No. 89-272 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

STATE OF MONTANA, 

Plaintiff and Respondent, 

RUSSELL HEIT, 

Petitioner/defendant and Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable William J. Speare, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

R. Allen Beck, Billings, Montana 

For Respondent: 

Marc Racicot, Attorney General 

Harold Hanser, County Attorney 

Curtis L. Bevolden, Deputy County Attorney 

Submitted on Briefs: April 12, 1990 

Decided: May 10, 1990 

a, 

"clerk 
Justice R. C. McDonough delivered the Opinion of the Court. 

The defendant Russell T. Heit appeals the judgment of the 

Thirteenth Judicial District Court, Yellowstone County, convicting 

him of deliberate homicide and robbery, sentencing him to onehundred and fifty years in the Montana State Prison, and denying 

him parole eligibility. We affirm the judgment, sentence, and 

order. Heit raises the following issues on this appeal: 

(1) Did the District Court err in refusing an instruction on 

mitigated deliberate homicide as a lesser included offense of 

deliberate homicide? 

(2) Did the trial court err in admitting evidence of the 

defendant's statements to a psychologist in sentencing, where this 

evidence was the apparent basis for the trial court's declaration 

that the defendant was ineligible for parole? 

(3) Did the trial court fail to include a statement of 

reasons in declaring the defendant ineligible for parole as 

required by 46-18-202 (2), MCA. 

On the afternoon of September 28, 1988 the body of bartender 

Gary Loos was found lying in a pool of blood behind the bar of the 

Acton Bar. Loos had been killed by a gunshot wound to the neck. 

A cash tray from the bar's cash register was found near the body. 

Sheriff's deputies investigated the scene and among the items 

recovered were an unspent .22 caliber cartridge in front of the 

bar, a spent .22 shell on the back bar, two beer cans in front of 

the building and one on the bar, all with the defendant's 

fingerprints, a pack of Merit cigarettes, and a Merit cigarette 

2 
butt in an ashtray in the center of the bar. The deputies also 

interviewed several people who had seen a man matching Heit's 

description in the bar sometime between 1:00 p.m. and 2: 00 p.m. 

They also described a motorcycle resembling the defendant's. That 

evening Doug Brandon, an acquaintance of Heit's, telephoned the 

Billings police Department and informed them that Heit was involved 

in the Acton Bar homicide. 

Heit was arrested the following day in Bridger Montana. After 

being read his ~iranda rights, a deputy testified that Heit told 

him "1 shot him, what the fuck does it matter . . . does it make 

any difference?" The officer testified that further questioning 

yielded the same response: "1 shot the fucker. What fucking 

difference does it make? I shot him. What fucking difference does 

it make to his wife." ~ccording to the officers, Heit fully 

described the robbery while being transported, appearing arrogant 

but not intoxicated. According to Doug Brandon, on the day of the 

murder Heit told him about the shooting: 'Ithe guy said something 

to him that made him mad and he shot him." 

At trial, the jury found Heit guilty of deliberate homicide 

and robbery. At the evidentiary hearing on sentencing the State 

requested the death penalty based on the theory that Heit had been 

lying in wait. At the hearing, the State called a court-appointed 

psychologist from Warm Springs State Hospital who testified 

regarding Heitts psychological and psychiatric evaluation and the 

report filed pursuant to the evaluation. The psychiatric 

examination of Heit indicated Itpoor judgment, irresponsibility, 
aggressiveness, and impulsivity [sic]" as personality traits. The 

report also found that Heit was competent to stand trial, but also 

apparently suffered from an anti-social personality disorder and 

alcohol dependence: 

[h]e has a history of using physical aggression to vent 

his anger, despite some of his friends1 current 

pronouncements that he is really a passive person. He 

admits to punching walls when he is angry, to Itslapping 

aroundu his ex-wife and to severe verbal arguments with 

his most recent ex-wife. He has, on numerous occasions, 

reportedly boasted of killing someone. 

At the sentencing the court found insufficient the facts offered 

by the State in support of its theory of lying in wait as an 

aggravating circumstance and denied its request for the death 

penalty. The court, in its conclusions of law, specifically found 

that the defendant showed no remorse and denied any remembrance of 

the crime, although Heit, in a letter to the Court, described 

himself as a nonviolent person. 

Heit was sentenced to consecutive terms of 100, 40, and 10 

years confinement. The court also concluded that Heit would be 

ineligible for parole pursuant to § 46-18-202, MCA. Heit now 

appeals. 

Heit1s first contention on appeal is that the ~istrict Court 

erred in refusing to instruct the jury on mitigated deliberate 

homicide as a lesser included offense of deliberate homicide. We 

disagree. Heit was charged alternatively with deliberate homicide 

under § 45-5-102 (1) (a) or (b) , MCA. The statute defining the 

lesser offense of mitigated deliberate homicide is set forth at 
S 45-5-103, MCA, and provides; 

45-5-103. Mitigated Deliberate Homicide. (1) A person 

commits the offense of mitigated deliberate homicide when 

he purposely or knowingly causes the death of another 

human being but does so under the influence of extreme 

mental or emotional stress for which there is reasonable 

explanation or excuse. The reasonableness of such 

explanation or excuse shall be determined from the 

viewpoint of a reasonable person in the actor's 

situation. 

(2) It is an affirmative defense that the defendant 

acted under the influence of extreme mental or emotional 

stress for which there was reasonable explanation or 

excuse, the reasonableness of which shall be determined 

from the viewpoint of a reasonable person in the actor's 

situation. This defense constitutes a mitigating 

circumstance reducing deliberate homicide to mitigated 

deliberate homicide and must be proved by the defendant 

by a preponderance of the evidence. 

(3) Mitigated deliberate homicide is not an 

included offense of deliberate homicide as defined in 5 

45-5-102 (1) (b) . 

Under subsection (3) of the above-quoted statute, a charge under 

subsection (b) of the deliberate homicide statute, commonly 

referred to as the felony murder rule, is clearly exempt from any 

requirement that the jury be instructed on mitigated deliberate 

homicide as a lesser included offense. 

Because Heit was charged alternatively, he also maintains that 

he deserved the instruction under subsection (a) of the deliberate 

homicide statute. Generally, "a defendant is entitled to 

instructions on lessor [sic] included offenses if any evidence 

exists in the record which would permit the jury to rationally find 

him guilty of a lessor [sic] offense and acquit him of a greater. 

State v. Thornton (1985), 218 Mont. 317, 320, 708 P.2d 273, 276, 

quoting State v. Ostwald (1979), 180 Mont. 530, 538, 591 P.2d 646, 
651. Under this rule, in order to find Heit guilty of a lesser 

offense, Heit had to present some evidence supporting the elements 

of mitigated deliberate homicide as set forth in 5 45-5-103, MCA. 

Thus, Heit was required to offer some evidence demonstrating that 

he acted under I1extreme mental or emotional stress for which there 

is reasonable explanation or excuse. Thornton, 708 P. 2d at 276, 

8 45-5-103, MCA. The defendant contends that the evidence received 

at trial demonstrated that there was a struggle over the gun, and 

that Mr. Heit was agitated and completely intoxicated, and that 

this evidence was sufficient to warrant instructing the jury on 

the lesser included offense. 

This contention lacks merit. While this evidence indicates 

that Mr. Heit may have been upset at the time the crime was 

committed, it does not support a finding of "extreme mental or 

emotional stress for which there is reasonable explanation or 

excuse. Section 45-5-103(1), MCA. Nor were there any 

allegations made that there was a reasonable explanation or excuse 

for Heit1s alleged stress other than testimony indicating that the 

bartender may have said something that made Heit angry. On the 

other hand, the evidence clearly establishes that the defendant 

purposely or knowingly caused the death of another human being. 

Section 45-5-102 (1) (a) . Having presented no credible evidence of 

mitigation and furthermore having espoused the theory in closing 

argument that he did not kill the deceased, Heit was not entitled 

to an instruction on mitigated deliberate homicide as a lesser 

included offense. See State v. Baugh (1977), 174 Mont. 456, 460, 
571 P.2d 779, 781, State v. McDonald (1915), 51 Mont. 1, 16, 149 

Heit Is next contention is that the District Court erred in 

admitting the statements of a court-appointed psychologist in 

sentencing, where this evidence was the apparent basis for the 

trial court's declaration that Heit was ineligible for parole. 

This contention also lacks merit. At the August 15th sentencing 

hearing conducted after an earlier evidentiary sentencing hearing, 

the trial court identified the bases of the sentence imposed: 

So the court, after considering the evidence at the 

hearing, which consisted really of the opinion of Officer 

Jensen and then the reasons why he made that opinion, and 

the psychologist from Warm Springs, who I am not certain 

helped in the matter for either side--as I point out both 

of you use the same testimony, the same report, and 

arrive at a totally different . . . thing; but I believe 

the law requires me to find beyond a reasonable doubt 

that there were aggravating circumstances. The only 

aggravating circumstance set forth was lying in wait or 

ambush. I can't make that finding. 

This record indicates that the psychologistls testimony and report 

were not the bases for the trial court Is declaration that Heit was 

ineligible for parole. Nor was this evidence the l1apparentl1 basis 

for this determination as alleged in the issue as framed by Heit. 

We will discuss these bases for denial of parole in the next 

section of this opinion. Therefore, we need not determine if the 

admission of the psychologistsls testimony and report at sentencing 

constituted error; any such error would be deemed harmless as the 

evidence was not utilized by the trial court in sentencing. Rule 

103, M.R.Evid.; Section 46-20-701, MCA; State v. Miller (1988), 
231 Mont. 497, 519, 757 P.2d 1275, 1289; State v. Warnick (1985), 

216 Mont. 102, 105, 699 P.2d 1049, 1051. 

Finally, Heit contends that the trial court erred because it 

failed to include a statement of reasons in declaring him 

ineligible for parole as required by 5 46-18-202(2), MCA. 

The statute provides: 

46-18-202. Additional restrictions on sentence. . . . . . . (2) Whenever the district court imposes a sentence 

of imprisonment in the state prison for a term exceeding 

1 year, the court may also impose the restriction that 

the defendant be ineligible for parole and participation 

in the supervised release program while serving his term. 

If such a restriction is to be imposed, the court shall 

state, the reasons for it in writing. If the court finds 

that the restriction is necessary for the protection of 

society, it shall impose the restriction as part of the 

sentence and the judgment shall contain a statement of 

the reasons for the restriction. 

Section 46-18-202(2), MCA. In its Judgment, Sentence, and Order, 

the trial court stated: 

4. This Court specifically finds and hereby determines 

the Defendant is a dangerous offender for the purpose of 

his eventual parole eligibility. The Court expressly 

declares the Defendant possesses [sic] a serious and 

substantial threat to the welfare and safety of other 

persons and is determined to be ineligible for parole or 

participation in the supervised release program or its 

future equivalent while serving the several terms herein 

imposed. 

Heit maintains that paragraph 4 of the judgment is merely a 

reiteration of the statutory language and a conclusory statement 

clearly lacking the written reasoning required by the statute. 

He contends that the sentencing document must give some factual 

basis for distinguishing him from others convicted of deliberate 
homicide who are not denied parole, stating such factual basis as 

the reason for the denial. While technically there is some merit 

in this contention, an examination of the sentencing document as 

a whole does reveal some minimal reasons for imposing the parole 

restriction. In its Conclusions of Law, the trial court made the 

following statements: 

7. The Defendant continues to show no remorse and 

continues to deny any remembrance of the crime and states 

that because he and others believe him not to be a 

violent person nor a thief that he believes that he did 

not commit the crime. 

8. This court must impose sentences based upon the 

nature of and the seriousness of the offenses committed 

by the Defendant, the circumstances under which they were 

committed, and the presence of aggravating circumstances 

and the absence of substantial mitigating circumstances 

or any prospect of rehabilitation. 

9. The sentence which the court imposes must also 

be determined by the obvious and vital importance of 

preventing the commission of additional offenses by the 

Defendant and the essential and overriding need to 

protect society from his violent and unlawful tendencies. 

(Emphasis added.) 

In its Findings of Fact, the court very thoroughly laid out the 

events constituting the perpetration of the crime, clearly 

demonstrating the pointless and brutal nature of the act. While the 

trial court failed to articulate that the brutality of this crime 

distinguishes this defendant from others convicted of deliberate 

homicide, it did state that the defendant possessed violent 

tendencies, felt no remorse, and the sentence was imposed because 

of the obvious importance of protecting society from this 

Defendant. While the factual basis for this conclusion was not 

precisely specified as the rationale for parole denial, the heinous 

nature of this particular crime as evidenced by the facts 
specifically found by the trial court make the rationale for the 

denial obvious. 

AFFIRMED. 

We Concur: / 

A Chief 7- Justice 

Justice /' 

Justices