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. Griffing (argued)

### , Ass 't Attorney General, Helena,Montana Thomas J. Esch,FlatheadCountyAttorney, Kalispell, Montana

Filed: Submitted: May 27, 1993 Decided: November 9, 1993Justice Karla M. Gray delivered the Opinion of the Court.

Ronald Smith appeals fromthe Findings of Fact,Conclusions of Law, Order and Judgment entered by the Eleventh Judicial District Court,Flathead County, imposingthedeathpenalty. We reverseand 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 theDistrict Court violate Smith's FifthAmendment 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 theDistrict Courterrby 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A claim of ineffective assistance of counsel was raised on appeal, but subsequently withdrawn.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 deliberatehomicide 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),217Mont. 453, 705 P.2d 1110; cert. denied, Smithv. Montana (1986)

### , 474U.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 evidenceofmitigating circumstancesand 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 sentenceand for 

### a psychiatric examination to establishmitigating 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'smental state was affectedby the consumption of alcohol and drugs; 2) his capacity to appreciate the criminality of his conductwas 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 thetestimony and that none of the specifiedmitigating circumstances existed. InDecemberof 1983,smithmoved for an additionalpsychiatric evaluation to develop othermitigating circumstances. He asserted that the court biased Stratfordby questioning theveracity of his statements and improperly limited the scope of Stratford's evaluation. The court denied themotion and, in February of 1984, reimposed the death sentence. We affirmed the conviction and sentence in Smith I. Smith thenpetitioned for federalhabeas corpus relief,which

was denied. Smith appealed to the United States Court of Appeals fortheNinth Circuit. TheNinth 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 itviolated Smith's right todueprocess. Smithv. 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 socialworker; David Vance (Vance), a sentencing consultant; and Dr. Lawrence Halpern (Halpern),a pharmacologist, to assist Smith in preparingfor the sentencinghearing. 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. Followingthehearing, Smithmoved todisqualify thepresiding judge. Smith asserted that the judgemade a statementto 

### a defense witness which evidenced personal bias. Judge Robert Boyd was assigned to preside over the disqualification proceedings and subsequently denied Smith's motion. OnMarch 13, 1992,the District Court orally imposed thedeath 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 consistentwith 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. Becausewe are remanding for resentencing, we do not address the issues encompassed in an automatic review of the death sentence.

Did the District Courtviolate Smith's Fifth Amendment, Sixth Amendment or due process rightsby considering Stratford's report 5and 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 theprecise argument raised 

### in Smith I. There, he contended that Stratford's inquiry into the credibility ofhisMay 1983 statementsviolated 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 testimonyto establish aggravating factorsand rebutmitigating 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 FifthAmendmentviolation 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 simplyno 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 testimonydid notviolate Smith's FifthAmendment 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 

### forthe 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 topsychiatric 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 factorsrequired in Montana for impositionof thedeath penalty. The United States Supreme Court determined that because the defendants' counsel had not been informed that the psychiatric examinations would encompassthe issueof futuredangerousness,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. Theprosecution presented its case for aggravating circumstances; it did not rely on the psychiatric evidence in any way to establishtheaggravating factors. Smith thenpresented his

case for mitigation,and the Statepresented the Stratford evidence in rebuttal. The record reflects a diligent effortby the State to confine its use of the Stratford material to rebutting Smith's psychiatric evidence of mitigating factors. It is true that theDistrict 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 concerningmitigating circumstances,and to offer an opinion on the existence of three specified mitigating circumstances. Clearly, the focusof thepsychiatric examinationwas to evaluatemitigatingcircumstances 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; itwas not relied on to resolve any issue outside the scope of the court's order for the psychiatric examination. We conclude that Smith's SixthAmendment right to counsel 

### was not violated by the District Court's consideration of the Stratford report and testimony.

DUE PROCESS Smithalso contendsthat theDistrict Court's consideration of Stratford's report and testimony violated his due process rights, relying on Smithv. McCormick (9thCir. 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 defendantfscase. 

## m,470U.S. at 83-84. 

### In Smith v. McCorrnick, the Ninth Circuit determined that Stratford'sappointment and his psychiatric examination of Smithfell 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 rightsby 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-incriminationwhen 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 substanceof thereport. Smith I,705P.2d at 1094. Under thedoctrineof 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. Statev. 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 isunjustbecause itprecludes considerationof subsequent United States Supreme Court and Circuit Courts ofAppeal 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 articulatea specific refinement thatmight 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 theproceedings, 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 statementsmade during the presentence investigation interview to impose the death penalty, violating his Sixth Amendment right to counsel. The State contends that Smithwas 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 thepresentence investigation 

### isviewed

as a "critical stageNof theproceedings,we conclude that Smith's SixthAmendment right to counselwas 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 submitto 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 1983arraignment at which he entered his guilty pleas and requested the deathpenalty. At the arraignment's conclusion,the DistrictCourt scheduled a Ifhearingin aggravation or mitigation of sentencef1 and ordered a presentence 

### investigation and report to be submitted prior to thehearing. Thus,Smith and his attorneyknew 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 counsel11in 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. Thecircumstances under which apresentence investigationreport 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 tomake apresentence investigationandreport 

## . . 

# . . (2) If the court finds that the record contains information sufficient to enable themeaningful exercise ofdiscretionduring sentencing, the defendantmay waive a presentence investigationand report. Both the finding and thewaivermust 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 orderapresentence investigationreport

### existhere. 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 ofVance, theprobation officerappointed to assistSmith,served

### as anadequate 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 officialpresentence 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 Turnagelsdissent is the

concern that our decision on this issue Ifwould seem to allow consideration of post-offense aqsravatins circumstances in a resenten~ing.~~ (Emphasisadded.) 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 specificand exhaustive;each either exists or does not 

### exist asof 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 eightmitigating circumstancesrelatedirectly 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 andall 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 thatmitigating evidence of conduct subsequent to the offense cannot be offered and received during a sentencing hearing the result of whichmay be imposition of thedeathpenalty. 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), 438U.S. 586, 98S.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,theNinth Circuit statedwithout equivocationthat 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 factorswhich

### the Ninth Circuit specifically found relevant as mitigating evidence were post-offensematters. 

### The dissentIs 

### theory of what 

### is, and 

### what is not, relevant mitigating evidence is not legally supportable, As a 

### practical matter, therefore,adoptionof that theory would ensureyetanother resentencing following Smith'snext 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: 

### Aggravatingcircumstances. Aggravatingcircumstances are 

### any of the following:

(5)

### The offense wasdeliberatehomicideandwas committed as 

### a part of a scheme or operation which, 

### if completed, would 

### result 

### in the death 

### of more 

### than oneperson.

(7)

### The offensewas aggravatedkidnappingwhich resulted in the 

### death of 

### thevictim or thedeathby 

### direct action of 

### the defendant of a

### personwho rescued 

### or attempted to rescue the victim. Smith advances several challenges to 

### the ~istrictCourt's finding of these aggravating circumstances. 

### We first 

### argues that 3 

### 46-18-303(5), MCA, 

### fails to establish the precise conductwhich constitutes 

### a Ifscheme

### or operationN 

### and, 

### as 

### a result, does notlimit the sentencing judge's discretion to impose the death sentenceasrequiredby Gregg

### v. Georgia (1976)

### , 428U.S. 153, 192- 95, 96 S.Ct. 2909, 2934-35, 49 L.Ed.2d 859, 885-87 (citingFurrnan



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

### is true that each statutory aggravating circumstancemust satisfy a constitutional standard derived from Fuman; the aggravating circumstance cannot be so 

### vague that it fails 

### to I1channeluthe discretion of the sentencing court, resulting in arbitrary and capricious sentencing. Zantv. Stephens (1983),462 U.S. 862, 876-77, 103 S.Ct. 2733, 2742, 77 L.Ed.2d 235, 249-50. The aggravating circumstance must Iqgenuinelynarrow the class of persons eligible 

### for thedeath penalty and must reasonably justify the imposition of amore 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 standardby 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 theword nschemell



### as used in the statute to mean a Ifplannedundertakingu or a I1systematicplan." State

### v. Langford (1991), 248 Mont. 420, 438, 813 P.2d 936, 950. While theword has notbeen 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 eligiblefor 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 thathe committed aggravated kidnapping which resulted inthedeath 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 confinementsormovements incidental to the commission of another felonydo 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,hisargument thathis conduct did not constitute aggravated kidnapping forthepurpose of establishinganaggravated circumstance iswithout merit. 

### Finally,Smith contends

### that theDistrict Court

### erredby usingthe death of Thomas ~unning ~abbit and Harvey Mad 

### Man as both a predicate felony under 5 46-18-303(5), MCA, and an aggravating factorunder 5 46-18-303(7), MCA. He asserts thatwhen used as an aggravating factor

### under 5 46-18-303 (7) 

### ,MCA, the homicide offense doesnot narrow the class ofpersons eligible for thedeathpenalty who have committed both predicate felonies of deliberate homicide and aggravated kidnapping. The obvious flaw in Smithf s argument is its suggestionthatan 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 thevictim 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 kidnappingand 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.

DoesMontana's death penaltystatuteconstitutionally allocate the burden of proving aggravating and mitigating circumstances? Smith advancesa

### number of arguments concerning theburdens 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 defendantrsburden of proving mitigating circumstances are not set forth in 59 40-18-303 and 

## - 304,MCA. Healso argues

### that 5 46-18-305,MCA, failsto establish the standard to govern the district court's considerationof 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, violatingGremv. Georcliaand 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 circumstancessufficiently 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),194Mont. 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 topunishment and do not bear on adefendant's guilt or constitute 

### an element of a crime, we determined that it was constitutionally permissibletoplace theburden 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 Waltonv. Arizona (1990)

### , 497U.S. 639, 110S.Ct. 3047,111L.Ed.2d 531, the Supreme Court opined that a state does not violate a defendant's constitutional rights by placing theburden

### ofproving 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 existenceof 

### anaggravating circumstance. Walton, 497U.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 capitalsentencing 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 juryr 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 Peoplev. 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 ormore aggravating circumstanceand

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 forfinding § 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 toweigh 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 displeasurewith a district court's verbatim adoption

### ofproposed 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 impositionof thedeathpenalty. However, findings adopted in such

a manner are not so inherently flawed that the prevailing party must be reversed. Sawyer-Adecorv. IntflAuglin (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 25findingsand conclusions submitted by counsel. In re theMarriage 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 thewritten 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 Christopherbased on a previously establishedprocedural rule that required written orders to be filed concurrently with an oral pronouncement of thedeath penalty; failureto comply with therule 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. Therequirement that thedistrict court issuewritten findings regarding the existence of aggravating factors and mitigating circumstances is set forth in 3 46-18-306, MCA. No language in 26that 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 requireMontana courts to filewritten 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 theDistrict Court errby excluding evidence ofmitigating 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 theoffense. 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 courtmay not refuseto consider,orbe 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 Skimerprovides no basis for setting aside Smith's sentence. 27We beginby recognizingtheprinciple 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. TheUnited States Supreme Court determined that this principlewasviolated inboth Lockettand Skipper. InLockett, 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"evidencewasbefore 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 familybackground. Codefendant Munrofstestimony that he stabbed one of the victims before Smith fired the fatal gunshot and that Smith had ingested a significant amount of drugs and alcoholwas 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 andSkipper. 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 judgemust therefore explicitlydiscuss in itswritten findings all relevantmitigating 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 itswritten findings. The Stateasserts 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 forrehabilitation,and in FindingNo. 19 which indicates that the court considered character evidence. The record reflectsthat Smithdid 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'sconsideration 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 criminalhistory, 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, rehabilitationand characterdo 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 thetestimony

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 significantweight 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 familyas abusive,the Court is also mindful of Ms. Trontel's admitted opposition to the death penalty and the admitted influencethat herphilosophyhashad onher conclusions. [Citationsto the record omitted.]The finding constitutes an explicit discussion of mitigating evidence concerning smith's familybackground, includingTrontel'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, ithas no duty to give them overridingweight. Colemanv. Risley (9thCir. 1988), 839 F.2d 434, 497. We conclude that the District Court properly considered Smith's mitigating evidence concerninghis family background. Smith also argues that the findings fail to discuss codefendantMunro's testimony concerning the circumstances of the offense. Munro testified thathe initially stabbed ThomasRunning 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 thistestimony 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 servetomitigate againstthe 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. Inthis finding,the courtdetermined 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 ThomasRunning Rabbit, Jr. while he was lying on the ground and shot him in theback of the head,killing him. [Citationsto the record omitted.] We conclude that the District Court did not err in confining its consideration ofMunrolstestimonyto its finding of anaggravating 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 considerMunro's testimony relating toSmith's ingestionof 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 RonaldAllen Smith's alcoholuse did not meet thestatutorymitigatingcriteriainSection46-18-304(2) and (4), MCA, the Court has nevertheless taken into consideration and given effect to Ronald Allen Smith's alcohol usage asa 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 knewwhat hewas doing at the time of the offenses. Moments after themurders, Smith became concerned with the quality of AndreFontaine'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,butthathis consumption of the alcohol did not soaffect his actions that it should be given significant weight as a mitigating factor. 15. With respect toRonald 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 therewas 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, soundsmore acute. He testified that thedrug may result in an altered mood and a distortion of time, and depersonalization. While Ronald Allen Smith has stated thathehashad 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 operatingunderorexperiencingthenumerous symptomsand affects from LSD at the time of the murders. Ronald Allen Smithdiddescribe 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 themurders any of themulti-faceted symptomsdescribedby 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 symptomsindicatingthat 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 significantweight totheevidence of Smith's drug usage. [Citationsto the record omitted.] Here, the court determined that Smith had consumed beer prior to committing the offenses and that the recordwas unclear as towhen he ingested a number of doses of LSD or acid. Thus, without explicitly citing to Munro's testimony, the findings take intoaccount the substance of his testimony. Additionally, we do not agree with the thrust of Smith's argument that the finding must specificallyrefer to everypiece of evidence offered in supportof themitigating circumstance. As the Ninth Circuit stated in Coleman, 839 F.2d at 502, the sentencing court is not required toprovide 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 findingsdo 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 affidavittodisqualifythepresiding judge, theHonorable 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 topreside over thedisqualification proceeding, found that the content of the remarkwas indisputeand thatHoell could have misconstrued a remark about theweather 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 appearanceof impropriety and on stateand federal due process grounds. We decline to address Smith's contentionbecause

we remand to a different judge for resentencing. Remand to a different judge is not the usual remedywhere, as here, an error is found in the District Court proceedings. This Court remands to a new judge only under "unusual circumstances." Colemanv. Risley (1983), 203 Mont. 237, 249, 663 P.2d 1154, 1161. Indetermining whether a different judge should preside over proceedings on remand, three factorsareconsidered: 1)whether the original judgewould reasonably be expected, upon remand, to have substantial difficulty inputting out ofhis orhermind previously expressed views or findings determined tobe erroneous orbased 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 inpreserving the appearance of fairness. Coleman, 663 P.2d at 1161. JudgeHarkin sentencedSmithtodeathbased onhis conclusions thataggravating circumstancesexistedandmitigating circumstances

were not sufficient to require leniency. There is no indication that JudgeHarkin would have substantial difficulty in putting his prior conclusion out of hismind if required to reweigh mitigating circumstances in light of a current presentence investigation and report at resentencing. We believe, however, that in a capitalcase where the life of thedefendant 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 factorsare consideredwithoutregard to a previously drawn conclusion. Furthermore, as indicated above, Smith moved to disqualify JudgeHarkin on the basis of personal bias. Themotion was denied and the death penalty was imposed. Given themotion to disqualify and the court's imposition of the death sentence, we are mindful that further sentencingby JudgeHarkinmight appearunjust. 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. McDonoughJustice 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. Defendantand his companion wanted the victims1 car. In order to escape with the car, they removed thevictims from the car and accompanied them to thewoods. During the approximate 125 foot journey from the car to thewoods, 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 opinionwith the exception of its decisionon Issue 3,

### whether the court erred in failing to order a current presentence investigation. Inparticular, I am concerned that the Court'sopinionwould seemtoallow considerationofpostoffense aggravating circumstances in a resentencing. In its brief, the State reliesupon Smith's failuretorequest 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 haveheld thatanewpresentence investigationis not necessarily required upon resentencing, subjecttothe factsof the case and the language of the statute requiring presentence investigations (andours does not directly address thisparticular issue). Where the court has indicatedthat itwould resentence on the basis of facts available at the time of the original sentence,

a newpresentence investigation isnot required. United Statesv. 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 Statesv. Hardesty (9thCir. 1992)

## , 958F.

### 2d 910. 

### Where the original sentencing judge resentences, supplemental evidence is presented at a resentencing hearing, or resentencing is close in time to theoriginal sentencing, a new presentence investigationis

### not required. Peoplev. 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),555N.E.2d 794. Where thedefendanthasnot requested a new presentence investigationand the courthas 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 tomake a presentence investigation and report.



# ... 46-18-112. Content of presentence investigation report. 

### (1) Whenever an investigation is required, the probation officer shallpromptly inquire into and report upon:

### (a) thedefendant'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. Hearingon impositionof deathpenalty. 

### 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 theguiltypleawas entered shall conducta separate sentencing hearingtodeterminetheexistence ornonexistenceof thecircumstancesset forth in 46-18-303 and 46- 

### 18-304 for thepurpose of determining the sentence tobe imposed. Thehearing 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, includingbut not limitedto the natureand circumstances of the crime, the defendant's character, background, history,andmental andphysical condition,andanyother facts in assravationormitisation 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 defendantof apersonwho 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 offensewas 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) 

### Thecapacityof the defendanttoappreciatethe criminality of his conduct or to conformhis conduct to the requirements of lawwas substantially impaired. (5) 

### Thevictim was aparticipant inthedefendant's conduct or consented to the act. (6) 

### The defendant was an accomplice in an offense committed by another person, and his participation was relativelyminor. (7) 

### The defendant,atthetimeof thecommissionof 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,considerationof aggravating circumstancesas 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 circumstanceto the crimeshe committed,which I submit isneither 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. Itwould be a denial of due process of law (accusedof and punished for somethinghe may not have been chargedwith 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 riskenhanced sentencing because 

### of an aggravating circumstancewhich occurred afterthe initial sentencewas 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 logicallyand properly relate to circumstances that occurredprior to or as apart of the res sestaeof the crimes for which conviction occurred. To assume that somehow or other Smith,by being polite tohis 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 doesnot require idleacts. Section 1-3-223,MCA. Because the relevantmitigatingandaggravatingcircumstanceshavealreadybeen documented in that report, a new presentence investigationwould

serve no logical purpose. 

### Iwould affirm the conviction.

Justice John C. 

### Harrison and DistrictJudge James E. 

### Purcell join in the opinion of Chief Justice Turnage.

Judge, sitting 

### in the seatvacated by the retirement of Justice 

### R. C. McDonough