No. 81-115 IN THE SUPREME COURT OF THE STATE OF MOEJTANA 1981

DEWEY EUGENE COLEMAN, Petitioner and Appellant,

-vsSTATE 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 . - CharlesMoses argued, Billings, Montana For Respondent: Hon. Mike Greely argued,Attorney General, Helena, Plontana JohnMaynard argued,Asst. Atty. General, ~elena; Montana John S. Forsythe argued, County Attorney, Forsyth, Montana

Submitted: April 29,'1981 Decided

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# 1981

Filed: 

## .4UG

## 18

## 1981Mr. Justice John Conway Harrison delivered the Opinion of the Court. Coleman appeals from a Rosebud County District Court dismissal of his petition for post-conviction relief. Title 46, Chapter 21, Montana Code Annotated. None of the issues presented by petitioner on this appeal are based in the underlying facts of the criminal

cause. Therefore, the facts surrounding Coleman's conviction for the death of Peggy Lee Harstad will not be recited. A full text of these facts can be found in our decision of an earlier appeal, State v. Coleman (1978), 177 Mont. 1, 579 P.2d 732. Operative procedural facts will be discussed with reference to specific issues offered by the petitioner. Petitioner Coleman presents eight issues for resolutionby this Court: 1. Is post-conviction relief a new civil action or a continuation of the previous criminal cause? 2. Should the judge have recused himself when his testimony is required as to certain claimed violations? 3. Is petitioner not entitled to post-conviction relief because he has been sentenced todeath? 4. Are claims of constitutional violations barred by

resjudicata because they were decided in earlier Coleman appeals? 5. Were thirteen of Coleman's constitutional claims properly dismissed because "they include vague new allegations, they are too vague to statenew claims, or are unsupported by authority and therefore barred by res 

## - judicata"? 6. Were seven of Coleman's constitutional claimsproperly 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 "because he failed to raise them in his direct appeal and because they arewithout merit"?

I. POST-CONVICTION RELIEF AS CIVIL OR CRIMINAL ACTION This Court recognizes the unique nature of the postconviction remedy. Montana law does not label the proceeding as either civil or criminal, although the chapter providing post-conviction relief is in the criminal procedure title. Title 46, Chapter 21, Montana Code Annotated. The Montana provisions of section 46-21-101 et seq., MCA, are derived from the Uniform Post Conviction Procedure Act and are essentially similar to the federal statute (28 U.S.C. 52255). The federal courts have consistently held that an action under 28 U.S.C. S2255 is a civil action, independent of the original criminal conviction. See Heflin

v. United States (1959), 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407. The same rule has been adopted in other states which have adopted the uniform act. Clark v. State (1969), 92 Idaho 827, 452 P.2d 54. In those states with similar provisions not necessarily deriving from the uniform act, the courts have been consistent in their view that post-conviction relief is civil in nature and independent of the criminal action. State v. Hannagan (Alaska 1977), 559 P.2d 1059; Noble v.State (1973), 109 Ariz. 537, 514 P.2d 458; State v. Richardson (1965), 194 Kan. 471, 399 P.2d 799; Smith v. State (1968), 79 N.M. 450, 444 P.2d 961; Noble v. Sigler (8th Cir. 1965), 351 F.2d 673, cert. denied, 385 U.S. 853, 87 S.Ct. 98, 17 L.Ed.2d 81, (held only that post-conviction applications are civil in nature); People v. Jones (1975), 30 Ill.App.3d 706, 332 N.E.2d 411; State v. Smith (Mo. 1959), 324 S.W.2d 707; Tolar v. State (Fla. 1967), 196 So.2d 1. Clearly, this is not intended to be another form of appeal from a criminal case, but a separate civil action aimed at vacating, setting aside or correcting a sentence. There is no Montana case interpreting the nature of the post-proceeding petition, but the proceeding could be closely analogized to that seeking a writ of habeas corpus which this Court decided in 1927 was an independent civil proceeding. August v. Burns (1927), 79 Mont. 198, 213, 255 P. 737, 741. It is important to note thatwe do not here intend to erode the fundamental principle discussed below that the sentencing court is the proper court for the post-conviction petition. We are mindful that a party to a civil action is entitled to two substitutions of presiding judges. Section 3-1-801-4, MCA (adopted by order of this Court on December 29, 1976, 34 St.Rep. 26). However, because an applicant for post-conviction relief is directed by the more specific provisions of the post-conviction statute to bring the petition in this Court or in the court that sentenced him,

we find that the two judge disqualificationgrant of section 3-1-801-4, MCA, is unavailable to the post-convictionpetitioner. In Montana, when a general statute is in conflict with a specific act, the specific statutewilltake precedence. Section 1-2-102, MCA; In Re Coleman's Estate (1957), 132 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. We willproceed to consider the issues raised on the appeal to this Court. Coleman contends that it was error to deny various of his requests without an evidentiary hearing. It is not error to deny an application for post-conviction relief without an evidentiaryhearing if the allegations are without merit or would otherwise not entitle the petitioner to relief. Clark v. State, supra; Tramel v. State (1968), 92 Idaho 643, 448 P.2d 649; Donnelly

v. State (Alaska 1973), 516 P.2d 396 (allegations in postconviction petition were too vague and illusory to warrant evidentiary hearing); Widermyre v. State (Alaska 1969), 452 P.2d 885; People v. Lyons (1978), 196 Colo. 384, 585 P.2d 916; Cook v. State (1976), 220 Kan. 223, 552 P.2d 985. The decision to admit or deny an application for post-conviction relief is a discretionary one and one that will not be disturbed by this Court absent a clear abuse of discretion. Section 46-21-201, MCA; Statev. Ybarra (1974), 22 Ariz.App. 330, 527 P.2d 107; Brudos v. Cupp (1977), 31 0r.App. 25, 569 P.2d 680; Sullivan v. State (1977), 222 Kan. 222, 564 P.2d 455.

11. RECUSAL OF THE SENTENCING JUDGE Coleman next maintains that the districtjudge should have recused himself as presiding judge over his petitionfor post-conviction relief in light of the fact that he was the sentencing judge

# . Petitioner observes that in a post-conviction proceeding, the sentencing judge would likely be called to testify asto, inter alia, the propriety of the death sentence. Citing 46 Am.Jur .2d Judges, S91 at 158, Coleman submits that a judge should excuse himself as a matter of course if it appears that he may be called as a witness. We disagree. Coleman failsto recognize the compelling purpose and policy considerations behind that portion of the statute (section 46-21-103, MCA) which directs that a petition for post-conviction relief be filed in either the court of conviction or this Court. See also section 46-21-101, MCA ("maypetition the court which imposed the sentence

# .. ."). Historically, having the sentencing judge preside at the subsequent proceeding has been earnestly advocated for the following reasons: (1) it reduces the burden on the District Court at the place of confinement; (2) it reduces the cost of the proceeding since most of the witnesses likely to be called are probably in the locale where the trial occurred; and, (3) the convicting court is more familiar with the totality of the facts and circumstances surrounding the case. Commissioners' Comment, 11 U.L.A. Post Conviction Procedure §3 (1974). Still another important consideration was enunciated by Idaho Supreme Court Justice Donaldson in Still v. State (1974), 95 Idaho

"Although it doesn't matter whether the proceeding is denominated as one for habeas corpus or for post-conviction relief, it is still necessary that the procedures of the Uniform Post-Conviction Procedure Act be followed. The Act was designed toqive thedistrict court which made the initial



### ..................................... determinations a chance to correct anv mistakes or irreqularities that occurred in that court. In addition, that court has before it allthe factsrequired tomake such a determination. 

### f here fore, the application or petition for relief must be filed in the district court where the conviction occurred. I.C. § 19-4902." (Emphasis added.) This Court is also of the view that the postconviction court judge should only recuse himself if the petitioner shows that the judge is the source of material evidence otherwise unobtainable. A trialjudge's familiarity with a case does not automatically make him a material witness in post-conviction proceedings. Bresnahan v. Luby (1966), 160 Colo. 455, 418 P.2d 171, 22 A.L.R.3d 1193. The Bresnahan court also emphasized the importance of the trial judge's familiarity with the criminal case which is being collaterally attacked by the civil action. The case atbar involved thousands of pages of testimony, briefs, motions and trial court records. We are mindful of the delay and burden on the efficient administration of justice which would occur if another judge were required to familiarize himself or herself with this record for the purposes of a post-conviction evidentiary hearing. Such delay can only be justified by the strongest showing of materiality and unavailability of evidence sought to be adduced from the sentencing judge

# . In this case, petitioner never makes it entirely clear to this Court just what testimony he hoped to elicit from the district judge. Abstract excursions into the mental processes of the sentencingjudge do not justify the pro forma recusal of a judge who is fully acquainted with the case. It appears that atbest petitioner was attemptingto embark on a fishing trip, hoping to uncover damaging testimony about the fairness of the sentence. Such a discovery procedure would not be allowed with any witness but is especially suspect when directed atthe trialjudge. See Moore v. People (1971), 174 Colo. 570, 485 P.2d 114. We find, therefore, that unless some specific and compelling evidence is sought to be adduced from the testimony of the sentencing judge and such evidence can be found nowhere else, for many substantial reasons the trial judge should also preside over a petition for postconviction relief. The Act itself lends credence to this line of reasoning, and it can be easily inferred that the legislature, in providing that a post-conviction petition should be filed in the court of conviction, intended that the sentencing judge preside over the post-conviction proceeding. The standard of proof regarding the necessity of a sentencing judge's testimony is high; only the strongest showing of materiality and unavailability warrants recusal. See In Re Continental Vending Machine Corp. (2nd Cir. 1976), 543 F.2d 986. The reasons advanced by petitioner for recusal of the trial judge were simply not sufficient tojustify a substitutionof judges.

111. APPLICABILITY OF POST-CONVICTION PROCEDURE TO CAPITAL CONVICTIONS

In regard to the third issue, section 46-21-101, MCA, recites in applicable part: "Circumstances inwhich validity of sentence may be challenqed. A person adTudged guilty of an offense in a court of record who has no adequate remedy of appeal 

# . . . may petition the court which imposed the sentence, the supreme court, or any justice of the supreme court to vacate, set aside, or correct thesentence." This Court has not specifically addressed the question of whether capitally-sentenced defendants are entitled to the protections of the post-conviction relief statute, or whether the automatic sentence review statute, section 46- 18-307 et seq., MCA, stands in the place of post-conviction relief. We are aware of the language of Mr. Justice Sheehy in State v. Coleman (1979), 

## -Mont. 

## , 605 P.2d 1000, 1006, 36 St.Rep. 1134, 1135, cert. denied, 

### -U.S. 1 100 S.Ct. 2952, L.Ed.2d 

## , wherein he writes: "Because the review conducted by this Court [pursuant to the automatic review provisions of section 46-18-307 through section 46-18- 310, MCA] statutorily stands inplace of any recourse tothe SentenceReview Division, the completion of this review will mark the end of state action upon this cause, excepting any action upon a petition for rehearing." (Emphasis added.) But cf., State v. McKenzie (1978), 177 Mont. 280, 322, 581

That language, as noted, only specifically pertains to the sentence review procedure and only generally could it be interpreted to represent a bar to the utilization of post-conviction procedure. The post-conviction statute does not limit its provisions to noncapitally-sentenced persons,

nor does the automatic review statute herald itself as an exclusive remedy. Such an interpretation would have to be inferred from the nature of the statutes and policies involved. We do not believe that such an interpretation can be given to these statutes. In arriving atthis conclusion, the plain meaning of the post-conviction statute is particularly persuasive. The statute provided that "a person adjudged guilty of anoffense" is entitled to access to the post-conviction procedure. If the legislature intended this statute to be applied only in noncapital sentences, we must conclude that it would have expressly done so. The terms of "aperson" or "any person" and "a crime" or "any crime" are generic terms encompassing a very broad spectrum of acts and actors. Any limitation on the grant of review in post-conviction procedures must be made by the legislature. It is clearly not the power of this Court to interpret the law in a manner contrary to legislative intent. See American Linen Supply Co. v. DOR (1980), Mont. 

## , 617 P.2d 131, 37 St.Rep. 1707; Dunphy v. Anaconda Co. (1968), 151 Mont. 76, 438 P.2d

Although the State argues persuasively regarding the legislature's intent regarding finality of sentences, we do not believe that the "plain meaning" of the statute demonstrates its inapplicability to capitally-sentenced offenders. Though aware of these competing legislative interests, this Court does not have the power to go beyond the clear and unequivocal provisions of the law.

IV. APPLICABILITY OF RES JUDICATA TO PETITION FOR POSTCONVICTION RELIEF Montana law is bereft of any decision on whether the doctrine of resjudicata is applicable toa prayer for postconviction relief. As a general proposition, we have held: "The doctrine of resjudicata states that a final judgment on the merits by a court of competent jurisdiction is conclusive as to causes of action or issues thereby litigated, as to the parties and their privies, in all other actions in the same or any other judicial tribunal of concurrent jurisdiction." Meagher Co. Water Dist. v. Walter (1976), 169 Mont. 358, 361, 547 P.2d 850,The doctrine bars reconsideration of an issue if four elements arepresent: "(1)theparties or their priviesmust be the same; (2) the subject-matter of the action must be the same; (3) the issues must be the same, and must relate to the same subject-matter; and (4) the capacities of the persons must be the same in reference to the subject-matter and to the issue between them." Brannon v. Lewis and Clark County (1963), 143Mont. 200, 207-208, 387 P.2d 706, 711. Aside from the bar of resjudicata, this Court has consistently refused to allow relitigation in a collateral proceeding of issues determined in a direct appeal, In Re Quigg (1976), 168 Mont. 512, 544 P.2d 441, and Spurlock v. Crist (1980), Mont. 

## , 614 P.2d 498, 501, 37 St.Rep. 1146, in some cases by reaffirming the prior holdings. Digiallonardo v. Betzer (1973), 163Mont. 104, 105, 515 P.2d 705. Accord, Orricer v. State (1970), 85 S.D. 293, 181 N.W.2d 461. In light of the dearth, if not complete absence, of guiding Montana case law in this regard, a review of the law

as it has evolved and developed with regard t the applicak. 

# r3& bility of resjudicata to the Federal Act,-;;I..2-'U.S.C.S2255, willaid. Historically the principle of resjudicata was not

seen to apply to writs of habeas corpus or petitions for relief under S2255. See, Sokol, Federal Habeas Corpus S21.5; cf

# ., Kelley, Finality and Habeas Corpus, 78 W.Va. Law Rev. 1 (1975). However, a new rule has been recognized regulating successive federal motions on grounds previously heard and determined. In Sanders v. United States (1963),373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148, the Court stated: "Controlling weight may be given todenial of a prior application for federal habeas corpus or 52255 relief only if (1)the same ground presented in the subsequent application was determined adversely to the applicant on the prior application, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application." 373 U.S. at15. Where a trial or appellate court has determined the federal prisoner's claim, discretionmay in a proper case be exercised against the grant of a 52255 hearing. Where the trial or appellate court has considered and decided a federal prisoner's claim, it may be open to the 52255 court to determine that, on the basis of the motions, files and records, the prisoner is entitled to no relief. See Thornton v. United States (D.C. Cir. 1966), 368 F.2d 822 (dissentingopinion of Wright, J.). The resjudicata rule has now come to a point in its evolutionwhere it can be said with certainty that a "ground for relief previously considered on appeal from a federal prisoner's conviction cannot be reconsidered on a motion attacking sentence under 28 U.S.C.S. 52255." Torcia, Wharton's Criminal Procedure, S649 at 401 (1976) and cases cited therein. Res judicata cannot be applied in such a manner as to deprive Coleman of the right to file a post-conviction petition and to use post-conviction procedure. However, 

## res judicata can be used to bar the rehearing of issues already litigated under the rule in Sanders. This interpretation preserves the Montana post-conviction remedy by requiring judicial inquiry into the propriety of the sentence and of the detention, while preventing abuse of the procedure byrelitigation of a claim previously considered and found insufficient. As discussed in Sanders, relitigation would

mean a waste of judicial effort, risking a clutteringof the court's limited resources with collateral attacks already decided on the merits. As one court put it, "judicial economy dictates restrictive limitations on reruns." United States ex rel. Townsend v. Twomey (7thCir. 1971), 452 F.2d 350, 357, cert. denied, 409 U.S. 854. Some stateshave gone beyond Sanders and statutorily prohibit more than one collateral attack on a single conviction. See 111.Ann.Stat. C. 38, 

### 9 122-3 (1964); M0.Sup.Ct.R. 27.26(d); Wyo.Stat.Ann. Tit. 7, S 7-408.3 (1963). We, therefore, adopt the Sanders criteria as previously quoted in thisopinion. We affirmthe holding of the District Court that the following twenty-seven issues have been considered previously and decided by this Court and Coleman has alleged no new facts or law with respect to these issueswhich require additional considerations: F, G, H,I,J,L,M,N,P,R,S,T,V,W,Y,Z,AA,DD,GG,HH, 11, JJ, KK, LL, MM, NN, and PP.

V. VAGUENESS AS BAR TO EVIDENTIARY HEARING The lower court denied thirteen of Coleman's claims because they were too vague to state new claims or were unsupported by authority and were, therefore, barred by res judicata. The State argued in the District Court that "vague new allegations" do not present a proper basis for review. We agree. Vague rehashings of issues previously adjudicated by

a court of competent jurisdiction will not make unworthyclaims magically meritorious. Naked allegations of injustice cannot constitute new grounds or provide any basis for relief. Cf. Hooker v. People (1970), 173 Colo. 226, 477 P.2d 376. Again, we must defer to the discretion of the District Court in determining if the claims made in the petition are valid or merely previously decided issues in disguise. Andrews v. Morris (Utah 1980), 607 P.2d 816, cert. denied, 446 U.S. 949, 101 S.Ct. 254, 66 L.Ed.2d 120. Moreover, this Court will not disturb the post-conviction court's judgment in this regard absent a clear abuse of discretion. See Redd v. State (1967), 199 Kan. 431, 429 P.2d 925 (emphasizing great discretion in the postconviction court to make initial judgments regarding validity and substance of claims)

# . We affirm the holding of the District Court that the following thirteen issues or claims are dismissed as res 

## - judicata because the vague new allegations do not affect the validity of the prior determination of this Court: B, E, K, Q, U, X, CC, EE, FF, 00, QQ, RR, and XX.

VI. APPLICABILITY OF NEWLY DEVELOPED AUTHORITY We next consider Coleman's contention that seven of his claims were not properly dismissed on the grounds that the new authority cited was either inapplicable or clearly distinguishable, leaving the claims barred by resjudicata. Cases have recognized that a1 though particular issues have been addressed and determined adversely to a prisoner on a direct appeal, a post-conviction court may nevertheless consider such matters where there has been a substantial change in the applicable law. United Statesv. Sorenson (D.N.Y. 1970), 308 F.Supp. 1268; Robson v. United States (1st Cir. 1975), 526 F.2d 1145. As to these seven claims, we note thatno evidentiary hearing is required since these are questions of law only which are involved. A court 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 823, cert. denied, 393 U.S. 1057, 89 S.Ct. 698, 21 L.Ed.2d 698, reh. denied, 393 U.S. 1124, 89 S.Ct. 997, 22 L.Ed.2d 133. We have reviewed Coleman's seven claims and find that the cases cited by Coleman are distinguishable. We therefore affirm the District Court's holding that the following seven claims arebarred by resjudicata as the new authority cited is inapplicable or clearly distinguishable: A, C, D, 0, BB, TT, and W.

VII. DISMISSAL ON GROUNDS OF WAIVER AND LACK OF MERIT The District Court held that fiveof Coleman's claims

were dismissed because he failed toraise them on hisdirect 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 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

# . Sanders, supra; Widermyre v. State (Alaska 1969), 452 P.2d 885; State v. Richmond (1977), 114 Ariz. 186, 560 P.2d 41, cert. denied, 433 U.S. 915, 97 S.Ct. 2988, 53 L.Ed.2d 1101; People v.Trujillo (1976), 190 Colo. 497, 549 P.2d 1312; Andrews v. Morris, supra. We affirm the dismissal by the District Court of the following claims on the basis that they are without merit: SS, UU, WW, YY, and ZZ. Two hearings were held, with petitioner an6 his attorney present, on the following dates, June 14, 1978 and July 16 and 19, 1978. At the June 14 hearing, counsel for petitioner noted to the court that in view of the fact a presentence report had been prepared, he was not presenting

an additional report. The presentence report contained the information that petitioner had never been convicted of any prior felony prior to the present charge. Counsel for petitioner noted: "May the record show that on behalf of the defendant, we are not going to call this gentleman [probation officer Thomas Lofland] to the stand at this time for examination. That does not mean we agree with the report, simply that we are not going to callhim as a witness. "THE COURT: Very well. Now the announcement that the defense does not intend to produce any

# . . . call any witnesses toestablish any mitigating circumstances, the Court has before it all matters during the course of the trial, heard the testimony relating to the aggravating circumstances and also some mitigating circumstances

# . .." Thereafter, the court requested each side to submit proposed findings of fact, conclusions of law and briefs. Both the petitioner and the State having submitted their briefs and findings and conclusions, the courtheld a second hearing on July 10, 1978. At the beginning of the July 10 hearing, the trial judge submitted to petitioner's counsel and State counsel his findings and conclusions and thereafter counsel forpetitioner read into the record a prepared statement in mitigation. With this record before us, we cannot fault the trial court in the sentencing of petitioner. Petitioner, at the first hearing, did not testify in mitigation, declined to examine the officer who prepared the presentence report, and was given an opportunity to submit both further briefs

on the sentencing and hisproposed findings and conclusions. To now allege that he was denied due process and an opportunity topresent his argument is without merit. Here the trial court was faced with some forty-nine separate claims for relief. While Carter v. Illinois (1946), 329 U.S. 173, 67 S.Ct. 216, 91L.Ed. 172, holds that states are free to devise their own systems of review of criminal cases, the system, as illustrated in this case, now allows petitioner two appeals, a result not contemplated by the legislature. The July 10 hearing indicates that the trialjudge, inpronouncing sentence, stated: "In pronouncing sentence I do want the parties to know that this is extremely agonizing for the court tomake. I have not looked at the points that have been raised lightly, but many of the arguments raised by the defense, of course have been considered heretofore, and the jury has found from the factual standpoint that the defendant was guilty, beyond a reasonable doubt, and I do not disagree with that conclusion of the jury. One mitigating circumstance is that the defendant has not prior to this timebeen convicted of any felony, but in view of the enormity of the crime committed, and the court's feeling that this one circumstance does not overcome the aggravated circumstances, I have made to the effect, written findings as required by law. Also I have made conclusions and judgment which have been furnished to the defendant and the state at this time, and I willonly atthis time read the court's conclusions and judgment.

### "

The sentence and judgment are affirmed. The DistrictCourt is directed to schedule a new date for execution.

We concur: 

# 8L-L

# d.q-ifiQ-7~ Chief Justice

/ Justices



### ono or able"^. 

### ~4 L District Judge, s place of Mr. ~ustick John C. SheehyMr. Justice Frank B. Morrison, Jr., dissenting:

I respectfully dissent. The firstproblem with this case is that the defendant's conviction was based upon accomplice testimony which was not sufficientlycorroborated by independent evidence. The trial court should have directed a verdict indefendant's behalf atthe time of trial. I willquote extensively from the transcript to show that the state's case failed. The second partof the dissentwilldeal with imposition of the death penalty. That discussion concerns aggravating circumstances versus mitigating circumstances and the conditions under which the death penaltymay be imposed. The defendant, Dewey Eugene Coleman, and Robert Nank met atthe Veteran's Hospital inSheridan, Wyoming. Coleman

was being treated for depression. Nank had a history of mental illness. Coleman and Nank were discharged from the Veteran's Hospital and came toMontana on Nank's motorcycle. They "ran outof gas" between Roundup, Montana and Forsyth, Montana, during the evening hours of July 4, 1974. Coleman testified that they unsuccessfully tried tohitchhike to the nearest town for the purpose of securing some gasoline. It began togetdark and Coleman stated that, since Coleman was black, he was impairing their ability to obtain a ride and Nank directed him tohide himself. Thereafter, according to Coleman, Nank was able to stop a vehicle and obtain a ride. Coleman testified thatNank leftwith the driver and headed inthe direction of Forsyth. Coleman said thatNank returned driving the car sometime later and that he was wetand emotionally upset. Nank instructed Coleman toremove their things from the motorcycle and come with him. Colemanobeyed. They drove, what was later determined to be the Harstad vehicle, past Forsyth in the directionof Rosebud. Nank stopped between Forsyth and Rosebud and picked up something which appeared tobe a blanket. He also stopped ata bar inRosebud and obtained two Cokes. He advised Coleman thathe had killed a woman. Nank headed back toward Forsyth and the Harstad vehicle "ran outof gas". According to Coleman, Nank went into a field and hid something. Coleman was directed to carry a woman's purse, which he did. Coleman looked inthe purse, found no money and, pursuant to Nank's directions, threw the purse into a culvert. The two then walked toForsyth, arriving there in the earlymorning hours. Nank obtained gasoline ina can and hitchhiked back to the motorcycle. Nank returned for Coleman and they left. Coleman stated that they eventuallywent toBoise, Idaho, where they rented an apartment and lived until the timeof their arrest. Coleman stated thathe did not reportNank to the authoritiesbecause he was afraid of Nank and because he

was afraid of being implicated. Nank's testimony departs from Coleman's atthe point that the victim, Peggy Harstad, stopped to give Nank a ride. In contrast to Coleman's testimony thatNank leftalone with the young woman, Nank testified thatColeman went with him.' He testified thatColeman was seated in the right front seat and he, Nank, was inthe middle next to the driver. Nank stated that as they proceeded toward Forsyth he asked Peggy Harstad to stop the vehicle so thathe could urinate. He stated thathe and Coleman gotoutof the vehicle and urinated beside it. They then returned to the vehicle and headed towards Forsyth. As they approached Forsyth, Nank testified thathe turned the ignition key off and maneuvered the vehicle to the side of the road. Nank tied Peggy ~arstad'shands together with a yellow nylon rope. He removed her clothing except for her blouse. He attempted to have sexual intercourse with her but could notmaintain an erection. He testified thatColeman then "got in the backseat" with Peggy Harstad and had sexual intercoursewith her while Nank, now standing on the outside of the car, held onto her foot. Nank testified thathe thereafter dressed the victim and they drove around deciding what to do. Eventually Nank stated thatColeman decided to killPeggy Harstad. Nank then claimed thathe threw the victim over his shoulder, with her hands still tied, and headed down toward the Yellowstone River. He stated thatDewey Coleman hither on top of the head continuously with a motorcycle helmet and that then Coleman attempted to strangle her with the yellow nylon rope. He stated thatwhen this did not kill the victim that he, Nank, held her head under water in the Yellowstone River until she drowned. Nank alsorelated how he and Coleman went to Boise, Idaho, obtained an apartment and continued to liveuntil the time of the arrest. Following their arrest, Nank and the defendant were interrogated by law enforcement officialsin Boise, Idaho. Coleman maintained his innocence, butNank confessed and agreed to testify against Coleman. The testimony of an accomplice isviewed with suspicion because there is a strongmotive for lying. In this case a number of law enforcement techniques were used to obtain a confession from Nank. A police officer admitted telling Nank, though it was not true, thathe had witnessed a hanging and that itwas gruesome. He further told Nank, though it

was not true, thatColeman had confessed and blamed ~ank for themurder. Nank thereafter exhibited a willingness to confess, butwould only do sowith some assurance that hewould not hang. He was assured by law enforcement officials that they would make every effort to see thathe would not hang and Nank thereafter gave a confession implicating Coleman. Nank was charged with deliberate homicide, sexual intercourse without consent, and aggravated kidnapping. Only the latter offense carried the deathpenalty. Nank was permitted toplead guilty and receive noncapital sentences fordeliberate homicide and rape. The aggravated kidnapping charge, which carried the death penalty, was held inabeyance until Nank testified against Coleman atthe trial. After Coleman's trial the aggravated kidnapping charge against Nank was dismissed. Itisobvious why an accomplice's testimony must be viewed with distrust. Before a criminal charge againsta defendant can survive a directedverdict and be submitted to a jury, theremust be independent corroborating evidence implicating the defendant inthe crime. That corroborating evidence "must raisemore than a suspicion of the defendant's involvement in, oropportunity to commit, the crime charged." Mont. Statev. Warren (1981),

## - - , 628 P.2d 292, 295, 38 Mont. St.Rep. 773, 776 (quotingfrom Statev. Kemp (1979), - - I

The following excerptis taken from the firstColeman case, Statev. Coleman (DecidedApril 26, 1978), 177Mont.

"In Statev. Keckonen, (1938), 107 Mont. 253, 84 P.2d 341, we held thatwherethe alleged corroborative evidence isequally consonant with a reasonable explanationpointing toward innocentconduct on .thepart of the defendant, then such evidence does not tend toconnect him with the commission of the offense and isin the realm of speculation, not corroboration. Where the claimed corroboration shows no more than an opportunity tocommit a crime and simply proves suspicion, it isnot sufficient corrobora-tion tojustify a conviction upon the testimony of an accomplice. Statev. Jones (1933), 95Mont. 317, 26 P.2d 341." In applying the rule, the Supreme Court held, in the Coleman opinion cited above, that therewas sufficient corroboration of Nank's testimony to sustain the defendant's conviction. The court found the corroborating evidence to be: A crack indefendant's motorcycle helmet; a hair of Peggy Harstad found on the rope belonging to the two men; the fingerprints on Peggy Harstad's car and inher purse; Negroid pubic hairs similar to defendant's and Negroid head hair found inthe victim's vehicle; the evidence that the defendant and Nank were seen together on the same road at approximately the same time that Peggy Harstad disappeared. The Court held that this evidence sufficientlyconnected the defendant to the commission of the offenses charged to allow the conviction to stand. The evidence thatdefendant was on the road with Nank inthe vicinity where Peggy Harstad disappeared does not corroborate the testimony of Nank anymore than it corroborates the testimony of Coleman. Coleman testified thathe was with Nank on the evening inquestion. The same is true of Coleman's fingerprints inthe purse and in thevehicle. Coleman testified thathe was in the Harstad vehicle after Nank returned with the vehicle. He testified thatNank told him todispose of the purse. He testified thathe first went through the purse and examined its contents. The existence of Coleman's fingerprints on the purse's contents and in the vehicle corroborate the testimony of the defendant

aswell as the testimony of Nank. Therefore, this evidence is "equally consonantwith the reasonable explanation pointing toward innocent conduct on the part of the defendant" as it ispointing toward guilt, and therefore, does not qualifyascorroborating evidence. If there isany corroborating evidence sufficient to take this case to the jury itmust be found in the cracked motorcycle helmet or inreliable testimony thatColeman's pubic hairs were found in the victim's vehicle. A careful reading of the trial transcript shows that sufficientcorroboration did not exist. There was a crack inDewey Coleman's silver colored motorcycle helmet. The prosecution contended that this corroborated Nank's testimony thatColeman repeatedly struck Peggy Harstad on top of the head with hismotorcycle helmet. There was no foundation to show that such a striking could

or would crack a motorcycle helmet. There was no testimony to show that the helmet could be cracked in such a fashion without cracking the skull of the victim. This victim had

no skull fracture atautopsy. If the crack inthe helmet had any corroborative significance, itwas destroyed by the pathologist's testimony. Dr. John Pfaff, board certified forensic pathologist, was called to testify by the State toprove that the decomposed remains which he examined atautopsy were those of Peggy Harstad. Hedid so. He was then questioned about his findings inconnection with the tissuewhich covered the skull. He testified that if trauma occurred to the top of the head, he would expect to see bleeding into the tissue, but that he saw none. The following excerpts are taken from his testimony: 

# ".

.

# . I could find no evidence of bony fracture inany of the skeletalremains that I examined. In the skull therewas no brain tissue remaining. The fibrus liningmembrane which covers the brain and separate from the skull bones was still intact. This is significant because incases of skull fracture or serious injury to the skull, it may become detached and contain bleeding orblood extravasation. Such was not observed inthis case."Question: And within that scalp tissue, did you find any evidence of an incised wound, a laceration ora hemorrhage? "Answer: I did not. "Question: Did you examine thatdural lining to determine and ascertainwhether there was any wound, laceration or hemorrhage? "Answer: I did. "Question:And what didyou find? "Answer: I found none.

"Question: Doctor, with respect toa subdural hematoma, isityour testimony thatit ispossible to have a subdural hematoma without injury to the scalp, without injury or fracturing of the skull and without injury or hemorrhage to the subdural lining, is that possible? "Answer: It'spossible, but there isusually injury to the scalp. There may be no injury to the bone, but if there isa blow struck to the scalp there is usually evidence of thatif the patient is living. (Emphasis added.)

"Question: Allright. Now inthisparticular case did you find any evidence to substantiate injury to the head or to the face? "Answer: In the tissue I examined, I found none. "Question: Well, whatever you did inthatautopsy examination, whatever was available toyou, whatever procedure thatyou used, whatever scientificmethod thatyou employed, did you find any injury to the head or to the face? "Answer: I did not." (TrialTranscriptVol. 111, pp. 572, 603, 605, 633.) The only remaining evidence claimed for corroboration is thatpubic hairs similar toDewey Coleman's were found in the Harstad vehicle. The record reveals thathair samples were taken from the defendant and subjected tomicroscopic examination. Both head hair and pubic hair belonging todefendantwere available for thatexamination. The victim's carwas vacuumedand numerous hair samples obtained from thatvacuuming. These samples were also scrutinized microscopically and compared to the hair samples of defendant. It should be remembered thatdefendant testified he was inthe victim's vehicle afterNank returned driving the vehicle. Therefore, the existence of defendant's hair inthe

car corroborates defendant aswell asNank and does not provide independent corroborating evidence sufficientto sustain a conviction. However, the Stateplaces greatreliance upon the factthatdefendant's pubic hair was allegedly found in the victim's vehicle. The record does not support the State

### 's position. In an effort to corroborate the State's case, the prosecution called an expertwitness toprove that the hair found in the victim's vehiclewas connected to the defendant. Before quoting excerpts from the expert's testimony, itis important to take cognizance of the evidentiary rulehere applicable. The offered testimony must be based upon a "reasonable degree of scientificprobability" and is inadmissible if the testimony isbased upon a mere "possibility". Mont. Moen v. Decker Coal Co. (1980), 

## - - , 604 P.2d 765, Mont. 36 St.Rep. 2220; Azure v. City of Billings (1979), 

### - - I 596 P.2d 460, 36 St.Rep. 968; Farris v. Clark (1971), 158 Mont. 33, 487 P.2d 1307; Stordahl v. Rush Implement Company (1966), 148Mont. 13, 417 P.2d 95. The following excerpts are taken from the State's expertwitness: "Question: Did you make a comparison of the Q-2 hair thatyou have mentioned ashaving come from the automobile, and the K-2 asyou have mentioned ascoming from the head of Dewey Coleman? "Answer: Yes, I did. "Question: And whatwereyour findings?"Answer: I found that there were some similarities between these hairs, but also there were some differencesbetween these hairs. "Question: As a result of that, what was your final conclusion? "Answer: I reached no conclusion as towhether or not these hairs could have come from the same source. "Question:

# .

# . . Did you compare the pubic hairs, the known pubic hairs from Dewey Coleman with the Q-29 hairs thatwere removed from the debris from Peggy Harstad's vehicle? "Answer: Yes, I did. "Question: And what wereyour findings? "Answer: I found that the--the two black Negroid pubic hairs in the vacuumings from the vehicle, which microscopicallymatch the hairs which were submitted tome asbeing from the pubic area of Mr. Coleman. "Question:Willyou explain that further please? "Answer: Well, the fact that the hairsweremicroscopically alikeallowed me to conclude that they could have come from the same source. The two pubic 

## ----- --the two black Negroid pubic hairs from the vacuuming~ of the victim's vehicle could 

## -- have come from the pubic area of Mr. Coleman. -- 

### ---

"Question: You don't say it does come from the same source, 

## --- you say it'spossible 

### -- that it could have come from that source, right? 

### --- "Answer: That's correct." (TrialTranscriptVol. VIII, pp. 1802, 1805, 1806, 1905, 1906.) (Emphasis added.) Under well established law inMontana, this testimony

was too speculative tobe received inevidence, and once received, could not be relied upon as sufficientlycorroborative to sustain a conviction. This Court's decision inStatev. Coleman, supra, wherein the Court identified the corroborative evidence, alsorelied upon testimony that the victim's hair was found embedded inthe yellow nylon rope. Though the existence of such hair would only corroborate that the rope was used in killing the victim, and would not corroborateNank's testimonythatColeman was present, the evidence itself was insufficient. The same expertwitness sought to relate hair found on the rope with the hair of the victim. He testified that there was brown Caucasian hair embedded in the frayed ends of the rope. He again testified that the hair found in the rope could have been the hair of Peggy Harstad. Under the rule --- above enunciated such testimony could not be relied upon for corroboration. Additionally, thisexpertwitness testified thathe could not determine the sex of the person from whom the hair came. Nank alsohad brown Caucasian hair. Interestingly, this same hair expert, testified thathe had examined hair taken from the blanket later determined to be a blanket which Peggy Harstad had inher car when she lefthome. Brown Caucasian hair was found on the blanket. Nank had testified thathe and Coleman were on the blanket smoking cigarettes after they had killed Peggy Harstad. Coleman testified thathe knew nothing about the blanket and had had no physical contact with it. The examination revealed

no Negroid hair upon the blanket. There simply was no corroboration sufficient to lend credence to the testimony of Nank. The trialcourt realized this. Atthe time theprosecution rested, and the defense moved for a directed verdict, the trial court indicated that therewas no corroboration but stated he would allow the Supreme Court torule on the question. After the defensemade a motion for directed verdict because therewas not sufficient corroboration for an accomplice's testimony, the prosecution resisted and the following discussionwas had: "THE COURT: Well, I treat this asa real serious motion. "MR. OVERFELT: Inwhat regard?"THE COURT: Well, I am not going togrant the motion, but I say ithas 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, allyou have shown is the opportunity for thisblack boy todo it. You have shown plenty of opportunity." (TrialTranscriptVol. IX, pp. 2106-2107.) As previously noted, corroborative testimony showing only opportunity isinsufficient to allow the case togo to the jury. Though the trial court found, as I have found, that there was no corroboration, he nevertheless allowed the

case to go to the jury so that the Supreme Court would have

an opportunity toreview the complete record and make a determination. I am greatly bothered by this case. The only evidence that the defendant isguiltyof the crimes charged comes from an accomplice who was a self-proclaimed liar and who had every reason toperjure himself. This accomplice, though he had a history of violence and sexual deviation,

was given a noncapital sentence. The defendant, whose guilt

was not proven by competent evidence, had no previous felony record and yetwas sentenced todeath. The death sentence inMontana isgoverned by three statuteswhich arehereinafter quoted intheir entirety: "Aggravating circumstances. Aggravating circumstances areany of the following: "(1)The offense was deliberate homicide and was committed by a person serving a sentence of imprisonment inthe stateprison. "(2) The offense was deliberate homicide and was committed by a defendantwho had been previously convicted of another deliberate homicide. "(3) The offense was deliberatehomicide and was committed by means of torture. "(4) The offense was deliberatehomicide and was committed by a person lying inwait or ambush."(5)The offense was deliberate homicide and was committed as a partof a scheme or operationwhich, if completed, would result inthe death of more than one person. "(6)The offensewas deliberate homicide asdefined in subsection (1) (a)of 45-5-102, and the victim was a peace officer killedwhile performing his duty. "(7)The offense was aggravated kidnapping which resulted inthe death of the victim." (Section46-18- 304, MCA.) "~itigating circumstances. Mitigating circumstances areany of the following: "(1)The defendant has no significanthistory of prior criminal activity. 

### "(2) The offense was comrnited while the defendant was under the influence of extreme mental or emotional disturbance.

I'(3) The defendant acted under extreme duress or under the substantialdomination of another person. 

### "(4) The capacity of the defendant toappreciate the criminality of his conduct or toconform his conduct to the requirements of law was substantially impaired. 

### "(5) The victimwas a participant inthe defendant's conduct or consented to the act. "(6)The defendantwas an accomplice inan offense committed by another person, and hisparticipation was relativelyminor. 

### "(7)The defendant, atthe timeof the commission of the crime, was less than 18years of age. 

### "(8)Any other factexists inmitigation of the penalty." (Section46-18-304, MCA.) "Effect

### - of aggravating 

## - and mitigating circumstances. In determining whether to impose a sentence of death or imprisonment, the court shall take intoaccount the aggravating and mitigating circumstances enumerated in46-18-303 and 46-18- 304 and shall impose a sentence of death if it finds one ormore of the aggravating circumstances and finds that there areno mitigating circumstances sufficiently substantial to call for leniency. If the court does not impose a sentence of death and one of the aggravating circumstances listed in46-18-303 exists, the courtmay impose a sentence of imprisonment for lifeor for any termauthorized by the statutedefining the offense." (Section46-18-305, MCA.)Under the above quoted statutes the death penalty is imposed if there isan aggravating circumstance and mitigating circumstances do not call for leniency. The firstsix subsections of section 46-18-303, MCA, are inapplicable to thisdefendant. The only aggravating circumstance tobe found under the statute, if indeed one existed, would be rooted in subsection (7). There is absolutely no corroborating evidence to show that thisdefendantwas involved inaggravated kidnapping resulting inthe death of the victim. Even if

one were to accept the "hair testimony" offered by the expert, itwould only corroborate thatdefendant committed the actof sexual intercourse. This actcould not have resulted inthe death of the victim. There isno testimony corroboratingNank

### 's testimony that the defendantparticipated inan actwhich resulted inthe death of the victim. A very strong mitigating circumstance exists under 46- 18-304, MCA. This defendant has no felony record. Furthermore, under subsection (8)of the statute, any factexisting in mitigation, must be considered by the court. The questionable guiltof the defendant iscertainly such a mitigating factor. Wehave seen that there isnot corroborative testimony to supportNank's version of thismatter. I would like to examine Nankls testimony itself to show the total unreliability of that testimony. The purpose of such examination is to show the weakness of the State1 s case, the likelihood that the defendant isinnocent, and the fact that the death penalty should never be imposed in such a circumstance. Though the jury convicted Coleman, the trial judge should consider the certainty of Coleman's guiltbefore imposing the death penalty. There was no confession from the defendant. There wereno disinterestedwitnesses directly connecting Coleman to the commission of the offenses charged.As previously discussed, therewas no independent corroborating evidence of any kind. If Nank's testimony lacked credibility, the evidence of Coleman's involvementbecomes even more speculative. The following excerpts from the record bear upon Nank's veracity: "Answer: She drove the pickup through the driveway and over down within maybe five feetof the bike. I then tipped themotorcycle right side up and I proceeded to fillthe gas tank up. I lied toher. This isgoing back to the crime and I was always trying tomake up stories. You know.

"Question: Did you tell them the same thing that you have told thejury here in the lasttwo days? "Answer: No, I lied toMr. Brake. "Question: Inwhat respect did you lie toMr. Brake? "Answer: I lied. I told Mr. Brake thatDewey tied Peggy Harstad up and I told him thatDewey undressed her instead of me.

"Question: So thatany statement inany record that you took LSD 25 or 30 timeswould be a lie? "Answer: Itwas ina liein somuch thatmaybe at thattimeI was going to try touse that asan excuse tobe admitted formy crime into a state hospital instead of going toprison, and so that ismaybe the reason that I made that statement, and I did liebecause I heard of cases like thisbefore, so I may have lied, yes. "Question: So now you did tell somebody thatyou had used LSD 25 or 30 times, but even though you lied about it,you thought you might be able to getoff or getintoa statehospital or something, is thatright? "Thatwould be thepurpose of it, yes.

"Question:Well, did you give them any examples of any aggressive behavior on your part? "Answer: I don't know, I did a lotof lying so I cannot statenothing truthfully aboutwhat I said there and geta correct answer. 

# . .

# ." (TrialTranscriptVol. V, pp. 1056, 1057, 1102, 1103, 1130.)Nank's testimony on the stand was alsocontrary to the testimony of Law enforcement officers. Nank testified that he

was telling the truth and the law enforcement officerswere lying. One of the law enforcement officerswho originally interrogated Nank following his arrestinBoise, Idaho, stated thatNank told him he became upset with Peggy Harstad because she said something tohurt his ego. Nank, during the Coleman trial, accused the law enforcement officer of lying about thismatter. The following excerpt is taken from the transcript: "Question:And do you recall thathe said, 'Ibet you that she probably said something to you that either hurt your ego, made you very mad, extremely upset', or something like that, and did you drop your head and notmake any comment to thatquestion? "Answer: I did notmake any comment because I knew thathe was trying tomake memake some kind of a statement. "Question:And then he said, 'Did she say something toinfuriateyou or hurt your ego', or this type of thing, and you said, 'Yes, Yes, she did.' "Answer: No, I never did say that. Mr. Brake lied and I also told Judge Martin when I was inan earI.iercourt hearing before about that. "Question: Mr. Brake lied? "Answer: Mr. Brake did lie." (TrialTranscriptVol. V, p. 1091, 1092.) Law enforcement officer Brake had also testified that at the time Nank and Coleman werearrested in their apartment inBoise, thatNank told thepolice to "~et your ass outof here". Nank, during the Coleman trial, again accused the law enforcement officersof lying. The following excerpt is taken from the record. "Question:And did you when you were arrested tell the Boise police, to 'Get your ass outof here'? "Answer: No. Mr. Brake lied about that, and I also tried toexplain that toJudge Martin inan earlier courthearing that I said thatMr. Brake lied. That's one thing, I have never--I have neverI I 

# .. a','

called a policeman a name. He lied about that too." (TrialTranscriptVol. V, p. 1227.) Again, officer Brake testified thathe read the constitutional rights toNank atthe timeof his arrest. Nank, while testifying during the Coleman case, disputed this. Nank testified: "Question: Did he verbally--did Mr. Brake verbally advise you of your rights as soon asyou were placed under arrest? "Answer: Not atthat time. Not atthatparticular time, no. "Question: You heard Mr. Brake say thathe did adviseyou of your rights, and that's a lieaccording toyou? "Answer: Hedid not atthat timewhen wewere arrested verbally advise us of our rights atthat time, no, he did not. "Question: You heard him testify thathe did? "Answer: He did not do it. "Question:Well then, he lied? "Answer: He lied." (TrialTranscriptVol. V, p. 1227.) Nank's testimony itself was riddled with inconsistency. Though the record isreplete with examples, the following is illustrative. When testifying about who undressed the victim, Nank gave the following testimony: "Question: You took her shoes off didn't you? "Answer: Yes, I did. "Question:You undressed her? "Answer: Dewey did." (TrialTranscriptVol. V, p. 1189.) The following testimony is taken from page 1210, Vol. V, of the trial transcript. "Question: And didyou undress her? "Answer: Yes I did. "Question:And did you dress her up again? "Answer: Yes I did."And from page 1223 and 1224, Vol. V, of the trial transcripts, the following testimony is taken: "Question: Do I understand thatDewey never took her clothes off? "Answer: Dewey did not take her clothes off. "Question: Do I understand thatyou took her clothes off? "Answer: I did take her clothes off. "Question: And thatincluded her pants? "Answer: She had on--well, some kind of moreless trousers orwhatever. "Question: Did thatinclude underpants? "Answer: I do not remember if shewas wearing underwear at that timeor not. "Question: Did you put her clothes back on? "Answer: I put her blue jeans back on. I think with what shewas wearing, I put them back on, yes. "Question: So thatyou were the only one that dressed or undressed her, is thatcorrect? "Answer: Yes, that's correct." In the firststatement Nank gave to law enforcement officialshe said Coleman undressed thevictim. On the stand Nank testified thatColeman undressed thevictim and then changed the testimony and testified thathe was the only one who had undressed thevictim. Histestimony, to say the least, was incredible. Nank had a history of violence beginning with his childhood. Though therecords show thathe attacked his mother with a butcher knife, he testified thatitwas his mother who attacked him with the knife. Nank related the following testimony during the course of Coleman's trial: "Question: Now you stated thatyour mother, Mrs. Nank--Mary, was thather firstname? "Answer: Margaret."Question:Margaret. Atone time when you were 18 years of age, held a butcher knife atyour throat and chased you around the house with a poker beating you upon the head and shoulders and then tearing the frontof her dress and going out inthe street and telling other people thatyou had attacked her sexually; did she do that? "Answer: NO, you stated thatwrong, sir. "Question: Well, did she hold a butcher knife at your throat? "Answer: Yes, she did. "Question:And did she chase you around the house with a poker? "Answer: Yes, she did. "Question: Did she hityou about the head and shoulders with a poker? "Answer: Yes, she did. "Question: Did she tear the front of her dress? "Answer: The frontof her blouse. "Question:And did she tell other people thatyou had attacked her sexually? "Answer: No, she did not. "Question: She did not? "Answer: She did not run out in the street and holler atpeople, no, she did not. "Question: Did she tell other people thatyou had attacked her sexually? "Answer: I think shemight have told a doctor. I do notknow." (TrialTranscriptVol. V, pp. 1074, 1075.) Though the records show thatNank had attacked his mother with a butcher knife and indicate thathe may have attacked her sexually, he took thewitness stand in the Coleman case and said thathismother in facthad been the aggressor and he the victim. Nank had been institutionalized inmental hospitals on four previous occasions. Hehad a history of violence including violence againstboth hismother and his sister. Hehad a felony record.On the other hand, Coleman had no history of violence and no felony record. Coleman was a homosexual. A psychologist testifiedwith respect toa rapist's typical characteristics. This testimony showed thatNank fitthe pattern but Coleman did not. In fact, thiswitness testified that the incidents of homosexuals being involved inrape was "practically zero". Inmy nineteen years atthe bench and bar I have seldom been so deeply disturbed by the injustice of a result. A defendant ishere sentenced todiewhere there ispractically

no credible evidence connecting the defendant to the commission of the crime. There are strong reasons tobelieve that the defendant didnot commit the crime forwhich the death penalty was imposed. And yet this Court isauthorizing the imposition of thatirrevocable sanction. I implore the federal courts to examine thisrecord, and upon finding it tobe aswanting as I do, to intervene and prevent this gross injustice.Mr. Justice Daniel J. Shea dissenting: Although the death penalty should be vacated in any event, Iwould 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 deathpenalty should not be imposed. I also join JusticeMorrison 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 themajority opinion, the opinion decides the issues in such a wholesale and summary manner thatwe have ourselvesdenied 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 onewrite a dissent to such a nonopinion? How does one knowwhere to begin? In part I11 of the opinion, themajority holds that post-conviction relief is available to a defendant sentenced to death, and with this Iwholeheartedly agree. Itwould 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 decisionwill 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, Iwould agreewith part I1 of the majority's opinion that the trial judge and the sentencing judge should also preside over an application forpostconviction relief. But that general rulemust give way to a situationwhere 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 judgehere should have called in another judge to preside

over Coleman's application for post-conviction relief. His failure to do somade a mockery of any meaningful consideration 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 themajority 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 judgewho 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 judgepresiding over both proceedings. Finally, Iagree with a part of themajority opinion inpart IV--that part of the opinion holding that res judicatamay 

### -be applied to a petition forpost-conviction relief if the criteriaof Sandersv. United States (1963), 373 U.S. 1, 83 S.Ct. 1068, 10L.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 thosevery criteria set out in Sanders,by its wholesale and summary treatment of the issues. United Statesv. Sanders is concerned with the extent a federal court in a post-conviction relief proceeding such ashabeas corpus, can give controllingweight to a previous denial of habeas corpus. Although it isprocedurally inapplicable to the case before us,nonetheless Sanders does adopt sound and workable standards that can apply to a petition forpost-conviction relief after there has been a direct appeal. But themajority here has failed to recognize thatwe must consider each criteria before we can justly say that res judicata should bar the claim. This Courtmust decide first that the sameground 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 decidewhether the ends of justice require thatwe 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 themerits--if the ends of justice require it. Themajority here has failedmiserably in applying these criteria, for there isno way of determining from the opinionhow or if the criteriawere applied. Somuch for Sanders. Ihave divided my dissent into eightparts, 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 appealwas 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 evenmore. Coleman raised in the trial court and before this Court 52 issues. Counsel lettered the issuesA through Z, and then started again at the beginning of the alphabet and went through the alphabet oncemore, lettering the issues

### AA through ZZ--52 issues. Needless to say, it ismore than a little difficult for any appellatecourt to concern itselfwith 52 issues on appeal. That process is complicated evenmore when the briefs and oral arguments are so poor. I have chosen to concentrate on those issues which I believe to havemostmerit. This is not to say that I believe at least some of the other issues not to have merit, but time constraints requireme to concentrateon those issues I feel aremost worthy of discussion. Thisdissent isdivided 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,RetroactiveApplication of Death Penalty Statutes; Part

### V, Unconstitutional Shifting of Burden of Proof to Defendant; PartVI, Right to Jury Trial

on QuestionWhether Death Penalty Should be Imposed;PartVII, Right to Evidentiary Hearing on Question of Whether Death by Hanging Constitutes Cruel and Unusual Punishment;Part VIII, Denial of MeaningfulAppellate Review. Because themajority opinion has totally failed to mention the issues, other than to refer to them by the letters as designated in the petition forpost-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 exactlywhat issue was decided. 

### - I further emphasize that this order is a word-for-word adoption of the proposed 

## -- -- --- findings and conclusionsof -- lawpresented -- by the State. For this reason, it can hardly be considered as being the careful analysis of a trial judge judiciously carrying out his duties. Idissented in both Coleman - I (1978),177Mont. 1, 39 to 43, 579 P.2d 732, 754 to 756, and Coleman

## - I1 (1979),

### -Mont

# . I605 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 onmy 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 thatwas properly selected and empanelled. In Coleman - I, 579 P.2d 732, the majority held against him. I dissented on this issue, 579 P.2d '754-756,and for this reason alone, Iwould grant defendant a new trial. Themajority has cut real corners and did not reach the real issue in deciding this issue in Coleman - I, and for this reason, Iwould again review itby application of the Sanders criteria. It seems that all the majority is concerned about is whether therewere 12 jurors present to try the case and not how the 12 jurors happened to be there in the firstplace. Inmy dissent, I pointed out the improper procedures used in calling in the panel of jurors, of which at least some of the 12 jurors were called in themanner 

### - described. PART I1 THERE ISNEITHER ASSURANCE THAT THE JURY REACHED A UNANIMOUS VERDICT ON ONE OR MORE THEORIESOF CRIMINAL RESPONSIBILITY SUBMITTED TO THE JURY,NOR ARE ALL THEORIES SUPPORTED BY SUBSTANTIAL EVIDENCE IssueUU, an issue not raised in Coleman's first two appeals, claims that all three convictionsmust be reversed because there is no assurance that the jury reached unanimous agreement on one ormore 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 theSixth and FourteenthAmendment of the United States Constitution, and as guaranteed by Article 11,B 26,Montana Constitution. Counsel has raised this issuewithout 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 reviewby 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 isnot 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 asvirtually frivolous. The United States SupremeCourt, 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),

### 447U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392, the Supreme Court stated: "To insure that the deathpenalty is

# .. . imposed on the basis of 'reasonrather than caprice or emotion,' (thecourts)have invalidated procedural rules that tended to diminish the reliability of the sentencing determination. 

### -- The same reasoning must apply to rules that diminish the reliability of the guiltdetermination." (Emphasisadded.)

7- And the Supreme Court has long recognized that the question of whether a verdict was unanimous in a death penalty

casemust not be left to guesswork.InAndres v. United States (1948),333 U.S. 740, 68 S.Ct. 880, 92L.Ed. 1055, the trial court failed to instruct the jury that itmust be unanimous as to both guilt and as to a sentencerecommendation. Under the statute involved, a conviction required the deathpenalty to be imposed unless the jury directly stated in itsverdict that it should not be imposed. The courtheld that where a statute requires jury input on sentencing,unanimity is required, and the jury had not been expressly instructed that itmust also reach unanimity as to whether itmade no recommendation

(thereby triggering mandatory imposition of the death penalty),

orwhether it made a recommendation that the death penalty not be imposed. Because there was no assurance that the jury knewof the unanimity requirement with respect to sentencing, the Supreme Court reversed, stating: "Indeath cases,doubts such as these presented here [doubtsas to unanimity] should be resolved in favor of the accused." 333 U.S. at 752. In the third McKenzie case, Statev. 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 juryverdicts, I raised the added spector that McKenziemay also have been the victim of less than unanimous jury verdicts because of themany alternative charges to the jury, and because of the failureof 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 isprotected 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. Colemanwas chargedwith three distinct crimes: count I,deliberatehomicide; count 11,aggravated kidnapping; and count 111, sexual intercoursewithout consent. For each of these crimes charged, the jurywas instructed that it could reach a verdict based on several alternative theories of criminal responsibility. Under count I, the jurywas instructed it could find Coleman guilty of deliberatehomicide by use of the felony-murder rule, or by finding that he purposely and knowinglykilled Lana Harding. But under the felonymurder rule the jurywas given the choice of several felonies, including unspecified felonies, to apply in determining whether Colemanwas guilty of felony-murder. Under count 11,aggravated kidnapping (whichconviction triggered the death penalty here) the jurywas given several choices of what felony Coleman had inmind to commit when he held or secreted Lana Harding. Furthermore, several - of these choices

are unsupported - by substantial evidence. Under count 111, sexual intercourse without consent, the jurywas given two choices as to proof of the issue of "withoutconsent." One of those choices is unsupported by substantial evidence. - - - 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 youmust agree on theverdicts." The trial court failed,however, to instruct the jury that its verdict on each chargemust be unanimous on one ormore of the theories of criminal responsibility. Theverdict forms given to the jury by the trial court,provide no basis to determine theunderlying 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 intercoursewithout consent. It is impossible to determine from these verdicts whether the jurywas unanimous

on one ormore 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 (count111) 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 thosemore knowledgeable than me to explain how any appellate court can approve the death penalty for the convictionof aggravated kidnapping even though several theories of criminal responsibility as charged in that offense, are not supportedby substantial evidence. Both the trial court and themajority 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 theymust under Coleman 11, 605 P.2d at 1052, the claim fails. See Cupp v. Naughton, 414U.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);Johnsonv. Louisiana, 404 U.S. 356

(1972)

# ."This ruling treats the issue in a most summary fashion, evading rather thanmeeting the question raised, But the majority opinion is even worse, for it fails even to identify the issue, let alone to analyze the issuewith respect to theprocedural context of the charges, the instructions,and the verdicts returned. Themajority disposes of this claim by another omnibus ruling in Part VII of its opinion, disposing of this and fourmore 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. Itwas not error for the court to deny them summarily

# . .." The trial court's reliance on Johnsonv. Louisiana (1972), 

### uoc. .8gqU.S. 356, and Apodoca v. Oregon (1972), 404 U.S. 404, ismisplaced. 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 thatMontana's Constitution,Art. 11,

### S 26 ("Inall criminal actions, the verdict shallbe 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 deathpenalty conviction where the verdictmay 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 criminalresponsibility,and a situationwhere a defendant is charged with one or several crimes,but where he is also charged withmultiple statutory theories of criminal responsibility. In the first situation, a general instructionon 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 situationwhere a defendant is charged with three crimes, but also charged with committing those crimes in several alternativeways. In this situation, a general instruction

as to unanimitywill not suffice. Rather, the jury must be instructed that its verdictmust be unanimous on any one or
more statutory theories applied in reaching its verdict. Further, the verdicts returned should disclose the statutory basis onwhich the jury reached itsverdict. If these requirementsare 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 UNANIMOUSVERDICT 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 followproper statutory guidelines. If ithad 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 relevantpart: "(1) An indictment, information, or complaint mav charae two ormore different offenses

-..-. J. - - 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 isnot required to electbetween the different offenses or counts set forth in the indictment, information or complaint,and the defendantmay be convicted of any number of the offenses charged. Each offense of which the defendant is convictedmust be stated 

### - -- in theerdic-ffinding of the court." -- - 

### -

~ 

### -- (Emphasisadded.) Although the statute uses theword "may", themessage 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 "twoormore statements of the same offense" are charged, that itbe 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 thisprocedure by stating that theprosecutor is not required to elect on his theories, but that "eachoffense of which the defendant is convicted must -- be stated in the verdict 

# . .." -- I read this last sentence to mean, in contextwith the entire subsection, that if a defendant is charged in separate counts with a different statementof the same offense, a verdict form must be prepared for that separate statement, and the jurymust return a verdict on that particular statement of the offense. If thisprocedure had been followed in this case,we would know the precise basis onwhich the jury reached itsverdict on each charge. It is the State then, who must assume the responsibility for improperly charging Coleman and for setting inmotion the ambiguous verdicts. The State's error in not following this statute, is magnified by the failureof the trial court to instruct the jury that its verdictmust be unanimous on each statutorytheory of criminal responsibilitypresented to itby 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. Iproceed next to a discussion of the general law in relation to the requirement of a unanimous jury verdict, and then Iwill 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 requirementnormally presents no problem. It is sufficient to instruct the jury that itmust reach a unanimous verdict. But the problem is entirely different where a defendant is chargedwith one crime in one count,but where in the same count,he is chargedwith 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 intercoursewithout 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 intercoursewithout consent, and the six other jurors believe that the defendantkidnapped 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 agreement, 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 reachunanimity and the functionof 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 reviewnecessarily involves an examination of the charges filed, the instructions given defining the elements of those charges, the instructions givenwith 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 instructionsand verdict forms. For example, if 

### a defendant is charged in count Iwith two ormore crimes, what does a jury verdict revealwhere it finds that defendant is guilty of count I? Did the jury convict the defendant of one crime orboth? Was the juryunanimouswith respect to either? United States

v. Starks(3rdCir. 1975), 515 F.2d 112, 116-117. Also see, United States v. Uco Oil Co. (9thCir. 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 Iwith 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 towhether the jury convicted defendantunder one -51-alternative theory, ormore 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), 87Wash.2d 374, 553 P.2d 1328;United States v. Natelli (2ndCir. 1975), 527 F.2d 311; Statev. Williams (Iowa1979), 285 N.W.2d 248; State v. Souhrada (1948),122Mont. 377, 204 P.2d 792. On the other hand, other courts have held that a general instruction is not sufficient; rather, the jurymust be specifically instructed that itmust reach unanimous agreement on any one ormore statutory theories of criminal responsibility as charged by the State. The defect of a general instruction has been pointed out in United Statesv. Gipson, supra: "The unanimity rule thus requires jurors to be in substantial agreement as to just what a defendant did as a steppreliminary 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 itmust reach unanimity on any theory used as a basis to find guilt. Several state courts have held that a jurymust be instructed that itsverdict be unanimous on one ormore 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 felonymurder, Michigan and Washington have held that the jury must be instructed that itsverdict be unanimous on at least one of the theories. State

### v. Golliday (1979),78 Wash.2d 121, 137, 470 P.2d 191, 201; Peoplev. Embree (1976),68Mich.App. 40, 241N.W.2d 733; Peoplev. Olsson (1974), 56 Mich.App. 500, 507, 224 N.E.2d 691, 693-694. In Olsson, the Michigan Court of Appeals reversed a convictionbecause jury instructions failed to distinguish between felonymurder and premeditatedmurder, and because the jury was not instructed that itmust unanimously agree
on the same statutory theory in order to reach a verdict. 224N.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 orwhether it

was committed in a situationcalling for applicationof the felony-murder rule. 68Mich.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 jurywas not told that its verdictmust 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--oneof which triggered the imposition of the death penalty. 

### WHY THE CONVICTIONS MUST BE REVERSEDThose 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 verdictmust be unanimous as to any statutory theory or theories of criminal responsibility, and the defect canbe 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 sufficiencyof 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 af

### firmed; not, the conviction must be reversed. But what does the appellate court do if the verdict fails to disclose the statutory theory onwhich the jury based its decision? An analysis of all theories to determine their sufficiency clearlyproceeds on the assumption that whatever theory or theories the jury used, the jurywas unanimous. Without this assumption of unanimity, the conviction would be reversedprecisely 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 itmust be unanimous on any statutory theory or theories onwhich the State has based itsprosecution. Failure to give this instruction is cause for reversal. In this event, appellate reviewwould then be confined to determining whether all theories are supportedby substantial evidence. If allwere so supported, the judgment would be reversed and a new trial ordered under all theories. If not so supported, the casewould be reversedwith 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 jurywas less than unanimous on
a theory or theory onwhich 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 ismuch the same as that used to reverse a jury verdictwhere the jury is given inconsistent instructions on an important point of law. Reversal isbased on a fundamental policy rule that if the appellate court cannot tell whether the jnry followed the correct or incorrect instruction,and itwould be unfair to affirm a verdict based on an erroneous instruction. See, for example,my dissent in State

### v. Price (1980), Mont

# .

, 622P.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 itmay have followed an evidentiarytheory not supportedby 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 responsibility arepresented to the jury, and where the verdict is ambiguous as to which theory or theorieswere 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 jurywas in fact unanimous. But where there is no such instruction, the appellate court should notmake this assumption. The question boils down to one of policy--how much leeway can a jury be permitted in reaching itsdecision? 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 eitherway 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 ambiguousverdict, 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 (seesection 46-11-404MCA, supra) the State initiated the problem of ambiguity. The trial court then compounded the ambiguity by failing to instruct the jury that itsverdict must be unanimous on one
ormore 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 (theprosecution and the court) and the benefit of this doubt should be given to the defendant. United Statesv. Andres, supra. In any criminal case, fundamental dueprocess 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 THEVERDICTS RETURNED INTHIS CASE The formal charge for each count, the instructions for each count, and the verdict forms for each count, present essentially the sameproblems. 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 itsverdict. The jurywas given a general unanimity instruction designed to apply to all three counts. But the jurywas not instructed that itmust unanimously agree to any one ormore of the alternative statutory theories. Furthermore, the verdict forms required nothing more than a determination that the defendantwas guilty or not guilty of deliberate homicide, guilty or not guilty of aggravated kidnapping, and guilty or not guilty of sexual intercoursewithout consent. The general instruction on unanimity (instructionno. 

### 41) stated:"Youare instructed that when you retire,you are to elect one of yourmembers as foreman who will sign any verdicts arrived at by the jury

# . "Such verdictsmust be unanimous,which means 

## -- that all of youmust agree on the verdicts. --------- Verdict formswill be provided foryour convenience. "Whenyou have reached your verdicts, you will notify the bailiff who will returnyou into court." (Emphasisadded.) 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 (countI): "Thatthe defendantpurposely 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 Colemandeliberately and knowingly caused the death of Peggy Lee Harstad; and 2. That he did sowhile 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 jurywas 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 thewoman,
or that he did so while engaged in the commission of several alternative applications of the felony-murder rule.The jurywas 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 (instruction27) unequivocally told the jury that it had a choice of several statutory theories of criminal responsibility

onwhich to base its conviction: "To sustain the charge of deliberate homicide, the Statemust prove the following propositions: "First,that the defendant performed the acts causing the death of Peggy Harstad; "Second,thatwhen the defendant did so, "(1) He acted purposely or knowingly 

### - or "(2) That he was engaged in the commission of kidnapping or 

### -- any other felonywhich involves themreat of physical force or violence 

### --- - againstany individual. "If you find fromyour considerationof all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty." (Emphasisadded.) Under the second proposition to be proved, the jury had several choices in determining how thewoman's death came about. First, the jury could determine that Coleman "purposelyor knowingly" caused thewoman'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 thathe was "engaged in the commission of 

# ... - any other felonywhich involves the 

### -- use or threat - of physical forceor 

### -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-murderrule that Coleman caused thewoman's death while he was kidnapping her orwhile hewas committing any other felony that involved using physical force or threatening to use physical force against thewoman
or any otherperson. 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 fromwhich

one can determinewhich statutory theory or theorieswere used by the jury to convict. Theverdict form signed by the jury foreman states only that:"We, the jury, in the above-entitled cause find the defendant guilty of DeliberateHomicide as charged.

### " Did the jury decidewithout reference to the felonymurder rule that Colemanhad purposely or knowingly killed thewoman? Or did the jury decide that Coleman caused the woman's deathwhile kidnapping her? Or did the jury decide that Coleman caused thewoman's deathwhile 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 itsverdict onmore than one of these statutory theories of criminal responsibility? Finally, -- and most important,was 

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

### ----- of criminal responsibility when it returned its guilty verdict? - --

.. The trial court failed to instruct the jury that in order to convict Coleman fordeliberate homicide, itmust agree unanimouslyupon at least one of the alternative theories of criminal responsibilityrelied 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'sdeath orwhether it found the defendant guilty by application of the felony-murderrule. And the verdict does not indicate that the jury was inunanimous agreement that the defendant

was criminally responsible under any one, specific theory. Based onmy previous discussion of the unanimity requirement, the deliberate homicide conviction should not be permitted to stand. Itmust be reversed and a new trial ordered. Chapmanv. California, supra; and see,United Statesv. Gipson, supra. COUNT 11: THEAGGRAVATED 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 thatbecause 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, - and for the purpose of inflicting bodily injury on - and terrorizing the said victim, Peggy Lee Harstad, resulting 

### -- in the death 

### - of Peggy Lee Harstad." (Emphasisadded.) Just as the deliberate homicide charge was phrased in the conjunctive, so was the aggravated kidnapping chargephrased in the conjunctive. This being so, the Statewas required to prove each essential fact charged. However, the jurywas 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 jurywas given several statutory theories of criminal responsibilityunder 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 knowwhich of the inconsistent instructions the jury followed in reaching its guilty verdict,

orwhether,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: 

### "Aperson 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 

### ---- any of the followingpurposes: "(1) to facilitate commission of any felony; 

### "(2) or to inflictbodily injury or 

### -to terrorize the victim." (Emphasisadded.) In this instruction the jurywas told that it could convict if Coleman, in restraining thewoman, had thepurpose to commit

### any felony, 

### - or if he had the purpose to inflict bodily injury, 

### - or if he had the purpose - to terrorize thewoman. Then, instruction no. 38 attempted to set out other facts which the Statewas required to prove, according to the actual charge filed against the defendant:"Theoffense ofAggravated Kidnapping requires that the voluntary act (thesecreting or holding of the victim without 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 followingpurposes: 

### "(a) to facilitate the commission of any felony (inthis case sexual intercoursewithout consent of thevictim, - or an aggravated assault upon the victim), or 

### - "(b) to inflict bodily injury on the victim." (Emphasisadded.) In this instruction, the jurywas 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 authority - orby 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 

### - any felony (here,limited to sexual intercourse without consent or aggravated assault) or (b)the purpose to inflict bodily injury upon thewoman. Assuming there is substantial evidence to support each of these alternative theories, there is still no way to tell whether the jurywas unanimous in applying any one theory. Instructionno. 38 considerably expands the range of alternatives set out in instructionno. 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 statemust prove the followingpropositions: "First: That the defendant knowingly orpurposely restrained Peggy Harstad by secreting her in a place of isolation;and "Second: That the defendant had thepurpose in so acting to facilitate the commission of any felony,or to inflictbodily injury, or to terrorize 

### -

7 Peggy ~arstad."Third,that in so doing the defendant acted without lawful authority. "Ifyou find from your considerationof 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 fromyour consideration 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. " (Emphasisadded.) Instructionno. 39 differs considerably from instruction

no. 37. The jurywas told that it could find Coleman guilty by finding that he had any one of three purposes in restraining or secreting thewoman. First, the jury could find Coleman guilty by finding he had the purpose to commit any felony. Although instructionno. 37 also states 

### - any felony, instructionno. 39 considerably expands upon instruction 38,which limited thepurpose 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 - to terrorize her. This language is consistent with instructionno. 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 inconsistent instructionon the elements of the crimemay haveled to a conviction resulting in the death penalty, this Court should not have to think twice before reversing the convictionand 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 jurywhich 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 defendantGuilty of the offense of Aggravated Kidnapping as Charged. "B. We further find that Peggy Harstad [did] [didnot] die as a result of saidAggravated Kidnapping. "(Strike outbracketedword orwords 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 thosepurposes listed in instructionsno. 37, 38 and 39. How canwe tell which purpose or purposes the jury used.inreaching its decision? And, because the instructions are inconsistenton an essential element of the crime, how canwe tell which instruction the jury used? And, because the instructions

are inconsistent, canwe be sure that the jury used any of the three instructions? The aggravated kidnapping chargemust be reversed. First, in a criminal case inconsistent instructions as to an essential element of a crime, requiresa reversal and a new trial. See Price, 622P.2d 160, and cases cited inmy dissent

(622P.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 responsibilitychargedby the State. Peoplev. Olsson, supra, Peoplev. Embree, supra; Statev. Golliday, supra; State v. Bleazard, supra; Peoplev. Thompson, supra;United States v. Gipson, supra. Third, the trial court submitted ambiguousverdict forms to the jury,and theverdict returned fails to disclose the statutory theory or theories onwhich 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), 94Wash.2d 216, 616 P.2d 628. And finally, consider that the aggravated kidnapping conviction laid the foundation for imposition of the deathpenalty. Reversal is absolutely required if the judicial system is to maintain its integrity. SUBSTANTIAL EVIDENCE DOES NOT SUPPORT EACH OF THEALTERNATIVE THEORIES GIVEN TO THE JURY In instructionno. 38, the jurywas told that it could convictColeman 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 isno substantial evidence to support either of these theories. There is not a shred of evidence to establish that when thewoman was firstheld or secreted,Coleman then had as his purpose that of committing sexual intercoursewithout consent. When the woman was kidnapped,according to the testimony of accomplice Nank, itwas their purpose to rob thewoman and to killher. In fact, itwas not until sometime later, at Nank's initiation, that Coleman (according to Nank) accomplished an act of intercourse with thewoman. The fact that accomplice testimony, however weak (corroborated only by a negroid pubic hair found in thewoman's car),indicated that at some time during this episode Coleman had intercoursewith thewoman, 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. Statev. Souhrada, supra, the conviction must be reversed because substantial evidence does not support the alternative theory that Coleman held

or secreted thewoman in order to accomplish an act of sexual intercoursewithout consent. Nor is there substantial evidence to support a conclusion that Coleman had as his purpose in holding or secreting the woman to commitan aggravated assaultupon her. Accomplice Nank testified that he and Coleman planned to rob and kill the firstperson they got a ride from,but this does not establish that itwas Coleman's purpose to commit an aggravated assault upon thewoman. Although it canbe argued that an aggravated assaultwould 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. Instructionsno. 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. Substantialevidence does not support this theory, either. Accomplice Nank's testimony states only that itwas 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, itnonetheless does not establish the fact that Colemanheld or secreted thewoman for the specific purpose of inflictingbodily injury upon her.Instructionsno. 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 terrorizeher. There isnot 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 thathe or Coleman had the specific purpose to terrorize the person who gave them a ride-. Based on accompliceNank's testimony, and assuming it to be sufficiently corroborated,Coleman could have been charged under the aggravated kidnapping statutewith 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 chargedwith 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., Statev. Souhrada, supra,Coleman's conviction must be reversed because the jurymay 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 thewoman. For at least four of those purposes listed in the instructions, there is no substantial evidencethere is no corroboration for this testimony. The negroid pubic hair found in thewoman'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 "withoutconsent." By instructionno. 33, the jury could also convict Coleman by finding that he had intercoursewith the woman by threatening her or anyone else with imminentdeath, bodily injury, or kidnapping. But Nank's testimony negates the conclusion that Coleman accomplished intercourseby 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 "withoutconsent," 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 intercoursewithout consent. The jurymade

an additional finding, later held by this Court in Coleman - I to not be supported by substantial evidence (579P.2d at 742-43), that Colemanhad inflicted physical injury on her while accomplishing the act of intercourse. Because the jury made this finding, the likelihood is that itdetermined that Coleman threatened her with bodily injury and then carried it outby 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 Colemanmay have been deprived of aunanimous jury verdict on the issue of "withoutconsent." There is no assurance that the jury was unanimous on this issue. The jurywas not instructed that itmust 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 intercoursewithout consent conviction be reversed and a new trial granted. See,United Statesv. Gipson, supra. PART I11 A JUDGEWHO HAS IMPOSED THE DEATH PENALTY ONA DEFENDANT SHGULDNOT SIT ON THAT DEFENDANT'S APPLICATION FOR POSTCONVICTIONRELIEF Themajority blandly decides in Part I1of its opinion that general policy considerations require that the sentencing judge or trial judge alsopreside over a petition forpostconviction relief. As a general proposition, I agreewith this holding. However, such a holding should never apply in a casewhere the defendant has been sentenced to death. Further,because of the allegationsmade 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, itoffendsmy sensibilities that this same judge should preside over the defendant's petition forpostconviction relief. This is especially so,where the petition not only attacks the validity of the conviction, but also attacks the validity of the sentenceand 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. (SeeAppendix A to thisdissent.) If post-conviction relief is to have meaning, and especially in a death penalty case,due process of lawmust require that the judge carefully consider each of the issues raised by the petitioner. Needless to say, he failedmiserably in this case. Additional allegations Coleman makes in his petition forpost-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 justicewithin 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. IssueC 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 thiswas 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 ..deathof Peggy Lee Harstad." It cannotbe 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 - I, 579 P.2d 732. The essence of Coleman's claim is that the trial courtwould get the death penalty in the event of a conviction. To establish the judge's intentions, Coleman wanted the judge to testify. InColeman - 11, 605 P.2d 1000. I dissented to this Court's decision in effectvalidating the judge's amendment of the information. (Iknow of no authoritypermitting the judge to become an advocate by changing the charge.) This amendment,whichmandated the death penalty in the event of a conviction,was the beginning of the orchestration of the proceedings by the trial courtwhich eventually led to Coleman being sentenced to death. IssueY claims that the judge made his decision to hang Coleman before the judge even held the sentencing hearins. Gol-eman alleqeile~~~de&a-Klc fact thU; ille-

2 

### - 

## SV .RTGColeman alleges the 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 

### - 11, 605 P.2d 1000, 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 IssueY 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 sentencinghearing. Coleman is entitled to that testimony,

even though the judgewould never admit that he had prejudged the case. In any event, Coleman would be entitled to ask the judgewhy 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 deathpenalty. 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 determinewhy he had never considered the negative criminal record, The semanticsused by the sentencing court have been the subject of my dissent in Coleman 

### - 11,605 P.2d lC00, 1002

## - 51, and I again elaborate on this issue in partVIII ofmy 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 uncorroborated trial testimony of Nank. InColeman - 11, I coneluded 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. 605p.2d 1027 to 1040. If the sentencing judge made this ruling based on testimony or evidence other thanprovided by Nank at the trial, Coleman claimshe 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 statuteswere mandatory if it found the existence of an aggravating fact and thatmitigating factors were not "sufficiently substantial to call for leniency." Therefore, once the sentencing courtmade these preliminary findings, Coleman claims that the sentencing judge believed that hewas required to impose the death penalty. If thiswas his interpretation,Coleman claims that this interpretation flies in the face of Supreme Court rulingsholding that mandatory provisions are impermissible. Because this interpretationdoes 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 statuteasmandatory. 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 judgebelieved he

was limitedby 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 factorswhich 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 consideration 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. IssueKK 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 themitigating factors, requires that these factorsbe "sufficiently substantial as to call for leniency

# . .."The findings and conclusions are silentas 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 sourceof what standardswere applied must come is testimony from the sentencing judge. Issue 00 s&ems to be similar to Issue KK. Coleman claims that he is entitled to knowprecisely 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 sufficientby itself to have another judge preside over Coleman's petition forpost-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 somehowdemeaned by not having another judge take a look at the case, even though 

### Iam fully aware of the inherentback-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. Inaddition, Coleman's allegations made the testimony of the sentencing judge imperative--for the judgewas the only sourceof 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 fromobtaining 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 TOAPPLY DEATH PENALTY STATUTES TO COLEMAN WHICH WERE ENACTED AFTER THE DATE OF THE CRIMES After our decision in Coleman - I, the sentencing court 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 - 11,Coleman claimed that applicationof these death penalty statutesviolated the

ex post facto clauses of the United States and Montana Constitutions. He further argued that this retroactive application 

### of statutesviolated certainMontana statutes designed especially to prohibit retroactive applicationof statutoryprovisions. 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 existingMontana 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 issuesby 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. Iwould hold thatwe have violated the United StatesConstitution and our own constitution in retroactively applying the death penalty statutes, as well as violating statutesdesigned to prevent this very kind of unfairness. By properly applying the standards set out in United Statesv. Sanders, supra, Iwould 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 ormore of the aggravating circumstancesand finds that there are no mitigating circumstances sufficiently substantial to call for leniency." This statuteundoubtedly 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 conclusionson this point, the sentencing court totally missed the issue raised. The court ruled: "00. Montana's capital sentencing schemeprovides for the consideration of mitigating circumstances, a provision which benefits capital defendants. The issuepresented involves only sentencing,not guilt or innocence, and petitioner's due process claims are withoutmerit. See Coleman 11, 605 P.2d at 1057, cert.den. 100nt. 

## m,and Statev. Watson, Ariz., 586 P.2d 1253, 1258 (1978),cert.den. 440 U.S. 924. 

# A2752 Themajority, in its omnibus ruling in part V disposed of this and 12other issues on the ground that they are res judicata and vague. Issue 00 is neither. Cohtrary to.thetrial court's ruling that we ruled on this issue at 605 P.2d at 1057, in Coleman - 11,and contrary to the implicationof the decision here,we did not rule on this issue. Rather, the majority held in Coleman I1 that section 46-18-305, MCA does not limit the sentencing - court "fromconsidering any aspect of the defendant's record or character as a mitigating factor." This ruling says nothing about the shiftingof the burden of persuasion. The claim cannot be vague where Coleman asserts that section46-18-305 unconstitutionally shifts the burden of persuasion to him to convince the sentencing court his life should be spared. This section unmistakeably shifts the burden ofpersuasion; 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 questionwas 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. Iwould 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 ofmitigating 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 Statemust prove each essential fact beyond a reasonable doubt. In Re Winship (1970),397 U.S. 358, 90S.Ct. 1068, 25 L.Ed.2d 368. This rule should not be permitted to evaporate in the sentencing stageswhere the results of thatprocess 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 impositionof the death penalty. Those burdens were notmet 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 casebecause 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? PARTVI RIGHT TO JURY TRIAL ON DEATH PENALTYASPECT 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 IssueHH, 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 thepresence 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 11,ruled - againsthim. 605 P.2d 1015.t~ 1018. I dissented. 605~.2d 1022.By adopting verbatim the findingsand conclusions prepared and presented by the State, the trial court, of course,decided againsthim. (See,Appendix, IssuesHH and PP of sentencing judge's order.) Inpart 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 isnot foreclosed. In Lockett v. Ohio, supra,Lockett claims that shehad 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: "nordo we address her contention that the Constitution requires that the deathpenalty be imposed by a jury

# ..." If the deathpenalty 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 lkimphreyv. Cady (1972),405 U.S. 504, 509, 92S.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 contemporaryvalues." 428 U.S. 1531 96 

## s.c~.2909, 49 L.Ed.2d 859. And eightyears earlier, the Supreme Court stated that jury involvement in a capital

case serves "tomaintain 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.'" Witherspoonv. Illinois (1968),391 U.S. 510, 520, n. 15, 88 S.Ct.. 1770,n. 15, 20 L.Ed.2d 776,n. 15. Inmy dissent inColeman 

### - 11, Ibriefly set outmy views

as to why a jury should be involved in the sentencing process in a capital case, and why a jury should make the finaland fatefuldecisionwhether a defendant should live or die. 605 P.2d at 1045. 

### My experience since then, in dealing withthe capital cases that have been and are now before this Court for review, has convinced me even more of the correctnessof thisview. In addition towhat 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 (duringthe sentencing process) should be considered. The finalblow to Coleman in his application forpostconviction relief, camewhen the trial .courtadopted verbatim the proposed findingsand conclusionspresented by the State of Montana, denying any relief to Coleman, and affirming all that the trial courthad 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 thatwe
are dealingwith 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 forpost-conviction relief, themajority here has done nothing more than rubberstamp the findings and conclusions of the trial court and those findings and conclusions came straight from the State .of Montana's typewriter. PARTVII DEATH BY HANGINGAS CONSTITUTING CRUELAND UNUSUAL PUNISHMENT Issue TT claims that death by hanging constitutes cruel and unusual punishment under 1972Mont. Const., Art. 11, 

### 5 22, and under the Eighth and FourteenthAmendments to the -82-United StatesConstitution. 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 constitutes cruel and unusual punishment. Statev. Frampton (1981) I 

### -Wash.2d 

## , 627 P.2d 922.) He alleges that persons executed by hanging die slowly,usually by strangulation, and suffer extremepain 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 competenthangmen no longer exist in the United States or elsewhere, and therefore the hanging cannot be competently administered. The trial courtdisposed of this issueby reference to themajority opinion in Coleman -- 11, Mont. 

## , 605 P.2d 1000, 1059, where the majority simply deferred to the legislature and stated: "Wehave no power to change these settled provisions of the law, nor canwe say that hanging is constitutionally cruel or unusual." Themajority 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 ithas no power to change the law,but the simple fact is that courts have from the beginning of the separationof 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 rationallydecided without first considering the scientific or expert evidence that is now available. The Washington Supreme Court did so, and quoted somegraphic testimony and statements as to the barbarity of hanging as themethod of inflicting capitalpunishment. 627P.2d 934 to 936. The United States Supreme Court has repeatedly stated that the Eight Amendment--prohibition against cruel or unusual punishment--"must draw itsmeaning from the evolving standards of decency thatmark the progress of a maturing society." Tropv, 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 certainlydoes not have the right to be the lastword on the constitutionalityof its

own legislation, but that is precisely the effect of the court's opinion in Coleman - 11, and ratified here today subsilencio. 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 legislationon

a throne of invincibility from constitutional attack. 

### Iwould 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 towhat I have stated hereq'b

-- /J parts 11, I11 and VIII of this 

### --

# bc, CC~)S;~,FI-~~. dissent should The combination ofthese factors screams loudly for a constitutional requirement that only a unanimous jury should be permitted to make the fateful decision of life or death. My experience has been that the judiciaryof this state is incapableof fairly and rationally administering a death penalty law. Only by interposing a jury between the defendant and the judiciary can there be any assuranceof decisions arrived at only after fair consideration of all the facts. PARTVIII DENIAL OF MEANINGFUL APPELLATE REVIEW Issue

### QQ alleges that in our first review of the death sentence (Coleman11)we denied him meaningful appellate 

### - review. In Coleman 11,after reviewing several factors which - the majority had either overlooked or ignored, I stated that 

# ".

.. it is virtually impossible to rationally and fairly administerand enforce a statutory scheme of capital punishment." 605 P.2d at 1045. As this, and two other death penalty cases continue to tortuouslywind their way through this state's court system, I ammore convinced of the correctness of this statement. The sentencing courts and this Court just seem to have approached these cases with their eyes closed. Similarviews were stated by Justice Marshall in a concurring opinion in the caseof Lockettv. Ohio, supra, where he expressed disgust with the way the trial courts and appellate courts of the various stateswere administering their capital punishment statutes in an apparent attempt to meet minimum constitutionalstandards. He stated: "Theopinions announcing the judgment of the Court in Gregg 

### v. Georgia, 428 U.S. at 188-198

(opinionof Stewart, Powell and Stevens,J. J.) 

# aurak-6~. Texas, 

### 428 U.S. 262, 271-276 (1976) (opinlonof Stewart, Powell, and Stevens J. J.),and Profittv. Florida, 428 U.S. 242, 259-260 (1976) (opinionof 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 reviewwould 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 deathpenalty 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 sufficientto avoid the wrongful and unfair impositionof 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 requiringmandatory appellate review. In disposing of this contention, the trial court simply adopted the one sentence conclusionproposed by the State: "QQ. The reviewprovided petitioner by the Montana Supreme Court was carefully outlined and applied in Coleman 

### - 11, 605 P.2d at 1020-21." In Coleman 11, I dissented to our review and concluded that it was 

### - woefully inadequate. 605 P.2d 1032-1047. I fail to comprehend how the majority can, in its omnibus ruling in section five, dispose of Issue QQ and 12other issues, by the bland statement that the trial courtproperly dismissed this claim "asres judicatabecause the vague new allegations do not affect the validity of the prior determination of the Court

# ..." If this Court has never before decided the issue of whether we denied Colemanmeaningful appellate review in Coleman - 11, I fail to see how this issue can be res judicata. 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. Hehas, 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 firstdiscuss 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 statuteand 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 shalldetermine: "Whether the sentenceof 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 facilitatethis review, section 46-18-308, MCA, states in part that the automatic reviewmandated by statute

# ".

.. shall be --- heard in accordancewith rules -- 

### - promulgated -- by the SupremeCourt." (Emphasisadded.) Coleman rightly claims that this Court has never promulgated the rules to provide method and procedure under which death sentence are reviewed forproportionality. He further claims, and this cannotbe denied, that he has asked this Court to promulgate the rules. The simple fact is that even to this date, this Court has not yetpromulgatedthose 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 complywith the statutory requirement thatwe 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~because it involves the actualproportional review conducted by this Court, is thatwe failed to complywith 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 of death is 

### -- - excessive 

### - or disproportionate to the penalty imposed in 

### -- - Gimilar cases, consideringboth the crime and the defendant." -- 

### -- This language means that our systemof reviewmust allow access to and a considerationof all reasonably recent cases in this statewhere 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 characteristicsof the persons who committed the crimes. We must then compare those situationswith the crimes committed here and with the personal characteristicsof the person involved here. This Court has wholly failed to provide proportional review asmandated by Gregg, and I therefore fail to seehow this Court can sanction the imposition of the death penalty. Iwould hold, therefore that on Issue QQ alone, Coleman is entitled to again come before this Court forproportional review--after this Courthas promulgated the rules required by statute.I next consider our review of other issuesraised 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 thatwe are statutorily required to review all death penalty sentences to see that there has been full statutory compliance in the sentencingprocess. 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 failureof 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 amisdemeanor. IssueBB claims that the sentencing court should have ruled as a matter of law that Coleman had no significanthistory 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 courtbased this burglary finding onNank's uncorroborated trial testimony. Itwas error to base this finding onNank's uncorroborated testimony. And itwas also error because Colemanhad no opportunity to cross-examineNank at the sentencinghearing;

nor did he have any opportunity to offer rebuttal evidence at a sentencinghearing. This findingwas first revealed while the trial courtwas reading the death sentence.Despite these substantial claims, the majority here has responded only in silence. Idissented in Coleman - I1 to the sentencing court's findingsand 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 forhaving no significanthistory of criminal conduct. In fact, I concluded that by its findings and conclusions, the sentencing courthad stretched the law to the breaking point in order to impose the death penalty. 605 P.2d 1039-1040, Our failure to grantmeaningful appellate review inColeman 

### - I1 further amplified the failure to follow the statutoryguidelines. Based on the record before the sentencing court--Coleman had never before been arrested or charged for any kind of offense-Ibelieve that compliancewith section MCA, requires that the sentencing court find as a matter of law that Coleman had "no significanthistory of criminal conduct." The sentencing court's relianceonNank's uncorroborated trial testimony, the failure of the trial court to reveal the basis of this finding so that Coleman could crossexamine Nank at the sentencing hearing or present rebuttal evidence, convincesme 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 requirement mandated by Gregg v. Georgia, supra,and also requiredby statute. Section 46-18-302,MCA. Inmy 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 canwe, as an appellate court,know that Coleman's particularized background was considered,and what weight was given to it, unless both arementioned in the findingsand conclusions? This is yet another reason why the sentencing procedures utterly failed to complywith the spiritof themandate contained in Gregg v. Georgia. IssueY again claims that Colemanwas denied due process of law when the sentencing court came to the sentencinghearing with the judgment of death alreadyprepared 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 "imposedunder 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 - 11,605 P.2d lOOQIQ22to 1051,and I do so again. It isbeyond 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 inmy dissent, should require the death penalty to be set aside as violating the statutory guidelines of section 46-18-302, snpra. Our failure to give Coleman meaningful appellate review in Coleman 

### - I1 is only compoundedby our failure today to undo the injustice of that decision. This isColeman's last chance to obtain reviewwithin the state system. But this Court has not even attempted to fairly consider the issues raised. Mandatoryappellate reviewof death sentences, required by Gregg v. Georgia, and rsept.by statute,has failed abysmally in this

case.The words of JusticeMarshall in Lockettv. Ohio, supra, are again appropriate to end this discussion of our denial ofmeaningful 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 theplurality's premise that appellate review in state systems is sufficientto avoid thewrongful and unfair imposition of this irrevocablepenalty." (438U.S. at 621, concurring opinion. Substitute theword Montana for the word Ohio, and JusticeMarshall's comments fit theMontana situation like a glove fits a hand. The opinion written by this Court today has denied Coleman dueprocess of law both on questions arising fromhis conviction and on application of the death penalty. CONCLUSION Themajority opinion has one salutaryaspect. Ithas 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 Courthas turned down by wholesale and summary disposition. I cannot conceive that this casewill leave a federal court with the abiding conviction that justicewas done. 

### 1"1INTHE DISTRICT COURT OF THE SIXTEENTH JUDICIAL DISTRICT OF THE STATE OF MONTANA, INAND FOR THE ~O~EBU~J f/ 

### &/y''-~,-&'(7/

### - CLERK flfi h~~e&p-h~~~~~~~ 1 DEWEY EUGENE COLEMAN, ) civil(~o.9115 2 ' ) Criminal No. 1083 Petitioner, ) ) COURT'S CONCLUSIONS, -VS

## - ) MEMORANDUM & ORDER. 

### 1 

# I THE STATE OF MONTANA, Respondent, )

\ -_-------______--_--------------.------------------------ The Court having considered briefs and proposed findl2

# // ings and conclusions of petitioner and respondent, adopts the

l3

# 11 findings and conclusions of respondent, as follows: PROCEDURAL BACKGROUND Fol'lowing the October 6, 1980, dissolution of Justice 

# I Marshall's stay of petitioner's execution date, respondent moved this court to set a new execution date for defendant. This court then notified the parties that a new date of execution would be set on October 24, 1980. On the date set for thishearing, petitioner filed a petition forpostconviction relief raising 49 separate claims for relief. In

23

# 11 addition, petitioner su~mitted a motion moving the court to

24

# 11 "enter an order recusing itself as the presiding judge 

### in this cause. " On the same day, prior toits consideration of the motion torecuse, this court granted a motion submittedby

29

# !I respondent and ordered petitioner to submit an amended

30

# 11 petition within ten (10) days "raisingallconstitutional



# ... grounds for relief of which he has knowledge atthis time and to so allege

### inhis amended petition." The motiontorecusewas taken under advisementby this court pending the submission of a response by respondent and a replyby petitioner. The court denied the motion torecuse on November 21, 1980. *

## Vn3 A3c Petitioner filedhis amended petition for postconviction relief on December 12, 1980, this timeraising 52 separateclaims forrelief. The parties thereafter entered

a stipulation tothe effect that respondent would fileits motion todismiss petitioner's amended petition on December 22, 1980. Petitionerwould filehis answeringbrief on or beforeJanuary 5, 1981, and respondent would replyby January 12, 1981. Finally, a hearingon the motion to dismiss was scheduled forJanuary 15, 1981. The motion todismiss came on regularly forhearing on the 15thday of January, 1981, with petitioner, Dewey Eugene Coleman, appearinginperson and throughhis counsel, Charles F. "Timer" Moses, and the State'ofMontana, appearing throughJohnH. Maynard, AssistantAttorney General, and John S. Forsythe, Rosebud County Attorney, whereupon oral argument was presentedtothe Court. Petitioner and respondent were directed tosubmitproposed findings and conclusions tothe courtby February 1, 1981, atwhich time the matterwouldbe deemed submitted, The courthaving duly considered the matters submittedto it, NOW THEREFORE, ITISORDERED as follows: Respondent's MOTION TO DISMISS petitioner's PETITION FOR POSTCONVICTION RELIEF shouldbe, andhereby is, granted. CONCLUSIONS1 2 3 4 5 6 7 8 9 10
11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32

Star PrintingGJ. MlIesCity.

Mont.

r.*-,=i n--~--m-~ -

-. 

## - 7 

# c I

I. THE MOTION TO DISMISS IS GRANTED BECAUSE THE AUTOMATIC REVIEW PROCEDURES OF TITLE 46, CHAPTER 18, PART 3, OF THE MONTANA CODE ANNOTATED ARE THE EXCLUSIVE REVIEW PROCEDURES AFFORDED PEPSONS UNDER SENTENCE OF DEATH INMONTANA. 

## 3G9 The necessity of finality incriminal proceedings, especially those involving the death penalty, coupled with the automatic and comprehensive review procedures indeath penalty cases provided for inMontana statutes, establish that theMontana legislature did not intend that the postconviction procedure act afford defendants convicted of capital offenses a "second appeal." Title46, Chapter 18, part 3, M.C: A. clearly contemplates an automatic, comprehensive, and final adjudication of issues presented 

### indeath penalty cases. The Montana Supreme Court recognized this fact inpetitioner's casewhen it stated that "...completion of this review willmark the end of stateaction upon this

cause.

# .." Statev. Coleman, Mont., 605 P.2d 1000, 1006 (1979), cert. denied, 100 S.Ct. 2952 (1980). To allow petitioner toseek postconviction relief is, 

### ineffect, toprovide petitioner with two appeals, a result

not contemplatedby the legislature or theMontana Supreme Court, States are free todevise their own systems of review incriminal cases. Carter v. Illinois, 329 U.S. 173, 175 (1946). Repetitious appeals indeath panalty cases are not constitutionally required and accomplish littlemore than tofrustrate public confidence 

### intheentirecriminal justice system. 11. THE MOTION TO DISMISS IS FURTHER GRANTED AS TO 27 OF PETITIONER'S CLAIMS BECAUSE THEYARE BARRED BY RES JUDICATA.

-3-

*-srr-~mwmw-~~~~~~r~~~---~~--+--~~~~~~~~ m-----+r w-y~ur*r,

'1 ,- ".'r,-.." 9 . . ,r . . -,--2 *:r-. , -.*3 <=I" r* - 1. .. >e- -- - >+ Z.? ;,- **z-. * ..-,The following 27 issueshave been previously considered and decidedby the Montana Supreme Court and petitioner has alleged no new facts or lawwith respect tothese issues thatmight affect the result reached inhis prior appeals: 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, and PP. Each of these claimshasbeen consideredby the Montana Supreme Court inStatev. Coleman, Mont,, 579 P.2d 732 (1978), hereafter referred toas Coleman

### 2, orinStatev. Coleman, Mont., 605 P.2d 1000 (1979), cert. denied 100S.Ct. 2952 (1980), hereafter referred toas Coleman 

### G. The claims

were previously decided against petitioner inprior appeals
at the £01-lowing places. F. Petitioner's challenge tothe jury panelwas rejected inColeman

## I,579 P.2d at 746-7, cert. denied 100

G. Petitioner's claimregarding the admission into evidenceof State's exhibit No. 20 was rejected inColeman I, 579P.2d at 751. Furthermore, the claiminvolves a 

### - question of state law and does not amount toa constitutionaldeprivation, H. Petitioner's claimin;olving his challengeto Nank's competency asa witness was addressed inColeman

### 2, 579 P.2d at 748. I. Petitioner's claim regardingNank's testimony concerninghis conversationswith law enforcement officials

I I was rejected inColeman

### p, 579P.2d at749. I J. Petitioner's claim regarding restricted crossexaminationwas rejected inColeman 

## 1,579 P.2d at 747. -4-

# .

I 

# - L. 3 4 5

7 8 9 lo
11 12 13 14 15 26 I7 18 13 20 21 22 23 24 25 26 27 28 29 30 31 32

Star MntingCa. ld!lssCity,

Mon:. 

### I r * - " ",

### - -.-,* - . ----.-. b

### --" % * 

### --- 

# I d 

### 1 

# f I I 

## I

L. Pettioner's claim concerning the admission into evidence of Exhibit No. 60was rejected in Coleman 

### 2, 579 P.2d at 752. 

## ?47'1

M. Petitioner'sclaim in connectionwith his attempted cross-examination of witness Hippard was rejected in 

# I 1 Coleman 

### 2, 579 P.2d at 747. N. Petitioner's contention regarding evidence of the heighth and fall of thewater in the Yellowstone River at the scene of the crime was resolved against him in Coleman I 579 P.2d at 753. -f P. Petitioner's contention with respect to Instruction No. 22 was ruled on in Coleman

## 1,579 P.2d at 749. It was again considered in light of Sandstrom v. Montana., in Coleman 11, 605 P.2d at 1052-4, cert, denied 100 S.Ct, 2952. R. Petitioner's offered InstructionNo. 14was determined tohave been properly refused in Coleman I-, 579 P.2d at 750.S. Petitioner's claim involving InstructionNo. 16 was rejectedby the Montana Supreme Court in Coleman 

### I, 579 P2d at 750.
T. Petitioner'sclaim thathis offered Instruction No. 35A shouldhave-beengivenwas considered and rejected in Coleman 

### &, 579 P.2d at 750-1. V. Petitioner's claim regarding the denial ofhis motion for new trial on the grounds of newly discovered evidencewas rejected in Coleman

### 2, 579 P.2d at 753.
W. Petitioner's 

### ex post 

### facto claim that Montana 

### did not have a constitutional death penalty statute at the time

-5- * n Tpetitioner committed the crime for which he received the death penaltywas considered in Coleman

## G, 605 P. 2d at

Y. Petitioner's claim regardinghis opportunity to present argument concerninghis sentence following remand after Coleman

### Lwas rejectedby the Court for the reasons stated in Coleman 11, 605 P.2d at 1018. 2. Petitioner'sclaim regarding "retroactive"application of the 1977 death penalty amendmentswas considered in Coleman

# x, 605 P.2d at 1012. AA, Petitioner's claim that his sentenceviolates constitutionalprovision against ex post fact lawswas 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 hehad participated in a burglary the same dayhe committed these other crimeswas considered in Coleman 11, 605 P,2d at 1020. Section 46-18-302,MCA. 

## - GG. Petitioner's claim regarding the exclusion of two jurorswas rejected in Coleman

### 2, 579 P.2d at 741. HH. Petitioner's claimwith respect to jury participation in the sentencingprocedure was rejectedby the Montana Supreme Court in Coleman

# x,605 P,2d at 1017. 11. Petitioner'sargiunent thatMontana's death penalty statutes in effect impose amandatory death penalty was rejected in Coleman 11, 605 P.2d at 1016. JJ. Montana's scheme for the consideration ofmitigating circumstanceswas found to pass constitutionalmusterinColeman

## G, 605 P.2d at 1016-7 

## 37'3

KK. Petitioner's further contention regarding "standards of proof" was rejected inColeman

# =, 605 P.2d at 1057. LL. Petitioner's doublejeopardy claimbased onhis convictions fordeliberatehomicide and aggravatedkidnapping arewithoutmerit. Coleman IJ, 605 P.2d at 1017, 

# '1

I

# I

2 3 4

cert. denied 100 S.Ct. 2952. MM. Petitioner's doublejeopardy claimthathe cannot 7 8

# 1
18

11 12
13 14 :5 16 17 IS 19 20 21 22 23 24 be convicted onboth chargeswas rejected. Coleman

# s,605 P.2d at 1017.

1 NN. Petitioner's claimregarding sentence reviewby the Sentence Review Division of the Montana Supreme Court

25 26 27 28 29 30 31 3s

Star PrintingCo. VAesCity, Man:. hasbeen rejectedby the Montana Supreme Court and the United States Supreme Court. Cert. denied 101S.Ct. 255

1



# I PP. Petitioner's claimwith respect tothe requirenent



### I of a jury trial on aggravatingfacts and mitigating circumstanceswas rejected inColeman 11, 605 P.2d at 1017. 

### See, rake'vs Zant, U. S., 49U.S.L.W. 3371 (1980)(White, J., dissentingfromdenial of certiorari). Issues raised inthe priorreview of petitioner's convictionwhichhavebeen considered on their merits and determined against himareres judicata and he is not entitledtohave those issuesredetermined, 

## Inre Quigq, 168Mont. 512, 544 P.2d 441 (1976), cert. denied425 U.S. 994 (1976); Orricerv. State85S.D. 293, 181N.W.2d 461 (1970); Williams v. United States, 426 F.2d 253 (9thCir. 1970), cert. denied 400 U. S. 881. Priordetermination of an

### issue constitutes a final adjudicationof 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 NEW 

### CLAIMS, OR ARE UbJSUPPORTED 

### BY AUX9ORIT'AND 

### THEREFORE BARRED BY RES 

### JUDICATA. The following 13 issueshave beenpreviously considered and decided by theMontana Supreme Court. B,E,K,

### Q,U,

### X,CC,EE, FF, 00,

### QQ,RR, andXX The validity of the prior determination of the

### Montana Supre~eCourt with respect to these issues is not called into questionby petitioner's additional allegations. B. 

### petitioner's claim alleging discrimination in the plea bargain-ingprocess onthe basis of racewas rejectedby the Montana Supreme Court in Coleman I, 579 

### P.2d at 744-5. 

### - E. Petitioner's claim regarding the recovery of the ropewas addressedby theMontana Supreme Court inColeman

# 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 I, 579 P.2d at 749. 

### - Q. 

### Instruction No. 26 was considered 

### by 

### the Montana Supreme Court in Coleman I, 579 P.2d 

### at 750, and again in 

## - Coleman 

### - 11, 605 P.2d at 1054-6, cert. denied, 100 S.Ct. 

# - 2952. U. 

### ~etitioner'sclaim that the verdict form as to Count 11, 

### aggravated kidnapping, was erroneously given was considered inCo'leman I, 579 P.2d at 751.Moreover, the jury 

### - also convicted petitioner ofdeliberate homicide.

### X. 

### Petitioner's general claim regarding the review afforded his case inColeman I 

### is vague andmeritless on the - 

### basis of the opinion issued in that case.No 

### specific error is alleged aspart of this claim. 

## 37'5 CC. petitionerf s claim regarding the district court's consideration of mitigating factors in general was reviewed inColeman

## - 11, 

### 605P.2d at 1019-20. EE. 

### Petitioner's claim that he was prejudiced 

### by properly admitted evidence does not state a claim for relief. Coleman 

### - 11, 

### 605 P.2d 

### at 1020. Eoreover, the provisions of the 1977 amendments to Montana's capital sentencing schemewere found to apply to petitioner in their entirety in Coleman - 11. 

### section 46-18-302,MCA, requires that evidence admitted at trialbe 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 intentwhen considering the appropriateness of thedeathpenalty at Finding of FactNo. 3

### (b)

## . 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, andpetitioner's due process claims are without merit. See Coleman 

## - 11, 

### 605 P.2d at 1057, cert. denied, 100 S.Ct. 2952, and 

## - State v. kiatson, Ariz., 586 P.2d 1253, 1258 (1978), cert. 

# - denied 440U.S. 924. 

### QQ. The review provided petitioner by 

### the Montana Supreme Court was carefully outlined and applied in Coleman6 

## *'T7'6 RR. 

### The imposition oi the death penalty in petitioner's case has been presented to and approved by the Montana Supreme Court. That determination 

### is binding on thiscourt. Rs 

### noted inSpinkellink

### v. Wainwright, 578 

### F.2d 

### - cert

## . denied, U.S. 

### the arbitrariness and capriciousness condemned in Furman are conclusively removed from a 

### death penalty proceeding ifthe

. 

### state adheres to 

### its properly drawn death penalty statute. 

### YZ

# . Th.e 

### aggravating and mitigating circumstances enumerated in Montana s 

### capital sentencing scheme are similartothose approvedby theUnited States Supreme Court and pass constitutional muster under Gregg v. 

### Georqia, 428 U.S. 153 

### (1976);-Proffitt v. Florida, 428 U.S. 242 

### (1976); Jurek v. Texas, 428 U.S. 262 

### (1976)and Lockett

### v. -- 

### Ohio, 98 S.Ct. 

### 2954 (1978). See Coleman 11, 605 P.2d at1057. 

### -

IV. THE 

### MOTION TO 

### DISMISS IS FURTHER 

### GRANTED AS TO 

### 7 OFTHE 

### PETITIONER'S CLAIMS BECAUSE THE NEW AUTdORITY 

### CITED IS 

### EITHER INAPPLICABLE TO 

### PETITIONER'S CASE OR CLEARLY 

### DISTINGUISHABLE FRON IT 

### LEAVING THE 

### CLAIMS BARRED BY RES 

### JUDICATA. The followingclaims include new allegations of factor 21

# I/ citation.tonew authority:

23

# // The claims do not, howevef, include new allegations or new 

# '*

# 11 citations of authority, which affect the validity of the 

# 1 prior determinations -

### of the Montana Supreme Court with

26

# /I respect to'those issues. A. As 

### part of this claim petitioner asserts that no 28

# /I rational trier of fact could have foundbeyond a reasonable 29 

### doubt thatpetitioner had the 

### purpose, 

### inrestrainingPeggy 

# II 30

# / 

# '/ Lee Harstad, to inflict bodily injury. citing Jackson v. 31

# 11 ~irqinia,U.S., 

### 99 S.Ct. 

### 2781 (1979) for purposes of

32

# I establishing a standard of review. That standardof review# has been exceeded in this case as evidenced by the jury I verdict and this court's 

### ind ding No. 1, which reads in pertinentpart: 

## 377' In this area Coleman initiated the assault upon the victim by swinging his motorcycle helmet by the chin strap and crashing 

### it against the. victim's head. Then the defendant placed the yellow nylon rope around the victim's neck and attempted to strangle her. Then both the defendant and Robert Nank carried the victim down to a slough and, the defendant held her under the water. The victim rose out of the water briefly and thenboth men went intothewater and heldher under until she expired. C. Petitioner's claim regarding the court's amendment of the information was considered inColeman I, 579 P.2d at - 745-6. The recently decided case of State v. Cardwell, Mont., 609 P.2d -1230 (1980), 

### is inapposite because (1)the amendment inpetitioner's case was found tobe one form and not substance; (2) only substantive amendments without leave of court a affected by Cardwell; and (3) the Cardwell 

### - ruling isnot retroactive. D. petitioner's claim regarding his arrest was ruled



### on by the Montana Supreme Court in Coleman I, 579 P.2d at 

### - 743. The recently decided case of Payton v. 

### -- New York, U.S., 100 S.Ct. 1371 (1980), is inapposite because Payton has not been given retroactive effect. This 

### is because the new constitutional doctrine 

### it establishes 

### is not one aimed at overcoming an aspect of .the criminal trial that substantially impairs 

### its truthfinding function thereby raising questions as to the-accuracy of guilty verdicts in past trials. V v. city of New York, 407 U.S. 203, 204 (1972). 

### - 

### --- Moreover, the purpose of the exclusionary rule to deter policemisconduct 

### isnot served atthepost-appeal stage and application of the exclusionary rule deflects the truthfinding process. Stone

### v. Powell, 428 U.S. 465, 492 (1976). 0. Petitioner's claim of insufficient corroboration of 

### l-(%ki53m~ ,k Nankls testimony was considered inX_olea_n_ I, 579 P.2d at 

### -

### 748. Petitioner's citationof Jacksonv. 

### 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 11, 

### 605 - 

### 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 executionwas rejected in Coleman - 

### - 11, 605 P.2d at 1058-9. ~stablishinga method of 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 thathis death sentence for the crime of aggravated kidnapping is disproportionate to the offense for which itwas 

### imposed is withoutmerit. 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 

### thevictim. section46-18-303(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 

### THEYARE WITHOUT 

### MERIT. The final five claims that have been raised in petitioner's petition have been raised for the first time in thisproceeding. 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. Peoplev. Jenkins, 11 Ill.App. 3d 690,297 N.E.2d 

### 279 (1973); Andrews 

### v. Morris, Utah, 607 

### P-2d816

### (1980),cert. 

# - denied 101 S.Ct. 

### 254 (1980). Beyond thatthe claims arewithoutmerit as amatter of law 

# : 'by9 SS. 

### The contention raised here is 

### that the death penalty 

### is imposed so rarely that. 

### it serves 

### fro legitimate state interests. This claim has been rejected numerous times 

### and 

### iswithoutmerit. See Gregg 

### v. Georgia, 428 U.S. 

## - 153, 173 (1976); Statev. McKenzie, 171

### Mont. 278, 557 P.2d 

### 1023, 1033 (1976); Andrews 

### v. Morris, Utah, 607 P.2d at824 (1980); and State

### v. Fitzpatrick, Further Order and Findings and ~onclusion, p. 18-19 (January7, 1981). UU. 

### petitioner contends that he was denied the right to a ufianimous jury verdict. But when theinstructions are read as a whole, as they must be under Coleman 11, 

### 605 P.2d 

## - at 1052, the claim fails. See Cupp V. 

### Nauqhton, 414 U.S. 

### 141, 147 (1973). In addition, petitioner's reliance on the federal constitution 

### is misplaced inthat the federal constitution does not guarantee the right to a unanimous verdictinstatefelonyjury trials. Apodaca 

### v. Oregon, 406 U.S. 

### 404 (1972); Johnson 

### v. Louisiana, 406 U.S. 

### 356 (1972). 

### W. petitioner's claim that the Itentirerecordt1was not certified tothe Supreme Court because some unspecified proceeding were not transcribed 

### is without merit. section 46-18-309, MCA, 

### recognizes the distinction between the ltrecordwcertified by the-sentencing court and the "transcriptwprepared by the court reporter. It

### is the duty of the appellant to selectportions of the lftranscripttl tobe submitted in all criminal appeals. Section46-20-302. MCA. YY. 

### Petitioner contends that his Eighth and Fourteenth Amendment rights have been violated because of alleged discriminatory application of 

### the death penalty in Montana and inthe United States. The allegationshe makes in support of this contention are similar to those supporting similar contentions raised in the United States. - . .-

~ ,..

.

### - . . I 

# i

1 ( " k. 

# f

Supreme Court inFurman v. Georqia, 408 U. S. 238 (1972),

3 4 5 6 7 8 9 10 1J 12 13 14 15 16

# 1 Greqq v. Georqia, 428 U. S. 153 (1976), and Proffitt v. Florida, 428 U. S. 242 (1976),where the court refused to accept the argument. The contention of discriminatory application of the death penalty fails as a matter of law on thebasis of Washinqton v. Davis, 426 U. S. 229 (1976), and Villaqe 

### - of Arlinqton Heiqhts v. Metropolitan Housinq Development Corp., 429 U. S. 252 (1977).

# = ~pkinkellink v. Wainwriqht, 578 F.2d 582 (1978)

## . ZZ. Petitionerhas failedinhis final allegation of

error to "clearly set forth (any) alleged violation or violations" as required'by Section 46-21-104, MCA, and his claim therefore fails as a matter of law. Dated this

# 4

# / day of February, 1981. 

# /',& @$$,< A!? \ / w DISTRICT JUDGE

23 24 25 '26 27 28 29 .

31

# I

32

S:ar HidingCc. masCity,

Mm:. 

# I I -14-