No. 92-149 and 92-133 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsRONALD ALLEN SMITH, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Douglas G. Harkin, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

William F. Hooks (argued), Appellate Defender 

Office, Helena, Montana 

For Respondent: 

Hon. Joseph P. Mazurek, Attorney General, Elizabeth 

L. Grif f ing (argued) , Ass 't Attorney General, 

Helena, Montana 

Thomas J. Esch, Flathead County Attorney, Kalispell, 

Montana 

Filed: 

Submitted: May 27, 1993 

Decided: November 9, 1993 
Justice Karla M. Gray delivered the Opinion of the Court. 

Ronald Smith appeals from the Findings of Fact, Conclusions of 

Law, Order and Judgment entered by the Eleventh Judicial District 

Court, Flathead County, imposing the death penalty. We reverse and 

remand for resentencing. 

We consider the following issues on appeal: 

1. Did the District Court violate Smith's Fifth Amendment, 

Sixth Amendment or due process rights by considering Stratford's 

report and testimony? 

2. Did the District Court violate Smith's Fifth Amendment or 

Sixth Amendment rights by considering the 1983 presentence 

investigation report? 

3. Did the District Court err by failing to order a current 

presentence investigation report? 

4. Did the District Court err by finding the existence of 

aggravating factors set forth in 5 46-18-303(5) and (7), MCA? 

5. Does Montana's death penalty statute constitutionally 

allocate the burden of proving aggravating and mitigating 

circumstances? 

6. Did the District Court err by adopting verbatim the 

State's proposed findings of fact and conclusions of law? 

7. Did the District Court err by filing its written findings 

of fact one week after orally imposing the death penalty? 

8. Did the District Court err by excluding evidence of 

mitigating circumstances? 

9. Did the District Court Judge assigned to hear the 

disqualification proceedings err by denying the motion to 

disqualify the sentencing judge? 

A claim of ineffective assistance of counsel was raised on appeal, 

but subsequently withdrawn. 

This appeal results from the third sentencing of Ronald Smith 

(Smith) for his participation in the kidnapping and deliberate 
homicide of Thomas Running Rabbit, Jr., and Harvey Mad Man, Jr. 

The factual background of these offenses is set forth in State v. 

Smith (1985), 217 Mont. 461, 705 P.2d 1087; reh'q denied, State v. 

Smith (1985), 217 Mont. 453, 705 P.2d 1110; cert. denied, Smith v. 

Montana (1986) , 474 U. S. 1073, 106 S. Ct. 837, 88 L. Ed. 2d 808 (Smith 

I) . 

At his February 1983 arraignment, Smith pled guilty to two 

counts each of deliberate homicide and aggravated kidnapping. He 

presented no evidence of mitigating circumstances and requested the 

death penalty. In March of 1983, the district court found Smith 

guilty of the offenses and imposed the death sentence. 

In April of 1983, Smith moved for reconsideration of the 

sentence and for a psychiatric examination to establish mitigating 

circumstances. At a hearing on the motions held in May of 1983, 

Smith testified that he had committed the offenses under the 

influence of alcohol and drugs and, therefore, that his state of 

mind constituted one or more of the mitigating circumstances 

specified in 9 46-18-304, MCA. 

The district court granted the motion for a psychiatric 

examination and appointed Dr. William Stratford (Stratford), a 

psychiatrist, to determine whether Smith's May 1983 testimony was 

credible in light of his previous failure to assert mitigating 

circumstances. The court also directed Stratford to assume that 

the testimony was true and to offer an opinion on whether: 1) 

Smith's mental state was affected by the consumption of alcohol and 

drugs; 2) his capacity to appreciate the criminality of his conduct 
was impaired: and 3) his actions were influenced by extreme 

emotional or mental distress. Stratford filed his report in 

September of 1983, concluding that he could not determine the 

veracity of the testimony and that none of the specified mitigating 

circumstances existed. 

In December of 1983, smith moved for an additional psychiatric 

evaluation to develop other mitigating circumstances. He asserted 

that the court biased Stratford by questioning the veracity of his 

statements and improperly limited the scope of Stratford's 

evaluation. The court denied the motion and, in February of 1984, 

reimposed the death sentence. We affirmed the conviction and 

sentence in Smith I. 

Smith then petitioned for federal habeas corpus relief, which 

was denied. Smith appealed to the United States Court of Appeals 

for the Ninth Circuit. The Ninth Circuit held that the appointment 

of Stratford did not comply with the requirements of Ake v. 

Oklahoma (1985), 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53, and, 

therefore, that it violated Smith's right to due process. Smith v. 

McCormick (9th Cir. 1990), 914 F.2d 1153, 1158-59. The Ninth 

Circuit remanded the matter to federal district court with 

instructions to grant the writ unless the state district court 

appointed a defense psychiatrist and conducted a new sentencing 

hearing. The district court subsequently appointed Dr. Noel Hoell 

(Hoell), a psychiatrist; Shawn Trontel (Trontel), a social worker; 

David Vance (Vance), a sentencing consultant; and Dr. Lawrence 

Halpern (Halpern), a pharmacologist, to assist Smith in preparing 
for the sentencing hearing. 

After substitution of the original sentencing judge, Smith's 

third sentencing hearing was held on January 14, 1992. Hoell, 

Trontel, Vance and Halpern testified on his behalf. The District 

Court denied Smith's motion to preclude Stratford's testimony and 

report after the State agreed to use the evidence only to rebut 

mitigating circumstances. 

Following the hearing, Smith moved to disqualify the presiding 

judge. Smith asserted that the judge made a statement to a defense 

witness which evidenced personal bias. Judge Robert Boyd was 

assigned to preside over the disqualification proceedings and 

subsequently denied Smith's motion. 

On March 13, 1992, the District Court orally imposed the death 

sentence after finding two aggravating factors set forth in § 46- 

18-303, MCA, and determining that the mitigating evidence Smith 

presented was not sufficiently substantial to call for leniency. 

The court filed findings of fact, conclusions of law, order and 

judgment consistent with its bench ruling on March 20. 

Smith's appeal from the sentencing order is denominated as 

Cause No. 92-149. The statutory automatic review of the death 

sentence is denominated as Cause No. 92-133. The two causes have 

been consolidated by order of this Court. Because we are remanding 

for resentencing, we do not address the issues encompassed in an 

automatic review of the death sentence. 

Did the District Court violate Smith's Fifth Amendment, Sixth 

Amendment or due process rights by considering Stratford's report 

5 
and testimony? 

FIFTH AMENDMENT 

Smith asserts that he was not advised of his right to remain 

silent when interviewed by Stratford in 1983. On that basis, he 

contends that his Fifth Amendment privilege against selfincrimination was violated by the District Court's reliance on 

Stratford's report and testimony to establish aggravating factors 

and rebut mitigating evidence. He relies on Estelle v. Smith 

(l98l), 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359. The State 

contends that this issue was raised and rejected in Smith I and, 

therefore, that it is barred by the law of the case doctrine. 

The Fifth Amendment argument raised by Smith in the case 

before us is not the precise argument raised in Smith I. There, he 

contended that Stratford's inquiry into the credibility of his May 

1983 statements violated his privilege against self-incrimination 

under Estelle because he did not request his credibility to be 

examined, Smith I, 705 P.2d at 1100-01. Here, Smith's Fifth 

Amendment argument focuses on the alleged use of Stratford's report 

and testimony to establish aggravating factors and rebut mitigating 

factors. Thus, Smith is not technically barred from raising the 

argument by the law of the case doctrine. 

Smith's Fifth Amendment argument in the case before us, 

however, is flawed in the same respect as his argument in Smith I. 

In Smith I, we distinguished the circumstances surrounding Smith's 

psychiatric examination from those in Estelle, The Fifth Amendment 
violation in Estelle arose from the state's use of a defendant's 

statements elicited at a court-ordered competency examination. We 

determined that Smith had waived his Fifth Amendment privilege 

regarding statements made during Stratfordfs interview because, 

unlike the Estelle defendant, he initiated the psychiatric 

examination. Thus, no compelled testimony was placed before the 

court. Furthermore, we observed that Smith had access to the 

advice of counsel prior to the psychiatric examination. Smith I, 

705 P.2d at 1101. 

The waiver of Smith's Fifth Amendment privilege applies 

whether the statements made during the course of the psychiatric 

examination are used to challenge Smith's credibility or to 

establish aggravating circumstances and rebut mitigating 

circumstances. There is simply no basis for Smith's argument that 

the statements made during Stratford's examination, which he 

requested, were compelled against his will. We conclude that the 

District Court's consideration of the Stratford report and 

testimony did not violate Smith's Fifth Amendment privilege against 

self-incrimination. 

SIXTH AMENDMENT 

Smith asserts that the State used Stratfordrs report and 

testimony to establish aggravating factors and rebut mitigating 

circumstances, exceeding the scope of the examination as set forth 

by the District Court. On that basis, he argues that he was not 

able to effectively consult with his attorney in preparation for 
the examination, violating his Sixth Amendment right to counsel 

under Estelle and Powell v. Texas (1989), 492 U.S. 680, 109 S.Ct. 

3146, 106 L.Ed.2d 551. The State contends that Smith had the 

opportunity to consult with his attorney prior to the psychiatric 

examination and that Estelle placed Smith's counsel on notice that 

the results of the psychiatric examination could be used to rebut 

mitigating circumstances. 

In Estelle and Powell, the defendants were ordered to submit 

to psychiatric examinations to determine their competency to stand 

trial. After conviction, however, the prosecution presented 

evidence obtained at the examinations at the penalty phase of the 

proceedings to establish the defendants' future dangerousness--a 

statutory prerequisite for imposing the death penalty in Texas. 

Texas' "future dangerous" requirement is analogous to the 

aggravating factors required in Montana for imposition of the death 

penalty. 

The United States Supreme Court determined that because the 

defendants' counsel had not been informed that the psychiatric 

examinations would encompass the issue of future dangerousness, the 

defendants' Sixth Amendment right to counsel had been violated. 

Powell, 492 U.S. at 685-86; Estelle, 451 U.S. at 470-71. The 

Supreme Court reasoned that, because the psychiatric examinations 

exceeded the scope of the courts' orders, the defendants were 

denied the assistance of their counsel in determining whether to 

submit to the examination and in ascertaining the prosecution's 

possible use of its results. Estelle, 451 U.S. at 471. 
Here, the State did not use Stratford's report and testimony 

to establish aggravating factors. At the January 14, 1992, 

sentencing hearing, the court denied Smith's motion in limine to 

exclude the Stratford evidence after the State agreed to limit its 

use of that evidence to rebutting Smith's evidence of mitigating 

circumstances. The prosecution presented its case for aggravating 

circumstances; it did not rely on the psychiatric evidence in any 

way to establish the aggravating factors. Smith then presented his 

case for mitigation, and the State presented the Stratford evidence 

in rebuttal. The record reflects a diligent effort by the State to 

confine its use of the Stratford material to rebutting Smith's 

psychiatric evidence of mitigating factors. 

It is true that the District Court cited to Stratford's report 

to support several of its findings relating to the statutory 

aggravating factors. However, the report did not serve as the 

court's sole support for any of the findings. In each instance, 

the citation to Stratford's report merely supplemented preceding 

citations to other evidence presented during the State's case for 

aggravating circumstances. 

Nor did the State's use of the psychiatric evidence to rebut 

mitigating circumstances exceed the scope of the court-ordered 

examination. Stratford was appointed by the court during the 

sentencing phase to resolve Smith's conflicting testimony 

concerning mitigating circumstances, and to offer an opinion on the 

existence of three specified mitigating circumstances. Clearly, 

the focus of the psychiatric examination was to evaluate mitigating 
circumstances for the purposes of sentencing. Smith's counsel 

could have advised Smith of the State's possible use of the 

evidence obtained. 

In sum, the State's use of Stratford's report and testimony 

was qualitatively different from the prosecution's use of the 

psychiatric evidence in Powell and Estelle; it was not relied on to 

resolve any issue outside the scope of the court's order for the 

psychiatric examination. We conclude that Smith's Sixth Amendment 

right to counsel was not violated by the District Court's 

consideration of the Stratford report and testimony. 

DUE PROCESS 

Smith also contends that the District Court's consideration of 

Stratford's report and testimony violated his due process rights, 

relying on Smith v. McCormick (9th Cir. 1990) , 914 F. Zd 1153, 1160. 

The State contends that the due process error found by the Ninth 

Circuit has been cured by the appointment of an independent 

psychiatrist and three other experts to assist Smith in preparing 

for the resentencing hearing. 

When an indigent defendant places his mental state at issue, 

either at trial or at a sentencing hearing, the state must assure 

the defendant access to a competent psychiatrist who will conduct 

an appropriate examination and assist in the evaluation, 

preparation and presentation of defendantfs case. m, 470 U.S. at 

83-84. In Smith v. McCorrnick, the Ninth Circuit determined that 

Stratford's appointment and his psychiatric examination of Smith 
fell short of s due process requirements. Because the 

sentencing court limited the psychiatric examination and required 

Stratford to report directly to the court, Smith did not have the 

opportunity to discuss the results with Stratford or to explore 

other more favorable mitigating circumstances, which compromised 

his ability to present his claims. McCormick, 914 F.2d at 1159. 

This due process flaw was cured by the District Court's 

subsequent appointment of Hoell, Trontel, Vance and Halpern. They 

were available to provide psychiatric assistance in preparing 

Smith's case for mitigation prior to the January 14, 1992, 

sentencing hearing. These experts could--and did--assist Smith in 

evaluating the mitigating circumstances addressed by Stratford to 

determine, as a threshold matter, whether to place those issues 

before the court. Additionally, their assistance afforded Smith 

the opportunity to develop additional mitigating circumstances. 

We hold that the District Court's consideration of 

Stratford's report and testimony did not violate Smith's Fifth 

Amendment, Sixth Amendment or due process rights. 

Did the District Court violate Smith's Fifth or Sixth 

Amendment rights by considering the 1983 presentence investigation 

report? 

FIFTH AMENDMENT 

Smith asserts that he was not advised of the right to remain 

silent when interviewed by probation officer Jerrold Cooley 

(Cooley) in 1983. On that basis, he contends that the sentencing 

court violated his Fifth Amendment privilege against self- 
incrimination when it relied on Cooley's testimony and presentence 

investigation report, citing Estelle. We considered and rejected 

this same argument in Smith I. We determined, in part, that 

Smith's statements made during the presentence interview were 

voluntary, and distinguished Estelle based on the absence of 

compelled testimony. Furthermore, we determined that the 

presentence investigation report was cumulative as Smith's own 

testimony confirmed the substance of the report. Smith I, 705 P. 2d 

at 1094. 

Under the doctrine of law of the case, a prior Montana Supreme 

Court decision resolving a particular issue between the same 

parties in the same case is binding and cannot be relitigated in a 

subsequent appeal. State v. Van Dyken (1990), 242 Mont. 415, 425- 

26, 791 P.2d 1350, 1356. Here, the doctrine clearly precludes 

Smith from reasserting this argument. 

Smith asserts that this doctrine is merely a rule of 

procedure, not a mandatory rule of law, and should not be applied 

if the result is unjust. Smith argues that application of the 

doctrine is unjust because it precludes consideration of subsequent 

United States Supreme Court and Circuit Courts of Appeal decisions 

that have refined Estelle. However, the only subsequent case 

relied on by Smith is Powell v. Texas (l989), 492 U.S. 680, 109 

S-Ct. 3146, 106 L.Ed.2d 551. Smith does not articulate a specific 

refinement that might justify a different result than that reached 

in Smith I, nor do we find one. Therefore, we decline to address 

anew Smith's Fifth Amendment argument. 
SIXTH AMENDMENT 

Smith asserts that a presentence interview in a capital 

offense is a critical stage in the proceedings, relying on State v. 

Robbins (1985), 218 Mont. 107, 708 P.2d 227, and Bullington v. 

Missouri (1981), 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270. He 

then argues that the District Court relied on his 'tuncounselledH 

statements made during the presentence investigation interview to 

impose the death penalty, violating his Sixth Amendment right to 

counsel. The State contends that Smith was represented by counsel 

prior to the presentence interview and had ample opportunity to 

consult with his attorney regarding the presentence investigation 

and the possible uses of the resulting report. 

Even if preparation of the presentence investigation is viewed 

as a "critical stageN of the proceedings, we conclude that Smith's 

Sixth Amendment right to counsel was not violated under the Supreme 

Court's Estelle analysis. As detailed earlier, the defendant's 

right to counsel was violated in Estelle because the psychiatric 

examination exceeded the scope of the court's order. The 

defendant's attorney had not been notified in advance that the 

psychiatric examination would include the issue of "future 

dangerousness," denying the defendant the assistance of his 

attorney in making the significant decision of whether to submit to 

the examination. Estelle, 451 U.S. at 471. 

The case before us provides no basis for finding a Sixth 

Amendment violation relating to the presentence investigation 

report. Smith was represented by counsel at the February 1983 
arraignment at which he entered his guilty pleas and requested the 

death penalty. At the arraignment's conclusion, the District Court 

scheduled a Ifhearing in aggravation or mitigation of sentencef1 and 

ordered a presentence investigation and report to be submitted 

prior to the hearing. Thus, Smith and his attorney knew in advance 

that a presentence investigation had been ordered and that the 

ensuing report would be used in connection with aggravating and 

mitigating circumstances at the sentencing hearing. Smith was 

aided by the "guiding hand of counsel11 in preparing for the 

presentence investigation. Estelle, 451 U.S. at 471. 

We hold that the District Court did not violate Smith's Sixth 

Amendment right to counsel by considering the presentence 

investigation report. 

Did the District Court err by failing to order a current 

presentence investigation report? 

Smith argues that the District Court erred by relying on the 

presentence investigation report prepared in 1983. The State 

contends that the District Court properly relied on the 1983 

report, asserting that Smith did not request a current report and 

that the court did not have a duty to order one sua sponte. 

Montana law generally requires the District Court to order a 

current presentence report prior to sentencing in felony cases. 

The circumstances under which a presentence investigation report is 

required are governed by 5 46-18-111, MCA, which provides in part: 

Presentence investigation - when required. (1) Upon the 

acceptance of a plea . . of guilty to one or more 

felony offenses, the district court shall direct the 

probation officer to make a presentence investigation and 
report . . . . 

(2) If the court finds that the record contains 

information sufficient to enable the meaningful exercise 

of discretion during sentencing, the defendant may waive 

a presentence investigation and report. Both the finding 

and the waiver must be made in open court on the record. 

Thus, absent certain circumstances, 46-18-111, MCA, places an 

affirmative duty on the court to order a presentence investigation 

report in felony cases. A defendant is under no obligation to 

request the report. 

Nor do the statutory circumstances under which a court may 

decline to order a presentence investigation report exist here. As 

set out above, those circumstances require a finding by the court 

and a waiver by the defendant. Section 46-18-111(2), MCA. The 

District Court did not make the requisite finding here. In any 

event, and more importantly, Smith did not waive the investigation 

and report pursuant to the statute. We conclude, therefore, that 

the District Court was required to order the preparation of a 

current presentence investigation and report. 

The State contends that the testimony of Vance, the probation 

officer appointed to assist Smith, served as an adequate substitute 

for a current presentence report. We disagree. The statute does 

not permit a tlsubstitutett report by a llsubstitute" probation 

officer. Vance was appointed by the court to assist Smith in 

preparing his defense. Whatever the extent and quality of Vance's 

work, it does not constitute an official presentence investigation 

and report, prepared by a probation officer, as required by 5 46- 

18-111, MCA, and containing a11 information mandated by 5 46-18- 
112, MCA. 

The stated thrust of Chief Justice Turnagels dissent is the 

concern that our decision on this issue Ifwould seem to allow 

consideration of post-offense aqsravatins circumstances in a 

resenten~ing.~~ (Emphasis added.) Nothing could be further from 

the truth, as a reading of the statutes set forth by the dissent 

makes clear. 

Section 46-18-303, MCA, enumerates the aggravating 

circumstances which can result in imposition of the death penalty 

by a Montana court. The listed aggravating circumstances are both 

specific and exhaustive; each either exists or does not exist as of 

the moment of the offense. No other facts or evidence can 

constitute an aggravating circumstance under Montana law. 

Section 46-18-304, MCA, on the other hand, sets forth 

circumstances which may mitigate against imposition of the death 

penalty. The statute begins by listing, much as the aggravating 

circumstances statute does, specific mitigating circumstances. 

Seven of the eight mitigating circumstances relate directly to the 

offense itself, the defendant's participation in that offense, or 

the time at which the offense occurred. See §§ 46-18-304(1)-(7), 

MCA . 

Critically important here, however, statutory mitigating 

circumstances also include I1[a]ny other fact that exists in 

mitigation of the penalty." Section 46-18-304(8), MCA. This 

enormously broad "catch-allt1 mitigating circumstance reflects the 

legislature's clear intent to permit a defendant to raise any and 
all facts and evidence which might mitigate against the death 

penalty. It also corresponds to Montana's sentencing policy, 

reflected in 5 46-18-112 (1) (a) , MCA, which reauires inclusion in a 

presentence investigation report of "the defendant's 

characteristics, circumstances, needs, and potentialities." 

Nothing in the language of 5 46-18-304(8), MCA, supports the 

dissent's theory that mitigating evidence of conduct subsequent to 

the offense cannot be offered and received during a sentencing 

hearing the result of which may be imposition of the death penalty. 

Furthermore, as discussed in issue 8, the dissent's theory 

that post-conviction conduct is not relevant mitigating evidence 

flies in the face of both controlling precedent from the United 

States Supreme Court and the Ninth Circuit Court of Appeals' 

decision in Smith v. McCormick (9th Cir. l99O), 914 F.2d 1153, 

which resulted in the resentencing at issue here. The United 

States Supreme Court has made it clear that a sentencing court in 

a capital case must consider any and all relevant mitigating 

evidence. Lockett v. Ohio (l978), 438 U.S. 586, 98 S.Ct. 2954, 57 

L.Ed.2d 973. The Supreme Court defines relevant mitigating 

evidence to include post-offense conduct during incarceration. 

Skipper v. South Carolina (1986), 476 U.S. 1, 106 S.Ct. 1669, 90 

L.Ed.2d 1. In addition, on habeas corpus review of Smith's prior 

sentencing, the Ninth Circuit stated without equivocation that such 

factors as Smith's admission of guilt, his contrition and his 

commitment to rehabilitation "were all clearly relevant as 

mitigating evidence.l1 Smith, 914 F.2d at 1164. The factors which 
the Ninth Circuit specifically found relevant as mitigating 

evidence were post-offense matters. 

The dissent Is theory of what is, and what is not, relevant 

mitigating evidence is not legally supportable, As a practical 

matter, therefore, adoption of that theory would ensure yet another 

resentencing following Smith's next trip to the Ninth Circuit. 

We hold that the District Court erred by failing to order a 

current presentence investigation and report upon resentencing. 

Did the District Court err by finding the existence of 

aggravating factors set forth in 5 46-18-303(5) and (7), MCA? 

The District Court found that two aggravating factors set 

forth in 5 46-18-303 (5) and (7) , MCA, were present. Section 46-18- 

303, MCA, provides in pertinent part: 

Aggravating circumstances. Aggravating circumstances are 

any of the following: 

(5) The offense was deliberate homicide and was committed 

as a part of a scheme or operation which, if completed, 

would result in the death of more than one person. 

(7) The offense was aggravated kidnapping which resulted 

in the death of the victim or the death by direct action 

of the defendant of a person who rescued or attempted to 

rescue the victim. 

Smith advances several challenges to the ~istrict Court's 

finding of these aggravating circumstances. We first argues that 

3 46-18-303(5), MCA, fails to establish the precise conduct which 

constitutes a Ifscheme or operationN and, as a result, does not 
limit the sentencing judge's discretion to impose the death 

sentence as required by Gregg v. Georgia (1976) , 428 U. S. 153, 192- 

95, 96 S.Ct. 2909, 2934-35, 49 L.Ed.2d 859, 885-87 (citing Furrnan 

v. Georgia (1972), 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346.) 

It is true that each statutory aggravating circumstance must 

satisfy a constitutional standard derived from Fuman; the 

aggravating circumstance cannot be so vague that it fails to 

I1channelu the discretion of the sentencing court, resulting in 

arbitrary and capricious sentencing. Zant v. Stephens (1983), 462 

U.S. 862, 876-77, 103 S.Ct. 2733, 2742, 77 L.Ed.2d 235, 249-50. 

The aggravating circumstance must Iqgenuinely narrow the class of 

persons eligible for the death penalty and must reasonably justify 

the imposition of a more severe sentence on the defendant compared 

to others found guiltyH of the predicate offense. Zant, 462 U.S. 

at 877. 

We conclude that S 46-18-303 (5), MCA, satisfies this 

constitutional standard by narrowing the class of persons eligible 

for the death penalty in two respects. First, the provision 

requires that the offense of deliberate homicide be committed as 

part of a scheme or operation. We have defined the word nschemell 

as used in the statute to mean a Ifplanned undertakingu or a 

I1systematic plan." State v. Langford (1991), 248 Mont. 420, 438, 

813 P. 2d 936, 950. While the word has not been defined 

in the context of this statute, we believe it to be interchangeable 

with the term lfscheme. See Lanqford, 813 P.2d at 950. Section 

46-18-303(5), MCA, further narrows the class of persons eligible 
for the death sentence by requiring that the scheme or operation 

contemplate the death of more than one person. 

Smith also contends that the District Court erred in finding 

that he committed aggravated kidnapping which resulted in the death 

of the victim, the aggravating circumstance set forth in 5 46-18- 

303(7), MCA. His aggravated kidnapping conviction was based on 

forcing Thomas Running Rabbit and Harvey Mad Man at gun point to 

enter into a forested area where the homicides occurred. He 

asserts that unlawful confinements or movements incidental to the 

commission of another felony do not constitute kidnapping, relying 

on State v. Anthony (Tenn. 1991), 817 S.W.2d 299. 

We find no support for Smith's position in Anthonv. That 

case, and the authorities upon which it relied, addressed the 

propriety of a Rkidnappingw conviction when the conduct 

constituting the plkidnappinglt was incidental to, and inherent in, 

another offense, such as robbery, rape or assault. Anthony, 817 

S.W.2d at 303-06. 

Furthermore, the thrust of Smith's argument challenges his 

conviction for aggravated kidnapping, rather than asserting error 

by the District Court in sentencing him. Smith was charged with 

two counts of aggravated kidnapping. He pled guilty to and, as a 

result, was convicted of these charges. He did not appeal his 

conviction. Thus, his argument that his conduct did not constitute 

aggravated kidnapping forthe purpose of establishing an aggravated 

circumstance is without merit. 

Finally, Smith contends that the District Court erred by using 
the death of Thomas ~unning ~abbit and Harvey Mad Man as both a 

predicate felony under 5 46-18-303(5), MCA, and an aggravating 

factor under 5 46-18-303(7), MCA. He asserts that when used as an 

aggravating factor under 5 46-18-303 (7) , MCA, the homicide offense 

does not narrow the class of persons eligible for the death penalty 

who have committed both predicate felonies of deliberate homicide 

and aggravated kidnapping. 

The obvious flaw in Smithf s argument is its suggestion that an 

aggravating factor is required to narrow the class of persons who 

have committed two predicate felonies, a position for which he 

cites no supporting authority. The aggravating factors set forth 

in 5 46-18-303, MCA, are independent of each other. Each one, by 

itself, is sufficient to justify the sentencing court's imposition 

of the death penalty. Section 46-18-305, MCA. Under 5 46-18- 

303 (51, MCA, the requirement that the deliberate homicide be 

committed as part of a scheme or operation which, if completed, 

would result in the death of more than one person is the 

aggravating factor which narrows the class of persons who have 

committed the predicate felony of deliberate homicide. The death 

of the victim is the aggravating factor which narrows the class of 

persons who have committed the predicate felony of aggravated 

kidnapping under 5 46-18-303(7), MCA. See State v. Keith (1988), 

231 Mont. 214, 754 P.2d 474. 

Smith was charged with, and pled guilty to, both aggravated 

kidnapping and deliberate homicide. The District Court determined 

that aggravating factors relating to each offense existed, 
complying with the constitutional mandates of Zant. We conclude 

that Smith's conviction of both felonies does not prohibit the 

District Court from imposing the death sentence under either 

subsection (5) or (7) of 5 46-18-303, MCA. 

We hold that the District Court did not err in finding the 

existence of the aggravating circumstances set forth in 5 46-18- 

303(5) and (7), MCA. 

Does Montana's death penalty statute constitutionally allocate 

the burden of proving aggravating and mitigating circumstances? 

Smith advances a number of arguments concerning the burdens of 

proof required to establish aggravating and mitigating 

circumstances and the standard by which the district court weighs 

them. He first argues that the State's burden of proving 

aggravating circumstances and the defendantrs burden of proving 

mitigating circumstances are not set forth in 59 40-18-303 and - 

304, MCA. He also argues that 5 46-18-305, MCA, fails to establish 

the standard to govern the district court's consideration of them. 

Without citing authority, Smith contends that the failure to set 

forth explicit burdens of proof and standards may result in the 

arbitrary and capricious imposition of the death sentence or 

exclude mitigating evidence, violating Grem v. Georclia and Lockett 

v. Ohio (1978), 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973. We 

disagree. 

Section 46-18-305, MCA, requires a district court to impose 

the death penalty if it "finds one or more of the aggravating 

circumstances and finds that there are no mitigating circumstances 
sufficiently substantial to call for leniency." This provision 

places the burden on the defendant to establish mitigating 

circumstances justifying a sentence less severe than the death 

penalty. Fitzpatrick v. State (l98l), 194 Mont. 310, 328, 638 P.2d 

1002, 1013. 

We held in Fitz~atrick that this allocation of the burden of 

proof was constitutionally sound. Because mitigating factors are 

pertinent only to punishment and do not bear on a defendant's guilt 

or constitute an element of a crime, we determined that it was 

constitutionally permissible to place the burden of proving them on 

the defendant. Fitmatrick, 638 P.2d at 1013. We are not 

persuaded by any of Smith's arguments urging us to find 

constitutional error in the allocation of burdens of proof. 

Subsequent to Fitzpatrick, the United States Supreme Court 

reached the same conclusion. In Walton v. Arizona (1990) , 497 U.S. 

639, 110 S.Ct. 3047, 111 L.Ed.2d 531, the Supreme Court opined that 

a state does not violate a defendant's constitutional rights by 

placing the burden of proving mitigating circumstances sufficiently 

substantial to call for leniency on the defendant so long as the 

state retains the burden of proving every element of the offense 

and the existence of an aggravating circumstance. Walton, 497 U.S. 

at 650. 

Nor do we conclude that 5 46-18-305, MCA, is constitutionally 

flawed because it fails to establish a standard governing the 

district court's weighing of the aggravating and mitigating 

factors. In Zant, the defendant challenged a Georgia capital 
sentencing provision which, like 5 46-18-305, MCA, did not set 

forth specific standards governing the sentencing jury's 

consideration of aggravating and mitigating circumstances. The 

defendant argued that, by failing to limit the sentencing j uryr s 

discretion, the provision allowed the arbitrary and capricious 

imposition of the death sentence, The Supreme Court declined to 

find constitutional error based on the lack of such standards. 

Zant, 462 U.S. at 875. 

Smith also argues that § 46-18-305, MCA, violates due process 

and the prohibition against cruel and unusual punishment, relying 

on People v. Young (Colo. 1991), 814 P.2d 834. Younq provides no 

support here. The death penalty provision at issue in Younq 

required a jury to impose a capital sentence where the mitigating 

factors did not outweigh the aggravating factors. The Colorado 

Supreme Court determined that the provision violated the 

prohibition against cruel and unusual punishment and the due 

process clause contained in the Colorado constitution because the 

provision mandated a capital sentence even if the aggravating and 

mitigating factors were of equal weight. Younq, 814 P.2d at 846- 

47. 

Section 46-18-305, MCA, requires imposition of the death 

penalty if the court finds one or more aggravating circumstance and 

no mitigating circumstances sufficiently substantial to call for 

leniency. Unlike the Colorado provision, it does not require the 

death sentence to be imposed if the aggravating and mitigating 

factors are of equal weight. Thus, Younq provides no basis for 
finding § 46-18-305, MCA, unconstitutional. 

We hold that Montana's death penalty statute does not 

unconstitutionally allocate the burden of proving mitigating and 

aggravating circumstances. 

Did the District Court err by adopting verbatim the State's 

proposed findings of fact and conclusions of law? 

Smith contends that the District Court failed to satisfy its 

duty to weigh aggravating and mitigating circumstances under 5 46- 

18-305, MCA, by its verbatim adoption of the Staters proposed 

findings. He relies on Patterson v. State (Fla. 19871, 513 So.2d 

1257, 1261, in which the Florida Supreme Court found that a trial 

judge's delegation of the responsibility to prepare the sentencing 

order to the prosecution following oral imposition of the death 

sentence violated his statutory duty to "independently weigh1' 

aggravating and mitigating circumstances. 

We have previously expressed our displeasure with a district 

court's verbatim adoption of proposed findings. This is especially 

true when the district court is statutorily charged with weighing 

aggravating and mitigating factors in a matter so grave as the 

imposition of the death penalty. However, findings adopted in such 

a manner are not so inherently flawed that the prevailing party 

must be reversed. Sawyer-Adecor v. Intfl Auglin (1982), 198 Mont. 

440, 447, 646 P.2d 1194, 1198. Findings and conclusions that are 

sufficiently comprehensive and pertinent to the issues to provide 

a basis for decision and are supported by evidence will not be 

overturned simply because the trial court relied on proposed 

25 
findings and conclusions submitted by counsel. In re the Marriage 

of Hagemo (1988), 230 Mont. 255, 260, 749 P.2d 1079, 1082-83. 

We hold that the District Court did not err by adopting the 

State's proposed findings of fact and conclusions of law. 

Did the District Court err by filing its written findings of 

fact one week after orally imposing the death penalty? 

Smith contends that the District Court erred by filing its 

written findings one week after it orally imposed the death 

sentence. Smith relies on Christopher v. State (Fla. 1991), 583 

So.2d 642, in which the Florida Supreme Court vacated a death 

sentence because the sentencing judge filed the written sentencing 

order two weeks after sentencing. Smith asserts that S 46-18-306, 

MCA, is similar to the Florida death penalty statute at issue in 

Christopher; both require written findings to be filed. On that 

basis, he contends that the same result must apply here. We 

disagree. 

The Florida Supreme Court vacated the death sentence in 

Christopher based on a previously established procedural rule that 

required written orders to be filed concurrently with an oral 

pronouncement of the death penalty; failure to comply with the rule 

resulted in a remand for imposition of a life sentence. 

Christopher, 583 So.2d at 647. We have not established such a 

procedural rule in Montana. 

The requirement that the district court issue written findings 

regarding the existence of aggravating factors and mitigating 

circumstances is set forth in 3 46-18-306, MCA. No language in 

2 6 
that provision requires the court to file its written findings 

concurrently with its oral imposition of the death sentence. When 

construing statutes, we simply ascertain and declare what is in 

terms or in substance contained therein; we do not insert what has 

been omitted. Section 1-2-101, MCA. Absent a statutory 

requirement, we decline to require Montana courts to file written 

findings contemporaneously with an oral imposition of the death 

penalty. 

We hold that the District Court did not err in filing its 

written findings one week after it imposed the death sentence. 

Did the District Court err by excluding evidence of mitigating 

circumstances? 

Smith asserts that the District Court "excluded from 

considerationtt mitigating evidence concerning his good conduct 

while incarcerated, his abusive family background, and his 

codefendant's testimony regarding circumstances of the offense. He 

relies on Lockett, 438 U.S. at 604, and Skipper v. South Carolina 

(1986), 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1, for the general 

principle that a sentencing court may not refuse to consider, or be 

precluded from considering, mitigating evidence. 

The State asserts that the sentencing court in Skipper 

violated Lockettrs mandate that all mitigating evidence be 

considered by excluding, as irrelevant, testimony offered by 

defendant in mitigation. It argues that the District Court 

admitted all mitigating evidence offered by Smith and, therefore, 

that Skimer provides no basis for setting aside Smith's sentence. 

27 
We begin by recognizing the principle that a district court in 

a capital case may not be "precluded from considering, 

mitiaatina factor, any aspect of a defendant's character or record 

and any of the circumstances of the offense that the defendant 

proffers as a basis for a sentence less than death." Lockett, 438 

U.S. at 604. The United States Supreme Court determined that this 

principle was violated in both Lockett and Skipper. In Lockett, an 

Ohio statute limited the range of mitigating circumstances that 

could be considered by the sentencing judge. Lockett, 438 U.S. at 

608. The defendant in Skipper was prevented from presenting 

mitigating evidence because the sentencing court ruled it 

inadmissible. Skipper, 476 U.S. at 3. 

Unlike Lockett and Skimer, Smith was not prevented from 

presenting any evidence of mitigation. The record reflects that 

the "excluded" evidence was before the court. Vance testified that 

Smith had been a manageable inmate while incarcerated: a letter 

from a Canadian penal officer to that effect was attached to 

Vance's amended sentencing memorandum which was filed with the 

court. Trontel testified about Smith's abusive family background. 

Codefendant Munrofs testimony that he stabbed one of the victims 

before Smith fired the fatal gunshot and that Smith had ingested a 

significant amount of drugs and alcohol was read into the record. 

The real thrust of Smith's argument is his disagreement with the 

weight given to certain mitigating evidence. We conclude, 

therefore, that evidence of mitigating circumstances was not 

"precluded" from consideration within the meaning of Lockett and 
Skipper. 

Smith also asserts a number of errors based on the District 

Court's treatment of mitigating evidence in its written findings. 

As a basis for his arguments, he relies on the Ninth Circuit's 

language in McCormick that I1[t]he sentencing judge must therefore 

explicitly discuss in its written findings all relevant mitigating 

circumstances, 'including those it finds insufficient to warrant 

lenien~y.~~' McCormick, 914 F.2d at 1166. 

Smith first argues that the District Court failed to discuss 

evidence relating to his good conduct while incarcerated as a 

mitigating circumstance in its written findings. The State asserts 

that Smith introduced the evidence solely to rebut character 

evidence that he maintained a violent lifestyle and continued to 

pose a threat to the safety of other persons. On that basis, the 

State contends that the evidence was considered in Finding No. 7 

which concerned Smith's criminal history and stated that the 

homicides were not "out of character," in Finding No. 17 which 

pertains to Smith's prospect for rehabilitation, and in Finding No. 

19 which indicates that the court considered character evidence. 

The record reflects that Smith did not rely on the evidence of 

his good behavior while incarcerated solely to rebut character 

evidence, as asserted by the State. He presented such evidence as 

a separate mitigating circumstance throughout the January 14 

sentencing hearing and in his proposed findings of fact. 

Furthermore, the court's findings relating to character are 

not an adequate substitute for a finding reflecting the court's 
consideration of Smith's conduct while incarcerated as a separate 

mitigating circumstance. Evidence that a defendant was wellbehaved while previously incarcerated serves as a basis for an 

inference that the defendant will pose no danger if incarcerated 

for a life term; thus, such evidence is mitigating in the sense 

that it might serve "as a basis for a sentence less than death." 

Skipper, 476 U.S. at 4-5 (citation omitted). Smith's prior 

criminal history, inclination toward rehabilitation, and character 

do not directly reflect on his probable behavior in prison if a 

life sentence, rather than the death penalty, were imposed. We 

conclude that the findings relating to criminal history, 

rehabilitation and character do not reflect an explicit discussion 

of Smith's conduct while incarcerated as a separate mitigating 

circumstance as required by McCormick. 

Smith also argues that the District Court failed to properly 

consider Trontel's testimony regarding Smith's abusive family 

background. He asserts that the court's treatment of the testimony 

was tantamount to dismissing her testimony as irrelevant and 

immaterial. We disagree. 

The District Court's Finding of Fact No. 12 provides in part: 

The Court has taken into consideration and given effect 

to the evidence submitted which details Ronald Allen 

Smith's family history and his family relationships. 

Nonetheless, the Court cannot give this evidence 

significant weight as a mitigating factor. Ronald Allen 

Smith initially stated that he had a good childhood but 

that his parents were strict. While Shawn Trontel 

characterized Ronald Allen Smith's family as abusive, the 

Court is also mindful of Ms. Trontel's admitted 

opposition to the death penalty and the admitted 

influence that her philosophy has had on her conclusions. 

[Citations to the record omitted.] 
The finding constitutes an explicit discussion of mitigating 

evidence concerning smith's family background, including Trontel's 

testimony. Nothing in the finding supports Smith's assertion that 

the court deemed such evidence to be irrelevant or immaterial. 

Rather, the court determined that it could not give significant 

weight to the evidence presented; part of the court's reasoning was 

based on Smith's own statements which contradicted Trontel's. It 

is within the province of the sentencing court to determine the 

weight to be given relevant mitigating evidence. Eddings v. 

Oklahoma (1981), 455 U.S. 104, 114-5, 102 S.Ct. 869, 877, 71 

L.Ed.2d 1, 11. While the district court is obligated to consider 

mitigating factors, it has no duty to give them overriding weight. 

Coleman v. Risley (9th Cir. 1988), 839 F.2d 434, 497. We conclude 

that the District Court properly considered Smith's mitigating 

evidence concerning his family background. 

Smith also argues that the findings fail to discuss 

codefendant Munro's testimony concerning the circumstances of the 

offense. Munro testified that he initially stabbed Thomas Running 

Rabbit. Smith asserts that the possibility that Thomas Running 

Rabbit was dead when shot by Smith is a mitigating circumstance. 

We disagree with Smith's characterization of this testimony as 

a mitigating circumstance. The gravamen of the testimony goes to 

Smith's culpability for committing the offense of deliberate 

homicide, an offense to which Smith pled guilty. Thus, the 

testimony, does not serve to mitigate against the imposition of the 

death penalty. 
Finding of Fact No. 4 reflects that the court appropriately 

considered Munro's testimony in the context of the deliberate 

homicide offense. In this finding, the court determined that Smith 

had committed a deliberate homicide as part of a scheme or 

operation which, when completed, resulted in the deaths of two 

persons, an aggravating factor defined by § 46-18-303(5), MCA. It 

provides in part: 

Thomas Running Rabbit, Jr. then was struck with Munro's 

knife and fell to the ground. Ronald Allen Smith went 

over to Thomas Running Rabbit, Jr. while he was lying on 

the ground and shot him in the back of the head, killing 

him. [Citations to the record omitted.] 

We conclude that the District Court did not err in confining its 

consideration of Munrols testimonyto its finding of an aggravating 

factor under § 46-18-303(5), MCA, which requires deliberate 

homicide as a predicate offense. 

Smith also argues that the District Court did not properly 

consider Munro's testimony relating to Smith's ingestion of alcohol 

and drugs prior to the commission of the crimes. The courtfs 

findings, however, reflect a consideration of this evidence. 

Findings of Fact No. 14 and 15 provide as follows: 

14. While Ronald Allen Smith's alcohol use did not meet 

the statutorymitigating criteria in Section 46-18-304(2) 

and (4), MCA, the Court has nevertheless taken into 

consideration and given effect to Ronald Allen Smith's 

alcohol usage as a mitigating factor. Ronald Allen Smith 

described himself as "fairly loaded" at the time of the 

killings. Smith testified at the plea hearing that he 

was aware of his actions in shooting the young men and 

was not so intoxicated that he did not know what he was 

doing. At the time of the murders, Smith was able to 

talk and walk in a deliberate and purposeful manner. 

Smith gave the appearance that he knew what he was doing 

at the time of the offenses. Moments after the murders, 

Smith became concerned with the quality of Andre 
Fontaine's driving and Smith then drove the now stolen 

car himself and did so without difficulty. The Court 

finds that Smith had consumed beer on the day of August 

4, 1982, butthat his consumption of the alcohol did not 

so affect his actions that it should be given significant 

weight as a mitigating factor. 

15. With respect to Ronald Allen Smith's drug usage, the 

record is unclear as to when Smith consumed a number of 

doses of LSD or acid. The Court notes that there was no 

mention of such drug usage at the time of the plea 

hearing or the pre-sentence investigation. 

Dr. Halpern, a pharmacologist, described typical 

symptoms of being under the influence of LSD, including 

dizziness, weakness, difficulty moving, hot or cold 

feelings, nausea, numbness, body lighter, body heavier, 

shaking of the body, and drowsiness. Dr. Halpern also 

described perceptual changes that may occur such as 

altered shapes, altered colors, blurred vision, visual 

contrast clearer, hearing more acute, sounds more acute. 

He testified that the drug may result in an altered mood 

and a distortion of time, and depersonalization. While 

Ronald Allen Smith has stated that he has had flashbacks, 

a heightened sensitivity in the senses, the Court finds 

it most notable that Ronald Allen Smith has not 

described, nor did any of his companions describe, him 

operating under or experiencing the numerous symptoms and 

affects from LSD at the time of the murders. Ronald 

Allen Smith did describe a ttdepersonalization't experience 

to Dr. Stratford, but this symptom stands alone. There 

is nothing in the record to indicate that Ronald Allen 

Smith was experiencing at the time of the murders any of 

the multi-faceted symptoms described by Dr. Halpern. Dr. 

Stratford opined that the depersonalization experience 

could have been caused by the stress of the murders 

themselves rather than drug usage. Because neither 

Ronald Allen Smith nor his companions described any 

symptoms indicating that Smith was under the influence of 

LSD, and because the record uniformly indicates that 

Smith was aware of his actions and that he acted in a 

methodical and deliberate fashion, the Court cannot give 

significant weight to the evidence of Smith's drug usage. 

[Citations to the record omitted.] 

Here, the court determined that Smith had consumed beer prior to 

committing the offenses and that the record was unclear as to when 

he ingested a number of doses of LSD or acid. Thus, without 

explicitly citing to Munro's testimony, the findings take into 
account the substance of his testimony. 

Additionally, we do not agree with the thrust of Smith's 

argument that the finding must specifically refer to every piece of 

evidence offered in support of the mitigating circumstance. As the 

Ninth Circuit stated in Coleman, 839 F.2d at 502, the sentencing 

court is not required to provide an "extensive excursus" into each 

mitigating circumstance. We conclude that these findings 

constitute an explicit discussion of the evidence in mitigation 

relating to Smith's alcohol and drug ingestion. 

We hold that the District Court did not preclude Smith from 

presenting any evidence of mitigation, but that its findings do not 

reflect an adequate consideration of Smith's conduct while 

incarcerated as a mitigating circumstance. 

Did the District Court Judge assigned to hear the 

disqualification proceedings err by denying the motion to 

disqualify the sentencing judge? 

Following the January 14, 1992, sentencing hearing, Smith 

filed an affidavit to disqualify the presiding judge, the Honorable 

Douglas Harkin, pursuant to 5 3-1-805, MCA. He alleged that a 

comment made by Judge Harkin to defense witness Hoell on the 

morning of January 15 reflected personal bias or prejudice. Judge 

Robert Boyd, who was appointed to preside over the disqualification 

proceeding, found that the content of the remark was in dispute and 

that Hoell could have misconstrued a remark about the weather as a 

comment on Smith. He concluded that the comment evidenced neither 

bias nor the appearance of bias. 
On appeal, Smith reasserts that Harkin should have been 

disqualified pursuant to the canons of judicial ethics which 

prohibit the appearance of impropriety and on state and federal due 

process grounds. We decline to address Smith's contention because 

we remand to a different judge for resentencing. 

Remand to a different judge is not the usual remedy where, as 

here, an error is found in the District Court proceedings. This 

Court remands to a new judge only under "unusual circumstances." 

Coleman v. Risley (1983), 203 Mont. 237, 249, 663 P.2d 1154, 1161. 

In determining whether a different judge should preside over 

proceedings on remand, three factors are considered: 1) whether the 

original judge would reasonably be expected, upon remand, to have 

substantial difficulty in putting out of his or her mind previously 

expressed views or findings determined to be erroneous or based on 

evidence that must be rejected; 2) whether reassignment is 

advisable to preserve the appearance of justice: and 3) whether 

reassignment would entail waste and duplication out of proportion 

to any gain in preserving the appearance of fairness. Coleman, 663 

P.2d at 1161. 

Judge Harkin sentenced Smith to death based on his conclusions 

that aggravating circumstances existed and mitigating circumstances 

were not sufficient to require leniency. There is no indication 

that Judge Harkin would have substantial difficulty in putting his 

prior conclusion out of his mind if required to reweigh mitigating 

circumstances in light of a current presentence investigation and 

report at resentencing. We believe, however, that in a capital 
case where the life of the defendant is at issue and error is found 

relating to the consideration of mitigating circumstances, the 

prudent course is to remand to a different judge to assure that the 

mitigating and aggravating factors are considered without regard to 

a previously drawn conclusion. 

Furthermore, as indicated above, Smith moved to disqualify 

Judge Harkin on the basis of personal bias. The motion was denied 

and the death penalty was imposed. Given the motion to disqualify 

and the court's imposition of the death sentence, we are mindful 

that further sentencing by Judge Harkin might appear unjust. Thus, 

remand to a different judge will preserve the appearance of 

justice. 

It is true that remand to a different judge will result in 

some waste and duplication of court resources. We conclude, 

however, that the benefits of remand to a new sentencing judge 

outweigh fiscal concerns. 

We vacate the District Court's order imposing the death 

penalty and remand for resentencing. We direct the District Court 

to appoint a different judge to preside over the resentencing 

hearing to be conducted consistent with this opinion. 

Reversed. 
We concur: 

Chief Justice 

Justices 

The Honorable James E. Purcell, 

District Judge, sitting for 

Retired Justice R. C. McDonough 
Justice Terry N. Trieweiler specially concurring in part and 

dissenting in part. 

I concur with the majority's conclusions regarding Issues I 

through 3, and 5 through 9. 

I also concur with the majority's conclusion that based on 

defendant's plea of guilty, from which no appeal was taken, the 

aggravating circumstance set forth at 3 46-18-303 (7) , MCA, was 

correctly found to exist by the District Court. 

However, I dissent from that part of the majority opinion 

which concludes that the aggravating circumstance set forth at 

3 46-18-303(5), MCA, was present in this case. 

The death of defendant's victims in this case did not result 

from "a scheme or operation which, if completed, would result in 

the death of more than one person." 

There was no scheme in this case. Defendant and his companion 

wanted the victims1 car. In order to escape with the car, they 

removed the victims from the car and accompanied them to the woods. 

During the approximate 125 foot journey from the car to the woods, 

defendant decided to kill his victims. This homicide was a 

senseless, brutal act, but there was no plan nor scheme involved. 

The State contends that the requirements of § 46-18-303(5), 

MCA, were satisfied because defendant brought a sawed off rifle 

into the United States with the intention of robbing people. 

However, there was no evidence that his plan to rob people 

necessarily included a plan to end anyone's life. 
The aggravating circumstance found in § 46-18-303(5), MCA, 

simply has no application to the circumstances in this case. It 

was thrown in for good measure by the sentencing court. However, 

it is not supported by the record, and on remand I would instruct 

the District Court not to consider it as an aggravating 

circumstance when sentencing this defendant. 
Chief Justice J. A. Turnage concurring in part and dissenting in 

part: 

I concur with the majority opinion with the exception of its 

decision on Issue 3, whether the court erred in failing to order a 

current presentence investigation. In particular, I am concerned 

that the Court's opinion would seem to allow consideration of postoffense aggravating circumstances in a resentencing. 

In its brief, the State relies upon Smith's failure to request 

a new presentence investigation. It does not address the core 

issue of whether a criminal defendant has a right to a new 

presentence investigation upon resentencing. 

Other courts have held that a new presentence investigation is 

not necessarily required upon resentencing, subject to the facts of 

the case and the language of the statute requiring presentence 

investigations (and ours does not directly address this particular 

issue). Where the court has indicated that it would resentence on 

the basis of facts available at the time of the original sentence, 

a new presentence investigation is not required. United States v. 

Fernandez (3rd Cir. 1990), 916 F.2d 125, cert. denied, 111 S.Ct. 

2249. Whether to order a new presentence investigation for 

resentencing is a matter of discretion with the sentencing court. 

United States v. Hardesty (9th Cir. 1992) , 958 F. 2d 910. Where the 

original sentencing judge resentences, supplemental evidence is 

presented at a resentencing hearing, or resentencing is close in 

time to the original sentencing, a new presentence investigation is 
not required. People v. Munson (111 .~pp. 3 Dist. 1988) , 525 N.E. 2d 

250, cert. denied, 530 N.E.2d 257; People v. Brown (111.App. 4 

Dist. 1990), 555 N.E.2d 794. Where the defendant has not requested 

a new presentence investigation and the court has allowed evidence 

to be presented at the resentencing hearing, a new presentence 

investigation is not required. People v. Duboulay (A.D. 2 Dept. 

1990), 551 N.Y.S.2d 582, cert. denied, 557 N.E.2d 1190. 

The relevant statutes provide in their relevant parts as 

follows: 

46-18-111. Presentence investigation -- when 

required. (1) Upon the acceptance of a plea or upon a 

verdict or finding of guilty to one or more felony 

offenses, the district court shall direct the probation 

officer to make a presentence investigation and report. ... 

46-18-112. Content of presentence investigation 

report. (1) Whenever an investigation is required, the 

probation officer shall promptly inquire into and report 

upon : 

(a) the defendant's characteristics, circumstances, 

needs, and potentialities; 

(b) the defendant's criminal record and social 

history; 

(c) the circumstances of the offense; 

(d) the time of the defendant's detention for the 

offenses charged . . . 

46-18-301. Hearing on imposition of death penalty. 

When a defendant is found guilty of or pleads guilty to 

an offense for which the sentence of death may be 

imposed, the judge who presided at the trial or before 

whom the guilty plea was entered shall conduct a separate 

sentencing hearing to determine the existence or nonexistence of the circumstances set forth in 46-18-303 and 46- 

18-304 for the purpose of determining the sentence to be 

imposed. The hearing shall be conducted before the court 

alone. 
46-18-302. Evidence that may be received. In the 

sentencing hearing, evidence may be presented as to any 

matter the court considers relevant to the sentence, 

including but not limited to the nature and circumstances 

of the crime, the defendant's character, background, 

history, and mental and physical condition, and any other 

facts in assravation or mitisation of the ~enaltv. . . . [Emphasis added.] 

46-18-303. Aggravating circumstances. Aggravating 

circumstances are any of the following: . . . (7) The offense was aggravated kidnapping which 

resulted in the death of the victim or the death by 

direct action of the defendant of a person who rescued or 

attempted to rescue the victim. 

46-18-304. Mitigating circumstances. Mitigating 

circumstances are any of the following: 

(1) The defendant has no significant history of 

prior criminal activity. 

(2) The offense was committed while the defendant 

was under the influence of extreme mental or emotional 

disturbance. 

(3) The defendant acted under extreme duress or 

under the substantial domination of another person. 

(4) The capacity of the defendant to appreciate the 

criminality of his conduct or to conform his conduct to 

the requirements of law was substantially impaired. 

(5) The victim was a participant in the defendant's 

conduct or consented to the act. 

(6) The defendant was an accomplice in an offense 

committed by another person, and his participation was 

relatively minor. 

(7) The defendant, at the time of the commission of 

the crime, was less than 18 years of age. 

(8) Any other fact that exists in mitigation of the 

penalty. 

It is neither logical nor conceivable that Smith, while 

incarcerated on death row at all times subsequent to the presentence report and sentencing could produce any mitigating circumstance that is provided for in 5 46-18-304, MCA. 
Most certainly, consideration of aggravating circumstances as 

set forth in 5 46-18-303, MCA, can only relate to any such 

circumstances that occurred at the time of the commission of the 

crimes of deliberate homicide and aggravated kidnapping. 

If the District Court, based on a new presentencing report, 

considered "good conduct" of Smith on death row as a mitigating 

circumstance to the crimes he committed, which I submit is neither 

logical nor justified, may the District Court therefore consider 

new aggravating circumstances that occurred subsequent to the 

commission of the offenses? Of course not. 

To consider Smith's conduct on death row as an aggravating 

circumstance would be not only unthinkable but unconstitutional. 

It would be a denial of due process of law (accused of and punished 

for something he may not have been charged with or did not have an 

opportunity to refute), and a clear double jeopardy violation--he 

would be again put in jeopardy for the same offense previously 

tried, but would risk enhanced sentencing because of an aggravating 

circumstance which occurred after the initial sentence was imposed. 

I believe it is clear that consideration of aggravating and 

mitigating circumstances as set forth in 55 46-18-302, -303, and 

-304, MCA, can only logically and properly relate to circumstances 

that occurred prior to or as a part of the res sestae of the crimes 

for which conviction occurred. To assume that somehow or other 

Smith, by being polite to his guards on death row, has established 
a mitigating circumstance concerning the crimes he committed is 

neither statutorily permitted nor contemplated. 

A presentence investigation has already been conducted, for 

purposes of Smith's 1983 conviction of these same offenses. The 

law does not require idle acts. Section 1-3-223, MCA. Because the 

relevant mitigating and aggravating circumstances have already been 

documented in that report, a new presentence investigation would 

serve no logical purpose. 

I would affirm the conviction. 

Justice John C. Harrison and District Judge James E. Purcell join 

in the opinion of Chief Justice Turnage. 

Judge, sitting in the seat vacated 

by the retirement of Justice R. C. 

McDonough