author: JUSTICE TRIEWEILER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. EDWARD CROTEAU, Defendant and Appellant.
    No. 90-484.
    Submitted on briefs April 11, 1991.
    Decided June 3, 1991.
    248 Mont. 403.
    812 P.2d 1251.

      Stephen C. Moses, Moses Law Firm, Billings, for defendant and appellant.
    Marc Racicot, Atty. Gen., Jennifer Anders, Asst. Atty. Gen., Helena, Dennis Paxinos, County Atty., Teresa McCann O’Connor, Deputy County Atty., Billings, for plaintiff and respondent.
   JUSTICE TRIEWEILER

delivered the opinion of the Court.

The defendant, Edward Croteau, appeals from his conviction on two counts of sexual assault following a jury trial in the Thirteenth Judicial District Court, Yellowstone County. We reverse.

The defendant raises the following issues on appeal:

1. Did the District Court err in admitting prior acts under Rule 404(b), M.R.Evid.?
2. Did the District Court err in giving the State’s Jury Instruction No. 1?
3. Did the record contain sufficient evidence to support the defendant’s convictions?
4. Was the sentence imposed by the District Court excessive?

On January 13, 1989, the Yellowstone County Attorney’s Office moved for leave to file an Information charging the defendant with sexual assault against C.B., a nine-year-old boy. The affidavit in support of the motion stated that on at least five occasions diming October and November 1988, Croteau put his hands down C.B.’s pants to fondle his penis while C.B. sat on Croteau’s lap, and in this manner caused C.B. to have an erection. The Information was filed on January 17, 1989.

The county attorney filed notices with the District Court and the defendant notifying them that the county attorney intended to introduce evidence of other crimes, wrongs, or acts involving C.B.’s older brother, R.B., and M. S. Specifically, the notice stated:

“COMES NOW Teresa McCann O’Connor, Deputy County Attorney for the County of Yellowstone, State of Montana, and gives notice to defendant of her intention to introduce evidence at the trial of the above- entitled cause of the following other crimes, wrongs, or acts:
“a. That as a course of conduct between 1982 and 1985, the defendant did fondle [R.B.], DOB: 9-14-72, and that one specific incident took place in Wyoming in 1982 and another on a trip to Mexico in 1985.
“b. That the defendant, between 1985 and 1988, made physical advances toward [M.S.], DOB: 1-25-73, by putting his hand on [M.S.’s] knee, squeezing it and moving his hand up [M.S.’s] thigh. This evidence is being offered for the purpose of showing the defendant’s opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident in committing the offenses charged.”

On August 9,1989, the State filed an amended Information charging Croteau with two additional counts of sexual assault against M. S. and Z.B., both of whom were less than 16 years of age. The State then filed a second notice of its intention to use evidence of other crimes, wrongs, or acts committed by Croteau against B.W.

On June 20, 1990, the State moved to dismiss Count II of the amended Information, alleging sexual assault against M.S. That motion was granted. The next day, four days before trial, the State issued its third notice of its intention to use evidence of other crimes, wrongs, or acts committed against N.B., J.B., S.C., and T.M. Following a two day trial commencing on June 25, 1990, the jury found the defendant guilty of two counts of sexual assault against C.B. and Z.B.

At the time of the alleged offenses, the defendant lived and worked in Billings, Montana. The children in Croteau’s neighborhood would often visit his house to play pool and watch television. Croteau had been close friends with C.B. and R.B.’s family for over ten years. On several occasions the children would spend the night at Croteau’s house. Croteau also took C.B. and R.B., and other children, on overnight trips.

In November 1988, C.B. told his mother, and later testified at trial, that Croteau had “slobbered on [his] neck” and put his hands down C.B.’s pants while C.B. was sitting on Croteau’s lap watching television. C.B. testified that these incidents took place almost every weekend when he visited Croteau during October and November 1988. At trial, C.B. also testified how Croteau made sounds “like a bear growling,” rubbed his whiskers against C.B. ’s chin, and touched C.B.’s penis until it “would stand up.”

C.B. further testified that Croteau’s activities ceased in late November 1988 after C.B.’s mother confronted Croteau about C.B.’s allegations at Thanksgiving dinner. Croteau denied ever abusing C.B.

Z.B. testified that he was introduced to Croteau while at an air show with his family in Billings when he was nine years old. Z.B.’s family were also friends of Croteau. After the show, Z.B. and his brother went over to Croteau’s house to play pool and watch television. While at Croteau’s home, Croteau laid Z.B. on top of his stomach so that Z.B. could feel Croteau’s penis. Z.B. testified that Croteau held him there until his penis got hard and then went soft. Croteau repeated the same acts on Z.B. when Z.B. and his brother spent the night at Croteau’s house. Z.B. also testified that he spent the night at Croteau’s house two or three other times, and on each occasion the same incident occurred. Croteau also denied abusing Z.B.

During the trial, over the defendant’s objection, the District Court allowed the State to introduce evidence of other acts of the defendant under Rule 404(b), M.R.Evid. Although the State listed a number of witnesses in its notices, the State only called S. C. and R.B. to testify to other acts of the defendant. Only the “other crimes” testimony of R.B. is at issue on this appeal.

In December 1988, R.B., C.B.’s older brother, gave a statement to the police describing instances of Croteau sexually molesting him. These molestations took place on trips R.B. took with Croteau outside of Billings. R.B. told the police, and later testified at trial, that Croteau fondled his penis on a trip to Mexico in 1982. These acts were described in the State’s first Just notice. On June 25, 1990, the day of the trial, the county attorney handed Croteau’s counsel a new statement from R.B. dated March 1990. In this second statement, R.B. claimed that Croteau touched and fondled him in Croteau’s house. The defendant objected to the admission of testimony concerning incidents occurring at his house, arguing that the State failed to properly notify him under State v. Just. The District Court disregarded Croteau’s objection and allowed the testimony.

In that testimony, R.B. described a number of fondling incidents while spending the night at Croteau’s house. These incidents occurred from the time R.B. was in the second grade until 1987, when he was in the eighth grade. Croteau denied abusing R.B.

I.

Did the District Court err in admitting other acts under Rule 404(b), M.R.Evid.?

Croteau contends that the District Court should have excluded R.B.’s testimony regarding other acts because the testimony did not meet the substantive and procedural requirements of prior crimes or prior acts evidence as set forth in State v. Just, 184 Mont. 262, 602 P.2d 957 (1979).

The general rule is that evidence of other crimes or prior acts must be excluded. Rule 404(b), M.R.Evid. The reason for this longstanding rule is that prior acts or crimes are highly prejudicial to the defendant, and usually irrelevant for purposes of the charged crime. In State v. Tiedeman, 139 Mont. 237, 242, 362 P.2d 529, 531 (1961), we explained:

“The general rule should be strictly enforced in all cases where applicable, because of the prejudicial effect and injustice of such evidence, and should not be departed from except under conditions which clearly justify such a departure.”

Evidence of a defendant’s prior acts or uncharged misconduct creates the risk that the jury will penalize a defendant simply for his past bad character. E. Imwinkelried, Uncharged Misconduct Evidence, § 1:03 (1984).

However, under Rule 404(b), M.R.Evid., evidence of a defendant’s prior acts or prior crimes may be “admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” In Just, we set forth specific procedural requirements which must be followed before prior acts or crimes can be admitted for one of the reasons set forth in Rule 404(b), M.R.Evid.

Croteau’s procedural claim of error relates to the notice requirements in Just. In Just, we stated:

“Evidence of other crimes may not be received unless there has been notice to the defendant that such evidence is to be introduced. The procedures set forth in Section 46-18-503, MCA, should serve as guidelines for the form and content of such notice. Additionally, the notice to the defendant shall include a statement as to the purposes for which such evidence is to be admitted.”

Just, 602 P.2d at 963-64.

The defendant contends the State violated the notice requirements under Just by failing to notify him that evidence of prior acts occurring at his house would be introduced into evidence. At trial, R.B. testified to several incidents of inappropriate touching while spending the night at Croteau’s house. However, in the original Just notice concerning R.B.’s testimony, there is no mention of improper activity occurring at Croteau’s house. The notice only stated:

“That as a course of conduct between 1982 and 1985, the defendant did fondle [R.B.], DOB: 9-14-72, and that one specific incident took place in Wyoming in 1982 and another on a trip to Mexico in 1985.”

The State argues that the phrase “as a course of conduct between 1982 and 1985,” covered any incidents that happened at Croteau’s house between Croteau and R.B. We disagree. The purpose of the notice requirement is to allow the defendant to prepare for and respond to the allegation of previous conduct. The State’s original notice did not further that purpose, and therefore, was insufficient to satisfy the notice requirement under Just.

Despite this lack of notice, the State contends that Croteau was aware of the State’s intention to introduce testimony of prior acts occurring at Croteau’s house. On the morning of the trial, the State delivered to Croteau’s counsel a new statement from R.B. dated March 1990. This statement expanded and changed R.B.’s previous statement to include Croteau’s touching and fondling of R.B. in Croteau’s house. The State claims this last minute delivery adequately informed Croteau of the State’s intent to introduce the testimony. Furthermore, the State claims any prejudice to Croteau could have been cured by Croteau requesting a continuance to familiarize himself with the statement.

In order for Croteau to prepare to defend against prior acts or crimes testimony, the State must give Croteau a timely and specific notice of intent to introduce such evidence. A review of the notice reveals the State’s notice was neither timely nor specific. The notice requirement must be given sufficiently in advance of trial to afford a defendant a reasonable opportunity to prepare to meet the evidence against him. That requirement is not satisfied by information delivered on the first day of trial. The State’s willingness to consent to a continuance to allow Croteau to review R.B.’s new statement does not cure the State’s defective notice and the prejudice to Croteau. It is not acceptable to give the defendant the option of waiving his constitutional right to a speedy trial so that he can deal with the State’s untimely notice. The defendant has the right to a speedy trial and proper notice under Just, and cannot be compelled because of untimely notice to choose between the two.

Next, Croteau contends that the State’s Just notice was procedurally defective because the State did not specifically state the relevant purpose for admitting the evidence. The notice stated:

“This evidence is being offered for the purpose of showing defendant’s opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident in committing the offenses charged.”

In Just, we explained that “the notice to the defendant shall include a statement as to the purposes for which such evidence is to be admitted.” Just, 602 P.2d at 964. Here, the State simply used a “shotgun” approach and named all of the possible reasons, with the exception of motive, set forth in Rule 404(b), M.R.Evid. This type of “shotgun” notice fails to specifically state the relevant reason to admit other acts of the defendant. Recently, in State v. Sadowski, [247 Mont. 63,] 805 P.2d 537, 542, 48 St.Rep. 93, 96 (Mont. 1991), we explained:

“The State must also demonstrate that the evidence is logically relevant towards one of the Rule 404(b) examples or some other fact in issue and not merely introduced as proof of a character defect or propensity of the defendant in order to show that he acted in conformity therewith. Rule 404(b), M.R.Evid.”

In Sadowski, the defendant claimed self-defense and the State sought to admit prior acts of the defendant under Rule 404(b), M.R.Evid., to prove the defendant’s intent when he shot the victim and to rebut his claim of self-defense. In Sadowski, the intent of the defendant was at issue, and prior acts under Rule 404(b) were properly admitted to disprove the defendant’s claim of self-defense. In this case, the State did not specify the reason under Rule 404(b) for which the defendant’s other acts were logically relevant. The trial court and this Court should not be required to speculate which, if any, of the Rule 404(b) examples stated in the State’s notice applies, or was intended to apply, in this case. Future notices which simply incorporate all, or substantially all, of those reasons set forth in Rule 404(b) will not be satisfactory under the Just notice requirements. The notice to the defendant must identify the specific Rule 404(b) purpose for which it is to be admitted.

Accordingly, the State has failed to meet the procedural requirements under Just. Failure to adhere to the procedural mandates of Just constitutes error. State v. Case, 190 Mont. 450, 460, 621 P.2d 1066, 1072 (1980); State v. Gray, 197 Mont. 348, 353, 643 P.2d 233, 236 (1982).

Croteau also contends that R.B.’s testimony should have been excluded because it fails to meet the substantive requirements under Just. However, the evidence was that much of the conduct which formed the basis of the charges against the defendant occurred during shared seating arrangements or roughhousing of some type. Prior similar incidents would have been probative to show that the contact was not by accident, and therefore, admissible under Rule 404(b). Here, we reverse because the State did not comply with the procedural safeguards which would have enabled the defendant to adequately prepare for trial and defend himself against claims of prior bad acts.

II.

Did the District Court err in giving the State’s Jury Instruction No. 1?

The defendant contends that it was reversible error for the District court to instruct the jury as follows:

“Where two witnesses testify directly opposite to each other on a material point and are the only ones that testify [on] that same point, you are not bound to consider the evidence evenly balanced or the point not proved; you may regard all the surrounding facts and circumstances proved on the trial and give credence to one witness over the other if you think the facts and circumstances warrant it.”

This Court has historically disapproved of this instruction in criminal cases. State v. Jones, 48 Mont. 505, 523-24, 139 P. 441, 448 (1914); State v. Darchuck, 117 Mont. 15, 21, 156 P.2d 173, 175 (1945); State v. Carns, 136 Mont. 126, 139, 345 P.2d 735, 743 (1959). The reason for this Court’s disapproval has been that the instruction reduces the State’s burden of proof in a criminal case from guilt beyond a reasonable doubt to that applicable in a civil case, which is a preponderance of the evidence. Jones, 48 Mont. 505, 139 P. at 448; Carns, 136 Mont. 126, 345 P.2d at 743. Likewise, we hold the District Court erred in giving the State’s Jury Instruction No. 1, and should avoid giving such an instruction during any retrial of this case.

Since the defendant’s conviction is reversed and this case is remanded to the District Court for retrial, based on our consideration of Issue No. 1, it is not necessary to consider the last two issues raised by the defendant.

We reverse.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, McDONOUGH, HUNT, GRAY and WEBER concur.


source: Caselaw Access Project

author: JUSTICE HUNT

license: Public Domain

text:
    JACK C. STIMAC, Michael A. Tefft, Edward C. Peters, Joseph E. Gaspar, Nanci Ellen Green, Randy J. Archey, Joseph M. McKamey, George L. Domme, Michael D. Cross, and Michael E. Heisler, Plaintiffs and Respondents, v. THE STATE OF MONTANA, Defendant and Appellant.
    No. 90-501.
    Submitted on briefs Feb. 21, 1991.
    Decided June 3, 1991.
    248 Mont. 412.
    812 P.2d 1246.

      W.D. Hutchison, Asst. Atty. Gen., Helena, for defendant and appellant.
    Lawrence D. Anderson, Great Falls, for plaintiffs and respondents.
   JUSTICE HUNT

delivered the opinion of the Court.

Defendant, the State of Montana, appeals from an order of the District Court of the Eighth Judicial District, Cascade County, awarding an attorneys fee in accordance with the one-third contingent-fee agreement entered into between the plaintiffs and their attorney. We affirm.

The sole issue raised on appeal is whether the District Court abused its discretion in awarding the full amount of the plaintiffs’ contingent-fee agreement as a reasonable attorneys fee under § 39-3-214(1), MCA.

The plaintiffs are fire fighters employed by the State of Montana, Department of Military Affairs, and stationed at the Montana Air National Guard facilities located at the Great Falls International Airport. The building in which they are stationed is owned by the federal government. The equipment used by the plaintiffs in performing their duties is also owned by the federal government, but administered by the State. They are paid in part by the Great Falls International Airport Authority and in part by the federal government. The money providing their salaries is administered by the State.

For years, the plaintiffs were required to work more than eight hours a day and 40 hours a week without receiving overtime compensation. The plaintiffs made a number of administrative inquiries concerning overtime pay, but because of the confusing and ambiguous relationship between the state, local, and federal bodies that employed and paid them, their inquiries were unsuccessful.

Finally, the plaintiffs decided to hire an attorney. They consulted with two Great Falls practitioners who refused to take their case. They then contacted attorney Lawrence Anderson, who agreed to represent them.

The plaintiffs met with their attorney prior to filing the case. At the meeting, the attorney warned the plaintiffs that their claims were speculative. He advised them that he would take the case for an hourly rate of $80 or for a contingent fee. Because none of the plaintiffs possessed sufficient discretionary income to pay the hourly rate, they agreed to the contingent-fee arrangement and signed contracts calling for payment of one-third of any settlement or judgment secured in their favor by the attorney.

Six plaintiffs filed suit in December 1984. They were later joined by four others. As originally filed, the complaint alleged that the State violated § 39-3-405, MCA, by refusing to pay plaintiffs overtime compensation for work weeks in excess of 40 hours per week, and § 39-4-107, MCA, by requiring plaintiffs to work in excess of eight hours a day. Plaintiffs sought back pay, penalties, and attorney’s fees. In 1988, the plaintiffs filed an amended complaint, adding an additional claim under the Fair Labor Standards Act.

The parties pursued extensive discovery. The plaintiffs filed motions for summary judgment in June 1986 and again in August 1988. The State also moved for summary judgment in August 1988. The District Court denied the 1986 motion, but did not rule on the 1988 motions.

The action was set for trial three times. It was continued twice, once at the request of the State, and once due to a conflict in the court’s calendar. The second continuance came only a few days before trial, after the plaintiffs had largely completed preparation for trial.

Shortly thereafter, the parties settled the case. They filed a settlement proposal stipulating to entry of judgment three and one-half months later. Pursuant to the settlement, the State agreed to pay varying amounts to the individual plaintiffs, based on length of service and number of overtime hours worked. Altogether, the plaintiffs received a total of $367,559 in overtime and interest. The State also agreed to contribute retirement benefits according to the amount of overtime compensation due each plaintiff, and to deduct social security taxes from the overtime payments. The plaintiffs agreed to waive their claims for penalties under § 39-3-206, MCA. The parties agreed that the plaintiffs were entitled to reasonable costs and attorney’s fees as provided in § 39-3-214, MCA. However, they disputed the amount of the fees and agreed to litigate the issue.

The District Court held hearings on the attorney’s fee issue on March 28 and April 25, 1989. On June 19, 1990, the court issued findings of facts, conclusions of law, and order, finding that the contingent-fee agreement was reasonable and awarding fees equaling one-third of the overtime and interest award, one-third of the retirement benefits, and one-third of the social security contributions made by the State. The State appeals from this order.

The State acknowledges that, under § 39-3-214, MCA, and the terms of the settlement, the plaintiffs are entitled to an attorney’s fee. It argues, however, that the District Court abused its discretion in awarding fees equaling the full amount of the one-third contingent-fee agreement. It contends that such an award was unreasonably large.

A party who prevails in a wage-claim action shall be entitled to a reasonable attorney’s fee. Section 39-3-214(1), MCA, provides as follows:

“Whenever it is necessary for the employee to enter or maintain a suit at law for the recovery or collection of wages due as provided for by this part, a resulting judgment must include a reasonable attorney’s fee in favor of the successful party, to be taxed as part of the costs in the case.”

The purpose of this statute is “to provide an employee who wins a judgment for wages due against an employer a vehicle by which to receive attorneys fees and thus be made whole.” Glaspey v. Workman, 230 Mont. 307, 309, 749 P.2d 1083, 1084 (1988)(Glaspey I). By passing the attorney’s fee obligation to the employer, the employee’s net award is preserved intact and is not eroded by the cost of litigation.

In Glaspey v. Workman, 234 Mont. 374, 378, 763 P.2d 666, 668 (1988) (Glaspey II), we held that the district court must consider seven factors in determining whether an award of attorney’s fees under § 39-3-214(1), MCA, is reasonable. The factors include:

“(1) [T]he amount and character of the services rendered; (2) the labor, time, and trouble involved; (3) the character and importance of the litigation in which the services were rendered; (4) the amount of money or the value of the property to be affected; (5) the professional skill and experience called for; (6) the character and standing in their profession of the attorneys; and (7) the result secured by the services of the attorneys.”

Glaspey II, 234 Mont. at 378, 763 P.2d at 668.

Glaspey II involved a wage-claim action in which the attorney charged an hourly rate. The present case, on the other hand, concerns a contingent-fee arrangement. The plaintiffs here argue that, when a case concerns a contingent-fee contract, the court should consider the factors enumerated in Wight v. Hughes Livestock Co., 204 Mont. 98, 114, 664 P.2d 303, 312 (1983), in addition to those set out in Glaspey II.

In Wight, 204 Mont. at 114, 664 P.2d at 312, we held that, in workers’ compensation cases, the court should examine several factors in assessing the reasonableness of a contingent-fee arrangement. These include:

“(1) The anticipated time and labor required to perform the legal service properly.
“(2) The novelty and difficulty of legal issues involved in the matter.
“(3) The fees customarily charged for similar legal services.
“(4) The possible total recovery if successful.
“(5) The time limitations imposed by the client or circumstances of the case.
“(6) The nature and length of the attorney-client relationship.
“(7) The experience, skill and reputation of the attorney.
“(8) The ability of the client to pay for the legal services rendered.
“(9) The risk of no recovery.”

Wight, 204 Mont. at 114, 664 P.2d at 312 (quoting Clark v. Sage, 102 Idaho 261, 629 P.2d 657, 661 (1981)).

We also noted that another factor “is the market value of the lawyer’s services at the time and place involved.” Wight, 204 Mont. at 114, 664 P.2d at 312.

The Glaspey II and Wight factors are quite similar. Wight simply adds elements pertaining to the market value of the attorney’s services — the amount of fees customarily charged, the ability of the client to pay, and the risk of no recovery — elements that are pertinent when considering the reasonableness of a contingent-fee agreement. As we have observed:

“Most of the [workers’ compensation] disability claimants have no other resources for the payment of fees. The contingency of compensation, whether it stems from an employment contract or results from the claimants [sic] indigency, is highly relevant in the appraisal of the reasonableness of any claim. The effective lawyer will not win all of his cases, and any determination of the reasonableness of his fees in those cases in which his client prevails must take account of the lawyer’s risk of receiving nothing for his services. Charges on the basis of a minimal hourly rate are surely inappropriate for a lawyer who has performed creditably when payment of any fee is so uncertain.”

Wight, 204 Mont. at 110-11, 664 P.2d at 310 (quoting McKittrick v. Gardner, 378 F.2d 872, 875 (4th Cir. 1967)).

We hold that the District Court should consider the following factors when assessing whether to award the full amount of the contingent-fee agreement as a reasonable attorney’s fee under § 39-3-214(1), MCA:

1. The novelty and difficulty of the legal and factual issues involved;
2. The time and labor required to perform the legal service properly;
3. The character and importance of the litigation;
4. The result secured by the attorney;
5. The experience, skill, and reputation of the attorney;
6. The fees customarily charged for similar legal services at the time and place where the services were rendered;
7. The ability of the client to pay for the legal services rendered; and
8. The risk of no recovery.

Applying these factors to the present case, we conclude that the District Court did not abuse its discretion in awarding an attorney’s fee equaling the full amount of the contingent-fee agreement. Under the circumstances, the fee was reasonable.

1. The novelty and difficulty of the legal and factual issues. This was not an ordinary wage-claim action. Rather, the case presented extremely novel and complex legal and factual issues. Because of the ambiguous relationship between the differing state, local, and federal agencies who employed them, the plaintiffs failed to fall neatly within any statutory or regulatory scheme. The State vigorously asserted that the plaintiffs were exempted from Montana’s statutes governing wages and overtime. It also claimed that the meal and sleep exemptions applied. These defenses raised both legal and factual issues that required analysis of time records, pay records, standing orders of the State, and daily logs.

The complexities of the case were compounded by the fact that the attorney represented not one plaintiff, but ten. Each claim depended upon the length of service of each plaintiff as well as the number of overtime hours worked.

In addition, while the lawsuit was pending, the United States Supreme Court decided Garcia v. San Antonio Metropolitan Transit Auth., 469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985). Garcia created additional complications because of the conflicts between the Fair Labor Standards Act and the Montana wage and overtime statutes.

2. The time and labor required. Because the case was so complex, the attorney was required to spend a great deal of time looking through documents and researching law. One of the plaintiffs’ expert witnesses, Doug Wold, who had experience in complex wage and hour litigation, testified that he had expended in excess of $42,000 in attorney’s fees in a case involving three plaintiffs who sought overtime compensation covering a three and one-half year period. He testified that the present case was more complex by virtue of the greater number of plaintiffs and the longer period of time as well as the additional legal and factual issues involved.

Although the plaintiffs’ attorney did not keep track of the number of hours expended on the case, he marshaled evidence demonstrating that the case was very time consuming. In addition to conducting extensive factual and legal research, the attorney vigorously prosecuted the action. He moved for summary judgment twice and defended against the State’s motion for summary judgment once. He largely completed trial preparation, even though the case never went to trial. Once the parties agreed to settle the case, it took three and one-half months to reduce the settlement to a six-page stipulation for judgment.

3. The character and importance of the litigation. There can be no doubt that the case was important. Indeed, by enacting a statute providing for attorney’s fees to the successful litigant “[t]he legislature has recognized the gravity of an employee’s right to wages ...” Glaspey II, 234 Mont. at 378, 763 P.2d at 668-69. Moreover, the case benefited not only the individual plaintiffs but other similarly situated fire fighters as well. The legislative appropriation funding the judgment provided benefits for fire fighters who did not participate in the lawsuit.

4. The result secured. In the face of factual complexities, lack of legal precedent, and active defense by the State, the attorney managed to successfully settle the case. The plaintiffs received overtime and interest awards ranging from $10,461 to $62,434, as well as retirement benefits. Under the circumstances, the attorney secured excellent results for the plaintiffs.

5. The experience, skill, and reputation of the attorney. Montana does not have a pool of lawyers available and experienced in handling this type of case. The plaintiffs’ attorney is one of the few in the state who handle complex wage and hour litigation.

6. The fees customarily charged. A one-third rate is universally charged in contingent-fee cases. In this lawsuit, it was probably a conservative rate as the case posed post-collection risks of funding dependent upon a legislative appropriation and the governor’s approval.

7. The ability of the client to pay. The plaintiffs did not have sufficient discretionary income to finance the case on an hourly fee basis. Furthermore, they were informed by the attorney that they were undertaking some amount of risk in pursuing their claims. The plaintiffs were both -unable and unwilling to assume the economic risk of an hourly fee contract in the event of no recovery.

8. The risk of no recovery. As noted above, the case presented novel legal theories with no established precedent. Before the plaintiffs’ present attorney took the case, it had been rejected by two others. Furthermore, the plaintiffs were faced with the additional risk of depending on an appropriation from the legislature for funding for their awards. The risks involved in the case justified the contingent-fee arrangement.

The District Court issued detailed findings of fact, which are fully supported by the record. The court did not abuse its discretion in granting the plaintiffs a reasonable attorney’s fee of one-third of the amount of the settlement in accordance with the contingent-fee arrangement.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES WEBER, TRIEWEILER and McDONOUGH concur.


author: CHIEF JUSTICE TURNAGE

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. TERRY ALLEN LANGFORD, Defendant and Appellant.
    No. 89-055.
    Submitted May 2, 1991.
    Decided June 4, 1991.
    248 Mont. 420.
    813 P.2d 936.

      Michael Donahoe argued, Helena, for defendant and appellant.
    Marc Racicot, Atty. Gen., John Paulson argued, Asst. Atty. Gen., Helena, and Christopher G. Miller, Powell County Atty., Deer Lodge, for plaintiff and respondent.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

On October 12,1989, this Court remanded this death penalty case to the District Court for the Third Judicial District, Powell County, to permit Terry Allen Langford (Langford) to file a motion to withdraw his guilty pleas regarding two counts of deliberate homicide, two counts of aggravated kidnapping, one count of aggravated burglary, one count of robbery, and one count of theft in connection with the deaths of Edward and Celene Blackwood. Following a hearing on July 16,1990, the District Court denied Langford’s motion. We affirm the District Court’s opinion and order, and remand this case with orders to reset the date of execution.

Langford presents the following issues on appeal following remand:

1. Did Langford receive effective assistance of counsel in connection with his decision to plead guilty to the charged crimes?
2. Did the District Court impose the death sentences under the influence of passion, prejudice, or other arbitrary factors by relying in part on victim impact statements and on Langford’s failure to display remorse?
3. Did the District Court fail to rule as a matter of law that mitigating factors existed and that such mitigating factors were substantial enough to call for leniency?
4. Do Montana’s death penalty statutes violate Montana Constitution, Article II, Section 28?

Additionally, § 46-18-310, MCA, mandates that this Court review the following issues in death penalty cases:

“The supreme court shall consider the punishment as well as any errors enumerated by way of appeal. With regard to the sentence, the court shall determine:
“(1) whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor;
“(2) whether the evidence supports the judge’s finding of the existence or nonexistence of the aggravating or mitigating circumstances enumerated in 46-18-303 and 46-18-304; and
“(3) whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. The court shall include in its decision a reference to those similar cases it took into consideration.”

Langford raises the issues enumerated in §§ 46-18-310(1) and (2), MCA, in this appeal, but does not raise the issue enumerated in § 46-18-310(3), MCA. Therefore, this Court raises the following issue as mandated under § 46-18-310(3), MCA:

5. Did the District Court excessively or disproportionately impose the death penalty sentence in comparison to similar cases?

Facts

On July 5, 1988, Powell County Sheriff David Collings found Edward Blackwood (Edward) and Celene Blackwood (Celene) dead in their home located two miles north of Ovando, Montana. Both victims were found bound in execution-style positions. Edward was found tied to a chair in the living room with his hands tied behind him. He had been shot once in the back of the head with a small caliber handgun. Celene was found lying face down on the couch in the living room with her hands tied to her ankles behind her back. She had been shot in the side of the head with a small caliber handgun and her throat had been slashed with a knife.

In Langford’s confession on August 15, 1988, he stated that he “blew two people’s brains out” while traveling in Montana about one month earlier; these people were later identified as the Blackwoods. In his confession, Langford offered no reason for his actions. The facts concerning Langford’s own actions before, during, and after the crimes are taken directly from his confession and the record in this case.

In late June, 1988, Langford, equipped with his camping gear, traveled by bus to Montana from North Carolina. When he departed from the bus at Ovando, Montana, he proceeded to walk toward a mountainous area. After wandering aimlessly in this area for a period of time, he eventually ended up on the Blackwoods’ property. He watched the Blackwoods’ movements from a distance before entering and hiding in their garage one evening. While hiding in the garage, he discovered a rifle in the Blackwoods’ truck with which he armed himself.

When Edward entered the garage the next day, Langford pointed the rifle at him and ordered him to lie down on the floor. He then ordered Edward to call for Celene. When Celene came to the garage, he ordered her also to lie on the floor.

Langford ordered Celene to tie Edward’s hands and then ordered them into their home. Once they entered their home, he ordered Edward to sit in a chair and Celene to sit on a couch. He then tied Edward to the chair and tied Celene’s feet and hands together behind her back and left her lying on the couch.

While the couple remained tied up, he conversed mainly with Edward for a few hours, asking Edward about his background and if he owned more guns. Edward told him that he owned several handguns, which were located in the bedroom. Langford then retrieved five or six handguns from the bedroom.

Langford later shot Edward and then shot Celene with one of the handguns. Following the shootings, Langford stated that he “got real close and I looked right in [Edward’s] eyes” and asked him “Are you dead?” Edward did not reply. At this same time, Langford stated that Celene was “[c]hoking in her own blood. Or so it sounded like. She wouldn’t die. I shot her in the side of the head, but the bitch didn’t die.” He then slashed Celene’s throat.

When he left the Blackwoods’ home, he took the money from the Blackwoods’ wallets, and he also took a blue athletic bag, which he loaded with several of their possessions including five or six handguns. He then traveled to Great Falls, Montana, in the Blackwoods’ blue pickup truck. Police recovered this truck in Great Falls on July 7, 1988. Fingerprints taken from the truck matched those of Langford and accordingly identified him as a suspect.

Langford proceeded by bus to Louisville, Kentucky, and then by taxi to Indiana, where he stayed the night at a motel, later identified as the Star Motel in Jeffersonville. The next morning, he pulled a knife on a maid when she entered his motel room and startled him. Immediately following his encounter with the maid, Langford left the Star Motel with the blue athletic bag containing the handguns, and wandered into a nearby wooded area where he discarded the bag and its contents. He then hitchhiked to Birmingham, Alabama, and later proceeded by bus to Raleigh, North Carolina.

In the meantime, the State of Indiana issued a warrant for Langford’s arrest for an alleged July 6, 1988, robbery attempt of the Star Motel. Later, Langford testified at his sentencing hearing that because he needed cash and was attempting robbery, he had intended to kill not only the maid, but also a pizza delivery boy while he was in Indiana. He also testified at his sentencing hearing that in another robbery attempt, he pulled a knife on the taxi cab driver who drove him to Indiana.

Montana authorities had identified and listed the Blackwoods’ handguns as stolen on the National Crime Information Computer. Consequently, Montana authorities were notified when the blue athletic bag and handguns therein were discovered on July 27, 1988, in a wooded area V4 mile from the Star Motel. One of the weapons in the athletic bag, a High Standard, field king model, .22 caliber, semiautomatic pistol, was later positively identified as the weapon that was used to shoot the Blackwoods. This positive identification was made after an examination by a ballistics expert of the said pistol, the bullets recovered from the Blackwoods’ bodies, and the shell casings found at the crime scene.

On August 12, 1988, Langford was arrested in Raleigh, North Carolina, on the Indiana warrant. At the time of his arrest, North Carolina authorities advised him of his Miranda rights. After receiving notice of Langford’s arrest from the North Carolina authorities, Powell County Sheriff David Collings and Montana Criminal Investigator Ward McKay traveled to Raleigh on August 13, 1988, to question Langford regarding the Blackwoods’ deaths. On August 15, 1988, the two Montana investigators met with Langford and he agreed to talk with them. After advising Langford of his Miranda rights, Collings and McKay recorded Langford’s statement wherein he confessed that he was responsible for the Blackwoods’ deaths.

On September 1,1988, the District Court granted County Attorney Christopher Miller leave to file an information charging Langford with two counts of deliberate homicide; two counts of aggravated kidnapping under § 45-5-303(l)(c), MCA, alternatively charged as two counts of aggravated kidnapping under § 45-5-303(l)(b), MCA; and one count each of aggravated burglary, robbery, and theft. The court appointed C. F. MacKay (MacKay) as counsel for Langford. On September 9, 1988, MacKay moved the court for Langford to be admitted to Montana State Hospital in Warm Springs for a psychiatric evaluation to determine if Langford suffered from a mental disease, disorder or defect. MacKay made this motion based on one remark Langford made to him, which alluded to the possibility that something was wrong with him.

The court granted this motion. Langford remained at Montana State Hospital in Warm Springs for fifty-four days for the completion of a psychiatric evaluation. In the meantime, MacKay continued to meet with Langford on a regular basis to discuss his case and possible defenses. Langford, however, told MacKay that he did not want MacKay to pursue any defenses and desired the death penalty for his crimes if he could not be guaranteed an acquittal or a short prison sentence. The psychiatric evaluation, which was completed on December 13, 1988, stated that Langford suffered from no mental disorder, disease, or defect, which excluded him from responsibility for his crimes or prevented him from appreciating the criminality of his conduct.

On January 5, 1989, Langford entered pleas of guilty as charged by the information to:

“1) COUNT I: DELIBERATE HOMICIDE — That on or about July 1,1988, at Ovando, Powell County, Montana, the defendant purposely or knowingly caused the death of Edward Blackwood by shooting Edward Blackwood in the head with a .22 caliber pistol, contrary to the form, force, and effect of Section 45-5-102(l)(a), MCA 1987.
“2) COUNT II: DELIBERATE HOMICIDE — That on or about July 1, 1988, at Ovando, Powell County, Montana, the defendant purposely or knowingly caused the death of Celene Blackwood by shooting Celene Blackwood in the head with a .22 caliber pistol and by slashing her throat, contrary to the form, force, and effect of Section 45-5-102(l)(a), MCA 1987.
“3) COUNT III: AGGRAVATED KIDNAPPING — That on or about July, 1, 1988, at Ovando, Powell County, Montana, the defendant knowingly or purposely and without lawful authority restrained Edward Blackwood by using or threatening to use physical force, with the purpose of inflicting bodily injury on or terrorizing Edward Blackwood, by binding Edward Blackwood to a chair and shooting Edward Blackwood in the head with a .22 caliber pistol, contrary to the form, force, and effect of Section 45-5-303(l)(c), MCA 1987.
“4) COUNT V: AGGRAVATED KIDNAPPING — That on or about July, 1, 1988[,] at Ovando, Powell County, Montana, the defendant knowingly or purposely and without lawful authority restrained Celene Blackwood by using or threatening to use physical force, with the purpose of inflicting bodily injury on or terrorizing Celene Black-wood, by tying Celene Blackwood’s hands to her ankles, shooting Celene Blackwood in the head with a .22 caliber pistol, and slashing Celene Blackwood’s throat, contrary to the form, force, and effect of Section 45-5-303(l)(c), MCA 1987.
“5) COUNT VII: AGGRAVATED BURGLARY — That on or about July 1, 1988, at Ovando, Powell County, Montana, the defendant knowingly entered or remained unlawfully in the residence of Edward and Celene Blackwood with the purpose to commit the offense of Theft therein and in the course of committing the offense of Theft the defendant purposely or knowingly inflicted bodily injury on Edward and Celene Blackwood, by shooting Edward and Celene Blackwood in the head with a .22 caliber pistol and by slashing Celene Blackwood’s throat, contrary to the form, force, and effect of Section 45-6-204(2)(b)[,] MCA 1987.
“6) COUNT VIII: ROBBERY — That on or about July 1, 1988, in Ovando, Powell County, Montana, the defendant, in the course of committing the theft of money, guns, and a vehicle from Edward and Celene Blackwood, knowingly inflicted bodily injury upon Edward and Celene Blackwood by shooting Edward and Celene Blackwood in the head with a .22 caliber pistol and slashing Celene Blackwood’s throat, contrary to the form, force, and effect of Section 45-5-401(l)(a)[,] MCA 1987.
“7) COUNT IX: THEFT — That on or about July 1, 1988, at Ovando, Powell County, Montana, the defendant purposely or knowingly obtained or exerted unauthorized control over the property of Edward and Celene Blackwood, to wit: seven (7) pistols of various makes and models, cash and wallets, and a 1984 GMC Pickup, Montana License Number 28T-6868, having a value of more than $300.00, with the purpose of depriving the owners of the property, contrary to the form, force, and effect of Section 45-6-301(l)(a), MCA 1987.”

The District Corut struck Counts IV and VI, the alternative counts of aggravated kidnapping under § 45-5-303(l)(b), MCA. Following Langford’s pleas, MacKay made the following statement: “If it please the Court, the Defendant [Langford] requests of this Court that all matters be expedited. The Defendant [Langford) has asked me to advise the Court that he wants the death penalty imposed.”

At Langford’s sentencing hearing on January 26, 1989, MacKay stated:

“As I previously indicated at the last hearing we had, the Defendant [Langford] has asked me to tell the Court that his decision in this case is to ask for the death penalty. He has spent a lot of time with me. He has all of the information that I could give him to make a decision. He is before this Court indicating that he is aware of what his options are. He does not want to spend the rest of his life in prison. He has pled guilty to all of the charges that were leveled against him by the prosecutor, and he asks the Court to impose the death penalty.” At this sentencing hearing, Langford testified that he had no motive or remorse for killing the Blackwoods and would kill again if provoked. Langford also testified that he was satisfied with MacKay’s services, he understood the proceedings of the sentencing hearing, and he had no questions regarding the proceedings.

On January 26, 1989, the District Court sentenced Langford to death for each of the two counts of deliberate homicide and the two counts of aggravated kidnapping. The District Court further sentenced Langford to consecutive prison terms of forty years for aggravated burglary, forty years for robbery, ten years for theft, and enhanced his sentence by ten years for using a dangerous weapon in the commission of his crimes. Following the sentencing, MacKay, in keeping with Langford’s instructions, filed a notice of intent not to appeal the death penalty sentences.

On July 12, 1989, while this Court was reviewing these death penalty sentences under the automatic review provisions of § 46-18-307, MCA, MacKay notified this Court that Langford had changed his mind and had decided not to seek the death penalty; consequently, MacKay filed a notice of appeal. On August 31, 1989, Langford dismissed MacKay and Michael Donahoe was substituted as his counsel.

On October 12,1989, this Court remanded this case to the District Court to allow Langford to file a motion to withdraw all his guilty pleas. On remand, the District Court denied Langford’s motion in an opinion and order dated July 16,1990. From this opinion and order, Langford appeals.

Standard of Review

“The granting or refusal of permission to withdraw a plea of guilty and substitute a plea of not guilty rests in the discretion of the District Court and is subject to review only upon a showing of abuse of discretion.” State v. Arbgast (1983), 202 Mont. 220, 223, 656 P.2d 828, 830 (citation omitted).

Analysis

1. Did Langford receive effective assistance of counsel in connection with his decision to plead guilty to the charged crimes?

The State argues that most of Langford’s allegations of fact regarding his claim of MacKay’s ineffective assistance of counsel are set forth in an affidavit by Langford, which was filed with and supported his motion to withdraw guilty pleas. This affidavit was never admitted into evidence at the hearing. The State argues that because it was never admitted into evidence coupled with the fact that Langford was never examined or cross-examined on its contents at the hearing, the affidavit should not be viewed as evidence by this Corut citing, inter alia, a divorce action, Stefonick v. Stefonick (1946), 118 Mont. 528, 167 P.2d 867. We disagree in this instance.

Section 26-1-1002, MCA, a statutory provision of evidence, permits the use of an affidavit “to verify a pleading or a paper in a special proceeding ...” Section 46-16-201, MCA, provides that “[t]he rules of evidence in civil actions are applicable to criminal actions ...” Here, the State never objected to the use of the affidavit at the hearing, and relied on it to secure an order from this Court dated January 9,1990, which allowed MacKay to testify with immunity. Furthermore, the District Court referenced the affidavit in its opinion and order dated July 16, 1990, that denied Langford’s motion to withdraw his guilty pleas. We therefore will consider this affidavit.

Langford argues that when he was arrested in North Carolina, a police officer gave him a pre-printed waiver of rights form containing his Miranda rights for his signature. When the police officer asked him if he wanted to waive his rights, Langford claims that he refused to do so. Langford claims that because of his response, the police officer crossed out words on this form, which indicated that he did not waive his rights. This form, which Langford claims contains the crossed-out words, was not produced during discovery. In January 1990, however, the State obtained this form from the North Carolina State Bureau of Investigation. The form, dated August 12,1988, has the words “Refused to Sign” written on the signature line, and the form is a part of the record in this case. The form reads as follows and does not contain any crossed-out material:

On August 15, 1988, Montana authorities also advised Langford of his Miranda rights prior to interviewing him. After being advised of his rights, Langford signed a waiver of rights form. He then voluntarily confessed that he killed the Blackwoods. The signed August 15, 1988, waiver of rights form reads as follows:

Langford argues that because he refused to waive his rights to the North Carolina authorities, he was entitled to and was denied an attorney immediately following his arrest and before his confession. Langford argues that MacKay failed to provide effective counseling because MacKay never informed Langford that he had this defense argument, which possibly could have resulted in the suppression of his confession. Langford argues that because he refused to waive his Miranda rights to the North Carolina authorities, his waiver of rights prior to his confession to Montana authorities is void. Langford further argues that MacKay failed to provide effective counsel because MacKay never obtained this form with the alleged crossed-out words during discovery.

Additionally, Langford argues that MacKay failed to adequately discuss with Langford the events of the crimes, his arrest, his confession, or his intent to plead guilty and request the death penalty. Langford argues that MacKay failed to adequately explore the potential defenses of 1) the denial of a prompt initial appearance before a court and 2) possible constitutional violations attached to Langford’s voluntary confession. Lastly, Langford argues that MacKay did not advise him on the controlling law concerning the appointment of a defense psychiatrist to assist him in the evaluation of his defense. Langford’s arguments lack merit.

Before analyzing Langford’s arguments, we wish to note MacKa/s qualifications. MacKay has been a full-time public defender for the Third Judicial District for ten years andhas practiced law since 1955. He has represented criminal defendants in nearly 1000 felony cases, some of which involved homicide and other major felonies. Additionally, he has attended continuing education seminars on the death penalty.

Langford’s arguments of ineffective counsel fail because Langford cannot satisfy the tests under Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, and Hill v. Lockhart (1985), 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203. The test in Strickland provides that to prove a claim of ineffective counsel, “a defendant must show that counsel’s performance was deficient” and because of this deficiency, the defendant was denied a fair trial. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. The test in Hill provides that when a guilty plea is involved, the defendant must show that but for counsel’s deficient performance, the defendant would not have pled guilty “and would have insisted on going to trial.” Hill, 474 U.S. at 59,106 S.Ct. at 370 (footnote omitted). Accord State v. Senn (Mont. 1990), [244 Mont. 56,] 795 P.2d 973, 47 St.Rep. 1389.

This Court has observed that “‘[c]laimed inadequacy of counsel must not be tested by a greater sophistication of appellate counsel, nor by that counsel’s unrivaled opportunity to study the record at leisure and cite different tactics of perhaps doubtful efficacy.’” State v. Martz (1988), 233 Mont. 136, 140, 760 P.2d 65, 68 (citations omitted). “Judicial scrutiny of counsel's performance must be highly deferential” and “requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. The reviewing court “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance ...: Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.

Here, the record establishes that MacKay’s performance was not deficient in the areas raised by Langford. Regarding the unsigned waiver of rights form, “refusing to sign a waiver of rights form without an attorney's guidance is not synonymous with an affirmative request for assistance of counsel.” United States v. Eirin (11th Cir. 1985), 778 F.2d 722, 728. See also United States v. McKinney (5th Cir. 1985), 758 F.2d 1036, 1045 (defendant’s refusal to sign a waiver of rights form did not automatically render further questioning illegal). Accordingly, even if MacKay would have requested this form during discovery, the form would not have constituted a viable defense for Langford.

Furthermore, no evidence exists in the record to prove that Langford even told MacKay that he had refused to sign a waiver of rights form with the North Carolina arresting officers or that Langford had said anything to the arresting officers that might be viewed as an invocation of his right to counsel. This indicates that MacKay was unaware of the North Carolina form’s handwritten statement “Refused to Sign.” An attorney has no duty to investigate leads that do not appear to be fruitful. Harvey v. United States (8th Cir. 1988), 850 F.2d 388, 403. See also Roach v. Martin (4th Cir. 1985), 757 F.2d 1463, 1476, n.19, cert. denied, 474 U.S. 865, 106 S.Ct. 185, 88 L.Ed.2d 154, (1985) (trial counsel was not ineffective for failing to interview a police officer about the arrest where counsel made an appropriate investigation based on information supplied by the defendant concerning statements to the police).

The record, through MacKay’s testimony, does indicate that Mac-Kay discussed the circumstances of the arrest during one of his first conferences with Langford and learned that Langford had been advised of his Miranda rights by North Carolina authorities and that he understood these rights. Moreover, the record indicates that before Langford gave his confession, he was once again read his Miranda rights, this time by Montana authorities, and signed a waiver of rights form. We therefore see no deficiency with regard to MacKay’s performance regarding the unsigned waiver form.

Regarding Langford’s arguments that MacKay failed to adequately discuss with Langford the events of the crimes, his arrest, his confession, or his intent to plead guilty and request the death penalty, the record again indicates that MacKay’s performance in these areas was not deficient. The record contains substantial evidence proving that MacKay provided effective counseling to Langford, including MacKay’s testimony concerning his time and effort devoted to: 1) interviewing Langford, 2) obtaining the State’s full investigative file at that time, 3) investigating the facts and legal strategies, and 4) informing Langford of his legal options.

Furthermore, it is important to note that MacKay was required to abide by Langford’s decisions, which were, at the time, to plead guilty to all charges and to request the death penalty. See Montana Rules of Professional Conduct, Rule 1.2, (adopted by this Court on June 6, 1985). MacKay testified that Langford solely determined these decisions, and that he attempted on at least two occasions to persuade Langford to reconsider while also advising him of the gravity of those decisions. Moreover, Langford stated on numerous occasions to Mac-Kay that he desired the death penalty for his crimes. Furthermore, he stated to the District Court that he fully understood the proceedings of his sentencing hearing. Langford’s change of mind concerning his guilty pleas and having the death penalty imposed against him does not mean that MacKay’s performance was deficient at a time when Langford had an opposite mind-set.

Additionally, Langford argues that MacKay failed to adequately explore the possible defenses of 1) the denial of a prompt initial appearance before a court and 2) possible constitutional violations attached to Langford’s voluntary confession. Even if these were possible defenses in this case, the record does not support allegations that MacKay failed to explore these defenses. The record does indicate that MacKay adequately investigated the possibility of filing a motion to suppress Langford’s confession and challenging Montana’s death penalty statutes. Langford, however, told MacKay that unless MacKay could guarantee him acquittal on the charges pending against him or could assure him that he would spend little time in prison, he wanted to plead guilty and be executed. MacKay told Langford that neither he nor any other responsible attorney could make that kind of guarantee. Langford then repeatedly instructed MacKay not to file any suppression motions or initiate any further investigation on his behalf. MacKay eventually abided by Langford’s decisions and exhibited no deficiency in his performance by doing so.

Lastly, Langford argues that MacKay did not advise him on the controlling law, namely Ake v. Oklahoma (1985), 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53, concerning the appointment of a defense psychiatrist to assist him in the evaluation of his defense. Langford argues that he would not have pled guilty if he had known about the possibility of obtaining the services of another court-appointed psychiatrist.

In Ake, the Court held that when a defendant has made a preliminary showing that his sanity at the time of the offense is to be a significant factor at trial, the State must assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense. Ake, 470 U.S. at 82, 105 S.Ct. at 1096. The Court in Ake also noted, however, that a defendant’s mental condition is not necessarily at issue in every criminal proceeding and that the mental condition must be seriously in question before the right is implicated. Ake, 470 U.S. at 82-83, 105 S.Ct. at 1096.

At no time did Langford put his mental state at issue at the time of his commission of the crimes, prior to or at the time of his guilty pleas, or at his sentencing. Langford spent fifty-four days at Montana State Hospital in Warm Springs for a court-ordered psychiatric evaluation based upon a single remark he made to MacKay during one of his first interviews. Langford’s remark alluded to the possibility that something was wrong with him.

The Montana State Hospital psychiatric evaluation concluded, inter alia, that Langford suffered from no mental disease, disorder, or defect, which excluded responsibility for the crimes or prevented Langford from appreciating the criminality of his acts. The record is void of evidence that this evaluation was inaccurate. In fact, Langford testified at his sentencing hearing that he believed the evaluation was accurate.

Additionally, the record does not indicate that a second evaluation was warranted; it is void of evidence that Langford displayed any bizarre behavior or made any remarks that indicated a need for further evaluation. Furthermore, there is nothing in the record to indicate that a second evaluation would have made a difference in Langford’s pleas based on Langford’s firm stand to enter guilty pleas at the time. We emphasize that Langford repeatedly told MacKay that he did not want him to do anything on his behalf if Langford could not be guaranteed of an acquittal or, in the alternative, a short prison term for his crimes. MacKay’s performance was not deficient in this area. We therefore hold that MacKay provided Langford with effective assistance of counsel.

2. Did the District Court impose the death sentences under the influence of passion, prejudice, or other arbitrary factors by relying in part on victim impact statements and on Langford’s failure to display remorse?

Section 46-18-310(1), MCA, mandates this Court in death penalty cases to review: “whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor ...” A review of this issue as well as Issues Three and Five of this appeal “serves as a check against the random or arbitrary imposition of the death penalty.” Gregg v. Georgia (1976), 428 U.S. 153, 206, 96 S.Ct. 2909, 2940, 49 L.Ed.2d 859, 893.

Here, the evidence fails to indicate that the District Court judge imposed the death penalty under any such arbitrary influence. The record does not reflect that any public opinion or media, any personal bias or prejudice, any fear of community objection, or any other type of improper circumstances affected the court’s sentencing decision. Compare State v. Keith (1988), 231 Mont. 214, 754 P.2d 474 (holding that allegations of any such prejudice are speculative without any supporting evidence).

Langford did not object to the District Court’s consideration of the pre-sentence report at his sentencing hearing. The pre-sentence report, which stated that a life sentence would be a harsher penalty than the death penalty for Langford, contains nothing notably inaccurate or inflammatory. The court’s written findings and conclusions are careful and dispassionate. After examining the numerous letters written in regard to the case, most non-supportive and one supportive of Langford, the court stated only that it is “ever mindful of the pain, suffering and fear of the victims in this case as well as that of their family, friends and the community.”

Langford cites Booth v. Maryland (1987) 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440, which held that the jury’s consideration of a victim impact statement violated the Eighth Amendment, by creating an unacceptable risk that the jury may impose the death penalty in an arbitrary and capricious manner. Booth can be distinguished from the facts herein because: 1) in Booth, Maryland’s then statutory scheme differs from Montana’s by requiring the consideration of victim impact statements if a victim suffered injury or death, and 2) in Montana, a judge, rather than a jury, sentences the defendant. Accord State v. Kills On Top (Vern) (1990), 243 Mont. 56, 793 P.2d 1273; State v. Kills On Top (Lester) (1990), 241 Mont. 378, 787 P.2d 336; State v. Dawson (1988), 233 Mont. 345, 761 P.2d 352; State v. Keith (1988), 231 Mont. 214, 754 P.2d 474.

Additionally, Langford argues that the District Court improperly relied upon Langford’s lack of remorse, treating bis absence of contrition as an aggravating circumstance. This allegation appears to be based upon the District Court’s observation at the sentencing hearing that Langford showed no signs of remorse for his crimes.

The record and the court’s findings, however, clearly show that the District Court did not treat Langford’s lack of remorse as an aggravating circumstance or shift the burden to Langford. The court mentioned lack of remorse as part of the court’s general discussion of possible mitigating circumstances and not in connection with the court’s earlier discussion of the aggravating circumstances in the case. Accordingly, the court properly viewed Langford’s lack of remorse as evidence of the absence of mitigating factors sufficiently substantial to call for leniency. See State v. Kills On Top (Vern), supra; State v. Kills On Top (Lester), supra; State v. Dawson, supra.

Even if the court had viewed Langford’s lack of remorse as an aggravating factor, it would have committed no error because, while lack of remorse is not statutorily enumerated as an aggravating circumstance, it still relates to the propriety of the death sentence. State v. Kills On Top (Lester), 241 Mont. at 404, 787 P.2d at 353 (citation omitted). Because Langford has not alleged, and the record fails to indicate, any improper sentencing influence, we conclude that the District Court did not impose the death sentence under the influence of passion, prejudice or any other arbitrary factor.

3. Did the District Court fail to rule as a matter of law that mitigating factors existed and that such mitigating factors were substantial enough to call for leniency?

This issue concerns “whether the evidence supports the judge’s finding of the existence or nonexistence of the aggravating or mitigating circumstances enumerated in [§§] 46-18-303 and 46-18-304[,] [MCA] ...” Section 46-18-310(2), MCA. The District Court may impose a sentence of death if it finds the existence of one or more of the aggravating circumstances listed in § 46-18-303, MCA, and if it determines that none of the mitigating circumstances listed in § 46-18-304, MCA, are “sufficiently substantial to call for leniency.” Section 46-18-305, MCA.

Langford argues that the District Court failed to consider the following mitigating factors as stated in the pre-sentence report and state hospital report, which call for leniency: 1) Langford’s past drug use, 2) Langford’s troubled childhood centering around his hostility toward his mother, 3) Langford’s habit of characterizing himself in an unfavorable light, and 4) an evaluator’s opinion that Langford may be suicidal.

The State argues that the District Court did examine mitigating factors and found that there were none substantial enough to call for leniency. Furthermore, the State argues that the District Court adequately disclosed the basis of its sentences in its findings and conclusions. We agree with the State’s arguments.

The District Court in this case expressly found the existence of two aggravating circumstances. First, the court noted that the two homicides were committed as part of a scheme which resulted in the death of more than one individual. See § 46-18-303 (5), MCA. As used in this statute, the word “scheme” means a “planned undertaking” or a “systematic plan.” See Webster’s Third New International Dictionary 2027 (16th ed. 1971). This interpretation comports with the interchangeable usage at law of the terms “scheme,” “plan” and “system See generally State v. Keefe (1988), 232 Mont. 258, 759 P.2d 128 (requiring, inter alia, proof of a “common scheme, plan or system” prior to the admissibility of evidence of other crimes).

Langford’s actions portray just such a systematic criminal plan which, when completed, ended in the deaths of the Blackwoods. Langford’s actions included observing the house over a period of several days, subduing Edward by use of a rifle when he walked into the garage one morning, waiting for Celene to appear and then requiring her to tie Edward’s wrists with rope, ordering the Black-woods into their home before similarly tying Celene’s wrists and ankles and tying Edward to a chair, requesting the location of those weapons belonging to the Blackwoods before finally, after the passing of several hours, shooting both in the head and slashing Celene’s throat when the shot failed to kill her, and then fleeing with the Blackwoods’ pickup, weapons, and money.

Second, the court noted that Langford committed aggravated kidnapping which resulted in the death of the victims. See § 46-18-303(7), MCA. An individual commits the offense of aggravated kidnapping when he or she:

“knowingly or purposely and without lawful authority restrains another person by either secreting or holding him in a place of isolation or by using or threatening to use physical force, with any of the following purposes:

“(b) to facilitate commission of any felony or flight thereafter;
“(c) to inflict bodily injury on or to terrorize the victim or another

Section 45-5-303(1), MCA. The evidence clearly indicates that Langford in fact knowingly and forcibly restrained the Blackwoods in the living room of their house by the use of ropes and threats at gunpoint. We hold that this detention, which facilitated Langford’s murder of the Blackwoods and robbery of their pickup truck, weapons and money, was sufficient to constitute aggravated kidnapping.

The court found no mitigating circumstances existed except Langford’s lack of an extensive documented prior criminal record. The evidence supports the court’s findings regarding mitigating circumstances. Nothing indicated that Langford was under the influence of extreme mental or emotional disturbance, that he was under extreme duress or the substantial domination of another person, that he was mentally incapacitated, that the victims participated in or consented to his actions, or that Langford was merely an accomplice or under the age of eighteen at the time the Blackwoods were killed in July of 1988. See § 46-18-304, MCA.

To the contrary, Langford was on a camping trip, without any human contact whatsoever for several days prior to the incident. Langford stated, as did the psychiatric report, that he was not under any extreme mental or emotional disturbance at the time, and that he was capable of appreciating the criminality of his conduct and conforming his conduct according to the law. The fact that the Blackwoods were bound ehminates the possibility that they could exert any substantial domination over Langford just prior to or at the time of their deaths or that they could participate in any way in the homicides. No evidence exists showing that another person was involved in the homicides and Langford himself contends he alone is responsible for the Blackwoods’homicides. Lastly, Langford stated he had not taken any drugs or alcohol at the time of the homicides.

The only potentially mitigating circumstance noted by the court involved Langford’s lack of an extensive documented prior criminal record. Langford had previously been convicted of two felony counts of forgery and tampering with a vehicle. However, the court held, and we think rightly so, that this lack of an extensive criminal record was not sufficiently substantial to merit leniency. This Court has previously held that a defendant’s lack of prior violent criminal activity does not necessarily require sentence leniency. See State v. Keith (1988), 231 Mont. 214, 754 P.2d 474; State v. Smith (1985), 217 Mont. 461, 705 P.2d 1087, cert. denied, 474 U.S. 1073, 106 S.Ct. 837, 88 L.Ed.2d 808 (1986), habeas corpus conditionally granted, 914 F.2d 1153 (9th Cir. 1990); State v. Dawson (1988), 233 Mont. 345, 761 P.2d 352. In light of the facts regarding these two homicides, Langford’s statement that he considered killing two other people after the Blackwoods’ homicides, and his statement that he would kill again if provoked, we hold that the District Court did not err in holding that lack of an extensive, violent criminal record was not sufficiently substantial to merit leniency.

4. Do Montana’s death penalty statutes violate Montana Constitution, Article II, Section 28?

The State asserts that because Langford failed to 1) object during the district court proceedings concerning the constitutionality of the death penalty statutes and 2) develop this argument in the district court record, he is now banned from raising this constitutional challenge on appeal. We disagree. Because this case involves death penalty sentences, we will consider this constitutional issue on appeal.

Langford argues that Montana’s death penalty statutes violate Article II, Section 28 of Montana’s Constitution, which provides: remand, 177 Mont. 280, 581 P.2d 1205 (1978), vacated, 443 U.S. 903 (1979), on remand, 186 Mont. 481, 608 P.2d 428 (1980), cert. denied, 449 U.S. 1050 (1980), vacated in part on other grounds, 842 F.2d 1525 (9th Cir. 1988), cert. denied, 488 U.S. 901, 109 S.Ct. 250, 102 L.Ed.2d 239 (1988):

“Laws for the punishment of crime shall be founded on the principles of prevention and reformation. Full rights are restored by termination of state supervision for any offense against the state.” This Court previously examined this issue and upheld Montana’s death penalty statutes in State v. McKenzie (1976), 171 Mont. 278, 557 P.2d 1023, vacated on other grounds, 433 U.S. 905 (1977), on
“Here, defendant argues that Article II, Section 28, 1972 Montana Constitution no longer expressly authorizes the legislature to provide for the death penalty as did Article III, Section 24, 1889 Montana Constitution. The failure to reenact the authorization might have significance had not the Constitutional Convention given the people of Montana the option of adopting into the 1972 Constitution language expressly prohibiting the enactment of the death penalty. The people of Montana voted for 147,023 and against 77,733, to retain the death penalty. Such a vote, so recently, negates any argument the death penalty violates contemporary standards of decency.” McKenzie, 171 Mont. at 294, 557 P.2d at 1033.

Langford recognizes this language from the case of McKenzie in his brief, but argues that the June 6,1972 vote concerning the death penalty was illegal because the 1972 Constitutional Convention exceeded its authority when it placed the death penalty issue before the voters as a “side issue” along with the 1972 Montana Constitution, citing State ex rel. Cashmore v. Anderson (1972), 160 Mont. 175, 500 P.2d 921, cert. denied, 410 U.S. 931, 93 S.Ct. 1372, 35 L.Ed.2d 593, (1972). Furthermore, Langford argues that the 1972 vote on the issue was inconclusive, and that the voter information pamphlet was confusing. Langford’s arguments lack merit.

Langford’s reliance on Cashmore is misplaced and he cites no applicable authority in support of his theory. The issue in Cashmore was whether the 1972 Montana Constitution was approved by a majority of the voters, and not whether the Constitutional Convention exceeded its authority by placing three alternative issues on the ballot along with the 1972 Montana Constitution. Furthermore, we do not believe the 1972 vote was either illegal or inconclusive, nor do we believe the voter information pamphlet was confusing. To the contrary, the people of Montana, through the 1972 vote, clearly displayed their desire to retain the death penalty by a near two-to-one margin. We therefore affirm our holding in McKenzie and hold that Montana’s death penalty statutes do not violate Montana Constitution Article II, Section 28.

5. Did the District Court excessively or disproportionately impose the death penalty sentence in comparison to similar cases?

Although Langford does not raise this issue on appeal, this Court is charged with determining whether the death sentence imposed in any given case “is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.” Section 46-18-310(3), MCA. This determination entails a comparison of all the following cases appealed to this Court, which involved similar crimes for which the death penalty was or could have been imposed: State v. Kills On Top (Vern) (1990), 243 Mont. 56, 793 P.2d 1273; State v. Kills On Top (Lester) (1990), 241 Mont. 378, 787 P.2d 336; State v. Dawson (1988), 233 Mont. 345, 761 P.2d 352; State v. Keefe (1988), 232 Mont. 258, 759 P.2d 128; State v. Keith (1988), 231 Mont. 214, 754 P.2d 474; State v. Smith (1985), 217 Mont. 461, 705 P.2d 1087, cert. denied, 474 U.S. 1073, 106 S.Ct. 837, 88 L.Ed.2d 808 (1986), habeas corpus conditionally granted, 914 F.2d 1153 (9th Cir. 1990); State v. Fitzpatrick (1977), 174 Mont. 174, 569 P.2d 383, on remand, 186 Mont. 187, 606 P.2d 1343 (1980), cert. denied, 449 U.S. 891, 101 S.Ct. 252, 66 L.Ed.2d 118 (1980), rev’d on other grounds, 869 F.2d 1247 (9th Cir. 1989), cert. denied,_U.S._, 110 S.Ct. 203, 107 L.Ed.2d 156, (1989); State v. Coleman (1978), 177 Mont. 1, 579 P.2d 732, on remand, 185 Mont. 299, 605 P.2d 1000 (1979), cert. denied, 446 U.S. 970, 100 S.Ct. 2952, 64 L.Ed.2d 831, (1980), rev’d on other grounds, 874 F.2d 1280 (9th Cir. 1989), cert. denied,_U.S._, 110 S.Ct. 349, 107 L.Ed.2d 337 (1989); State v. McKenzie (1976), 171 Mont. 278, 557 P.2d 1023, vacated on other grounds, 433 U.S. 905, 97 S.Ct. 2968, 53 L.Ed.2d 1089 (1977), on remand, 177 Mont. 280, 581 P.2d 1205 (1978), vacated, 443 U.S. 903, 99 S.Ct. 3094, 61 L.Ed.2d 871 (1979), on remand, 186 Mont. 481, 608 P.2d 428 (1980), cert. denied, 449 U.S. 1050, 101 S.Ct. 626, 66 L.Ed.2d 507 (1980), vacated in part on other grounds, 842 F.2d 1525 (9th Cir. 1988), cert. denied, 488 U.S. 901, 109 S.Ct. 250, 102 L.Ed.2d 239 (1988).

After examination of such factors as the gravity of the offenses, the facts relating to the commission of the offenses, and the non- existence of any factors meriting leniency, we hold that the sentence was not disproportionate or excessive to others imposed in similar cases. All the above-cited cases, except Keefe, involved a death penalty imposed for the aggravated kidnapping and subsequent homicide of a victim. So too does this case. Moreover, this case involves not just one, but multiple homicides, as did the cases of Dawson and Smith. As in the case of Fitzpatrick, the victims were shot in the head, execution-style, after having been bound. Further, the factor meriting leniency in the Keefe case, namely, the fact Keefe was under the age of eighteen at the time he committed the three homicides, does not exist in this case. Langford was twenty-two years of age at the time he committed the charged crimes.

In conclusion, after reviewing all the evidence and applicable law, we hold that the District Court did not abuse its discretion in denying Terry Allen Langford’s motion to withdraw guilty pleas and we affirm the sentences imposed by the District Court on January 26, 1989. This case is remanded to the District Court with orders to set a new date of execution of the death sentences imposed upon Terry Allen Langford.

JUSTICES HARRISON, GRAY, TRIEWEILER, HUNT, McDONOUGH and WEBER concur.