section 76-3-207(4), Utah Code Ann. Utah's statutes
contain no equivalent to 5 46-18-305, MCA. wood is neither

controlling nor persuasive.
The Ninth Circuit Court of Appeals has observed that "[tlhe

United States Supreme Court has never stated that a beyond-a-
reasonable-doubt standard is required when determining whether a

death penalty should be imposed." Harris v. Pulley (9th Cir.

19821, 692 F.2d 1189, 1195, rev'd on other grounds, Pulley v.

Harris, 465 U.S. 37 (1984). There is no constitutional requirement

that a reasonable doubt standard be used to determine imposition of

the death penalty.
Smith has cited no direct authority requiring this Court to

abandon its holding in Smith II that Montana's death penalty

statutory scheme is constitutional in its allocation of the burdens

of proof of aggravating and mitigating circumstances. Nor has he

demonstrated any other valid reason why we should do so. We
reaffirm that holding.

10
 ISSUE 3
Are the court's findings of the existence or nonexistence of
aggravating and mitigating circumstances supported by the evidence?
In this case, the presence of two aggravating circumstances
was undisputed. Smith has conceded that the offenses of which he
has been convicted are deliberate homicides which were part of a
scheme or plan which, if completed, would result in the deaths of
more than one person, as described under § 46-&8-303(5), MCA, and
aggravated kidnappings which resulted in the deaths of the victims,

as described under § 46-18-303(7), MCA.
Smith points out that, in considering whether mitigating

circumstances are present, a sentencing court must not simply run
down the list of possible mitigating circumstances. See Smith v.
McCormick, 914 F.2d at 1168. In this case, however, the District
Court did much more than that. With ample citation to the record,
the court meticulously detailed its analysis of the evidence of
each possible mitigating and aggravating circumstance as applied to
each of the four separate offenses for which Smith was being
sentenced. Because the mitigating and aggravating circumstances
are the same for all four offens~es charged against Smith, we here
consider collectively for all four offenses the court's findings
concerning aggravating and mitigating circumstances.
Smith claims that the eleven mitigating circumstances found by
the District Court must necessarily outweigh the two aggravat~ing
circumstances. He also claims that the establishment of one or

11
more mitigating circumstance requires mitigation as a matter of
law.
Smith's claims do not reflect the statutory directives of
§ 46-18-305, WA. Contrary to Smith's claims, under § 46-18-305,
MCA, the existence of one or even eleven mitigating circumstances
is not a bar to imposition of the death penalty unless the
mitiqatina circumstances are "sufficiently substantial to call for
leniency."
Smith argues that this Court must conduct its own reweighing
of the aggravating and mitigating circumstances, citing Clemens v.
Mississippi (1990), 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725.
Smith miscites Clemens. In that case, the United States Supreme
Court clarified:
Nothing in this opinion is intended to convey the
impression that state appellate courts are required to or
necessarily should engage in reweighing or harmless-error
analysis when errors have occurred in a capital sentenc-
ing proceeding. Our holding is only that such procedures
are constitutionally permissible.
Clemens, 494 U.S. at 754. In fact, we conclude that the reweighing
proposed by Smith would be wholly inappropriate if done based on
the cold record available to an appellate court
Smith admits that there is no statutory requirement that this
Court conduct a reweighing of the mitigating and aggravating
circumstances. Section 46-18-310(2), MCA, only requires the Court
to determine "whether the evidence supports the judge's finding of
the ~existence or ~nonexistencemof the aggravating ore mitigating
circumstances." Smith argues, however, that in State v. Keith

12
(1988), 231 Mont. 214, 754 P.2d 474, this Court conducted a
reweighing of the evidence.
Again, Smith is incorrect. The Court in Keith stated that its
role his to conduct an "independent ,review of the trial court
record," not an "independent reweighing" of the aggravating and
mitigating circumstances. The Court stated:
In so doing, we are not usurping the position of the
District Court as the primary entity in Montana's system
of criminal jurisprudenceI; 1 rather we mean to insure
that the death penalty, unique in its severity . . . is
not wantonly or arbitrarily and capriciously imposed.
KeithI 754 P.2d at 465, quoting Smith I, 705 P.2d at 1096-97.
-
Under § 46-18-310(2), MCA, then, this Court's role is not to
reweigh the aggravating and mitigating circumstances, but to
instead determine whether the evidence supports the sentencing
judge's findings concerning their existence or nonexistence. We
here apply that standard of review.
The District Court found that Smith established by a prepon-
derance of the evidence the mitigating circumstance that he had no
significant history of prior criminal activity, as provided under
5 46-18-304(l) (a), MCA. Although Smith, who was in his mid-
twenties at the time he committed these crimes, had served time in
Canadian federal prisons, his criminal record did not include any
crimes of violence and consisted generally of thefts and crimes
involving alcohol or drug abuse.
As to the mitigating circumstance that the crimes were
committed while under the influence of extreme mental or emotional
disturbance as provided at § 46-18-304(l) (b), MCA, Smith presented

I.3
evidence that he came from a dysfunctional family and that he had
been building up rage toward his father for many years. Smith's
expert social worker, Shawn Trontel, admitted, however, that she
believed Smith's rage was not isolated to these offenses. Smith's
expert psychologist, Dr. Evans, testified that Smith still harbors
angry feelings toward authority figures. The District Court also
cited, as evidence that Smith was not suffering from severe
emotional distress at the time of the crimes, Smith's own descrip-
tion of his actions in committing the crimes and the other evidence
of the deliberateness of his actions in committing the crimes and
in attempting to cover them up.
Smith did not submit evidence that he was acting under extreme
duress or the substantial domination of another person, as a
mitigating circumstance pursuant to § 46-18-304(1)(c), MCA. In
fact, the evidence pointed toward the conclusion that Smith was the
instigator and main perpetrator of the kidnappings and homicides.
Smith contends that his capacity to appreciate the criminality
of his conduct or to conform his conduct to the requirements of the
law was substantially impaired, pursuant to § 46-18-304(l) (d), MCA.
As evidence of this mitigating circumstance, he submitted evidence
of his history of drug and alcohol abuse and his use of alcohol on
the day of the kidnappings and murders. Dr. Evans testified that
Smith's IQ score as measured at the time of his initial incarcera-
tion for these crimes was over 10 points lower than his measured IQ
scores at age 17 and prior to this sentencing hearing. Smith

14
claims this establishes that his mental capacity was affected by
drugs and alcohol at the time of the crimes.
The District Court found, however, that in this case there was
evidence of premeditation, an intelligent plan to avoid arrest, and
motivation for the homicides, all contrary to Dr. Evans' testimony
concerning a "typical" drug-caused homicide. The court found that
Smith's actions at the time of the murders and afterwards to cover
up his crimes were calculated and carefully implemented to further
the efforts of himself and his two companions to obtain a vehicle
and to leave no witnesses. Moreover, 'the court noted Dr. Evans'
testimony that Smith had an elevated score on a scale of the
Minnesota Multiphasic Personality Inventory indicating a person
with poor judgment and unstable, irresponsible, self-centered,
immature, anti-social, aggressive, or assaultive features.
Smith testified at the 1995 sentencing hearing that, as he,
Rodney Munro and Andre Fontaine hitchhiked on August 4, 1982, he
kept a sawed-off 22 caliber rifle hidden in his backpack and
bullets in his shirt pocket. When the victims made a rest stop
after they had picked up the three hitchhikers, Smith put a gun to
the head of the victim who had been driving. Munro then put a
knife to the throat of the other victim. Smith and Munro marched
the victims into the woods, where they could not be seen from the
highway. Smith testified that as they left the car, one of the
victims asked him not to shoot them. After they had walked into
the trees, Smith shot the first victim in the back of the head. He
recalled seeing a look of incredulity on Munro's face. Smith then

15
reloaded his weapon with a bullet from his shirt pocket and shot
the other victim in the head as he lay on the ground
After the shootings, Fontaine took the wheel of the vehicle.
At Smith's insistence, however, Fontaine pulled over and let Smith
drive, because Smith felt Fontaine was "an erratic driver." After
he was arrested several weeks later in Wyoming, Smith attempted to
hire someone to move the victims' bodies "to a place where they
will never be found."
After considering the evidence, the District Court found that
Smith's capacity to appreciate the criminality of his actions at
the time of the crimes was only minimally impaired, and that any
reduction in his cognitive ability left him significantly above the
level required to appreciate the criminality of his conduct and to
conform his conduct to the requirements of the law.
Smith does not argue as mitigating circumstances that the
victims were participants in his conduct or that they consented to
his acts pursuant to § 46-18-304(1)(e), MCA. Nor does he argue
that he was a minor accomplice in an offense committed by another
or that he was under the age of eighteen at the time of the crimes,
pursuant to § 46-18-304(l) if) or (g), MCA.
The District Court documented its consideration of Smith's
evidence of other facts in mitigation under the "catchall"
mitigation subsection, § 46-18-304(Z), MCA--'I [tlhe court may
consider any other fact that exists in mitigation of the penalty."
Under that subsection of the statute, the court considered the
evidence concerning Smith's violent, abusive, and dysfunctional

16
family life; his history of drug and alcohol abuse with no
treatment; that he was operating under a mental or emotional
disturbance at the time of the offenses; and that his capacity to
appreciate the criminality of his conduct or to conform his conduct
to the requirements of law was minimally impaired.
In its findings concerning "any other fact that exists in
mitigation of the penalty," the court also considered that Smith
was initially offered a plea agreement for a sentence other than
death. It documented its consideration of the evidence concerning
Smith's conduct while imprisoned, including his participation in
educational programs through which he earned a G.E.D. and some
college credits. Additionally, the court considered the evidence
of Smith's continuing contact with his family.
The court noted as a mitigating factor the amount of time
Smith has already spent on death row. The court found that Smith
is generally considered a quiet prison inmate, but that he has been
in one documented fight with another prisoner. The court found
that Smith's movement and freedom in his maximum security placement
at Montana State Prison are severely restricted. The court also
noted the evidence that, in a 1990 letter to a fellow inmate, Smith
impliedly threatened the life of a Flathead County Attorney,
writing that the attorney "won't be around to gloat" about Smith's
next death sentence.
The court also considered as a mitigating circumstance under
the statutory "catchall" provision the lesser sentence imposed on
Rodney Munro, who was sentenced to life imprisonment for his role

17
in these crimes. The court noted, however, Smith's leadership role

in these crimes.

The court found that Smith's apologies and expressions of

remorse for his crimes were a factor to be considered in mitigation

under § 46-18-304(Z), MCA. However, it found that these apologies

and expressions of remorse are relatively recent and are diminished
as acceptance of responsibility by Smith's statements that "it

wasn't me, not the true me," and "there was no plan to this, no

plan at all."

The District Court's 82-page findings, conclusions, and
judgment represent a thorough and individualized consideration of

the aggravating and mitigating circumstances in this case. After

reviewing the record, we conclude that the District Court's

extensive findings concerning aggravating and mitigating circum-

stances are supported by the evidence.

ISSUE 4

Did the court erroneously rely upon the reports and testimony of

Dr. Stratford in reaching its decision, and if it did so rely, did

such reliance violate Smith's right against self-incrimination,

right to counsel, and right to due process?

Dr. Stratford was the psychiatrist appointed in 1983 to

examine Smith and to prepare a psychological report to the court

for sentencing purposes. Smithmoved in limine to preclude the use

of Dr. Stratford's testimony and report at the 1995 sentencing

hearing. In response, the District Court ruled that the State

could use Dr. Stratford's testimony and report only as rebuttal to

18
Smith's evidence of mitigating circumstances. At the hearing, the
State did not call Dr. Stratford as a witness, nor did it introduce
his report into evidence.
In its findings reporting the history of this case, the
District Court made the following finding concerning events in
1983 :
20. The District Court granted Defendant Smith's Motion
for a psychiatric examination and appointed a psychia-
trist, Dr. William Stratford, to examine Defendant Smith
and report to the Court on Defendant Smith's mental
condition at the time of the murders. At a hearing on
December 1, 1983, Dr. Stratford testified that Defendant
Smith's consumption of drugs and alcohol would not have
substantially impaired his ability to appreciate the
criminality of his conduct on August 4, 1982.
The court fuxther found:
22. The United States Court of Appeals for the Ninth
Circuit found two errors in Defendant's sentencing.
First, citing Ake v. Oklahoma, 470 U.S. 68 (1985), the
Court held the sentencing court had erred by failing to
appoint an independent psychiatrist for Defendant Smith.
The Court found that Defendant Smith's rights to due
process had been violated because he was denied expert
assistance in preparing his claims of mitigating circum-
stances.
Smith contends that the above reference to Dr. Stratford's report
in the findings is contrary to the Ninth Circuit Court's holding in
Smith v. McCormick.
We disagree. The reference to Dr. Stratford's report in
finding number 20 can best be described as a historical reference.
Dr. Stratford's report is not discussed in the court's detailed
findings concerning mitigating circumstances; only evidence which
was admitted at~the sentencing hearing is there discussed or relied
upon. Nowhere in the court's findings discussing Smith's mental

19
history is Dr. Stratford's opinion discussed or relied upon.
Further, nowhere in the court's discussion of Smith's ability to
appreciate the criminality of his conduct is Dr. Stratford's report
discussed or relied upon.
We hold that the District Court's finding number 20 is not
contrary to the Ninth Circuit Court's opinion in Smith v. McCor-
mick
-! and that the finding does not establish that the court
erroneously relied upon Dr. Stratford's opinion. We therefore need
not discuss the effect of any such alleged reliance.
ISSUE 5
Did the District Court err by excluding mitigating evidence
from consideration?
Here, Smith refers in part to his offered proportionality
evidence. Smith contends that the District Court was required to
consider his proportionality evidence as "relevant mitigating
evidence" pursuant to § 46-18-304(2), MCA, and Smith II.
1n Smith II, 863 P.2d at 1014-17, this Court remanded this
case for the District Court's consideration of relevant mitigating
evidence concerning Smith's conduct while incarcerated. That
proposed evidence related specifically to Smith, as does each
mitigating circumstance specifically enumerated under § 46-18-304,
MCA. In contrast, the proportionality evidence which Smith offered
at his 1995 sentencing did not relate specifically to Smith, but
was instead a series of one- or two-paragraph summaries of other
Montana homicide cases.

20
 As further described under Issues 6 and 7 below, Montana's

statutory death penalty scheme specifically provides for a
proportionality review by this Court as part of its automatic

review of all death sentences imposed, pursuant to §§ 46-18-307

through -310, MCA. Such consideration by this Court, with its

statewide viewpoint, serves as a check to prevent imposition of the

death penalty in a wanton and arbitrary fashion.
This Court's holding in Smith II cannot be read to require a

sentencing court to consider as mitigating evidence information on
the sentences imposed in other cases. Proportionality "evidence"

does not relate to the specific defendant and the specific crime(s)

before the sentencing judge, and therefore cannot be considered as

a mitigating factor. We hold that the District Court did not err

in refusing to consider Smith's offered proportionality evidence at

the sentencing hearing.

At oral argument, Smith further contended that the District

Court failed to consider in its sentencing order the testimony of

his teacher at the Montana State Prison. It is true that the court

did not make findings specifically referring to that witness.

However, as discussed above, the court specifically noted as a

mitigating factor under the "catchall" provision of § 4618-304(2),

MCA, Smith's efforts at rehabilitation, his participation in

educational programs, and "progress which Defendant Smith has made

in his educational program." The contention that the court failed

to consider the testimony of Smith's teacher is therefore without

merit

21
 Smith next argues that the court persevered in the same error

which caused the Ninth Circuit Court of Appeals to conditionally

grant his petition for writ of habeas corpus in 1990--weighing each

item of mitigating evidence separately, instead of along with all

other evidence of mitigating circumstances. He contends that the
court used the "sufficiently substantial" standard as a qualifier

to exclude from consideration as mitigators any factors which did

not excuse his conduct. He argues that the court persisted in

weighing each mitigating circumstance against the "full moral

weight of the crime” and failed to consider the totality of the

mitigating circumstances.
The District Court's findings and conclusions belie these

assertions on their face. The court made extensive findings
concerning the evidence which Smith submitted in mitigation. After
carefully describing the evidence as to each statutory mitigating

circumstance which it found was not proven, the court explained its

reasoning in finding that Smith had failed to prove the existence

of that mitigating circumstance by a preponderance of the evidence.

Then, in discussing the "catchall" provision of § 46-l&304(2),

MCA, the court reconsidered Smith's evidence and expressly stated

that "considered alone or in conjunction with all other mitigating

circumstances, this circumstance is not sufficiently substantial to
call for leniency within the meaning of § 46-18-305, MCA."

Additionally, in its conclusions of law, the court expressly

stated:
The Court concludes that these mitiqatinq circum-
stances, by themselves when considered alone or k

22
 conjunction with all other mitiqatinq circumstances and
personalitv traits of Defendant Smith, are not suffi-
cientlv substantial to call for leniency in this case
within the meaninq of 5 46-18-305, MCA.
(Emphasis added.) We conclude that the court used the correct'
standard in weighing aggravating and mitigating circumstances.
Finally, Smith asserts that the evidence of his witnesses was
not given the proper effect or consideration. This claim goes to

the weight of the evidence, which is well-established as within the
province of the sentencer. Eddings v. Oklahoma (1982), 455 U.S.

104, 114-15, 102 S.Ct. 869, 877, 71 L.Ed.Zd 1, 11.
We hold that Smith has failed to establish that the District
Court excluded mitigating evidence from consideration.
ISSUE 6
Does the 5 46-18-310(3), MCA, requirement that this Court
undertake a proportionality review deny a capital defendant due
process of law?
Section 46-18-310, MCA, provides:
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 aggravat-
ing 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 imposedin similar cases,
considering both the crime and the defendant. The court
shall include in its decision a reference to those
similar cases i~t~took into consideration.

Smith maintains that the absence of statutory guidance or
procedure on how to conduct the proportionality review under
23
subsection (3) results in a failure of due process. He argues that
once a statutory requirement for a proportionality review is

established, due process protections attach to the review process.

In Vernon Kills On Top v. State (November 25, 1996), No. 94-

183, slip op. at 41, this Court held that the imposition of a death

sentence by a state court in Montana must be reviewed for compli-

ance with the proportionality and individualized treatment

requirements set forth in Enmund v. Florida (1982), 458 U.S. 782,

102 S.Ct. 3368, 73 L.Ed.Zd 1140. In both Enmund and Vernon Kills

On Top, the defendants argued against imposition of the death

penalty based upon their roles as mere accomplices in the crimes

for which they were sentenced to death. That type of argument has

not been raised in the present case.

In Enmund, the United States Supreme Court held that the death

penalty may be constitutionally imposed only after the State

focuses on the defendant's personal intent, character, and

culpability, and not merely on the defendant's role as an accom-

plice in a crime. Section 46-18-310(3), MCA, imposes equivalent

requirements, providing that this Court's mandatory proportionality

review of death sentence cases shall include determination of

whether the sentence of death is disproportionate to the penalty

imposed in similar cases, Itconsidering both the crime and the

defendant."

We conclude that Montana's death penalty sentencing statutes

provide notice to capital defendants that a proportionality review

will be undertaken by this Court, and of the method thereof.

24
Smith, like other capital defendants in Montana, had notice of the

scope of the proportionality review to be conducted by this Court.

Although he did not avail himself of the opportunity to do so, he

could have submitted his analysis of the proportionality of his

sentence as part of his arguments in this consolidated appeal.

We hold that the proportionality review process established

under Montana statutes does not violate due process.

ISSUE 7

Is the sentence imposed disproportionate to the penalty

imposed in similar cases?

Smith insists that the proportionality review must include

cases which were not appealed to this Court and in which the death

penalty was not imposed. In McCleskey v. Kemp (1987), 481 U.S.

279, 107 S.Ct. 1756, 95 L.Ed.2d 262, the United States Supreme

Court held that the United States Constitution does not require a

proportionalityreviewwhichincludes similarly-situateddefendants

who have not received the death penalty. The Court stated:

[Albsent a showing that the Georgia capital punishment
system operates in an arbitrary and capricious manner,
McCleskey cannot prove a constitutional violation by
demonstrating that other defendants who may be similarly
situated did not receive the death penalty. In Greqq,
the Court confronted the argument that "the opportunities
for discretionary action that are inherent in the
processing of any murder case under Georgia law," 428
U.S. at 199, specifically the opportunities for discre-
tionary leniency, rendered the capital sentences imposed
arbitrary and capricious. We rejected this contentiont.1

McCleskev, 481 U.S. at 306-07. In reaching its decision, the Court

quoted Gregg v. Georgia (1976), 428 U.S. 153, 96 S.Ct. 2909, 49
L.Ed.Zd 859, in which it recognized the existence of discretionary

25
stages throughout the criminal justice system and that at any stage
there may be a decisionmaker who removes a defendant from consider-

ation as a candidate for the death penalty. McCleskey, 481 U.S. at
307. The Court reaffirmed that "[nlothing in any of our cases

suggests that the decision to afford an individual defendant mercy

violates the Constitution." McCleskev, 481 U.S. at 307, citing
Greqq.

The Court further elaborated as follows:

The Constitution is not offended by inconsistency in
results based on the objective circumstances of the
crime. Numerous legitimate factors may influence the
outcome of a trial and a defendant's ultimate sentence,
even though they may be irrelevant to his actual guilt.
If sufficient evidence to link a suspect to a crime
cannot be found, he will not be charged. The capability
of the responsible law enforcement agency can vary
widely. Also, the strength of the available evidence
remains a variable throughout the criminal justice
process and may influence a prosecutor's decision to
offer a plea bargain or to go to trial. Witness avail-
ability, credibility, and memory also influence the
results of prosecutions. Finally, sentencing in state
courts is generally discretionary, so a defendant's
ultimate sentence necessarily will vary according to the
judgment of the sentencing authority. The foregoing
factors necessarily exist in varying degrees throughout
our criminal justice system.

McCleskev, 481 U.S. at 307 n.28.

On appellate review of a death penalty case, our evaluation of

the proportionality of the death sentence imposed must take into

account the discretionary stages in all criminal cases, as

described above. A further rationale for limiting proportionality

review of other cases to cases in which the death penalty was

proposed is that only when the death penalty is sought will a

26
record exist concerning aggravating and mitigating circumstances.
See Tichnell v. State (Md. 1983), 468 A.2d 1.
In State v. Coleman (1979), 185 Mont. 299, 605 P.Zd 1000,
sentence vacated, 874 F.2d 1280 (9th Cir. 1989), this Court recog-
nized that I'tlleniency in one case does not invalidate the death
penalty in others." Coleman, 605 P.2d at 1021. In Coleman,
however, the Court expressly set down slightly expanded guidelines
for the cases to be considered in its proportionality review. As
set forth in Coleman, our review should include every similar case
considered on appeal in which the death penalty could have been
imposed or was imposed. Coleman, 605 P.2d at 1020.
Coleman was convicted of the aggravated kidnapping and
deliberate homicide of a young woman who had given a ride to the
hitchhiking Coleman and his companion. In its proportionality
review in Coleman, this Court considered cases in which "the
defendant has been charged with kidnapping and murder of the victim
of the kidnapping and where the defendant has been charged with
aggravated kidnapping where the victim has been killed." Coleman,
605 P.2d at 1020-21.
With the above standards in mind, we must here examine the
proportionality of the death sentence in this case as compared with
those cases appealed to this Court in which the defendant has been
convicted of aggravated kidnappings and deliberate homicides of two
victims. We must also look to other cases in which the death
penalty has beenimposed in Montana.

27
 Two cases have been appealed to this Court since the death
penalty was reenacted in I977 in which the defendants were
convicted of the aggravated kidnappings and deliberate homicides of

more than one victim. In both of those cases, the death penalty

was imposed. In no case appealed to this Court since 1977 has a

sentence other than death been imposed for a defendant's conviction

of double aggravated kidnappings and double deliberate homicides of

those victims.

Terry Langford pled guilty to two counts of deliberate
homicide in the execution-style slayings of a couple in their home

outside Ovando, Montana. State v. Langford (1991), 248 Mont. 420,

813 P.2d 936. Langford further pled guilty to aggravated kidnap-

ping of each of the two victims, based upon his unlawful restraint

of them before he killed them. Langford's lack of an extensive

criminal record was a mitigating circumstance considered at

sentencing. He also presented evidence at sentencing concerning

his troubled childhood and his past drug use. Langford was

sentenced to death for each of the two counts of deliberate
homicide and for each of the two counts of aggravated kidnapping.

This Court affirmed those sentences in Lanqford.

David Dawson abducted a family staying in a room adjoining his

in a Billings, Montana, motel and killed three of the four family

members. In State v. Dawson (1988), 233 Mont. 345, 761 P.2d 352,

we affirmed Dawson's convictions of three counts of deliberate

homicide, four counts of aggravated kidnapping, and robbery.
Despite the mitigating circumstance of Dawson's lack of a signifi-

28
4
I cant history of prior criminal activity, Dawson was sentenced to
death for each of the three,counts of aggravated kidnapping in

which he was also convicted of deliberate homicide of the victim.

He was further sentenced to death for each of the deliberate

homicides.
1
None of the other persons sentenced to death in Montana since

I977 have been so sentenced based upon convictions of double

deliberate homicide and double aggravated kidnapping. Lester Kills

On Top was sentenced to death for convictions of robbery, aggravat-
ed kidnapping, and deliberate homicide of a victim whom he and his

accomplices offered a ride home from a bar. State v. Lester Kills

On Top (1990), 241 Mont. 378, 787 P.2d 336, sentence vacated, 901

P.2d 1368 (1995). In State v. McKenzie (1980), 186 Mont. 481, 608

P.2d 428, Duncan McKenzie was convicted of deliberate homicide by

means of torture and aggravated kidnapping of a rural schoolteach-

er. He was sentenced to death and was executed in May 1995. In

State v. Keith (1988), 231 Mont. 214, 754 P.2d 474, Keith pled

guilty to two counts of aggravated assault, two counts of aggravat-

ed kidnapping, and one count of deliberate homicide. Keith was
sentenced to death for one of the aggravated kidnappings and for

the deliberate homicide, and this Court affirmed. Vernon Kills On

Top, whose death sentence was recently reversed by this Court, was
sentenced to death for his role as an accomplice in the aggravated

kidnapping and deliberate homicide of a single victim. State v.
Vernon Kills On Top (1990), 243 Mont. 56, 793 P.2d 1273, sentence

vacated, Vernon Kills On Too v. State, No. 94-183.

23
 We have considered both the crimes and the defendant in the

present case in proportion to the crimes and the defendants in the

cases discussed above. We conclude that the sentences of death
herein imposed are not excessive or disproportionate to the penalty

imposed in similar cases.

ISSUE 8

Was the sentence imposed by the court under the influence of

passion, prejudice, or any other arbitrary factor?

Pursuant to § 46-18-310(l), MCA, this Court is to determine
whether a sentence of death was imposed under the influence of

passion, prejudice, or any other arbitrary factor. Smith points

out that in Keith, 754 P.2d at 486-87, this Court acknowledged that

it would consider altering or reversing a sentence which was

influenced by passion, prejudice, public opinion, or the media.

In arguing this issue, Smith refers to several newspaper

articles concerning his case. One is an editorial dated January

12, 1992, long before Judge Larson, the 1995 sentencing judge,

assumed jurisdiction in this case. The second article is dated
January 22, 1995. Again, it is an editorial, and it expresses
frustration with the delay in this case. Smith has not demonstrat-

ed any connection between either of those newspaper articles and

Judge Larson. The third newspaper article to which Smith refers

was written after the sentencing, in January 1996. Because it was

written after the sentencing, it cannot be considered to have

influenced the sentencing.

30
%

B Smith also refers to two newspaper articles concerning defense
expenses in this case. These articles were written in the months
immediately preceding and following the 1995 sentencing hearing.
The second of these two articles quotes Judge Larson as saying that
he did not set down detailed guidelines for defense expenses.
"That's not usually done. This is a death penalty case, and
expenses run high." Judge Larson is also quoted as saying that he

sensitive to the rights of the defense team to meet with
and have witnesses testify. Early on, I limited the
travel of their expert witnesses because of their per-
hour costs. Instead, the defense attorneys, who are
getting much less an hour, do the traveling.
The article further quoted Judge Larson as saying that right before
and after the sentencing hearing,
[ilt seemed more important for my focus to be on the
merits of the case, rather than divert attention and
scrutinize each expense voucher so closely. I'll tighten
down again now as we step back from the sentencing.

. . I try to take into account some of the different
standards and expectations of defense witnesses from
other areas. I've tried to be flexible and understanding
without letting things get out of hand.
In fact, I recently refused reimbursement to
[Smith's attorney] for his telephone calls with you [the
reporter].
Smith particularly criticizes the quotation that "I'll tighten down
again now as we step back from the sentencing" as indicative that
the court had already decided to sentence Smith to death.
We have reviewed the newspaper articles and the quotations
attributed to Judge Larson. We discern nothing in Judge Larson's

31
 reported answers to questions which reveals an influence of
passion, prejudice, or other arbitrary factors as to the Smith
matter. On the contrary, we conclude that Judge Larson's comments
reveal a balanced and impartial demeanor as to this matter.
Smith also contends that passion, prejudice, or other
arbitrary factors arise because of the original presentence
investigation report prepared for the 1995 sentencing, to which he
objected. However, after Smith objected to the report at a
presentencing hearing, a modified presentence investigation report
was submitted to the court. Smith has made no objections to the
modified presentence investigation report, from which everything to
which he objected in the earlier report had been deleted. The
court did not refer to the earlier report its findings and conclu-
sions.
Smith offers only speculative assertions about the effect of
his prior death sentences on the District Court. He cites Roman0
v. Oklahoma (19941, 512 U.S. 1, 114 S.Ct. 2004, 129 L.Ed.2d 1, and
People v. Davis (Ill. 1983), 452 N.E.2d 525, as authority for the
possible prejudicial effect of a sentencer's knowledge that a
defendant has been previously sentenced to death
Both Roman0 and Davis dealt with the effect of a jury's
knowledge that a defendant has been previously sentenced to death.
It is well-established that greater safeguards are required to
I
prevent the influence of possibly prejudicial information on
members of a jury than to prevent such effects upon a judge, who is
assumed to be capable of rising above such influences. "Absent

32
proof to the contrary, the trial judge in a capital case must be
presumed to be able to focus on the relevant sentencing factors and
to set aside the irrelevant, the inflammatory, and the emotional
factors." State v. Beaty (Ariz. 1988), 762 P.2d 519, 531, cert.
denied, 491 U.S. 910 (1989).
Our review of the record convinces us that the comprehensive
and systematic findings and conclusions of the District Court were
conscientiously prepared. We hold that Smith has not established
that his sentence was imposed by the court under the influence of
passion, prejudice, or any other arbitrary factor.
ISSUE 9
Was Smith's right to due process or his right to be free from
cruel and unusual punishment violated by resentencing him to death,
because of the amount of time he has spent on death row and the
number of sentencing hearings held in this case?
At the time of the oral argument in this appeal, Smith had
spent approximately thirteen years on death row and had four
sentencing hearings. In arguing that his execution after such a
long period of incarceration would amount to cruel and unusual
punishment, he relies on Lackey v. Texas (1995), U.S. _, 115
S.Ct. 1421, 131 L.Ed.2d 304.
Lackey petitioned the United States Supreme Court for a writ
of certiorari, arguing that his seventeen years on death row
violated the Eighth Amendment's prohibition against cruel and
unusual punishment. The Court denied the petition for the writ.
Justice Stevens, joined by Justice Breyer, filed a memorandum with

33
the denial of certiorari, writing that Lackey's claim was "not
without foundation." Lackey, 115 S.Ct. at 1421.
Justice Stevens' memorandum in connection with the Court's
denial of certiorari cannot be construed as a controlling decision
on this issue and has not been regarded favorably in the federal
'courts. In McKenzie v. Day (9th Cir. 1995), 57 F.3d 1461, adopted
en bane, 57 F.3d 1493, Duncan McKenzie attempted to obtain a stay
of his execution by showing the likely success of his claim that
the twenty-year delay in his execution was cruel and unusual. The
Ninth Circuit Court of Appeals denied the~stay of execution. The
court stated, "we conclude that it is highly unlikely that
McKenzie's Lackev claim would be successful if litigated to its
conclusion." McKenzie, 57 F.3d at 1467. The court reasoned that
the cause for the delay in carrying out McKenzie's sentence was
that "McKenzie has availed himself of procedures our law provides
to ensure that executions are carried out only in appropriate
circumstances." McKenzie, 57 F.3d at 1466-67. Thus, the court
reasoned, the delay was "a consequence of our evolving standards of
decency, which prompt us to provide death row inmates with ample
opportunities to contest their convictions and sentences."
McKenzie, 57 F.3d at 1467. The court recognized the ultimate irony
and lack of logic in the Lackey claim: If an Eighth Amendment
challenge based on delay were to prevail, then the procedures
designed to promote fair adjudication in death penalty cases would
in themselves be used to ultimately defeat their own purpose. See

34
&White v. Johnson (5th Cir. 1996), 79 F.3d 432, and Stafford v.
Ward (10th Cir. 1995), 59 F.3d 1025.
In White, the Fifth Circuit Court of Appeals reasoned:
[Tlhere are compelling justifications for the delay
between conviction and the execution of a death sentence.
The state's interest in deterrence and swift punishment
must compete with its interest in insuring that those who
are executed receive fair trials with constitutionally
mandated safeguards. As a result, states allow prisoners
such as White to challenge their convictions for years.
White
-, 79 F.3d at 439.
It is clear from the record in this case that Smith has
benefitted from the appellate and federal review process of which
he has availed himself and which has resulted in the delay and the
multiple sentencing hearings in this case. We hold that Smith has
not established violation of his right to due process or his right
to be free from cruel and unusual punishment as a result thereof.
Smith further argues that imposition of the death penalty
after a long delay cannot have any deterrent effect. The United
States Supreme Court has recognized, however, that "the value of
capital punishment as a deterrent of crime is a complex factual
issue the resolution of which properly rests with the legisla-
tures. I’ Greqq, 428 U.S. at 186. Accordingly, this argument should
be presented to the Montana Legislature, not to this Court.
CONCLUSION
The District Court imposed upon Ronald Allen Smith four
separate death sentences: for the aggravated kidnapping of Harvey
Mad Man, Jr.; for the deliberate homicide of Harvey Mad Man, Jr.;
for the aggravated kidnapping of Thomas Running Rabbit, Jr.; and

35

-
 for the deliberate homicide of Thomas Running Rabbit, Jr. Having
considered the issues raised on appeal and the issues required on

I automatic review of a death penalty case under § 46-18-310, MCA, we
I
affirm the judgment of the District Court.

We concur:

Justices
Justice Terry N. Trieweiler specially concurring.
I agree that the District Court's findings are supported by

the evidence and that it did not deviate from the statutory process

for arriving at its sentence. I also agree that the death penalty

is not disproportionate to the penalty that has been imposed in

similar cases in this State, and that there is no persuasive

evidence that the sentencing judge was influenced by passion or

prejudice. Therefore, while I do not agree with all that is said

in this Court's opinion, I concur that there has been no issue
raised which would warrant reversal of the District Court.

I also concur, however, with that part of Justice Leaphart's

concurring opinion in which he concludes that our obligation to

review a defendant's death sentence for proportionality cannot be

limited to those cases in which the death penalty was proposed by

the prosecution and which were appealed to this Court. Such an

arbitrary definition of the class of cases to be reviewed dilutes

the primary purpose for review.

Justice William E. Hunt, Sr., joins in the foregoing specially
concurring opinion.

37
Justice W. William Leaphart, specially concurring.

I concur with the decision of the Court and write separately
to express my concerns about Issue 7, the scope of our review in
determining proportionality of the sentence under § 46-18-310(3),
MCA; and Issue 9, cruel and unusual punishment.
Scoue of Review
While I agree that, under existing precedent, the sentence
imposed was not disproportionate to the penalty imposed in similar
Montana cases, I do not agree with the holding in State v. Coleman

(1979), 185 Mont. 299, 605 P.2d 1000, and reiterated in this
opinion that when we engage in a proportionality review, we are
restricted to comparing cases in which the death penalty was
proposed by the prosecution and which were appealed to this Court.
In other words, we cannot consider those cases in which (1) the
prosecutor could have sought the death penalty but, for any number
of reasons chose not to, or (2) the prosecutor sought the death
penalty but the judge, for any number of reasons, chose not to
impose the death sentence.
In reviewing the question of proportionality, the scope of
cases reviewed should hinge upon the similarity of the facts and
the charges rather than whether the case came before us on appeal.
Assume that defendants A, B and Smith separately commit double
aggravated kidnappings in different counties in the State of
Montana which result in the death of their victims. The prosecutor
in Smith's county seeks the death penalty and the judge imposes the

38
death penalty. The prosecutor in A's county is concerned about the
tremendous costs of numerous appeals and appointed counsel which
are inherent in imposing the death penalty so he chooses not to
seek the death penalty. The prosecutor in,B's county does seek the
death penalty, however, the trial judge has religious opposition to
the death penalty and chooses to impose a life sentence instead.
B does not appeal the sentence.
Under our holding herein, despite the great similarity between
the three offenses, we cannot consider the cases of defendants A or
B because the death penalty either was not sought or not imposed.
In restricting our scope of review to only those cases in which the
death penalty was sought or imposed, we cite Coleman for the
proposition that "Illeniency in one case does not invalidate the
death penalty in others." Coleman, 605 P.2d at 1021. I do not
necessarily disagree with this statement. However, I seriously
question whether it is a principle which has any practical
application.
We also quote McCleskey v. Kemp (1987), 481 U.S. 279, 107
S.Ct. 1756, 95 L.Ed.2d 262, for the proposition that I' [tlhe
Constitution is not offended by inconsistency in results based on
the objective circumstances of the crime." McCleskev, 481 U.S. at
307 n.28. How do we determine whether other defendants were
granted "leniency" or %ercy" based upon objective circumstances of
the crime or were merely the incidental beneficiaries of other
considerations? In my example set forth above, it cannot fairly be
said that defendants A and B were "granted leniency." The fact

39
that they did not receive the death penalty was not attributable to
the "objective circumstances of the crime." Rather, A’s more
lenient sentence was due to economic considerations of death
penalty cases in general. B's good fortune was attributable to the
religious beliefs of the trial judge. Considerations of economics
and religion are not fact specific and yet they are quite often the
driving force behind the choice of whether to seek or impose the
death sentence. To categorize all such cases as cases of
"leniency" or "mercy" and thus totally disregard them is facile and
simplistic--especially given the stakes of the issue being
considered.
Both this Court and the United States Supreme Court have
recognized that, under our system of justice, there are
discretionary stages in which a decisionmaker may remove a
defendant from consideration as a candidate for the death penalty.
McCleskev, 481 U.S. at 307. Due to the human factor in our system
of justice, one judge may grant leniency and the other may not.
However, the recognition that a judge may, based upon "objective
circumstances of the crime" grant leniency, does not relieve us of
our duty to ascertain whether a death sentence, when reviewed in a
state-wide perspective, is arbitrary and capricious. If murder
defendants in county C are subjected to death penalties because
that county is not deterred by the costs of pursuing a death
sentence while murder defendants in the less wealthy county of D,
get off with lrfe Imprisonment, that, in my view, is not
attributable to a "leniency" factor inherent in our less than

40
perfect system of justice. Rather it is arbitrary and capricious.
Likewise, if murder defendants in county E are subjected to death
sentences while similar cases across the county line in county F
are not because the prosecutor in F, for religious reasons, does
not believe in the death penalty--that too suggests caprice. If
the present defendant is convicted of double kidnapping resulting
in homicides and if there have been ten similar crimes in the
state, only one of which has resulted in a sentence of death, are
we bound to look only at the one case, ignoring the other nine, and
conclude that death would be proportional?
Many judges and legislators wiser than I have wrestled with
both the morality and constitutionality of the death sentence. I
do not pretend to raise any new questions or offer any new answers.
However, in my capacity as an appellate judge, I am at a loss as to
how I can truly review the proportionality of a death sentence by
looking only at similar cases in which the death sentence was
proposed or imposed while not considering similar cases in which it
was never sought, and asking "why not?"
I recognize that the rationale for limiting proportionality
review to cases in which the death penalty was proposed is that
only in those cases will a record exist concerning aggravating and
mitigating circumstances. In matters of life and death, however,
the difficulty of review is hardly a sufficient rationale to ignore
a potentially large body of relevant comparable cases. It would be
preferable to require prosecutors, in cases which initially satisfy
the requirements of 5 46-18-303, MCA, (e.g., the prison riot cases

41
which fall within § 46-18-303(l), MCA) to make a record as to why
they have chosen not to seek the death penalty. That record could
then be filed with the Supreme Court for reference in subsequent
proportionality reviews.
Having reviewed the cases of State v. Langford (1991), 248
Mont. 420, 813 P.2d 936, and State v. Dawson (1988), 233 Mont. 345,
761 P.2d 352, as well as the 28 case summaries set forth in Smith's
submission entitled, "Proportionality Basis"--1 conclude, that the
sentence imposed is not out of proportion to the sentence imposed
in those cases most similar in this state; that the sentence was
not imposed under the influence of passion, prejudice or any other
arbitrary factor and that the evidence supports the judge's
findings concerning the existence or nonexistence of aggravating
and mitigating circumstances. Section 46-18-310, MCA.
Despite my reservations about the scope of review, I conclude
that under either the restricted Coleman standard or the more
expansive standard I have suggested, the sentence imposed was not
out of proportion to similar cases.
Cruel and Unusual Punishment
Although I concur in the Court's conclusion on the cruel and
unusual punishment issue (Issue 9), I do not agree with all that is
said in rejecting the argument that having a defendant on death row
for thirteen years is itself cruel and unusual punishment. The
majority relies on the fact that this passage of time is
attributable to Smith having availed himself of his right to appeal
in both the state and federal forums. We cite McKenzie v. Day

42
(Mont. 1995), 57 F.3d 1461, 1467, for the proposition that the
delay is "a consequence of our evolving standards of decency, which
prompt us to provide death row inmates with ample opportunities to
contest their convictions and sentences."
In reviewing the amount of time that a defendant has spent on
death row, a distinction should be drawn between the passage of
time due to the mere filing of appeals and petitions and the
passage of time attributable to the State's inability to impose the
sentence in accordance with requirements of due process. In other
words, it is not sufficient to attribute the delay to our
"standards of decency." That suggests that we, as a society, out
of a sense of decency, have provided defendants with a procedure
whereby they can challenge their sentences and, if they choose to
do so, they must live with the resulting delay. Such a rationale
places all the blame for the delay at the feet of the defendant.
This blame is misplaced, however, in a case such as this wherein
the defendant has not only filed appeals, but has been successful
in his federal court appeals. His success points to the fact that
the blame properly rests with the State or the courts for having
failed to appoint an independent psychiatrist and then having
failed to prepare a new presentence investigation.
When a defendant is successful in his appeals, it cannot
fairly be said that he is merely filing frivolous appeals in order
to buy time. Rather, it raises more serious questions as to how
long a defendant can be expected to languish on death row while the
State and the trial courts are afforded repeated opportunities to

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comply with due process.
Assume that a trial court imposed the following sentence: "I
hereby sentence you to death. However, I am not going to advise
you as to when you will be executed. You may be executed tomorrow,
in six months, in two years or perhaps not for thirteen years." I
have little doubt that such a sentence would be considered cruel
and unusual punishment under the 8th Amendment and under Article

II, Section 22 of the Montana Constitution. Although such a
sentence was not imposed in the present case, the end result is no
different. Due to procedural problems not attributable to Smith,
he has been kept in suspense for some thirteen years as to whether
or when he will be executed.
The Court notes that: "It is clear from the record that Smith
has benefitted from the appellate and federal review process of
which he has availed himself and which has resulted in the delay
and the multiple sentencing hearings in this case." Assuming that
Smith wishes to live, that statement is accurate. Any delay in
imposition of the death sentence benefits Smith. However, does the
Court's analysis change any if, instead of focusing solely on the
benefit to the defendant, we acknowledge that the State has
benefitted from Smith's counsel pointing out errors and from the
courts having allowed the State successive chances to do its job
correctly?
Short of establishing some arbitrary time period within which
a death sentence must be carried out, I see no simple answer to the
conundrum which results from the conflict between a defendant's

44
right to due process and appellate review and his right to be free
from cruel and unusual punishment. In the final analysis, I must
err on the side of affording the defendant his due process and
appellate review, as lengthy as that process may be. Although.1

concur with the sentence imposed in this case, I have written to
express my view that, like Justices Stevens and Breyer in Lackey v.
Texas (1995), __ U.S.-, 115 S.Ct. 1421, 131 L.Ed.2d 304, I do

not treat as completely without merit the argument that lengthy
delays in the imposition of the death sentence may amount to cruel
and unusual punishment under the 8th Amendment.

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