State v. Smith
| Decision Date | 09 November 1993 |
| Docket Number | Nos. 92-149,92-133,s. 92-149 |
| Citation | 863 P.2d 1000,261 Mont. 419 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Ronald Allen SMITH, Defendant and Appellant. |
| Court | Montana Supreme Court |
Joseph P. Mazurek, Atty. Gen., Elizabeth L. Griffing (argued), Asst. Atty. Gen., Helena, Thomas J. Esch, Flathead County Atty., Kalispell, for plaintiff and respondent.
Ronald Smith appeals from the Findings of Fact, Conclusions of Law, Order and Judgment entered by the Eleventh Judicial District Court, Flathead County, imposing the death penalty. We reverse and 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 the District Court violate Smith's Fifth Amendment 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 § 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 the District Court err by 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A claim of ineffective assistance of counsel was raised on appeal, but subsequently withdrawn.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 deliberate homicide 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'g denied, State v. Smith (1985), 217 Mont. 453, 705 P.2d 1110; cert. denied, Smith v. Montana (1986), 474 U.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 evidence of mitigating circumstances and 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 sentence and for a psychiatric examination to establish mitigating 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 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's mental state was affected by the consumption of alcohol and drugs; 2) his capacity to appreciate the criminality of his conduct was 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 the testimony and that none of the specified mitigating circumstances existed.
one or more of the mitigating circumstances specified in § 46-18-304, MCA.
In December of 1983, Smith moved for an additional psychiatric evaluation to develop other mitigating circumstances. He asserted that the court biased Stratford by questioning the veracity of his statements and improperly limited the scope of Stratford's evaluation . The court denied the motion and, in February of 1984, reimposed the death sentence. We affirmed the conviction and sentence in Smith I.
Smith then petitioned for federal habeas corpus relief, which was denied. Smith appealed to the United States Court of Appeals for the Ninth Circuit. The Ninth 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 it violated Smith's right to due process. Smith v. 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 social worker; David Vance (Vance), a sentencing consultant; and Dr. Lawrence Halpern (Halpern), a pharmacologist, to assist Smith in preparing for the sentencing hearing.
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.
Following the hearing, Smith moved to disqualify the presiding judge. Smith asserted that the judge made a statement to a defense witness which evidenced personal bias. Judge Robert Boyd was assigned to preside over the disqualification proceedings and subsequently denied Smith's motion.
On March 13, 1992, the District Court orally imposed the death 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 consistent with 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. Because we are remanding for resentencing, we do not address the issues encompassed in an automatic review of the death sentence.
Did the District Court violate Smith's Fifth Amendment, Sixth Amendment or due process rights by considering Stratford's report and testimony?
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 self-incrimination was violated by the District Court's reliance The Fifth Amendment argument raised by Smith in the case before us is not the precise argument raised in Smith I. There, he contended that Stratford's inquiry into the credibility of his May 1983 statements violated 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 testimony to establish aggravating factors and rebut mitigating factors. Thus, Smith is not technically barred from raising the argument by the law of the case doctrine.
on Stratford's report and testimony to establish aggravating factors and rebut mitigating evidence. He relies on Estelle v. Smith (1981), 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
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 Fifth Amendment violation 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 Stratford's 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 simply no 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 testimony did not violate Smith's Fifth Amendment privilege against self-incrimination.
Smith asserts that the State used Stratford's 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 for the 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...
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