No. 89-055 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1991 

STATE OF MONTANA, 

Plaintiff 

v. 

TERRY ALLEN LANGFORD , 

Defendant 

and 

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 

Filed: 

Submitted: May 2r 1991 

Decided: June 4, 1991 
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 punishment as well as any errors enumerated by way 

of appeal. With regard to the sentence, the 

court shall determine: 

(1) whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor; 

(2) whether the evidence supports the 

judge's finding of the existence or nonexistence of the aggravating or mitigating circumstances enumerated in 46-18-303 and 46- 

18-304; and 

(3) whether the sentence of death is excessive or disproportionate to the penalty imposed 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 15 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 Langfordls own actions before, 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 Blackwoods1 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 Blackwoods' truck with which he armed himself. 

When Edward entered the garage the next day, Langford pointed 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 ordered 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 handguns, 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 morning, 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 delivery 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 Blackwoods1 handguns as stolen on the National Crime Information Computer. 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 Carolina authorities, Powell County Sheriff David Collings and Montana 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 Langford'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, robbery, 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 Langford 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 completion 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 evaluation, 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 prevented 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 Blackwood 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 Blackwood 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 restrained Edward Blackwood by using or threatening to use physical force, with the purpose 

of inflicting bodily injury on or terrorizing 

Edward Blackwood, by binding Edward Blackwood to a chair and shooting Edward Blackwood 

in the head with a .22 caliber pistol, contrary to the form, force, and effect of Section 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 restrained Celene Blackwood by using or threatening 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 Blackwood in the head with a .22 caliber pistol, 

and slashing Celene Blackwoodts throat, contrary to the form, force, and effect of Section 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 residence of Edward and Celene Blackwood with the 

purpose to commit the offense of Theft therein and in the course of committing the offense 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 caliber 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, Montana, the defendant, in the course of committing the theft of money, guns, and a vehicle from Edward and Celene Blackwood, knowingly inflicted bodily injury upon Edward and 

Celene Blackwood by shooting Edward and 

Celene Blackwood in the head with a .22 caliber 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 property, 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 [Langford] 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 indicating 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 sentencing 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 sentences. 

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; consequently, 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 Langford'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 discretion 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 affidavit 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, provides that "[tlhe rules of evidence in civil actions are applicable 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 District 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 Investigation. The form, dated August 12, 1988, has the words "Refused 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,/ b~d fi- S&.r t COMPLAINT NO.: 

PLACE: qBD & . S/'k ud 

HAW 2 9 1393 

YOUR RIGHTS --- M~$$/~~~~K~ 

Before we ask you any questions, you must understand your rights: 

5Y 

- 

1. You have the right to remain silent and not make any statements. 

2. Anything you say can and will be used against you in court. 

3. You have the right to talk to a 1a;rler for advice before we ask you any questions 

and to have him or myone else with you during questioning. 

4. If you cannot afford a lawyer, one will be appointed for you by the court, before 

questioning if you wish. 

5. If you decide to answer questions now without a lawyer present, you will still have 

the ri_nht to stop answering at any time until you talk to a lawyer. 

6. If you are a person who ha3 not reached his eighteenth (18th) birthday, is not 

aarried, emmcipated, or a memk-?r af the zrrned forces, you have a right to have a 

parent, guardian or custodim present during questior.ing. 

I an willing to make a statement and answer questions, I do not a lewyer 2t 

this time. I understand and know what I a~ doing. No pronises or threats have been 

made to me ad no pressure or coercion of any kind has been used against me by anyone. 

I have read or had read to me this statement of my rights the above waiver of rights 

and I understaqd what my rights are. 

IF YOU ARE A HEAXING IMPAIRED OR NON-E>,lGLISH SPEAKING PERSON: 

You may have a sign-laqwage or foreiw lan~age interpreter present during questio~inp. 

If you do not know or cannot afford an interpreter, one will be provided at no expense 

to you. If you understand all of your rights, please write on the line irr-~ediately 

below, "I have read and understand Jach of my rights." 

Siged: 

Witxess: 

Witness: v/I 

'i1itr.e~~: 
On August 15, 1988, Montana authorities also advised Langford 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 Blackwoods. The signed August 15, 1988, waiver of rights form reads 

as follows: 

%ty f 4d6wd F~L~~D 

%OB/ 03-/96C MAR 2 S 1930 wA,g7; 

place %u,?,/ A/. c /S%ee 

Date -8 IS- 88 I ' 

Time fl/z h 

Bcforc we ask you any uurstions, you nust understnnc! 

your rights. 

You have the right to remain silcnt. 

Acything you say can and will be used against you in 

court. 

You have the right to talk to a lawyer for advice beEorc 

we ask you any questions and to have him with you during questioning. 

If you cannot afford a lawyer, the court will appoint one 

for you before any questioning if you wish. 

If you decide to answer questions now without a lawyer 

present, you still have the right to stop answering at any 

time. 

I.!AIVER OF RIGHTS 

I have read this statencnt of my riohts and I understand 

what my rights are. I am willing to make a statement and 

answer questions without an attorney prqsent. No promises or 

threats have been made to me and no pressure or coercion of 

any kind has been used against ne. 

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 confession 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 adequately discuss with Langford the events of the crimes, his arrest, his confession, or his intent to plead guilty and request 

the death penalty. Langford argues that MacKay failed to adequately explore the potential defenses of 1) the denial of a 

prompt initial appearance before a court and 2) possible constitutional 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 psychiatrist 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 

deficientvv and 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 defendant would not have pled guilty lvand would have insisted on 

going to trial." I Hill 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 counsel must not be tested by a greater sophistication of appellate 

counsel, nor by that counsells unrivaled 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 performance must be highly deferential" and "requires that every 

effort be made to eliminate the distorting effects of hindsight, 

to reconstruct the circumstances of counsel~s challenged 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 (defendantfs refusal to sign a waiver of rights form did not automatically 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 indicates that MacKay was unaware of the North Carolina formts handwritten 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 indicates 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 adequately discuss with Langford the events of the crimes, his arrest, his confession, or his intent to plead guilty and request 
the death penalty, the record again indicates that MacKayls performance in these areas was not deficient. The record contains 

substantial evidence proving that MacKay provided effective counseling to Langford, including MacKayls testimony concerning his 

time and effort devoted to: 1) interviewing Langford, 2) obtaining the State's full investigative file at that time, 3) investigating the facts and legal strategies, and 4) informing Langford of his legal options. 

Furthermore, it is important to note that MacKay was required 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, Langford 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 adequately explore the possible defenses of 1) the denial of a 

prompt initial appearance before a court and 2) possible constitutional 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 investigated 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 suppression 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 defense. 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 fiftyfour days at Montana State Hospital in Warm Springs for a courtordered 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, disorder, 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 repeatedly 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 therefore 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 imposed 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 influence. 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 consideration 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 consideration 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 requiring 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 improperly relied upon Langfordls lack of remorse, treating his 

absence of contrition as an aggravating circumstance. This allegation appears to be based upon the District Court's observation 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 aggravating 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, prejudice 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 aggravating 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 mitigating circumstances listed in 5 46-18-304, MCA, are I1sufficiently 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 centering around his hostility toward his mother, 3) Langfordls 

habit of characterizing himself in an unfavorable light, and 4) 

an evaluatorls opinion that Langford may be suicidal. 

The State argues that the District Court did examine mitigating 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 arguments. 

The District Court in this case expressly found the existence 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 admissibility of evidence of other crimes). 

Langford's actions portray just such a systematic criminal 

plan which, when completed, ended in the deaths of the Blackwoods. 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 isolation or by using or threatening to use physical force, with any of the following purposes : 

(b) to facilitate commission of any felony 

or flight thereafter; 

(c) to inflict bodily injury on or to terrorize the victim or another . . . . 

Section 45-5-303(1), MCA. The evidence clearly indicates that 

Langford in fact knowingly and forcibly restrained the Blackwoods 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 constitute 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 Blackwoods1 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 defendant'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' homicides, 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 substantial 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 constitutionality 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 violate 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, Section 28, 1972 Montana Constitution no longer 

expressly authorizes the legislature to provide 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 Constitutional Convention given the people of Montana 

the option of adopting into the 1972 Constitution 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 penalty 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 statutes 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 determination 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 conditionally qranted, 914 F.2d 1153 (9th Cir. 1990); State v. Fitzpatrick (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 kidnapping 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, executionstyle, 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 applicable 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: