NO. 87-251
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
DAVID THOMAS DAWSON,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Diane Barz, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Jeffrey Renz argued, Billings, Montana
Allen Beck, Billings, Montana
Gary Wilcox, Billings, Montana
For Respondent :
Hon. Mike Greely, Attorney General, Helena, Montana
Barbara Claassen argued, Asst. Atty. General, Helena
Harold Hanser, County Attorney, Billings, Montana
Dennis Paxinos, Deputy County Attorney, Billings
Submitted: June 13, 1988
Decided: August 23, 1988
Filed: ~ J G 2 3 19m-
-
Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
A jury in the District Court for Yellowstone County
convicted defendant Mr. Dawson of three counts of deliberate
homicide, four counts of aggravated kidnapping, and one count
of robbery. He was sentenced to death for each of the three
deliberate homicides and for each of the three aggravated
kidnappings which resulted in the death of the victim.
Defendant appeals his conviction and death sentences. We
affirm on all issues.
The issues are:
1. Was Detective Hatfield's entry into and search of
the defendant's motel room an unconstitutional search?
2. Did the District Court's reaction to the testimony
of the surviving victim prejudice the case?
3. Were the sexual paraphernalia and magazines improp-
erly admitted into evidence?
4. Did the prosecutor improperly comment upon the
defendant ' s silence?
5. Was the defendant denied a jury trial as to those
facts of the crime which are now denominated as aggravating
circumstances, and does the evidence support the court's
findings on those circumstances?
6. Did the trial court err by considering the defen-
dant's silence at trial in imposing the death penalty?
7. Did the sentencing judge improperly consider the
victim impact statement and characteristics of the victim?
8. Should a jury have participated in the sentencing
process?
9. Should the absence of a prior criminal history on
the part of the defendant be treated as sufficiently substan-
tial to warrant leniency?
10. Does § 46-18-305, MCA, v i o l a t e t h e E i g h t h Amendment?
11. Review o f t h e s e n t e n c e u n d e r S 46-18-310, MCA.
The f o u r members o f t h e R o d s t e i n f a m i l y were s t a y i n g a t
the Airport Metra Inn in Billings, Montana, preceding a
f a m i l y move from B i l l i n g s t o A t l a n t a , G e o r g i a . The d e f e n d a n t
c h e c k e d i n t o t h e room n e x t t o t h e i r s a t a p p r o x i m a t e l y 4:45
a.m. on Friday, April 18, 1986. A t a b o u t 5:00 a.m., the
t e e n a g e d a u g h t e r o f t h e R o d s t e i n s , Amy, went o u t s i d e t o l o a d
the family car. The d e f e n d a n t , c a r r y i n g a d u f f e l b a g from
which a gun p r o t r u d e d , f o l l o w e d h e r b a c k t o h e r room. He
t h e n t o o k a l l members o f t h e f a m i l y t o h i s own room, where h e
bound and gagged a l l o f them b u t Amy. H e directed her to
h e l p him move t h e f a m i l y ' s b e l o n g i n g s i n t o h i s room. Then h e
bound and gagged Amy and went t h r o u g h t h e f a m i l y ' s b e l o n g -
i n g s , t a k i n g o u t c r e d i t c a r d s , c a s h , and j e w e l r y .
The defendant injected Mr. and M r s . Rodstein with an
unknown substance which he said would make them sleep.
Sometime shortly thereafter, they were strangled t o death
with a telephone cord. The b o d i e s were p l a c e d u n d e r t h e s i n k
in the rear of t h e m o t e l room and w e r e c o v e r e d by a bed-
spread. Amy, who l a y bound and gagged on t h e f l o o r i n a n o t h -
e r p a r t o f t h e room, d i d n o t s e e h e r p a r e n t s b e i n g s t r a n g l e d
o r t h e i r b o d i e s b e i n g moved.
Later that day, the defendant gave the 11-year old
R o d s t e i n boy, Andrew, a l i q u i d t o d r i n k which c a u s e d him t o
sleep. Andrew was s t r a n g l e d t o d e a t h and h i s body was p l a c e d
with those of h i s parents. Again, Amy d i d n o t s e e t h e murder
o r her brother's body b e i n g moved. The d e f e n d a n t had Amy
h e l p him move t h e R o d s t e i n s ' v e h i c l e s from t h e m o t e l p a r k i n g
l o t t o an a r e a behind a nearby gas s t a t i o n . The d e f e n d a n t
a l s o g a v e Amy a l i q u i d t o d r i n k , b u t w h i l e h e was n o t l o o k i n g
s h e dumped it on t h e b e d s p r e a d and c o v e r e d t h e w e t a r e a w i t h
a pillow.
During the day on Saturday, the defendant and Amy left
the motel room several times. During these trips, the defen-
dant made several phone calls, went to the bank, went to a
fast food store, and stopped at his own apartment and a
friend's house. Amy did not attempt to get away because she
believed her family was still alive and that an escape at-
tempt might jeopardize their lives.
On Saturday evening, Billings police conducted an inves-
tigation at the motel after receiving reports that the
Rodsteins were missing. The investigation is described more
fully under Issue I. Briefly, after the defendant had come
out into the parking lot and talked with the police several
times, Detective Hatfield went to the defendant's motel room
door and asked permission to look through his room. When the
defendant changed his position and opened the door slightly,
Detective Hatfield entered the room and noticed the bed-
spreads in the back of the room. The defendant said, "Amy,
they're here to help you," or words to that effect. Detec-
tive Hatfield found the bodies of the Rodsteins and summoned
other officers for assistance. Detective Hatfield found Amy
in the bathroom where the defendant had. instructed her to
stay after he observed the police outside.
An autopsy revealed that Mr. Rodstein died of asphyxia-
tion. He had been strangled with "a great deal of force."
He also had several bruises on his scalp. Although needle
marks were present in his arms, the substance with which he
had been injected could not be identified. Mrs. Rodstein had
also died of asphyxiation. Her blouse, brassiere, and jeans
had been opened prior to her death, but no evidence of sexual
assault was found. She, too, had bruises on her head and
needle marks on her arm. Andrew had also died of asphyxia-
tion by strangulation. On his chest were a number of bruises
"as if the skin were pinched very hard, very firmly, either
by a finger or perhaps some object, some instrument."
The defendant did not testify at trial, but he had made
prior statements to other trial witnesses about a third party
being involved. His defense at trial was that a third person
committed the homicides or compelled him to commit the homi-
cides. The jury found the defendant guilty on all counts
charged.
I
Was Detective Hatfield's entry into and search of the
defendant's motel room an unconstitutional search?
The factual circumstances surrounding Detective
Hatfield's entry into the motel room are critical to the
resolution of this issue. Therefore, we set out the facts in
detail.
When the officers from the Billings police department
arrived at the Airport Metra Inn shortly before 11 p.m., they
knew that the Rodstein family had been missing for over 24
hours and that the family's two cars had been seen near the
motel. The officers parked near the Rodstein vehicles. A
neighbor of the Rodsteins who had followed the officers to
the motel confirmed that the vehicles belonged to the
Rodsteins.
Detective Hatfield learned from the motel clerk that the
Rodsteins had been assigned Room 149 for Wednesday and Thurs-
day nights. The room had since been assigned to a person
from Bozeman. The clerk also told the detective that a
person named John Monroe had been in Room 151 for a couple of
days, and that John Monroe was driving a black Volkswagon
bug.
When Detective Hatfield returned to the Rodsteins' cars,
another detective told him he had seen a man come out of Room
151 three times while Detective Hatfield was in the motel
office. The individual was then outside, and Detective
Hatfield approached and asked i f h e was John Monroe. The
defendant said that he was John Monroe, and Detective
H a t f i e l d i d e n t i f i e d himself a s a B i l l i n g s p o l i c e o f f i c e r . He
t o l d t h e d e f e n d a n t t h a t t h e y were l o o k i n g f o r t h e owners of
the Rodsteins ' cars. The defendant stated that he knew
n o t h i n g a b o u t t h e c a r s o r t h e i r owners. Detective Hatfield
t e s t i f i e d t h a t t h e d e f e n d a n t d i d n o t a p p e a r t o be under t h e
i n f l u e n c e of d r u g s .
The p o l i c e o f f i c e r s proceeded t o s e a r c h t h e R o d s t e i n s '
cars. The d e f e n d a n t t h e n approached D e t e c t i v e H a t f i e l d and
s a i d h e had h e l p e d a female between t h e a g e s o f 1 2 and 2 9
s t a r t one o f t h e c a r s one n i g h t . He a l s o t o l d them t h a t
someone had been "messing around" w i t h t h e c a r s i n t h e park-
i n g l o t one n i g h t . Then h e r e t u r n e d t o h i s room.
The o f f i c e r s proceeded t o go t h r o u g h Room 1 4 9 and a l l -
t h e unoccupied rooms on t h a t s i d e o f t h e m o t e l . One o f t h e
officers went t o Room 1 5 1 , knocked on t h e d o o r , and spoke
w i t h t h e d e f e n d a n t j u s t o u t s i d e t h e room. A t t h a t time, the
d e f e n d a n t gave t h e o f f i c e r h i s r e a l name and s t a t e d t h a t he
had registered under a false name because he was with a
m a r r i e d woman. He a l s o s a i d t h a t h e had n o t i c e d t h a t t h e
Rodsteins' c a r s had been moved w h i l e h e was s t a y i n g a t t h e
motel.
A f t e r c h e c k i n g t h e unoccupied rooms, t h e o f f i c e r s d e c i d -
e d t h e y o u g h t t o check Room 151 b e c a u s e t h e y were becoming
suspicious of t h e defendant. D e t e c t i v e H a t f i e l d knocked on
t h e door of Room 151 and t h e d e f e n d a n t opened i t , d r e s s e d
o n l y i n a yellow t o w e l . D e t e c t i v e H a t f i e l d s t a t e d t h a t he
would l i k e t o check t h e room. Defendant asked why and t h e
d e t e c t i v e r e p l i e d t h a t t h e y were l o o k i n g f o r a n y t h i n g which
might h e l p them l o c a t e t h e R o d s t e i n s . A t t h i s time, Detec-
tive Hatfield was standing just outside Room 151 and the
d e f e n d a n t was s t a n d i n g i n t h e doorway, with t h e door a j a r .
D e t e c t i v e H a t f i e l d t e s t i f i e d t h a t t h e room was dimly lit; t h e
o n l y l i g h t may have been t h a t g i v e n o f f by t h e t e l e v i s i o n .
The d e t e c t i v e asked i f t h e d e f e n d a n t ' s g i r l f r i e n d was i n t h e
room and t h e d e f e n d a n t s a i d , "No." Detective Hatfield t e s t i -
f i e d t h a t a t t h a t p o i n t t h e d e f e n d a n t " s t e p p e d back away from
the door pulling the door with him." Detective Hatfield
s t e p p e d i n t o t h e room. He t e s t i f i e d t h a t it was h i s impres-
sion t h a t t h e defendant had by h i s actions i n v i t e d him t o
step inside.
A t that point, Detective Hatfield noticed that the
b e d s p r e a d s from t h e beds were p i l e d i n t h e r e a r of t h e room.
Defendant stated, "The bedspreads are in the back of the
room." D e t e c t i v e H a t f i e l d t e s t i f i e d t h a t he s a i d , " Y e s , " and
asked why, a t which p o i n t t h e d e f e n d a n t s a i d , "Amy, t h e y a r e
h e r e t o h e l p you. You a r e going t o be o k a y , " o r words t o
that effect. D e t e c t i v e H a t f i e l d knew t h a t A y was t h e name
m
of t h e missing g i r l . D e t e c t i v e H a t f i e l d t e s t i f i e d t h a t he
looked a t t h e d e f e n d a n t f o r a moment and t h e d e f e n d a n t s a i d ,
"She i s i n t h e bathroom."
D e t e c t i v e H a t f i e l d d i r e c t e d t h e d e f e n d a n t t o s t a y where
he was and went t o t h e r e a r of t h e m o t e l room. He saw bound
l e g s p r o t r u d i n g from under t h e b e d s p r e a d s , went back t o t h e
f r o n t of t h e room, and s i g n a l e d t h e o t h e r o f f i c e r s t o come
in. Detective Hatfield then returned to t h e back of the
room, a s c e r t a i n e d t h a t M r . and M r s . R o d s t e i n and Andrew were
d e a d , opened t h e bathroom d o o r , and found Amy, who was p h y s i -
c a l l y unharmed.
I n o r d e r t o overcome t h e presumption a g a i n s t w a i v e r of
t h e c o n s t i t u t i o n a l r i g h t p r o h i b i t i n g w a r r a n t l e s s s e a r c h e s and
seizures, the S t a t e must show t h a t t h e defendant gave un-
equivocal, specific consent to entry, uncontaminated by
duress o r coercion. S t a t e v . Brough ( 1 9 7 6 ) , 171 Mont. 182,
185, 556 P.2d 1239, 1241. "The question of voluntariness
largely depends upon the facts of each case, no single fact
being dispositive . . . The determination of voluntariness,
rather, depends upon the 'totality of the circumstances'.
. . [Tlhe issue of voluntariness is a factual one addressed
to the discretion of the trial court." [Citations omitted.!
State v. Allies (1979), 186 Mont. 99, 111, 606 P.2d 1043,
1049-50, appeal after remand, 621 P.2d 1080.
Defendant argues that Detective Hatfield's entry into
the motel room was not justified by his consent. He cites
State v. LaFlamme (1976), 170 Mont. 202, 551 P.2d 1011, in
support of his argument. In that case, this Court stated,
[Ilt is clear that in the absence of a positive
verbal assent to the search, equivocal conduct
alone is insufficient as a basis for an inference
of consent to search, which is a waiver of a con-
stitutional right.
LaFlamme, 551 P.2d at 1013. The defendant there was suspect-
ed of shooting at and damaging a weigh station near Broadus.
Two police officers approached the defendant and asked if a
ballistics examination could be made of his weapon. Defen-
dant agreed, and looked for the gun but did not find it. The
officers suggested that the defendant look in his pickup
truck, which he did. After a brief search, the defendant
stated, "Well, I guess it's not here." The sheriff said,
"How about behind the seat?" Defendant responded, "F7el1, I
don't think so." The sheriff tipped the seat ahead and
uncovered the gun. This Court affirmed the lower court's
conclusion that clear and unequivocal consent to the search
was not present, even though the sheriff believed from the
circumstances that the defendant had consented to the search.
After considering the totality of the circumstances in
the present case, the District Court concluded that the
defendant's conduct in admitting Detective Hatfield to the
motel room was unequivocal. Defendant had been more than
willing to talk with the police officers during their inves-
tigation at the motel. He not only stepped back from the
door after stating that his girlfriend was not there, but
also opened it wider. He did not object by actions or words
to Detective Hatfield entering the room for the few moments
they stood inside the door talking. The facts of this case
support the conclusion that he voluntarily and unequivocally
consented to Detective Hatfield's stepping across the
threshhold of his motel room. We hold that the District
Court's ruling on this issue was not an abuse of discretion.
Following oral argument and submission of this case to
the Court, defense counsel called the Court's attention to a
recent Ninth Circuit case, United States v. Winsor (9th Cir.
1988), 846 F.2d 1569. That case involved a visual search of
a hotel room after police demanded that the door be opened.
Because Detective Hatfield's initial entry into the motel
room was consentual, and in the absence of any demand for
entry, Winsor is not applicable as to the initial entry.
Further, where exigent circumstances exist, a warrant-
less search and seizure may be reasonable. Warden v. Hayden
(1967), 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782; State v.
Dess (1982), 201 Mont. 456, 655 P.2d 149. h he ~ o u r t h mend-
ment does not require police officers to delay in the course
of an investigation if to do so would gravely endanger their
lives or the lives of others." Warden, 387 U.S. at 298-99.
Although the United States Supreme Court has not applied an
exigent circumstances rationale to a situation directly
comparable to the one here, the Ninth Circuit has formulated
a rule which we will apply:
When police officers, acting on probable cause and
in good faith, reasonably believe from the totality
of circumstances that (a) evidence or contraband
will imminently be destroyed or (b) the nature of
the crime or character of the suspect(s) pose a
risk of danger to the arresting officers or third
persons, exigent circumstances justify a warrant-
less entry, search or seizure of the premises.
United States v. Kunkler (9th Cir. 1982), 679 F.2d 187,
191-92.
We hold that following the defendant's statements to the
effect that, "Amy, they are here to help you," and, "She's in
the bathroom," the exigent circumstances justified Detective
Hatfield's limited search of the motel room. It was probable
that the Rodsteins were somewhere in the vicinity of the
Airport Metra Inn, where their vehicles were found. In the
opinion of Detective Hatfield, an experienced police officer,
the defendant had acted in an odd or suspicious manner in-
cluding his several approaches to the investigating officers,
his inconsistent statements about what he knew about the
Rodsteins, and his use and then abandonment of a false name.
Finally, the officers knew that the defendant had been in the
room adjoining the Rodsteins' room for several days. When
the defendant called to someone, using the name Detective
Hatfield knew was that of the missing girl, and then told the
officer, "She is in the bathroom," we conclude that Detective
Hatfield had probable cause to search the room for the miss-
ing family.
Further, the police were faced with the probability that
serious misfortune had befallen the Rodsteins, who, according
to their friends and family, uncharacteristically had been
missing for over 24 hours. We conclude that Detective
Hatfield, acting on probable cause and in good faith, reason-
ably believed from the totality of the circumstances that
there was a risk of danger to the Rodsteins justifying a
search of the defendant's motel room. We hold that the
exigent circumstances justified Detective Hatfield's warrant-
less limited search of the room, during which he found Amy
and the bodies of her family. Before a complete search was
done of the room, a search warrant was obtained.
In sum, we hold that there was no violation of the
defendant's right to be free from unreasonable searches and
seizures. Defendant consented to the initial entry, and then
exigent circumstances justified a limited search without a
warrant.
I1
Did the District Court's reaction to the testimony of
the surviving victim prejudice the case?
Amy Rodstein was the State's principal witness at this
trial. Because testifying was very difficult for her, the
parties agreed that she would be questioned by her own attor-
ney, not by the attorneys representing the State and the
defendant. Amy's therapist sat with her as she testified,
and recesses were called whenever Amy's counsel felt that
they were needed.
At the conclusion of Amy Rodstein's testimony, she and
other persons in the courtroom were in tears or nearly so.
The court ordered a recess, in a voice which "cracked or
wavered." The defense argues that the court's facial expres-
sion and demeanor also conveyed strong emotion. The next
morning, the defendant moved for a mistrial because of the
possible effect of the court's actions and demeanor upon the
jury. The court denied the motion.
Defendant, as do all criminal defendants, had a consti-
tutional right to trial by an impartial jury. Mont. Const.,
Art. 11, Secs. 24 and 26; U.S.Const. amend. VI. To avoid
prejudice to the defendant, the judge in a criminal trial
should avoid making remarks which are calculated in any way
to influence the minds of the jury. State v. Fuller (1906),
34 Mont. 12, 26, 85 P. 369, 374. However, "it is not every
remark so made that may be alleged as ground of error."
Fuller, 85 P. at 374. To reverse a lower court's ruling on a
motion for mistrial, this Court must be presented with evi-
dence that is clear, convincing, and practically free from
doubt that the trial court's ruling was erroneous. Schmoyer
v. Bourdeau (1966), 148 Mont. 340, 343, 420 P.2d 316, 317-18.
The transcript does not convey any potential prejudice
by the court. The defense's argument hinges on the tone of
voice and emotional content in which the order for a recess
was delivered. Defendant relies upon the county attorney's
statement at the mistrial motion to support his claim. The
county attorney stated that at most the court's conduct went
to the weight of the evidence. That, of course, is only the
county attorney's off-the-cuff remark. The lower court heard
the arguments of both sides on this issue, and, especially in
this case, was in a much better position than are we to judge
whether the jury might have been prejudiced. We cannot
conclude that the court's ruling denying a mistrial was
clearly erroneous. We hold that the denial of a mistrial was
not error.
Were the sexual paraphernalia and magazines improperly
admitted into evidence?
The State introduced into evidence at trial six porno-
graphic magazines and two plastic artificial penises or
dildoes found in Room 151. Two of the magazines were found
tucked between drawers of a dresser in the room. The other
materials were in the duffel bag which the defendant carried
when he first approached Amy Rodstein. The defense's motion
- limine prior to trial to exclude all of these items was
in
denied. The court reasoned that although no sexual crime had
been charged, the State was not prohibited from pursuing a
sexual motive theory at trial. The defense objected at trial
to the admission of the two magazines found between the
drawers on the basis that they were irrelevant, or, if rele-
vant, that their relevance was outweighed by their prejudi-
cial effect. That motion was also denied. The defense
argues that no sexual crime was charged and no sexual motive
theory was presented.
Absent abuse of discretion, this Court will uphold a
district court's weighing of the potential prejudice of a
piece of evidence against its probative value. State v.
Austad (1982), 197 Mont. 70, 83, 641 P.2d 1373, 1380. We
note in considering the relevance of the above materials that
there seems to be no rational and obvious plan or purpose for
these murders. A theory of a planned sexual motive, while
not proven to be fulfilled, is consistent with several facts:
the defendant's initial approach to Amy when she was alone,
his treatment of her which was different from his treatment
of the other family members, and the unfastened state of Mrs.
Rodstein's clothing. These facts were brought out by the
prosecution at trial. It was not necessary that the State
draw the final conclusion for the jury that there may have
been a sexual motive behind these crimes. The District Court
ruled that these pieces of evidence were admissible to show
motive, and we find no abuse of discretion in that ruling.
The District Court also ruled that these materials were
admissible into evidence as part of the corpus delicti. The
State is entitled to present matters closely related to the
charged offense and explanatory of it as part of the corpus
delicti. State v. Gillham (19831, 206 Mont. 169, 179, 670
P.2d 544, 549. We conclude that there was no abuse of dis-
cretion in the District Court's conclusion that the magazines
and sexual paraphernalia were admissible as part of the
corpus delicti of the crimes with which the defendant was
charged. We hold that admission of the sexual paraphernalia
and. pornography was not error.
IV
Did the prosecutor improperly comment upon the defen-
dant's silence?
The Fifth Amendment to the United States Constitution
guarantees criminal defendants a privilege against compulsory
self-incrimination. Art. 11, Sec. 25 of Montana's Constitu-
tion guarantees the same right. Prosecutorial comments deny
the accused this privilege when the language used is mani-
festly intended or is of such character that the jury would
naturally and necessarily take it as a comment on the failure
of the accused to testify. State v. Anderson (1970), 156
Mont. 122, 125, 476 P.2d 780, 782.
In United States v. Robinson (U.S. Feb. 24, 1988), No.
86-937, the defendant was charged with mail fraud involving
arson-related insurance claims. The defense at trial, at
which the defendant did not testify, was that the government
had breached its "duty to be fair" by denying the defendant
the opportunity to explain his actions. In the State's
closing argument, the prosecuting attorney told the jury that
the defendant "could have taken the stand and explained it to
you." The Court held that the defendant's privilege against
self-incrimination was not violated bv this comment upon his
failure to testify. Where the State's reference to the
defendant's silence is a fair response to a claim made by the
defendant or his counsel, there is no violation of the privi-
lege against self-incrimination. Robinson, slip op. at 7.
In the present case, a witness for the defense testi-
fied at trial that some of the defendant's acquaintances were
conducting a drug deal at the Airport Metra Inn on the date
the Rodsteins were kidnapped. He further testified that he
heard one of these acquaintances say that the defendant had
taken some hostages at a motel, and the other one told him to
make the defendant "correct it," if necessary.
The State's attorney asked a police officer who testi-
fied at trial if "you [have] ever been able to get a state-
ment from the Defendant." The defense objected to the
question, and it was withdrawn. The officer did not answer
the question. Since no answer was given, we conclude that
this question about the defendant's silence was harmless.
In its closing argument, the State's attorney referred
to the defendant's statement to one of the officers that,
"You should have seen what he [the third personl did to that
kid." The attorney then said, "Where is this guy [referring
to the third personl located at in Room 151? He [the defen-
dant] doesn't tell [the two officers] anything." This refer-
ence was clearly in response to the defense presented at
trial. We conclude that this reference to the defendant's
silence was admissible under Robinson.
v
Was the defendant denied a jury trial as to those facts
of the crime which are now denominated as aggravating circum-
stances, and does the evidence support the court's findings
on these circumstances?
The defense discusses the right of a defendant at the
common law to have a jury determine whether the crimes
charged were committed with express malice. It argues that
the aggravating circumstances with which the court justified
the death penalties under 55 46-18-302 to 305, MCA, are
equivalent to a finding of malice. It argues that because of
this historical situation, the defendant is entitled to have
a jury determine the facts constituting the aggravating
circumstances.
Regardless of the historical argument, the aggravating
circumstances found against the defendant are related to
sentencing only, and are not elements of the crimes charged.
Jury participation is not constitutionally required in capi-
tal sentencing proceedings. State v. Smith (Mont. 1985), 705
P.2d 1087, 1106, 42 St.Rep. 463, 487, cert. denied, 474 U.S.
1073. We conclude that the defendant was not entitled to a
jury determination of whether the aggravating circumstances
were present in this case.
The defense also argues that the evidence does not
support the court's finding that the homicides were committed
by means of torture. See § 46-18-303(3), MCA: "The offense
was deliberate homicide and was committed by means of tor-
ture." The defense argues that if the victims were uncon-
scious when they were killed, they were not killed by means
of torture. It also argues that the defendant's acts before
the victims were rendered unconscious did not kill them, so
that it cannot be said that they were killed by means of
torture.
The Rodsteins were bound and gagged tightly enough that,
according to the medical testimony, they would have died of
suffocation if they hadn't been strangled. They were forced
to see their family members similarly bound and gagged and
their teenage daughter and sister taken by the defendant out
of the room where they were captive. They then were force-
fully injected or witnessed the injection of their family
members with unknown drugs. Mr. Rodstein was strangled with
sufficient force to break his voicebox. Mrs. Rodstein was
hogtied, with her legs bent up behind her. Andrew Rodstein
was subjected to the peculiar injuries to his chest. We hold
that there is substantial evidence to support the District
Court's finding that the R.odsteins were killed by means of
torture.
Next, the defense argues that the trial judge improperly
applied S 46-18-303 (4), MCA: "The offense was deliberate
homicide and was committed by a person lying in wait or
ambush." The defense asserts that several elements required
under the common law antecedent of this statute are missing:
secret waiting, watching from concealment, and presence of
the murder weapon during the waiting and watching.
When the defendant approached Amy Rodstein in the park-
ing lot, he had already laid out tape and gags on a bed in
his room. He approached her carrying a duffel bag from which
the muzzle of a gun protruded. We conclude that it is imrna-
terial whether the actual murder weapon, the telephone cord
with which the victims were strangled, was the defendant's or
the Rodsteins'. Defendant had laid out the tape and gags and
had with him syringes, drugs, and the unloaded gun. We
conclude that there is substantial evidence to support the
District Court's finding that the deliberate homicides were
committed by a person lying in wait or ambush.
VI
Did the trial court err by considering the defendant's
silence at trial in imposing the death penalty?
The court's findings in its sentencing order included
the following:
The Court has had the opportunity to observe
the Defendant during the entire trial and through-
out all proceedings. His conduct in all proceed-
ings has been appropriate. Scarcely a word has
been spoken in the Court's presence. The complete
lack of emotion and cool detachment in his demeanor
has been noted throughout. As Dr. Van Hassel
testified, lack of an emotional response can be a
coping mechanism of denial, or a personality that
shows no overt emotion normally or, finally, that
the person truly is not concerned. Whatever the
reason, the Defendant has demonstrated no remorse
or genuine concern or respect for human life to the
time of sentencing.
The defense argues that this finding constitutes improper
consideration of the defendant's constitutional right to
remain silent. It argues that the case should be remanded
for resentencing without consideration of this factor, be-
cause the defendant would have to give up his right to remain
silent in order to show remorse.
The scope of matters which a court may consider in
sentencing goes beyond matters admissible in a criminal
trial. Section 46-18-302, MCA. The above finding could
express absence of a mitigating factor. In any event, w e
conclude that the presence of this finding is not significant
because of the presence of several other findings warranting
imposition of the death penalty.
VI I
Did the sentencing judge improperly consider the victim
impact statement and characteristics of the victim?
The presentence investigation report given to the judge
prior to sentencing contained a three-paragraph "victim's
impact statement" which stated that three of the four members
of the Rodsteins' immediate family are deceased as a result
of this crime. It also stated that Amy was undergoing psy-
chological counseling and gave the cost of that counseling.
Further it stated that Amy's performance at the time the
report was written had been described by her therapist as
"not doing so well."
The defense argues that under Booth v. Maryland (1987),
,
482 U.S. - 107 S.Ct. 2529, 96 L.Ed.2d 440, the District
Court's receipt and consideration of evidence of the effect
of the crime upon the Rodsteins, and upon Amy Rodstein in
particular, violates the Eighth Amendment. It asserts that
resentencing is required because of this error.
As was true in State v. Keith (Mont. 1988), 754 P.2d
474, 487-88, 45 St.Rep. 556, 573-75, the situation in this
case differs from that in Booth in several particulars.
Sentencing in this case was by the court, not by jury as in
Booth. The victim impact statement here consisted of three
paragraphs. In Booth the victim impact statement was a
lengthy and poignant collection of statements by the victims'
surviving family. We conclude as we did in - Keith that Booth
-
is not controlling because of important factual distinctions.
We hold that the sentencing judge properly considered the
victim impact statement and the characteristics of the
victims.
VIII
Should a jury have participated in the sentencing
process?
The defense concedes that both this Court and the United
States Supreme Court have ruled that death penalty sentencing
need not be done by a jury to be constitutionally sound.
State v. Smith (Mont. 19851, 705 P.2d 1087, 1105-06, 42
St.Rep. 463, 486-87, cert. denied, 474 U.S. 1073; Proffitt v.
Florida (1976), 428 U.S. 242, 252, 96 S.Ct. 2960, 2966, 49
L.Ed.2d 913, 922-23. It argues perfunctorily that since the
Montana Legislature meets only in alternate years, jury
participation in death penalty sentencing is important so
that current community sentiment is expressed.
We decline the defense's invitation to overrule Smith
and distinguish Proffitt. We again hold that a jury need not
be the sentencing body where the death penalty is imposed.
Should the absence of a prior criminal history on the
part of the defendant be treated as sufficiently substantial
to warrant leniency?
In its sentencing order, the court found that one
statutory mitigating circumstance under § 46-18-304, MCA, was
present: the defendant had no significant history of prior
criminal activity. Section 46-18-304 (I), MCA. The defense
argues that the presence of this mitigating factor is suffi-
cient to warrant leniency.
We have previously rejected the proposition set forth by
the defense. State v. Smith (Mont. 1985), 705 P.2d 1087,
1097, 42 St.Rep. 463, 476, cert. denied, 474 U.S. 1073; State
v. Coleman (1979), 185 Mont. 299, 331-32, 605 P.2d 1000,
1019-20, cert. denied, 446 U.S. 970. Here we again conclude
that it was not error for the District Court to refuse le-
niency when the nature of the crimes of which the defendant
has been convicted is weighed against his lack of a signifi-
cant prior criminal history.
Does S 46-18-305, MCA, violate the Eighth Amendment?
The defense argues that § 46-18-305, MCA, allows the
imposition of cruel and unusual punishment because it does
not sufficiently narrow the class of death-eligible defen-
dants. That statute provides:
Effect of aggravating and mitigating circum-
stances. In determining whether to impose a sen-
tence of death or imprisonment, the court shall
take into account the aggravating and mitigating
circumstances enumerated in 46-18-303 and 46-18-304
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. If
the court does not impose a sentence of death and
one of the aggravating circumstances listed in
46-18-303 exists, the court may impose a sentence
of imprisonment for life or for any term authorized
by the statute defining the offense.
The defense acknowledges that its argument has previously
been rejected by this Court. See State v. ~ c ~ e n z i(1980),
e
186 Mont. 481, 514-19, 608 P.2d 428, 448-51, cert. denied,
474 U.S. 1073. We affirm our holding from Mc~enzie.
XI
Review of the sentence under S 46-18-310, MCA.
Under S 46-18-310, MCA, this Court, in reviewing a death
sentence, must determine 1) whether the sentence was imposed
under the influence of passion, prejudice, or any other
arbitrary factor; 2) whether the evidence supports the
judge's findings on any mitigating and aggravating circum-
stances; and 3) whether the sentence is excessive or dispro-
portionate to the penalty imposed in similar cases,
considering both the crime and the defendant.
As to the first determination, the defense has not
argued that the sentence was imposed under the influence of
passion, prejudice, or any other arbitrary factor. Issue VII
does discuss and rule upon a related issue with regard to the
victim impact statement. We have reviewed the record and
conclude that there is no indication in that record that the
sentence was imposed under the influence of passion, preju-
dice, or any other arbitrary factor.
The second determination requires this Court to consider
whether the evidence supports the judge's findings of the
existence of aggravating and mitigating circumstances as
enumerated in the statute. We have made a determination on
two of the aggravating circumstances under Issue V. The
other two aggravating circumstances found by the District
Court are that the offenses were deliberate homicides commit-
ted as part of a plan or scheme whereby more than one person
would die, and that the offenses were aggravated kidnappings
resulting in the deaths of the victims. Sections
46-18-303 (5) and (7), MCA. Clearly, the evidence supports
both of those findings.
Last we are to determine whether the sentence is exces-
sive or disproportionate to the penalty imposed in similar
cases, considering both the crimes and the defendants. No
argument has been made on this issue by the defendant.
However, in accordance with our statutory duty, we have
considered the five Montana death penalty cases since 1973.
The facts of these cases are discussed in Keith, 754 P.2d at
480-81.
The crimes in this case extended over a number of hours,
including the kidnapping of the four persons, the binding and
gagging of the persons, the injection of substances into Mr.
and Mrs. Rodstein, the subsequent strangulation of Mr. and
Mrs. Rodstein with the telephone cord, the giving of a liquid
to 11-year old Andrew Rodstein in order to make him sleep,
and the strangling of Andrew. The defendant gave Amy a
similar liquid to drink but because she poured it out when
the defendant was not looking she may have been protected
from her own deliberate homicide. As previously discussed,
the deliberate homicides were committed by means of torture
and by the defendant lying in wait or ambush. As discussed
above, the aggravating circumstances also include that the
offenses were deliberate homicides committed as a part of a
scheme or operation which resulted in the deaths of three
persons, including the 11-year old, and that the offenses of
aggravated kidnapping resulted in the deaths of the victims.
We have considered the crimes and the defendants in each
of the cases discussed in Keith and compared the same to the
crimes and the defendant in the present case. In comparing
the crimes, we conclude that the crimes committed by the
defendant were at least as grievous and heinous as were those
involved in the other described death penalty cases. We also
conclude, after considering the defendants in each of the
cases cited in Keith, that the defendant's lack of a prior
criminal history, when weighed against the nature of the
crimes of which he was convicted, does not make his sentence
disproportionate in comparison with the other cases. Final-
ly, we have considered State v. Keefe (Mont. 1988), - P.2d
,
- 45 St.Rep. 1034, in which the defendant was not sen-
tented to death although he was convicted of the deliberate
homicides of three family members in their home. However,
that defendant was under the age of 18 at the time the crimes
were committed.
We hold that the sentences of death given in the present
case are not excessive or disproportionate to the penalty
imposed in similar cases in Montana, considering both the
crimes and the defendants. As required by § 46-18-310, MCA,
in reaching this conclusion, we have considered the punish-
ment as well as any errors enumerated by way of appeal.
We affirm the judgment of the District Court. This
cause is remanded to the District Court for the setting of an
execution date.
We Concur:
H
RP.
&
I
Justices