Coleman v. Risley

NO. 82-198

I N THE SUPREME COURT OF THE STATE OF MONTANA

1983

DEWEY E . COLEMAN,

Petitioner,

VS.

HENRY RISLEY, a s W a r d e n o f
Montana S t a t e P r i s o n e t a l . ,

Respondent.

ORIGINAL PROCEEDING:

Counsel of Record:

For P e t i t i o n e r :

M o s e s Law F i r m , B i l l i n g s , M o n t a n a
C h a r l e s F. Moses a r g u e d , B i l l i n g s , Montana

For Respondent:

Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , a r g u e d , H e l e n a ,
Montana
John Maynard, 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 r g u e d ,
H e l e n a , Montana
John S. F o r s y t h e , County A t t o r n e y , a r g u e d , F o r s y t h ,
Montana

Submitted: December 1, 1 9 8 2

Decided: March 2 5 , 1983

Filed: !flak 2 % 1983
Mr. Justice Fred J. Weber delivered the Opinion of the Court.

Petitioner Dewey Coleman brings a petition for a Writ of
Habeas Corpus as an original proceeding, asking this Court to
vacate his death sentence and remand his cause for
resentencing as to the aggravated kidnapping conviction by a
district court judge other than the judge who has twice
sentenced him to death.
The petition is denied.
The sole issue before this Court is whether, because the
sentencing judge possessed information unavailable to Coleman
and his attorney, Coleman was denied his rights to a fair
tribunal, to confront witnesses, and to have the effective
assistance of counsel, as guaranteed under both the United
States Constitution and the Montana Constitution.
Coleman and Robert D. Nank were traveling together on
July 4, 1974, from Roundup toward Forsyth, Montana, on U.S.
Highway #12 when their motorcycle ran out of gas. At
approximately the same time, Peggy Lee Harstad disappeared
while driving her car on the same highway. On August 29,
1974, her body was discovered just west of Forsyth on the
north side of the Yellowstone River.
On October 24, 1974, motions for leave to file
Informations in the District Court, Rosebud County, were
requested and granted. The Informations charged each of the
men with three counts: Count I, deliberate homicide; Count
11, aggravated kidnapping; and Count 111, sexual intercourse
without consent, inflicting bodily injury. Both men pleaded
not guilty to all counts.
On May 7, 1975, the State entered into a written plea
bargain agreement with Nank. Under the terms of the
agreement, Nank agreed to plead guilty to deliberate homicide
and to solicitation to commit sexual intercourse without
consent, and further agreed to testify at Coleman's trial in
return for the dismissal of the aggravated kidnapping charge.
On May 19, 1975, Coleman's court appointed counsel made
an oral offer of a conditional plea of guilty in return for
dismissal of the aggravated kidnapping charge. On May 23,
1975, a written offer of a conditional plea of guilty was
presented to the court. In this offer, Coleman insisted on
maintaining his innocence. The State refused to accept a
guilty plea with Coleman maintaining his innocence.
On July 2, 1975, a hearing was held on a motion to allow
counsel for Coleman to copy Nank's medical records. Defense
counsel explained that Coleman was not present because he was
in Billings for a psychiatric evaluation. After a discussion
regarding the motion, the State inquired as to the purpose of
the mental examination. Defense counsel stated that the
purpose of the psychiatric examination was to place Coleman
under sodium amytal to see if his recollection and memory
could be refreshed. Defense counsel then stated:
"That investigation has been conducted and I
believe on the basis of that examination, that my
client will want to enter a plea of guilty."
Defense counsel further stated:
"Dr. Harr has called me already this morning, and
from the information I have received, it appears
that my client's memory has been refreshed and
there was participation on his part in the crime."
The transcript shows that the court understood that defense
counsel was making a proposition similar to that which Mr.
Nank had made. Defense counsel pointed out that Coleman then
would be subject to a possible maximum penalty of 100 years
on the deliberate homicide and 40 years on the sexual
assault, with the count of aggravated kidnapping to be
dismissed. Discussion continued between the court and all of
the counsel with regard to Coleman's willingness to testify.
The State expressed concern that Coleman might be testifying
in order to avoid the death penalty even if he might not
actually remember the crime. No plea bargain agreement was
reached during this hearing on July 2 and the hearing was
continued to the following day.
At the continued hearing on July 3, 1975, Coleman was
present, as were counsel for the parties. Defense counsel
then stated that "we would make an offer to plead guilty
under the same terms and conditions as had been accepted by
the State with regard to Mr. Nank." The key element of that
offer was that it would require a dismissal of the charge of
aggravated kidnapping with its potential death penalty.
Defense counsel also indicated that Mr. Coleman would be
willing to take the stand and make a full disclosure of all
facts. Defense counsel also pointed out that he had
explained to Mr. Coleman that he was waiving his rights
against self-incrimination, the right to confront witnesses,
the right to require the State to prove every fact beyond a
reasonable doubt and his right to testify in his own defense.
Mr. Coleman answered, "Yes", when asked if he would be
willing to reconduct the sodium amytal examination in the
presence of the court and the prosecuting attorneys.
Following an extensive discussion between counsel and the
court, the State rejected the plea bargain offer. The State
pointed out that there were many questions involved in
accepting such a plea in view of the past statements and
bargaining between the parties, and because the prosecution
felt that at least one of the defendants should go to trial.
After rejection of the plea bargain offer, defense
counsel stated:
" . .
. if I have to continue in this case and if
we have to try this case, then there is no way in
the world I can state to the jury that he is
innocent of deliberate homicide and that he's
innocent of sexual intercourse without consent, and
that he will have to agree that he will testify to
his involvement in those acts and activities and he
 will have to admit them, and that we will remove
them as issues in the case. That is the only thing
I can do. I have told him this position and I have
explained it to him as best I can, and I have
indicated to him that if he feels that he's
dissatisfied with this, or does not feel that it's
a proper position, then of course he can indicate
it to the Court. Now that is one problem that I
have presented and the only resolution I can make
of that, is to do it in that fashion. Now I have
explained it the same way I have explained it to
Mr. Coleman. He realizes, I presume, the chance
that the jury can still find him guilty of
aggravated kidnapping under all of the
circumstances. I have told him my personal
feelings on this. Now -- however, I want the
record to be clear that I feel that because of my
moral and professional and ethical decisions, that
I should be relieved and even though I am -- I may
be granted the right by my client and by the Court
to proceed with an admission of deliberate homicide
and sexual assault without consent, because some
other attorney may have different views of how to
proceed. "

"The only thing that I can do is attack fully the
question of whether they can establish aggravated
kidnapping, but that becomes a tremendous problem,
because I have to start off with the jury by saying
my man committed deliberate homicide and that my
man committed sexual intercourse, but I deny that
he committed aggravated kidnapping. Now personally
I think that Nank's statements in his plea to the
court admits that he committed aggravated
kidnapping. I mean they drove there, took this
girl off by force. They drove her around, and
there is not one shred of evidence that Coleman was
the perpetrator, because there can't be. There
were only three people and one is dead, so there is
nothing. It becomes a question of Nank against my
man, Mr. Coleman."
THE COURT: "Right now you're well representing the
defendant just by that type of argument."
As indicated in the above quotation, defense counsel at no
time admitted that Mr. Coleman was guilty of the crime of
aggravated kidnapping.
The District Court did not relieve defense counsel of
his representation of Mr. Coleman. Upon petition, this Court
did relieve him of such representation. Approximately two
weeks following the hearing, representation of Mr. Coleman
was taken over by his present counsel, who represented him at
trial and on the previous appeals.
 The trial commenced on October 23, 1975, in Yellowstone
County and ended on November 14, 1975. A jury returned
guilty verdicts on all three counts. On November 21, 1975,
the court sentenced Coleman to 100 years on Count I

(deliberate homicide); to death by hanging on Count I1

(aggravated kidnapping); and to 40 years on Count I11 (sexual
intercourse without consent, inflicting bodily injury).

Coleman was resentenced by the same District Judge on
July 10, 1978, following the reversal of his sentences on

Counts I1 and I11 by this Court in State v. Coleman (1978),
177 Mont. 1, 579 P.2d 732. Coleman was resentenced to death
by hanging on Count I1 (aggravated kidnapping) and to 20
years on Count I11 (sexual intercourse without consent).
The State moved for dismissal of the present Habeas
Corpus petition because it does not contain grounds which
could not reasonably have been raised in the original or
amended petition. Coleman contends the issue could not have
been raised previously because the transcript of the July 2
and 3 hearings was not available until February 1982. The
State counters that the responsibility of obtaining the
entire transcripts rests with the defendant and that he
waived further grounds for relief by not raising them
previously.
Although this Court does not approve of the dragging out
of the appellate process in the instant case, we are aware
that "the death penalty is 'qualitative(1y) differen(t1 ' from
other punishments, Woodson v. North Carolina, 428 U.S. 280,
305, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976), and is
'unique in its severity and irrevocability.' Greqg v.
Georgia, 428 U.S. 153, 187, 96 S.Ct. 2909, 2931, 49 L.Ed.2d
859 (1976). . ." Sher v. Stoughton (N.D. New York 1981), 516

F.Supp 534, 547. This Court realizes that counsel for
Coleman did not obtain the July 2 and 3 transcript until
February 1982. We are, however, concerned that counsel long
ago should have known what occurred at the July 2 and 3
hearings and that the transcripts were missing. But because
the situation is unique, and because this is a capital case,
this Court will exercise its discretion and review the merits
of the petition despite procedural irregularities.
Coleman bases his argument on the holdings in three
cases which he contends are directly on point. He maintains
that these cases should control, and should require that the
death sentence imposed be vacated, and new resentencing
proceedings be had thereon.
The first of these cases is Lowery v. Cardwell (9th Cir.
1978), 575 F.2d 727, a habeas corpus action brought by a
state prisoner under a homicide conviction. In Lowery,
defendant pleaded not guilty and a trial wa.s held without a
jury. During questioning of defendant by his own counsel,
counsel abruptly stopped questioning and requested withdrawal
from the case. Counsel refused to state reasons for his
withdrawal request, but it was later learned that he felt
that defendant was lying. The guilty verdict was vacated
because the attention of the judge, who was the fact finder,
was drawn to the problem counsel was facing which "disabled
the fact finder from judging the merits of defendant's
defense. "
In the present case, Coleman's guilt was determined by a
jury after a three week long trial with testimony from 50
witnesses. The jury made the determination as to Coleman's
guilt, unlike in Lowery, where the judge made that
determination. Coleman contends that the trial judge was the
fact finder because he determined if mitigating factors were
present for sentencing. A judge acting as a finder of fact in
place of a jury is not the same as a judge acting as the one
who determines fact at the time of sentencing. Lowery is not
persuasive here.
The second case relied on by Coleman is Gardner v.
Florida (1977), 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393.
The opinion was signed by three members of the United States
Supreme Court while three other members concurred in holding
that the imposition of a death sentence was invalid. In
Gardner a jury found defendant guilty, and after a separate
sentencing hearing, the jury recommended a life sentence in
accordance with Florida procedure. The trial judge then
sentenced defendant to death relying on a presentence
investigation report, a confidential portion of which was
neither disclosed to nor requested by defendant or his
counsel. The death penalty was vacated and the case returned
for further proceedings because defen.dant was denied due
process when the death penalty was imposed, at least in part,
on the basis of confidential information which was not
disclosed to defendant or his counsel, and which defendant
had no opportunity to deny or explain.
Coleman argues that the sentencing judge had information
of which defense counsel had no knowledge and also which he
had no opportunity to deny or explain. That information was
that Coleman's first court appointed defense counsel believed
Coleman to be guilty of deliberate homicide and sexual
intercourse without consent. Coleman's present counsel took
the case over only two weeks after Coleman underwent the
sodium amytal examination. Coleman was aware that he had
requested and had undergone the sodium amytal examination,
and he was present during the second day of the July 2 and 3
hearing, when the results of that examination were discussed
before the court, as were first counsel's comments indicating
his belief that his client had participated in the rape and
murder of Peggy Harstad. Present counsel could have and
should have obtained this information from his client.
There is no indication that the sentencing judge
considered defense counsel's statements or the results of the
sodium amytal examination. The sentencing judge in his
Findings, Conclusions, Judgment and Order of July 10, 1978,
stated:

"Both parties having been given the opportunity to
place before the Court all matters each deemed
relevant and competent bearing upon a determination
of appropriate sentences to be imposed upon the
three guilty jury verdicts rendered, and the Court
having reviewed all matters submitted, together
with the evidence produced at trial, and after
observing the defendant's demeanor during the trial
and while testifying on his own behalf, the Court
now makes the following Findings, Conclusions,
Judgment and Order."
The court went on find:
"3. That there is no evidence appearing, either in
the record of the trial held in this cause or the
special sentencing hearing accorded, supporting a
finding of any of the circumstances in mitigation
under the other numbered paragraphs of Section
95-2206.9, [now cited 46-18-304, MCA] namely
.
paragraphs (2) through (8) There is, likewise, no
evidence of any facts which are operative in this
case to mitigate the penalty in this cause. The
Court therefore finds, as follows:
a. That the offenses charged and proven in this
cause were not committed while the defendant was
under the influence of any mental or emotional
disturbance; and
b. That in committing the acts charged and proved
the defendant did not act under extreme duress or
under the substantial domination of another person,
rather the defendant's decisions to kidnap, rape
and murder were the result of conscious
deliberation and were his independent decisions
arrived at despite contrary arguments advanced by
Robert Nank against the murder of the victim; and
c. That the capacity of the defendant to
appreciate the criminality of his conduct or to
conform his conduct to the requirements of law was
not substantially impaired; and
d. That the victim was not a participant in the
defendant's conduct and did not consent to any of
the acts, rather that she resisted, and pleaded
with the defendant at various times throughout the
course of events which resulted in her death; and
 e. That the defendant was not a relatively minor
accomplice, nor was his participation in the
offenses relatively minor, rather that the
defendant was the decisionmaker and the dominating
influence in the criminal acts committed against
the victim; and
f. That the defendant at the time of the
commission of the offenses was 27 years of age.

CONCLUSIONS
"The Court concludes as follows:
1. That the aggravating circumstances set forth in
Section 95-2206.8 [Now cited 46-18-303, MCA] ,
paragraph (7) exists for the reason following:
That the offense of aggravated kidnapping was
committed by the defendant and it resulted in the
death of the victim, Miss Peggy Harstad.
2. That none of the mitigating circumstances
listed in Section 95-2206.9 R.C.M. are sufficiently
substantial to call for leniency. That the only
mitigating circumstance technically present in this
cause is that the defendant has no record history
of prior criminal activity."
Unlike Gardner, where there was concealment of
information, here Mr. Coleman was present in court at the
time the plea bargain offer was made by his original defense
counsel. There was nothing of substance said during the first
day of the hearing which was not effectively repeated before
Coleman the second day. The transcript of that hearing was
available to present defense counsel whenever he ordered it.
Of particular significance is the total absence from the
transcript of the hearing of any admission by either Mr.
Coleman or his defense counsel that Mr. Coleman was guilty of
the charge of aggravated kidnapping. At most, the admission
from the plea bargaining process was that Mr. Coleman was
guilty of deliberate homicide and sexual intercourse without
consent which neither suggests nor implies guilt of the
charge of aggravated kidnapping. Finally, between the plea
bargaining on July 2 and 3, 1975 and the sentencing, the
lengthy trial of the defendant took place and formed a basis
known to the defendant and his present trial counsel for the
conclusion that Coleman was guilty, not only of deliberate
homicide and sexual intercourse without consent, but also
aggravated kidnapping. Gardner is not a basis for reversal.
The third case relied on by Coleman is Jones v. Cardwell
(9th cir. 1982), 686 F.2d 754. After conviction but before
sentencing, a state probation officer interviewed defendant
on several occasions. During one of these sessions,
defendant confessed to the commission of numerous other
crimes. The probation officer reported the confession to the
state court judge. The confession was found to be
involuntary in that defendant was told that he had to answer
all the probation officer's questions. The Ninth Circuit
Court held "[a] sentencing judge's broad discretion to
consider information in imposing sentence does not extend to
consideration of information obtained in violation of a
defendant's privilege against self-incrimination." Jones,
686 F.2d at 756.
Coleman chose to be examined under sodium amytal with
the advice of his first counsel. There is no indication that
Coleman's participation in the examination or in the offer to
plea bargain was involuntary. There is also no indication
that the sentencing judge considered defense counsel's
statements or the sodium amytal examination results in
sentencing Coleman. The results of the sodium amytal
examination were not made a part of the record or given to
the court to any greater extent than they were during the
hearings on July 2 and 3, 1975. In contrast to Jones, no
information was furnished from Mr. Coleman in violation of a
defendant's privilege against self-incrimination.
We fail to find any of the three cases relied upon by
Coleman to be persuasive, as all are distinguishable from the
present case.
 The State points out that the present case resembles the
trial situation, where evidence of guilt is presented to a
judge on a motion to exclude basis, and such evidence is then
excluded; after which the same judge continues to act as
trial judge and sentencing judge. In such a situation, a
sentencing judge aware of excluded evidence, however damning,
which has been suppressed, still is allowed to sentence a
convicted defendant. There is a similarity between that type
of situation and the present case. In addition, while no
improperly seized evidence was considered here, we point out
that a number of courts have allowed a sentencing judge to
consider, during sentencing, evidence which has been
illegally seized. See : Elson v. State
(1981)I- Alaska , 633 P.2d 292; Logan v. State (1981),
Md . , 425 A.2d 632; State v. Swartz (Iowa 1979) 278
N.W.2d 22; United States v. Lee (4th Cir. 1976), 540 F.2d
1205; United States v. Vandemark (9th Cir. 1975), 522 F.2d
1019; United States v. Baratta (S.D. New York 19731, 360
F.Supp. 512.
The State cites Commonwealth v. Wilson (1980),
Mass. , 407 N.E.2d 1229, where counsel for defendants
represented to the judge that his clients expressed a desire
to testify to facts different from those determined by
investigation. On appeal, defendants attempted to use this
record to suggest that the voluntary disclosures of their
trial counsel so prejudiced the judge as to deprive
defendants of due process of law. They did not argue that
the disclosures resulted in prejudice during the trial, thus
challenging the jury verdict, but only that the sentences
imposed by the judge were a product of bias against them
caused by the disclosure of their supposed willingness to
perjure themselves. As in the present case, in setting forth

12
their claim of bias, defendants ignored the fact that the
judge stated his reasons for imposing the sentences.
The Massachusetts High Court held without hesitation
that there was no error and that the record demonstrates the
fairness with which the trial judge conducted the entire
trial, and the evidence fully supports the conclusions he set
forth as the basis for his sentence. We find the holding in
Wilson to be more persuasive than the cases cited by Coleman.
A trial judge can fairly sentence a defendant although aware

of statements of the defendant or his counsel which were made
outside of the presence of the jury.
"Remand to a different judge is not the usual remedy
when error is found in district court proceedings. Remand to
a new judge is reserved for 'unusual circumstances'." United
States v. Arnett (9th Cir. 1979), 628 F.2d 1162, 1165; Robin,
553 F.2d at 10.
"[Tlhe principal factors considered by us in
determining whether further proceedings should be
conducted before a different judge are (1) whether
the original judge would reasonably be expected
upon remand to have substantial difficulty in
putting out of his or her mind previously-expressed
views or findings determined to be erroneous or
based on evidence that must be rejected, (2)
whether reassignment is advisable to preserve the
appearance of justice, and (3) whether reassignment
would entail waste and duplication out of
proportion to any gain in preserving the appearance
of fairness." Robin, 553 F.2d at 10.
The court in Robin, 553 F.2d at 10, further provided:

"A resentencing necessitated by the judge ' s
erroneous consideration of certain matters or
failure to take others into consideration may
involve essentially the same problems and require
application of the same criteria."
There is absolutely no indication on the record that the
statements made by counsel at the July 2 and 3 hearings in
any way affected the sentencing. The sentencing judge not
only presided over the July 2 and 3 hearings, but
subsequently presided over a three week, 3000-page transcript
trial, with 50 witnesses, which resulted in a jury verdict of
guilty on all three counts. The record does not disclose
that the judge exhibited any prejudice toward the defendant.
Great waste of time and effort would result if another judge
were required to acquaint himself with the record in order to
resentence Coleman. Under these circumstances, even if
resentencing were required, which is not our conclusion, we
do not find a basis for requiring a new judge to sit.
In United States v. Thompson (9th Cir. 1976), 541 F.2d
794, the prosecutor recommended a sentence of six months, but
the district judge imposed a sentence of four years.
Defendant contended that the district judge failed to impose
the recommended sentence because he was misinformed that
defendant had not cooperated with Drug Enforcement
Administration agents pursuant to the plea bargain. There
was no indication that the district judge relied on or ever
received the misinformation. Defendant was not entitled to
rebut since there was no misinformation to rebut. In the
present case there is no indication that the judge considered
the July 2 and 3 hearings during sentencing.
On July 3, while Coleman was present, defense counsel
stated that there was no way in the world that he could state
to the jury that Coleman was innocent of deliberate homicide
and of sexual intercourse without consent. Even though he
made that admission, defense counsel did maintain that the
State would have difficulty proving Mr. Coleman committed
aggravated kidnapping. We hold that the admission cannot be
construed as the equivalent of an admission of aggravated
kidnapping.
Defense counsel has failed to show that any improper
information was considered by the sentencing judge. He is in
a similar position to the defendant in Thompson. See also
United States v. Hawkins (5th Cir. 1981), 658 F.2d 279, where
defendant claimed the judge based his sentence on
misinformation. The Fifth Circuit Court rejected the
argument and held "[blecause we find that the district court
did not rely on erroneous information in sentencing
[defendant], there was nothing to correct or rebut."
Hawkins. 658 F.2d at 290.
Finally, let us consider the function of the sentencing
judge in a capital case, where a jury has convicted the
defendant. Under sections 46-18-301 et seq., MCA, the
sentencing judge must consider in a separate hearing, certain
specific statutory factors, and decide whether arrgavating or
mitigating circumstances exist. The judge may not impose the
death penalty unless at least one of the statutory
aggravating factors exist. State v. Coleman (1979)
Mont . , 605 P.2d 1000, 1016. Certainly, as Coleman
points out and we have noted above, there - judicial fact
is
finding involved in consideration of these factors. But the
guilt or innocence of the defendant is not one of the facts
for the sentencing judge to determine where, as here, a jury
has convicted the defendant of the crime or crimes with which
he is charged. In the absence of an order for new trial, or
reversal or modification of the verdict, the jury's
determination of guilt establishes the guilt of the defendant
as a fact.
In sentencing Coleman, the court set forth the facts
brought out at trial, and concluded from those facts that no
substantial mitigating factors existed; that far from being a
minor accomplice, or even the equal participant suggested by
first counsel at the July 2 and 3, 1975, hearing, Coleman was
"the decisionmaker and the dominating influence in the
criminal acts committed against the victim." The aggravating
factor leading to the court's imposition of the death penalty
was the conviction of aggravated kidnapping. Section

We see no finding or conclusion which was not brought
out at trial, or which may have arisen from the disputed
hearing, apart from the matter of defendant's guilt, which
was established as a fact, not by the judge, but by the
jury. We find, therefore, no indication that the remarks of
Coleman's first counsel could have influenced the sentencing
judge to impose the death penalty.
Petition denied.
We concur:

%A+?
i;ss,,,.eQQ
Chief Justice

,
Justices
A

fi
Hon. W.W.
4

Court Judge, s i t t i n 9 n place
of Mr. Justice John C. Sheehy
 I respectfully dissent from the majority opinion.
Coleman filed a verified petition for Writ of Habeas
Corpus in which he alleges that "because the sentencing judge
received and must have considered this information of which
Coleman and his counsel had no knowledge nor opportunity to
confront, deny or expla.in," Coleman was denied his rights to
a fair tribunal, to confront witnesses, and to have effective
assistance of counsel at sentencing. The State has filed no
pleading nor affidavit controverting the allegations of the
petition. For purposes of review we must assume as true that
the sentencing judge received and must have considered
Coleman's sodium amytal induced statements in rendering his
death sentence. Since it is admitted that the trial court
must have considered the information, resentencing is
required.
I herein incorporate by reference ml7 entire dissent
filed in Coleman vs. State of Montana, 38 St.Rep. 1352,
P.2d . In that dissent I quoted the following statement
of the trial court, made in response to a defense motion for
directed verdict in favor of defendant:
"THE COURT: Well, I treat this as a real serious
motion.
"MR. OVERFELT: In what regard?
"THE COURT: Well, I am not going to grant the
motion, but I say it has some merit.
"MR. OVERFELT: I frankly don't think it has any.
We could have gotten to the jury on circumstantial
evidence alone, your honor, and I'm confident of
that.
"THE COURT: Well, all you have shown is the
opportunity for this black boy to do it. You have
shown plenty of opportunity."
At this juncture in the trial the accomplice, Robert
PJank, had testified. His testimony was not corroborated.
The court, by its remarks, obviously did not believe Nank.
Nank testified that Coleman was an active participant in the
crime and in fact was the prime moving force. The court
noted that the prosecution had proven nothing but
opportunity.
The transcript, as I have quoted it in my previous
dissent, demonstrates vividly why the trial court felt that
only opportunity had been proven. Nank's testimony was
incredible. During that testimony he admitted that he had
previously lied on many occasions in reporting the facts
surrounding this incident.
Curiously, when the trial court made its findings in
support of the death penalty, the trial court said:
"e. that the defendant was not a relatively minor
accomplice, nor was his participation in the
offenses relatively minor, rather that the
defendant was the decision maker and the dominating
influence in the criminal acts committed against
the victim;"
The above quoted finding forms the basis for imposition
of the death sentence. This finding can only find support in
Nank's testimony. The trial judge, being a reasonable
person, could not have found this highly incredible evidence
to be persuasive in proving Coleman to have been the prime
moving force in the commission of the crime.
The circumstances surrounding the sentencing are
suspicious, to say the least. There is every indication that
the trial judge did in fact consider the results of the
sodium amytol test allegedly implicating Coleman in this
crime. Of course any experienced criminal defense lawyer
would have known that such tests are totally unreliable and
could not form a reasonable basis for the damaging admissions
counsel made to the court prior to withdrawal of
representation.
 We are here confronted with a record that should leave
no choice for the majority. We have an unrebutted
allegation, under oath, that the court must have relied upon
the results of the sodium amytol test. We have a finding by
the court that Coleman was the "decision maker and the
dominating influence" in the criminal acts committed. There
is no basis for this in the transcript except for the highly
incredible testimony of Nank, an admitted liar. Under these
circumsta.nceswe are required to order a resentencing.
I would remand for resentencing before a different
district judge.

I concur with Justice Morrison.

,
v? /

*.&,iii' J g4 L7
, 1 f
Justice d

Mr. Justice Daniel J. Shea will file a separate opinion
later.