Coleman v. State

No. 81-115
IN THE SUPREME COURT OF THE STATE OF MOEJTANA

1981

DEWEY EUGENE COLEMAN,

Petitioner and Appellant,
-vs-
STATE OF MONTANA,

Respondent and Respondent.

Appeal from: District Court of the Sixteenth Judicial District,
In and for the County of Rosebud, The Honorable
A. B. Martin, Judge presiding.

Counsel of Record:

For Appellant:
. -
Moses Law Firm, Billings, Montana
Charles Moses argued, Billings, Montana
For Respondent:
Hon. Mike Greely argued, Attorney General, Helena,
Plontana
John Maynard argued, Asst. Atty. General, ~ e l e n a ;
Montana
John S. Forsythe argued, County Attorney, Forsyth,
Montana

Submitted: April 29,' 1981

Decided :AUG 2 8 1981

Filed: .4UG 1 8 1981
Mr. J u s t i c e J o h n Conway H a r r i s o n d e l i v e r e d t h e Opinion of
the Court.
Coleman a p p e a l s from a Rosebud C o u n t y D i s t r i c t C o u r t

d i s m i s s a l of h i s p e t i t i o n f o r p o s t - c o n v i c t i o n relief. Title

4 6 , C h a p t e r 2 1 , Montana Code A n n o t a t e d .

None o f the i s s u e s p r e s e n t e d by p e t i t i o n e r on t h i s

appeal a r e based in the underlying f a c t s of the criminal
cause. Therefore, the facts surrounding Coleman's

c o n v i c t i o n f o r t h e d e a t h of Peggy Lee H a r s t a d w i l l n o t be
recited. A f u l l t e x t of t h e s e f a c t s c a n be found i n our

d e c i s i o n o f a n e a r l i e r a p p e a l , S t a t e v . Coleman ( 1 9 7 8 ) , 1 7 7
Mont. 1, 5 7 9 P.2d 732. O p e r a t i v e p r o c e d u r a l f a c t s w i l l be
d i s c u s s e d w i t h r e f e r e n c e t o s p e c i f i c i s s u e s o f f e r e d by t h e
petitioner.
Petitioner Coleman presents eight issues for

r e s o l u t i o n by t h i s C o u r t :
1. Is p o s t - c o n v i c t i o n r e l i e f a new c i v i l a c t i o n o r a

c o n t i n u a t i o n of t h e p r e v i o u s c r i m i n a l c a u s e ?
2. S h o u l d t h e j u d g e h a v e r e c u s e d h i m s e l f when h i s

t e s t i m o n y is r e q u i r e d a s t o c e r t a i n c l a i m e d v i o l a t i o n s ?
3. Is petitioner not entitled to post-conviction

r e l i e f because he h a s been s e n t e n c e d t o d e a t h ?

4. Are c l a i m s o f c o n s t i t u t i o n a l v i o l a t i o n s b a r r e d by
res judicata because t h e y were d e c i d e d i n e a r l i e r Coleman

appeals?
5. Were t h i r t e e n o f C o l e m a n ' s c o n s t i t u t i o n a l c l a i m s
properly dismissed because "they include vague new
a l l e g a t i o n s , t h e y a r e t o o vague t o s t a t e new c l a i m s , o r a r e
unsupported by authority and therefore barred by -
res
judicata"?
6. Were seven of Coleman's constitutional claims
properly dismissed because the "new authority cited is

either inapplicable to petitioner's case or clearly

distinguishable from it leaving the claims barred by -
res

judicata"?

7. Were five of Coleman's constitutional claims

waived " b e c a u s e he f a i l e d t o r a i s e them i n h i s d i r e c t a p p e a l

and b e c a u s e t h e y a r e w i t h o u t m e r i t " ?

I. POST-CONVICTION RELIEF AS CIVIL OR C R I M I N A L ACTION

T h i s Court r e c o g n i z e s t h e unique n a t u r e of t h e p o s t -

conviction remedy. Montana law does not label the

proceeding a s e i t h e r c i v i l or c r i m i n a l , although t h e chapter

providing post-conviction relief is in the criminal

procedure title. Title 46, Chapter 21, Montana Code

Annotated.

The Montana p r o v i s i o n s o f s e c t i o n 46-21-101 e t seq.,

MCA, a r e d e r i v e d from t h e Uniform P o s t C o n v i c t i o n P r o c e d u r e

A c t and a r e e s s e n t i a l l y s i m i l a r t o the federal statute (28

U.S.C. 52255). The f e d e r a l c o u r t s have c o n s i s t e n t l y h e l d

that an action under 28 U.S.C. S2255 is a civil action,

indepe n d e n t of t h e o r i g i n a l c r i m i n a l c o n v i c t i o n . See H e f l i n

v. United States (1959), 358 U.S. 415, 79 S.Ct. 451, 3

L.Ed.2d 407. The same r u l e h a s been a d o p t e d i n o t h e r s t a t e s

which h a v e a d o p t e d t h e u n i f o r m a c t . C l a r k v. State (1969),

92 I d a h o 827, 452 P.2d 54.

In those s t a t e s with similar provisions not neces-

s a r i l y d e r i v i n g from t h e uniform a c t , t h e c o u r t s have been

consistent in their view that post-conviction relief is

civil in nature and independent of the criminal action.

S t a t e v. Hannagan ( A l a s k a 1 9 7 7 ) , 559 P.2d 1059; Noble v.
State (1973), 109 A r i z . 537, 514 P.2d 458; State v.

Richardson (1965), 194 Kan. 471, 399 P.2d 799; Smith v.

State ( 1 9 6 8 ) , 79 N . M . 450, 444 P.2d 961; Noble v. Sigler

(8th Cir. 1 9 6 5 ) , 351 F.2d 673, c e r t . d e n i e d , 385 U.S. 853,

87 S . C t . 98, 17 L.Ed.2d 81, (held only t h a t post-conviction

a p p l i c a t i o n s a r e c i v i l i n n a t u r e ) ; People v. Jones (1975),

30 Ill.App.3d 706, 332 N.E.2d 411; State v. Smith (Mo.

1 9 5 9 ) , 324 S.W.2d 707; T o l a r v . S t a t e ( F l a . 1 9 6 7 ) , 1 9 6 So.2d

1.

Clearly, t h i s is n o t i n t e n d e d t o be a n o t h e r form o f

appeal from a criminal case, but a separate c i v i l action

aimed a t v a c a t i n g , s e t t i n g aside or correcting a sentence.

There i s no Montana case interpreting the nature of the

post-proceeding petition, but the proceeding could be

c l o s e l y analogized t o t h a t seeking a w r i t of habeas corpus

which t h i s Court decided i n 1927 was a n independent c i v i l

proceeding. A u g u s t v . B u r n s ( 1 9 2 7 ) , 79 Mont. 198, 213, 255

P. 737, 741.

I t i s i m p o r t a n t t o n o t e t h a t w e do n o t h e r e i n t e n d t o

erode the fundamental principle discussed below that the

s e n t e n c i n g c o u r t is t h e p r o p e r c o u r t f o r t h e p o s t - c o n v i c t i o n

petition. W a r e mindful t h a t a p a r t y t o a c i v i l a c t i o n is
e

e n t i t l e d t o two s u b s t i t u t i o n s of p r e s i d i n g j u d g e s . Section

3-1-801-4, MCA ( a d o p t e d by o r d e r o f t h i s C o u r t on December

29, 1 9 7 6 , 34 S t . R e p . 26). However, b e c a u s e a n a p p l i c a n t f o r

post-conviction relief is directed by the more specific

provisions of the post-conviction statute to bring the

p e t i t i o n in t h i s Court or i n t h e c o u r t t h a t s e n t e n c e d him,

w e f i n d t h a t t h e two j u d g e d i s q u a l i f i c a t i o n g r a n t o f s e c t i o n

3-1-801-4, MCA, is unavailable to the post-conviction
petitioner. In Montana, when a general statute is in

c o n f l i c t with a s p e c i f i c a c t , the s p e c i f i c s t a t u t e w i l l take

precedence. S e c t i o n 1-2-102, MCA; I n Re C o l e m a n ' s Estate

( 1 9 5 7 ) , 1 3 2 Mont. 339, 317 P.2d 880.

We hold that the Montana post-conviction relief

procedure is civil in nature and independent of the

underlying criminal cause. W w i l l proceed t o consider t h e
e

i s s u e s r a i s e d on t h e a p p e a l t o t h i s C o u r t . Coleman c o n t e n d s

t h a t i t was e r r o r t o d e n y v a r i o u s o f h i s r e q u e s t s w i t h o u t a n

evidentiary hearing. I t is n o t e r r o r t o d e n y an a p p l i c a t i o n

for post-conviction r e l i e f w i t h o u t an e v i d e n t i a r y h e a r i n g i f

the allegations are without merit or would otherwise not

e n t i t l e the petitioner to relief. Clark v. State, supra;

T r a m e l v . S t a t e ( 1 9 6 8 ) , 92 I d a h o 6 4 3 , 448 P.2d 649; D o n n e l l y

v. S t a t e ( A l a s k a 1 9 7 3 ) , 516 P.2d 396 ( a l l e g a t i o n s in post-

c o n v i c t i o n p e t i t i o n were t o o vague and i l l u s o r y t o warrant

e v i d e n t i a r y h e a r i n g ) ; Widermyre v . S t a t e ( A l a s k a 1 9 6 9 ) , 452

P.2d 885; People v. Lyons ( 1 9 7 8 ) , 196 Colo. 384, 585 P.2d

916; Cook v . S t a t e ( 1 9 7 6 ) , 220 Kan. 223, 552 P.2d 9 8 5 .

The decision to admit or deny an application for

post-conviction relief i s a d i s c r e t i o n a r y o n e and o n e t h a t
w i l l n o t be d i s t u r b e d by t h i s C o u r t a b s e n t a c l e a r a b u s e o f

discretion. S e c t i o n 46-21-201, MCA; S t a t e v. Ybarra ( 1 9 7 4 ) ,

22 A r i z . A p p . 330, 527 P.2d 107; Brudos v . Cupp ( 1 9 7 7 ) , 3 1

0r.App. 25, 569 P.2d 680; S u l l i v a n v . S t a t e ( 1 9 7 7 ) , 222 Kan.

222, 564 P.2d 455.

11. RECUSAL OF THE SENTENCING J U D G E

Coleman n e x t m a i n t a i n s t h a t t h e d i s t r i c t j u d g e s h o u l d

have recused himself as presiding judge over his petition
for post-conviction relief i n l i g h t o f t h e f a c t t h a t h e was

the sentencing judge . Petitioner observes that in a

post-conviction proceeding, the sentencing judge would
l i k e l y be c a l l e d t o t e s t i f y a s t o , i n t e r a l i a , t h e p r o p r i e t y

of t h e death sentence. C i t i n g 46 Am.Jur .2d J u d g e s , S91 a t
1 5 8 , Coleman s u b m i t s t h a t a j u d g e s h o u l d e x c u s e h i m s e l f a s a
m a t t e r of c o u r s e i f i t a p p e a r s t h a t h e may be c a l l e d a s a

witness. W disagree.
e

Coleman f a i l s t o r e c o g n i z e t h e c o m p e l l i n g p u r p o s e and
policy considerations behind that portion of the statute

( s e c t i o n 46-21-103, MCA) which d i r e c t s t h a t a p e t i t i o n f o r
post-conviction relief be filed in either the court of

conviction or t h i s Court. S e e a l s o s e c t i o n 46-21-101, MCA

("may p e t i t i o n t h e c o u r t which imposed t h e s e n t e n c e .. .").

H i s t o r i c a l l y , having t h e s e n t e n c i n g judge p r e s i d e a t
t h e s u b s e q u e n t p r o c e e d i ng h a s been e a r n e s t l y advocated f o r
the following reasons: (1) i t reduces the burden on the
D i s t r i c t C o u r t a t t h e p l a c e of c o n f i n e m e n t ; ( 2 ) it reduces

the cost of the proceeding since most of the witnesses
l i k e l y t o be c a l l e d a r e probably in the l o c a l e where t h e

trial occurred; and, (3) the convicting court is more
familiar with t h e t o t a l i t y of t h e f a c t s and c i r c u m s t a n c e s
surrounding the case. Commissioners' Comment, 11 U . L . A .

Post Conviction Procedure §3 (1974). Still another

important consideration was enunciated by Idaho Supreme
Court J u s t i c e Donaldson i n S t i l l v . S t a t e ( 1 9 7 4 ) , 95 I d a h o

"Although it d o e s n ' t m a t t e r whether t h e
p r o c e e d i n g is denominated a s one f o r habeas
c o r p u s o r f o r p o s t - c o n v i c t i o n r e l i e f , i t is
s t i l l n e c e s s a r y t h a t t h e p r o c e d u r e s of t h e
Uniform P o s t - C o n v i c t i o n P r o c e d u r e Act b e
followed. The A c t was d e s i g n e d t o q i v e t h e
 ..................................... n i t i a l
d i s t r i c t c o u r t w h i c h made t h e i
d e t e r m i n a t i o n s a chance t o c o r r e c t anv
mistakes or i r r e q u l a r i t i e s t h a t occurred i n
t h a t court. In addition, t h a t court has
b e f o r e i t a l l t h e f a c t s r e q u i r e d t o make s u c h
a determination. f here fore, t h e a p p l i c a t i o n
o r p e t i t i o n f o r r e l i e f m u s t be f i l e d i n t h e
d i s t r i c t c o u r t where t h e c o n v i c t i o n o c c u r r e d .
I . C . § 19-4902." (Emphasis added.)
This Court is also of the view that the post-
conviction court judge should only recuse himself if the

petitioner shows t h a t t h e j u d g e is t h e source of m a t e r i a l
evidence otherwise unobtainable. A t r i a l judge's f a m i l i a r i t y
with a case does not automatically make him a material

witness in post-conviction proceedings. Bresnahan v. Luby

( 1 9 6 6 ) , 160 Colo. 455, 418 P.2d 1 7 1 , 22 A.L.R.3d 1193. The
Bresnahan c o u r t a l s o emphasized t h e i m p o r t a n c e of t h e t r i a l

judge's f a m i l i a r i t y with t h e c r i m i n a l c a s e which i s b e i n g

c o l l a t e r a l l y a t t a c k e d by t h e c i v i l a c t i o n . The c a s e a t b a r
involved thousands of p a g e s of testimony, briefs, motions

and t r i a l c o u r t r e c o r d s . W a r e mindful of
e t h e d e l a y and
burden on the efficient administration of justice which

would o c c u r if another judge were r e q u i r e d to familiarize
himself or herself with t h i s record for the purposes of a

post-conviction evidentiary hearing. Such d e l a y c a n o n l y be

justified by the strongest showing of materiality and
unavailability of evidence sought t o be adduced from t h e
s e n t e n c i n g judge .
In this case, petitioner never makes it entirely
c l e a r t o t h i s C o u r t j u s t what t e s t i m o n y h e hoped t o e l i c i t
from the district judge. Abstract excursions into the
m e n t a l p r o c e s s e s o f t h e s e n t e n c i n g j u d g e do n o t j u s t i f y t h e
p r o forma r e c u s a l of a j u d g e who i s f u l l y a c q u a i n t e d w i t h
the case. I t a p p e a r s t h a t a t b e s t p e t i t i o n e r was a t t e m p t i n g
to embark on a fishing trip, hoping to uncover damaging

testimony about the fairness of the sentence. Such a

d i s c o v e r y p r o c e d u r e would n o t b e allowed w i t h any w i t n e s s

b u t i s e s p e c i a l l y s u s p e c t when d i r e c t e d a t t h e t r i a l j u d g e .

S e e Moore v . P e o p l e ( 1 9 7 1 ) , 174 C o l o . 570, 485 P.2d 1 1 4 .

We find, therefore, that unless some specific and

compelling evidence is sought to be adduced from the

testimony of t h e s e n t e n c i n g j u d g e and s u c h e v i d e n c e c a n be

f o u n d nowhere e l s e , f o r many s u b s t a n t i a l reasons the t r i a l

judge should also preside over a petition for post-

conviction r e l i e f . The A c t itself lends credence t o t h i s

l i n e of reasoning, and it c a n be e a s i l y i n f e r r e d t h a t t h e

legislature, in providing that a post-conviction petition

s h o u l d be filed i n t h e c o u r t of conviction, intended t h a t

the sentencing judge preside over the post-conviction

proceeding. The s t a n d a r d o f proof regarding the necessity

of a sentencing judge's testimony is high; only the

s t r o n g e s t showing o f m a t e r i a l i t y and u n a v a i l a b i l i t y w a r r a n t s

recusal. S e e I n R e C o n t i n e n t a l V e n d i n g Machine C o r p . (2nd

Cir. 1976), 543 F.2d 986. The reasons a d v a n c e d by p e t i -

tioner for recusal of the trial judge were simply not

s u f f i c i e n t t o j u s t i f y a s u b s t i t u t i o n of judges.

111. APPLICABILITY OF POST-CONVICTION PROCEDURE TO CAPITAL
CONVICTIONS

I n r e g a r d t o t h e t h i r d i s s u e , s e c t i o n 46-21-101, MCA,

recites in applicable part:

" C i r c u m s t a n c e s i n which v a l i d i t y o f s e n t e n c e
may be c h a l l e n q e d . A p e r s o n adTudged g u i l t y
o f an o f f e n s e i n a c o u r t o f r e c o r d who h a s no
a d e q u a t e remedy o f a p p e a l . . .may p e t i t i o n
t h e c o u r t which imposed t h e s e n t e n c e , t h e
supreme c o u r t , o r a n y j u s t i c e o f t h e supreme
court t o vacate, s e t aside, or correct the
 sentence."

T h i s Court has n o t s p e c i f i c a l l y addressed t h e ques-

t i o n of whether c a p i t a l l y - s e n t e n c e d defendants a r e e n t i t l e d

t o t h e p r o t e c t i o n s of t h e post-conviction r e l i e f s t a t u t e , or

whether t h e a u t o m a t i c s e n t e n c e r e v i e w s t a t u t e , s e c t i o n 46-

18-307 e t s e q . , MCA, s t a n d s i n t h e p l a c e of post-conviction

relief. W e a r e a w a r e o f t h e l a n g u a g e o f Mr. J u s t i c e S h e e h y

i n S t a t e v. Coleman ( 1 9 7 9 ) , - Mont. , 605 P.2d 1000,

1006, 36 S t . R e p . 1134, 1135, cert. denied, - U.S. 1

100 S . C t . 2952, L.Ed.2d , w h e r e i n he w r i t e s :

" B e c a u s e t h e r e v i e w c o n d u c t e d by t h i s C o u r t
[pursuant t o t h e automatic review p r o v i s i o n s
o f s e c t i o n 46-18-307 t h r o u g h s e c t i o n 46-18-
3 1 0 , MCA] s t a t u t o r i l y s t a n d s i n p l a c e o f a n y
r e c o u r s e t o t h e S e n t e n c e Review D i v i s i o n , t h e
c o m p l e t i o n o f t h i s r e v i e w w i l l mark t h e end
o f s t a t e a c t i o n upon t h i s c a u s e , e x c e p t i n g
a n y a c t i o n upon a p e t i t i o n f o r r e h e a r i n g . "
(Emphasis added. )

But c f . , S t a t e v . McKenzie ( 1 9 7 8 ) , 1 7 7 Mont. 280, 322, 581

That language, a s noted, only specifically pertains

t o t h e s e n t e n c e r e v i e w p r o c e d u r e and o n l y g e n e r a l l y c o u l d i t

be interpreted to represent a bar to the utilization of

post-conviction procedure. The p o s t - c o n v i c t i o n s t a t u t e does

n o t l i m i t its p r o v i s i o n s t o noncapitally-sentenced persons,

nor does t h e automatic review s t a t u t e herald itself a s an

e x c l u s i v e remedy. Such a n i n t e r p r e t a t i o n would h a v e t o be

inferred from the nature of the statutes and policies

involved. W do n o t b e l i e v e t h a t s u c h a n i n t e r p r e t a t i o n c a n
e

be g i v e n t o t h e s e s t a t u t e s .

In arriving a t t h i s conclusion, t h e p l a i n meaning o f

the post-conviction s t a t u t e is p a r t i c u l a r l y p e r s u a s i v e . The

statute provided that "a person adjudged guilty of an
o f f e n s e " is e n t i t l e d t o a c c e s s t o t h e p o s t - c o n v i c t i o n p r o c e -

dure. If the legislature intended this statute to be
a p p l i e d o n l y i n n o n c a p i t a l s e n t e n c e s , w e must c o n c l u d e t h a t

i t would h a v e e x p r e s s l y done s o . The t e r m s o f " a p e r s o n " o r

" a n y p e r s o n " and " a c r i m e " o r " a n y c r i m e " a r e g e n e r i c t e r m s

e n c o m p a s s i n g a v e r y b r o a d s p e c t r u m o f a c t s and a c t o r s . Any
l i m i t a t i o n on t h e g r a n t o f r e v i e w i n p o s t - c o n v i c t i o n proce-
d u r e s m u s t b e made by t h e l e g i s l a t u r e . It is c l e a r l y n o t
t h e power of t h i s Court t o i n t e r p r e t t h e l a w i n a manner
contrary t o legislative intent. S e e American L i n e n S u p p l y

Co. v . DOR ( 1 9 8 0 ) , Mont. , 617 P.2d 1 3 1 , 37 S t . R e p .
1 7 0 7 ; Dunphy v . Anaconda Co. ( 1 9 6 8 ) , 1 5 1 Mont. 7 6 , 438 P.2d

Although t h e S t a t e a r g u e s p e r s u a s i v e l y r e g a r d i n g t h e
l e g i s l a t u r e ' s i n t e n t r e g a r d i n g f i n a l i t y o f s e n t e n c e s , we do

not believe that the "plain meaning" of the statute
demonstrates its inapplicability t o capitally-sentenced
offenders. Though aware of these competing legislative

interests, t h i s C o u r t d o e s n o t h a v e t h e power t o g o beyond

t h e c l e a r and u n e q u i v o c a l p r o v i s i o n s o f t h e l a w .

IV. APPLICABILITY OF RES J U D I C A T A TO PETITION FOR POST-
CONVICTION R E L I E F

Montana l a w is b e r e f t of any d e c i s i o n on w h e t h e r t h e
d o c t r i n e o f r e s j u d i c a t a is a p p l i c a b l e t o a p r a y e r f o r p o s t -
conviction r e l i e f . A s a g e n e r a l p r o p o s i t i o n , we h a v e h e l d :

"The d o c t r i n e o f r e s j u d i c a t a s t a t e s t h a t a
f i n a l judgment on t h e m e r i t s by a c o u r t o f
competent j u r i s d i c t i o n is c o n c l u s i v e a s t o
c a u s e s of a c t i o n o r i s s u e s t h e r e b y l i t i g a t e d ,
a s t o t h e p a r t i e s and t h e i r p r i v i e s , i n a l l
o t h e r a c t i o n s i n t h e same o r a n y o t h e r
j u d i c i a l t r i b u n a l of concurrent jurisdic-
tion." Meagher Co. Water D i s t . v . W a l t e r
( 1 9 7 6 ) , 1 6 9 Mont. 358, 361, 547 P.2d 8 5 0 ,
 The d o c t r i n e b a r s r e c o n s i d e r a t i o n o f a n i s s u e i f f o u r
elements a r e present: " ( 1 ) t h e p a r t i e s or t h e i r p r i v i e s must

b e t h e same; ( 2 ) the subject-matter of t h e a c t i o n must be
t h e same; ( 3 ) t h e i s s u e s m u s t be t h e same, and m u s t r e l a t e

t o t h e same s u b j e c t - m a t t e r ; and ( 4 ) t h e c a p a c i t i e s of the
p e r s o n s m u s t be t h e same i n r e f e r e n c e t o t h e s u b j e c t - m a t t e r

and t o t h e i s s u e b e t w e e n t h e m . " Brannon v . Lewis and C l a r k
C o u n t y ( 1 9 6 3 ) , 1 4 3 Mont. 200, 207-208, 387 P.2d 706, 711.

A s i d e from t h e b a r of res judicata, t h i s Court has

consistently refused t o allow r e l i t i g a t i o n i n a c o l l a t e r a l
proceeding of i s s u e s determined i n a d i r e c t appeal, I n Re
Q u i g g ( 1 9 7 6 ) , 1 6 8 Mont. 5 1 2 , 544 P.2d 441, and S p u r l o c k v .

C r i s t (1980), Mont. , 614 P.2d 4 9 8 , 501, 37 S t . R e p .
1146, in some cases by reaffirming the prior holdings.

D i g i a l l o n a r d o v. B e t z e r ( 1 9 7 3 ) , 1 6 3 Mont. 1 0 4 , 1 0 5 , 515 P.2d

705. Accord, Orricer v. State (1970), 8 5 S.D. 293, 181
N.W.2d 461.
I n l i g h t of t h e d e a r t h , i f n o t complete absence, of

g u i d i n g Montana c a s e law i n t h i s r e g a r d , a r e v i e w o f t h e l a w
a s i t h a s e v o l v e d and d e v e l o p e d w i t h r e g a r d t the applica-
k. r3&
b i l i t y o f r e s j u d i c a t a t o t h e F e d e r a l Act,-;;I..2-'U.S.C. S2255,

w i l l aid.
H i s t o r i c a l l y the p r i n c i p l e of res judicata was n o t

seen t o apply t o w r i t s of habeas corpus or p e t i t i o n s f o r

relief under S2255. See, Sokol, Federal Habeas Corpus
S21.5; cf ., K e l l e y , F i n a l i t y and H a b e a s C o r p u s , 78 W.Va. Law
Rev. 1 (1975). However, a new r u l e h a s been recognized
r e g u l a t i n g s u c c e s s i v e f e d e r a l m o t i o n s on g r o u n d s p r e v i o u s l y
h e a r d and d e t e r m i n e d . I n Sanders v. United S t a t e s ( 1 9 6 3 ) ,
373 U.S. 1, 83 S . C t . 1 0 6 8 , 1 0 L.Ed.2d 148, t h e Court s t a t e d :

" C o n t r o l l i n g w e i g h t may be g i v e n t o d e n i a l of
a p r i o r a p p l i c a t i o n f o r f e d e r a l habeas corpus
o r 52255 r e l i e f o n l y i f ( 1 ) t h e same g r o u n d
p r e s e n t e d i n t h e s u b s e q u e n t a p p l i c a t i o n was
d e t e r m i n e d a d v e r s e l y t o t h e a p p l i c a n t on t h e
p r i o r a p p l i c a t i o n , ( 2 ) t h e p r i o r determina-
t i o n was on t h e m e r i t s , and ( 3 ) t h e e n d s o f
j u s t i c e would n o t be s e r v e d by r e a c h i n g t h e
m e r i t s of t h e su b s e q u e n t a p p l i c a t i o n . " 373
U.S. a t 1 5 .
Where a t r i a l o r a p p e l l a t e c o u r t h a s d e t e r m i n e d t h e
f e d e r a l p r i s o n e r ' s c l a i m , d i s c r e t i o n may i n a p r o p e r c a s e be

e x e r c i s e d a g a i n s t t h e g r a n t o f a 52255 h e a r i n g . Where t h e

trial or appellate court has considered and decided a

f e d e r a l p r i s o n e r ' s c l a i m , i t may be o p e n t o t h e 52255 c o u r t

t o determine t h a t , on t h e b a s i s o f t h e m o t i o n s , f i l e s and
records, the prisoner is entitled to no relief. See
Thornton v. United States (D.C. Cir. 1 9 6 6 ) , 368 F.2d 822

( d i s s e n t i n g o p i n i o n of W r i g h t , J . ) .
The r e s j u d i c a t a r u l e h a s now come t o a p o i n t i n i t s
e v o l u t i o n where i t c a n be s a i d w i t h c e r t a i n t y t h a t a " g r o u n d

for relief previously considered on a p p e a l from a f e d e r a l
prisoner 's conviction cannot be reconsidered on a motion

attacking sentence under 28 U . S . C . S . 52255." Torcia,

Wharton's Criminal Procedure, S649 a t 401 ( 1 9 7 6 ) and c a s e s

cited therein.
Res j u d i c a t a c a n n o t be a p p l i e d i n s u c h a manner a s t o
deprive Coleman of the right to file a post-conviction

p e t i t i o n and t o u s e p o s t - c o n v i c t i o n p r o c e d u r e . However, res
j u d i c a t a c a n be u s e d t o b a r t h e r e h e a r i n g o f i s s u e s a l r e a d y
l i t i g a t e d under the rule in Sanders. This interpretation
preserves the Montana post-conviction remedy by requiring
judicial i n q u i r y i n t o t h e p r o p r i e t y o f t h e s e n t e n c e and o f

the detention, while preventing abuse of t h e p r o c e d u r e by
relitigation of a claim previously considered and found

insufficient. A s discussed i n S a n d e r s , r e l i t i g a t i o n would
mean a w a s t e o f j u d i c i a l e f f o r t , r i s k i n g a c l u t t e r i n g o f t h e
court's limited resources with collateral attacks already
decided on the merits. As one court put it, "judicial

economy d i c t a t e s r e s t r i c t i v e l i m i t a t i o n s on r e r u n s . " United

S t a t e s e x r e l . Townsend v . Twomey ( 7 t h C i r . 1 9 7 1 ) , 452 F.2d
3 5 0 , 3 5 7 , c e r t . d e n i e d , 409 U.S. 854. Some s t a t e s h a v e g o n e

beyond S a n d e r s and statutorily prohibit more than one
c o l l a t e r a l a t t a c k on a s i n g l e c o n v i c t i o n . See 111.Ann.Stat.
C. 3 8 , 9 122-3 ( 1 9 6 4 ) ; M0.Sup.Ct.R. 2 7 . 2 6 ( d ) ; Wyo.Stat.Ann.

Tit. 7 , S 7-408.3 (1963).
We, therefore, adopt the Sanders criteria as

p r e v i o u s l y quoted i n t h i s opinion. W e a f f i r m t h e holding of

t h e D i s t r i c t Court t h a t the following twenty-seven issues

h a v e b e e n c o n s i d e r e d p r e v i o u s l y and d e c i d e d by t h i s C o u r t

and Coleman h a s a l l e g e d no new f a c t s o r l a w w i t h r e s p e c t t o
t h e s e i s s u e s which r e q u i r e a d d i t i o n a l c o n s i d e r a t i o n s : F, G ,

H , I , J , L , M , N , P , R , S , T , V , W , Y , Z , A A , D D , G G , H H ,

11, J J , K K , L L , MM, NN, and P P .

V. VAGUENESS AS BAR TO EVIDENTIARY H E A R I N G
The l o w e r c o u r t d e n i e d t h i r t e e n of Coleman's c l a i m s

because t h e y were t o o vague to s t a t e new c l a i m s o r were
u n s u p p o r t e d by a u t h o r i t y and w e r e , t h e r e f o r e , b a r r e d b y r e s
judicata. The State argued in the District Court that
" v a g u e new a l l e g a t i o n s " d o n o t p r e s e n t a p r o p e r b a s i s f o r
review. W agree.
e
Vague r e h a s h i n g s o f i s s u e s p r e v i o u s l y a d j u d i c a t e d by

a c o u r t of competent j u r i s d i c t i o n will n o t make u n w o r t h y
claims magically meritorious. Naked a l l e g a t i o n s of injus-

t i c e c a n n o t c o n s t i t u t e new g r o u n d s o r p r o v i d e any b a s i s f o r

relief. Cf. Hooker v. People ( 1 9 7 0 ) , 173 Colo. 226, 477

P.2d 376. Again, we m u s t d e f e r t o t h e d i s c r e t i o n of the

District Court i n determining if the claims made in the

petition are valid or merely previously decided issues in

disguise. Andrews v. Morris (Utah 1 9 8 0 ) , 607 P.2d 816,

cert. denied, 446 U.S. 949, 101 S.Ct. 254, 66 L.Ed.2d 120.

Moreover, t h i s Court w i l l not disturb the post-conviction

court's judgment in this regard absent a clear abuse of

discretion. S e e Redd v. State ( 1 9 6 7 ) , 199 Kan. 431, 429

P.2d 925 (emphasizing great discretion in the post-

conviction court to make initial judgments regarding

v a l i d i t y and s u b s t a n c e o f c l a i m s ) .
W a f f i r m t h e h o l d i n g of t h e D i s t r i c t C o u r t t h a t t h e
e

following thirteen issues or claims a r e dismissed as -
res

j u d i c a t a b e c a u s e t h e vague new a l l e g a t i o n s do n o t a f f e c t t h e

v a l i d i t y of t h e p r i o r d e t e r m i n a t i o n of t h i s Court: B, E, K,

Q, U , X, CC, EE, FF, 0 0 , QQ, RR, and X X .

VI. APPLICABILITY OF NEWLY DEVELOPED AUTHORITY

W n e x t c o n s i d e r Coleman's c o n t e n t i o n
e t h a t seven of

h i s c l a i m s were n o t p r o p e r l y d i s m i s s e d on t h e g r o u n d s t h a t

t h e new a u t h o r i t y c i t e d was e i t h e r inapplicable or c l e a r l y

distinguishable, l e a v i n g t h e c l a i m s b a r r e d by r e s j u d i c a t a .

C a s e s h a v e r e c o g n i z e d t h a t a 1t h o u g h p a r t i c u l a r i s s u e s have

been a d d r e s s e d and d e t e r m i n e d a d v e r s e l y t o a p r i s o n e r on a

direct appeal, a post-conviction court may nevertheless

consider such m a t t e r s where there has been a substantial

change i n t h e a p p l i c a b l e law. United S t a t e s v. Sorenson (D.
N.Y. 1 9 7 0 ) , 308 F.Supp. 1 2 6 8 ; Robson v . U n i t e d S t a t e s (1st

Cir. 1975), 526 F . 2 d 1145. As t o t h e s e s e v e n claims, we

n o t e t h a t no e v i d e n t i a r y h e a r i n g i s r e q u i r e d s i n c e t h e s e a r e
questions of law o n l y which a r e i n v o l v e d . A c o u r t may, of
course, conclude that the changes in the law are

inapplicable to petitioner's case. Robinson v. United
States (D. Ky. 1967), 264 F.Supp.146, aff'd, (6th Cir.
1968), 394 F.2d 8 2 3 , c e r t . d e n i e d , 3 9 3 U.S. 1057, 89 S.Ct.
698, 2 1 L.Ed.2d 698, reh. denied, 393 U.S. 1124, 89 S . C t .
9 9 7 , 22 L.Ed.2d 133.

W e h a v e r e v i e w e d C o l e m a n ' s s e v e n c l a i m s and f i n d t h a t

the cases cited by Coleman are distinguishable. We
therefore affirm the District Court's holding that the
f o l l o w i n g s e v e n c l a i m s a r e b a r r e d b y r e s j u d i c a t a a s t h e new
a u t h o r i t y c i t e d is i n a p p l i c a b l e o r c l e a r l y d i s t i n g u i s h a b l e :
A, C, D , 0 , BB, TT, a n d W.

VII. DISMISSAL ON GROUNDS OF WAIVER AND LACK OF MERIT
The D i s t r i c t C o u r t h e l d t h a t f i v e o f C o l e m a n ' s claims

w e r e d i s m i s s e d b e c a u s e h e f a i l e d t o r a i s e them on h i s d i r e c t

appeal. The District Court further found that the five
claims were without merit. Because the post-conviction
procedure is a new civil remedy, the failure t o present

claims in earlier proceedings would not bar them from
p r e s e n t a t i o n a t t h i s time. However, w e have reviewed t h e
c l a i m s and f i n d t h e same t o b e u n m e r i t o r i o u s . I t was not
e r r o r f o r t h e c o u r t t o d e n y them s u m m a r i l y . Sanders, supra;
Widermyre v . State ( A l a s k a 1 9 6 9 ) , 452 P . 2 d 885; S t a t e v.
Richmond ( 1 9 7 7 ) , 114 A r i z . 1 8 6 , 560 P.2d 4 1 , c e r t . d e n i e d ,
433 U.S. 915, 97 S . C t . 2988, 53 L.Ed.2d 1101; People v.
Trujillo ( 1 9 7 6 ) , 190 C o l o . 497, 549 P.2d 1 3 1 2 ; Andrews v .
Morris, supra.

W a f f i r m t h e d i s m i s s a l by t h e D i s t r i c t C o u r t o f t h e
e
f o l l o w i n g c l a i m s on t h e b a s i s t h a t t h e y a r e w i t h o u t m e r i t :

SS, U U , WW, Y Y , and Z Z .
Two hearings were held, with petitioner an6 his
attorney present, on t h e f o l l o w i n g d a t e s , J u n e 1 4 , 1978 and

J u l y 1 6 and 1 9 , 1 9 7 8 . A t t h e J u n e 14 h e a r i n g , counsel for
petitioner noted t o t h e c o u r t t h a t i n view of the fact a

p r e s e n t e n c e r e p o r t had b e e n p r e p a r e d , h e was n o t p r e s e n t i n g
an a d d i t i o n a l r e p o r t . The p r e s e n t e n c e r e p o r t c o n t a i n e d t h e
i n f o r m a t i o n t h a t p e t i t i o n e r had n e v e r b e e n c o n v i c t e d o f a n y
prior felony prior to the present charge. Counsel for
p e t i t i o n e r noted:

"May t h e r e c o r d show t h a t on b e h a l f o f t h e
d e f e n d a n t , we a r e n o t g o i n g t o c a l l t h i s
g e n t l e m a n [ p r o b a t i o n o f f i c e r Thomas L o f l a n d ]
t o t h e stand a t t h i s time f o r examination.
T h a t d o e s n o t mean we a g r e e w i t h t h e r e p o r t ,
s i m p l y t h a t we a r e n o t g o i n g t o c a l l him a s a
witness.

"THE COURT: Very w e l l . Now t h e announcement
t h a t t h e defense does n o t intend t o produce
any ... c a l l any w i t n e s s e s t o e s t a b l i s h any
mitigating circumstances, the Court has
b e f o r e it a l l m a t t e r s d u r i n g t h e c o u r s e of
t h e t r i a l , heard t h e testimony r e l a t i n g t o
t h e a g g r a v a t i n g c i r c u m s t a n c e s and a l s o some
mitigating circumstances . . ."
Thereafter, t h e c o u r t requested each s i d e t o submit
proposed f i n d i n g s of fact, conclusions of law and b r i e f s .

Both the petitioner and t h e S t a t e having submitted their
b r i e f s and f i n d i n g s and c o n c l u s i o n s , t h e c o u r t h e l d a s e c o n d
h e a r i n g on J u l y 1 0 , 1 9 7 8 .
At t h e beginning of the July 10 h e a r i n g , the t r i a l
judge submitted t o p e t i t i o n e r ' s c o u n s e l and S t a t e c o u n s e l

his findings and conclusions and thereafter counsel for
petitioner read into the record a prepared statement in

mitigation. With t h i s r e c o r d b e f o r e u s , w e c a n n o t f a u l t t h e
t r i a l c o u r t i n t h e s e n t e n c i n g of p e t i t i o n e r . Petitioner, a t
the f i r s t hearing, did not t e s t i f y in mitigation, declined
t o examine t h e o f f i c e r who p r e p a r e d t h e p r e s e n t e n c e r e p o r t ,
and was g i v e n a n o p p o r t u n i t y t o s u b m i t b o t h f u r t h e r b r i e f s

on t h e s e n t e n c i n g and h i s p r o p o s e d f i n d i n g s and c o n c l u s i o n s .
To now allege that he was denied due process and an
o p p o r t u n i t y t o p r e s e n t h i s a r g u m e n t is w i t h o u t m e r i t .

H e r e t h e t r i a l c o u r t was f a c e d w i t h some f o r t y - n i n e

separate claims for relief. While Carter v. Illinois
( 1 9 4 6 ) , 329 U.S. 1 7 3 , 67 S . C t . 2 1 6 , 9 1 L.Ed. 172, holds t h a t

s t a t e s are free t o devise their own s y s t e m s o f review of
c r i m i n a l c a s e s , t h e s y s t e m , a s i l l u s t r a t e d i n t h i s c a s e , now
a l l o w s p e t i t i o n e r two a p p e a l s , a r e s u l t n o t c o n t e m p l a t e d by
the legislature. The J u l y 1 0 h e a r i n g indicates that the

t r i a l judge, i n pronouncing s e n t e n c e , s t a t e d :
" I n pronouncing s e n t e n c e I do want t h e
p a r t i e s t o know t h a t t h i s i s e x t r e m e l y
a g o n i z i n g f o r t h e c o u r t t o make. I have n o t
looked a t t h e p o i n t s t h a t have been r a i s e d
l i g h t l y , b u t many o f t h e a r g u m e n t s r a i s e d by
t h e d e f e n s e , of c o u r s e have been c o n s i d e r e d
h e r e t o f o r e , and t h e j u r y h a s f o u n d f r o m t h e
f a c t u a l s t a n d p o i n t t h a t t h e d e f e n d a n t was
g u i l t y , beyond a r e a s o n a b l e d o u b t , and I do
not disagree with t h a t conclusion of t h e
jury. One m i t i g a t i n g c i r c u m s t a n c e i s t h a t
t h e defendant has n o t p r i o r t o t h i s t i m e been
c o n v i c t e d o f any f e l o n y , b u t i n v i e w o f t h e
e n o r m i t y o f t h e c r i m e c o m m i t t e d , and t h e
c o u r t ' s f e e l i n g t h a t t h i s one c i r c u m s t a n c e
d o e s n o t overcome t h e a g g r a v a t e d circum-
s t a n c e s , I h a v e made t o t h e e f f e c t , w r i t t e n
f i n d i n g s a s r e q u i r e d by l a w . Also I have
made c o n c l u s i o n s and judgment which h a v e been
f u r n i s h e d t o t h e d e f e n d a n t and t h e s t a t e a t
t h i s t i m e , and I w i l l o n l y a t t h i s t i m e r e a d
t h e c o u r t ' s c o n c l u s i o n s and j u d g m e n t . "

The s e n t e n c e and judgment a r e a f f i r m e d . The D i s t r i c t
C o u r t is d i r e c t e d t o s c h e d u l e a new d a t e f o r e x e c u t i o n .

W concur:
e

8L-Ld. q - i f i Q - 7 ~
Chief J u s t i c e

/
Justices

ono or able"^. ~4 L
D i s t r i c t Judge, s
p l a c e o f Mr. ~ u s t i c kJ o h n C.
Sheehy
Mr. J u s t i c e Frank B . Morrison, J r . , d i s s e n t i n g :

I respectfully dissent.

The f i r s t problem w i t h t h i s c a s e i s t h a t t h e d e f e n d a n t ' s

c o n v i c t i o n was based upon accomplice t e s t i m o n y which was n o t

s u f f i c i e n t l y c o r r o b o r a t e d by i n d e p e n d e n t e v i d e n c e . The

t r i a l c o u r t s h o u l d have d i r e c t e d a v e r d i c t i n d e f e n d a n t ' s

b e h a l f a t t h e t i m e of t r i a l . I w i l l q u o t e e x t e n s i v e l y from

t h e t r a n s c r i p t t o show t h a t t h e s t a t e ' s c a s e f a i l e d .

The second p a r t of t h e d i s s e n t w i l l d e a l w i t h i m p o s i t i o n

of t h e d e a t h p e n a l t y . That discussion concerns aggravating

c i r c u m s t a n c e s v e r s u s m i t i g a t i n g c i r c u m s t a n c e s and t h e c o n d i t i o n s

under which t h e d e a t h p e n a l t y may be imposed.

The d e f e n d a n t , Dewey Eugene Coleman, and R o b e r t Nank

met a t t h e V e t e r a n ' s H o s p i t a l i n S h e r i d a n , Wyoming. Coleman

was b e i n g t r e a t e d f o r d e p r e s s i o n . Nank had a h i s t o r y of

mental i l l n e s s .

Coleman and Nank were d i s c h a r g e d from t h e V e t e r a n ' s

H o s p i t a l and came t o Montana on Nank's m o t o r c y c l e . They

" r a n o u t of g a s " between Roundup, Montana and F o r s y t h ,

Montana, d u r i n g t h e e v e n i n g h o u r s of J u l y 4 , 1974. Coleman

t e s t i f i e d t h a t they unsuccessfully t r i e d t o hitchhike t o the

n e a r e s t town f o r t h e p u r p o s e of s e c u r i n g some g a s o l i n e . It

began t o g e t d a r k and Coleman s t a t e d t h a t , s i n c e Coleman was

b l a c k , he was i m p a i r i n g t h e i r a b i l i t y t o o b t a i n a r i d e and

Nank d i r e c t e d him t o h i d e h i m s e l f . Thereafter, according t o

Coleman, Nank was a b l e t o s t o p a v e h i c l e and o b t a i n a r i d e .

Coleman t e s t i f i e d t h a t Nank l e f t w i t h t h e d r i v e r and headed

i n t h e d i r e c t i o n of F o r s y t h . Coleman s a i d t h a t Nank r e t u r n e d

d r i v i n g t h e c a r sometime l a t e r and t h a t he was w e t and

emotionally upset. Nank i n s t r u c t e d Coleman t o remove t h e i r

t h i n g s from t h e m o t o r c y c l e and come w i t h him. Coleman
obeyed. They d r o v e , what was l a t e r d e t e r m i n e d t o be t h e

H a r s t a d v e h i c l e , p a s t F o r s y t h i n t h e d i r e c t i o n o f Rosebud.

Nank s t o p p e d between F o r s y t h and Rosebud and p i c k e d up

something which a p p e a r e d t o be a b l a n k e t . He a l s o s t o p p e d

a t a b a r i n Rosebud and o b t a i n e d two Cokes. He a d v i s e d

Coleman t h a t he had k i l l e d a woman. Nank headed back toward

F o r s y t h and t h e H a r s t a d v e h i c l e " r a n o u t of g a s " . According

t o Coleman, Nank went i n t o a f i e l d and h i d something.

Coleman was d i r e c t e d t o c a r r y a woman's p u r s e , which he d i d .

Coleman looked i n t h e p u r s e , found no money and, p u r s u a n t t o

Nank's d i r e c t i o n s , threw t h e p u r s e i n t o a c u l v e r t . The two

t h e n walked t o F o r s y t h , a r r i v i n g t h e r e i n t h e e a r l y morning

hours. Nank o b t a i n e d g a s o l i n e i n a can and h i t c h h i k e d back

t o t h e m o t o r c y c l e . Nank r e t u r n e d f o r Coleman and t h e y l e f t .

Coleman s t a t e d t h a t t h e y e v e n t u a l l y went t o B o i s e , I d a h o ,

where t h e y r e n t e d a n a p a r t m e n t and l i v e d u n t i l t h e t i m e of

their arrest. Coleman s t a t e d t h a t he d i d n o t r e p o r t Nank t o

t h e a u t h o r i t i e s b e c a u s e h e was a f r a i d of Nank and b e c a u s e he

was a f r a i d of b e i n g i m p l i c a t e d .

Nank's t e s t i m o n y d e p a r t s from Coleman's a t t h e p o i n t

t h a t t h e v i c t i m , Peggy H a r s t a d , s t o p p e d t o g i v e Nank a r i d e .

I n c o n t r a s t t o Coleman's t e s t i m o n y t h a t Nank l e f t a l o n e w i t h

t h e young woman, Nank t e s t i f i e d t h a t Coleman went w i t h him.'

He t e s t i f i e d t h a t Coleman was s e a t e d i n t h e r i g h t f r o n t s e a t

and h e , Nank, was i n t h e middle n e x t t o t h e d r i v e r . Nank

s t a t e d t h a t a s t h e y proceeded toward F o r s y t h he asked Peggy

H a r s t a d t o s t o p t h e v e h i c l e s o t h a t he c o u l d u r i n a t e . He
s t a t e d t h a t he and Coleman g o t o u t of t h e v e h i c l e and u r i n a t e d

b e s i d e i t . They t h e n r e t u r n e d t o t h e v e h i c l e and headed

towards F o r s y t h . A s t h e y approached F o r s y t h , Nank t e s t i f i e d

t h a t he t u r n e d t h e i g n i t i o n key o f f and maneuvered t h e

v e h i c l e t o t h e s i d e of t h e r o a d . Nank t i e d Peggy ~ a r s t a d ' s
hands t o g e t h e r w i t h a y e l l o w nylon r o p e . He removed h e r

c l o t h i n g e x c e p t f o r h e r b l o u s e . He a t t e m p t e d t o have s e x u a l

i n t e r c o u r s e with her b u t could n o t maintain an e r e c t i o n . He

t e s t i f i e d t h a t Coleman t h e n " g o t i n t h e b a c k s e a t " w i t h Peggy

H a r s t a d and had s e x u a l i n t e r c o u r s e w i t h h e r w h i l e Nank, now

s t a n d i n g on t h e o u t s i d e o f t h e c a r , h e l d o n t o h e r f o o t .

Nank t e s t i f i e d t h a t he t h e r e a f t e r d r e s s e d t h e v i c t i m

and t h e y d r o v e around d e c i d i n g what t o do. E v e n t u a l l y Nank

s t a t e d t h a t Coleman d e c i d e d t o k i l l Peggy H a r s t a d . Nank

t h e n claimed t h a t he threw t h e v i c t i m o v e r h i s s h o u l d e r ,

w i t h h e r hands s t i l l t i e d , and headed down toward t h e Yellowstone

River. He s t a t e d t h a t Dewey Coleman h i t h e r on t o p of t h e

head c o n t i n u o u s l y w i t h a m o t o r c y c l e h e l m e t and t h a t t h e n

Coleman a t t e m p t e d t o s t r a n g l e h e r w i t h t h e y e l l o w nylon

rope. H e s t a t e d t h a t when t h i s d i d n o t k i l l t h e v i c t i m t h a t

h e , Nank, h e l d h e r head under w a t e r i n t h e Yellowstone R i v e r

u n t i l s h e drowned.

Nank a l s o r e l a t e d how h e and Coleman went t o B o i s e ,

I d a h o , o b t a i n e d a n a p a r t m e n t and c o n t i n u e d t o l i v e u n t i l t h e

t i m e of t h e a r r e s t . Following t h e i r a r r e s t , Nank and t h e

d e f e n d a n t were i n t e r r o g a t e d by law e n f o r c e m e n t o f f i c i a l s i n

B o i s e , Idaho. Coleman m a i n t a i n e d h i s i n n o c e n c e , b u t Nank

c o n f e s s e d and a g r e e d t o t e s t i f y a g a i n s t Coleman.

The t e s t i m o n y of a n accomplice i s viewed w i t h s u s p i c i o n

b e c a u s e t h e r e i s a s t r o n g motive f o r l y i n g . In t h i s case a

number of law e n f o r c e m e n t t e c h n i q u e s were used t o o b t a i n a

c o n f e s s i o n from Nank. A p o l i c e o f f i c e r admitted t e l l i n g

Nank, though i t was n o t t r u e , t h a t he had w i t n e s s e d a hanging

and t h a t i t was gruesome. He f u r t h e r t o l d Nank, though i t
was n o t t r u e , t h a t Coleman had c o n f e s s e d and blamed ~ a n k o r
f

t h e murder. Nank t h e r e a f t e r e x h i b i t e d a w i l l i n g n e s s t o

c o n f e s s , b u t would o n l y do s o w i t h some a s s u r a n c e t h a t he
would n o t hang. He was a s s u r e d by law e n f o r c e m e n t o f f i c i a l s

t h a t t h e y would make e v e r y e f f o r t t o s e e t h a t he would n o t

hang and Nank t h e r e a f t e r gave a c o n f e s s i o n i m p l i c a t i n g

Coleman.

Nank was c h a r g e d w i t h d e l i b e r a t e homicide, s e x u a l

i n t e r c o u r s e w i t h o u t c o n s e n t , and a g g r a v a t e d k i d n a p p i n g .

Only t h e l a t t e r o f f e n s e c a r r i e d t h e d e a t h p e n a l t y . Nank was

p e r m i t t e d t o p l e a d g u i l t y and r e c e i v e n o n c a p i t a l s e n t e n c e s

f o r d e l i b e r a t e homicide and r a p e . The a g g r a v a t e d k i d n a p p i n g

c h a r g e , which c a r r i e d t h e d e a t h p e n a l t y , was h e l d i n abeyance

u n t i l Nank t e s t i f i e d a g a i n s t Coleman a t t h e t r i a l . After

Coleman's t r i a l t h e a g g r a v a t e d k i d n a p p i n g c h a r g e a g a i n s t

Nank was d i s m i s s e d .

I t i s o b v i o u s why a n a c c o m p l i c e ' s t e s t i m o n y must be

viewed w i t h d i s t r u s t . Before a c r i m i n a l charge a g a i n s t a

d e f e n d a n t c a n s u r v i v e a d i r e c t e d v e r d i c t and be s u b m i t t e d t o

a jury, t h e r e must be i n d e p e n d e n t c o r r o b o r a t i n g e v i d e n c e

i m p l i c a t i n g t h e d e f e n d a n t i n t h e crime. That corroborating

e v i d e n c e "must r a i s e more t h a n a s u s p i c i o n of t h e d e f e n d a n t ' s

involvement i n , o r o p p o r t u n i t y t o commit, t h e c r i m e c h a r g e d . "

S t a t e v. Warren ( 1 9 8 1 ) , -Mont. -, 628 P.2d 292, 295, 38

St.Rep. 773, 776 ( q u o t i n g from S t a t e v. Kemp ( 1 9 7 9 ) , -Mont. -I

The f o l l o w i n g e x c e r p t i s t a k e n from t h e f i r s t Coleman

c a s e , S t a t e v. Coleman (Decided A p r i l 26, 1 9 7 8 ) , 177 Mont.

" I n S t a t e v. Keckonen, ( 1 9 3 8 ) , 107 Mont. 2 5 3 , 84
P.2d 341, we h e l d t h a t w h e r e t h e a l l e g e d c o r r o b o r a -
t i v e evidence i s e q u a l l y consonant w i t h a reasonable
e x p l a n a t i o n p o i n t i n g toward i n n o c e n t c o n d u c t on .the p a r t
of t h e d e f e n d a n t , t h e n such e v i d e n c e d o e s n o t t e n d
t o c o n n e c t him w i t h t h e commission of t h e o f f e n s e
and i s i n t h e r e a l m of s p e c u l a t i o n , n o t c o r r o b o r a -
tion. Where t h e c l a i m e d c o r r o b o r a t i o n shows no more
t h a n an o p p o r t u n i t y t o commit a c r i m e and s i m p l y
proves suspicion, i t i s n o t s u f f i c i e n t corrobora-
 t i o n t o j u s t i f y a c o n v i c t i o n upon t h e t e s t i m o n y of
a n accomplice. S t a t e v . J o n e s ( 1 9 3 3 ) , 9 5 Mont. 317,
26 P.2d 341."

I n a p p l y i n g t h e r u l e , t h e Supreme C o u r t h e l d , i n t h e

Coleman o p i n i o n c i t e d above, t h a t t h e r e was s u f f i c i e n t

c o r r o b o r a t i o n of Nank' s t e s t i m o n y t o s u s t a i n t h e d e f e n d a n t ' s

conviction. The c o u r t found t h e c o r r o b o r a t i n g e v i d e n c e t o

be: A c r a c k i n d e f e n d a n t ' s m o t o r c y c l e h e l m e t ; a h a i r of

Peggy H a r s t a d found on t h e r o p e b e l o n g i n g t o t h e two men;

t h e f i n g e r p r i n t s on Peggy H a r s t a d ' s c a r and i n h e r p u r s e ;

Negroid p u b i c h a i r s s i m i l a r t o d e f e n d a n t ' s and Negroid head

h a i r found i n t h e v i c t i m ' s v e h i c l e ; t h e e v i d e n c e t h a t t h e

d e f e n d a n t and Nank were s e e n t o g e t h e r on t h e same r o a d a t

a p p r o x i m a t e l y t h e same t i m e t h a t Peggy H a r s t a d d i s a p p e a r e d .

The C o u r t h e l d t h a t t h i s e v i d e n c e s u f f i c i e n t l y c o n n e c t e d t h e

d e f e n d a n t t o t h e commission of t h e o f f e n s e s c h a r g e d t o a l l o w

t h e conviction t o stand.

The e v i d e n c e t h a t d e f e n d a n t was on t h e r o a d w i t h Nank

i n t h e v i c i n i t y where Peggy H a r s t a d d i s a p p e a r e d d o e s n o t

c o r r o b o r a t e t h e t e s t i m o n y of Nank anymore t h a n i t c o r r o b o r a t e s

t h e t e s t i m o n y of Coleman. Coleman t e s t i f i e d t h a t he was

w i t h Nank on t h e e v e n i n g i n q u e s t i o n . The same i s t r u e of

Coleman's f i n g e r p r i n t s i n t h e p u r s e and i n t h e v e h i c l e .

Coleman t e s t i f i e d t h a t he was i n t h e H a r s t a d v e h i c l e a f t e r

Nank r e t u r n e d w i t h t h e v e h i c l e . H e t e s t i f i e d t h a t Nank t o l d

him t o d i s p o s e o f t h e p u r s e . H e t e s t i f i e d t h a t he f i r s t

went t h r o u g h t h e p u r s e and examined i t s c o n t e n t s . The

e x i s t e n c e of Coleman's f i n g e r p r i n t s on t h e p u r s e ' s c o n t e n t s

and i n t h e v e h i c l e c o r r o b o r a t e t h e t e s t i m o n y of t h e d e f e n d a n t

a s w e l l a s t h e t e s t i m o n y of Nank. Therefore, t h i s evidence

i s " e q u a l l y consonant with t h e reasonable explanation p o i n t i n g

toward i n n o c e n t c o n d u c t on t h e p a r t of t h e d e f e n d a n t " a s i t

i s p o i n t i n g toward g u i l t , and t h e r e f o r e , d o e s n o t q u a l i f y
a s corroborating evidence.

I f t h e r e i s any c o r r o b o r a t i n g e v i d e n c e s u f f i c i e n t t o

t a k e t h i s c a s e t o t h e j u r y i t must be found i n t h e c r a c k e d

m o t o r c y c l e helmet o r i n r e l i a b l e t e s t i m o n y t h a t Coleman's

p u b i c h a i r s were found i n t h e v i c t i m ' s v e h i c l e . A careful

r e a d i n g of t h e t r i a l t r a n s c r i p t shows t h a t s u f f i c i e n t c o r r o -

boration did not exist.

There w a s a c r a c k i n Dewey Coleman's s i l v e r c o l o r e d

m o t o r c y c l e helmet. The p r o s e c u t i o n contended t h a t t h i s

c o r r o b o r a t e d Nank' s t e s t i m o n y t h a t Coleman r e p e a t e d l y s t r u c k

Peggy H a r s t a d on t o p of t h e head w i t h h i s m o t o r c y c l e helmet.

There was no f o u n d a t i o n t o show t h a t such a s t r i k i n g c o u l d

o r would c r a c k a m o t o r c y c l e helmet. There was no t e s t i m o n y

t o show t h a t t h e helmet c o u l d be c r a c k e d i n such a f a s h i o n

w i t h o u t c r a c k i n g t h e s k u l l of t h e v i c t i m . T h i s v i c t i m had

no s k u l l f r a c t u r e a t a u t o p s y .

I f t h e c r a c k i n t h e helmet had any c o r r o b o r a t i v e s i g n i -

f i c a n c e , i t was d e s t r o y e d by t h e p a t h o l o g i s t ' s t e s t i m o n y .

Dr. John P f a f f , board c e r t i f i e d f o r e n s i c p a t h o l o g i s t , was

c a l l e d t o t e s t i f y by t h e S t a t e t o p r o v e t h a t t h e decomposed

remains which he examined a t a u t o p s y were t h o s e of Peggy

Harstad. H e did so. He was t h e n q u e s t i o n e d a b o u t h i s

f i n d i n g s i n c o n n e c t i o n w i t h t h e t i s s u e which covered t h e

skull. He t e s t i f i e d t h a t i f trauma o c c u r r e d t o t h e t o p of

t h e head, he would e x p e c t t o s e e b l e e d i n g i n t o t h e t i s s u e ,

b u t t h a t he saw none. The f o l l o w i n g e x c e r p t s a r e t a k e n from

his t e s t i m o n y :

". . . I c o u l d f i n d no e v i d e n c e of bony f r a c t u r e
i n any of t h e s k e l e t a l remains t h a t I examined.
I n t h e s k u l l t h e r e was no b r a i n t i s s u e remaining.
The f i b r u s l i n i n g membrane which c o v e r s t h e b r a i n
and s e p a r a t e from t h e s k u l l bones was s t i l l i n -
tact. T h i s i s s i g n i f i c a n t b e c a u s e i n c a s e s of
s k u l l f r a c t u r e o r serious i n j u r y t o the s k u l l , it
may become d e t a c h e d and c o n t a i n b l e e d i n g o r blood
extravasation. Such was n o t o b s e r v e d i n t h i s c a s e .
 " Q u e s t i o n : And w i t h i n t h a t s c a l p t i s s u e , d i d you
f i n d any e v i d e n c e o f a n i n c i s e d wound, a l a c e r a -
t i o n o r a hemorrhage?

"Answer: I d i d n o t .

" Q u e s t i o n : Did you examine t h a t d u r a l l i n i n g t o
d e t e r m i n e and a s c e r t a i n w h e t h e r t h e r e was any wound,
l a c e r a t i o n o r hemorrhage?

"Answer: I d i d .

" Q u e s t i o n : And what d i d you f i n d ?

"Answer: I found none.

" Q u e s t i o n : D o c t o r , w i t h r e s p e c t t o a s u b d u r a l hema-
toma, i s i t y o u r t e s t i m o n y t h a t i t i s p o s s i b l e t o
have a s u b d u r a l hematoma w i t h o u t i n j u r y t o t h e s c a l p ,
w i t h o u t i n j u r y o r f r a c t u r i n g o f t h e s k u l l and w i t h o u t
i n j u r y o r hemorrhage t o t h e s u b d u r a l l i n i n g , i s t h a t
possible?

"Answer: I t ' s p o s s i b l e , b u t t h e r e i s u s u a l l y i n j u r y
t o the scalp. T h e r e may b e no i n j u r y t o t h e bone,
b u t i f t h e r e i s a blow s t r u c k t o t h e s c a l p t h e r e i s
u s u a l l y evidence of t h a t i f t h e p a t i e n t i s l i v i n g .
(Emphasis added. )

" Q u e s t i o n : A l l r i g h t . Now i n t h i s p a r t i c u l a r c a s e
d i d you f i n d a n y e v i d e n c e t o s u b s t a n t i a t e i n j u r y t o
t h e head o r t o t h e f a c e ?

"Answer: I n t h e t i s s u e I examined, I found none.

" Q u e s t i o n : W e l l , w h a t e v e r you d i d i n t h a t a u t o p s y
e x a m i n a t i o n , w h a t e v e r was a v a i l a b l e t o you, w h a t e v e r
p r o c e d u r e t h a t you u s e d , w h a t e v e r s c i e n t i f i c method
t h a t you employed, d i d you f i n d a n y i n j u r y t o t h e
head o r t o t h e f a c e ?

"Answer: I d i d n o t . " ( T r i a l T r a n s c r i p t Vol. 111,
pp. 572, 603, 605, 633.)

The o n l y r e m a i n i n g e v i d e n c e c l a i m e d f o r c o r r o b o r a t i o n

i s t h a t p u b i c h a i r s s i m i l a r t o Dewey Coleman's w e r e found i n

t h e Harstad vehicle.

The r e c o r d r e v e a l s t h a t h a i r s a m p l e s w e r e t a k e n from

t h e d e f e n d a n t and s u b j e c t e d t o m i c r o s c o p i c e x a m i n a t i o n .

Both head h a i r and p u b i c h a i r b e l o n g i n g t o d e f e n d a n t w e r e

a v a i l a b l e f o r t h a t examination. The v i c t i m ' s c a r was vacuumed
and numerous h a i r samples o b t a i n e d from t h a t vacuuming.

These samples were a l s o s c r u t i n i z e d m i c r o s c o p i c a l l y and

compared t o t h e h a i r samples of d e f e n d a n t .

I t s h o u l d be remembered t h a t d e f e n d a n t t e s t i f i e d he was

i n t h e v i c t i m ' s v e h i c l e a f t e r Nank r e t u r n e d d r i v i n g t h e

v e h i c l e . T h e r e f o r e , t h e e x i s t e n c e of d e f e n d a n t ' s h a i r i n t h e

c a r c o r r o b o r a t e s d e f e n d a n t a s w e l l a s Nank and d o e s n o t

provide independent corroborating evidence s u f f i c i e n t t o

s u s t a i n a c o n v i c t i o n . However, t h e S t a t e p l a c e s g r e a t r e l i a n c e

upon t h e f a c t t h a t d e f e n d a n t ' s p u b i c h a i r was a l l e g e d l y

found i n t h e v i c t i m ' s v e h i c l e . The r e c o r d does n o t s u p p o r t

the State ' s position.

I n an e f f o r t t o c o r r o b o r a t e t h e S t a t e ' s c a s e , t h e

prosecution c a l l e d an e x p e r t witness t o prove t h a t t h e h a i r

found i n t h e v i c t i m ' s v e h i c l e w a s c o n n e c t e d t o t h e d e f e n d a n t .

B e f o r e q u o t i n g e x c e r p t s from t h e e x p e r t ' s t e s t i m o n y , i t i s

i m p o r t a n t t o t a k e c o g n i z a n c e of t h e e v i d e n t i a r y r u l e h e r e

applicable. The o f f e r e d t e s t i m o n y must be based upon a

" r e a s o n a b l e d e g r e e of s c i e n t i f i c p r o b a b i l i t y " and i s i n a d -

m i s s i b l e i f t h e t e s t i m o n y i s based upon a mere " p o s s i b i l i t y " .

Moen v. Decker Coal Co. (1980), -Mont. -, 6 0 4 P.2d 765,

36 St.Rep. 2 2 2 0 ; Azure v . C i t y o f B i l l i n g s ( 1 9 7 9 ) , -Mont. - I

596 P.2d 460, 36 St.Rep. 968; F a r r i s v . C l a r k ( 1 9 7 1 ) , 158

Mont. 3 3 , 487 P.2d 1307; S t o r d a h l v . Rush Implement Company

( 1 9 6 6 ) , 148 Mont. 1 3 , 417 P . 2d 95.

The f o l l o w i n g e x c e r p t s a r e t a k e n from t h e S t a t e ' s

expert witness:

" Q u e s t i o n : Did you make a comparison of t h e Q-2
h a i r t h a t you have mentioned a s having come from
t h e a u t o m o b i l e , and t h e K - 2 a s you have mentioned
a s coming from t h e head of Dewey Coleman?

"Answer: Y e s , I did.

" Q u e s t i o n : And what w e r e your f i n d i n g s ?
 "Answer: I found t h a t t h e r e were some s i m i l a r i t i e s
between t h e s e h a i r s , b u t a l s o t h e r e were some d i f -
f e r e n c e s between t h e s e h a i r s .

" Q u e s t i o n : A s a r e s u l t of t h a t , what was your f i n a l
conclusion?

"Answer: I r e a c h e d no c o n c l u s i o n a s t o whether o r
n o t t h e s e h a i r s c o u l d have come from t h e same s o u r c e .

"Question: . . . Did you compare t h e p u b i c h a i r s ,
t h e known p u b i c h a i r s from Dewey Coleman w i t h t h e
Q-29 h a i r s t h a t were removed from t h e d e b r i s from
Peggy H a r s t a d ' s v e h i c l e ?

"Answer: Y e s , I did.

" Q u e s t i o n : And what w e r e your f i n d i n g s ?

"Answer: I found t h a t t h e - - t h e two b l a c k Negroid
p u b i c h a i r s i n t h e vacuumings from t h e v e h i c l e ,
which m i c r o s c o p i c a l l y match t h e h a i r s which w e r e
s u b m i t t e d t o m e a s b e i n g from t h e p u b i c a r e a of
M r . Coleman.

" Q u e s t i o n : W i l l you e x p l a i n t h a t f u r t h e r p l e a s e ?

"Answer: W e l l , t h e f a c t t h a t t h e h a i r s w e r e micro-
s c o p i c a l l y a l i k e allowed m e t o conclude t h a t they
c o u l d -----same s o u r c e . The two p u b i c
have come from t h e
- - t h e two b l a c k Negroid p u b i c h a i r s from t h e va-
c u u m i n g ~o f t h e v i c t i m ' s v e h i c l e c o u l d --
have come
from t h e p u b i c - -of M r . Coleman.
-- area -

" Q u e s t i o n : You d o n ' t s a y i t d o e s come from t h e same
s o u r c e , --- p o s s i b l e -a t i t c o u l d have
you s a y i t ' s th -
--- s o u r c e , r i g h t ?
come from t h a t

"Answer: T h a t ' s c o r r e c t . " ( T r i a l T r a n s c r i p t Vol.
V I I I , pp.
1802, 1805, 1806, 1905, 1906.) (Emphasis
added. )

Under w e l l e s t a b l i s h e d law i n Montana, t h i s t e s t i m o n y

was t o o s p e c u l a t i v e t o be r e c e i v e d i n e v i d e n c e , and once

r e c e i v e d , c o u l d n o t be r e l i e d upon a s s u f f i c i e n t l y c o r r o b o r -

a t i v e t o sustain a conviction.

T h i s C o u r t ' s d e c i s i o n i n S t a t e v . Coleman, s u p r a ,

wherein t h e C o u r t i d e n t i f i e d t h e c o r r o b o r a t i v e e v i d e n c e ,

a l s o r e l i e d upon t e s t i m o n y t h a t t h e v i c t i m ' s h a i r was found

embedded i n t h e y e l l o w nylon r o p e . Though t h e e x i s t e n c e of

s u c h h a i r would o n l y c o r r o b o r a t e t h a t t h e r o p e was used i n

k i l l i n g t h e v i c t i m , and would n o t c o r r o b o r a t e Nank's t e s t i m o n y
t h a t Coleman was p r e s e n t , t h e e v i d e n c e i t s e l f was i n s u f f i c i e n t .

The same e x p e r t w i t n e s s s o u g h t t o r e l a t e h a i r found on t h e

r o p e w i t h t h e h a i r of t h e v i c t i m . He t e s t i f i e d t h a t t h e r e

was brown Caucasian h a i r embedded i n t h e f r a y e d e n d s of t h e

rope. He a g a i n t e s t i f i e d t h a t t h e h a i r found i n t h e r o p e

c o u l d --
have been t h e h a i r of Peggy H a r s t a d .
- Under t h e r u l e

above e n u n c i a t e d such t e s t i m o n y c o u l d n o t be r e l i e d upon f o r

corroboration. Additionally, t h i s expert witness t e s t i f i e d

t h a t he c o u l d n o t d e t e r m i n e t h e s e x of t h e p e r s o n from whom

t h e h a i r came. Nank a l s o had brown C a u c a s i a n h a i r .

Interestingly, t h i s same h a i r e x p e r t , t e s t i f i e d t h a t he

had examined h a i r t a k e n from t h e b l a n k e t l a t e r d e t e r m i n e d t o

be a b l a n k e t which Peggy H a r s t a d had i n h e r c a r when s h e

l e f t home. Brown C a u c a s i a n h a i r was found on t h e b l a n k e t .

Nank had t e s t i f i e d t h a t he and Coleman were on t h e b l a n k e t

smoking c i g a r e t t e s a f t e r t h e y had k i l l e d Peggy H a r s t a d .

Coleman t e s t i f i e d t h a t he knew n o t h i n g a b o u t t h e b l a n k e t and

had had no p h y s i c a l c o n t a c t w i t h i t . The e x a m i n a t i o n r e v e a l e d

no Negroid h a i r upon t h e b l a n k e t .

There simply was no c o r r o b o r a t i o n s u f f i c i e n t t o l e n d

c r e d e n c e t o t h e t e s t i m o n y of Nank. The t r i a l c o u r t r e a l i z e d

this. A t t h e time t h e prosecution r e s t e d , and t h e d e f e n s e

moved f o r a d i r e c t e d v e r d i c t , t h e t r i a l c o u r t i n d i c a t e d t h a t

t h e r e w a s no c o r r o b o r a t i o n b u t s t a t e d he would a l l o w t h e

Supreme C o u r t t o r u l e on t h e q u e s t i o n .

A f t e r t h e d e f e n s e made a motion f o r d i r e c t e d v e r d i c t

because t h e r e w a s n o t s u f f i c i e n t corroboration f o r an accomplice's

t e s t i m o n y , t h e p r o s e c u t i o n r e s i s t e d and t h e f o l l o w i n g d i s c u s -

s i o n was had:

"THE COURT: Well, I t r e a t t h i s a s a r e a l s e r i o u s
motion.

"MR. OVERFELT: I n what r e g a r d ?
 "THE COURT: Well, I am n o t going t o g r a n t t h e
motion, b u t I s a y i t h a s some m e r i t .

"MR. OVERFELT: I f r a n k l y d o n ' t t h i n k i t h a s any.
W c o u l d have g o t t e n t o t h e J u r y on c i r c u m s t a n t i a l
e
e v i d e n c e a l o n e , Your Honor, and I ' m c o n f i d e n t of
that.

"THE COURT: Well, a l l you have shown i s t h e oppor-
t u n i t y f o r t h i s b l a c k boy t o do i t . You have shown
p l e n t y of o p p o r t u n i t y . " ( T r i a l T r a n s c r i p t Vol.
I X , pp. 2106-2107.)

A s previously noted, c o r r o b o r a t i v e t e s t i m o n y showing

o n l y o p p o r t u n i t y i s i n s u f f i c i e n t t o a l l o w t h e c a s e t o go t o

t h e jury. Though t h e t r i a l c o u r t found, a s I have found,

t h a t t h e r e was no c o r r o b o r a t i o n , he n e v e r t h e l e s s a l l o w e d t h e

c a s e t o go t o t h e j u r y s o t h a t t h e Supreme C o u r t would have

a n o p p o r t u n i t y t o r e v i e w t h e complete r e c o r d and make a

determination.

I am g r e a t l y b o t h e r e d by t h i s c a s e . The o n l y e v i d e n c e

t h a t t h e d e f e n d a n t i s g u i l t y of t h e c r i m e s charged comes

from a n accomplice who was a s e l f - p r o c l a i m e d l i a r and who

had e v e r y r e a s o n t o p e r j u r e h i m s e l f . This accomplice,

though he had a h i s t o r y of v i o l e n c e and s e x u a l d e v i a t i o n ,

was g i v e n a n o n c a p i t a l s e n t e n c e . The d e f e n d a n t , whose g u i l t

was n o t proven by competent e v i d e n c e , had no p r e v i o u s f e l o n y

r e c o r d and y e t was s e n t e n c e d t o d e a t h .

The d e a t h s e n t e n c e i n Montana i s governed by t h r e e

s t a t u t e s which a r e h e r e i n a f t e r q u o t e d i n t h e i r e n t i r e t y :

" A g g r a v a t i n g c i r c u m s t a n c e s . Aggravating circum-
s t a n c e s a r e any of t h e f o l l o w i n g :

" ( 1 ) The o f f e n s e was d e l i b e r a t e homicide and was
committed by a p e r s o n s e r v i n g a s e n t e n c e of i m -
prisonment i n t h e s t a t e prison.

" ( 2 ) The o f f e n s e was d e l i b e r a t e homicide and was
committed by a d e f e n d a n t who had been p r e v i o u s l y
c o n v i c t e d of a n o t h e r d e l i b e r a t e homicide.

" ( 3 ) The o f f e n s e was d e l i b e r a t e homicide and was
committed by means of t o r t u r e .

" ( 4 ) The o f f e n s e was d e l i b e r a t e homicide and was
committed by a p e r s o n l y i n g i n w a i t o r ambush.
" ( 5 ) The o f f e n s e was d e l i b e r a t e homicide and was
committed as a p a r t of a scheme o r o p e r a t i o n which,
i f completed, would r e s u l t i n t h e d e a t h of more
t h a n one p e r s o n .

" ( 6 ) The o f f e n s e w a s d e l i b e r a t e homicide a s d e f i n e d
i n s u b s e c t i o n (1)( a ) of 45-5-102, and t h e v i c t i m
was a p e a c e o f f i c e r k i l l e d w h i l e p e r f o r m i n g h i s
duty.

" ( 7 ) The o f f e n s e was a g g r a v a t e d k i d n a p p i n g which
r e s u l t e d i n t h e d e a t h o f t h e v i c t i m . " ( S e c t i o n 46-18-
304, MCA.)

" ~ i t i g a t i n g ircumstances.
c Mitigating circumstances
a r e any of t h e f o l l o w i n g :

" ( 1 ) The d e f e n d a n t h a s no s i g n i f i c a n t h i s t o r y of p r i o r
criminal activity.

" ( 2 ) The o f f e n s e was comrnited w h i l e t h e d e f e n d a n t
was under t h e i n f l u e n c e of extreme m e n t a l o r emo-
t i o n a l disturbance.

I' ( 3 ) The d e f e n d a n t a c t e d under e x t r e m e d u r e s s o r
under t h e s u b s t a n t i a l domination of a n o t h e r p e r s o n .

" ( 4 ) The c a p a c i t y of t h e d e f e n d a n t t o a p p r e c i a t e
t h e c r i m i n a l i t y of h i s c o n d u c t o r t o conform h i s
c o n d u c t t o t h e r e q u i r e m e n t s of law was s u b s t a n t i a l l y
impaired.

" ( 5 ) The v i c t i m was a p a r t i c i p a n t i n t h e d e f e n d a n t ' s
conduct o r consented t o t h e a c t .

" ( 6 ) The d e f e n d a n t was an accomplice i n an o f f e n s e
committed by a n o t h e r p e r s o n , and h i s p a r t i c i p a t i o n
was r e l a t i v e l y minor.

" ( 7 ) The d e f e n d a n t , a t t h e t i m e of t h e commission
of t h e c r i m e , was less t h a n 18 y e a r s of a g e .

" ( 8 ) Any o t h e r f a c t e x i s t s i n m i t i g a t i o n of t h e
p e n a l t y . " ( S e c t i o n 46-18-304, MCA.)

" E f f e c t - a g g r a v a t i n g - m i t i g a t i n g circum-
of and
stances. I n d e t e r m i n i n g whether t o impose a sen-
t e n c e of d e a t h o r imprisonment, t h e c o u r t s h a l l
t a k e i n t o a c c o u n t t h e a g g r a v a t i n g and m i t i g a t i n g
c i r c u m s t a n c e s enumerated i n 46-18-303 and 46-18-
304 and s h a l l impose a s e n t e n c e of d e a t h i f i t
f i n d s one o r more of t h e a g g r a v a t i n g c i r c u m s t a n c e s
and f i n d s t h a t t h e r e a r e no m i t i g a t i n g circum-
stances sufficiently substantial t o c a l l for
leniency. I f t h e c o u r t d o e s n o t impose a s e n t e n c e
o f d e a t h and one of t h e a g g r a v a t i n g c i r c u m s t a n c e s
l i s t e d i n 46-18-303 e x i s t s , t h e c o u r t may impose
a s e n t e n c e o f imprisonment f o r l i f e o r f o r any
t e r m a u t h o r i z e d by t h e s t a t u t e d e f i n i n g t h e o f -
f e n s e . " ( S e c t i o n 46-18-305, MCA.)
 Under t h e above q u o t e d s t a t u t e s t h e d e a t h p e n a l t y i s

imposed i f t h e r e i s a n a g g r a v a t i n g c i r c u m s t a n c e and m i t i g a t i n g

c i r c u m s t a n c e s do n o t c a l l f o r l e n i e n c y . The f i r s t s i x

s u b s e c t i o n s of s e c t i o n 46-18-303, MCA, are inapplicable t o

t h i s defendant. The o n l y a g g r a v a t i n g c i r c u m s t a n c e t o be

found under t h e s t a t u t e , i f i n d e e d one e x i s t e d , would be

rooted i n subsection ( 7 ) . There i s a b s o l u t e l y no c o r r o b o r a t i n g

e v i d e n c e t o show t h a t t h i s d e f e n d a n t was i n v o l v e d i n a g g r a v a t e d

kidnapping r e s u l t i n g i n t h e d e a t h of t h e v i c t i m . Even i f

one were t o a c c e p t t h e " h a i r t e s t i m o n y " o f f e r e d by t h e

e x p e r t , i t would o n l y c o r r o b o r a t e t h a t d e f e n d a n t committed

t h e a c t of s e x u a l i n t e r c o u r s e . T h i s a c t c o u l d n o t have

r e s u l t e d i n t h e d e a t h of t h e v i c t i m . There i s no t e s t i m o n y

c o r r o b o r a t i n g Nank ' s t e s t i m o n y t h a t t h e d e f e n d a n t p a r t i c i p a t e d

i n a n a c t which r e s u l t e d i n t h e d e a t h of t h e v i c t i m .

A v e r y s t r o n g m i t i g a t i n g c i r c u m s t a n c e e x i s t s under 46-

18-304, MCA. T h i s d e f e n d a n t h a s no f e l o n y r e c o r d . Furthermore,

under s u b s e c t i o n ( 8 ) of t h e s t a t u t e , any f a c t e x i s t i n g i n

m i t i g a t i o n , must be c o n s i d e r e d by t h e c o u r t . The q u e s t i o n a b l e

g u i l t o f t h e d e f e n d a n t i s c e r t a i n l y such a m i t i g a t i n g f a c t o r .

W e have s e e n t h a t t h e r e i s n o t c o r r o b o r a t i v e t e s t i m o n y

t o s u p p o r t Nank's v e r s i o n of t h i s m a t t e r . I would l i k e t o

examine Nankl s t e s t i m o n y i t s e l f t o show t h e t o t a l u n r e l i a b i l i t y

of t h a t t e s t i m o n y . The purpose of such e x a m i n a t i o n i s t o

show t h e weakness of t h e S t a t e 1s c a s e , t h e l i k e l i h o o d t h a t

t h e d e f e n d a n t i s i n n o c e n t , and t h e f a c t t h a t t h e d e a t h

p e n a l t y s h o u l d n e v e r be imposed i n such a c i r c u m s t a n c e .
Though t h e j u r y c o n v i c t e d Coleman, t h e t r i a l judge

s h o u l d c o n s i d e r t h e c e r t a i n t y of Coleman's g u i l t b e f o r e

imposing t h e d e a t h p e n a l t y . There was no c o n f e s s i o n from

t h e defendant. There w e r e no d i s i n t e r e s t e d w i t n e s s e s d i r e c t l y

c o n n e c t i n g Coleman t o t h e commission of t h e o f f e n s e s c h a r g e d .
A s previously discussed, t h e r e was no i n d e p e n d e n t c o r r o b o r a t i n g

e v i d e n c e o f any k i n d . I f Nank's t e s t i m o n y l a c k e d c r e d i b i l i t y ,

t h e e v i d e n c e of Coleman's i n v o l v e m e n t becomes e v e n more

speculative. The f o l l o w i n g e x c e r p t s from t h e r e c o r d b e a r

upon Nank' s v e r a c i t y :

"Answer: She d r o v e t h e p i c k u p t h r o u g h t h e d r i v e -
way and o v e r down w i t h i n maybe f i v e f e e t of t h e
bike. I then tipped t h e motorcycle r i g h t s i d e
up and I p r o c e e d e d t o f i l l t h e g a s t a n k up. I
l i e d t o her. T h i s i s g o i n g back t o t h e c r i m e and
I was a l w a y s t r y i n g t o make up s t o r i e s . You know.

" Q u e s t i o n : Did you t e l l them t h e same t h i n g t h a t
you have t o l d t h e j u r y h e r e i n t h e l a s t two d a y s ?

"Answer: No, I l i e d t o M r . Brake.

" Q u e s t i o n : I n what r e s p e c t d i d you l i e t o M r .
Brake?

"Answer: I l i e d . I t o l d M r . Brake t h a t Dewey t i e d
Peggy Hars t a d up and I t o l d him t h a t Dewey un-
d r e s s e d her i n s t e a d of m e .

" Q u e s t i o n : So t h a t any s t a t e m e n t i n a n y r e c o r d t h a t
you t o o k LSD 25 o r 30 t i m e s would b e a l i e ?

"Answer: I t was i n a l i e i n s o much t h a t maybe a t
t h a t t i m e I was g o i n g t o t r y t o u s e t h a t a s a n
e x c u s e t o b e a d m i t t e d f o r my c r i m e i n t o a s t a t e
h o s p i t a l i n s t e a d o f g o i n g t o p r i s o n , and s o t h a t
i s maybe t h e r e a s o n t h a t I made t h a t s t a t e m e n t , and
I d i d l i e because I heard of c a s e s l i k e t h i s b e f o r e ,
s o I may have l i e d , y e s .

" Q u e s t i o n : So now you d i d t e l l somebody t h a t you
had u s e d LSD 25 o r 30 t i m e s , b u t e v e n though you
l i e d a b o u t i t , you t h o u g h t you m i g h t b e a b l e t o
g e t o f f o r g e t i n t o a s t a t e h o s p i t a l o r something,
is that right?

" T h a t would b e t h e p u r p o s e o f i t , y e s .

" Q u e s t i o n : W e l l , d i d you g i v e them a n y examples
o f a n y a g g r e s s i v e b e h a v i o r on your p a r t ?

"Answer: I d o n ' t know, I d i d a l o t of l y i n g s o
I c a n n o t s t a t e n o t h i n g t r u t h f u l l y a b o u t what I
s a i d t h e r e and g e t a c o r r e c t a n s w e r . . . ."
( T r i a l T r a n s c r i p t Vol. V , pp. 1056, 1057, 1102,
1103, 1 1 3 0 . )
 Nank's t e s t i m o n y on t h e s t a n d was a l s o c o n t r a r y t o t h e

t e s t i m o n y of Law enforcement o f f i c e r s . Nank t e s t i f i e d t h a t he

was t e l l i n g t h e t r u t h and t h e law e n f o r c e m e n t o f f i c e r s were

lying. One of t h e law e n f o r c e m e n t o f f i c e r s who o r i g i n a l l y

i n t e r r o g a t e d Nank f o l l o w i n g h i s a r r e s t i n B o i s e , I d a h o ,

s t a t e d t h a t Nank t o l d him he became u p s e t w i t h Peggy H a r s t a d

b e c a u s e s h e s a i d something t o h u r t h i s ego. Nank, d u r i n g

t h e Coleman t r i a l , a c c u s e d t h e law e n f o r c e m e n t o f f i c e r of

lying about t h i s matter. The f o l l o w i n g e x c e r p t i s t a k e n

from t h e t r a n s c r i p t :

" Q u e s t i o n : And do you r e c a l l t h a t he s a i d , ' I b e t
you t h a t s h e p r o b a b l y s a i d something t o you t h a t
e i t h e r h u r t your ego, made you v e r y mad, ex-
t r e m e l y u p s e t ' , o r something l i k e t h a t , and d i d
you d r o p your head and n o t make any comment t o
t h a t question?

"Answer: I d i d n o t make any comment b e c a u s e I
knew t h a t h e was t r y i n g t o make m e make some k i n d
of a statement.

" Q u e s t i o n : And t h e n he s a i d , 'Did s h e s a y some-
t h i n g t o i n f u r i a t e you o r h u r t your e g o ' , o r t h i s
t y p e of t h i n g , and you s a i d , 'Yes, Y e s , s h e d i d . '

"Answer: No, I n e v e r d i d s a y t h a t . M r . Brake l i e d
and I a l s o t o l d Judge M a r t i n when I w a s i n a n e a r -
I.ier c o u r t hearing before about t h a t .

"Question: M r . Brake l i e d ?

"Answer: M r . Brake d i d l i e . " ( T r i a l T r a n s c r i p t Vol.
V, p. 1 0 9 1 , 1092.)

Law e n f o r c e m e n t o f f i c e r Brake had a l s o t e s t i f i e d t h a t a t

t h e t i m e Nank and Coleman w e r e a r r e s t e d i n t h e i r a p a r t m e n t

i n B o i s e , t h a t Nank t o l d t h e p o l i c e t o " ~ e your a s s o u t of
t

here". Nank, d u r i n g t h e Coleman t r i a l , a g a i n a c c u s e d t h e

law e n f o r c e m e n t o f f i c e r s of l y i n g . The f o l l o w i n g e x c e r p t i s

t a k e n from t h e r e c o r d .

" Q u e s t i o n : And d i d you when you were a r r e s t e d t e l l
t h e B o i s e p o l i c e , t o ' G e t your a s s o u t of h e r e ' ?

"Answer: No. M r . Brake l i e d a b o u t t h a t , and I a l s o
t r i e d t o e x p l a i n t h a t t o Judge M a r t i n i n an e a r l i e r
c o u r t h e a r i n g t h a t I s a i d t h a t M r . Brake l i e d .
T h a t ' s one t h i n g , I have never--I have n e v e r
I I

a ' , '
..

c a l l e d a policeman a name. He l i e d a b o u t t h a t
t o o . " ( T r i a l T r a n s c r i p t Vol. V , p. 1227.)

Again, o f f i c e r Brake t e s t i f i e d t h a t h e r e a d t h e c o n s t i -

t u t i o n a l r i g h t s t o Nank a t t h e t i m e of h i s a r r e s t . Nank,

w h i l e t e s t i f y i n g d u r i n g t h e Coleman c a s e , d i s p u t e d t h i s .

Nank t e s t i f i e d :

" Q u e s t i o n : Did he v e r b a l l y - - d i d M r . Brake v e r b a l l y
a d v i s e you o f your r i g h t s a s soon a s you were
p l a c e d under a r r e s t ?

"Answer: Not a t t h a t time. Not a t t h a t p a r t i c u l a r
t i m e , no.

" Q u e s t i o n : You h e a r d M r . Brake s a y t h a t he d i d ad-
v i s e you of your r i g h t s , and t h a t ' s a l i e a c c o r d i n g
t o you?

"Answer: H e d i d n o t a t t h a t t i m e when w e were a r -
r e s t e d v e r b a l l y a d v i s e u s of o u r r i g h t s a t t h a t
t i m e , no, h e d i d n o t .

" Q u e s t i o n : You h e a r d him t e s t i f y t h a t h e d i d ?

"Answer: He d i d n o t do i t .

" Q u e s t i o n : Well t h e n , he l i e d ?

"Answer: H e l i e d . " ( T r i a l T r a n s c r i p t Vol. V ,
p. 1227.)

Nank's t e s t i m o n y i t s e l f was r i d d l e d w i t h i n c o n s i s t e n c y .

Though t h e r e c o r d i s r e p l e t e w i t h examples, t h e f o l l o w i n g i s

illustrative. When t e s t i f y i n g a b o u t who u n d r e s s e d t h e

v i c t i m , Nank gave t h e f o l l o w i n g t e s t i m o n y :

" Q u e s t i o n : You took h e r s h o e s o f f d i d n ' t you?

"Answer: Y e s , I did.

" Q u e s t i o n : You u n d r e s s e d h e r ?

"Answer: Dewey d i d . " ( T r i a l T r a n s c r i p t Vol. V ,
p. 1189.)

The f o l l o w i n g t e s t i m o n y i s t a k e n from page 1210, Vol.

V, of t h e t r i a l t r a n s c r i p t .

" Q u e s t i o n : And d i d you u n d r e s s h e r ?

"Answer: Yes I d i d .

" Q u e s t i o n : And d i d you d r e s s h e r up a g a i n ?

"Answer: Y e s I d i d . "
 And from p a g e 1223 and 1224, Vol. V , of t h e t r i a l

t r a n s c r i p t s , t h e following testimony i s taken:

" Q u e s t i o n : Do I u n d e r s t a n d t h a t Dewey n e v e r t o o k
her clothes o f f ?

"Answer: Dewey d i d n o t t a k e h e r c l o t h e s o f f .

" Q u e s t i o n : Do I u n d e r s t a n d t h a t you t o o k h e r c l o t h e s
off?

"Answer: I d i d t a k e h e r c l o t h e s o f f .

" Q u e s t i o n : And t h a t i n c l u d e d h e r p a n t s ?

"Answer: She had o n - - w e l l , some k i n d o f m o r e l e s s
t r o u s e r s o r whatever.

" Q u e s t i o n : Did t h a t i n c l u d e u n d e r p a n t s ?

"Answer: I d o n o t remember i f s h e was w e a r i n g underwear a t
t h a t t i m e o r not.

" Q u e s t i o n : Did you p u t h e r c l o t h e s back on?

"Answer: I p u t h e r b l u e j e a n s back on. I think
w i t h what s h e was w e a r i n g , I p u t them back o n ,
yes.

" Q u e s t i o n : So t h a t you w e r e t h e o n l y o n e t h a t
dressed o r undressed h e r , i s t h a t c o r r e c t ?

"Answer: Y e s , that's correct."

I n t h e f i r s t s t a t e m e n t Nank g a v e t o l a w e n f o r c e m e n t

o f f i c i a l s h e s a i d Coleman u n d r e s s e d t h e v i c t i m . On t h e

s t a n d Nank t e s t i f i e d t h a t Coleman u n d r e s s e d t h e v i c t i m and

t h e n changed t h e t e s t i m o n y and t e s t i f i e d t h a t he was t h e

o n l y o n e who had u n d r e s s e d t h e v i c t i m . H i s testimony, to

s a y t h e l e a s t , was i n c r e d i b l e .

Nank had a h i s t o r y o f v i o l e n c e b e g i n n i n g w i t h h i s

childhood. Though t h e r e c o r d s show t h a t h e a t t a c k e d h i s

mother w i t h a b u t c h e r k n i f e , h e t e s t i f i e d t h a t i t was h i s

m o t h e r who a t t a c k e d him w i t h t h e k n i f e . Nank r e l a t e d t h e

f o l l o w i n g t e s t i m o n y d u r i n g t h e c o u r s e o f Coleman's t r i a l :

" Q u e s t i o n : Now you s t a t e d t h a t y o u r m o t h e r , M r s .
Nank--Mary, was t h a t h e r f i r s t name?

"Answer: Margaret.
 " Q u e s t i o n : M a r g a r e t . A t one t i m e when you were 18
y e a r s of a g e , h e l d a b u t c h e r k n i f e a t your t h r o a t
and chased you around t h e house w i t h a poker b e a t i n g
you upon t h e head and s h o u l d e r s and t h e n t e a r i n g t h e
f r o n t of h e r d r e s s and going o u t i n t h e s t r e e t and
t e l l i n g o t h e r p e o p l e t h a t you had a t t a c k e d h e r sex-
u a l l y ; d i d s h e do t h a t ?

"Answer: NO, you s t a t e d t h a t wrong, s i r .

"Question: W e l l , d i d she hold a butcher k n i f e a t
your t h r o a t ?

"Answer: Y e s , she did.

" Q u e s t i o n : And d i d s h e c h a s e you around t h e house
w i t h a poker?

"Answer: Y e s , she did.

" Q u e s t i o n : Did s h e h i t you a b o u t t h e head and
s h o u l d e r s w i t h a poker?

"Answer: Yes, s h e d i d .

" Q u e s t i o n : Did s h e t e a r t h e f r o n t of h e r d r e s s ?

"Answer: The f r o n t of h e r b l o u s e .

" Q u e s t i o n : And d i d s h e t e l l o t h e r p e o p l e t h a t you
had a t t a c k e d h e r s e x u a l l y ?

"Answer: No, s h e d i d n o t .

" Q u e s t i o n : She d i d n o t ?

"Answer: She d i d n o t r u n o u t i n t h e s t r e e t and
h o l l e r a t p e o p l e , no, s h e d i d n o t .

" Q u e s t i o n : Did s h e t e l l o t h e r p e o p l e t h a t you
had a t t a c k e d h e r s e x u a l l y ?

"Answer: I t h i n k s h e m i g h t have t o l d a d o c t o r .
I do n o t know." ( T r i a l T r a n s c r i p t Vol. V , pp.
1074, 1075.)

Though t h e r e c o r d s show t h a t Nank had a t t a c k e d h i s

mother w i t h a b u t c h e r k n i f e and i n d i c a t e t h a t he may have

a t t a c k e d h e r s e x u a l l y , he took t h e w i t n e s s s t a n d i n t h e

Coleman c a s e and s a i d t h a t h i s mother i n f a c t had been t h e

a g g r e s s o r and h e t h e v i c t i m .

Nank had been i n s t i t u t i o n a l i z e d i n m e n t a l h o s p i t a l s on

four previous occasions. H e had a h i s t o r y of v i o l e n c e

i n c l u d i n g v i o l e n c e a g a i n s t b o t h h i s mother and h i s s i s t e r .

H e had a f e l o n y r e c o r d .
 On t h e o t h e r hand, Coleman had no h i s t o r y of v i o l e n c e

and no f e l o n y r e c o r d . Coleman was a homosexual.

A psychologist t e s t i f i e d with r e s p e c t t o a r a p i s t ' s

typical characteristics. T h i s t e s t i m o n y showed t h a t Nank

f i t t h e p a t t e r n b u t Coleman d i d n o t . In f a c t , t h i s witness

t e s t i f i e d t h a t t h e i n c i d e n t s of homosexuals b e i n g i n v o l v e d

i n r a p e was " p r a c t i c a l l y z e r o " .

I n m n i n e t e e n y e a r s a t t h e bench and b a r I have seldom
y

been s o d e e p l y d i s t u r b e d by t h e i n j u s t i c e of a r e s u l t . A

d e f e n d a n t i s h e r e s e n t e n c e d t o d i e where t h e r e i s p r a c t i c a l l y

no c r e d i b l e e v i d e n c e c o n n e c t i n g t h e d e f e n d a n t t o t h e commission

of t h e c r i m e . There a r e s t r o n g r e a s o n s t o b e l i e v e t h a t t h e

d e f e n d a n t d i d n o t commit t h e c r i m e f o r which t h e d e a t h

p e n a l t y was imposed. And y e t t h i s C o u r t i s a u t h o r i z i n g t h e

i m p o s i t i o n of t h a t i r r e v o c a b l e s a n c t i o n . I implore t h e

f e d e r a l c o u r t s t o examine t h i s r e c o r d , and upon f i n d i n g i t

t o be a s wanting as I do, t o i n t e r v e n e and p r e v e n t t h i s

gross injustice.
Mr. Justice Daniel J. Shea dissenting:

Although the death penalty should be vacated in any
event, I would also reverse the convictions for the reasons
stated in my dissent, and for the reasons stated in the
dissent of Justice Frank B. Morrison. Although dismissal is
the proper ruling, even in the event of a failure to dismiss,
the evidence of corroboration of accomplice Nank's testimony
is so thin that a death penalty should not be imposed. I
also join Justice Morrison in his dissent relating to imposition
of the death penalty.
With the exception of parts I, 11, 111 and a portion
of part IV of the majority opinion, the opinion decides the
issues in such a wholesale and summary manner that we have
ourselves denied Coleman the due process to which he is
entitled. The opinion fails to mention, let alone discuss,
the issues raised in Coleman's final attempt to get justice
in the state court system. How does one write a dissent
to such a nonopinion? How does one know where to begin?
In part I11 of the opinion, the majority holds that
post-conviction relief is available to a defendant sentenced
to death, and with this I wholeheartedly agree. It would be
unthinkable that either the legislature or this Court would
or could foreclose the availability of relief. Unfortunately,
however, the rest of the holding seems to give carte blanche
to a district court to deny any and all applications for
post-conviction relief, and that decision will be automatically
affirmed by this Court by our refusal to even state or discuss
the issues. The District Court's treatment of Coleman's
application for post-conviction relief is appalling, and this
Court's handling of Coleman's appeal from that order is even
more appalling.
 In the normal case, I would agree with part I1 of the
majority's opinion that the trial judge and the sentencing
judge should also preside over an application for post-
conviction relief. But that general rule must give way
to a situation where one under a death penalty is seeking
post-conviction relief. For reasons which I state in
detail in part I11 of my dissent, the post-conviction relief
judge here should have called in another judge to preside
over Coleman's application for post-conviction relief. His
failure to do so made a mockery of any meaningful considera-
tion of the claims presented to the court. Minimally, this
Court should have ordered a new hearing before another district
judge.
I agree, however, with part I of the majority opinion
in its conclusion that post-conviction relief is essentially
a new civil action. And even though it is somewhat illogical
to hold that the judge who presided over the criminal case
also should preside over the application of post-conviction
relief, there are sound reasons, except in a death penalty
case, for the same judge presiding over both proceedings.
Finally, I agree with a part of the majority opinion
in part IV--that part of the opinion holding that res
-
judicata may be applied to a petition for post-conviction
relief if the criteria of Sanders v. United States (1963),
373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148, are followed in
making this decision. But the majority has, in the remainder
of part IV, and in other parts of the opinion, totally
negated those very criteria set out in Sanders, by its
wholesale and summary treatment of the issues.
United States v. Sanders is concerned with the extent a
federal court in a post-conviction relief proceeding such as
habeas corpus, can give controlling weight to a previous
denial of habeas corpus. Although it is procedurally
inapplicable to the case before us, nonetheless Sanders does
adopt sound and workable standards that can apply to a
petition for post-conviction relief after there has been a
direct appeal. But the majority here has failed to recognize
that we must consider each criteria before we can justly say
that res judicata should bar the claim. This Court must
decide first that the same ground was presented at another
proceeding and determined adversely. Second, this Court
must then determine whether the previous decision was on the
merits. And third, this Court must decide whether the ends
of justice require that we again reexamine the issue. By
this third criteria, the Court can refuse to apply res
judicata even if the issue has been previously decided on
the merits--if the ends of justice require it.
The majority here has failed miserably in applying
these criteria, for there is no way of determining from the
opinion how or if the criteria were applied. So much for
Sanders.
I have divided my dissent into eight parts, and they
are at best arbitrarily divided. But these divisions do give
some semblance or order to the presentation of my views
concerning this appeal. This case on appeal was aided neither

by Coleman's brief nor by his counsel's arguments at the
hearing. When this situation occurs, the situation is, of
course, complicated even more. Coleman raised in the trial
court and before this Court 52 issues. Counsel lettered the
issues A through Z, and then started again at the beginning
of the alphabet and went through the alphabet once more,
lettering the issues AA through Z Z - - 5 2 issues. Needless to
say, it is more than a little difficult for any appellate
court to concern itself with 52 issues on appeal. That
process is complicated even more when the briefs and oral
arguments are so poor.
I have chosen to concentrate on those issues which
I believe to have most merit. This is not to say that I
believe at least some of the other issues not to have
merit, but time constraints require me to concentrate on
those issues I feel are most worthy of discussion.
This dissent is divided into eight parts, divided as
follows: Part I, Improper Empanelling of Jury Panel; Part
11, Unanimous Jury Verdict Requirement; Part 111, Recusal
of Sentencing Judge; Part IV, Retroactive Application of
Death Penalty Statutes; Part V, Unconstitutional Shifting
of Burden of Proof to Defendant; Part VI, Right to Jury Trial
on Question Whether Death Penalty Should be Imposed; Part VII,
Right to Evidentiary Hearing on Question of Whether Death by
Hanging Constitutes Cruel and Unusual Punishment; Part VIII,
Denial of Meaningful Appellate Review.
Because the majority opinion has totally failed to
mention the issues, other than to refer to them by the
letters as designated in the petition for post-conviction
relief and in the appeal, I append the trial court's order
to this dissent as Exhibit A. The order disposes of each
of the issues raised, although at times it is difficult to
determine exactly what issue was decided. - further emphasize
I

--order
that this - - word-for-word adoption - - the proposed
is a of -
findings and conclusions - - presented - - State.
of law by the For
this reason, it can hardly be considered as being the careful
analysis of a trial judge judiciously carrying out his duties.
I dissented in both Coleman - (1978), 177 Mont. 1, 39 to 43,
I
579 P.2d 732, 754 to 756, and Coleman - (1979), - Mont
I1 . I
605 P.2d 1000, 1022 to 1051, 36 St.Rep. 2237, 2248 to 2249,
and I still adhere to those views. On some of these issues,
however, I do expand more on my views in this dissent.
PART I
IMPROPER EMPANELLING OF JURY PANEL.
By Issue F, covered in the omnibus holding of the
majority opinion in Part IV, the defendant claims he was
deprived of his right to have a jury that was properly
selected and empanelled. In Coleman - 579 P.2d 732, the
I,
majority held against him. I dissented on this issue, 579
P.2d '754-756,and for this reason alone, I would grant
defendant a new trial.
The majority has cut real corners and did not reach
the real issue in deciding this issue in Coleman - and
I,
for this reason, I would again review it by application of
the Sanders criteria. It seems that all the majority is
concerned about is whether there were 12 jurors present to
try the case and not how the 12 jurors happened to be there
in the first place. In my dissent, I pointed out the improper
procedures used in calling in the panel of jurors, of which

- least some of the 12 jurors were called in the manner
at
described.
PART I1
THERE IS NEITHER ASSURANCE THAT THE JURY REACHED A UNANIMOUS
VERDICT ON ONE OR MORE THEORIES OF CRIMINAL RESPONSIBILITY
SUBMITTED TO THE JURY, NOR ARE ALL THEORIES SUPPORTED BY
SUBSTANTIAL EVIDENCE
Issue UU, an issue not raised in Coleman's first two
appeals, claims that all three convictions must be reversed
because there is no assurance that the jury reached unanimous
agreement on one or more of the alternative theories of
criminal responsibility submitted to the jury on each charge.
Without this assurance, Coleman claims that he has been denied
his right to unanimous jury verdict as guaranteed by the
Sixth and Fourteenth Amendment of the United States Constitution,
and as guaranteed by Article 11, B 26, Montana Constitution.
Counsel has raised this issue without a genuine attempt
to analyze the issue and apply it to this case. The same
issue has been raised in the Fitzpatrick and McKenzie cases
now before this Court, and undoubtedly Coleman's counsel has
been the recipient of some cross-fertilization. I believe,
nonetheless, that Coleman has raised an issue deserving of
careful review by this Court, and that Coleman's convictions
should be reversed because there is no assurance that the jury
reached unanimity on a single theory of statutory responsibility.
My position is not based on the fact that this is a death
penalty cause; the issue is a serious one even if the death
penalty were not the underlying issue. But the fact that
Coleman has been sentenced to hang requires all courts, and
especially this Court, to carefully consider the merits of
this claim. But the trial court and this Court have failed
miserably in treating the issue as virtually frivolous.
The United States Supreme Court, in the aftermath of
its decision upholding the constitutionality of the death
penalty, has emphasized the need to be sure not only that the
death penalty is the properly penalty, but that the guilt
finding process has been scrupulously adhered to. In Beck
v. Alabama (1980), 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d
392, the Supreme Court stated:
"To insure that the death penalty is . . . imposed
on the basis of 'reason rather than caprice or
emotion,' (the courts) have invalidated procedural
rules that tended to diminish the reliability of
the sentencing determination. - - reasoning
The same
must apply to rules that diminish the reliability
of the guiltdetermination." (Emphasis added.)
7-

And the Supreme Court has long recognized that the
question of whether a verdict was unanimous in a death penalty
case must not be left to guesswork.
 In Andres v. United States (1948), 3 3 3 U.S. 740, 68
S.Ct. 880, 92 L.Ed. 1055, the trial court failed to instruct
the jury that it must be unanimous as to both guilt and as
to a sentence recommendation. Under the statute involved, a
conviction required the death penalty to be imposed unless
the jury directly stated in its verdict that it should not
be imposed. The court held that where a statute requires
jury input on sentencing, unanimity is required, and the
jury had not been expressly instructed that it must also
reach unanimity as to whether it made no recommendation
(thereby triggering mandatory imposition of the death penalty),
or whether it made a recommendation that the death penalty
not be imposed. Because there was no assurance that the
jury knew of the unanimity requirement with respect to
sentencing, the Supreme Court reversed, stating: "In death
cases, doubts such as these presented here [doubts as to
unanimity] should be resolved in favor of the accused." 333

U.S. at 752.
In the third McKenzie case, State v. McKenzie (1979),
Mont . , 608 P.2d 425, 474, 36 St.Rep. 2157, in
discussing the impact of the unconstitutional Sandstrom-type
jury instructions on the jury verdicts, I raised the added
spector that McKenzie may also have been the victim of less

than unanimous jury verdicts because of the many alternative
charges to the jury, and because of the failure of the
verdicts returned to specify the underlying basis for the
conviction. I cited and quoted from United States v. Gipson
5th Cir.
y1977), 553 F.2d 453, 457-458, which held that: "[rlequiring
the vote of twelve jurors to convict a defendant does little
to insure that his right to a unanimous verdict is protected
unless this prerequisite of jury concensus as to the defendant's
course of action is also required."
 The spector of a nonunanimous verdict in a death
penalty case has now been raised here.
Coleman was charged with three distinct crimes: count
I, deliberate homicide; count 11, aggravated kidnapping; and
count 111, sexual intercourse without consent. For each of
these crimes charged, the jury was instructed that it could
reach a verdict based on several alternative theories of
criminal responsibility. Under count I, the jury was instructed
it could find Coleman guilty of deliberate homicide by use
of the felony-murder rule, or by finding that he purposely
and knowingly killed Lana Harding. But under the felony-
murder rule the jury was given the choice of several felonies,
including unspecified felonies, to apply in determining
whether Coleman was guilty of felony-murder. Under count
11, aggravated kidnapping (which conviction triggered the
death penalty here) the jury was given several choices of
what felony Coleman had in mind to commit when he held or
secreted Lana Harding. Furthermore, several - these choices
of
are unsupported - substantial evidence.
by Under count 111,
sexual intercourse without consent, the jury was given two
choices as to proof of the issue of "without consent." One

- those choices - unsupported by substantial evidence.
of is -
The trial court gave the jury only a general instruction
on unanimity, applicable to all three charges, which stated
that ". . . such verdict must be unanimous, which means that
all of you must agree on the verdicts." The trial court
failed, however, to instruct the jury that its verdict on
each charge must be unanimous on one or more of the theories
of criminal responsibility. The verdict forms given to the
jury by the trial court, provide no basis to determine the
underlying statutory theory or theories applied by the jury
in finding Coleman guilty.
The jury returned guilty verdicts on all three charges,
but the verdicts specified only that Coleman was guilty of
count I, deliberate homicide; that he was guilty of count
11, aggravated kidnapping; and that he was guilty of count
111, sexual intercourse without consent. It is impossible
to determine from these verdicts whether the jury was unanimous
on one or more theories of criminal responsibility for an
essential element of the crime. In addition, at least one
theory of "without consent" submitted to the jury on the
charge of sexual intercourse without consent (count 111) is
unsupported by substantial evidence. But more important,
several theories submitted to the jury on the charge of
aggravated kidnapping (count 11) are not supported by substantial
evidence. It remains for those more knowledgeable than me
to explain how any appellate court can approve the death
penalty for the conviction of aggravated kidnapping even
though several theories of criminal responsibility as charged
in that offense, are not supported by substantial evidence.
Both the trial court and the majority have sloughed off
this issue as essentially frivolous.
In adopting verbatim the State's proposed finding or
conclusion, the trial court ruled:
"UU. Petitioner contends that he was denied his
right to a unanimous jury verdict. But when the
instructions are read as a whole, as they must under
Coleman 11, 605 P.2d at 1052, the claim fails. See
Cupp v. Naughton, 414 U.S. 141, 147. In addition,
petitioner's reliance on the federal constitution is
misplaced in that the federal constitution does not
guarantee the right to a unanimous jury verdict in
state felony jury trials. Apodoca v. Oregon, 404
U.S. 404 (1972); Johnson v. Louisiana, 404 U.S. 356
(1972)."
 This ruling treats the issue in a most summary fashion,
evading rather than meeting the question raised, But the
majority opinion is even worse, for it fails even to identify
the issue, let alone to analyze the issue with respect to
the procedural context of the charges, the instructions, and
the verdicts returned. The majority disposes of this claim
by another omnibus ruling in Part VII of its opinion, disposing
of this and four more issues:
". . . Because the post-conviction procedure is
a new civil remedy, the failure to present claims
in earlier proceedings would not bar them from
presentation at this time. However, we have
reviewed the claims and find the same to be
unmeritorious. It was not error for the court
to deny them summarily . . ."
The trial court's reliance on Johnson v. Louisiana (1972),
uoc.
.8gq U.S. 356, and Apodoca v. Oregon (1972), 404 U.S. 404,
is misplaced. It is true that both cases hold that a state
court is not required by the Sixth and Fourteenth Amendments
to guarantee a unanimous jury verdict. But this holding
ignores the fact that Montana's Constitution, Art. 11, S 26
("In all criminal actions, the verdict shall be unanimous"),
guarantees a unanimous verdict to all defendants charged in
state court, whether it be a felony or even a misdemeanor.
In light of our own constitution, the United States Supreme
Court would clearly not permit this Court to sanction a
death penalty conviction where the verdict may have been
less than unanimous. If we did not assure that Coleman had
unanimous jury verdicts, we would, in effect, deny him equal
protection of law. And that is a federal question.
This Court cannot, without denying equal protection of
the law, distinguish between a situation where a defendant
is charged with one crime and one statutory theory of criminal
responsibility, and a situation where a defendant is charged
with one or several crimes, but where he is also charged
with multiple statutory theories of criminal responsibility.
In the first situation, a general instruction on unanimity,
in addition to a guilty verdict returned on the only charge
and only statutory theory of responsibility for that charge,
would assure unanimity. But that is not so in the second
situation where a defendant is charged with three crimes,
but also charged with committing those crimes in several
alternative ways. In this situation, a general instruction
as to unanimity will not suffice. Rather, the jury must be
instructed that its verdict must be unanimous on any one or
more statutory theories applied in reaching its verdict.
Further, the verdicts returned should disclose the statutory
basis on which the jury reached its verdict. If these
requirements are not fulfilled, a defendant charged in such
a situation is deprived of equal protection of the law.
This situation is especially grievous, where, as here, the
defendant has been sentenced to death.
THE UNANIMOUS VERDICT REQUIREMENT IN THE CONTEXT OF THE
CHARGES FILED: FAILURE OF THE STATE TO FOLLOW STATUTORY
PROCEDURES
First, we must recognize that in charging Coleman by
alleging several statutory theories for the same offense,
the State failed to follow proper statutory guidelines. If
it had done so, the problems we face here would not exist.
The applicable statute, section 46-11-404, MCA, clearly sets
out the procedure for the filing of alternative charges,
that is, ". . . different versions - - -
of the same offense."
Section 46-11-404,(1),MCA, states in relevant part:
"(1) An indictment, information, or complaint
mav charae - or more different offenses
- .-
. .
J.
two - -
-
2 -
-

connected together in their commission, different
statements - - -
of the same offense, or two or more
 different offenses of the same class under
separate counts.. .. The prosecution is not
required to elect between the different offenses
or counts set forth in the indictment, information
or complaint, and the defendant may be convicted
of any number of the offenses charged. Each offense
of which the defendant is convicted must be stated
- --
in theerdic-ffinding -
-- - ~ - - court."
of the
(Emphasis added.)
Although the statute uses the word "may", the message
is that the prosecutor should charge in the manner stated
in order to avoid problems such as exist in this case. The
prosecutor did charge three separate crimes, and this statute
permits him to do so, But the statute also states that if
"two or more statements of the same offense" are charged, that
it be done so "under separate counts." If that had been done
here, the jury could have returned a verdict on each of the
separate counts, and therefore the basis for its decision
would be specified. The statute also clearly contemplates
this procedure by stating that the prosecutor is not required
to elect on his theories, but that "each offense of which the
--
defendant is convicted must be stated - - verdict
in the . . ."
I read this last sentence to mean, in context with the
entire subsection, that if a defendant is charged in separate
counts with a different statement of the same offense, a
verdict form must be prepared for that separate statement,
and the jury must return a verdict on that particular state-
ment of the offense. If this procedure had been followed in
this case, we would know the precise basis on which the jury
reached its verdict on each charge. It is the State then,
who must assume the responsibility for improperly charging
Coleman and for setting in motion the ambiguous verdicts.
The State's error in not following this statute, is
magnified by the failure of the trial court to instruct the
jury that its verdict must be unanimous on each statutory
theory of criminal responsibility presented to it by the
instructions. Again, that fault must be laid to the State
and to the trial court. Furthermore, the trial court provided
the ambiguous verdicts for the jurys' case.
I proceed next to a discussion of the general law in
relation to the requirement of a unanimous jury verdict, and
then I will discuss the charges, the jury instructions, and
the verdicts returned in this case.
DETERMINING JURY UNANIMITY WHERE STATUTORY THEORIES OF THE
CRIMES ARE CHARGED ALTERNATIVELY IN THE SAME COUNT
If only one crime is charged in one count, and if
only one statutory theory of that crime is pleaded, the
unanimity requirement normally presents no problem. It is
sufficient to instruct the jury that it must reach a unanimous
verdict. But the problem is entirely different where a
defendant is charged with one crime in one count, but where
in the same count, he is charged with committing that crime
alternatively in several different ways.
For example, if a defendant is charged with aggravated
kidnapping with a purpose to commit the felony of sexual
intercourse without consent, or the felony of aggravated
assault, it is not sufficient if six jurors believe that the
defendant kidnapped the woman for the purpose of sexual
intercourse without consent, and the six other jurors believe
that the defendant kidnapped the woman for the purpose of
committing aggravated assault upon her. If a jury returns
a verdict on this basis, they are not in unanimous agree-
ment, and the verdict cannot stand. In this situation, it
is not a question of whether substantial evidence supports
both theories, it is a question of whether the jury unanimously
agreed to at least one theory. It is up to the jury to reach
unanimity and the function of the appellate court is to
determine if the jury in fact reached unanimity.
DETERMINING JURY UNANIMITY--FUNCTION OF APPELLATE COURT
The appellate court, of course, cannot read the jurys'
mind, and so review necessarily involves an examination of
the charges filed, the instructions given defining the
elements of those charges, the instructions given with regard
to the requirement of unanimity, and the verdicts actually
returned by the jury. Obviously, if the verdict specifies
the theory used by the jury in finding guilt, no problem is
presented. It is then only a question of examining the
evidence to determine if the theory used is supported by
the evidence. The question, therefore, nearly always arises
where the verdict form is ambiguous and only the jurors know
what was actually decided.
Ambiguous jury verdicts in criminal cases are frequently
the result of a failure to properly charge a crime or crimes,
and of a failure to give the jury proper instructions and
verdict forms. For example, if a defendant is charged in
count I with two or more crimes, what does a jury verdict
reveal where it finds that defendant is guilty of count I?
Did the jury convict the defendant of one crime or both?
Was the jury unanimous with respect to either? United States

v. Starks (3rd Cir. 1975), 515 F.2d 112, 116-117. Also see,
United States v. Uco Oil Co. (9th Cir. 1976), 546 F.2d 833, 835,
cert.den. (1977), 430 U.S. 966, 97 S.Ct. 1646, 52 L.Ed.2d
357. And, of course, the same questions can be asked,
although in a slightly different context, if a defendant
is charged in count I with one crime, but where several
alternative theories are also alleged in that count. If
the jury returns a guilty verdict to count I, the questions
arise as to whether the jury convicted defendant under one

-51-
alternative theory, or more than one alternative theory, or
under all alternative theories. In addition, the question
arises aso to whether the jury reached unanimous agreement on
at least one theory? No one knows.
One of the first questions is to determine how the jury
was instructed on the question of unanimity. Some courts have
held that a general instruction on unanimity is sufficient.
For example, see, State v. Arndt (1976), 87 Wash.2d 374, 553
P.2d 1328; United States v. Natelli (2nd Cir. 1975), 527 F.2d
311; State v. Williams (Iowa 1979), 285 N.W.2d 248; State v.
Souhrada (1948), 122 Mont. 377, 204 P.2d 792. On the other
hand, other courts have held that a general instruction is
not sufficient; rather, the jury must be specifically instructed
that it must reach unanimous agreement on any one or more
statutory theories of criminal responsibility as charged by
the State.
The defect of a general instruction has been pointed
out in United States v. Gipson, supra:
"The unanimity rule thus requires jurors to be
in substantial agreement as to just what a
defendant did as a step preliminary to determining
whether the defendant is guilty of the crime
charged. Requiring the vote of twelve jurors
to convict a defendant does little to insure that
his right to a unanimous verdict is protected
unless this prerequisite of jury concensus as
to the defendant's course of action is also required."
553 F.2d at 457-458.
Implicit in this ruling is a requirement that the trial
court instruct the jury that it must reach unanimity on
any theory used as a basis to find guilt.
Several state courts have held that a jury must be
instructed that its verdict be unanimous on one or more of
the alternative theories submitted to the jury for its decision.
See, for example, State v. Bleazard (1943), 103 Utah 113,
133 P.2d 1000, 1003; People v Thompson (1956), 144 Cal.App.
.
2d 854, 301 P.2d 313. And more recently, in cases involving
the alternative theories of premeditated murder and felony-
murder, Michigan and Washington have held that the jury must
be instructed that its verdict be unanimous on at least one
of the theories. State v. Golliday (1979), 78 Wash.2d 121,
137, 470 P.2d 191, 201; People v. Embree (1976), 68 Mich.App.
40, 241 N.W.2d 733; People v. Olsson (1974), 56 Mich.App.
500, 507, 224 N.E.2d 691, 693-694.
In Olsson, the Michigan Court of Appeals reversed a
conviction because jury instructions failed to distinguish
between felony murder and premeditated murder, and because
the jury was not instructed that it must unanimously agree
on the same statutory theory in order to reach a verdict.
224 N.W.2d 693-694. And in Embree, the Michigan Court of
Appeals again warned trial courts that they must instruct
juries that their verdict must be unanimous on the question
of whether the alleged murder was premeditated or whether it
was committed in a situation calling for application of the
felony-murder rule. 68 Mich.App. 384, 246 N.W.2d at 7.
Finally, in Golliday, the Washington Supreme Court held that
"instructions must clearly distinguish between the alternative
theories and require the necessity for a unanimous verdict
on either of the alternatives. 470 P.2d at 201.
As I shall later demonstrate in detail, each of the
charges involved here was based on alternative allegations.
Yet the jury was not told that its verdict must be unanimous

as to any one or more theories. In addition, there is no
way of telling which theory or theories the jury used to
convict Coleman of all three offenses--one of which triggered
the imposition of the death penalty.
WHY THE CONVICTIONS MUST BE REVERSED
 Those decisions holding a general unanimity instruction
to be sufficient, fail to go beyond this general statement.
They ignore the actual doubt that inheres in such a position.
Further, they ignore the fact that it is a defect in the
judicial system that has created the problem; it is not a
problem created by the defendant. The defect can be charged
to the State in failing to properly charge the defendant in
separate counts, the defect can be charged to the trial court
in failing to instruct the jury that its verdict must be
unanimous as to any statutory theory or theories of criminal
responsibility, and the defect can be charged to the trial
court in failing to provide clear verdict forms. Because
these decisions ignore these failures in the judicial system,
and assume unanimity, analysis is confined solely to reviewing
the sufficiency of the evidence support each theory submitted
to the jury.
Obviously, if the theory of criminal responsibility is
clear, and the verdict is clear, review can then center on
the sufficiency of the evidence. If the appellate court can
state that the jury applied a particular theory or theories
in reaching its decision, the court can then confine itself
to examining the evidence to determine its sufficiency. If
it is sufficient, it can affirmed; not, the conviction
must be reversed.
But what does the appellate court do if the verdict
fails to disclose the statutory theory on which the jury
based its decision? An analysis of all theories to determine
their sufficiency clearly proceeds on the assumption that
whatever theory or theories the jury used, the jury was unanimous.
Without this assumption of unanimity, the conviction would be
reversed precisely because of the inability of the court to
say that the jury verdict was unanimous.
 But an assumption of unanimity should never be made in
a case such as the one involved here, unless the jury has
been specifically instructed that it must be unanimous on
any statutory theory or theories on which the State has based
its prosecution. Failure to give this instruction is cause
for reversal. In this event, appellate review would then be
confined to determining whether all theories are supported by
substantial evidence. If all were so supported, the judgment
would be reversed and a new trial ordered under all theories.
If not so supported, the case would be reversed with retrial
only on those theories supported by substantial evidence.
Where the appellate court rests on an assumption of
unanimity, however, reversal is required only if all theories
are not supported by substantial evidence. But the reason
for reversal is not that the jury was less than unanimous on
a theory or theory on which it based its conviction, for
unanimity is assumed. Rather, the reason for reversal is
that the jury may have been unanimous on a theory not supported
by the evidence. Uncertainty as to the theory used is the
reason for reversal. This rationale is much the same as that
used to reverse a jury verdict where the jury is given
inconsistent instructions on an important point of law.
Reversal is based on a fundamental policy rule that if the
appellate court cannot tell whether the jnry followed the
correct or incorrect instruction, and it would be unfair to
affirm a verdict based on an erroneous instruction. See,
for example, my dissent in State v. Price (1980), Mont .
,
- 622 P.2d 160, 37 St-Rep. 1926, where I thoroughly
developed this theory of appellate review. The impelling
reason for reversal in both situations is uncertainty as to
what the jury did where it may have followed an evidentiary
theory not supported by the evidence, or an erroneous
instruction, and therefore uncertainty is created as to
whether a correct verdict was reached.
Where several alternative theories of criminal respon-
sibility are presented to the jury, and where the verdict is
ambiguous as to which theory or theories were applied, review
of necessity rests on an implicit recognition that no one
knows what theory the jury actually followed in reaching its
verdict. If the jury had been instructed, however, that it
must be unanimous on any theory applied to reach a decision,
then an appellate court should assume that the jury was in
fact unanimous. But where there is no such instruction, the
appellate court should not make this assumption. The question
boils down to one of policy--how much leeway can a jury be
permitted in reaching its decision? If due consideration is
given to the fact that a defendant's liberty or even his life
is at stake, that policy should come down on the side of
reversal.
In a case such as this, a general unanimity instruction
should not enshrine the verdict with unanimity. Either an
assumption that the jury reached unanimous agreement, or an
assumption that the jury did not reach unanimous agreement,
without further analysis, fails to deal with the basic problem.
An assumption either way still rests on an implicit recognition
that the appellate court cannot tell how the jury actually

decided the case. In addition to the actual uncertainty
resulting from the ambiguous verdict, reversal should also
be mandated because the State, not the defendant, caused the
problem. The defendant should not suffer from a defect of
the judicial system.
In charging alternatively in one count rather than
charging alternatively in separate counts (see section 46-11-404
MCA, supra) the State initiated the problem of ambiguity.
The trial court then compounded the ambiguity by failing to
instruct the jury that its verdict must be unanimous on one
or more of the alternative theories of criminal responsibility
as alleged by the State. And finally, the trial court added
again to the problem by submitting to the jury the ambiguous
verdict forms. Doubt surely inheres in this situation. This
situation was created by the State (the prosecution and the
court) and the benefit of this doubt should be given to the
defendant. United States v. Andres, supra. In any criminal
case, fundamental due process impels a reversal; in a death
penalty case such as this fundamental due process mandates
a reversal.
ANALYSIS OF THE CHARGES FILED, THE INSTRUCTIONS GIVEN, AND
THE VERDICTS RETURNED IN THIS CASE
The formal charge for each count, the instructions
for each count, and the verdict forms for each count, present
essentially the same problems. The instructions for count
I, the deliberate homicide charge, for count 11, the aggravated
kidnapping charge, and for count 111, the sexual intercourse
without consent charge, respectively gave the jury several
alternative statutory theories on which the jury could base
its verdict. The jury was given a general unanimity instruction
designed to apply to all three counts. But the jury was not
instructed that it must unanimously agree to any one or more
of the alternative statutory theories. Furthermore, the verdict
forms required nothing more than a determination that the
defendant was guilty or not guilty of deliberate homicide,
guilty or not guilty of aggravated kidnapping, and guilty or
not guilty of sexual intercourse without consent.
The general instruction on unanimity (instruction no. 41)
stated:
 "You are instructed that when you retire, you
are to elect one of your members as foreman
who will sign any verdicts arrived at by the
jury .
--
"Such verdicts must be unanimous, which means
- - - - - - - of
that all - - you must agree on the verdicts.
Verdict forms will be provided for your con-
venience.
"When you have reached your verdicts, you
will notify the bailiff who will return you
into court." (Emphasis added.)
I next proceed to discuss each of the separate charges.
COUNT I: THE DELIBERATE HOMICIDE CHARGE, JURY INSTRUCTIONS
AND VERDICT
The prosecutor used the following language in the formal
charge of deliberate homicide (count I):
"That the defendant purposely and knowingly caused
the death of another human being, to-wit: Peggy
Lee Harstad, while engaged in the commission of
the following felonies: Kidnapping and Sexual
Intercourse Without Consent, involving the use
of physical force and violence against the said
Peggy Lee Harstad."
This charge, unequivocally in the conjunctive, required
that the prosecutor prove each of the following facts:
1. That Coleman deliberately and knowingly caused the
death of Peggy Lee Harstad; and
2. That he did so while he was engaged in the commission
of both kidnapping and sexual intercourse without consent;
and
3. That while engaged in the commission of these
crimes Coleman used physical force to accomplish them.
As it turns out, however, the jury was not instructed
in the conjunctive language of the charge itself, but rather
was instructed that the jury could convict if it determined
either that Coleman knowingly or purposely killed the woman,
or that he did so while engaged in the commission of several
alternative applications of the felony-murder rule.
 The jury was instructed in the exact language of count I,
but was also instructed on the essential facts to be proved to
sustain the charge of deliberate homicide. This instruction
(instruction 27) unequivocally told the jury that it had a
choice of several statutory theories of criminal responsibility
on which to base its conviction:
"To sustain the charge of deliberate homicide,
the State must prove the following propositions:
"First, that the defendant performed the acts
causing the death of Peggy Harstad;
"Second, that when the defendant did so,

"(1) He acted purposely or knowingly -
or
"(2) That he was engaged in the commission
of kidnapping - - other felony which involves
or any
t h e- r e a t of physical force - violence
-- m or
against any individual.
"If you find from your consideration of all the
evidence that each of these propositions has been
proved beyond a reasonable doubt, then you should
find the defendant guilty." (Emphasis added.)
Under the second proposition to be proved, the jury had
several choices in determining how the woman's death came about.
First, the jury could determine that Coleman "purposely or
knowingly" caused the woman's death. If so, the jury could
convict Coleman of deliberate homicide. Second, the jury could
convict Coleman of deliberate homicide if it found that he
was engaged in the commission of kidnapping. Third, the
jury could convict Coleman of deliberate homicide if it
found that he was "engaged in the commission of . . .-
any
other felony which involves the - - threat - physical
use or of
-
force or violence against any individual." (Emphasis
added. )
Therefore, the jury could base a guilty verdict for the
charge of deliberate homicide by concluding that Coleman
"purposely or knowingly" caused the death of the woman, or
by applying the felony-murder rule that Coleman caused the
woman's death while he was kidnapping her or while he was
committing any other felony that involved using physical
force or threatening to use physical force against the woman
or any other person. The language "any other felony" provides
a much wider range of possible felonies that the jury may
have considered beyond that of kidnapping. The verdict
returned by the jury, however, provides no basis from which
one can determine which statutory theory or theories were
used by the jury to convict.
The verdict form signed by the jury foreman states only
that:
"We, the jury, in the above-entitled cause find
the defendant guilty of Deliberate Homicide as
charged. "
Did the jury decide without reference to the felony-
murder rule that Coleman had purposely or knowingly killed
the woman? Or did the jury decide that Coleman caused the
woman's death while kidnapping her? Or did the jury decide
that Coleman caused the woman's death while he was engaged
in the commission of some other unspecified felony that involved
the use of force or a threat to use force? Or did the jury base
its verdict on more than one of these statutory theories of
-
criminal responsibility? Finally, -- important, was
and most

-- unanimous - - - - - of these statutory theories
the jury on at least one

- criminal responsibility when it returned its guilty verdict?
of --
.. The trial court failed to instruct the jury that in order
to convict Coleman for deliberate homicide, it must agree
unanimously upon at least one of the alternative theories of
criminal responsibility relied upon by the State. Gipson,
supra and Green, supra, require that a jury be so instructed.
The verdict does not establish whether the jury found that
the defendant purposely or knowingly caused the woman's
death or whether it found the defendant guilty by application
of the felony-murder rule. And the verdict does not indicate
that the jury was in unanimous agreement that the defendant
was criminally responsible under any one, specific theory.
Based on my previous discussion of the unanimity requirement,
the deliberate homicide conviction should not be permitted
to stand. It must be reversed and a new trial ordered.
Chapman v. California, supra; and see, United States v.
Gipson, supra.
COUNT 11: THE AGGRAVATED KIDNAPPING CHARGE, JURY INSTRUCTIONS
AND VERDICT
The same situation occurs with count 11, the charge of
aggravated kidnapping, but here policy reasons also require
reversing the conviction for the added reason that because
of this conviction, Coleman was sentenced to death. Due to
the zeal of the trial court in laying the foundation to
enable it to impose the death penalty, the jury was required
in its verdict to make a special finding that the woman met
her death as a result of being kidnapped. Even assuming
this to be a unanimous finding, it still cannot be upheld
because of the defect in the underlying aggravated kidnapping
conviction.
The prosecutor charged Coleman with count 11, aggravated
kidnapping, in the following language:
"That the defendant knowingly or purposely and
without lawful authority restrained another person,
to-wit: Peggy Lee Harstad, by holding her in a
place of isolation and by using physical force to
facilitate the commission of a felony, to-wit:
Sexual Intercourse Without Consent, - for the
and
purpose of inflicting bodily injury on -
and
terrorizing the said victim, Peggy Lee Harstad,
resulting - - death - Peggy Lee Harstad."
in the of
(Emphasis added.)
Just as the deliberate homicide charge was phrased in
the conjunctive, so was the aggravated kidnapping charge
phrased in the conjunctive. This being so, the State was required
to prove each essential fact charged. However, the jury was
not instructed on this charge in the conjunctive, but was
instructed in the disjunctive. Instructions 37, 38 and 39 make
it abundantly clear that the jury was given several statutory
theories of criminal responsibility under which it could find
Coleman guilty of aggravated kidnapping.
Each of these instructions sets out a different list of
essential facts to be proved in order to sustain a conviction.
Such an inconsistency should not be permitted in any criminal
case, let alone in a death penalty case. Here, this inconsistency
is reason enough to reverse the conviction of aggravated
kidnapping. How does anyone know which of the inconsistent
instructions the jury followed in reaching its guilty verdict,
or whether, because of the inconsistencies, the jury followed
any of them at all?
In instruction 37, the trial court defined the crime
of aggravated kidnapping as follows:
"A person commits the crime of aggravated
kidnapping if he knowingly or purposely and
without lawful authority restrains another person
by secreting or holding her in a place of isolation
with- - - following purposes:
- any of the
"(1) to facilitate commission of any felony;
" ( 2 ) or to inflict bodily injury or to terrorize
-
the victim." (Emphasis added.)
In this instruction the jury was told that it could con-
vict if Coleman, in restraining the woman, had the purpose
to commit any felony, - if he had the purpose to inflict
or
bodily injury, - if he had the purpose - terrorize the woman.
or to
Then, instruction no. 38 attempted to set out other
facts which the State was required to prove, according to
the actual charge filed against the defendant:
 "The offense of Aggravated Kidnapping requires
that the voluntary act (the secreting or holding
- - victim without --
of the lawful authorityin a place
of isolation, or the holding of said person by
physical force or threats thereof), be done either
knowingly or purposely, and in addition thereto,
that it be done for one of the following purposes:
" (a) to facilitate the commission of any felony
(in this case sexual intercourse without consent
of the victim, - an aggravated assault upon the
or
-
victim), or
"(b) to inflict bodily injury on the victim."
(Emphasis added.)
In this instruction, the jury was told that the State
had to prove these facts: First, that Coleman held or
secreted the woman, and that he did so either without lawful
or -
authority - by using physical force or threatening - -
to use
physical force. Second, that Coleman had one or more of the
following purposes when he held or secreted the woman: (a)
the purpose to facilitate the commission of - felony
any
(here, limited to sexual intercourse without consent or
aggravated assault) or (b) the purpose to inflict bodily
injury upon the woman. Assuming there is substantial evidence
to support each of these alternative theories, there is
still no way to tell whether the jury was unanimous in
applying any one theory.
Instruction no. 38 considerably expands the range of
alternatives set out in instruction no. 37. But then instruction
no. 39 further muddies the waters by again setting out and
expanding the theories of criminal responsibility under
which Coleman was charged:
"To sustain the charge of aggravated kidnapping,
the state must prove the following propositions:
"First: That the defendant knowingly or purposely
restrained Peggy Harstad by secreting her in a
place of isolation; and
"Second: That the defendant had the purpose in
so acting to facilitate the commission of -
any
felony, or to inflict bodily injury, or to terrorize
7

Peggy ~arstad.
 "Third, that in so doing the defendant acted without
lawful authority.
"If you find from your consideration of all the
evidence that each of these propositions has been
proved beyond a reasonable doubt, then you should
find the defendant guilty.
"If, on the other hand, you find from your con-
sideration of all the evidence that any of these
propositions has not been proved beyond a reasonable
doubt, then you should find the defendant not
guilty. " (Emphasis added. )
Instruction no. 39 differs considerably from instruction
no. 37. The jury was told that it could find Coleman
guilty by finding that he had any one of three purposes in
restraining or secreting the woman. First, the jury could
find Coleman guilty by finding he had the purpose to commit
any felony. Although instruction no. 37 also states -
any
felony, instruction no. 39 considerably expands upon instruction
38, which limited the purpose to the commission of sexual
intercourse without consent or aggravated assault. Second,
the jury could find Coleman guilty by finding his purpose
was to inflict bodily injury upon her. This prosecution
theory is also stated in instructions no. 37 and 38, and
therefore is not inconsistent. Third, the jury could find
Coleman guilty by finding his purpose in holding or secreting
the woman was - terrorize her.
to This language is consistent
with instruction no. 37 but is not consistent with instruction
no. 38.
Because these instructions are inconsistent, there is
no way to determine which of the instructions the jury has
followed, or whether the jury has disregarded them altogether.
Where there has been inconsistent instruction on the essential
elements of the crime charged, as there was here, it should
not be tolerated on appeal. Here especially, where incon-
sistent instruction on the elements of the crime may have
led to a conviction resulting in the death penalty, this
Court should not have to think twice before reversing the
conviction and granting a new trial--reversal should be
automatic.
The dangers inherent in inconsistent instruction on the
essential elements of aggravated kidnapping are further
magnified by the general verdict returned by the jury which
fails to disclose the theory or theories the jury applied in
reaching its verdict. The verdict stated:
"A. We, the jury, in the above-entitled cause,
find the defendant Guilty of the offense of
Aggravated Kidnapping as Charged.
"B. We further find that Peggy Harstad [did]
[did not] die as a result of said Aggravated
Kidnapping.
"(Strike out bracketed word or words that do
not apply) ."
To find Coleman guilty of aggravated kidnapping, the
jury had to find that Coleman, in restraining or secreting
the'woman, had, as his purpose at least one of those purposes
listed in instructions no. 37, 38 and 39. How can we tell
which purpose or purposes the jury used.in reaching its
decision? And, because the instructions are inconsistent on
an essential element of the crime, how can we tell which
instruction the jury used? And, because the instructions
are inconsistent, can we be sure that the jury used any of
the three instructions?
The aggravated kidnapping charge must be reversed.
First, in a criminal case inconsistent instructions as to an
essential element of a crime, requires a reversal and a new
trial. See Price, 622 P.2d 160, and cases cited in my dissent
(622 P.2d 168, 37 St.Rep. 1935A). Second, the trial court
erred in failing to instruct the jury that its verdict must
be unanimous on any theory or theories of criminal responsibility
charged by the State. People v. Olsson, supra, People v.
Embree, supra; State v. Golliday, supra; State v. Bleazard,
supra; People v. Thompson, supra; United States v. Gipson,
supra. Third, the trial court submitted ambiguous verdict
forms to the jury, and the verdict returned fails to disclose
the statutory theory or theories on which the jury based its
guilt determination. Fourth, consider that substantial
evidence does not support each of the statutory theories
submitted to the jury. State v. Green (1980), 94 Wash.2d
216, 616 P.2d 628. And finally, consider that the aggravated
kidnapping conviction laid the foundation for imposition of
the death penalty. Reversal is absolutely required if the
judicial system is to maintain its integrity.
SUBSTANTIAL EVIDENCE DOES NOT SUPPORT EACH OF THE ALTERNATIVE
THEORIES GIVEN TO THE JURY
In instruction no. 38, the jury was told that it could
convict Coleman by finding that he held or secreted the
woman for the purpose of committing sexual intercourse
without consent or for the purpose of committing aggravated
assault. There is no substantial evidence to support either
of these theories.
There is not a shred of evidence to establish that when
the woman was first held or secreted, Coleman then had as
his purpose that of committing sexual intercourse without
consent. When the woman was kidnapped, according to the
testimony of accomplice Nank, it was their purpose to rob
the woman and to kill her. In fact, it was not until sometime
later, at Nank's initiation, that Coleman (according to
Nank) accomplished an act of intercourse with the woman.
The fact that accomplice testimony, however weak (corroborated
only by a negroid pubic hair found in the woman's car),
indicated that at some time during this episode Coleman had
intercourse with the woman, fails to establish that Coleman
had intercourse as his purpose in holding or secreting her.
Even under holdings which assume jury unanimity by the giving
of a general instruction, e.g. State v. Souhrada, supra, the
conviction must be reversed because substantial evidence
does not support the alternative theory that Coleman held
or secreted the woman in order to accomplish an act of
sexual intercourse without consent.
Nor is there substantial evidence to support a conclusion
that Coleman had as his purpose in holding or secreting the
woman to commit an aggravated assault upon her. Accomplice
Nank testified that he and Coleman planned to rob and kill the
first person they got a ride from, but this does not establish
that it was Coleman's purpose to commit an aggravated assault
upon the woman. Although it can be argued that an aggravated
assault would be committed in the process of killing the
woman, it nonetheless does not establish that Coleman held
or secreted the woman for the specific purpose of committing
an aggravated assault.
Instructions no. 37, 38 and 39 also each provide that
Coleman could be convicted of aggravated kidnapping if he
had as his purpose in holding or secreting the woman, to
inflict bodily injury upon her. Substantial evidence does
not support this theory, either. Accomplice Nank's testimony
states only that it was their purpose to rob and kill the
person who picked them up. Although it can again be argued
that a purpose to kill subsumes a purpose to inflict bodily
injury, it nonetheless does not establish the fact that
Coleman held or secreted the woman for the specific purpose
of inflicting bodily injury upon her.
 Instructions no. 37 and 39 told the jury that if could
convict Coleman of aggravated kidnapping by finding that he
had the purpose in holding or secreting the woman, to
terrorize her. There is not a shred of evidence to support
this conclusion either. Assuming the testimony of accomplice
Nank to be true, undoubtedly the woman, at some stage of the
events leading to her death, was terrified. But Nank never
did testify that he or Coleman had the specific purpose
to terrorize the person who gave them a ride-.
Based on accomplice Nank's testimony, and assuming it
to be sufficiently corroborated, Coleman could have been
charged under the aggravated kidnapping statute with having
the specific purpose to commit two felonies: robbery and
homicide. (See, section 45-5-303, MCA.) But he was not so
charged. Rather, he was charged with having the specific
purpose, among others, of committing sexual intercourse
without consent, of committing an aggravated assault, of
inflicting bodily injury, and of terrorizing. Substantial
evidence supports none of these theories. Even under holdings
which assume jury unanimity by the giving of a general
instruction, e.g., State v. Souhrada, supra, Coleman's
conviction must be reversed because the jury may have convicted
on a theory not supported by substantial evidence.
We should be compelled to reverse this conviction and
grant a new trial. The jury instructions are inconsistent
on the essential elements of the crime charged. There is no
assurance that the jury reached a unanimous verdict on at
least one of the alternative theories of criminal responsibility
set out for establishing Coleman's purpose in holding or
secreting the woman. For at least four of those purposes

listed in the instructions, there is no substantial evidence
there is no corroboration for this testimony. The negroid
pubic hair found in the woman's car certainly does not
corroborate that he used physical force. There is no
assurance that the jury based its conviction on this definition
of "without consent."
By instruction no. 33, the jury could also convict
Coleman by finding that he had intercourse with the woman by
threatening her or anyone else with imminent death, bodily
injury, or kidnapping. But Nank's testimony negates the
conclusion that Coleman accomplished intercourse by making
any of these threats. There is no evidence Coleman threatened
her or anyone else with imminent death, bodily injury, or
kidnapping. The lack of substantial evidence in the record
to support this alternative theory of proving the essential
element of "without consent," requires that the conviction
be reversed.
Furthermore, substantial likelihood exists that the
jury used a theory not supported by the evidence to convict
Coleman of sexual intercourse without consent. The jury made
an additional finding, later held by this Court in Coleman -
I

to not be supported by substantial evidence (579 P.2d at
742-43), that Coleman had inflicted physical injury on her
while accomplishing the act of intercourse. Because the jury
made this finding, the likelihood is that it determined that
Coleman threatened her with bodily injury and then carried
it out by actually inflicting physical injury. There is,
however, no substantial evidence to support that conclusion
and this Court has already determined that the jury erred in
finding that Coleman inflicted physical injuries upon her.
Beyond the substantial evidence question, however, is
still the fact that Coleman may have been deprived of a
unanimous jury verdict on the issue of "without consent."
There is no assurance that the jury was unanimous on this
issue. The jury was not instructed that it must reach a
unanimous verdict on any "without consent" theory. Our
standard of review is again governed by Chapman v. California,
supra. Proper application of Chapman requires that the
sexual intercourse without consent conviction be reversed
and a new trial granted. See, United States v. Gipson,
supra.
PART I11
A JUDGE WHO HAS IMPOSED THE DEATH PENALTY ON A DEFENDANT
SHGULD NOT SIT ON THAT DEFENDANT'S APPLICATION FOR POST-
CONVICTION RELIEF
The majority blandly decides in Part I1 of its opinion
that general policy considerations require that the sentencing
judge or trial judge also preside over a petition for post-
conviction relief. As a general proposition, I agree with
this holding. However, such a holding should never apply
in a case where the defendant has been sentenced to death.
Further, because of the allegations made in the petition for
post-conviction relief, the sentencing judge should have
removed himself from the case.
Where a sentencing judge has already imposed the death
penalty, it offends my sensibilities that this same judge
should preside over the defendant's petition for post-
conviction relief. This is especially so, where the petition
not only attacks the validity of the conviction, but also
attacks the validity of the sentence and the conduct of
the sentencing judge in imposing the sentence. How can
this Court give any credence to the decisions of the judge
when, in acting on the petition for post-conviction relief,
he has simply adopted verbatim the findings and conclusions
proposed by the State of Montana. (See Appendix A to this
 dissent.) If post-conviction relief is to have meaning,
and especially in a death penalty case, due process of
law must require that the judge carefully consider each
of the issues raised by the petitioner. Needless to say,
he failed miserably in this case.
Additional allegations Coleman makes in his petition
for post-conviction relief directly or indirectly attacking
the fairness of the sentencing judge, also' required that a
different judge preside over Coleman's final attempt to get
justice within the state court system. Furthermore, Coleman
stated in his petition that he would have to call the
sentencing judge as a witness to obtain evidence of his
claims. These allegations required, especially in a death
penalty case, that the sentencing judge call in another
judge to preside over the hearing.
Issue C claims that the sentencing judge, without
notice to Coleman, amended the information before the trial
started, and without legal authority to do so. He alleges
this was an amendment of substance because without it, the
death penalty could not have been triggered in the event of
a conviction for aggravated kidnapping. The sentencing
judge added the words to the information "resulting in the
..death of Peggy Lee Harstad." It cannot be doubted that this
jury finding triggered the application of the death penalty,
for the statutes then mandated the death penalty in the event
of such a determination. See, Coleman - 579 P.2d 732.
I,
The essence of Coleman's claim is that the trial court would
get the death penalty in the event of a conviction.
To establish the judge's intentions, Coleman wanted
the judge to testify. In Coleman - 605 P.2d 1000. I dissented
11,
to this Court's decision in effect validating the judge's
amendment of the information. (I know of no authority
permitting the judge to become an advocate by changing the
charge.) This amendment, which mandated the death penalty
in the event of a conviction, was the beginning of the
orchestration of the proceedings by the trial court which
eventually led to Coleman being sentenced to death.
Issue Y claims that the judge made his decision to
hang Coleman before the judge even held the sentencing
hearins. Gol-eman a l l e- q e i l e ~ ~ ~ d e & a - K la c t thU; ille-
2
f c
. RTG Coleman alleges the
SV undeniable fact
that the sentencing judge arrived at the hearing with his
findings and conclusions and death sentence already prepared.
I dissented to this procedure in Coleman - 605 P.2d 1000,
11,
and concluded that it was a blatant denial of due process
of law. Although I believe that the facts speak for themselves,
Coleman alleges in Issue Y that he is entitied to have
testimony from the sentencing judge himself as to whether he
decided to impose the death penalty before he even held the
sentencing hearing. Coleman is entitled to that testimony,
even though the judge would never admit that he had prejudged
the case. In any event, Coleman would be entitled to ask
the judge why he had his sentence of death prepared in
advance of the hearing, and whether he also had prepared in
advance findings and conclusions and a sentence that did not
impose the death penalty.
Issue BB claims that the sentencing judge failed to
consider that Coleman had no previous criminal record of any
kind. Coleman alleged he needed the testimony of the sentencing
court to determine why he had never considered the negative
criminal record, The semantics used by the sentencing court
have been the subject of my dissent in Coleman - 605 P.2d
11,
lC00, 1002 - 51, and I again elaborate on this issue in part
VIII of my dissent.
Issue DD claims that the sentencing judge, in ruling
that Coleman and Nank burglarized a home earlier on the same
day as the crimes involved here, relied solely on the uncor-
roborated trial testimony of Nank. In Coleman - I con-
11,
eluded that the sentencing court had no right to make a
ruling based on Nank's testimony, and I further dissented to
the use of that ruling in denying Coleman full credit for
not having a previous criminal background. 605 p.2d 1027
to 1040. If the sentencing judge made this ruling based on
testimony or evidence other than provided by Nank at the
trial, Coleman claims he is entitled to know the source, and
therefore that he must be permitted to examine the sentencing
judge. Coleman should have that right.
Issue I1 claims that the sentencing judge in fact
decided that the sentencing statutes were mandatory if it
found the existence of an aggravating fact and that mitigating
factors were not "sufficiently substantial to call for
leniency." Therefore, once the sentencing court made these
preliminary findings, Coleman claims that the sentencing
judge believed that he was required to impose the death
penalty. If this was his interpretation, Coleman claims
that this interpretation flies in the face of Supreme Court
rulings holding that mandatory provisions are impermissible.
Because this interpretation does not exist on the face of
the findings and conclusions entered by the sentencing
judge, Coleman claims that he needs the testimony of the
sentencing judge to find out if he in fact interpreted the
statute as mandatory. Coleman is entitled to know if this
was the interpretation given by the sentencing judge, and
because the judge is the only source of this information,
his testimony is imperative.
 Issue JJ claims that the sentencing judge believed he
was limited by statute to consider only if mitigating factors
were "sufficiently substantial to call for leniency . . ."
If this is so, Coleman claims that the sentencing court
determined that he could not consider other factors which
might affect the decision. Only by the testimony of the
sentencing judge, Coleman claims, can it be determined how
the judge interpreted his obligation in relation to con-
sideration of mitigating factors. Because the sentencing
record is not clear on this point, Coleman is entitled to an
explanation. That explanation can come only from the
sentencing judge.
Issue KK seems to claim that the sentencing judge
applied different standards of proof to mitigating factors
than he did to aggravating factors. Although the claim is
not at all clear, I assume that his claim is that the statute
setting forth the aggravating factors has no standard of
proof at all, while, on the other hand, the statute setting
forth the mitigating factors, requires that these factors be
"sufficiently substantial as to call for leniency . . ." The
findings and conclusions are silent as to the standards of
proof applied to aggravating factors and mitigating factors,
and therefore, Coleman claims he is entitled to have the
sentencing court testify as to the standards it used in
making these findings. Because the sentencing court did
not state the standards applied, it is again clear that the
only source of what standards were applied must come is
testimony from the sentencing judge.
Issue 0 s&ems to be similar to Issue
0 KK. Coleman claims
that he is entitled to know precisely what standard the
sentencing judge used in finding the existence of aggravating
factors and the nonexistence of mitigating factors. He also

-75-
alleges under this contention that the sentencing court
may have relied for sentencing, on "evidence, statements,
testimony, comments, opinions, letters or telephone calls
from other persons, and not presented at any hearing attended
by Coleman." Again, the only person who would have this
knowledge is the sentencing judge.
If any one of these allegations raised by Coleman is
not sufficient by itself to have another judge preside over
Coleman's petition for post-conviction relief, certainly
the force of all of them combined is undeniable cause for
the judge to have removed himself, and in the event of his
refusal, for this Court to order his removal. The judicial
system is somehow demeaned by not having another judge take
a look at the case, even though I am fully aware of the
inherent back-scratching proclivities of the trial bench.
If it was so important that the sentencing judge preside
over the petition for post-conviction relief because of
his familiarity with the case and with the issues, I then
fail to see how his Court implicitly condones his adoption
of the State's proposed findings of fact and conclusions
of law--hook, line and sinker.
In addition, Coleman's allegations made the testimony
of the sentencing judge imperative--for the judge was the
only source of the evidence needed for Coleman to establish
his claim. But because of the judge's refusal to remove
himself from the case, the judge effectively prevented Coleman
from obtaining evidence on these issues.
By writing the opinion so as not to disclose the issues
raised, the majority has also denied Coleman the full and
fair appellate review to which he is entitled.
 PART IV
THE MAJORITY HAS ERRED IN PERMITTING THE SENTENCING COURT
TO APPLY DEATH PENALTY STATUTES TO COLEMAN WHICH WERE ENACTED
AFTER THE DATE OF THE CRIMES
After our decision in Coleman - the sentencing court
I,
again sentenced Coleman to death, but this time the court
retroactively applied Montana death penalty statutes enacted
after the date of the crimes. In Coleman - Coleman claimed
11,
that application of these death penalty statutes violated the
ex post facto clauses of the United States and Montana Con-
stitutions. He further argued that this retroactive
application of statutes violated certain Montana statutes
designed especially to prohibit retroactive application of
statutory provisions. In holding against Coleman, the
majority stretched the law to the breaking point. 605
P. 2d iD0~,1023 - 1026. I dissented on both grounds and
concluded that the sentencing court and this Court had
violated the United States and Montana Constitutions, as
well as existing Montana statutes. 605 P.2d 10fl0, 1023 -.1026.
Issues Z and AA, again raise these issues and, of
course, Coleman again lost before the sentencing court and
before this Court. In the omnibus ruling in Part IV, which
decided against Coleman on this and 13 other issues by one
stroke of the pen, the majority has declared this issue to
be res judicata. I have stated my views once in Coleman -
11,
and need not repeat them here. I would hold that we have
violated the United States Constitution and our own constitution
in retroactively applying the death penalty statutes, as
well as violating statutes designed to prevent this very
kind of unfairness. By properly applying the standards set
out in United States v. Sanders, supra, I would again review
this question and grant the relief requested.
 PART V
THE SENTENCING STATUTES UNCONSTITUTIONALLY REQUIRE THE
DEFENDANT TO PERSUADE THE SENTENCING COURT THAT HIS LIFE
SHOULD BE SPARED
By Issue 00, Coleman states that section 46-18-305,
MCA, unconstitutionally shifts the burden of persuasion to
him to prove mitigating facts and to persuade the sentencing
judge that his life should be spared. The relevant part of
section 46-18-305 provides:
". . . the court ... shall impose a sentence
of death if it finds one or more of the aggravating
circumstances and finds that there are no mitigating
circumstances sufficiently substantial to call for
leniency."
This statute undoubtedly places the burden on a defendant
to persuade the sentencing judge that his life should be
spared. In adopting verbatim the State's proposed findings
and conclusions on this point, the sentencing court totally
missed the issue raised. The court ruled:
"00. Montana's capital sentencing scheme provides
for the consideration of mitigating circumstances,
a provision which benefits capital defendants. The
issue presented involves only sentencing, not guilt
or innocence, and petitioner's due process claims
are without merit. See Coleman 11, 605 P.2d at
1057, cert.den. 100 n t . m, and State v. Watson,
Ariz., 586 P.2d 1253, 1258 (1978), cert.den. 440
U.S. 924. A
2752
The majority, in its omnibus ruling in part V disposed
of this and 12 other issues on the ground that they are res
judicata and vague. Issue 0 is neither.
0

Cohtrary to.the trial court's ruling that we ruled
on this issue at 605 P.2d at 1057, in Coleman - and
11,
contrary to the implication of the decision here, we did
not rule on this issue. Rather, the majority held in Coleman

- that section 46-18-305, MCA does not limit the sentencing
I1
court "from considering any aspect of the defendant's record
or character as a mitigating factor." This ruling says
nothing about the shifting of the burden of persuasion. The
claim cannot be vague where Coleman asserts that section
46-18-305 unconstitutionally shifts the burden of
persuasion to him to convince the sentencing court his
life should be spared. This section unmistakeably shifts
the burden of persuasion; the question is whether it is
constitutional to do so. Both the trial court and this
Court have failed to rule on this issue
This question was raised in Lockett v. Ohio (1978), 438
U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973, but the Supreme
Court vacated the death sentence on other grounds and so
specifically declined to rule on this issue. 438 U.S.
609, n. 16, 98 S.Ct. 2967, N. 16, 57 L.Ed.2d 992, n. 16.
I would hold that the Montana statute is unconstitutional.
In a capital offense, basic fairness in the sentencing
process requires that the state have the burden of proving

the existence of aggravating factors, and the nonexistence
of mitigating factors. Further, the State should have the
burden to convince the sentencing court that the defendant's
life should be taken.
In all criminal trials, the defendant is presumed
innocent, and the State must prove each essential fact
beyond a reasonable doubt. In Re Winship (1970), 397 U.S. 358,
90 S.Ct. 1068, 25 L.Ed.2d 368. This rule should not be
permitted to evaporate in the sentencing stages where the
results of that process may result in a death sentence
unless the defendant can prove substantial mitigating
factors and can also convince the sentencing court to spare
his life. At a sentencing hearing, to keep the burden on the
state, the presumption must be that the defendant is entitled
to a punishment less than death and the State must prove all
those factors necessary to the imposition of the death
penalty. Those burdens were not met here, for not only did
the statute impose the burden on Coleman that his life

-79-
should be spared, Coleman also had no meaningful opportunity
to present his case because the sentencing court came to the
sentencing hearing with an order imposing the death sentence
ready to be filed at the end of the hearing. Given this
fact, how can anyone conclude that the sentencing court had
not already decided to impose the death penalty?
PART VI
RIGHT TO JURY TRIAL ON DEATH PENALTY ASPECT OF CRIME
Issues HH and PP claim that Coleman has a right to a
jury trial on the death penalty aspects of this case. In
Issue HH, he claims that the jury should have the final
right to determine whether he should live or die. By Issue
PP, he claims that the jury should have the right to determine
the presence or absence of both aggravating factors and
mitigating factors. He has raised only one of these issues
before, Issue PP, and this Court in Coleman - ruled
11,
against him. 605 P.2d 1015 . t ~
1018. I dissented. 605 ~ . 2 d
1022.

By adopting verbatim the findings and conclusions
prepared and presented by the State, the trial court, of
course, decided against him. (See, Appendix, Issues HH and
PP of sentencing judge's order.) In part IV of its omnibus
ruling disposing of 27 issues, this Court today rules against
him, without ever discussing the issue as to whether the
jury should be the ultimate sentencing authority in a
capital case.
Contrary to the implied assumption of the majority
opinion, this issue is not foreclosed. In Lockett v. Ohio,
supra, Lockett claims that she had a right to a jury trial
on all issues and that a jury should decide the ultimate
issue of life or death. The United States Supreme Court,
however, vacated the death sentence on other grounds, and
expressly reserved judgment on this issue. 438 u.S. 586,
98 S.Ct. 2954, 57 L.Ed.2d 973. The court expressly
noted in footnote 10: "nor do we address her contention
that the Constitution requires that the death penalty be
imposed by a jury . . ."
If the death penalty can be called civilized, the only
way it can remain so within concepts of contemporary community
standards, is to require the jury to make that final, fateful
decision. In lkimphrey v. Cady (1972), 405 U.S. 504, 509,
92 S.Ct. 1048, 31 L.Ed.2d 394, the United States Supreme
Court recognized that in determining facts and being involved
in capital sentencing "the jury serves the critical function
of introducing into the process a lay judgment, reflecting
values generally held in a community." Later, in Gregg v.
Georgia, supra, the Court recognized the need to involve the
juries in the capital sentencing process as "a significant
and reliable index of contemporary values." 428 U.S. 1531
96 s.c~. 2909, 49 L.Ed.2d 859. And eight years earlier,
the Supreme Court stated that jury involvement in a capital
case serves "to maintain a link between contemporary values
and the penalty system--a link without which the determination
of punishment could hardly reflect 'the evolving standards
of decency that mark the progress of a maturing society.'"
Witherspoon v. Illinois (1968), 391 U.S. 510, 520, n. 15,
88 S.Ct.. 1770, n. 15, 20 L.Ed.2d 776, n. 15.
In my dissent in Coleman - I briefly set out my views
11,
as to why a jury should be involved in the sentencing process
in a capital case, and why a jury should make the final and
fateful decision whether a defendant should live or die. 605
P.2d at 1045. My experience since then, in dealing with
the capital cases that have been and are now before this
Court for review, has convinced me even more of the cor-
rectness of this view.
In addition to what I stated there, all that I have
stated concerning the procedural irregularities and errors
that took place before the trial, during trial, and after
trial (during the sentencing process) should be considered.
The final blow to Coleman in his application for post-
conviction relief, came when the trial .court adopted verbatim
the proposed findings and conclusions presented by the State
of Montana, denying any relief to Coleman, and affirming all
that the trial court had done before.
Combine all the errors or irregularities taking place
during the history of this case, and I do not believe too
many appellate courts could state in good conscience that
Coleman has been granted due process of law sufficient to
sustain constitutional attack. Add to that the fact that we
are dealing with a death penalty case, and I don't think any
appellate court could state in good conscience that Coleman
has been granted due process of law. In effect, by refusing
to discuss or even identify any of the substantive issues
raised by Coleman in his petition for post-conviction
relief, the majority here has done nothing more than rubber-
stamp the findings and conclusions of the trial court and
those findings and conclusions came straight from the State
.of Montana's typewriter.
PART VII
DEATH BY HANGING AS CONSTITUTING CRUEL AND UNUSUAL PUNISH-
MENT
Issue TT claims that death by hanging constitutes cruel
and unusual punishment under 1972 Mont. Const., Art. 11,
5 22, and under the Eighth and Fourteenth Amendments to the
-82-
United States Constitution. Coleman points out that only
three states permit death by hanging (Montana, Delaware and
Washington) and it has been rejected in all other American
jurisdictions and in all European jurisdictions. (I note
here that since Coleman filed this claim, the Washington
State Supreme Court has held that death by hanging con-
stitutes cruel and unusual punishment. State v. Frampton
(1981) - Wash. 2d
I , 627 P.2d 922.) He alleges that
persons executed by hanging die slowly, usually by strangulation,
and suffer extreme pain in excess of that inherent in the
extinguishment of life. He further alleges that one of the
reasons for this slow, tortuous form of death, is that
competent hangmen no longer exist in the United States or
elsewhere, and therefore the hanging cannot be competently
administered.
The trial court disposed of this issue by reference to
the majority opinion in Coleman --
11, Mont. , 605
P.2d 1000, 1059, where the majority simply deferred to the
legislature and stated: "We have no power to change these
settled provisions of the law, nor can we say that hanging
is constitutionally cruel or unusual." The majority opinion
has simply denied this claim in its omnibus ruling in part
VI of the opinion, disposing of this and 6 other claims.
The court states that it has no power to change the
law, but the simple fact is that courts have from the beginning
of the separation of powers, been changing the law--yes,
even settled provisions of law. The real reason is simply
that the majority does not want to change the law in this
case. But Coleman claims here that he is entitled to an
evidentiary hearing to establish that death by hanging is in
fact cruel and unusual. This question cannot be rationally
 decided without first considering the scientific or expert
evidence that is now available. The Washington Supreme
Court did so, and quoted some graphic testimony and state-
ments as to the barbarity of hanging as the method of
inflicting capital punishment. 627 P.2d 934 to 936.
The United States Supreme Court has repeatedly stated
that the Eight Amendment--prohibition against cruel or
unusual punishment--"must draw its meaning from the evolving
standards of decency that mark the progress of a maturing
society." Trop v, Dulles (1958), 356 U.S. 86, 78 S.Ct.
590, 2 L.Ed.2d 630. Using this standard ". . . what might
have been common and not thought to be cruel or unusual in
1789 might be completely obnoxious to society in the United
States today." Owens-El v. Robinson (1978), 442 F.Supp.
1368, at 1375. The legislature certainly does not have the
right to be the last word on the constitutionality of its
own legislation, but that is precisely the effect of the
court's opinion in Coleman - and ratified here today sub-
11,

silencio.
The fact that the legislature has provided for hanging
as the prescribed method of carrying out the death penalty,
or the fact that the legislature has refused to change the
method of execution, does not enshrine the legislation on
a throne of invincibility from constitutional attack.
I would grant Coleman an evidentiary hearing on this
issue. Perhaps the evidence would be revealing to all,
perhaps even to members of the legislature.
In addition to what I have stated h e r e q ' b

--

J/ parts 11, I11 and VIII of this
-- bc, C C ~ ) S ; ~ , F I - ~ ~ .
dissent should The combination of
these factors screams loudly for a constitutional require-
ment that only a unanimous jury should be permitted to make
the fateful decision of life or death. My experience has
been that the judiciary of this state is incapable of fairly
and rationally administering a death penalty law. Only by
interposing a jury between the defendant and the judiciary
can there be any assurance of decisions arrived at only
after fair consideration of all the facts.
PART VIII
DENIAL OF MEANINGFUL APPELLATE REVIEW
Issue QQ alleges that in our first review of the death
sentence (Coleman - we denied him meaningful appellate
11)
review. In Coleman - after reviewing several factors which
11,
the majority had either overlooked or ignored, I stated that
". . . it is virtually impossible to rationally and fairly
administer and enforce a statutory scheme of capital punish-
ment." 605 P.2d at 1045. As this, and two other death
penalty cases continue to tortuously wind their way through
this state's court system, I am more convinced of the correctness
of this statement. The sentencing courts and this Court
just seem to have approached these cases with their eyes
closed.
Similar views were stated by Justice Marshall in a con-
curring opinion in the case of Lockett v. Ohio, supra, where
he expressed disgust with the way the trial courts and
appellate courts of the various states were administering
their capital punishment statutes in an apparent attempt to
meet minimum constitutional standards. He stated:
"The opinions announcing the judgment of the
Court in Gregg v. Georgia, 428 U.S. at 188-198
(opinion of Stewart, Powell and Stevens, J. J.)
aurak-6~. Texas, 428 U.S. 262, 271-276 (1976)
(opinlon of Stewart, Powell, and Stevens J. J.),
 and Profitt v. Florida, 428 U.S. 242, 259-260
(1976) (opinion of Stewart, Powell, and Stevens,
J. J.), upheld the constitutionality of the death
penalty, in the belief that a system providing
sufficient guidance for the sentencing decision
maker and adequate appellate review would assure
'rationality,' 'consistency,' and 'proportionality'
in the imposition of the death sentence. Gregg
v. Georgia, supra, at 276. That an Ohio trial court
could impose the death penalty on petitioner under
these facts, and that the Ohio Supreme Court on
review could sustain it, cast strong doubt on the
plurality's premise that appellate review in
state systems is sufficient to avoid the wrongful
and unfair imposition of this irrevocable penalty."
438 U.S. at 621, concurring opinion.
In his petition for post-conviction relief, Coleman
outlined how this Court had failed to adhere to the statutes
requiring mandatory appellate review. In disposing of this
contention, the trial court simply adopted the one sentence
conclusion proposed by the State: "QQ. The review provided
petitioner by the Montana Supreme Court was carefully outlined
and applied in Coleman - 605 P.2d at 1020-21."
11, In Coleman

- I dissented to our review and concluded that it was
11,
woefully inadequate. 605 P.2d 1032-1047. I fail to com-
prehend how the majority can, in its omnibus ruling in
section five, dispose of Issue QQ and 12 other issues,
by the bland statement that the trial court properly dis-
missed this claim "as res judicata because the vague new
allegations do not affect the validity of the prior deter-
mination of the Court . . ."
If this Court has never before decided the issue of
whether we denied Coleman meaningful appellate review in
Coleman - I fail to see how this issue can be res judicata.
11,
In addition, I fail to see that Issue QQ is vague where
Coleman cites a specific statute that this Court has absolutely
failed to adhere to in reviewing the death sentence.
In Issue QQ, Coleman raises two questions concerning
our failure to give him meaningful appellate review. He
has, however, throughout his petition, raised other issues
concerning our review, and I feel it is appropriate to
consider these issues in this portion of my dissent. I will
first discuss the issues raised in Issue QQ.
Coleman first claims, and correctly so, that this Court
has never promulgated procedural rules to implement the
mandatory requirements for determining whether a sentence of
death is disproportionate to the sentence imposed in similar
cases. Second, he claims, and correctly so, that our review
contemplated by statute and mandated by Gregg v. Georgia
(1976), 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 894, has
s59
failed to consider other cases where a defendant has been
convicted of deliberate homicide or aggravating kidnapping.
This Court is specifically required to grant automatic
proportional review to all death sentence, and to promulgate
rules under which the review is conducted. In response to
decisions of the United States Supreme Court, the legislature
enacted section 46-18-310, MCA, and subsection 3 specifically
states that the Montana Supreme Court shall 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 court shall include in its
decision a reference to those similar cases it
took into consideration."
To facilitate this review, section 46-18-308, MCA,
states in part that the automatic review mandated by
statute ". . . shall - - - in accordance with -
be heard -- rules
promulgated - - Supreme Court."
by the (Emphasis added.)
Coleman rightly claims that this Court has never
promulgated the rules to provide method and procedure under
which death sentence are reviewed for proportionality.
He further claims, and this cannot be denied, that he has
asked this Court to promulgate the rules. The simple fact
is that even to this date, this Court has not yet promulgated
those rules. HOW, then, is Coleman to get the review to
which he is entitled? How can this Court sanction the imposition
of the death penalty whenit has failed to first comply with
the statutory requirement that we adopt rules setting forth
the method by which proportional review is conducted? Obviously,
a federal court will have to answer this question.
A second, and even more serious clai~becauseit involves
the actual proportional review conducted by this Court, is
that we failed to comply with the proportional review
mandated by Gregg v. Georgia, supra. Gregg requires that on
mandatory review the state's highest appellate court, that
the court consider "whether the sentence -- death -
of is
excessive - disproportionate - - penalty imposed -
or to the in
Gimilar cases, considering -- crime - - defendant."
both the and the
This language means that our system of review must allow
access to and a consideration of all reasonably recent cases
in this state where a defendant has been convicted of either
deliberate homicide or aggravated kidnapping.
Our duty is to review each of these cases and consider
the nature of the crime involved and the individual character-
istics of the persons who committed the crimes. We must
then compare those situations with the crimes committed here
and with the personal characteristics of the person involved
here. This Court has wholly failed to provide proportional
review as mandated by Gregg, and I therefore fail to see how
this Court can sanction the imposition of the death penalty.
I would hold, therefore that on Issue QQ alone, Coleman

is entitled to again come before this Court for proportional
review--after this Court has promulgated the rules required
by statute.
 I next consider our review of other issues raised by
Coleman concerning the sentencing court's findings and
conclusions, and our failure to review these issues. By
either overlooking or cavalierly disposing of the issues
without discussion or even identification, we have further
denied meaningful appellate review to Coleman. I repeat
that we are statutorily required to review all death penalty
sentences to see that there has been full statutory compliance
in the sentencing process. We are further required to
review all of the sentencing court's findings and conclusions,
even if no issue concerning them has been raised by the
defendant. Section 46-18-310, MCA.
In Issue BB and Issue DD, Coleman alleges failure of
the sentencing court and this Court to give consideration to
the fact that he had no criminal background--he had not even
been charged or arrested for a misdemeanor. Issue BB
claims that the sentencing court should have ruled as a
matter of law that Coleman had no significant history of
criminal conduct. Issue DD claims that the sentencing court
improperly found that, on the same day as the offenses
charged here, Coleman and Nank had burglarized a house in
Roundup, Montana, and therefore that Coleman was not really
entitled to a designation of having no significant criminal
conduct. Coleman further claims that the trial court based
this burglary finding on Nank's uncorroborated trial testimony.
It was error to base this finding on Nank's uncorroborated
testimony. And it was also error because Coleman had no
opportunity to cross-examine Nank at the sentencing hearing;
nor did he have any opportunity to offer rebuttal evidence
at a sentencing hearing. This finding was first revealed
while the trial court was reading the death sentence.
 Despite these substantial claims, the majority here has
responded only in silence. I dissented in Coleman - to the
I1

sentencing court's findings and to the methods by which it
made its decisions. 605 P.2d 1035-1036. The undeniable
fact is that the sentencing court used Nank's trial testimony
as the basis to find that Coleman had committed a burglary
on July 4, 1974, and therefore that Coleman was not entitled
to full credit for having no significant history of criminal
conduct. In fact, I concluded that by its findings and
conclusions, the sentencing court had stretched the law to
the breaking point in order to impose the death penalty.
605 P.2d 1039-1040, Our failure to grant meaningful appellate
review in Coleman - further amplified the failure to follow
I1

the statutory guidelines.
Based on the record before the sentencing court--Coleman
had never before been arrested or charged for any kind of
offense-I believe that compliance with section
MCA, requires that the sentencing court find as a matter of
law that Coleman had "no significant history of criminal
conduct." The sentencing court's reliance on Nank's uncor-
roborated trial testimony, the failure of the trial court to
reveal the basis of this finding so that Coleman could cross-
examine Nank at the sentencing hearing or present rebuttal
evidence, convinces me that the sentencing court had sealed
Coleman's fate with the hangman long before the sentencing
hearing. No appellate court should tolerate the procedures
used by the trial court in imposing the death penalty, for
they constitute a flagrant denial of due process of law.
This predetermination to impose the death penalty is
further illustrated by the sentencing court's failure to
consider Coleman's particularized circumstances, a require-
ment mandated by Gregg v. Georgia, supra, and also required
by statute. Section 46-18-302, MCA. In my dissent in
Coleman 11, I emphasized that the findings and conclusions
used as the foundation for the death sentence, are barren of
any reference to Coleman's particularized background. 605
P.2d 1036-1038. How can we, as an appellate court, know
that Coleman's particularized background was considered, and
what weight was given to it, unless both are mentioned in
the findings and conclusions? This is yet another reason
why the sentencing procedures utterly failed to comply with
the spirit of the mandate contained in Gregg v. Georgia.
Issue Y again claims that Coleman was denied due process
of law when the sentencing court came to the sentencing hearing
with the judgment of death already prepared and ready for filing
at the end of the hearing. Section 46-18-310 (1), MCA requires
that this Court review any death sentences to determine if it
was "imposed under the influence of passion, prejudice, or
other arbitrary factor." Proper application of this statute
requires that this Court set aside the death penalty because
of the ugly implication inherent in the sentencing judge coming
to the sentencing hearing armed with his death judgment.
I dissented to the judge's conduct in Coleman - 605 P.2d
11,
lOOQ IQ22to 1051, and I do so again. It is beyond my comprehension
that this Court can uphold this conduct. But recognizing that
this Court is insensitive to this issue, the combination of
all the factors set forth in my dissent, should require the
death penalty to be set aside as violating the statutory guide-
lines of section 46-18-302, snpra.
Our failure to give Coleman meaningful appellate review
in Coleman - is only compounded by our failure today to undo
I1
the injustice of that decision. This is Coleman's last chance
to obtain review within the state system. But this Court has
not even attempted to fairly consider the issues raised. Mandatory
appellate review of death sentences, required by Gregg v.
Georgia, and rsept. by statute, has failed abysmally in this
case.
The words of Justice Marshall in Lockett v. Ohio, supra,
are again appropriate to end this discussion of our denial
of meaningful review to Coleman, for they express exactly
what has happened to each of these death cases that has come
before this Court:
". . .
That an Ohio trial court could impose
the death penalty on petitioner under these
facts, and that the Ohio Supreme Court on
review could sustain it, cast strong doubt
on the plurality's premise that appellate
review in state systems is sufficient to avoid
the wrongful and unfair imposition of this
irrevocable penalty." (438 U.S. at 621,
concurring opinion.
Substitute the word Montana for the word Ohio, and
Justice Marshall's comments fit the Montana situation like
a glove fits a hand. The opinion written by this Court today
has denied Coleman due process of law both on questions arising
from his conviction and on application of the death penalty.
CONCLUSION
The majority opinion has one salutary aspect. It has
finally freed Coleman from the yoke of the state court system
and permits him to pursue his claims in federal court. A
federal court cannot help but be more receptive to the important
questions that Coleman has raised but this Court has turned
down by wholesale and summary disposition. I cannot conceive
that this case will leave a federal court with the abiding
conviction that justice was done. 11
"
 I N THE DISTRICT COURT O THE SIXTEENTH J U D I C I A L DISTRICT
F

O T E STATE O MONTANA,
F H F I N AND F R THE
O ~ O ~ E B U ~ J
f/
&/y''-~,-&' (7/
- CLERK
f l f i h ~ ~ e & p - h
1 DEWEY EUGENE COLEMAN, ) c i v i l ( ~ o . 9115 2 '
) C r i m i n a l No. 1083
Petitioner, )
) COURT'S CONCLUSIONS,
-VS - ) MEMORANDUM & O R D E R .
1

I THE STATE O MONTANA,
F

Respondent, )
-_-------______--_--------------.------------------------
\

The Court h a v i n g c o n s i d e r e d b r i e f s and proposed f i n d -

l2 / i n g s and c o n c l u s i o n s of p e t i t i o n e r and r e s p o n d e n t , a d o p t s t h e

l3 1 f i n d i n g s and c o n c l u s i o n s of r e s p o n d e n t ,

PROCEDURAL BACKGROUND
as follows:

Fol'lowing t h e October 6 , 1980, d i s s o l u t i o n of J u s t i c e

I M a r s h a l l ' s s t a y of p e t i t i o n e r ' s e x e c u t i o n d a t e , respondent

moved t h i s c o u r t t o s e t a new e x e c u t i o n d a t e f o r d e f e n d a n t .

T h i s c o u r t t h e n n o t i f i e d t h e p a r t i e s t h a t a new d a t e of

e x e c u t i o n would b e s e t on October 24, 1980. On t h e d a t e s e t

f o r t h i s h e a r i n g , p e t i t i o n e r f i l e d a p e t i t i o n f o r postconvic-

t i o n r e l i e f r a i s i n g 49 s e p a r a t e c l a i m s f o r r e l i e f . In

23 1 a d d i t i o n , p e t i t i o n e r s u ~ m i t t e d motion moving t h e c o u r t t o
a

24 1 " e n t e r an o r d e r r e c u s i n g i t s e l f a s t h e p r e s i d i n g judge i n

t h i s cause. "

On t h e same day, p r i o r t o i t s c o n s i d e r a t i o n of t h e

motion t o r e c u s e , t h i s c o u r t g r a n t e d a motion s u b m i t t e d by

29

30
!1I respondent and o r d e r e d p e t i t i o n e r t o submit an amended

p e t i t i o n w i t h i n t e n ( 1 0 ) days " r a i s i n g a l l c o n s t i t u t i o n a l

grounds f o r r e l i e f . . . of which h e h a s knowledge a t t h i s

t i m e and t o s o a l l e g e i n h i s amended p e t i t i o n . " The motion
t o r e c u s e was t a k e n under advisement b y t h i s c o u r t p e n d i n g

the s u b m i s s i o n o f a r e s p o n s e b y r e s p o n d e n t and a r e p l y b y

petitioner. The c o u r t d e n i e d the m o t i o n t o r e c u s e on

November 2 1 , 1980. *Vn3
A3c

P e t i t i o n e r f i l e d h i s amended p e t i t i o n f o r p o s t -

c o n v i c t i o n r e l i e f o n December 1 2 , 1 9 8 0 , t h i s t i m e r a i s i n g 5 2

s e p a r a t e c l a i m s f o r relief. The p a r t i e s thereafter e n t e r e d

a s t i p u l a t i o n t o the e f f e c t t h a t r e s p o n d e n t w o u l d f i l e i t s

m o t i o n t o d i s m i s s p e t i t i o n e r ' s amended p e t i t i o n on D e c e m b e r

22, 1980. P e t i t i o n e r would f i l e h i s a n s w e r i n g brief on o r

b e f o r e J a n u a r y 5, 1 9 8 1 , a n d r e s p o n d e n t w o u l d r e p l y b y

J a n u a r y 12, 1981. Finally, a h e a r i n g o n the m o t i o n t o

dismiss was s c h e d u l e d f o r J a n u a r y 1 5 , 1981.

T h e m o t i o n t o d i s m i s s came o n r e g u l a r l y f o r h e a r i n g o n

the 1 5 t h d a y o f J a n u a r y , 1 9 8 1 , w i t h p e t i t i o n e r , Dewey E u g e n e

Coleman, a p p e a r i n g i n p e r s o n a n d t h r o u g h h i s c o u n s e l , C h a r l e s

F. " T i m e r " Moses, a n d t h e S t a t e ' o f M o n t a n a , a p p e a r i n g

t h r o u g h J o h n H. M a y n a r d , A s s i s t a n t A t t o r n e y G e n e r a l , a n d

J o h n S. F o r s y t h e , Rosebud County A t t o r n e y , whereupon o r a l

argument was p r e s e n t e d t o the C o u r t . P e t i t i o n e r and

r e s p o n d e n t w e r e directed t o s u b m i t p r o p o s e d f i n d i n g s a n d

c o n c l u s i o n s t o t h e c o u r t b y F e b r u a r y 1, 1 9 8 1 , a t w h i c h t i m e

t h e m a t t e r w o u l d be deemed s u b m i t t e d , The c o u r t h a v i n g d u l y

c o n s i d e r e d the matters s u b m i t t e d t o i t ,

NOW THEREFORE, I T I S ORDERED a s f o l l o w s :

R e s p o n d e n t ' s MOTION TO DISMISS p e t i t i o n e r ' s PETITION

FOR POSTCONVICTION RELIEF s h o u l d be, a n d hereby i s , g r a n t e d .

CONCLUSIONS
 7

c I

1 I. THE M O T I O N TO DISMISS I S GRANTED BECAUSE THE AUTOMATIC
REVIEW PROCEDURES O TITLE 46, CHAPTER 18, PART 3, O
F F
2
THE MONTANA CODE ANNOTATED A R E THE EXCLUSIVE REVIEW
PROCEDURES AFFORDED PEPSONS UNDER SENTENCE O DEATHF
3
I N MONTANA. 3G9
4
The n e c e s s i t y of f i n a l i t y i n c r i m i n a l p r o c e e d i n g s ,
5
e s p e c i a l l y those involving t h e death penalty, coupled w i t h
6
t h e a u t o m a t i c and comprehensive r e v i e w p r o c e d u r e s i n d e a t h
7

8 p e n a l t y c a s e s p r o v i d e d f o r i n Montana s t a t u t e s , e s t a b l i s h

9 t h a t t h e Montana l e g i s l a t u r e d i d n o t i n t e n d t h a t t h e p o s t -

10 c o n v i c t i o n p r o c e d u r e a c t a f f o r d d e f e n d a n t s c o n v i c t e d of
11
c a p i t a l o f f e n s e s a "second a p p e a l . " T i t l e 46, C h a p t e r 1 8 ,
12
p a r t 3, M.C: A. c l e a r l y c o n t e m p l a t e s an a u t o m a t i c , compre-
13
h e n s i v e , and f i n a l a d j u d i c a t i o n of i s s u e s p r e s e n t e d i n d e a t h
14

15
penalty cases. The Montana Supreme C o u r t r e c o g n i z e d t h i s

16 f a c t i n p e t i t i o n e r ' s c a s e when i t s t a t e d t h a t " . . . c o m p l e t i o n

17 of t h i s r e v i e w w i l l mark t h e end of s t a t e a c t i o n upon t h i s

18
cause. .." S t a t e v. Coleman, Mont., 605 P.2d 1000, 1006
19
(1979), c e r t . denied, 100 S.Ct. 2952 ( 1 9 8 0 ) .
20
To a l l o w p e t i t i o n e r t o s e e k p o s t c o n v i c t i o n r e l i e f i s ,
21
i n e f f e c t , t o provide p e t i t i o n e r with t w o appeals, a r e s u l t
22

23 n o t c o n t e m p l a t e d by t h e l e g i s l a t u r e o r t h e Montana Supreme

24 Court, S t a t e s a r e f r e e t o d e v i s e t h e i r own s y s t e m s o f

25 review i n c r i m i n a l c a s e s . C a r t e r v. Illinois, 329 U.S. 173,
26
175 ( 1 9 4 6 ) . Repetitious appeals i n death panalty cases a r e
27
n o t c o n s t i t u t i o n a l l y r e q u i r e d and a c c o m p l i s h l i t t l e more
28
than t o f r u s t r a t e public confidence i n t h e e n t i r e criminal
29

30
j u s t i c e system.

31 11. THE MOTION TO DISMISS I S FURTHER GRANTED A TO 27 OF
S
PETITIONER'S CLAIMS BECAUSE THEY ARE BARRED BY RES
32
JUDICATA.

Star
Printing G .
J
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 T h e f o l l o w i n g 27 i s s u e s have b e e n p r e v i o u s l y c o n s i d e r e d

a n d d e c i d e d b y the Montana Supreme C o u r t a n d p e t i t i o n e r h a s

a l l e g e d n o new f a c t s o r l a w w i t h r e s p e c t t o these i s s u e s

t h a t m i g h t affect the r e s u l t r e a c h e d i n h i s p r i o r a p p e a l s :

F , G , H, 1, J, L, M, N, P, R, S , T , V, W, Y, Z ,

AA, DD, GG, HH, 11, JJ, KX, LL, MM, NN, a n d PP.

E a c h o f these c l a i m s h a s b e e n c o n s i d e r e d b y t h e M o n t a n a

S u p r e m e C o u r t i n S t a t e v. C o l e m a n , M o n t , , 5 7 9 P.2d 732

( 1 9 7 8 ) , h e r e a f t e r r e f e r r e d t o a s C o l e m a n 2, o r i n S t a t e v.

C o l e m a n , Mont., 6 0 5 P.2d 1000 ( 1 9 7 9 ) , cert. d e n i e d 1 0 0 S.Ct.

2952 ( 1 9 8 0 ) , hereafter referred t o a s Coleman G. T h e c l a i m s
were previously decided against p e t i t i o n e r i n p r i o r appeals

a t t h e £01-lowing p l a c e s .

F. P e t i t i o n e r ' s c h a l l e n g e t o the j u r y p a n e l was

rejected i n Coleman I 579
, P.2d a t 746-7, cert. d e n i e d 100

G. P e t i t i o n e r ' s c l a i m r e g a r d i n g the a d m i s s i o n i n t o

e v i d e n c e of S t a t e ' s e x h i b i t No. 20 was rejected i n Coleman

- 5 7 9 P.2d a t 751.
I, Furthermore, the c l a i m i n v o l v e s a

q u e s t i o n of s t a t e l a w a n d does n o t a m o u n t t o a c o n s t i t u -

t i o n a l deprivation,

H. P e t i t i o n e r ' s c l a i m in;olving his challenge to

N a n k ' s c o m p e t e n c y a s a w i t n e s s w a s addressed i n C o l e m a n 2,

579 P.2d a t 748.

I. P e t i t i o n e r ' s c l a i m r e g a r d i n g Nank's testimony

concerning his conversations w i t h law enforcement officials
I

I was rejected i n Coleman p, 5 7 9 P.2d a t 749.
I
J. P e t i t i o n e r ' s c l a i m r e g a r d i n g r e s t r i c t e d cross-

e x a m i n a t i o n was rejected i n Coleman 1 579
, P.2d a t 747.

-4-
 . r
* - " ", - -.-,* - . ----.-. b - -" % * --- *
d
n

I1
T

f
II
I
I L. Pettioner's claim concerning the admission into
-
L.
evidence of Exhibit No. 60 was rejected in Coleman 2,
3
579 P.2d at 752. ?47'1
4
M. Petitioner's claim in connection with his attempt-
5
ed cross-examination of witness Hippard was rejected in
I
1 Coleman 2, 579 P.2d at 747.
7

8 N. Petitioner's contention regarding evidence of the

9 heighth and fall of the water in the Yellowstone River at
lo
the scene of the crime was resolved against him in Coleman
11
I
-f
579 P.2d at 753.
12
P. Petitioner's contention with respect to Instruction
13
No. 22 was ruled on in Coleman 1,579 P.2d at 749. It was
14
again considered in light of Sandstrom v. Montana., in
15

26 Coleman 11, 605 P.2d at 1052-4, cert, denied 100 S.Ct, 2952.

I7 R. Petitioner's offered Instruction No. 14 was deter-
18
mined to have been properly refused in Coleman I 579 P.2d
-,
13
at 750.
20
S. Petitioner's claim involving Instruction No. 16 was
21
rejected by the Montana Supreme Court in Coleman I, 579
22

23 P2d at 750.

24 T. Petitioner's claim that his offered Instruction
25
No. 35A should have -been given was considered and rejected
26
in Coleman &, 579 P.2d at 750-1.
27
V. Petitioner's claim regarding the denial of his
28
motion for new trial on the grounds of newly discovered
29
evidence was rejected in Coleman 2, 579 P.2d at 753.
30
31 W. Petitioner's ex post facto claim that Montana did
32
not have a constitutional death penalty statute at the time

Sa
tr
Mnting Ca.
ld!lss City,
Mon:. -5-

I
petitioner committed the crime for which he received the

death penalty was considered in Coleman G,605 P. 2d at

Y. Petitioner's claim regarding his opportunity to

present argument concerning his sentence following remand

after Coleman L was rejected by the Court for the reasons

stated in Coleman 11, 605 P.2d at 1018.

2. Petitioner's claim regarding "retroactive" appli-

cation of the 1977 death penalty amendments was considered

in Coleman x, P.2d
605 at 1012.

AA, Petitioner's claim that his sentence violates

constitutional provision against ex post fact laws was

rejected in Coleman x,605 P.2d at 1015, cert. denied 100

Sect. 2952.

DD. Petitioner's claim regarding the district court's

finding that he had participated in a burglary the same

day he committed these other crimes was considered in Coleman

-
11, 605 P,2d at 1020. Section 46-18-302, MCA.

GG. Petitioner's claim regarding the exclusion of

two jurors was rejected in Coleman 2, 579 P.2d at 741.
HH. Petitioner's claim with respect to jury partici-

pation in the sentencing procedure was rejected by the

Montana Supreme Court in Coleman x,605 P,2d at 1017.

11. Petitioner's argiunent that Montana's death penalty

statutes in effect impose a mandatory death penalty was

rejected in Coleman 11, 605 P.2d at 1016.

JJ. Montana's scheme for the consideration of miti-

gating circumstances was found to pass constitutional muster
 '1

I
I i n Coleman G, 0 5
6 P.2d a t 1 0 1 6 - 7 37'3
2
KK. P e t i t i o n e r ' s further contention regarding "stand-
3

4
a r d s of p r o o f " w a s r e j e c t e d i n C o l e m a n =, 6 0 5 P. 2 d a t 1 0 5 7 .

LL. P e t i t i o n e r ' s d o u b l e j e o p a r d y c l a i m based o n h i s

c o n v i c t i o n s f o r d e l i b e r a t e h o m i c i d e a n d a g g r a v a t e d kid-

napping are w i t h o u t m e r i t . Coleman I
J, 605 P.2d a t 1017,
7

8 cert. d e n i e d 100 S.Ct. 2952.

MM. P e t i t i o n e r ' s d o u b l e j e o p a r d y c l a i m t h a t he c a n n o t
1
18 be c o n v i c t e d o n b o t h c h a r g e s w a s r e j e c t e d . Coleman s, 6 0 5
11
P.2d a t 1017.
12
NN. P e t i t i o n e r ' s c l a i m r e g a r d i n g s e n t e n c e r e v i e w by
13
t h e S e n t e n c e R e v i e w D i v i s i o n o f the M o n t a n a S u p r e m e C o u r t
14
h a s b e e n rejected b y the Montana Supreme C o u r t a n d the
:5

16 U n i t e d S t a t e s Supreme C o u r t . C e r t . d e n i e d 1 0 1 S.Ct. 255

17

IS PP. P e t i t i o n e r ' s c l a i m w i t h r e s p e c t t o the r e q u i r e n e n t
19
of a j u r y t r i a l o n a g g r a v a t i n g f a c t s a n d m i t i g a t i n g c i r c u m -
20
s t a n c e s w a s rejected i n C o l e m a n 1 , 6 0 5 P . 2 d a t 1 0 1 7 .
1 See,
21
rake ' v s Z a n t , U. S., 4 9 U.S.L.W. 3 3 7 1 ( 1 9 8 0 ) (White, J . ,
22

23 d i s s e n t i n g f r o m d e n i a l of c e r t i o r a r i ) .

24 1 I s s u e s r a i s e d i n the p r i o r r e v i e w o f p e t i t i o n e r ' s

25 c o n v i c t i o n which h a v e b e e n c o n s i d e r e d on their m e r i t s and
26
d e t e r m i n e d a g a i n s t h i m a r e res j u d i c a t a and he i s n o t
27
e n t i t l e d t o h a v e those i s s u e s r e d e t e r m i n e d , In r e Quigq,
28
1 6 8 Mont. 512, 5 4 4 P.2d 4 4 1 ( 1 9 7 6 ) , c e r t . d e n i e d 4 2 5 U.S.
29
9 9 4 ( 1 9 7 6 ) ; O r r i c e r v. S t a t e 8 5 S.D. 293, 181 N.W.2d 461
30
31 1 ( 1 9 7 0 ) ; W i l l i a m s v. U n i t e d S t a t e s , 4 2 6 F . 2 d 253 ( 9 t h C i r .
3s
1 9 7 0 ) , c e r t . d e n i e d 4 0 0 U. S . 881. P r i o r d e t e r m i n a t i o n of a n

Star
Printing Co.
VAes City,
Man:.
II
issue constitutes a final adjudication of that issue. State
v. Coleman, Mont., 605 P.2d 1000, 1002. As a result, the
petition for postconviction relief is dismissed with respect
to these claims.

111. THE MOTION TO DISMISS IS FURTHER GWJTED AS TO 13 OF
PETITIONER'S CLAIMS BECAUSE, WHILE TZEY INCLUDE VAGUE
NEW ALLEGATIONS, THEY ARE TOO VAGUE, TO STATE N E W
CLAIMS, OR ARE UbJSUPPORTED BY AUX9ORIT' AND THEREFORE
BARRED BY RES JUDICATA.
The following 13 issues have been previously considered
and decided by the Montana Supreme Court.
B, E, K, Q, U, X, CC, EE, FF, 00, QQ, RR, a n d X X
The validity of the prior determination of the Montana
Supre~e Court with respect to these issues is not called
into question by petitioner's additional allegations.
B. petitioner's claim alleging discrimination in the
plea bargain-ing process on the basis of race was rejected by
the Montana Supreme Court in Coleman - 579 P.2d at 744-5.
I,
E. Petitioner's claim regarding the recovery of the
rope was addressed by the Montana Supreme Court in Coleman I
579 P.2d at 744.
K. Petitioner's claim regarding the testimony of an
F.B. I. agent and of sheriff akin was addressed in Coleman

- 579 P.2d at 749.
I,
Q. Instruction No. 26 was considered by the Montana
Supreme Court in Coleman - 579 P .2d at 750, and again in
I,
Coleman - 605 P.2d at 1054-6, - denied, 100 S.Ct.
11, cert.
2952.
U. ~etitioner's claim that the verdict form as to
Count 11, aggravated kidnapping, was erroneously given was
considered in Co'leman - 579 P.2d at 751. Moreover, the jury
I,
also convicted petitioner of deliberate homicide.
 X. Petitioner's general claim regarding the review
afforded his case in Coleman - is vague and meritless on the
I
basis of the opinion issued in that case. No specific error
is alleged as part of this claim. 37'5
CC. petitionerfs claim regarding the district court's
consideration of mitigating factors in general was reviewed
in Coleman - 605 P.2d at 1019-20.
11,
EE. Petitioner's claim that he was prejudiced by
properly admitted evidence does not state a claim for
relief. Coleman - 605 P . 2 d at 1020. Eoreover, the pro-
11,
visions of the 1977 amendments to Montana's capital
sentencing scheme were found to apply to petitioner in their
entirety in Coleman -. section 46-18-302, MCA, requires
11

that evidence admitted at trial be considered for sentencing
purposes.
FF. Petitioner's claim that the constitution requires
a finding of a specific intent to kill before a capital
sentence may be imposed is unsupportable. Moreoever, this
court found such an intent when considering the appropriate-
ness of the death penalty at Finding of Fact No. 3 (b).
0.
0 Montana's capital sentencing scheme provides for
the consideration of mitigating circumstances, a provision
which benefits capital defendants. The issue presented
involves only sentencing, not guilt or innocence, and peti-
tioner's due process claims are without merit. - Coleman
See
- 605 P.2d at 1057, cert. denied, 100 S.Ct. 2952, and
11,
State v. kiatson, Ariz., 586 P.2d 1253, 1258 (1978), cert. -
denied 440 U.S. 924.
QQ. The review provided petitioner by the Montana
Supreme Court was carefully outlined and applied in Coleman
 6 *'T7'6
RR. The imposition oi the death penalty i n peti-
tioner's c a s e has been p r e s e n t e d t o and approved by t h e
Montana Supreme Court. That d e t e r m i n a t i o n i s b i n d i n g on
t h i s court. R noted i n S p i n k e l l i n k v . -
s Wainwright, 578 F.2d
c e r t . denied, U.S. the
arbitrariness and c a p r i c i o u s n e s s condemned i n Furman are
c o n c l u s i v e l y removed from a d e a t h p e n a l t y proceeding i f t h e .

s t a t e adheres t o i t s p r o p e r l y drawn d e a t h p e n a l t y s t a t u t e .
YZ . Th.e aggravating and mitigating circumstances
enumerated in Montana s capital sentencing scheme are
s i m i l a r t o t h o s e approved by t h e United S t a t e s Supreme Court
and p a s s c o n s t i t u t i o n a l muster under Gregg v. Georqia, 428
U.S. 153 ( 1 9 7 6 ) ; - P r o f f i t t v . F l o r i d a , 428 U . S . 242 (1976);

J u r e k v . Texas, 428 U . S . 2 6 2 (1976) and L o c k e t t v. -
Ohio, 98
-

S.Ct. 2954 ( 1 9 7 8 ) . See Coleman - 605 P.2d a t 1057.
11,

IV. THE MOTION TO DISMISS IS FURTHER GRANTED AS TO 7 O F THE
PETITIONER'S CLAIMS BECAUSE THE N E W AUTdORITY CITED I S
EITHER INAPPLICABLE TO PETITIONER'S CASE OR CLEARLY
DISTINGUISHABLE FRON I T LEAVING THE CLAIMS BARRED BY
RES JUDICATA.

The f o l l o w i n g c l a i m s i n c l u d e new a l l e g a t i o n s o f f a c t o r

21 I/ c i t a t i o n . t o new a u t h o r i t y :

23 / The c l a i m s d o n o t , howevef, i n c l u d e new a l l e g a t i o n s o r new

'* 1 c i t a t i o n s o f a u t h o r i t y , which a f f e c t t h e v a l i d i t y o f t h e

1 prior determinations - of the Montana Supreme Court w i t h

26 /I respect t o ' those issues.
A. A s p a r t of t h i s claim p e t i t i o n e r a s s e r t s t h a t no

28
29
/I r a t i o n a l t r i e r o f f a c t c o u l d have found beyond a r e a s o n a b l e
doubt t h a t p e t i t i o n e r had t h e purpose, i n r e s t r a i n i n g Peggy
I
30 /'/
Lee H a r s t a d , t o i n f l i c t bodily injury. c i t i n g Jackson v .
31 1 ~ i r q i n i a , U.S., 99 S.Ct. 2781 (1979) for purposes of

32 I e s t a b l i s h i n g a s t a n d a r d o f review. T h a t s t a n d a r d o f review
 #

h a s been exceeded i n t h i s c a s e a s evidenced by t h e j u r y
I
verdict and t h i s court's ind ding No. 1, which reads in
pertinent part: 377'
I n t h i s a r e a Coleman i n i t i a t e d t h e a s s a u l t upon
t h e v i c t i m by swinging h i s motorcycle helmet by
t h e c h i n s t r a p and c r a s h i n g it a g a i n s t the.
v i c t i m ' s head. Then t h e defendant p l a c e d t h e
yellow nylon rope around t h e v i c t i m ' s neck and
attempted t o s t r a n g l e h e r . Then b o t h t h e defen-
d a n t and Robert Nank c a r r i e d t h e v i c t i m down t o a
s l o u g h and, t h e defendant h e l d h e r under t h e
water. The v i c t i m r o s e o u t of t h e water b r i e f l y
and t h e n b o t h men went i n t o t h e water and h e l d h e r
under u n t i l s h e e x p i r e d .
C. P e t i t i o n e r ' s claim r e g a r d i n g t h e c o u r t ' s amendment
o f t h e i n f o r m a t i o n was c o n s i d e r e d i n Coleman -, 579 P.2d a t
I

745-6. The recently decided case of S t a t e v. Cardwell,
Mont., 609 P.2d -1230 ( 1 9 8 0 ) , i s i n a p p o s i t e because (1) t h e
amendment i n p e t i t i o n e r ' s c a s e was found t o be one form and
n o t s u b s t a n c e ; ( 2 ) o n l y s u b s t a n t i v e amendments w i t h o u t l e a v e

- court a
of a f f e c t e d by Cardwell; and ( 3 ) t h e Cardwell
ruling is not retroactive.
D. p e t i t i o n e r ' s claim r e g a r d i n g h i s a r r e s t was r u l e d
on by t h e Montana Supreme Court i n Coleman -, 579 P.2d a t
I

743. The r e c e n t l y decided c a s e o f Payton v . -- U . S . ,
New York,
100 S . C t . 1371 ( 1 9 8 0 ) , i s i n a p p o s i t e because Payton has n o t

been given r e t r o a c t i v e effect. This i s because t h e new
c o n s t i t u t i o n a l d o c t r i n e it e s t a b l i s h e s i s n o t one aimed a t
overcoming an a s p e c t o f . t h e c r i m i n a l t r i a l t h a t substan-
tially impairs i t s truthfinding function thereby r a i s i n g
questions as to t h e -accuracy of guilty verdicts i n past
trials. V v.
- city - - -
o f New York, 407 U.S. 203, 204 ( 1 9 7 2 ) .
Moreover, t h e purpose of t h e exclusionary r u l e t o d e t e r
p o l i c e misconduct i s n o t s e r v e d a t t h e p o s t - a p p e a l s t a g e and
a p p l i c a t i o n of t h e exclusionary r u l e d e f l e c t s t h e t r u t h -
finding process. Stone v. Powell, 428 U . S . 465, 492 (1976).

P e t i t i o n e r ' s claim of i n s u f f i c i e n t corroboration of
0.
l-(%ki53m~ ,k
Nankls testimony was c o n s i d e r e d i n X_olea_n_I , 579 P.2d a t
-
748. Petitioner's citation of -
Jackson v. Virqinia, U.S., 99
S.Ct. 2781 (1979), and Pilon v. Bordenkinder, U.S., 100
,. 7
/ *
A-

S.Ct. ISS (1980), do not establish a standard of review for
corroborative evidence and are therefore inapposite. :{'lrS
RB. Petitioner's claim with respect to the district
court's consideration of his prior criminal history as a
mitigating circumstance was considered in Coleman - 605
11,

P.2d at 1019-20. Jackson, supra, and Pilon, do not affect
this claim.
TT. Petitioner s Eighth Amendment claim that hanging
is a cruel and tortuous method of execution was rejected in
Coleman - 605 P.2d at 1058-9. ~stablishing a method of
- 11,

execution is properly a function of the legislature.
Wil-kerson v. Utah, 99 U.S. 130, 134-5 (1879). Gregg v.
Georgia, 428 U.S. at 168-173.
W. Petitioner's claim that his death sentence for the
crime of aggravated kidnapping is disproportionate to the
offense for which it was imposed is without merit. Coleman
11,
- 605 P.2d at 1057. The death penalty imposed in this
case was not the result of kidnapping only, but rather for
the offense of aggravated kidnapping resulting in the death
of the victim. section 46-18-303(7), MCA.

V. THE MOTION TO DISMISS IS F'URTHER GRANTED AS TO 5 OF
PETITIONER'S CLAIMS 'BECAUSE HE FAILED TO RAISE THEM IN
HIS DIRECT APPEAL AND BECAUSE THEY ARE WITHOUT MERIT.
The final five claims that have been raised in peti-
tioner's petition have been raised for the first time in
this proceeding. They are:
SS, UU, WW, W , zz.
Petitioner has waived his right to present these issues at
this time by failing to raise them in the direct appeal of
his conviction. People v. Jenkins, 11 Ill. App. 3d 690, 297
N.E.2d 279 (1973); Andrews v. Morris, Utah, 607 P-2d 816
 - denied 1 0 1 S . C t .
(1980),cert. 254 ( 1 9 8 0 ) . Beyond t h a t t h e
c l a i m s a r e w i t h o u t m e r i t a s a m a t t e r of law :'by9
SS. The contention raised here is t h a t t h e death
p e n a l t y i s imposed s o r a r e l y t h a t . it s e r v e s fro l e g i t i m a t e
state interests. This claim has been r e j e c t e d numerous
times and i s w i t h o u t m e r i t . See
- Gregg v . Georgia, 428 U . S .
153, 173 ( 1 9 7 6 ) ; S t a t e v . McKenzie, 1 7 1 Mont. 278, 557 P . 2 d
1023, 1033 ( 1 9 7 6 ) ; Andrews v. Morris, Utah, 607 P.2d a t 824
( 1 9 8 0 ) ; and S t a t e v. F i t z p a t r i c k , F u r t h e r Order and Findings
and ~ o n c l u s i o n ,p . 18-19 ( J a n u a r y 7 , 1 9 8 1 ) .
UU. p e t i t i o n e r contends t h a t he was denied t h e r i g h t
t o a ufianimous j u r y v e r d i c t . But when t h e i n s t r u c t i o n s a r e
r e a d a s a whole, a s t h e y must be under Coleman - 605 P.2d
11,

a t 1052, t h e c l a i m f a i l s . See Cupp V. Nauqhton, 414 U . S .
141, 147 (1973). I n a d d i t i o n , p e t i t i o n e r ' s r e l i a n c e on t h e
f e d e r a l c o n s t i t u t i o n i s misplaced i n t h a t t h e f e d e r a l con-
stitution does not guarantee the right to a unanimous
v e r d i c t i n s t a t e felony jury t r i a l s . Apodaca v. Oregon, 406
U.S. 404 (1972); Johnson v. L o u i s i a n a , 406 U . S . 356 ( 1 9 7 2 ) .
W. petitioner's claim t h a t t h e I t e n t i r e r e c o r d t 1 was
n o t c e r t i f i e d t o t h e Supreme Court because some u n s p e c i f i e d
p r o c e e d i n g were n o t t r a n s c r i b e d i s w i t h o u t m e r i t . section
46-18-309, MCA, recognizes the distinction between the
l t r e c o r d w c e r t i f i e d by t h e - s e n t e n c i n g c o u r t and t h e " t r a n -
s c r i p t w p r e p a r e d by t h e c o u r t r e p o r t e r . I t i s t h e duty of
t h e a p p e l l a n t t o s e l e c t p o r t i o n s o f t h e l f t r a n s c r i p t t l t o be
submitted i n a l l criminal appeals. S e c t i o n 46-20-302. MCA.

YY. Petitioner contends t h a t h i s E i g h t h and Four-
teenth Amendment rights have been violated because of
a l l e g e d d i s c r i m i n a t o r y a p p l i c a t i o n of t h e d e a t h p e n a l t y i n
Montana and i n t h e United S t a t e s . The a l l e g a t i o n s he makes
in support of this contention are similar to those
s u p p o r t i n g s i m i l a r c o n t e n t i o n s r a i s e d i n t h e United S t a t e s
 . - . .- ~ ,..

.- . . I

i
(
k.
"

f

1 Supreme Court i n Furman v. G e o r q i a , 408 U. S. 238 ( 1 9 7 2 ) ,

1 Greqq v. Georqia, 428 U. S. 153 ( 1 9 7 6 ) , and P r o f f i t t v.
3
F l o r i d a , 428 U . S. 242 ( 1 9 7 6 ) , where t h e c o u r t r e f u s e d t o
4
a c c e p t t h e argument. The c o n t e n t i o n of d i s c r i m i n a t o r y
5
a p p l i c a t i o n of t h e d e a t h p e n a l t y f a i l s a s a m a t t e r of law on
6
t h e b a s i s of Washinqton v. D a v i s , 426 U . S. 229 ( 1 9 7 6 ) , and
7

V i l l a q e - A r l i n q t o n H e i q h t s v. M e t r o p o l i t a n Housinq Develop-
of

=
8

9 ment Corp., 429 U. S. 252 ( 1 9 7 7 ) . ~ p k i n k e l l i n kv.

10 Wainwriqht, 578 F.2d 582 (1978) .
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ZZ. P e t i t i o n e r h a s f a i l e d i n h i s f i n a l a l l e g a t i o n of
12
e r r o r t o " c l e a r l y s e t f o r t h (any) a l l e g e d v i o l a t i o n o r
13
v i o l a t i o n s " a s r e q u i r e d ' b y S e c t i o n 46-21-104, MCA, and h i s
14
c l a i m t h e r e f o r e f a i l s a s a m a t t e r of law.
15

16 Dated t h i s 4/ day of February, 1981.

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