NO. 87-251 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsDAVID THOMAS DAWSON, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Diane Barz, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Jeffrey Renz argued, Billings, Montana 

Allen Beck, Billings, Montana 

Gary Wilcox, Billings, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

Barbara Claassen argued, Asst. Atty. General, Helena 

Harold Hanser, County Attorney, Billings, Montana 

Dennis Paxinos, Deputy County Attorney, Billings 

Submitted: June 13, 1988 

Decided: August 23, 1988 

Filed: ~JG- 2 3 19mClerk 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

A jury in the District Court for Yellowstone County 

convicted defendant Mr. Dawson of three counts of deliberate 

homicide, four counts of aggravated kidnapping, and one count 

of robbery. He was sentenced to death for each of the three 

deliberate homicides and for each of the three aggravated 

kidnappings which resulted in the death of the victim. 

Defendant appeals his conviction and death sentences. We 

affirm on all issues. 

The issues are: 

1. Was Detective Hatfield's entry into and search of 

the defendant's motel room an unconstitutional search? 

2. Did the District Court's reaction to the testimony 

of the surviving victim prejudice the case? 

3. Were the sexual paraphernalia and magazines improperly admitted into evidence? 

4. Did the prosecutor improperly comment upon the 

defendant ' s silence? 

5. Was the defendant denied a jury trial as to those 

facts of the crime which are now denominated as aggravating 

circumstances, and does the evidence support the court's 

findings on those circumstances? 

6. Did the trial court err by considering the defendant's silence at trial in imposing the death penalty? 

7. Did the sentencing judge improperly consider the 

victim impact statement and characteristics of the victim? 

8. Should a jury have participated in the sentencing 

process? 

9. Should the absence of a prior criminal history on 

the part of the defendant be treated as sufficiently substantial to warrant leniency? 
10. Does § 46-18-305, MCA, violate the Eighth Amendment? 

11. Review of the sentence under S 46-18-310, MCA. 

The four members of the Rodstein family were staying at 

the Airport Metra Inn in Billings, Montana, preceding a 

family move from Billings to Atlanta, Georgia. The defendant 

checked into the room next to theirs at approximately 4:45 

a.m. on Friday, April 18, 1986. At about 5:00 a.m., the 

teenage daughter of the Rodsteins, Amy, went outside to load 

the family car. The defendant, carrying a duffel bag from 

which a gun protruded, followed her back to her room. He 

then took all members of the family to his own room, where he 

bound and gagged all of them but Amy. He directed her to 

help him move the family's belongings into his room. Then he 

bound and gagged Amy and went through the family's belongings, taking out credit cards, cash, and jewelry. 

The defendant injected Mr. and Mrs. Rodstein with an 

unknown substance which he said would make them sleep. 

Sometime shortly thereafter, they were strangled to death 

with a telephone cord. The bodies were placed under the sink 

in the rear of the motel room and were covered by a bedspread. Amy, who lay bound and gagged on the floor in another part of the room, did not see her parents being strangled 

or their bodies being moved. 

Later that day, the defendant gave the 11-year old 

Rodstein boy, Andrew, a liquid to drink which caused him to 

sleep. Andrew was strangled to death and his body was placed 

with those of his parents. Again, Amy did not see the murder 

or her brother's body being moved. The defendant had Amy 

help him move the Rodsteins' vehicles from the motel parking 

lot to an area behind a nearby gas station. The defendant 

also gave Amy a liquid to drink, but while he was not looking 

she dumped it on the bedspread and covered the wet area with 

a pillow. 
During the day on Saturday, the defendant and Amy left 

the motel room several times. During these trips, the defendant made several phone calls, went to the bank, went to a 

fast food store, and stopped at his own apartment and a 

friend's house. Amy did not attempt to get away because she 

believed her family was still alive and that an escape attempt might jeopardize their lives. 

On Saturday evening, Billings police conducted an investigation at the motel after receiving reports that the 

Rodsteins were missing. The investigation is described more 

fully under Issue I. Briefly, after the defendant had come 

out into the parking lot and talked with the police several 

times, Detective Hatfield went to the defendant's motel room 

door and asked permission to look through his room. When the 

defendant changed his position and opened the door slightly, 

Detective Hatfield entered the room and noticed the bedspreads in the back of the room. The defendant said, "Amy, 

they're here to help you," or words to that effect. Detective Hatfield found the bodies of the Rodsteins and summoned 

other officers for assistance. Detective Hatfield found Amy 

in the bathroom where the defendant had. instructed her to 

stay after he observed the police outside. 

An autopsy revealed that Mr. Rodstein died of asphyxiation. He had been strangled with "a great deal of force." 

He also had several bruises on his scalp. Although needle 

marks were present in his arms, the substance with which he 

had been injected could not be identified. Mrs. Rodstein had 

also died of asphyxiation. Her blouse, brassiere, and jeans 

had been opened prior to her death, but no evidence of sexual 

assault was found. She, too, had bruises on her head and 

needle marks on her arm. Andrew had also died of asphyxiation by strangulation. On his chest were a number of bruises 
"as if the skin were pinched very hard, very firmly, either 

by a finger or perhaps some object, some instrument." 

The defendant did not testify at trial, but he had made 

prior statements to other trial witnesses about a third party 

being involved. His defense at trial was that a third person 

committed the homicides or compelled him to commit the homicides. The jury found the defendant guilty on all counts 

charged. 

I 

Was Detective Hatfield's entry into and search of the 

defendant's motel room an unconstitutional search? 

The factual circumstances surrounding Detective 

Hatfield's entry into the motel room are critical to the 

resolution of this issue. Therefore, we set out the facts in 

detail. 

When the officers from the Billings police department 

arrived at the Airport Metra Inn shortly before 11 p.m., they 

knew that the Rodstein family had been missing for over 24 

hours and that the family's two cars had been seen near the 

motel. The officers parked near the Rodstein vehicles. A 

neighbor of the Rodsteins who had followed the officers to 

the motel confirmed that the vehicles belonged to the 

Rodsteins. 

Detective Hatfield learned from the motel clerk that the 

Rodsteins had been assigned Room 149 for Wednesday and Thursday nights. The room had since been assigned to a person 

from Bozeman. The clerk also told the detective that a 

person named John Monroe had been in Room 151 for a couple of 

days, and that John Monroe was driving a black Volkswagon 

bug. 

When Detective Hatfield returned to the Rodsteins' cars, 

another detective told him he had seen a man come out of Room 

151 three times while Detective Hatfield was in the motel 
office. The individual was then outside, and Detective 

Hatfield approached and asked if he was John Monroe. The 

defendant said that he was John Monroe, and Detective 

Hatfield identified himself as a Billings police officer. He 

told the defendant that they were looking for the owners of 

the Rodsteins ' cars. The defendant stated that he knew 

nothing about the cars or their owners. Detective Hatfield 

testified that the defendant did not appear to be under the 

influence of drugs. 

The police officers proceeded to search the Rodsteins' 

cars. The defendant then approached Detective Hatfield and 

said he had helped a female between the ages of 12 and 29 

start one of the cars one night. He also told them that 

someone had been "messing around" with the cars in the parking lot one night. Then he returned to his room. 

The officers proceeded to go through Room 149 and allthe unoccupied rooms on that side of the motel. One of the 

officers went to Room 151, knocked on the door, and spoke 

with the defendant just outside the room. At that time, the 

defendant gave the officer his real name and stated that he 

had registered under a false name because he was with a 

married woman. He also said that he had noticed that the 

Rodsteins' cars had been moved while he was staying at the 

motel. 

After checking the unoccupied rooms, the officers decided they ought to check Room 151 because they were becoming 

suspicious of the defendant. Detective Hatfield knocked on 

the door of Room 151 and the defendant opened it, dressed 

only in a yellow towel. Detective Hatfield stated that he 

would like to check the room. Defendant asked why and the 

detective replied that they were looking for anything which 

might help them locate the Rodsteins. At this time, Detective Hatfield was standing just outside Room 151 and the 
defendant was standing in the doorway, with the door ajar. 

Detective Hatfield testified that the room was dimly lit; the 

only light may have been that given off by the television. 

The detective asked if the defendant's girlfriend was in the 

room and the defendant said, "No." Detective Hatfield testified that at that point the defendant "stepped back away from 

the door pulling the door with him." Detective Hatfield 

stepped into the room. He testified that it was his impression that the defendant had by his actions invited him to 

step inside. 

At that point, Detective Hatfield noticed that the 

bedspreads from the beds were piled in the rear of the room. 

Defendant stated, "The bedspreads are in the back of the 

room." Detective Hatfield testified that he said, "Yes," and 

asked why, at which point the defendant said, "Amy, they are 

here to help you. You are going to be okay," or words to 

that effect. Detective Hatfield knew that Amy was the name 

of the missing girl. Detective Hatfield testified that he 

looked at the defendant for a moment and the defendant said, 

"She is in the bathroom." 

Detective Hatfield directed the defendant to stay where 

he was and went to the rear of the motel room. He saw bound 

legs protruding from under the bedspreads, went back to the 

front of the room, and signaled the other officers to come 

in. Detective Hatfield then returned to the back of the 

room, ascertained that Mr. and Mrs. Rodstein and Andrew were 

dead, opened the bathroom door, and found Amy, who was physically unharmed. 

In order to overcome the presumption against waiver of 

the constitutional right prohibiting warrantless searches and 

seizures, the State must show that the defendant gave unequivocal, specific consent to entry, uncontaminated by 

duress or coercion. State v. Brough (1976), 171 Mont. 182, 
185, 556 P.2d 1239, 1241. "The question of voluntariness 

largely depends upon the facts of each case, no single fact 

being dispositive . . . The determination of voluntariness, 

rather, depends upon the 'totality of the circumstances'. 

. . [Tlhe issue of voluntariness is a factual one addressed 

to the discretion of the trial court." [Citations omitted.! 

State v. Allies (1979), 186 Mont. 99, 111, 606 P.2d 1043, 

1049-50, appeal after remand, 621 P.2d 1080. 

Defendant argues that Detective Hatfield's entry into 

the motel room was not justified by his consent. He cites 

State v. LaFlamme (1976), 170 Mont. 202, 551 P.2d 1011, in 

support of his argument. In that case, this Court stated, 

[Ilt is clear that in the absence of a positive 

verbal assent to the search, equivocal conduct 

alone is insufficient as a basis for an inference 

of consent to search, which is a waiver of a constitutional right. 

LaFlamme, 551 P.2d at 1013. The defendant there was suspected of shooting at and damaging a weigh station near Broadus. 

Two police officers approached the defendant and asked if a 

ballistics examination could be made of his weapon. Defendant agreed, and looked for the gun but did not find it. The 

officers suggested that the defendant look in his pickup 

truck, which he did. After a brief search, the defendant 

stated, "Well, I guess it's not here." The sheriff said, 

"How about behind the seat?" Defendant responded, "F7el1, I 

don't think so." The sheriff tipped the seat ahead and 

uncovered the gun. This Court affirmed the lower court's 

conclusion that clear and unequivocal consent to the search 

was not present, even though the sheriff believed from the 

circumstances that the defendant had consented to the search. 
After considering the totality of the circumstances in 

the present case, the District Court concluded that the 

defendant's conduct in admitting Detective Hatfield to the 

motel room was unequivocal. Defendant had been more than 

willing to talk with the police officers during their investigation at the motel. He not only stepped back from the 

door after stating that his girlfriend was not there, but 

also opened it wider. He did not object by actions or words 

to Detective Hatfield entering the room for the few moments 

they stood inside the door talking. The facts of this case 

support the conclusion that he voluntarily and unequivocally 

consented to Detective Hatfield's stepping across the 

threshhold of his motel room. We hold that the District 

Court's ruling on this issue was not an abuse of discretion. 

Following oral argument and submission of this case to 

the Court, defense counsel called the Court's attention to a 

recent Ninth Circuit case, United States v. Winsor (9th Cir. 

1988), 846 F.2d 1569. That case involved a visual search of 

a hotel room after police demanded that the door be opened. 

Because Detective Hatfield's initial entry into the motel 

room was consentual, and in the absence of any demand for 

entry, Winsor is not applicable as to the initial entry. 

Further, where exigent circumstances exist, a warrantless search and seizure may be reasonable. Warden v. Hayden 

(1967), 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782; State v. 

Dess (1982), 201 Mont. 456, 655 P.2d 149. h he ~ourth mendment does not require police officers to delay in the course 

of an investigation if to do so would gravely endanger their 

lives or the lives of others." Warden, 387 U.S. at 298-99. 

Although the United States Supreme Court has not applied an 

exigent circumstances rationale to a situation directly 

comparable to the one here, the Ninth Circuit has formulated 

a rule which we will apply: 
When police officers, acting on probable cause and 

in good faith, reasonably believe from the totality 

of circumstances that (a) evidence or contraband 

will imminently be destroyed or (b) the nature of 

the crime or character of the suspect(s) pose a 

risk of danger to the arresting officers or third 

persons, exigent circumstances justify a warrantless entry, search or seizure of the premises. 

United States v. Kunkler (9th Cir. 1982), 679 F.2d 187, 

191-92. 

We hold that following the defendant's statements to the 

effect that, "Amy, they are here to help you," and, "She's in 

the bathroom," the exigent circumstances justified Detective 

Hatfield's limited search of the motel room. It was probable 

that the Rodsteins were somewhere in the vicinity of the 

Airport Metra Inn, where their vehicles were found. In the 

opinion of Detective Hatfield, an experienced police officer, 

the defendant had acted in an odd or suspicious manner including his several approaches to the investigating officers, 

his inconsistent statements about what he knew about the 

Rodsteins, and his use and then abandonment of a false name. 

Finally, the officers knew that the defendant had been in the 

room adjoining the Rodsteins' room for several days. When 

the defendant called to someone, using the name Detective 

Hatfield knew was that of the missing girl, and then told the 

officer, "She is in the bathroom," we conclude that Detective 

Hatfield had probable cause to search the room for the missing family. 

Further, the police were faced with the probability that 

serious misfortune had befallen the Rodsteins, who, according 

to their friends and family, uncharacteristically had been 

missing for over 24 hours. We conclude that Detective 

Hatfield, acting on probable cause and in good faith, reasonably believed from the totality of the circumstances that 

there was a risk of danger to the Rodsteins justifying a 
search of the defendant's motel room. We hold that the 

exigent circumstances justified Detective Hatfield's warrantless limited search of the room, during which he found Amy 

and the bodies of her family. Before a complete search was 

done of the room, a search warrant was obtained. 

In sum, we hold that there was no violation of the 

defendant's right to be free from unreasonable searches and 

seizures. Defendant consented to the initial entry, and then 

exigent circumstances justified a limited search without a 

warrant. 

I1 

Did the District Court's reaction to the testimony of 

the surviving victim prejudice the case? 

Amy Rodstein was the State's principal witness at this 

trial. Because testifying was very difficult for her, the 

parties agreed that she would be questioned by her own attorney, not by the attorneys representing the State and the 

defendant. Amy's therapist sat with her as she testified, 

and recesses were called whenever Amy's counsel felt that 

they were needed. 

At the conclusion of Amy Rodstein's testimony, she and 

other persons in the courtroom were in tears or nearly so. 

The court ordered a recess, in a voice which "cracked or 

wavered." The defense argues that the court's facial expression and demeanor also conveyed strong emotion. The next 

morning, the defendant moved for a mistrial because of the 

possible effect of the court's actions and demeanor upon the 

jury. The court denied the motion. 

Defendant, as do all criminal defendants, had a constitutional right to trial by an impartial jury. Mont. Const., 

Art. 11, Secs. 24 and 26; U.S.Const. amend. VI. To avoid 

prejudice to the defendant, the judge in a criminal trial 

should avoid making remarks which are calculated in any way 
to influence the minds of the jury. State v. Fuller (1906) , 

34 Mont. 12, 26, 85 P. 369, 374. However, "it is not every 

remark so made that may be alleged as ground of error." 

Fuller, 85 P. at 374. To reverse a lower court's ruling on a 

motion for mistrial, this Court must be presented with evidence that is clear, convincing, and practically free from 

doubt that the trial court's ruling was erroneous. Schmoyer 

v. Bourdeau (1966), 148 Mont. 340, 343, 420 P.2d 316, 317-18. 

The transcript does not convey any potential prejudice 

by the court. The defense's argument hinges on the tone of 

voice and emotional content in which the order for a recess 

was delivered. Defendant relies upon the county attorney's 

statement at the mistrial motion to support his claim. The 

county attorney stated that at most the court's conduct went 

to the weight of the evidence. That, of course, is only the 

county attorney's off-the-cuff remark. The lower court heard 

the arguments of both sides on this issue, and, especially in 

this case, was in a much better position than are we to judge 

whether the jury might have been prejudiced. We cannot 

conclude that the court's ruling denying a mistrial was 

clearly erroneous. We hold that the denial of a mistrial was 

not error. 

Were the sexual paraphernalia and magazines improperly 

admitted into evidence? 

The State introduced into evidence at trial six pornographic magazines and two plastic artificial penises or 

dildoes found in Room 151. Two of the magazines were found 

tucked between drawers of a dresser in the room. The other 

materials were in the duffel bag which the defendant carried 

when he first approached Amy Rodstein. The defense's motion 

- in limine prior to trial to exclude all of these items was 

denied. The court reasoned that although no sexual crime had 
been charged, the State was not prohibited from pursuing a 

sexual motive theory at trial. The defense objected at trial 

to the admission of the two magazines found between the 

drawers on the basis that they were irrelevant, or, if relevant, that their relevance was outweighed by their prejudicial effect. That motion was also denied. The defense 

argues that no sexual crime was charged and no sexual motive 

theory was presented. 

Absent abuse of discretion, this Court will uphold a 

district court's weighing of the potential prejudice of a 

piece of evidence against its probative value. State v. 

Austad (1982), 197 Mont. 70, 83, 641 P.2d 1373, 1380. We 

note in considering the relevance of the above materials that 

there seems to be no rational and obvious plan or purpose for 

these murders. A theory of a planned sexual motive, while 

not proven to be fulfilled, is consistent with several facts: 

the defendant's initial approach to Amy when she was alone, 

his treatment of her which was different from his treatment 

of the other family members, and the unfastened state of Mrs. 

Rodstein's clothing. These facts were brought out by the 

prosecution at trial. It was not necessary that the State 

draw the final conclusion for the jury that there may have 

been a sexual motive behind these crimes. The District Court 

ruled that these pieces of evidence were admissible to show 

motive, and we find no abuse of discretion in that ruling. 

The District Court also ruled that these materials were 

admissible into evidence as part of the corpus delicti. The 

State is entitled to present matters closely related to the 

charged offense and explanatory of it as part of the corpus 

delicti. State v. Gillham (19831, 206 Mont. 169, 179, 670 

P.2d 544, 549. We conclude that there was no abuse of discretion in the District Court's conclusion that the magazines 

and sexual paraphernalia were admissible as part of the 
corpus delicti of the crimes with which the defendant was 

charged. We hold that admission of the sexual paraphernalia 

and. pornography was not error. 

IV 

Did the prosecutor improperly comment upon the defendant's silence? 

The Fifth Amendment to the United States Constitution 

guarantees criminal defendants a privilege against compulsory 

self-incrimination. Art. 11, Sec. 25 of Montana's Constitution guarantees the same right. Prosecutorial comments deny 

the accused this privilege when the language used is manifestly intended or is of such character that the jury would 

naturally and necessarily take it as a comment on the failure 

of the accused to testify. State v. Anderson (1970), 156 

Mont. 122, 125, 476 P.2d 780, 782. 

In United States v. Robinson (U.S. Feb. 24, 1988), No. 

86-937, the defendant was charged with mail fraud involving 

arson-related insurance claims. The defense at trial, at 

which the defendant did not testify, was that the government 

had breached its "duty to be fair" by denying the defendant 

the opportunity to explain his actions. In the State's 

closing argument, the prosecuting attorney told the jury that 

the defendant "could have taken the stand and explained it to 

you." The Court held that the defendant's privilege against 

self-incrimination was not violated bv this comment upon his 

failure to testify. Where the State's reference to the 

defendant's silence is a fair response to a claim made by the 

defendant or his counsel, there is no violation of the privilege against self-incrimination. Robinson, slip op. at 7. 

In the present case, a witness for the defense testified at trial that some of the defendant's acquaintances were 

conducting a drug deal at the Airport Metra Inn on the date 

the Rodsteins were kidnapped. He further testified that he 
heard one of these acquaintances say that the defendant had 

taken some hostages at a motel, and the other one told him to 

make the defendant "correct it," if necessary. 

The State's attorney asked a police officer who testified at trial if "you [have] ever been able to get a statement from the Defendant." The defense objected to the 

question, and it was withdrawn. The officer did not answer 

the question. Since no answer was given, we conclude that 

this question about the defendant's silence was harmless. 

In its closing argument, the State's attorney referred 

to the defendant's statement to one of the officers that, 

"You should have seen what he [the third personl did to that 

kid." The attorney then said, "Where is this guy [referring 

to the third personl located at in Room 151? He [the defendant] doesn't tell [the two officers] anything." This reference was clearly in response to the defense presented at 

trial. We conclude that this reference to the defendant's 

silence was admissible under Robinson. 

v 

Was the defendant denied a jury trial as to those facts 

of the crime which are now denominated as aggravating circumstances, and does the evidence support the court's findings 

on these circumstances? 

The defense discusses the right of a defendant at the 

common law to have a jury determine whether the crimes 

charged were committed with express malice. It argues that 

the aggravating circumstances with which the court justified 

the death penalties under 55 46-18-302 to 305, MCA, are 

equivalent to a finding of malice. It argues that because of 

this historical situation, the defendant is entitled to have 

a jury determine the facts constituting the aggravating 

circumstances. 
Regardless of the historical argument, the aggravating 

circumstances found against the defendant are related to 

sentencing only, and are not elements of the crimes charged. 

Jury participation is not constitutionally required in capital sentencing proceedings. State v. Smith (Mont. 1985), 705 

P.2d 1087, 1106, 42 St.Rep. 463, 487, cert. denied, 474 U.S. 

1073. We conclude that the defendant was not entitled to a 

jury determination of whether the aggravating circumstances 

were present in this case. 

The defense also argues that the evidence does not 

support the court's finding that the homicides were committed 

by means of torture. See § 46-18-303(3), MCA: "The offense 

was deliberate homicide and was committed by means of torture." The defense argues that if the victims were unconscious when they were killed, they were not killed by means 

of torture. It also argues that the defendant's acts before 

the victims were rendered unconscious did not kill them, so 

that it cannot be said that they were killed by means of 

torture. 

The Rodsteins were bound and gagged tightly enough that, 

according to the medical testimony, they would have died of 

suffocation if they hadn't been strangled. They were forced 

to see their family members similarly bound and gagged and 

their teenage daughter and sister taken by the defendant out 

of the room where they were captive. They then were forcefully injected or witnessed the injection of their family 

members with unknown drugs. Mr. Rodstein was strangled with 

sufficient force to break his voicebox. Mrs. Rodstein was 

hogtied, with her legs bent up behind her. Andrew Rodstein 

was subjected to the peculiar injuries to his chest. We hold 

that there is substantial evidence to support the District 

Court's finding that the R.odsteins were killed by means of 

torture. 
Next, the defense argues that the trial judge improperly 

applied S 46-18-303 (4), MCA: "The offense was deliberate 

homicide and was committed by a person lying in wait or 

ambush." The defense asserts that several elements required 

under the common law antecedent of this statute are missing: 

secret waiting, watching from concealment, and presence of 

the murder weapon during the waiting and watching. 

When the defendant approached Amy Rodstein in the parking lot, he had already laid out tape and gags on a bed in 

his room. He approached her carrying a duffel bag from which 

the muzzle of a gun protruded. We conclude that it is imrnaterial whether the actual murder weapon, the telephone cord 

with which the victims were strangled, was the defendant's or 

the Rodsteins'. Defendant had laid out the tape and gags and 

had with him syringes, drugs, and the unloaded gun. We 

conclude that there is substantial evidence to support the 

District Court's finding that the deliberate homicides were 

committed by a person lying in wait or ambush. 

VI 

Did the trial court err by considering the defendant's 

silence at trial in imposing the death penalty? 

The court's findings in its sentencing order included 

the following: 

The Court has had the opportunity to observe 

the Defendant during the entire trial and throughout all proceedings. His conduct in all proceedings has been appropriate. Scarcely a word has 

been spoken in the Court's presence. The complete 

lack of emotion and cool detachment in his demeanor 

has been noted throughout. As Dr. Van Hassel 

testified, lack of an emotional response can be a 

coping mechanism of denial, or a personality that 

shows no overt emotion normally or, finally, that 

the person truly is not concerned. Whatever the 

reason, the Defendant has demonstrated no remorse 
or genuine concern or respect for human life to the 

time of sentencing. 

The defense argues that this finding constitutes improper 

consideration of the defendant's constitutional right to 

remain silent. It argues that the case should be remanded 

for resentencing without consideration of this factor, because the defendant would have to give up his right to remain 

silent in order to show remorse. 

The scope of matters which a court may consider in 

sentencing goes beyond matters admissible in a criminal 

trial. Section 46-18-302, MCA. The above finding could 

express absence of a mitigating factor. In any event, we 

conclude that the presence of this finding is not significant 

because of the presence of several other findings warranting 

imposition of the death penalty. 

VI I 

Did the sentencing judge improperly consider the victim 

impact statement and characteristics of the victim? 

The presentence investigation report given to the judge 

prior to sentencing contained a three-paragraph "victim's 

impact statement" which stated that three of the four members 

of the Rodsteins' immediate family are deceased as a result 

of this crime. It also stated that Amy was undergoing psychological counseling and gave the cost of that counseling. 

Further it stated that Amy's performance at the time the 

report was written had been described by her therapist as 

"not doing so well." 

The defense argues that under Booth v. Maryland (1987), 

482 U.S. - , 107 S.Ct. 2529, 96 L.Ed.2d 440, the District 

Court's receipt and consideration of evidence of the effect 

of the crime upon the Rodsteins, and upon Amy Rodstein in 

particular, violates the Eighth Amendment. It asserts that 

resentencing is required because of this error. 
As was true in State v. Keith (Mont. 1988), 754 P.2d 

474, 487-88, 45 St.Rep. 556, 573-75, the situation in this 

case differs from that in Booth in several particulars. 

Sentencing in this case was by the court, not by jury as in 

Booth. The victim impact statement here consisted of three 

paragraphs. In Booth the victim impact statement was a 

lengthy and poignant collection of statements by the victims' 

surviving family. We conclude as we did in -- Keith that Booth 

is not controlling because of important factual distinctions. 

We hold that the sentencing judge properly considered the 

victim impact statement and the characteristics of the 

victims. 

VIII 

Should a jury have participated in the sentencing 

process? 

The defense concedes that both this Court and the United 

States Supreme Court have ruled that death penalty sentencing 

need not be done by a jury to be constitutionally sound. 

State v. Smith (Mont. 19851, 705 P.2d 1087, 1105-06, 42 

St.Rep. 463, 486-87, cert. denied, 474 U.S. 1073; Proffitt v. 

Florida (1976), 428 U.S. 242, 252, 96 S.Ct. 2960, 2966, 49 

L.Ed.2d 913, 922-23. It argues perfunctorily that since the 

Montana Legislature meets only in alternate years, jury 

participation in death penalty sentencing is important so 

that current community sentiment is expressed. 

We decline the defense's invitation to overrule Smith 

and distinguish Proffitt. We again hold that a jury need not 

be the sentencing body where the death penalty is imposed. 

Should the absence of a prior criminal history on the 

part of the defendant be treated as sufficiently substantial 

to warrant leniency? 
In its sentencing order, the court found that one 

statutory mitigating circumstance under § 46-18-304, MCA, was 

present: the defendant had no significant history of prior 

criminal activity. Section 46-18-304 (I), MCA. The defense 

argues that the presence of this mitigating factor is sufficient to warrant leniency. 

We have previously rejected the proposition set forth by 

the defense. State v. Smith (Mont. 1985), 705 P.2d 1087, 

1097, 42 St.Rep. 463, 476, cert. denied, 474 U.S. 1073; State 

v. Coleman (1979), 185 Mont. 299, 331-32, 605 P.2d 1000, 

1019-20, cert. denied, 446 U.S. 970. Here we again conclude 

that it was not error for the District Court to refuse leniency when the nature of the crimes of which the defendant 

has been convicted is weighed against his lack of a significant prior criminal history. 

Does S 46-18-305, MCA, violate the Eighth Amendment? 

The defense argues that § 46-18-305, MCA, allows the 

imposition of cruel and unusual punishment because it does 

not sufficiently narrow the class of death-eligible defendants. That statute provides: 

Effect of aggravating and mitigating circumstances. In determining whether to impose a sentence of death or imprisonment, the court shall 

take into account the aggravating and mitigating 

circumstances enumerated in 46-18-303 and 46-18-304 

and shall impose a sentence of death if it finds 

one or more of the aggravating circumstances and 

finds that there are no mitigating circumstances 

sufficiently substantial to call for leniency. If 

the court does not impose a sentence of death and 

one of the aggravating circumstances listed in 

46-18-303 exists, the court may impose a sentence 

of imprisonment for life or for any term authorized 

by the statute defining the offense. 
The defense acknowledges that its argument has previously 

been rejected by this Court. See State v. ~c~enzie (1980) , 

186 Mont. 481, 514-19, 608 P.2d 428, 448-51, cert. denied, 

474 U.S. 1073. We affirm our holding from Mc~enzie. 

XI 

Review of the sentence under S 46-18-310, MCA. 

Under S 46-18-310, MCA, this Court, in reviewing a death 

sentence, must determine 1) whether the sentence was imposed 

under the influence of passion, prejudice, or any other 

arbitrary factor; 2) whether the evidence supports the 

judge's findings on any mitigating and aggravating circumstances; and 3) whether the sentence is excessive or disproportionate to the penalty imposed in similar cases, 

considering both the crime and the defendant. 

As to the first determination, the defense has not 

argued that the sentence was imposed under the influence of 

passion, prejudice, or any other arbitrary factor. Issue VII 

does discuss and rule upon a related issue with regard to the 

victim impact statement. We have reviewed the record and 

conclude that there is no indication in that record that the 

sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor. 

The second determination requires this Court to consider 

whether the evidence supports the judge's findings of the 

existence of aggravating and mitigating circumstances as 

enumerated in the statute. We have made a determination on 

two of the aggravating circumstances under Issue V. The 

other two aggravating circumstances found by the District 

Court are that the offenses were deliberate homicides committed as part of a plan or scheme whereby more than one person 

would die, and that the offenses were aggravated kidnappings 

resulting in the deaths of the victims. Sections 
46-18-303 (5) and (7) , MCA. Clearly, the evidence supports 

both of those findings. 

Last we are to determine whether the sentence is excessive or disproportionate to the penalty imposed in similar 

cases, considering both the crimes and the defendants. No 

argument has been made on this issue by the defendant. 

However, in accordance with our statutory duty, we have 

considered the five Montana death penalty cases since 1973. 

The facts of these cases are discussed in Keith, 754 P.2d at 

480-81. 

The crimes in this case extended over a number of hours, 

including the kidnapping of the four persons, the binding and 

gagging of the persons, the injection of substances into Mr. 

and Mrs. Rodstein, the subsequent strangulation of Mr. and 

Mrs. Rodstein with the telephone cord, the giving of a liquid 

to 11-year old Andrew Rodstein in order to make him sleep, 

and the strangling of Andrew. The defendant gave Amy a 

similar liquid to drink but because she poured it out when 

the defendant was not looking she may have been protected 

from her own deliberate homicide. As previously discussed, 

the deliberate homicides were committed by means of torture 

and by the defendant lying in wait or ambush. As discussed 

above, the aggravating circumstances also include that the 

offenses were deliberate homicides committed as a part of a 

scheme or operation which resulted in the deaths of three 

persons, including the 11-year old, and that the offenses of 

aggravated kidnapping resulted in the deaths of the victims. 

We have considered the crimes and the defendants in each 

of the cases discussed in Keith and compared the same to the 

crimes and the defendant in the present case. In comparing 

the crimes, we conclude that the crimes committed by the 

defendant were at least as grievous and heinous as were those 

involved in the other described death penalty cases. We also 
conclude, after considering the defendants in each of the 

cases cited in Keith, that the defendant's lack of a prior 

criminal history, when weighed against the nature of the 

crimes of which he was convicted, does not make his sentence 

disproportionate in comparison with the other cases. Finally, we have considered State v. Keefe (Mont. 1988), - P.2d 

- , 45 St.Rep. 1034, in which the defendant was not sentented to death although he was convicted of the deliberate 

homicides of three family members in their home. However, 

that defendant was under the age of 18 at the time the crimes 

were committed. 

We hold that the sentences of death given in the present 

case are not excessive or disproportionate to the penalty 

imposed in similar cases in Montana, considering both the 

crimes and the defendants. As required by § 46-18-310, MCA, 

in reaching this conclusion, we have considered the punishment as well as any errors enumerated by way of appeal. 

We affirm the judgment of the District Court. This 

cause is remanded to the District Court for the setting of an 

execution date. 

We Concur: 

H 
RP. I& 

Justices