text:
    The STATE OF MONTANA, Plaintiff and Respondent, v. DAVID CAMERON KEITH, Defendant and Appellant.
    No. 85-176.
    Submitted on Briefs Dec. 22, 1988.
    Decided March 23, 1988.
    Rehearing Denied June 2, 1988.
    754 P.2d 474.

      George B. Best, Jr., argued, Kalispell, J. Mayo Ashley, argued, Helena, for defendant and appellant.
    Mike Greely, Atty. Gen., Helena, Kimberly A. Kradolfer argued, Asst. Atty. Gen., Larry Nistler, Co. Atty., Poison, for plaintiff and respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

Defendant, David Cameron Keith plead guilty on March 28, 1985 to two charges of aggravated assault, two charges of aggravated kidnapping, and one charge of deliberate homicide. The pleas were received by the Honorable Robert M. Holter. Defendant received a sentence of death for one of the aggravated kidnapping charges and an additional sentence of death for the deliberate homicide charge. A prison term totaling 146 years was rendered on the remaining charges. Appeal is pursued according to the automatic review of sentence provided by Sections 46-18-307 to -310, MCA.

We reverse the sentence of death for the deliberate homicide charge only and affirm in all other respects.

Factual Background

On January 11, 1984, at approximately 1:00 p.m., the defendant, David Keith, committed a robbery of a pharmacy in Missoula, Montana. Keith left Missoula by vehicle and later traveled north into Lake County on Highway 93. Approximately three hours after the robbery, Keith’s vehicle was observed by a police officer in the area of St. Ignatius. Believing the vehicle was connected with the earlier robbery in Missoula, law enforcement personnel followed the vehicle as it traveled north on Highway 93 toward Poison.

Approximately four miles north of St. Ignatius the vehicle stopped at the Post Creek Store and defendant Keith exited the vehicle. Keith entered the store with a drawn gun and took William Crose, Jr., age 13, as his hostage by pointing a pistol at his head. While still inside the store, Keith was startled when a store clerk, Delores Coffman, moved for cover. Keith fired a shot in her direction but she was not struck. The bullet narrowly missed her head and was estimated to have missed by as little as four inches. Keith later indicated he did not wish to harm Coffman and testified the shot was merely a scare tactic.

Forcing William Crose, Jr. to accompany him, Keith left the Post Creek Store in a vehicle belonging to the boy’s father. Keith again drove north on Highway 93 toward Poison. Somewhere south of Poison, law enforcement officials stopped Keith with a roadblock. Keith exited the vehicle and exchanged conversation with the law enforcement officials. Still holding his gun to the hostage’s head, Keith indicated he would shoot his hostage if his demands were not met. Keith demanded that the officials supply him with an airplane, pilot and parachute. Law enforcement officials continued to attempt to negotiate with Keith, and he was eventually allowed to proceed to the Poison airport.

A small aircraft was located and provided for Keith upon his arrival at the airport. A local pilot, Harry Lee Shryock, Jr. age 64, agreed to board the plane in exchange for the release of the young hostage. After Shryock boarded the plane, Keith released William Crose, Jr. and then boarded the plane himself. Shryock had difficulties starting the airplane engine and the record is not entirely clear as to whether this was purely a stall tactic or if genuine difficulties were encountered.

During the time period that Shryock was attempting to start the plane, the law officers were able to view Keith on several occasions through the doorway of the plane. During these time periods, Keith was pointing his gun at Shryock. A deputy armed with a rifle was positioned some distance away and was observing Keith’s movements through his rifle scope. The final time Keith was visible through the doorway it appeared that Keith was not pointing his gun at the pilot. Seizing this apparent opportunity, the deputy shot Keith. The bullet struck Keith in the right arm and entered his chest area. Keith then fired a shot into Shryock’s head resulting in his death. Subsequently, Keith exited the plane and was shot in the back of the head by a law enforcement officer positioned near the plane.

Keith’s initial pleadings indicated he alleged the shot which killed Shryock was fired as a reflex action and would not have occurred if he had not been shot himself. However, he has since changed that position and has entered a plea of guilty to deliberate homicide by purposely or knowingly causing the death of Shryock “by shooting him in the head with a bullet from a handgun.” The District Court found that the killing was in execution style and that Keith thought he was dying and took Shryock’s life “because he didn’t want to go alone.” Additionally, prior to sentencing, a presentence investigation report was prepared. An updated report was provided on April 4, 1985, which stated that Keith had made a written statement which stated, in part, “immediately after [being shot] I came to the conclusion that I was going to die, I didn’t want to go alone so I fired my pistol into the back of the head of Mr. Harry Shryock.” At the sentencing hearing on April 10, 1985, the District Court made the presentence report part of the record after giving Keith a liberal opportunity to object to any portions of the report. No objections were made to the inclusion of this statement.

Procedural Background

Keith was charged with seven crimes: (1) aggravated assault, Section 45-5-202, MCA (victim: Delores Coffman); (2) aggravated assault, Section 45-5-202, MCA (victim: William Crose, Jr.); (3) aggravated kidnapping, Section 45-5-303, MCA (victim: William Crose, Jr.); (4) aggravated assault, Section 45-5-202, MCA (victim: Harry Shryock); (5) aggravated kidnapping, Section 45-5-303, MCA (victim: Harry Shryock); (6) deliberate homicide, Section 45-5-102(l)(a), MCA (victim: Harry Shryock); and (7) deliberate homicide pursuant to the “felony-murder rule,” Section 45-5-102(l)(b), MCA (victim: Harry Shryock).

Represented by defense counsel Keith Rennie, defendant Keith appeared in District Court on February 8, 1984 and was ordered to Warm Springs to receive psychiatric and medical examinations and care. The major purpose was to determine if Keith could assist in his own defense and if he was able to understand the proceedings against him. See, Section 46-14-103, MCA. Subsequently, a number of opinions were rendered regarding this determination.

An initial medical opinion filed March 12, 1984 by H. Robert Stehman, a state psychologist, concluded Keith was unable to understand the charges or to assist in his defense and recommended further observation. State psychiatrist H.C. Xanthopoulos concurred in the opinion. Keith was then temporarily committed to Warm Springs. On June 8, 1984, William Stratford,- M.D. rendered the opinion that Keith was competent to proceed. However, in an opinion filed June 15, 1984, Roy Hamilin, psychologist, stated Keith was still incompetent. Dr. Xanthopoulos also signed the opinion. An additional opinion was filed on June 27, 1984 by Herman Walters, Ph.D., clinical psychologist, in which he concluded Keith was competent to proceed. On June 27, 1984, the State moved for a hearing to determine Keith’s fitness to proceed. Dr. H.C. Xanthopoulos filed an opinion on August 21, 1984 and concluded Keith was “[w]ell oriented as to time, place and person . . . Judgment is fair. Abstract thinking and general information are good . . . Patient is not mentally ill.”

A hearing to determine whether or not Keith had the fitness to proceed with the case was held September 13, 1984. Keith did not contest the findings in the reports concluding he was competent to proceed, nor did he contest his fitness to proceed. The District Court found he was competent to proceed and able to assist in his own defense. Keith entered an innocent plea to all seven charges.

On October 11, 1984, the District Court changed venue for trial from Lake County to Lincoln County. Keith requested a new attorney and Gary Doran was appointed principal counsel with Rennie remaining as co-counsel. Subsequently Keith requested that Doran be removed. The District Court removed Doran and appointed George Best principal counsel November 29, 1984.

A plea bargain proposal was presented February 5, 1985 in which Keith was to plead guilty to the aggravated kidnapping of William Crose, Jr. and the State would dismiss the remaining charges. The State was to recommend a life sentence with possible parole and that Keith’s health be considered as a factor for possible early parole. A presentence investigation was filed March 21, 1985. On March 28, 1985, the District Court refused to accept the plea bargain. Following the refusal, Keith plead guilty to counts one through six.

A sentencing hearing was held April 10, 1985. Keith testified he was not under the influence of drugs when the crimes were committed and refused to withdraw his pleas. The District Court sentenced Keith to a total of 146 years for two charges of aggravated assault and one charge of aggravated kidnapping. Keith was sentenced to death for the aggravated kidnapping of Shryock and an additional death sentence was rendered for the deliberate homicide of Shryock. The remaining homicide charge was dismissed and the remaining aggravated assault charge was found to be duplicitous.

A stay of execution was filed June 6, 1985 so as to allow the appeal process to proceed, and briefs for the appellant Keith were filed October 16, 1985. On October 9, 1985 Keith’s counsel entered a motion to withdraw the guilty pleas. On November 14, 1985 this Court remanded the case to the District Court to determine whether it would be proper to allow the plea withdrawal.

On December 4, 1985 the defense filed a motion to disqualify District Judge Holter and this Court ordered District Judge Henry Loble to hear and determine the disqualification argument. A hearing was held on the disqualification issue February 4, 1986, and the motion was denied April 3, 1986, because the defense failed to show prejudice or bias and because the motion was not timely.

Pursuit of Discretionary Appeals

It is apparent that Keith holds a personal viewpoint of the appeal process in which he does not desire to pursue any appellate review unless required to do so by law. Keith has consistently maintained this viewpoint since at least April 2, 1986. Defense counsel Best attempted to withdraw because he believed he could not adequately represent Keith if he insisted on not pursuing all possible issues on appeal. On April 21, 1986 a motion was entered to appoint a “next friend” for Keith. Although the precise role of a “next friend” is not entirely clear, it appears that this individual would be given authority to assist, advise and make legal arguments and motions on Keith’s behalf. Involved in this motion was Leo Driscoll, an attorney from Spokane, Washington, who at one time practiced law with Keith’s father.

On July 7, 1986, the District Court denied the motion for appointment of next friend and ordered additional psychiatric evaluations to determine whether Keith was competent to enter his guilty pleas. On November 12, 1986, the District Court held a hearing to determine Keith’s competence to enter his guilty pleas. Testimony and reports were received by four experts and all concluded or strongly implied Keith was competent to enter a plea. No medical expert testified that Keith was not competent to enter his plea. On November 28, 19.86, the District Court found that Keith was sufficiently competent to enter a plea and entered the following conclusions of law:

“1. The Defendant, David Cameron Keith, does not suffer from any mental disease, disorder, or defect which substantially affects his capacity in the premises.
“2. Defendant has the capacity to appreciate his position as a convicted and condemned person.
“3. Defendant has the capacity to appreciate the penalty imposed upon him.
“4. Defendant has the capacity to make rational choices with respect to continuing or abandoning further litigation.
“5. Defendant has the capacity to make rational choices with respect to acting or assisting in his own defense.
“6. Defendant has the capacity to instruct his attorney to suspend all proceedings in the district court.”

Additionally, the District Court found that Keith requested a dismissal of his motion to withdraw his guilty plea. The motion was therefore dismissed in the order accompanying the District Court’s findings of fact and conclusions of law.

Keith continued to insist that none of his discretionary appeals be pursued. On March 30, 1987 defense counsel Best again moved to withdraw. The District Court appointed Mayo Ashley as counsel for Keith on May 8, 1987, but retained Best as standby counsel. On May 5, 1987 this Court issued an order allowing defense counsel 45 days to determine whether any issues would be appealed besides those which were mandatory. On June 19, 1987, defense counsel Ashley entered a notice that it was Keith’s intention to file only mandatory appeals. Ashley still suggested that this Court consider all of the issues contained in the appellant’s two briefs. On July 14, 1987, this Court ordered that review be limited to only those issues which are mandatory and contained in Section 46-18-310, MCA:

“Supreme court’s determination as to the sentence. 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.” (Emphasis added.)

After reviewing this issue, we conclude that our order on July 14, 1987 was correct and that defendant Keith has the right to limit his appeal to only those issues that must be reviewed according to Section 46-18-310, MCA. Keith has clearly expressed his intent to pursue only those appellate issues which must be reviewed as a matter of law. Keith has been adjudged competent to make such a choice and we will not interfere with his choice. The issue is not what others would do if faced with this decision, but what defendant Keith desires to do. Keith’s decision must be respected if it is made competently, voluntarily, intelligently, and with full knowledge of the consequences.

Although this is an issue of first impression in Montana, we believe the results of cases originating in jurisdictions outside Montana support our decision. See, Gilmore v. Utah (1976), 429 U.S. 1012, 97 S.Ct. 436, 50 L.Ed.2d 632; and Judy v. State (1981), 275 Ind. 145, 416 N.E.2d 95. See also, Lenhard v. Wolff (9th Cir. 1979), 603 F.2d 91; stay temporarily granted (1979), 443 U.S. 1306, 100 S.Ct. 3, 61 L.Ed.2d 885, stay denied (1979) 444 U.S. 807, 100 S.Ct. 29, 62 L.Ed.2d 20. Based on the facts contained in the record, we hold that defendant Keith’s decision was made competently, voluntarily, intelligently, and with full knowledge of the consequences.

Issues Presented

(1) Are the sentences of death excessive or disproportionate punishments as established by other Montana sentences for similar crimes?

(2) Was the imposition of the death penalty for aggravated kidnapping excessive or disproportionate when the aggravated kidnapping charge did not charge defendant with purposely or knowingly causing the death of the victim?

(3) Did the District Court fail to adequately consider the mitigating factors provided in Section 46-18-304, MCA?

(4) Was the sentence of death imposed under the influence of passion, prejudice, adverse publicity and fear of community objection?

(5) Does the evidence support the District Court’s findings of an aggravating circumstance regarding the aggravated kidnapping charge?

(6) Did the District Court properly find the existence of an aggravating circumstance regarding the deliberate homicide charge?

We must comply with the provisions of Section 46-18-310, MCA, in our consideration of its provisions in determining a death sentence. We note that Section 46-18-310(2), MCA, requires a discussion of Section 46-18-303, MCA as well as Section 46-18-304, MCA. This we will do.

I. CONSIDERATIONS OF SIMILAR CASES AND PUNISHMENTS RENDERED.

Keith’s counsel contends that both sentences of death are excessive and disproportionate punishments compared to other Montana sentences for similar crimes and therefore violate Section 46-18-310(3), MCA. Keith cites a statistical analysis to demonstrate that the average sentence for a conviction of deliberate homicide in Montana during 1982 and 1983 was 72 years. Despite these statistics, Keith fails to identify any similar cases where the death penalty was not imposed. Keith’s citation to statistics fails because it does not establish that the death sentences are necessarily disproportionate under the facts and circumstances of the present situation.

Keith states the death sentences are disproportionate or excessive because no individual or official connected with the case recommended or desired the death sentences. Defendant states the prosecution recommended a term of life and that the rejected plea bargain agreement did not include any death sentence. However, we note that the prosecution did indicate in the early stages of these proceedings that the death penalty might be appropriate. The State did not argue for the imposition of the death penalty at sentencing, but this does not prohibit the District Court from rendering such a sentence when it finds the necessary elements as set forth in Section 46-18-301 to -310, MCA. Defendant Keith also states that the parole officer preparing the presentence investigation stated a life sentence would insure public safety. The authoring parole officer, however, specifically noted that the District Court might wish to consider the imposition of the death penalty, and avoided making any specific sentence recommendation. Keith also points out that none of the victims’ relatives, nor the victims themselves, indicated that the death penalty would be appropriate. Although there were certain victim statements contained in the presentence investigation report, no other victim statement evidence was introduced at the sentencing hearing and defendant presented no additional evidence of this nature for the District Court’s consideration. Even assuming all of the living victims and all of the victims’ relatives did not favor the death penalty, this would not necessarily control the sentencing decision. We refuse to reverse the sentence based on these contentions.

Keith contends that his sentence is disproportionate and excessive when compared to other Montana cases which have resulted in a penalty of death. Montana law requires this Court to conduct such a comparison, considering both the crime and the defendant, and to include in this decision a reference to those similar cases considered. Section 46-18-310(3), MCA. In regards to this consideration,

“[W]e need not examine every similar case whether appealed or not, rather we need only examine those cases where after conviction the death penalty could have been or was imposed that has reached our attention through the appellate process.”

State v. Smith (Mont. 1985), [217 Mont. 461,] 705 P.2d 1087, 1108, 42 St.Rep. 463, 490. This Court has affirmed the death penalty for a total of four criminal defendants since the landmark case of Gregg v. Georgia (1976), 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859. In Smith, we engaged in an examination and comparison of the following three cases: State v. McKenzie (1976), 171 Mont. 278, 557 P.2d 1023, vac. (1977), 433 U.S. 905, 97 S.Ct. 2968, 53 L.Ed.2d 1089, on remand (1978), 177 Mont. 280, 581 P.2d 1205, vac. (1979), 443 U.S. 903, 99 S.Ct. 3094, 61 L.Ed.2d 871, cert. denied (1979), 443 U.S. 912, 99 S.Ct. 3103, 61 L.Ed.2d 877, on remand (1980), 186 Mont. 481, 608 P.2d 428, cert. denied (1980), 449 U.S. 1050, 101 S.Ct. 626, 66 L.Ed.2d 507; State v. Coleman, (1979), 185 Mont. 299, 605 P.2d 1000, cert. denied (1980), 446 U.S. 970, 100 S.Ct. 2952, 64 L.Ed.2d 831; and State v. Fitzpatrick (1980), 186 Mont. 187, 606 P.2d 1343, cert. denied (1980), 449 U.S. 891, 101 S.Ct. 252, 66 L.Ed.2d 118. At the time of the Smith case, these were the only three “cases arising in Montana since 1973, the effective date that the death penalty could be imposed for the crime of aggravated kidnapping in which the victim [was] killed.” Smith, 705 P.2d at 1108, 42 St.Rep. at 490. The Smith decision included the following descriptions of the circumstances involved in each of these three cases:

“The defendant in McKenzie, supra, was charged with deliberate homicide and aggravated kidnapping as a result of the bludgeoning death of Lana Harding. The District Court imposed the death penalty for both offenses and this Court affirmed following remand from the United States Supreme Court. McKenzie, supra, 581 P.2d 1205. The victim was found draped over a grain drill; partially nude; with a rope tied around her neck; and severely beaten about the head and body. Death had been caused by severe blows inflicted by Duncan McKenzie, the defendant.
“In Coleman, supra, Dewey Coleman was sentenced to death following the jury’s verdict of guilty of the crime of aggravated kidnapping. The defendant raped Peggy Harstad, beat her about the head with a motorcycle helmet, attempted to strangle her with a nylon rope and finally held her in the Yellowstone River until she drowned.
“The defendant in Fitzpatrick, supra, was convicted of deliberate homicide, aggravated kidnapping and robbery and was sentenced to death for the homicide and kidnapping of Monte Dyckman. The victim was found dead lying on the passenger seat of his car with his hands tied behind his back. Monte Dyckman had been shot twice with a gun held less than six-inches from his head. The homicide resulted from the perpetration of the robbery.”

Smith, 705 P.2d at 1108, 42 St.Rep. at 490.

The defendant in Smith, supra, was convicted, pursuant to guilty pleas, of two counts of aggravated kidnapping and two counts of deliberate homicide. State v. Smith (Mont. 1985), [217 Mont. 461,] 705 P.2d 1087, 42 St.Rep. 463, cert. denied (1986), 474 U.S. 1073, 106 S.Ct. 837, 88 L.Ed.2d 808. While in the process of stealing a car, defendant Smith abducted and shot two victims in the head at point blank range with a sawed-off, single-shot, bolt action .22 rifle. At his sentencing hearing, Smith indicated he committed the murders because he did not wish to leave any witnesses to his car theft and that he had had a “morbid fascination to find out what it would be like to kill somebody.” Smith, 705 P.2d at 1089, 1090, 42 St.Rep. at 465. Smith constitutes the fourth case in which this Court has affirmed the penalty of death since the Gregg case in 1976.

Keith argues his crimes were not nearly as heinous or perverse as those cited above. However, we find it neither convincing nor controlling that some might say Keith’s actions were not as heinous or perverse as those other Montana cases which have generated a death penalty. In comparison to these past cases, we find defendant Keith’s crimes are of a sufficient magnitude to qualify for capital punishment.

Keith alleges he had “no malicious plan to take a life.” He contends his only true original intent was to commit a robbery. Instead, his intentions were escalated out of control due to his desire to escape and that the death of Shryock was the result of an incompetent and negligent response by law enforcement officials. Therefore, he concludes that capital punishment is disproportionate and excessive under these facts.

The record demonstrates that Keith abducted a young boy at gun point and clearly stated he would kill the youth if his demands were not met. Keith buttressed his claim by forcing the barrel of the gun against the youth’s head. It is difficult to imagine how one would not classify this scenario as a “malicious plan to take a life.” The youth was released only after he was replaced with another hostage, Harry Shryock, who thereupon became a kidnap victim, held at gunpoint by Keith. Keith classifies Shryock as a “volunteer” hostage. Although Shryock’s actions were noble, they were not voluntary. A volunteer offers himself for a service free of compulsion. Shryock offered his presence in exchange for the youth’s freedom and his actions were therefore not free from compulsion and cannot be classified as voluntary. As previously mentioned, Keith fired a shot at a clerk in the store which could have resulted in her death. The District Court concluded that the killing by Keith was in execution style, and that Keith took Shryock’s life because he did not want to die alone. After a careful review of the entire record, we conclude that the circumstances of this crime are directly comparable to the four cases previously considered in Montana. While the circumstances of the killing by Keith are not identical to these four cases, clearly his crime is properly classified as both heinous and perverse and of sufficient magnitude to qualify for capital punishment in a comparable manner to the other four cases reviewed in Montana. We hold that capital punishment is not disproportionate or excessive under the facts of the present case.

II. INTENT OF THE DEFENDANT.

Keith contends the death penalty is excessive or disproportionate for a charge of aggravated kidnapping when that charge fails to allege he intentionally took a life. Count V of the information charged defendant with aggravated kidnapping and stated:

“[Defendant DAVID CAMERON KEITH, committed the offense of aggravated kidnapping as specified in MCA Section 45-5-303, when he purposely or knowingly and without lawful authority restrained HARRY LEE SHRYOCK, JR., by using or threatening to use physical force with the purposes of using HARRY LEE SHRYOCK, JR., as a shield or hostage and/or to facilitate the commission of several felonies or the flight thereafter. The defendant used a handgun in the commission of this offense and his conduct as described in this Count resulted in the death of HARRY LEE SHRYOCK, JR.”

Following Keith’s guilty plea to the above charge, the District Court determined Keith was eligible for the death penalty because the charge was aggravated kidnapping which resulted in the death of the victim and there were no mitigating circumstances sufficiently substantial to call for leniency. See Sections 46-18-303, -304, and - 305, MCA.

Keith’s argument is that the language in the information fails to charge him with intentionally killing the victim. Keith argues the death penalty is excessive and disproportionate under Count V because he did not specifically plead guilty to any intentional conduct regarding the death of the victim. Defendant concludes that without this element of intent, the death penalty is excessive and disproportionate, resulting in cruel and unusual punishment and a violation of due process. In short, Keith alleges that an intentional killing is a constitutionally essential element if the death penalty is to be imposed.

Defendant notes he did plead guilty to purposely or knowingly causing the death of his victim under Count VI (Deliberate Homicide), but argues that the mental state of Count VI should not be incorporated into Count V. However, Keith’s contention merely confuses the issue by playing a “shell game” with the counts contained in the information. Keith entered guilty pleas to five crimes and makes no allegations that the information is incorrectly drafted in regards to those crimes. Subsequent to those guilty pleas and as he enters the sentencing phase of the trial process, the sentencing judge is allowed to consider a wide variety of factors. Section 46-18-302, MCA. It would be an injustice to prohibit the District Court from considering the fact that Keith plead guilty to deliberate homicide, when deciding whether capital punishment was appropriate for the aggravated kidnapping which resulted in the death of the victim.

Even assuming Keith is correct and that the District Court can only look solely to the language contained in the count which charges an aggravated kidnapping of Harry Shryock, there is still no absolute prohibition from implementing the death penalty on that count. Keith is correct in stating that there are certain crimes for which the Constitution will not allow a death penalty. See, Coker v. Georgia (1977), 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (capital punishment is excessive and therefore unconstitutional if imposed for the charge of rape alone). However, we do not believe that capital punishment is constitutionally prohibited in all cases unless the defendant is responsible for an intentional killing. As support for his argument Keith cites Enmund v. Florida (1982), 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d. 1140. Enmund involved the question of accomplice liability in situations where an accomplice did not directly participate in a murder, but only assisted the murderer in his escape from the scene of the crime. A death sentence for such an accomplice who did not intend to commit a homicide was rejected. The Court noted that capital punishment will probably serve as a deterrent “only when murder is the result of premeditation and deliberation.” 458 U.S. at 799, 102 S.Ct. at 3377. (quoting Fisher v. United States (1946), 328 U.S. 463, 484, 66 S.Ct. 1318, 1328, 90 L.Ed. 1382, (Frankfurter, J., dissenting)). However, the Court indicated a substantial limitation by stating:

“It would be very different if the likelihood of a killing in the course of a robbery were so substantial that one should share the blame for the killing if he somehow participated in the felony.”

Enmund, 458 U.S. at 799, 102 S.Ct. at 1377.

The limited nature of Enmund is highlighted by the more recent case of Tison v. Arizona (1987), _ U.S. _, 107 S.Ct. 1676, 95 L.Ed.2d 127. Tison involved the imposition of capital punishment against accomplices who were substantially involved in the commission of four homicides, but did not actually commit homicide themselves. The Court held that major participation in a felony murder charge, combined with a reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement.

Both Enmund and Tison can be distinguished from the present facts, since both address whether the death penalty is appropriate for an accomplice who did not actually take a life but assisted in a crime with that result. In contrast, defendant Keith has obviously taken a life himself. However, the cases are useful in analyzing whether capital punishment is an excessive or disproportionate penalty when the charging document does not specifically allege an intent to kill by the defendant for the particular crime that generated a death sentence. We believe that the cases demonstrate the United States Supreme Court has not absolutely prohibited capital punishment in such situations.

Furthermore, this Court decided this precise issue in McKenzie v. Osborne (1981), 195 Mont. 26, 47, 48, 640 P.2d 368, 381. In that case, defendant challenged his death sentence for his conviction of aggravated kidnapping by stating that there was never any finding by the jury that he deliberately took the life of his victim. Defendant contended that capital punishment was unconstitutionally disproportionate for the crime of aggravated kidnapping because there was no charge or finding that he had an intent to kill. 195 Mont. at 47, 48, 640 P.2d at 381. We rejected that contention in McKenzie v. Osborne, supra, and we reject it once again here. Capital punishment is not invariably disproportionate to the crime when a life has been taken by the offender. 195 Mont. at 48, 640 P.2d at 381. See also, Gregg v. Georgia (1976), 428 U.S. 153, 187, 96 S.Ct. 2909, 2932, 49 L.Ed.2d 859, 882. Defendant Keith entered a plea of guilty to a charge of aggravated kidnapping which resulted in the death of his victim. We conclude that capital punishment is not invariably disproportionate in such a case.

Finally, Keith argues that the statutory aggravating circumstance of Section 46-18-303(7), MCA, fails to properly narrow the class of defendants eligible for the death penalty. Keith relies on Zant v. Stephens (1983), 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235, and states that an aggravating circumstance must narrow the class of people eligible for the death penalty and reasonably justify the more severe sentence. 462 U.S. at 877, 103 S.Ct. at 2742. Keith contends that the aggravating circumstance of Section 46-18-303(7), MCA (an aggravated kidnapping resulting in the death of the victim), fails to perform this task. Keith reasons that this aggravating circumstance fails to narrow the class of defendants eligible for capital punishment because every aggravated kidnapping resulting in the death of the victim qualifies for the death penalty regardless of whether or not the defendant desired the resulting death. Keith states this particular aggravating circumstance “does not reserve the punishment to extreme cases or to those particularly severe crimes for which the death penalty is particularly appropriate.” He concludes that this aggravating circumstance fails to narrow the applicability of capital punishment to those few defendants truly deserving such punishment.

Keith’s argument is misplaced and is logically incorrect. He ignores the wording of the statutes. Section 45-5-303, MCA, defines the offense of kidnapping for the purposes of the present case as follows:

“A person commits the offense of aggravated kidnapping if he knowingly or purposely and without lawful authority restrains another person ... by using . . . physical force, with any of the following purposes:
“(a) to hold for ransom or reward or as a shield or hostage;. . .”

In itself the statute points out that aggravated kidnapping was the result when Keith restrained Shryock by the use of physical force in order to hold him as a shield and hostage. The facts clearly demonstrate aggravated kidnapping as defined in this section. At this point, the sentence of death may be imposed pursuant to Section 45-5-303(2), MCA. The court is required by Section 46-18-301, MCA, to hold a separate sentencing hearing to determine whether further aggravating circumstances exist. Section 46-18-303, MCA, defines aggravating circumstances for this purpose as:

“Aggravating circumstances are any of the following:
“(7) the offense was aggravated kidnaping which resulted in the death of the victim . . .

Clearly the aggravating circumstance is the death of the victim which of course goes substantially beyond the aggravated kidnapping itself. Certainly the death of the victim is a statutory factor which narrows the cases in which capital punishment might be applicable. We conclude this meets the test set forth in Zant. The United States Supreme Court recently explained this test as follows:

“[T]he use of ‘aggravating circumstances,’ is not an end in itself, but a means of genuinely narrowing the class of death-eligible persons and thereby channeling the [sentencer’s] discretion.” Lowenfield v. Phelps (1988), _ U.S _, 108 S.Ct. 546, 554, 98 L.Ed.2d 568 (affirming the proposition that a sentence of death may validly rest upon a single aggravating circumstance even though that aggravating circumstance is a necessary element of the underlying offense of first degree murder). We specifically hold that Section 46-18-303(7), MCA, genuinely narrows the class of death-eligible persons and is an appropriate aggravating circumstance for the death penalty. In addition, we point out that the District Court was required to consider whether any of the mitigating circumstances of Section 46-18-304, MCA, would apply. These circumstances of course may have a narrowing effect if any of them are present.

III. MITIGATING CIRCUMSTANCES.

Capital punishment is inappropriate under Montana law if the District Court finds mitigating circumstances sufficiently substantial to call for leniency. Section 46-18-305, MCA, states in part:

“In determining whether to impose a sentence of death or imprisonment, the court shall take into account the aggravating and mitigating circumstances enumerated in 46-18-303 and 46-18-304 and shall impose a sentence of death if it finds one or more of the aggravating circumstances and finds that there are no mitigating circumstances sufficiently substantial to call for leniency.”

Section 46-18-304, MCA, address mitigating circumstances and states:

“Mitigating circumstances are any of the following:
“(1) The defendant has no significant history of prior criminal activity.
“(2) The offense was committed while the defendant was under the influence of extreme mental or emotional disturbance.
“(3) The defendant acted under extreme duress or under the substantial domination of another person.
“(4) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.
“(5) The victim was a participant in the defendant’s conduct or consented to the act.
“(6) The defendant was an accomplice in an offense committed by another person, and his participation was relatively minor.
“(7) The defendant, -at the time of the commission of the crime, was less than 18 years of age.
“(8) Any other fact that exists in mitigation of the penalty.”

The District Court addressed each of the above mitigating circumstances in its written findings of fact and found no mitigating circumstances sufficiently substantial to call for leniency.

Keith alleges the District Court failed to properly consider the mitigating factors existing under these facts and that such a failure constitutes a violation of the Eighth and Fourteenth Amendments to the United States Constitution. Keith is correct in asserting that the United States Supreme Court has concluded:

“[T]hat the Eighth and Fourteenth Amendments require that the sentencer in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.”
(Emphasis in original.)

Lockett v. Ohio (1978), 438 U.S. 586, 604, 98 S.Ct. 2954, 2964-65, 57 L.Ed.2d. 973, 990. See also, Eddings v. Oklahoma (1981), 455 U.S. 104, 114, 102 S.Ct. 869, 876, 71 L.Ed.2d 1, 10. Accordingly, Montana law mandates that the District Court consider mitigating circumstances. Section 46-18-305, MCA. The District Court in this case properly followed the applicable law and considered the mitigating circumstances presented by defendant Keith.

At the sentencing hearing, Keith was given the opportunity to present any evidence of mitigating circumstances. Such evidence was heard and received by the District Court. Subsequently, the District Court issued findings of fact addressing each mitigating circumstance listed in Section 46-18-304, MCA, including the residual category of subsection (8) providing for the consideration of any “fact that exists in mitigation of the penalty.” The District Court concluded that there were no mitigating circumstances sufficiently substantial to call for leniency and we agree with that conclusion.

Section 46-18-310, MCA, directs us to consider whether the evidence within the record supports the District Court’s findings regarding aggravating and mitigating circumstances. In regards to making such a consideration, we have stated:

“[W]e make such an assessment based upon our independent review of the trial court record. In so doing, we are not usurping the position of the District Court as the primary entity in Montana’s system of criminal jurisprudence, rather we mean to insure that the death penalty, unique in its severity ... is not wantonly or arbitrarily and capriciously imposed. State v. Coleman (1979), 185 Mont. 299, 605 P.2d 1000, cert. denied, 446 U.S. 970, 100 S.Ct. 2952, 64 L.Ed.2d 831, reh’g denied, 448 U.S. 914, 101 S.Ct. 34, 65 L.Ed.2d 1177 (1980); Gregg v. Georgia, supra, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859; Furman v. Georgia, supra, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346.”

Smith, 705 P.2d at 1096-97, 42 St.Rep. at 474.

Keith lists twenty-one items which allegedly constitute mitigating circumstances sufficiently substantial to call for leniency. The items tend to overlap and some are repetitive. The list can be summarized into five categories and addressed as follows:

1. Physical and mental disabilities.

Keith alleges he has suffered significant physical disabilities from having been shot by law enforcement officials during the commission of his crimes. He states that he now suffers from seizures, his vision is impaired, he must take daily medication, he has difficulty with his movement, and that his right hand and arm are disabled. Additionally, Keith contends he was suffering from significant mental impairments before and during the commission of his offenses. He alleges he suffers from an organic personality syndrome, an antisocial personality disorder, and has a long-standing history of drug abuse.

We conclude that the District Court properly discounted these mitigating circumstances when it found that the circumstances were not sufficiently substantial to call for leniency. We further conclude that the District Court considered all evidence relating to the physical and mental disabilities of Keith which were presented at the hearing. After a careful review of the record, we hold that the District Court properly concluded that no substantially mitigating circumstances existed in this case.

2. Remorse and reform.

Keith states he has experienced remorse for his crimes and a desire to reform by helping others. Keith alleges he exhibited a concern for others by advising William Crose, Jr., to avoid drugs. Apparently, Keith offered this advice to his young victim sometime during the kidnapping. Keith additionally states he has been categorized as a good worker and no officer of the court, nor any victim or relative of a victim, requested the death penalty. Defendant’s contentions that he is remorseful and genuinely wishes to reform are regarded as self-serving and we refuse to find they constitute mitigating circumstances sufficiently substantial to call for leniency. See, Smith, 705 P.2d at 1098, 42 St.Rep. at 477.

3. Prior Criminal record.

Keith contends his prior criminal record includes a number of property crimes, but no crimes of violence. We have rejected the contention that a lack of prior criminal activity necessarily requires leniency in the sentencing. Coleman, 185 Mont. at 331-32, 605 P.2d at 1019-20. Similarly, we have rejected the argument that past criminal history without any violent crimes necessarily requires leniency in the sentence. Smith, 705 P.2d at 1098, 42 St.Rep. at 476. Keith has clearly demonstrated his capacity for violence by threatening the life of William Crose, Jr., firing a shot at Delores Coffman, and in the murder of Harry Shryock. We agree with the District Court and hold that the absence of violent crimes from Keith’s criminal history is not a sufficiently substantial mitigating circumstance.

4. Effect of injury sustained during the commission of the crimes.

Keith states that the gunshot wound he sustained before he shot Shryock represents a sufficient mitigating circumstance. Keith contends that because of the wound, he was under the influence of extreme mental or emotional disturbance, and that the wound substantially impaired his capacity to appreciate the criminality .of his conduct or to conform his conduct to the requirements of the law. See, Sections 46-18-303(2) and (4), MCA.

To hold that the wound sustained by Keith is a sufficient mitigating circumstance would be to ignore the vast majority of his criminal activity. At the time Keith was shot, he had completed every crime for which he plead guilty except deliberate homicide. More importantly, Keith had already set the stage for the deliberate homicide by holding Shryock hostage at gunpoint. Keith cannot now receive leniency in his sentence because he subsequently alleges the homicide would not have occurred if he had not been shot. Keith was responsible for creating the circumstances generating his injury and we will not find that the bullet wound is a mitigating circumstance sufficiently substantial to call for leniency.

Additionally, there is reason to seriously doubt Keith’s contention altogether. In the updated presentence investigation report filed April 4, 1985, Keith is reported to have made a statement which stated, in part, “immediately after [being shot) I came to the conclusion that I was going to die, I didn’t want to go alone so I fired my pistol into the back of the head of Mr. Harry Shryock .” Despite a liberal opportunity to do so, Keith did not object to this portion of the report, and the District Court made the report part of the record at the sentencing hearing on April 10, 1985. At the sentencing hearing, the District Court is allowed to hear any evidence that it considers to have probative force. Section 46-18-302, MCA. Keith’s statement appears to demonstrate that he consciously contemplated his actions. Since Keith had the opportunity to rationalize and contemplate his actions, we hold that the bullet wound does not constitute a mitigating circumstance sufficiently substantial to call for leniency.

5. Miscellaneous personal problems.

Finally, Keith cites a variety of miscellaneous personal problems which he contends are sufficient mitigating circumstances. Keith states he was young when his father died, that his mother-in-law died within the month prior to his crime spree, that his wife had miscarried shortly prior to the crimes, that he was only 27 years old, and that he was out of work. Even if we assume all of the above personal difficulties are true, we find no mitigating circumstance sufficiently substantial to call for leniency.

IV. PASSION, PREJUDICE, OR OTHER ARBITRARY FACTORS.

Section 46-18-310(1), MCA, provides that this Court shall determine “whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor; . . .” Keith contends his sentence was imposed under the influence of passion, prejudice, adverse publicity, and fear of community objection. Keith bases his argument on three grounds.

First, Keith contends the proposed plea bargain set a strong tone of adverse public opinion and gave rise to a tremendous media outcry for a strong sentence. Keith alleges the sentencing process was ultimately affected. However, these contentions are speculative. Keith fails to produce any evidence supporting the allegation that the sentence was influenced by public opinion or the media, and we will not alter or reverse his sentence based on these unsupported allegations.

Second, Keith asserts the District Court Judge’s record and reputation demonstrate his criminal sentencing is overly harsh, especially when a crime is drug related (Keith has a significant history of drug abuse, but has testified he was not under the influence of drugs at the time of the crime). These contentions are also speculative and without any credible supporting evidence. On December 4, 1985 the defense filed a motion to disqualify District Judge Holter and this Court ordered District Judge Loble to hear and determine the disqualification argument. The transcript indicates that during a telephone conference on January 13, 1986 with Judge Loble, counsel for defendant Keith stated there was “no obvious prejudice or bias on the part of Judge Holter.” A hearing was held on the disqualification issue February 4, 1986, and the motion was denied April 3, 1986, because the defense failed to show prejudice and because the motion was not timely. Keith was unable to provide any facts or reasons to support his contention of bias or prejudice and his motion for disqualification was properly denied. The contention that there was prejudice or bias on the part of the sentencing judge has no merit.

Finally, Keith relies on the recent case of Booth v. Maryland (1987), _ U.S. _, 107 S.Ct. 2529, 96 L.Ed.2d 440. In Booth, the Court determined that it was a violation of the Eighth Amendment for a sentencing jury to refer to information contained in a “victim impact statement” during the sentencing phase of a capital murder trial. The victim impact statement included information regarding the personal characteristics of the victims, the emotional impact of the crimes on the family, and opinions from the family members regarding the crimes and the defendant. The U.S. Supreme Court found that this type of “information is irrelevant to a capital sentencing decision, and that its admission creates a constitutionally unacceptable risk that the jury may impose the death penalty in an arbitrary and capricious manner.”_ U.S. at _, 107 S.Ct. at 2533, 96 L.Ed.2d at 448. Defendant contends the presentence investigation for this case contains precisely this sort of information and it was improperly considered by the District Court for sentencing purposes.

The presentence investigation report contained a section entitled “victim’s impact and concerns.” The section includes summaries of interviews with four individuals: William Crose, Jr., William’s father, and Harry Shryock’s son and widow. The report gives a summary of each of their concerns regarding the crime and the impact of the crime on their lives. The information is similar to that addressed in the Booth case, although it does not appear to be as inflammatory or prejudicial in nature.

Additionally, we note that none of the individuals interviewed in the presentence investigation express a desire to extract a pound of flesh in the form of capital punishment. Of those individuals interviewed, none of them suggest that the death penalty is an appropriate recourse. Instead, the opinions and suggestions either state or imply that Keith should not be afforded an early opportunity for parole and that he should probably be imprisoned for life.

In any event, Booth is factually distinguishable from Montana sentencing procedures and does not affect the sentence rendered by the District Court. “Section 46-18-302, MCA, authorizes the sentencing judge to consider the widest possible scope of inquiry when determining the sentence to be imposed.” Smith, 705 P.2d at 1095, 42 St.Rep. at 472. Section 46-18-302, MCA, states:

“In the sentencing hearing, evidence may be presented as to any matter the court considers relevant to the sentence, including but not limited to the nature and circumstances of the crime, the defendant’s character, background, history, and mental and physical condition, and any other facts in aggravation or mitigation of the penalty. Any evidence the court considers to have probative force may be received regardless of its admissibility under the rules governing admission of evidence at criminal trials. Evidence admitted at trial relating to such aggravating or mitigating circumstances shall be considered without reintroducing it at the sentencing proceeding. The state and the defendant or his counsel shall be permitted to present argument for or against sentence of death.”

Additionally, Montana law requires that the probation officer preparing a presentence investigation must inquire into information regarding “the harm to the victim, his immediate family, and the community.” Section 46-18-112, MCA.

We see no conflict between these statutes and Booth v. Maryland, supra, because Booth is factually distinguishable from Montana sentencing procedures and is therefore not controlling. Booth speaks specifically to the situation where a jury is responsible for sentencing. In contrast, the district court judge performed the sentencing in this case as required by Montana law. We believe there is a great amount of difference between what information a district court judge may hear throughout the course of a criminal trial and subsequent sentencing, and the information which a jury may be allowed to hear. For example, it is commonly recognized that the trial judge presiding in a criminal trial is allowed to hear and rule on the admissibility of evidence which the jury is not allowed to consider, and yet the trial judge is still responsible for sentencing. See, Coleman v. Risley (1983), 203 Mont. 237, 248, 663 P.2d 1154, 1160. We emphasize that the trial judge who presided in this matter is an experienced judge who has tried many criminal cases including homicide cases. We have carefully reviewed the record and find nothing to suggest that this judge was adversely affected by anything which we might call inflammatory as described by the defendant. We distinguish the Booth case from the present case because there a jury was involved and here an experienced trial judge was involved. We hold there was no Eighth Amendment violation when the sentencing judge referred to the victim impact information as contained in the presentence investigation report.

Lastly, we believe defendant Keith raises this objection too late. Keith alleges the information was “replete with evidence which [could] only inflame and impassion the sentencer.” Despite the inclusion of this allegedly inflammatory material, Keith failed to make any objection until he was well into the appeal process. We recognize that the Booth case was not decided until June 15, 1987. However, Keith and his counsel were fully aware of the contents of the presentence investigation at sentencing and had the burden of objecting at that time to any prejudicial material contained in the report. If Keith’s counsel truly believed the information would “inflame and impassion” the sentencing judge, an objection surely would have been made at that time. The District Court offered Keith an ample opportunity to rebut any disagreeable information in the report at the sentencing hearing. Defense counsel was afforded the opportunity to examine the official that prepared the report, Keith personally testified regarding what he believed to be inaccuracies in the report, and defense counsel was given a liberal opportunity to enter any objections believed necessary. In State v. Smith, supra, we addressed a highly similar issue. In Smith, the defendant alleged certain inaccuracies in the presentence investigation and did so for the first time on appeal. In response, we stated:

“For the first time the defendant suggests error in the sentence because the presentence report included four offenses committed prior to the defendant attaining the age of majority. This contention loses much of its credibility because the defendant waited until this appeal to raise it. This Court will not review a matter raised for the first time on appeal. Peters v. Newkirk (Mont. 1981), [_ Mont. _,] 633 P.2d 1210, 38 St.Rep. 1526; Northern Plains v. Board of Natural Resources (1979), 181 Mont. 500, 594 P.2d 297. This Court has long held that the defendant has an affirmative duty to present evidence showing the inaccuracies contained in the report. State v. Transgrud (Mont. 1982), [200 Mont. 303,] 651 P.2d 37, 39 St.Rep. 1764; State v. Radi (1979), 185 Mont. 38, 604 P.2d 318.”

Smith, 705 P.2d at 1093, 42 St.Rep. at 470. We believe the same authorities and reasoning apply here; and hold that Keith has raised his objections too late.

V. AGGRAVATING CIRCUMSTANCES REGARDING THE AGGRAVATED KIDNAPPING CHARGE.

Keith contends the evidence does not support the District Court’s findings of an aggravating circumstance regarding the aggravated kidnapping charge. Montana law requires the existence of a statutory aggravating circumstance before capital punishment is appropriate. Section 46-18-305, MCA. Aggravating circumstances are addressed in Section 46-18-303, MCA, which states that an aggravating circumstance exists when:

“(7) The offense was aggravated kidnapping which resulted in the death of the victim . . .”

This subsection was amended in 1987, but the above quoted portion remains unchanged. The District Court specifically found that the aggravating circumstance of Subsection (7) applied.

Defendant Keith argues he should be exempted from this aggravating circumstance because he did release William Crose, Jr., unharmed, and fully intended to release Harry Shryock until the time at which he was shot by a law enforcement officer. Keith asserts the death of Shryock would never have occurred if the situation had been properly handled by law enforcement authorities.

It is ironic that Keith blames the law enforcement authorities for an incident that he in fact created. Keith can not now be exempted from this aggravating circumstance simply because he subsequently alleges his intent was to safely release Shryock. Section 46-18-303(7) simply states an aggravating circumstance exists when an aggravated kidnapping results in the death of the victim. Aggravated kidnapping is controlled by Section 45-5-303, MCA, which states in part:

“(1) A person commits the offense of aggravated kidnapping if he 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:
“(a) to hold for ransom or reward or as a shield or hostage;
“(b) to facilitate commission of any felony or flight thereafter;

Keith’s abduction of Shryock fits the requirements of this statute. At a hearing in District Court on March 28, 1985, Keith testified as follows:

“Q. Now, when you were at the airfield, and Mr. Shryock was in the airplane, was it your intention to have the airplane take off and take you some place?
“A. Yes, it was.
“Q. And you were, Mr. Shryock was going to, I say that, I think that it is Shryock, was going to fly you there?
“A. Yes, he was.
“Q. And was that done at gun point, too?
“A. Yes.
“Q. In other words, was your gun trained on Mr. Shryock?
“A. Yes, it was at the back of his head at all times.
“Q. And, did — when you exchanged the boy for the pilot, would you tell me how that was accomplished? I wasn’t clear on that?
“A. The boy was let go. He was probably ten yards from the airplane. Mr. Shryock was already in the airplane and I got in the airplane.”

Defendant Keith committed an aggravated kidnapping of Shryock and that aggravated kidnapping resulted in Shryock’s death. The District Court has properly found the existence of this aggravating circumstance.

VI. AGGRAVATING CIRCUMSTANCES REGARDING THE DELIBERATE HOMICIDE CHARGE.

Keith alleges the District Court improperly found the existence of an aggravating circumstance in regard to the deliberate homicide charge. As noted in the preceding issue, without the finding of a statutory aggravating circumstance, the death penalty is inappropriate. Section 46-18-303, MCA, provides that an aggravating circumstance exists if:

“(1) The offense was deliberate homicide and was committed by a person serving a sentence of imprisonment in the state prison.

At the sentencing hearing on April 10, 1985, the District Court Judge stated the following to Keith in explaining the death penalty for deliberate homicide:

“[T]he Court has considered Section 46-18-303 of the Revised Codes of Montana and I specifically find that involved was the offense of deliberate homicide which was committed while you were on parole and serving on parole from a sentence out of the State of Washington.”

The statute expressly applies to “a person serving a sentence of imprisonment in the state prison.” (Emphasis added.) The plain wording of the statute does not allow an interpretation which would include an individual on parole. The general rule of statutory construction is set out in Section 1-2-101, MCA, which provides in pertinent part as follows:

“In the construction of a statute, the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted.”

The District Court found that Keith was on parole from the state of Washington at the time of the offense. He committed the offense while in Flathead County. Our statute fails to address the issue whether deliberate homicide committed by a parolee from this or any other state constitutes an aggravating circumstance for purposes of the death penalty. Section 46-18-303(1), MCA, allows the death penalty only where the offense is committed by a person serving a sentence of imprisonment in the state prison. Keith does not meet this statutory requirement. We conclude that the statutory aggravating circumstance of Section 46-18-303(1), MCA, did not exist. We therefore reverse the judgment of the District Court which imposed the death penalty for the offense of deliberate homicide.

We must note that the result on this particular issue is troubling. We have researched the capital punishment statutes of every jurisdiction in the United States retaining capital punishment as a sentence and failed to locate any aggravating circumstances drafted as narrowly as Section 46-18-303(1), MCA. Statutes providing for aggravating circumstances in certain other states tend to address all situations where an assailant was in custody, incarcerated, or under sentence of imprisonment. See e.g., Ariz. Rev. Stat. Ann. Section 13-703(F)(7)(1987); Fla.Stat. Ann. Section 921.141(5)(a)(1987); and Tenn. Code Ann. Section 39-2-203(i)(8)(1987). We invite the legislature to consider amending Section 46-18-303(1) so that it addresses all incarceration situations, as well as parole. However, until such a change is made, this aggravating circumstance does not apply unless the assailant is serving a sentence of imprisonment in the state prison.

VII. CONCLUSION

In summary, we affirm the District Court in all respects, except for the death sentence rendered for the charge of deliberate homicide. After examining all errors alleged by the defendant, we find no other reversible error. The remaining sentences are affirmed. We remand to the District Court to resentence defendant on the deliberate homicide charge and to set a new date for the execution.

MR. JUSTICES WEBER, SHEEHY, GULBRANDSON, McDON-OUGH and HUNT and HON. ARTHUR B. MARTIN, District Judge, sitting in place of MR. CHIEF JUSTICE TURNAGE, concur.

        FOOTNOTES

      1. In McKenzie, Defendant-Appellant argued in his brief that his “death sentence was clearly imposed without a constitutionally proper finding that he possessed the intent to kill which the Eighth Amendment makes prerequisite to forfeiture of life.” Appellant’s Brief at 24.


source: Caselaw Access Project

author: MR. JUSTICE McDONOUGH

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JAMES GONZALES, Defendant and Appellant.
    No. 86-323.
    Submitted on Briefs Feb. 18, 1988.
    Decided March 24, 1988.
    751 P.2d 1063.
    J. Mayo Ashley, Helena, for defendant and appellant.
    Mike Greely, Atty. Gen., Clay R. Smith, Asst. Atty. Gen., Mike McGrath, Lewis and Clark Co. Atty., Helena, Carolyn Clemens, Deputy Co. Atty., for plaintiff and respondent.
   MR. JUSTICE McDONOUGH

delivered the Opinion of the Court.

Appellant James Gonzales appeals his conviction for theft in the District Court of the First Judicial District, Lewis and Clark County. We affirm.

Mr. Gonzales contends that the District Court erred by admitting evidence obtained in violation of his search and seizure rights under the Fourth Amendment to the United States Constitution, and Article II, Section 10 and 11, of the Montana Constitution. The asserted violation stems from police placement of fluorescent detection powder on the exterior of an automobile owned by Mr. Gonzales’s brother, Jason Gonzales. The police applied the powder to Jason Gonzales’s automobile without first obtaining a warrant. After the powder was placed on the vehicle, police found traces of similar powder at different locations within a Helena home which had been burglarized. The police officers investigating the burglary used the presence of the powder at the Helena home to obtain a search warrant for Jason Gonzales’s home and automobile. The searches of the automobile and home revealed evidence the State used to charge both Jason and James on counts of burglary and theft.

The codefendants moved the District Court to suppress the evidence contending that placement of the powder on the car constituted an illegal search and seizure of the car, and that evidence obtained as a result of the application of the’ powder constituted fruit of the poisonous tree. The District Court denied the motion holding that the application of the powder to the car did not constitute a search or seizure so as to implicate search and seizure rights under the United States Constitution and the Montana Constitution. Following this ruling the codefendants moved to sever their trials and the District Court granted the motion. After the separation of the trials, Jason pled guilty to both counts. James proceeded to trial, and the jury returned a verdict convicting him of the count for theft.

Mr. Gonzales contends on appeal that the lower court erred by concluding that placement of the powder on the car and the transfer of the powder to his hands did not constitute a search or seizure. The State responds that the District Court correctly concluded that the application of the powder did not constitute a search or seizure, and that even if a search or seizure existed, Mr. Gonzales lacks standing to contest its validity. We affirm because Mr. Gonzales lacks standing on this issue.

An individual must have either a property or possessory interest in the automobile searched or seized by the police to assert standing for violations of the Fourth Amendment to the United States Constitution. Rakas v. Illinois (1978), 439 U.S. 128, 148, 99 S.Ct. 421, 433, 58 L.Ed.2d 387, 404. The same holds true with regard to the Article II guarantees of the Montana Constitution. State v. Ribera (1979), 183 Mont. 1, 8-9, 597 P.2d 1164, 1168-69. Thus, the threshold question here is whether Mr. Gonzales can claim either interest in his brother’s automobile.

As part of his defense, Mr. Gonzales maintained that he had no property interest in the automobile, and that he never drove it. Therefore, even if the application of the powder constituted an illegal search or seizure of his brother’s vehicle, Mr. Gonzales lacks standing to object to the violation. Inasmuch as Mr. Gonzales cannot assert standing, we decline to address the issue of whether a search or seizure existed as a result of the use of the powder. Affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES GULBRANDSON, WEBER and SHEEHY concur.


author: MR. JUSTICE SHEEHY

text:
    TERI PHELPS, Claimant-Appellant, v. HILLHAVEN CORPORATION, Defendant-Respondent.
    No. 87-242.
    Decided Feb. 25, 1988.
    Decided March 24, 1988.
    752 P.2d 737.

      Robert C. Kelleher, Sr., Kelleher Law Office, Billings, for claimant-appellant.
    William J. Mattix, Crowley, Haughy, Hanson, Toole and Dietrich, Billings, for defendant-respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Teri Phelps appeals from a decision of the Workers’ Compensation Court awarding Ms. Phelps permanent partial disability benefits of $25.07 per week for 500 weeks, and refusing her requests for partial lump sum conversion and reasonable costs and attorney fees. We affirm.

Ms. Phelps presents the following issues on appeal:

1. Were the findings of the Workers’ Compensation Court pertaining to Ms. Phelps diminution of earning capacity supported by substantial credible evidence?

2. Did the Workers’ Compensation Court err in excluding the value of fringe benefits when determining Ms. Phelps’ wages for the purpose of calculating her entitlement to benefits for permanent partial disability?

3. Did the Workers’ Compensation Court abuse its discretion in refusing to grant Ms. Phelps a lump sum conversion of her future entitlement to permanent partial disability benefits?

4. Did the Workers’ Compensation Court err in failing to grant Ms. Phelps an award of costs and attorney fees incurred in the Workers’ Compensation and in this Court?

On August 26, 1983, Teri Phelps sustained an industrial injury arising out of and in the course of her employment as a nurses aide at the Livingston Convalescent Center (Hillhaven Corporation). The defendant Hillhaven Corporation was enrolled under Plan II of the Workers’ Compensation Act with Ranger Insurance Co. being its insurer. The defendant accepted liability for wage and medical benefits under the Montana Workers’ Compensation Act. Ms. Phelps was paid temporary total disability benefits of $91.23 per week from November, 1983, through September, 1985. Ms. Phelps reached maximum healing in October, 1985, and her benefits were then converted to permanent partial disability benefits at the rate of $91.23 per week. Ms. Phelps received $91.23 weekly up to the date of the Workers’ Compensation hearing.

A trial was held on May 7, 1986, before Robert J. Campbell, a hearings examiner for the Workers’ Compensation Court. The parties submitted the following issues to the court for consideration:

1. What is the nature and extent of claimant’s entitlement to permanent partial disability benefits?

2. Is claimant entitled to a lump sum conversion of any portion of her future entitlement, if any, to permanent partial disability benefits?

The hearings examiner found:

1. Ms. Phelps had an actual diminution in earning capacity of $37.60 per week, which under Section 39-71-703, MCA, entitled her to permanent partial disability weekly benefits of $25.07 (66%% of $37.60) for a period of 500 weeks.

2. Ms. Phelps did not present sufficient evidence for the court to determine if a lump sum conversion of a portion of her future benefits was in her best interest; and,

3. Ms. Phelps was not entitled to an award of reasonable costs and attorney fees.

On June 2,1987, the Workers’ Compensation Court issued an order adopting the findings of fact and conclusions of law of the hearings examiner and entered judgment. It is from this judgment that Ms. Phelps appeals.

Ms. Phelps contends that the Workers’ Compensation Court erred in determining her lost earning capacity under Section 39-71-703, MCA.

The standard for reviewing the Workers’ Compensation Court’s findings of fact is whether the court’s findings are supported by substantial credible evidence in the record. Poppelton v. Rollins, Inc. (Mont. 1987), [226 Mont. 267,] 735 P.2d 286, 44 St.Rep. 644. We find substantial credible evidence to support the findings of the Workers’ Compensation Court and affirm the judgment.

The Workers’ Compensation Court engaged in a series of calculations in order to determine Ms. Phelps’ loss of earning capacity. The record disclosed that prior to her injury, Ms. Phelps worked an average of approximately 33 hours per week. The undisputed testimony of Russel Meech, administrator of the Livingston Convalescent Center, established that had Ms. Phelps continued in the employ of the nursing home (until the time of trial), she would have earned $5.33 per hour or approximately $175.68 per week. Ms. Phelps testified that at the time of trial, she was employed by Al’s Pawn Shop in Bozeman and was paid $600 per month. Over the course of a year’s time, $600 per month amounts to $138.08 per week. This was Ms. Phelps’ average weekly salary at the time of trial. This amounts to an actual loss of $37.60 per week. The Workers’ Compensation Court held under Section 39-71-703, MCA, that Ms. Phelps is entitled to receive $25.07 as weekly compensation for the permanent partial disability. We find there is substantial credible evidence supporting the finding of the Workers’ Compensation Court and we affirm their judgment.

Ms. Phelps submits that the Workers’ Compensation Court erred in considering her wages from her post-injury employment at Al’s Pawn Shop when determining her loss of earning capacity under Section 39-71-703, MCA. We disagree.

Ms. Phelps premises her contention on the letter from A1 Williams (the owner of Al’s Pawn Shop) which was stipulated into evidence by both parties. In the letter, Mr. Williams referred to Ms. Phelp’s job as “make work or pseudo work.” The letter goes on to say “we called it (Ms. Phelp’s work) a job to keep from calling it charity and hurting her feelings.” However, Ms. Phelps testified that she was involved in all facets of the operation of the pawn shop; that she was at times left alone to run the business; that she was responsible for doing the bookkeeping for the business; that she waited on customers and that she bought and sold used merchandise. Ms. Phelps provided the Workers’ Compensation Court with substantial credible evidence to find that she was indeed employed by Al’s Pawn Shop. As such the Workers’ Compensation Court correctly considered Ms. Phelp’s wages from her employment when determining her loss of earning capacity under Section 39-71-703, MCA.

Ms. Phelps also emphasizes this Court’s holding in Fermo v. Superline Products (1978), 175 Mont. 345, 574 P.2d 251, wherein we delineated a number of factors that could affect the reliability of post-injury earnings.

“Unreliability of post-injury earnings may be due to a number of variables:
“1. Increase in general wage levels since the accident.
“2. Claimant’s own maturity or training.
“3. Longer hours worked by the claimant after the accident.
“4. Payment of wages disproportionate to capacity to work out of sympathy to claimant.”

Fermo, 175 Mont. at 349, 574 P.2d at 253.

Ms. Phelps alleges error on the part of the Workers’ Compensation Court in failing to consider the number of hours (54) that comprised her post-injury work week when determining her loss of earning capacity. Ms. Phelps further submits that because of the longer hours worked her post-injury earnings are unreliable. The evidence presented to the Workers’ Compensation Court on this point is conflicting. A1 Williams states (in his letter stipulated into evidence) “For the most part she (Ms. Phelps) worked about 40 hours per week.” On the other hand, Ms. Phelps testified that she was working 54 hours per week.

Although Ms. Phelps did present evidence relating to the Fermo factors, there was evidence to the contrary presented which the Workers’ Compensation Court found to be credible and upon which it based its decision. “We cannot substitute our judgment for that of the trial court as to the weight of the evidence on questions of fact.” Cuellar v. Northland Steel (Mont. 1987), [226 Mont. 428,] 736 P.2d 130, 131, 44 St.Rep. 778, 780.

Ms. Phelps further argues that the Workers’ Compensation Court erred in failing to adjust the wages from her employment at Al’s Pawn Shop to reflect the fact that the employer was not withholding taxes. Ms. Phelps’ position regarding this issue is without merit.

The sole question regarding this issue is what was Ms. Phelps earning in her post-injury employment at Al’s Pawn Shop. The fact that federal withholdings were not taken from her paycheck is irrelevant. The unrefuted evidence in the record clearly shows that Ms. Phelps was earning $600 per month. As such there is substantial credible evidence in the record to support such a finding by the Workers’ Compensation Court.

Ms. Phelps next submits that the Workers’ Compensation Court erred in not accepting the testimony of Cliff Larsen, a vocational rehabilitation expert, regarding her pre-injury earning capacity. Mr. Larsen testified that Ms. Phelps had a pre-injury wage range of somewhere between $3.35 to $13.10 per hour. Ms. Phelps contends that $8.22 per hour (the average of $3.35 and $13.10) represents her pre-injury earning capacity, and as such her permanent partial disability should be predicated upon that wage.

Mr. Larsen in determining Ms. Phelps pre-injury earning capacity included a broad range of jobs in determining her normal labor market and wage range. Mr. Larsen included occupations that were not part of Ms. Phelps’ normal labor market. In the immediate case, Mr. Larsen went outside of the parameters of Ms. Phelps’ normal labor market when arriving at her pre-injury earning capacity. We affirm the findings of the Workers’ Compensation Court regarding Ms. Phelps pre-injury earning capacity.

Ms. Phelps next contends that the Workers’ Compensation Court erred in excluding the value of sick leave and other fringe benefits in calculating her wage rate (under Section 39-71-116(20), MCA (1985)), which in turn determined her entitlement to benefits. We find the contrary to be true.

Section 39-71-116(20), MCA (1985), provides:

“ ‘Wages’ means the average gross earnings received by the employee at the time of the injury for the usual hours of employment in a week, and overtime is not to be considered. Sick leave benefits accrued by employees of public corporations as defined by Subsection (16) of this section, are considered wages.”

If the intent of the legislature can be determined from the plain meaning of the words utilized in the statute, this Court will not go further and apply any other means of interpretation. Glaspey v. Workman (Mont. 1988), [230 Mont. 307,] 749 P.2d 1083, 45 St.Rep. 226; Murphy v. State of Montana (Mont. 1987), [229 Mont. 342,] 748 P.2d 907, 44 St.Rep. 2030; State v. Hubbard (1982), 200 Mont. 106, 649 P.2d 1331.

It is clear from the plain meaning of the words used by the legislature in Section 39-71-116(20), MCA (1985), that sick leave benefits are included in determining wages only when the claimant is an employee of a public corporation. Ms. Phelps was not an employee of a public corporation at the time of her injury. As such the Workers’ Compensation Court correctly excluded her sick leave benefits when determining her wages.

In Linton v. State Compensation Insurance Fund (Mont. 1988), [230 Mont. 122,] 749 P.2d 55, 45 St.Rep. 68, this Court engaged in an exhaustive examination of whether fringe benefits should be included as part of an employees wages for purposes of the Workers’ Compensation Act. In Linton, we held:

“[T]he term ‘wages’ under the workers’ compensation act does not include employer contributions to funds that provide health or life insurance, retirement, training, vacation and pension or disability payment.” (Emphasis added.)

Linton 749 P.2d at 59, 45 St.Rep. at 73.

We affirm the holding of the Workers’ Compensation Court in excluding the value of fringe benefits when determining an employee’s wages.

Ms. Phelps alleges that the Workers’ Compensation Court erred in refusing to grant a partial lump sum conversion of her future entitlement to permanent partial disability benefits. We affirm the holding of the Workers’ Compensation Court on the issue of lump sum conversion.

The Workers’ Compensation Court has general discretion to grant lump sum awards. Section 39-71-741, MCA. Ms. Phelps incurred her injury prior to the 1985 and 1987 amendments to Section 39-71-741, MCA. An injured worker’s rights vest at the time of injury and as such those amendments are of no import in this case. Buckman v. Montana Deaconess Hospital (Mont. 1986), [224 Mont. 318,] 730 P.2d 380, 43 St.Rep. 2216.

The relevant law for this case was stated in Willoughby v. General Accident Fire & Life (1980), 187 Mont. 253, 256, 609 P.2d 700, 701, wherein this Court held

“Where the best interests of the claimant are generally served by paying compensation in regular periodic installments, the conversion of benefits to a lump sum settlement has been recognized as the exception rather than the rule.” (Citations omitted.)

Claimant bears the burden of justifying departure from periodic payments. Legowik v. Montgomery Ward & Co. (1971), 157 Mont. 436, 486 P.2d 867. The Workers’ Compensation Court in its conclusions of law held that Ms. Phelps did not present sufficient evidence to the court to allow for a determination of whether a lump sum conversion would be in her best interests. Further, the Workers’ Compensation Court found Ms. Phelps’ lump sum requests deficient in several respects.

“First, it is not clear who owes the obligations submitted, the claimant or her husband. Secondly, it is not clear the date that such obligations were incurred and whether they were before or after the injury. Third, the evidence is not clear which obligations have been written off by the creditors. Finally, no statement of the necessity of payment is included to show why the proposed payments are necessary and would be in the best interest of the claimant.”

Ms. Phelps contends at the very least she is entitled to a lump sum conversion in the amount of $2,000 in order to pay for dental work and $874 worth of debts. Ms. Phelps’ request is based upon an estimate from her dentist that was not provided to the defendant within the deadline for exchange of exhibits as set by the' court. The Workers’ Compensation Court properly refused to consider these estimates as Ms. Phelps’ conduct deprived the defendant of the opportunity of verifying the estimates prior to trial. It is clear from the evidence in the record that the Workers’ Compensation Court had sufficient justification for denying plaintiff’s request for a lump sum conversion.

This Court will not interfere with the decision to award or deny a lump sum settlement absent an abuse of discretion on the part of the Workers’ Compensation Court. Johnson v. Gibson (Mont. 1987), [227 Mont. 464,] 740 P.2d 665, 44 St.Rep. 136; Byrd v. Ramsey Engineering (Mont. 1985), [217 Mont. 18,] 701 P.2d 1385, 42 St.Rep. 991; Willoughby v. General Accident, Fire & Life (1980), 187 Mont. 253, 609 P.2d 700. Accordingly, we affirm the decision of the Workers’ Compensation Court in denying Ms. Phelps’ request for a lump sum conversion.

Lastly, Ms. Phelps contends that under Section 39-71-612, MCA, she is entitled to an award of costs and attorney fees incurred in the lower court and this Court.

An award of attorney fees from the insurer under Section 39-71-612, MCA, is predicated on the plaintiff being successful in obtaining benefits greater than the amount previously paid or tendered by the insurer or employer. Ms. Phelps was unsuccessful in her attempt to obtain benefits greater than the amount paid or tendered by her employer. Therefore, we affirm the decision of the Workers’ Compensation Court that Ms. Phelps is not entitled to an award of costs and attorney fees.

The judgment of the Workers’ Compensation Court is affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES GULBRANDSON, HUNT and McDONOUGH concur.


author: MR. JUSTICE HUNT MR. CHIEF JUSTICE TURNAGE,

text:
    THE STATE OF MONTANA, Acting By and Through the DEPARTMENT OF HIGHWAYS OF THE STATE OF MONTANA, Plaintiffs and Respondents, v. THOMAS M. FEENAN and Robert G. Feenan as tenants in common, Jane Doe Feenan as wife of Thomas M. Feenan; Jane Roe Feenan as wife of Robert G. Feenan, Defendants and Appellants.
    No. 87-62.
    Submitted Oct. 27, 1987.
    Decided March 25, 1988.
    752 P.2d 182.

      McGarvey, Heberling, Sullivan & McGarvey, Allan M. McGarvey argued, Kalispell, for defendants and appellants.
    W.D. Hutchison argued, Dept, of Highways, Helena, for plaintiffs and respondents.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

This action arose from a condemnation of appellants’ property which adjoins U.S. Highway 40 which is now U.S. Highway 2 near Columbia Falls, Montana. The Feenans appeal from the judgment of the District Court, Eleventh Judicial District, Flathead County. Judgment was entered after a seven day trial in which the jury awarded appellants $16,500 for 2.04 acres of land as “damages for property taken.” The jury awarded Feenans nothing for “damages or depreciation in the market value of the remaining property.”

We reverse and remand for retrial.

The issue presented for our review in this appeal is whether the District Court properly instructed the jury as to the application of the common enemy doctrine to the State of Montana as condemnor.

The Feenans own property on both sides of U.S. Highway 2. In 1981, 2.04 acres of a 240 acre tract were condemned in order to expand the road from two to four lanes. The 240 acre tract was being used for agricultural purposes on the date of taking, but had been appraised as suitable for residential use with commercial potential. The Feenans claim that flooding caused by the construction of the new highway has rendered the remainder of their property which borders on the new highway unsuitable for commercial use. They wish to recover damages for these lands. Most facts in this case, as to the cause, effect and extent of flooding, are disputed by the parties.

The Feenan property is located approximately Vz mile west of Trumbull Creek where the creek crosses the highway. On the north side of the highway there was a barrow pit which bordered Feenan property. In May, 1979, Trumbull Creek flooded in a 50 year magnitude flood. The floodwaters exceeded the carrying capacity of the barrow pit, causing considerable flooding on the Feenan property north of the highway. South of the highway, the creek had been artificially channeled. The southern creek bed had become constricted with the growth of vegetation over the years. Each party furnished expert testimony by hydraulic engineers. The experts testified that the flow of water in Trumbull Creek south of the highway was and is insufficient to carry the estimated 50 year floodwaters either before or after construction of the new highway. The Feenan property south of the highway was not affected by the 1979 floodwaters.

At the time of the 1979 flood, the State cut through the old highway to the land south of the highway, diverting the floodwaters north of the highway to the land south of the highway. These cuts were later replaced by culverts which the Feenans allege substantially reduced the potential flooding of the Feenans’ property north of the highway, while still not affecting their southern land.

In constructing the new, expanded highway in 1984, new culverts were put in new locations under the road. Also one large culvert was replaced, rerouting an old culvert which bent at a right angle under the highway with a larger, straight one. The new culvert empties directly into the southern channel of Trumbull Creek, allegedly causing erosion to the creek’s western bank and increasing the danger of flooding on the Feenan property south of the highway. The barrow pit on the northern edge of the old highway was replaced by a shallow ditch, allegedly increasing the chances that future floodwaters will extend further north on the Feenans’ northern property. However, the State’s expert testified that the new culvert would adequately carry the 50 year floodwaters from the north side of the highway to the south side, eliminating flooding on the northern side.

Trumbull Creek has not flooded the property in question since the four lane highway was constructed, but the Feenans contend that the value of their commercially valuable land has depreciated due to construction of U.S. Highway 2 and the consequential future flooding of their property. The Feenans allege that they are entitled to damages for their property’s devaluation.

Appellants do not argue with the condemnation amount of $16,500 awarded to them by the jury. They contend that they are also entitled to compensatory damages for the depreciated value of their property caused by flooding which was exacerbated and altered by the construction of U.S. Highway 2. They argue that the doctrine of “common enemy” and “reasonable construction,” which are applicable to neighboring private landowners, cannot be used to limit liability of a state agency from its constitutional duty to pay just compensation for property taken or damaged in the exercise of its power of eminent domain. Article II, Section 29, 1972 Montana Constitution.

The common enemy doctrine provides that a landowner is not liable for vagrant surface waters which cross his land and go onto his neighbor’s land. That water is the common enemy of both landowners. Roop v. Anaconda (1972), 159 Mont. 28, 494 P.2d 922. In diverting such waters, the landowner is limited to reasonable care in avoiding damage to adjoining property. O’Hare v. Johnson (1944), 116 Mont. 140, 153 P.2d 888.

The land in question was appraised by appellants’ expert as worth $6,600 to $7,500 per acre before flooding. After taking, due to flooding restrictions, the appraiser estimated the land to be worth only $2,000 per acre.

Appellants specifically argue that two jury instructions offered, but not given by the court deprived them of presenting their contentions and possible jury argument on the instructions. See Tacke v. Vermeer Manufacturing Co. (Mont. 1986), [220 Mont. 1,] 713 P.2d 527, 43 St.Rep. 123.

Instruction D-25 was offered by the Feenans for the purpose of instructing the jury as to a landowner’s duty to their neighbors when constructing ditches or altering the flow of vagrant surface waters to alleviate flooding caused by highway reconstruction. D-25 read:

“An uphill landowner owes no duty to his downhill neighbor to prevent the encroachment of surface waters from his property onto his neighbor’s. However, a landowner who actively diverts waters must act reasonably in consideration of the foreseeability of injury to the neighbor’s property and the amount of injury thereto. The law does not countenance the principal that one tract of land may be reclaimed at the expense of the destruction of another without just compensation.”

The court read all but the last sentence of this instruction to the jury. Appellants contend that by removing the last sentence of this instruction, the court erroneously instructed the jury that any landowner, including a condemning agency, could take any reasonable measures to divert floodwaters without paying just compensation.

The court then refused to read the Feenans’ proposed instruction No. D-28, on the basis that D-25 covered the Feenans’ contentions relating to the flooding issue.

The Feenans’ proposed instruction No. D-28 read:

“You are instructed that if reconstruction by Plaintiff has caused a condition which has or will produce intermittent but inevitable recurring flooding, then Defendants should be justly compensated by said Plaintiffs, or Plaintiff for the depreciation if any, to the fair market value of Defendants’ property resulting therefrom.”

Appellants allege that due to these erroneous omissions in the instructions presented to the jury, the jury ignored the loss in fair market value of the Feenans’ property upon a finding that the State’s highway construction and divergence of the floodwater was reasonable. We agree with appellants’ argument.

Article II, Section 29 of the Montana Constitution states:

“Private property shall not be taken or damaged for public use without just compensation to the full extent of the loss having been first made to or paid into court for the owner . . . .”

This clause of our Constitution distinguishes land sales from condemnation proceedings. It distinguishes a sale between private landowners from a “taking” between a condemning agency and a private landowner.

The leading Montana case which comes closest to addressing the issue at hand is State Highway Commission v. Biastoch Meats, Inc. (1965), 145 Mont. 261, 400 P.2d 274. In Biastoch, the State condemned private property around a meat packing plant to build a highway. The resulting construction eliminated a drainage channel, completely blocking the natural flow of a creek. The new channel was diked causing a flood basin that inundated the packing plant. This Court held that the State acted unreasonably in this instance and the Biastocks were awarded compensation not only for the condemned land but also for the value of their business.

The State contends that language in Biastoch extends the application of the common enemy doctrine to condemning agencies. We disagree. The relevant language in Biastoch cites O’Hare v. Johnson (1945), 116 Mont. 410, 153 P.2d 888. O’Hare cites language which allows a landowner to change the flow of water on his property as long as it is not done with “malice or negligence.” Newton v. Weiler (1930), 87 Mont. 164, 286 P. 133. We do not see how malice or negligence is relevant in this context, but hold as accurate as a matter of law the premise that “[t]he law does not countenance the principle that one tract of land may be reclaimed at the expense of the destruction of another without compensation” (Cite omitted.) O’Hare, 116 Mont. at 418, 153 P.2d at 891. Although the Feenans’ land is not being destroyed by the construction of the highway, there is evidence that periodic flooding reduced its value. The State, as a condemning agency, is held to a standard of paying just compensation for land when the diversion of vagrant surface waters causes damage to private lands.

Jury instructions given by the District Court did not adequately state the applicable law in this case. Instruction No. D-25 was so confusing that it should not have been given. Instruction No. D-28 should have been given. We hold that failure to give No. D-28 was reversible error.

Reversed and remanded for a new trial.

MR. JUSTICES HARRISON, WEBER, SHEEHY and McDON-OUGH concur.

MR. CHIEF JUSTICE TURNAGE,

dissenting:

Today the majority chooses to ignore the record, relevant Montana precedent and a jury’s finding following a seven-day trial. In doing so, the majority reverses the jury’s finding based on the District Court’s handling of two jury instructions. The objectionable instructions merely serve the majority as a conduit to rule on this issue as it pleases. Accordingly, I dissent.

A review of the record reveals that, sometime prior to 1979, Trumbull Creek was relocated from its natural banks to its present location. Trumbull Creek’s present man-made channel is not sufficient to contain the Creek during a “50 year flood.” Such a flood occurred in 1979. Trumbull Creek’s carrying capacity is further hampered by excessive vegetation growth along its banks. Experts for both sides agree that Trumbull Creek’s carrying capacity is limited to 90 to 120 cfs. In 1979, the spring runoff, estimated at 330 cfs., was much greater than Trumbull Creek’s carrying capacity, causing the creek to flood.

Unfortunately for appellant State of Montana, Highway 40 runs through the above-mentioned flood plain. The State responded to the 1979 flood, during highway reconstruction in 1984, by placing four culverts under Highway 40 and by replacing Trumbull Creek’s passage under the highway with a larger culvert. The State’s action caused Trumbull Creek and its flood waters to pass under the roadway. At trial the State argued that its action was not the cause of the flooding; rather, it was the proper and reasonable action in response to the flooding. The jury agreed that the State acted reasonably. See O’Hare v. Johnson (1944), 116 Mont. 410, 419, 153 P.2d 888, 891.

Appellants argue that the “common enemy doctrine” and “reasonable construction,” which are applicable to neighboring private landowners, cannot be used to limit liability of the state from its constitutional duty to pay just compensation for property taken or damaged through eminent domain. The majority, without so stating, apparently agrees with appellants’ contention.

The majority’s position should fail for the following reason. In its opinion the majority states: “In diverting such waters, the landowner is limited to reasonable care in avoiding damage to adjoining property. O’Hare v. Johnson (1944), 116 Mont. 410, 153 P.2d 888.” The majority then distinguishes State Highway Commission v. Biastoch Meats, Inc. (1965), 145 Mont. 261, 270, 400 P.2d 274, 278-279, which holds that the common enemy doctrine allows a condemning agency to change the flow of water on his property as long as it is not done with “malice or negligence.” The majority conveniently ignores that Biastoch is based on O’Hare.

Next, the majority holds the District Court erred when it amended jury instruction D — 25 to the point that D — 25 “was so confusing that it should not have been given.”

Instruction D — 25, as amended, provides:

“An uphill landowner owes no duty to his downhill neighbor to prevent the encroachment of surface waters from the property onto his neighbor’s. However, a landowner who actively diverts waters must act reasonably in consideration of the foreseeability of injury to the neighbor’s property and the amount of injury thereto.”

Appellants did not object when the District Court gave amended Instruction D — 25. After reading D — 25, it is my opinion that the majority is overreaching to find reversible error.

The majority also objects to the District Court’s refusal to give jury instruction D — 28. Instruction D — 28, offered by appellants without citation of authority, provides:

“You are instructed that if reconstruction by Plaintiff has caused a condition which has or will produce intermittent but inevitable recurring flooding, then Defendants should be justly compensated by said Plaintiffs, or Plaintiff for the depreciation if any, to the fair market value of Defendants’ property resulting therefrom.”

Instruction D — 28 was more properly stated by Instructions D — 3 and D-4, which provide:

“[Instruction D — 3.] The Constitution of the State of Montana provides that private property shall not be taken or damaged for public use without just compensation to the full extent of the loss being paid to the owners.
“[Instruction D — 4.] You are instructed that you should award the defendant as just compensation:
“1. the correct fair market value of the property actually taken; and,
“2. if the property actually taken is part of a larger parcel, the depreciation in current fair market value, if any, which will accrue to the portion not taken by reason of its severance from the portion taken by the construction of the highway in the manner proposed by plaintiff.”

Instruction D-3 instructed the jury that respondent is liable for private property taken without just compensation. Instruction D-4 instructed the jury that just compensation includes fair market value and land value depreciation. Instructions D-3 and D-4 properly instructed the jury based on the Biastoch-O’Hare rule and Article II, Section 29, 1972 Mont. Const.

In summary, it is my opinion that the majority has sought to ignore Montana precedent that the common enemy doctrine applies to condemning agencies. The issue at hand is now being sent back to the District Court to speculate what damages appellants might incur when the next “50 year flood” brings its runoff.

I must disagree with the majority’s decision to ignore the record, relevant Montana precedent and the jury’s finding.

MR. JUSTICE GULBRANDSON concurs in the foregoing dissent of MR. CHIEF JUSTICE TURNAGE.