No. 84-199 

IN THE 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 o 1985 
Mr. Justice John 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 to pleas of guilty entered in the 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 to reconsider the record and 

remand the matter for an 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 after argument in this case. 

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 from Alberta, Canada. The three encountered the two 

victims, Mad Man and Running Rabbit, at a bar in East 

Glacier, Montana. While at the bar, 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 to eliminate any 

witnesses to the theft. Shortly thereafter, the three men 

were picked up by Mad Man and Running Rabbit. The men drove 

for approximately twenty minutes and stopped to allow Mad 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 at the driver. Munro displayed 

his knife to the passenger. The defendant and Munro marched 

the two victims into the trees. The defendant shot Harvey 

Mad Man in the back of the head at point-blank range. He 

reloaded the rifle, walked several feet to where Thomas 

Running Rabbit had fallen to the ground upon being stabbed by 

Munro, and shot him in the temple at point-blank range. Both 

men were killed instantly. The defendant and the other two 

then stole the victims' car and proceeded to California. The 

car was later r~covered when Fontaine and Munro were arrested 

for armed robbery in California. The defendant was arrested 

in Wyoming. 

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, at which time the defendant entered a plea 

of "not guilty" to all charges. On February 24, 1983, the 

defendant entered a change of plea. The defendant admitted 

shooting both victims in the head. The court was apprised of 

the defendant's intention to seek the death penalty. 

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 for eight of the last ten years, and that he had lived 

by petty theft and selling drugs when he was not in prison. 

He testified in detail about the sixteen prior offenses 

listed in the presentence report. He testified to the facts 
of the killing. He stated that Munro was aware of his intent 

to kill the victims because he intended to steal their car 

and wished to leave no witnesses. He stated that in addition 

to his desire to eliminate the witnesses to the car theft, 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 to himself 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 at the conclusion of the hearing to 

determine the existence and nature of any aggravating or 

mitigating circumstances, the court imposed a sentence of 

death upon the defendant. 

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 to change his mind 

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 of 
solitary 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 four hundred "hits" of LSD during 

the period of time immediately prior to their entry to the 

United States, ending the day before the murders. 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, to examine 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 in performing his examination. 

The court held a hearing on defendant's motion for 

reconsideration of the sentence on December 1, 1983. At the 

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. He based his conclusions on the defendant's 

testimony and statements regarding his extensive use of LSD 

and his conduct on the day of the crime. According to Dr. 

Stratford, after three or four consecutive days of heavy LSD 
usage 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 

that the use of eight or nine, or even as many as fifty doses 

of LSD would not have affected the defendant's mental state 

when he committed the homicides. 

Rodney Munro, the defendant's accomplice also testified at the hearing. Munro stated that at the 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 

shot him, and that it was 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 its original sentence. The court found that beyond 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-v Wethe an- LC UC 

a -.- -.. A .> AY .-A*..' , 

-t-.tn ",.,-,t. 

"L. " I-l 

'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 of 
alcohol and drugs was voluntary, and did not impair or 

otherwise affect his state of mind, his capacity to recognize 

and appreciate th~ criminality of his conduct or his 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 to determine whether the 

defendant is entitled to an additional psychiatric exam 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 direct application 

to Montana's capital sentencing proceeding and to the present 

case. 

In Ake v. Oklahoma, supra, an indigent defendant was 

charged with first-degree murder. At his arraignment the 

trial judge ordered him to be examined by a psychiatrist due 

to his bizarre behavior. The defendant was initially found 

incompetent to stand trial, but six weeks later he was found 

comp~tent so long as he continued to be sedated with 

anti-psychotic drugs. The defendant raised the insanity 
defense and requested a psychiatric evaluation to determine 

his mental state at the time of the offense. The trial court 

denied defendant's motion for such an evaluation. The United 

States Supreme Court reversed and held that when a defendant 

has made a preliminary showing that his sanity at the time of 

the offense is likely to be a significant factor at trial., 

the constitution requires that the state provide access to a 

psychiatrist's assistance on this issue, if the defendant 

cannot otherwise afford one. 

We find the - Ake decision readily distinguishable from 

the case at bar. 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 that existed in - Ake, the state did not rely upon or 

present psychiatric evidence to establish any aggravating 

factors at sentencing. Further, in this case, at no time did 

the State attempt to elicit from Dr. Stratford an opinion 

concerning future dangerousness of the dependant. 

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, 

there was no expert testimony for either side on 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 to the defendant' s state of mind 

at the time of the offense including: 

(a) the effect of alcohol and drugs on 

the defendant's state of mind; 

(b) whether the defendant acted under 

extreme mental or emotional stress; 

(c) whether the defendant ' s capacity to 

appreciate the criminality of his conduct 

to the requirements of law was 

substantially impaired; and 

(d) a diagnosis of the defendant's 

mental condition. State v. Smith, 42 

St.Rep. at 479. 

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 initia 1 request for the psychiatric evaluation. 

Following the examination and the psychiatrist's conclusion 

regarding the defendant's state of 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 merit to this case. 

The defendant also argues that he was not provided 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 in his briefs and argument is identical to that in 

the first appeal, State v. Ronald Allen Smith, supra. 

We have considered the argument not only in light of 

the issues raised in the original appeal, but also on 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 to choose a ~svchiatrist of his 

personal liking or ioL receive fuas -Ei; 

hire his own. Our concern is 

that the indigent defendant have access 

- to - a competent psychiatrist for the 

purpose we have discussed, and as in the 

case of the provision of counsel we leave 

to the State the decision on how to 

implement this right. (Emphasis added.) 

- Ake, supra, 105 S.Ct. at 1097. 

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 his mental condition. 

We find the defendant was afforded this right. The record 

clearly reflects Dr. Stratford ' s educationa 1 and professiona 1 

qualifications. Dr. Stratford interviewed the defendant on 

two occasions at the Plontana 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 evaluation was necessary. 

Accordingly, we find that Ronald Allen Smith is not 

entitled to a second psychiatrist's evaluation. 
We concur: 

,.-.f 

Justices