No. 89-055 IN THE SUPREME COURT OF THE STATE OF MONTANA 1991

STATE OF MONTANA, Plaintiff

v. TERRYALLEN 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,Judgepresiding.

COUNSELOF RECORD: ForAppellant: Michael Donahoe argued; Helena, Montana ForRespondent: Hon.Marc Racicot,AttorneyGeneral,Helena,Montana John Paulson argued, Assistant Attorney General, Helena,Montana ChristopherG. Miller,PowellCountyAttorney,Deer Lodge, Montana

Filed: Submitted: May 2r 1991 Decided: June 4, 1991Chief JusticeJ. A. Turnagedelivered the Opinion of the Court. On October 12, 1989, this Court remanded this deathpenalty

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 casewith 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 sentencesunder 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 indeathpenalty 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 asmandated 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. Hehad been shot once in theback of 

### thehead with a 

### small caliber handgun. Celene was found lying face down on the couch in the living room with her hands tied toher anklesbehind her back. Shehad been shot in the side of thehead with a small caliberhandgun and her throathad been slashed with a knife. In Langfordlsconfession onAugust 15, 1988,he stated that he Itblewtwo peoplelsbrains outu while traveling in Montana about one month earlier; these people were later identified as the Blackwoods. In his confession, Langford offered no reason forhis actions. The facts concerningLangfordlsown actionsbefore, 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 Blackwoodslmovements from adistance before entering and hiding in their garage one evening. While hiding in the garage, he discovered a rifle in the Blackwoods' truckwith which he armed himself. When Edward entered the garage the next day, Langford pointed the rifle athim and ordered him to lie down on the floor. He then ordered Edward to call for Celene. When Celene came to the garage,he orderedher 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 lefther lying on the couch. While the couple remained tied up, he conversed mainly with Edward for a fewhours, asking Edward about his background and if he owned more guns. Edward told him that he owned several handguns, which were located in thebedroom. Langford then retrieved five or sixhandguns from thebedroom. 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. Shewouldn't die. 

### I shother in the side ofthe head, but the bitch didn't die.I1 He then slashed Celenels throat. When he left the Blackwoodslhome, he took the money from the Blackwoodslwallets, 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 Blackwoodslblue pickup truck. Police recovered this truck in Great Falls on July 7, 1988. Fingerprints taken from the truckmatched 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 startledhim. 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 cabdriverwho drove him to Indiana. Montana authorities had identified and listed the Blackwoods1handguns 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 StarMotel. 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 identificationwas made after an examination by a ballistics expert of the said pistol, the bullets recovered from the Blackwoodslbodies, and the shell casings found at the crime

scene. On August 12, 1988, Langfordwas 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 Langfordlsarrest 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 ofhisMiranda rights,Collings and McKay recorded Langford's statement whereinhe confessed thathewas responsible for the Blackwoodsldeaths. 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 thismotion based on one remark Langford made to him, which alluded to thepossibility that somethingwaswrong with him. The courtgranted thismotion. Langford remained atMontana State Hospital in Warm Springs for fifty-four days for the completion of a psychiatric evaluation. In the meantime, MacKay continued tomeet with Langford on a regular basis todiscusshis

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 appreciatingthe criminalityof his conduct. On January 5, 

### 1989, Langford entered pleas of guilty as chargedby the informationto: 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 shootingEdward Blackwood in thehead 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 thehead with a .22 caliberpistol and by slashingher 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 Blackwoodby using or threatening tousephysical force,with thepurpose of inflictingbodily injury on or terrorizing Edward Blackwood, by binding Edward Blackwood to a chair and shootingEdward 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) COUNTV: 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 Blackwoodby using or threatening touse physical force, with thepurpose 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 Blackwoodtsthroat, contrary to the form, force, and effect of Section 

### 45-5-303(1)(c), M.C.A. 1987. 5) 

### COUNTVII: 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 Blackwoodwith 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 thehead 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) COUNTVIII: ROBBERY

# - That on or about July 1, 

### 1988, in Ovando, Powell County, Montana, the defendant, in the course of committing the theft ofmoney, guns, and a vehicle from Edward and Celene Blackwood, knowingly inflicted bodily injuryupon Edward and Celene Blackwood by shooting Edward and Celene Blackwood in thehead 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, thedefendantpurposely 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, contraryto 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 Langfordtspleas, 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 Langfordtssentencinghearing on January 26, 1989,MacKay stated: As I previously indicatedat the lasthearing we had, the Defendant [Langford]has asked me to tell the Court that his decision in this case is to ask for thedeathpenalty. Hehas spent a lot of time with me. He has all of the informationthat I could givehim tomake a decision. He isbefore this Court indicating thathe is aware ofwhat his options are. He does not want to spend the rest of his life inprison. Hehaspled guilty to all of the charges that were leveled against him by the prosecutor, and he asks the Court to impose thedeathpenalty. At this sentencing hearing, Langford testified that he had no motive or remorse forkilling the Blackwoodsandwould kill again if provoked. Langford also testified that he was satisfiedwithMacKaylsservices, 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, fortyyears for robbery, tenyears for theft, and enhanced his sentence by ten years for using a dangerousweapon 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 Courtwas reviewing these death penalty sentencesunder 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 amotion towithdraw 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 "Thegranting or refusal of permission towithdraw 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 (citationomitted).

Analysis 1. Did Langford receive effective assistance of counsel in connection with his decision to plead guilty to the charged crimes? The State argues thatmost of Langford's allegations of fact regardinghis claim ofMacKaylsineffective 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 thehearing. 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 "toverify 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 Langfordlsmotion to withdraw his guilty pleas. We thereforewill consider this affidavit. Langford argues thatwhen he was arrested inNorth Carolina,

a police officer gave him a pre-printed waiver of rights form containinghisMiranda rights forhis signature. When thepolice 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 theNorth 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 apart 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 COMPLAINTNO.: PLACE: qBD &

. S/'k

# ud

HAW 29 1393 YOUR RIGHTS 

### --- M~$$/~~~~K~ Before we ask you any questions, you must understand yourrights: 5Y

- 1. You have the right toremain silentand not make any statements. 2. Anything you saycan and willbe used againstyou incourt. 3. You have theright totalktoa 1a;rler for advicebeforewe askyou anyquestions and tohave him ormyone elsewithyou duringquestioning. 4. Ifyou cannot afford a lawyer, one willbe appointed foryou by thecourt, before questioning ifyou wish. 5. Ifyou decidetoanswer questionsnow without a lawyerpresent, you willstillhave theri_nhttostopanswering atany time untilyou talktoa lawyer. 6. If you are a personwho ha3not reached hiseighteenth (18th)birthday, isnot aarried, emmcipated, oramemk-?r af thezrrned forces, you have a right tohave a parent, guardian orcustodimpresent during questior.ing.

I anwilling tomake a statement and answer questions, I donot a lewyer 2t thistime. I understand and know what I a~doing. No pronises orthreats have been made tome ad no pressure orcoercion of anykind has been used againstme by anyone. I have read orhad read tome thisstatementof my rights the abovewaiver of rights and I understaqdwhat my rights are.

IFYOU ARE A HEAXING IMPAIREDOR NON-E>,lGLISHSPEAKING PERSON: You may have a sign-laqwage orforeiwlan~age interpreter present duringquestio~inp. Ifyou donotknow orcannot afford an interpreter, onewillbe provided atnoexpense toyou. Ifyou understand allof your rights, please write on the lineirr-~ediately below, "Ihave 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 

# f4d6wd 

### F~L~~D %OB/ 03-/96C MAR2S1930 

## 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 toremain silcnt. Acything you say can and willbe used againstyou in court. You have the right to talk to a lawyer for advice beEorc we askyou any questions and tohave him withyou during questioning. If you cannot afford a lawyer, the courtwill appointone foryou before any questioning if you wish. If you decide toanswer questions now without a lawyer present, you stillhave the right to stopanswering atany time.

I.!AIVER OF RIGHTS I have read this statencntof my riohts and I understand what my rights are. I am willing tomake a statement and answer questions without an attorneyprqsent. No promises or threats have been made tome and no pressure orcoercion of any kind has been used against ne.

Sianed I, 

### ,,,,,A. /d' WITNESS IPI'INCSS TIYE EXHIBITLangford 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 defensepsychiatrist to assisthim in the evaluation ofhis defense. Langford's arguments lackmerit.Before analyzing Langfordvsarguments, 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 thedeathpenalty. Langfordvsarguments of ineffective counsel fail because Langford cannot satisfy the tests under Strickland v. Washington

(1984), 466U.S. 668, 104 S.Ct. 2052, 80L.Ed.2d 674,and Hill v. Lockhart (1985), 474U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203. The test in Strickland provides that to prove a claim of ineffective counsel, Ivadefendant must show that counselvsperformance 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 counselvsdeficient performance, the defendant would not have pled guilty lvandwould have insisted on going to trial." I Hill 474 U.S. at 59 (footnote omitted). Accord Statev. 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 counsellsunrivaled opportunity to study the record at leisure and cite different tactics of perhaps doubtfulefficacy. Statev. Martz (1988), 233 Mont. 136, 140, 760 P.2d 65, 68 (citationsomitted). I1Judicialscrutinyof counsellsperformance 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 counse18sperspective 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, 466U.S. at 689. Here, the record establishes that MacKaygsperformance was not deficient in the areas raised by Langford. Regarding the unsigned waiver of rights form, Igrefusingto sign a waiver of rights formwithout an attorney's guidance is not synonymouswith

an affirmative request for assistance of counsel." United States



### v. Eirin (11thCir. 1985), 778 F.2d 722, 728. See also United States v. McKinney (5th Cir. 1985), 758 F.2d 1036, 1045 (defendantfsrefusal to sign a waiver of rights formdid not automatically render further questioning illegal). Accordingly, even if MacKay would have requested this form during discovery, the form would not have constituted aviable 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 theNorth Carolina formtshandwritten statement I1Refusedto Sign." An attorneyhas no duty to investigate leads that do not appear to be fruitful. Harvey v. United States (8thCir. 1988), 850F.2d 388, 403. 

### SeealsoRoach

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 interviewa police officer about the arrest where counsel made an appropriate investigation based on information suppliedby thedefendant concerning statements to thepolice). The record, through MacKaytstestimony, 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 thatbefore Langford gave his confession,hewas 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 toMacKaytsperformance regarding theunsignedwaiver form. Regarding Langfordtsarguments 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 deathpenalty, the record again indicates thatMacKaylsperformance in these areas was not deficient. The record contains substantial evidenceproving thatMacKay provided effective counseling to Langford, including MacKaylstestimony 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 Lang

### ford of his legal options. Furthermore, it is important to note that MacKay was required to abideby Langfordlsdecisions, whichwere, at the time, to plead guilty to all charges and to request the deathpenalty. 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 topersuade 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. Langfordlschange of mind concerning his guilty pleas and having the death penalty imposed against him does not mean that MacKaylsperformance was deficient at a time when Langford had an oppositemind-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 Langfordlsvoluntary 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 thepossibility of filing amotion to suppress Langfordls confession and challenging Montana's death penalty statutes. Langford,however, told MacKay that unlessMacKay could guarantee him acquittal on the charges pending against him or could assure him thathe would spend littletime in prison, he wanted toplead guilty and be executed. MacKay told Langford that neither he nor any other responsible attorney couldmake 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 Langfordlsdecisions and exhibited no deficiency inhis performanceby 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-appointedpsychiatrist. In 

## m, the Court held that when a defendant has made a preliminary showing that his sanityat 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 thedefense. 

## m,470

### U.S. at 82. 

### The Court in

### Ake also noted, however, that a defendant's mental condition isnot necessarilyat 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 timedid Langford put hismental 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 inWarm Springs for a courtordered psychiatric evaluationbased upon a singleremarkhemade toMacKay during one of his first interviews. Langfordlsremark alluded to thepossibility that somethingwaswrong with him. TheMontana StateHospital psychiatric evaluation concluded, inter alia, that Langford suffered fromnomental 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 thathebelieved the evaluationwas 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 indicatethat a second evaluationwould have made a 

### difference in Langfordtspleas based on Langfordtsfirm 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. MacKaylsperformance was not deficient in this area. We thereforehold thatMacKayprovided Langfordwith effective assistance of counsel.

2. 

### Did the District Court impose the death sentencesunder the influence of passion, prejudice, or other arbitrary factors by relying in part on victim impact statements and on Langfordts failure todisplay 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 indicatethat 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 Statev. Keith (1988), 231Mont. 214, 754 P.2d 474 (holdingthat allegations of any such prejudice are speculative without any supportingevidence). 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 sentencewould 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 thevictims in this case aswell as that of their family, friendsand the community."

### Langford cites Booth v. Maryland (1987) 482 U.S. 496, 107 S.Ct. 2529, 96L.Ed.2d 440,whichheld that the jury's consideration of a victim impact statementviolated 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 considerationof victim impact statements if avictim 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 Langfordlslack 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 courtlsfindings, 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 courtmentioned lack of remorseaspart of the court's gener-

### a1 discussion of possible mitigating circumstances and not in connectionwith 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 substantialto call for leniency. See 

### State v. Kills On Top (Vern)

### , supra; State v. Kills On Top

(Lester), supra; Statev. Dawson, 

### supra. Even if the court had viewed Langford's lack of remorse as an aggravating factor, itwould 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 imposethedeath sentenceunder 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 ormore of the aggravating circumstances listed in 1 

### 46-18-303, MCA, 

### and if it determines that none of themitigating circumstances listed in 5 

### 46-18-304, MCA, are I1sufficiently substantial to call for leniency." Section46-18-305,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) 

### Langfordlspast drug use, 2) 

### Langfordlstroubled childhood centering around his hostility toward his mother, 3) 

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



### an evaluatorlsopinion that Langfordmay 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 adequatelydisclosed thebasis of its sentences in its findings and conclusions. We agree with the Statelsarguments. 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,theword "scheme"means a

### "planned undertakingn or a "systematic plan." See 

### Webster's Third New International Dictionary 2027 (16th ed. 1971). 

### This interpretation comportswith the interchangeableusage at law of the terms "scheme," 'lplan"and "system." See aenerally Statev. Keefe (1988), 232Mont. 258, 759 P.2d 128 (requiring, inter alia, proof of a "common scheme, plan or system1'prior to the admissibilityof 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 severaldays, subduingEdward by use of a riflewhen he walked into the garage onemorning, waiting for Celene to appear and then requiringher 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 thepassing of severalhours, shootingboth 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 kidnappingwhich resulted in thedeath of thevictims. 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 orholdinghim in a place of isolationorby using or threatening touse 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 thevictim 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 Langfordlsmurder of the Blackwoods and robbery of their pickup truck, weapons and money, was sufficient to constituteaggravatedkidnapping. The court found no mitigating circumstances existed except Langfordlslack of an extensivedocumented prior criminal record. The evidence supports the court's findings regarding mitigating circumstances. Nothing indicated that Langford was under the influence of extrememental or emotional disturbance, thathewas under extreme duress or the substantial domination of another person, that he was mentally incapacitated, that the victims participated in or consented tohis actions, or that Langfordwas

### merely an accomplice or under the age of eighteen at the time the Blackwoodswere killed inJuly of 1988. See !j 

### 46-18-304,MCA. To the contrary,Langfordwas on a camping trip,without any human contactwhatsoever 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 Blackwoods1homicides. Lastly, Langford stated he had not taken any drugs or alcohol at the time of thehomicides. 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 Statev. 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 thathe 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 tomerit 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 significancehad not the Constitutional Convention given thepeople 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 deathpenalty violates contemporary standards of decency. McKenzie, 171Mont. 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 ConstitutionalConvention exceeded its authoritywhen itplaced thedeathpenalty issue before thevoters as a ItsideissueHalong 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 lackmerit. Langford's reliance on Cashmore ismisplaced and he citesno 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 dowe believe thevoter informationpamphlet

was confusing. To the contrary, the people of Montana, through the 1972vote, clearlydisplayed theirdesire 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 violateMontana Constitution Article 11,Section 28.

5. Did the District Court excessively or disproportionately impose the deathpenalty 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 I1isexcessive 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), 174Mont. 174, 569 P.2d 383, on remand, 186Mont. 187, 606 P.2d 1343 (1980), cert. denied, 449 U.S. 891 (1980), revldon 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, 185Mont. 299, 605 P.2d 1000 (1979), cert. denied, 446 U.S. 970 (1980), revldon other crrounds, 874 F.2d 1280 (9th Cir. 1989), cert. denied, 110 S.Ct. 349 (1989); State v. McKenzie (1976), 171Mont. 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 (9thCir. 1988), cert. denied, 488U.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 sentencewas not disproportionateor 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 timehe 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 DistrictCourt with orders to set a new date of execution of the death sentences imposed upon Terry Allen Langford.

Chief Justice ,/

V We concur: