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 . - 

Charles Moses argued, Billings, Montana 

For Respondent: 

Hon. Mike Greely argued, Attorney General, Helena, 

Plon tana 

John Maynard argued, Asst. Atty. General, ~elena; 

Montana 

John S. Forsythe argued, County Attorney, Forsyth, 

Montana 

Submitted: April 29,' 1981 

Decided :AUG 2 8 1981 

Filed: .4UG 1 8 1981 
Mr. 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 

resolution by 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 to death? 

4. Are claims of constitutional violations barred by 

res judicata 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 state new claims, or are 

unsupported by authority and therefore barred by - res 

judicata"? 

6. Were seven of Coleman's constitutional claims 
properly dismissed because the "new authority cited is 

either inapplicable to petitioner's case or clearly 

distinguishable from it leaving the claims barred by - res 

judicata"? 

7. Were five of Coleman's constitutional claims 

waived "because he failed to raise them in his direct appeal 

and because they are without 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 that we 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 disqualification grant of section 

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

conflict with a specific act, the specific statute will take 

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 will proceed 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 evidentiary hearing 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; State v. 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 district judge should 

have recused himself as presiding judge over his petition 
for 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 as to, 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 fails to 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 

("may petition 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 to qive the 
district 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 all the facts required to make 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 trial judge'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 at bar 

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 sentencing judge do not justify the 

pro forma recusal of a judge who is fully acquainted with 

the case. It appears that at best petitioner was attempting 
to 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 at the trial judge. 

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 to justify a substitution of 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 in which 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 the 
sentence." 

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 in place of any 

recourse to the Sentence Review 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 at this conclusion, the plain meaning of 

the post-conviction statute is particularly persuasive. The 

statute provided that "a person adjudged guilty of an 
offense" 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 "a person" 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 res judicata is applicable to a prayer for postconviction relief. As a general proposition, we have held: 

"The doctrine of res judicata 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 are present: "(1) the parties or their privies must 

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), 143 Mont. 200, 207-208, 387 P.2d 706, 711. 

Aside from the bar of res judicata, 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), 163 Mont. 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 res judicata to the Federal Act,-;;I..2-'U.S.C. S2255, 

will aid. 

Historically the principle of res judicata 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 to denial 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. at 15. 

Where a trial or appellate court has determined the 

federal prisoner's claim, discretion may 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 

(dissenting opinion of Wright, J.). 

The res judicata rule has now come to a point in its 

evolution where 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 by 
relitigation of a claim previously considered and found 

insufficient. As discussed in Sanders, relitigation would 

mean a waste of judicial effort, risking a cluttering of 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 (7th Cir. 1971), 452 F.2d 

350, 357, cert. denied, 409 U.S. 854. Some states have 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 this opinion. We affirm the 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 issues which 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 unworthy 
claims 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 res judicata. 

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 States v. 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 that no 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 are barred by res judicata 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 five of Coleman's claims 

were dismissed because he failed to raise them on his direct 

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 call him as a 

witness. 

"THE COURT: Very well. Now the announcement 

that the defense does not intend to produce 

any . . . call any witnesses to establish 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 court held 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 for 
petitioner 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 his proposed findings and conclusions. 

To now allege that he was denied due process and an 

opportunity to present 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, 91 L.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 

trial judge, in pronouncing sentence, stated: 

"In pronouncing sentence I do want the 

parties to know that this is extremely 

agonizing for the court to make. 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 time been 

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 will only at this time read 

the court's conclusions and judgment. " 

The sentence and judgment are affirmed. The District 
Court 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. 

Sheehy 
Mr. Justice Frank B. Morrison, Jr., dissenting: 

I respectfully dissent. 

The first problem with this case is that the defendant's 

conviction was based upon accomplice testimony which was not 

sufficiently corroborated by independent evidence. The 

trial court should have directed a verdict in defendant's 

behalf at the time of trial. I will quote extensively from 

the transcript to show that the state's case failed. 

The second part of the dissent will deal with imposition 

of the death penalty. That discussion concerns aggravating 

circumstances versus mitigating circumstances and the conditions 

under which the death penalty may be imposed. 

The defendant, Dewey Eugene Coleman, and Robert Nank 

met at the Veteran's Hospital in Sheridan, 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 to Montana on Nank's motorcycle. They 

"ran out of gas" between Roundup, Montana and Forsyth, 

Montana, during the evening hours of July 4, 1974. Coleman 

testified that they unsuccessfully tried to hitchhike to the 

nearest town for the purpose of securing some gasoline. It 

began to get dark and Coleman stated that, since Coleman was 

black, he was impairing their ability to obtain a ride and 

Nank directed him to hide himself. Thereafter, according to 

Coleman, Nank was able to stop a vehicle and obtain a ride. 

Coleman testified that Nank left with the driver and headed 

in the direction of Forsyth. Coleman said that Nank returned 

driving the car sometime later and that he was wet and 

emotionally upset. Nank instructed Coleman to remove their 

things from the motorcycle and come with him. Coleman 
obeyed. They drove, what was later determined to be the 

Harstad vehicle, past Forsyth in the direction of Rosebud. 

Nank stopped between Forsyth and Rosebud and picked up 

something which appeared to be a blanket. He also stopped 

at a bar in Rosebud and obtained two Cokes. He advised 

Coleman that he had killed a woman. Nank headed back toward 

Forsyth and the Harstad vehicle "ran out of 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 in the purse, found no money and, pursuant to 

Nank's directions, threw the purse into a culvert. The two 

then walked to Forsyth, arriving there in the early morning 

hours. Nank obtained gasoline in a can and hitchhiked back 

to the motorcycle. Nank returned for Coleman and they left. 

Coleman stated that they eventually went to Boise, Idaho, 

where they rented an apartment and lived until the time of 

their arrest. Coleman stated that he did not report Nank to 

the authorities because he was afraid of Nank and because he 

was afraid of being implicated. 

Nank's testimony departs from Coleman's at the point 

that the victim, Peggy Harstad, stopped to give Nank a ride. 

In contrast to Coleman's testimony that Nank left alone with 

the young woman, Nank testified that Coleman went with him.' 

He testified that Coleman was seated in the right front seat 

and he, Nank, was in the middle next to the driver. Nank 

stated that as they proceeded toward Forsyth he asked Peggy 

Harstad to stop the vehicle so that he could urinate. He 

stated that he and Coleman got out of the vehicle and urinated 

beside it. They then returned to the vehicle and headed 

towards Forsyth. As they approached Forsyth, Nank testified 

that he turned the ignition key off and maneuvered the 

vehicle to the side of the road. Nank tied Peggy ~arstad's 
hands together with a yellow nylon rope. He removed her 

clothing except for her blouse. He attempted to have sexual 

intercourse with her but could not maintain an erection. He 

testified that Coleman then "got in the backseat" with Peggy 

Harstad and had sexual intercourse with her while Nank, now 

standing on the outside of the car, held onto her foot. 

Nank testified that he thereafter dressed the victim 

and they drove around deciding what to do. Eventually Nank 

stated that Coleman decided to kill Peggy Harstad. Nank 

then claimed that he threw the victim over his shoulder, 

with her hands still tied, and headed down toward the Yellowstone 

River. He stated that Dewey Coleman hit her 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 that when this did not kill the victim that 

he, Nank, held her head under water in the Yellowstone River 

until she drowned. 

Nank also related how he and Coleman went to Boise, 

Idaho, obtained an apartment and continued to live until the 

time of the arrest. Following their arrest, Nank and the 

defendant were interrogated by law enforcement officials in 

Boise, Idaho. Coleman maintained his innocence, but Nank 

confessed and agreed to testify against Coleman. 

The testimony of an accomplice is viewed with suspicion 

because there is a strong motive 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, that he had witnessed a hanging 

and that it was gruesome. He further told Nank, though it 

was not true, that Coleman had confessed and blamed ~ank for 

the murder. Nank thereafter exhibited a willingness to 

confess, but would only do so with some assurance that he 
would not hang. He was assured by law enforcement officials 

that they would make every effort to see that he 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 death penalty. Nank was 

permitted to plead guilty and receive noncapital sentences 

for deliberate homicide and rape. The aggravated kidnapping 

charge, which carried the death penalty, was held in abeyance 

until Nank testified against Coleman at the trial. After 

Coleman's trial the aggravated kidnapping charge against 

Nank was dismissed. 

It is obvious why an accomplice's testimony must be 

viewed with distrust. Before a criminal charge against a 

defendant can survive a directed verdict and be submitted to 

a jury, there must be independent corroborating evidence 

implicating the defendant in the crime. That corroborating 

evidence "must raise more than a suspicion of the defendant's 

involvement in, or opportunity to commit, the crime charged." 

State v. Warren (1981), - Mont. - , 628 P.2d 292, 295, 38 

St.Rep. 773, 776 (quoting from State v. Kemp (1979), - Mont. - I 

The following excerpt is taken from the first Coleman 

case, State v. Coleman (Decided April 26, 1978), 177 Mont. 

"In State v. Keckonen, (1938), 107 Mont. 253, 84 

P.2d 341, we held thatwhere the alleged corroborative evidence is equally consonant with a reasonable 

explanation pointing toward innocentconduct on .the part 

of the defendant, then such evidence does not tend 

to connect him with the commission of the offense 

and is in the realm of speculation, not corroboration. Where the claimed corroboration shows no more 

than an opportunity to commit a crime and simply 

proves suspicion, it is not sufficient corrobora- 
tion to justify a conviction upon the testimony of 

an accomplice. State v. Jones (1933), 95 Mont. 317, 

26 P.2d 341." 

In applying the rule, the Supreme Court held, in the 

Coleman opinion cited above, that there was sufficient 

corroboration of Nank' s testimony to sustain the defendant' s 

conviction. The court found the corroborating evidence to 

be: A crack in defendant'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 in her purse; 

Negroid pubic hairs similar to defendant's and Negroid head 

hair found in the 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 sufficiently connected the 

defendant to the commission of the offenses charged to allow 

the conviction to stand. 

The evidence that defendant was on the road with Nank 

in the vicinity where Peggy Harstad disappeared does not 

corroborate the testimony of Nank anymore than it corroborates 

the testimony of Coleman. Coleman testified that he was 

with Nank on the evening in question. The same is true of 

Coleman's fingerprints in the purse and in the vehicle. 

Coleman testified that he was in the Harstad vehicle after 

Nank returned with the vehicle. He testified that Nank told 

him to dispose of the purse. He testified that he 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 

as well as the testimony of Nank. Therefore, this evidence 

is "equally consonant with the reasonable explanation pointing 

toward innocent conduct on the part of the defendant" as it 

is pointing toward guilt, and therefore, does not qualify 
as corroborating evidence. 

If there is any corroborating evidence sufficient to 

take this case to the jury it must be found in the cracked 

motorcycle helmet or in reliable testimony that Coleman's 

pubic hairs were found in the victim's vehicle. A careful 

reading of the trial transcript shows that sufficient corroboration did not exist. 

There was a crack in Dewey Coleman's silver colored 

motorcycle helmet. The prosecution contended that this 

corroborated Nank' s testimony that Coleman repeatedly struck 

Peggy Harstad on top of the head with his motorcycle 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 at autopsy. 

If the crack in the helmet had any corroborative significance, it was destroyed by the pathologist's testimony. 

Dr. John Pfaff, board certified forensic pathologist, was 

called to testify by the State to prove that the decomposed 

remains which he examined at autopsy were those of Peggy 

Harstad. He did so. He was then questioned about his 

findings in connection with the tissue which 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 

in any of the skeletal remains that I examined. 

In the skull there was no brain tissue remaining. 

The fibrus lining membrane which covers the brain 

and separate from the skull bones was still intact. This is significant because in cases of 

skull fracture or serious injury to the skull, it 

may become detached and contain bleeding or blood 

extravasation. Such was not observed in this case. 
"Question: And within that scalp tissue, did you 

find any evidence of an incised wound, a laceration or a hemorrhage? 

"Answer: I did not. 

"Question: Did you examine that dural lining to 

determine and ascertain whether there was any wound, 

laceration or hemorrhage? 

"Answer: I did. 

"Question: And what did you find? 

"Answer: I found none. 

"Question: Doctor, with respect to a subdural hematoma, is it your testimony that it is possible 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's possible, but there is usually injury 

to the scalp. There may be no injury to the bone, 

but if there is a blow struck to the scalp there is 

usually evidence of that if the patient is living. 

(Emphasis added. ) 

"Question: All right. Now in this particular 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 in that autopsy 

examination, whatever was available to you, whatever 

procedure that you used, whatever scientific method 

that you employed, did you find any injury to the 

head or to the face? 

"Answer: I did not." (Trial Transcript Vol. 111, 

pp. 572, 603, 605, 633.) 

The only remaining evidence claimed for corroboration 

is that pubic hairs similar to Dewey Coleman's were found in 

the Harstad vehicle. 

The record reveals that hair samples were taken from 

the defendant and subjected to microscopic examination. 

Both head hair and pubic hair belonging to defendant were 

available for that examination. The victim's car was vacuumed 
and numerous hair samples obtained from that vacuuming. 

These samples were also scrutinized microscopically and 

compared to the hair samples of defendant. 

It should be remembered that defendant testified he was 

in the victim's vehicle after Nank returned driving the 

vehicle. Therefore, the existence of defendant's hair in the 

car corroborates defendant as well as Nank and does not 

provide independent corroborating evidence sufficient to 

sustain a conviction. However, the State places great reliance 

upon the fact that defendant'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 expert witness to prove that the hair 

found in the victim's vehicle was connected to the defendant. 

Before quoting excerpts from the expert's testimony, it is 

important to take cognizance of the evidentiary rule here 

applicable. The offered testimony must be based upon a 

"reasonable degree of scientific probability" and is inadmissible if the testimony is based upon a mere "possibility". 

Moen v. Decker Coal Co. (1980), - Mont. - , 604 P.2d 765, 

36 St.Rep. 2220; Azure v. City of Billings (1979), - Mont. - 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), 148 Mont. 13, 417 P. 2d 95. 

The following excerpts are taken from the State's 

expert witness: 

"Question: Did you make a comparison of the Q-2 

hair that you have mentioned as having come from 

the automobile, and the K-2 as you have mentioned 

as coming from the head of Dewey Coleman? 

"Answer: Yes, I did. 

"Question: And what were your findings? 
"Answer: I found that there were some similarities 

between these hairs, but also there were some differences between these hairs. 

"Question: As a result of that, what was your final 

conclusion? 

"Answer: I reached no conclusion as to whether 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 that were removed from the debris from 

Peggy Harstad's vehicle? 

"Answer: Yes, I did. 

"Question: And what were your findings? 

"Answer: I found that the--the two black Negroid 

pubic hairs in the vacuumings from the vehicle, 

which microscopically match the hairs which were 

submitted to me as being from the pubic area of 

Mr. Coleman. 

"Question: Will you explain that further please? 

"Answer: Well, the fact that the hairs were microscopically alike allowed 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's possible -- that it could have 

--- come from that source, right? 

"Answer: That's correct." (Trial Transcript Vol. 

VIII, pp. 1802, 1805, 1806, 1905, 1906.) (Emphasis 

added. ) 

Under well established law in Montana, this testimony 

was too speculative to be received in evidence, and once 

received, could not be relied upon as sufficiently corroborative to sustain a conviction. 

This Court's decision in State v. Coleman, supra, 

wherein the Court identified the corroborative evidence, 

also relied upon testimony that the victim's hair was found 

embedded in the yellow nylon rope. Though the existence of 

such hair would only corroborate that the rope was used in 

killing the victim, and would not corroborate Nank's testimony 
that Coleman was present, the evidence itself was insufficient. 

The same expert witness 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, this expert witness testified 

that he could not determine the sex of the person from whom 

the hair came. Nank also had brown Caucasian hair. 

Interestingly, this same hair expert, testified that he 

had examined hair taken from the blanket later determined to 

be a blanket which Peggy Harstad had in her car when she 

left home. Brown Caucasian hair was found on the blanket. 

Nank had testified that he and Coleman were on the blanket 

smoking cigarettes after they had killed Peggy Harstad. 

Coleman testified that he 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 trial court realized 

this. At the time the prosecution rested, and the defense 

moved for a directed verdict, the trial court indicated that 

there was no corroboration but stated he would allow the 

Supreme Court to rule on the question. 

After the defense made a motion for directed verdict 

because there was not sufficient corroboration for an accomplice's 

testimony, the prosecution resisted and the following discussion was had: 

"THE COURT: Well, I treat this as a real serious 

motion. 

"MR. OVERFELT: In what regard? 
"THE COURT: Well, I am not going to grant the 

motion, but I say it has some merit. 

"MR. OVERFELT: I frankly don't think it has any. 

We could have gotten to the Jury on circumstantial 

evidence alone, Your Honor, and I'm confident of 

that. 

"THE COURT: Well, all you have shown is the opportunity for this black boy to do it. You have shown 

plenty of opportunity." (Trial Transcript Vol. 

IX, pp. 2106-2107.) 

As previously noted, corroborative testimony showing 

only opportunity is insufficient to allow the case to go 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 to review the complete record and make a 

determination. 

I am greatly bothered by this case. The only evidence 

that the defendant is guilty of the crimes charged comes 

from an accomplice who was a self-proclaimed liar and who 

had every reason to perjure 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 yet was sentenced to death. 

The death sentence in Montana is governed by three 

statutes which are hereinafter quoted in their entirety: 

"Aggravating circumstances. Aggravating circumstances are any of the following: 

"(1) The offense was deliberate homicide and was 

committed by a person serving a sentence of imprisonment in the state prison. 

"(2) The offense was deliberate homicide and was 

committed by a defendant who had been previously 

convicted of another deliberate homicide. 

"(3) The offense was deliberate homicide and was 

committed by means of torture. 

"(4) The offense was deliberate homicide and was 

committed by a person lying in wait or ambush. 
"(5) The offense was deliberate homicide and was 

committed as a part of a scheme or operation which, 

if completed, would result in the death of more 

than one person. 

"(6) The offense was deliberate homicide as defined 

in subsection (1) (a) of 45-5-102, and the victim 

was a peace officer killed while performing his 

duty. 

"(7) The offense was aggravated kidnapping which 

resulted in the death of the victim." (Section 46-18- 

304, MCA.) 

"~itigating circumstances. Mitigating circumstances 

are any of the following: 

"(1) The defendant has no significant history 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 substantial domination of another person. 

" (4) The capacity of the defendant to appreciate 

the criminality of his conduct or to conform his 

conduct to the requirements of law was substantially 

impaired. 

" (5) The victim was a participant in the defendant's 

conduct or consented to the act. 

"(6) The defendant was an accomplice in an offense 

committed by another person, and his participation 

was relatively minor. 

" (7) The defendant, at the time of the commission 

of the crime, was less than 18 years of age. 

" (8) Any other fact exists in mitigation of the 

penalty." (Section 46-18-304, MCA.) 

"Effect - of aggravating - and mitigating circumstances. In determining whether to impose a sentence of death or imprisonment, the court shall 

take into account the aggravating and mitigating 

circumstances enumerated in 46-18-303 and 46-18- 

304 and shall impose a sentence of death if it 

finds one or more of the aggravating circumstances 

and finds that there are no mitigating circumstances sufficiently substantial to call for 

leniency. If the court does not impose a sentence 

of death and one of the aggravating circumstances 

listed in 46-18-303 exists, the court may impose 

a sentence of imprisonment for life or for any 

term authorized by the statute defining the offense." (Section 46-18-305, MCA.) 
Under the above quoted statutes the death penalty is 

imposed if there is an aggravating circumstance and mitigating 

circumstances do not call for leniency. The first six 

subsections of section 46-18-303, MCA, are inapplicable to 

this defendant. The only aggravating circumstance to be 

found under the statute, if indeed one existed, would be 

rooted in subsection (7). There is absolutely no corroborating 

evidence to show that this defendant was involved in aggravated 

kidnapping resulting in the death of the victim. Even if 

one were to accept the "hair testimony" offered by the 

expert, it would only corroborate that defendant committed 

the act of sexual intercourse. This act could not have 

resulted in the death of the victim. There is no testimony 

corroborating Nank ' s testimony that the defendant participated 

in an act which resulted in the 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 fact existing in 

mitigation, must be considered by the court. The questionable 

guilt of the defendant is certainly such a mitigating factor. 

We have seen that there is not corroborative testimony 

to support Nank's version of this matter. I would like to 

examine Nankl s testimony itself to show the total unreliabili ty 

of that testimony. The purpose of such examination is to 

show the weakness of the State1 s case, the likelihood that 

the defendant is innocent, 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 guilt before 

imposing the death penalty. There was no confession from 

the defendant. There were no disinterested witnesses directly 

connecting Coleman to the commission of the offenses charged. 
As previously discussed, there was no independent corroborating 

evidence of any kind. If Nank's testimony lacked credibility, 

the evidence of Coleman's involvement becomes 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 feet of the 

bike. I then tipped the motorcycle right side 

up and I proceeded to fill the gas tank up. I 

lied to her. This is going back to the crime and 

I was always trying to make up stories. You know. 

"Question: Did you tell them the same thing that 

you have told the jury here in the last two days? 

"Answer: No, I lied to Mr. Brake. 

"Question: In what respect did you lie to Mr. 

Brake? 

"Answer: I lied. I told Mr. Brake that Dewey tied 

Peggy Hars tad up and I told him that Dewey undressed her instead of me. 

"Question: So that any statement in any record that 

you took LSD 25 or 30 times would be a lie? 

"Answer: It was in a lie in so much that maybe at 

that time I was going to try to use that as an 

excuse to be admitted for my crime into a state 

hospital instead of going to prison, and so that 

is maybe the reason that I made that statement, and 

I did lie because I heard of cases like this before, 

so I may have lied, yes. 

"Question: So now you did tell somebody that you 

had used LSD 25 or 30 times, but even though you 

lied about it, you thought you might be able to 

get off or get into a state hospital or something, 

is that right? 

"That would be the purpose 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 lot of lying so 

I cannot state nothing truthfully about what I 

said there and get a correct answer. . . ." 

(Trial Transcript Vol. V, pp. 1056, 1057, 1102, 

1103, 1130.) 
Nank's testimony on the stand was also contrary to the 

testimony of Law enforcement officers. Nank testified that he 

was telling the truth and the law enforcement officers were 

lying. One of the law enforcement officers who originally 

interrogated Nank following his arrest in Boise, Idaho, 

stated that Nank told him he became upset with Peggy Harstad 

because she said something to hurt his ego. Nank, during 

the Coleman trial, accused the law enforcement officer of 

lying about this matter. The following excerpt is taken 

from the transcript: 

"Question: And do you recall that he said, 'I bet 

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 not make any comment to 

that question? 

"Answer: I did not make any comment because I 

knew that he was trying to make me make some kind 

of a statement. 

"Question: And then he said, 'Did she say something to infuriate you 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 in an earI.ier court hearing before about that. 

"Question: Mr. Brake lied? 

"Answer: Mr. Brake did lie." (Trial Transcript Vol. 

V, p. 1091, 1092.) 

Law enforcement officer Brake had also testified that at 

the time Nank and Coleman were arrested in their apartment 

in Boise, that Nank told the police to "~et your ass out of 

here". Nank, during the Coleman trial, again accused the 

law enforcement officers of 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 out of here'? 

"Answer: No. Mr. Brake lied about that, and I also 

tried to explain that to Judge Martin in an earlier 

court hearing that I said that Mr. Brake lied. 

That's one thing, I have never--I have never 
I I .. a',' 

called a policeman a name. He lied about that 

too." (Trial Transcript Vol. V, p. 1227.) 

Again, officer Brake testified that he read the constitutional rights to Nank at the time of 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 as you were 

placed under arrest? 

"Answer: Not at that time. Not at that particular 

time, no. 

"Question: You heard Mr. Brake say that he did advise you of your rights, and that's a lie according 

to you? 

"Answer: He did not at that time when we were arrested verbally advise us of our rights at that 

time, no, he did not. 

"Question: You heard him testify that he did? 

"Answer: He did not do it. 

"Question: Well then, he lied? 

"Answer: He lied." (Trial Transcript Vol. V, 

p. 1227.) 

Nank's testimony itself was riddled with inconsistency. 

Though the record is replete 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." (Trial Transcript Vol. V, 

p. 1189.) 

The following testimony is taken from page 1210, Vol. 

V, of the trial transcript. 

"Question: And did you 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 that Dewey never took 

her clothes off? 

"Answer: Dewey did not take her clothes off. 

"Question: Do I understand that you took her clothes 

off? 

"Answer: I did take her clothes off. 

"Question: And that included her pants? 

"Answer: She had on--well, some kind of moreless 

trousers or whatever. 

"Question: Did that include underpants? 

"Answer: I do not remember if she was wearing underwear at 

that time or not. 

"Question: Did you put her clothes back on? 

"Answer: I put her blue jeans back on. I think 

with what she was wearing, I put them back on, 

yes. 

"Question: So that you were the only one that 

dressed or undressed her, is that correct? 

"Answer: Yes, that's correct." 

In the first statement Nank gave to law enforcement 

officials he said Coleman undressed the victim. On the 

stand Nank testified that Coleman undressed the victim and 

then changed the testimony and testified that he was the 

only one who had undressed the victim. His testimony, to 

say the least, was incredible. 

Nank had a history of violence beginning with his 

childhood. Though the records show that he attacked his 

mother with a butcher knife, he testified that it was his 

mother who attacked him with the knife. Nank related the 

following testimony during the course of Coleman's trial: 

"Question: Now you stated that your mother, Mrs. 

Nank--Mary, was that her first name? 

"Answer: Margaret. 
"Question: Margaret. At one time when you were 18 

years of age, held a butcher knife at your throat 

and chased you around the house with a poker beating 

you upon the head and shoulders and then tearing the 

front of her dress and going out in the street and 

telling other people that you had attacked her sexually; did she do that? 

"Answer: NO, you stated that wrong, 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 hit you about the head and 

shoulders with a poker? 

"Answer: Yes, she did. 

"Question: Did she tear the front of her dress? 

"Answer: The front of her blouse. 

"Question: And did she tell other people that you 

had attacked her sexually? 

"Answer: No, she did not. 

"Question: She did not? 

"Answer: She did not run out in the street and 

holler at people, no, she did not. 

"Question: Did she tell other people that you 

had attacked her sexually? 

"Answer: I think she might have told a doctor. 

I do not know." (Trial Transcript Vol. V, pp. 

1074, 1075.) 

Though the records show that Nank had attacked his 

mother with a butcher knife and indicate that he may have 

attacked her sexually, he took the witness stand in the 

Coleman case and said that his mother in fact had been the 

aggressor and he the victim. 

Nank had been institutionalized in mental hospitals on 

four previous occasions. He had a history of violence 

including violence against both his mother and his sister. 

He had a felony record. 
On the other hand, Coleman had no history of violence 

and no felony record. Coleman was a homosexual. 

A psychologist testified with respect to a rapist's 

typical characteristics. This testimony showed that Nank 

fit the pattern but Coleman did not. In fact, this witness 

testified that the incidents of homosexuals being involved 

in rape was "practically zero". 

In my nineteen years at the bench and bar I have seldom 

been so deeply disturbed by the injustice of a result. A 

defendant is here sentenced to die where there is practically 

no credible evidence connecting the defendant to the commission 

of the crime. There are strong reasons to believe that the 

defendant did not commit the crime for which the death 

penalty was imposed. And yet this Court is authorizing the 

imposition of that irrevocable sanction. I implore the 

federal courts to examine this record, and upon finding it 

to be as wanting 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, I would also reverse the convictions for the reasons 

stated in my dissent, and for the reasons stated in the 

dissent of Justice Frank B. Morrison. Although dismissal is 

the proper ruling, even in the event of a failure to dismiss, 

the evidence of corroboration of accomplice Nank's testimony 

is so thin that a death penalty should not be imposed. I 

also join Justice Morrison in his dissent relating to imposition 

of the death penalty. 

With the exception of parts I, 11, 111 and a portion 

of part IV of the majority opinion, the opinion decides the 

issues in such a wholesale and summary manner that we have 

ourselves denied Coleman the due process to which he is 

entitled. The opinion fails to mention, let alone discuss, 

the issues raised in Coleman's final attempt to get justice 

in the state court system. How does one write a dissent 

to such a nonopinion? How does one know where to begin? 

In part I11 of the opinion, the majority holds that 

post-conviction relief is available to a defendant sentenced 

to death, and with this I wholeheartedly agree. It would be 

unthinkable that either the legislature or this Court would 

or could foreclose the availability of relief. Unfortunately, 

however, the rest of the holding seems to give carte blanche 

to a district court to deny any and all applications for 

post-conviction relief, and that decision will be automatically 

affirmed by this Court by our refusal to even state or discuss 

the issues. The District Court's treatment of Coleman's 

application for post-conviction relief is appalling, and this 

Court's handling of Coleman's appeal from that order is even 

more appalling. 
In the normal case, I would agree with part I1 of the 

majority's opinion that the trial judge and the sentencing 

judge should also preside over an application for postconviction relief. But that general rule must give way 

to a situation where one under a death penalty is seeking 

post-conviction relief. For reasons which I state in 

detail in part I11 of my dissent, the post-conviction relief 

judge here should have called in another judge to preside 

over Coleman's application for post-conviction relief. His 

failure to do so made a mockery of any meaningful 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 the majority opinion 

in its conclusion that post-conviction relief is essentially 

a new civil action. And even though it is somewhat illogical 

to hold that the judge who presided over the criminal case 

also should preside over the application of post-conviction 

relief, there are sound reasons, except in a death penalty 

case, for the same judge presiding over both proceedings. 

Finally, I agree with a part of the majority opinion 

in part IV--that part of the opinion holding that res 

judicata may - be applied to a petition for post-conviction 

relief if the criteria of Sanders v. United States (1963), 

373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148, are followed in 

making this decision. But the majority has, in the remainder 

of part IV, and in other parts of the opinion, totally 

negated those very criteria set out in Sanders, by its 

wholesale and summary treatment of the issues. 

United States v. Sanders is concerned with the extent a 

federal court in a post-conviction relief proceeding such as 
habeas corpus, can give controlling weight to a previous 

denial of habeas corpus. Although it is procedurally 

inapplicable to the case before us, nonetheless Sanders does 

adopt sound and workable standards that can apply to a 

petition for post-conviction relief after there has been a 

direct appeal. But the majority here has failed to recognize 

that we must consider each criteria before we can justly say 

that res judicata should bar the claim. This Court must 

decide first that the same ground was presented at another 

proceeding and determined adversely. Second, this Court 

must then determine whether the previous decision was on the 

merits. And third, this Court must decide whether the ends 

of justice require that we again reexamine the issue. By 

this third criteria, the Court can refuse to apply res 

judicata even if the issue has been previously decided on 

the merits--if the ends of justice require it. 

The majority here has failed miserably in applying 

these criteria, for there is no way of determining from the 

opinion how or if the criteria were applied. So much for 

Sanders. 

I have divided my dissent into eight parts, and they 

are at best arbitrarily divided. But these divisions do give 

some semblance or order to the presentation of my views 

concerning this appeal. This case on appeal was aided neither 

by Coleman's brief nor by his counsel's arguments at the 

hearing. When this situation occurs, the situation is, of 

course, complicated even more. Coleman raised in the trial 

court and before this Court 52 issues. Counsel lettered the 

issues A through Z, and then started again at the beginning 

of the alphabet and went through the alphabet once more, 

lettering the issues AA through ZZ--52 issues. Needless to 

say, it is more than a little difficult for any appellate 
court to concern itself with 52 issues on appeal. That 

process is complicated even more when the briefs and oral 

arguments are so poor. 

I have chosen to concentrate on those issues which 

I believe to have most merit. This is not to say that I 

believe at least some of the other issues not to have 

merit, but time constraints require me to concentrate on 

those issues I feel are most worthy of discussion. 

This dissent is divided into eight parts, divided as 

follows: Part I, Improper Empanelling of Jury Panel; Part 

11, Unanimous Jury Verdict Requirement; Part 111, Recusal 

of Sentencing Judge; Part IV, Retroactive Application of 

Death Penalty Statutes; Part V, Unconstitutional Shifting 

of Burden of Proof to Defendant; Part VI, Right to Jury Trial 

on Question Whether Death Penalty Should be Imposed; Part VII, 

Right to Evidentiary Hearing on Question of Whether Death by 

Hanging Constitutes Cruel and Unusual Punishment; Part VIII, 

Denial of Meaningful Appellate Review. 

Because the majority opinion has totally failed to 

mention the issues, other than to refer to them by the 

letters as designated in the petition for post-conviction 

relief and in the appeal, I append the trial court's order 

to this dissent as Exhibit A. The order disposes of each 

of the issues raised, although at times it is difficult to 

determine exactly what issue was decided. - I further emphasize 

-- that this order - is - a word-for-word adoption --- of the proposed 

findings and conclusions -- of law presented -- 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. 

I dissented in both Coleman - I (1978), 177 Mont. 1, 39 to 43, 

579 P.2d 732, 754 to 756, and Coleman - I1 (1979), - Mont . I 
605 P.2d 1000, 1022 to 1051, 36 St.Rep. 2237, 2248 to 2249, 

and I still adhere to those views. On some of these issues, 

however, I do expand more on my views in this dissent. 

PART I 

IMPROPER EMPANELLING OF JURY PANEL. 

By Issue F, covered in the omnibus holding of the 

majority opinion in Part IV, the defendant claims he was 

deprived of his right to have a jury that was properly 

selected and empanelled. In Coleman - 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, I would grant 

defendant a new trial. 

The majority has cut real corners and did not reach 

the real issue in deciding this issue in Coleman - I, and 

for this reason, I would again review it by application of 

the Sanders criteria. It seems that all the majority is 

concerned about is whether there were 12 jurors present to 

try the case and not how the 12 jurors happened to be there 

in the first place. In my dissent, I pointed out the improper 

procedures used in calling in the panel of jurors, of which 

- at least some of the 12 jurors were called in the manner 

described. 

PART I1 

THERE IS NEITHER ASSURANCE THAT THE JURY REACHED A UNANIMOUS 

VERDICT ON ONE OR MORE THEORIES OF CRIMINAL RESPONSIBILITY 

SUBMITTED TO THE JURY, NOR ARE ALL THEORIES SUPPORTED BY 

SUBSTANTIAL EVIDENCE 

Issue UU, an issue not raised in Coleman's first two 

appeals, claims that all three convictions must be reversed 

because there is no assurance that the jury reached unanimous 

agreement on one or more of the alternative theories of 

criminal responsibility submitted to the jury on each charge. 

Without this assurance, Coleman claims that he has been denied 

his right to unanimous jury verdict as guaranteed by the 
Sixth and Fourteenth Amendment of the United States Constitution, 

and as guaranteed by Article 11, B 26, Montana Constitution. 

Counsel has raised this issue without a genuine attempt 

to analyze the issue and apply it to this case. The same 

issue has been raised in the Fitzpatrick and McKenzie cases 

now before this Court, and undoubtedly Coleman's counsel has 

been the recipient of some cross-fertilization. I believe, 

nonetheless, that Coleman has raised an issue deserving of 

careful review by this Court, and that Coleman's convictions 

should be reversed because there is no assurance that the jury 

reached unanimity on a single theory of statutory responsibility. 

My position is not based on the fact that this is a death 

penalty cause; the issue is a serious one even if the death 

penalty were not the underlying issue. But the fact that 

Coleman has been sentenced to hang requires all courts, and 

especially this Court, to carefully consider the merits of 

this claim. But the trial court and this Court have failed 

miserably in treating the issue as virtually frivolous. 

The United States Supreme Court, in the aftermath of 

its decision upholding the constitutionality of the death 

penalty, has emphasized the need to be sure not only that the 

death penalty is the properly penalty, but that the guilt 

finding process has been scrupulously adhered to. In Beck 

v. Alabama (1980), 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 

392, the Supreme Court stated: 

"To insure that the death penalty is . . . imposed 

on the basis of 'reason rather than caprice or 

emotion,' (the courts) have invalidated procedural 

rules that tended to diminish the reliability of 

the sentencing determination. -- The same reasoning 

must apply to rules that diminish the reliability 

7- 

of the guiltdetermination." (Emphasis added.) 

And the Supreme Court has long recognized that the 

question of whether a verdict was unanimous in a death penalty 

case must not be left to guesswork. 
In Andres v. United States (1948), 333 U.S. 740, 68 

S.Ct. 880, 92 L.Ed. 1055, the trial court failed to instruct 

the jury that it must be unanimous as to both guilt and as 

to a sentence recommendation. Under the statute involved, a 

conviction required the death penalty to be imposed unless 

the jury directly stated in its verdict that it should not 

be imposed. The court held that where a statute requires 

jury input on sentencing, unanimity is required, and the 

jury had not been expressly instructed that it must also 

reach unanimity as to whether it made no recommendation 

(thereby triggering mandatory imposition of the death penalty), 

or whether it made a recommendation that the death penalty 

not be imposed. Because there was no assurance that the 

jury knew of the unanimity requirement with respect to 

sentencing, the Supreme Court reversed, stating: "In death 

cases, doubts such as these presented here [doubts as to 

unanimity] should be resolved in favor of the accused." 333 

U.S. at 752. 

In the third McKenzie case, State v. McKenzie (1979) , 

Mont . , 608 P.2d 425, 474, 36 St.Rep. 2157, in 

discussing the impact of the unconstitutional Sandstrom-type 

jury instructions on the jury verdicts, I raised the added 

spector that McKenzie may also have been the victim of less 

than unanimous jury verdicts because of the many alternative 

charges to the jury, and because of the failure of the 

verdicts returned to specify the underlying basis for the 

conviction. I cited and quoted from United States v. Gipson 

5th Cir. 

y1977), 553 F.2d 453, 457-458, which held that: "[rlequiring 

the vote of twelve jurors to convict a defendant does little 

to insure that his right to a unanimous verdict is protected 

unless this prerequisite of jury concensus as to the defendant's 

course of action is also required." 
The spector of a nonunanimous verdict in a death 

penalty case has now been raised here. 

Coleman was charged with three distinct crimes: count 

I, deliberate homicide; count 11, aggravated kidnapping; and 

count 111, sexual intercourse without consent. For each of 

these crimes charged, the jury was instructed that it could 

reach a verdict based on several alternative theories of 

criminal responsibility. Under count I, the jury was instructed 

it could find Coleman guilty of deliberate homicide by use 

of the felony-murder rule, or by finding that he purposely 

and knowingly killed Lana Harding. But under the felonymurder rule the jury was given the choice of several felonies, 

including unspecified felonies, to apply in determining 

whether Coleman was guilty of felony-murder. Under count 

11, aggravated kidnapping (which conviction triggered the 

death penalty here) the jury was given several choices of 

what felony Coleman had in mind to commit when he held or 

secreted Lana Harding. Furthermore, several - of these choices 

are unsupported - by substantial evidence. Under count 111, 

sexual intercourse without consent, the jury was given two 

choices as to proof of the issue of "without consent." 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 you must agree on the verdicts." The trial court 

failed, however, to instruct the jury that its verdict on 

each charge must be unanimous on one or more of the theories 

of criminal responsibility. The verdict forms given to the 

jury by the trial court, provide no basis to determine the 
underlying statutory theory or theories applied by the jury 

in finding Coleman guilty. 

The jury returned guilty verdicts on all three charges, 

but the verdicts specified only that Coleman was guilty of 

count I, deliberate homicide; that he was guilty of count 

11, aggravated kidnapping; and that he was guilty of count 

111, sexual intercourse without consent. It is impossible 

to determine from these verdicts whether the jury was unanimous 

on one or more theories of criminal responsibility for an 

essential element of the crime. In addition, at least one 

theory of "without consent" submitted to the jury on the 

charge of sexual intercourse without consent (count 111) is 

unsupported by substantial evidence. But more important, 

several theories submitted to the jury on the charge of 

aggravated kidnapping (count 11) are not supported by substantial 

evidence. It remains for those more knowledgeable than me 

to explain how any appellate court can approve the death 

penalty for the conviction of aggravated kidnapping even 

though several theories of criminal responsibility as charged 

in that offense, are not supported by substantial evidence. 

Both the trial court and the majority have sloughed off 

this issue as essentially frivolous. 

In adopting verbatim the State's proposed finding or 

conclusion, the trial court ruled: 

"UU. Petitioner contends that he was denied his 

right to a unanimous jury verdict. But when the 

instructions are read as a whole, as they must under 

Coleman 11, 605 P.2d at 1052, the claim fails. See 

Cupp v. Naughton, 414 U.S. 141, 147. In addition, 

petitioner's reliance on the federal constitution is 

misplaced in that the federal constitution does not 

guarantee the right to a unanimous jury verdict in 

state felony jury trials. Apodoca v. Oregon, 404 

U.S. 404 (1972); Johnson v. Louisiana, 404 U.S. 356 

(1972) ." 
This ruling treats the issue in a most summary fashion, 

evading rather than meeting the question raised, But the 

majority opinion is even worse, for it fails even to identify 

the issue, let alone to analyze the issue with respect to 

the procedural context of the charges, the instructions, and 

the verdicts returned. The majority disposes of this claim 

by another omnibus ruling in Part VII of its opinion, disposing 

of this and four more issues: 

". . . Because the post-conviction procedure is 

a new civil remedy, the failure to present claims 

in earlier proceedings would not bar them from 

presentation at this time. However, we have 

reviewed the claims and find the same to be 

unmeritorious. It was not error for the court 

to deny them summarily . . ." 

The trial court's reliance on Johnson v. Louisiana (1972), 

uoc. 

.8gq U.S. 356, and Apodoca v. Oregon (1972), 404 U.S. 404, 

is misplaced. It is true that both cases hold that a state 

court is not required by the Sixth and Fourteenth Amendments 

to guarantee a unanimous jury verdict. But this holding 

ignores the fact that Montana's Constitution, Art. 11, S 26 

("In all criminal actions, the verdict shall be unanimous"), 

guarantees a unanimous verdict to all defendants charged in 

state court, whether it be a felony or even a misdemeanor. 

In light of our own constitution, the United States Supreme 

Court would clearly not permit this Court to sanction a 

death penalty conviction where the verdict may have been 

less than unanimous. If we did not assure that Coleman had 

unanimous jury verdicts, we would, in effect, deny him equal 

protection of law. And that is a federal question. 

This Court cannot, without denying equal protection of 

the law, distinguish between a situation where a defendant 

is charged with one crime and one statutory theory of criminal 
responsibility, and a situation where a defendant is charged 

with one or several crimes, but where he is also charged 

with multiple statutory theories of criminal responsibility. 

In the first situation, a general instruction on unanimity, 

in addition to a guilty verdict returned on the only charge 

and only statutory theory of responsibility for that charge, 

would assure unanimity. But that is not so in the second 

situation where a defendant is charged with three crimes, 

but also charged with committing those crimes in several 

alternative ways. In this situation, a general instruction 

as to unanimity will not suffice. Rather, the jury must be 

instructed that its verdict must be unanimous on any one or 

more statutory theories applied in reaching its verdict. 

Further, the verdicts returned should disclose the statutory 

basis on which the jury reached its verdict. If these 

requirements are not fulfilled, a defendant charged in such 

a situation is deprived of equal protection of the law. 

This situation is especially grievous, where, as here, the 

defendant has been sentenced to death. 

THE UNANIMOUS VERDICT REQUIREMENT IN THE CONTEXT OF THE 

CHARGES FILED: FAILURE OF THE STATE TO FOLLOW STATUTORY 

PROCEDURES 

First, we must recognize that in charging Coleman by 

alleging several statutory theories for the same offense, 

the State failed to follow proper statutory guidelines. If 

it had done so, the problems we face here would not exist. 

The applicable statute, section 46-11-404, MCA, clearly sets 

out the procedure for the filing of alternative charges, 

that is, ". . . different versions --- of the same offense." 

Section 46-11-404,(1), MCA, states in relevant part: 

"(1) An indictment, information, or complaint 

mav -.. -. J. charae two - or - more different offenses 2- --- 

connected together in their commission, different 

statements --- of the same offense, or two or more 
different offenses of the same class under 

separate counts.. . . The prosecution is not 

required to elect between the different offenses 

or counts set forth in the indictment, information 

or complaint, and the defendant may be convicted 

of any number of the offenses charged. Each offense 

- of which the defendant is convicted must -- be stated 

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

(Emphasis added.) 

Although the statute uses the word "may", the message 

is that the prosecutor should charge in the manner stated 

in order to avoid problems such as exist in this case. The 

prosecutor did charge three separate crimes, and this statute 

permits him to do so, But the statute also states that if 

"two or more statements of the same offense" are charged, that 

it be done so "under separate counts." If that had been done 

here, the jury could have returned a verdict on each of the 

separate counts, and therefore the basis for its decision 

would be specified. The statute also clearly contemplates 

this procedure by stating that the prosecutor is not required 

to elect on his theories, but that "each offense of which the 

defendant is convicted must -- be stated -- in the verdict . . ." 

I read this last sentence to mean, in context with the 

entire subsection, that if a defendant is charged in separate 

counts with a different statement of the same offense, a 

verdict form must be prepared for that separate statement, 

and the jury must return a verdict on that particular statement of the offense. If this procedure had been followed in 

this case, we would know the precise basis on which the jury 

reached its verdict on each charge. It is the State then, 

who must assume the responsibility for improperly charging 

Coleman and for setting in motion the ambiguous verdicts. 

The State's error in not following this statute, is 

magnified by the failure of the trial court to instruct the 

jury that its verdict must be unanimous on each statutory 
theory of criminal responsibility presented to it by the 

instructions. Again, that fault must be laid to the State 

and to the trial court. Furthermore, the trial court provided 

the ambiguous verdicts for the jurys' case. 

I proceed next to a discussion of the general law in 

relation to the requirement of a unanimous jury verdict, and 

then I will discuss the charges, the jury instructions, and 

the verdicts returned in this case. 

DETERMINING JURY UNANIMITY WHERE STATUTORY THEORIES OF THE 

CRIMES ARE CHARGED ALTERNATIVELY IN THE SAME COUNT 

If only one crime is charged in one count, and if 

only one statutory theory of that crime is pleaded, the 

unanimity requirement normally presents no problem. It is 

sufficient to instruct the jury that it must reach a unanimous 

verdict. But the problem is entirely different where a 

defendant is charged with one crime in one count, but where 

in the same count, he is charged with committing that crime 

alternatively in several different ways. 

For example, if a defendant is charged with aggravated 

kidnapping with a purpose to commit the felony of sexual 

intercourse without consent, or the felony of aggravated 

assault, it is not sufficient if six jurors believe that the 

defendant kidnapped the woman for the purpose of sexual 

intercourse without consent, and the six other jurors believe 

that the defendant kidnapped the woman for the purpose of 

committing aggravated assault upon her. If a jury returns 

a verdict on this basis, they are not in unanimous 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 reach 
unanimity and the function of the appellate court is to 

determine if the jury in fact reached unanimity. 

DETERMINING JURY UNANIMITY--FUNCTION OF APPELLATE COURT 

The appellate court, of course, cannot read the jurys' 

mind, and so review necessarily involves an examination of 

the charges filed, the instructions given defining the 

elements of those charges, the instructions given with regard 

to the requirement of unanimity, and the verdicts actually 

returned by the jury. Obviously, if the verdict specifies 

the theory used by the jury in finding guilt, no problem is 

presented. It is then only a question of examining the 

evidence to determine if the theory used is supported by 

the evidence. The question, therefore, nearly always arises 

where the verdict form is ambiguous and only the jurors know 

what was actually decided. 

Ambiguous jury verdicts in criminal cases are frequently 

the result of a failure to properly charge a crime or crimes, 

and of a failure to give the jury proper instructions and 

verdict forms. For example, if a defendant is charged in 

count I with two or more crimes, what does a jury verdict 

reveal where it finds that defendant is guilty of count I? 

Did the jury convict the defendant of one crime or both? 

Was the jury unanimous with respect to either? United States 

v. Starks (3rd Cir. 1975), 515 F.2d 112, 116-117. Also see, 

United States v. Uco Oil Co. (9th Cir. 1976), 546 F.2d 833, 835, 

cert.den. (1977), 430 U.S. 966, 97 S.Ct. 1646, 52 L.Ed.2d 

357. And, of course, the same questions can be asked, 

although in a slightly different context, if a defendant 

is charged in count I with one crime, but where several 

alternative theories are also alleged in that count. If 

the jury returns a guilty verdict to count I, the questions 

arise as to whether the jury convicted defendant under one 

-51- 
alternative theory, or more than one alternative theory, or 

under all alternative theories. In addition, the question 

arises aso to whether the jury reached unanimous agreement on 

at least one theory? No one knows. 

One of the first questions is to determine how the jury 

was instructed on the question of unanimity. Some courts have 

held that a general instruction on unanimity is sufficient. 

For example, see, State v. Arndt (1976), 87 Wash.2d 374, 553 

P.2d 1328; United States v. Natelli (2nd Cir. 1975), 527 F.2d 

311; State v. Williams (Iowa 1979), 285 N.W.2d 248; State v. 

Souhrada (1948), 122 Mont. 377, 204 P.2d 792. On the other 

hand, other courts have held that a general instruction is 

not sufficient; rather, the jury must be specifically instructed 

that it must reach unanimous agreement on any one or more 

statutory theories of criminal responsibility as charged by 

the State. 

The defect of a general instruction has been pointed 

out in United States v. Gipson, supra: 

"The unanimity rule thus requires jurors to be 

in substantial agreement as to just what a 

defendant did as a step preliminary to determining 

whether the defendant is guilty of the crime 

charged. Requiring the vote of twelve jurors 

to convict a defendant does little to insure that 

his right to a unanimous verdict is protected 

unless this prerequisite of jury concensus as 

to the defendant's course of action is also required." 

553 F.2d at 457-458. 

Implicit in this ruling is a requirement that the trial 

court instruct the jury that it must reach unanimity on 

any theory used as a basis to find guilt. 

Several state courts have held that a jury must be 

instructed that its verdict be unanimous on one or more of 

the alternative theories submitted to the jury for its decision. 

See, for example, State v. Bleazard (1943), 103 Utah 113, 

133 P.2d 1000, 1003; People v. Thompson (1956), 144 Cal.App. 
2d 854, 301 P.2d 313. And more recently, in cases involving 

the alternative theories of premeditated murder and felonymurder, Michigan and Washington have held that the jury must 

be instructed that its verdict be unanimous on at least one 

of the theories. State v. Golliday (1979), 78 Wash.2d 121, 

137, 470 P.2d 191, 201; People v. Embree (1976), 68 Mich.App. 

40, 241 N.W.2d 733; People v. Olsson (1974), 56 Mich.App. 

500, 507, 224 N.E.2d 691, 693-694. 

In Olsson, the Michigan Court of Appeals reversed a 

conviction because jury instructions failed to distinguish 

between felony murder and premeditated murder, and because 

the jury was not instructed that it must unanimously agree 

on the same statutory theory in order to reach a verdict. 

224 N.W.2d 693-694. And in Embree, the Michigan Court of 

Appeals again warned trial courts that they must instruct 

juries that their verdict must be unanimous on the question 

of whether the alleged murder was premeditated or whether it 

was committed in a situation calling for application of the 

felony-murder rule. 68 Mich.App. 384, 246 N.W.2d at 7. 

Finally, in Golliday, the Washington Supreme Court held that 

"instructions must clearly distinguish between the alternative 

theories and require the necessity for a unanimous verdict 

on either of the alternatives. 470 P.2d at 201. 

As I shall later demonstrate in detail, each of the 

charges involved here was based on alternative allegations. 

Yet the jury was not told that its verdict must be unanimous 

as to any one or more theories. In addition, there is no 

way of telling which theory or theories the jury used to 

convict Coleman of all three offenses--one of which triggered 

the imposition of the death penalty. 

WHY THE CONVICTIONS MUST BE REVERSED 
Those decisions holding a general unanimity instruction 

to be sufficient, fail to go beyond this general statement. 

They ignore the actual doubt that inheres in such a position. 

Further, they ignore the fact that it is a defect in the 

judicial system that has created the problem; it is not a 

problem created by the defendant. The defect can be charged 

to the State in failing to properly charge the defendant in 

separate counts, the defect can be charged to the trial court 

in failing to instruct the jury that its verdict must be 

unanimous as to any statutory theory or theories of criminal 

responsibility, and the defect can be charged to the trial 

court in failing to provide clear verdict forms. Because 

these decisions ignore these failures in the judicial system, 

and assume unanimity, analysis is confined solely to reviewing 

the sufficiency of the evidence support each theory submitted 

to the jury. 

Obviously, if the theory of criminal responsibility is 

clear, and the verdict is clear, review can then center on 

the sufficiency of the evidence. If the appellate court can 

state that the jury applied a particular theory or theories 

in reaching its decision, the court can then confine itself 

to examining the evidence to determine its sufficiency. If 

it is sufficient, it can af f irmed; not, the conviction 

must be reversed. 

But what does the appellate court do if the verdict 

fails to disclose the statutory theory on which the jury 

based its decision? An analysis of all theories to determine 

their sufficiency clearly proceeds on the assumption that 

whatever theory or theories the jury used, the jury was unanimous. 

Without this assumption of unanimity, the conviction would be 

reversed precisely because of the inability of the court to 

say that the jury verdict was unanimous. 
But an assumption of unanimity should never be made in 

a case such as the one involved here, unless the jury has 

been specifically instructed that it must be unanimous on 

any statutory theory or theories on which the State has based 

its prosecution. Failure to give this instruction is cause 

for reversal. In this event, appellate review would then be 

confined to determining whether all theories are supported by 

substantial evidence. If all were so supported, the judgment 

would be reversed and a new trial ordered under all theories. 

If not so supported, the case would be reversed with retrial 

only on those theories supported by substantial evidence. 

Where the appellate court rests on an assumption of 

unanimity, however, reversal is required only if all theories 

are not supported by substantial evidence. But the reason 

for reversal is not that the jury was less than unanimous on 

a theory or theory on which it based its conviction, for 

unanimity is assumed. Rather, the reason for reversal is 

that the jury may have been unanimous on a theory not supported 

by the evidence. Uncertainty as to the theory used is the 

reason for reversal. This rationale is much the same as that 

used to reverse a jury verdict where the jury is given 

inconsistent instructions on an important point of law. 

Reversal is based on a fundamental policy rule that if the 

appellate court cannot tell whether the jnry followed the 

correct or incorrect instruction, and it would be unfair to 

affirm a verdict based on an erroneous instruction. See, 

for example, my dissent in State v. Price (1980), Mont . 

- , 622 P.2d 160, 37 St-Rep. 1926, where I thoroughly 

developed this theory of appellate review. The impelling 

reason for reversal in both situations is uncertainty as to 

what the jury did where it may have followed an evidentiary 
theory not supported by the evidence, or an erroneous 

instruction, and therefore uncertainty is created as to 

whether a correct verdict was reached. 

Where several alternative theories of criminal responsibility are presented to the jury, and where the verdict is 

ambiguous as to which theory or theories were applied, review 

of necessity rests on an implicit recognition that no one 

knows what theory the jury actually followed in reaching its 

verdict. If the jury had been instructed, however, that it 

must be unanimous on any theory applied to reach a decision, 

then an appellate court should assume that the jury was in 

fact unanimous. But where there is no such instruction, the 

appellate court should not make this assumption. The question 

boils down to one of policy--how much leeway can a jury be 

permitted in reaching its decision? If due consideration is 

given to the fact that a defendant's liberty or even his life 

is at stake, that policy should come down on the side of 

reversal. 

In a case such as this, a general unanimity instruction 

should not enshrine the verdict with unanimity. Either an 

assumption that the jury reached unanimous agreement, or an 

assumption that the jury did not reach unanimous agreement, 

without further analysis, fails to deal with the basic problem. 

An assumption either way still rests on an implicit recognition 

that the appellate court cannot tell how the jury actually 

decided the case. In addition to the actual uncertainty 

resulting from the ambiguous verdict, reversal should also 

be mandated because the State, not the defendant, caused the 

problem. The defendant should not suffer from a defect of 

the judicial system. 

In charging alternatively in one count rather than 

charging alternatively in separate counts (see section 46-11-404 
MCA, supra) the State initiated the problem of ambiguity. 

The trial court then compounded the ambiguity by failing to 

instruct the jury that its verdict must be unanimous on one 

or more of the alternative theories of criminal responsibility 

as alleged by the State. And finally, the trial court added 

again to the problem by submitting to the jury the ambiguous 

verdict forms. Doubt surely inheres in this situation. This 

situation was created by the State (the prosecution and the 

court) and the benefit of this doubt should be given to the 

defendant. United States v. Andres, supra. In any criminal 

case, fundamental due process impels a reversal; in a death 

penalty case such as this fundamental due process mandates 

a reversal. 

ANALYSIS OF THE CHARGES FILED, THE INSTRUCTIONS GIVEN, AND 

THE VERDICTS RETURNED IN THIS CASE 

The formal charge for each count, the instructions 

for each count, and the verdict forms for each count, present 

essentially the same problems. The instructions for count 

I, the deliberate homicide charge, for count 11, the aggravated 

kidnapping charge, and for count 111, the sexual intercourse 

without consent charge, respectively gave the jury several 

alternative statutory theories on which the jury could base 

its verdict. The jury was given a general unanimity instruction 

designed to apply to all three counts. But the jury was not 

instructed that it must unanimously agree to any one or more 

of the alternative statutory theories. Furthermore, the verdict 

forms required nothing more than a determination that the 

defendant was guilty or not guilty of deliberate homicide, 

guilty or not guilty of aggravated kidnapping, and guilty or 

not guilty of sexual intercourse without consent. 

The general instruction on unanimity (instruction no. 41) 

stated: 
"You are instructed that when you retire, you 

are to elect one of your members as foreman 

who will sign any verdicts arrived at by the 

jury . 

"Such verdicts must -- be unanimous, which means 

--------- that all of you must agree on the verdicts. 

Verdict forms will be provided for your convenience. 

"When you have reached your verdicts, you 

will notify the bailiff who will return you 

into court." (Emphasis added.) 

I next proceed to discuss each of the separate charges. 

COUNT I: THE DELIBERATE HOMICIDE CHARGE, JURY INSTRUCTIONS 

AND VERDICT 

The prosecutor used the following language in the formal 

charge of deliberate homicide (count I): 

"That the defendant purposely and knowingly caused 

the death of another human being, to-wit: Peggy 

Lee Harstad, while engaged in the commission of 

the following felonies: Kidnapping and Sexual 

Intercourse Without Consent, involving the use 

of physical force and violence against the said 

Peggy Lee Harstad." 

This charge, unequivocally in the conjunctive, required 

that the prosecutor prove each of the following facts: 

1. That Coleman deliberately and knowingly caused the 

death of Peggy Lee Harstad; and 

2. That he did so while he was engaged in the commission 

of both kidnapping and sexual intercourse without consent; 

and 

3. That while engaged in the commission of these 

crimes Coleman used physical force to accomplish them. 

As it turns out, however, the jury was not instructed 

in the conjunctive language of the charge itself, but rather 

was instructed that the jury could convict if it determined 

either that Coleman knowingly or purposely killed the woman, 

or that he did so while engaged in the commission of several 

alternative applications of the felony-murder rule. 
The jury was instructed in the exact language of count I, 

but was also instructed on the essential facts to be proved to 

sustain the charge of deliberate homicide. This instruction 

(instruction 27) unequivocally told the jury that it had a 

choice of several statutory theories of criminal responsibility 

on which to base its conviction: 

"To sustain the charge of deliberate homicide, 

the State must prove the following propositions: 

"First, that the defendant performed the acts 

causing the death of Peggy Harstad; 

"Second, that when the defendant did so, 

"(1) He acted purposely or knowingly - or 

"(2) That he was engaged in the commission 

of kidnapping -- or any other felony which involves 

--- themreat of physical force - or violence 

against any individual. 

"If you find from your consideration of all the 

evidence that each of these propositions has been 

proved beyond a reasonable doubt, then you should 

find the defendant guilty." (Emphasis added.) 

Under the second proposition to be proved, the jury had 

several choices in determining how the woman's death came about. 

First, the jury could determine that Coleman "purposely or 

knowingly" caused the woman's death. If so, the jury could 

convict Coleman of deliberate homicide. Second, the jury could 

convict Coleman of deliberate homicide if it found that he 

was engaged in the commission of kidnapping. Third, the 

jury could convict Coleman of deliberate homicide if it 

found that he was "engaged in the commission of . . . - any 

other felony which involves the -- use or threat - of physical 

force or - violence against any individual." (Emphasis 

added. ) 

Therefore, the jury could base a guilty verdict for the 

charge of deliberate homicide by concluding that Coleman 

"purposely or knowingly" caused the death of the woman, or 

by applying the felony-murder rule that Coleman caused the 
woman's death while he was kidnapping her or while he was 

committing any other felony that involved using physical 

force or threatening to use physical force against the woman 

or any other person. The language "any other felony" provides 

a much wider range of possible felonies that the jury may 

have considered beyond that of kidnapping. The verdict 

returned by the jury, however, provides no basis from which 

one can determine which statutory theory or theories were 

used by the jury to convict. 

The verdict form signed by the jury foreman states only 

that: 

"We, the jury, in the above-entitled cause find 

the defendant guilty of Deliberate Homicide as 

charged. " 

Did the jury decide without reference to the felonymurder rule that Coleman had purposely or knowingly killed 

the woman? Or did the jury decide that Coleman caused the 

woman's death while kidnapping her? Or did the jury decide 

that Coleman caused the woman's death while he was engaged 

in the commission of some other unspecified felony that involved 

the use of force or a threat to use force? Or did the jury base 

its verdict on more than one of these statutory theories of 

criminal responsibility? Finally, -- 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 for deliberate homicide, it must agree 

unanimously upon at least one of the alternative theories of 

criminal responsibility relied upon by the State. Gipson, 

supra and Green, supra, require that a jury be so instructed. 

The verdict does not establish whether the jury found that 

the defendant purposely or knowingly caused the woman's 
death or whether it found the defendant guilty by application 

of the felony-murder rule. And the verdict does not indicate 

that the jury was in unanimous agreement that the defendant 

was criminally responsible under any one, specific theory. 

Based on my previous discussion of the unanimity requirement, 

the deliberate homicide conviction should not be permitted 

to stand. It must be reversed and a new trial ordered. 

Chapman v. California, supra; and see, United States v. 

Gipson, supra. 

COUNT 11: THE AGGRAVATED KIDNAPPING CHARGE, JURY INSTRUCTIONS 

AND VERDICT 

The same situation occurs with count 11, the charge of 

aggravated kidnapping, but here policy reasons also require 

reversing the conviction for the added reason that because 

of this conviction, Coleman was sentenced to death. Due to 

the zeal of the trial court in laying the foundation to 

enable it to impose the death penalty, the jury was required 

in its verdict to make a special finding that the woman met 

her death as a result of being kidnapped. Even assuming 

this to be a unanimous finding, it still cannot be upheld 

because of the defect in the underlying aggravated kidnapping 

conviction. 

The prosecutor charged Coleman with count 11, aggravated 

kidnapping, in the following language: 

"That the defendant knowingly or purposely and 

without lawful authority restrained another person, 

to-wit: Peggy Lee Harstad, by holding her in a 

place of isolation and by using physical force to 

facilitate the commission of a felony, to-wit: 

Sexual Intercourse Without Consent, - 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." 

(Emphasis added.) 

Just as the deliberate homicide charge was phrased in 

the conjunctive, so was the aggravated kidnapping charge 
phrased in the conjunctive. This being so, the State was required 

to prove each essential fact charged. However, the jury was 

not instructed on this charge in the conjunctive, but was 

instructed in the disjunctive. Instructions 37, 38 and 39 make 

it abundantly clear that the jury was given several statutory 

theories of criminal responsibility under which it could find 

Coleman guilty of aggravated kidnapping. 

Each of these instructions sets out a different list of 

essential facts to be proved in order to sustain a conviction. 

Such an inconsistency should not be permitted in any criminal 

case, let alone in a death penalty case. Here, this inconsistency 

is reason enough to reverse the conviction of aggravated 

kidnapping. How does anyone know which of the inconsistent 

instructions the jury followed in reaching its guilty verdict, 

or whether, because of the inconsistencies, the jury followed 

any of them at all? 

In instruction 37, the trial court defined the crime 

of aggravated kidnapping as follows: 

"A person commits the crime of aggravated 

kidnapping if he knowingly or purposely and 

without lawful authority restrains another person 

by secreting or holding her in a place of isolation 

with ---- any of the following purposes: 

"(1) to facilitate commission of any felony; 

" (2) or to inflict bodily injury or - to terrorize 

the victim." (Emphasis added.) 

In this instruction the jury was told that it could convict if Coleman, in restraining the woman, had the purpose 

to commit any felony, - or if he had the purpose to inflict 

bodily injury, - or if he had the purpose - to terrorize the woman. 

Then, instruction no. 38 attempted to set out other 

facts which the State was required to prove, according to 

the actual charge filed against the defendant: 
"The offense of Aggravated Kidnapping requires 

that the voluntary act (the secreting or holding 

-- 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 following purposes: 

" (a) to facilitate the commission of any felony 

(in this case sexual intercourse without consent 

of the victim, - or an aggravated assault upon the 

victim), or - 

"(b) to inflict bodily injury on the victim." 

(Emphasis added.) 

In this instruction, the jury was told that the State 

had to prove these facts: First, that Coleman held or 

secreted the woman, and that he did so either without lawful 

authority - or by using physical force or - threatening -- to use 

physical force. Second, that Coleman had one or more of the 

following purposes when he held or secreted the woman: (a) 

the purpose to facilitate the commission of - any felony 

(here, limited to sexual intercourse without consent or 

aggravated assault) or (b) the purpose to inflict bodily 

injury upon the woman. Assuming there is substantial evidence 

to support each of these alternative theories, there is 

still no way to tell whether the jury was unanimous in 

applying any one theory. 

Instruction no. 38 considerably expands the range of 

alternatives set out in instruction no. 37. But then instruction 

no. 39 further muddies the waters by again setting out and 

expanding the theories of criminal responsibility under 

which Coleman was charged: 

"To sustain the charge of aggravated kidnapping, 

the state must prove the following propositions: 

"First: That the defendant knowingly or purposely 

restrained Peggy Harstad by secreting her in a 

place of isolation; and 

"Second: That the defendant had the purpose in 

so acting to facilitate the commission of any 

felony, or to inflict bodily injury, or to terrorize 

- 

7 

Peggy ~arstad. 
"Third, that in so doing the defendant acted without 

lawful authority. 

"If you find from your consideration of all the 

evidence that each of these propositions has been 

proved beyond a reasonable doubt, then you should 

find the defendant guilty. 

"If, on the other hand, you find from your 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. " (Emphasis added. ) 

Instruction no. 39 differs considerably from instruction 

no. 37. The jury was told that it could find Coleman 

guilty by finding that he had any one of three purposes in 

restraining or secreting the woman. First, the jury could 

find Coleman guilty by finding he had the purpose to commit 

any felony. Although instruction no. 37 also states - any 

felony, instruction no. 39 considerably expands upon instruction 

38, which limited the purpose to the commission of sexual 

intercourse without consent or aggravated assault. Second, 

the jury could find Coleman guilty by finding his purpose 

was to inflict bodily injury upon her. This prosecution 

theory is also stated in instructions no. 37 and 38, and 

therefore is not inconsistent. Third, the jury could find 

Coleman guilty by finding his purpose in holding or secreting 

the woman was - to terrorize her. This language is consistent 

with instruction no. 37 but is not consistent with instruction 

no. 38. 

Because these instructions are inconsistent, there is 

no way to determine which of the instructions the jury has 

followed, or whether the jury has disregarded them altogether. 

Where there has been inconsistent instruction on the essential 

elements of the crime charged, as there was here, it should 

not be tolerated on appeal. Here especially, where inconsistent instruction on the elements of the crime may have 
led to a conviction resulting in the death penalty, this 

Court should not have to think twice before reversing the 

conviction and granting a new trial--reversal should be 

automatic. 

The dangers inherent in inconsistent instruction on the 

essential elements of aggravated kidnapping are further 

magnified by the general verdict returned by the jury which 

fails to disclose the theory or theories the jury applied in 

reaching its verdict. The verdict stated: 

"A. We, the jury, in the above-entitled cause, 

find the defendant Guilty of the offense of 

Aggravated Kidnapping as Charged. 

"B. We further find that Peggy Harstad [did] 

[did not] die as a result of said Aggravated 

Kidnapping. 

"(Strike out bracketed word or words that do 

not apply) . " 

To find Coleman guilty of aggravated kidnapping, the 

jury had to find that Coleman, in restraining or secreting 

the'woman, had, as his purpose at least one of those purposes 

listed in instructions no. 37, 38 and 39. How can we tell 

which purpose or purposes the jury used.in reaching its 

decision? And, because the instructions are inconsistent on 

an essential element of the crime, how can we tell which 

instruction the jury used? And, because the instructions 

are inconsistent, can we be sure that the jury used any of 

the three instructions? 

The aggravated kidnapping charge must be reversed. 

First, in a criminal case inconsistent instructions as to an 

essential element of a crime, requires a reversal and a new 

trial. See Price, 622 P.2d 160, and cases cited in my dissent 

(622 P.2d 168, 37 St.Rep. 1935A). Second, the trial court 

erred in failing to instruct the jury that its verdict must 

be unanimous on any theory or theories of criminal responsibility 
charged by the State. People v. Olsson, supra, People v. 

Embree, supra; State v. Golliday, supra; State v. Bleazard, 

supra; People v. Thompson, supra; United States v. Gipson, 

supra. Third, the trial court submitted ambiguous verdict 

forms to the jury, and the verdict returned fails to disclose 

the statutory theory or theories on which the jury based its 

guilt determination. Fourth, consider that substantial 

evidence does not support each of the statutory theories 

submitted to the jury. State v. Green (1980), 94 Wash.2d 

216, 616 P.2d 628. And finally, consider that the aggravated 

kidnapping conviction laid the foundation for imposition of 

the death penalty. Reversal is absolutely required if the 

judicial system is to maintain its integrity. 

SUBSTANTIAL EVIDENCE DOES NOT SUPPORT EACH OF THE ALTERNATIVE 

THEORIES GIVEN TO THE JURY 

In instruction no. 38, the jury was told that it could 

convict Coleman by finding that he held or secreted the 

woman for the purpose of committing sexual intercourse 

without consent or for the purpose of committing aggravated 

assault. There is no substantial evidence to support either 

of these theories. 

There is not a shred of evidence to establish that when 

the woman was first held or secreted, Coleman then had as 

his purpose that of committing sexual intercourse without 

consent. When the woman was kidnapped, according to the 

testimony of accomplice Nank, it was their purpose to rob 

the woman and to kill her. In fact, it was not until sometime 

later, at Nank's initiation, that Coleman (according to 

Nank) accomplished an act of intercourse with the woman. 

The fact that accomplice testimony, however weak (corroborated 

only by a negroid pubic hair found in the woman's car), 
indicated that at some time during this episode Coleman had 

intercourse with the woman, fails to establish that Coleman 

had intercourse as his purpose in holding or secreting her. 

Even under holdings which assume jury unanimity by the giving 

of a general instruction, e.g. State v. Souhrada, supra, the 

conviction must be reversed because substantial evidence 

does not support the alternative theory that Coleman held 

or secreted the woman in order to accomplish an act of 

sexual intercourse without consent. 

Nor is there substantial evidence to support a conclusion 

that Coleman had as his purpose in holding or secreting the 

woman to commit an aggravated assault upon her. Accomplice 

Nank testified that he and Coleman planned to rob and kill the 

first person they got a ride from, but this does not establish 

that it was Coleman's purpose to commit an aggravated assault 

upon the woman. Although it can be argued that an aggravated 

assault would be committed in the process of killing the 

woman, it nonetheless does not establish that Coleman held 

or secreted the woman for the specific purpose of committing 

an aggravated assault. 

Instructions no. 37, 38 and 39 also each provide that 

Coleman could be convicted of aggravated kidnapping if he 

had as his purpose in holding or secreting the woman, to 

inflict bodily injury upon her. Substantial evidence does 

not support this theory, either. Accomplice Nank's testimony 

states only that it was their purpose to rob and kill the 

person who picked them up. Although it can again be argued 

that a purpose to kill subsumes a purpose to inflict bodily 

injury, it nonetheless does not establish the fact that 

Coleman held or secreted the woman for the specific purpose 

of inflicting bodily injury upon her. 
Instructions no. 37 and 39 told the jury that if could 

convict Coleman of aggravated kidnapping by finding that he 

had the purpose in holding or secreting the woman, to 

terrorize her. There is not a shred of evidence to support 

this conclusion either. Assuming the testimony of accomplice 

Nank to be true, undoubtedly the woman, at some stage of the 

events leading to her death, was terrified. But Nank never 

did testify that he or Coleman had the specific purpose 

to terrorize the person who gave them a ride-. 

Based on accomplice Nank's testimony, and assuming it 

to be sufficiently corroborated, Coleman could have been 

charged under the aggravated kidnapping statute with having 

the specific purpose to commit two felonies: robbery and 

homicide. (See, section 45-5-303, MCA.) But he was not so 

charged. Rather, he was charged with having the specific 

purpose, among others, of committing sexual intercourse 

without consent, of committing an aggravated assault, of 

inflicting bodily injury, and of terrorizing. Substantial 

evidence supports none of these theories. Even under holdings 

which assume jury unanimity by the giving of a general 

instruction, e.g., State v. Souhrada, supra, Coleman's 

conviction must be reversed because the jury may have convicted 

on a theory not supported by substantial evidence. 

We should be compelled to reverse this conviction and 

grant a new trial. The jury instructions are inconsistent 

on the essential elements of the crime charged. There is no 

assurance that the jury reached a unanimous verdict on at 

least one of the alternative theories of criminal responsibility 

set out for establishing Coleman's purpose in holding or 

secreting the woman. For at least four of those purposes 

listed in the instructions, there is no substantial evidence 
there is no corroboration for this testimony. The negroid 

pubic hair found in the woman's car certainly does not 

corroborate that he used physical force. There is no 

assurance that the jury based its conviction on this definition 

of "without consent." 

By instruction no. 33, the jury could also convict 

Coleman by finding that he had intercourse with the woman by 

threatening her or anyone else with imminent death, bodily 

injury, or kidnapping. But Nank's testimony negates the 

conclusion that Coleman accomplished intercourse by making 

any of these threats. There is no evidence Coleman threatened 

her or anyone else with imminent death, bodily injury, or 

kidnapping. The lack of substantial evidence in the record 

to support this alternative theory of proving the essential 

element of "without consent," requires that the conviction 

be reversed. 

Furthermore, substantial likelihood exists that the 

jury used a theory not supported by the evidence to convict 

Coleman of sexual intercourse without consent. The jury made 

an additional finding, later held by this Court in Coleman - I 

to not be supported by substantial evidence (579 P.2d at 

742-43), that Coleman had inflicted physical injury on her 

while accomplishing the act of intercourse. Because the jury 

made this finding, the likelihood is that it determined that 

Coleman threatened her with bodily injury and then carried 

it out by actually inflicting physical injury. There is, 

however, no substantial evidence to support that conclusion 

and this Court has already determined that the jury erred in 

finding that Coleman inflicted physical injuries upon her. 

Beyond the substantial evidence question, however, is 

still the fact that Coleman may have been deprived of a 
unanimous jury verdict on the issue of "without consent." 

There is no assurance that the jury was unanimous on this 

issue. The jury was not instructed that it must reach a 

unanimous verdict on any "without consent" theory. Our 

standard of review is again governed by Chapman v. California, 

supra. Proper application of Chapman requires that the 

sexual intercourse without consent conviction be reversed 

and a new trial granted. See, United States v. Gipson, 

supra. 

PART I11 

A JUDGE WHO HAS IMPOSED THE DEATH PENALTY ON A DEFENDANT 

SHGULD NOT SIT ON THAT DEFENDANT'S APPLICATION FOR POSTCONVICTION RELIEF 

The majority blandly decides in Part I1 of its opinion 

that general policy considerations require that the sentencing 

judge or trial judge also preside over a petition for postconviction relief. As a general proposition, I agree with 

this holding. However, such a holding should never apply 

in a case where the defendant has been sentenced to death. 

Further, because of the allegations made in the petition for 

post-conviction relief, the sentencing judge should have 

removed himself from the case. 

Where a sentencing judge has already imposed the death 

penalty, it offends my sensibilities that this same judge 

should preside over the defendant's petition for postconviction relief. This is especially so, where the petition 

not only attacks the validity of the conviction, but also 

attacks the validity of the sentence and the conduct of 

the sentencing judge in imposing the sentence. How can 

this Court give any credence to the decisions of the judge 

when, in acting on the petition for post-conviction relief, 

he has simply adopted verbatim the findings and conclusions 

proposed by the State of Montana. (See Appendix A to this 
dissent.) If post-conviction relief is to have meaning, 

and especially in a death penalty case, due process of 

law must require that the judge carefully consider each 

of the issues raised by the petitioner. Needless to say, 

he failed miserably in this case. 

Additional allegations Coleman makes in his petition 

for post-conviction relief directly or indirectly attacking 

the fairness of the sentencing judge, also' required that a 

different judge preside over Coleman's final attempt to get 

justice within the state court system. Furthermore, Coleman 

stated in his petition that he would have to call the 

sentencing judge as a witness to obtain evidence of his 

claims. These allegations required, especially in a death 

penalty case, that the sentencing judge call in another 

judge to preside over the hearing. 

Issue C claims that the sentencing judge, without 

notice to Coleman, amended the information before the trial 

started, and without legal authority to do so. He alleges 

this was an amendment of substance because without it, the 

death penalty could not have been triggered in the event of 

a conviction for aggravated kidnapping. The sentencing 

judge added the words to the information "resulting in the 

..death of Peggy Lee Harstad." It cannot be doubted that this 

jury finding triggered the application of the death penalty, 

for the statutes then mandated the death penalty in the event 

of such a determination. See, Coleman - I, 579 P.2d 732. 

The essence of Coleman's claim is that the trial court would 

get the death penalty in the event of a conviction. 

To establish the judge's intentions, Coleman wanted 

the judge to testify. In Coleman - 11, 605 P.2d 1000. I dissented 

to this Court's decision in effect validating the judge's 

amendment of the information. (I know of no authority 
permitting the judge to become an advocate by changing the 

charge.) This amendment, which mandated the death penalty 

in the event of a conviction, was the beginning of the 

orchestration of the proceedings by the trial court which 

eventually led to Coleman being sentenced to death. 

Issue Y claims that the judge made his decision to 

hang Coleman before the judge even held the sentencing 

hearins. 

SV 

2 Gol-eman alleqeile - ~~~de&a-Klc fact thU; ille- 

. RTG Coleman 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 Issue Y that he is entitied to have 

testimony from the sentencing judge himself as to whether he 

decided to impose the death penalty before he even held the 

sentencing hearing. Coleman is entitled to that testimony, 

even though the judge would never admit that he had prejudged 

the case. In any event, Coleman would be entitled to ask 

the judge why he had his sentence of death prepared in 

advance of the hearing, and whether he also had prepared in 

advance findings and conclusions and a sentence that did not 

impose the death penalty. 

Issue BB claims that the sentencing judge failed to 

consider that Coleman had no previous criminal record of any 

kind. Coleman alleged he needed the testimony of the sentencing 

court to determine why he had never considered the negative 

criminal record, The semantics used by the sentencing court 

have been the subject of my dissent in Coleman - 11, 605 P.2d 

lC00, 1002 - 51, and I again elaborate on this issue in part 
VIII of my dissent. 

Issue DD claims that the sentencing judge, in ruling 

that Coleman and Nank burglarized a home earlier on the same 

day as the crimes involved here, relied solely on the uncorroborated trial testimony of Nank. In Coleman - 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. 605 p.2d 1027 

to 1040. If the sentencing judge made this ruling based on 

testimony or evidence other than provided by Nank at the 

trial, Coleman claims he is entitled to know the source, and 

therefore that he must be permitted to examine the sentencing 

judge. Coleman should have that right. 

Issue I1 claims that the sentencing judge in fact 

decided that the sentencing statutes were mandatory if it 

found the existence of an aggravating fact and that mitigating 

factors were not "sufficiently substantial to call for 

leniency." Therefore, once the sentencing court made these 

preliminary findings, Coleman claims that the sentencing 

judge believed that he was required to impose the death 

penalty. If this was his interpretation, Coleman claims 

that this interpretation flies in the face of Supreme Court 

rulings holding that mandatory provisions are impermissible. 

Because this interpretation does not exist on the face of 

the findings and conclusions entered by the sentencing 

judge, Coleman claims that he needs the testimony of the 

sentencing judge to find out if he in fact interpreted the 

statute as mandatory. Coleman is entitled to know if this 

was the interpretation given by the sentencing judge, and 

because the judge is the only source of this information, 

his testimony is imperative. 
Issue JJ claims that the sentencing judge believed he 

was limited by statute to consider only if mitigating factors 

were "sufficiently substantial to call for leniency . . ." 

If this is so, Coleman claims that the sentencing court 

determined that he could not consider other factors which 

might affect the decision. Only by the testimony of the 

sentencing judge, Coleman claims, can it be determined how 

the judge interpreted his obligation in relation to 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. 

Issue KK seems to claim that the sentencing judge 

applied different standards of proof to mitigating factors 

than he did to aggravating factors. Although the claim is 

not at all clear, I assume that his claim is that the statute 

setting forth the aggravating factors has no standard of 

proof at all, while, on the other hand, the statute setting 

forth the mitigating factors, requires that these factors be 

"sufficiently substantial as to call for leniency . . ." The 

findings and conclusions are silent as to the standards of 

proof applied to aggravating factors and mitigating factors, 

and therefore, Coleman claims he is entitled to have the 

sentencing court testify as to the standards it used in 

making these findings. Because the sentencing court did 

not state the standards applied, it is again clear that the 

only source of what standards were applied must come is 

testimony from the sentencing judge. 

Issue 00 s&ems to be similar to Issue KK. Coleman claims 

that he is entitled to know precisely what standard the 

sentencing judge used in finding the existence of aggravating 

factors and the nonexistence of mitigating factors. He also 

-75- 
alleges under this contention that the sentencing court 

may have relied for sentencing, on "evidence, statements, 

testimony, comments, opinions, letters or telephone calls 

from other persons, and not presented at any hearing attended 

by Coleman." Again, the only person who would have this 

knowledge is the sentencing judge. 

If any one of these allegations raised by Coleman is 

not sufficient by itself to have another judge preside over 

Coleman's petition for post-conviction relief, certainly 

the force of all of them combined is undeniable cause for 

the judge to have removed himself, and in the event of his 

refusal, for this Court to order his removal. The judicial 

system is somehow demeaned by not having another judge take 

a look at the case, even though I am fully aware of the 

inherent back-scratching proclivities of the trial bench. 

If it was so important that the sentencing judge preside 

over the petition for post-conviction relief because of 

his familiarity with the case and with the issues, I then 

fail to see how his Court implicitly condones his adoption 

of the State's proposed findings of fact and conclusions 

of law--hook, line and sinker. 

In addition, Coleman's allegations made the testimony 

of the sentencing judge imperative--for the judge was the 

only source of the evidence needed for Coleman to establish 

his claim. But because of the judge's refusal to remove 

himself from the case, the judge effectively prevented Coleman 

from obtaining evidence on these issues. 

By writing the opinion so as not to disclose the issues 

raised, the majority has also denied Coleman the full and 

fair appellate review to which he is entitled. 
PART IV 

THE MAJORITY HAS ERRED IN PERMITTING THE SENTENCING COURT 

TO APPLY DEATH PENALTY STATUTES TO COLEMAN WHICH WERE ENACTED 

AFTER THE DATE OF THE CRIMES 

After our decision in Coleman - 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 application of these death penalty statutes violated the 

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

application of statutes violated certain Montana statutes 

designed especially to prohibit retroactive application of 

statutory provisions. In holding against Coleman, the 

majority stretched the law to the breaking point. 605 

P. 2d iD0~, 1023 - 1026. I dissented on both grounds and 

concluded that the sentencing court and this Court had 

violated the United States and Montana Constitutions, as 

well as existing Montana statutes. 605 P.2d 10fl0, 1023 -.1026. 

Issues Z and AA, again raise these issues and, of 

course, Coleman again lost before the sentencing court and 

before this Court. In the omnibus ruling in Part IV, which 

decided against Coleman on this and 13 other issues by one 

stroke of the pen, the majority has declared this issue to 

be res judicata. I have stated my views once in Coleman - 11, 

and need not repeat them here. I would hold that we have 

violated the United States Constitution and our own constitution 

in retroactively applying the death penalty statutes, as 

well as violating statutes designed to prevent this very 

kind of unfairness. By properly applying the standards set 

out in United States v. Sanders, supra, I would again review 

this question and grant the relief requested. 
PART V 

THE SENTENCING STATUTES UNCONSTITUTIONALLY REQUIRE THE 

DEFENDANT TO PERSUADE THE SENTENCING COURT THAT HIS LIFE 

SHOULD BE SPARED 

By Issue 00, Coleman states that section 46-18-305, 

MCA, unconstitutionally shifts the burden of persuasion to 

him to prove mitigating facts and to persuade the sentencing 

judge that his life should be spared. The relevant part of 

section 46-18-305 provides: 

". . . the court . . . shall impose a sentence 

of death if it finds one or more of the aggravating 

circumstances and finds that there are no mitigating 

circumstances sufficiently substantial to call for 

leniency." 

This statute undoubtedly places the burden on a defendant 

to persuade the sentencing judge that his life should be 

spared. In adopting verbatim the State's proposed findings 

and conclusions on this point, the sentencing court totally 

missed the issue raised. The court ruled: 

"00. Montana's capital sentencing scheme provides 

for the consideration of mitigating circumstances, 

a provision which benefits capital defendants. The 

issue presented involves only sentencing, not guilt 

or innocence, and petitioner's due process claims 

are without merit. See Coleman 11, 605 P.2d at 

1057, cert.den. 100 nt. m, and State v. Watson, 

Ariz., 586 P.2d 1253, 1258 (1978), cert.den. 440 

U.S. 924. A 2752 

The majority, in its omnibus ruling in part V disposed 

of this and 12 other issues on the ground that they are res 

judicata and vague. Issue 00 is neither. 

Cohtrary to.the trial court's ruling that we ruled 

on this issue at 605 P.2d at 1057, in Coleman - 11, and 

contrary to the implication of 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 "from considering any aspect of the defendant's record 

or character as a mitigating factor." This ruling says 

nothing about the shifting of the burden of persuasion. The 

claim cannot be vague where Coleman asserts that section 
46-18-305 unconstitutionally shifts the burden of 

persuasion to him to convince the sentencing court his 

life should be spared. This section unmistakeably shifts 

the burden of persuasion; the question is whether it is 

constitutional to do so. Both the trial court and this 

Court have failed to rule on this issue 

This question was raised in Lockett v. Ohio (1978), 438 

U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973, but the Supreme 

Court vacated the death sentence on other grounds and so 

specifically declined to rule on this issue. 438 U.S. 

609, n. 16, 98 S.Ct. 2967, N. 16, 57 L.Ed.2d 992, n. 16. 

I would hold that the Montana statute is unconstitutional. 

In a capital offense, basic fairness in the sentencing 

process requires that the state have the burden of proving 

the existence of aggravating factors, and the nonexistence 

of mitigating factors. Further, the State should have the 

burden to convince the sentencing court that the defendant's 

life should be taken. 

In all criminal trials, the defendant is presumed 

innocent, and the State must prove each essential fact 

beyond a reasonable doubt. In Re Winship (1970), 397 U.S. 358, 

90 S.Ct. 1068, 25 L.Ed.2d 368. This rule should not be 

permitted to evaporate in the sentencing stages where the 

results of that process may result in a death sentence 

unless the defendant can prove substantial mitigating 

factors and can also convince the sentencing court to spare 

his life. At a sentencing hearing, to keep the burden on the 

state, the presumption must be that the defendant is entitled 

to a punishment less than death and the State must prove all 

those factors necessary to the imposition of the death 

penalty. Those burdens were not met here, for not only did 

the statute impose the burden on Coleman that his life 

-79- 
should be spared, Coleman also had no meaningful opportunity 

to present his case because the sentencing court came to the 

sentencing hearing with an order imposing the death sentence 

ready to be filed at the end of the hearing. Given this 

fact, how can anyone conclude that the sentencing court had 

not already decided to impose the death penalty? 

PART VI 

RIGHT TO JURY TRIAL ON DEATH PENALTY ASPECT OF CRIME 

Issues HH and PP claim that Coleman has a right to a 

jury trial on the death penalty aspects of this case. In 

Issue HH, he claims that the jury should have the final 

right to determine whether he should live or die. By Issue 

PP, he claims that the jury should have the right to determine 

the presence or absence of both aggravating factors and 

mitigating factors. He has raised only one of these issues 

before, Issue PP, and this Court in Coleman - 11, ruled 

against him. 605 P.2d 1015 .t~ 1018. I dissented. 605 ~.2d 

1022. 

By adopting verbatim the findings and conclusions 

prepared and presented by the State, the trial court, of 

course, decided against him. (See, Appendix, Issues HH and 

PP of sentencing judge's order.) In part IV of its omnibus 

ruling disposing of 27 issues, this Court today rules against 

him, without ever discussing the issue as to whether the 

jury should be the ultimate sentencing authority in a 

capital case. 

Contrary to the implied assumption of the majority 

opinion, this issue is not foreclosed. In Lockett v. Ohio, 

supra, Lockett claims that she had a right to a jury trial 

on all issues and that a jury should decide the ultimate 

issue of life or death. The United States Supreme Court, 
however, vacated the death sentence on other grounds, and 

expressly reserved judgment on this issue. 438 u.S. 586, 

98 S.Ct. 2954, 57 L.Ed.2d 973. The court expressly 

noted in footnote 10: "nor do we address her contention 

that the Constitution requires that the death penalty be 

imposed by a jury . . ." 

If the death penalty can be called civilized, the only 

way it can remain so within concepts of contemporary community 

standards, is to require the jury to make that final, fateful 

decision. In lkimphrey v. Cady (1972), 405 U.S. 504, 509, 

92 S.Ct. 1048, 31 L.Ed.2d 394, the United States Supreme 

Court recognized that in determining facts and being involved 

in capital sentencing "the jury serves the critical function 

of introducing into the process a lay judgment, reflecting 

values generally held in a community." Later, in Gregg v. 

Georgia, supra, the Court recognized the need to involve the 

juries in the capital sentencing process as "a significant 

and reliable index of contemporary values." 428 U.S. 1531 

96 s.c~. 2909, 49 L.Ed.2d 859. And eight years earlier, 

the Supreme Court stated that jury involvement in a capital 

case serves "to maintain a link between contemporary values 

and the penalty system--a link without which the determination 

of punishment could hardly reflect 'the evolving standards 

of decency that mark the progress of a maturing society.'" 

Witherspoon v. Illinois (1968), 391 U.S. 510, 520, n. 15, 

88 S.Ct.. 1770, n. 15, 20 L.Ed.2d 776, n. 15. 

In my dissent in Coleman - 11, I briefly set out my views 

as to why a jury should be involved in the sentencing process 

in a capital case, and why a jury should make the final and 

fateful decision whether a defendant should live or die. 605 

P.2d at 1045. My experience since then, in dealing with 
the capital cases that have been and are now before this 

Court for review, has convinced me even more of the correctness of this view. 

In addition to what I stated there, all that I have 

stated concerning the procedural irregularities and errors 

that took place before the trial, during trial, and after 

trial (during the sentencing process) should be considered. 

The final blow to Coleman in his application for postconviction relief, came when the trial .court adopted verbatim 

the proposed findings and conclusions presented by the State 

of Montana, denying any relief to Coleman, and affirming all 

that the trial court had done before. 

Combine all the errors or irregularities taking place 

during the history of this case, and I do not believe too 

many appellate courts could state in good conscience that 

Coleman has been granted due process of law sufficient to 

sustain constitutional attack. Add to that the fact that we 

are dealing with a death penalty case, and I don't think any 

appellate court could state in good conscience that Coleman 

has been granted due process of law. In effect, by refusing 

to discuss or even identify any of the substantive issues 

raised by Coleman in his petition for post-conviction 

relief, the majority here has done nothing more than rubberstamp the findings and conclusions of the trial court and 

those findings and conclusions came straight from the State 

.of Montana's typewriter. 

PART VII 

DEATH BY HANGING AS CONSTITUTING CRUEL AND UNUSUAL PUNISHMENT 

Issue TT claims that death by hanging constitutes cruel 

and unusual punishment under 1972 Mont. Const., Art. 11, 

5 22, and under the Eighth and Fourteenth Amendments to the 

-82- 
United States Constitution. Coleman points out that only 

three states permit death by hanging (Montana, Delaware and 

Washington) and it has been rejected in all other American 

jurisdictions and in all European jurisdictions. (I note 

here that since Coleman filed this claim, the Washington 

State Supreme Court has held that death by hanging constitutes cruel and unusual punishment. State v. Frampton 

(1981) I - Wash. 2d , 627 P.2d 922.) He alleges that 

persons executed by hanging die slowly, usually by strangulation, 

and suffer extreme pain in excess of that inherent in the 

extinguishment of life. He further alleges that one of the 

reasons for this slow, tortuous form of death, is that 

competent hangmen no longer exist in the United States or 

elsewhere, and therefore the hanging cannot be competently 

administered. 

The trial court disposed of this issue by reference to 

the majority opinion in Coleman -- 11, Mont. , 605 

P.2d 1000, 1059, where the majority simply deferred to the 

legislature and stated: "We have no power to change these 

settled provisions of the law, nor can we say that hanging 

is constitutionally cruel or unusual." The majority opinion 

has simply denied this claim in its omnibus ruling in part 

VI of the opinion, disposing of this and 6 other claims. 

The court states that it has no power to change the 

law, but the simple fact is that courts have from the beginning 

of the separation of powers, been changing the law--yes, 

even settled provisions of law. The real reason is simply 

that the majority does not want to change the law in this 

case. But Coleman claims here that he is entitled to an 

evidentiary hearing to establish that death by hanging is in 

fact cruel and unusual. This question cannot be rationally 
decided without first considering the scientific or expert 

evidence that is now available. The Washington Supreme 

Court did so, and quoted some graphic testimony and statements as to the barbarity of hanging as the method of 

inflicting capital punishment. 627 P.2d 934 to 936. 

The United States Supreme Court has repeatedly stated 

that the Eight Amendment--prohibition against cruel or 

unusual punishment--"must draw its meaning from the evolving 

standards of decency that mark the progress of a maturing 

society." Trop v, Dulles (1958), 356 U.S. 86, 78 S.Ct. 

590, 2 L.Ed.2d 630. Using this standard ". . . what might 

have been common and not thought to be cruel or unusual in 

1789 might be completely obnoxious to society in the United 

States today." Owens-El v. Robinson (1978), 442 F.Supp. 

1368, at 1375. The legislature certainly does not have the 

right to be the last word on the constitutionality of its 

own legislation, but that is precisely the effect of the 

court's opinion in Coleman - 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 legislation on 

a throne of invincibility from constitutional attack. 

I would grant Coleman an evidentiary hearing on this 

issue. Perhaps the evidence would be revealing to all, 

perhaps even to members of the legislature. 

In addition to what I have stated hereq'b 

-- 

/J parts 11, I11 and VIII of this 

-- bc, CC~)S;~,FI-~~. 

dissent should The combination of 
these 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 judiciary of this state is incapable of fairly 

and rationally administering a death penalty law. Only by 

interposing a jury between the defendant and the judiciary 

can there be any assurance of decisions arrived at only 

after fair consideration of all the facts. 

PART VIII 

DENIAL OF MEANINGFUL APPELLATE REVIEW 

Issue QQ alleges that in our first review of the death 

sentence (Coleman - 11) 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 

administer and enforce a statutory scheme of capital punishment." 605 P.2d at 1045. As this, and two other death 

penalty cases continue to tortuously wind their way through 

this state's court system, I am more convinced of the correctness 

of this statement. The sentencing courts and this Court 

just seem to have approached these cases with their eyes 

closed. 

Similar views were stated by Justice Marshall in a concurring opinion in the case of Lockett v. Ohio, supra, where 

he expressed disgust with the way the trial courts and 

appellate courts of the various states were administering 

their capital punishment statutes in an apparent attempt to 

meet minimum constitutional standards. He stated: 

"The opinions announcing the judgment of the 

Court in Gregg v. Georgia, 428 U.S. at 188-198 

(opinion of Stewart, Powell and Stevens, J. J.) aurak-6~. Texas, 428 U.S. 262, 271-276 (1976) 

(opinlon of Stewart, Powell, and Stevens J. J.), 
and Profitt v. Florida, 428 U.S. 242, 259-260 

(1976) (opinion of Stewart, Powell, and Stevens, 

J. J.), upheld the constitutionality of the death 

penalty, in the belief that a system providing 

sufficient guidance for the sentencing decision 

maker and adequate appellate review would assure 

'rationality,' 'consistency,' and 'proportionality' 

in the imposition of the death sentence. Gregg 

v. Georgia, supra, at 276. That an Ohio trial court 

could impose the death penalty on petitioner under 

these facts, and that the Ohio Supreme Court on 

review could sustain it, cast strong doubt on the 

plurality's premise that appellate review in 

state systems is sufficient to avoid the wrongful 

and unfair imposition of this irrevocable penalty." 

438 U.S. at 621, concurring opinion. 

In his petition for post-conviction relief, Coleman 

outlined how this Court had failed to adhere to the statutes 

requiring mandatory appellate review. In disposing of this 

contention, the trial court simply adopted the one sentence 

conclusion proposed by the State: "QQ. The review provided 

petitioner by the Montana Supreme Court was carefully outlined 

and applied in Coleman - 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 12 other issues, 

by the bland statement that the trial court properly dismissed this claim "as res judicata because 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 Coleman meaningful 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. He 
has, however, throughout his petition, raised other issues 

concerning our review, and I feel it is appropriate to 

consider these issues in this portion of my dissent. I will 

first discuss the issues raised in Issue QQ. 

Coleman first claims, and correctly so, that this Court 

has never promulgated procedural rules to implement the 

mandatory requirements for determining whether a sentence of 

death is disproportionate to the sentence imposed in similar 

cases. Second, he claims, and correctly so, that our review 

contemplated by statute and mandated by Gregg v. Georgia 

(1976), 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 894, has 

s59 

failed to consider other cases where a defendant has been 

convicted of deliberate homicide or aggravating kidnapping. 

This Court is specifically required to grant automatic 

proportional review to all death sentence, and to promulgate 

rules under which the review is conducted. In response to 

decisions of the United States Supreme Court, the legislature 

enacted section 46-18-310, MCA, and subsection 3 specifically 

states that the Montana Supreme Court shall determine: 

"Whether the sentence of death is excessive or 

disproportionate to the penalty imposed in 

similar cases, considering both the crime and 

the defendant. The court shall include in its 

decision a reference to those similar cases it 

took into consideration." 

To facilitate this review, section 46-18-308, MCA, 

states in part that the automatic review mandated by 

statute ". . . shall be --- heard in accordance with -- - rules 

promulgated -- by the Supreme Court." (Emphasis added.) 

Coleman rightly claims that this Court has never 

promulgated the rules to provide method and procedure under 

which death sentence are reviewed for proportionality. 

He further claims, and this cannot be denied, that he has 

asked this Court to promulgate the rules. The simple fact 

is that even to this date, this Court has not yet promulgated 
those rules. HOW, then, is Coleman to get the review to 

which he is entitled? How can this Court sanction the imposition 

of the death penalty whenit has failed to first comply with 

the statutory requirement that we adopt rules setting forth 

the method by which proportional review is conducted? Obviously, 

a federal court will have to answer this question. 

A second, and even more serious clai~because it involves 

the actual proportional review conducted by this Court, is 

that we failed to comply with the proportional review 

mandated by Gregg v. Georgia, supra. Gregg requires that on 

mandatory review the state's highest appellate court, that 

the court consider "whether the sentence -- of death - is 

excessive - or disproportionate -- to the penalty imposed - in 

Gimilar cases, considering -- both the crime -- and the defendant." 

This language means that our system of review must allow 

access to and a consideration of all reasonably recent cases 

in this state where a defendant has been convicted of either 

deliberate homicide or aggravated kidnapping. 

Our duty is to review each of these cases and consider 

the nature of the crime involved and the individual characteristics of the persons who committed the crimes. We must 

then compare those situations with the crimes committed here 

and with the personal characteristics of the person involved 

here. This Court has wholly failed to provide proportional 

review as mandated by Gregg, and I therefore fail to see how 

this Court can sanction the imposition of the death penalty. 

I would hold, therefore that on Issue QQ alone, Coleman 

is entitled to again come before this Court for proportional 

review--after this Court has promulgated the rules required 

by statute. 
I next consider our review of other issues raised by 

Coleman concerning the sentencing court's findings and 

conclusions, and our failure to review these issues. By 

either overlooking or cavalierly disposing of the issues 

without discussion or even identification, we have further 

denied meaningful appellate review to Coleman. I repeat 

that we are statutorily required to review all death penalty 

sentences to see that there has been full statutory compliance 

in the sentencing process. We are further required to 

review all of the sentencing court's findings and conclusions, 

even if no issue concerning them has been raised by the 

defendant. Section 46-18-310, MCA. 

In Issue BB and Issue DD, Coleman alleges failure of 

the sentencing court and this Court to give consideration to 

the fact that he had no criminal background--he had not even 

been charged or arrested for a misdemeanor. Issue BB 

claims that the sentencing court should have ruled as a 

matter of law that Coleman had no significant history of 

criminal conduct. Issue DD claims that the sentencing court 

improperly found that, on the same day as the offenses 

charged here, Coleman and Nank had burglarized a house in 

Roundup, Montana, and therefore that Coleman was not really 

entitled to a designation of having no significant criminal 

conduct. Coleman further claims that the trial court based 

this burglary finding on Nank's uncorroborated trial testimony. 

It was error to base this finding on Nank's uncorroborated 

testimony. And it was also error because Coleman had no 

opportunity to cross-examine Nank at the sentencing hearing; 

nor did he have any opportunity to offer rebuttal evidence 

at a sentencing hearing. This finding was first revealed 

while the trial court was reading the death sentence. 
Despite these substantial claims, the majority here has 

responded only in silence. I dissented in Coleman - I1 to the 

sentencing court's findings and to the methods by which it 

made its decisions. 605 P.2d 1035-1036. The undeniable 

fact is that the sentencing court used Nank's trial testimony 

as the basis to find that Coleman had committed a burglary 

on July 4, 1974, and therefore that Coleman was not entitled 

to full credit for having no significant history of criminal 

conduct. In fact, I concluded that by its findings and 

conclusions, the sentencing court had stretched the law to 

the breaking point in order to impose the death penalty. 

605 P.2d 1039-1040, Our failure to grant meaningful appellate 

review in Coleman - I1 further amplified the failure to follow 

the statutory guidelines. 

Based on the record before the sentencing court--Coleman 

had never before been arrested or charged for any kind of 

offense-I believe that compliance with section 

MCA, requires that the sentencing court find as a matter of 

law that Coleman had "no significant history of criminal 

conduct." The sentencing court's reliance on Nank's 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, convinces me that the sentencing court had sealed 

Coleman's fate with the hangman long before the sentencing 

hearing. No appellate court should tolerate the procedures 

used by the trial court in imposing the death penalty, for 

they constitute a flagrant denial of due process of law. 

This predetermination to impose the death penalty is 

further illustrated by the sentencing court's failure to 

consider Coleman's particularized circumstances, a requirement mandated by Gregg v. Georgia, supra, and also required 
by statute. Section 46-18-302, MCA. In my dissent in 

Coleman 11, I emphasized that the findings and conclusions 

used as the foundation for the death sentence, are barren of 

any reference to Coleman's particularized background. 605 

P.2d 1036-1038. How can we, as an appellate court, know 

that Coleman's particularized background was considered, and 

what weight was given to it, unless both are mentioned in 

the findings and conclusions? This is yet another reason 

why the sentencing procedures utterly failed to comply with 

the spirit of the mandate contained in Gregg v. Georgia. 

Issue Y again claims that Coleman was denied due process 

of law when the sentencing court came to the sentencing hearing 

with the judgment of death already prepared and ready for filing 

at the end of the hearing. Section 46-18-310 (1) , MCA requires 

that this Court review any death sentences to determine if it 

was "imposed under the influence of passion, prejudice, or 

other arbitrary factor." Proper application of this statute 

requires that this Court set aside the death penalty because 

of the ugly implication inherent in the sentencing judge coming 

to the sentencing hearing armed with his death judgment. 

I dissented to the judge's conduct in Coleman - 11, 605 P.2d 

lOOQ IQ22to 1051, and I do so again. It is beyond my comprehension 

that this Court can uphold this conduct. But recognizing that 

this Court is insensitive to this issue, the combination of 

all the factors set forth in my dissent, should require the 

death penalty to be set aside as violating the statutory guidelines of section 46-18-302, snpra. 

Our failure to give Coleman meaningful appellate review 

in Coleman - I1 is only compounded by our failure today to undo 

the injustice of that decision. This is Coleman's last chance 

to obtain review within the state system. But this Court has 

not even attempted to fairly consider the issues raised. Mandatory 
appellate review of death sentences, required by Gregg v. 

Georgia, and rsept. by statute, has failed abysmally in this 

case. 

The words of Justice Marshall in Lockett v. Ohio, supra, 

are again appropriate to end this discussion of our denial 

of meaningful review to Coleman, for they express exactly 

what has happened to each of these death cases that has come 

before this Court: 

". . . That an Ohio trial court could impose 

the death penalty on petitioner under these 

facts, and that the Ohio Supreme Court on 

review could sustain it, cast strong doubt 

on the plurality's premise that appellate 

review in state systems is sufficient to avoid 

the wrongful and unfair imposition of this 

irrevocable penalty." (438 U.S. at 621, 

concurring opinion. 

Substitute the word Montana for the word Ohio, and 

Justice Marshall's comments fit the Montana situation like 

a glove fits a hand. The opinion written by this Court today 

has denied Coleman due process of law both on questions arising 

from his conviction and on application of the death penalty. 

CONCLUSION 

The majority opinion has one salutary aspect. It has 

finally freed Coleman from the yoke of the state court system 

and permits him to pursue his claims in federal court. A 

federal court cannot help but be more receptive to the important 

questions that Coleman has raised but this Court has turned 

down by wholesale and summary disposition. I cannot conceive 

that this case will leave a federal court with the abiding 

conviction that justice was done. 1"1 
IN THE DISTRICT COURT OF THE SIXTEENTH JUDICIAL DISTRICT 

OF THE STATE OF MONTANA, IN AND 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 this hearing, petitioner filed a petition for postconviction 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 to its consideration of the 

motion to recuse, this court granted a motion submitted by 

29 !I respondent and ordered petitioner to submit an amended 

30 11 petition within ten (10) days "raising all constitutional 

grounds for relief ... of which he has knowledge at this 

time and to so allege in his amended petition." The motion 
to recuse was taken under advisement by this court pending 

the submission of a response by respondent and a reply by 

petitioner. The court denied the motion to recuse on 

November 21, 1980. * Vn3 A3c 

Petitioner filed his amended petition for postconviction relief on December 12, 1980, this time raising 52 

separate claims for relief. The parties thereafter entered 

a stipulation to the effect that respondent would file its 

motion to dismiss petitioner's amended petition on December 

22, 1980. Petitioner would file his answering brief on or 

before January 5, 1981, and respondent would reply by 

January 12, 1981. Finally, a hearing on the motion to 

dismiss was scheduled for January 15, 1981. 

The motion to dismiss came on regularly for hearing on 

the 15th day of January, 1981, with petitioner, Dewey Eugene 

Coleman, appearing in person and through his counsel, Charles 

F. "Timer" Moses, and the State'of Montana, appearing 

through John H. Maynard, Assistant Attorney General, and 

John S. Forsythe, Rosebud County Attorney, whereupon oral 

argument was presented to the Court. Petitioner and 

respondent were directed to submit proposed findings and 

conclusions to the court by February 1, 1981, at which time 

the matter would be deemed submitted, The court having duly 

considered the matters submitted to it, 

NOW THEREFORE, IT IS ORDERED as follows: 

Respondent's MOTION TO DISMISS petitioner's PETITION 

FOR POSTCONVICTION RELIEF should be, and hereby is, granted. 

CONCLUSIONS 
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Star 

Printing GJ. 

MlIes City. 

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 

IN MONTANA. 3G9 

The necessity of finality in criminal proceedings, 

especially those involving the death penalty, coupled with 

the automatic and comprehensive review procedures in death 

penalty cases provided for in Montana statutes, establish 

that the Montana legislature did not intend that the postconviction procedure act afford defendants convicted of 

capital offenses a "second appeal." Title 46, Chapter 18, 

part 3, M.C: A. clearly contemplates an automatic, comprehensive, and final adjudication of issues presented in death 

penalty cases. The Montana Supreme Court recognized this 

fact in petitioner's case when it stated that "...completion 

of this review will mark the end of state action upon this 

cause. .." State v. Coleman, Mont., 605 P.2d 1000, 1006 

(1979), cert. denied, 100 S.Ct. 2952 (1980). 

To allow petitioner to seek postconviction relief is, 

in effect, to provide petitioner with two appeals, a result 

not contemplated by the legislature or the Montana Supreme 

Court, States are free to devise their own systems of 

review in criminal cases. Carter v. Illinois, 329 U.S. 173, 

175 (1946). Repetitious appeals in death panalty cases are 

not constitutionally required and accomplish little more 

than to frustrate public confidence in the entire criminal 

justice system. 

11. THE MOTION TO DISMISS IS FURTHER GRANTED AS TO 27 OF 

PETITIONER'S CLAIMS BECAUSE THEY ARE BARRED BY RES 

JUDICATA. 

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The following 27 issues have been previously considered 

and decided by the Montana Supreme Court and petitioner has 

alleged no new facts or law with respect to these issues 

that might affect the result reached in his 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 claims has been considered by the Montana 

Supreme Court in State v. Coleman, Mont,, 579 P.2d 732 

(1978), hereafter referred to as Coleman 2, or in State v. 

Coleman, Mont., 605 P.2d 1000 (1979), cert. denied 100 S.Ct. 

2952 (1980), hereafter referred to as Coleman G. The claims 

were previously decided against petitioner in prior appeals 

at the £01-lowing places. 

F. Petitioner's challenge to the jury panel was 

rejected in Coleman I, 579 P.2d at 746-7, cert. denied 100 

G. Petitioner's claim regarding the admission into 

evidence of State's exhibit No. 20 was rejected in Coleman 

- I, 579 P.2d at 751. Furthermore, the claim involves a 

question of state law and does not amount to a constitutional deprivation, 

H. Petitioner's claim in;olving his challenge to 

Nank's competency as a witness was addressed in Coleman 2, 

579 P.2d at 748. 

I. Petitioner's claim regarding Nank's testimony 

concerning his conversations with law enforcement officials 

I 

I was rejected in Coleman p, 579 P.2d at 749. 

I 

J. Petitioner's claim regarding restricted crossexamination was rejected in Coleman 1, 579 P.2d at 747. 

-4- 
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L. Pettioner's claim concerning the admission into 

evidence of Exhibit No. 60 was rejected in Coleman 2, 

579 P.2d at 752. ?47'1 

M. Petitioner's claim in connection with 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 the water in the Yellowstone River at 

the scene of the crime was resolved against him in Coleman 

-f 

I 579 P.2d at 753. 

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 Instruction No. 14 was determined to have been properly refused in Coleman I-, 579 P.2d 

at 750. 

S. Petitioner's claim involving Instruction No. 16 was 

rejected by the Montana Supreme Court in Coleman I, 579 

P2d at 750. 

T. Petitioner's claim that his offered Instruction 

No. 35A should have -been given was considered and rejected 

in Coleman &, 579 P.2d at 750-1. 

V. Petitioner's claim regarding the denial of his 

motion for new trial on the grounds of newly discovered 

evidence was 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 

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* 

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T 
petitioner committed the crime for which he received the 

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

Y. Petitioner's claim regarding his opportunity to 

present argument concerning his sentence following remand 

after Coleman L was rejected by the Court for the reasons 

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

2. Petitioner's claim regarding "retroactive" application of the 1977 death penalty amendments was considered 

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

AA, Petitioner's claim that his sentence violates 

constitutional provision against ex post fact laws was 

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

Sect. 2952. 

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

finding that he had participated in a burglary the same 

day he committed these other crimes was considered in Coleman 

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

GG. Petitioner's claim regarding the exclusion of 

two jurors was rejected in Coleman 2, 579 P.2d at 741. 

HH. Petitioner's claim with respect to jury participation in the sentencing procedure was rejected by the 

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

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

statutes in effect impose a mandatory death penalty was 

rejected in Coleman 11, 605 P.2d at 1016. 

JJ. Montana's scheme for the consideration of mitigating circumstances was found to pass constitutional muster 
in Coleman G, 605 P.2d at 1016-7 37'3 

KK. Petitioner's further contention regarding "standards of proof" was rejected in Coleman =, 605 P. 2d at 1057. 

LL. Petitioner's double jeopardy claim based on his 

convictions for deliberate homicide and aggravated kidnapping are without merit. Coleman IJ, 605 P.2d at 1017, 

'1 

I 

I 

2 

3 

4 

cert. denied 100 S.Ct. 2952. 

MM. Petitioner's double jeopardy claim that he cannot 

7 

8 

1 

18 

11 

12 

13 

14 

:5 

16 

17 

IS 

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20 

21 

22 

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be convicted on both charges was rejected. Coleman s, 605 

P.2d at 1017. 

1 

NN. Petitioner's claim regarding sentence review by 

the Sentence Review Division of the Montana Supreme Court 

25 

26 

27 

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31 

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Star 

Printing Co. 

VAes City, 

Man:. 

has been rejected by the Montana Supreme Court and the 

United States Supreme Court. Cert. denied 101 S.Ct. 255 

1 

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PP. Petitioner's claim with respect to the requirenent 

I 

of a jury trial on aggravating facts and mitigating circumstances was rejected in Coleman 11, 605 P.2d at 1017. See, 

 rake 'vs Zant, U. S., 49 U.S.L.W. 3371 (1980) (White, J., 

dissenting from denial of certiorari). 

Issues raised in the prior review of petitioner's 

conviction which have been considered on their merits and 

determined against him are res judicata and he is not 

entitled to have those issues redetermined, In re Quigq, 

168 Mont. 512, 544 P.2d 441 (1976), cert. denied 425 U.S. 

994 (1976); Orricer v. State 85 S.D. 293, 181 N.W.2d 461 

(1970); Williams v. United States, 426 F.2d 253 (9th Cir. 

1970), cert. denied 400 U. S. 881. Prior determination of an 
issue constitutes a final adjudication of that issue. State 

v. Coleman, Mont., 605 P.2d 1000, 1002. As a result, the 

petition for postconviction relief is dismissed with respect 

to these claims. 

111. THE MOTION TO DISMISS IS FURTHER GWJTED AS TO 13 OF 

PETITIONER'S CLAIMS BECAUSE, WHILE TZEY INCLUDE VAGUE 

NEW ALLEGATIONS, THEY ARE TOO VAGUE, TO STATE NEW 

CLAIMS, OR ARE UbJSUPPORTED BY AUX9ORIT' AND THEREFORE 

BARRED BY RES JUDICATA. 

The following 13 issues have been previously considered 

and decided by the Montana Supreme Court. 

B, E, K, Q, U, X, CC, EE, FF, 00, QQ, RR, andXX 

The validity of the prior determination of the Montana 

Supre~e Court with respect to these issues is not called 

into question by petitioner's additional allegations. 

B. petitioner's claim alleging discrimination in the 

plea bargain-ing process on the basis of race was rejected by 

the Montana Supreme Court in Coleman - I, 579 P.2d at 744-5. 

E. Petitioner's claim regarding the recovery of the 

rope was addressed by the Montana Supreme Court in Coleman I 

579 P.2d at 744. 

K. Petitioner's claim regarding the testimony of an 

F.B. I. agent and of sheriff akin was addressed in Coleman 

- 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's claim that the verdict form as to 

Count 11, aggravated kidnapping, was erroneously given was 

considered in Co'leman - I, 579 P.2d at 751. Moreover, the jury 

also convicted petitioner of deliberate homicide. 
X. Petitioner's general claim regarding the review 

afforded his case in Coleman - I is vague and meritless on the 

basis of the opinion issued in that case. No specific error 

is alleged as part of this claim. 37'5 

CC. petitionerf s claim regarding the district court's 

consideration of mitigating factors in general was reviewed 

in Coleman - 11, 605 P.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 scheme were found to apply to petitioner in their 

entirety in Coleman - 11. section 46-18-302, MCA, requires 

that evidence admitted at trial be considered for sentencing 

purposes. 

FF. Petitioner's claim that the constitution requires 

a finding of a specific intent to kill before a capital 

sentence may be imposed is unsupportable. Moreoever, this 

court found such an intent when considering the appropriateness of the death penalty at Finding of Fact No. 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, and petitioner'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 440 U.S. 924. 

QQ. The review provided petitioner by the Montana 

Supreme Court was carefully outlined and applied in Coleman 
6 *'T7'6 

RR. The imposition oi the death penalty in petitioner's case has been presented to and approved by the 

Montana Supreme Court. That determination is binding on 

this court. Rs noted in Spinkellink v. - Wainwright, 578 F.2d 

cert . denied, U.S. the 

arbitrariness and capriciousness condemned in Furman are 

conclusively removed from a death penalty proceeding if the . 

state adheres to its properly drawn death penalty statute. 

YZ . Th.e aggravating and mitigating circumstances 

enumerated in Montana s capital sentencing scheme are 

similar to those approved by the United 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 at 1057. 

IV. THE MOTION TO DISMISS IS FURTHER GRANTED AS TO 7 OF THE 

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 following claims include new allegations of fact or 

21 I/ citation. to new 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 found beyond a reasonable 

29 doubt that petitioner had the purpose, in restraining Peggy I I 

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 standard of 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 

pertinent part: 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 then both men went into the water and held her 

under until she expired. 

C. Petitioner's claim regarding the court's amendment 

of the information was considered in Coleman 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 in petitioner's case was found to be one form and 

not substance; (2) only substantive amendments without leave 

- of court a affected by Cardwell; and (3) the Cardwell 

ruling is not 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 

police misconduct is not served at the post-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 in X_olea_n_ I, 579 P.2d at - 
748. Petitioner's citation of - Jackson v. Virqinia, U.S., 99 

S.Ct. 2781 (1979), and Pilon v. Bordenkinder, U.S., 100 ,. 7 A- 

/ * 

S.Ct. ISS (1980), do not establish a standard of review for 

corroborative evidence and are therefore inapposite. :{'lrS 

RB. Petitioner's claim with respect to the district 

court's consideration of his prior criminal history as a 

mitigating circumstance was considered in Coleman - 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 execution was rejected in 

Coleman - - 11, 605 P.2d at 1058-9. ~stablishing a 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 that his death sentence for the 

crime of aggravated kidnapping is disproportionate to the 

offense for which it was imposed is without merit. Coleman 

- 11, 605 P.2d at 1057. The death penalty imposed in this 

case was not the result of kidnapping only, but rather for 

the offense of aggravated kidnapping resulting in the death 

of the victim. section 46-18-303(7), MCA. 

V. THE MOTION TO DISMISS IS F'URTHER GRANTED AS TO 5 OF 

PETITIONER'S CLAIMS 'BECAUSE HE FAILED TO RAISE THEM IN 

HIS DIRECT APPEAL AND BECAUSE THEY ARE WITHOUT MERIT. 

The final five claims that have been raised in petitioner's petition have been raised for the first time in 

this proceeding. They are: 

SS, UU, WW, W, zz. 

Petitioner has waived his right to present these issues at 

this time by failing to raise them in the direct appeal of 

his conviction. People v. Jenkins, 11 Ill. App. 3d 690, 297 

N.E.2d 279 (1973); Andrews v. Morris, Utah, 607 P-2d 816 
(1980),cert. - denied 101 S.Ct. 254 (1980). Beyond that the 

claims are without merit as a matter 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 is without merit. - See Gregg v. Georgia, 428 U.S. 

153, 173 (1976); State v. McKenzie, 171 Mont. 278, 557 P.2d 

1023, 1033 (1976); Andrews v. Morris, Utah, 607 P.2d at 824 

(1980); and State v. Fitzpatrick, Further Order and Findings 

and ~onclusion, p. 18-19 (January 7, 1981). 

UU. petitioner contends that he was denied the right 

to a ufianimous jury verdict. But when the instructions 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 in that the federal constitution does not guarantee the right to a unanimous 

verdict in state felony jury trials. Apodaca v. Oregon, 406 

U.S. 404 (1972); Johnson v. Louisiana, 406 U.S. 356 (1972). 

W. petitioner's claim that the Itentire recordt1 was 

not certified to the Supreme Court because some unspecified 

proceeding were not transcribed is without merit. section 

46-18-309, MCA, recognizes the distinction between the 

ltrecordw certified by the- sentencing court and the "transcriptw prepared by the court reporter. It is the duty of 

the appellant to select portions of the lftranscripttl to be 

submitted in all criminal appeals. Section 46-20-302. 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 in the United States. The allegations he 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 in Furman v. Georqia, 408 U. S. 238 (1972), 

3 

4 

5 

6 

7 

8 

9 

10 

1 J 

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 

the basis 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. Petitioner has failed in his 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 

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3 1 I 

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S:ar 

Hiding Cc. 

mas City, 

Mm:. I 

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