No. 84-199 INTHE SUPREME COURT OF THE STATE OF MONTANA 1985

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 Michael Keedy, Judge presiding.

COUNSEL OF RECORD:

For Appellant: Gary G. Doran argued, Kalispell, Montana

For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana James Scheier argued, Asst. Atty. General, Helena Ted 0. Lympus, County Attorney, Kalispell, Montana

Submitted: June 25, 1985 Decided: September 10, 1985

Filed: 

## Skp

# i

# o1985Mr. JusticeJohn Conway Harrison delivered the Opinion of the Court.

The defendant, Ronald Allen Smith, was convicted of aggravated kidnapping, two counts, and deliberate homicide, two counts. The defendant was convicted of each count pursuant topleas of guilty entered inthe

### District Court of Flathead County, State of Montana. The defendant was sentenced 

### to death. The judgment and sentence

### were affirmed by this Court in State v. Ronald Allen Smith (Mont. 1985), P.2d. 

## , 42 St.Rep. 463.

This Court 

### is again asked toreconsider the record and remand thematter foran additional psychiatric evaluation of defendant and a rehearing of the defendant's sentence, based upon a United States Supreme Court case of Ake 

### v. Oklahoma (19851, U.S. 

### , 105 S.Ct. 1087, 84 L.Ed.2d 53, which

came down afterargument inthiscase. On August 4, 1982, defendant kidnapped and killed Harvey Mad Man, Jr., and Thomas Running Rabbit, Jr., at a remote location near U.S. Highway 2, 

### west of the eastern border of Flathead County. On August 

### 3, 1982, the defendant and two companions, Andre Fontaine and Rodney Munro, had departed fromAlberta, Canada. The three encountered thetwo victims, Mad Man and Running Rabbit, at a bar in East Glacier, Montana. While atthebar, the three shot pool and drank beer with Mad Man and Running Rabbit. The three left the bar in East Glacier and hitchhiked 

### west along Highway 2. There had been discussion between the defendant and Andre Fontaine about stealing a car and the need toeliminate any witnesses to the theft. Shortly thereafter, the three men


### were picked up by Mad Man and Running Rabbit. The men drove forapproximately twenty minutes and stopped toallowMad Man

### and Running Rabbit to relieve themselves. When the two men got back into the car, the defendant pulled a 

### sawed-off single-shot bolt action .22 

### rifle, brought illegally into this country, and pointed 

### it atthe driver. Munro displayed his knife tothepassenger. The defendant and Munro marched the two victims into the 

### trees. The defendant shot Harvey Mad Man in the back of the head atpoint-blank range. He 

### reloaded the rifle, walked several feet to where Thomas Running Rabbit had 

### fallentotheground upon being stabbed by Munro, and shothim inthetemple atpoint-blank range. Both

men 

### were killed instantly. The defendant and the other two then stolethevictims' car and proceeded toCalifornia. The

carwas laterr~covered when Fontaine and Munro 

### were arrested for armed robbery inCalifornia. The defendant was arrested inWyoming. An information was filed charging the defendant with two counts of aggravated kidnapping and two counts of deliberate homicide. An arraignment hearing was held on November 1, 1982, atwhich 

### timethe defendant entered a plea of "not guilty" to all charges. On February 24, 1983, the defendant entered a change of plea. The defendant admitted shootingbothvictims inthehead. The courtwas apprised of thedefendant's intention toseek thedeathpenalty. At

### the sentencing hearing on March 21, 1983, the court and parties reviewed the presentence report and, after one minor correction, the court admitted 

### it without objection. At 

### the hearing, the defendant testified that he 

### had been in prison foreightof the lasttenyears, and thathe had lived by petty theft and sellingdrugs when he was not inprison. He 

### testified in detail about the sixteen prior offenses listed in thepresentence report. He testified tothe factsof the killing. He statedthatMunro was aware of hisintent to kill the victims because he intended 

### to steal their car and wished toleave nowitnesses. He statedthatin addition tohisdesiretoeliminate thewitnesses tothe cartheft, he had had a "morbid fascination to find out what 

### it would be like to kill somebody." He testified that he had consumed two or three beers on the night of the 

### crime but that his ability to understand his actions 

### were not impaired. He testified he sought the death penalty because a prolonged period of incarceration would be of no benefit tohimself or society and because he foresaw problems with the Indian population at the prison. He testified that he felt no

remorse for the killings, that he considered himself a violent person, and that he felt he could kill again. He stated that he had no desire to change his lifestyle. Following extensive questioning by the court, the defendant denied being under the influence of drugs, intoxicants or extreme 

### stress and stated that he knew of no mitigating circumstances. On March 

### 21, 1983 atthe conclusion of the hearing to determine the existence and nature of any aggravating or mitigating circumstances, the court imposed a sentence of deathupon thedefendant. Subsequently, the defendant filed 

### a motion to seek a reconsideration of the death penalty and a motion for a psychiatric examination. The court held a hearing on the motions on May 3, 1983. At the hearing, the defendant testified that his family had induced him tochange hismind and seek a 

### lesser penalty than death. He testified that his earlier desire for the d~ath penalty was the product of depression which had resulted from the long period ofsolitary confinement in the Flathead County Jail following his arrest. He further testified that 

### he had designed his earlier testimony to induce the court to sentence him to death, and that he had concealed a potential mitigating factor--his use of drugs and alcohol. 

### He testified that he and Munrn had us~d three or fourhundred "hits" of LSD during the period of 

### time immediately prior totheir entry to the United States, ending theday before themurders. He further testified that on the day of the 

### crime he had consumed approximately 

### twelve beers. On June 10, 1983 the court granted the defendant's motion for psychiatric evaluation. The court appointed a psychiatrist, Dr. William Stratford, toexamine the defendant and report to the court as to: 

### (1) whether he could determine which of the versions given by the defendant was credible; and 

### (2) what was the defendant's mental condition on August 

### 4, 1982. The defendant requested the court 

### to amend 

### its order deleting the investigative function of Dr. Stratford. The court amended 

### its order and directed Dr. Stratford to assume the truth of defendant's second version of the facts inperforming hisexamination. The court held a hearing on defendant's motion for reconsideration of the sentence on December 

### 1, 1983. Atthe hearing, Dr. Stratford testified that he found no evidence that the use of drugs or alcohol affected the defendant's capacity to appreciate the criminality of his conduct, conform his conduct to the requirements of law, or form a criminal intent. Hebased hisconclusions on thedefendant's testimony and statements regarding his extensive use of 

### LSD and his conduct on the day of the 

### crime. According toDr. Stratford, after three or four consecutive days of heavy LSDusage the user develops a tolerance for the drug. As a result, large doses have little or no effect. Given the defendant's history of heavy LSD usage for a period of one month or more prior to the 

### crime, Dr. Stratford concluded thattheuse of eightornine, oreven asmany as fiftydoses of LSD would not have affected the defendant's mental state when he committed thehomicides. Rodney Munro, the defendant's accomplice also 

### testified atthe hearing. Munro stated that atthe 

### time of the crime, he was experiencing confusion, flashes 

### of light and hallucinations, having ingested approximately the same amount of drugs and alcohol as the defendant. He also testified that he had stabbed Running Rabbit once before the defendant shothim, and that

### itwas possible Running Rabbit was already dead before he was shot. On December 

### 12, 1983, the defendant filed his motion for an additiona

### 1 psychiatric evaluation

# . The defendant

## 's motion was denied. 

### In reviewing defendant

## 's motion for reconsideration, the court entered findings of fact and conclusions of law to support 

### itsoriginal sentence. The court found thatbeyond a reasonable doubt the aggravated kidnappings committed by the defendant resulted in the death of his victims, satisfying the statutory aggravating circumstance stated in section 46-18-303, MCA. u 

# - 4L-vWethe an- LCUC

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### ,

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'3 -'I M3k The court found beyond a reasonable doubt that no mitigating circumstances 

### were present. The court found that without exception, the defendant's consumption ofalcohol and drugs was voluntary, and did not impair or otherwise affecthis stateof mind, hiscapacity torecognize and appreciate th~ criminality of his conduct orhis ability to control his actions and to conform his conduct to the requirements of law. The court concluded that the defendant made a cr>nscious and voluntary choice to kill the victims notwithstanding his use of drugs and alcohol, and that intoxication was not 

### a sufficient mitigating circumstance to call for leniency. The defendant appealed from the sentence imposed. 

### We affirmed. State

### v. Ronald Allen Smith, supra. Defendant's petition for rehearing 

### is based on Ake 

### v. Oklahoma (1985), U.S. 

## , 105 S.Ct. 1087, 84 L.Ed.2d 53. Our province on the appeal 

### is todetermine whether the defendant 

### isentitled toan additional psychiatricexam under Ake, supra. The defendant argues that the Ake decision 

## - - established a constitutional right for defendant's access to competent psychiatric assistance where such assistance 

### is essential to the effective defense of the case. The defendant argues that in light of the 

## - Ake decision, he 

### is entitled to an additional psychiatric examination. We disagree. We find the 

## - Ake decision lacks directapplication toMontana's capital sentencingproceeding and tothepresent

case. In Ake 

### v. Oklahoma, supra, an indigent defendant was charged with first-degree murder. At his arraignment the trialjudge ordered him tobe examined by a psychiatrist due to his bizarre behavior. The defendant was initially found incompetent to stand trial, but sixweeks laterhe was found comp~tentso long as he continued to be sedated with anti-psychotic drugs. The defendant raised the insanity

### defense and requested a psychiatric evaluation to determine hismental stateatthe

### timeof the offense. The trialcourt denied defendant's motion for such an evaluation. The United States Supreme Court reversed and held thatwhen a defendant has made a preliminary showing thathis sanityatthe

### timeof the offense 

### is likely to be a significant factor attrial., the constitution requires that the stateprovide access toa psychiatrist's assistance on this issue, if the defendant cannot otherwise afford one. We 

### find the 

## - Ake decision readily distinguishable from the case atbar. First, the psychiatric testimony in 

## - Ake raised the issue of the defendant's future dangerousness, which in Oklahoma 

### is a statutory aggravating factor in a capital sentencing proceeding. Oklahoma Stat., Title 21, 

### S152 (1981). In Montana, future dangerousness 

### is not a statutory aggravating circumstance under the state's capital sentencing scheme. Section 46-18-303, MCA. 

### Unlike the situation thatexisted in

## - Ake, the statedid not relyupon or present psychiatric evidence to establish any aggravating factors atsentencing. Further, inthiscase, atno 

### timedid the State attempt to elicit from Dr. 

### Stratford an opinion concerning futuredangerousness of thedependant. Second, in Ake there was a trial. The defendant's 

## - sanity was a 

### significant factor in his 

### defense. In the present matter, the defendant plead guilty to the homicide and 

### aggravated kidnapping offenses. Third, in the United States Supreme Court decision, therewas no expert testimony foreither sideon Ake's sanity at the 

### time of the offense. Ake, 105 S.Ct. at 1091. 

## - However, in Smith, supra, Dr. 

### Stratford, the psychiatrist,

### gave extensive testimony as tothe defendant'

### s state of mind atthe

### timeof the offense including: (a) the effect of alcohol and drugs on thedefendant's stateof mind; (b) whether the defendant acted under extrememental oremotional 

### stress; 

### (c) whether the defendant

## 's capacity to appreciate the criminality of hisconduct to the requirements of law was substantially impaired; and (d) a diagnosis of the defendant's mental condition. State 

### v. Smith, 

### 42 St.Rep. at479. Fourth, in 

## - Ake, the trial court denied defense counsel

## 's request for a psychiatric examination of defendant with respect to his mental condition at the 

### time of the offense. In the present case, the trial court granted defendant

## 's initia1 request for the psychiatric evaluation. Following the examination and the psychiatrist's conclusion regarding the defendant's stateof mind, the defendant filed

a 

### motion for an additional psychiatric evaluation. The second motion was denied. Based on the foregoing, 

### we find the 

## - Ake decision readily distinguishable and without precedential 

### merittothis case. The defendant alsoargues thathe was notprovided with

a 

### competent psychiatrist. The defendant repeats his contention raised in the initial appeal that Dr. 

### Stratford's role was contaminated by the investigative function imposed by the District 

### Court. This contention raised by the defendant inhisbriefs and argument 

### is identical tothat in the firstappeal, State

### v. Ronald Allen Smith, supra. We 

### have considered the argument not only in light of the issuesraised intheoriginal appeal, but alsoon the 

## - Ake decision. The United State Supreme Court in 

## - Ake, noted:This 

### is not to say, of course, that the 

## -- indigent defendant has a constitutional riaht tochoose a ~svchiatristof his



# - personal likingor ioL 

### receive fuas-Ei; hire his own. Our concern 

### is thatthe indigent defendant have access to a competent psychiatrist for the 

## - - purpose 

### we have discussed, and as in the caseof theprovision of counsel 

### we leave to the State the decision on how to implement this right. (Emphasis added.) Ake, supra, 

### 105 S.Ct. at1097. 

## - The basic tenent of the 

## - Ake decision was to assure an indigent defendant's access to a competent psychiatrist for the preparation of a defense based on hismental condition. We find the defendant was afforded this right. The record clearlyreflectsDr. Stratford

## 's educationa

### 1and professiona

### 1 qualifications. Dr. Stratford interviewed the defendant 

### on two occasions atthePlontana State Prison and considered the transcripts of the prior proceedings, the presentence report and witness statements provided by the defendant. Dr. Stratford also interviewed Rodney Munro and Andre Fontaine and secured a psychological profile of the defendant from Dr. Herman Wa

### lters. Dr. Stratford's conclusion was that Smith had the capacity to appreciate the criminality of his conduct and that the drugs and alcohol did not have a substantial effect

on the defendant's state of mind. The record demonstrates that Dr. Stratford was a neutral psychiatrist who examined Smith as to his sanity at the 

### time of the offenses. Dr. Stratford testified to the foregoing at the hearing and 

### it

was on that basis that this Court found no additional psychiatric evaluationwas necessary. Accordingly, 

### we find that Ronald Allen Smith 

### is not entitled toa second psychiatrist's evaluation.

### We 

### concur: ,.-.f



### Justices