No



                                                       No. 96-592 and 96-727



                             IN THE SUPREME COURT OF THE STATE OF MONTANA



                                                             1998 MT 289



                                                     STATE OF MONTANA,

                                                     Plaintiff and Respondent,



                                                                    v.

                                                 DANIEL MARTIN JOHNSON,

                                                     Defendant and Appellant.


                               APPEAL FROM: District Court of the Third Judicial District,

                                                 In and for the County of Powell,

                                       The Honorable Ted L. Mizner, Judge presiding.


                                                     COUNSEL OF RECORD:

                                                            For Appellant:

                                            Edmund F. Sheehy, Jr., Helena, Montana


                                                           For Respondent:

Joseph P. Mazurek, Attorney General, John Paulson, Assistant Attorney General, Helena, Montana; Christopher
 G. Miller, Powell County Attorney, Deer Lodge, Montana, John P. Connor, Jr., Special Deputy Powell County
                                         Attorney, Helena, Montana

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                                                         Heard: June 25, 1998

                                                      Submitted: June 30, 1998

                                                    Decided: November 24, 1998


                                                                   Filed:

                                      __________________________________________

                                                                   Clerk

Justice James C. Nelson delivered the Opinion of the Court.

¶1. Daniel Martin Johnson (Johnson) was convicted by a jury in the District Court
for the Third Judicial District, Powell County, of deliberate homicide and sentenced
to death. Johnson appeals his conviction and, pursuant to § 46-18-308, MCA, his
appeal is consolidated with this Court's automatic review of his death sentence. We
affirm.

¶2. Johnson raises the following issues in his appeal of his conviction on the charge of
deliberate homicide:

¶3. 1. Whether the District Court properly instructed the jury on "flight" and
"concealment."

¶4. 2. Whether there was sufficient evidence to support Johnson's conviction of
deliberate homicide.

¶5. We address the following issues in our review of the death sentence:

¶6. 3. Whether the sentence of death was imposed under the influence of passion,
prejudice or any other arbitrary factors.

¶7. 4. Whether the evidence supports the District Court's findings of the nonexistence
of mitigating circumstances as enumerated in § 46-18-304, MCA.


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¶8. 5. Whether the sentence of death is excessive or disproportionate to the penalty
imposed in similar cases.

                                        Factual and Procedural Background

¶9. On September 10, 1995, Andrew Joseph Burgess (Burgess), an inmate at
Montana State Prison (MSP), was severely beaten in a bathroom stall in the high-
security or "high-side" recreation yard at MSP. He died two days later.

¶10. The high-side recreation yard contains a softball field, a basketball court and
horseshoe pits surrounded by a jogging track. Next to the basketball court is a small
building used to store recreation equipment. On one end of that building are three
small stall-like bathrooms each containing a single stainless steel toilet. These
bathrooms face toward the softball field and their doors are divided in half so that
the top half of each stall may be secured open. This allows the correctional officers to
observe inside the stalls and still afford the inmates some degree of privacy. Prior to
allowing the inmates into the yard, officers open the doors to the bathrooms.

¶11. On the day Burgess was beaten, inmates from two of the close-security housing
units, Close 1 and Close 3, entered the recreation yard at about 5 p.m. for an exercise
period. Correctional Officers Scott McNeil and William Hogart, along with
Recreational Officer Ray Hoffenbacker, were responsible for monitoring the
activities of the inmates during that exercise period. Officer McNeil opened the
bathrooms and, once the inmates were in the yard and the recreation equipment was
distributed, Officers McNeil, Hogart and Hoffenbacker walked the track in a
clockwise direction.

¶12. The officers later testified that as they came around the track near the back stop
of the baseball field, they noticed a disturbance inside one of the bathroom stalls
across the field. Officer McNeil testified that, through the open top door of the
middle stall, he could see an inmate moving up and down. Officer Hogart testified
that he saw the inmate bending over. Officer Hoffenbacker testified that the inmate
had his back toward the officers and that the inmate appeared to be swinging at
something. Officer Hoffenbacker also testified that he could hear a pounding noise
and he assumed that the inmate was beating on the toilet.

¶13. The three officers left the track and began walking toward the bathrooms. As


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they approached, the inmate inside the middle stall stopped what he was doing, put
on a coat and dark glasses, pulled his cap down, exited the stall, pulled the door
closed, and walked quickly away. All three officers testified that they recognized that
the inmate was Johnson.

¶14. Officer Hoffenbacker followed Johnson around the building while Officers
McNeil and Hogart went into the stall to investigate. There they discovered an
inmate lying on the floor in a pool of blood, his head and face beaten beyond
recognition. Near the inmate's body was a bloody horseshoe. Officer Hogart called
the prison infirmary on his radio and remained at the scene with the injured man
while Officer McNeil rushed to assist Officer Hoffenbacker.

¶15. When Officer Hoffenbacker heard Officer Hogart say that there was a man
down, he ordered Johnson to stop. Johnson, instead of doing as the officer ordered,
began to run toward Close 1, his housing unit. Officer Albert Cox was the floor
officer in control of the movement of inmates between Close 1 and the recreation
yard that afternoon. He caught Johnson as Johnson was entering the building and
held him until Officers Hoffenbacker and McNeil, along with several other officers,
arrived. Johnson struggled with the officers as they attempted to place him in
handcuffs. Officers McNeil and Cox later testified that they noticed blood on
Johnson's hands and clothing.

¶16. After Johnson was apprehended, the rest of the inmates in the recreation yard
were ordered to return to their housing units. Officers conducted a pat-down search
of each inmate as they entered the units, but they did not find any blood on any other
inmates. In addition, officers searched the cells in each unit, but found nothing. A
count of the inmates in the two units led officers to identify the injured inmate as
Burgess.

¶17. Eunice Cole, a staff nurse at the prison infirmary, and Kenneth Linsey, an
infirmary aide, responded to the call for assistance in the yard. They found Burgess
bleeding and slumped over in a pool of blood. His face was distorted and swollen and
his head was soft and mushy to the touch. Nurse Cole wrapped Burgess's head in
bandages and ordered that he be transported to the infirmary. The infirmary staff
was unable to control the bleeding hence Burgess was taken to St. James Community
Hospital in Butte. Burgess's head wounds were treated and closed, but his brain had
been severely injured. The neurosurgeon who operated on Burgess found depressed


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skull fracturing above his right eyebrow, over his right temporal area, and on the
right back side of his head. The bruising and swelling resulting from the blunt force
injuries caused the blood flow into the brain to cease and the doctors determined that
Burgess was brain-dead. With the consent of his family, Burgess eventually was
removed from a ventilator whereupon his heart stopped beating. He died on
September 12, 1995, two days after the assault.

¶18. An autopsy conducted by the state medical examiner disclosed that Burgess had
sustained 26 wounds or lacerations, mostly to the right side of his head. These
lacerations required nearly 200 surgical staples or sutures to close. The medical
examiner concluded that Burgess had died as a result of multiple blunt-force injuries
to the head.

¶19. Tom Blaz and Mike Micu, investigators for the Montana Department of
Corrections, were called to the prison to investigate the assault. They secured the
middle bathroom so that it could be processed by personnel from the state crime lab.
They also looked in the other two bathroom stalls, but did not find any sign of blood
on the floor or any other evidence. They searched the recreation yard and found
nothing irregular.

¶20. Blaz and Micu interviewed Johnson after advising him of his rights. During that
interview, Blaz and Micu noticed that Johnson had blood stains on his clothing, his
hands, his watch and his glasses. When they called Johnson's attention to the blood
on his hands, he tried to remove it by rubbing his hands together. He also tried to
rub the blood off of his watch. Blaz and Micu secured Johnson's clothing, watch and
glasses as evidence.

¶21. During that interview and again during his testimony at trial, Johnson claimed
that he had not killed Burgess and that he had gotten blood on himself when he had
attempted to assist Burgess. Johnson explained that earlier that day, another inmate,
Pat Tracy, had told Johnson that he had received a letter from Johnson's ex-wife and
that Tracy agreed to bring the letter to the yard that afternoon. Johnson stated that
when yard was called out, he took a lap on the track and then sat at the picnic table
facing the baseball field to wait for Tracy. When Tracy joined him at the picnic table,
Johnson read the letter and the two discussed it. Johnson claimed that while they
were engaged in that conversation, another inmate, Bill Ries, approached them and
said that Johnson's "kid was down." "Kid" in prison parlance refers to a weaker


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inmate who has an emotional or other relationship with a stronger inmate and
receives protection in return for favors. Johnson acknowledged that Burgess had
been his "kid" and that they had had a sexual relationship while they were cell mates
in 1991.

¶22. Johnson testified that after he heard that his "kid" was down, he left the picnic
table and went to the middle restroom stall where he found a man whom he could not
identify lying in a pool of blood. Johnson claimed that the man grabbed at his leg and
that when he tried to help the man up, the man fell back down into the pool of blood.
Johnson contended that that is how he got the blood smears and spatters on his
pants. Johnson also testified that when he looked up and saw the officers coming
towards the bathroom, he panicked. He claimed that he left the scene and headed for
Close 1 because he wanted to talk to Officer Cox whom he trusted.

¶23. On September 21, 1995, the State charged Johnson with the offense of deliberate
homicide in violation of § 45-5-102(1)(a), MCA. Johnson moved for a change of
venire due to adverse publicity in a local newspaper. The District Court granted the
motion and the case was tried in Powell County by a jury selected from Lewis and
Clark County. Trial began on January 26, 1996, and on February 1, 1996, the jury
returned a verdict of guilty on the charge of deliberate homicide.

¶24. On July 9, 1996, the District Court held a hearing to determine the existence or
nonexistence of aggravating and mitigating circumstances for the purpose of
determining the sentence to be imposed. The State presented evidence that two of the
statutory subsections on aggravating circumstances applied in this case:

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

(2) The offense was deliberate homicide and was committed by a defendant who had been
previously convicted of another deliberate homicide.

Section 46-18-303, MCA.

¶25. Johnson conceded that these two aggravating circumstances existed, however,
he contended that a mitigating circumstance sufficient to call for leniency existed as
well. Two MSP inmates testified at the hearing that Johnson had not been involved in


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beating Burgess. In addition, Johnson's attorney produced, over Johnson's objection,
a letter written by Johnson wherein he claimed that three other inmates had beaten
Burgess over a drug deal. Johnson's attorney also introduced Johnson's deposition,
taken between the time of his trial and the hearing, in which he again contended that
three other inmates had beaten Burgess and that he had only acted as a lookout.
Thus, Johnson argued that § 46-18-304(1)(f), MCA, applied in mitigation of his
sentence. Section 46-18-304(1)(f), MCA, provides:

(1) Mitigating circumstances are any of the following:

...

(f) The defendant was an accomplice in an offense committed by another person, and the
defendant's participation was relatively minor.

¶26. On September 26, 1996, the District Court entered its Findings of Fact,
Conclusions of Law, Judgment and Sentence, wherein the court found the existence
of two statutory aggravating circumstances and no mitigating circumstances
sufficient to call for leniency. The court sentenced Johnson to death and set an
execution date of November 20, 1996. Johnson appealed and the sentence was stayed
pending resolution of his appeal and automatic review.

                                                                Issue 1.

¶27. Whether the District Court properly instructed the jury on "flight" and
"concealment."

¶28. The standard of review of jury instructions in criminal cases is whether the
instructions, as a whole, fully and fairly instruct the jury on the law applicable to the
case. State v. Weaver, 1998 MT 167, ¶ 28, 964 P.2d 713, ¶ 28, 55 St.Rep. 668, ¶ 28
(citing State v. Patton (1996), 280 Mont. 278, 286, 930 P.2d 635, 639). See also State v.
Brandon (1994), 264 Mont. 231, 237, 870 P.2d 734, 737; State v. Lundblade (1981), 191
Mont. 526, 529-30, 625 P.2d 545, 548. Moreover, we recognize that a district court
has broad discretion when it instructs a jury. Weaver, ¶ 28. See also State v. Ross
(1995), 269 Mont. 347, 358, 889 P.2d 161, 167.

¶29. At trial, the State presented evidence and testimony that, when Johnson realized


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the officers had seen him, he hurriedly left the bathroom stall and, when one of the
officers ordered him to stop, Johnson instead ran toward his housing unit. Thus, the
State proposed the following jury instruction on "flight" which the District Court
gave over Johnson's objection:

If you are satisfied that the crime charged in the information has been committed by
someone, then you may take into consideration any testimony showing, or tending to
show, flight by the defendant. This testimony may be considered by the jury as a
circumstance tending to prove a consciousness of guilt, but is not sufficient of itself to
prove guilt. The weight to be given such circumstance and significance if any, to be
attached to it, are matters for the jury to determine.

¶30. The State also presented evidence and testimony at trial that, as Johnson left the
bathroom stall, he put on his coat, and his sunglasses and pulled his hat down. In
addition, when officers pointed out to Johnson that he had blood on his hands, he
attempted to rub it off. The State also presented evidence and testimony that a blood
stain on Johnson's pants had been diluted with water as though he had tried to wash
it out. Thus, the State proposed the following jury instruction on "concealment"
which the District Court also gave over Johnson's objection:

If you are satisfied that the crime charged in the information has been committed by
someone, then you may take into consideration any testimony showing, or tending to
show, concealment by the defendant. This testimony may be considered by the jury as a
circumstance tending to prove a consciousness of guilt, but is not sufficient of itself to
prove guilt. The weight to be given such circumstance and significance if any, to be
attached to it, are matters for the jury to determine.

¶31. Johnson argues on appeal that the District Court erred in giving these
instructions because there can be no "flight" in a prison environment and because
rubbing blood off of his hands while he was in custody cannot be considered
"concealment." Moreover, Johnson contends that the State did not explain in its
closing argument how the two instructions at issue here relate to the evidence
presented. He argues that these instructions are an improper comment on the
evidence and that they prejudicially affected his substantial right to a fair trial
because a reasonable juror could have interpreted them as requiring the jury to find
Johnson guilty for running and for pulling his hat down and rubbing his hands.



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¶32. We recently examined identical instructions in Patton, 280 Mont. at 289, 930
P.2d at 641, wherein we noted that the language of these instructions was taken
verbatim from the 1990 Montana Criminal Jury Instructions published by the State
Bar of Montana and based upon the authority of State v. Walker (1966), 148 Mont
216, 419 P.2d 300. We approved the language use and constitutionality of these
instructions in Patton and we noted that this Court has repeatedly upheld the use of
jury instructions regarding a defendant's flight. Patton, 280 Mont. at 289, 930 P.2d at
641. See also State v. Byers (1993), 261 Mont. 17, 861 P.2d 860, overruled on other
grounds by State v. Egelhoff (1995), 272 Mont. 114, 900 P.2d 260 and State v.
Rothacher (1995), 272 Mont. 303, 901 P.2d 82; State v Campbell (1990), 241 Mont.
323, 787 P.2d 329; State v. Kills on Top (1990), 241 Mont. 378, 787 P.2d 336, cert.
denied, 516 U.S. 1177, 116 S.Ct. 1273, 134 L.Ed.2d 220 (1996); State v. Burk (1988),
234 Mont. 119, 761 P.2d 825; State v. Charlo (1987), 226 Mont. 213, 735 P.2d 278.
Additionally, we held in Byers that this instruction on flight is not an improper
comment by the court on the evidence. Byers, 261 Mont. at 45, 861 P.2d at 877.

¶33. We also noted in Patton that although most of the cases cited dealt with flight,
"it is well established that evidence of concealment is 'treated in the same manner as
flight.'" Patton, 280 Mont. at 289 , 930 P.2d at 641 (citing State v. Shaw (1982), 199
Mont. 248, 648 P.2d 287; State v. Armstrong (1980), 189 Mont. 407, 616 P.2d 341;
State v. Adair (Ariz. 1970), 469 P.2d 823). Furthermore, we upheld the use of an
instruction on concealment in another homicide case (which coincidentally involved
Johnson) wherein evidence was destroyed. State v. Dannels (1987), 226 Mont. 80, 734
P.2d 188.

¶34. Contrary to Johnson's argument that a reasonable juror could interpret the
instructions to require them to find Johnson guilty if they found flight or
concealment, the instructions are not mandatory. Patton, 280 Mont. at 290, 930 P.2d
at 642. The instructions clearly state that the jury may take into consideration
testimony regarding flight or concealment. As we stated in Patton:

[The instructions on flight and concealment] merely instructed the jury to determine the
weight and significance, if any, of the evidence of Patton's flight and concealment; and
they plainly instructed that evidence of his flight and concealment "is not sufficient of
itself to prove guilt."

Patton, 280 Mont. at 290, 930 P.2d at 642.


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¶35. Moreover, we stated in Patton that a jury instruction "may be given when it is
relevant to evidence or issues in a case, and when it is supported either by some
evidence or some logical inference from other evidence presented at trial." Patton,
280 Mont at 289, 930 P.2d at 641-42 (citing Charlo, 226 Mont. at 218-19, 735 P.2d at
281; State v. Kirkaldie (1978), 179 Mont. 283, 292, 587 P.2d 1298, 1304). Here,
Johnson's flight and concealment were relevant to the issue of the extent of Johnson's
knowledge of and involvement in Burgess's homicide. Additionally, the evidence was
sufficient to support both instructions because Johnson put on his coat, and his
sunglasses, pulled his hat down, ran from the scene after being ordered to stop, and
then attempted to rub blood off of his hands.

¶36. Johnson argues that the instruction on "flight" was error because there can be
no "flight" in a prison environment. The evidence introduced at trial is
uncontroverted that Johnson ran from the crime scene. The fact that he could not
have gone far because he was in prison does not alter the fact that he fled.

The act of running away which constitutes a flight in law and thus affords a basis for an
inference of consciousness of guilt . . . requires neither a physical act of running nor a far-
away haven.

Walker, 148 Mont. at 226, 419 P.2d at 306 (citation omitted). As the State correctly points
out, even in the limited environment of a prison, a defendant may fly to wherever he
thinks is safe to dispose of evidence or avoid detection. Only some departure from a crime
scene is necessary to support giving an instruction on "flight".

¶37. Johnson also argues that the act of rubbing his hands cannot constitute
"concealment" under the dictionary definition of that term. He cites Webster's
Dictionary wherein concealment is defined as: (1) to prevent disclosure or recognition
of; and (2) to place out of sight. Contrary to Johnson's assertions, the conduct of
rubbing his hands fits squarely within both of these definitions.

¶38. Accordingly, we hold that the District Court did not abuse its discretion when it
instructed the jury on "flight" and "concealment."

                                                                Issue 2.

¶39. Whether there was sufficient evidence to support Johnson's conviction of

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deliberate homicide.

¶40. At the close of the State's case in chief, Johnson moved for a directed verdict
asserting that the State failed to present sufficient evidence by which the jury could
find that Johnson purposely and knowingly caused Burgess's death. The District
Court denied Johnson's motion and the jury subsequently found Johnson guilty of
deliberate homicide.

¶41. We review the sufficiency of the evidence to sustain a guilty verdict in a criminal
case to determine whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of
the offense beyond a reasonable doubt. State v. Sattler, 1998 MT 57, ¶ 56, 956 P.2d 54,
¶ 56, 55 St.Rep. 230, ¶ 56 (citing State v. Richards (1995), 274 Mont 180, 184, 906 P.2d
222, 224). "It is within the province of the finder of fact to weigh the evidence
presented and determine the credibility of the witness; in the event of conflicting
evidence on factual issues, the trier of fact determines which will prevail." Sattler, ¶
55 (citing State v. Flack (1993), 260 Mont. 181, 189, 860 P.2d 89, 94). "We review the
jury's verdict only to determine whether it is supported by sufficient evidence, not to
determine whether there was evidence to support a different verdict." Sattler, ¶ 60.

¶42. Johnson argues that the State failed to establish, with sufficient evidence, that he
was the person who beat Burgess and caused his death. He maintains that it was not
proven that the crime could have occurred within the time frame suggested by some
of the evidence or that the blood spatter on his clothing could not have happened
when, as he testified, he attempted to help Burgess get up. In addition, Johnson
points out that no one saw either Burgess or Johnson enter the restroom.

¶43. Granted the evidence against Johnson was circumstantial, nevertheless, it was
strong and, while Johnson has different views of the evidence and attempts to explain
his view, all of this was considered by the jury and rejected. Circumstantial evidence
alone is sufficient to obtain a conviction. State v. Lancione, 1998 MT 84, ¶ 37, 956
P.2d 1358, ¶ 37, 55 St.Rep. 344, ¶ 37 (citing State v. Buckingham (1989), 240 Mont.
252, 260, 783 P.2d 1331, 1337). "Circumstantial evidence must only be of such a
'quality and quantity as to legally justify a jury in determining guilt beyond a
reasonable doubt,' and all the facts and circumstances must be considered
collectively." Lancione, ¶ 37 (quoting State v. Weaver (1981), 195 Mont. 481, 495, 637
P.2d 23, 31).


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¶44. The evidence against Johnson included the testimony of another MSP inmate
who recounted that, while he was playing horseshoes with three other inmates, he
saw Johnson walk over to the center horseshoe pit, pick up a horseshoe, stuff it in his
pants, and then walk toward the basketball courts. This inmate testified that he did
not see what Johnson did with the horseshoe, but five or ten minutes after Johnson
left, the siren went off indicating that yard was being called in.

¶45. In addition, three correctional officers testified that they saw Johnson creating a
disturbance in the same bathroom stall where Burgess was found. All three of these
officers testified that they saw Johnson moving up and down and bending over. One
officer testified that he saw Johnson making swinging motions and heard something
being struck. Furthermore, when Johnson saw the officers approach, he tried to
disguise his identity and flee the scene.

¶46. Finally, Julie Long, a forensic serologist with the State Crime Lab, testified that
the blood on Johnson's clothing and personal items was consistent with Burgess's
blood. She

also testified that the blood spatters on Johnson's pants were consistent with being in close
proximity to a bloody object being struck with medium force and close to the ground.
None of the other inmates in the recreation yard that afternoon had any blood on their
clothing or showed any evidence of involvement in the homicide.

¶47. Johnson also argues that the State failed to account for certain evidence found
at the crime scene such as a bloody footprint that was not matched to Johnson and an
envelope with a fingerprint which did not match either Johnson or Burgess. The
State counters that it is not required to account for everything found at a crime
scene. While a criminal defendant has a constitutional right to obtain exculpatory
evidence, police officers are not required to take initiative or even assist the
defendant with procuring evidence on his own behalf. State v. Belgarde, 1998 MT
152, ¶ 16, 962 P.2d 571, ¶ 16, 55 St.Rep. 590, ¶ 16 (citing State v. Sadowski (1991), 247
Mont. 63, 79, 805 P.2d 537, 546). After Burgess was discovered, numerous
correctional officers and infirmary personnel were in and out of that bathroom stall,
anyone of whom could have made that footprint or dropped the envelope.

¶48. It was the jury's function to weigh the evidence presented and to judge the
credibility of the witnesses and we conclude that, on this record, the jury could have

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found the essential elements of the crime beyond a reasonable doubt. Accordingly, we
hold that there was sufficient evidence to support Johnson's conviction on the charge
of deliberate homicide and that the District Court did not err in denying Johnson's
motion for a directed verdict.

                                                                 Issue 3

¶49. Whether the sentence of death was imposed under the influence of passion,
prejudice or any other arbitrary factors.

¶50. Section 46-18-307, MCA, mandates that we automatically review every death
sentence imposed under Montana law. In doing so we must determine "whether the
sentence of death was imposed under the influence of passion, prejudice, or any other
arbitrary factor." Section 46-18-310(1)(a), MCA. This review acts as a check against
the random or arbitrary imposition of the death penalty. State v. Langford (1991),
248 Mont. 420, 436, 813 P.2d 936, 948, cert. denied, 118 S.Ct. 908, 139 L.Ed.2d 923
(1998) (citing Gregg v. Georgia (1976), 428 U.S. 153, 206, 96 S.Ct. 2909, 2940, 49 L.
Ed.2d 859).

¶51. Johnson does not suggest that the judge in this case was improperly influenced
by any inflammatory or inaccurate media coverage or that the judge's comments at
any time during the proceedings reflect any improper or arbitrary influence. Nor
does Johnson suggest that the fear of community objection affected the judge's
sentencing decision. Rather, Johnson argues that the death sentence in this case was
imposed under the influence of passion, prejudice, and arbitrary factors because the
District Court predicated its sentence upon Montana's correctional policy as set forth
in § 46-18-101, MCA, and that that policy does not expressly provide for death as a
punishment for any crime. Johnson's argument focuses upon the District Court's
Finding of Fact No. 8, which states:

The Court has further considered the Correctional Policy of the State in sentencing
offenders as set forth in Section 46-18-101, MCA. In that regard, the Court finds as
follows:

a. This offense was a brutal, senseless murder committed with a weapon, a horseshoe,
while the Defendant was already incarcerated in the prison on a prior homicide conviction.



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b. The Defendant has an extensive criminal history which includes two armed robbery
convictions. The Defendant fired a weapon at a store clerk during the commission of the
second robbery. Defendant has also been found to be a persistent felony offender. After
being placed on parole for only six months on the second armed robbery conviction, the
Defendant committed his first deliberate homicide.

c. Although the Defendant's institutional record was good for approximately 1½ years
prior to this homicide conviction, Defendant's overall record shows a pattern of disruptive,
defiant and assaultive behavior which mirrors most of Defendant's young and adult life
whether in or out of institutions.

d Defendant's prospects of rehabilitation at his current age of 41 years seem virtually
nonexistent.

¶52. While Johnson is correct in asserting that § 46-18-101, MCA, does not expressly
discuss death as a punishment for criminal conduct, this statute also does not discuss
most of the sentencing options that are allowed under Montana Law. See § 46-18-
201, MCA. Section 46-18-101, MCA, is a general declaration of Montana's
correctional policy by the Montana Legislature. It is based upon Article II, Section
28 of the Montana Constitution which provides, in part: "Laws for the punishment
of crime shall be founded on the principles of prevention and reformation." This
Court has already determined that Montana's death penalty statutes are not
inconsistent with, or violative of, this provision of the Montana Constitution.
Langford, 248 Mont. at 441, 813 P.2d at 951-52.

¶53. As the State points out, the District Court's Finding of Fact No. 8 reflects its
consideration of the general principles in § 46-18-101(3), MCA, that a criminal
defendant's sentence must be based primarily on the crime committed, the prospects
of rehabilitation, the circumstances under which the crime was committed, and the
criminal history of the offender. The District Court found that all of these factors
weighed in favor of the imposition of a severe punishment in Johnson's case rather
than leniency and, contrary to Johnson's suggestion, the court's reference to these
policy guidelines does not indicate that the death sentence was imposed arbitrarily or
with passion and prejudice. Rather, the court's analysis shows only that it carefully
and dispassionately considered all of the evidence before it concluded that the death
penalty was appropriate.



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¶54. Johnson further argues that the District Court engaged in speculation when it
found that if the death penalty is not imposed, Johnson will almost certainly kill
again. Johnson contends that the District Court ignored a psychological evaluation of
Johnson wherein Dr. William Stratford came to a contrary conclusion. While this
argument does not appear to be connected to any claim of passion, prejudice, or
other arbitrary factors, nevertheless, the court's finding is supported by the evidence
as Johnson has a long history of assaultive and predatory behavior both in and out of
prison. Furthermore, the District Court, rather than ignoring Dr. Stratford's report,
expressly mentioned that report in finding that simple incarceration would not be
sufficient to control Johnson's violent behaviors.

¶55. Accordingly, based upon our review of the record, we hold that Johnson's
sentence of death was not imposed under the influence of passion, prejudice or any
other arbitrary factor.

                                                                Issue 4.

¶56. Whether the evidence supports the District Court's findings of the nonexistence of
mitigating circumstances as enumerated in § 46-18-304, MCA.

¶57. The District Court determined that two aggravating circumstances existed in
this case in that the offense was deliberate homicide and was (1) committed by a
person serving a sentence of imprisonment in the state prison, § 46-18-303(1), MCA;
and (2) committed by a defendant who had been previously convicted of another
deliberate homicide, § 46-18-303(2), MCA. Johnson does not dispute either of these
findings. Johnson does, however, dispute the District Court's conclusion that there
are no mitigating circumstances sufficiently substantial to call for leniency as
contemplated by § 46-18-305, MCA.

¶58. At the aggravation and mitigation hearing, Johnson offered a different account
of his involvement in Burgess's death than what he had testified to at his trial. In a
letter written by Johnson to his attorney and in a deposition taken of Johnson after
his trial, Johnson stated that about three days before the incident, he learned that
another inmate was planning to beat up Burgess over money Burgess owed that
inmate for drugs. He also stated that on the day Burgess was killed, he saw Burgess
enter the bathroom stall with two other inmates. After one of the inmates left the
stall, Johnson went to investigate and saw the remaining inmate striking Burgess


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with the horseshoe. Johnson claimed that Burgess was hit twice while Johnson was in
the stall and that is how he got the blood spatters on his pants. Johnson stated that he
ordered the assailant to leave and that he was attempting to help Burgess when he
saw the guards approaching.

¶59. Johnson also offered on his own behalf, the testimony of inmate Timothy
Braatan who claimed to have witnessed Burgess's beating. Braatan testified that, on
the day Burgess was killed, he had heard there was a drug deal going down at the
bathrooms. When Braatan went to the bathrooms to possibly buy some drugs, he saw
an inmate striking another inmate who was lying on the bathroom floor. Braatan
testified that Johnson was not the assailant and was not even in the bathroom stall at
the time.

¶60. Johnson argued that this new version of his involvement in Burgess's death
brought him within the scope § 46-18-304(1)(f), MCA, which provides for a
mitigating circumstance where a defendant was an accomplice in an offense
committed by another and the defendant's participation was relatively minor. The
District Court, however, noted the considerable inconsistency between Johnson's new
story and the blood evidence, the other physical evidence, and the eyewitness
testimony of the three correctional officers. The court also noted that Johnson's
witnesses were not consistent with Johnson's version of the facts. The court
concurred in the jury's verdict and rejected the evidence offered by Johnson at the
sentencing hearing. Hence, the court determined that § 45-18-304(1)(f), MCA, was
not applicable.

¶61. Section 46-18-310(1)(b), MCA, requires this Court, on automatic review of a
death sentence, to determine "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." Our role under this subsection of the
statute is not to reweigh the aggravating and mitigating circumstances, but to
conduct an independent review of the trial court record to determine whether the
evidence supports the sentencing judge's findings. State v. Smith (1996), 280 Mont.
158, 170, 931 P.2d 1272, 1279, cert. denied, 118 S.Ct. 410, 139 L.Ed.2d 314 (1997).

¶62. Johnson claimed that he was present in the bathroom for only two blows to
Burgess's head, however, the blood evidence presented at trial showed that Johnson
had a substantial amount of blood on his clothing, particularly his pants. In addition,


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there was no blood found on any other inmate, in particular the inmate that Johnson
claimed had actually killed Burgess. Johnson also claimed that immediately after the
attack on Burgess, the assailant went into the adjacent bathroom stall to clean up,
however, no blood was found in either of the other bathroom stalls.

¶63. Three correctional officers testified that they saw Johnson creating a
disturbance in the bathroom stall and that he was moving up and down. They
testified that they saw no other inmates in the area at that time. Furthermore,
Johnson was seen carrying a horseshoe in the direction of the restrooms shortly
before the assault on Burgess.

¶64. Finally, Johnson's witness at the sentencing hearing, Braatan, claimed that the
assault had been completed by the time Johnson arrived at the bathroom, contrary to
Johnson's own statement. Moreover, Braatan stated that he believed the officers lied
about seeing Johnson in the bathroom because Johnson left the area long before the
officers noticed anything wrong. This is also inconsistent with Johnson's own
statement that he left the bathroom when he saw the officers approach.

¶65. Accordingly, after reviewing the trial court record, we hold that there is
sufficient evidence to support the sentencing judge's finding that Johnson's later
version of the incident is not credible and that the § 46-18-304(1)(f), MCA, mitigating
circumstances do not exist.

¶66. Johnson also contends that § 46-18-304(2), MCA, the "catch all" provision of
the mitigating circumstances statute, applies here, although he did not argue along
these lines at the sentencing hearing. On appeal, Johnson argues that the District
Court failed to properly consider, under this statutory provision, Johnson's
institutional record, the testimony of two correctional officers that they did not
perceive Johnson as a danger to other staff or inmates, or Dr. Stratford's report
discussing Johnson's IQ and his childhood.

¶67. Contrary to Johnson's contentions, the District Court did consider these factors,
albeit the court did not specifically state that it was considering these factors under
the "catch all" provision. In its Finding of Fact No. 8, the court stated:

c. Although the Defendant's institutional record was good for approximately 1½ years
prior to this homicide conviction, Defendant's overall record shows a pattern of disruptive,


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defiant and assaultive behavior which mirrors most of Defendant's young and adult life
whether in or out of institutions.

Additionally, in its ninth finding of fact (misnumbered as the court's second Finding of
Fact No. 5), the court stated, in part:

If the penalty of death is not imposed it is virtually certain that Defendant will injure or
kill other correctional staff or inmates, notwithstanding the report of Dr. Stratford and the
testimony of the correctional officers that was offered at the sentencing hearing.
[Emphasis added.]

And, finally, in its Finding of Fact No. 7, the court stated:

The Defendant has not proposed that any of the other mitigating factors set forth in
Section 46-18-304, MCA, should apply to the circumstances of this case and the Court
specifically finds that none of the other mitigating factors are applicable. [Emphasis
added.]

¶68. Furthermore, the sentencing court is not required to make findings on each
piece of purportedly mitigating evidence produced; it is only required to consider all
such evidence. Sattler, ¶ 88 (citations omitted). Since the District Court states that it
found none of the other mitigating factors to be applicable in this case, we must
assume that it did consider all purportedly mitigating evidence produced.

¶69. Accordingly, we hold that the District Court did consider all of the mitigating
circumstances enumerated in § 46-18-304, MCA, and that sufficient evidence exists
to support the court's finding of the nonexistence of any mitigating circumstance
sufficient to call for leniency.

                                                                Issue 5.

¶70. Whether the sentence of death is excessive or disproportionate to the penalty
imposed in similar cases.

¶71. Under § 46-18-310(3), MCA (1995) (the statute in effect at the time Johnson was
convicted and sentenced), this Court is required to determine "whether the sentence
of death is excessive or disproportionate to the penalty imposed in similar cases,
considering both the crime and the defendant." The statute also requires this Court
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to "include in its decision a reference to those similar cases it took into
consideration."

¶72. In determining whether a death sentence is disproportionate, we review the
gravity of the offense, the brutality with which it was committed, and the factors, if
any, which lead to a call for leniency, with the purpose of making certain that there
has been no discriminatory action on the part of the sentencing judge. See 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 (1980); State v. Kills on Top (1990), 243 Mont. 56, 793 P.2d
1273, cert. denied, 501 U.S. 1259, 111 S.Ct. 2910, 115 L.Ed.2d 1073 (1991).

¶73. In Smith, we stated that an evaluation of the proportionality of a death sentence
is limited to consideration of those cases in which the death penalty was sought and a
record exists concerning aggravating and mitigating circumstances. Smith, 280 Mont.
at 179, 931 P.2d at 1285. Thus, the scope of our proportionality review in the case sub
judice would necessarily include three similar death penalty cases, each involving a
deliberate homicide committed by an individual while incarcerated. Those cases are:
State v. Turner (1993), 262 Mont. 39, 864 P.2d 235, cert. denied, 513 U.S. 827, 115 S.
Ct. 96, 130 L.Ed.2d 46 (1994); State v. Gollehon (1993), 262 Mont. 1, 864 P.2d 249,
cert. denied, 513 U.S. 827, 115 S.Ct. 95, 130 L.Ed.2d 45 (1994); and State v. Sattler,
1998 MT 57, 956 P.2d 54, 55 St.Rep. 230.

¶74. The defendants in Turner and Gollehon were convicted of deliberate homicide
by accountability for their participation in the beating death of another inmate at
MSP. The evidence showed that both defendants used baseball bats to attack and
beat the victim on the head and body. Both defendants committed the deliberate
homicide while they were serving prison sentences and both had previously been
convicted of deliberate homicide. In each case, there was no significant circumstance
which mitigated the penalty.

¶75. In Sattler, the defendant was incarcerated in a county jail when he beat another
jail inmate to death with a metal bar. This defendant also had a previous homicide
conviction and, as in Turner and Gollehon, the mitigating circumstances supporting
leniency for this defendant were insubstantial.

¶76. Johnson argues that, while it is true that the two aggravating circumstances
found in Turner, Gollehon, and Sattler apply to Johnson, those three cases are

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factually distinguishable from the facts surrounding Burgess's death. Johnson
contends that, while Burgess was an inmate, was attacked with a weapon, and was
beaten to death by blows to the head, there were no other blows to other areas of his
body as was the case in Turner, Gollehon, and Sattler. Johnson also contends that,
unlike Turner, Gollehon and Sattler, one blow was not sufficient to cave in Burgess's
skull. We find these to be distinctions without much of a difference. The fact remains
that Burgess, like the victims in Turner, Gollehon, and Sattler, died from blunt force
trauma to the head.

¶77. Johnson also argues that, unlike Turner, Gollehon, and Sattler, it cannot be said
that Burgess was beaten after he was down. This argument is contradicted by the
testimony of the State's forensic serologist, Julie Long, who concluded that the blood
spatters on Johnson's pants were caused by applying force to a bloody object only 8
to 10 inches off of the floor.

¶78. Finally, Johnson attempts to distinguish this case by arguing that there was no
indication that an attack was going to be made upon Burgess in advance, as was the
situation in Turner, Gollehon, and Sattler. This argument is refuted by Johnson's own
statements. At the July 9, 1996 hearing, Johnson's attorney introduced a letter
written by Johnson wherein Johnson claimed that, three days prior to the attack on
Burgess, he learned that another inmate was planning to beat up Burgess over money
Burgess owed that inmate for drugs. While the District Court found this account of
Burgess's death not credible, it is disingenuous for Johnson to argue on one hand
that he knew an attack was going to be made upon Burgess in advance and, on the
other hand, to attempt to distinguish Turner, Gollehon, and Sattler by contending
that there was no indication that an attack was going to be made upon Burgess in
advance.

¶79. Johnson argues that a sentence of death in his case would be disproportionate to
sentences imposed on others who have been convicted of deliberate homicide while
within MSP. Essentially, Johnson argues that his case should be compared to the
"prison riot cases" ]where no death sentences were imposed even though the inmates
convicted in those cases had previously been convicted of deliberate homicide. He
argues that we should reconsider and reverse our decision in Smith so that we may
consider other cases in which the death penalty was not sought or imposed. However,
Johnson offers no persuasive reason for opening this Court's proportionality review
to study other cases. Our reasoning in Smith remains sound; only when the death

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penalty is sought will a record exist concerning aggravating and mitigating
circumstances. Smith, 280 Mont. at 179, 931 P.2d at 1285.

¶80. Accordingly, we hold that Johnson's sentence is not excessive or
disproportionate to the penalty imposed in similar cases.

                                                             Conclusion

¶81. In summary, we hold that the District Court properly instructed the jury on
"flight" and "concealment" and that there was sufficient evidence to support
Johnson's conviction of deliberate homicide As to this Court's automatic review of
the death sentence, we hold that the sentence was not imposed under the influence of
passion, prejudice, or any other arbitrary factor; the evidence supports the District
Court's findings of the nonexistence of mitigating circumstances; and the sentence is
not excessive or disproportionate to the penalty imposed in similar cases. Therefore,
we affirm Johnson's conviction and sentence.

¶82. Affirmed.

/S/ JAMES C. NELSON

We Concur:

/S/ J. A. TURNAGE

/S/ KARLA M. GRAY

/S/ WILLIAM E. HUNT, SR.

/S/ JIM REGNIER

/S/ TERRY N. TRIEWEILER

Justice W. William Leaphart, specially concurring.

¶83. I concur with the decision of the Court on issues one through four. For the
reasons set forth in my special concurrence in State v. Smith (1996), 280 Mont. 158,
186-90, 931 P.2d 1272, 1289-92, I conclude, as to issue five (proportionality of the

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sentence), that under either the restricted Coleman standard or the more expansive
standard which I espoused in Smith, the sentence imposed here was not out of
proportion to similar cases.

/S/ W. WILLIAM LEAPHART




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