Defendant was convicted in the Thirteenth Judicial District Court, Yellowstone County, Diane Barz, J., of deliberate homicide, and was sentenced to death. On appeal, the Supreme Court, Weber, J., held that: (1) search of defendant's motel room was constitutional; (2) prosecutor did not improperly comment upon defendant's silence; and (3) sentencing judge properly considered victim impact statement. Affirmed.

WEBER, Justice. A jury in the District Court for Yellowstone County convicted defendant Mr. Dawson of three counts of deliberate homicide, four counts of aggravated kidnapping, and one count of robbery. He was sentenced to death for each of the three deliberate homicides and for each of the three aggravated kidnappings which resulted in the death of the victim. Defendant appeals his conviction and death sentences. We affirm on all issues.

The issues are: 1. Was Detective Hatfield's entry into and search of the defendant's motel room an unconstitutional search? 2. Did the District Court's reaction to the testimony of the surviving victim prejudice the case? 3. Were the sexual paraphernalia and magazines improperly admitted into evidence? 4. Did the prosecutor improperly comment upon the defendant's silence? 5. Was the defendant denied a jury trial as to those facts of the crime which are now denominated as aggravating circumstances, and does the evidence support the court's findings on those circumstances? 6. Did the trial court err by considering the defendant's silence at trial in imposing the death penalty? 7. Did the sentencing judge improperly consider the victim impact statement and characteristics of the victim? 8. Should a jury have participated in the sentencing process? 9. Should the absence of a prior criminal history on the part of the defendant be treated as sufficiently substantial to warrant leniency? 10. Does § 46-18-305, MCA, violate the Eighth Amendment? 11. Review of the sentence under § 46-18-310, MCA.

The four members of the Rodstein family were staying at the Airport Metra Inn in Billings, Montana, preceding a family move from Billings to Atlanta, Georgia. The defendant checked into the room next to theirs at approximately 4:45 a.m. on Friday, April 18, 1986. At about 5:00 a.m., the teenage daughter of the Rodsteins, Amy, went outside to load the family car.

The defendant, carrying a duffel bag from which a gun protruded, followed her back to her room. He then took all members of the family to his own room, where he bound and gagged all of them but Amy. He directed her to help him move the family's belongings into his room. Then he bound and gagged Amy and went through the family's belongings, taking out credit cards, cash, and jewelry.

The defendant injected Mr. and Mrs. Rodstein with an unknown substance which he said would make them sleep. Sometime shortly thereafter, they were strangled to death with a telephone cord. The bodies were placed under the sink in the rear of the motel room and were covered by a bedspread. Amy, who lay bound and gagged on the floor in another part of the room, did not see her parents being strangled or their bodies being moved.

Later that day, the defendant gave the 11-year old Rodstein boy, Andrew, a liquid to drink which caused him to sleep. Andrew was strangled to death and his body was placed with those of his parents. Again, Amy did not see the murder or her brother's body being moved. The defendant had Amy help him move the Rodsteins' vehicles from the motel parking lot to an area behind a nearby gas station. The defendant also gave Amy a liquid to drink, but while he was not looking she dumped it on the bedspread and covered the wet area with a pillow.

During the day on Saturday, the defendant and Amy left the motel room several times. During these trips, the defendant made several phone calls, went to the bank, went to a fast food store, and stopped at his own apartment and a friend's house. Amy did not attempt to get away because she believed her family was still alive and that an escape attempt might jeopardize their lives.

On Saturday evening, Billings police conducted an investigation at the motel after receiving reports that the Rodsteins were missing. The investigation is described more fully under Issue I. Briefly, after the defendant had come out into the parking lot and talked with the police several times, Detective Hatfield went to the defendant's motel room door and asked permission to look through his room. When the defendant

 changed his position and opened the door slightly, Detective Hatfield entered the room and noticed the bedspreads in the back of the room. The defendant said, “Amy, they're here to help you,” or words to that effect. Detective Hatfield found the bodies of the Rodsteins and summoned other officers for assistance. Detective Hatfield found Amy in the bathroom where the defendant had instructed her to stay after he observed the police outside.

An autopsy revealed that Mr. Rodstein died of asphyxiation. He had been strangled with “a great deal of force.” He also had several bruises on his scalp. Although needle marks were present in his arms, the substance with which he had been injected could not be identified. Mrs. Rodstein had also died of asphyxiation. Her blouse, brassiere, and jeans had been opened prior to her death, but no evidence of sexual assault was found. She, too, had bruises on her head and needle marks on her arm. Andrew had also died of asphyxiation by strangulation. On his chest were a number of bruises “as if the skin were pinched very hard, very firmly, either by a finger or perhaps some object, some instrument.”

The defendant did not testify at trial, but he had made prior statements to other trial witnesses about a third party being involved. His defense at trial was that a third person committed the homicides or compelled him to commit the homicides. The jury found the defendant guilty on all counts charged.

Was Detective Hatfield's entry into and search of the defendant's motel room an unconstitutional search?

The factual circumstances surrounding Detective Hatfield's entry into the motel room are critical to the resolution of this issue. Therefore, we set out the facts in detail. When the officers from the Billings police department arrived at the Airport Metra Inn shortly before 11 p.m., they knew that the Rodstein family had been missing for over 24 hours and that the family's two cars had been seen near the motel.

The officers parked near the Rodstein vehicles. A neighbor of the Rodsteins who had followed the officers to the motel confirmed that the vehicles belonged to the Rodsteins. Detective Hatfield learned from the motel clerk that the Rodsteins had been assigned Room 149 for Wednesday and Thursday nights.

The room had since been assigned to a person from Bozeman. The clerk also told the detective that a person named John Monroe had been in Room 151 for a couple of days, and that John Monroe was driving a black Volkswagon bug.

When Detective Hatfield returned to the Rodsteins' cars, another detective told him he had seen a man come out of Room 151 three times while Detective Hatfield was in the motel office. The individual was then outside, and Detective Hatfield approached and asked if he was John Monroe. The defendant said that he was John Monroe, and Detective Hatfield identified himself as a Billings police officer. He told the defendant that they were looking for the owners of the Rodsteins' cars.

The defendant stated that he knew nothing about the cars or their owners. Detective Hatfield testified that the defendant did not appear to be under the influence of drugs.

The police officers proceeded to search the Rodsteins' cars. The defendant then approached Detective Hatfield and said he had helped a female between the ages of 12 and 29 start one of the cars one night. He also told them that someone had been “messing around” with the cars in the parking lot one night. Then he returned to his room.

The officers proceeded to go through Room 149 and all the unoccupied rooms on that side of the motel. One of the officers went to Room 151, knocked on the door, and spoke with the defendant just outside the room. At that time, the defendant gave the officer his real name and stated that he had registered under a false name because he was with a married woman. He also said that he had noticed that the Rodsteins' cars had been moved while he was staying at the motel.

After checking the unoccupied rooms, the officers decided they ought to check Room 151 because they were becoming suspicious of the defendant. Detective Hatfield knocked on the door of Room 151 and the defendant opened it, dressed only in a yellow towel. Detective Hatfield stated that he would like to check the room. Defendant asked why and the detective replied that they were looking for anything which might help them locate the Rodsteins.

At this time, Detective Hatfield was standing just outside Room 151 and the defendant was standing in the doorway, with the door ajar. Detective Hatfield testified that the room was dimly lit; the only light may have been that given off by the television. The detective asked if the defendant's girlfriend was in the room and the defendant said, “No.” Detective Hatfield testified that at that point the defendant “stepped back away from the door pulling the door with him.” Detective Hatfield stepped into the room. He testified that it was his impression that the defendant had by his actions invited him to step inside.

At that point, Detective Hatfield noticed that the bedspreads from the beds were piled in the rear of the room. Defendant stated, “The bedspreads are in the back of the room.” Detective Hatfield testified that he said, “Yes,” and asked why, at which point the defendant said, “Amy, they are here to help you. You are going to be okay,” or words to that effect. Detective Hatfield knew that Amy was the name of the missing girl. Detective Hatfield testified that he looked at the defendant for a moment and the defendant said, “She is in the bathroom.”

Detective Hatfield directed the defendant to stay where he was and went to the rear of the motel room. He saw bound legs protruding from under the bedspreads, went back to the front of the room, and signaled the other officers to come in. Detective Hatfield then returned to the back of the room, ascertained that Mr. and Mrs. Rodstein and Andrew were dead, opened the bathroom door, and found Amy, who was physically unharmed.

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We hold that following the defendant's statements to the effect that, “Amy, they are here to help you,” and, “She's in the bathroom,” the exigent circumstances justified Detective Hatfield's limited search of the motel room. It was probable that the Rodsteins were somewhere in the vicinity of the Airport Metra Inn, where their vehicles were found.

In the opinion of Detective Hatfield, an experienced police officer, the defendant had acted in an odd or suspicious manner including his several approaches to the investigating officers, his inconsistent statements about what he knew about the Rodsteins, and his use and then abandonment of a false name. Finally, the officers knew that the defendant had been in the room adjoining the Rodsteins' room for several days. When the defendant called to someone, using the name Detective Hatfield knew was that of the missing girl, and then told the officer, “She is in the bathroom,” we conclude that Detective Hatfield had probable cause to search the room for the missing family.

Further, the police were faced with the probability that serious misfortune had befallen the Rodsteins, who, according to their friends and family, uncharacteristically had been missing for over 24 hours. We conclude that Detective Hatfield, acting on probable cause and in good faith, reasonably believed from the totality of the circumstances that there was a risk of danger to the Rodsteins justifying a search of the defendant's motel room.

We hold that the exigent circumstances justified Detective Hatfield's warrantless limited search of the room, during which he found Amy and the bodies of her family. Before a complete search was done of the room, a search warrant was obtained. In sum, we hold that there was no violation of the defendant's right to be free from unreasonable searches and seizures. Defendant consented to the initial entry, and then exigent circumstances justified a limited search without a warrant.

Did the District Court's reaction to the testimony of the surviving victim prejudice the case? Amy Rodstein was the State's principal witness at this trial. Because testifying was very difficult for her, the parties agreed that she would be questioned by her own attorney, not by the attorneys representing the State and the defendant. Amy's therapist sat with her as she testified, and recesses were called whenever Amy's counsel felt that they were needed. At

the conclusion of Amy Rodstein's testimony, she and other persons in the courtroom were in tears or nearly so. The court ordered a recess, in a voice which “cracked or wavered.” The defense argues that the court's facial expression and demeanor also conveyed strong emotion. The next morning, the defendant moved for a mistrial because of the possible effect of the court's actions and demeanor upon the jury. The court denied the motion.

Defendant, as do all criminal defendants, had a constitutional right to trial by an impartial jury. Mont. Const., Art. II, Secs. 24 and 26; U.S.Const. amend. VI. To avoid prejudice to the defendant, the judge in a criminal trial should avoid making remarks which are calculated in any way to influence the minds of the jury. State v. Fuller (1906), 34 Mont. 12, 26, 85 P. 369, 374. However, “it is not every remark so made that may be alleged as ground of error.” Fuller, 85 P. at 374. To reverse a lower court's ruling on a motion for mistrial, this Court must be presented with evidence that is clear, convincing, and practically free from doubt that the trial court's ruling was erroneous. Schmoyer v. Bourdeau (1966), 148 Mont. 340, 343, 420 P.2d 316, 317-18.

The transcript does not convey any potential prejudice by the court. The defense's argument hinges on the tone of voice and emotional content in which the order for a recess was delivered. Defendant relies upon the county attorney's statement at the mistrial motion to support his claim. The county attorney stated that at most the court's conduct went to the weight of the evidence. That, of course, is only the county attorney's off-the-cuff remark. The lower court heard the arguments of both sides on this issue, and, especially in this case, was in a much better position than are we to judge whether the jury might have been prejudiced. We cannot conclude that the court's ruling denying a mistrial was clearly erroneous. We hold that the denial of a mistrial was not error.

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Last we are to determine whether the sentence is excessive or disproportionate to the penalty imposed in similar cases, considering both the crimes and the defendants. No argument has been made on this issue by the defendant. However, in accordance with our statutory duty, we have considered the five Montana death penalty cases since 1973. The facts of these cases are discussed in Keith, 754 P.2d at 480-81.

The crimes in this case extended over a number of hours, including the kidnapping of the four persons, the binding and gagging of the persons, the injection of substances into Mr. and Mrs. Rodstein, the subsequent strangulation of Mr. and Mrs. Rodstein with the telephone cord, the giving of a liquid to 11-year old Andrew Rodstein in order to make him sleep, and the strangling of Andrew.

The defendant gave Amy a similar liquid to drink but because she poured it out when the defendant was not looking she may have been protected from her own deliberate homicide. As previously discussed, the deliberate homicides were committed by means of torture and by the defendant lying in wait or ambush. As discussed above, the aggravating circumstances also include that the offenses were deliberate homicides committed as a part of a scheme or operation which resulted in the deaths of three persons, including the 11-year old, and that the offenses of aggravated kidnapping resulted in the deaths of the victims.

We have considered the crimes and the defendants in each of the cases discussed in Keith and compared the same to the crimes and the defendant in the present case. In comparing the crimes, we conclude that the crimes committed by the defendant were at least as grievous and heinous as were those involved in the other described death penalty cases. We also conclude, after considering the defendants in each of the cases cited in Keith, that the defendant's lack of a prior criminal history, when weighed against the nature of the crimes of which he was convicted, does not make his sentence disproportionate in comparison with the other cases.

Finally, we have considered State v. Keefe (Mont.1988), 759 P.2d 128, 45 St.Rep. 1034, in which the defendant was not sentenced to death although he was convicted of the deliberate homicides of three family members in their home. However, that defendant was under the age of 18 at the time the crimes were committed.

We hold that the sentences of death given in the present case are not excessive or disproportionate to the penalty imposed in similar cases in Montana, considering both the crimes and the defendants. As required by § 46-18-310, MCA, in reaching this conclusion, we have considered the punishment as well as any errors enumerated by way of appeal. We affirm the judgment of the District Court. This cause is remanded to the District Court for the setting of an execution date.

Dawson v. State, 301 Mont. 135, 10 P.3d 49 (Mont. 2000) (PCR).