State v. Coleman

No. 14448
IN THE SUPREME COURT OF THE STATE OF MONTANA

1979

STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
DEWEY EUGENE COLEMAN,
Defendant and Appellant.

Appeal from: District Court of the Sixteenth Judicial District,
Honorable A. B. Martin, Judge presiding.
Counsel of Record:
For Appellant:
Moses Law Firm, Billings, Montana
Charles F. Moses argued, Billings, Montana
For Respondent :
Hon. Mike Greely, Attorney General, argued, Helena,
Montana
Mike McCarter, Assistant Attorney General, argued,
Helena, Montana
John S. Forsythe, County Attorney, Forsyth, Montana

Submitted: October 29, 1979
Decided :
DEC 1 9 1979
Filed:
DEC 4 9 1
m
Mr. Justice John C. Sheehy delivered the Opinion of the Court.

On June 20, 1979, we handed down our opinion on the

second appeal of Dewey Eugene Coleman (1979), Mont . I

P.2d , 36 St. Rep. 1134. Following the opinion,
we received the decision of the United States Supreme Court
in Sandstrom v. Montana (1979), U.S. , 99 S.Ct.
2450, 61 L.Ed.2d 39. Counsel for Coleman filed with us a

petition for rehearing on the second appeal, alleging,
among other things, that the holding in Sandstrom required a
reversal and a new trial in Coleman's case. On the basis

of Sandstrom, we granted the petition for rehearing, and
further permitted argument on eight other grounds urged by

Coleman for rehearing. The issues raised by both sides were

briefed and argument was had on rehearing before us on
October 29, 1979.
We now uphold the judgment of conviction against Dewey
Eugene Coleman, and the sentence of death imposed on him. We
will discuss our reasons under the issues as they were
briefed and argued before us.
1. The effect - - Sandstrom decision.
of the

In Sandstrom, the United States Supreme Court found the
trial court's instruction "[tlhe law presumes that a person
intends the ordinary consequences of his voluntary acts" un-

constitutional. - U.S. at , 99 S.Ct. at 2453, 61 L.Ed.2d

The Supreme Court held that such an instruction may have
been viewed by the jury as an "irrebutable direction by the
court to find intent once convinced of the facts triggering
the presumption. Alternatively, the jury may have interpreted
the instruction as a direction to find intent upon proof

of the defendant's voluntary actions, . . . unless -
the
defendant proved the contrary by some quantum of proof. . ."
Sandstrom, U.S. at , 99 S.Ct. at 2456, 61 L.Ed.2d
at 47.
The instruction to which Coleman objects on the basis
Sandstrom is the trial court's instruction no. 22 as
follows:
"If you find that the defendant Dewey Eugene
Coleman committed a homicide and no circumstances
of mitigation, excuse or justification appear,
then you may infer that the homicide was committed
knowingly or purposely."
The objections by Coleman to instruction no. 22 may be
summarized as follows: (1) the instruction was in the
nature of a Sandstrom instruction; (2) this Court has held
that Coleman instruction is similar to the Sandstrom instruction
/PC
(State v. Sandstrom (1978), - Mont . , 580 P.2d 404-, 35
St.Rep. 744); (3) under instruction no. 22 the State was not
required to prove every element of the alleged crime beyond
a reasonable doubt; (4) a statutory presumption is unconstitutional
unless it can be shown that the presumed fact is more likely
than not to flow from the proved fact upon which it depends;
(5) instruction no. 22 conflicts with the defendant's presumption
of innocence because where intent is an element of the crime
it cannot be taken from the jury through reliance on a
presumption; (6) therefore, the State was not required to
prove its case against defendant beyond a reasonable doubt.
We first note that the instruction in Coleman differs
from the instruction given on Sandstrom in that the Coleman
instruction is not mandatory in its terms. The permissive
nature of the language "you may infer" cannot be escaped.
The question then becomes whether the permitted inference,
when read with the other instructions in the case, allowed
the State to convict Coleman without proving every element
of the offenses charged beyond a reasonable doubt.
Moreover, the Sandstrom instruction related to a presumption
as a matter of law. The Coleman instruction refers to an
inference of fact, a deduction that logically could be inferred
by the jury under proof of the circumstances stated. The
possible inference, by its terms is not in itself unreasonable.
The United States Supreme Court said in Sandstrom that
determining whether the State has been relieved of its burden
of proof, "requires careful attention to the words actually
spoken to the jury ... for whether a defendant has been
accorded his constitutional rights depends upon the way in
which a reasonable jury could have interpreted the instruction."
Sandstrom, U.S. at , 99 S.Ct. at 2454, 61 L.Ed.2d at 45.
A review of the instructions given by the trial court
shows that instruction no. 22 did not stand alone on the burden
of the State to prove the elements of the offenses charged.
At the outset, the Court informed the jury, "[tlhe State is
required to prove, beyond a reasonable doubt, all material
facts alleged in the information filed in this case."
Further instructions of the court hammered home to the jury
the importance of the presumption of innocence. In court's
instruction no. 3, the jury was told that the defendant came
into court protected by the presumption of innocence as to
any crime, and particularly the crimes charged against him;
that he was presumed to be innocent until his guilt is established
to a moral certainty beyond a reasonable doubt; that the
presumption of innocence attended him at every step and through-
out the entire case and that he was entitled to the benefit
of that presumption upon every question of fact; and that the

jury should determine his guilt or innocence by a careful con-
sideration of all the evidence introduced in the case during
the trial.
In instruction no. 4, the trial court told the jury that
the burden of proof rested upon the State throughout the trial
to establish the guilt of Coleman beyond a reasonable doubt
and that his conviction would not be warranted unless the burden
was sustained.
 In instruction no. 5, the jury was told the defendant in
a criminal action is presumed to be innocent until the
contrary is proven, and in case of reasonable doubt whether
his guilt is satisfactorily shown, he was entitled to an
acquittal; that the effect of this presumption was to place
upon the State the burden of proving the defendant guilty
beyond a reasonable doubt.
Although Coleman was convicted of three separate crimes,
the disputed instruction relates only to the charge of
deliberate homicide. We find that the trial court fully
informed the jury in the foregoing instructions about the
burden of proof resting upon the State as to each material
element of the crimes charged and the abiding effect of the
presumption of innocence throughout the course of the trial.
We look now to determine the effect under the instructions
of the language in the disputed instruction that the jury
might "infer that the homicide was committed knowingly or
purposely".
An inference is a form of evidence defined as "indirect
evidence". Section 26-1-102(4), MCA. To a layman, perhaps,
indirect evidence is better known as "circumstantial evidence".
In trial court's instruction no. 8, the jury was instructed
that there were two classes of evidence upon either or both
of which if adequately convincing, the jury ' might law£ully
find the accused guilty of crime. One was direct evidence,
and the other was circumstantial evidence. A part of the
court's instruction no. 8 with respect to circumstantial evidence
told the jury:
"All other evidence admitted in the trial is
circumstantial, and insofar as it shows any
acts, declarations, conditions, or other
circumstances tending to prove a crime in
question, it may be considered by you in
arriving at a verdict. Either will support
a verdict of guilty if it carries the convincing
quality required by law, as stated in these
instructions. However, you are instructed
that you are not permitted on circumstantial
 evidence alone to find the defendant guilty of
any crime charged against him unless the proved
circumstances not only are consistent with the
hypothesis that the defendant is guilty of the
crime but are inconsistent with any other rational
conclusion. "
When we give careful attention to the words spoken to
the
the jury, adunited States Supreme Court said in Sandstrom,
the foregoing instruction with respect to the effect of circumstantial
evidence must be weighed with the disputed instruction that
the jury "may infer" material elements of the crime. On
balance, it is clear to us that the permissive language in
the disputed instruction must under any fair reading give
way to the positive declaration in instruction no. 8 that cir-
cumstantial evidence must carry the convincing quality
required by law as stated in the instructions, and that any
such inference standing alone would be insufficient unless
it was inconsistent with any other hypothesis than guilt.
On appeal, we view the instructions as a whole. State
v. Farnes (1976), 171 Mont. 368, 558 P.2d 472. It is impossible
to deliver the whole of the law in any one instruction, and
for that reason, all instructions are considered as a whole
and if they fairly tender the case to the jury, the fact
that one instruction standing alone is not as full or accurate
as it might be is not reversible error. State v. Caryl
(1975), 168 Mont. 414, 543 P.2d 389. The purpose to commit
a crime, or knowledge that one is committing a crime, are
subjective matters that most often can be proven only through
circumstantial or indirect evidence.
The holding in Sandstrom is not to be construed to mean
that whenever a trial court instructs the jury that it may
resort to inference to determine subjective matters such as
knowledge or purpose, that thereby the State has been relieved
of its burden of proof. The United States Supreme Court did
not intend such limitation, and we do not find any such
intention in the language of Sandstrom, or its related
cases. The jury was not allowed to rest solely upon the
permitted inference in the Coleman case, but under the
instructions had to require such an inference to meet the
standard as beyond a reasonable doubt.
The true test under Sandstrom, in determining the
effect of an instruction such as the one disputed here is
whether that instruction has the effect of allocating to the
defendant some part of the burden of proof that properly rests
on the State throughout the trial. See Holloway v. McElroy
(D. Ga. 1979), 474 F.Supp. 1363, 1368. We do not find that
to have occurred here.
On that basis we distinguish the Coleman instruction
from those cases involving a burden-shifting presumption as
in Mullaney v. Wilbur (1975), 421 U.S. 684, 95 S.Ct. 1881,
44 L.Ed.2d 508; and conclusive presumptions like those
involved in Sandstrom, supra; Morissette v. United States
(1952), 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288; and United
States v. United States Gypsum Co. (1978), 438 U.S. 422, 98
S.Ct. 2864, 57 L.Ed.2d 854. Instead the inference is purely
permissive, in the sense described in County Court of Ulster
Cty. v. Allen (1979), - U.S. , 99 S.Ct. 2213, 60
L.Ed.2d 777.
Coleman further contends that because we stated in our
first Sandstrom opinion (State v. Sandstrom (1978),
Mont. , 580 P.2d 106,at 109, 35 St.Rep. 744, at 748) that
the instruction in Coleman was similar to the Sandstrom
instruction that thereby the United States Supreme Court in
overruling Sandstrom has in effect determined that the Coleman

instruction was likewise unconstitutional. We do not accept that
contention as having any validity. Comparing each instruction,
-7-
we see this manifest difference: the Sandstrom instruction
is by its terms mandatory but the Coleman instruction is
permissive. We can see no other construction as to the effect
of the language used in instruction no. 22 in this Coleman case.
2. - effect of -
The - the - "knowingly."
instruction on -
Here Coleman attacks the definition of the term "knowingly",
as given by the Court in instructing on that element regarding
the crimes charged.
In trial court's instruction no. 26, the jury was told:
"'Knowingly'. A person acts knowingly with respect
to conduct or to a circumstance described by a
statute defining an offense when he is aware of
his conduct or that the circumstance exists. When
knowledge of the existence of a particular fact
is an element of an offense, such knowledge is
established if a person is aware of a high probability
of its existence. Equivalent terms such as 'knowing'
or 'with knowledge' have the same meaning."
The objections to this instruction on rehearing are:
(1) it violates the rule against reasonable doubt because it
requires only a "high probability of its existence;" (2) it
is in effect an exclusive presumption in that the element
is established if the jury finds a high probability of its
existence; and (3) "high probability" does not have that
quality which would enable a jury to convict.
Under United States v. United States Gypsum Co., supra,
where a defendant's state of mind or intent was an element
of an antitrust offense, a reliance by a jury on a legal
presumption of wrongful intent from proof or effect on
prices necessitated reversal. Applying the rationale of
United States Gypsum Co., defendant contends that Montana's
statutory definition of "knowingly" is established if a jury
finds "a high probability of its existence". This, Coleman
contends, does not equate with proof beyond a reasonable
doubt as an essential element of the crime charged.
 In the original Coleman opinion from this Court,
(19781, - Mont . , 579 P.2d 732, 35 St.Rep. 560, we
considered this argument. There we rejected the contention.
Consideration by us of the renewed issue on rehearing is
proper, since it was not addressed in our second Coleman
opinion of June 20, 1979, supra, and the Sandstrom decision
intervened between our said decision and the rehearing.
The statute on which the instruction is based, section
45-2-101(27), MCA, defines "knowingly" as follows:
"'Knowingly'--a person acts knowingly with respect
to conduct or to a circumstance described by a
statute defining an offense when he is aware of his
conduct or that the circumstance exists. A person
acts knowingly with respect to the result of conduct
described by a statute defining an offense when he
is aware that it is highly probable that such result
will be caused by his conduct. When knowledge of the
existence of a particular fact is an element of an
offense, such knowledge is established if a person
is aware of a high probability of its existence.
Equivalent terms such as 'knowing' or 'with knowledge'
have the same meaning."
The statute considers two elements of knowledge as far as
this case is concerned, (1) knowledge as to the conduct itself
and, (2) knowledge as to the result of that conduct. It is
only the result of the conduct that hangs on the proof of his
awareness that "it is highly probable that such result [would]
be caused by his conduct."
The evil countermanded in Sandstrom and again in United
-
States Gypsum Co., is instructing the jury in such a manner that
the function of fact-finding is invaded by the court. It is

when the instructions take away from or intrude upon the duty
of the jury to find intent that the instruction becomes con-
stitutionally impermissible for "'A conclusive presumption
[of intent], which testimony could not overthrow would effectively
eliminate intent as an ingredient of the offense.'" 483 U.S.
at 446, 98 S.Ct. at 2878; Morissette, 342 U.S. at 275, '72
 When the holdings in Sandstrom and United States
Gypsum - are understood in that context, one may examine the
Co.
instruction on "knowingly" complained of here, and determine
that the fact-finding duty of the jury is not invaded by the
Court. The District Court is not usurping a jury function
when it instructs "a person acts knowingly with respect to
the result of conduct [constituting a crime] when he is aware
that it is highly probable that such result [would] . . . be
caused by his conduct." The jury is not called upon to
determine "high probability" in place of "reasonable doubt";
rather it is called on to determine the existence of defendant's
awareness, beyond a reasonable doubt, that a high probability
is that the result of his conduct makes his conduct criminal.
The District Court here did not, by using this instruction,
make it mandatory upon the jury to find defendant's awareness,
nor conclusively presume his awareness. That finding was
left exclusively to the jury. In short, the instruction did
not establish a presumption which testimony could not overthrow.
On that basis, therefore, we find no merit on the second
ground of attack.
Montana has the right and authority to define crimes and
their elements. See Patterson v. New York (1977), 432 U.S. 197,
97 S.Ct. 2319, 53 L.Ed.2d 281. It is consistent with
modern concepts of intent to define knowledge as an awareness
of probable consequences. The United States Supreme Court said
in United States v. United States Gypsum Co., supra, 438 U.S.
at 444-45, 98 S.Ct. at 2877, with respect to intent under
antitrust laws:
". . . we conclude that action undertaken with
knowledge of its probable consequences and
having the requisite anticompetitive effects
can be a sufficient predicate for a finding of
criminal liability under the antitrust laws.
"Several considerations fortify this conclusion.
The element of intent in the criminal law has
traditionally been viewed as a bifurcated concept
 embracing either the specific requirement of
purpose or the more general one of knowledge
or awareness.
" ' [I]t is now generally accepted that
a person who acts (or omits to act) intends
a result of his act (or omission) under two
quite different circumstances: (1) when
he consciously desires that result, whatever
the likelihood of that result happening
from his conduct; and (2) when he knew
that the result is practically certain to
fall from his conduct, whatever his desire
may be as to that result.' (Citing authority.)
"Generally this limited distinction between knowledge
and purpose has not been considered important since
'there is good reason for imposing liability whether
the defendant desired or merely knew of the practical
certainty of the result.' (Citing authority.) In
either circumstance, the defendants are consciously
behaving in a way the law prohibits, and such conduct
is a fitting object of criminal punishment. (Citing
authority. ) "
Distinction Between Post Facto - Retroactive
and
Restrictions.
Nothing in the briefs or on the rehearing has been brought
to our attention requiring us to expand our discussion of these
issues in our opinion promulgated June 20, 1979, except for
the citation by Coleman of State v. Collins (La. 1979), 370
So.2d 533, and Miller v. State (Tenn. 1979), 584 S.W.2d 758.
In State v. Collins, the Louisiana Court decided, on
retroactive grounds, without specific reference to - -
ex post facto
effect, that the application of the death penalty was barred by a
Louisiana statute similar to that of Montana, that no section
of the revised statutes is retroactive unless expressly so
stated. The defendant there committed the offense of first degree
murder at a time when the first degree murder statute provided
that whoever committed the offense must be punished by death.
Following the United States Court decision in Roberts v.
Louisiana (1976), 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974,
Louisiana enacted new statutes effective 21 days after the
offense here was committed, "redefining the crime of first
degree murder and enacting a permissive, and presumably con-
stitutional, death penalty. . ." 370 So.2d at 534. It appears
therefore that Louisiana not only redefined the punishment
for murder, but redefined the crime. In Montana, the legislature
took only the procedural step of redefining the punishment.
On that basis, as our earlier discussion respecting - -
ex post
facto and retroactive provisions disclose, State v. Collins is
distinguishable from the case at bar.
Similarly, there is a distinguishing factor in Miller v.
State, supra. The Tennessee constitution has a provision which
states:
"That laws made for the punishment of acts
committed previous to the existence of such laws,
and by them only declared criminal, are contrary
to the principles of a free government; wherefore
no --
Ex post facto law shall be made." 584 S.W.2d
at 761.
It is obvious that the Tennessee court, under that State con-
stitutional provision, could only decide that laws providing
for punishment but enacted after the crime could not be retro-
actively applied.
It should be noted that the Tennessee court in Miller
agreed with our determination of the effect of Calder v. Bull

(1798)', U.S. (3 Dall.) 386, 1 L.Ed. 648, as to retroactivity
3
and the four broad classifications of --- facto laws
ex post
set out in State v. Rowe (1935), 116 N.J.L. 48, 181 A. 706.
See 584 S.W.2d at 761.
We note in passing that in Smith v. Com. (Va. 1978),
248 S.E.2d 135, where Virginia's 1975 death penalty statute
was presumptively valid in spite of the United States Supreme
Court decisions attacking the constitutionality of similar death
penalty statutes and a 1977 Virginia law amending the death
penalty statute was applied to uphold a previous death penalty;
the Virginia Court found that the 1977 changes were ameliorative.
Xt found so because the 1977 law provided an alternative penalty
-12-
provision instead of the mandatory penalty provision of the
1975 law. This was the same situation as occurred in
Montana. Relying on Dobbert v. Florida (1977), 432 U.S. 282,
97 S.Ct. 2290, 53 L.Ed.2d 344, the Virginia Supreme Court found
no - -
ex post facto violations since the defendant had "'fair warning'

of the consequences of murder." 248 S.E.2d at 147. The
Virginia court found that the changes were ameliorative, and
merely procedural.
Since we find no compelling reason to reverse our

opinion respecting the application of the 1977 Montana death
statute, we hold to what we said on that subject in the
opinion promulgated on June 20, 1979.
4. - - Montana
The New Capital Punishment Statutes are
Unconstitutional.

The force of Coleman's argument here is that section
46-18-305, MCA, formerly section 95-2206.10, R.C.M. 1947,
provides that the sentencing court, in a death penalty case,

can only consider those "mitigating circumstances sufficiently
substantial to call for leniency." Coleman contends that
such language limits the court's discretion only to circumstances
"sufficiently substantial" and is not within the holding in
Lockett v. Ohio (1978), 438 U.S. 586, 98 S.Ct. 2954, 57
L.Ed.2d 973, that the sentencing body must not be precluded

from considering any aspect of the defendant's record or
character as a mitigating factor.
To state the converse of Coleman's position on this issue
is to refute the argument. A sentencing court should not rely
on "mitigating circumstances sufficiently substantial to call
for leniency.' The only limit placed upon the court's discretion
under section 46-18-305, MCA, is that the mitigating factor
must be substantial; that is, it must have some substance or

weight. We cannot regard the statutory language requiring a suf-
ficiently -
substantial mitigating factor as a limiting encroachment
upon the discretion of the judge when he passes sentence
in capital cases.
5. Whether Coleman's Death Sentence - Disproportionate
is

- Crime, What is the
His --- Scope - -
of this Court's Review, -
and
Coleman's Request - - a Further Review of Comparative Cases.
for -

We lump the foregoing issues raised on the petition for
rehearing together because they can be more easily answered
as one subject.
First we refer again to the developments that occurred
after the decision in Furman v. Georgia (1972), 408 U.S. 238,
92 S.Ct. 2726, 33 L.Ed.2d 346, wherein it was held that a

statutory system which allows the sentencing authority un-
bridled discretion in the process of imposing the death penalty
violated the Eighth and Fourteenth Amendments.
It was the Furman decision that brought about eventually
the recodification of Montana's law so as to replace the

mandatory death penalty with sentencing provisions which gave
the sentencing judge alternatives to follow in pronouncing sentence.
Under Jurek v. Texas (1976), 428 U.S. 262, 96 S.Ct. 2950, 49
L.Ed.2d 929; Proffitt v. Florida (1976), 428 U.S. 242, 96 S.Ct.
2960, 49 L.Ed.2d 913; and Gregg v. Georgia (1976), 428 U.S. 153,
is
96 S.Ct. 2909, 49 L.Ed.2d 859, it/clear that Furman does not
require that all sentencing discretion of the trial court be
eliminated if the statutory system provides adequate standards
to guide the exercise of the discretion in sentencing in
capital cases.
Montana's response was the adoption of sections 46-18-
301-310, MCA, inclusive. Those sections guide the discretion of
the District Court both as to aggravating circumstances and
mitigating circumstances in passing sentence. The District Court

may impose its sentence of death if it finds one or more of the

aggravating circumstances described and also finds there are no

mitigating circumstances sufficiently substantial to call for
-14-
leniency. Findings of fact are required of the ~istrict

Court and automatic review by the Supreme Court in all death

sentences is also provided.
The duties of our Supreme Court with respect to death
sentences is set forth in section 46-18-310, MCA. Under that

statute, this Court shall determine:
"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."
Coleman makes two arguments respecting our review, (1)
that we have not reviewed the "entire record" under section

46-18-308, MCA, because we have not reviewed, Coleman contends,
the issues raised on his first appeal and (2) that we have
not reviewed all the appropriate "similar cases" under
section 46-18-310 (3), MCA.
Needless to say, when the matter came to this Court for
automatic review after the death sentence was reimposed,
there came with it not only the record of the resentencing,
but the entire record of the trial. We also had before us the
briefs and records that related to the first opinion. It
should be understood, therefore, that in connection with the
second opinion propulgated June 20, 1979, supra, that we
have in fact reviewed the entire record.
 Further we see no reason to change our position with
respect to the similar cases that we looked at in order to
determine whether or not the death sentence in Coleman's
case was disproportionate. We take our duty to be, in connection
with whether a death sentence is disproportionate, that we
should review the circumstances of the crime of which the defendant
is accused, and in the light of those circumstances, the judgment
and the sentence thereupon imposed; and, examine cases involving
similar crimes, all for a single purpose, to make certain that
as far as the defendant in this case, Coleman, is concerned,
there has been no discriminatory action on the part of the
sentencing judge, no abuse of discretion by the sentencing
judge, and that the sentencing judge has considered and applied
fairly and without discrimination the applicable law. We find this
to be true in this case. It should be understood that in the
final analysis, the imposition of sentence is not one that
this Court must undertake. That matter is still reserved under
our statutes to the District Courts. There is a discretion
vested in the District Court in capital cases as to whether the
death penalty should be imposed. Once that discretion has been
exercised, and if we find that it has been exercised fairly,
indiscriminately and in accordance with the applicable statutes,
then it must be upheld. The search for disproportionateness
involves elements that consider the gravity of the crime, the
brutality with which it may have been committed and the factors,
if any, which lead to a call for leniency. We look for the even-
handed application of death sentences without regard to sex,
color, creed, or race, or any other discriminating consideration.
When we find that this has occurred, as we find here, our
course under the law is to uphold the decision of the District
Court.
6. Hanging - Cruel -- Unusual Punishment.
as and
Coleman's contention here is that hanging, even if carried

out exactly, so that death results from a broken neck, is cruel
-16-
and unusual punishment.
The State responds that there is no evidence in this
case that shows that death from hanging, when properly carried
out, is anything other than swift and immediate, or that
hanging results in any more suffering than that associated
with electrocution or other modes of execution.
Hanging is the only kind of execution provided by Montana
statutes. The legislature has not seen fit to change it, although
several attempts in recent years have been made to eliminate
capital punishment altogether. In that limited sense, the
legislature has made a choice to continue the present provisions.
We have no power to change these settled provisions of the
law, nor can we say that hanging is constitutionally cruel and
unusual.
7. Disposition.
This opinion in addition to our opinion handed down June
20, 1979, constitutes our decision in this case.
Let remitittur be issued from this Court to the District
and
Court for the purpose of resetting the execution date,/complying
with our opinion and order promulgated June 20, 1979.

We Concur:

- - - --- --- -- - - - - - - - - - - - - - - - - -
Justices
Mr. Justice Daniel J. Shea concurring in part and dissenting
in part:

I concur in the conclusion reached by this Court that
the so-called Sandstrom-type instruction given in this case
was not error. As the Court reasons, the instruction is sub-
stantially different than that which was given in the Sandstrom
case. On the other hand, I do not believe that it was a
model instruction which should be given as a matter of course
in criminal trials.
One of the reasons this Court granted defendant's petition
for rehearing was to consider the impact of the decision of
the United States Supreme Court in Sandstrom v. Montana (19791,
U.S. , 99 S.Ct. 2450, 61 L.Ed.2d 39. We have, moreover,
since hearing this case on the petition for a rehearing, con-
cluded that defendant Sandstrom is entitled to a new trial
based on the opinion of the United States Supreme Court that
we cannot do otherwise unless we find that beyond a reasonable
doubt, the error is harmless. Using that standard, we could
not determine that the error in giving the instruction was
harmless. State v. Sandstrom (1978), Mont . , 580
1 t,b
P.2d 34-4, 35 St.Rep. 744. We therefore ordered a new trial.
Although the instruction given in defendant Coleman's case
was not a Sandstrom-type instruction, I believe that the court
has omitted the strongest fact as to why the instruction, even
assuming it was a carbon-copy of that given in Sandstrom, was
harmless error. The simple fact is that defendant Coleman
that
testified./ he was not present during the homicide; he had
nothing to do with it; and, indeed, that he did not know that
Nank planned to kill Miss Harstad. In essence, the defense
was alibi. In Sandstrom, on the other hand, the defendant
admitted the killing, but his defense was that he did not intend
to kill. There is a world of difference in these two defenses
and so is there a world of difference as to the potential
impact of a Sandstrom-type instruction.
In the Coleman case, Nank testified in lurid detail con-
cerning his and defendant Coleman's plan to kidnap, rape, and
kill Miss Harstad. The jury was thus given two clear choices:
To believe Coleman's alibi defense and thus conclude that Nank
alone planned to and killed Miss Harstad; or, on the other hand,
to believe Nank's testimony which implicated Coleman in a deli-
berate design to kidnap, rape, and kill Miss Harstad. Nank's
testimony, combined with the corroborating evidence implicating
Coleman in the crimes involved, is sufficient beyond a reasonable
doubt, to permit a jury conclusion that Coleman was guilty of
the crimes for which he was convicted. Under these circumstances,
once the jury chose to believe Nank (which, of course, also

implies a determination that Coleman was lying), no presumption
or no inference was needed to help the prosecution's case along.
For this reason, I have no trouble in concluding that even if
the instruction was a carbon-copy of that instruction forbidden
by the Sandstrom case, the error, beyond a reasonable doubt, was

harmless.
The majority has imbellished to an extent upon its original

opinion concerning the other issues decided in the original case,
and I emphasize that I do not agree with these statements and
conclusions.
In the last paragraph of its opinion here, the Court has
stated that its Opinion dated June 20, 1979, together with the
Opinion issued today, shall constitute the opinion in this case.
I dissented to that majority opinion and I state here that such
dissent shall also constitute my views on the questions surrounding
the imposition of the death penalty in this case. Nank's

bargain with the State saved his own life; but this very same

-19-
bargain sealed Coleman's date with the executioner. No

court should sanction such disparate results arising from
the commission of the same crimes. The tragedy of the senseless
killing perpetrated by Nank and Coleman is only compounded by

the senseless killing of Coleman which this Court has today
sanctioned. n

,ix&Ld~/-&
Just