NO. 82-198 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1983 

DEWEY E. COLEMAN, 

Petitioner, 

VS. 

HENRY RISLEY, as Warden of 

Montana State Prison et al., 

Respondent. 

ORIGINAL PROCEEDING: 

Counsel of Record: 

For Petitioner: 

Moses Law Firm, Billings, Montana 

Charles F. Moses argued, Billings, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, argued, Helena, 

Montana 

John Maynard, Assistant Attorney General, argued, 

Helena, Montana 

John S. Forsythe, County Attorney, argued, Forsyth, 

Montana 

Submitted: December 1, 1982 

Decided: March 25, 1983 

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

Petitioner Dewey Coleman brings a petition for a Writ of 

Habeas Corpus as an original proceeding, asking this Court to 

vacate his death sentence and remand his cause for 

resentencing as to the aggravated kidnapping conviction by a 

district court judge other than the judge who has twice 

sentenced him to death. 

The petition is denied. 

The sole issue before this Court is whether, because the 

sentencing judge possessed information unavailable to Coleman 

and his attorney, Coleman was denied his rights to a fair 

tribunal, to confront witnesses, and to have the effective 

assistance of counsel, as guaranteed under both the United 

States Constitution and the Montana Constitution. 

Coleman and Robert D. Nank were traveling together on 

July 4, 1974, from Roundup toward Forsyth, Montana, on U.S. 

Highway #12 when their motorcycle ran out of gas. At 

approximately the same time, Peggy Lee Harstad disappeared 

while driving her car on the same highway. On August 29, 

1974, her body was discovered just west of Forsyth on the 

north side of the Yellowstone River. 

On October 24, 1974, motions for leave to file 

Informations in the District Court, Rosebud County, were 

requested and granted. The Informations charged each of the 

men with three counts: Count I, deliberate homicide; Count 

11, aggravated kidnapping; and Count 111, sexual intercourse 

without consent, inflicting bodily injury. Both men pleaded 

not guilty to all counts. 

On May 7, 1975, the State entered into a written plea 

bargain agreement with Nank. Under the terms of the 

agreement, Nank agreed to plead guilty to deliberate homicide 

and to solicitation to commit sexual intercourse without 
consent, and further agreed to testify at Coleman's trial in 

return for the dismissal of the aggravated kidnapping charge. 

On May 19, 1975, Coleman's court appointed counsel made 

an oral offer of a conditional plea of guilty in return for 

dismissal of the aggravated kidnapping charge. On May 23, 

1975, a written offer of a conditional plea of guilty was 

presented to the court. In this offer, Coleman insisted on 

maintaining his innocence. The State refused to accept a 

guilty plea with Coleman maintaining his innocence. 

On July 2, 1975, a hearing was held on a motion to allow 

counsel for Coleman to copy Nank's medical records. Defense 

counsel explained that Coleman was not present because he was 

in Billings for a psychiatric evaluation. After a discussion 

regarding the motion, the State inquired as to the purpose of 

the mental examination. Defense counsel stated that the 

purpose of the psychiatric examination was to place Coleman 

under sodium amytal to see if his recollection and memory 

could be refreshed. Defense counsel then stated: 

"That investigation has been conducted and I 

believe on the basis of that examination, that my 

client will want to enter a plea of guilty." 

Defense counsel further stated: 

"Dr. Harr has called me already this morning, and 

from the information I have received, it appears 

that my client's memory has been refreshed and 

there was participation on his part in the crime." 

The transcript shows that the court understood that defense 

counsel was making a proposition similar to that which Mr. 

Nank had made. Defense counsel pointed out that Coleman then 

would be subject to a possible maximum penalty of 100 years 

on the deliberate homicide and 40 years on the sexual 

assault, with the count of aggravated kidnapping to be 

dismissed. Discussion continued between the court and all of 

the counsel with regard to Coleman's willingness to testify. 

The State expressed concern that Coleman might be testifying 
in order to avoid the death penalty even if he might not 

actually remember the crime. No plea bargain agreement was 

reached during this hearing on July 2 and the hearing was 

continued to the following day. 

At the continued hearing on July 3, 1975, Coleman was 

present, as were counsel for the parties. Defense counsel 

then stated that "we would make an offer to plead guilty 

under the same terms and conditions as had been accepted by 

the State with regard to Mr. Nank." The key element of that 

offer was that it would require a dismissal of the charge of 

aggravated kidnapping with its potential death penalty. 

Defense counsel also indicated that Mr. Coleman would be 

willing to take the stand and make a full disclosure of all 

facts. Defense counsel also pointed out that he had 

explained to Mr. Coleman that he was waiving his rights 

against self-incrimination, the right to confront witnesses, 

the right to require the State to prove every fact beyond a 

reasonable doubt and his right to testify in his own defense. 

Mr. Coleman answered, "Yes", when asked if he would be 

willing to reconduct the sodium amytal examination in the 

presence of the court and the prosecuting attorneys. 

Following an extensive discussion between counsel and the 

court, the State rejected the plea bargain offer. The State 

pointed out that there were many questions involved in 

accepting such a plea in view of the past statements and 

bargaining between the parties, and because the prosecution 

felt that at least one of the defendants should go to trial. 

After rejection of the plea bargain offer, defense 

counsel stated: 

" . . . if I have to continue in this case and if 

we have to try this case, then there is no way in 

the world I can state to the jury that he is 

innocent of deliberate homicide and that he's 

innocent of sexual intercourse without consent, and 

that he will have to agree that he will testify to 

his involvement in those acts and activities and he 
will have to admit them, and that we will remove 

them as issues in the case. That is the only thing 

I can do. I have told him this position and I have 

explained it to him as best I can, and I have 

indicated to him that if he feels that he's 

dissatisfied with this, or does not feel that it's 

a proper position, then of course he can indicate 

it to the Court. Now that is one problem that I 

have presented and the only resolution I can make 

of that, is to do it in that fashion. Now I have 

explained it the same way I have explained it to 

Mr. Coleman. He realizes, I presume, the chance 

that the jury can still find him guilty of 

aggravated kidnapping under all of the 

circumstances. I have told him my personal 

feelings on this. Now -- however, I want the 

record to be clear that I feel that because of my 

moral and professional and ethical decisions, that 

I should be relieved and even though I am -- I may 

be granted the right by my client and by the Court 

to proceed with an admission of deliberate homicide 

and sexual assault without consent, because some 

other attorney may have different views of how to 

proceed. " 

"The only thing that I can do is attack fully the 

question of whether they can establish aggravated 

kidnapping, but that becomes a tremendous problem, 

because I have to start off with the jury by saying 

my man committed deliberate homicide and that my 

man committed sexual intercourse, but I deny that 

he committed aggravated kidnapping. Now personally 

I think that Nank's statements in his plea to the 

court admits that he committed aggravated 

kidnapping. I mean they drove there, took this 

girl off by force. They drove her around, and 

there is not one shred of evidence that Coleman was 

the perpetrator, because there can't be. There 

were only three people and one is dead, so there is 

nothing. It becomes a question of Nank against my 

man, Mr. Coleman." 

THE COURT: "Right now you're well representing the 

defendant just by that type of argument." 

As indicated in the above quotation, defense counsel at no 

time admitted that Mr. Coleman was guilty of the crime of 

aggravated kidnapping. 

The District Court did not relieve defense counsel of 

his representation of Mr. Coleman. Upon petition, this Court 

did relieve him of such representation. Approximately two 

weeks following the hearing, representation of Mr. Coleman 

was taken over by his present counsel, who represented him at 

trial and on the previous appeals. 
The trial commenced on October 23, 1975, in Yellowstone 

County and ended on November 14, 1975. A jury returned 

guilty verdicts on all three counts. On November 21, 1975, 

the court sentenced Coleman to 100 years on Count I 

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

(aggravated kidnapping); and to 40 years on Count I11 (sexual 

intercourse without consent, inflicting bodily injury). 

Coleman was resentenced by the same District Judge on 

July 10, 1978, following the reversal of his sentences on 

Counts I1 and I11 by this Court in State v. Coleman (1978), 

177 Mont. 1, 579 P.2d 732. Coleman was resentenced to death 

by hanging on Count I1 (aggravated kidnapping) and to 20 

years on Count I11 (sexual intercourse without consent). 

The State moved for dismissal of the present Habeas 

Corpus petition because it does not contain grounds which 

could not reasonably have been raised in the original or 

amended petition. Coleman contends the issue could not have 

been raised previously because the transcript of the July 2 

and 3 hearings was not available until February 1982. The 

State counters that the responsibility of obtaining the 

entire transcripts rests with the defendant and that he 

waived further grounds for relief by not raising them 

previously. 

Although this Court does not approve of the dragging out 

of the appellate process in the instant case, we are aware 

that "the death penalty is 'qualitative(1y) differen(t1 ' from 

other punishments, Woodson v. North Carolina, 428 U.S. 280, 

305, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976), and is 

'unique in its severity and irrevocability.' Greqg v. 

Georgia, 428 U.S. 153, 187, 96 S.Ct. 2909, 2931, 49 L.Ed.2d 

859 (1976). . ." Sher v. Stoughton (N.D. New York 1981), 516 

F.Supp 534, 547. This Court realizes that counsel for 

Coleman did not obtain the July 2 and 3 transcript until 
February 1982. We are, however, concerned that counsel long 

ago should have known what occurred at the July 2 and 3 

hearings and that the transcripts were missing. But because 

the situation is unique, and because this is a capital case, 

this Court will exercise its discretion and review the merits 

of the petition despite procedural irregularities. 

Coleman bases his argument on the holdings in three 

cases which he contends are directly on point. He maintains 

that these cases should control, and should require that the 

death sentence imposed be vacated, and new resentencing 

proceedings be had thereon. 

The first of these cases is Lowery v. Cardwell (9th Cir. 

1978), 575 F.2d 727, a habeas corpus action brought by a 

state prisoner under a homicide conviction. In Lowery, 

defendant pleaded not guilty and a trial wa.s held without a 

jury. During questioning of defendant by his own counsel, 

counsel abruptly stopped questioning and requested withdrawal 

from the case. Counsel refused to state reasons for his 

withdrawal request, but it was later learned that he felt 

that defendant was lying. The guilty verdict was vacated 

because the attention of the judge, who was the fact finder, 

was drawn to the problem counsel was facing which "disabled 

the fact finder from judging the merits of defendant's 

defense. " 

In the present case, Coleman's guilt was determined by a 

jury after a three week long trial with testimony from 50 

witnesses. The jury made the determination as to Coleman's 

guilt, unlike in Lowery, where the judge made that 

determination. Coleman contends that the trial judge was the 

fact finder because he determined if mitigating factors were 

present for sentencing. A judge acting as a finder of fact in 

place of a jury is not the same as a judge acting as the one 
who determines fact at the time of sentencing. Lowery is not 

persuasive here. 

The second case relied on by Coleman is Gardner v. 

Florida (1977), 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393. 

The opinion was signed by three members of the United States 

Supreme Court while three other members concurred in holding 

that the imposition of a death sentence was invalid. In 

Gardner a jury found defendant guilty, and after a separate 

sentencing hearing, the jury recommended a life sentence in 

accordance with Florida procedure. The trial judge then 

sentenced defendant to death relying on a presentence 

investigation report, a confidential portion of which was 

neither disclosed to nor requested by defendant or his 

counsel. The death penalty was vacated and the case returned 

for further proceedings because def en.dant was denied due 

process when the death penalty was imposed, at least in part, 

on the basis of confidential information which was not 

disclosed to defendant or his counsel, and which defendant 

had no opportunity to deny or explain. 

Coleman argues that the sentencing judge had information 

of which defense counsel had no knowledge and also which he 

had no opportunity to deny or explain. That information was 

that Coleman's first court appointed defense counsel believed 

Coleman to be guilty of deliberate homicide and sexual 

intercourse without consent. Coleman's present counsel took 

the case over only two weeks after Coleman underwent the 

sodium amytal examination. Coleman was aware that he had 

requested and had undergone the sodium amytal examination, 

and he was present during the second day of the July 2 and 3 

hearing, when the results of that examination were discussed 

before the court, as were first counsel's comments indicating 

his belief that his client had participated in the rape and 
murder of Peggy Harstad. Present counsel could have and 

should have obtained this information from his client. 

There is no indication that the sentencing judge 

considered defense counsel's statements or the results of the 

sodium amytal examination. The sentencing judge in his 

Findings, Conclusions, Judgment and Order of July 10, 1978, 

stated: 

"Both parties having been given the opportunity to 

place before the Court all matters each deemed 

relevant and competent bearing upon a determination 

of appropriate sentences to be imposed upon the 

three guilty jury verdicts rendered, and the Court 

having reviewed all matters submitted, together 

with the evidence produced at trial, and after 

observing the defendant's demeanor during the trial 

and while testifying on his own behalf, the Court 

now makes the following Findings, Conclusions, 

Judgment and Order." 

The court went on find: 

"3. That there is no evidence appearing, either in 

the record of the trial held in this cause or the 

special sentencing hearing accorded, supporting a 

finding of any of the circumstances in mitigation 

under the other numbered paragraphs of Section 

95-2206.9, [now cited 46-18-304, MCA] namely 

paragraphs (2) through (8) . There is, likewise, no 

evidence of any facts which are operative in this 

case to mitigate the penalty in this cause. The 

Court therefore finds, as follows: 

a. That the offenses charged and proven in this 

cause were not committed while the defendant was 

under the influence of any mental or emotional 

disturbance; and 

b. That in committing the acts charged and proved 

the defendant did not act under extreme duress or 

under the substantial domination of another person, 

rather the defendant's decisions to kidnap, rape 

and murder were the result of conscious 

deliberation and were his independent decisions 

arrived at despite contrary arguments advanced by 

Robert Nank against the murder of the victim; and 

c. That the capacity of the defendant to 

appreciate the criminality of his conduct or to 

conform his conduct to the requirements of law was 

not substantially impaired; and 

d. That the victim was not a participant in the 

defendant's conduct and did not consent to any of 

the acts, rather that she resisted, and pleaded 

with the defendant at various times throughout the 

course of events which resulted in her death; and 
e. That the defendant was not a relatively minor 

accomplice, nor was his participation in the 

offenses relatively minor, rather that the 

defendant was the decisionmaker and the dominating 

influence in the criminal acts committed against 

the victim; and 

f. That the defendant at the time of the 

commission of the offenses was 27 years of age. 

CONCLUSIONS 

"The Court concludes as follows: 

1. That the aggravating circumstances set forth in 

Section 95-2206.8 [Now cited 46-18-303, MCA] , paragraph (7) exists for the reason following: 

That the offense of aggravated kidnapping was 

committed by the defendant and it resulted in the 

death of the victim, Miss Peggy Harstad. 

2. That none of the mitigating circumstances 

listed in Section 95-2206.9 R.C.M. are sufficiently 

substantial to call for leniency. That the only 

mitigating circumstance technically present in this 

cause is that the defendant has no record history 

of prior criminal activity." 

Unlike Gardner, where there was concealment of 

information, here Mr. Coleman was present in court at the 

time the plea bargain offer was made by his original defense 

counsel. There was nothing of substance said during the first 

day of the hearing which was not effectively repeated before 

Coleman the second day. The transcript of that hearing was 

available to present defense counsel whenever he ordered it. 

Of particular significance is the total absence from the 

transcript of the hearing of any admission by either Mr. 

Coleman or his defense counsel that Mr. Coleman was guilty of 

the charge of aggravated kidnapping. At most, the admission 

from the plea bargaining process was that Mr. Coleman was 

guilty of deliberate homicide and sexual intercourse without 

consent which neither suggests nor implies guilt of the 

charge of aggravated kidnapping. Finally, between the plea 

bargaining on July 2 and 3, 1975 and the sentencing, the 

lengthy trial of the defendant took place and formed a basis 

known to the defendant and his present trial counsel for the 
conclusion that Coleman was guilty, not only of deliberate 

homicide and sexual intercourse without consent, but also 

aggravated kidnapping. Gardner is not a basis for reversal. 

The third case relied on by Coleman is Jones v. Cardwell 

(9th cir. 1982), 686 F.2d 754. After conviction but before 

sentencing, a state probation officer interviewed defendant 

on several occasions. During one of these sessions, 

defendant confessed to the commission of numerous other 

crimes. The probation officer reported the confession to the 

state court judge. The confession was found to be 

involuntary in that defendant was told that he had to answer 

all the probation officer's questions. The Ninth Circuit 

Court held "[a] sentencing judge's broad discretion to 

consider information in imposing sentence does not extend to 

consideration of information obtained in violation of a 

defendant's privilege against self-incrimination." Jones, 

686 F.2d at 756. 

Coleman chose to be examined under sodium amytal with 

the advice of his first counsel. There is no indication that 

Coleman's participation in the examination or in the offer to 

plea bargain was involuntary. There is also no indication 

that the sentencing judge considered defense counsel's 

statements or the sodium amytal examination results in 

sentencing Coleman. The results of the sodium amytal 

examination were not made a part of the record or given to 

the court to any greater extent than they were during the 

hearings on July 2 and 3, 1975. In contrast to Jones, no 

information was furnished from Mr. Coleman in violation of a 

defendant's privilege against self-incrimination. 

We fail to find any of the three cases relied upon by 

Coleman to be persuasive, as all are distinguishable from the 

present case. 
The State points out that the present case resembles the 

trial situation, where evidence of guilt is presented to a 

judge on a motion to exclude basis, and such evidence is then 

excluded; after which the same judge continues to act as 

trial judge and sentencing judge. In such a situation, a 

sentencing judge aware of excluded evidence, however damning, 

which has been suppressed, still is allowed to sentence a 

convicted defendant. There is a similarity between that type 

of situation and the present case. In addition, while no 

improperly seized evidence was considered here, we point out 

that a number of courts have allowed a sentencing judge to 

consider, during sentencing, evidence which has been 

illegally seized. See : Elson v. State 

(1981) I- Alaska , 633 P.2d 292; Logan v. State (1981), 

Md . , 425 A.2d 632; State v. Swartz (Iowa 1979) 278 

N.W.2d 22; United States v. Lee (4th Cir. 1976), 540 F.2d 

1205; United States v. Vandemark (9th Cir. 1975), 522 F.2d 

1019; United States v. Baratta (S.D. New York 19731, 360 

F.Supp. 512. 

The State cites Commonwealth v. Wilson (1980), 

Mass. , 407 N.E.2d 1229, where counsel for defendants 

represented to the judge that his clients expressed a desire 

to testify to facts different from those determined by 

investigation. On appeal, defendants attempted to use this 

record to suggest that the voluntary disclosures of their 

trial counsel so prejudiced the judge as to deprive 

defendants of due process of law. They did not argue that 

the disclosures resulted in prejudice during the trial, thus 

challenging the jury verdict, but only that the sentences 

imposed by the judge were a product of bias against them 

caused by the disclosure of their supposed willingness to 

perjure themselves. As in the present case, in setting forth 

12 
their claim of bias, defendants ignored the fact that the 

judge stated his reasons for imposing the sentences. 

The Massachusetts High Court held without hesitation 

that there was no error and that the record demonstrates the 

fairness with which the trial judge conducted the entire 

trial, and the evidence fully supports the conclusions he set 

forth as the basis for his sentence. We find the holding in 

Wilson to be more persuasive than the cases cited by Coleman. 

A trial judge can fairly sentence a defendant although aware 

of statements of the defendant or his counsel which were made 

outside of the presence of the jury. 

"Remand to a different judge is not the usual remedy 

when error is found in district court proceedings. Remand to 

a new judge is reserved for 'unusual circumstances'." United 

States v. Arnett (9th Cir. 1979), 628 F.2d 1162, 1165; Robin, 

553 F.2d at 10. 

"[Tlhe principal factors considered by us in 

determining whether further proceedings should be 

conducted before a different judge are (1) whether 

the original judge would reasonably be expected 

upon remand to have substantial difficulty in 

putting out of his or her mind previously-expressed 

views or findings determined to be erroneous or 

based on evidence that must be rejected, (2) 

whether reassignment is advisable to preserve the 

appearance of justice, and (3) whether reassignment 

would entail waste and duplication out of 

proportion to any gain in preserving the appearance 

of fairness." Robin, 553 F.2d at 10. 

The court in Robin, 553 F.2d at 10, further provided: 

"A resentencing necessitated by the judge ' s 

erroneous consideration of certain matters or 

failure to take others into consideration may 

involve essentially the same problems and require 

application of the same criteria." 

There is absolutely no indication on the record that the 

statements made by counsel at the July 2 and 3 hearings in 

any way affected the sentencing. The sentencing judge not 

only presided over the July 2 and 3 hearings, but 

subsequently presided over a three week, 3000-page transcript 
trial, with 50 witnesses, which resulted in a jury verdict of 

guilty on all three counts. The record does not disclose 

that the judge exhibited any prejudice toward the defendant. 

Great waste of time and effort would result if another judge 

were required to acquaint himself with the record in order to 

resentence Coleman. Under these circumstances, even if 

resentencing were required, which is not our conclusion, we 

do not find a basis for requiring a new judge to sit. 

In United States v. Thompson (9th Cir. 1976), 541 F.2d 

794, the prosecutor recommended a sentence of six months, but 

the district judge imposed a sentence of four years. 

Defendant contended that the district judge failed to impose 

the recommended sentence because he was misinformed that 

defendant had not cooperated with Drug Enforcement 

Administration agents pursuant to the plea bargain. There 

was no indication that the district judge relied on or ever 

received the misinformation. Defendant was not entitled to 

rebut since there was no misinformation to rebut. In the 

present case there is no indication that the judge considered 

the July 2 and 3 hearings during sentencing. 

On July 3, while Coleman was present, defense counsel 

stated that there was no way in the world that he could state 

to the jury that Coleman was innocent of deliberate homicide 

and of sexual intercourse without consent. Even though he 

made that admission, defense counsel did maintain that the 

State would have difficulty proving Mr. Coleman committed 

aggravated kidnapping. We hold that the admission cannot be 

construed as the equivalent of an admission of aggravated 

kidnapping. 

Defense counsel has failed to show that any improper 

information was considered by the sentencing judge. He is in 

a similar position to the defendant in Thompson. See also 

United States v. Hawkins (5th Cir. 1981), 658 F.2d 279, where 
defendant claimed the judge based his sentence on 

misinformation. The Fifth Circuit Court rejected the 

argument and held "[blecause we find that the district court 

did not rely on erroneous information in sentencing 

[defendant], there was nothing to correct or rebut." 

Hawkins. 658 F.2d at 290. 

Finally, let us consider the function of the sentencing 

judge in a capital case, where a jury has convicted the 

defendant. Under sections 46-18-301 et seq., MCA, the 

sentencing judge must consider in a separate hearing, certain 

specific statutory factors, and decide whether arrgavating or 

mitigating circumstances exist. The judge may not impose the 

death penalty unless at least one of the statutory 

aggravating factors exist. State v. Coleman (1979) 

Mont . , 605 P.2d 1000, 1016. Certainly, as Coleman 

points out and we have noted above, there - is judicial fact 

finding involved in consideration of these factors. But the 

guilt or innocence of the defendant is not one of the facts 

for the sentencing judge to determine where, as here, a jury 

has convicted the defendant of the crime or crimes with which 

he is charged. In the absence of an order for new trial, or 

reversal or modification of the verdict, the jury's 

determination of guilt establishes the guilt of the defendant 

as a fact. 

In sentencing Coleman, the court set forth the facts 

brought out at trial, and concluded from those facts that no 

substantial mitigating factors existed; that far from being a 

minor accomplice, or even the equal participant suggested by 

first counsel at the July 2 and 3, 1975, hearing, Coleman was 

"the decisionmaker and the dominating influence in the 

criminal acts committed against the victim." The aggravating 

factor leading to the court's imposition of the death penalty 
was the conviction of aggravated kidnapping. Section 

We see no finding or conclusion which was not brought 

out at trial, or which may have arisen from the disputed 

hearing, apart from the matter of defendant's guilt, which 

was established as a fact, not by the judge, but by the 

jury. We find, therefore, no indication that the remarks of 

Coleman's first counsel could have influenced the sentencing 

judge to impose the death penalty. 

Petition denied. 

We concur: 

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

, Justices 

A fi 4 

Hon. W.W. 

Court Judge, sittin9n place 

of Mr. Justice John C. Sheehy 
I respectfully dissent from the majority opinion. 

Coleman filed a verified petition for Writ of Habeas 

Corpus in which he alleges that "because the sentencing judge 

received and must have considered this information of which 

Coleman and his counsel had no knowledge nor opportunity to 

confront, deny or expla.in," Coleman was denied his rights to 

a fair tribunal, to confront witnesses, and to have effective 

assistance of counsel at sentencing. The State has filed no 

pleading nor affidavit controverting the allegations of the 

petition. For purposes of review we must assume as true that 

the sentencing judge received and must have considered 

Coleman's sodium amytal induced statements in rendering his 

death sentence. Since it is admitted that the trial court 

must have considered the information, resentencing is 

required. 

I herein incorporate by reference ml7 entire dissent 

filed in Coleman vs. State of Montana, 38 St.Rep. 1352, 

P.2d . In that dissent I quoted the following statement 

of the trial court, made in response to a defense motion for 

directed verdict in favor of defendant: 

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

motion. 

"MR. OVERFELT: In what regard? 

"THE COURT: Well, I am not going to grant the 

motion, but I say it has some merit. 

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

We could have gotten to the jury on circumstantial 

evidence alone, your honor, and I'm confident of 

that. 

"THE COURT: Well, all you have shown is the 

opportunity for this black boy to do it. You have 

shown plenty of opportunity." 

At this juncture in the trial the accomplice, Robert 

PJank, had testified. His testimony was not corroborated. 

The court, by its remarks, obviously did not believe Nank. 
Nank testified that Coleman was an active participant in the 

crime and in fact was the prime moving force. The court 

noted that the prosecution had proven nothing but 

opportunity. 

The transcript, as I have quoted it in my previous 

dissent, demonstrates vividly why the trial court felt that 

only opportunity had been proven. Nank's testimony was 

incredible. During that testimony he admitted that he had 

previously lied on many occasions in reporting the facts 

surrounding this incident. 

Curiously, when the trial court made its findings in 

support of the death penalty, the trial court said: 

"e. that the defendant was not a relatively minor 

accomplice, nor was his participation in the 

offenses relatively minor, rather that the 

defendant was the decision maker and the dominating 

influence in the criminal acts committed against 

the victim;" 

The above quoted finding forms the basis for imposition 

of the death sentence. This finding can only find support in 

Nank's testimony. The trial judge, being a reasonable 

person, could not have found this highly incredible evidence 

to be persuasive in proving Coleman to have been the prime 

moving force in the commission of the crime. 

The circumstances surrounding the sentencing are 

suspicious, to say the least. There is every indication that 

the trial judge did in fact consider the results of the 

sodium amytol test allegedly implicating Coleman in this 

crime. Of course any experienced criminal defense lawyer 

would have known that such tests are totally unreliable and 

could not form a reasonable basis for the damaging admissions 

counsel made to the court prior to withdrawal of 

representation. 
We are here confronted with a record that should leave 

no choice for the majority. We have an unrebutted 

allegation, under oath, that the court must have relied upon 

the results of the sodium amytol test. We have a finding by 

the court that Coleman was the "decision maker and the 

dominating influence" in the criminal acts committed. There 

is no basis for this in the transcript except for the highly 

incredible testimony of Nank, an admitted liar. Under these 

circumsta.nces we are required to order a resentencing. 

I would remand for resentencing before a different 

district judge. 

I concur with Justice Morrison. 

, v? / 

*.&,iii' J g,41Lf7 

Justice d 

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

later.