State v. Smith

No. 84-199
IN THE SUPREME COURT OF THE STATE OF MONTANA

1985

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 Michael Keedy, Judge presiding.

COUNSEL OF RECORD:

For Appellant:
Gary G. Doran argued, Kalispell, Montana

For Respondent:

Hon. Mike Greely, Attorney General, Helena, Montana
Chris Tweeten argued, Asst. Atty. General, Helena
Ted 0 Lympus, County Attorney, Kalispell, Montana
.

Submitted: January 21, 1985
Decided : April 9, 1985

Filed: JPK .ijbS

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

T h i s a p p e a l p r e s e n t s q u e s t i o n s r e g a r d i n g t h e adminis-

t r a t i o n o f Montana's c a p i t a l s e n t e n c i n g s t a t u t e . The d e f e n -

dant, Ronald Allen Smith, was convicted of the following

offenses, t o w i t : Count I: Aggravated Kidnapping; Count 11:

D e l i b e r a t e Homicide; Count 111: Aggravated Kidnapping; Count

TV: D e l i b e r a t e Homicide. The d e f e n d a n t was c o n v i c t e d o f

each count pursuant t o p l e a s of g u i l t y e n t e r e d i n t h e D i s -

t r i c t C o u r t o f F l a t h e a d County, S t a t e o f Montana.

On August 4, 1982, defendant kidnapped and killed

Harvey Mad Man, Jr., and Thomas Running R a b b i t , Jr., a t a

remote location near U.S. Highway 2, west of the eastern

b o r d e r o f F l a t h e a d County. O August 3 , 1982, t h e d e f e n d a n t
n

and two companions, Andre Fontaine and Rodney Munro, had

d e p a r t e d from A l b e r t a , Canada. The t h r e e e n c o u n t e r e d t h e two

victims, Mad Man and Running Rabbit, at a bar in East

G l a c i e r , Montana. While a t t h e b a r , t h e t h r e e s h o t p o o l and

d r a n k b e e r w i t h Mad Man and Running R a b b i t . The t h r e e l e f t

t h e b a r i n E a s t G l a c i e r and h i t c h h i k e d w e s t a l o n g Hiqhway 2 .

There had been d i s c u s s i o n between t h e d e f e n d a n t and Andre

F o n t a i n e a b o u t s t e a l i n g a c a r and t h e need t o e l i m i n a t e any

witnesses t o the t h e f t . Shortly thereafter, t h e t h r e e men

were p i c k e d up by Mad Man and Running R a b b i t . The men d r o v e

f o r a p p r o x i m a t e l y twenty m i n u t e s and s t o p p e d t o a l l o w Mad Man

and Running R a b b i t t o r e l i e v e t h e m s e l v e s . When t h e two men
got back into the car, the defendant pulled a sawed-off
single-shot bolt action .22 rifle, brought illegally into

t h i s c o u n t r y , and p o i n t e d it a t t h e d r i v e r . Munro d i s p l a y e d

h i s k n i f e t o t h e passenger. The d e f e n d a n t and Munro marched

t h e two v i c t i m s i n t o t h e t r e e s . The d e f e n d a n t s h o t Harvey

Mad Man i n t h e back o f t h e head a t p o i n t - b l a n k range. He
reloaded the rifle, walked several feet to where Thomas
Running Rabbit had fallen to the ground upon being stabbed by
Munro, and shot him in the temple at point-blank range. Both
men were killed instantly. The defendant and the other two
then stole the victims' car and proceeded to California. The
car was later recovered when Fontaine and Munro were arrested
for armed robbery in California. The defendant was arrested
in Wyoming.
An information was filed charging defendant with two
counts of aggravated kidnapping and two counts of deliberate
homicide. An arraignment hearing was held on November 1,
1982, at which time the defendant entered a plea of "not
guilty" to all charges. On February 24, 1983, the defendant
entered a change of plea. The defendant admitted shooting
both victims in the head. The court was apprised of the
defendant's intention to seek the death penalty.
At the sentencing hearing on March 21, 1983, the court
and parties reviewed the presentence report and, after one
minor correction, the court admitted it without objection.
At the hearing, the defendant testified that he had been in
prison for eight of the last ten years, and that he had lived
by petty theft and selling drugs when he was not in prison.
He testified in detail about the sixteen prior offenses
listed in the presentence report. He testified to the facts
of the killing. He stated that Munro was aware of his intent
to kill the victims and was unwilling to kill. He stated
that he killed the victims because he intended to steal their
car and wished to leave no witnesses. He stated that in
addition to his desire to eliminate the witnesses to the car
theft, he had had a "morbid fascination to find out what it
would be like to kill somebody." He testified that he had
consumed two or three beers on the night of the crime but
that his ability to understand his actions were not impaired.
He testified he sought the death penalty because a prol-onged
period of incarceration would be of no benefit to himself or
society and because he foresaw problems with the Indian
population at the prison. He testified that he felt no
remorse for the killings, that he considered himself a vio-
lent person, and that he felt he could kill again. He stated
that he had no desire to change his lifestyle. Following
extensive questioning by the court, the defendant denied
being under the influence of drugs, intoxicants or extreme
stress and stated that he knew of no mitigating
circumstances.
On March 21, 1983 at the conclusion of the hearing to
determine the existence and nature of any aggravating or
mitigating circumstances, the court imposed a sentence of
death upon the defendant.
Subsequently, the defendant filed a motion to seek a
reconsideration of the death penalty and a motion for a
psychiatric examination. The court held a hearing on the
motions on May 3, 1983. At the hearing, the defendant
testified that his family had induced him to change his mind
and seek a lesser penalty than death. He testified that his
earlier desire for the death penalty was the product of
depression which had. resulted from the long period of
solitary confinement in the Flathead County Jail following
his arrest. He further testified that he had designed his
earlier testimony to induce the court to sentence him to
death, and that he had concealed a potential mitigating
factor--his use of drugs and alcohol. He testified that he
and Munro had used three or four hundred "hits" of LSD during
the period of time immediately prior to their entry to the
United States, ending the day before the murders. He further
testified that on the day of the crime he had consumed
approximately twelve beers.
On June 10, 1983, the court granted the defendant's
motion for psychiatric evaluation. The court appointed a
psychiatrist, Dr. William Stratford, to examine the defendant
and report to the court as to: (1) whether he could
determine which of the versions given by the defendant was
credible; and ( 2 ) what was the defendant's mental condition
on August 4, 1 9 8 2 . The defendant requested the court to
amend its order deleting the investigative function of Dr.
Stratford. The court amended its order and directed Dr.
Stratford to assume the truth of defendant's second version
of the facts in performing his examination.
The court held a hearing on defendant's motion for
reconsideration of the sentence on December 1, 1 9 8 3 . At the
hearing, Dr. Stratford testified that he found no evidence
that the use of drugs or alcohol affected the defendant's
capacity to appreciate the criminality of his conduct,
conform his conduct to the requirements of law, or form a
criminal intent. He based his conclusions on the defendant's
testimony and statements regarding his extensive use of LSD
and his conduct on the day of the crime. According to Dr.
Stratford, after three or four consecutive days of heavy LSD
usage the user develops a tolerance for the drug. As a
result, large doses have little or no affect. Given the
defendant's history of heavy LSD usage for a period of one
month or more prior to the crime, Dr. Stratford concluded
that the use of eight or nine, or even as many as fifty doses
of LSD would not have affected the defendant's mental state
when he committed the homicides.
Rodney Munro, the defendant's accomplice, also testi-
fied at the hearing. Munro stated that at the time of the
crime, he was experiencing confusion, flashes of light and
hallucinations, having ingested approximately the same amount
of drugs and alcohol as the defendant. He also testified
that he had stabbed Running Rabbit once before the defendant
shot him, and that it was possible Running Rabbit was already
dead before he was shot.
On December 12, 1983, the defendant filed his motion
for an additional psychiatric evaluation. The defendant's
motion was denied.
In reviewing defendant's motion for reconsideration,
the court entered findings of fact and conclusions of law to
support its original sentence. The court found that beyond a
reasonable doubt the aggravated kidnappings committed by the
defendant resulted in the death of his victims, satisfying
the statutory aggravating circumstance stated in section
46-1.8-303, MCA. The court found beyond a reasonable doubt
that no mitigating circumstances were present. The court
found that without exception, the defendant's consumption of
alcohol and drugs was voluntary, and did not impair or other-
wise affect his state of mind, his capacity to reccgnize and
appreciate the criminality of his conduct or his ability to
control his actions and to conform his conduct to the re-
quirements of law. The court concluded that the defendant
made a conscious and voluntary choice to kill. the victims
notwithstanding his use of drugs and alcohol, and that intox-
ication was not a sufficient mitigating circumstance to call
for leniency. The court affirmed its previously imposed
death sentence.
Defendant appeals from this sentence imposed and
presents thirteen issues on appeal:
 1. Whether the sentencing court may consider prior
Canadian convictions, obtained without the right to counsel,
in imposing sentence.
2. Whether the inclusion of juvenile offenses as adult
offenses in the presentence report constituted error.
3. Whether the court's order that defendant submit to
a presentence interview prior to sentencing violated his
Fifth Amendment rights.
4. Whether the use of a presentence report containing
a recommendation for the death penalty was improper and
violative of the defendant's rights.
5. Whether the sentencing judge erred in the evalua-
tion of mitigating factors by overlooking:
(a) letters of recommendation;
(b) tests regarding depersonalization;
(c) evidence of drug use; and
(d) questions as to whether Running Rabbit may
have d.ied as a result of stab wounds.
6. Whether the statutory mitigating circumstances
requiring "extreme mental or emotional disturbance" and
"substantial impairment" unconstitutionally limit the court's
consideration of mitigating circumstances.
7. Whether the District Court erred in denying defen-
dant's motion for additional psychiatric eva.luation.
8. Whether the District Court violated defendant's
rights by issuing its final order in writing rather than in
defendant's presence in open court.
9. Whether the admission and consideration of aggravat-

ing Factors other than those established by section
56-18-303, MCA, violates the Eighth Amendment.
 10. Whether the Montana capital sentencing procedure is
unconstitutional because it provides no jury participation in
the sentencing process.
11. Whether the sentence was imposed under the
influence of passion, prejudice or any other arbitrary
factor.
12. Whether evidence supports the District Court's
findings of aggravating and mitigating circumstances.
13. Whether the sentence of death is excessive or
disproportionate to the penalty in similar cases.
We address the first issue raised by defendant that it
was error for the District Court to consider the defendant's
uncounseled Canadian convictions in imposing the sentence.
The presentence report noted that the defendant had committed
four juvenile and ten adult offenses. The District Court
noted that five of the ten convictions identified in the
presentence report were obtained in proceedings without the
benefit of represelltation by counsel. The defendant relies
upon a Michigan Court of Appeals decision, People v.
Braithwaite (Mich. 1976), 240 N.W.2d 293, where the defendant
had been convicted of a crime in Canada. which was included in
the presentence report. The court found the foreign
conviction inadmissible. The court concluded that since many
foreign jurisdictions do not provide due process rights
equivalent to those existing in the United States, it would
be manifestly unfair to allow foreign convictions to be
considered in sentencing a defendant convicted of a crime in
this country. However, in People v. Wallach (Mich. 1981),
312 N.W.2d 387, the same court criticized the Braithwaite

panel's absolute prohibition of the use of foreign
convictions and held that a foreign conviction could be used
for impeachment purposes if the foreign country provided
criminal defendants with sufficieilt due process safeguards.
The defendant further claims that in People v. Ga-ines (Mich.
1983) , 341 N.W. 2d 519, the Michigan Court of Appeals placed
the burden of proof concerning the foreign country's criminal
justice system on the prosecution, and similarly, the burden
should be on the State in the present matter.
The State submits that the burden of persuasion should
rest with the defendant. We agree. In Montana, the
defendant bears the burden of challenging matters contained
in the presentence report. State v. Transgrud (Mont. 1983) ,
651 P.2d 37, 39 St.Rep. 1765; State v. Radi (1979), 185 Mont.
38, 604 P.2d 318. Moreover, several Federal Courts of
Appeals have held that foreign convictions may be considered
by a sentencing court unless the defendant demonstrates that
they were obtained under a svstem which provided inadequate
procedural safeguards. See United States v. Manafzadeh
(2nd.Cir. 1979), 592 F.2d 81; United States v. Wilson (4th
Cir. 1977), 556 F.2d 1177, cert. denied, 434 U.S. 986,
(1977).
The defendant argues the Canadian conviction cannot
withstand the scrutiny of the Sixth Amendment of the United
States Constitution providing for the right to cou-nsel.
Within this context, the defendant argues the holding in Ryan
v. Crist (1977), 172 Mont. 411, 563 P.2d 1145, applies to the
case at bar. In Ryan, the Montana Supreme Court stated that
the sentencing court cannot rely upon a pre~rious criminal
record if that record contains constitutionally infirm
convictions.
The Ninth Circuit Court of Appeals has rejected this
argument on similar facts. In United States v. Fleishman
(9th Cir. 1981), 684 F.2d 1329, cert. denied 459 U.S. 1044
(19821, the defendant asserted that he was improperly
sentenced due to the district court's expressed consideration
of their prior, uncounseled Mexican convictions for
drug-related offenses. The circuit court affirmed the
sentence because the record showed that the sentencing judge
was aware that the convictions were uncounseled. A direct
analogy between the present case and Fl-eishman exists. In
the instant matter, the District Court was under no mistaken
belief that the prior Canadian convictions were uncounseled.
The District Court was apprised of the alleged infirmities
attending the Canadian convictions. Furthermore, we find no
violation of State v. Olsen (Mont. 1980), 614 P.2d 1061, 37
St.P.ep. 1313, which mandates a defendant is entitled to a
conviction based on substantially correct information. The
record clearly reflects that the District Court was aware of
the uncounsel-ed prior convictions. The defendant's own
admission to the commission of the crimes and the prior
counseled Canadian convictions also formed a part of the
record. We simply fail to find any indication of erroneous
information in the record. We therefore hold the
consideration of defendant's prior uncounseled Canadian
convictions is no basis for resentencing.
The defendant next claims error in the sentence because
the presentence report included four offenses in the adult
category committed prior to the defendant attaining the age
of majority. The defend.antcontends the inclusion of juvenile
offenses under the adult category prejudiced him because the
offenses were considered criminal convictions. The defendant
argues that he is entitled to have his sentence predicated on
substantially correct information. Townsend v. Burke (1948),
334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690; State v. Knapp
(1977), 174 Mont. 373, 570 P.2d 1.138.
 The f o l l o w i n g t e s t i m o n y r e v e a l s t h a t t h e d e f e n d a n t had

t h e opportunity t o review t h e presentence report prior to

sentencing:

"THE COURT: In preparation for this
h e a r i n g and a t m r e q u e s t , J e r r y Cooley,
y
D i s t r i c t P r o b a t i o n and Pa.role O f f i c e r ,
h a s conducted a p r e s e n t e n c e i n v e s t i g a t i o n
and p r e p a r e d a r e p o r t a b o u t you, M r .
Smith, i n c l u d i n g h i s recommendations t o
me r e g a r d i n g s e n t e n c i n g . Are you aware
of t h a t ?

"THE DEFENDANT: Yes.

"THE COURT: Have you had an o p p o r t u n i t y
t o review h i s r e p o r t ?

"THE DEFENDANT: Yes, I have.

"THE COURT: Have you d i s c u s s e d it w i t h
your a t t o r n e y , M r . Dora.n?

"THE DEFENDANT: Yes.

"THE COURT: Do you have any a d d i t i o n s o r
c o r r e c t i o n s t o make t o t h e r e p o r t ?

"MR. DORAN: Your Honor, I would respond
t o that. I n reviewing t h e presentence
r e p o r t with t h e defendant, it appears
t h a t on page 2 of t h e p r e s e n t e n c e r e p o r t
on t h e f o u r t h o f f e n s e i n d i c a t e d e n t i t l e d
' P a r o l e V i o l a t i o n , Red Deer, A l b e r t a , '
i n d i c a t e s a d a t e o f 6-18-81 and t h a t d a t e
s h o u l d a p p r o p r i a t e l y be 1-1-26-81.
"MR. LYMPUS: Your Honor, t h e S t a t e h a s
no o b j e c t i o n t o t h e r e p o r t b e i n g amended
t o s o i n d i c a t e t h a t change and would move
t h e c o u r t t h a t it be s o done.

"THE COURT: Thank you M r . Lympus, and
thank you M r . Doran. Are t h e r e any o t h e r
a d d i t i o n s o r c o r r e c t i o n s t o be made on
behalf of t h e defendant t o t h i s r e p o r t ?

"MR. DORAN: The d e f e n d a n t h a s i n d i c a t e d
no further additions o r corrections.
"THE COURT: M r . Smith, i s t h e r e p o r t a s
amended e n t i r e l y a c c u r a t e ?
"THE DEFENDANT: Yes.

"THE COURT: Do you a g r e e w i t h t h a t M r .
Doran?
"MR. DORAN: I believe it i s so."
The foregoing colloquy clearly demonstrates the District

Court afforded the defendant the opportunity to refute or

contradict the matters alleged in the report. Both the

d e f e n d a n t and h i s c o u n s e l were p r e s e n t e d w i t h a copy o f t h e

report prior to t h e hearing. Both the defendant and h i s

c o u n s e l w e r e q u e s t i o n e d e x t e n s i v e l y by t h e c o u r t r e g a r d i n g

t h e accuracy of t h e r e p o r t . For t h e f i r s t t i m e t h e d e f e n d a n t

suggests e r r o r i n t h e sentence because t h e presentence r e p o r t

included four offenses committed prior to the defendant

a t t a i n i n g t h e age o f majority. T h i s c o n t e n t i o n l o s e s much o f

its credibility because the defendant waited until this

appeal t o raise it. T h i s Court w i l l n o t review a m a t t e r

raised for the first time on appeal. Peters v. Newkirk

(Mont. 1 9 8 1 ) , 633 P.2d 1210, 38 St.Rep. 1526; N o r t h e r n P l a i n s

v. Board o f N a t u r a l Resources ( 1 9 7 9 ) , 181 Mont. 500, 594 ~ . 2 d

297. T h i s Court has l o n g h e l d t h a t t h e d e f e n d a n t h a s an

a f f i r m a t i v e d u t y t o p r e s e n t e v i d e n c e showing t h e i n a c c u r a c i e s

contained i n t h e r e p o r t . State TT. Transgrud (Mont. 1983) ,

651 P.2d 37, 39 St.Rep. 1764; S t a t e v. Radi ( 1 9 7 9 ) , 185 Mont.

38, 604 P.2d 318. The defendant did not meet this

a f f i r m a t i v e duty.

The S t a t e f u r t h e r d e n i e s any i n a c c u r a c i e s i n t h e r e -

port. The S t a t e c o n t e n d s t h e r e p o r t l i s t e d t h e d a t e s o f t h e

o f f e n s e s and t h e d e f e n d a n t ' s age. The S t a t e f u r t h e r a r g u e s

the offenses in the adult c a t e g o r y were committed by the

defendant a f t e r t h e age of sixteen. The S t a t e p o i n t s o u t

that under Canad.ian law, t h e age o f m a j o r i t y for criminal

prosecution purposes i s s i x t e e n . Canadian Revised S t a t u t e ,

C h a p t e r J-3. (1970) ; D. Steward, Canadian C r i m i n a l Law a t p.

301 (1.982). All o f t h e Canadian o f f e n s e s l i s t e d under t h e

"adult" section of the presentence report were in fact

committed a f t e r t h e d e f e n d a n t r e a c h e d s i x t e e n y e a r s o f a g e .
Therefore, the State urges the fact that they were adult
offenses in the jurisdiction in which they were committed
should properly be a factor considered by the sentencing
court.
Even if the four convictions at i-ssuewere excluded we
find the remaining eight convictions, including:
(i) a parole violation of carrying a gun into an
automobile;
(ii) possession of narcotics;
(iii) breaking/entering and theft;
(iv) felony theft;

(v) auto theft;
(vi) drunk driving;
(vii) escape; and
(viii) possession of narcotics,
more than sufficient to support the District Court's
conclusion that the defendant had "a considerable history of
criminal activity and involvement."
The defendant was ordered to submit to a presentence
interview on February 24, 1983. The defendant alleges that
the statements made to the probation officer and the use of
those statements in the sentencing procedure violated defen-
dant's Fifth Amendment privilege against compelled self
incrimination. The defendant alleges the presentence report
was incriminating in particular, the reference to the defen-
dant's criminal record, the defendant's version of the crime
and the defendant's prior use of drugs and alcohol. The
defendant submits that the District Court's reliance upon the
presentence report violated his Fifth Amendment rights
established in Estelle v. Smith (1981), 451 U.S. 454, 101
S.Ct. 1866, 68 L.Ed.2d. 359.
 In Estelle, the defendant was indicted in 'I'exas for
murder. The state trial judge, ordered a psychiatric
evaluation of defendant for the limited, neutral purpose of
determining his competence to stand trial. The
psychiatrist's testimony stated in substance that defendant
would be a danger to society. The federal court vacated the
death sentence because it found constitutional error in
admitting the psychiatrist's testimony at the penalty phase.
The United States Supreme Court affirmed, holding the Fifth
Amendment privilege extends to the penalty phase of a capital
trial. Estelle v. Smith, supra, 451 U.S. at 462-463.
We find the Estelle decision readily distinguishable
from the case at bar. First, in Estelle, the defendant's
counsel at the trial made an immediate motion to exclude the
psychiatric testimony. Here, the defendant was given the
opportunity to object to the presentence report and did not
do so on this ground at any time either during the original
sentencing procedure or during the proceedings on his motion
to reconsider sentence. The defendant had the obligation to
make a record in the trial court to support his allegation on
this issue and he did not do so. Second, the controversy in
Estelle, involved the admissiblity of testimony by a.
psychiatrst. In the present case, the presentence
investigation is challenged. Finally, the Supreme Court
in Estelle ruled that "volunteered statements . . . are not
barred by the Fifth Amendment ... " However, the
defendant's statements to the psychiatrist "were not given
freely a.nd voluntarily without any compelling influences,
and, as such could be used as the State did at the penalty
phase only if respondent had been apprised of his
rights . . ." Estelle, supra, 451 U.S. at 469. The State
urges the record in the instant matter does not disclose an
Estelle violation. We agree. The defendant's statements to
the probation officer were both voluntary and cumulative.
The presentence report resulted from the actions defendant
elected during the course of the proceedings. The defendant
at the hearing on his motion to change his plea. to guilty
testified that he was guilty of the crimes charged. The
defendant testified to his criminal history, his prior use of
drugs and his social background. Defendant's own testimony
confirmed the statements made during the presentence
interview. The Legislature of the State of Montana
statutorily implemented policy and procedure of the
presentence investigation. Section 46-18-]11, MCA requires
the preparation of a presentence report:
"No defendant convicted of a crime which
may result in commitment for one year or
more in the state prison shall be sen-
tenced or otherwise disposed of before a
written report of investigation by a
probation officer is presented to and
considered by the court unless the court
deems such report unnecessary."
The legislature has also promulgated what the contents of the
presentence investigation report should include:
"Whenever an investigation is required,
the probation officer shall promptly
inquire into the characteristics, circum-
stances, needs, and potentialities of
the defendant; his criminal record and
social history; the circumstances of the
offense; the time the defendant has been
in detention; and the harm to the victim,
his immediate family, and the community.
All local and state mental and correc-
tional institutions, courts, and police
agencies shall furnish the probation
officer, on request, the defendant's
criminal record a.nd other relevant infor-
mation. The investigation shall include
a physical and mental examination of the
defendant when it is desirable in the
opinion of the court." Section
46-18-112, MCA.
The statute provides the manner in which the report shall be
used. "The judge may, in his discretion, make the
investigation report or parts of it available to the
defendant or others. .. such reports shall be part of the
record ... I
' Section 46-18-113, MCA. We find that the
presentence report is consistent with the purposes and
rationale established by the legislature for requiring a
presentence investigation. State v. Radi (1979), 185 Mont.
38, 604 P.2d 318. The report was properly considered by the
sentencing judge. The report provided him with a fair and
objective review of defendant's history and provides no basis
to remand for a further resentencing hearing.
We now turn to defendant's contention that the parole

o*Fficerlsrecommendation for the death penalty violated the
defendant ' s rights. The probation officer's presentence
report was prepared and filed on March 7, 1983, prior to the
imposition of the death penalty and the filing of the defen-
dant's motion to reconsider sentence. The report contained a
recommendation that the defendant receive the death penalty.
The defendant urges the District Court invited and relied on
the presentence report and investigation recommendation for
the death penalty. Specifically, the defendant arques the
parole officer who prepared the report was not bound by the
specific and limited statutory guidelines imposed upon the
sentencing authority by Gregg v. Georgia (1976), 428 U.S.
153, 96 S.Ct. 2909, 49 L.Ed.2d. 859; Jurek v. Texas (1976),
428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929; Proffitt v.
Florida (1976), 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d. 913;
Furman v. Georgia (1972), 408 U.S. 238, 92 S.Ct. 2726, 33
L.Ed.2d 346.
We find no merit to this contention. Section
46-18-302, MCA, authorizes the sentencing judge to consider
the widest possible scope of inquiry when determining the
sentence to be imposed.
 "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
'
d.efendant s character, background,
history, and mental and physical
condition, and any other facts in
aggravation or mitigation of the penalty.
~robative force -
Any evidence the court considers - -
mav be
to have
received
;egardless of its admissibility under the
rules goverring admission - evidence at
of
criminal trials. ... 11
section
46-18-302, MCA. (Emphasis supplied.)
The Un.ited States Supreme Court has spoken upon the
sentencing judge's discretion to use the presentence report
in Williams v. New York (1949), 337 U.S. 241, 69 S.Ct. 1079,
93 L.Ed 1337, in which the Court stated:
". . . highly relevant -- if not
essential -- to his selection of an
appropriate sentence is the possession of
the fullest information possible
concerning the defendant's life and
characteristics. And modern concepts
individualizing punishment have made it
all the more necessary that a sentencing
judge not be denied the opportunity to
obtain pertinent information by a
requirement of ridged adherence of
restricted rules of evidence properly
applicable to the trial. . .[probation]
reports have been given a high value by
conscientious judges who want to sentence
persons on the best available information
rather than on guesswork and inadequate
information . . ." Williams v. New York,
337 U.S. at 247-249,
The Montana Supreme Court has also affirmed a sentence
in which a. presentence report included a sentence
recommendation. In State v. Stephens (1982), 198 Mont. 140,
645 P.2d 387, we stated:
"There is no requireme~t that the sen-
tencing judge adopt the recommendation of
the presentence report or that he state
reasons for any discrepancy between the
recommended sentence and the one actually
imposed. The sentencing judge must only
specify reasons why the sentence was
imposed. State v. Stumpf (Mont. 198O),
609 P.2d 298, 37 St.Rep. 673; Cavanaugh
v. Crist (Mont. 1980), 615 P.2d 890, 37
 St.Rep. 1461. . ." State 7.
7 Stephens,
645 P.2d at 391.
The District Court's findings of fact and conclusions
of law specified the reasons for the sentence imposed. At
most, the report was merely an additional factor the court
was allowed to consider when imposing the sentence.
Accordingly, we hold the presentence report containing a
sentence recommendation did not violate the defendant's
rights.
The defendant next claims the District Court ignored
certain mitigating factors which in the aggregate require
leniency in this case. The mitigating circumstances specifi-
cally enumerated by the defendant include:
(1) eleven letters commending the defendant's
character;
(2) Dr. Stratford's testimony that the defendant was
suffering a "depersonalization" episode when he shot the
victims;
(3) the defendant's cooperation with authorities;
(4) Rodney Munro's testimony that he stabbed Thomas
Running Rabbit before the defendant shot him;
(5) the evidence of drug use; and
(6) the defendant's testimony that he intended to
rehabilitate himself.
The District Court was required to take into account
the aggravating and mitigating circumstances set forth in
section 46-18-303, MCA and section 46-18-304, MCA

consecutively. "The court . . . 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.
 Defendant contends there was evidence of mitigating
factors present and the District Court did not give proper
consideration to evidence when making its findings, conclu-
sions and when rendering judgment. In Montana, the District
Court is required by section 46-18-305, MCA to consider and
compare aggravating and mitigating circumstances and can
impose the death penalty only if there exists at least one
aggravating circumstance and no mitigating circumstances of
sufficient substantiality to call for leniency.
We are directed by section 46-18-310, MCA to consider
whether evidence supports the sentencing court's findings
regarding aggravating and mitigating circumstances. We make
such an assessment based upon our independent review of the
trial court record. In so doing, we are not usurping the
position of the District Court as the primary entity
Montana's system of criminal jurisprudence, rather we mean to
insure that the death penalty, unique in its severity and
irrevocable, is not wantonly or arbitrarily and capriciously
imposed. State v. Coleman (1978), 185 Mont. 299, 605 P.2d
1000, cert. denied, 446 U.S. 970, reh'g. denied, 448 U.S.
914, (1980); Gregg v. Georgia, supra, 428 U.S. 153; Furman v.
Georgia, supra, 408 U.S. 238.
The defendant does not raise an issue with the District
Court's determination that beyond a reasonable doubt
"aggravating circumstances" as set forth in section
46-18-303 (5), P4CA, and section 46-18-303 ( 7 ) existed.
This statute, in pertinent part states:
"(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." Section 46-18-303, MCA.
Clearly the evidence in this case supports the finding of
aggravating circumstance. The defendant had been a
deliberate and voluntary participant in the kidnapping and
subsequent homicide of the two victims.
The defendant contends that one or more of the
"mitigating circumstances," provided in section 46-18-304,
MCA existed and were sufficiently substantial to call for
leniency. Several of the mitigating circumstances enumerated
in section 46-18-304, MCA, are relevant. Specifically, the
circumstances in pertinent part, include:
"Mitigating circumstances are any of the
following:
" (1) the defendant has no significant
history of prior criminal activity.
'72) The offense was committed while the
defendant was under the influence of
extreme mental or emotional disturbance.

" (4) The capacity of the defendant to
appreciate the criminality of his conduct
or to conform his conduct to the require-
ments of law was substantially impaired.

" (8) Any other fact that exists in miti-
gation of the penalty." Section
46-18-304, MCA.
The defendant presented evidence of his character and
prior criminal record which he contends section 46-18-304,
MCA permits the trial court to consider as mitigating
circumstances. Therefore, the defendant argues, it follows
that letters from supportive friends commending the
defendant's character and a record showing no prior crimes of
violence should be noted by the sentencing count. Further,
the defendant's use of alcohol and LSD should also be noted
as mitigating circumstances. In support of this conclusion,
defendant cites to a United States Supreme Court decision,
Lockett v. Ohio (1978), 438 U.S. 586, 98 S.Ct. 2954, 57
L.Ed.2d 973. In Lockett, the United States Supreme Court
held that the Eighth and Fourteenth Amendments require that
the sentencer not be precluded from considering, as a
mitigating factor, any aspect of a defendant's character or
record and any other circumstance of the offense that the
defendant proffers a.s a basis for a sentence less than death.
The Supreme Court in Eddings v. Oklahoma (1982), 455 U.S.
104, 102 S.Ct. 869, 71 L.Ed.2d 1, expanded Lockett, supra,
stating the courts must consider all relevant mitigating
evidence.
We find the mitigating circumstances raised by the
defendant were properly discounted by the District Court.
Defendant's contention that Rodney Munro had stabbed Running
Rabbit before the defendant shot him constitutes a mitigating
circumstance is not supported by the record. The affidavit
filed in support of the information stated that the medical
examiner determined the death of Running Rabbit was caused by
a .22 caliber gunshot wound to the head. In the face of the
evidence of record, defendant cannot now argue that he was
not responsible for Running Rabbit's death.
Moreover, against the record of this brutal crime, we
cannot say that the defendant's lack of prior violent
criminal activity is a factor sufficiently substantial to
call for leniency. In State v. Coleman (1979), 185 Mont.
229, 605 P.2d 1000, cert. denied, 448 U.S. 914, (1980), we
summarily rejected defendant's contention that a lack of
prior criminal activity required leniency in the sentence.
State v. Coleman, supra, 605 P.2d at 1019-1020. In the
present matter the record discloses that the defendant had a
long record of criminal behavior and while it is in dispute
as to whether the offenses prior to the homicide constituted
violent crimes, the defendant has demonstrated his capacity
for violence in the murders of Mad Man and Running Rabbit.
The defendant also maintains the effects of drugs and
alcohol is supportive of the mitigating circumstances enumer-
ated in section 46-18-304, MCA, regarding the influence of
extreme mental or emotional disturbance and the capacity of
the defendant to appreciate the criminality of his conduct.
As against the defendant's contention that he was
intoxicated by the use of alcohol or drugs at the commission
of the crime, it is pertinent to observe the defendant's
level of consciousness and physical dexterity as exhibited by
the record:
(i) Prior to Mad Man and Running Rabbit offering the
three a ride, the defendant and his companions planned a car
theft scheme.
(ii) The defendant was able to aim the rifle at each
man to effectuate the killing with one shot.
(iii) The defendant was able to load the single-shot
bolt action rifle once before shooting Mad Man and again
before shooting Running Rabbit.
This is evidence from which the District Court could conclude
and doubtless did conclude that the defendant's faculties
were not so far prostrated by intoxication as to render
intoxication as a circumstance requiring mitigation.
The defendant himself described the effects of the
drugs and alcohol as a "light buzz" and testified that he
knew what he was doing when he killed Mad Mar, and Running
Rabbit. This was completely consistent with Dr. Stratford's
conclusions that, with the exception of the
"depersonalization" episode, the defendant exhibited none of
the classic symptoms of LSD intoxication at the time of the
offense, based on the defendant's own description of his
actions and mental state.
The District Court stated in its findings of fact and
conclusions of law:
"That the defendant voluntarily and
unhesitatingly ingested substantial
quantities of alcohol on the days these
crimes were committed, and numerous
tablets or 'hits1 of LSD on the days
prior thereto, does not relieve him of
responsibility for his actions. ..
despite the presence of alcohol and any
residue of drugs in his system, there is
no doubt that the defendant knew exactly
what he was doing on August 4, 1982. As
the court specifically found in March of
1983 'none of the offenses were committed
while the defendant was under the influ-
ence of a mental or emotional disturbance
but they were in fact calculated by him
in advance and carried out in a cold and
detached fashion while the defendant was
entirely aware of the circumstances and
his actions. ..
" 'In addition today as in March of 1983,
the court entertains no doubt whatsoever
that the defendant's capacity to appreci-
ate the criminality of his conduct, and
to conform his conduct to the require-
ments of la.w, was complete and
unimpaired. ..1 11

We find there was substantial evidence to support the Dis-
trict Court's rejection of intoxication as a mitigating
circumstance.
Finally, we agree with the State's assertion that the
defendant's intention to seek rehabilitation must simply be
viewed as self-serving. Accordingly, we hold the District
Court was correct in its conclusion that no mitigating
circumstance was sufficiently substantial to call for
leniency.
The defendant next attacks the constitutionality of the
death penalty provision. Section 46-18-304, MCA lists eight
statutory mitigating circumstances, including:
 " ( 2 ) The offense was committed while the
defendant was under the influence of
extreme mental - emotional disturbance.
or

" (4) The capacity of the defendant to
appreciate the criminality of his conduct
or to conform his conduct to the require-
ments of law was substantially impaired."
(Emphasis supplied.)
The defendant argues that by requiring "extreme" mental or
emotional disturbance and "substantial" impairment the
statutes by implication exclude consideration as mitigating
circumstances of disturbances and impairments which are less
than extreme or substantial. The United States Supreme Court
examined the mitigating circumstance requirement that the
impairment must be "substantial" or that the mental or
emotional disturbance be "extreme" in Eddings v. Oklahoma,
supra, 455 U.S. 104. The Court reasoned that the "quality"
or "weight" of the mitigating evidence was not determinative
of the issue, but stated the sentence may determine the
weight to be given relevant mitigating evidence. However,
they may not give it no weight by excluding such evidence
from their consideration. Eddings, supra, 455 U.S. at 115.
The State submits that subsection (8) of section
46-18-304, MCA, which allows the court to consider "any other
fact that exists in mitigation of sentence" resolves this
issue. We agree. In State v. Coleman, supra, 605 P. 2d at
1017, we held that Montana's death penalty statute, specifi-
cally section 46-18-304, MCA, was constitutionally sound
under the United States Supreme Court decision Lockett v.
Ohio, supra, 438 U.S. 586. We likewise find this statute
meets the constitutional mandate established in Eddings v.
Oklahoma, supra, 455 U.S. 104. Montana's statute clearly
indicates the sentencing body should consider "any other fact
existing in mitigation of the penalty." Section
46-18-304 (8), MCA. This provision clearly allowed the
District Court to consider any mental or emotional
disturbance or impairment of capacity which did not rise to
the level set forth in section 46-18-304 (2), MCA. The
defendant presented no evidence that showed the District
Court construed the statute any other way. We are clearly
convinced that the District Court construed the provision
within the gravamen of section 46-18-304, KCA.
The defendant next argues that the death penalty stat-
ute is unconstitutional because the sentencing judge is given
the discretion to decide the criteria to be applied in evalu-
ating mitigating circumstances and whether the mitigating
factors outweigh the aggravating circumstances. The defen-
dant submits this practice makes any prediction on whether
the death penalty will be imposed somewhat hazardous and
constitutes a violation of defendant's Eighth Amendment
rights. In support of this contention, defendant cites to an
Eleventh Circuit Court of Appeals decision, Moore v. Balkcom
(11th Cir. 1983), 716 F.2d 1511. This case is in direct
conflict with an array of United States Supreme Court
decisions, in particular, Eddings v. Oklahoma, supra, which
specifically held that the sentencing authority must have
unbridled discretion to consider any perceived mitigating
circumstance. Moreover, the capital sentencing statutes
approved by the United States Supreme Court in Gregg v.
Georgia, supra, 428 U.S. 153; Proffitt v. Florida, supra, 428
U.S. 242; and Jurek v. Texas, supra, 428 U.S. 262; provided
the states with strict statutory guidelines and procedures
when imposing capital sentences. The capital sentencing
statutes were rigorously challenged and extensively reviewed
by the United State Supreme Court. We hold Montana's death
penalty statutes are not unconstitutional on this ground.
 The defendant next claims error because the defendant's
motion for a second psychiatric evaluation was denied.
The defendant initiated the first psychiatric examina-
tion after he filed the motion for reconsideration of his
sentence. The court held a hearing on the motions, at which
the defendant testified contrary to his prior testimony that
he had ingested large quantities of LSD in the days prior to
the killings, that he had consumed a quantity on the day of
the killings, and that he experienced a "dissociative state"
during the killings. The court granted defendant's motion for
the psychiatric evaluation. The court concluded that the
defendant's allegations could present evidence of mitigating
circumstances which should be heard by the court and ordered
that the defendant be examined by Dr. William Stratford, a
Missoula forensic psychiatrist. The defendant's motion
sought the opinion of a psychiatrist to determine if the
defendant's use of LSD and alcohol prior to the crime may
have impaired his mental capacity to appreciate the wrongful-
ness of his actions. If so, such drug use might establish a
mitigating factor reducing his death sentence to life in
prison.
The court directed Dr. Stratford to resolve, if possi-
ble, the inconsistencies between the defendant's testimony at
the arraignment of February 2 4 , 1983, the sentencing hearing
March 23, 1983, and the May 3, 1983, hearing on his motion to
reconsider sentence. The court further instructed Dr.
Stratford to determine which version of the facts was more
credible. The court requested Dr. Stratford to consider
several questions regarding the defendant's actions on August
4, 1982:
(1) the effect of alcohol or drugs on the defendant's
state of mind;
 (2) whether the defendant acted under extreme mental or
emotional stress;
(3) whether the defendant's capacity to appreciate the
criminality of his conduct or conform his conduct to the
requirements of law was substantially impaired; and
(4) a diagnosis of the defendant's mental condition.
On June 20, 1984, the defendant filed a motion object-
ing to the portion of the court's order directing Dr.
Stratford to resolve the conflicts in the defendant's testi-
mony on the ground that: it interfered with the
"doctor-patient" relationship; asked for an opinion beyond
the doctor's expertise; and was generally unfair and uncon-
stitutional. The court amended its order and directed Dr.
Stratford to assume the truth of the defendant's second
version of the events leading up to the killings and render
his opinion of the defendant's mental state on that basis.
Dr. Stratford interviewed the defendant on two occa-
sions at the Montana State Prison and considered the tran-
scripts of the prior proceedings, the presentence report, and
witness statements provided by the defendant. Dr. Stratford
also interviewed Rodney Munro and Andre Fontaine and secured
a psychological profile of the defendant from Dr. Herman
IrJalters.
Dr. Stratford testified in substance that: the drugs
and alcohol did not have a substantial effect on the
defendant's state of mind; that he was not acting under
extreme mental or emotional stress; and that he had the
capacity both to appreciate the criminality of his conduct
and to conform his conduct to the requirements of law. Dr.
Stratford was unable to diagnose the defendant, but found
that "his personality structure and history is consistent
with an anti-social personality disorder."
 Following this hearing, the defendant filed a motion
for a second psychiatric evaluation. The motion stated that
the court's imposition of investigative d-uties on Dr.
Stratford had compromised his impartiality; that Dr.
Stratford had deviated from the defendant's second version of
the facts in reaching his conclusions; and that the court's
order had excluded Dr. Stratford's consideration of other
unspecified mitigating factors in reaching his conclusion.
The defendant submits that he did not initiate the additional
investigation concerning his credibility, nor did the defen-
dant consent to any investigation of his credibility to be
used against him at his sentencing hearing. The defend.ant
argues when the court requested the additional investigation,
Dr. Stratford's role changed and he became an agent for the
State. This, the defendant submits, triggered defendant ' s
Fifth Amendment protections. The defendant maintains the
inclusion of Dr. Stratford's statements is a violation of the
constitutional provisions set forth in Estelle v. Smith,
supra, 4 5 1 U.S. 454. In Estelle, the Court ordered a
psychiatric examination of the defendant to determine if he
was competent to stand trial. The defendant was found
competent and found guilty of capital murder. The
psychiatrist testified at the sentencing hearing that the
defendant would commit similar crimes in the future if given
the opportunity. The defendant challenged the psychiatrist's
testimony as incriminating and violative of hi.s Fifth
Amendment privilege. The Court concluded:
"A criminal defendant, who neither initi-
ates a psychiatric evaluation nor at-
tempts to introduce any psychiatric
evidence, may not be compell-ed to respond
to a psychiatrist if his statement can be
used aqainst him at a capital sentencing
The Defendant urges the ruling in Estelle governs the case a.t
bar.
This case is distinguishable from Estelle on two
grounds. First, the issue of compulsion is not presen.t here.
The defendant initiated the psychiatric evaluation after the
entry of a plea of guilty. As a result, any Fifth Amendment
privilege with regard to his statements made during the
interview were waived. Second, unlike Estelle, the defendant
in this case had access to the advice of counsel before the
psychiatric evaluation took place.
The defendamt concedes that he did initiate the
psychiatric evaluation a.fter the plea of guilty. The purpose
of the requested evaluation. was to determine if the
defendant's heavy use of LSD and alcohol prior to the crime
may have impaired his mental capacity to appreciate the
wrongfulness of his actions. However, the defendant argues
when the court requested the additional investigation, Dr.
Stratford's role changed and he became an agent for the State
recounting unwarranted statements made in a post-arrest
custodial setting. The defendant urges this is when the
ruling of Estelle attaches.
The defendant fails to comprehend the fundamental basis
of our criminal justice system. Three actors play a role in
the judicial arena: (1) the defendant; (2) the State; and
(3) the court. The court is not an advocate, but rather the
court is a neutral and detached arbitra-tor insuring fair play
in the criminal proceeding. The court, by requesting the
psychiatrist to examine the defendant was properly within the
confines of the law. Section 46-14-311, MCA, states:
"Whenever a defendant is convicted on a
verdict or a plea of guilty and he claims
tha-t at the time of the commission of the
offense of which he was convicted he was
suffering from a mental disease or defect
 which rendered him unable to appreciate
the criminality of his conduct or to
conform his conduct to the requirements
of law, the sentencing court shall
consider any relevant evidence presented
at the trial and shall require such
additional evidence as it considers
necessary for the determination of the
issue including a psychiatric examination
- the
of - defendant-and a report thereof as
--
rovided in sections 46-14-202 a z
i6-14-203. " (Emphasis supplied.)
-

Under direct examination, Dr. Stratford testified to
the manner he perceived his role under the District Court
order :
"Q. [By Ij. Doran] How did you perceive
vr
your role if you might summarize it as it
was sticking to the order?
"A. My understanding of that was that I
was to contrast comments made at
different times and try to render an
opinion as to whether or not--as to which
statements were more accurate.
Additionally, I was asked to assume that
the later statements by Mr. Smith were
correct and to follow through with that
assumption and then answer the questions
which Judge Keedy dictated and detailed
in the court order.
"Q. So, do you perceive your role pursu-
ant to the order as being an investigator
on one hand and on the other hand per-
forming a psychiatric evaluation of the
defendant as it may be affected by the
defendant's statements that he used drugs
or alcohal prior to the offense?
"A. I perceived my role as using my
background and professional training and
experience in prior examination of the
defendant's criminal conduct and drug
knowledge to try to utilize that back-
ground to answer the questions which were
asked of me by Judge Keedy so I don't
perceive myself in an investigative role
at all. "

Defendant's contention, that Dr. Stratford acted as an agent
of the State, is legally groundless.
Finally, the defendant argues when the court directed
Dr. Stratford to resolve inconsistencies between the defen-
dant's testimony and to determine which version of the facts
was more credible, this resulted in Dr. Stratford doubting
the credibility of the defendant. However, we find the two
substantive issues involved, the amount of drugs and alcohol
consumed and the resulting effect; and the
"depers6fializationnmental state, were based upon defendant's
second version of the facts. Dr. Stratford testified that he
assumed that the defendant had ingested "eight or nine hits"
of LSD the day before the crimes and consumed "at least. ten
or twelve beers" on the day of the crimes. Dr. Stratford's
assumption was based on the information provided by the
defendant during the two interviews conducted at the prison.
There was no testimony at the hearings prior to Dr.
Stratford's examination indicating that Smith took "40 to 50"
hits of LSD. However, the testimony of Dr. Stratford clearly
reveals that the defendant had been using a "substantial
amount" of LSD "almost on a daily basis" during the month
before the crimes. According to Dr. Stratford, continued use
of LSD quickly gives rise to a tolerance which requires
larger and larger doses to produce significant effects.
Therefore, the defendant's repeated use of LSD would cause
significant doses to have little effect. Dr. Stratford
testified that defendant's testimony established the absence
of clinical symptoms indicating the drugs and alcohol signif-
icantly affected the defendant's mental state when he commit-
ted the crimes. In any event, Dr. Stratford's testimony that
his opinion would not change even assuming the truth of
lfunro's later testimony removes any force from the defen-
d.antl argument.
s In addition, the defendant argues, the
doctor's testimony included certain incriminating statements
made by defendant concerning the extent of time that the
"dissociative state" lasted. Dr. Stratford testified that he
discounted the affect of the "dissociative state" because the
defendant had told him it had. only lasted a few seconds.
This conclusion is fully consistent with the defendant ' s
prior testimony.
The defendant, during oral argument, maintained that
Rodney Munro's mental state at the time of the crime should
be a factor when determining the mental state of the
defendant. To say the least, this argument is wholly
inadequate. First of all, Rodney Munro and the defendant are
two different individuals. No evidence, not even the
defendant's testimony, indicated any similarity between the
mental state of Rodney Munro and the defendant. The only
factor the two had in common, was the fact that they both
allegedly ingested large quantities of drugs and alcohol.
Finally, greater weight will be given to the opinion of a
psychiatrist professionally qualified to evaluate such
individuals, rather than an individual intoxicated at the
time of the crime.
Finally, the defendant asserts that the court limited
Dr. Stratford's inquiry to the statutory mitigating circum-
stances of "extreme mental or emotional stress" and "substan-
tial impairment" of mental capacity, section 46-18-304(2),
MCA, thereby excluding consideration of non-statutory miti-
gating evidence of mental or emotional stress which was not
extreme or impairment which was not substantial. Defendant
cites to Eddings v. Oklahoma, supra, 455 U.S. 104, in which
the Supreme Court ruled, the inclusi-on of these words in the
statute regarding mitigating factors limited the doctor's
ultimate findings and operated as a denial of the defendant's
Eighth Amendment rights.
The State contends the defendant's reliance on Eddings,
supra, is misplaced. We agree. In Eddings, the Supreme
Court held that a state's death penalty statute must allow
the sentencer to consider nonstatutory mitigating
circumstances. No evidence suggests that the District Court
in the present matter was constrained to reject mitigating
factors not set forth in the statute. Accordingly, we find
that the trial court did not err denying the defendant
motion for a second psychiatric evaluation.
The defendant a.sserts as his next issue on appeal, that
his Sixth and Fourteenth Amendment rights, under the United
States Constitution, were violated when the District Court
issued its final order without holding a hearing at which the
defendant could be present to hear the ruling on his motion
to reconsider.
Section 46-18-102, MCA, states:
" (1) The judgment shall be rendered in
open court.
"(2) If the verdict or finding is not
guilty, judgment shall be rendered imme-
diately and the defendant shall be dis-
charged from custody or from the
obligation from his bail bond.
" (3) (a) If the verdict or finding is
guilty, sentence shall be pronounced and
judgment rendered within a reasonable
time .
"(b) When the sentence is pronounced, the
judge shall clearly state for the record
his reasons for imposing the sentence."
The defendant contends that he had a right to hear the
sentence imposed in open court pursuant to section 46-18-102,
MCA. He argues that his right to react immediately to the
sentence, through his own volition or through his attorney as
to any legal reason why the sentence should not be pro-
nounced, was denied. As authority for the principle involv-
ing defendant's right to be present extends to the sentencing
as well as the guilt portions of capital trial, defendant
relies upon Proffitt v. Wainwright (11th Cir. 1982), 685 F.2d
1227. We find Proffitt, supra, lacks direct application to
this case. The defendant in Proffitt was denied his right to
be present during the sentencing portion of the trial. Here,
the defendant was merely not present during the court's
judgment on the motion to reconsider. The record clearly
shows that the defendant appeared in person at the imposition
of the sentence and at all proceedings conducted on his
motion to reconsider. We do not agree that the District
Court's amended order was the functional equivalent of a new
sentence. "The defendant .is not required to be present at
proceedings occurring after the verdict, because such
proceedings are not part of the trial." State v. Higley
(Mont. 1980), 621 P.2d 1043, 37 St.Rep. 1942; State v. Peters
(1965), 146 Mont. 188, 405 P.2d 642. The same reasoning
applies here.
The defendant next argues that the sentencing court's
consideration of nonstatutory aggravating factors invalidates
the death sentence.
The presentence report included the following
information as to:
(1) why the defendant requested the death penalty;
(2) the defendant's temper;
(3) the defendant's previous drug and alcohol use;
(4) the defendant's propensity for violence;
(5) the defendant's motivations;
(6) the defendant's lack of remorse; and
(7) a statement that the defendant was an extreme
danger to society.
The defendant claims the above mentioned information
was set forth in the court's final judgment as aggravating
factors in imposing the death penalty. The defendant alleges
the admission and consideration of nonstatutory aggravating
circumstances violated Furman v. Georgia, supra, 408 U.S.
238.
The basic tenant of the Furman decision consists of an
attack against discretion and the resulting arbitrariness in
capital cases. The United States Supreme Court required the
states to follow strict statutory guidelines and procedures
when imposing capital sentences. The defendant cites to an
array of federal cases which require courts to adhere to
specific and detailed standards to guide the sentencer in
deciding whether to impose the death penalty. Proffitt v.
Wainwright, supra, 685 F.2d at 1267; Henry v. Wainwright (5th
Cir. 1981), 661 F.2d 56, vacated on other grounds, 457 U.S.
1114, 102 S.Ct. 2922, 73 L.Ed.2d 1326, (1982); Gregg v.
Georgia, supra, 428 U.S. 153.
The State submits the defendant misunderstands the
operation of Montana's death penalty statute. Section
46-18-302, MCA, explicitly allows the sentencing court to
admit "any matter the court considers relevant to the
sentence." The statutory aggravating circumstances, of
section 46-18-303, MCA, do not serve to limit the
admissibility of this evidence. Rather, its function is to
narrow the category of capital homicides. Once a statutory
aggravating circumstance is found, the defendant is placed in
the narrow category of persons who may be subject to the
death penalty. This is what the District Court precisely did
in its findings of fact and conclusions of law.
The District Court concluded that the defendant had
been convicted of aggravated kidnapping, two counts, and
deliberate homicide, also two counts, as a result of which
the District Court found and determined beyond a reasonable
doubt the existence of "aggravating circumstances" as set
forth in sections 46-18-303 (5) and 46-18-303 (7), MCA.
Aggravating circumstances are set forth in section 46-18-303,
MCA :
"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 convicted of another
deliberate homicide.
" ( 3 ) The offense was deliberate homicide
and was committed by means of torture.
" (4) The offense was deliberate h.omici.de
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 (1)(a) of 45-5-102, and the
victim was a peace officer killed while
performing his duty.
" (7) The offense was aggravating kidnap-
ping which resulted in the death of the
victim. "
Section 46-18-304, MCA requires the sentencing court to
conduct further inquiry into the question of whether there
are mitiga.ting cirurnstances sufficiently substantial to call
for leniency. We hold the statutes do not prevent the court
from considering the full range of evidence admitted under
section 46-18-302, MCA, and relying on evidence in
determining whether there are sufficient mitigating
circumstances to call for leniency. The District Court was
free to consider a wide range of evidence, including the
information submitted on the presentence report. Further-
more, we will not preclude the admissibility of evidence
unfavorable to the defendant. This is evidence that the
District Court has the right to be aware of and to consider
as a probative force when determining the sentence. This
precise statutory procedure complies with the United States
Supreme Court directive in Zant v. Stephens (19831, U.S.

The United States Supreme Court in California v. Ramos

makes clear that the Eighth Amendment requires a state to
channel and guide the discretion of the sentencer with objec-
tive standards for the imposition of the death penalty, hut
does not require a state in the process to limit the admissi-
bility of evidence unfavorable to the defendant to the evi-
dence which proves the statutory aggravating factors.
"Once the jury finds that the defendant
falls within -the legislatively defined
category of persons eligible for the
death penalty . . . the jury is free to
consider a myriad of factors to determine
whether death is the appropriate punish-
ment. In this sense, the jury's choice
between life and
C
death must be
individualized. Rut the Constitution
does not require the jury to ignore other
possible factors in the process of
selecting ... those defendants who will
actually be sentenced to death.'" 103
S.Ct. at 3456, quoting Zant v. Stephens,
103 S.Ct. at 2743.
Once the District Court found section 46-18-303, MCA,
aggravating factors present, the court was free to consider a
wide range of evidence including the presentence report. A
review of the record and the District Court's findings of
fact and conclusions of law reveal no procedural
shortcomings. We find no arbitrary or discriminatory
infliction of the death sentence.
The defendant's next challenge concerns the District
Court's imposition of the death penalty without jury partici-
pation in the process.
 The defendant alleges he was denied not only the right
to have a jury sentence him, but also the right to have a
jury decide the facts that made him eligible for a capital
sentence. The defendant's primary argument is that the laws
and practices of most states indicate a nearly unanimous
recognition that juries, not judges, are better equipped to
make capital sentencing decisions. The defendant urges this
Court to follow the legal premise observed in a treatise
entitled Trial b~ Jury - - Reform - Civil Procedure, 31
and the of
Harv. JJ.Rev. 669, 679, (1918). There, the author distin-
guishes between the province of the jury and that of the
judge. The author postulates that the "Law throws upon the
[the jury] the whole responsibility of ascertaining facts in
dispute, and the judge does not attempt to interfere with the
exercise of their unfettered discretion to this respect."
Finally, the defendant claims the aggravating factors a
judge finds in a Montana sentencing hearing are additional
facts determinative of whether the crime is a capital murder.
The defendant refers to an Oregon Supreme Court decision
where the intent of the accused was a fact a.t issue. The
court invalidated Oregon's capital punishment provision
stating:
"The death penalty statute, which author-
ized an enhanced penalty to be imposed
based upon determination by the court of
the existence of a requisite culpable
mental state, a mental state different
and greater than that found by the jury,
was unconstitutional far denying defen-
dant his right to trial by jury of all
the facts constituting the crime for
which he was in jeopardy." State v.
Quinn (Or. 1981), 623 P.2d 630.
We find the Oregon Supreme Court decision, State v.
Quinn, supra, lacks significant credence to the case at bar.
In the State of Oregon, the death penalty statute requires
the crime of deliberate first degree murder to be
established. The statute provides for a post-trial hearing
procedure to determine if the crime was committed with a
"greater culpable mental state." See ORS 163.115, ORS
163.1.16. The difference between the Oregon statute and
Montana statute is sufficiently substantial to render the
case inapplicable.
We hold the defendant's argument is foreclosed by the
A
recent United States Supreme Court decision 'spaziano v.
Florida (1984), U.S. , 104 S.Ct. 3154, L.Ed.2d
. The question presented in Spaziano was whether a. death
sentence could constitutionally be imposed by a trial judge
after a jury had reached an advisory verdict recommending
life imprisonment. The United States Supreme Court upheld
the sentence, holding that neither the Sixth Amendment right
to a jury trial nor the Eighth Amendment proscription of
cruel and unusual punishment required that a jury participate
in the sentencing process.
"In light of the facts that the Sixth
Amendment does not require jury sentenc-
ing, that the demands of fairness and
reliability in capital cases do not
require it, an.d that neither the nature
of, nor the purpose behind, the death
penalty requires jury sentencing, we
cannot conclude that placing responsibil-
ity on the trial judge to impose the
sentence in capital case is
unconstitutional." Spaziano v. Florida,
supra., 104 S.Ct. at 3165.
Defendant maintains only four states--Arizona, Nebraska,
Idaho and Montana--totally keep the jury from the sentencing
decision. The fact that a majority of jurisdictions have
adopted a different practice, however, does not establish
that Montana ' s capital sentencing procedure is
unconstitutionally sound. The Montana Supreme Court in State
v. Coleman, supra, 605 P.2d at 1017, found jury participation
in a capital sentencing case was not constitutionally
required. "Sentencing by the trial judge is certainly
required by Furman v. Georgia, supra. See Gregg v. Georgia,
supra, 428 U.S. at 188-135, 96 S.Ct. at 2932-29'35. What we
do not accept is that, because juries may sentence, they
constitutionally must do so. l1 Spaziano, supra, 104 S.Ct. at
3164.
The United States Supreme Court has carefully scruti-
nized the state's capital sentencing schemes to minimize the
risk that the penalty will be imposed in error or in an arbi-
trary and ca.pricious manner. From Furman v. Georgia, supra,
408 U.S. 238, where the United States Supreme Court struck
down the then existing capital sentencing statutes of Georgia
and Texas, to Gregg v. Georgia, supra, 428 U. S. 238, we hold
there certainly is nothing in the safeguards necessitated by
the court's recognition of the qualitative difference of the
death penalty from other penalties that requires that the
sentence be imposed by a jury. "There is no similar danger
involved in denying a defendant a jury trial on the sentenc-
ing issue of life or death. The sentencer, whether judge or
jury, has a constitutional obligation to evaluate the unique
circumstances of the individual defendant and the sentencerls
decision for life is final." Spaziano v. Florida, supra, 104
S.Ct. at 3162. This is exactly what the trial court has
done. The trial judge conducted an independent review of the
evidence and made his own findings regarding aggravating and
mitigating circumstances. The trial judge set forth in
writing the findings on which the sentence was based.
Accordingly, we reaffirm our prior holding tha.t jury
participation is not constitutionally required in capital
sentencing procedures.
Three additional issues were presented by the defendant
in the supplemental brief to the reply brief. All questions
on appeal should have been raised in the defendant's initial
brief. See Rule 23, Rules of Appellate Procedure. However,
by statute, we are required to review all issues presented.
Furthermore, because this appeal involves a capital sentence
we will examine the merits of the questions presented.
As the next issue on appeal the d-efendant submits that
the District Court imposed the death penalty under the influ-
ence of passion, prejudice, and mi.sstatements made by the
defendant. At the arraignment hearing held on February 24,
1983, the defendant indicated to the court his desire to
receive the death penalty. The defendant contends that he
actively attempted to persuade the court that he was an
individual deserving of the death penalty. The defendant
indicated to the court at the first sentencing hearing held
on March 21, 1983 that his mental state was untainted by the
use of drugs or alcohol at the time of the incident. He por-
trayed himself to the court as being an unfit candidate for
rehabilitation. He portrayed himself as a violent person,
who was likely to harm others in prison or elsewhere. He
portrayed himself as having little interest in obtaining
employment, being a. rebel to society, a dangerous and violent
person, and one who acted out of morbid fascination to kill
with no remorse for his actions.
However, on May 3, 1983, at the hearing for reconsider-
ation of the sentence, a substantially different defendant is
portrayed. The defendant testified to the extent of drugs
and alcohol use prior to the crime. The defendant testified
that he experienced a type of dissociative state at the time
he shot Mad Man and Running Rabbit. He indicated. a.
willingness to change his lifestyle, to rehabilitate himself,
and to take counseling for drug and alcohol. addiction. In
essence, the defendant argues the testimony he offered at the
first hearing, allegedly to convince the court to impose the
death penalty, testimony he later recanted, inflamed the
passion of the District Court Judge and induced him to impose
the dea.th penalty. The State contends this argument was
obviously conceived by the defendant as an afterthought. The
State points out that no motion was ever filed to disqualify
the District Court Judge because of the bias which he
allegedly harbored from seeing the defendant testify in favor
of his own execution.
We have reviewed the record of this case pursuant to
section 46-18-310, MCA, which provides that we shall deter-
mine "whether the sentence of death was imposed under the
influence of passion, prejudice, or any other arhitrary
factor ... " Section 46-18-310(1), MCA. We find there is
no indication that the District Court Judge imposed the death
penalty out of passion or prejudice. A review of his
sentencing order reveals the District Court's awareness of
defendant's "Dr. Jekel and Mr. Hyde" character:
"The defendant's stated preference as to
the appropriate sentence and punishment
is of no consequence. Just as his ini-
tial request of the death penalty be
imposed upon him was seen and treated by
the court in its original order as a
'curious element,' and nothing more, the
change of mind which he has undergone
since March 21, 1983, and his present
wish to be spared, are in themselves no
more than curious, if predictable subse-
quent developments. They are peripheral
and extraneous circumstances, and must
not be brought to bear upon the court's
determination of a just and necessary
punishment."
A review of the District Court's forty-three detailed

written findings and conclusions establish that the District
Court carefully and dispassionately considered the evidence
before it and properly concluded that the death penalty was
appropriate. We hold there is no indication that the
District Court imposed the death penalty ou'i of passion or
prejudice.
The defendant next argues that the evidence fails to
support the District Court's findings of aggravating and
mitigating circumstances in support of the death penalty.
The defendant does argue, both on appeal and in the
review briefs, that the court did not properly evaluate the
evidence of mitigating circumstances. The defendant urges
that: (1) his use of drugs and alcohol corroborated with his
testimony of a dissociative experience and (2) the letters
from supportive friends are factors sufficient to call for
leniency.
Defendant's contention has been considered extensively
in the foregoing text of this opinion. We find the defendant
fails to present additional argument or evidence which
warrants a finding of mitigating circumstance.
As to the final issue on appeal, the defendant argues
that his sentence is disproportionate and excessive to the
penalty imposed in similar cases. He also argues that the
sentence is disproportionate to that imposed on his
accompli.ce, Rodney Munro .
Rodney Munro was sentenced to a forty-year term of
imprisonment on each of two counts of aggravated kidnapping
to extend concurrently with an additional enhancement for the
use of a dangerous weapon of ten years to extend
consecutively. We hold the defendant's sentence of death for
aggravated kidnapping is not excessive or disproportionate
when compared to the sentences received by Rodney Munro.
Leniency in one case does not invalidate the death penalty in
others. Gregg, supra, 428 U.S. at 1 9 9 , 224-226; also State
v. Coleman, supra, 605 P.2d at 1040.
 Montana law requires the Montana Supreme Court to
conduct a comparative proportionality review of the death
sentence in this case. Section 46-18-310, MCA, provides:

"The supreme court shall consider the
punishment as well as any errors enumer-
ated by way of appeal. With regard to
the sentence, the court shall determine;

" (3) Whether the sentence of dea.th is
excessive or disproportionate to the
penalty imposed in similar cases, consid-
ering both the crime and the defendant.
The court shall include in its decision a
reference to those similar cases it took
into consideration."
The United States Supreme Court in Gregg, supra 428
U.S. at 206, has stated that the purpose of appellate review
in a capital sentencing system is to serve as "a check
against the random or arbitrary imposition of the death
penalty." It is clear from the decisions of Gregg, supra,
428 U.S. at 204-206; and Proffitt, supra, 428 U.S. at
258-259, that we need not examine every similar case whether
appealed or not, rather ~ 7 need only examine those cases
ze
where after conviction the death penalty could have been or
was imposed that has reached our attention through the
appellate process. We are obligated to define the scope of
our review when considering similar cases. We will thus
consider ca.ses where 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. Consequently,
we are limited in our comparison of cases to an examination
of: State v. McKenzie, (1976), 171, Mont. 278, 557 P.2d 1023,
vac. 433 U.S. 905, 97 S.Ct. 2968, 53 L.Ed.2d 1089, on remand
177 Mont. 280, 581 P.2d 1205, vac. 4 4 3 U.S. 903, 99 S.Ct.

3094, 61 L.Ed.2d 871, cert. denied, 443 U.S. 912, 99 S.Ct.
3103, 61 L.Ed.2d 877, on remand 608 P.2d 428, c e r t . denied,

449 U.S. 1050, 101 S.Ct. 626, 66 L.Ed.2d 507; State v.

Coleman, supra, 605 P.2d 1000; and State v. Fitzpatrick

( 1 9 7 9 ) , 186 Mont. 1 8 7 , 606 P.2d 1343, c e r t . d e n i e d , 449 U.S.

891, 1 0 1 S.Ct. 252, 66 L.Ed.2dI 118. T h e s e a r e t h e onl-y

c a s e s a r i s i n g i n Montana s i n c e 1973, t h e e f f e c t i v e d a t e t h a t

t h e d e a t h p e n a l t y c o u l d b e imposed f o r t h e c r i m e o f a g g r a v a t -

e d k i d n a p p i n g i n which t h e v i c t i m i s k i l l e d .

The defendant in McKenzie, supra, was charged with

d e l i b e r a t e homicide and aggravated kidnapping a s a r e s u l t of

t h e bludgeoning d e a t h o f Lana H a r d i n g . The D i s t r i c t C o u r t

imposed t h e d e a t h p e n a l t y f o r b o t h o f f e n s e s and t h i s C o u r t

affirmed following remand from the United States Supreme

Court. McKenzie, s u p r a , 581 P.2d 1205. The v i c t i m was found

d r a p e d o v e r a g r a i n d r i l l ; p a r t i a l l y nude; w i t h a r o p e t i e d

a r o u n d h e r n e c k ; and s e v e r e l y b e a t e n a b o u t t h e head and body.

Death had been c a u s e d by s e v e r e blows i n f l i c t e d by Duncan

McKenzie, t h e d e f e n d a n t .

I n Coleman, s u p r a , Dewey Coleman. was s e n t e n c e d t o d e a t h

f o l l o w i n g t h e j u r y ' s v e r d i c t o f g u i l t y o f t h e c r i m e o f aggra.-

vated kidnapping. The d e f e n d a n t r a p e d Peggy H a r s t a d , beat

her about the head w i t h a motorcycle helmet, attempted t o

s t r a n g l e h e r w i t h a n y l o n r o p e and f i n a l l y h e l d h e r i n t h e

Y e l l o w s t o n e R i v e r u n t i l s h e drowned.

The d e f e n d a n t i n F i t z p a t r i c k , supra, was convicted of

deliberate homicide, aggravated kidnapping and robbery and

was sentenced to death f o r t h e homicide and kidnapping o f

Monte Dyckman. The v i c t i m was found d e a d l y i n g on t h e p a s -

senger s e a t o f h i s c a r w i t h h i s hands t i e d behind h i s back.

Monte Dyckman had b e e n s h o t t w i c e w i t h a gun h e l d less t h a n

six-inches from h i s hea.d. The h o m i c i d e resulted from t h e

p e r p e t r a t i o n of t h e robbery.
 During oral argument, defense counsel urged this Court
to consider that this defendant was not similar to the defen-
dants in the other three capital cases. He argued that the
defendant's criminal history did not include violent crimes.
We disagree. The defendant had demonstrated his capacity for
violence. The record of this brutal crime indicates that the
defendant had committed automobile theft on the same day the
kidnapping and homicides of Mad Man and Running Rabbit oc-
curred. We will not give mitigating affect to the fact that
the defendant had avoided conviction for violent crimes in
the past. State v. Coleman, supra, 605 P.2d at 1019-20.
Following an extensive review of capital cases in
Montana, one 1947 decision, State v. Palen (1947), 1-19 Mont.
600, 178 P.2d 862, warrants examination.

In Palen, the defendant initially entered a plea of not
guilty. Thereafter, the defendant withdrew his plea of not

guilty and entered a plea of guilty. The district court held
a hearing to determine the degree of the crime and the pun-
ishment to be imposed. At the conclusion of the hearing, the
court found the crime to be murder in the first degree and
sentenced the defendant to death by hanging. The defendant
filed a motion to modify the judgment of conviction so as to
substitute life imprisonment for the death sentence. The
defendant's motion to modify the judgment was denied. The
defendant appealed to this Court. We remanded the case to
the district court for the purpose of hearing further evi-
dence on the issue of defendant's mental condition at the
time of the homicide produced by alleged intoxication. State
v. Palen (1947), 119 Mont. 600, 179 P.2d 862.
A hearing on the defendant's mental condition was held.
The trial court held that the capital sentence pronounced
originally should not be changed or modified. The defendant
again appealed to this Court. We upheld the trial court's
judgment and sentence. State v. Palen (1947), 120 Mont. 434,
186 P.2d 223. We recognize that in Palen, the defendant was
sentenced under section 94-2502 RCM, prior to the 1973
amendments regarding sentencing in capital cases.
Nevertheless, Palen is procedurally similar in that both
defendants initially plead not guilty, then withdrew their
pleas of not guilty and entered pleas of guilty and appealed
their sentence of death. Furthermore, in both cases the
defendant sought to establish intoxication as a mitigating
circumstance.
In light of the foregoing caselaw, we conclude that the
sentence of death for aggravated kidnapping and deliberate of
Thomas Running Rabbit, Jr. and Harvey Mad Man, Jr.was not
excessive or disproportionate to the penalty in similar
cases.
During oral argument defendant's counsel made much of
the fact that the defendant was a product of penal
institutions. The defendant's contention must be viewed as a
mechanism for mercy. As Dean G.H. Wigmore wrote, "mercy is
an act of compassion, not of reason; it defies reason in the
shape of the law. .. " We live in an age when the number of
crimes committed increases nearly every year. To many citi-
zens, the incidents and prevalence of violent crime is the
most serious issue facing our system. We are not oblivious
to the fact that this is truly a matter of life and death.
We also recognize that Robert Allen Smith was no half-drunk
pool player who got into a cut/scrape brawl on a Saturday
night in a bar. Harvey Mad Man, Jr. and Thomas Running
Rabbit, Jr. played a game of pool and drank beer with the
defendant hours before the killings. The two victims offered
the defendant and his companions a ride. Their friendly
gesture resulted in their death.
The trial court scrupulously adhered to the death
penalty statute and at every stage of the proceeding
protected the rights of the accused. The trial judge
conducted this hearing; weighed the evidence; passed on the
credibility of the witnesses and assumed the solemn burden of
imposing the sentence. In pronouncing judgment, the trial
court declared:
"The defendant and no others have the
means, the opportunity, and the will to
avoid all contact on its part with drugs
and alcohol. The defendant himself, and
no one else, had and might have exercised
control over his behavior and actions on
the day Harvey Man Man, Jr. and Thomas
Running Rabbit, Jr. lost their lives.
His choice to execute them was conscious,
calculated and deliberate. As such, the
court finds nothing in his motivation or
actions to mitigate or relieve the atroc-
ity and permanence of his crimes."
In summary, we have examined all the specifications of
error raised by defendant and find no reversible error. The
sentence of death is affirmed.

We concur: ,

Justices