State v. Langford

No. 89-055

IN THE SUPREME COURT OF THE STATE OF MONTANA
1991

STATE OF MONTANA,
Plaintiff and
v.
TERRY ALLEN LANGFORD ,
Defendant and

APPEAL FROM: District Court of the Third Judicial District,
In and for the County of Powell,
The Honorable Ted L. Mizner, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Michael Donahoe argued; Helena, Montana
For Respondent:
Hon. Marc Racicot, Attorney General, Helena, Montana
John Paulson argued, Assistant Attorney General,
Helena, Montana
Christopher G. Miller, Powell County Attorney, Deer
Lodge, Montana

Submitted: May 2 r 1991
Decided: June 4, 1991
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
On October 12, 1989, this Court remanded this death penalty
case to the District Court for the Third Judicial District,
Powell County, to permit Terry Allen Langford (Langford) to file
a motion to withdraw his guilty pleas regarding two counts of
deliberate homicide, two counts of aggravated kidnapping, one
count of aggravated burglary, one count of robbery, and one count
of theft in connection with the deaths of Edward and Celene
Blackwood. Following a hearing on July 16, 1990, the District
Court denied Langford's motion. We affirm the District Court's
opinion and order, and remand this case with orders to reset the
date of execution.
Langford presents the following issues on appeal following
remand :
1. Did Langford receive effective assistance of counsel in
connection with his decision to plead guilty to the charged
crimes?
2. Did the District Court impose the death sentences under
the influence of passion, prejudice, or other arbitrary factors
by relying in part on victim impact statements and on Langford's
failure to display remorse?
3. Did the District Court fail to rule as a matter of law
that mitigating factors existed and that such mitigating factors
were substantial enough to call for leniency?
 4. Do Montana's death penalty statutes violate Montana
~onstitution,Article 11, Section 28?
Additionally, 1 46-18-310, MCA, mandates that this Court
review the following issues in death penalty cases:
The supreme court shall consider the punish-
ment as well as any errors enumerated by way
of appeal. With regard to the sentence, the
court shall determine:
(1) whether the sentence of death was im-
posed under the influence of passion, prejud-
ice, or any other arbitrary factor;

(2) whether the evidence supports the
judge's finding of the existence or nonexis-
tence of the aggravating or mitigating cir-
cumstances enumerated in 46-18-303 and 46-
18-304; and
(3) whether the sentence of death is exces-
sive or disproportionate to the penalty im-
posed in similar cases, considering both the
crime and the defendant. The court shall
include in its decision a reference to those
similar cases it took into consideration.
Langford raises the issues enumerated in 1 5 46-18-310(1) and (2),
MCA, in this appeal, but does not raise the issue enumerated in
§ 46-18-310(3) , MCA. Therefore, this Court raises the following
issue as mandated under 5 46-18-310(3), MCA:
5. Did the District Court excessively or disproportionately
impose the death penalty sentence in comparison to similar cases?
 Facts
On July 5, 1988, Powell County Sheriff David Collings found
Edward Blackwood (Edward) and Celene Blackwood (Celene) dead in
their home located two miles north of Ovando, Montana. Both
victims were found bound in execution-style positions. Edward
was found tied to a chair in the living room with his hands tied
behind him. He had been shot once in the back of the head with a
small caliber handgun. Celene was found lying face down on the
couch in the living room with her hands tied to her ankles behind
her back. She had been shot in the side of the head with a small
caliber handgun and her throat had been slashed with a knife.
In Langfordls confession on August 15, 1988, he stated that
he Itblew two peoplels brains outu while traveling in Montana
about one month earlier; these people were later identified as
the Blackwoods. In his confession, Langford offered no reason
for his actions. The facts concerning Langfordlsown actions be-
fore, during, and after the crimes are taken directly from his
confession and the record in this case.
In late June, 1988, Langford, equipped with his camping
gear, traveled by bus to Montana from North Carolina. When he
departed from the bus at Ovando, Montana, he proceeded to walk
toward a mountainous area. After wandering aimlessly in this
area for a period of time, he eventually ended up on the Black-
woods1 property. He watched the Blackwoodsl movements from a
distance before entering and hiding in their garage one evening.
While hiding in the garage, he discovered a rifle in the Black-
woods' truck with which he armed himself.
When Edward entered the garage the next day, Langford point-
ed the rifle at him and ordered him to lie down on the floor. He
then ordered Edward to call for Celene. When Celene came to the
garage, he ordered her also to lie on the floor.
Langford ordered Celene to tie Edward's hands and then or-
dered them into their home. Once they entered their home, he
ordered Edward to sit in a chair and Celene to sit on a couch.
He then tied Edward to the chair and tied Celene's feet and hands
together behind her back and left her lying on the couch.
While the couple remained tied up, he conversed mainly with
Edward for a few hours, asking Edward about his background and if
he owned more guns. Edward told him that he owned several hand-
guns, which were located in the bedroom. Langford then retrieved
five or six handguns from the bedroom.
Langford later shot Edward and then shot Celene with one of
the handguns. Following the shootings, Langford stated that he
"got real close and I looked right in [Edward's] eyes1' and asked
him "Are you dead?" Edward did not reply. At this same time,
Langford stated that Celene was "[clhoking in her own blood. Or
so it sounded like. She wouldn't die. I shot her in the side of
the head, but the bitch didn't die.I1 He then slashed Celenels
throat.
When he left the Blackwoodsl home, he took the money from
the Blackwoodsl wallets, and he also took a blue athletic bag,
which he loaded with several of their possessions including five
or six handguns. He then traveled to Great Falls, Montana, in
the Blackwoodsl blue pickup truck. Police recovered this truck
in Great Falls on July 7, 1988. Fingerprints taken from the
truck matched those of Langford and accordingly identified him as
a suspect.
Langford proceeded by bus to Louisville, Kentucky, and then
by taxi to Indiana, where he stayed the night at a motel, later
identified as the Star Motel in Jeffersonville. The next morn-

ing, he pulled a knife on a maid when she entered his motel room
and startled him. Immediately following his encounter with the
maid, Langford left the Star Motel with the blue athletic bag
containing the handguns, and wandered into a nearby wooded area
where he discarded the bag and its contents. He then hitchhiked
to Birmingham, Alabama, and later proceeded by bus to Raleigh,
North Carolina.
In the meantime, the State of Indiana issued a warrant for
Langford's arrest for an alleged July 6, 1988, robbery attempt of
the Star Motel. Later, Langford testified at his sentencing
hearing that because he needed cash and was attempting robbery,
he had intended to kill not only the maid, but also a pizza de-
livery boy while he was in Indiana. He also testified at his
sentencing hearing that in another robbery attempt, he pulled a
knife on the taxi cab driver who drove him to Indiana.
Montana authorities had identified and listed the Black-
woods1 handguns as stolen on the National Crime Information Com-
puter. Consequently, Montana authorities were notified when the
blue athletic bag and handguns therein were discovered on July
27, 1988, in a wooded area 1/4 mile from the Star Motel. One of
the weapons in the athletic bag, a High Standard, field king
model, .22 caliber, semiautomatic pistol, was later positively
identified as the weapon that was used to shoot the Blackwoods.
This positive identification was made after an examination by a
ballistics expert of the said pistol, the bullets recovered from
the Blackwoodsl bodies, and the shell casings found at the crime
scene.
On August 12, 1988, Langford was arrested in Raleigh, North
Carolina, on the Indiana warrant. At the time of his arrest,
North Carolina authorities advised him of his Miranda rights.
After receiving notice of Langfordls arrest from the North Caro-
lina authorities, Powell County Sheriff David Collings and Mon-
tana Criminal Investigator Ward McKay traveled to Raleigh on
August 13, 1988, to question Langford regarding the Blackwoods'
deaths. On August 15, 1988, the two Montana investigators met
with Langford and he agreed to talk with them. After advising
Langford of his Miranda rights, Collings and McKay recorded Lang-
ford's statement wherein he confessed that he was responsible for
the Blackwoodsl deaths.
On September 1, 1988, the District Court granted County
Attorney Christopher Miller leave to file an information charging
Langford with two counts of deliberate homicide; two counts of
aggravated kidnapping under 1 45-5-303 (1)(c), MCA, alternatively
charged as two counts of aggravated kidnapping under 5 45-5-
303(1) (b), MCA; and one count each of aggravated burglary, rob-
bery, and theft. The court appointed C.F. MacKay (MacKay) as
counsel for Langford. On September 9, 1988, MacKay moved the
court for Langford to be admitted to Montana State Hospital in
Warm Springs for a psychiatric evaluation to determine if Lang-
ford suffered from a mental disease, disorder or defect. MacKay
made this motion based on one remark Langford made to him, which
alluded to the possibility that something was wrong with him.
The court granted this motion. Langford remained at Montana
State Hospital in Warm Springs for fifty-four days for the com-
pletion of a psychiatric evaluation. In the meantime, MacKay
continued to meet with Langford on a regular basis to discuss his
case and possible defenses. Langford, however, told MacKay that
he did not want MacKay to pursue any defenses and desired the
death penalty for his crimes if he could not be guaranteed an
acquittal or a short prison sentence. The psychiatric evalua-
tion, which was completed on December 13, 1988, stated that
Langford suffered from no mental disorder, disease, or defect,
which excluded him from responsibility for his crimes or pre-
vented him from appreciating the criminality of his conduct.
On January 5, 1989, Langford entered pleas of guilty as
charged by the information to:
1) COUNT I: DELIBERATE HOMICIDE - That on
or about July 1, 1988, at Ovando, Powell
County, Montana, the defendant purposely or
knowingly caused the death of Edward Black-
wood by shooting Edward Blackwood in the head
with a .22 caliber pistol, contrary to the
form, force, and effect of Section 45-5-
102 (1)(a), M. C.A. 1987.
2) COUNT 11: DELIBERATE HOMICIDE - That on
or about July 1, 1988, at Ovando, Powell
County, Montana, the defendant purposely or
knowingly caused the death of Celene Black-
wood by shooting Celene Blackwood in the head
with a .22 caliber pistol and by slashing her
throat, contrary to the form, force, and
effect of Section 45-5-102 (1)(a), M. C.A.
1987.
3) COUNT 111: AGGRAVATED KIDNAPPING - That
on or about July, 1, 1988, at Ovando, Powell
County, Montana, the defendant knowingly or
purposely and without lawful authority re-
strained Edward Blackwood by using or threat-
ening to use physical force, with the purpose
of inflicting bodily injury on or terrorizing
Edward Blackwood, by binding Edward Black-
wood to a chair and shooting Edward Blackwood
in the head with a .22 caliber pistol, con-
trary to the form, force, and effect of Sec-
tion 45-5-303(1)(c), M.C.A. 1987.
4) COUNT V: AGGRAVATED KIDNAPPING - That on
or about July, 1, 1988[ , ] at Ovando, Powell
County, Montana, the defendant knowingly or
purposely and without lawful authority re-
strained Celene Blackwood by using or threat-
ening to use physical force, with the purpose
of inflicting bodily injury on or terrorizing
Celene Blackwood, by tying Celene Blackwoodts
hands to her ankles, shooting Celene Black-
wood in the head with a .22 caliber pistol,
and slashing Celene Blackwoodts throat, con-
trary to the form, force, and effect of Sec-
tion 45-5-303(1)(c), M.C.A. 1987.
5) COUNT VII: AGGRAVATED BURGLARY - That on
or about July 1, 1988, at Ovando, Powell
County, Montana, the defendant knowingly
entered or remained unlawfully in the resi-
dence of Edward and Celene Blackwood with the
purpose to commit the offense of Theft there-
in and in the course of committing the of-
fense of Theft the defendant purposely or
knowingly inflicted bodily injury on Edward
and Celene Blackwood, by shooting Edward and
Celene Blackwood in the head with a .22 cali-
ber pistol and by slashing Celene Blackwoodts
throat, contrary to the form, force, and
effect of Section 45-6-204 (2)(b)[ , 1 M. C.A.
1987.
6) COUNT VIII: ROBBERY - That on or about
July 1, 1988, in Ovando, Powell County, Mon-
tana, the defendant, in the course of com-
mitting the theft of money, guns, and a vehi-
cle from Edward and Celene Blackwood, know-
ingly inflicted bodily injury upon Edward and
Celene Blackwood by shooting Edward and
Celene Blackwood in the head with a .22 cali-
ber pistol and slashing Celene Blackwoodts
throat, contrary to the form, force, and
effect of Section 45-5-401(1) (a)[ , ] M.C.A.
1987.
7) COUNT IX: THEFT - That on or about July
1, 1988, at Ovando, Powell County, Montana,
the defendant purposely or knowingly obtained
or exerted unauthorized control over the
 property of Edward and Celene Blackwood, to
wit: seven (7) pistols of various makes and
models, cash and wallets, and a 1984 GMC
Pickup, Montana License Number 28T-6868,
having a value of more than $300.00, with the
purpose of depriving the owners of the prop-
erty, contrary to the form, force, and effect
of Section 45-6-301(1)(a), M.C.A. 1987.
The District Court struck Counts IV and VI, the alternative
counts of aggravated kidnapping under 5 45-5-303 (1)(b), MCA.
Following Langfordts pleas, MacKay made the following statement:
"If it please the Court, the Defendant [Langford] requests of
this Court that all matters be expedited. The Defendant [Lang-
ford] has asked me to advise the Court that he wants the death
penalty imposed."
At Langfordts sentencing hearing on January 26, 1989, MacKay
stated:
As I previously indicated at the last hearing
we had, the Defendant [Langford] has asked me
to tell the Court that his decision in this
case is to ask for the death penalty. He has
spent a lot of time with me. He has all of
the information that I could give him to make
a decision. He is before this Court indicat-
ing that he is aware of what his options are.
He does not want to spend the rest of his
life in prison. He has pled guilty to all of
the charges that were leveled against him by
the prosecutor, and he asks the Court to
impose the death penalty.
At this sentencing hearing, Langford testified that he had no
motive or remorse for killing the Blackwoods and would kill again
if provoked. Langford also testified that he was satisfied with
MacKayls services, he understood the proceedings of the sentenc-
ing hearing, and he had no questions regarding the proceedings.
On January 26, 1989, the District Court sentenced Langford
to death for each of the two counts of deliberate homicide and
the two counts of aggravated kidnapping. The District Court
further sentenced Langford to consecutive prison terms of forty
years for aggravated burglary, forty years for robbery, ten years
for theft, and enhanced his sentence by ten years for using a

dangerous weapon in the commission of his crimes. Following the
sentencing, MacKay, in keeping with Langford's instructions,
filed a notice of intent not to appeal the death penalty sen-
tences.
On July 12, 1989, while this Court was reviewing these death
penalty sentences under the automatic review provisions of 5 46-
18-307, MCA, MacKay notified this Court that Langford had changed
his mind and had decided not to seek the death penalty; conse-
quently, MacKay filed a notice of appeal. On August 31, 1989,
Langford dismissed MacKay and Michael Donahoe was substituted as
his counsel.
On October 12, 1989, this Court remanded this case to the
District Court to allow Langford to file a motion to withdraw all
his guilty pleas. On remand, the District Court denied Lang-
ford's motion in an opinion and order dated July 16, 1990. From
this opinion and order, Langford appeals.
 Standard of Review
"The granting or refusal of permission to withdraw a plea of
guilty and substitute a plea of not guilty rests in the discre-
tion of the District Court and is subject to review only upon a
showing of abuse of discretion.I1 State v. Arbgast (1983), 202
Mont. 220, 223, 656 P.2d 828, 830 (citation omitted).

Analysis
1. Did Langford receive effective assistance of counsel in
connection with his decision to plead guilty to the charged
crimes?
The State argues that most of Langford's allegations of fact
regarding his claim of MacKayls ineffective assistance of counsel
are set forth in an affidavit by Langford, which was filed with
and supported his motion to withdraw guilty pleas. This affi-
davit was never admitted into evidence at the hearing. The State
argues that because it was never admitted into evidence coupled
with the fact that Langford was never examined or cross-examined
on its contents at the hearing, the affidavit should not be
viewed as evidence by this Court citing, inter alia, a divorce
action, Stefonick v. Stefonick (1946), 118 Mont. 528, 167 P.2d
867. We disagree in this instance.
 Section 26-1-1002, MCA, a statutory provision of evidence,
permits the use of an affidavit "to verify a pleading or a paper
in a special proceeding. . . . Section 46-16-201, MCA, pro-
vides that "[tlhe rules of evidence in civil actions are applic-
able to criminal actions. ... II Here, the State never objected
to the use of the affidavit at the hearing, and relied on it to
secure an order from this Court dated January 9, 1990, which
allowed MacKay to testify with immunity. Furthermore, the Dis-
trict Court referenced the affidavit in its opinion and order
dated July 16, 1990, that denied Langfordls motion to withdraw
his guilty pleas. We therefore will consider this affidavit.
Langford argues that when he was arrested in North Carolina,
a police officer gave him a pre-printed waiver of rights form
containing his Miranda rights for his signature. When the police
officer asked him if he wanted to waive his rights, Langford
claims that he refused to do so. Langford claims that because of
his response, the police officer crossed out words on this form,
which indicated that he did not waive his rights. This form,
which Langford claims contains the crossed-out words, was not
produced during discovery. In January 1990, however, the State
obtained this form from the North Carolina State Bureau of Inves-
tigation. The form, dated August 12, 1988, has the words "Re-
fused to Sign" written on the signature line, and the form is a
part of the record in this case. The form reads as follows and
does not contain any crossed-out material:

TYPE CASE: Gr,/ ~ fi-
b d S&.r t COMPLAINT NO.:

PLACE: qBD. S/'k
& ud
HAW 2 9 1393
---R
YOU RIGHTS M ~ $ $ / ~ ~ ~ ~ K ~
5Y
Before we a s k you any q u e s t i o n s , you must u n d e r s t a n d y o u r r i g h t s :
-
1. You have t h e r i g h t t o remain s i l e n t and n o t make any s t a t e m e n t s .

2. Anything you s a y c a n and w i l l be used a g a i n s t you i n c o u r t .

3. You have t h e r i g h t t o t a l k t o a 1a;rler f o r a d v i c e b e f o r e we a s k you any q u e s t i o n s
and t o have him o r m y o n e e l s e w i t h you d u r i n g q u e s t i o n i n g .

4. I f you c a n n o t a f f o r d a l a w y e r , one w i l l be a p p o i n t e d f o r you by t h e c o u r t , b e f o r e
q u e s t i o n i n g i f you w i s h .

5. I f you d e c i d e t o answer q u e s t i o n s now w i t h o u t a l a w y e r p r e s e n t , you w i l l s t i l l have
t h e ri_nht t o s t o p answering a t any time u n t i l you t a l k t o a lawyer.

6. I f you a r e a p e r s o n who ha3 n o t reached h i s e i g h t e e n t h ( 1 8 t h ) b i r t h d a y , i s n o t
a a r r i e d , e m m c i p a t e d , o r a memk-?r a f t h e zrrned f o r c e s , you have a r i g h t t o have a
p a r e n t , guardian o r c u s t o d i m present d u r i n g questior.ing.

I an w i l l i n g t o make a s t a t e m e n t and answer q u e s t i o n s , I do n o t a lewyer 2 t
t h i s t i m e . I u n d e r s t a n d and know what I a~ d o i n g . No p r o n i s e s o r t h r e a t s have been
made t o me a d no p r e s s u r e o r c o e r c i o n of any k i n d h a s been used a g a i n s t me by anyone.
I have r e a d o r had r e a d t o me t h i s s t a t e m e n t of my r i g h t s t h e above waiver o f r i g h t s
and I u n d e r s t a q d what my r i g h t s a r e .

I F YOU ARE A HEAXING IMPAIRED O NON-E>,lGLISH SPEAKING PERSON:
R

You may have a s i g n - l a q w a g e o r f o r e i w l a n ~ a g ei n t e r p r e t e r p r e s e n t d u r i n g q u e s t i o ~ i n p .
I f you do n o t know o r c a n n o t a f f o r d an i n t e r p r e t e r , o n e w i l l be provided a t n o expense
t o you. I f you u n d e r s t a n d a l l o f your r i g h t s , p l e a s e w r i t e on t h e l i n e i r r - ~ e d i a t e l y
below, "I have r e a d and u n d e r s t a n d J a c h of my r i g h t s . "

Siged:

Witxess:

Witness: v/I
'i1itr.e~~:
 On August 15, 1988, Montana authorities also advised Lang-
ford of his Miranda rights prior to interviewing him. After
being advised of his rights, Langford signed a waiver of rights
form. He then voluntarily confessed that he killed the Black-
woods. The signed August 15, 1988, waiver of rights form reads
as follows:

%ty f4 d 6 w d F ~ L ~ ~ D
%OB/ 03-/96C MAR 2 S 1930
wA,g7;

place %u,?,/ A/. c /S%ee
Date -8 I
IS- 88
'
Time fl/z h
B c f o r c we a s k you a n y u u r s t i o n s , y o u n u s t u n d e r s t n n c !
your r i g h t s .

You h a v e t h e r i g h t t o r e m a i n s i l c n t .

A c y t h i n g y o u s a y c a n a n d w i l l b e u s e d a g a i n s t you i n
court.

You h a v e t h e r i g h t t o t a l k t o a l a w y e r f o r a d v i c e b e E o r c
we a s k y o u a n y q u e s t i o n s a n d t o h a v e h i m w i t h you d u r i n g q u e s -
tioning.

If you c a n n o t a f f o r d a l a w y e r , t h e c o u r t w i l l a p p o i n t o n e
f o r you b e f o r e a n y q u e s t i o n i n g i f y o u w i s h .

If y o u d e c i d e t o a n s w e r q u e s t i o n s now w i t h o u t a l a w y e r
p r e s e n t , you s t i l l have t h e r i g h t t o s t o p answering a t any
time.

I.!AIVER OF R I G H T S

I h a v e r e a d t h i s s t a t e n c n t o f my r i o h t s a n d I u n d e r s t a n d
what my r i g h t s a r e . I am w i l l i n g t o make a s t a t e m e n t a n d
answer q u e s t i o n s w i t h o u t a n a t t o r n e y p r q s e n t . No p r o m i s e s o r
t h r e a t s h a v e b e e n made t o m e a n d n o p r e s s u r e o r c o e r c i o n o f
any k i n d h a s b e e n u s e d a g a i n s t n e .

Sianed
/
I , ,,,,,A.
d '
WITNESS

IPI'I NCSS

TIYE
EXHIBIT
 Langford argues that because he refused to waive his rights
to the North Carolina authorities, he was entitled to and was
denied an attorney immediately following his arrest and before
his confession. Langford argues that MacKay failed to provide
effective counseling because MacKay never informed Langford that
he had this defense argument, which possibly could have resulted
in the suppression of his confession. Langford argues that
because he refused to waive his Miranda rights to the North
Carolina authorities, his waiver of rights prior to his confes-
sion to Montana authorities is void. Langford further argues
that MacKay failed to provide effective counsel because MacKay
never obtained this form with the alleged crossed-out words
during discovery.
Additionally, Langford argues that MacKay failed to ade-
quately discuss with Langford the events of the crimes, his ar-
rest, his confession, or his intent to plead guilty and request
the death penalty. Langford argues that MacKay failed to ade-
quately explore the potential defenses of 1) the denial of a
prompt initial appearance before a court and 2) possible consti-
tutional violations attached to Langford's voluntary confession.
Lastly, Langford argues that MacKay did not advise him on the
controlling law concerning the appointment of a defense psychia-
trist to assist him in the evaluation of his defense. Langford's
arguments lack merit.
 Before analyzing Langfordvs arguments, we wish to note
MacKayvs qualifications. MacKay has been a full-time public
defender for the Third Judicial District for ten years and has
practiced law since 1955. He has represented criminal defendants
in nearly 1000 felony cases, some of which involved homicide and
other major felonies. Additionally, he has attended continuing
education seminars on the death penalty.
Langfordvs arguments of ineffective counsel fail because
Langford cannot satisfy the tests under Strickland v. Washington
(1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, and Hill v.
Lockhart (1985), 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203. The
test in Strickland provides that to prove a claim of ineffective
counsel, Iva defendant must show that counselvs performance was
deficientvvand because of this deficiency, the defendant was
denied a fair trial. Strickland, 466 U.S. at 687. The test in
Hill provides that when a guilty plea is involved, the defendant
must show that but for counselvs deficient performance, the de-
fendant would not have pled guilty lvand would have insisted on
going to trial." Hill
I 474 U.S. at 59 (footnote omitted).
Accord State v. Senn (Mont. 1990), 795 P.2d 973, 47 St.Rep. 1389.
This Court has observed that vvv[c]laimed
inadequacy of coun-
sel must not be tested by a greater sophistication of appellate
counsel, nor by that counsellsunrivaled opportunity to study the
record at leisure and cite different tactics of perhaps doubtful
efficacy. State v. Martz (1988), 233 Mont. 136, 140, 760 P.2d
65, 68 (citations omitted). I1Judicial scrutiny of counsells per-
formance must be highly deferential" and "requires that every
effort be made to eliminate the distorting effects of hindsight,
to reconstruct the circumstances of counsel~schallenged conduct,
and to evaluate the conduct from counse18s perspective at the
time." Strickland, 466 U.S. at 689. The reviewing court "must

indulge a strong presumption that counsel's conduct falls within
the wide range of reasonable professional assistance. . . .11

Strickland, 466 U.S. at 689.
Here, the record establishes that MacKaygs performance was
not deficient in the areas raised by Langford. Regarding the
unsigned waiver of rights form, Igrefusing to sign a waiver of
rights form without an attorney's guidance is not synonymous with
an affirmative request for assistance of counsel." United States
v. Eirin (11th Cir. 1985), 778 F.2d 722, 728. See also United
States v. McKinney (5th Cir. 1985), 758 F.2d 1036, 1045 (defe-
ndantfs refusal to sign a waiver of rights form did not automati-
cally render further questioning illegal). Accordingly, even if
MacKay would have requested this form during discovery, the form
would not have constituted a viable defense for Langford.
Furthermore, no evidence exists in the record to prove that
Langford even told MacKay that he had refused to sign a waiver of
rights form with the North Carolina arresting officers or that
Langford had said anything to the arresting officers that might
be viewed as an invocation of his right to counsel. This indi-
cates that MacKay was unaware of the North Carolina formts hand-
written statement I1Refused to Sign." An attorney has no duty to
investigate leads that do not appear to be fruitful. Harvey v.
United States (8th Cir. 1988), 850 F.2d 388, 403. See also Roach
v. Martin (4th Cir. 1985), 757 F.2d 1463, 1476, n. 19, cert.
denied, 474 U.S. 865 (1985) (trial counsel was not ineffective
for failing to interview a police officer about the arrest where
counsel made an appropriate investigation based on information
supplied by the defendant concerning statements to the police).
The record, through MacKayts testimony, does indicate that
MacKay discussed the circumstances of the arrest during one of
his first conferences with Langford and learned that Langford had
been advised of his Miranda rights by North Carolina authorities
and that he understood these rights. Moreover, the record indi-
cates that before Langford gave his confession, he was once again
read his Miranda rights, this time by Montana authorities, and
signed a waiver of rights form. We therefore see no deficiency
with regard to MacKayts performance regarding the unsigned waiver
form.
Regarding Langfordts arguments that MacKay failed to ade-
quately discuss with Langford the events of the crimes, his ar-
rest, his confession, or his intent to plead guilty and request
the death penalty, the record again indicates that MacKayls per-
formance in these areas was not deficient. The record contains
substantial evidence proving that MacKay provided effective coun-
seling to Langford, including MacKayls testimony concerning his
time and effort devoted to: 1) interviewing Langford, 2) obtain-
ing the State's full investigative file at that time, 3) inves-
tigating the facts and legal strategies, and 4) informing Lang-
ford of his legal options.
Furthermore, it is important to note that MacKay was re-
quired to abide by Langfordls decisions, which were, at the time,
to plead guilty to all charges and to request the death penalty.
See Montana Rules of Professional Conduct, Rule 1.2, (adopted by
this Court on June 6, 1985). MacKay testified that Langford
solely determined these decisions, and that he attempted on at
least two occasions to persuade Langford to reconsider while also
advising him of the gravity of those decisions. Moreover, Lang-
ford stated on numerous occasions to MacKay that he desired the
death penalty for his crimes. Furthermore, he stated to the
District Court that he fully understood the proceedings of his
sentencing hearing. Langfordls change of mind concerning his
guilty pleas and having the death penalty imposed against him
does not mean that MacKayls performance was deficient at a time
when Langford had an opposite mind-set.
 Additionally, Langford argues that MacKay failed to ade-
quately explore the possible defenses of 1) the denial of a
prompt initial appearance before a court and 2) possible consti-
tutional violations attached to Langfordls voluntary confession.
Even if these were possible defenses in this case, the record
does not support allegations that MacKay failed to explore these
defenses. The record does indicate that MacKay adequately inves-
tigated the possibility of filing a motion to suppress Langfordls
confession and challenging Montana's death penalty statutes.
Langford, however, told MacKay that unless MacKay could guarantee
him acquittal on the charges pending against him or could assure
him that he would spend little time in prison, he wanted to plead
guilty and be executed. MacKay told Langford that neither he nor
any other responsible attorney could make that kind of guarantee.
Langford then repeatedly instructed MacKay not to file any sup-
pression motions or initiate any further investigation on his
behalf. MacKay eventually abided by Langfordls decisions and
exhibited no deficiency in his performance by doing so.
Lastly, Langford argues that MacKay did not advise him on
the controlling law, namely Ake v. Oklahoma (1985), 470 U.S. 68,
105 S.Ct. 1087, 84 L.Ed.2d 53, concerning the appointment of a
defense psychiatrist to assist him in the evaluation of his de-
fense. Langford argues that he would not have pled guilty if he
had known about the possibility of obtaining the services of
another court-appointed psychiatrist.
In m, the Court held that when a defendant has made a
preliminary showing that his sanity at the time of the offense is
to be a significant factor at trial, the State must assure the
defendant access to a competent psychiatrist who will conduct an
appropriate examination and assist in evaluation, preparation,
and presentation of the defense. m, 470 U.S. at 82. The Court
in Ake also noted, however, that a defendant's mental condition
is not necessarily at issue in every criminal proceeding and that
the mental condition must be seriously in question before the
right is implicated. Ake, 470 U.S. at 82-83.
At no time did Langford put his mental state at issue at the
time of his commission of the crimes, prior to or at the time of
his guilty pleas, or at his sentencing. Langford spent fifty-
four days at Montana State Hospital in Warm Springs for a court-
ordered psychiatric evaluation based upon a single remark he made
to MacKay during one of his first interviews. Langfordls remark
alluded to the possibility that something was wrong with him.
The Montana State Hospital psychiatric evaluation concluded,
inter alia, that Langford suffered from no mental disease, disor-
der, or defect, which excluded responsibility for the crimes or
prevented Langford from appreciating the criminality of his acts.
The record is void of evidence that this evaluation was inac-
curate. In fact, Langford testified at his sentencing hearing
that he believed the evaluation was accurate.
Additionally, the record does not indicate that a second
evaluation was warranted; it is void of evidence that Langford
displayed any bizarre behavior or made any remarks that indicated
a need for further evaluation. Furthermore, there is nothing in
the record to indicate that a second evaluation would have made a
difference in Langfordts pleas based on Langfordts firm stand to
enter guilty pleas at the time. We emphasize that Langford re-
peatedly told MacKay that he did not want him to do anything on
his behalf if Langford could not be guaranteed of an acquittal
or, in the alternative, a short prison term for his crimes.
MacKayls performance was not deficient in this area. We there-
fore hold that MacKay provided Langford with effective assistance
of counsel.

2. Did the District Court impose the death sentences under
the influence of passion, prejudice, or other arbitrary factors
by relying in part on victim impact statements and on Langfordts
failure to display remorse?
Section 46-18-310(1), MCA, mandates this Court in death
penalty cases to review: "whether the sentence of death was im-
posed under the influence of passion, prejudice, or any other
arbitrary factor. . . .II A review of this issue as well as
Issues Three and Five of this appeal "serves as a check against
the random or arbitrary imposition of the death penalty." Gregg
v. Georgia (1976), 428 U.S. 153, 206, 96 S.Ct. 2909, 2940, 49
L.Ed.2d 859, 893.
Here, the evidence fails to indicate that the District Court
judge imposed the death penalty under any such arbitrary influ-
ence. The record does not reflect that any public opinion or
media, any personal bias or prejudice, any fear of community
objection, or any other type of improper circumstances affected
the court's sentencing decision. Compare State v. Keith (1988),
231 Mont. 214, 754 P.2d 474 (holding that allegations of any such
prejudice are speculative without any supporting evidence).
Langford did not object to the District Court's considera-
tion of the pre-sentence report at his sentencing hearing. The
pre-sentence report, which stated that a life sentence would be a
harsher penalty than the death penalty for Langford, contains
nothing notably inaccurate or inflammatory. The court's written
findings and conclusions are careful and dispassionate. After
examining the numerous letters written in regard to the case,
most non-supportive and one supportive of Langford, the court
stated only that it is ''ever mindful of the pain, suffering and
fear of the victims in this case as well as that of their family,
friends and the community."
 Langford cites Booth v. Maryland (1987) 482 U.S. 496, 107
S.Ct. 2529, 96 L.Ed.2d 440, which held that the jury's considera-
tion of a victim impact statement violated the Eighth Amendment,
by creating an unacceptable risk that the jury may impose the
death penalty in an arbitrary and capricious manner. Booth can
be distinguished from the facts herein because: 1) in Booth,

Maryland's then statutory scheme differs from Montana's by re-
quiring the consideration of victim impact statements if a victim
suffered injury or death, and 2) in Montana, a judge, rather than
a jury, sentences the defendant. Accord State v. Kills On Top
(Vern) (1990), 243 Mont. 56, 793 P.2d 1273; State v. Kills On Top
(Lester) (1990), 241 Mont. 378, 787 P.2d 336; State v. Dawson
(1988), 233 Mont. 345, 761 P.2d 352; State v. Keith (1988), 231
Mont. 214, 754 P.2d 474.
Additionally, Langford argues that the District Court im-
properly relied upon Langfordls lack of remorse, treating his
absence of contrition as an aggravating circumstance. This al-
legation appears to be based upon the District Court's observa-
tion at the sentencing hearing that Langford showed no signs of
remorse for his crimes.
The record and the courtls findings, however, clearly show
that the District Court did not treat Langford's lack of remorse
as an aggravating circumstance or shift the burden to Langford.
The court mentioned lack of remorse as part of the court's gener-
a1 discussion of possible mitigating circumstances and not in
connection with the court's earlier discussion of the aggravating
circumstances in the case. Accordingly, the court properly
viewed Langford's lack of remorse as evidence of the absence of
mitigating factors sufficiently substantial to call for leniency.
See State v. Kills On Top (Vern), supra; State v. Kills On Top
(Lester), supra; State v. Dawson, supra.
Even if the court had viewed Langford's lack of remorse as
an aggravating factor, it would have committed no error because,
while lack of remorse is not statutorily enumerated as an ag-
gravating circumstance, it still relates to the propriety of the
death sentence. State v. Kills On Top (Lester), 241 Mont . at
404, 787 P.2d at 353 (citation omitted). Because Langford has
not alleged, and the record fails to indicate, any improper
sentencing influence, we conclude that the District Court did not
impose the death sentence under the influence of passion, prejud-
ice or any other arbitrary factor.

3. Did the District Court fail to rule as a matter of law
that mitigating factors existed and that such mitigating factors
were substantial enough to call for leniency?
This issue concerns "whether the evidence supports the
judge's finding of the existence or nonexistence of the aggravat-
ing or mitigating circumstances enumerated in [ § § I 46-18-303 and
46-18-304[,] [MCA]. . . ." Section 46-18-310(2), MCA. The
District Court may impose a sentence of death if it finds the
existence of one or more of the aggravating circumstances listed
in 1 46-18-303, MCA, and if it determines that none of the miti-
gating circumstances listed in 5 46-18-304, MCA, are I1sufficien-
tly substantial to call for leniency." Section 46-18-305, MCA.
Langford argues that the District Court failed to consider
the following mitigating factors as stated in the pre-sentence
report and state hospital report, which call for leniency: 1)
Langfordls past drug use, 2) Langfordls troubled childhood cen-
tering around his hostility toward his mother, 3) Langfordls
habit of characterizing himself in an unfavorable light, and 4)
an evaluatorlsopinion that Langford may be suicidal.
The State argues that the District Court did examine miti-
gating factors and found that there were none substantial enough
to call for leniency. Furthermore, the State argues that the
District Court adequately disclosed the basis of its sentences in
its findings and conclusions. We agree with the Statels argu-
ments.
The District Court in this case expressly found the exis-
tence of two aggravating circumstances. First, the court noted
that the two homicides were committed as part of a scheme which
resulted in the death of more than one individual. See O 46-18-
303(5), MCA. As used in this statute, the word "scheme" means a
"planned undertakingn or a "systematic plan." See Webster's
Third New International Dictionary 2027 (16th ed. 1971). This
interpretation comports with the interchangeable usage at law of
the terms "scheme," 'lplan"and "system." See aenerally State v.
Keefe (1988), 232 Mont. 258, 759 P.2d 128 (requiring, inter alia,
proof of a "common scheme, plan or system1' prior to the admis-
sibility of evidence of other crimes).
Langford's actions portray just such a systematic criminal
plan which, when completed, ended in the deaths of the Black-
woods. Langford's actions included observing the house over a
period of several days, subduing Edward by use of a rifle when he
walked into the garage one morning, waiting for Celene to appear
and then requiring her to tie Edward's wrists with rope, ordering
the Blackwoods into their home before similarly tying Celene's
wrists and ankles and tying Edward to a chair, requesting the
location of those weapons belonging to the Blackwoods before
finally, after the passing of several hours, shooting both in the
head and slashing Celene's throat when the shot failed to kill
her, and then fleeing with the Blackwoods' pickup, weapons, and
money.
Second, the court noted that Langford committed aggravated
kidnapping which resulted in the death of the victims. See 1 46-

18-303(7), MCA. An individual commits the offense of aggravated
kidnapping when he or she:
 knowingly or purposely and without lawful
authority restrains another person by either
secreting or holding him in a place of isola-
tion or by using or threatening to use physi-
cal force, with any of the following pur-
poses :

(b) to facilitate commission of any felony
or flight thereafter;
(c) to inflict bodily injury on or to ter-
rorize the victim or another ....
Section 45-5-303(1), MCA. The evidence clearly indicates that
Langford in fact knowingly and forcibly restrained the Black-
woods in the living room of their house by the use of ropes and
threats at gunpoint. We hold that this detention, which
facilitated Langfordls murder of the Blackwoods and robbery of
their pickup truck, weapons and money, was sufficient to con-
stitute aggravated kidnapping.
The court found no mitigating circumstances existed except
Langfordls lack of an extensive documented prior criminal record.
The evidence supports the court's findings regarding mitigating
circumstances. Nothing indicated that Langford was under the
influence of extreme mental or emotional disturbance, that he was
under extreme duress or the substantial domination of another
person, that he was mentally incapacitated, that the victims
participated in or consented to his actions, or that Langford was
merely an accomplice or under the age of eighteen at the time the
Blackwoods were killed in July of 1988. See !j 46-18-304, MCA.
To the contrary, Langford was on a camping trip, without any
human contact whatsoever for several days prior to the incident.
Langford stated, as did the psychiatric report, that he was not
under any extreme mental or emotional disturbance at the time,
and that he was capable of appreciating the criminality of his
conduct and conforming his conduct according to the law. The
fact that the Blackwoods were bound eliminates the possibility
that they could exert any substantial domination over Langford
just prior to or at the time of their deaths or that they could
participate in any way in the homicides. No evidence exists
showing that another person was involved in the homicides and
Langford himself contends he alone is responsible for the Black-
woods1 homicides. Lastly, Langford stated he had not taken any
drugs or alcohol at the time of the homicides.
The only potentially mitigating circumstance noted by the
court involved Langford's lack of an extensive documented prior
criminal record. Langford had previously been convicted of two
felony counts of forgery and tampering with a vehicle. However,
the court held, and we think rightly so, that this lack of an
extensive criminal record was not sufficiently substantial to
merit leniency. This Court has previously held that a defen-
dant's lack of prior violent criminal activity does not neces-
sarily require sentence leniency. See State v. Keith (1988), 231
Mont. 214, 754 P.2d 474; State v. Smith (1985), 217 Mont. 461,
705 P.2d 1087, cert. denied, 474 U.S. 1073 (1986), habeas corpus
conditionallv sranted, 914 F.2d 1153 (9th Cir. 1990) ; State v.
Dawson (1988), 233 Mont. 345, 761 P.2d 352. In light of the
facts regarding these two homicides, Langford's statement that he
considered killing two other people after the Blackwoods' homi-
cides, and his statement that he would kill again if provoked, we
hold that the District Court did not err in holding that lack of
an extensive, violent criminal record was not sufficiently sub-
stantial to merit leniency.

4. Do Montana's death penalty statutes violate Montana
Constitution, Article 11, Section 28?
The State asserts that because Langford failed to 1) object
during the district court proceedings concerning the constitu-
tionality of the death penalty statutes and 2) develop this
argument in the district court record, he is now banned from
raising this constitutional challenge on appeal. We disagree.
Because this case involves death penalty sentences, we will
consider this constitutional issue on appeal.
Langford argues that Montana's death penalty statutes vio-
late Article 11, Section 28 of Montana's Constitution, which
provides :
 Laws for the punishment of crime shall be
founded on the principles of prevention and
reformation. Full rights are restored by
termination of state supervision for any
offense against the state.
This Court previously examined this issue and upheld Montana's
death penalty statutes in State v. McKenzie (1976), 171 Mont.
278, 557 P.2d 1023, vacated on other srounds, 433 U.S. 905
(1977), on remand, 177 Mont. 280, 581 P.2d 1205 (1978), vacated,
443 U.S. 903 (1979), on remand, 186 Mont. 481, 608 P.2d 428
(1980), cert. denied, 449 U.S. 1050 (1980), vacated in part on
other srounds, 842 F.2d 1525 (9th Cir. 1988), cert. denied, 488
U.S. 901 (1988):
Here, defendant argues that Article 11, Sec-
tion 28, 1972 Montana Constitution no longer
expressly authorizes the legislature to pro-
vide for the death penalty as did Article
111, Section 24, 1889 Montana Constitution.
The failure to reenact the authorization
might have significance had not the Constitu-
tional Convention given the people of Montana
the option of adopting into the 1972 Consti-
tution language expressly prohibiting the
enactment of the death penalty. The people
of Montana voted for 147,023 and against
77,733, to retain the death penalty. Such a
vote, so recently, negates any argument the
death penalty violates contemporary standards
of decency.
McKenzie, 171 Mont. at 294, 557 P.2d at 1033.
Langford recognizes this language from the case of McKenzie
in his brief, but argues that the June 6, 1972 vote concerning
the death penalty was illegal because the 1972 Constitutional
Convention exceeded its authority when it placed the death penal-
ty issue before the voters as a Itside issueH along with the 1972
Montana Constitution, citing State ex rel. Cashmore v. Anderson
(1972), 160 Mont. 175, 500 P.2d 921, cert. denied, 410 U.S. 931
(1972). Furthermore, Langford argues that the 1972 vote on the
issue was inconclusive, and that the voter information pamphlet
was confusing. Langford's arguments lack merit.
Langford's reliance on Cashmore is misplaced and he cites no
applicable authority in support of his theory. The issue in
Cashmore was whether the 1972 Montana Constitution was approved
by a majority of the voters, and not whether the Constitutional
Convention exceeded its authority by placing three alternative
issues on the ballot along with the 1972 Montana Constitution.
Furthermore, we do not believe the 1972 vote was either illegal
or inconclusive, nor do we believe the voter information pamphlet
was confusing. To the contrary, the people of Montana, through
the 1972 vote, clearly displayed their desire to retain the death
penalty by a near two-to-one margin. We therefore affirm our
holding in McKenzie and hold that Montana's death penalty sta-
tutes do not violate Montana Constitution Article 11, Section 28.

5. Did the District Court excessively or disproportionately
impose the death penalty sentence in comparison to similar cases?
 Although Langford does not raise this issue on appeal, this
Court is charged with determining whether the death sentence
imposed in any given case I1is excessive or disproportionate to
the penalty imposed in similar cases, considering both the crime
and the defendant. Section 46-18-310 (3), MCA. This determina-
tion entails a comparison of all the following cases appealed to
this Court, which involved similar crimes for which the death
penalty was or could have been imposed: State v. Kills On Top
(Vern) (1990), 243 Mont. 56, 793 P.2d 1273; State v. Kills On Top
(Lester) (1990), 241 Mont. 378, 787 P.2d 336; State v. Dawson
(1988), 233 Mont. 345, 761 P.2d 352; State v. Keefe (1988), 232
Mont. 258, 759 P.2d 128; State v. Keith (1988), 231 Mont. 214,
754 P.2d 474; State v. Smith (1985), 217 Mont. 461, 705 P.2d
1087, cert. denied, 474 U.S. 1073 (1986), habeas corpus condi-
tionally qranted, 914 F.2d 1153 (9th Cir. 1990); State v. Fitz-
patrick (1977), 174 Mont. 174, 569 P.2d 383, on remand, 186 Mont.
187, 606 P.2d 1343 (1980), cert. denied, 449 U.S. 891 (1980),
revld on other crrounds, 869 F.2d 1247 (9th Cir. 1989), cert.
denied, 110 S.Ct. 203 (1989); State v. Coleman (1978), 177 Mont.
1, 579 P.2d 732, on remand, 185 Mont. 299, 605 P.2d 1000 (1979),
cert. denied, 446 U.S. 970 (1980), revld on other crrounds, 874
F.2d 1280 (9th Cir. 1989), cert. denied, 110 S.Ct. 349 (1989);
State v. McKenzie (1976), 171 Mont. 278, 557 P.2d 1023, vacated
on other srounds, 433 U.S. 905 (1977), on remand, 177 Mont. 280,
581 P.2d 1205 (1978), vacated, 443 U.S. 903 (1979), on remand,
186 Mont. 481, 608 P.2d 428 (1980), cert. denied, 449 U.S. 1050
(1980), vacated in Dart on other srounds, 842 F.2d 1525 (9th Cir.
1988), cert. denied, 488 U.S. 901 (1988).
After examination of such factors as the gravity of the
offenses, the facts relating to the commission of the offenses,
and the non-existence of any factors meriting leniency, we hold
that the sentence was not disproportionate or excessive to others
imposed in similar cases. All the above-cited cases, except
Keefe, involved a death penalty imposed for the aggravated kid-
napping and subsequent homicide of a victim. So too does this
case. Moreover, this case involves not just one, but multiple
homicides, as did the cases of Dawson and Smith. As in the case
of Fitz~atrick, the victims were shot in the head, execution-
style, after having been bound. Further, the factor meriting
leniency in the Keefe case, namely, the fact Keefe was under the
age of eighteen at the time he committed the three homicides,
does not exist in this case. Langford was twenty-two years of
age at the time he committed the charged crimes.
In conclusion, after reviewing all the evidence and applic-
able law, we hold that the District Court did not abuse its
discretion in denying Terry Allen Langford's motion to withdraw
guilty pleas and we affirm the sentences imposed by the District
Court on January 26, 1989. This case is remanded to the District
Court with orders to set a new date of execution of the death
sentences imposed upon Terry Allen Langford.

Chief Justice
,/
V
We concur: